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North, J.
Plaintiff brought this suit against the city of Detroit to recover personal property tax paid by plaintiff under protest. The suit was tried by the court without a jury. Plaintiff had judgment and defendant appealed.
Plaintiff filed with the board of assessors of the city of Detroit its sworn statement purporting to disclose all of its personal property subject to taxation; the amount disclosed being $4,679,020. Following the assessment of this property at the above valuation an audit, made at the instigation of the Detroit board of assessors of plaintiff’s books and records, disclosed plaintiff possessed taxable personal property claimed to be of the value of $8,548,-250. In consequence the Detroit board of assessors and an individual taxpayer filed complaints, ac companied by a photostatic copy of tbe audit, with the Michigan State tax commission seeking review and reassessment of plaintiff’s taxable personal property. As the result of the subsequent proceedings before the tax commission, the validity of which is challenged herein by plaintiff, its personal property was reassessed at a valuation of $8,548,250. The' increase, resulting in plaintiff’s personal tax amounting to $110,601.94, was paid by plaintiff under protest; and, as above noted plaintiff had in the instant case judgment for recovery of the same with interest thereon in the circuit court.
Decision herein turns upon whether the proceedings before the State tax commission in reassessing; plaintiff’s property were conducted as required by statute. The pertinent portion of the general property tax law of this State reads:
“Sec. 150. It shall be the duty of said board (now State tax commission. See CL 1948, § 209.103 [Stat Ann § 7.633]):
“1. To have and exercise general supervision over the supervisors and other assessing officers of this State, and to take such measures as will secure the enforcement of the provisions of this act, to the end that all the properties of this State liable to assessment for taxation shall be placed upon the assessment rolls and assessed at their actual cash value; * * *
“3. To receive all complaints as to property liable to taxation that has not been assessed or that has been fraudulently or improperly assessed, and to> investigate the same, and to take such proceedings as will correct the irregularity complained of, if any is found to exist.” CL 1948, § 211.150 (Stat Ann § 7.208).
The statutory authority and the procedural method for reviewing assessment rolls and for reassessing property for taxes in a lawful amount is conferred upon the board of State tax commissioners as follows:
“Sec. 152. After the various assessment rolls required to be made under this act or under the provisions of any municipal charter shall have been passed upon by the several boards of review, and prior to the making and delivery of the tax rolls to the proper officer for collection of taxes, the said several assessment rolls shall be subject to inspection by said board of State tax commissioners or by any member or duly authorized representative thereof and in case it shall appear to said board after such investigation, or be made to appear to said board by written complaint of any taxpayer, that property subject to taxation has been omitted from or improperly described upon said roll or individual assessments have not been made in compliance with law, the said board may issue an order directing the assessor whose assessments are to be reviewed to appear with his assessment roll and the sworn statements of the person or persons whose property or whose assessments are to be considered at a time and place to be stated in said order. * * * A copy of said order shall be published in at least 1 newspaper published in said county, if there be any, at least 5 days before the time at which said assessor is required to appear ; and where practicable, personal notice by mail shall be given prior to said hearing to all persons whose assessments are to be considered. * * * The said board or any member thereof, as the case may be, shall then and there hear and determine as to the proper assessment of all property and persons mentioned in said notice, and all persons affected or liable to be affected by review of said assessments thus provided for may appear and be heard at said hearing. In case said board, or member thereof, who shall act in said review, shall determine that the assessments so reviewed are not assessed accord ing to law, he or they shall, in. a column provided for that purpose, place opposite said property the true and lawful assessment of the same. As to the property not upon the assessment roll, the said board, or member thereof acting in said review, shall place the same upon said assessment roll by proper description and shall place thereafter, in the proper column, the true cash value of the same.” CL 1948, § 211.152 (Stat Ann § 7.210).
Two days after the complaints in the instant case were, filed with the State tax commission and on June 18, 1947, the commission by a registered mail letter served on plaintiff a notice that the commission had received and accepted for investigation the above-mentioned complaints, whereby there was sought “an adjustment of the 1947 personal property assessment of your company in the city of Detroit from the present figure of $4,679,020 to $8,548,250.” .The remaining material portion of this notice, designated in the record as exhibit Á, reads:
“Please give this official notice your immediate and careful consideration and advise this commission as to your position in this matter. Failure on TOUR PART TO PILE A WRITTEN PROTEST WITH THIS COMMISSION WITHIN 10 DAYS OP THE MAILING OP THIS NOTICE, REQUESTING AN INVESTIGATION BY AND A HEARING BEFORE THIS BODY, WILL BE REGARDED AS WAIVER OP PROTEST.”
Plaintiff did not reply to or comply with the above notice; and the issue is presented as to what bearing, if any, receipt of exhibit A by plaintiff had upon the validity of the reassessment of plaintiff’s personal property. Procedure by which taxes may be validly assessed is strictly statutory. J. B. Simpson, Inc., v. O’Hara, 277 Mich 55; Acorn Iron Works, Inc., v. State Board of Tax Administration, 295 Mich 143 (139 ALR 368). We do not find in the statute any authority for the State tax commission serving upon the taxpayer a notice of the character of exhibit A. Instead the above quoted statute specifically provides the procedure which so far as material here is in substance as follows: (1) The issuance of an order directing the assessor to appear at a stated time and place with his assessment roll and the sworn statements of the person or persons whose property or whose assessments are to be considered; (2) Publication of such order and “where practicable, personal notice by mail” to the person whose assessment is to be considered; and (3) Hearing at the time and place designated at which “all persons affected * * * by review of said assessments thus provided for may appear and be heard.” Exhibit A served upon plaintiff in no way complied with these statutory requirements as to time and place of hearing. Instead exhibit A purports to advise the plaintiff taxpayer that unless it advises “this commission as to your (its) position in this matter” its failure to do so will be construed as a waiver of protest and of its statutory right to a hearing before the commission. There is no provision in the statute for depriving the taxpayer in this manner of a hearing before the State tax commission, for which hearing the statute expressly provides. Our conclusion is that neither of the parties to this suit is benefited or prejudiced by the service of exhibit A.
In our opinion in the former case between these parties we said:
“Neither the phraseology of the notice (exhibit A) nor the failure to give notice that an ‘investigation^ had already been made by the State tax commission can operate to deprive the State tax commission of its statutory authority to review the assessment rolls. The notice sent to plaintiff by the State tax commission on June 18th was not required tiy the statute as a condition precedent to action by the commission under section 152 hereinbefore quoted in part.”
In the instant case, as in the former, we hold that the State tax commission had jurisdiction “to review and increase” the 1947 assessment of plaintiff’s personal property; but it was requisite to a valid increased reassessment of plaintiff’s personal property that the commission comply with the applicable statutory procedure. After service of exhibit A further proceedings before the State tax commission were held in abeyance until after our decision was rendered in April, 1948, in the former case. Subsequently to our decision in that case and under date of May 1, 1948, the tax commission published a notice of the time and place that it would hold hearings of the character here involved. Insofar as material to the present case, this notice was as follows:
“Whereas, complaints were made to the commissioners of the State tax commission that personal properties liable to taxation located in the city of Detroit, owned by the Continental Baking Company, Kaiser-Frazer Corporation, Minnesota Mining and Manufacturing Company, Montgomery Ward and Company and others, had been improperly assessed or not assessed in compliance with law; * * *
“Therefore ordered, that in accordance with the provisions of section 152 of the general property tax laws, as amended, said assessment rolls containing the assessed valuation of the personal property in the city of Detroit shall be subject to review, and the assessors of said city be and are hereby required to appear in room 1700, Michigan Detroit Office Building, on Tuesday, May 11, 1948, and Wednesday, May 12, 1948, and that the taxpayers mentioned above, or their representatives, enter appearance at that time; and it is
“Further ordered, that the commissioners of said State tax commission, or any commissioner thereof, shall hear and determine as to the proper assessment of any personal properties of the above named taxpayers that was liable to ad valorem taxation on the 1947 personal property assessment rolls of said city, and will take such action as will correct any irregularities that may be found to exist in the assessment of said properties on the said 1947 assessment rolls.”
It will be observed that the commission’s notice of hearing did not contain any description or identification of plaintiff’s property nor did it contain any reference to plaintiff by name, unless it can be said that plaintiff was included in the words “and others” following those specifically named. The commission also by letter dated April 30, 1948, mailed notice to plaintiff of the hearings to be held on May 11th and 12th, but it concluded its letter a,s follows:
“As you filed no written protest with this commission requesting an investigation by and a hearing before this body as required by our official notice of June 18,1947, no hearing is being scheduled thereon during the hearings on review, when final valuations are determined on all appeals involved.”
Following the commission’s hearings held pursuant to the foregoing notice plaintiff’s taxable personal property was placed on the 1947 assessment roll at a valuation of $8,548,250. In the trial court in the instant case and on this appeal plaintiff asserts that it was not given a valid notice (to which it was entitled) of the hearing before the commission since, as bearing upon the purport of the quotation just above noted, its property was not identified in the published notice nor was plaintiff named therein; and further that plaintiff was not bound by the determination of the commission since in the letter mailed to plaintiff, in the words last above quoted, plaintiff was notified that “no hearing is being scheduled” as to reassessment of its taxable per sonal property “during the hearings on review” to which the notice of hearing pertained.
Plaintiff did not appear at the May, 1948, hearings before the tax commission; and obviously it could not be bound by the commission’s reassessment uiiless plaintiff had valid notice of the hearings to be held by the commission. We are of the opinion that by the publication plaintiff was not given notice required by the statute (CL 1948, § 211.152 [Stat Ann § 7.210]), wherein it is provided “the said board may issue an order” for a hearing, and “a copy of said order shall be published” as to the time and place of hearing, and further:
“The said board or any member thereof, as the case may be, shall then and there hear and determine as to the proper assessment of all property and persons mentioned in said notice, and all persons affected or liable to be affected by review of said assessments thus provided for may appear and be heard at said hearing.”
The statute in the same section also provides, “and where practicable, personal notice by mail shall be given prior to said hearing to all persons whose assessments are to' be considered.” Obviously because of this statutory requirement, the commission did give plaintiff notice by mail of the time and place of the May, 1948, hearings, but, as quoted above, plaintiff in such personal notice was definitely notified “no hearing is being scheduled thereon on review of plaintiff’s assessment) during the hearings on review.” In consequence neither the published notice nor the attempted personal notice was binding on plaintiff, who was not present or represented at the May, 1948, hearings. The personal notice to plaintiff that “no hearing is being-scheduled” for review of the assessment of its personal property rendered the claimed notice a nullity. Plaintiff did not receive the requisite statutory notice, and in the absence thereof the commission’s attempt to reassess plaintiff’s personal property did not comply with the statutory requirement as to notice and was wholly ineffective.
Defendant contends that decision in the former case between these parties is res judicata of the instant case. Defendant states: “This litigation-involves the validity of the action of the State tax commission,” and reference is made to the statutory provision (CL 1948, § 211.152 [Stat Ann § 7.210]) that: “The action of said board or member done as provided in this act shall be final.” The italicized words must not be overlooked. The action of the tax commission is subject to judicial review if, as in the instant case, such action is not “done as provided in this act.” The issue in the instant case is whether or not in a procedural sense the action taken by the commission subsequently to decision in the former case complied with statutory requirements. That issue was not involved in the former case. Defendant’s contention as to res judicata is not tenable.
The remaining question on this appeal pertains to matters which arose subsequently to entry of judgment in the circuit court on November 18, 1948. On December 8th following, defendant filed a motion for a new trial and a motion to amend its answer. In each motion defendant set forth the subsequent matters in consequence of which it sought to amend the answer and a new trial. We quote from the motion to amend defendant’s answer:
“1. That on December 6, 1948, the Michigan State tax commission, in full compliance with the general State tax law, at a hearing properly ordered, published and noticed, made a final determination of the proper assessed value of plaintiff’s personal property for the year 1947. *■ * *
“2. That the tax now due and payable and owing by plaintiff upon said assessment is in the sum of $110,601.94. _
_ “3. That judgment should be rendered in this litigation for this defendant for the amount demanded by way of recoupment.”
After judgment adverse to defendant it sought to create a new condition or set of facts which by its motions it attempted to have considered incident to reconsideration and final adjudication of a suit already prosecuted to final judgment. We know of no authority which holds that as a matter of right defendant was entitled to the relief it sought in these motions; and denial of them by the circuit judge is not a ground for relief in this Court. The ruling of the circuit judge was in accord with the law as recognized in Schwier v. Atlas Assurance Co., 227 Mich 104, wherein a headnote reads: “A litigant may not sue first and obtain his right of action afterwards.”
The judgment entered in the circuit court is affirmed, with costs to appellee.
Sharpe, C. J., and Bushnell, Boyles, Reid, Dethmers, and Carr, JJ., concurred.
Butzel, J., did not sit.
Further details of the factual background of this litigation appear in our opinion in a suit between these same parties reported in 321 Mich 11. | [
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T. E. Brennan, J.
This action was commenced in the circuit court for Oakland County for a declaratory judgment invalidating a special assessment for sewer construction.
The gist of the action is that plaintiff property owners, and others similarly situated, have been denied the right to veto the construction of the sewer, pursuant to an ordinance of the City of Southñeld, and further that they have been denied the opportunity to be heard before the City Council on the necessity for the improvement as required by ordinance.
Finally, plaintiffs claim that if they are not entitled to such hearing, the entire special assessment procedure is invalid as violating the equal protection clauses of state and Federal Constitutions.
Both parties sought summary judgment in circuit court. Defendant prevailed, and the summary judgment in defendant’s favor was affirmed by the Court of Appeals.
The sewer involved is formally designated Sanitary Lateral System #7. Construction of the sewer has long since been completed, and presumably, the sewer is now in operation.
There is no dispute that the sewer was constructed by the County of Oakland through its Department of Public Works, under contract with the City of Southfield. Statutory authority for such an arrangement is contained in MCLA 123.742; MSA 5.570(12); and MCLA 123.743; MSA 5.570(13). These statutes provide:
"Sec. 12. (1) The county operating under this act and any 1 or more municipalities including the county itself may enter into a contract or contracts for the acquisition, improvement, enlargement or extension of a water supply, a sewage disposal or a refuse system or the making of lake improvements and for the payment of the cost thereof by such contracting municipalities, with interest, over a period not exceeding 40 years.
"(2) In any such contract or contracts each contracting municipality shall pledge its full faith and credit for the payment of its obligations thereunder and if the municipality has taxing power, shall each year levy a tax, which shall not be within any statutory or charter limitation, in an, amount which, taking into consideration estimated delinquencies in tax collections, will be sufficient for the prompt payment of that part of the contract obligations as shall fall due before the following year’s tax collection. For the payment of contractual obligations incurred pursuant to this act, a township shall levy a tax only on the taxable property in the unincorporated areas of the township unless the township and a village have agreed that a part of the capacity in the county system allocated to the township by contract pursuant to this act will be used to serve areas in a village located wholly or partly within the township and the village has not itself agreed to purchase such capacity in the county system. If any contracting municipality at the time of its annual tax levy shall have on hand in cash any amount pledged to the payment of the current obligations for which the tax levy is to be made, then the annual tax levy may be reduced by that amount. For the purpose of obtaining such credit, funds may be raised by any municipality in any 1 or more of the following methods:
"(a) By service charges to users of the system or lake improvements.
"(b) By special assessment upon lands benefited.
"(c) By the exaction of charges for the connection of properties, directly or indirectly, to the system.
"(d) By setting aside any state collected funds disbursed to the municipality and usable therefor.
"(e) By setting aside any other available moneys.
"The foregoing tax requirements when applied to a county or township shall be subject to any constitutional tax limitation or any lawful increase thereof. Any municipality may agree to raise all or any part of its contract obligation by any 1 or more of the foregoing methods which may be available. The various powers in this act granted to any municipality shall be exercised by its governing body. Any contract heretofore entered into which complies with the provisions of this act, as now amended, is hereby validated.
"Sec. 13. When the board of public works shall determine to spread all or part of the cost of a project to a special assessment district, it shall proceed as provided in chapter 2 of this act. If a municipality other than a county operating under this act elects to raise moneys to pay all or any portion of its share of the cost of a project by assessing the same upon benefited lands, its governing body shall so determine by resolution and fix the district therefor. The governing body shall then cause a special assessment roll to be prepared and thereafter the proceedings in respect to the special assessment roll and the making and collection of the special assessments thereon, shall be in accordance with the provisions of the statute or charter governing special assessments in the municipality, except that the total assessment may be divided into any number of installments not exceeding 30, and any person assessed shall have the right at the hearing upon the special assessment roll to object to the special assessment district previously established in which event due con- « sideration shall be given to the objections.”
Chapter 2 of the Act, referenced in section 13 above, provides in part as follows:
"Sec. 22. The board of public works shall cause to be prepared by a registered engineer, plans showing the project and an estimate of the cost thereof. Upon receipt of such plans and estimate the board of public works shall order the same to be filed with the director of public works and if it shall desire to proceed with the said project, it shall by resolution tentatively so declare and also tentatively designate the special assessment district against which the cost of the project is to be assessed. The board of public works shall then fix a time and place when and where it will meet and hear any objections to the improvement and to the special assessment district therefor, and shall cause notice of the hearing to be given by the publication thereof twice prior to the hearing in a newspaper circulating in the special assessment district, the first publication to be at least 10 days prior to the time of the hearing. The notice shall state that the plans and estimate are on file with the director of public works for public examination and shall contain a description of the proposed special assessment district. At the time of the hearing, or at any adjournment thereof which may be without further notice, the board of public works shall hear any objec tions to the improvement and to the special assessment district. The board of public works may revise, correct, amend or change the plans, the estimate of cost or the special assessment district. No final action shall be taken in respect to the addition of any property to the district or to increasing the estimated cost in excess of 10% of the original estimate, until after a new hearing upon notice given as above provided.” MCLA 123.752; MSA 5.570(22).
"Sec. 24. When any special assessment roll shall have been made the same shall be filed in the office of the director of public works. Before confirming the assessment roll the board of public works shall fix a time and place when it will meet and review the same and hear any objections thereto, and shall cause notice of the hearing and of the filing of the assessment roll, to be published twice prior to the hearing in a newspaper circulating in the special assessment district, the first publication to be at least 10 days before the hearing. The hearing may be adjourned from time to time without further notice. Any person objecting to the assessment roll shall file his objection thereto in writing with the director of public works before the close of the hearing or within such further time as the board may grant. After the hearing the board of public works may confirm the special assessment roll as reported to it or corrected by it, or may refer it back for revision, or may annul it and direct a new roll to be made. When a special assessment roll shall have been confirmed the secretary of the board shall indorse thereon the date of confirmation. After the confirmation the special assessment roll and all assessments thereon shall be final and conclusive unless attacked in a court of competent jurisdiction within 30 days after the date of confirmation.” MCLA 123.754; MSA 5.570(24).
The ordinance of the defendant city governing special assessments is No. 147. It contains these provisions:
"Section 3. To Initiate Special Assessment Projects:
"Proceedings for the making of local public improve- merits within the City may be commenced by resolution of the Council, on its own initiative or by an initiatory petition signed by property owners whose aggregate property in the special assessment district was assessed for not less than 60% of the total assessed value of the privately owned real property located therein, in accordance with the last preceding general assessment roll; Provided However, that in the case of special assessments for paving or similar improvements which are normally assessed on a frontage basis against abutting property, such petitions shall be signed by the owners of not less than 60% of the frontage of property to be assessed.
"Such petitions shall contain in addition to the signatures of the owners, a brief description of the property owned by the respective signers thereof.
"Such petitions shall be verified by the affidavit of one or more of the owners or by some person or persons with knowledge that said signers are such owners and that such signatures are genuine.
"Petitions shall be addressed to Council and filed with the City Clerk. Petitions containing the signatures as required by this Section 3 shall be mandatory upon the Council.
"All petitions shall be circulated and signed on blank forms furnished by the City.
"All petitions shall be referred by the City Clerk to the City Administrator. The City Administrator shall check the petitions to determine whether they conform to the foregoing requirements and shall report his findings to the City Council.
"Section 4. Survey and Report:
"Before the Council shall consider the making of any local public improvement, the same shall be referred by resolution to the City Administrator directing him to prepare a report which shall include preliminary plans and estimates of cost, an estimate of the life of the improvement, a description of the assessment district or districts and such other pertinent information as will permit the Council to consider the cost, extent, and necessity of the improvement proposed and what part or proportion thereof should be paid by special assess ments upon the property especially benefited and what part, if any, should be paid by the City at large. The Council shall not finally determine to proceed with the making of any local public improvement until such report of the City Administrator has been filed, nor until after a public hearing has been held by the Council for the purpose of hearing objections to the making of such improvement.
"Section 5. Determination on the Project, Notice:
"After the City Administrator has presented the report required in Section 4 for making any local public improvement as requested in the resolution of the Council, and the Council has reviewed said report, a resolution may be passed determining the necessity of the improvement; setting forth the nature thereof; prescribing what part or proportion of the cost of such improvement shall be paid by special assessment upon the property especially benefited; determination of benefits received by affected properties and what part, if any, shall be paid by the City at large; designating the limits of the special assessment district to be affected; placing the complete information on file in the oifice of the Clerk where the same may be found for examination; and directing the Clerk to give notice of public hearing on the proposed improvement at which time and place opportunity will be given interested persons to be heard. Such notice shall be given by one publication in a newspaper published or circulated within the City and by first class mail addressed to each person having an interest in property to be assessed as shown by the last general tax assessment roll of the City, said publication and mailing to be made at least fourteen (14) full days prior to the date of said hearing. The hearing required by this section may be held at any regular, adjourned or special meeting of the Council.
"Section 6. Objections to Improvement:
"If, at or prior to such meeting of the Council, not less than sixty (60%) percent of the number of owners of private real property to be assessed for any improvement shall object in writing to the original determination of necessity of the proposed improvement, the improvement shall not be made.
"Section 7. Hearing on Necessity:
"At the public hearing on the proposed improvement, all persons interested shall be given an opportunity to be heard, after which the Council may modify the scope of the local public improvement in such a manner as they shall deem to be in the best interest of the City as a whole; provided, that if the amount of work is increased or additions are made to the district, then another hearing shall be held, pursuant to notice prescribed in Section 5. If the determination of the Council shall be to proceed with the improvement, a resolution shall be passed approving the preliminary plans, assessment district, and estimates of cost, directing the Engineer to prepare construction plans and specifications, and directing the Assessor to prepare a special assessment roll in accordance with the Council’s determination, and report the same to the Council for confirmation. The Council shall approve construction plans and specifications prior to the meeting to review the special assessment roll, as provided in Section 12.
"Section 12. Meeting to Review Special Assessment Roll — Objections in Writing:
"Upon receipt of such special assessment roll, the Council, by resolution, shall accept such assessment roll and order it to be filed in the office of the Clerk for public examination; shall fix the time and place the Council will meet to review such special assessment roll, and direct the Clerk to give notice of a public hearing for the purpose of affording an opportunity for interested persons to be heard. Such notice shall be given by one publication in a newspaper published or circulated within the City and by first class mail addressed to each person having an interest in property to be assessed as shown by the last general tax assessment roll of the City, said publication and mailing to be made at least fourteen (14) full days prior to the date of said hearing. The hearing required by this section may be held at any regular, adjourned, or special meeting of the Council. At this meeting, all interested persons or parties shall present in writing their objections, if any, to the assessments against them. The Assessor shall be present at every meeting of the Council at which a special assessment is to be reviewed.”
These enactments establish three distinct methods of imposing special assessments for sewer construction:
(1) A sewer may be constructed by the county directly through its Department of Public Works, in which case the procedure for imposing the special assessment is controlled by sections 22 and 24, quoted above.
Under this method, the property owners receive notices of two hearings before the Department of Public Works. The first hearing is required by section 22. Its purpose is to hear objections to the improvement and to the special assessment district. A second hearing is required under section 24. The purpose of the second hearing is to air objections to the assessment roll. Objections to the roll must be made in writing.
(2) A sewer may be constructed by the city itself, in which case the imposition of a special assessment is governed by the procedures outlined in the ordinance. These are similar to the procedures outlined in sections 22 and 24, but they are not identical.
The two methods have these aspects in common; both require two distinct public hearings. In both instances, the first hearing affords interested parties the opportunity to object to the making of the improvement and to the proposed assessment district.
In both instances, the second hearing is limited to objections to the assessment roll. The language of the ordinance is, " * * * objections, if any, to the assessments against them.”
In both instances, objections to the roll must be made in writing.
The city’s assessment procedure differs from the county’s in one important particular. Section 6 of the ordinance permits 60% of the property owners to veto the making of the improvement.
(3) Finally, a sewer can be constructed by the county under contract with the city. This method is outlined in sections 12 and 13.
In these cases the theory of the special assessment is somewhat different. The act requires the levy on an annual sewer tax to pay for the sewer. It then provides, by way of condition subsequent, that the sewer tax need not be levied if the city shall have enough money on hand to pay the annual installment on the sewer installation contract. It provides several methods to accumulate such funds, one of which is by a special assessment upon benefited lands.
Procedure for such assessment is controlled by section 13 of the Act. It does not expressly require any hearings.
Section 13 does, however, require that proceedings in respect to the special assessment roll shall be in accordance with provisions governing special assessments in the municipality.
It then' specifies that objections to the special assessment district may be advanced " * * * at the hearing upon the special assessment roll Hi * * >>
The legislative purpose to eliminate a formal hearing to air objections to the making of the improvement itself is clear.
There is no constitutional right to a hearing on the necessity of constructing a public sewer. Roberts v Smith, 115 Mich 5 (1897), states, pp 7-8:
"We are not aware of any cases that hold that all persons subject to assessments for drains must have notice of, and a hearing upon, the question of the public necessity. If the Constitution requires it, the same requirement would appear to be applicable to other public improvements, such as highways, waterworks, public buildings, and the like; and it might be plausibly urged that all taxation would be subject to the same right.”
The right of remonstrance by petition of 60% of the affected property owners — which we have called a veto power — operates to avoid the special assessment by eliminating the improvement itself.
Both the public hearing required by section 5 of the ordinance and the property owners’ veto granted in section 6 of the ordinance go to the threshold question of whether the improvement is to be constructed. In cases where it is proposed to contract with the county, section 12 of the Act places that decision-making power in the governing body of the city. Section 13 of the Act incorporates the city charter and ordinances adopted thereunder only insofar as they govern the procedures of approving the special assessment roll.
The issue of equal protection is without merit. The statutes quoted do not divide people into classes arbitrarily or otherwise. The statutes merely provide alternate methods of constructing public improvements.
The advantages and disadvantages of the different permitted approaches are for the governing body of the city to weigh.
Affirmed. Costs to the appellee.
T. M. Kavanagh, C. J., and Adams, T. G. Kavanagh, Swainson, and Williams, JJ., concurred with T. E. Brennan, J.
Black, J., concurred in the result. | [
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Adams, J.
I agree with Justice T. G. Kavanagh with regard to the issue of assemblage but am unable to agree with him that the holding by the Court of Appeals, that it was error for the probate court to permit the questioning of the commissioners, was erroneous.
Const 1963, art 10, § 2, provides:
"Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record "(Emphasis added.)
Const 1908, art 13, § 1, provides:
"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.”
Under the Constitution of 1908, condemnation proceedings were inquisitorial in nature. The commissioners were undirected during their deliberations and could carry on with a free hand. Under such circumstances, it was proper to subject their actions to judicial scrutiny after an award had been entered. Now the situation has been completely altered.
In accordance with the language of Const 1963, art 10, § 2, we held in State Highway Commissioner v Gulf Oil Corp, 377 Mich 309 (1966), that the procedure to be followed by a judge in condemnation cases is that set forth in GCR 1963, 516.5, which reads:
"Judges of courts of record in which condemnation proceedings have been instituted shall preside over the proceedings in person and shall instruct the jury or commissioners on questions of law and admissibility of evidence.”
In the above case, the judge was absent from the bench during the proceedings, even though he began and ended them. We specifically held that "the procedure followed by the judge in this case * * * is not to be condoned in future condemnation cases.” (pp 315-316.)
In view of the 1963 constitutional requirement that "compensation shall be determined in proceedings in a court of record”, the holding of this Court in State Highway Commissioner v Gulf Oil Corp, supra, and GCR 1963, 516.5, the proper procedure to be followed in condemnation cases must accord with that in other judicial proceedings. If this case had been tried to a judge or a jury, cross-examination of the judge or of the jury after verdict would have been clearly improper.
Most cases dealing with the questioning of a jury involve an affidavit by a juror which would tend to impeach the jury’s verdict. In McDonald and United States Fidelity & Guaranty Co v Pless, 238 US 264; 35 S Ct 783; 59 L Ed 1300 (1915), the Court stated (pp 267-268):
"For while by statute in a few jurisdictions, and by decisions in others, the affidavit of a juror may be received to prove the misconduct of himself and his fellows, the weight of authority is that a juror cannot impeach his own verdict. The rule is based upon controlling considerations of a public policy which in these cases chooses the lesser of two evils. When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what had happened in the jury room.
" * * * But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.”
This case has been frequently cited by state and Federal courts and law journals. It has been interpreted as distinguishing facts which "inhere in the verdict” and facts which are extraneous, "outside influence”. (Jurors and the Sanctity of Their Verdicts, Hill, 63 W Va L Rev 261 [1961]).
In Rakes v United States, 169 F2d 739, 745 (CA 4, 1948), the Court stated:
"If jurors are conscious that they will be subjected to interrogation or searching hostile inquiry as to what occurred in the jury room and why, they are almost inescapably influenced to some extent by that anticipated annoyance.”
In People v Pizzino, 313 Mich 97, 105 (1945), the Court stated:
"The rule is well established that jurors may not impeach their verdict by affidavits. To permit this would open the door for tampering with the jury subsequent to the return of their verdict.”
See also: In re Merriman’s Appeal, 108 Mich 454 (1896); People v Van Camp, 356 Mich 593 (1959); Ford Motor Credit Co v Amodt, 29 Wis 2d 441; 139 NW2d 6 (1966); Miller v Illinois Central R Co, 36 Wis 2d 184; 152 NW2d 898 (1967); West v Alaska, 409 P2d 847 (Alas, 1966); In re Will of Florence Hall, 252 NC 70; 113 SE2d 1 (1960); Zeiszler v Fields, 255 Or 540; 469 P2d 34 (1970).
While most cases deal with an attempt to impeach a jury verdict by affidavits, a few cases deal with interrogation of juries.
In Miller v Blue Ridge Transportation Co, 123 W Va 428, 437; 15 SE2d 400, 405 (1941), the Court said:
"Time and again it has been held that affidavits of a juror should not be received to impeach a verdict. * * * . If the affidavit of a juror, voluntarily given, is not permissible for the purpose of impeaching a verdict, a trial court should not inquire of a jury as to the method used in obtaining the verdict. The same public policy prevails in either instance.”
In Hermann v Schroeder, 175 SW 788 (Tex Civ App, 1915), counsel wanted testimony taken from the jury as to whether the jury understood a charge. The Court said (p 789):
"The jury is presumed to be composed of men of ordinary intelligence, who understand the court’s charge. If such practices as here suggested were indulged in, it would soon become intolerable.”
See also: Teeters v Frost, 145 Okla 273; 292 P 356 (1930).
In summary, McDonald v Pless, supra, is the majority rule based upon public policy reasons, i.e., to prevent invasion of privacy of the jury room, inhibiting frank and free discussions and tampering of the jurors.
As previously indicated, now that condemnation proceedings are carried on in courts of record under the control and supervision of the trial judge, the same rule should apply to such proceedings as in other cases. The commissioners stand in the place of a judge or a jury. Once they have arrived at their decision, for the reasons set forth in the various opinions and cases quoted or cited in this opinion, they should not be subject to cross-examination. The rule, as set forth by Judge Holbrook in his opinion in the decision of the Court of Appeals, should be followed. For the reasons set forth in this opinion, the earlier decisions of this Court in Marquette H & O R Co v Probate Judge, 53 Mich 217 (1884), and State Highway Commissioner v Ioppolo, 366 Mich 487 (1962), have been superseded.
Affirmed and costs to defendant.
T. M. Kavanagh, C. J., and Swainson and Williams, JJ., concurred with Adams, J.
T. G. Kavanagh, J.
(for reversal in part and affirmance in part). We granted leave in this case primarily to correct the holding by the Court of Appeals that it was error for the probate court to permit the questioning of the commissioners after their first report.
It does not appear from the record that this question was submitted to the Court of Appeals, and it’s gratuitous holding thereon in our view can only serve to confuse the condemnation practice under this statute.
Historically in. Michigan, the commissioners in condemnation were the judges of both the law and the facts. In re State Highway Commission, 249 Mich 530 (1930), In re Dillman, 255 Mich 152 (1931). They were however, subject to some supervision by the court, inferring some ability by the court to delve into the reasoning behind their decision.
The Constitution of 1963 expanded the role of the court in condemnation proceedings. In response to this expansion, GCR 1963, 516.5 was amended to require the court to instruct the commissioners as to the applicable law, rather than merely to advise them. The court presently has great discretion in condemnation proceedings as shown by MCLA 486.252 et seq.; MSA 22.1672 et seq. The court may set aside the commissioners’ report, or may permit the amendment of such report. Until by statute or rule there are express provision to the contrary, we hold that the court’s discretion embraces permission for the questioning of the commissioners either by the court or counsel.
In State Highway Commissioner v Ioppolo, 366 Mich 487 (1962), the trial court allowed the commissioners to be questioned. Although not addressing the issue directly, this Court found that the proceedings were proper, implicitly upholding the propriety of the questioning of the commission.
Such is the rule today.
While in our view the other issues were properly disposed of by the Court of Appeals, only the issue of assemblage warrants further observation.
The Court of Appeals and the trial court correctly stated the applicable rule as to whether the value ascribable to a particular use — gas storage — (realizable only through the assembly of the entire tract) can be considered in making a condemnation award. If the value of the land is enhanced from the possibility of its coming into the market for such use, then value must be considered in determining the condemnation award.
The difficulty in this case arises from the application of that rule to the facts. In the first award, the commissioners granted compensation for the use of the land as a gas storage facility. Upon questioning by counsel, the commissioners stated that it was their opinion that the land could not have been assembled without the exercise of eminent domain. The probate court set aside the award and ordered the commissioners to reconsider their determination, but in instructing the commissioners on the second submission the court stated:
"The Court also has ruled, as a matter of law, that the employment of eminent domain would be necessary to assemble this underground storage field.”
It is possible that the commissioners felt bound, in part at least, by this instruction. The instruction is inaccurate.
The possibility of assembly without eminent domain is a question of fact to be found from the evidence presented. Upon remand, the commissioners should be instructed to make a factual determination of the probability of assemblage within a reasonable time at a reasonable price. If such assemblage is found to be practical without exercising eminent domain, the increment in value due to the particular use should be apportioned among the parcels comprising the entire tract.
If they find as a practical matter that the assemblage could not be accomplished in a reasonable time at a reasonable price without exercising eminent domain, they should not include any value for use as a gas storage field.
Reversed in part and affirmed in part.
No costs, neither party having prevailed in full.
T. E. Brennan, J., concurred with T. G. Kavanagh, J.
Black, J., did not sit in this case.
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Swainson, J.
On December 22, 1966, three men held up a small grocery store in the City of Detroit. During the course of the robbery, the owner, Shaker Aubrey, was killed, and a customer, John Kubon, was wounded by a bullet which struck him in the back. Defendant Grimmett was arrested on December 26, 1966, and on December 27, 1966, was charged with the murder of Mr. Aubrey.
A jury trial commenced on January 22, 1968, in Recorder’s Court for the City of Detroit. On January 24, 1968, defendant’s counsel informed the court that defendant wished to plead guilty to second-degree murder, and that it was his opinion that the information charged murder in the second degree. The prosecutor disagreed with defense counsel’s assertion and contended that the information charged first-degree murder. In his opening statement to the jury, the prosecutor stated that he intended to prove the crime was premeditated.
The trial court allowed the prosecutor to amend the information to charge first-degree murder by adding the words "and with premeditation.” Defendant’s objection to this amendment was overruled. The trial court, believing that MCLA 767.76; MSA 28.1016, required the dismissal of the jury when an information was amended, discharged the jury.
A new trial on the first-degree murder charge was commenced on September 29, 1969. On October 4, 1969, a jury found defendant guilty of manslaughter. He was sentenced to 14 years, 11 months to 15 years, with no recommendation.
On August 1, 1968, defendant was arraigned on the charge of assault with intent to commit murder resulting from the wounding of the customer, John Kubon. This was after the jury in the first trial on the murder charge had been discharged and prior to the commencement of the second trial on that charge. On December 17, 1968, defendant’s trial on this second charge began before another jury in recorder’s court. On December 20, 1968, defendant was found guilty of assault with intent to commit murder and was sentenced to life imprisonment. The Court of Appeals affirmed the conviction on the charge of assault with intent to commit murder. 27 Mich App 509. A separate panel of the Court of Appeals affirmed defendant Grimmett’s conviction of manslaughter. 29 Mich App 609. We granted leave to appeal in both cases. 384 Mich 833.
Defendant raises, and the prosecution accepts, five issues on appeal, four of which are listed below:
1. Whether the dismissal of the jury in the first trial was by the court sua sponte and not justified by "manifest necessity,” or whether the dismissal of the jury was with the consent of the defendant?
2. Whether defendant was deprived of his right to a speedy trial where he was arrested and placed in custody on December 26, 1966, and a warrant and complaint did not issue until July 30, 1968?
3. Whether defendant was unconstitutionally placed in jeopardy twice by the multiple prosecutions launched against him arising out of the same criminal episode?
4. Whether it was improper for the trial judge at the assault sentencing to consider in the determi nation of punishment a factor, which at that time constituted an arrest for a crime for which defendant had not been convicted nor was subsequently convicted?
Defendant contends that the double jeopardy provisions of the Fifth Amendment should have prohibited his second trial after the judge dismissed the jury in the first trial. The purpose behind the double jeopardy provision of the Fifth Amendment was stated by the United States Supreme Court in Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957), as follows:
"[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”
The double jeopardy provision of the Fifth Amendment is now applicable to the states through the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969). In addition, the Michigan Constitution 1963, art 1, § 15, prevents a defendant from being placed in double jeopardy.
The provision forbidding double jeopardy does not prevent a retrial under any circumstances. Two types of situations are recognized where a second trial is permitted. First, in those situations where "manifest necessity” requires it and, second, in those cases where the defendant consents to a mistrial.
It is difficult to precisely define what constitutes "manifest necessity”. Examples include the failure of the jury to reach a verdict, United States v Perez, 22 US (9 Wheat) 579; 6 L Ed 165 (1824), and misconduct of a member of the jury, In re Ascher, 130 Mich 540 (1902). However, in the present case, the prosecutor does not contend that there was "manifest necessity” for the dismissal of the jury., The prosecutor contends there is no double jeopardy because defendant requested and consented to a new jury.
Waiver is defined in Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938), as "an intentional relinquishment or abandonment of a known right or privilege.” The Court added, " 'courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and * * * we 'do not presume acquiescence in the loss of fundamental rights.’ ” Thus, waiver consists of two separate parts: 1) a specific knowledge of the constitutional right; and 2) an intentional decision to abandon the protection of the constitutional right. Both of these elements must be present and if either is missing there can be no waiver and no finding of consent.
The difficulty arose in this case because the trial judge felt bound by MCLA 767.76; MSA 28.1016, to discharge the jury. This statute reads:
"No indictment shall be quashed, set aside or dismissed or motion to quash be sustained or any motion for delay of sentence for the purpose of review be granted, nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter as the court shall in its discretion permit. The court may at any time before, during or after the trial amend the indictment in respect to any defect, imperfection or omission in form or substance or of any variance with the evidence. If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury. In case a jury shall be discharged from further consideration of a case under this section, the accused shall not be deemed to have been in jeopardy. No action of the court in refusing a continuance or postponement under this section shall be reviewable except after motion to and refusal by the trial court to grant a new trial therefor and no writ of error or other appeal based upon such action of the court shall be sustained, nor reversal had, unless from consideration of the whole proceedings, the reviewing court shall find that the accused was prejudiced in his defense or that a failure of justice resulted.”
It is clear that the trial court was incorrect in its interpretation of the law. The statute provides: "the accused shall on his motion be entitled to a discharge of the jury”. The statute does not permit the trial judge on his own motion to discharge the jury. Moreover, the statute provides that the discharge of the jury occurs after the amendment to the information. In this case, the trial court dismissed the jury before the amendment was made.
It is apparent from a reading of the colloquy between court and counsel that defendant’s counsel also misunderstood MCLA 767.67; MSA 28.1016:
"Mr. Sherman [Defendant’s counsel]: I am not arguing the constitutionality of the Michigan statutes. I call your attention to this. But, Your Honor, as to whether or not they have the right to amend—
"The Court (Interposing): You can argue the constitutionality of the Michigan statute. I think the Michigan statute is safe from constitutional defect by the requirement—
"Mr. Sherman (Interposing): Yes, that’s right, Your Honor.
"The Court (Continuing): —that I discharge the Jury and give you an opportunity to meet the amendment to the indictment and have another trial.
"Mr. Sherman: That’s right. * * * I agree with Your Honor that the Michigan statutes — where we raise the question and they want to amend to substance, we have got to have a new jury. ’’(Emphasis added.)
The prosecutor contends that defense counsel by his actions did in fact make a motion for discharge of the jury and, thus, defendant did consent to such discharge and jeopardy does not attach. The prosecutor relies on the fact that the trial judge, at the end of his colloquy with the two attorneys, stated:
“The information does not charge premeditation and therefore it is not first-degree murder in Michigan.
"I grant the defense motion.
"If you want to amend I will give you leave to amend.”
It is clear that the only motion the trial court was dealing with was defendant’s motion that the information charged second-degree murder and not first-degree murder. Defendant never made any formal motion to discharge the jury. The prosecutor contends that although there was no formal motion, there was an informal motion which allowed defendant to waive this right. However, in view of the fact that defendant’s attorney was mistaken in his view of the law, it is obvious that defendant could not consciously waive the right to object to the discharge of the jury. A close reading of the record reveals that defendant’s counsel made no motion of any type to discharge the jury, and that the motion to discharge was made by the trial court sua sponte. No waiver can be inferred from the actions of defendant’s counsel. The retrial of defendant under the circumstances of this case did constitute placing defendant in double jeopardy and the judgment of the Court of Appeals must be reversed.
Defendant contends that his right to a speedy trial was violated by the 19-month delay between his arrest and his indictment on the charge of assault with intent to commit murder. The right to a speedy trial is embodied in the Sixth Amend ment to the United States Constitution. This right attaches to the period of time between an arrest and an indictment. United States v Kaufman, 311 F2d 695 (CA 2, 1963); Hardy v United States, 119 US App DC 364; 343 F2d 233 (1964).
The Court of Appeals in dealing with this issue stated (27 Mich App 509, 515):
"Under these circumstances was there a right, in addition to the right to a speedy trial in both prosecutions, to speedy commencement of prosecutions? The people take the negative position, asserting that the defendant’s only right concerning the timing of the commencement of the prosecution is set forth by the applicable statute of limitations. The necessary preparation for each trial would have been virtually the same and defendant demonstrates no prejudice in having a fair trial by reason of the delay. The original prosecution was still pending and he did not move for a joint trial of both prosecutions. The second prosecution was completed before the first. We hold that there was no violation of his constitutional or statutory rights to speedy trial nor was there a failure of due process. 21 Am Jur 2d, Criminal Law, § 248, p 283.”
The United States Supreme Court has recently handed down a decision that authoritatively settles many of the problems in this area. In Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), the Court delivered a decision dealing with the right to a speedy trial. Mr. Justice Powell, speaking for a unanimous Court, stated that the rule followed in Michigan and some other states, which requires a defendant to make a demand or else he is presumed to waive his right to a speedy trial, is inconsistent with Federal constitutional requirements. The Court stated:
"Such an approach, by presuming waiver of a fundamental right from inaction, is inconsistent with this Court’s pronouncements on waiver of constitutional rights. The Court has defined waiver as 'an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v Zerbst, 304 U.S. 458, 464 [58 S Ct 1019; 82 L Ed 1461] (1938). Courts should 'indulge every reasonable presumption against waiver,’ Aetna Ins. Co. v Kennedy, 301 U.S. 389, 393 [57 S Ct 809; 81 L Ed 1177] (1937), and they should 'not presume acquiescence in the loss of fundamental rights,’ Ohio Bell Tel. Co. v Public Utilities Comm’n, 301 U.S. 292, 307 [57 S Ct 724; 81 L Ed 1093] (1937). In Carnley v Cochran, 369 U.S. 506 [82 S Ct 884; 8 L Ed 2d 70] (1962), we held:
" 'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel, but intelligently and understandably rejected the offer. Anything less is not waiver.’ Id., at 516.
The Court has ruled similarly with respect to waiver of other rights designed to protect the accused. See, e.g., Miranda v Arizona, 384 U.S. 436, 475-476 [86 S Ct 1602; 16 L Ed 2d 694] (1966); Boykin v Alabama, 395 U.S. 238 [89 S Ct 1709; 23 L Ed 2d 274] (1969).
"In excepting the right to speedy trial from the rule of waiver we have applied to other fundamental rights, courts that have applied the demand-waiver rule have relied on the assumption that delay usually works for the benefit of the accused and on the absence of any readily ascertainable time in the criminal process for a defendant to be given the choice of exercising or waiving his right. But it is not necessarily true that delay benefits the defendant. There are cases in which delay appreciably harms the defendant’s ability to defend himself. Moreover, a defendant confined to jail prior to trial is obviously disadvantaged by delay as is a defend ant released on bail but unable to lead a normal life because of community suspicion and his own anxiety.
"The nature of the speedy-trial right does make it impossible to pinpoint a precise time in the process when the right must be . asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants. A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, for the reasons earlier expressed, society has a particular interest in bringing swift prosecutions, and society’s representatives are the ones who should protect that interest.
"It is also noteworthy that such a rigid view of the demand rule places defense counsel in an awkward position. Unless he demands a trial early and often, he is in danger of frustrating his client’s right. If counsel is willing to tolerate some delay because he finds it reasonable and helpful in preparing his own case, he may be unable to obtain a speedy trial for his client at the end of that time. Since under the demand-waiver rule no time runs until the demand is made, the government will have whatever time is otherwise reasonable to bring the defendant to trial after a demand has been made. Thus, if the first demand is made three months after arrest in a jurisdiction which prescribes a six months rule, the prosecution will have a total of nine months — which may be wholly unreasonable under the circumstances. The result in practice is likely to be either an automatic, pro forma demand made immediately after appointment of counsel or delays which, but for the demand-waiver rule, would not be tolerated. Such a result is not consistent with the interests of defendants, society, or the Constitution.
"We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. It allows the trial court to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule. It would permit, for example, a court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client or from a situation in which no counsel is appointed. It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection.
"In ruling that a defendant has some responsibility to assert a speedy-trial claim, we do not depart from our holdings in other cases concerning the waiver of fundamental rights, in which we have placed the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made. Such cases have involved rights which must be exercised or waived at a specific time or under clearly identifiable circumstances, such as the rights to plead not guilty, to demand a jury trial, to exercise the privilege against self-incrimination, and to have the assistance of counsel. We have shown above that the right to a speedy trial is unique in its uncertainty as to when and under what circumstances it must be asserted or may be deemed waived. But the rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside.”
The Court further held that in determining whether the right to a speedy trial has been violated, a balancing test should be used which should take into account four factors:
"Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”
In this case there clearly was a very long delay which the state had the heavy burden of justifying. Our Court has followed the rule that after a delay of 18 months, prejudice is presumed. People v Den Uyl, 320 Mich 477 (1948). Moreover, the United States Supreme Court in Barker, supra, recognized that the prejudice to the defendant often could not be quantified, and, thus, must to some extent be presumed. The Court stated:
"A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reñected in the record because what has been forgotten can rarely be shown. "(Emphasis added.)
We believe that upon considering all of these factors, defendant was not denied his right to a speedy trial. In Barker v Wingo, supra, the delay was over 5 years; here it was 19 months. Moreover, there is no evidence that defendant was prejudiced by the delay. While it is difficult to measure prejudice in these circumstances, defendant has failed to point out any type of prejudice that did occur. The fact situation in the two trials were identical. Therefore, the defense in both trials was based on substantially the same facts. Loss of evidence due to a delay could not and did not occur in this case.
Defendant made no request for a trial on the assault charge. Although failure to assert this right does not lead to an automatic waiver, it is one factor to consider in determining whether defendant was denied this right. We hold that viewing all of the facts, defendant was not denied his right to a speedy trial.
Defendant further contends that we should prohibit multiple prosecutions arising out of the same factual situation. Defendant properly points out that in some cases multiple prosecutions are prejudicial to a defendant. In some cases multiple prosecutions may aid a defendant. Therefore, we believe a mandatory rule would be an unwise solution to this problem. Moreover, we believe that the type of rule proposed by the defendant, such as is found in the Model Penal Code, is properly a decision for the Legislature and not for this Court.
At the sentencing of defendant on the assault charge, the trial court stated:
"And while he was tried for the shooting of Mr. Kubon, he is certainly the same person who murdered the other grocer, Mr. Shaker Aubrey at the same time.”
We believe this was improper. The trial court, of course, has wide latitude in sentencing a defendant. The court may consider a defendant’s previous convictions, public records concerning the defendant, or even defendant’s admissions to the court. People v Losinger, 331 Mich 490 (1951); cert den 343 US 911; 72 S Ct 644; 96 L Ed 1327 (1952). However, here the trial judge went even further and made an independent finding of defendant’s guilt on the murder charge. This was for the jury at the murder trial to decide. At the time of the sentencing on the assault charge, defendant had not been found guilty on the murder charge. He had technically been arrested but not convicted on the murder charge. We believe the trial judge acted improperly in assuming defendant was guilty of the murder charge when he sentenced defendant on the assault charge. We, therefore, remand the case to the trial court for resentencing on the assault charge. See People v Baum, 251 Mich 187 (1930); People v Mellor, 302 Mich 537 (1942); People v Earegood, 383 Mich 82 (1970).
The Court of Appeals is reversed as to defendant’s conviction for manslaughter (29 Mich App 609). The Court of Appeals is affirmed as to defendant’s conviction of assault with intent to commit murder (27 Mich App 509), and the cause is remanded for resentencing of defendant in accordance with this opinion.
T. M. Kavanagh, C. J., and Adams, T. G. Kavanagh, and Williams, JJ., concurred with Swain-son, J.
The information read:
"In the Name of the People of the State of Michigan, WILLIAM L. CAHALAN, Prosecuting Attorney in and for the said County of Wayne, who prosecutes for and on behalf of the People of said State in said Court, comes now here in said Court in the MARCH term thereof, A.D. 1967, and gives the said Court to understand and be informed that
GEORGE GRIMMETT HAROLD JOHNSON CARLETON BROWN
late of the said City of Detroit, in said County, heretofore, to-wit, on the 22nd day of December, A.D. 1966, at the said City of Detroit, in the County aforesaid feloniously, wilfully and of their malice aforethought, did kill and murder one Shaker Aubrey; contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the People of the State of Michigan.
"Note — See Sec. 750.316 C.L. 1948
/s/ William L. Cahalan Prosecuting Attorney”
MCLA 767.76; MSA 28.1016, reads in part:
"If any amendment be made to the substance of the indictment or to cure a variance between the indictment and the proof, the accused shall on his motion be entitled to a discharge of the jury, if a jury has been impaneled and to a reasonable continuance of the cause unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made or that his rights will be fully protected by proceeding with the trial or by a postponement thereof to a later day with the same or another jury.”
"No person. shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
"No person shall be subject for the same offense to be twice put in jeopardy. All persons shall, before conviction, be bailable by sufficient sureties, except for murder and treason when the proof is evident or the presumption great.”
The exception to the double jeopardy provision of the Constitution for cases where "manifest necessity” requires it was recognized by the United States Supreme Court in United States v Perez, 22 US (9 Wheat) 579; 6 L Ed 165 (1824).
Defendant’s codefendant, Carleton Brown (also known as Carlton Brown), was present at the first trial with defendant. He appealed to the Court of Appeals, which held that he would he put in jeopardy twice if a retrial were allowed to proceed. People v Carlton Brown, 23 Mich App 528 (1970). We believe the Court of Appeals in the Brown case correctly analyzed the situation and that the reasoning of the Court of Appeals in Brown should be applied to the defendant in this case.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
Thus, the Michigan rule laid down in People v Foster, 261 Mich 247 (1933), which required that a defendant demand a speedy trial or waive his constitutional right, is overruled.
Section 1.07 of the Model Penal Code (Proposed Official Draft, 1962, p 12) reads in part:
"(2) Limitation on Separate Trials for Multiple Offenses. Except as provided in Subsection (3) of this Section, a defendant shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction of a single court.
"(3) Authority of Court to Order Separate Trials. When a defendant is charged with two or more offenses based on the same conduct or arising from the same criminal episode, the Court, on application of the prosecuting attorney or of the defendant, may order any such charge to be tried separately, if it is satisfied that justice so requires.” | [
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Starr, J.
(dissenting). Upon review by certiorari the trial court entered judgment which reversed a decision of the appeal board of defendant commission, and determined that claimant Ina L. D. Willis, an employee of plaintiff company, was not entitled to unemployment compensation benefits. Defendant commission appeals from such judgment.
Plaintiff, a Michigan corporation, was engaged in the bean business and operated an elevator in the city of Charlotte. It purchased dry edible beans from farmers, which, when delivered to plaintiff, were usually of “thresh run” quality, that is, in the same condition as they came from the threshing machines. The price paid to farmers was on the basis of choice, hand-picked beans, and the beans were tested to determine what amount should be deducted for dockage to bring them to that basis. Beans purchased were commingled together and were then passed through various processing operations to establish grades.
Claimant Willis was employed by plaintiff during 1940 as a “bean picker.” Her work was tbe removal of culls, off-color beans, and foreign substances from the beans as they passed before her on a conveyer belt. For her work on so-called small-belt machines she was paid 7 cents a pound for the amount of tare or pickage she removed from the beans; for her work on large-belt machines she was paid 25 cents an hour. The tare or pickage was sold to farmers for feed or given away.
Claimant’s employment was terminated in March, 1941, and in April of that year she filed claim for benefits under the Michigan unemployment compensation act (Act No. 1, Pub. Acts 1936 [Ex. Sess.], as amended by Act No. 347, Pub. Acts 1937, and Act No. 324, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 8485-41 et seq., Stat. Ann. 1940 Cum. Supp. § 17.501 et seq.] [later amended by Act No. 364, Pub. Acts 1941, Act No. 18, Pub. Acts 1942 (2d Ex. Sess.), and Act No. 246, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 8485-41 et seq., Stat. Ann. 1943 Cum. Supp. § 17.501 et seg.)]). On May 9,1941, her claim was denied by the commission, and on reconsideration was again denied on June 11, 1941. On appeal a referee of the commission reversed the former ruling and determined that she was entitled to unemployment benefits. Plaintiff appealed from the referee’s decision to the appeal board of the commission, which on November 19, 1942, affirmed the referee’s decision. Upon review by certiorari the trial court entered opinion reversing the appeal board and denying claimant unemployment benefits, on the ground that her services constituted “agricultural labor,” and under section 42 of the act as amended, she was excluded from such benefits. Defendant commission appeals from the judgment for plaintiff entered in pursuance of such opinion.
Act No. 1, § 42, Pub. Acts 1936 (Ex. Sess.), provided in part:
“(1) Subject to tbe other provisions of this section, ‘employment’ means service, including service in interstate commerce, performed for remuneration or under any contract of hire, written or oral, express or implied. * * *
“(5) The term ‘employment’ shall not include: # # #
“(d) Labor performed on a farm by an employee of the owner or tenant of the farm in connection with the cultivation of the soil and harvesting of crops or the raising and feeding of live-stoclc, bees, and poultry, or in connection with the packing, packaging, transportation or marketing of these materials or articles when carried on as an incident to ordinary farming operations.”
Act No.- 324, Pub. Acts 1939, effective June 22, 1939, renumbered subsection ,(5) of the above section 42 so as to stand as subsection (7) and added subdivision (n) thereto, so as to read as follows:
“(7) The term ‘employment’ shall not include: # # *
“ (n) Any service not included as ‘employment’ under title 9 of the social security act. ’ ’
The Federal social security act, chap. 531, title 9, § 907 (49 Stat. at L. 642 [See 42 USCA, §1107]) provided in part:
“When used in this title — * * *
“(c) The term ‘employment’ means any service, of whatever nature, performed within the United States by an employee for his employer, except—
“(1) Agricultural labor.”
It is clear that section 42 (7) (n), above quoted, incorporated by reference in the term “employment” the exemption of “agricultural labor” as provided in title 9 of the then existing Federal social security act. Therefore, if claimant’s services constituted “agricultural labor,” tbe remuneration which she received in such exempted employment would not constitute wages under section 44 (2) of the State act, upon which a claim for unemployment benefits could be predicated.
The question presented is whether or not claimant’s work in 1940 as a bean picker was “agricultural labor ’ ’ within the meaning of that term as incorporated in the Michigan unemployment compensation act by the 1939 amendment to that act. If it was agricultural labor, she was not entitled to unemployment benefits. If it was not agricultural labor, she was entitled to such benefits.
Section 4 of the 1936 act authorized defendant commission “to promulgate such rules and regulations, and take such other action as it deems necessary, not inconsistent with the provisions of this act, to carry out the provisions of this act.” In an opinion in April, 1940, defendant commission stated its administrative definition of the term “agricultural labor” in part as follows:
“The following is a definition of agricultural labor as of January 1, 1940:
“The term ‘agricultural labor’ includes all services performed— * * *
“(4) In handling, planting, drying, packing, packaging, processing, freezing, grading, storing, or delivering to storage or to market or to a carrier for transportation to'market, any agricultural or horticultural commodity; but only if such service is performed as an incident to ordinary farming operations or, in the case of fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market. The provisions of this paragraph shall not be deemed to be applicable with respect to service performed in connection with * * * any agricultural * * * commodity after its delivery to a terminal market for distribution for consumption.”
In its brief defendant states its position as follows :
“This commission agrees * * * that ‘agricultural labor’ became an exempt employment under tbe Michigan unemployment compensation act, *. * * that the status of tbe services involved herein must be determined by an application of tbe (above-quoted) definition of ‘agricultural labor’ which was adopted and promulgated by tbe commission administratively. However, tbe commission believes that tbe lower court erred in its interpretation of this definition and in its application to tbe facts in tbe case at bar.
“It is tbe contention of this commission that tbe processing of beans by * * * (plaintiff) was not as an incident to tbe preparation for market within tbe meaning of that definition; that tbe term ‘market’ as used in subsection 4 of the definition of ‘agricultural labor’ refers to tbe market of tbe farmer; that when tbe farmer sells bis beans to * * * (plaintiff), be has marketed them; that tbe cost of band-picking tbe beans is not paid for by tbe farmer but rather is used as tbe basis of determining tbe value of tbresber-cut beans.”
We note that tbe commission’s definition of tbe term “agricultural labor,” as above quoted, was identical with tbe definition of said term in tbe amendment of tbe social security act (Federal unemployment tax act) adopted August 10, 1939 (53 Stat. at L. 1392, 1396 [26 USCA, § 1607 (1[4])]). However, such amendment of tbe social security act was subsequent to June 22, 1939, tbe effective date of tbe 1939 amendment of tbe Michigan act and, therefore, was not included in said act. We also note that tbe definition of tbe term “agricultural labor” in tbe 1942 amendment of tbe Michigan un- . employment compensation act (Act No. 18, Pub. Acts 1942 [2d Ex. Sess.]) is identical, in part, with the definition in the above-mentioned 1939 amendment of the social security act and with the commission’s definition of said term.
The commission’s administrative definition of the term “agricultural labor,” while not binding on the courts, is nevertheless entitled to consideration. In Wayne County v. Auditor General, 250 Mich. 227, 236, we said:
“Practical construction given to doubtful or obscure statutes by public officers, the discharge of whose duties are affected thereby, will be considered and given great weight by courts in construing such laws. Owosso Union School District Board of Education v. Goodrich, 208 Mich. 646; Commerce-Guardian Trust & Savings Bank v. State, 228 Mich. 316; People v. Robinson, 241 Mich. 497; 36 Cyc. p. 1141.”
See, also, McCaughn v. Hershey Chocolate Co., 283 U. S. 488 (51 Sup. Ct. 510, 75 L. Ed. 1183); Brewster v. Gage, 280 U. S. 327 (50 Sup. Ct. 115, 74 L. Ed. 457); 2 Sutherland on Statutory Construction (3d Ed.), pp. 512, 515, §§ 5103, 5105.
The 1942 amendment of the Michigan unemployment compensation act embodying the identical language of the commission’s definition of the term “agricultural labor,” while not controlling in the present case, can at least be considered as a clarification of that term as used in the preceding 1939 enactment. In 1 Yom Baur, Federal Administrative Laws, p. 485, § 487, it is stated:
“Statutory incorporation of construction. Where regulations construing a statute are incorporated into a reenactment of that statute, they are intended to clarify, not to change the law, even though the later statute is not retroactive.”
The courts have recognized the rule that subse- • quent legislation may be considered as a clarifica tion of and aid in the interpretation of prior legislation upon the same subject. See Hartley v. Commissioner of Internal Revenue, 295 U. S. 216 (55 Sup. Ct. 756, 79 L. Ed. 1399); Luckenbach Steamship Co. v. United States, 280 U. S. 173 (50 Sup. Ct. 148, 74 L. Ed. 356); Tiger v. Western Investment Co., 221 U. S. 286 (31 Sup. Ct. 578, 55 L. Ed. 738); Commissioner of Internal Revenue v. Liberty National Co. (C. C. A.), 58 Fed. (2d) 57; Big Wood Canal Co. v. Unemployment Compensation Division, 61 Idaho, 247 (100 Pac. [2d] 49).
In passing, we mention that the 1941 amendment of section 42 (7) (n) of the Michigan unemployment compensation act provided in substance that if an employer had obtained a decision in writing from an agent of the United States bureau of internal revenue holding that certain specified services were exempt under the internal revenue code, such ruling should be conclusive upon the commission Unless the commission, a referee or the appeal board “upon substantial evidence” determined that such services constituted employment under the unemployment compensation act. The record shows that in December, 1939, the United States treasury department gave its written opinion that “services performed after December 31,1939, by employees of the Michigan Bean Company in handling, drying, processing, grading, sorting, and packing beans * * * constitute ‘agricultural labor’ for purposes of the Federal insurance contributions act and the Federal unemployment tax act, as amended. ’ ’ However, such decision or ruling of the treasury department is not determinative of the question before us in the present case. In Colony Town Club v. Michigan Unemployment Compensation Commission, 301 Mich. 107, 115, we said:
“The decision of the commissioner of internal revenue that the Colony Town Club was not re quired to pay the Federal security tax or the Federal income tax is not conclusive and binding upon the appeal board of the unemployment compensation commission or upon the State courts under either the 1939 or 1941 amendments. to section 42 of the Michigan unemployment compensation act.”
It seems clear that the term ‘ ‘ agricultural labor, ’ ’ included by reference in section 42 (7) (n) of the 1939 amendment, created a broader and more comprehensive exemption than the term “labor performed on a farm” as used in section 42 (5) (d) of the original 1936 act. In considering the term “agricultural labor” in connection with payments under an unemployment compensation act, in Carstens Packing Co. v. Industrial Accident Board, 63 Idaho, 613 (123 Pac. [2d] 1001), the court said in part, p. 619:
“It will be observed that the exception is of ‘agricultural labor,’ and nothing is said in the statute about farm labor or agricultural labor performed on farms. The term ‘agricultural labor’ is much broader, and more comprehensive than is the term ‘farmlabor.’ ”
In Henry A. Dreer, Inc., v. Unemployment Compensation Commission, 127 N. J. Law, 149 (21 Atl. [2d] 690), it is stated:
“The statute being remedial, should of course be liberally construed as to its purview. But the controlling proviso excluding ‘agricultural labor’ is broad and sweeping, and should not be whittled down by narrowness of construction.”
A situation somewhat similar to that involved in the present case was considered in Batt v. Unemployment Compensation Division, 63 Idaho, 572 (123 Pac. [2d] 1004, 139 A. L. R. 1157). In that case the employer was engaged in the growing and processing of vegetables. He also processed vegetables which he purchased from other growers, and vegetables which he handled on consignment. The processing, consisting of cleaning, washing, cooling, grading, and packaging, was to make the vegetables salable under State and Federal regulations and was done in processing sheds not located on his farm premises. The court unanimously agreed, p. 581, “that the activities of the appellant and his employees on products purchased outright by him from other producers and growers” constituted “agricultural labor” and were exempted under the State unemployment compensation statute. The court said in part, p. 576:
“It is clear that the appellant does, for hire, just such work as the farmer would have to do himself or hire someone else to do, on the farm or elsewhere, in preparation of his products for market. For this labor, the appellant received and deducted from the sale price ‘the expenses including a charge for processing and a brokerage charge,’ and paid the balance to the farmer.”
In 2 Am. Jur. pp. 395, 396, § 2, it is stated:
“Agriculture, in the broad and commonly-accepted sense, may be defined as the science or art of cultivating the soil and its fruits * * * and the rearing, feeding, and management of livestock thereon, including every process and step necessary and incident to the completion of products therefrom for consumption or market and the incidental turning of them to account. The term is broader in meaning than ‘farming.’ ”
In 3 C. J. S. p. 366, § 1, the term “agriculture” is defined in part as follows:
“In a broader sense, ‘agriculture’ is the science or art of the production of plants and animals use ful to man; in its general sense, ‘agriculture’ includes gardening or horticulture, fruit growing, and storage and marketing.”
From the record it appears that in the earlier days of the bean industry in Michigan, the picking process was usually performed by the producer on his farm. However, with State and trade regulations requiring processing in order to separate the beans into grades, it is now generally deemed more practical and advantageous to have this work done by commercial firms specializing in the business of processing and distributing farm commodities. In the case of Cassady v. Hiatt & Lee, 150 Fla. 721 (8 South. [2d] 661), in considering whether or not plaintiff’s employees were engaged in “agricultural labor,” the court said:
“It is the character of labor performed by the employee that must determine its application rather than the, character of the employer’s business.”
See, also, Batt v. Unemployment Compensation Division, supra; Carstens Packing Co. v. Industrial Accident Board, supra.
In its administrative definition hereinbefore quoted, the commission defined “agricultural labor” as including all services performed in “processing * * * fruits and vegetables, as an incident to the preparation of such fruits or vegetables for market,” and further stated that “agricultural labor” shall not include “service performed in connection with * * * any agricultural * * commodity after its delivery to a terminal market for distribution for consumption.” It seems clear that plaintiff’s elevator was not a terminal market distributing to users for consumption, but was rather in the position of a middleman between the farmer and the terminal market. ' The director of the bureau of foods and standards of the State department of agriculture testified in part:
“Q. Would you say, Mr. Nelson, that the beans have to be inspected, graded, and inspected according to grade before they go into distribution for consumption?
“A. Yes, sir. v
“Q. And that that is required by the State inspection services?
“A. Yes, sir.”
We believe that the word “market” as used in the commission’s definition of the term “agricultural labor” refers to the terminal market actually selling or distributing for use and consumption. Therefore, the sale of beans to plaintiff was not a sale to a terminal market for distribution to the consumer.
If the farmer or his employees performed the work of picking and processing the beans, such services would clearly be “agricultural labor” within the meaning of the 1939 amendment. However, when the price he receives for his beans is affected by the cost of picking and processing, it may reasonably be said that the farmer is paying for such services. The nature or character of the services is not changed by the fact that the work is done in an elevator instead of on the farm. Claimant’s-work as a bean picker was incident to preparing the beans for market, and we conclude that her s'erviees constituted “agricultural labor” within the intent and meaning of section 42 (7) (n) of the 1939 amendment of the Michigan unemployment compensation act.
In an opinion in the present case, Mr. Justice Wxest quotes section 42 (7) (d) of the 1939 act (section 42 [5] [d] of the 1936 act) as beiixg “the statute involved.” He fails to include section 42 (7) (n), which incorporated, by reference, title 9 of the social security act. See said subsections hereinbefore quoted.
He cites the case of Colony Town Club v. Michigan Unemployment Compensation Commission, supra, as holding in effect that the 1939 amendment of the Michigan unemployment compensation act could not, by reference, incorporate title 9 of the Federal social security act which exempted “agricultural labor.” We did not so hold in that case. We determined only that the decision of the commissioner of .internal revenue, exempting plaintiff club from the payment of the Federal social security tax and Federal income tax, was not binding upon the Michigan unemployment compensation commission and the courts of this State.
The 1936 act excepted from the term employment only “labor performed on a farm by an employee of the owner or tenant.” Section 42 (7) (n) of the 1939 amendment further excepted from the term employment “any service not included as ‘employment’ under title 9 of the social security act,” which act expressly excepted “agricultural labor.” As before pointed out, “the term ‘agricultural labor ’ is much broader, and more comprehensive than is the term ‘farm labor,’ ” Carstens Packing Co. v. Industrial Accident Board, supra. The term agricultural labor “is broad and sweeping, and should not be whittled down by narrowness of construction,” Henry A. Dreer, Inc., v. Unemployment Compensation Commission, supra.
In Employment Security Commission v. Arizona Citrus Growers, 61 Ariz. — (144 Pac. [2d] 682 [decided January 4, 1944]), the court said:
“We are aware that the pursuit of definitions of ‘agricultural laborers’ through the cases leads to confusion because generally the case definitions have grown ont of special statutory phraseology, or out of judicial effort to conform to legislative intent.”
The factual situations and statutory provisions involved in the several cases cited hy Mr. Justice Wiest readily distinguish them from the present case. In National Labor Relations Board v. Tovrea Packing Co. (C. C. A.), 111 Fed. (2d) 626 (certiorari denied, Tovrea Packing Co. v. National Labor Relations Board, 311 U. S. 668 [61 Sup. Ct. 28, 85 L. Ed. 429]), the board, in pursuance of the national labor relations act (49 Stat. at L. 449 [29 USCA, § 151 et seq.]), petitioned for enforcement of its order that the packing company cease unfair labor practices and reinstate nine discharged workmen. Section 2 of the national labor relations act provided that “the term ‘employee’ * * * shall not include any individual employed as an agricultural laborer.” Defendant was engaged in the general meat packing business and purchased, fed, slaughtered, processed, and marketed livestock. The nine employees involved in the labor dispute worked in the feed mill and feeding pens adjoining the packing plant. In holding that such employees were engaged in industrial labor as distinguished from agricultural labor and were not within the exception of “agricultural laborer,” the court said in part, p.628:
“The feed mill and feeding pens adjacent to the packing plant are maintained as an incident to and not independent of the operation of the' packing plant. * * *
“Here we do not have stock raising or feeding as an incident to a stock ranch, nor do we have stock feeding or conditioning as a separate activity, but we do have stock ready for conditioning and fattening confined in relatively small corrals and_ fed intensively for short spaces of time as an incident to a meat slaughtering and packing industrial enterprise. The elements of agricultural labor as distinguished from nonagricultural labor, seems entirely lacking. ’ ’
The factual situation involved in the Tovrea Case clearly distinguishes it from the present case.
In Latimer v. United States, 52 Fed. Supp. 228, the plaintiffs sought to recover social security taxes which they had paid between 1936 and 1939 under the social security act of August 14, 1935 (49 Stat. at L. 620 [42 USCA, § 301 et seq.]). Plaintiffs contended that the services of their employees should be classified as “agricultural labor” and, therefore, exempted from taxation. It should be noted that the events involved occurred prior to the August 10, 1939, amendment to the social security act. The court said in part, p. 230: “It is clear that the broadened definition of ‘agricultural labor’ contained in the amendments of August 10, 1939, to the social security act are not applicable to these cases and that each of these actions is governed by the definition of ‘agricultural labor’ in regulations” of the treasury department, which defined agricultural labor as follows:
“The term ‘agricultural labor’ includes all services performed—
“(a) By an employee, on a farm, in connection with the cultivation of the soil, the harvesting’ of crops, or the raising, feeding, or management of livestock, bees, and poultry; or
“ (b) By an employee in connection with the processing of articles from materials which were produced on a farm; also the packing, packaging, transportation, or marketing of those materials or articles. Such services do not constitute ‘agricultural labor,’ hoioever, unless they are performed by an employee of the owner or tenant of the farm on which the materials in their raw or natural state were produced, and unless such processing, packing, packaging, transportation, or marketing is carried on as an incident to ordinary farming operations as distinguished from manufacturing or commercial operations.”
In said Latimer Case the court discussed the different kinds of work performed by the employees of the respective plaintiffs- and applied the above-quoted definition in determining whether or not their work constituted “agricultural labor.” As such' case arose prior to the “broadened definition of ‘agricultural labor’ ” contained in the 1939 amendment to the social security act and was decided under the restricted definition of agricultural labor in the treasury department regulations, the decision is not determinative of the question before us arising under section 42 (7) (n) of the 1939 amendment of the Michigan unemployment compensation act.
The case of Bowie v. Gonzalez (C. C. A.), 117 Fed. (2d) 11, arose under the Federal fair labor standards act of 1938 (52 Stat. at L. 1060 [29 USCA, § 201 et seq.]), which exempted persons “employed in agriculture,” defined in section 3 (f) of the act as the “production, cultivation, growing, and harvesting of any agricultural or horticultural commodities.” Such statutory definition clearly differentiates that case from the case before us.
The case of H. Duys & Co., Inc., v. Tone, 125 Conn. 300 (5 Atl. [2d] 23), involved an assessment by the administrator of the Connecticut unemployment compensation act against plaintiff, based upon wages paid to persons employed in its warehouse in the processing and handling of shade tobacco. Plaintiff contended that its employees were engaged in agricultural labor and that the wages paid them were exempt from the assessment. The facts involved in this case occurred prior to the 1939 amendment of the Federal social security act. The regulation adopted by the administrator of the Connecticut unemployment compensation act defined agricultural labor in identical terms as those hereinbefore quoted in the case of Latimer v. United States, supra.
The court held that the services of the employees of H. Duys & Company in the processing and handling of shade tobacco did not constitute agricultural labor. However, this decision was based upon a definition of agricultural labor which restricted it to services “by an employee of the owner or tenant of the farm on which the materials in their raw or natural state were produced.” Such holding, under that restricted definition,, is not determinative of the question in the case before us.
The case of Cowiche Growers v. Bates, 10 Wash. (2d) 585 (117 Pac. [2d] 624), is distinguishable from the present case, as it involved a statute defining exempted agricultural labor as “services customarily performed by a farm hand on a farm for the owner or tenant of a farm” (p. 594).
The statutory provisions and factual situations involved in the cases of Chester C. Fosgate Co. v. United States (C. C. A.), 125 Fed. (2d) 775, and North Whittier Heights Citrus Ass’n v. National Labor Relations Board (C. C. A.), 109 Fed. (2d) 76, distinguish them from the case before us.
We reiterate our conclusion that claimant’s work as a bean picker was incident to preparing the beans for market and constituted “agricultural labor” within the intent and meaning of section 42 (7) (n) of the 1939 amendment of the Michigan unemployment compensation act.
The judgment of the trial court should be affirmed. A public question being involved, no costs are allowed.
North, C. J., and Boyles, J., concurred with Starr, J.
Wiest, J.
I do not entertain the opinion expressed by Mr. Justice Starr.
The status of the employee of the elevator company is to be determined as of 1940 under the provisions of Act No. 1, Pub. Acts 1936 (Ex. Sess.), as amended by Act No. 324, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 8485—41 et seq., Stat. Ann. 1940 Cum. Supp. § 17.501 et seq.), effective June 22, 1939, wholly unaffected by subsequent legislative amendment, Federal statute or Federal departmental or bureau holding.
If a farmer sells his crop of beans as the same come from the threshing machine and is paid the value thereof by a purchasing elevator company, is such purchaser, and his employee, in preparing the beans for resale, engaged in labor “incident to ordinary farming operations,” or agricultural labor? The fact that a deduction, if any, in price paid the farmer, is figured by the purchaser to meet the expense’ of sorting the beans and thus render the same marketable — is that an incident of ordinary farming operations or agricultural labor?
In the instance at bar the bean company bought and owned the beans and labor thereafter, thereon, was by an employee of the company in behalf of its commercial industry and in no sense an incident to ordinary farming operations or agricultural labor.
The beneficient purposes of the unemployment compensation act should be fulfilled so far as its provisions permit without strained construction.
Old-time, simple home methods have long since been supplanted by modern commercial methods and industrial progress.
The Michigan legislature, even if right in adopting Federal nomenclature of employment, did not and could not subject the act to future congressional action or subsequent Federal bureau construction for, to do so, would render the act not that of State will and determination but that of a body wholly foreign in point of law to State legislative power and sovereignty.
Upon this point, in Colony Town Club v. Michigan Unemployment Compensation Commission, 301 Mich. 107, an opinion by Mr. Justice Boyles, was stated in no uncertain terms the opinion of this court, and we quote the following from that case:
“Appellant further contends that the decision of the commissioner of internal revenue is final and binding because of an amendment to that effect added to the Michigan statute by the 1939 legislature. This amendment (Act No. 324, § 42, Pub. Acts 1939 [Comp. Law Supp. 1940, § 8485-82, Stat. Ann. 1940 Cum. Supp. § 17.545]) provides:
“ ' (7) The term ‘‘ employment " shall not include : * * *
“ ‘ (n) Any service not included as “employment” under title 9 of the social security act.’
“This amendment, if given the construction claimed for it by appellant, is unconstitutional in that it attempts to delegate to a Federal agency the final decision regarding the interpretation and construction to be placed upon a State statute. It would make the decision of the commissioner of internal revenue as to who is entitled to exemption from paying the Michigan tax conclusive and binding upon the Michigan unemployment compensation commission, the appeal board, and the State courts. Such authority cannot be delegated by the legislature.” (Citing many cases).
There was a time when the farmer sheared his sheep and the housewife carded the fleece and made homespun cloth but that is of long-time past. The farmer now sells the fleece to enter the channels of commerce and industry and it would be a far cry to hold that commercial weaving of cloth is an incident in the ordinary course of farming or agricultural labor. Many other examples might be recited where the old-time methods have been entirely supplanted by modern commercial and industrial enterprise. The present day regulations as to navy beans, in grading and other requirements, in fitting the same for markét recognize the commercial and industrial side and not the agricultural or production side of the matter.
In the instance at bar, beans were purchased by the elevator company for the purpose of resale upon the purchaser complying with public regulations in culling, grading and fitting the same for market.
Modern commercial and industrial enterprises gave need to regulations wholly apart from any thought of agricultural labor and the holdings connecting such labor with farm labor have a basis of reasoning too tenuous for me to adopt.
It may be well at this point to quote the statute involved in this case:
“(7) The term ‘employment’ shall not include: # & -Á-
“(d) Labor performed on a farm by an employee of the owner or tenant of the farm in connection with the cultivation of the soil and harvesting of crops or the raising and feeding of livestock, bees, and poultry, or in connection with the. packing, packaging, transportation or marketing of these materials or articles when carried on as an incident to ordinary farming operations.”
There may have been a time when a farmer raised a few beans and handpicked the same around the home table winter evenings but, in modern times, on the advent of the threshing machine in place of the flail, under the commercial demand for Michigan beans, the home method has gone the way of wool carding and home spinning, and the cleaning of beans has become an industry, wholly apart from being an incident of ordinary farming operations.
Upon the subject here involved, see National Labor Relations Board v. Tovrea Packing Co. (C. C. A.), 111 Fed. (2d) 626 (certiorari denied, Tovrea Packing Co. v. National Labor Relations Board, 311 U. S. 668 [61 Sup. Ct. 28, 85 L. Ed. 429]), where the packing company’s employees, working in a feed mill and feeding pens adjacent to the packing plant, were held not agricultural laborers.
Latimer v. United States (October 25, 1943), 52 Fed. Supp. 228, Workers were engaged in washing, grading, packing, selling,' marketing and shipping citrus fruits purchased outright from growers.
Bowie v. Gonzales (C. C. A.), 117 Fed. (2d) 11, processing sugar cane, held the practice, in order to be included within the term “agriculture,” must be performed by a farmer as an incident to farm operations.
H. Duys & Co., Inc., v. Tone, 125 Conn. 300 (5 Atl. [2d] 23), warehouse purchasing from growers, tobacco in the leaf and processing the same for market.
Cowiche Growers, Inc., v. Bates, 10 Wash. (2d) 585 (117 Pac. [2d] 624), washing, sorting, packing and storing fresh fruits for market.
Chester C. Fosgate Co. v. United States (C. C. A.), 125 Fed. (2d) 775, processing and marketing fruit by employees of a purchasing company, was held not agricultural labor. See, also, North Whittier Heights Citrus Ass’n v. National Labor Relations Board, 109 Fed. (2d) 76, certiorari denied, 310 U. S. 632 (60 Sup. Ct. 1075, 84 L. Ed. 1402).
I hold that where a farmer raises a field of beans and, when threshed, takes the machine run to an elevator, receives pay for the same, the elevator stores the beans with many other like purchases, later cleans them for market and, in this industrial process, employs workmen, as a matter of law, his workmen, so employed, are not engaged in farm or agricultural labor. The judgment is reversed, with costs to appellant.
Bittzel, Btjshnell, Sharpe, and. Reid, JJ., concurred with Wiest, J. | [
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Starr, J.
Plaintiff appeals from a judgment for defendants entered by the trial court sitting without a jury.
In about October, 1931, plaintiff, an Illinois corporation, and defendant Lee F. Bowen of Presque Isle county, entered into a written contract whereby plaintiff agreed to sell and Bowen to purchase certain merchandise. Defendants Kowalewsky, Streasick, and Cole signed a written instrument attached to the Bowen contract, which provided in part:
“In consideration of the W. T. Bawleigh Company, the above-named seller (plaintiff) extending credit to the above-named buyer (defendant Bowen), we, the undersigned do hereby jointly and severally enter ourselves as sureties, and unconditionally promise, guarantee and agree to pay the said seller for all products sold and delivered to said buyer under the terms of the above contract. * * * We hereby expressly waive notice * * * of extension of credit to the buyer * * * and waive all notice of any nature whatsoever. * * * We also agree that it shall not be necessary for the seller to first exhaust its remedies against the buyer before proceeding to collect from us.”
In about June, 1932, plaintiff’s representative demanded payment from Bowen of the balance of $495.55, which he then owed. Bowen was unable to make payment, and he and defendants Kowalewsky, Streasick, and Cole signed a joint and several promissory note for said balance, payable to plaintiff October 29, 1932, with interest at six per cent.
In January, 1936, plaintiff began the present suit on the promissory note against the four defendants. Bowen had left that part of the country and was not served with process. The other defendants were served and filed answer denying liability and alleging in substance that there was no consideration for the note; that they signed it as sureties and not as joint makers; and that the note was usurious.
In his opinion the trial court determined that plaintiff obtained the note in question through trickery and fraud. Judgment was entered for defendants, and plaintiff appeals.
In a law action tried without a jury, the trial court, as the trier of the facts, may judge the credibility of witnesses and the weight to be accorded their testimony. On appeal, we examine the record to ascertain whether or not the trial court’s determination is against the preponderance of the evidence. Flat Hots Co., Inc., v. Peschke Packing Co., 301 Mich. 331; Hanson v. Economical Cunningham Drug Stores, Inc., 299 Mich. 434.
We shall discuss briefly the relevant testimony shown by the record in the present case. Plaintiff’s representative; who obtained the note in question, testified in part:
“I demanded a cash settlement, and Mr. Bowen and his sureties were unable to raise the cash, and I took the note in lieu of cash. * * *
“Q. What did you tell these parties? Why did these sureties give you this note?
“A. I told them the amount due at that time was payable in cash, and I would like to get a settlement; and since they couldn’t raise the cash, I told them that I would accept a 90-day note, but one of them— I don’t know which it was- — wanted 30 days beyond that, and I extended it four months. * * *
“Q. Was the principal on the original contract, Mr. Bowen, with you when they (the note) were signed?
“A. Yes, sir. * * *
“The Court: * * * Did Mr. Bowen say anything in the presence of the sureties ?
“A. He just told them he was short that much, that he owed that much to the company. * * *
“Q. And the note was given for the amount he told them he was short?
“A. Yes. * * *
“I told them they were responsible on the note, just the same as they were on the contract. * * *
“I handed it (the note) to them to read.”
Defendant Kowalewsky testified that he met defendant Bowen and the representative of plaintiff company; that he did not read the note when he. signed it; and that he did not “specifically recall” the circumstances of his signing. He further testified:
“Q. What did this man who purported to be from the Rawleigh Company * * * say about that instrument?
“A. The only thing he told me — everything was A-No. 1 condition with Mr. Bowen; that there was enough stuff on hand to cover all expenses, but I should sign this paper. * * *
“He told me I was supposed to sign it because the other fellows signed it. * * *
“I was the last man to sign it. * * *
“Q. Then the only reason you signed it was because Mr. Bowen was with him?
“A. Bowen was with him, and he said, ‘¥e need your signature because the other fellows signed it,’ and I had to. * *
“Q. And you signed it without asking any questions as to what your liabilities would be?
“A. Yes.”
Defendant Streasick testified that defendant Bowen and plaintiff’s representative came to his farm and that he signed the note without reading it. He further said:
“ Q. * * * Did they ask you to sign that paper?
“A. Yes. And I asked them what it was all about. He came over and said, ‘Just as you signed a contract.’ * * * I told them I wouldn’t sign it, any patent medicine note, and they said everything was in good standing, and O. K. standing, Lee Bowen was. * * * And he said, ‘It is the same as you signed before.’ * * * And they tell me it wouldn’t amount to anything, and Lee Bowen had an awful good standing, and don’t be afraid of it. He said, ‘If I had the least idea Lee Bowen would fail we would take the stuff and wouldn’t bother you. ’ * * *
“I said, ‘I ain’t signing no papers for patent medicine.’ And he said, ‘You signed them once for reference, and they are just the same.’ And I said, ‘I ain’t signing anything.’ * * *
“I signed it just because this fellow told me it was a reference.”
Defendant Cole testified in substance that defendant Bowen and plaintiff’s representative came to see him ; that Bowen requested him to sign the note ; and that he signed it without reading it. He further said:
“They, told me that he (Bowen) was a little behind in his payment for the goods, and well, they said they had stuff — he had goods outside he hadn’t collected for yet, but he had — he was in good standing. He had plenty of goods to offset what he owed the company. * * *
“As I remember, he said that that was the same as the contract. * * *
“He (Bowen) told me it was a reference. * * *
“Q. * * * It was your understanding then that the signature on the note was being given because Mr. Bowen was a little behind, is that right?
“A. That is right. '
“Q. You say your idea was to sort of help Bowen out until he could raise the money, is that the idea?
“A. That is what I understood. ’ ’
This was a business transaction, and no fiduciary ■ relationship existed between plaintiff and defendants. There was no showing that defendants were inexperienced in business, illiterate or incapable of determining the nature of the instrument they signed. The note was plain and unambiguous, and defendants had the opportunity to read it before they signed it. They knew that the note related to defendant Bowen’s business and to the agreement of suretyship which they had previously signed. The note did not impose liability for an amount greater than defendants’ obligation under the agreement of suretyship; it merely changed the nature of their liability from that of sureties to that of joint makers. In International Transportation Ass’n v. Bylenga, 254 Mich. 236, 239, we said :
“This court has many times held that one who signs a contract will not be heard to say, when enforcement is sought, that he did not read it, or that he supposed it was different in its terms. Gardner v. Johnson, 236 Mich. 258; Draeger v. Kent County Savings Ass’n, 242 Mich. 486; Powers v. Indiana & M. Elec. Co., 252 Mich. 585. But the general rule announced in those cases is not applicable when the neglect to read is not due to carelessness alone, but was induced by some stratagem, trick, or artifice on the part of the one seeking to enforce the contract.”
See, also, Northern Assurance Co. v. Meyer, 194 Mich. 371.
The burden was on defendants to establish by a preponderance' of the evidence that they were induced to sign the promissory note in question by plaintiff’s fraud. From a careful study of the record we are unable to find evidence of such fraud. With due regard to the determination of the trial court, we are convinced 'that its findings were against the preponderance of the evidence.
Defendants’ pre-existing liability as sureties for the payment .of the indebtedness of defendant Bowen to plaintiff constituted a sufficient consideration for their execution of the note in question as joint makers. 2 Comp. Laws 1929, § 9274 (Stat. Ann. § 19.67); Traverse City Depositors’ Corp. v. Case, 297 Mich. 304.
In their answer defendants alleged that the note in question was usurious, because it- provided for the payment of 10 per cent, of the principal and interest as collection fees. The question of usury was not raised on appeal. As the case is to be remanded, the question of usury will be determined by the trial court in assessing plaintiff’s damages.
The judgment for defendants is reversed and the case remanded to the trial court for the determination of plaintiff’s damages. Plaintiff shall recover costs.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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North, J.
In this foreclosure of a real estate mortgage the only issue presented is this: During what period of time should plaintiffs be allowed to recover interest on a sum of money found to be due on the mortgage loan? Plaintiffs, who are appellants, claim they are entitled to recover interest from May 18,1942, but the trial court allowed interest at 5 per cent, per annum only from the date decree was entered herein, October 25, 1948. There is no controversy about the unpaid principal amount of the mortgage loan — $16,238.35. Much of the factual background of the instant case appears in our opinion in a former suit between these same parties. See Miskinis v. Bement, 301 Mich 365. It is from the date rehearing was denied in that case (May 18, 1942)-plaintiffs claim interest should be computed.
In January, 1941, plaintiffs made a usurious mortgage loan to one or both of defendants, which plaintiffs are foreclosing in the instant case. Plaintiffs’ right to recover interest prior to the entry of decree herein is barred by the statute (CL 1948, § 438.52 [Stat Ann § 19.12]) governing in that respect usurious loans, unless prior to decree herein-something occurred between the parties in consequence of which the action was purged of usury.
It is plaintiffs’ contention that by our decision in the former case the transaction between these parties was purged of usury. This contention is not maintainable. Courts speak through their judgments and decrees. Michigamme Oil Co. v. Huron Valley Build ing & Savings Ass’n, 280 Mich 12; Harnau v. Haight, 212 Mich 66. In the former case between these parties the decree in the circuit court dismissed plaintiffs’ bill of complaint. "We affirmed that decree with the provision that our affirmance was “without prejudice to further proceedings incident to foreclosure of the land contract (as a mortgage) or chattel mortgage mentioned herein.” In the earlier case the principal amount actually due from defendants to plaintiffs was not adjudicated nor was there any détermination of plaintiffs’ right to recover interest thereon. Even in the instant case, after allowing credit of $1,000 realized from foreclosure of a chattel mortgage which was a part of this same transaction, plaintiffs’ prayer for relief is: “That the defendants Austin F. Bement and Evelyn Bement, his wife, be ordered and decreed to pay forthwith the indebtedness under said land contract, exhibit A, hereto attached. Upon the default in payment thereof, said land contract shall be foreclosed as a real estate mortgage;" and after payment of expenses of foreclosure, the balance received on the foreclosure be applied “toward the payment of the amount due and owing under said land contract.”
We find nothing in the record which would justify a holding that the transaction between these parties was purged of usury prior to the circuit court’s decree in the instant case, which provided for interest at 5 per cent, per annum on the amount due after date of the decree. The decree as entered in the circuit court is affirmed, with costs to appellees. The case is remanded for any appropriate future proceedings therein.
Sharpe, C. J., and Bushnell, Boyles, Reid, Dethmers, Butzel, and Carr, JJ., concurred. | [
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Wiest, J.
Petitioner is confined in the State pris- . on at Jackson and seeks release by habeas corpus on the alleged ground that he was convicted of the crime of larceny, in the circuit court for the county of Huron, in November, 1930, and sentenced to the State prison at Jackson for a period of not exceeding 30 years and not less than 15 years; that the penalty for such offense could not exceed 5 years and he has been in prison under such sentence 12% years.
We issued the writ to inquire into the matter and also an ancillary writ of certiorari to bring before ns the record of his conviction and sentence in the circuit court.
The information in the circuit court charged petitioner with the crime of breaking and entering, in the nighttime, designated premises of others and stealing and carrying away therefrom specified personal property; that he had been previously convicted of a felony in the State of Nebraska and, under sentence there, had been in prison more than one year and had also been convicted of a felony in this State and, under sentence, had been imprisoned upward of one year. The charge, in the information, of breaking and entering buildings of others in the nighttime and committing larceny therein was laid under the statute, 3 Comp. Laws 1929, § 16948, and upon conviction, if a first offender, carried a penalty of imprisonment of not more than 15 years.
Upon arraignment, petitioner pleaded guilty to. the charges and former convictions but in the journal of the court he was recorded as guilty of “grand larceny” and so sentenced. In common parlance the term “grand larceny” may have a meaning but in point of law it is unknown by such term. Had this error in nomenclature been seasonably brought to the attention of the circuit court the proper cor rection should and could have been made hut, inasmuch as petitioner now presents the matter as a ground for his release, it is not too late to permit the record to be made to speak the truth. The writ of certiorari has brought before us the proceedings in the circuit court and under our constitutional power, it being apparent that the errors in the court journal and the commitment of sentence are ministerial, the record is remanded to the circuit court with direction to make the same, mmc pro, tunc, speak the judicial determination relative to the. conviction and the grounds for the sentence imposed and a supplemental commitment issued and forwarded to the warden of the State prison at Jackson.
The mentioned charge in the information of two previous felonies and imprisonment of petitioner, upon his plea of guilty, authorized the court, in imposing sentence, to consider petitioner a third offender, and subject to the imprisonment imposed. Act No. 175, chap. 9, § 11, Pub. Acts 1927, as amended by Act No. 24, Pub. Acts 1929 (3 Comp. Laws 1929, § 17339 [Stat. Ann. § 28.1083]).
Petitioner’s application for release is denied.
North, C. J., and Starr, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Dethmers, J.
The city of Saginaw is a home-rule city. On February 5, 1951, section 45 of chapter 7 of its charter entitled “Adoption of Budget, Tax Limit” provided:
“The council shall, by resolution, determine and adopt the budget and make the appropriations for the next fiscal year and shall provide, by resolution, for a tax levy of the amount necessary to be raised by taxation, which shall not- exceed 1 1/2% of the assessed value of all real and personal property subject to taxation in the city, in conformity with and subject to section 21, article 10, of the Constitution of Michigan and the State law pertaining thereto.”
The council adopted a resolution proposing to amend said section as follows:
“Adoption of Budget, Tax Limit, Excise Tax
“Sec. 45(a) The council shall, by resolution, determine and adopt the budget and make the appropriations for the next fiscal year. It shall provide, by resolution, for a tax levy of the amount necessary to be raised by taxation, for city purposes, on real and personal property, which shall not exceed 1% of the assessed value of all real and personal prop.erty subject to taxation in the city.
“Sec. 45(b) For a period of 10 years beginning January 1, 1952, the council may, by ordinance, pror vide for the levy and assessment of a specific excise tax of not to exceed 1% per annum upon the following: (1) All salaries, wages, commissions and other compensation earned (a) by residents of the city and (b) by nonresidents of the city for work done or services performed or rendered in the city; (2) the net profits of all businesses, professions or other activities (a) conducted by residents of the city and (b) conducted in the city by nonresidents; arid (3) that part of the net profits earned as a result of work done or services performed or rendered and business or other activities conducted in the city by corporations having an office or place of business in the city.
“The council may prescribe by ordinance all things it may deem necessary to exercise effectively the authority herein granted, including but not limited to the following: A penalty of not to exceed 5% of the amount of any unpaid tax for each month or fraction of a month for the first 5 months of nonpayments; interest on any tax not paid when due at not more than the rate of 1/2 of 1% per month; the collection of any tax, including interest and penalties, herein authorized without respect to said 10-year period and by any method available for the collection of a debt owed to the city; and the examination of books, records and paper necessary to determine tax liability thereunder.”
(Section 45[c]. This subsection defined “association,” “business,”- “corporation,” “net profits,” “nonresident” and “resident.”)
“See. 45(d) The net receipts from the tax authorized by section 45(b) hereof, after providing for all costs of collection, shall be accumulated in each fiscal year until March 31st, and as soon thereafter as possible such net receipts shall be distributed as follows:
“First, an amount equal to 3/10 of 1% of the assessed valuation of the real and personal property subject to taxation in the city shall, insofar as funds are available, be transferred to the general fund, and the tax limit created by section 45(a) hereof shall, for the next fiscal year be reduced by the amount so transferred.
“Second, there shall be next set aside, insofar as funds are available, an amount sufficient to defray the debt service requirements of the next fiscal year, including principal and interest, of any bonds issued by the city to finance the construction of a sewage disposal system and appurtenances.
“Third, the amount remaining after the payments above required have been made shall be transferred to a fund to be known as the public improvement fund and shall be used solely for the acquiring, extending, altering or repairing of public improvements which the city may, by the provisions of its charter or the general law, be authorized to acquire, alter or enlarge.”
(Section 45 [e]. This subsection contained the usual severability provision.)
At an election held on May 22, 1951, the proposed charter amendment was submitted to the qualified electors. Of the 14,462 ballots east thereon, 9,030 were in favor and 5,432 opposed to adoption. The proposal was submitted upon a ballot which was in form as follows:
“Proposed amendment to section 45 of chapter 7 of the city charter.
“Proposed by resolution of the council, adopted February 5, 1951.
“Shall section 45 of chapter 7 of the city charter he amended: To authorize a tax lavy on property of not to exceed 1%; to authorize for 10 years only an excise tax of not more than 1% on salaries, wages, commissions, other compensation and profits of both residents and nonresidents; and to provide for the use of the net proceeds of such excise tax to reduce property taxes, defray annual sewage disposal bond expense, and for public improvements!
)”
The plaintiffs are residents and electors of the city of Saginaw; at least 1 of them is a taxpayer on real property therein, and it is admitted that both would be prospective taxpayers under the tax provided for in the charter amendment. Plaintiffs’ bill of complaint alleged the invalidity of the proposed tax both because of the form of the charter amendment and because of the tax itself. From decree holding the amendment and implementing ordinance adopted thereunder invalid and void and permanently enjoining defendant city from levying or collecting any tax authorized thereunder, defendants appeal.
Involved is the question stated in plaintiffs’ brief as follows:
“Are the charter amendment and implementing ordinance entirely void because the ballot embraced
more than one related proposition and did not state each proposition separately to afford an opportunity for an elector to vote for or against each such proposition, as required by PA 1909, No 279, § 21, as amended by PA 1939, No 279, being CL 1948, § 117.21 (Stat Ann 1949 Rev § 5.2100)?"
The mentioned section of the statute reads in part as follows:
“The form in which any proposed charter amendment or question shall appear on the ballot, unless provided for in the initiatory petition, shall be determined by resolution of the legislative body, and when provided for by the initiatory petition, the legislative body may add such explanatory caption as shall be deemed advisable. Any proposed .amendment shall be confined to 1 subject and in case a subject should embrace more than 1 related proposition, each proposition shall be separately stated to afford 'an opportunity for an elector to vote for or against each such proposition.”
The effect of the quoted language of the statute has been considered by this Court but once, namely, in Michigan Public Service Company v. Cheboygan, 324 Mich 309, from which defendants quote as follows, p 334:
“Hence, it was proper to submit the terms of the franchise in the proposition to authorize the issuance of mortgage bonds. If they were to be submitted separately, the authority to issue bonds might be approved while the constitutional requirement for a franchise to set up terms in event of a default might be rejected.”
We fail-to find in the Cheboygan Case support for, defendants’ claim that the amendment in the instant' case was submitted to the electors in conformity with the requirements of the statute. In Cheboygan there was submitted to the electors, separately, 2 related propositions, which were, as we stated in that case:
“In effect:
“1. The establishment of charter power to acquire and operate a municipal electric utility; and
“2. The establishment of charter power to finance its acquisition.”
The objection raised in that case was that the second proposition contained 2 separate proposals, i.e., (a) authority to issue revenue bonds; and (b) provision for a franchise to operate the electric plant and distribution system as security for -payment of the bonds in case of default. The answer to that objection was simply that, upon analysis, proposition (2) presented but 1 proposal, namely, the issuance of revenue bonds secured by a mortgage which pledged not only the physical equipment involved, but, as well, a franchise to operate it in the event of default. Submission of the terms of the mortgage was not a proposition separate and apart from the proposal to issue bonds secured, by such mortgage.
Defendants also rely on Kelly v. Laing, 259 Mich 212, decided before 1939 when the statute was amended to require, as now, that related propositions embraced within the same subject be submitted separately. Authorities from other jurisdictions cited by defendants are scarcely in point because they do not involve that precise statutory requirement.
It is clear that subdivisions (a), (b) and (d) of the proposed amendatory section 45 and the condensed statement thereof appearing on the ballot, even were they conceded to involve but 1 subject, embrace 3 separate propositions, namely, (1) a tax limitation on real and personal property; (2) an income tax; and (3) disposition of revenues accruing from the income tax. In this connection we note defendants’ suggestion that the 10-mill tax limitation for city purposes provided for in proposition (1) was meaningless because already in effect in defendant city by virtue of the provisions of PA 1948 (1st Ex Sess), No 44 (CL 1948, § 117.3[g] [Stat Ann § 5.2073(g)]). Plaintiffs deny this because of the express provision of the old section 45 of the charter which fixed a limitation of 15 mills for all purposes, contending that under the express terms of the statute the presence of that provision in the charter prevented the 10-mill provision of the statute from becoming effective in defendant city. A. number of theories are advanced concerning the actual legal effect of adoption of proposition (1). The legal questions presented in this connection need not be determined here nor should the electors have been expected to wrestle with them at the polls. Suffice it to say that proposition (1), providing for a tax limitation on real and personal property, even though included in and germane to the general subject of the entire amendment, was, insofar as the proposed income tax is concerned, a related proposition, regardless of whether its adoption by the electors had any legal effect or was merely an idle gesture, placing the stamp of approval on existing law, and was, accordingly, placed on the ballot for no other purpose than to serve as attractive bait to win approval of the income tax. It was the intent and purpose of the statute that, as applied to the facts in this case, the electors should have had the opportunity to adopt or reject the proposed income ■ tax independent of their approval or disapproval of any particular tax limitation on real and personal property. This was denied them on the ballot in question.
Affirmed, without costs, a public question being involved.
Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
North, C. J., did not participate in this decision.
This section was also amended by PA 1947, Nos 1 and 87.—Reporter. | [
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Boyles, J.
The question presented here is whether 2 certain separate and distinct partnerships, although consisting of the same 2 individuals as co-partners, are 1 and the same employing unit, and .whether they should be combined and held to be a ■single employing unit for the purpose of determining ■ their experience record and contribution rate under the Michigan employment security act.
On January 2, 1946, Sam T. and Rex Johnson became partners in a Ford sales and service agency in Reed City, which they operated under a franchise from the Ford Motor Company until July 15, 1949. In their certificate of copartnership filed with the county cleric, the partnership name was designated as Sam T. and Rex Johnson.
On May 1, 1948, these same 2 individuals became partners in a tractor and implement sales and service business under a certificate of copartnership in which the partnership name was designated as Johnson Tractor & Implement Sales. They operated this business until August 1,1949, under a franchise from .the Great Lakes Tractor & Equipment Company which prohibited its dealers from engaging in any other business.
The business of each of these 2 partnerships was directed and controlled by these same 2 individuals. However, each business was operated in physically separated premises, separate and distinct books of account were kept for each, they maintained separate bank accounts, operated under separate franchises from different manufacturers and distributors, employed separate personnel, used separate letterheads, separate billings, and filed separate Federal income tax returns.
The Ford agency became subject to the payment of contributions under the Michigan employment security act on January 1, 1946. At all times during its operation it employed a sufficient number of workers to remain subject thereto. Its account with the commission was carried under the name of Sam T. and Rex Johnson, a copartnership. The other co-partnership, the tractor agency, at no time employed a sufficient number of workers to be separately subject to the contribution provisions of the act.
On October 18,1948, the partners notified the commission that as of May 1,1948, the date of its inception, the tractor and implement business became separate from Sam T. and Rex Johnson, under the name of Johnson Tractor & Implement Sales, asked for 2 blanks to make reports, and stated that they would include Johnson Tractor & Implement Sales contribution with Sana T. and Rex Johnson. They were advised by the commission that inasmuch as Sam T. and Rex Johnson were the owners of both business establishments, the employment of Johnson Tractor & Implement Sales should be included with the rest of their employment, and 1 combined quarterly contribution report submitted. The Johnsons accordingly thereafter submitted a single report for each of the calendar quarters in which they paid wages to the employees of both enterprises. Each report was filed under the name of Sam T. and Rex Johnson, a copartnership, and included the combined wages paid by both partnerships.
On July 15,1949, Sam T. and Rex Johnson enjoyed a favorable contribution rate of 1% based upon their experience in respect to providing employment to those who rendered services for both enterprises. On that- date the defendant and appellee herein, Clyde 0. Crane, Jr., purchased the entire assets of the Ford agency, secured a new franchise from the Ford Motor Company and continued to operate that agency under the name of Crane Motor Sales. He continued to employ all of the personnel formerly employed by the Johnsons in the operation of the Ford agency. The business and assets of the Ford agency constituted about 65% of the combined assets of the tractor and Ford agencies.
The Johnsons continued to operate the tractor agency as copartners until August 1, 1949. On that date all of the assets of the tractor agency were transferred to Rex Johnson, who thereafter operated the agency as an individual proprietor. Rex Johnson continued to employ all of the same individuals who had been employed by the Johnsons in the operation of this agency. He acquired the entire organization, trade and business of the tractor agency, including all of its assets.
After these transactions were completed, the com-t mission issued 2 administrative determinations respecting the status of Clyde C. Crane, Jr., doing-business as Crane Motor Sales, and that of Rex Johnson. The first determination held that Clyde C. Crane, Jr., became an “employer” on July 15,1949,-under the successorship provisions of the act. The other held that Rex Johnson became an employer on August 1, 1949, under the provisions of the same section of the act. No appeal was taken from either determination.
On March 16, 1950, the commission issued a determination establishing the contribution rate of Crane Motor Sales for the years 1949 and 1950 at 3% effective July 15, 1949. Crane Motor Sales protested this determination and appealed to the referee, who reversed it. The appeal board affirmed the referee, and the Michigan employment security commission thereupon filed a petition for a writ of certiorari in the Ingham circuit court. The circuit judge entered an order dismissing the writ and affirming the appeal hoard. The result was that Crane Motor Sales has a contribution rate of 1%, favorable to it as against the commission’s - determination of 3%. The commission appeals.
The gist of the appellant commission’s claim is that the 2 partnerships, although separate and distinct in every respect except one, are only 1 employing unit under the employment security act. The 1 element in the circumstances of the present case on which appellant relies is that both partnerships have the same 2 individuals as copartners.
The weakness in appellant’s position might appear from the question involved as stated by appellant:
“Where the same individuals employ workers in each of 2 businesses which they operate as separate enterprises under separate partnership agreements, is each business organization a separate and distinct employing unit under CL 1948, § 421.40 (Stat Ann 1950 Rev § 17.542) ?” (Italics supplied.)
The obvious query is whether it is true that the same individuals employ the workers in both partnerships, one operating the Ford agency, and the other operating the Johnson Tractor & Implement Sales. Its franchise prohibited it from engaging in any other business — e.g., selling Ford automobiles.
In this State a partnership is a distinct legal entity separate from the individuals composing it.
“Partnership is a legal entity separate from the individuals composing it, and its essential elements are their contribution to it of whatsoever nature, whether capital, consisting of money, merchandise, et cetera, or credit, skill or labor.” Thurston v. Detroit Asphalt & Paving Co., 226 Mich 505.
See, also, Chisholm v. Chisholm Construction Co., 298 Mich 25; Lobato v. Paulino, 304 Mich 668.
(In the Chisholm Case, supra, the Court came to the conclusion that “in order to prevent an injustice or fraud, we do not hesitate to disregard the fictional entity of the partnership and regard the members as individuals.” The rationale of the Chisholm Case is that an inactive copartner in the defendant construction company “cannot take advantage of his own wrong or neglect to create a waiver or estoppel in his own favor.” No such claim is made in the instant case.)
The statutory definition of an employing unit in the employment security act is:
“ ‘Employing unit’ means any individual or type of organization, including any partnership, * * * which has or * * * had in its employ 1 or more individuals performing services for it within this State. All individuals performing services within this State for any employing unit which maintains 2 or more separate establishments within this State shall be deemed to be employed by a single employing unit for all the purposes of this act.” CL 1948, § 421.40 (Stat Ann 1950 Rev § 17.542).
From the above, appellant argues that the 2 partnerships here involved are, in legal effect, only 1 partnership, because both are composed of the same individuals; hence only 1 employing unit. Appellant claims:
“Thus, when 2 or more copartnerships are composed of the same identical individuals, there is, in fact, and in law, but 1 copartnership, which includes the entire business in which the 2 individuals have co-ownership and concerning which they are associated
We agree with appellant that the question whether there is only 1 employing unit in this case is to be determined by the provisions of the employment security act. Acme Messenger Service Co. v. Michigan Unemployment Compensation Commission, 306 Mich. 704; O’Brian v. Michigan Unemployment Compensation Commission, 309 Mich 18; Graystone Ballroom, Inc., v. Baggobt, 319 Mich 87; Nordman v. Calhoun, 332 Mich 460. However, we do not find in the employment security act itself any requirement that 2 separate and distinct copartnerships operating as in the case at bar must be construed as a single employing unit. Appellant’s only basis for claiming such a conclusion must be found solely in the unity of the partners in both copartnerships. There is no such “unity of enterprise” here as to bring the instant case under American Screw Products Co. v. Michigan Unemployment Compensation Commission, 311. Mich 440 (159 ALR 1195). Here, the enterprises operated by the 2 partnerships were fully separate and apart, and conducted as such. Furthermore, the “unity of enterprise” basis announced in the American Screw Products Case, supra, «would not. afford any relief to the appellant here. The appellee would not suffer hardship under the unity of enterprise premise, any more than under the legal entity theory of partnerships.
The Michigan employment security act expressly recognizes that a partnership is an “employing unit” within the meaning of the act, without the exception claimed by appellant that separate and distinct part-' nerships, operating separate enterprises, should be considered as 1 employing unit when they are owned ■and conducted by the same individual partners. Section 40 of the act (CL 1948, § 421.40 [Stat Ann 1950 Rev § 17.542]) declares that an employing unit includes a partnership. Section 41(2) (CL 1948, §421.41 [2] [Stat Ann 1950 Rev § 17.543(2)])* declares that “employer” means any individual legal entity, et cetera. Section 22(2) (CL 1948, §421.22 [2] [Stat Ann 1950 Rev § 17.524(2)] )* declares that the experience records of 2 or more employers may be combiiled where a change in the legal entity or form of an employer has been effected by a change of ownership or in the composition of a partnership. It might be argued that section 41(3) (CL 1948, § 421.41 [3] [Stat Ann 1950 Rev § 17.543(3)]) of the act should be applied to the circumstances of this case to support appellant’s conclusion that here there is only 1 “employer,” hence only 1 employing unit. This section provides that:
“ ‘Employer’ means; * * *
“(3) Any employing unit * * * which, together with 1 or more other employing units engaged in the same or an associated line of business, is owned or controlled (by a legally enforceable means or otherwise) directly or indirectly by the same interests, or which owns or controls 1 or more other employing units engaged in the same or an associated line of business, and which, if treated as a single unit with such other employing units or interests, or both, would be an employer under paragraph (1) of this section: Provided, That this subsection shall not apply in cases where it can be shown that there is a sound business reason, other than avoidance of contributions, for the separation of such employing units.”
In the instant case, the two Johnsons had a sound business reason for the complete separation of the Johnson Tractor & Implement Sales partnership from the operation of the Ford agency partnership. The Johnson Tractor & Implement .Sales agency operated under a franchise from its supplier prohibiting it from engaging in any other business. Section 41, supra, recognizes that legal entities are not to be disregarded unless it appears that there is no sound business reason for separation other than merely to avoid contributions under the act. The reason for the separation here has‘not been challenged.
Appellant relies on Canada Dry Bottling Co. of Utah v. Utah Board, of Review, — Utah — (223 P2d 586, 22 ALR2d 664). But in that case the Utah supreme court had under consideration only 1 partnership. The Utah supreme court construed this question in a situation where the same partnership operated simultaneously as separate enterprises 3 bowling alleys and a bottling works. It answered in the negative the contention that each business enterprise of this copartnership was a single employing unit separate and apart from the other. The situation before us is different. Here, we have 2 separate and distinct partnerships, not a single partnership operating separate enterprises.
We are not in accord with appellant’s claim that under the circumstances of this case the 2 partnerships constitute a single employing unit under the employment security act. Each was a separate and distinct employing unit. Other incidental questions raised but not discussed in appellant’s brief need not be referred to.
Affirmed. Costs to appellee.
Dethmers, Butzel, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
The late Chief Justice North did not sit.
UA 1936 (Ex Sess), No 1, as amended (CL 1948, § 431.1 et seq., as amended by PA 1951, No 251 [Stat Ann 1950 Rev and Stat Ann 1951 Cum Supp § 17.501 et seq.']).
CL 1948, §421.41(2) (Stat Ann 1950 Rev § 17.543[2]). Not amended by PA 1951, No 251.
Not amended by PA 1951, No 251.
Not amended by PA 1951, No 251.
Not amended by PA 1951, No 251. | [
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Reid, J.
Defendant Abe Marrobie appeals from a decree of divorce granted to tbe plaintiff, wbicb decree dismissed defendant’s cross bill, and defendant appeals, also, from tbe award of property to plaintiff.
Tbe parties were married July 12,1930, at Toledo, Ohio, by a justice of the peace. They have no children. The parties live in the city of Detroit, and have lived in Detroit for more than 2 years last past. They separated about July 10, 1948. During part of the early years after the marriage, defendant was ill and unable to work. Plaintiff had to work at housework for other people and also in a restaurant until defendant was able to work. She went to work for Bundy Tubing November 11, 1936, because she had no money, though defendant was then able to work. Plaintiff testified that from her earnings she maintained the home, bought groceries and took care of the bills, and what was left of her earnings, she put in the “kitty,” i.e., a safe for their joint savings. She worked steadily at Bundy Tubing and is still employed there.
Plaintiff testified that the defendant used vile and cursing language toward her, and also that he falsely accused her of associating with other men. She claims that she drove some of her fellow employees in her car from their employment for their return to their residences, but denies improprieties. She claims that her working and earning of wages was made necessary by the insistence of defendant, during about 14 years of their married life.
Defendant admits that he lost $2,000 to $2,500 in gambling; plaintiff claims that he lost more than $2,500. Defendant admits that he rented safety deposit boxes in Toledo, Ohio, and Bowling Green, Ohio, to keep money to be used for gambling purposes, and names or describes several gambling places in Ohio and Michigan with which he is familiar. Plaintiff testified that while the parties each had a key to their safe where $8,400 was at one time kept, she found the safe locked and key gone when she filed the bill of complaint in this case and that she secured the services of a locksmith to open the safe and that no money was found in the safe.
Defendant testified that his wife had a loving disposition toward him until the last year before she filed the suit for divorce. Pie further testified that on Sunday he would wake her up to get his breakfast and she called him an opprobrious name and said, “Make your own breakfast,” after he had cooked for himself all the week. He further testified':
“She got into an argument with me all the time. She used obscene language towards me. She broke my bed, and the kitchen chairs. This took place about a year ago, when she moved back into my home, after the divorce proceedings. She did not prepare meals for me for pretty nearly since we have been married. When I married her, she couldn’t cook, and I learned her to cook. I am the cook in my house. I still do the cooking. She kept house with the help of myself. I did the sweeping and cooking, dusting, and repair work. She used to get home at a quarter to 12, and I would see her in the house. One night 3 fellows met her in front of my home, and I made a report to the Port and Green station. After she was working, and bowling, she used to get home about 2:30, and about a year before the divorce procedure was started, she used to come home at 4 o’clock in the morning. She would tell me it was none of my damned business where she had been. I have seen her in the company of other men. A year ago last summer, right across from the school. I was sitting-in the park. That was before the divorce procedure. My wife was staying home with me. When we were separated, I didn’t interfere with her. I had seen her in the company of other men before I separated from her on one occasion. One block from my home, right by Western high school. About 3 years ago. She told me it was absolutely none of my business.”
While plaintiff was not recalled as a witness- after defendant had given the above testimony, still much of the above testimony, by defendant was inconsistent with testimony already given by -plaintiff in. her main case. She had testified that she had to break into the house because she found it locked and impliedly that was a contrary version as to the occasion on which he says she broke the furniture.- Her failure to prepare meals was excusable by- the -fact ■that she had to work to support the household. Her ‘being with other men in a car near their home, was explained at least inferentially by her testimony that ■she drove other employees from their employment. She testified that only women bowled at her bowling-alleys and that she never g-av.e any man a'ride from the bowling alleys; and that defendant knew where she went; that she was treasurer of the bowling-league, and bowled once a week. Defendant claims lie took her to the show once a month hut does not show that he gave her any other opportunity for diversion.
Plaintiff further testified:
“I never told him I would rather go out alone. I tried to make this marriage a success. I went 100% of the way to make a success of it. * * * There was $8,440 in the safe, and $300 in a canary bird-seed can, up until 1948, and that money was gone. That was money that came from earnings of both of us. All my married life I had to account for my own money, and I never got any money from him to spend. I was told what to do, and how to do it, and when to breathe, with all the humiliation and embarrassment that went with it.”
Defendant claimed that the largest amount ever in the safety box in the house was around $4,600.
The trial court in weighing the testimony of the parties, said:
“If it were a simple contradiction between her and him, I would believe her and discredit him. Plis appearance is distinctly unimpressive. His testimony was given in a shifty, evasive manner which words can not describe. The transcript of the testimony does not truly convey the impression of dishonesty which his words, plus his mannerisms, plus his personality, vividly portray. Add to this unfavorable impression the corroborative testimony of the brother [as to the amount of money counted that was in the safe and seed can], and the result, to my mind, is inevitable.”
The trial court found that defendant had taken the $8,400 “in the kitty” as claimed by plaintiff, at about the time of the inception of the divorce prot ceedings.
We cannot say that we would have come to a different conclusion than that arrived at by the trial court, as to the credibility of the parties.
Defendant complains because the decree awarded practically all the property to plaintiff wife.
The reference in the testimony as to the property of the parties and its value, is casual and the testimony in that particular is in an inconclusive condition. The court seems to have had available, for the purposes of making the decree, information not shown in the record and presumably furnished by the parties for the purposes of entry of decree.
The report of the friend of the court says the agreed valuation of the residence at 4080 Page street, Detroit, jointly owned, is $5,200 or $6,000. The decree assigns this property to the wife, plaintiff, and also, United States savings bonds of the face value of $1,975, are assigned to the wife.
The report of the friend of the court further states other property as follows: A 1939 Plymouth automobile, in the wife’s name and possession, but always considered as joint property; also household furniture and furnishings valued by the wife at $1,000 and by the husband at $500; also a vacant lot in Dearborn, Michigan, agreed value $400.
We assume that the trial court intended to assign to the wife the household furniture and furnishings and the decree shall be modified to assign the same to the wife. The vacant lot in Dearborn is not disposed of by the decree and the decree may be amended to assign whatever interest the parties have in the same to the husband. The record does not show how the title to the vacant lot in Dearborn stands.
The decree is silent on the subject of future support of wife. Where there is an absolute decree of divorce-with no allowance of alimony nor reservation of the question of alimony, the court cannot make such allowance thereafter. See, Moross v. Moross, 129 Mich 27; Kutchai v. Kutchai, 233 Mich 569; Harner v. Harner, 255 Mich 515; Mack v. Mack, 283 Mich 365.
It is of considerable value to the husband to be freed from the wife’s future support. He had gambled away and hypothecated much of the earnings of the parties.
The conduct of plaintiff was not such as to support defendant’s claim of extreme cruelty on her part nor to defeat her cause for divorce. See Stuart v. Stuart, 311 Mich 30; Trombley v. Trombley, 313 Mich 80.
The wife is entitled to the decree of divorce on the ground of nonsupport (CL 1948, § 552.8 [Stat Ann § 25.88]) which is certainly to be considered as extreme cruelty on the part of defendant under all the circumstances of this case.
The decree may be modified in accordance with this opinion and as thus modified, is affirmed. No costs, neither party having prevailed in full.
Dethmers, Butzel, Carr, Bushnell, Sharpe, and Boyles, JJ., concurred.
The late Chief Justice North did not sit. | [
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Bushnell, J.
Plaintiff Baldoino Amieneci and another employee, Harvey Flowers, worked' for defendant Ford Motor Company at the same bench, burring, filing and grinding aluminum stock. Each man used an air-driven emery grinder which resulted in the accumulation of considerable dust on the work bench and their clothing.
On the day in question, Flowers, having completed his particular job, removed the air hose from his grinder and, in the words of the department of labor and industry — “as was customary among the employees, used the hose to blow the dust off the bench and off his clothes. Some of the dust was blown on the plaintiff.”
Flowers testified that, after blowing off his bench and his own clothes, he blew the air from the hose across the shoulders of plaintiff and then brought the hose down along the center of plaintiff’s back to a position of about one foot below his rectum, and then brought the hose, which qarried an air pressure of about 250 lbs., up the center of plaintiff’s back. Plaintiff gave an exclamation of pain, and fell. He was taken to the first-aid department and from there sent to the hospital. Upon his admission to the hospital the examining physician found that plaintiff’s abdomen was blown up to about twice its normal circumference, and a diagnosis of perforation of the intestines due to compressed air was made. An emergency operation was immediately performed by opening the peritoneal cavity, expelling the air and suturing the perforations. Because of plaintiff’s condition a colostomy was necessary and he remained in the hospital over four months. At the time of the hearing, about 8 months after the accident, the colostomy was still open.
The department found that there was no direct testimony which would give credence to any claimed horseplay. There were apparently no eyewitnesses to the occurrence and both plaintiff and Flowers positively denied there was any horseplay. Both testified that it was a customary and common practice to use the hose to clean off the work bench and each other’s clothes.
The department held that plaintiff’s injury and subsequent disability did not result from horseplay or from any act outside the scope of his employment or from a violation of a company rule, and that the disability was caused by an accident arising out of and in the course of plaintiff’s employment.
Defendant obtained leave to appeal from an award granting plaintiff compensation of $18 per week for total disability from August 19, 1942, to February 24, 1943, and medical fees in the sum of $1,395.59.
The phrase, “arising out of and in the course of his employment” (2 Comp. Laws 1929, § 8417 [Stat. Ann. §17.151]) was adopted in identical words from the English workmen’s compensation act, “and presumably with the meaning previously given it there.” Hopkins v. Michigan Sugar Co., 184 Mich. 87, 90 (L. R. A. 1916 A, 310). Its meaning was fully discussed in the Hopkins and subsequent cases, and in Haller v. City of Lansing, 195 Mich. 753 (L. R. A. 1917 E, 324), a number of applicable English authorities are reviewed. In the Haller Case the court said, p. 759:
“The general rule as to injuries during intermissions from labor, especially where the accident occurs on the employer’s premises, is formulated from the decisions as follows in 1 Honnold on Workmen’s Compensation, p. 381.
“ ‘Acts of ministration by a servant to himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the workmen’s compensation acts, though they are only indirectly conducive to the purpose of the employment. Consequently no break in the employment is caused by the mere fact that the workman is ministering to his personal comforts or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure a drink, refreshments, food, or fresh air, or to rest in the shade.’ (citing numerous sustaining cases).”
The courts of Illinois, California, Minnesota and New Jersey have applied the reasoning used in the Sailer Case, under somewhat similar circumstances. See Steel Sales Corporation v. Industrial Commission, 293 Ill. 435 (127 N. E. 698, 14 A. L. R. 274); Whiting-Mead Commercial Co. v. Industrial Accident Commission, 178 Cal. 505 (173 Pac. 1105, 5 A. L. R. 1518); Elliott v. Industrial Accident Commission, 21 Cal. (2d) 281 (131 Pac. [2d] 521, 144 A. L. R. 358); McKenzie v. Railway Express Agency, Inc., 205 Minn. 231 (285 N. W. 529); Taylor v. 110 S. Penna Ave. Corp., 117 N. J. Law, 346 (188 Atl. 689); and Terlecki v. Strauss, 85 N. J. Law, 454 (89 Atl. 1023).
Though the compensation law is not a cover-all insurance, it should, nevertheless, be construed so as to provide indemnity for accidents peculiarly incidental to employment, Simpson v. Lee & Cady, 294 Mich. 460, and the question of whether the accident arose “out of and in the course of” the employment depends ultimately upon the facts and circumstances of each case, Wilhelm v. Angell, Wilhelm & Shreve, 252 Mich. 648, and Appleford v. Kimmel, 297 Mich. 8.
It seems clear that the injury in the instant case arose “in the course of” the employment. The debatable question is whether the injury arose “out of” the employment.
The court said in Meehan v. Marion Manor Apts., 305 Mich. 262:
“To arise 'out of’ the employment the injury sustained must have a causal connection with the work to be performed;,it must be one which follows as a natural incident to the employment, be connected with it, and not the result of a risk disassociated therefrom. ’ ’
See Appleford v. Kimmel, supra; Dent v. Ford Motor Co., 275 Mich. 39; Rucker v. Michigan Smelting & Refining Co., 300 Mich. 668.
There was a causal connection between the conditions under which plaintiff worked and the resulting injury. The filing, burring and grinding of metal parts will bring about an accumulation of dust. It is foreseeable that, as a natural human desire, some attempt at cleanliness will be made, and such attempt is incidental to the employment. As said by the Illinois court in the Steel Sales Corporation Case, supra:
“An employee, while at work for his employer, may do those things which are necessary to his own health and comfort, even though they are personal to himself, and such acts will be considered incidental to his employment. ’ ’
And as stated by the California court in the Whiting Case, supra:
“ 'Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself, and not acts of service, are incidental to the service, and injury sustained in the performance thereof is deemed to have arisen out of the employment. A man must breathe and occasionally drink water while at work. In these and other conceivable instances he ministers unto himself, but in a remote sense these acts con tribute to tbe furtherance of his work. * * * That such acts will be done in the course of employment is necessarily contemplated, and they are inevitable incidents. Such dangers as attend them, therefore, are incidental dangers. At the same time injuries occasioned by them are accidents resulting , from the employment.’ ”
"We may not go behind the findings of fact of the department that the accident did not arise “out of” horseplay, there being testimony to support such finding. We are bound by the rule of the Haller Case, that the “injury to an employee may arise out of and in the course of his employment, although he is not directly engaged in the work of his employment at the time. ’ ’
There is evidence to sustain the conclusion of the department that plaintiff received a personal injury which arose “out of and in the course of his employment.”
The award is affirmed, with costs to appellee.
North, C. J., and Starr, Wiest, Butzel, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Butzel, J.
Plaintiff and appellee was awarded compensation from the Kalamazoo Stove & Furnace Company and Liberty Mutual Insurance Company, defendants and appellants, for the loss of vision of the left eye. Plaintiff had worked for many years for the Kalamazoo Stov'e & Furnace Company. In 1934, he had eye trouble resulting from sand getting into his left eye. He had a recurrence of eye trouble in 1939. He claimed that on April 2, 1942, while pushing a bull ladle of molten iron on an overhead track in the foundry, some of the metal spilled over the side of the ladle, fell to the floor and either a piece of the metal or a piece of cement flew up and struck him in the left eye. He was seen to put his hands up to his eyes and cry out with pain. There were two eyewitnesses to the accident. The men in the foundry at the time prged their floor committee to insist upon a new set of tracks and pulleys being installed in place of the defective ones which caused the accident. Plaintiff after sitting around for a while tried to finish pouring off metal into a mold but was obliged to go home on account of the pain in the eye. The following day, Friday, April 3d, he worked. He again came to work on April 4, 1942, but the eye troubled him. He did not return to work the following Monday because of. the pain. He at first attributed the condition of his left eye to a recurrence of iritis attacks of previous years, Af ter the accident he made several visits to the foundry. He wore a white bandage over his eye. He showed his. eye to the foreman who tried to dissuade him from' believing that the condition was serious. According to the testimony, one or two days before July 2, 1942, the expiration of the three-month period in which defendant was entitled to notice or knowledge of the accident, plaintiff paid a visit to the main office of the stove company and reported to the company nurse that he was blind in his eye and made a claim for compensation and stated that his blindness was due to his employment. Notwithstanding the fact that there might be some question as to whether plaintiff’s disability was not due to a recurrence of iritis and not to the accident, and notwithstanding the fact that plaintiff was first under the impression that his disability was due to a recurrence of iritis, from which he had suffered several times in the past, defendants concede that there was testimony to show that plaintiff did suffer an industrial accident arising out of and in the course of his employment- as claimed and that they are bound by the finding of the department to that extent.
Although the findings of the department stated that “sand or a small piece of metal” struck plaintiff’s eye, appellants show that the cement floor was not covered with sand. It is immaterial whether plaintiff was struck by a particle of sand or cement, a component part of the latter being sand. The words are used interchangeably.
Defendants, however, claim that the stove company was not notified of the accident within the three months from the time of its occurrence as provided by law, and, therefore, they cannot be held liable for compensation. No question is raised but that defendants were entitled to this three months’ •notice. The issue is whether sufficient notice was given within the three months from the date of the accident.
On July 1,1942, within a day or two after the adjuster visited plaintiff, and shortly after plaintiff had visited the company’s office and had seen the nurse, the stove company filed a report of compensable accident and stated that the cause and manner of the accident was that:
“Employee alleges he got sand in left eye on 12-17-34 and many times since. Last time probably between January and March of 1942.”
Plaintiff filed a notice and application for adjustment of claim dated October 1,1942. In it he stated that the accident occurred on March 11,1942. There is testimony also that plaintiff did not .ascribe the accident as the cause for his blindness until a considerable period after July 1, 1942. On the other hand, plaintiff positively identified the date of the accident by showing that on April 4, 1942, his condition became such that he had to quit work, and that the accident happened on the Thursday before the last day he reported for work. For this reason the date of the accident would be April 2, 1942. The adjuster for the insurance company on cross-examination stated that he saw plaintiff at his home on July 1, 1942, that he went there because the company’s nurse one or two days previous thereto had stated that plaintiff had come in and stated that he was suffering from blindness in the eye, that it was due to his employment, that he had made a claim against the company, and that in fact he was claiming compensation. There was, therefore, competent testimony that the accident took place on April 2, 1942, and that in less than three months thereafter plaintiff had been at the company’s office and told of his blindness and was claiming compensation.
Part 2, § 18, of the workmen’s compensation law, 2 Comp. Laws 1929, § 8434 (Stat. Ann. § 17.168), provides as follows:
“A notice given under the provisions of this act shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place or cause of the injury, unless it is shown that it was the intention to mislead, and the employer, or the insurance company carrying such risk, or the commissioner of insurance, as the case may be, was in fact misled thereby. Want of such written notice shall not be a bar to proceedings under this act, if it be shown that the employer had notice or knowledge of the injury.”
There was testimony that the company was given notice within the three months, as is required by the statute. There cannot be any claim from its informality that it was plaintiff’s intention to mislead or that the employer and insurance company were misled. The giving of a verbal notice was not a bar to proceedings under the act. The question of the giving of timely and sufficient notice is one of fact. As the award of the department was based upon testimony as to the facts, we decline to disturb it.
The award is affirmed, with costs to plaintiff.
North, C. J., and Starr, Wiest, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
See 2 Comp. Laws 1929, §8431 (Stat. Ann. § 17.165). — RePORTER. | [
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Carr, J.
Pursuant to legislative action a general primary election for the nomination of candidates for various State and county offices will be held on August 5, 1952. The plaintiff is at the present time the judge -of probate .of St. Clair county, having been appointed to fill a vacancy in said office until the next general election. It is his claim that he has complied with the provisions of law relating to the filing of nomination petitions, and that he is entitled to have his name printed on the nonpartisan ballot used at such election as a candidate for nomination for said office to fill the unexpired term and also as a candidate for nomination for the full term beginning January 1, 1953. The defendant commission has denied his request that his name be so printed, and he has instituted this proceeding for the purpose of compelling said defendant to take such action.
The case has been submitted on plaintiff’s petition, the answer thereto, the briefs of counsel for the respective parties, and an agreed statement relating to certain of the facts in the case. During* the afternoon of July 1,1952, plaintiff had some conversation with the county clerk with reference.to filing* nomination petitions. It is conceded that at that time plaintiff did not have sufficient signatures but he indicated that he expected to have such before 4 o’clock. At that time he paid to the clerk the sum of $200 in the belief that such payment would obviate the necessity for filing petitions for nomination as a candidate for the offices sought by him.
At approximately 4:55 in the afternoon of July 1st, after the clerk had left his office and was proceeding down the stairs to a lower floor in the courthouse, he met plaintiff who stated that he had sufficient petitions with him to qualify him as a candidate for the nominations in question. The clerk stated in substance that the '“deadline” had passed, and that he could not in consequence accept the petitions. The agreed statement of facts discloses that at the time the clerk believed that all nomination petitions were required to be filed before 4 o’clock. Although' the clerk had apparently locked the door to his office, he reopened it for the accommodation of a third party who wished to correct a document, that had been filed, by inserting a date therein. Plaintiff, however, did not enter the office with the clerk, apparently regarding the statement of the latter as a definite refusal to accept the tendered petitions.
Subsequently further conversations were held between the parties concerned. During the afternoon of July 5th plaintiff re-tendered his petitions to the clerk, who declined to file them. The papers, including an affidavit made by plaintiff setting forth that he was the candidate referred to in his petitions, were left in the office of the county clerk and in his physical possession. Thereafter the names of other candidates for nomination to the office in question were certified to the election commission. The clerk did not include therein the name of plaintiff, but in substance stated what had occurred with reference to plaintiff’s attempts to qualify. Concluding that plaintiff was not entitled to have his name printed on the ballot, the commission accepted the certification as made.
The controversy involves the construction of article 7, § 23, of the State Constitution which was added by amendment adopted at the general election in April, 1939. Certain provisions were incorporated therein at the April election of 1947 with reference to certifying the name of a candidate for a judicial office whose petitions had been properly filed and who had no opposition therefor, a primary election as to such office being, in thdt event, rendered unnecessary. Also involved is the interpretation and application of certain provisions of the Michigan election law.
The section of the Constitution cited is declared therein to- be self-executing. Its provisions material in the present case are' as follows:
“Nomination petitions for candidates at any primary election hereunder, in form as designated by the secretary of State, shall be filed at least 35 days before such primary election. Nomination petitions for judge of the circuit court shall be filed with the secretary of State, and for all other judicial'offices affected hereby with the county clerk. Petitions shall contain the signatures, addresses and dates of signing of a number of qualified voters equal to not less than 2 per cent, .nor more than 4 per cent, of the total number of votes cast for secretary of State at the last preceding November election in the judicial district or county, as applicable. * * *
“If upon the expiration of the time for filing petitions for the primary election of said judicial officers,, it shall appear that as to any such judicial office on any nonpartisan ticket there is no opposition, then the officer with whom such petitions are filed shall certify to the proper board of election commissioners the name of such candidate for said judicial office whose petitions have been properly filed, and such candidate shall be the nominee for such judicial office and shall be so certified. As to such judicial office there shall be no primary election and such judicial office shall be omitted from the judicial primary election ballot. The provisions of this paragraph' shall likewise apply where more than 1 candidate is to be nominated for any judicial office and there are no more candidates than there are persons to be nominated.”
The section also contains the following declaration:
“Except as in the Constitution otherwise provided, all primary election and election laws, including laws pertaining to partisan primaries and elections, shall, so far as applicable, govern primary elections and elections hereunder.”
It will be noted that the language of the Constitution, above quoted, is silent with reference to the. payment of a fee by a candidate in lieu of the filing of nomination petitions. In terms the printing of the name of a candidate on a ballot may be obtained by filing petitions therefor, with the required number of signers, and in the form, as specified, prescribed by the secretary of State. That the language of the Constitution is controlling is not open to question. The procedure there outlined is exclusive. Neither does it appear that the legislature has by statute attempted to grant to a candidate for nomination for a judicial office on a nonpartisan ballot the right to pay a fee in lieu of filing the required nomination petitions. Presumably in making the .payment above referred to plaintiff and the county clerk had in mind the provisions of OL 1948, § 157.3 (Stat Ann 1951 Cum Supp §.6.123). Said section, however, refers to printing the name of a candidate of any political party on the payment of the prescribed fee. The privilege granted, being restricted in the manner stated, was not in terms available to plaintiff. The payment made by him to the county clerk did not entitle him to have his name printed -on the ballot as a candidate for nomination for the office of probate judge.
As before noted, plaintiff, at the time he left his nomination petitions in the office of the county clerk on July 5,1952, left also an affidavit of identification, presumably tendered under CL 1948, § 157.22 (Stat Ann 1951 Cum Supp § 6.141 [1]). Said section in terms requires that any candidate filing petitions in any primary election for any county, State, or national office must, within 3 days after the last day for such filing, file also with the county clerk or with the secretary of State 2 copies of an affidavit setting forth that he is the person filing petitions for such office, his address, whether qualified to vote at the primary election, number of years of residence in the State and/or county, and such other information as may be- required to satisfy the officer with whom the affidavit is filed as to the candidate’s identity. Apparently plaintiff relied on the county clerk to furnish him a suitable form of affidavit, and such was prepared, being executed, as stated, on July 5th. It was not accepted for filing at that time. The nomination petitions tendered by plaintiff having been rejected, it is apparent that under the language of the. statute cited the affidavit could not have been properly filed, even had it been offered for that purpose within the period of 3 days following July 1st.
It will be noted that article 7, § 23, of the Constitution does not refer in any way to an affidavit of identification. Counsel for defendant stresses the provision, hereinbefore quoted, declaring that primary election and election laws shall, so far as applicable, govern primary elections and elections pursuant to the section of the Constitution in question. Obviously the reference is to pertinent provisions of statutes governing elections. The statutory provision requiring the identification affidavit does not relate in any way to the conduct of an election but, rather, in terms imposes an obligation on a candidate as a condition prerequisite to having his name printed on the ballot. It may not be assumed that in the framing and adoption of article 7, § 23, and the amendment thereto as ratified at the general election in April, 1947, it was intended that more should be required of a candidate for a nonpartisan judicial office than the filing of sufficient petitions in the prescribed form. Insofar as the steps required to obtain the printing of the name of a candidate for nomination for a judicial office on the nonpartisan primary ballot are concerned, the language of the Constitution is self-executing. Obligations other than those so imposed may not be added.
The situation here presented is wholly different in character from that involved in Elliott v. Secretary of State, 295 Mich 245. The statutory provision there in issue related to the conduct of the election, specifically the matter of rotation of names on the official ballot. As before noted, the so-called identification affidavit does not concern the calling, conducting, or regulating of elections, or the determination of the results thereof. See, also, Attorney General, ex rel. Cook, v. O’Neill, 280 Mich 649.
It may he noted further that the final paragraph of the section of the Constitution, above quoted in part, was added in 1947, after the enactment of' the statutory provision relating to the identification affidavit in PA 1941, No 348. Under the specific language of the Constitution, if it appears on the expiration of the time for filing petitions that a candidate for nomination for a judicial office is without opposition at the primary his name shall be certified accordingly to the board of election commissioners. This is a right that arises immediately following the expiration of the time set for filing nomination petitions. It is not conditioned or contingent on the filing of the statutory affidavit within the ensuing period of 3 days. We conclude that plaintiff herein was not required to file such affidavit.
Article 7, § 23, of the Constitution requires that nomination petitions thereunder shall be filed at least 35 days before the primary election. Counsel for defendant contends in the instant case that this means that a period of 35 days shall intervene between the last day for filing petitions and the day on which the primary is held. Such a method of computation would lead to the conclusion that the petitions should have been filed on June 30th and not thereafter. This argument is at variance with the executive construction that has been placed on the specific language in question. Under date of July 21, 1948, the then attorney general of the State rendered an opinion, in response to a request from the secretary of State, to the effect that petitions for the nomination of candidates for judicial offices subject to the provisions of article 7, § 23, of the Constitution, may be filed on or before the 35th day preceding the primary election. In reaching such conclusion reliance was placed on the decisions of this Court in Arnold v. Nye, 23 Mich 286; People, for the use of Chaddock, v. Barry, 93 Mich 542 (18 LRA 132); and Ehinger v. Graham, 190 Mich 132. Apparently such interpretation has been followed by public officials concerned with the administration of the election laws. In the case at bar it does not appear that the county clerk questioned at the time that plaintiff’s petitions could be filed on July 1st provided that they were so filed before 4 o’clock in the afternoon.
In Ranney v. Secretary of State, 316 Mich 637, this Court accepted such an interpretation as correct, saying:
“The State Constitution (1908), art 7, § 23, requires the nominating petitions for candidates for the office of circuit judge to be filed with the defendant as secretary of State on or before January 13, 1947, that being 35 days before the third Monday in February, on which day the primary election is by law required to be held.”
It appears that the third Monday in February, 1947, was February 17th. For obvious reasons the executive construction referred to must be given due consideration. The acceptance of the argument now advanced on behalf of defendant might well result in confusion and other consequences that should be avoided if possible. We adhere to the method of computation approved in the Ranney Case.
The opinion of the county clerk that he could not properly receive nomination petitions on July 1st after 4 o’clock, eastern standard time, was presumably based on the provisions of CL 1948, § 157.14, as amended by PA 1949, No 211, and PA 1952, No 171 (Stat Ann 1951 Cum Supp § 6.133, as amended by PA 1952, No 171), which specifically requires that the secretary of State, the various county clerks, and city clerks of cities in which officers are elected at the November election, shall receive nomination pe titions filed in accordance with the election law up to 4 o’clock in the afternoon of the 7th Tuesday preceding the September primary. No reference is made therein to petitions filed by persons seeking nomination as candidates for judicial offices, under article 7, § 23, of the Constitution. Such constitutional provision does not fix a specific hour after which nomination petitions may not be received on the final day for filing. The limitation in this respect as set forth in the statute does not concern the holding or conducting of the election. It is not, therefore, within the scope of the provision of the Constitution, above quoted and discussed, with reference to statutes declared to govern elections thereunder insofar as applicable. It is unnecessary to repeat what is said above as to the construction that must be placed on the language of article 7, § 23, of the Constitution. "Without discussing the matter in further detail, it is our conclusion that the provision of the statute requiring that petitions shall be received until 4 o’clock of the final day for filing has no application in the instant case. "
Assuming that the petitions tendered by plaintiff for filing on July 1st were in proper form and were signed by a sufficient number of qualified voters to satisfy the requirement of the Constitution, he is not entitled to the relief sought unless it was, under all the ' circumstances, the clear legal duty of the clerk to receive the petitions. On behalf of the defendants it is contended that without reference to the statutory 4 o’clock “deadline” on which the clerk relied, plaintiff was required to present the nomination petitions during reasonable office hours and before the closing of the clerk’s office at 4:45 p.m. The argument is predicated on the claim that such closing hour was definitely fixed and, inferentially at least, was observed by other county officers. Reliance is placed on action by the county board of su pervisors taken, at its January, 1949, session. A copy of the official proceedings of said board has been submitted with defendants’ answer, from which it appears that the expenditures committee presented a report relating to county business. Among other matters contained therein was a recommendation that the hours of employees and of county offices should be from 8:30 a.m. to 4:45 p.m., with an hour at noon for lunch, and Saturday closing at 12:15 p.m. The form of the report indicates that the purpose of the recommendation was to fix the total hours per week for each employee at 40. It was adopted by the board. It further appears that the different county officers were advised of the action taken and requested by the chairman of the board of county auditors to comply therewith.
The record before us does not show affirmatively that following the action of the board of supervisors the various offices of the county were closed as contemplated by the report of the expenditures committee. Neither does it appear that the action of the board was intended to establish a definite rule that should remain in force and effect unless and until modified, or that it has been customarily observed, particularly by the county clerk, to and including the present time. It is significant in this regard that on the 1st of July, following his conversation with the plaintiff, the clerk returned to his office and reopened it for the purpose of assisting a person who wished a document previously filed to be corrected. It is also significant that the clerk, as the agreed statement of facts indicates, would have accepted plaintiff’s petitions if he had considered that he had the legal right to do so. It is a fair conclusion that he did not think that in the conduct of his office he was required to close at 4:45 and transact no further business of a public nature.
It has been held that a public official is not subject to a duty to keep his office open after regular and reasonable closing hours for the purpose of receiving nomination petitions. State, ex rel. McQuesten, v. Hinkle, 130 Wash 525 (228 P 299). It must be said, however, that there is no unanimity of decisions on the question. If in the instant case the county clerk, had accepted the. petitions tendered to bim by plaintiff and had duly filed them, the weight of authority clearly supports the view that such action would have been legal and proper. Cosgriff v. Board of Election Commissioners of the City and County of San Francisco, 151 Cal 407 (91 P 98); Grant v. Lansdon, 15 Idaho 342 (97 P 960); In re Norton, 34.App Div 79 (53 NTS 1093). In 18 Am Jur, p 263, it is said :
“Nomination papers are on time if filed at any time tip to midnight of the last day of the specified number, in the absence of any regulation to the contrary.”
It may fairly be said that each decision dealing with the matter in issue has turned on the facts involved and the language of pertinent statutory or constitutional provisions. Assuming that the county clerk might properly have accepted the petitions from the plaintiff, the precise question for determination here is whether it was his clear legal duty to do so. Under the facts as disclosed by the record before us, we think that such question should be anr swered affirmatively. The clerk did not refuse to receive the petitions because the door to his office had been closed. It is apparent that he was ready and willing to reopen the office for the transaction of any business that he considered within the limits of his authority. The mistaken belief as to the application of the statutory 4 o’clock “deadline” should not be permitted to defeat plaintiff’s right to file his petitions. It is our conclusion that the clerk should have received them for filing and subsequent examination and checking.
The record in the case does not disclose affirmatively that the petitions tendered by plaintiff were in proper form or that they contained the required number of signatures of qualified voters. Unless they complied with the requirements of the Constitution in these respects, plaintiff is obviously not entitled to have his name printed as a candidate for nomination on the nonpartisan ballot to be used at the August 5th primary election. It appears that when the petitions were left with the clerk on July 5th they were placed in a suitable container which was sealed. Under the record here it cannot be said that they are, or are not, sufficient to entitle plaintiff to the relief sought.
An order will enter directing the defendants to receive, examine and check the petitions in question. If it is determined that they are sufficient as to signatures and are in proper form, the defendant election commission will cause the name of the plaintiff to be printed on the ballot, following- certification by the county clerk. If the issue is not determined in plaintiff’s favor, then the relief sought by him is denied. In the event that further action by this Court is found necessary, either party to the case may apply therefor. Inasmuch as the matters involved herein are of public concern, no costs are allowed.
Dethmers, Bushnell, Sharpe, and Reid, JJ., concurred.
Butzel and Boyles, JJ., and the late Chief Justice North did not sit.
See CL 1948, § 145.1 et seq. (Stat Ann and Stat Ann 1951 Cum Supp § 6.1 et seq.). Amendments thereto, other than by PA 1952, No 171, effective April 24, 1952, which fixed the date of the primary election herein referred to, are not material to any issue in the instant case.
This aet added section 22 to chapter 3 of part 3 of PA 1925, No 351. It was amended by PA 1943, Nos 31, 86; PA 1945, No 90. It is CL 1948, § 157.22 (Stat Ann 1951 Cum Supp § 6.141 [1]).— Reporter. | [
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Starr, J.
Plaintiff and defendant were married in October, 1936, and two children were born of the marriage. In July, 1941, plaintiff began divorce proceedings and in February, 1942, obtained an uncontested decree granting her an absolute divorce and custody of their two children. The decree also granted plaintiff alimony of $20 a week for the' support of herself and the children until they were 17 years of age or until the further order of the court. At the time the decree was entered, defendant was earning $70 or more a week.
In July, 1943, defendant was notified of his induction into the armed forces, and with the permission of his draft board he enlisted in the navy. On July 26,1943, he filed a petition to amend the divorce decree so as to reduce the weekly alimony allowance and to remove the two children from plaintiff’s custody. Testimony was taken indicating that as a second-class petty officer in the navy, he would receive base pay of $96 per month and a family allowance of $37.50 per month, or a total of $133.50. It also appeared that if he was in overseas service, he would receive an additional 20 per cent, of his base pay, or $19.20 per month.
Plaintiff testified that she had worked a short time in a beer garden at a wag’e of $15 a week; that she was not working at the time of the hearing; and that she had no property or income aside from the alimony allowance. There was some testimony which did not reflect credit on plaintiff’s personal conduct, but which was clearly not serious enough to justify removing’ the children from her custody.
The friend of the court, who was called as a witness by defendant, testified 'that she had made no personal investigation in this case but had written to the friends of the court in two cities. Defendant sought to question her regarding information contained in the replies to her letters. The trial court properly ruled that such information was hearsay and should be excluded. The friend of the court did not “report the result of his findings in writing” as required by 3 Comp. Laws 1929, § 12785, as amended by Act No. 306', Pub. Acts 1939 (Comp. Laws Supp. 1940, § 12785, Stat. Ann. 1943 Cum. Supp. § 25.173).
The trial court entered an order denying defendant’s petition to amend the decree, and he appeals from such order. We consider the case de novo.
Defendant’s base pay and family allowance amounted to $133.50 a month, and the alimony allowance of approximately $85 a month left him a balance of nearly $50 a month. As he will have little necessary expense while in the navy, this balance should be sufficient for his personal needs. The record does not show whether the family allowance to defendant of $37.50 a month will be paid to him or to plaintiff. We hold that all sums which may be paid directly to plaintiff for the benefit of herself and the children should be credited on the alimony allowance of $20 a week.
The modification of the decree was within the trial court’s discretion, and we have repeatedly held that we will not interfere with the exercise of such discretion unless it has been abused. Stein v. Stein, 303 Mich. 411; Schuch v. Schuch, 299 Mich. 539; Barry v. Barry, 291 Mich. 666; Wood v. Wood, 288 Mich. 14. Under the facts and circumstances shown in the present case, there was no abuse of discretion in continuing the alimony allowance of $20 a week.
Defendant failed to show such a change in the condition and circumstances of the parties as would justify modification of the decree as to alimony and the custody of the children. Sims v. Sims, 298 Mich. 491; Foltz v. Foltz, 281 Mich. 179.
The order of the trial court denying defendant’s petition to amend the decree is affirmed. In view of the financial condition of the parties/no costs are allowed.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Boyles, J.
The defendant was convicted of a felony on an information .alleging that the defendant “heretofore to wit on the 16th day of August, 1942, at the city of Muskegon, in the county of Muskegon, aforesaid, did then and there, feloniously and wilfully employ upon the person of Margaret Holstein, a pregnant woman, a certain instrument, to wit: a catheter,” with intent to produce a miscarriage.
The section of the penal code (Act No. 328, § 14, Pub. Acts 1931 [Comp. Laws Supp. 1940, § 17115- 14, Stat. Aim. § 28.204]) under which this charge was laid is as follows:
“Any person who shall wilfully administer to any pregnant woman any medicine, drug, substance or thing whatever, or shall employ any instrument or other means whatever, - with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall be guilty of a felony.”
On appeal the defendant claims that the court erred in denying defendant’s motion for a directed verdict on the ground that the proofs failed to establish that Margaret Holstein was a pregnant woman on the 16th day of August, 1942.
The defendant admitted using a catheter upon the person of Margaret Holstein on the 16th day of August but the defense is that she was not then a pregnant woman. There was testimony to show that Mrs. Holstein found that she was pregnant about the 1st of July, that she herself attempted to produce a miscarriage about the 6th or 7th of July but made no further attempt. She testified that the defendant employed a catheter upon her person and attempted to produce a miscarriage by that means, on the 14th of August; that she paid the defendant $20 on that occasion, and another $20 on the 15th. There was testimony to submit to the jury to show that Mrs. Holstein was pregnant on August 14th and that the defendant used a catheter upon her person at that time with intent to procure a miscarriage.
The time when the illegal operation was performed is not an essential element of the offense, except to the extent of showing that Mrs. Holstein was pregnant at the time the illegal operation was performed. The time of the offense was alleged under a videlicet in the information and it was sufficient to establish that the offense occurred on the 14th. People v. Dieterich, 142 Mich. 527; People v. Leneschmidt, 260 Mich. 671. In People v. Whittemore, 230 Mich. 435, the court said:
“A videlicet avers a date tentatively, and unless a particular day or date is essential to a crime there is no variance if the evidence shows that the very crime charged was actually committed on a different date.”
Chapter 7, § 45, of the code of criminal procedure (3 Comp. Laws 1929, § 17259' [Stat. Ann. § 28.985]) provides:
“The indictment or information shall contain: * # *
“2. The time of the offense as near as may be but no variance as to time shall be fatal unless time is of the essence of the offense.”
Chapter 7, § 51 (3 Comp. Laws 1929, § 17265 [Stat. Ann. •§ 28.991]), provides:
“Except insofar as time is an element of the offense charged, any allegation of the time of the commission of the offense, whether stated absolutely or under a videlicet, shall be sufficient to sustain proof of the charge at any time before or after the date or dates alleged, prior to the finding of the indictment or the filing of the complaint and within the period of limitations provided by law: Provided, That the court may on motion require the prosecution to state the time or identify the occasion as nearly as the circumstances will permit, to enable the accused to meet the charge.”
No motion was made to require the prosecution to furnish a bill of particulars or more definitely state the time or identify the occasion.
While not necessary, if the prosecution had asked leave to amend, the court could have permitted an amendment as to the alleged date of the offense. People v. Lee, 307 Mich. 743. The trial court charged the jury, in effect, that it was necessary for the prosecution to prove that the offense was committed on the 16th. This was at least as favorable to the defendant as she could expect. There was testimony, medical and otherwise, tending to show that the illegal operation performed by the defendant on August 14th was not entirely successful in procuring a miscarriage, that, the defendant herself believed that Mrs. Holstein was still pregnant at that time, and that the operation admittedly performed by the defendant on August 16th was with the intent to procure a miscarriage. There was an issue of fact which the court properly submitted to the jury and the court did not err in denying defendant’s motion for a directed verdict or for a new trial.
Conviction affirmed.
North, C. J., and Starr, Wiest, Btjtzel, Bushnell, Sharpe, and Reed, JJ., concurred. | [
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Starr, J.
Plaintiff appeals from a circuit court judgment affirming an award of unemployment com pensation benefits by tbe appeal board of defendant commission.
Tbe facts are stipulated. Plaintiff, a' Michigan corporation, is engaged in the wholesale baking business in the city of Lansing. Prior to July 1, 1941, the United Bakery & Confectioners Workers, affiliated with the United Retail & Wholesale Workers of America, C. I. 0., attempted to organize the employees of plaintiff company into a union. The union representatives and plaintiff’s officials conferred on several occasions regarding’ a collective bargaining agreement as to hours of work, wages, seniority, and other conditions of employment. Such negotiations failed, and on July 1, 1941, 16 union members of plaintiff’s 98 employees stopped work and went on strike. Such strike interrupted plaintiff’s baking operations for a period of only about 15 minutes. It immediately hired new employees, and after July 1st there was no further interruption or stoppage of its work and operations. On July 2d it notified each of the 16 striking employees, by letter, that “due to your participation in the strike it has been necessary to replace you with a new employee.” The union established a picket line at plaintiff’s plant and continued such picketing until about September 16th.
Eleven of the 16 striking employees filed claims with defendant commission for unemployment compensation benefits for the period from July 8 to July 22,1941. The commission issued its determination allowing such claims, and plaintiff appealed to the referee, who affirmed the allowance. The appeal board of the commission affirmed the referee’s decision, and, upon review by certiorari, the circuit court entered judgment affirming the appeal board. Plaintiff appeals from such judgment.
This case, involving the question of the qualification of the claimants to receive unemployment bene fits, requires an interpretation of Act No. 1, § 29, subd. (c), Pub. Acts 1936 (Ex. Sess.), as amended by Act No. 364, Pub. Acts 1941, effective July 1, 1941 (Comp. Laws Supp. 1942, § 8485-69, Stat. Ann. 1941 Cum. Supp. § 17.531) (further amendments of said section 29 by Act No. 18, Pub. Acts 1942 [2d Ex. Sess.], and by Act No. 246, Pub. Acts 1943, are not involved in the present case). Prior to the 1941 amendment, said section 29 (c) of the 1936 act, as then last amended by Act No. 324, Pub. Acts 1939, and designated therein as section 29 (d), provided in part:
“An individual shall be disqualified for benefits # * #
“(d) For any week with respect to which his total or partial unemployment is due to a labor dispute which is actively in progress in the establishment in which he is or was last employed.”
The 1941 act amended said section 29 to read in part as follows:
“An individual shall be disqualified for benefits # m *
“(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. ’ ’
To summarize, section 29 (c) of the 1936 act disqualified an employee for benefits if his unemployment was “due to a labor dispute * * * actively in progress in the establishmentThe 1941 amendment of said section disqualifies an employee for benefits if his unemployment is “due to a stoppage of work existing because of a labor dispute in the establishment.” Plaintiff contends that the phrase of the amendment, “stoppage of work,” means the work or employment of the individual employee. Under such contention plaintiff argues that by stopping their work and going on strike, the claimants disqualified themselves for benefits. Defendant contends, as held by the circuit court, that such phrase means the stoppage of the operations or work of the employer establishment.
The constitutionality of State social security acts, which include provisions for unemployment compensation, were upheld, in general, in Carmichael v. Southern Coal & Coke Co., 301 U. S. 495 (57 Sup. Ct. 868, 81 L. Ed. 1245, 109 A. L. R. 1327), and Helvering v. Davis, 301 U. S. 619 (57 Sup. Ct. 904, 81 L. Ed. 1307, 109 A. L. R. 1319).
In construing the 1941 amendment of section 29 (c), we should ascertain and give effect to the intention of the legislature. In re Chamberlain’s Estate, 298 Mich. 278; City of Grand Rapids v. Crocker, 219 Mich. 178. It may be presumed that by the 1941 amendment the legislature intended to change the meaning of the existing law. In 59 C. J. p. 1097, § 647, it is stated:
“It will be presumed that the legislature, in adopting the amendment, intended to make some change in the existing law, and therefore the courts will endeavor to give some effect to the amendment. So a change of phraseology from that of the original act will raise the presumption that a change of meaning was also intended.”
In said 1941 amendment of section 29 (c), the legislature adopted the identical provision used in the unemployment statutes of many other States to impose disqualification for unemployment benefits. See Social Security Yearbook 1940, p. 64 et seq. In the English National Insurance Act of 1911 (Statutes 1-2, Geo. V, chap. 55, § 87, as amended), the same provision is used to impose benefit disqualification. The construction placed upon similar statutory provisions by the courts of other States affords us guidance in interpreting such amendment. In re Cox’s Estate, 284 Mich. 628 (117 A. L. R. 1224); Stellwagen v. Wayne Probate Judge, 130 Mich. 166.
A provision of the Nebraska unemployment insurance law (Nebraska Comp. Stats. Supp. 1939, § 48-705 [d]) was considered and construed in Magner v. Kinney, 141 Neb. 122 (2 N. W. [2d] 689). In holding that the phrase “stoppage of work” meant the work or operations of the employer establishment and not the work of the individual claimant as an employee, the court said in part, p. 128:
“The next question for our consideration is the challenge to the interpretation given by the district court to the words of the statute, section 48-705: ‘An individual shall be disqualified for benefits * * * (d) For any week with respect to which the commissioner finds that his total unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed.’ * * * The district court construed this language to mean ‘that the term “stoppage of work,” which appears in subsection (d) of section 48-705, Comp. St. Supp. 1939, refers to an existing condition at the former place of employment on the date of the claims and not to the original cause of any claimant’s unemployment.’ In other words, the technical meaning of the term, ‘ stoppage of work, ’ as used in our disqualification clause, is a substantial curtailment of work in an establishment, not the cessation of work by the claimant or claimants.
“The language of our unemployment compensation law quoted above was a substantial reenactment of the English national insurance act of 1911. See Statutes 1-2, Geo. V, chap. 55, § 87, which was amended in 1924 by section 4 (1), cbap. 30, Statutes 14 — 15, Geo. Y. This language, it appears, had received a settled construction by the English authorities charged with the administration of this English act long prior to the adoption of it by ourselves. ’ ’
See, also, In re Steelman, 219 N. C. 306 (13 S. E. [2d] 544).
In the present case, in holding that the claimants were not disqualified from receiving benefits, the circuit court said in part:
“Under the présent form of the statute, the disqualification to receive benefits is not imposed on the employee unless a stoppage of work results from the labor dispute. On behalf of plaintiff it is contended that the language used in the amended act should be construed as having reference to the status of the employee. However, such interpretation would make the phrase ‘stoppage of work’ practically synonymous with ‘unemployment’ as used in the same sentence. Furthermore such interpretation would, as a practical proposition, leave the amendment without significance. The decisions dealing with this matter, both in England and in this country, uniformly support the construction accepted by the appeal board. It must be assumed that the legislature made the amendment of 1941, using the language quoted, in the light of prior judicial and administrative interpretation.”
We cannot agree with plaintiff’s argument that the circuit court’s construction of section 29 (c), as amended, is in conflict with the declaration of public policy stated in section 2 of the 1936 act. Said section provides in part:
“Declaration of policy. The legislature acting in the exercise of the police power of the State de clares that the public policy of the State is as follows ; * * * The systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment by the setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own, thus maintaining purchasing power and limiting the serious social consequences of relief assistance, is for the public good, and the general welfare of the people of this State.”
Plaintiff’s argument is based upon tno assumptions that the claimants were wrongfully on strike; were not justified in striking; that the strike was their own fault; and that they were unemployed because of their own fault. As stated in said section 2, the basic purpose of the unemployment compensation law is to afford protection against the hazard of unemployment. The payment of unemployment benefits is not dependent upon the merits of a labor controversy, and we cannot establish a rule that in all instances an employee on strike is unemployed necessarily because of his own fault. The amendment of section 29 (c) is not, we believe, in conflict with the policy of the act. Furthermore, the legislature had the power to adopt the amendment and, if a conflict with said section 2 resulted, the amendment must control. As said in People v. Johnson, 270 Mich. 622, 624, “amendments dominate and modify the former law, in case of conflict.” In the case of In re Steelman, supra, in which a similar statutory enactment was involved, the court said, pp. 310, 311:
“The appealing employee-claimants take the position that the interpretation of this section is perforce controlled by the declaration of policy contained in section .2 of the act, the general designation of workers there selected for benefits being those who are ‘unemployed through no fault of their own.’ The commission and the court below thought otherwise. They followed the usual aiid accepted rule of construction that ‘where a statute expresses first a general intent, and afterwards an inconsistent particular intent, the latter will be taken as an exception from the former and both will stand. ’ 1 Lewis ’ Sutherland on Statutory Construction (2d Ed.), § 268; Rodgers v. United States, 185 U. S. 83 (22 Sup. Ct. 582, 46 L. Ed. 816). * _ *
_ “Indeed, it may be doubted whether any serious conflict exists in the present law between the general intent expressed in the declaration of policy and the particular intent found in section 5 (d) of the act. School Commissioners, City of Charlotte, v. Board of Aldermen, 158 N. C. 191 (73 S. E. 905). It is a recognized principle of statutory construction, that when words of general import, the subject of a statute, are followed by words of particular or restricted import relating to the same subject matter, the latter will operate to limit or to restrict the former. Nance v. Railway, 149 N. C. 366 (63 S. E. 116); Orinoco Supply Co. v. Masonic Eastern Star Home, 163 N. C. 513 (79 S. E. 964). The end of all construction is to discover and to effectuate' the legislative intent. Abernethy v. Board of Commissioners of Pitt County, 169 N. C. 631 (86 S. E. 577).”
We are convinced that by the 1941 amendment of section 29 (c) the legislature intended to disqualify an employee for benefits only when his unemployment resulted from a stoppage or substantial curtailment of the work and operations of the employer establishment because of a labor dispute. The phrase “stoppage of work” refers to the work and operations of the employer establishment and not to the work of the individual employee.
Plaintiff relies upon the case of Board of Review v. Mid-Continent Petroleum Corp., 193 Okla. 36 (141 Pac. [2d] 69), in which the holding was contrary to that in Magner v. Kinney, supra. In considering a provision of the Oklahoma unemployment compensation law similar to the 1941 amendment of section 29 (c), the court said:
“Had the legislature intended to refer to the shutdown of the plant and not to the cessation of work by the employee, the term ‘stoppage of operation’ would have been far more appropriate. It seems to us that the word ‘work’ ordinarily refers to or comprehends the activities of the workman, not the operation of a factory. That portion of the act * * * which disqualifies a workman for benefits ‘for any week in which * * * his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at, the factory’ refers, with respect to the workman, to his unemployment and to his stoppage of work. A strike in the labor sense is generally defined as a stoppage of work by common agreement of workingmen. 15 C. J. S. p. 1008, § 11. That was the definition evidently in the mind of the legislature; the term ‘stoppage of work’ was considered as synonymous with ‘strike.’ ”
We call attention to the dissenting opinion in the above Oklahoma case which states, in substance, that benefits should be paid to the employees if there was no stoppage of the employer’s work or production. Such dissent states in part:
“In 1941, the legislature again decided to change its policy. It provided disqualification for benefits ‘for any week with respect to which the commission finds that his unemployment is due to a stoppage of work which exists at the factory, establishment or other premises at which he is or was last employed, because of a labor dispute.’ The parties herein virtually admit that a striking employee could recover under that act if the employee were not otherwise disqualified and there was no stoppage of production.”
The majority opinion of the Oklahoma court is based upon its interpretation of the phrase “stoppage of work” as being synonymous with the word “strike.” We cannot agree with such interpretation which is contrary to the clear meaning and import of the words used. Plaintiff also cites Miners in General Group v. Hix, 123 W. Va. 637 (17 S. E. [2d] 810), which involved a statute similar to the 1941 amendment of section 29 (c). However, the factual situation presented in that case distinguishes it from the case at hand. Furthermore, such case did not involve the question as to whether or not claimant employees should he disqualified for, benefits where there was no stoppage of the employer’s work or production. The case of Bodinson Manfg. Co. v. California Employment Comm. (Cal. Dist. Ct. of App.), 101 Pac. [2d] 165 (affirmed, 17 Cal. [2d] 321 [109 Pac. (2d) 935]), cited by plaintiff and also cited in the Mid-Continent Petroleum Corporation Case, supra, involved an entirely dissimilar statute which did not contain the phrase “stoppage of work.” Our decision in Chrysler Corp. v. Smith, 297 Mich. 438 (135 A. L. R. 900), did not involve the interpretation of the 1941 amendment of section 29 (c).
Plaintiff further contends that the circuit court’s construction of the 1941 amendment, which construction we have hereinbefore affirmed, renders said amendment unconstitutional as denying plaintiff employer due process and equal protection of law. Under such contention plaintiff argues that the circuit court’s construction results in arbitrary discrimination between employers by classifying them on the basis of (1) those who elect to stop work and close down and (2) those who do not elect to stop work or close down during a strike. The amendment, as construed, does not so classify employers. All employers who are similarly affected “because of a labor dispute” are treated alike. Under the amendment, as construed, employees are disqualified if the labor dispute results in a stoppage of the employer’s work, and they are not disqualified if the labor dispute does not result in such stoppage. This is a reasonable means of determining qualification for benefits and does not result in arbitrary or unjust discrimination between employers. In the case of In re Steelman, supra, the court said, p. 310:
“It thus appears that the State seeks to be neutral in the labor dispute as far as practicable, and to grant benefits only in conformity to such neutrality. Of course, it is recognized that in a matter of this kind, some allowance must be made in fixing the line or point of difference between granting and withholding benefits during the stoppage of work caused by a labor dispute. Atlas Supply Co. v. Maxwell, 212 N. C. 624 (194 S. E. 117). ‘But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark’ — Mr. Justice Holmes in Louisville Gas & Electric Co. v. Coleman, 277 U. S. 32 (48 Sup. Ct. 423, 426, 72 L. Ed. 770). The wisdom or impolicy of such decision belongs to the legislative, and not to the judicial, department of the government. United States v. Darby, 312 U. S. 100 (61 Sup. Ct. 451, 85 L. Ed. 609, 132 A. L. R. 1430).”
We are satisfied thát the 1941 amendment of section 29 (c), as construed by the circuit court, does not result in an arbitrary or unjust classification of, or in discrimination between, employers involved in a labor dispute.
Under its contention of unconstitutionality, plaintiff further argues that, because the employer’s contribution to the unemployment compensation fund is determined upon a variable tax rate based upon the employer’s experience record (Act No. 1, § 19, Pub. Acts 1936 [Ex. Sess.], as last amended by Act No. 364, Pub. Acts 1941 [Comp. Laws Supp. 1942, § 8485-59, Stat. Ann. 1942 Cum. Supp. §17.520]), the payment of unemployment benefits to employees on strike, without a judicial determination of the merits of the labor controversy,,constitutes an arbitrary intervention by the State in aid of one party to the controversy. In other words, plaintiff claims that the 1941 amendment of section 29 (c), as construed, is unconstitutional because it does not base disqualification for benefits upon a determination of the merits, of the labor dispute resulting in unemployment, and because it imposes a penalty against the employer, which constitutes an intervention by the State in behalf of the employees in the labor dispute. In Chrysler Corp. v. Smith, supra, Mr. Justice Wiest approved the following statement by the appeal board, pp. 446, 447:
“All interested parties who are involved in a claim for unemployment compensation * * * must be dealt with on an impartial basis. The unemployment compensation fund should never be used to finance claimants who are directly involved in a labor dispute, nor should it ever be denied to claimants who are legally entitled to receive benefits. * * * None of the money accumulated in this fund should ever be disbursed for the purpose of financing a labor dispute nor should it be illegally withheld for the purpose of enabling an employer to break a strike. The State of Michigan, in so far as this act is concerned, must remain neutral in all, industrial controversies. ’ ’
Plaintiff’s argument is based upon the premise that the payment of compensation to employees on strike is a penalty upon the employer, because its rate of contribution to the unemployment fund will thereby be increased. The public purpose of the unemployment compensation, law is to alleviate the distress of unemployment, and the payment of benefits is not conditioned upon the merits of the labor dispute causing unemployment. Likewise, the required contribution of the employer to the unemployment compensation fund is not determined upon the basis of the merits of the dispute. The increase in the amount of the employer’s contribution to the fund because of its experience record of payments to employees is not in any sense a penalty. By the unemployment compensation act, the legislature provided a method of determining the employer’s contribution to the compensation fund, and it did not see fit to base the amount of such contribution upon the merits of a labor dispute or upon the right or wrongdoing of the employer in connection with such dispute. Such' legislative enactment is presumed to be constitutional unless the contrary clearly appears. In the case of Cady v. City of Detroit, 289 Mich. 499, 505, we said:
“A statute will be presumed to be constitutional by the courts unless the contrary clearly appears; and in case of doubt every possible presumption not clearly inconsistent with the language and the subject matter is to be made in favor of the constitutionality of legislation. * * * Every reasonable presumption or intendment must be indulged in favor of the validity of an act, and it is only when invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution that a court will refuse to sustain its validity.”
In Sullivan v. Michigan State Board of Dentistry, 268 Mich. 427, Mr. Justice Butzel stated as follows:
■ “Even if the law could be construed in two ways, one consistent with the constitutionality, and the other inconsistent therewith, the former will be considered as the one presumptively intended by the legislature. Motz v. City of Detroit, 18 Mich. 495; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; Attorney General v. Railway, 210 Mich. 227.”
“A legislature is not bound to tax every member of a class or none. It may make distinctions of degree having a rational basis, and when subjected to judicial scrutiny they must be presumed to rest on that basis if there is any conceivable state of facts which would support it.” Carmichael v. Southern Coal & Coke Co., supra, p. 509.
We agree with the circuit court who, in affirming the decision of the appeal board, said in part:
“The legislature has seen fit to make the actfial stoppage of work in the establishment concerned the controlling feature in determining whether the employee is disqualified from demanding and receiving unemployment compensation.”
We conclude that in the present case the payment of unemployment benefits to claimant employees would not result in a penalty against plaintiff and would not constitute an intervention by the State on behalf of the employees in the pending labor dispute. The payment of such benefits is not dependent upon a determination of the merits of the dispute. The 1941 amendment of section 29 (c), as construed, does not deny plaintiff due process or equal protection of law, and we hold such amendment to be constitutional.
Much of plaintiff’s briefs is devoted to arguing the wisdom of the 1941 amendment. As it is not within our province to consider or to determine the wisdom or policy of legislative enactments, such arguments might better have been addressed to the legislature.
The judgment of the circuit court is affirmed. Public questions being involved, no costs are allowed.
North, C. J., and Bushnell, and Sharpe, JJ., concurred with Starr, J.
Comp. Laws Supp. 1940, § 8485-42, Stat. Ann. 1942 Cum. Supp. § 17.502. — Reporter.
See U. S. Const. am. 14; Mich. Const. 1908, art. 2, §16. — Reporter. | [
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Butzel, J.
Plaintiff, as receiver of the First National Bank-Detroit, secured a deficiency decree of $3,652.14 against Rose Aronofsky in the United States court for the eastern district of Michigan and' subsequently filed a claim based thereon against her estate in the probate court for Wayne county. The claim was duly allowed. In the claim filed, the estate is described as that of Rose Aronofsky, alias Rose Aronovsky, Aronowsky, or Minkovsky, deceased. The deficiency judgment had been rendered against Rose Aronofsky. In the petition to appeal to the circuit court signed by Dr. Goldsmith, the administrator, and also in the affidavit of his attorney, the estate is also described as that of Rose Aronovsky, also known as Rose Aronofsky, Rose Aronowsky or Minkovsky.
A judgment for the full amount of the claim was entered in accordance with the verdict of the jury ■in the circuit court. The administrator, as the appellant in this court, claims the receiver did not prove by sufficient evidence that the judgment debtor in the Federal court was the same as the person who subsequently died and against whose estate the claim was allowed. Rose Aronofsky became liable for a mortgage debt when, upon becoming grantee of property described as 8762-8764 Cameron avenue, Detroit, Michigan, she assumed a mortgage against the property. Upon opening a savings account at a nearby bank a few months after she bought the property, she gave her residence as 8762 Cameron avenue, and because of her inability to write, she impressed her finger prints on the signature card. A number of years later, she opened an account at a different bank under the name of Rose Minkowski and gave her address as 8780 Cameron avenue. Again she impressed her finger prints on the deposit card. It was shown that the finger prints on the two cards were identical; in fact, the proceeds of the Minkowski bank account were inventoried' and received by the administrator as part of the assets of the estate of Rose Aronofsky. It was further shown that she moved from 8762 to 8780 Cameron avenue in 1935, or thereabouts, after the bank had taken over the property shortly after the foreclosure of the mortgage. It was shown further that the estate of Rose Aronofsky received the proceeds of a policy in the Metropolitan Life Insurance Company which had been issued to her in that name and which gave her address as 8775 Cardoni but in the request for reinstatement she gave her address as 8762 Cameron. The records of the Metropolitan Life Insurance Company show that she had lived at 8762 Cameron.
While the appellant at the trial sought to draw certain inferences from the business dealings between the receiver and decedent, both before and after the rendition of the deficiency decree, he does not attach any importance to such inferences in his brief. We shall not further review the testimony. It is so overwhelmingly in favor of the plaintiff that if the jury had rendered a vérdict for defendant, we unhesitatingly would have set it aside as against the great weight of the evidence. The testimony preponderates in favor of plaintiff, not against him.
The sole other claim of error is the fact that the commissioner on claims of the probate court, when called by defendant in order to produce the original claim as filed, was asked on cross-examination by the attorney for plaintiff whether he allowed the claim. The trial in the circuit court is de novo and the judge should have sustained the objection which was timely made by defendant. As we stated in Re Turner’s Estate, 217 Mich. 359:
“Upon such appeal the case was tried de novo, and the issue, and the only issue, was the liability of the estate. What the award of the commissioners was and upon what they based their award were not questions to be disposed of on this general appeal from their allowance. ’ ’
However, the error complained of was harmless in view of the fact that the other evidence properly introduced was so overwhelmingly in favor of plaintiff that there could be no question about defendant’s liability. Defendant practically offered no testimony contradicting that of plaintiff. Under the circumstances, the error complained of was harmless and did not result in a miscarriage of justice. Miskiewicz v. Smolenski, 249 Mich. 63; Cook v. Vineyard, 291 Mich. 375.
Judgment affirmed, with costs to plaintiff.
North, C. J., and Starr, Wiest, B'itshnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Wiest, J.
This is a divorce case in which the circuit court granted plaintiff a decree on the grounds of drunkenness and extreme cruelty of defendant, dismissed her cross bill, divided the real estate and personal property equally between the parties, allowed defendant an attorney fee of $500 and $150 per month permanent alimony. Defendant appeals, claiming the court erred in adjudging her guilty under plaintiff’s charges and, under her cross bill and proofs, plaintiff was gnilty of extreme cruelty and she should have been granted the divorce with a larger share of the real estate and personal property and more permanent alimony. The parties were married in September, 1917, and have a daughter now of mature years and married.
The record has been read with care and the proofs fully sustain the findings of the court. •
Defendant claims she was subject to severe migraine headaches, that aspirin would relieve her but she could not take it except in beer and, therefore, kept a supply of beer on hand. She also claims that when she did not partake of cocktails at dinners attended by herself and her husband he complained she was a “wet blanket” and, therefore, she partook of cocktails and entered into the hilarity of dinners. This habit of taking liquors grew on defendant until she was habitually intoxicated, not only in the home but on occasions when she accompanied her husband to various social gatherings. For instance, on one occasion, plaintiff planned a dinner and theater party for some guests. Defendant was acquainted with the time and place and was to be there. She did not appear until she had been waited for for a long time and when she did come from attending the races she was so intoxicated she had to be led to the table and very soon had to leave and be led to the ladies’ rest room where she vomited.
What we said in Magahay v. Magahay, 35 Mich. 210, applies here:
“We think the evidence in this case shows that the defendant has the habit of indulging in intoxicating liquors so firmly fixed that he becomes intoxicated as often as the temptation is presented by his being in the vicinity where liquors are sold. He either makes no vigorous effort to resist and overcome the habit, or his will has become so enfeebled by indulgence that resistance is impossible. We are therefore of opinion that he is, within the meaning of the divorce laws, an habitual drunkard.”
It would be of no benefit to make an extended recital of the various acts of intoxication of defendant:
Plaintiff was a physician and surgeon, specializing in diseases of the genito-urinary system and neurology, and had a fair practice. Defendant’s intoxication in public was extremely humiliating to him.
We think the court made a proper division of the property rights, real and personal, and we are not inclined under the circumstances of the case to disturb the allowance of permanent alimony. If the allowance for permanent alimony, under subsequent conditions, should be increased the circuit court has power in the premises.
The decree of divorce is affirmed, without cost.
North, C. J., and Starr, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Starr, J.
This case involves the application, by analogy, of the six-year statute of limitations (3 Comp. Laws 1929, § 13976, as amended by Act No. 72, Pub. Acts 1941 [Comp. Laws Supp. 1943,. § 13976, Stat. Ann. 1943 Cum. Supp. §27.605]) to plaintiff’s claim for workmen’s compensation. Such statute provides in part:
“All actions in any of the courts of this State shall be commenced within six years next after the causes of action shall accrue, and not afterward.”
On June 17, 1927, plaintiff sustained injuries arising out of and in the course of his employment and in pursuance of agreement was paid workmen’s compensation of $14 per week for total disability to July 20, 1927. As the department of labor and industry did not approve the final settlement receipt, it could properly consider plaintiff’s petition for review and further compensation filed April 16, 1941. Hurst v. Ford Motor Co., 276 Mich. 405; Weaver v. Antrim Iron Co., 274 Mich. 493. Upon hearing, the deputy commissioner awarded compensation for total disability for the period from April 16,1935 (six years prior to the date on which plaintiff filed petition for further compensation), to January 14, 1937, that being the date of the expiration of the 500-week compensable period. On review, such award was affirmed by the department July 8, 1942. No appeal was taken.
A certificate of the department’s award was filed in the circuit court for Wayne county on August 11, 1942, and judgment was entered for plaintiff in the amount of $1,281 (2 Comp. Laws 1929, § 8452, as amended by Act No. 15, Pub. Acts 1934 [1st Ex. Sess.] [Comp. Laws Supp. 1940, § 8452, Stat. Ann. § 17.187]). On August 24th defendants filed motion to reduce said judgment to the sum of $308, on the ground that the statute of limitations barred instalments of compensation which had accrued more than six years prior to the circuit court proceedings, that is, prior to August 11,1936. The trial court entered order denying defendants’ motion to reduce the judgment, and having obtained leave, they appeal.
Defendants admit liability for compensation for the period from August 11, 1936, to January 14, 1937, but contend that all weekly instalments of compensation which accrued prior to August 11, 1936, are barred by the statute. Plaintiff claims that the statute extended from April 16, 1941, and that he is entitled to compensation, as awarded, from April 16, 1935, to January 14, 1937. The decisive question is whether the statute of limitations extended from April 16,1941, the date plaintiff filed claim for further compensation, or from August 11, 1942, the date the award was filed and judgment entered in circuit court. In the case of Sweet v. Eddy Paper Corp., 303 Mich. 492, 497, we said:
“The award of the department should be limited to a period of six years prior to the date of the filing of the petition (for further compensation).”
See Weaver v. Antrim Iron Co., supra; Hajduk v. Revere Copper & Brass, Inc., 268 Mich. 220; Buzzn v. Muncey Cartage Co., 248 Mich. 64.
Under the facts and circumstances of this case, we conclude that the filing of claim for review and-further compensation on April 16, 1941, tolled the running of the statute and that plaintiff was entitled to compensation from the beginning of the six-year period, that is, from April 16, 1935, to the end of the 500-week compensable period. The department properly applied the statute by limiting its award to such period. The only purpose of the proceedings in circuit court was to collect the department’s award.
We agree with the trial court, who said in part:
“It is my opinion that plaintiff’s right to compensation was determined in the award of the department; that the statute of limitations should have been and was properly applied in the proceeding before the department; that recourse to this court was to facilitate collection of the award.”
The trial court’s order denying defendants’ motion to reduce the judgment is affirmed. Plaintiff shall recover costs.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Dethmers, J.
Plaintiff is a Michigan corporation, manufacturing in Michigan a line of fishing tackle and related equipment. Its products bear its trademark, brand or name. It advertises and sells its products, both in Michigan and nationally, through ordinary distributor, dealer and retail channels in fair and open competition with commodities of the same general class produced by others. Its products are sold and distributed in Michigan by about 500 dealers of whom over 400 have entered into written, so-called fair-trade agreements with plaintiff, pursuant to PA 1937, No 50 (CL 1948, § 445.151 et seq. [Stat Ann 1951 Cum Supp § 19.321 et seq.]), under and in accord with which it has established minimum prices on its products. Plaintiff has such contracts with dealers and has similarly fixed minimum prices in other States under comparable fair-trade laws there in effect.
Defendant is a sporting goods retailer in Detroit. It has not entered into a fair-trade agreement with plaintiff. It willfully and knowingly advertises, offers for sale and sells plaintiff’s branded and trademarked articles at prices below the minimum fair-trade prices known by it to have been fixed thereon by plaintiff. This course of conduct plaintiff seeks to enjoin.
While admitting that it has made such sales, defendant claims that, because it is a nonsigner of a fair-trade agreement, as applied to the facts of this case, enforcement of the act against it would be violative of its rights under the equal protection and due process clauses of the Federal and the due process clause of the State Constitutions and, further, that the transactions in question were in or affected interstate commerce and, for that reason, subject only to Federal and not to State regulation, so that the attempted price fixing by plaintiff violated the Sherman anti-trust law. Plaintiff appeals from an order dismissing its bill of complaint.
The trial court, desiring, as it stated, to dispose of the case solely on what it terms “the broader grounds” of constitutionality under the provisions of the State Constitution, treated the transactions involved, for the purpose of the motion before it, as being exclusively in intrastate as distinguished from interstate commerce. Recognizing that the constitutionality of similar legislation, as applied to signers and nonsigners of fair trade agreements alike, had been upheld in most of the States considering the question, e.g., Bourjois Sales Corp. v. Dorfman, 273 NY 167 (7 NE2d 30, 110 ALR 1411); Max Factor & Co. v. Kunsman, 5 Cal2d 446 (55 P2d 177); Joseph Triner Corp. v. McNeil, 363 Ill 559 (2 NE2d 929, 104 ALR 1435); Ely Lilly & Co. v. Saunders, 216 NC 163 (4 SE2d 528, 125 ALR 1308); Weco ProductCo. v. Reed Drug Co., 225 Wis 474 (274 NW 426); Goldsmith v. Mead Johnson & Co., 176 Md 682 (7 A2d 176, 125 ALR 1339); Johnson & Johnson v. Weissbard, 121 NJ Eq 585 (191 A 873); and by the United States supreme court in Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 US 183 (57 S Ct 139, 81 L ed 109, 106 ALR 1476), the trial court, nevertheless, considered, as do we, that the better reasoned view is that of the Florida supreme court in Liquor Store, Inc., v. Continental Distilling Corp., 40 So2d 371, holding an act of that character unconstitutional. As applied to nonsigners of fair-trade agreements that is the only view consistent with our reasoning in People v. Victor, 287 Mich 506 (124 ALR 316). We there held a statute forbidding the giving of a premium with the retail sale of gasoline unconstitutional under Constitution 1908, ,art 2, § 16, as constituting a deprivation of property without due process of law for the reason that the legisla tion was outside the scope of the police power of the State inasmuch as it bore no reasonable relation to public morals, health, safety or the general welfare. Whether the statute prohibits, despite the absence of any contractual inhibition, the giving of such premium with a retail sale or prohibits the sale, by a nonsigner, of an article below the price fixed by the manufacturer is of small moment. The principle involved and the effect are the same. It is urged, however, that the instant case is distinguishable from the Victor Case in that it .involves not alone the sale by defendant of an article owned by it, but as well “the wrongful appropriation of a person’s property, to-wit, his good will and the recognized value of his trademarks and established brand names.” This is followed by the suggestion that laws prohibiting theft, larceny or conversion do bear a relation to public morals and welfare and that, by the same token, so does the act in question. But is plaintiff’s good will, trade-mark or brand name wrongfully appropriated or stolen by defendant by means of its cut-rate retail sales? It may be that they are adversely affected thereby as, indeed, they would be by a competitor’s placing a better product on the market for less money. Does such adverse effect in and of itself constitute a violation of plaintiff’s rights or a wrongful appropriation of its good will? We think not. Trade-marks and brand names, together with the good will attendant thereon, are protected in certain respects by act of Congress. 15 USCA, § 1051 et seq. The function of a trade-mark is simply to designate the goods as the product of a particular manufacturer or trader and to protect his good will against the sale of another’s product as his; to prevent confusion of the public regarding the origin of goods of competing vendors. It was for that purpose that the law created a protective shield around trade-marks, brand names and the good will connected therewith. See Kroll Bros. Co. v. Rolls-Royce, Ltd., 126 F2d 495; Smith v. Dental Products Co., Inc., 140 F2d 140, certiorari denied, 322 US 743 (64 S Ct 1146, 88 L ed 1576); Hanover Star Milling Co. v. Metcalf, 240 US 403 (36 S Ct 357, 60 L ed 713); United Drug Co. v. Theodore Rectanus Co., 248 US 90 (39 S Ct 48, 63 L ed 141). Defendant’s cut-rate sales have breached no such trade-marlc rights of plaintiff. Plaintiff’s trademark rights do not go as far as urged by it. Sunbeam Corp. v. Wentling (CCA), 192 F2d 7. They do not enable it to sell its cake and have it, too.
In seeking to distinguish this from the Victor Case Mr. Justice Btjtzel emphasizes that the latter involved horizontal price-fixing while here it is vertical. In the cases he cites and the many others on the subject the distinction between vertical and horizontal price-fixing arrangements is made as bearing on the question of whether a monopoly, trust or restraint of trade results and is pertinent to that question alone. The consideration of whether the price fixing be vertical, horizontal, or even diagonal, or whether the regulation relates to all of a certain type of commodity as in Victor, or only to a certain brand thereof as here, although relevant when the question of monopoly needs to be determined, is of no consequence in determining the point of difference between us, namely, whether the statute in question, as applied to nonsigners, bears any reasonable relation to public health, safety, morals or. the general welfare. Neither is any relevancy to the latter question to be found in the interesting contemplation of whether the competition which most benefits the public is that between rival products or between retailers of the same product. If the act does not bear the mentioned relationship, then, as we held in Victor, it cannot be sustained as a lawful exercise of the State’s police power, impairment of defendant’s rights under the due process clause results from its enforcement, and it is our duty to deny such enforcement and brand the act for what it is, unconstitutional.
Mr. Justice Butzel likewise distinguishes the Victor Case in that there the restriction was “automatic by legislative decree,” while here, he states, it results from “voluntary agreement between the manufacturer and dealer.” But defendant never entered into the agreement. As to it, the restriction is as “automatic by legislative decree” as in the Victor Case. The statement that the fair-trade act merely affords legislative protection to private contractual relations, true enough as relates to signers, overlooks the fact that the act ventures further, upon an unchartered sea of enforcement of contracts against those not party thereto. My Brother suggests that defendant’s constitutional rights are riot impaired by the statute because defendant is not obligated to buy or sell plaintiff’s products if it does not desire to adhere to the minimum price fixed by plaintiff and enforced by statute. As much might have been said in the Victor Case in which the defendant was not obligated to engage in the business of buying and selling gasoline if he did not desire to comply with the restrictions of the statute.
Mr. Justice Butzel views the act as a valid exercise of the State’s police power because, as he says, it is aimed at “destructive price cutting” and “the evils of a price war.” Can it be said that by the process of reducing prices either war, destruction or evil are visited upon the public health, safety, morals or the general welfare? (That is the controlling question.) Such is not the concept upon which America’s competitive economy was developed. It is further suggested by my Brother that the act serves, by placing an artificial weight on the one, to equalize the uneven race between the small retailer and the large. While the relationship between that objective and the public health, safety, morals and the general welfare is hardly made to appear, there would be more force to the suggestion if my Brother .did not limit its application, as he must under above noted decisions, to branded and trade-marked goods. Is not the survival of the small retailer made as difficult by the large retailer’s cut-rate sales of bulk, unbranded and nontrade-marked staples as by the like sale of branded and trademarked goods? The difference, if any, is scarcely such as to render the restriction on price-cutting valid in the one instance and invalid in the other. The difference in effect upon the general welfare in the 2 cases is difficult to discern.
Mr. Justice Butzel appears to concede that the business in question is not affected with a public interest and, clearly, it is not. See Chas. Wolff Packing Co. v. Court of Industrial Relations of the State of Kansas, 262 US 522 (43 S Ct 630, 67 L ed 1103, 27 ALR 1280); Williams v. Standard Oil Co. of Louisiana, 278 US 235 (49 S Ct 115, 73 L ed 287, 60 ALR 596). He does not question that, ordinarily, a person has the right to fix the price at which he sells his own property. That such is his right under the due process clause of the Federal Constitution, and that the power of a State legislature to restrict that right is limited to instances in which the business involved is affected with a public interest was held in Tyson & Brother — United Theatre Ticket Offices, Inc., v. Banton, 273 US 418 (47 S Ct 426, 71 L ed 718, 58 ALR 1236); Ribnik v. McBride, 277 US 350 (48 S Ct 545, 72 L ed 913, 56 ALR 1327); Williams v. Standard Oil Co. of Louisiana, supra. The nub of Mr. Justice Butzel’s contention, however, is that, despite that general rule, the minimum price restriction imposed by statute against nonsigners is sustainable as relates to branded and trade-marked articles because it there by protects the good will of the manufacturer; that this is a substantial property right which may be protected by legislative enactment. Against what action may the State protect it? Against theft, slander, simulation and the like, no doubt. The relationship between State action in that • field and public health, safety, morals and the general welfare is obvious and has long been recognized. • The attribute of good will which constitutes the property right which the State may, in certain respects, protect, is not the nebulous something calculated merely to inflate the owner’s ego or satisfy his pride, but, rather, its propensity for producing business or sales. May every injury thereto or adverse effect be prevented by statute? This appears to be Mr. Justice Butzel’s contention. The sales and business accruing to plaintiff by reason of its good will would undoubtedly be affected adversely by the manufacture and sale of a competitive product. Can it be contended successfully that a State statute prohibiting such competition and thus protecting plaintiff’s sales accruing from its good will would bear a reasonable relation to public health, safety, morals and the general welfare? Obviously the answer must be no.
Price-fixing agreements involving or affecting interstate commerce were illegal under the Sherman anti-trust law (26 Stat 209) until certain exceptions were carved out under the amendment of section 1 thereof by the Miller-Tydings act of 1937 (50 Stat 693 [15 USCA, §1]). See Schwegmann Bros. v. Calvert Distillers Corp., 341 US 384 (71 S Ct 745, 95 L ed 1035, 19 ALR2d 1119). In that case it was held that the Miller-Tydings exemption from the operation of the Sherman act applies only to cases of signers of fair-trade agreements, when permissible under local law, but does not extend to cases of non-signers of such agreements; that, lacking, thus, the approval of Congress, the provision of the State statute making the fixed minimum resale price binding' on nonsigners is invalid as relates to interstate commerce. Plaintiff seeks to avoid the effect of that holding on the ground that the transactions here involved are solely in intrastate commerce because they represent the sale by defendant in Michigan of articles manufactured by plaintiff in Michigan. This overlooks the full reach of the Schwegmann decision. In that case plaintiff shipped, from out-state, and sold its product to wholesalers in Louisiana who resold it, in intrastate commerce, to retailers and the latter sold it, in intrastate commerce to retail customers. In denying plaintiff the right to restraint of such retail sales at cut-rate prices the court looked to the effect on interstate commerce of the restraints on the intrastate, retail sales and held the latter, accordingly, subject to the reach of the Sherman act. Similarly, in Sunbeam Corp. v. Civil Service Employees’ Co-op Ass’n (CCA), 192 F2d 572, plaintiff contended that, because defendant conducted only a local business, its retail sales were all in intrastate commerce subject to the State fair trade law and beyond the reach of the Sherman act. There, as in the Schwegmann Case, the goods originally came from without the State but came to rest in the hands of the wholesalers to whom plaintiff had sold, were resold by them in intrastate commerce to retailers and by the latter in intrastate commerce to retail customers. The court held that under the Schwegmann decision the local retail sales so affected interstate commerce as to come within the Federal purview, saying:
“It is the interstate character of Sunbeam’s commerce that is crucial and governing for it is Sunbeam’s price-fixing scheme which constitutes a trade restraint. This is the plan Sunbeam seeks to make nationwide by enforcing the nonsigner provisions of local law in each of the States where a fair-trade act has been established. This marketing plan is quite similar to the one struck down by the supreme court in Dr. Miles Medical Co. v. John D. Park & Sons Co. (1911), 220 US 373 (31 S Ct 376, 55 L ed 502), where the pressure was applied against local stores making local sales.”
To the same effect is Lambert Pharmacal Co. v. Roberts Bros., 192 Or 23 (233 P2d 258). In that case the court said:
“And it is enough to bring the transactions complained of within the scope of the Sherman act that they substantially affect interstate commerce. * * *
“Nor does the fact that price-fixing or price maintenance applies only to intrastate retail sales remove the conduct from the reach of the statute if such conduct be 'an inseparable element of a larger program dependent for its success upon activity which affects commerce between the States.’ United States v. Frankfort Distilleries, Inc., 324 US 293, 297 (65 S Ct 661, 663, 89 L ed 951).”
In the instant case plaintiff has placed in operation a price-fixing scheme, national in scope, of which the Michigan phase is but a part. Success of the attempt at restraint on local sales is dependent upon success thereof as applied to national sales, and. vice versa, so long as plaintiff’s products are in fair and open competition with the products of others manufactured elsewhere than in Michigan. The restraint on local retail sales is a cog in the wheel imposing restraints on national sales. As such it affects interstate commerce and, accordingly, comes within the inhibition of the Sherman act. See 61 Yale Law Journal, pp 381, 396-398, and 46 Illinois Law Review, pp 349, 380-382.
Affirmed, with costs to defendant.
North, C. J., and Carr, Busi-inell, Sharpe, and Boyles, JJ., concurred with Dethmers, J.
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Boyles, J.
This is a chancery suit brought by plaintiffs to cancel a property tax assessed by the city of Detroit for 1942 on their real and personal property. Plaintiffs claim that their property is exempt from taxation because they are educational or scientific institutions. The court held that the property was not exempt from taxation and plaintiffs appeal from a decree dismissing their bill of complaint. There is no dispute as to the basic facts. The parties are at issue only as to permissible inferences to be drawn from the established facts, and the rules of law which should apply.
The applicable provisions of the tax exemption statutes relied upon by plaintiffs are as follows :
“The following real property shall be exempt from taxation: * * *
“Fourth, Such real estate as shall be owned and occupied by library, benevolent, charitable, educational or scientific institutions * * * incorporated under the laws of this State with the buildings and other property thereon while occupied by them solely for the purposes for which they were incorporated.” 1 Comp. Laws 1929, § 3395, as amended by Act No. 125, Pub. Acts 1941 (See Comp. Laws Supp. 1943, § 3395, Stat. Ann. 1943 Cum. Supp. §7.7). (Subsequent amendments in 1942 and 1943 do not bear on the issues here involved.)
“The following personal property shall be exempt from taxation, to-wit:
“First, The personal property of benevolent, charitable, educational and scientific institutions, incorporated under the laws of this State.” 1 Comp. Laws 1929, § 3397, as amended by Act No. 232, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 3397, Stat. Ann. 1943 Cum. Supp. § 7.9).
The building involved in this controversy was dedicated in 1942; the board of assessors and the common council of Detroit denied plaintiffs’ request for exemption from taxation and placed the property on the assessment roll. Plaintiffs now seek reversal of the decree entered in the circuit court, on the same grounds urged before the city authorities or in the lower court, namely, that the Rackham Engineering Foundation and -the Engineering Society of Detroit are scientific institutions or educational institutions within the meaning of the tax-exemption statutes. The burden of establishing the fact rests on plaintiffs and appellants.
In 1933 Horace H. Rackham, a prominent citizen of Detroit, created by will what is known as the Rackham Fund, to be administered for benevolent, charitable, educational, scientific, religious and public purposes. At that time there was in Detroit a Detroit Engineering Society and also local sections of certain national organizations representing various branches of engineering and .science. The Detroit Engineering ■ Society had been in existence about 40 years, with, a membership ranging from 135 to 900 members. It owned a building on Alexandrine avenue, Detroit, for use of its membership and the dozen or more affiliated societies then associated with it. The building had a kitchen and dining room and meetings were held there by its members and those of the associated technical societies. The property was assessed for taxes.
For many years the Society had been hampered by lack of funds and in 1934 or 1935 the Detroit Engineering Society sought aid from the Eackham Fund. The trustees of the Eackham Fund were not satisfied with the status of the old Detroit Engineering Society, so the Engineering Society of Detroit, plaintiff and appellant herein, a nonprofit corporation, was organized in 1936. In June, 1936,.five individuals became incorporated as a nonprofit trustee corporation under the name of the Eackham Engineering Foundation. The main purpose of the Eackham Engineering Foundation was and still is to act as trustee for the Engineering Society of Detroit and to manage and invest the funds which it holds in trust for the benefit of the Society. The Eackham Fund and Mrs. Eackham made donations to the Eackham Engineering Foundation aggregating $1,500,000, and Mrs. Eackham also made a gift to the regents of the University of Michigan and the Foundation of $750,000.
In 1936 the University of Michigan was conducting extension courses in Detroit, which had been hampered by lack of facilities. The Eackham Fund, with Mrs. Eackham, provided additional funds whereby a building was erected on Woodward avenue in Detroit, known as the Horace H. Eackham Educational Memorial Building. The record title to the westerly portion of this building is in the Eegents of the University of Michigan. The city of Detroit did not attempt to assess this portion of the bnilding for taxes and for that reason it is not directly involved in the present controversy. The record title to the easterly portion of the building is in the Rackham Engineering Foundation, as trustee for the benefit of the Engineering Society of Detroit. The title to the personal property therein is also in the Rackham Engineering Foundation. This easterly portion of the building and the personal property therein has been assessed for 1942 city taxes by the city of Detroit, which fact gives rise to the present litigation.
In this easterly portion are facilities used by the Engineering Society of Detroit, including a library, an auditorium, offices, committee rooms, a dining room, kitchen, a cigar stand, bowling alleys, billiard and pool tables. There is also available for the use of the Engineering Society of Detroit a large auditorium and a banquet hall in that portion of the building owned by the University of Michigan. The Engineering Society of Detroit uses and occupies its portion of the building and equipment upon the express condition that if it fails to carry out its purposes or fails to function, or becomes insolvent or is dissolved, its right to the property shall cease and pass to the University of Michigan. The individual and affiliate members of the Engineering Society of Detroit are charged with initiation fees and dues and are subject to suspension for failure to pay the same. It has about 3,700 individual members and 24 affiliate members. Approximately 2,000 of its individual members are not members of the affiliates. These affiliates are mostly local chapters of national organizations and societies, such as American Chemical Society, American Foundrymen’s Association, American Institute of Architects, American Institute of Mechanical Engineers, American Institute of Electrical Engineers, American Society for Metals, American Society of Civil Engineers, American Society of Heating & Ventilating Engineers, American Society of Landscape. Architects, American Society of Mechanical Engineers, American Society of Refrigerating Engineers, American Welding Society, Illuminating Engineers Society, Institute of Aeronautical Sciences, Society of Automotive Engineers.
The Engineering Society of Detroit initiates and carries on programs for its membership, holds regular meetings about once a month, sponsors courses in technical subjects, such as chemistry, and conducts a vocational guidance engineering program for senior high school students. Its facilities are used by public enterprises, such as the Red Cross, U. S. Army, Boy Scouts, bond drives, safety campaigns, civilian defense. In addition, there are activities carried on by the affiliate members, each of which has a meeting about once a month dealing with its particular branch of activity. The largest of these affiliates is the Society of Automotive Engineers which holds general meetings as well as committee meetings. An affiliate known as the War Engineering Board, consisting of 30 outstanding engineers, meets regularly, and other affiliates carry on similar activities. Most of these affiliates had been active for many years in Detroit prior to 1936. The Engineering Society of Detroit has organized an affiliate council consisting of two representatives from each affiliate, the purpose of which is to give unity to the activities of these diverse affiliate organizations.
The scientific equipment of the Engineering Society of Detroit consists of a laboratory table and a library of 400 volumes. The Society does not issue any scientific publications or textbooks, but sometimes an abstract of lectures or speeches is made for its membership but not for the general public. One of the affiliate organizations, the American Chemical Society, put on refresher chemistry lectures to aid its members. The Engineering Society of Detroit itself assumes no responsibility for the lectures presented by its affiliates, has no independent research faculty nor a prescribed course of scientific education. It owns no special scientific equipment, does not itself conduct any research in scientific matters, and has no control over the programs of the affiliates. The only contribution made by the Society to the affiliates is to furnish the building and facilities for their meetings. It has a managing secretary who supervises accounts, prepares notices, and in general handles its own membership matters. The Society’s managing secretary employs two accountants, a receptionist and stenographer, a secretary, a clerk, a librarian, and a part-time employee in the mail room. The Society also employs a building manager who has a staff of about 50 employees. This staff consists of maintenance men, a food steward, cooks, waitresses, pantry girls, vegetable men, general roustabouts, cigar counter cashiers, checkroom girls, pin boys, bowling alley and billiard table caretakers. The building manager and his staff arrange space and restaurant matters for dinners and meetings. The expense of about 12 building maintenance employees is divided equally by the University and the Engineering Society of Detroit. The expense of the rest of the staff is paid by the Society.
The record shows that in a typical busy month, October, 1942, there were 124 meetings of all kinds' in the easterly portion of the building which is used and occupied by the Engineering Society of Detroit. The plaintiff Society had seven meetings, consisting of its regular monthly dinner meeting and committee meetings. Seventy-two of the 124 meetings were held by outside organizations not in any way associated with the Engineering Society of Detroit or any of its affiliates, at 50 of which meetings dinner was served. The remaining 45 meetings were held by the affiliates, at which dinner was usually served. In addition, there were 13 private luncheons and dinners of groups of men associated in a business way with some member of the plaintiff' Society. These private luncheons and dinners were arranged by some member of plaintiff Society. The wives of various members held five meetings, at which meals were served. Of the total number of 124 meetings, 17 were held in the large auditorium or banquet hall of the University of Michigan, 12 of which were dinner meetings. The affiliates as well as most outside organizations pay for the use of the facilities, $5 for using each committee room, $30 for the small auditorium, $50 for the large one. In 1942 the Society received $10,359.25 initiation fees and $55,933.66 for annual dues. During the same year it received $15,347.63 from the Backham Engineering foundation endowment. The total receipts of the Engineering Society of Detroit for the year 1942, outside of initiation fees, including endowment, amounted to $182,576.75. Total disbursements were $179,511.38, showing a net profit of $3,065.37 for 1942. The revenue from food service for the last half of the year 1942 was $50,168.02. The food operation is 100 per cent, the responsibility of the plaintiff Society. Cigars,‘billiards and parking lot showed a net operating loss, bowling a small profit. The food operation requires the services of 30 to 35 people, on the average. Among the dinners or luncheons served in the building by the Society management during the month of October, 1942, selected by plaintiffs as a typical month, were the following:
(October 5) “At 1 p.m. that day, in rooms C and D, the wife of a member of the Engineering Society of Detroit had a luncheon group which, according to the space assigned, would indicate between 30 and 40 people.”
(October 6) “In rooms E, F and G-, at 6:30 that night, the wife of a member of the Engineering Society of Detroit had a dinner. That indicates a rather large meeting. I would say meals for 60 up.”
(October 8) “Rooms C and D, at 12:15, Col. Alden of the S. A. E., had a luncheon in those rooms.
“In E, F and G, at 6:30 p.m., the Detroit Dental Society had a dinner, preceding their meeting in the auditorium. ’ ’
(October 10) “In rooms C and D, there was a 6 o’clock dinner for the Michigan Physiological Society, followed by a meeting. The banquet hall, at 7:30 p. m., was a dinner for the osteopaths.”
(October 12) “In rooms E, F and G, the Michigan Aeronautical Association had a meeting and dinner. ’ ’
(October 13) “Room B, Boy Scouts of America, had a dinner and meeting at 6:30. Rooms C and D was an S. A. E. luncheon. Rooms E, F and G, dinner at 6:30 for A. I. S. E. I am not just sure what that is. The banquet hall was used at 6 o’clock for a dinner for the safety council, preceding their meeting in the auditorium.”
(October 14) “Rooms E, F and G, at 12:30, the Society of Engineers’ Wives had a luncheon and meeting. At 6 p.m., in E, F and G, the Child Education Group had a dinner and meeting. In the banquet hall there was an exhibit by the Chrysler Corporation and a luncheon.”
(October 16) “In room B, at 6 p.m., was a dinner by a member of tbe Engineering Society of Detroit.”
(October 17) “Booms E, F and Gr, at 6:30 was tbe City Housing and Planning Commission, dinner and meeting.”
(October 19) “Boom B, 6:30, member of the Engineering Society for dinner.”
(October 22) “Boom B, tbe U. S. Navy, at 8 p.m. Booms C and D, Torch Club dinner and meeting, at 6:30. Booms E, F and Gr, a dinner for a member of tbe Engineering Society of Detroit.”
(October 24) “Tbe University of Michigan Auditorium, Campfire Grirls met at 1:30. E. S. D. Auditorium, Bed Cross meeting, 10:30. Booms C and D, at 7 p.m., dinner by a member of tbe Engineering Society of Detroit.”
(October 26) “In room B, at 6:30, a dinner by a member of tbe Engineering Society. ’ ’
(October 30) “Boom B, dinner and meeting of tbe Boy Scouts of America. * * *
“Booms C and D, at 6:30 p.m., a dinner by a member of tbe Engineering Society.”
(October 31) “Tbe E. S. D. auditorium, Bed Cross meeting at 10:30. Boom B, Tau Beta Pi meet-' ing at 5. Boom B, there was that Tau Beta Pi meeting and rooms C and D, dinner for that same group.”
An analysis of the real-estate tax-exemption provision of the general tax law (1 Comp. Laws 1929, § 3395, as amended by Act No. 125, Pub. Acts 1941 [See Comp. Laws Supp. 1943, § 3395, Stat. Ann. 1943 Cum. Supp. §7.7], supra), upon which appellants rely, leads to tbe following conclusions:
(1) The real estate must be owned and occupied by the exemption claimant;
(2) The exemption claimant must be a library, benevolent, charitable, educational or scientific institution ;
(3) The claimant must have been incorporated under the laws of this State;
(4) The exemption exists only when the buildings and other property thereon are occupied by the claimant solely for the purposes for which it was incorporated.
The trial judge held that the property in question was owned and occupied by the Engineering Society of Detroit within the meaning of the tax exemption statute, supra. Appellees challenge the correctness of this ruling, and the question is before us because we hear chancery oases de novo. The defendant city claims that the property is not exempt from taxation because it is not both owned and occupied by the Society — that it is owned by the Rackham Engineering Foundation, not a scientific or educational institution, and occupied by the Engineering Society of Detroit but not solely for the purposes for which it was incorporated. The city argues that while the easterly portion of the building (the part assessed for taxes) is owned by the Rackham Engineering Foundation, it is not occupied by the Foundation; and that while it is occupied by the Engineering Society of Detroit, the Society does not own it, wherefore it is not exempt from taxation under the statute. We are not in accord with this position advanced by the city. The Foundation holds the naked title to the property, as trustee for the Engineering Society of Detroit. The equitable title is in the Engineering Society of Detroit for taxation purposes. The Society also is the occupant of the real estate. Real property may be assessed both to the owner and the occupant, and either one is liable for the taxes. 1 Comp. Laws 1929, § 3391 (Stat. Ann. § 7.3); Blackwood v. Van Vleit, 30 Mich. 118; Auditor General v. Women’s Temperance Association of Manistee, 119 Mich. 430; Pioneer Fuel Co. v. Molloy, 131 Mich. 465.
Is the Engineering Society of Detroit either a scientific institution or an educational institution within the meaning of the exemption statutes ? The lower court said “No” and denied tax exemption on that ground. We can find the answer only as a conclusion drawn from the facts. No rule of law can settle the question with certainty, because factual circumstances vary with the case. We have reviewed the 400 pages of testimony adduced by plaintiffs to prove that the Society was a scientific or educational institution. A more complete résumé of the testimony than has been given would accomplish nothing more than add to the uncertainty. Admittedly a close question, the reasoning of the trial court in a lengthy opinion reviewing the testimony is convincing that plaintiffs have not sustained the burden of proof to the extent that we can say with a fair degree of certainty the conclusion of the circuit judge was contrary to the great weight of the evidence. See Colony Town Club v. Michigan Unemployment Compensation Commission, 301 Mich. 107.
We are not in accord with the conclusion of the trial court that the building and other property is occupied by the Engineering Society of Detroit solely for the purposes for which it was incorporated, assuming the fact to be that it was incorporated solely for scientific or educational purposes. Stated in another way, we conclude that under the testimony in the case the building and other property is not occupied by the Engineering Society of Detroit solely for scientific or educational purposes. It may be conceded that the 24 affiliate societies and organizations are essentially scientific or educational institutions. However, the record does not indicate that they are corporations organized under the laws of the State of Michigan, nor is the use and occupancy of the real and personal property by the Society limited to these affiliates. The property is used and occupied by the Engineering Society of Detroit for a variety of benefits to its 2,000 members who are not members of the affiliated societies or organizations and for purposes which are quite foreign to science and education. It may be conceded that the occasional or incidental use of property for dinners, at which the primary object of the meeting was to listen to an address or a discussion of matters pertaining to science or education, need not prevent the property from being exempt from taxation. The use of the property in question is not thus limited. The duties of most of the employees of the Engineering Society of Detroit are not in line with occupancy of the property for scientific or educational purposes. Their duties correspond more closely with those of a staff of employees operating and maintaining a recreational club for the membership. The building is a convenient meeting place for the use of those who are admitted as members, but plaintiffs have failed to establish that its use and occupancy by the Engineering Society of Detroit is so essentially for scientific or educational purposes as to afford the Society an exemption from taxation.
While the use or occupancy of the building for meetings of Red Cross, U. S. Army, Boy Scouts, bond drives, safety campaigns, civilian defense, et cetera, is unquestionably for public purposes and. commendable on that ground, proof of such use does not aid appellants ’ claim that the building is used or occupied for scientific or educational purposes. Use of buildings for public or philanthropic purposes is not essentially use or occupancy for scientific or educational purposes. Appellants in their reply brief claim that: • -
“The dominant public character of the activities of the society entitle it to exemption.
“The record shows that while certain activities of the Society are beneficial to engineers and scientists in the practice of their profession, a substantial part of these activities is a benefit to the public on matters of primary public interest, and that engineers and scientists are giving’ their time and services, and the facilities of the Society in the furtherance of these projects, without stint and without pay. The contributions to the war effort- and to civilian defense are. of this character. This type of activity which is an important part of the Society’s work, makes it unique and entitles it to exemption.”
The plain answer to this claim is that the tax exemption statute does not recognize use or occupancy of a building for the public benefit or public purposes as a ground for exemption from taxes. Such use is obviously commendable, but whether it should entitle the owner or occupant of the building to tax exemption is a legislative matter.
The record shows that personal property was assessed separately from the building but no claim is made that a different rule should apply as to personal property. "We are not convinced that the conclusion reached by the trial court was contrary to the great weight of the evidence.
The decree is affirmed, but without costs, issues of a public nature being involved.
North, O. J., and Starr, Wiest, Butzel, Btjshnell, Sharpe, and Reid, JJ., concurred. | [
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Reid, J.
(dissenting). Plaintiff Mitchell (hereinafter referred to as plaintiff) brought this suit against the defendant to recover for personal injuries with resulting loss of earnings and wages and for pain and suffering and permanent injuries and for damages to plaintiff’s automobile not subrogated and the intervening plaintiff sues for the subrogated damages to plaintiff’s automobile. Defendant denied liability and in his cross-declaration claims dam ages because of injuries to Ms person and resultant expenses for services of physician, surgeons, nurses’ care, hospitalization, X-ray services, medicines, ambulance and other such similar charges, beside lost wages. The jury rendered a verdict in favor of plaintiffs and from the judgment entered thereon, defendant Perkins appeals.
About 6:15 a.m., September 20,1948, plaintiff was proceeding westerly on a trunk line highway known as US-31, at the rate, as he testified, of 35 to 40 miles per hour. Plaintiff testified that when he reached 'a point 200 feet easterly of Getty street, he saw defendant’s car at a point 35 or 40 feet north of'US-31, going southerly 5 or 6 miles per hour., and knew that ■if he, plaintiff, proceeded as h'e was then proceeding 'and the other car continued as it was then going, that there would likely be a collision. Plaintiff'continued Ms course without slackening Ms speed until 'he was about 40 feet easterly of the jjoint where the collision occurred and"'seeing that the' defendant’s car had continued.its course, without, stopping,and 'had- entered the Intersection and knowing that. a. collision was imminent, plaintiff endeavored to' apply his .brakes and to turn his car to. the .left but testified ihat he 'does not'know''whether he succeeded in either decelerating his car or changing its course." Getty street at the point of the intersection is a deadrend street, ending up with its connection on the northerly side of US-31. US-31 is a through street' at the point in question.. . On Getty street,. about 60 feet northerly of the side, line of US-31, there was a 'stojp sign for traffic going south on Getty street. Inevitably traffic going south on Getty street was required to,turn either right or left on arriving at the intersection. Under undisputed facts, defendant was clearly guilty of negligence in entering and proceeding in the intersection.
The court submitted to the1 jury the question of whether plaintiff was guilty of contributory negligence because he did not promptly apply his brakes or sound his horn on noting the approach of defendant’s car.
To contradict plaintiff’s testimony that he first saw defendant’s car when it was 35 or 40 feet north of the intersection, defendant produced a witness, Kenneth Sedgwick, a stenotypist, who testified that he took the statement of plaintiff in stenotype notes and that plaintiff stated:
“Q. About how far would you say, in feet, * * * [he was] from the route you were traveling on?'
“A. Oh, 7 or 8 feet.”
And further,
“Q. When you first saw him 7 or 8 feet from the intersection, how far were you then?
“A. Maybe a couple of hundred feet.
“Q. About 200 feet east, that would be, wouldn’t it?
“A. Yes.”
Upon the giving of this testimony of witness Sedgwick, the following occurred on cross-examination by Mr. Nebel, attorney for plaintiff, to which defendant objects and on which he predicates a claim of error: ■ • ’
“Q. Who was there at the time you claimed that you — that Mr. Mitchell, the plaintiff, was interrogated ?
“Mr. Rogoshi [attorney for defendant] :, I.object to that as incompetent, irrelevant and immaterial.
“The Court: Overruled.
“The Witness: Well, at this time I can only say positively 3 people; the gentleman who I was with to take this statement, and Mr. Mitchell, and myself.
. “Q.- Who was the gentleman that was' with you at the time the statement was taken?
“Mr. Rogoshi: I object to that as incompetent, irrelevant and immaterial and it is an offer for an ulterior motive.
“The Court: I think the objection would be good except that the accuracy of the statement is questioned. You may answer.
“The Witness: Mr. Walter Nagleldrk.
“Mr. Nebel: And who is Mr. Nagleldrk?
“A. He is claims adjuster for the Triple A Insurance.
“Mr. Rogosld: I move for a mistrial. This was intentional and deliberate to inject insurance into the case.
“The Court: No, you injected it in. You called this witness and there is a question of the accuracy of the statement and the question of interest.
“Mr. Rogosld: He is the one who took the statement.
“The Court: I overrule the objection.
“Mr. Nebel: How do you spell the last name of the person with you?
“The Witness: N-a-g-l-e-k-i-r-k.
“Q. Where does he live?
“A. In North Muskegon, that is all I can say.
“Q. Were you employed by him to officiate, to take down what was said there that day?
“A. Yes..
“Q. You didn’t ask any questions yourself?
“A. No.
“Q. What business is Mr. Nagleldrk in?
“A. As I said, he is the claims adjuster for the Muskegon area of the Triple A Insurance Company.”
Plaintiff’s justification for introducing the testimony about the presence of Mr. Nagleldrk, claims adjuster for the AAA Insurance Company, is that Mr. Nagleldrk asked the questions and Mr. Sedgwick is shown thereby to be the servant of the defendant or at least of the defendant’s insurer and therefore an interested witness.
It was permissible to show the interest of the witness Sedgwick and we find no reversible error on this account.
Defendant offered and the court submitted to the jury for their written answer, as part of their verdict, 2 typewritten questions: One, could plaintiff, after he first saw defendant’s automobile approaching the intersection, by the exercise of ordinary care have prevented a collision with defendant’s automobile? Two, did the failure of plaintiff to sound his horn between the time he first saw defendant’s automobile approaching the intersection and the time when defendant’s automobile entered the intersection amount to negligence which proximately contributed to cause the collision in which plaintiff was injured ?
During the arguments of the case to the jury, the court (against the objection of defendant) permitted plaintiff’s attorney to state to the jury that plaintiff requested the jury to answer both questions in the negative. The court was in error in so ruling. See Beecher v. Galvin, 71 Mich 391, and Taylor v. Davarn, 191 Mich 243, and cases therein cited. However, from Holman v. Cole, 242 Mich 402, it appears that such error is not necessarily reversible. '
Question number one, in the instant case, is improper and of doubtful construction. The court and jury were not necessarily interested in a determination of what plaintiff could have done. The issue was whether the exercise of ordinary care on the part of plaintiff would have prevented the collision.
As to the second question, it is to be observed that we have no statute requiring the driver of a motor vehicle intending to claim a superior right of way through an intersection to sound his horn to warn a driver on an intersecting highway approaching the intersection. The second question is confusing to a jury, e.g., the words “proximately contributed” have an established meaning to bench and bar, but it is not to be considered that such technical meaning in absence of explanation or instruction would be fairly well known to a layman serving as juror. The court did not commit reversible error by permitting plaintiff to request the jury to vote “no” on the 2 questions.
Plaintiff had a right to expect that defendant would stop for the intersection. Plaintiff could further consider that defendant by going so slowly as 5 or 6 miles per hour, showed an intention to stop at the intersection. Under these circumstances, plaintiff could properly be found by the jury not guilty of contributory negligence for not. slowing up for the intersection until plaintiff saw that defendant ■ actually was entering the intersection, at which time (plaintiff claims) it was too late to prevent the collision. Under all the circumstances, plaintiff was not as a matter of law, guilty of contributory negligence ; it was a jury question. Among other cases, see DeVries v. Owens, 295 Mich 522.
During the taking of the testimony of plaintiff’s witness, Dr. Anderson, plaintiff’s attorney, after reciting some of the personal history of plaintiff as to his physical condition and injuries shown to have been apparent immediately after the accident and condition and symptoms of plaintiff’s condition since the accident, asked the witness:
' “Could the accident complained of have produced the condition that the person then complained of, the conditions now suffered by that person?
“A. I think that—
“Mr. Rogoski: I object to that one for the reason -it is too complicated.
“The Court: I will overrule the objection.
“The Witness: I think the accident was the sole cause of these conditions.
“Mr. Bogoski: I move the answer be'stricken as invading the province of the jury. It is voluntary and not in answer to the question.
“Mr. Nebel: I am the only one who can object—
“Mr. Bogoski: I object to it as voluntary and incompetent and invading the province of the jury.
“The Court: I think the doctor can state his opinion, assuming the facts in the question being correct.
“Mr. Nebel: Could, doctor, these facts stated in this hypothetical question stated to you, could the ■physical condition of that person be the result of that accident complained of ?
“A. I think it is the result.
“Mr. Bogoski: I move the answer be stricken.
“The Court: The question is ‘could it be?’ Answer the question,
“A. Yes, sir.”
We consider the court correctly ruled that the question was'“Could it be?” and by that ruling 'Correctly and sufficiently gave the jury to understand that the last answer and not 'the answer" objected to, was the answer the jury-should'pay- attention to:
Defendant claims the damages were excessive. The trial court in his opinion summarizes testimony showing that the total for doctor and hospital bills, damages to automobile und loss of wages to- date- of trial, amounted to $5,535. ■ The verdict for plaintiff was for a total of $9,323. The balance of $3;788 must therefore be for past and future pain and suffering and permanent injuries.
There was testimony from which the jury could find that the plaintiff (then 26 years of age) suffered injuries from which he will continue to have headaches for some considerable time in the future, that he will have trouble with his right arm because of the injuries to the brachial plexus there, which is probably permanent, and that the sacroiliac strain caused by .the. accident will probably be permanent and that plaintiff is going to need medical care for several years; that upon going back to work about 1 year after the accident, his wages were reduced because of his decreased ability to work, from $2 per hour as a skilled mechanic to work as common laborer at $1.20 1/2 per hour.
The court properly submitted to the jury the question of personal injuries probably continuing into the future and probable future pain and suffering and medical expenses and consequent future damages. We cannot say that the part of the verdict, $3,788, remaining after deducting computable damages is excessive nor that the entire verdict is against the overwhelming weight of the evidence.
The judgment appealed from should be affirmed. Costs to plaintiff.
North, C. J., concurred in the result.
Sharpe, J.
I am for reversal and a new trial for reasons hereinafter stated.
Before the cause was submitted to the jury the following special questions were presented to the jury, at the request of defendant’s counsel:
“1. Could plaintiff, after he first saw defendant’s automobile approaching the intersection, by the exercise of ordinary care have prevented a collision with defendant’s automobile?
“2. Did the failure of plaintiff to sound his horn between the time he first saw defendant’s automobile approaching the intersection and the time when defendant’s automobile entered the intersection amount to negligence which proximately contributed to cause the collision in which plaintiff was injured?”
We note that no objection was made to the form of the questions. During the argument of plaintiff’s counsel to the jury the following occurred:
“Mr. Rogosld: I object to counsel referring to any special questions in Ms argument as improper.
“Mr. Rebel: These are requests on the part of the defendant.
“Mr. Rogosld: It is improper for him to make any reference to them.
“Mr. Rebel: I certainly can. It would be highly improper of me if I didn’t.
“Mr. Rogosld: I will ask for a ruling of the court.
“The Court: No. I am going to present these questions to the jury for their answer, and I believe counsel would have the right to discuss them in connection with his argument.
“Mr. Rebel: Thank you, your Honor.
“Mr. Rogosld: I take exception to his argument as improper and prejudicial. May I have an exception?
“Mr. Rebel: If you are going to give Mr. Mitchell . something for his damages, then you will answer both of these questions ‘No.’
“Mr. Rogosld: I take exception to counsel telling the jury how to answer the questions.
“The Court: He may comment on the points raised in the special questions.
“Mr. Rebel: The first question that will be asked for you to determine is ‘Could plaintiff, after he first saw defendant’s automobile approaching the intersection, by the exercise of ordinary care, have prevented a collision with defendant’s automobile?’ We submit if you give a verdict to plaintiff, the answer to that is ‘No.’
“Mr. Rogosld: I object to the argument as improper and prejudicial.
“The Court: I will overrule the objection.
“Mr. Rebel: The second one: ‘Did the failure of plaintiff to sound his horn between the time he first saw defendant’s automobile approaching the intersection- and the time when defendant’s automobile entered the intersection amount to negligence which proximately contributed to cause the collision in which plaintiff was injured?’
“And again we submit that special question should be answered ‘No.’
“Mr. Rogosld: I object to the argument as improper and prejudicial.
“The-Court: I will overrule the objection.” '
The trial court instructed the jury as follows:
“Members of the jury, I am going to hand these questions to you for you to answer. Discuss them. Read them over carefully. If you are unanimous in answering yes or no, make the answer. Tou will see a line for the foreman to sign. If the foreman signs'that, that will mean you were unanimous. The first question is: ‘Could plaintiff, after he first saw defendant’s automobile approaching the intersection, by'the exercise of ordinary care, have prevented a collision "with defendant’s automobile?’ If plaintiff has convinced you from the evidence, received here .in court that he could not have avoided the accident despite the fact,'if it be a fact, he exercised ordinary care, then the answer would be ‘No’. If he could have avoided the collision by the exercise of ordinary care-, the answer would be ‘Tes!. The second question: ‘Did the failure of plaintiff to sound his horn between the time he first saw defendant’s automobile approaching the intersection and the time when defendant’s automobile entered the intersection amount to negligence which proximatély contributed to cause the collision in which plaintiff was injured ?’ In oth.er words, if you find plaintiff, by sounding his horil, could 'have avoided the collision but he failed to do so, then his failure to sound his horn — if ordinary care and prudence 'called for it — there would be contributory negligence on his part. If you find plaintiff’s failure to sound his horn was contributory negligence.”
. The statute relating to special questions reads as follows — CL 1948, § 618.39 (Stat Ann § .27.1019):
“Sec. 39. In all cases where an issue of fact is tried- before any court of record, the court shall at the request in writing of the counsel of'either- party, •.instruct the jury if they return a general verdict, also to find upon particular questions of facts, respecting which the issue is joined, to.be stated in writing, and shall direct a written finding there- ■ on: Provided, such special questions shall not exceed .5 in number, and shall be each in single, short sentences, readily answered by yes or no. The special verdict, or finding, shall be filed with the clerk, and entered upon the minutes, and when any special finding of facts shall be inconsistent with a general ‘verdict, the former shall control the latter, and the court give judgment accordingly.”
In Beecher v. Galvin, 71 Mich 391, we had occasion to discuss the object of the statute relating to special questions. We there said:
“The object of the statute in allowing such specific questions to be submitted to the jury, and requiring them to make answer thereto, was to ascertain whether the jury had, in making up their general verdict, properly applied the law, as given by the court, to the facts in the case. This can never be’done.if the jury are to be directed by the court what answer shall be made to each question asked, in the event the general verdict is a certain way. This direction by the court was error, and it was also error 'for the court to decline to require the jury to make answer to the plaintiff’s questions so submitted when asked to do so by plaintiff’s counsel.” ,.••''
In Taylor v. Davarn, 191 Mich 243, plaintiff recovered a civil damage judgment against defendant, a saloon keeper. The following question was submitted to the jury:
“Was the plaintiff’s husband, Benjamin Taylor, intoxicated at the time he came to his death on the 1st day of April, 1913?”
After the jury had deliberated for some time, they requested further instructions with reference to the special question.'
The court gave the following instruction:
“As you will recall from the instructions I gave you, in order to find for the plaintiff you must find that her husband, Benjamin Taylor, was intoxicated at the time he came to his death. So if you find for the plaintiff your answer to the question would be ‘Yes’. If you should find for the defendant you would find that he was not intoxicated at the time he came to his death, and your answer therefore would be ‘No’. * * *
“A Juror: Nothing difficult, but if it has to be' signed all ‘Yes’ or all ‘No’.
“The Court: Yes; all ‘Yes’ or all ‘No’. If he was not intoxicated at the time he met his death the plaintiff cannot recover, as I told you. If he was intoxicated at the time he met his death the plaintiff may recover, the other conditions existing to which your attention was called in the general charge. If you should find for the plaintiff it would not be a difficult thing to find the necessary elements to entitle her to recover, namely, he was intoxicated, because, if you do not find he was intoxicated, your verdict cannot be for the plaintiff. If you should find he was not intoxicated at the time of his death, your verdict necessarily must be for the defendant. You may take the paper and retire to your jury room.”
We there said:
“We are of the opinion that the error is well assigned under the holdings of this Court in the cases of Cole v. Boyd, 47 Mich 98; Maclean v. Scripps, 52 Mich 214; Beecher v. Galvin, 71 Mich 391; Mechanics’ Bank of Detroit v. Barnes, 86 Mich 632; Brassel v. Railway Co., 101 Mich 5.
“It was said in Maclean v. Scripps, supra, that:
“ ‘The object of the statute (CL 1871, § 6026; How Stat 1882, §7606) requiring the jury to answer specifically questions giving their conclusions on the facts necessary to be found to entitle a party to recover, was to ascertain whether or not they had found sufficient facts from the evidence to support their general Verdict tinder the law as given them by the court. It'is the province of the jury to find these facts from the evidence, without aid or suggestion from the court, and this can never be done if the jury are told in advance what facts are necessary to be found to support the verdict, or what answers to the questions propounded will be consistent therewith, or what they must find in order to answer a question propounded in the negative or affirmative. This practice will make the general verdict control the findings, instead of the findings control the general verdict; and thereby the object of the framers of the statute will be defeated. This was the result of the practice indulged in this case. The effect is to make the court, and not the jury, decide the main issues in the case. Cole v. Boyd, 47 Mich 98. The special findings of the jury were sufficient to support the general verdict, had the proceed-' ings upon which they were based not been erroneous.’
“The question submitted in this case was an important one. The question as to whether Taylor was intoxicated at the time of his death was the pith of plaintiff’s case. Unless plaintiff was able to establish that fact, the jury were instructed that no recovery could be had. In view of the importance of the question, the instruction that their answer to the special question must be in harmony with their general verdict, and advising them what their answer should be under certain circumstances, was clearly error because it violated the rule laid down in the foregoing cases.”
In Pecor v. Home Indemnity Company of New York, 234 Wis 407 (291 NW 313), the court said:
“ ‘It is reversible error for the trial court by instruction to the jury to inform the jury expressly or by necessary implication of the effect of an answer or answers to a question or questions of the special verdict upon the ultimate right of either party litigant to recover or upon the ultimate liability of either party litigant.’ Banderob v. Wisconsin Cen tral R. Co., 133 Wis 249, 287 (113 NW 738); Beach v. Gehl, 204 Wis 367, 371 (235 NW 778); Anderson v. Seelow, 224 Wis 230, 233 (271 NW 844).
“There is an abundance of authority to the proposition: that it is reversible error for either the court or counsel to inform the jury of the effect of their answer or answers upon the ultimate result of their,-verdict. If single instances of prejudicial statements and arguments be held reversible error, repeated instances multiply the gravity of the error.”
The 'purpose of special questions is to enable the court to learn what view the jury takes of the material issues and their ability to make correct inferences from existing facts. See Cole v. Boyd, 47 Mich 98; Durfee v. Abbott, 50 Mich 479; and Hartley v. A. I. Rodd Lumber Co., 282 Mich 652.
Mr. Justice Reid relies upon Holman v. Cole, 242' Mich 402, to sustain his theory that instructions from the court to the jury as to how they should answer special questions is not necessarily reversible. It is significant to note that the judgment in that case was reversed because plaintiff’s counsel asked each juror on his voir dire examination whether he was interested in a particular insurance company. The following is quoted from the opinion for-the purpose of showing what the court said relative to the issue of the court instructing the jury on special questions:
“In the instructions given relative to the special questions when the jury came into court and announced a verdict for plaintiff, the trial judge coupled up the answers which they should give with the conclusion they had reached as to plaintiff’s right to recover. They were told that if they meant, by their verdict that defendant was guilty of negligence, it would follow that he had neglected to do. what an ordinarily prudent man would have done, under like circumstances. In effect, he said to them. that, -unless they changed their general verdict, the •second question should be answered in the affirmative. When a proper question is submitted, it should be answered as the jury find the fact to be. They should not be instructed what effect their answer will have on the general verdict, they have announced, or on which they may later agree. We are impressed that they might. have understood from what the court said to them that if they desired their general verdict to stand’ they must answer the second question in the affirmative. Were this the only error complained of, we should, however, be loath to reverse because of it.”
It can-readily be seen that what the court said on this issue was unnecessary and clearly is obiter dicta and as such is not a precedent upon which, rights of parties should be determined.
Because the court permitted plaintiff’s counsel to argue to the jury how to answer the spécial questions if they returned a verdict in favor of plaintiff, and because the • court gave the jury the following instruction:
“The Coitrf: If plaintiff’s failure to sound his horn Was contributory negligence on his part, then you would answer that question ‘Yes’.' If there wasn’t contributory negligence on his part, then you would answer that question ‘No’.”
reversible error was committed. It follows that the judgment must be reversed and a new trial granted. Defendant may recover costs.
• Dethmers, Butzel, Carr, Bushnell, and Boyles, JJ., concurred with Sharpe, J. | [
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Butzel, J.
(dissenting). Plaintiffs own a factory-in Chicago and maintain offices or stores throughout the country. They manufacture and fill orders for eyeglasses and the parts thereof. They do business in Detroit under the assumed name of National Optical Stores Company. One of their stores or offices is located in a downtown office building where orders on prescriptions are taken for eyeglasses and frames. These prescriptions from doctors and optometrists are sent to Chicago to be filled. The manufactured articles are forwarded to the Detroit office and, from there, delivered to the customer. Plaintiffs advertised the prices charged for the eyeglasses in newspapers, circulars, et cetera.
Controversies with the Better Business Bureau of Detroit arose over plaintiffs’ business methods, and, for a time, their advertising was not accepted by the newspapers. Finally, plaintiffs signed an agreement not to engage any further in unethical business practices. Shortly thereafter the common council of the city of Detroit passed an ordinance that became effective on November 19, 1942, known as Ordinance 288-D, entitled:
“An ordinance prohibiting misleading" statements in advertisements in connection with the sale of eyeglasses, lenses, eyeglass frames and mountings. and their supporting'accessories; prohibiting advertising of the price of eyeglasses or lenses; regulating advertising of the price of frames and mountings and their supporting accessories; and providing penalties for the violation of the provisions thereof. ’ ’
Section 2 of the ordinance reads as follows:
“No person, partnership or corporation or agent or employee thereof, engaged in or connected with the sale of eyeglasses, or lenses, shall include in any advertisement, by newspaper, radio, window display, handbill, poster, or any other form of advertising any statement advertising the price of lenses or of complete eyeglasses, including lenses, either with or without professional services; or offer any gift, premium, discount, special price or free eye examination in any such advertisement. ’ ’
On November 18, 1943, plaintiffs filed a bill to restrain its enforcement. They particularly assail the validity of section 2 of the ordinance claiming that, contrary to both the State and Federal Constitutions, it deprives plaintiffs of the right of free speech and press and takes their property without due process of law. The right to advertise one’s merchandise for the purpose of creating- public demand and securing trade for the advertiser is, subject to the police power, included in the right to liberty and property. Packer Corporation v. Utah, 285 U. S. 105 (52 Sup. Ct. 273, 76 L. Ed. 643, 79 A. L. B. 546). Business practices which have no detrimental effect on public health, morals, safety and public welfare may not be prohibited by. the legislative body, for such prohibition would result in the deprivation of liberty and property without due process of law. If these practices, however, do have such an effect, they are subject to any regulation as may be necessary for the protection of the public health, morals, safety and general welfare. People v. Victor, 287 Mich. 506 (124 A. L. R. 316).
At the oral argument of the case, we suggested that plaintiffs might not be entitled to any relief whatsoever if we found that they did not come, into court with clean hands. The question, however, was not raised by defendants and we shall not consider it. However, they di,d question whether plaintiffs, claiming to be dispensing opticians exclusively, had a right to challenge the constitutionality of the ordinance in regard to its effect on the fitting and sale of eyeglasses over the counter. Nevertheless -the trial judge took the broader view and held that the entire ordinance was so related to public welfare, health, morals and safety that it was a valid exercise of police power and he denied plaintiffs any relief. The issue in the case, therefore, resolves itself into whether or not these interests of the public are involved. If they are, the ordinance must be held valid; otherwise, condemned.
While usually it would not be necessary to review the testimony in a case involving the constitutionality of an ordinance, we believe the facts brought out in the instant case fully demonstrate that the ordinance calls for a proper exercise of the police power by the common council of the city of Detroit. Several years ago plaintiffs placed in charge of their Detroit office, located in a downtown building, a manager who previously had been engaged in selling ladies’ goods. One of the rooms of this suite rented by plaintiffs was turned over to- a doctor of medicine where he conducted his own practice and also performed optometry work for plaintiffs’ customers. As patients called at plaintiffs ’ offices, they were told that a prescription from a doctor' was required and they were referred to the doctor in plaintiffs’ offices. The prescriptions were left with plaintiffs’ manager who had them filled in Chicago and who delivered the glasses to the customers and collected for them. Several years ago the office of the doctor was ' completely separated from those of plaintiffs by a partition. Although the office still adjoined those of plaintiffs, the only entrance into the doctor’s office was from the hallway. The record leaves some doubt as to what the exact relationship was between the doctor and plaintiffs. The trial judge who heard the case characterized the doctor’s testimony as being worthy of little, if any, credence. The doctor used the lavatory in plaintiffs’ offices to wash his instruments. Plaintiffs ’ manager, on the other hand, used the doctor’s telephone. The doctor testified that he paid -the manager of plaintiffs’ office $12 a month for the use of the space, and that the manager signed the receipts for the rent. The manager denied that he had received any rent from the doctor but later upon returning to the witness stand admitted that he received a sealed envelope from the doctor once a month and sent it to the Chicago office. The doctor testified that he kept a copy of all the prescriptions that were filled at plaintiffs’ Detroit offices. This included prescriptions of outside doctors which patients brought to the plaintiffs. The office manager wrote upon every prescription the measurement for the bridge size, the temple length and other data. The question might arise whether the doctor, acting as an optometrist, was not associated with the plaintiffs in advertising the price of eyeglasses. However, the plaintiffs are not being prosecuted under the optometry act. See Seifert v. Buhl Optical Co., 276 Mich. 692. The ordinance forbids advertising the prices of eyeglasses in general.
The record shows that plaintiffs advertised the sale of eyeglasses for $2.87. Prospective customers upon being told that plaintiffs only filled prescriptions usually went to the doctor in the adjoining office. The doctor charged and kept a fee of $2 for his prescription. This brought the cost of the eyeglasses up to $4.87. Plaintiffs did not stop there. It was shown that the average price exacted from customers was over $14 for a pair of eyeglasses. This clearly indicates that the plaintiffs were deceiving the public by misleading price advertising. While they do not deny that the sum of $2 extra was exacted by a third party for a prescription, it is claimed that they were willing to sell eyeglasses for $2.87. An officer of the Better Business Bureau of Detroit testified that when customers called to purchase glasses at the advertised price, they were told that they were the “cheapest form of glasses, that the frames were not satisfactory, as a piece of metal, they would stain their skin about the eye, the nose grip was in one piece, and there was no play to it, and no comfort; in fact, that only a person on the welfare would buy a pair of glasses such as these.”
It was further shown that plaintiffs were not the only offenders in such “bait” advertising. Even plaintiffs claimed, and introduced evidence to prove, that when the advertising of prices was stopped, their business showed a very heavy decline. In rebuttal plaintiffs’ manager testified that he told customers to go to any physician they pleased for their prescriptions. Plaintiffs also claim that even if they were guilty of fraudulent advertising, there are proper or remedial statutes to stop such practice. See Act No. 328, §33, Pub. Acts 1931 (Comp. Laws Supp. 19-10, §17115-33, Stat. Ann. § 28.222). One can readily see the practical difficulty of securing conviction for falsely advertising an article offered the prospective customers at an alluring price named in the advertising, when the article is so disparaged by a salesman that the customer becomes unwilling to take, it and is persuaded to purchase a much more expensive article. See Seifert v. Buhl Optical Co., supra, in regard to “ bait ” advertising.
It was stipulated in the record by all parties that:
“The care of the human eye is important to the health of the individual; that no human eye is like any other human éye, and that improper lenses or eyeglasses directly affect the condition of the human eye and health.”
Plaintiffs claim, however, that the ordinance was passed in order to benefit their competitors, as is evidenced by the fact that the Michigan Association of Opticians and the Wayne County Association of Optometrists have appeared in the case as intervening defendants and appellees. There is nothing in the record that sustains this claim. The ordinance was regularly passed by the common council of the city of Detroit. The motives of the common council or the members thereof cannot be inquired into for the purpose of determining the validity of its ordinances, People v. Gardner, 143 Mich. 104; nor may courts on the ground of the unwisdom of a statute depart from their plain meaning. Village of Kingsford v. Cudlip, 258 Mich. 144. Ultimate decision as to the wisdom of a regulation designed to safeguard the public interest rests with the legislature, Little v. American State Bank of Dearborn, 263 Mich. 645. There is no showing that the act is either arbitrary or oppressive. The sole question is whether the measures are appropriately related to the purpose and have a tendency to accomplish it. Parkes v. Judge of Recorder’s Court, 236 Mich. 460 (47 A. L. R. 1128).
We agree that it is to the interest of the public to keep the prices of glasses down. There is nothing whatsoever in the ordinance which forbids the sale of glasses as merchandise. Merchants may engage in the sale of optical goods without the aid of optometrists and if they only exact a reasonable price and sell good merchandise, that fact becomes quickly known. It should not be necessary to advertise the price and thus open the door to fraud and deceit that is so amply shown by the facts in this case. It can readily be seen that if advertising the price of eye glasses, so necessary to public health, is permitted, others may advertise at a lower price than plaintiffs. The result would be that the public, on account of the very low price, might purchase glasses of poor workmanship and material, equipped with poorly ground lenses and ill-fitting frames. We believe that the ordinance bears such relation to the health, morals, safety and general welfare of the public . that its constitutionality cannot be questioned. Our attention has been called to a number of cases. We find the only one in which the precise question was squarely brought before the court was in Commonwealth v. Ferris, 305 Mass. 233 (25 N. E. [2d] 378), and we quote freely from the opinion of the supreme judicial court of Massachusetts as follows:
“A familiar ground of the regulation or restriction of contracts or of advertising in a commercial business is the prevention of fraud and mistake. Where the public are not cautious or watchful in their buying habits and are likely to be misled, the legislature may require not only the absence of active deception (Commonwealth v. Reilly, 248 Mass. 1 [142 N. E. 915]), but also affirmative measures to prevent misunderstanding. Of this, reported cases furnish many illustrations. Commonwealth v. Crane, 162 Mass. 506 (39 N. E. 187) (seller of oleomargarine must give public notice that he sells it). Commonwealth v. Libbey, 216 Mass. 356 (103 N. E. 923, 49 L. R. A. [N. S.] 879, Ann. Cas. 1915B, 659) (advertisement for laborers must disclose existence of labor disturbance). Commonwealth v. McArthur, 152 Mass. 522 (25 N. E. 836). P. F. Petersen Baking Co. v. Bryan, 290 U. S. 570 (54 Sup. Ct. 277, 78 L. Ed. 505, 90 A. L. R. 1285) (bread must be sold in loaves of standard weight). Armour & Co. v. North Dakota, 240 U. S. 510 (36 Sup. Ct. 440, 60 L. Ed. 771, Ann. Cas. 1916D, 548) (lard must be sold in packages of standard weight). Pacific States Box & Basket Co. v. White, 296 U. S. 176 (56 Sup. Ct. 159, 80 L. Ed. 138, 101 A. L. R. 853) (berries must be sold in containers of standard size and shape). Hauge v. Chicago, 299 U. S. 387 (57 Sup. Ct. 241, 81 L. Ed. 297) (coal must be weighed by public weigher). Corn Products Refining Co. v. Eddy, 249 U. S. 427 (39 Sup. Ct. 325, 63 L. Ed. 689). National Fertiliser Association, Inc., v. Bradley, 301 U. S. 178 (57 Sup. Ct. 748, 81 L. Ed. 990) (disclosure of the ingredients of compounds required). Carolene Products Co. v. Harter, 329 Pa. 49 (197 Atl. 627, 119 A. L. R. 235) (filled milk must be marked ‘unfit for infants’). In the recent case of Slome v. Chief of Police of Fitchburg, 304 Mass. 187 (23 N. E. [2d] 133), a statute was held constitutional that required every dealer in motor fuel to advertise his prices on the pumps and not elsewhere on his premises. * * *
“The prohibitions against ‘advertising lenses or complete eyeglasses including lenses at a fixed price,’ and against advertisements laying ‘claim to a policy or continuing practice of generally underselling competitors, ’ may be treated together. They may be sustained as measures in the interest of the public health, an unquestioned ground for the exercise of police power. In Roschen v. Ward, 279 U. S. 337 (49 Sup. Ct. 336, 73 L. Ed. 722), a statute was held" constitutional which forbade the sale of eyeglasses or lenses unless a licensed physician or optometrist should be in charge of and in attendance at the place in the store where they are sold. The plain implication of the decision is that the State has an interest in seeing that the eyesight of its citizens is not impaired by the use of eyeglasses or lenses unskillfully selected, even by themselves; and that, as the court below had declared (D. S. Kresge Co. v. Ottinger, 29 Fed. [2d] 762, 764), the sale of eyeglasses and lenses might be prohibited unless they should be selected and fitted by competent persons. The statute in that case did not actually go so far, but as Holmes, J., said (279 U. S. at page 339), ‘A stat ute is not invalid under the Constitution because it might have gone farther than it did, or because it may not succeed in bringing about the result that it tends to produce.’ Judge A. N. Hand said in the court below (page 764), ‘To render an optometrist available wherever eyeglasses are sold is certainly a long step toward correcting existing evils. * * * It seems to us that the inevitable tendency would be for customers to consult him. * * * If the effect of the new requirement should finally be to render the sale of a standardized product unprofitable, so that the customers in the end would not purchase it, but would have their eyes carefully tested and their glasses made according to special prescriptions, it cannot be said that the result might not on the whole be desirable.’
“Gen. Laws, chap. 112, §72, as amended by Stat. 1926, chap. 321, § 2, forbade anyone not a licensed optometrist to sell ‘spectacles, eyeglasses or lenses for the purpose of correcting defective vision.’ In Commonwealth v. S. S. Kresge Co., 267 Mass. 145, 150 (160 N. E. 558), although the facts showed some assistance by the defendant in determining the kind of eyeglasses required by the customer, it was said that the statute ‘ deals with the sale to the individual of eyeglasses designed to correct his particular defects of vision,’ and that ‘it is within legislative competence to determine that scientific and trained adjustment of eyeglasses * * * -will be likely to effect a more complete and healthful correction of poor eyesight than the untrained and unaided selection by the customer himself from a mass of eyeglasses.’ Apparently the court thought it competent for the legislature to prohibit the business- of affording such a selection. See United States v. Carotene Products Co., 304 U. S. 144 (58 Sup. Ct. 778, 82 L. Ed. 1234).
“The legislature evidently was not prepared to prohibit the sale of eyeglasses and lenses as merchandise, to be selected by the buyer. But it was prepared to discourage it, by eliminating tbe temptation to and pressure upon customers that result from the assurance that no more than a named price will be charged, or that the price is less than competitors ask. As in Roschen v. Ward, 279 U. S. 337 (49 Sup. Ct. 336, 73 L. Ed. 722), that shorter step is consistent with the Constitution. It is not unlike the prohibition of the sale of drugs or medicinal compounds by itinerant vendors, sustained in Baccus v. Louisiana, 232 U. S. 334 (34 Sup. Ct. 439, 58 L. Ed. 627). There may well be reasons of public policy requiring the prohibition of advertising to sell merchandise, the actual sale of which is not forbidden. Commonwealth v. Clapp, 5 Pick. (22 Mass.) 41. Commonwealth v. Nutting, 175 Mass. 154 (55 N. E. 895, 78 Am. St. Rep. 483), affirmed Nutting v. Massachusetts, 183 U. S. 553 (22 Sup. Ct. 238, 46 L. Ed. 324). Delamater v. South Dakota, 205 U. S. 93 (27 Sup. Ct. 447, 51 L. Ed. 724, 10 Ann. Cas. 733). Bothwell v. Buckbee, Mears Co., 275 U. S. 274 (48 Sup. Ct. 124, 72 L. Ed. 277). Packer Corp. v. Utah, 285 U. S. 105 (52 Sup. Ct. 273, 76 L. Ed. 643, 79 A. L. R. 546). State v. Hollinshead, 77 Ore. 473 (151 Pac. 710). State v. J. P. Bass Publishing Co., 104 Maine, 288 (71 Atl. 894, 20 L. R. A. [N. S.] 495). The following cases tend to support our conclusion that these prohibitions are constitutional in their application to the advertising of the sale of lenses and complete eyeglasses. Seifert v. Buhl Optical Co., 276 Mich. 692, 698. New Jersey State Board of Optometrists v. S. S. Kresge Co., 113 N. J. Law, 287, 294 (174 Atl. 353). State, by Attorney General, v. Goodman, 206 Minn. 203 (288 N. W. 157).”
In coming to our conclusion we have not overlooked the ease of State, ex rel. Booth, v. Beck Jewelry Enterprises, Inc., 220 Ind. 276 (41 N. E. [2d] 622, 141 A. L. R. 876), stressed by plaintiffs and in which there is some dictum favorable to them. The court, however, had the same question before it that we were confronted with in Kindy Opticians, Inc., v. State Board of Examiners in Optometry, 291 Mich. 152, which it cited. Attention was also called in the opinion to Rithols (evidently the same plaintiffs as in the instant case) v. Indiana State Board of Registration and Examination in Optometry, 45 Fed. Supp. 423. In the latter case, the court consisting of one circuit judge and two district judges in a per curiam opinion and as a conclusion of law upheld as constitutional and valid the section of the Indiana optometry law forbidding any person or persons to publish or cause to be published any prices for eyeglasses, lenses or frames, et cetera. In State, ex rel. Booth, v. Beck Jewelry Enterprises, Inc., supra, the court attempted to explain how the Federal court arrived at its conclusion.
Plaintiffs and appellants claim that the ordinance contravenes the State optometry act, 1 Comp. Laws 1929, § 6781 et seq. (Stat. Ann. § 14.641 et seq.). The State optometry act is limited solely to optometrists (Kindy Opticians, Inc., v. State Board of Examiners in Optometry, 291 Mich. 152) and in no way regulates dispensing opticians or merchandisers of eyeglasses. It does not contain either express or implied conditions that are inconsistent or irreconcilable with the ordinance. The cases of National Amusement Co. v. Johnson, 270 Mich. 613, and People v. McDaniel, 303 Mich. 90, do not apply.
Justice Sharpe in his accompanying opinion states that the ordinance forbidding the advertising of the price of eyeglasses has no relation to public health and general welfare. The testimony shows that after the prospective customer had secured a prescription, he was told by appellants’ agent that the eyeglasses sold at the advertised price were of the cheapest form, would stain the skin about the eye, were unsatisfactory in many respects, and only such as a person on the welfare would purchase. The advertising of the low price in itself nevertheless would influence many persons to purchase such glasses and thus neglect or impair their eyesight. The advertiser might not he successfully prosecuted for false advertising since he offered glasses at the advertised price. Other manufacturers might not he as frank in disclosing the inferior quality of glasses they sold at the advertised price. All parties concede that improper lenses or eyeglasses directly affect eyesight and health. It is also common knowledge that eyesight, once impaired, as a rule cannot he restored to its former condition. The advertising at a cheap price influences the public, particularly those with lower incomes, to purchase inferior glasses and it thus contributes to the impairment of their eyesight.
I agree that there may be merit in the.claim that fixing the price of haircuts in no way directly or indirectly affects the public welfare or health; also that neither does the advertising of the price of health underwear, orthopedic shoes or other articles of clothing affect the public health. The public can readily see or quickly ascertain what they are getting. At most, they lose their money or have some temporary discomfort. The public is amply protected in the purchase of prepared foods, medicines, et cetera, by the food, drug and cosmetic act. 52 Stat. at L. p. 1040, chap. 675 (21 USCA, § 301 et seq.). However, in the matter of eyeglasses, the public with eyesight already impaired invariably cannot tell with any degree of certainty whether proper glasses are being furnished or not. The public has a right to be protected against advertising which by the low price named attracts the unwary to purchase inferior glasses. ■
I believe the correct rule of law is set forth in Commonwealth v. Ferris, supra, from which we have so fully quoted and which largely relies upon the opinion written by Mr. Justice Holmes in Roschen v. Ward, 279 U. S. 337 (49 Sup. Ct. 336, 73 L. Ed. 722). The opinion written by Judge Augustus N. Hand in D. S. Kresge Co. v. Ottinger, 29 Fed. (2d) 762, also is relied upon. On the other hand, Justice Sharpe cites no cases in point. State, ex rel. Booth, v. Beck Jewelry Enterprises, Inc., 220 Ind. 276 (41 N. E. [2d] 622, 141 A. L. R. 876), is the only one cited by Justice Sharpe that bears any resemblance and from this only dictum is quoted.
When it comes to selling glasses over the counter without advertising the price, possibly the rule of caveat emptor applies, but when the public is lured by aprice “bait” to purchase inferior glasses'which cause deleterious results, the ordinance that prohibits price advertising has a direct bearing on the. health and general welfare.
The decree of the trial court should be affirmed, but without costs, a public question being involved.
Btjshnell, J., concurred with Btjtzel, J.
Sharpe, J.
I am unable to accept the reasoning of Mr. Justice Btjtzel that the ordinance in question “bears such relation to the health, morals, safety and general welfare of the public that its constitutionality cannot be questioned.”
In construing the ordinance, I have in mind that there is no claim made that cheap glasses damaging to health were sold or that the sale of a better grade of glasses than advertised had any detrimental effect upon the buyer.
It is to be noted that the ordinance has nothing to do with the regulation of the practice of optometry. Its real purpose is the prevention of false, ■fraud-' ulent,' and misleading advertising of eyeglasses or lenses.
In Carotene Products Co. v. Thomson, 276 Mich. 172, we said:
“The Constitution guarantees to citizens the general right to engage in any business which does not harm the public. People, ex rel. Valentine, v. Berrien Circuit Judge, 124 Mich. 664 (50 L. R. A. 493, 83 Am. St. Rep. 352). The constitutional right to engage in business is subject to the sovereign police power of the State to preserve public health, safety, morals or general welfare and prevent fraud. In the exercise of the police power there must be not only a public welfare to be conserved or public wrong to be corrected, but there must be also a reasonable relation between the remedy adopted and the public purpose. 12 C. J. p. 929.”
In People v. Snowberger, 113 Mich. 86 (67 Am. St. Rep. 449), we said:
“Generally, it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of the citizen or interferes with his liberty, it is for the courts to determine whether it relates to and is appropriate to promote such public health.”
In State, ex rel. Booth, v. Beck Jewelry Enterprises, Inc., 220 Ind. 276 (41 N. E. [2d] 622, 141 A. L. R. 876), the court had before it an alleged violation of the optometry act. A portion of the act made it unlawful “for any person to publish any advertisement which quotes prices on glasses. ’ ’ The court held that this provision applied only to optometrists and not to those who are merely selling eyeglasses. The case does not decide whether such advertising by a merchant would be unlawful as that question was not in issue.. The court, however, expressed its views upon this question in a manner that I am in accord with; it said:
“To forbid price advertising by an optometrist is regulation of his practice. But to forbid price advertising by appellees is merely regulation of their merchandising. * * *
“Truthful price advertising is a legitimate incident to a lawful merchandising business. Deprivation of the right so to advertise has been held to violate the due process clause of the Fourteenth Amendment. * * ** We cannot assume that the legislature intended to permit the sale of eyeglasses as merchandise but to deprive the dealer of one of the reasonable and lawful means of procuring purchasers for such merchandise.”
The case of Jones v. Bontempo, 137 Ohio St. 634 (32 N. E. [2d] 17), was an action against the State board of barber examiners to set aside, vacate or modify an order suspending plaintiff’s license certificate as a barber. The board revoked plaintiff’s certificate because he advertised on the window of his shop: “Haircutting twenty-five cents” contrary to an act establishing the State board of barber examiners. The court there said:
“The trade of barbering, operating as it does directly on the person of the customer, affects the health, comfort and safety of the public and may be regulated within reasonable limits by the legislative branch of the government under that power known as the police power, ‘conceded to reside in the people’s representatives, which is rightfully exercised by the regulation, of the use of private property, or so restraining personal action, as to secure, or tend to the comfort, health, or protection of the community.’ State v. Gardner, 58 Ohio St. 599, 606 (51 N. E. 136, 65 Am. St. Rep. 785, 41 L. R. A. 689). See, also, 8 Ohio Jur. p. 334, § 229; 11 Am. Jur. p. 972, § 247.
“Therefore, those engaged in the occupation of barbering or those desiring to pursue that business may be examined as to their competency and fitness and are subject to supervision and control in the matters of cleanliness, sanitation, conduct, habits, infectious and contagious diseases, and things of that kind. * * *
“How the mere advertising of the price of haircuts as done by the plaintiff could in any wise affect public health or welfare is difficult to understand.
“If this legislation, absolutely prohibiting the advertising of prices of barber services, were to be upheld, it would likewise be necessary to’ uphold legislation, prohibiting the vendors of groceries, meats or other commodities from advertising prices thereof in any manner, the unreasonableness of which is at once apparent.
“This court is unanimously of the opinion that the particular legislation complained of in this case unduly interferes with the constitutional prerogatives of plaintiff as to freedom of action, speech and property rights.”
In my opinion the evil sought to be corrected by the ordinance is a business evil. The ordinance has no relation to public health and is an unlawful interference with private business. It is void as being in violation of the Fourteenth amendment of the United States Constitution.
The decree of the trial court is reversed, without costs as a constitutional question is involved.
North, C. J., and Starr, Wiest, and Boyles, JJ., concurred with Sharpe, J. Beid, J., took no part in the decision of this case. | [
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Sharpe, J.
(dissenting). This is an appeal in the nature of certiorari from an order of the Michigan public service commission dismissing a petition by tbe city of Detroit asking for a reduction in tbe electric rates of the Detroit Edison Company.
In October, 1942, the city of Detroit filed a petition with the Michigan public service commission asking that the commission issue an order directed to the Detroit Edison Company to show cause why the company should not file a new schedule of rates effective during November and December, 1942, which will effectuate a net income for the accounting year of 1942 of not more than $12,000,000 and file a reduced schedule of rates effective January 1, 1943, under which the company would reduce its existing rates about 25 per cent.
Soon after the above petition was filed, the cities of Dearborn, Highland Park .and Hamtramck, the Michigan Manufacturers’ Association, the City Ice & Fuel Company, and the office of price administration of the United States government were permitted to intervene.
The petition filed by the city of Detroit alleges that the Detroit Edison Company will fall into the excess profits tax bracket as defined by the 1942 income tax law to the extent of approximately $8,000,000 and will be required to pay 90 per cent, of this amount as excess profits taxes; that such excess income has been derived under the present rates and schedules of the Detroit Edison Company; and that such rates and schedules are unreasonable and excessive.
The office of price administration intervened “so that rate increases will be disapproved and rate reductions effected, consistently with the act of October 2, 1942, and other applicable Federal, State or municipal law, in order to keep down the cost of living and effectuate the stabilization program.”
The other interveners stressed their special circumstances, but all sought a reduction in rates. The commission conducted a general rate hearing. There was extensive evidence as to the nature, cost and value of the assets of the Detroit Edison Company, its income and its expenses and the rate of return to which it is entitled. The Detroit Edison Company presented evidence that its proper rate base was more than $330,000,000. The city of Detroit recommended a rate base of $271,576,000. The commission did not decide upon the amount of the rate base, but for the purpose of its decision assumed an amount less than that claimed by the city of Detroit.
On July 17,1943, the commission entered an order of which the following is pertinent to the issue involved in this cause:
“Under the laws of the State of Michigan, a regulated utility is entitled to earn a fair return upon the present value of the property devoted by it to public service. Money that has been lawfully spent in rendering service constitutes no part of such a return. The dollar paid out for taxes is no more available as income and return than a dollar spent for labor or any other legitimate expense.
“We have repeatedly stressed the fact that we are a statutory body and possess only the powers conferred upon us by statute. We know of no statute giving us the power to forbid a company the right to charge as an operating expense any tax lawfully incurred by it. Likewise we know of no statute giving us the power to forbid such a company the right to so charge any part of the tax so incurred to operating expenses.
“We therefore find that all taxes are a proper operating charge and they will be so considered in determining the income of the company in this case.
" Such being our opinion in determining whether or not the earnings of the Detroit Edison Company are excessive, we consider such earnings as are available to the company after the payment of income taxes.”
The city of Detroit, city of Hamtramck and the price administrator appeal from this order. The city of Detroit contends that the Michigan public service commission, in determining a fair rate of return for a utility, should compute such return completely independent of, and prior to, the application of the excess profits tax rate; and that so-called “war'taxes” as distinguished from normal income and other normal levies should not be chargeable as an operating cost.
The price administrator urges that the commission has the statutory power and duty to disallow improper operating expenses including war income and excess profits -taxes in determining reasonable rates; that the increased income tax rates since 1939 and the excess profits tax are not operating expenses within the usual meaning of that term and should be "disregarded in computing net revenue available for return; and that the allowance of war taxes as an operating expense would be inflationary.
The City Ice & Fuel Company urges that the commission should be instructed to fix rates after a just balancing of consumer as well as investor interests with any and all pragmatic adjustments necessary in view of abnormal war times and conditions.
■ The Detroit Edison Company urges that the law of Michigan does not empower the commission to forbid an electric company to charge as an operating expense any tax lawfully incurred; and that any tax including income taxes paid the Federal government is a proper element of the cost of operation.
It is to be noted that there is no question raised in this appeal as to the rate base or the reasonable rate of return and these issues are not before the court. The only question we have for decision may be stated as follows: Does the Michigan public service commission have discretionary power to exclude excess profits taxes from operating expenses in determining the rates?
In deciding this question it is necessary to examine the act creating the commission. The Michigan public service commission was created by Act No. 3, Pub. Acts 1939' (Comp. Laws Supp. 1940, § 11017-1 et seq., Stat. Ann. 1943 Cum. Supp. § 22.13 [1] et seq.).
Section 4 of the act provides:
“All the rights, powers, and duties vested by law in said Michigan public utilities commission, and in the Michigan railroad commission and transferred to the Michigan public utilities commission, shall be deemed to be transferred to and vested in the Michigan public service commission hereby created, and shall hereafter be exercised and performed by said commission. * * * Said Michigan public service commission shall have and exercise all rights and privileges and the jurisdiction in all respects as has been conferred by law and exercised by the Michigan public utility commission under the laws of this State. * * * Any order or decree, of the Michigan public service commission shall be subject to review in the manner now provided by law for reviewing orders and decrees of the Michigan railroad commission or the Michigan public utilities commission.
Section 6 of the act reads 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 municipally-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 is further granted the power and jurisdiction to hear and pass upon all matters pertaining to or necessary or incident to such regulation of all public utilities, including electric light and power companies, whether private, corporate or cooperative.”
The powers of the present commission to regulate charges for electricity are granted by Act No. 106, § 7, Pub. Acts 1909, as last amended by Act No. 108, Pub. Acts 1923 (2 Comp; Laws 1929, § 11099 [Stat. Ann. § 22.157]), which provides:
“In determining the proper price, the commission shall consider and give due weight to all lawful elements properly to be considered to enable it to determine the just and reasonable price to be fixed for supplying electricity, including cost, reasonable return on the fair value of all property used in the service, depreciation, obsolescence, risks of business, value of service to the consumer, the connected load, the hours of the day when used and the quantity used each month. ” ,
This being an appeal in the nature of certiorari, we consider questions of law only and will not review questions of fact or weigh the evidence except to determine whether there is an entire absence of evidence or proof on some material fact. The power or authority of the Michigan public service commission to exclude excess profits taxes in determining rates is a question of law.
In Michigan Public Utilities Commission v. Michigan State Telephone Co., 228 Mich. 658 (P. U. R. 1925 C, 158), we held that the following were proper elements entering into the determination of a just rate (syllabus):
“The chief elements of just compensation to defendant telephone company are: (a) Operating expense, including administration, labor, interest, taxes, certain items of repair and maintenance; (b) depreciation, physical and functional, including wear and tear of property by use, the constant destruction of property by earth’s relentless processes, and supersession and obsolescence of machines and structures by progress; (c) fair return upon the present fair value of the property used and useful in public service.”
In Galveston Electric Co. v. City of Galveston, 258 U. S. 388, 399 (42 Sup. Ct. 351, 66 L. Ed. 678), it was held that income taxes were properly chargeable as an operating expense. The court there said:
“The remaining item as to which the master and the court differed relates to the income tax. The company assigns as error that the master allowed, but the court disallowed, as a part of the operating expenses for the year ending June 30, 1920, the sum of $16,254 paid by the company during that year for Federal income taxes. The tax referred to is presumably that imposed by the act of February 24, 1919, chap. 18, §§ 230-238, 40 Stat. at L. 1057, 1075-1080, which for any year after 1918 is 10 per cent, of the net income. In calculating whether the five-cent fare will yield a proper return, it is necessary to deduct from gross revenue the expenses and charges; and all taxes which would be payable if a fair return were earned are appropriate deductions. There is no difference in this respect between State and Federal taxes or between income taxes and others. But the fact that it is the Federal corpqrate income tax for which deduction is made, must be taken into consideration in determining what rate of return shall be deemed fair. For under section 216 the stockholder does not include in the income on which the normal Federal tax is payable dividends received from the corporation. This tax exemption is therefore, in effect, part of the return 'on the investment.”
See, also, Georgia Railway & Power Co. v. Railroad Commission of the State of Georgia, 262 U. S. 625 (43 Sup. Ct. 680, 67 L. Ed. 1144); Oklahoma Natural Gas Co. v. Corporation Commission, 90 Okla. 84 (216 Pac. 917).
The excess profits tax is somewhat similar to the income tax in that it is a tax the amount of which depends upon a certain net amount arrived at in part by deducting certain operating costs from gross revenue. The excess profits tax is a tax on the income over and above some specified minimum set in the law providing for the tax. It is a tax that the utility is required to pay and necessarily a part of the costs of operation of that utility. In our opinion the commission has no discretion in excluding these taxes in determining the operating expense of the utility. The commission found that in 1942 the earnings, derived from the rates approved, represented a rate of return of 4.75 per cent. If the price of electricity can be reduced and still leave a reasonable return on the fair value of all property as required by 2 Comp. Laws 1929, § 11099, then the commission has a duty to make such reduction in rates.
The order of the commission should be affirmed. No costs are allowed as a public question is involved.
Wiest and Boyles, JJ., concurred with Sharpe, J.
Bushnell, J.
I am unable to concur in the result reached by Mr. Justice Sharpe because, in my opinion, affirmation of the order of the commission will constitute judicial negation of the legislative intent for the creation of the commission.
The controlling and decisive question is:
May defendant Michigan public service commission, under its statutory power to fix reasonable rates at which a public utility will furnish electricity to the public, exclude from the commission’s consideration all or a reasonable part of $8,000,000 excess profits which it earns under an existing rate charged its consumers and on which a 90 per cent, profit tax is payable to the Federal government.
It is the duty of the commission, under its statutory power, to fix a just and reasonable rate. This can be accomplished only by balancing the interest of public utility investors and the consuming public. Federal Power Commission v. Hope Natural Gas Co., 320 U. S. 591 (64 Sup. Ct. 281, 88 L. Ed. _).
In the instant case the question narrows down to whether the commission in passing upon a petition to reduce the rate charged the consumer by the public utility should consider and exercise its discretion in' respect to the exclusion in whole or in part of “excess profits” of the character hereinbefore noted. That such “profits” exist may or may not demonstrate that, the earnings of the utility are excessive.
In the instant case the commission disclaims that it possesses any power to consider this matter. It thus, completely ignores its discretionary authority to exclude those items from public utility operating expenses which place unnecessary burdens upon the consumer. Obviously in so doing the commission failed to balance investor and public interests.
The commission arrived at its conclusion in the instant case upon the erroneous assumption that it was wholly without power to exclude from its consideration in fixing the rate to be charged to the consumer the undisputed fact that the presently approved rate produces “excess profits of approximately $8,000,000 on which there is a 90 per cent, excess profit tax.” 'Under such circumstances it cannot be said that a fair and adequate hearing was had before the commission.
The exclusion of an unnecessary element, such as avoidable taxes, is not inconsistent with the holding of this court in Michigan Public Utilities Commission v. Michigan State Telephone Co., 228 Mich. 658 (P. U. R. 1925 C, 158), cited and quoted by Mr. Justice Sharpe, and is in harmony with the Hope Case, supra. See, also, Vinson v. Washington Gas Light Co., 321 U. S. 489 (64 Sup. Ct. 731, 88 L. Ed. _ [decided March 27, 1944]).
As I read Galveston Electric Co. v. City of Galveston, 258 U. S. 388, 399 (42 Sup. Ct. 351, 66 L. Ed. 678), which is intimated by my Brother as controlling, its authority is limited to normal taxes and not to abnormal and avoidable taxes on “excess profits” even though it must be conceded that the term by which such tax is designated is a misnomer. Excess prof-, its are a question of fact for determination by the commission.
Without discretionary power to exclude any and all unnecessary elements of expense in determining a just and reasonable rate, the Michigan public service commission would be an impotent body. It could not have been the intent of the legislature that the commission should lack any necessary power to fix reasonable rates, and the commission should not be permitted to declare itself impotent. It clearly possesses such discretionary power, and that power should be exercised.
The commission should not require the utility corporation to reduce its rates for the period during which it has paid excess profits taxes, nor for a period during which it may be liable for such payment on accrued taxes. It should take into consideration the usual elements of rate determination as well as obsolescence and depreciation of capital assets due to any extraordinary situations arising out of war conditions such as the effect of unusual and heavy war time loads. It may also consider the time lag in a return to normal conditions and the period elapsing before a redetermination can again be made of a reasonable rate. The public should not be required to pay rates that will yield an extraordinary profit to the utility and the stockholders of the utility on the other hand are at all times entitled to a fair'return on their investment.
The order dismissing the petition of the city of Detroit is vacated and the cause is remanded for reconsideration and determination, so that the present rate may be maintained or reduced as the commission shall determine in the light of our decision herein. No costs.
North, C. J., and Starr, and Beid, JJ., concurred with Bushnell, J. Butzel, J., did not sit.
See ante, 712 et sec[. — Repoktek. | [
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Sharpe, J.
Grace K. Braffett and John W. Braffett were divorced in November, 1934. The decree of divorce provided:
“It appearing that the said defendant, John W. Braffett, has heretofore released and conveyed nnto the said plaintiff, Grace K. Braffett, all his right, title, and interest in and to the real estate formerly occupied by the said parties, and hereinafter described; and has agreed to pay to the said plaintiff the sum of $125 per month for and during the natural life of the said plaintiff as permanent ialimony; and
“It appearing that the said settlement is a fair and equitable one: * * *
“It is further ordered, adjudged and decreed that ' the said defendant, John W. Braffett, shall pay to the said plaintiff, Grace K. Braffett, the sum of $125 per month beginning the 1st day of December, A.D. 1934, and each and every month thereafter during the natural life of the said plaintiff unless the plaintiff shall remarry, and in the event of her remarriage the said payments shall terminate; said payments to be made through the clerk of the court, county of Oakland, State of Michigan, or as the parties may hereafter agree. ’ ’
John W. Braffett remarried and died testate on . the 11th day of June, 1942. At the time of his death he was in arrears for alimony in the sum of $1,350. No proceedings were taken during the lifetime of John ~W. Braffett to have the decree modified, nor has Grace K. Braffett remarried.
Subsequent to the death of John W. Braffett, Grace K. Braffett, claimant herein, filed her claim in the probate court against the estate of John W. Braffett for alimony due and unpaid prior to the death of the deceased in the amount of $1,350 and for alimony for and during her natural life in the amount of $28,183 which contingent claim is based upon a contribution of $125 a month for claimant’s life expectancy of 18.79 years.
The probate court allowed the claim of $1,350 as a liquidated claim against the estate and entered the following order:
‘ ‘ That the claimant has a contingent claim against this estate for alimony subsequent to the date of death of the testator, the amount of which is to be determined solely by the circuit court in chancery which retains jurisdiction, and
“In view of the fact that the circuit court may allow the alimony order to continue for an unascertained time this court, in order to protect such contingent claim under chapter 8, §§25, 27, of the probate code (Act No. 288, Pub. Acts 1939) , orders the estate to be held open and sufficient funds retained in it to safeguard the future payments to be made, based on the present alimony rate and the total life expectancy of the claimant according to the mortality tables.”
The cause was appealed to the circuit court and the trial judge affirmed the order of the probate court. Claimant appeals and urges that the divorce decree was a consent decree; that the property settlement of the parties was embodied in the decree; that she has an absolute right to a judgment in the circuit court directing the estate to pay her such sum for the rest of her life or until she remarries; and that the probate court has sole jurisdiction of the claims against the’ estate of John W. Braffett.
At common law, proceedings to enforce alimony abate on the death of either party. The authority to award alimony depends upon statutory law.
In Seibly v. Ingham Circuit Judge, 105 Mich. 584, we held that the death of the husband does not oust the court of jurisdiction to award permanent alimony. This holding was based on How. Stat. §§ 6245, 6247.
In Creyts v. Creyts, 143 Mich. 375 (114 Am. St. Rep. 656), we held that a provision in a decree of divorce against a husband for the. payment of a certain sum monthly, until the further order of the court, for the support of an infant child is not discharged by the death of the husband. The law in effect at this time was 3 Comp. Laws 1897, §§ 8640, 8641.
In Maslen v. Anderson, 163 Mich. 477, a decree of divorce was granted the wife and alimony was given to her payable monthly as long as she should live and remain unmarried. Later Mr. Anderson died and the executor of his estate attacked the divorce decree in the chancery court. We there said: “We are satisfied with the decree of the court below, in so far as it deals with the subject of alimony to be paid to Louisa A. Anderson (wife).”
In Pingree v. Pingree, 170 Mich. 36, we held that by virtue of 3 Comp. Laws 1897, §§ 8638, 8640, 8641, an equity court has jurisdiction to modify a decree of divorce awarding alimony payable in instalments, after the death of the defendant husband, so as to grant a gross sum out of the estate of the deceased in lieu thereof.
It is to be noted that the statutes above referred to still exist and, with the exception of How. Stat. .§ 6247, have not been modified since the decision in the Seibly Case, supra. They are a part of the general laws relating to divorce. 3 Comp. Laws 1929, § 12745 (Stat. Ann. § 25.103), which was How. Stat. § 6245, 3 Comp. Laws 1897, § 8638; 3 Comp. Laws 1929, § 12747 (Stat. Ann. § 25.105), which was How. Stat. § 6247, as amended by Act No. 197, Pub. Acts 1897, being 3 Comp. Laws 1897, § 8640; and 3 Comp. Laws 1929, § 12718 (Stat. Ann. § 25.106), which was How. Stat. § 6248, 3 Comp. Laws 1897, § 8641.
In 1909, Act No. 259, Pub. Acts 1909 (3 Comp. Laws 1929, § 12766 [Stat. Ann. §25.131]), was enacted. This act reads as follows:
“Section 1. When any decree of divorce is hereafter granted in any of the courts of this State, it shall be the duty of the court granting such decree to include in it a provision in lieu of the dower of the wife in the property of the husband, and such provision shall be in full satisfaction of all claims that the wife may have in any property which the husband owns or may thereafter own, or in which he may have any interest. ’ ’
Prior to this act, a divorced wife was entitled to alimony payments from the estate of her deceased former husband. The question now before us is: Does the above act repeal by implication 3 Comp. Laws 1929, §§ 12715, 12717 and 12718?
In Lenawee County Gas & Electric Co. v. City of Adrian, 209 Mich. 52, 64 (10 A. L. R. 1328), we said:
“Laws are assumed to be enacted by the legislative body with some knowledge of and regard to existing laws upon the same subject and decisions by the court of last resort in reference to them.”
In People v. Buckley, 302 Mich. 12, 22, we said:
“The question of repeal must be considered with the following rules of statutory construction in mind: The law does not favor repeals by implication, In re Opening of Gallagher Avenue, 300 Mich. 309; Sambor v. Home Owners’ Loan Corp., 283 Mich. 529; In re Reynolds’ Estate, 274 Mich. 354; Club Holding Co. v. Flint Citizens Loan & Investment Co., 272 Mich. 66. There is no presumption of repeal by implication, In re Opening of Gallagher Avenue, supra; City of Detroit v. Weil, 180 Mich. 593; In re Bushey, 105 Mich. 64; People v. Thompson, 161 Mich. 391. Repeal by implication is not permitted if it can be avoided by any reasonable construction of the statutes. Couvelis v. Michigan Bell Telephone Co., 281 Mich. 223; People v. Hanrahan, 75 Mich. 611 (4 L. R. A. 751). If by any reasonable construction two statutes can be reconciled and a purpose found to be served by each, both must stand, Garfield Township v. A. B. Klise Lumber Co., 219 Mich. 31; Edwards v. Auditor General, 161 Mich. 639; People v. Harrison, 194 Mich. 363. The duty of the courts is to reconcile statutes if possible and to enforce them, Board of Control of the Michigan State Prison v. Auditor General, 197 Mich. 377. The courts will regard all statutes on the same general subject as part of one system arid later statutes should be construed as supplementary to those preceding them, Wayne County v. Auditor General, 250 Mich. 227. See, also, Rathbun v. State of Michigan, 284 Mich. 521.”
In Ritser v. Ritzer, 243 Mich. 406, we said:
“The object and purpose of the statute of 1909 (Act No. 259, Pub. Acts 1909) was to make it mandatory for the trial court to dispose of the matters of divorce, alimony, and property together.”
The title of the act reads as follows:
“An act to provide that decrees of divorce shall make provision in satisfaction of the claims of the wife in the property of the husband, to change the tenure of lands owned by husband and wife in case of divorce, and to provide for the disposition or partition of such lands or the proceeds thereof.”
In our opinion, the 1909 act does not repeal 3 Comp. Laws 1929, §§ 12745, 12747, and 12748. Section 12745 authorizes the chancery court to decree to the wife such part of the personal estate of the hus band and alimony out of his real and personal estate as is just and reasonable. Section 12747 authorizes the chancery court to impress a lien upon the real .and personal estate of the husband for the purpose of enforcing a decree providing for the payment of alimony or allowance for the support of minor children. Section 12748 authorizes a chancery court to revise a decree for alimony or the support and maintenance of minor children. The. 1909 act provides that in divorce decrees it shall be mandatory for the chancery court to include a provision in lieu of the dower of the wife in the property of the husband. It does not touch upon the subject of alimony or the support of minor children. It is a new act and in no way repeals any of the above sections. J
Claimant urges that under the circumstances of the case at bar the probate court has jurisdiction to pass upon the claim for alimony presented to it. .
We recognize the jurisdiction of the probate court to pass upon claims properly allowable by that court, but in Loomis v. Loomis, 273 Mich. 7, we held that the chancery court has the power to modify and revise provisions for alimony, whether accrued or for future obligations. The death of a husband may create a situation where the decree for alimony should be modified. The burden of having such a decree modified rests upon the party objecting to the amount of alimony previously determined.
In Martin v. Thison’s Estate, 153 Mich. 516 (18 L. R. A. [N.S.] 257, 126 Am. St. Rep. 537), we said:
“As the defendant did not seek to have it (decree) modified in his lifetime, and as no showing was made why the instalments which had accrued between the date of the decree and the marriage of the claimant should not be paid in full, we think the judge did not err in directing a verdict for the amount.”
In the case at bar, the deceased took no steps to have the divorce decree modified, nor do we find that the representative of his estate took any action to have the decree modified. In the absence of any action taken to modify the decree, the probate court may allow the claim for accrued alimony and make provision for the payment of future alimony by holding the estate open and retaining funds in it to safeguard the contingent claim.
The judgment is affirmed, with costs to appellee.
North, C. J., and Starr, Wiest, Btttzel, Bitshnell, and Reid, JJ., concurred with Sharpe, J.
See Comp. Laws Supp. 1940, §§ 16289-8 [25], 16289-8 [27], Stat. Ann. 1943 Eev. §§ 27.3178 [435], 27.3178 [437]).—Bepoetek. | [
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Wiest, J.
Plaintiffs were decreed to yield np possession of certain premises on January 1, 1942. They appealed from that decree and to stay proceedings pending appeal this court ordered that they make a deposit of $5,000 with, the clerk of the circuit court. They lost on their appeal, Grevnin v. Collateral Liquidation, Inc., 302 Mich. 274. Then defendant moved to recover on the cash bond the fair rental Value of the premises to June 23, 1942. The court heard testimony on the fair rental value and fixed the same at $520.83 per month. The court fixed the value of the premises at $125,000, that being the amount at which the defendant offered the same for sale. Five per cent, on the offered sale price was the fair rental fixed by the court.
Defendant claims the court should have added the taxes and insurance and had this been done the monthly rent on that basis would amount to $940.65.
Appeal is by defendant and the only question presented is that of the fair rental value of the premises. The premises consist of 20 acres of land in the village of Ecorse between Jefferson avenue and the Detroit River harbor line, of which land one-half is under water, and the premises have buildings thereon for smelting and refining of metals and some other buildings, also storage space.
The question here is not a return on the investment but the fair rental value of the premises. As a matter of law the circuit judge was not required to add taxes and insurance to the value of the premises in fixing a basis upon which to compute a fair rental value thereof during the period here involved.
We find no reversible error. The decree is affirmed, with costs to plaintiffs.
North, C. J., and Starr, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Wiest, J.
A creek outlet to Brill’s Lake in Jackson county crosses plaintiffs’ farm. There was a dam across the creek below plaintiffs’ property but it was washed away sometime between the years 1901 and 1905, and not rebuilt until 1930. Plaintiffs claim the rebuilt dam retards flowage of water in the creek, causes their low land to be saturated with spill water therefrom and rendered useless for pasturage purposes and filed the bill herein to enjoin such floodage and have damages for injuries sustained. Defendant, by answer, denied the claimed floodage by the rebuilt dam beyond that, if any, occasioned by the former dam and that, by old grants and acquired prescriptive rights, plaintiffs are without remedy. By reply, plaintiffs denied the claimed grants- and averred that prescriptive right, if any, was lost by nonuser between the time the old dam went out and the new one was erected, a period of 25 years.
We find no grant of right of floodage of plaintiffs’ land and the easement, if any, was only by prescription. Was snch prescriptive easement lost by nonuser for 25 years between the time the old dam went out and the new dam was installed? After the old dam went out the low land of plaintiffs afforded pasture for cattle; at times the grass thereon was cut by a mowing machine and removed by a wagon driven upon the premises. No prescriptive easement was acquired after erection of the new dam. Plaintiffs ’ low land has been wet since construction of the new dam and has become boggy and unfit even for pasturage purposes, and such now continuous condition' is attributable, in part, to water, cast thereon by the new dam. At the most defendants’ claimed easement, in its origin and existence under the old dam, rested upon a servitude imposed on plaintiffs ’ land by prescription. For 25 years plaintiffs ’ low land was free from exercise by defendants or their predecessors of any such servitude and, under the circumstances here disclosed, we hold that where the easement was imposed by prescription only, and not by grant or reservation in chain of title, defendants’ nonuser for a period equal to that of its creation results in its loss. In some States, statutes so provide, but in Michigan there is no such statute, nor is one needed, for here we go to the common law.-'^j
This court, in cases involving easements by grant, in stating the rule relative thereto, has sometimes mentioned the rule we now apply to easements by prescription. But inasmuch as it was not necessary to decision in such cases we treat it as dicta and, therefore, consider the point here presented as of first impression in this jurisdiction.
In 17 Am. Jur. p. 1026, on the subject of Easements, it is stated:
“The cases are agreed that at least where a right of way or other easement is created by grant, deed, or reservation, no duty is thereby cast upon the owner of the dominant estate thus created to make use thereof or enjoy the same as a condition to the right to retain his interest therein; the mere nonuser of an easement will not extinguish it. In fact, it is held that even nonuser for the length of the prescriptive period does not operate to extinguish an easement created by grant, deed, or reservation. A distinction has been made, however, between easements created by grant and those created by prescription. As to easements of the latter character, it has been held that possession by the owner of the servient estate for the statutory prescriptive period will operate to extinguish the easement without showing that such possession was hostile or adverse.”
Nonuser, as applied to the facts in the case at bar, is not to he confused with nonuser by claimed abandonment. Upon the subject of nonuser see 2 Thompson on Real Property (Perm. Ed.), § 702; Rhodes v. Whitehead, 27 Tex. 304 (84 Am. Dec. 631); Browne v. Trustees of Methodist Episcopal Church, 37 Md. 108; Cox v. Forrest, 60 Md. 74. We do not spend time upon the refinements indulged in some cases in construing abandonment of an easement for here we have an instance of nonuser and the intention, if any, of the dominant proprietor is not involved. If the easement by prescription is not lost by nonuser for a period of 25 years it might continue indefinitely and purchasers of the claimed servient estate, without notice, be bound thereby. Such a rule would render purchase of premises somewhat precarious and we decline to adopt it. There is nothing sacrosanct about a prescriptive easement. In this State it is no mor» than an unop posed, continuous trespass for 15 years. A servitude easement imposed by prescriptive user for 15 years is lost by nonuser during a like period of 15 years.
The evidence upon the question of damages is ■ wholly unsatisfactory and we cannot, upon this record, award any damages.
The decree in the circuit court is reversed and a decree will be entered in this court permanently enjoining defendants from causing water from the creek to pass therefrom upon plaintiffs’ land by reason of the dam or other obstruction. Plaintiffs will recover costs.
North, C. J., and Starr, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Wiest, J.
Plaintiff entered into a written contract to lath and plaster defendant’s bowling alley building “according to the plans, drawings, details and specifications made or to be made by Robert J. West architect, the work to be done in a good, sufficient, and workmanlike manner, and to the entire satisfaction of the said Otto Milbrand and architect, for the sum of $7,500.” Plaintiff brought this action to recover the claimed balance due under the contract and the sum of $852 for extras and, upon trial without a jury, had judgment for $3,031.35. Defendant reviews by appeal.
Upon joinder of issues for trial defendant invoked the contract provisions and alleged the work was not done in a good, sufficient and workmanlike manner, to his satisfaction, hut was poorly done and denied the claimed extra work and pleaded set-off and recoupment.
Upon review defendant contends that under the record plaintiff did not perform the contract to his entire satisfaction as provided therein; that while the burden was on plaintiff to show defendant’s expressed dissatisfaction was asserted in bad faith the record shows his good faith based upon adequate grounds and also that the proofs did not sustain the judgment for extras.
The provision in the written contract requiring ‘the work to be done in a good, sufficient, and workmanlike manner, to the entire satisfaction of Otto Milbrand and architect,” sensibly construed, required plaintiff, in order to recover the agreed contract amount, to show full performance of the work in “a good, sufficient, and workmanlike manner” and left- defendant to make a counter showing of claimed nonperformance.
Plaintiff claimed’ plans were furnished upon which he based his bid for performance of the contract for work to be done but during the course of the work he performed in accordance with plans held by defendant, who supervised the construction; that under such plans he performed work not included in the plans upon which he made his bid and such extra work amounted to the sum of $852, as awarded by the court, in excess of the contract price.
Whether the work was done by plaintiff in accordance with the contract was a disputed question of fact. We cannot find the judgment is against the great weight of the evidence. The plans used on the job covered work now claimed by plaintiff as an extra and for which the trial court made an award of $852. The plans upon which plaintiff made his bid did not provide for such extra work but the plans used on the job did so provide and the work was so performed.
Plaintiff claimed that during the course of the work his copy of the plans could not be located but after the work was completed he found the same at his home and learned the plans he had and upon which he bid did not cover the now claimed extra work.
The plans were prepared by an architect and a change therein made covered the now claimed extras but the copy of the plans furnished plaintiff by the architect did not carry the change.
The plans furnished plaintiff by the architect and upon which his bid was to be figured and the contract for performance of the work based did not contain any detail or information of the extra work actually performed. The extra work was omitted from the information furnished plaintiff, upon which he based his bid, and therefore never became a part of the contract. See Nimke v. Seeley, 269 Mich. 208.
The court was not in error in allowing recovery. We find no reversible error and the judgment is affirmed,, with costs to plaintiff.
North, C. J., and Starr, Butzel, Btjshnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Butzel, J.
On February 2, 1943, a judgment of no cause of action was rendered in a suit brought by plaintiff against defendants in the municipal court for the city of Pontiac, Oakland county, Michigan. Plaintiff on the 6th day of February, 1943, filed a claim of appeal with the justice of the peace and posted a cash bond for the sum of $50. On the same day a'true copy-of the claim of appeal was mailed from Detroit to the attorneys for defendants and proof of service was duly filed with the justice. Plaintiff, however, did not at the time serve defendants with a copy of the affidavit and bond filed by him, together with notice of appeal within five days after the filing of the return on appeal in the office of the county clerk. The justice of the peace did not make his return until the 10th day of February, 1943, when the claim of appeal, proof of service and appeal bond were all duly filed by him in the circuit court for the county of Oakland. The claim of appeal as filed and served on defendants on February 6, 1943, bore the heading “Appeal to the circuit court for the county of Oakland from the municipal court for the city of Pontiac.” Oh the 6th day of February, 1943, plaintiff by his attorney entered his appearance and a notice to that effect to attorneys for defendants was appended thereto. This was returned and filed in the circuit court by the justice on February 10,1943. There is no claim made or proof of service that this latter notice dated February 6, 1943, was served on defendants. On March 19,1943, defendants entered their special appearance in the case and gave notice thereof to attorney for plaintiff, and on the same day filed a motion to dismiss setting forth the failure of plaintiff to follow the provisions of the statute relative to appeals to the circuit court. On March 29, 1943, the circuit court denied the motion to dismiss and also entered an order permitting plaintiff to perfect the appeal so as to give proper notice as required by Act No. 314, chap. 78, § 2a, Pub. Acts 1915, as added by Act No. 132, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 1622A-1, Stat. Ann. 1943 Cum. Supp. § 27.3482 [1]), within five days from the signing of the order. On March 29, 1943, plaintiff filed a new notice of ap peal and served it together with copy of the affidavit and the bond on appeal upon the attorneys for defendants. Defendants on April 15, 1943, filed a motion to vacate the order entered on March 29, 1943, permitting plaintiff to perfect the appeal. On June 14, 1943, the court entered an order vacating and setting aside the order of March 29, 1943. On April 26, 1943, the court entered a formal order denying defendants’ motion to dismiss. We granted leave to appeal in the nature of mandamus and certiorari.
Defendants claim that the court erred in not granting their motion to dismiss. They rely upon plaintiff’s failure to follow the statute, Act No. 314, chap. 78, § 2a, Pub. Acts 1915, as added by Act No. 132, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 1622-U1, Stat. Ann. 1943 Cum. Supp. § 27.3482[1]), which reads as follows:
“In cases of appeal from a circuit court commissioner or the justice’s court the party appealing shall serve a copy of the affidavit and bond filed by him together with notice of the date of filing of the return on appeal and a notice to the effect that the opposite party is required to enter his appearance in the circuit court within 20 days after the date of filing of the return on appeal upon counsel for' the opposite party in the court below, if the opposite party had counsel in the court below, or if not, then such notice shall be served upon the opposite party personally or by mail in the manner provided for service upon attorneys by mail, within five days after the return on appeal is filed in the office of the county clerk. Unless the opposite party shall enter his appearance in the circuit court within said 20-day period he may be defaulted as in the case of service of summons issued originally from the circuit court.”
Plaintiff, on the other hand, claims that there was a substantial compliance with the statute, and even if there were defects in the appeal, they were properly amended and that this is permissible under 3 Comp. Laws 1929, §14152 (Stat. Ann. § 27.846), which provides:
“No appeal shall be dismissed on account of any informality or imperfection in the bond, affidavit or other proceedings, for the taking of such appeal, if plaintiff shall either by amendment, or by furnishing a new bond, affidavit or other paper, supply the deficiency or defect.”
Court Eule No. 74 (1933) provides that, in all counties of less than 500,000 population, appeals to the circuit court from justice’s courts shall be made in accordance with the statutory provisions governing the same. This is a statutory appeal and even if the defects in the form of the notice could be cured by serving an amended or new notice containing a copy of the affidavit and bond and notice, such notice would he fatally defective because it was not served upon the opposite party within “five days after the filing of the return on appeal in the office of the county clerk.” Appeals from the justice’s court are statutory and while some liberality has been shown in permitting the curing of defects, we have adhered to the rule that the notice by appellant to the opposite party must be served within five days after the return on appeal is filed in the office of the county clerk. While jurisdiction in the instant case was conferred over the subject matter, it was never acquired over the persons of the defendants because no notice whatsoever was given within five days after the return on appeal was filed with the county clerk.
The statute contains no provision for an extension of time within which such service may be made by the court to which the appeal has been taken. In Shrager v. Rich, 242 Mich. 419, we construed former- Circuit Court Rule No. 11 (237 Mich, xxxiii), which also provided for service within five days after the return on appeal is filed in the office of the county clerk, and which in that respect is similar to section 2a of the act, hereinbefore quoted. We followed the rule set forth in Hosey v. Ionia Circuit Judge, 120 Mich. 280, wherein we stated:
‘ ‘ The statute requiring notice to the adverse party is mandatory, and, until the party is given such notice, the circuit court has no jurisdiction over the parties to the record. ’ ’
A notice later than five days after the filing comes too late. Plaintiff, appellee, however, claims that he gave timely notice but the notice, deficient in form, was given four days prior to the filing of the return by the justice of the peace in the circuit court. At the time plaintiff gave the notice, there was no appeal pending. A very similar situation arose in Livingston v. Saginaw Circuit Judge, 247 Mich. 578, where the former Circuit Court Rule No. 11 was under consideration. We stated:
“The return of the justice on appeal in this case was not filed until July 5th. At the time of the service of notice of retainer (July 3d), there was no such case pending in the circuit court. The purpose of the rule is to inform the appellee that the return on appeal has been filed with the county clerk. We cannot say that the notice of retainer, thus prematurely served, was a substantial compliance therewith.”
Plaintiff claims that Gotfredson Land Co. v. Shevitz, 251 Mich. 74, is authority for permitting a belated service of notice of appeal and proof thereof as required by former Circuit Court Rule No. 11, but we held that such service was waived by plaintiff’s entering his general appearance so that the court thereby acquired jurisdiction of the person. We further held that under the circumstances defendants should have been permitted to correct formal defects in the notice. Plaintiff claims that in the instant case, there was a general appearance by defendants. They entered a “special appearance” and the day they gave notice that they had caused their “special appearance” to be entered, in a motion to dismiss they stated that they had entered their appearance “specially.” This was not a general appearance. Woodliff v. Baker, 279 Mich. 356.
Under the circumstances, .we are constrained to hold that the trial judge was in error in not granting the motion to dismiss and the case is remanded to the circuit court with the order that the motion to dismiss be granted. Defendants will recover costs.
North, C. J., and Starr, Wiest, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Coleman, J.
In this products liability case, plaintiff appeals from a directed verdict granted in the circuit court and affirmed in the Court of Appeals. She argues that the testimony of her expert witness created a question of fact for the jury. We disagree, and affirm the decision of the trial court, but for reasons different from those of the Court of Appeals.
I
Leave to appeal was granted in order to consider the following questions:
1. Does a manufacturer’s compliance with industry or governmental standards in a products liabil ity action preclude the jury from determining whether such conduct was reasonable?
2. Is the test for assessing a manufacturer’s liability to persons injured by its product whether the risk is unreasonable and foreseeable by the manufacturer, and not whether the risk is patent or obvious?
After the briefs were filed and oral arguments were heard, the Court requested the parties to file supplemental briefs addressing the following added issues:
3. Did the trial court err, in light of MRE 705, in holding that the testimony of plaintiff’s expert witness did not create a question of fact for the jury?
4. Does a manufacturer of a vehicle have a duty to design and manufacture its products so as to eliminate any unreasonable risk of foreseeable injury to the occupants as a result of a collision for which the manufacturer may not be responsible?
II
Plaintiff’s husband had been a qualified forklift driver at Great Lakes Steel for four or five years prior to September 30, 1970. He reported to work shortly after midnight on that date and was assigned to the location where he would be working for the evening. A short time later, other employees found that he had been in an accident en route to his assignment. No one witnessed the accident. For undetermined reasons, the forklift which he was operating had traveled off the roadway, struck a concrete-filled post, and turned over on its side. There were no skidmarks, and the post was knocked over to a 33-degree angle. Plaintiffs husband was pinned under the overhead protective guard on the forklift and was dead when discovered. After the accident, the forklift was tested and found to be in perfect mechanical order. The road was one regularly traveled by forklift drivers. There had been no complaints about the road condition, nor had there been any prior accident.
The physician called to the scene found that the decedent had suffered a fractured skull, which seemed to the doctor to be the most plausible cause of death. However, it could not be determined at the scene whether a heart attack or other physical failure preceded the accident. An autopsy was ordered but was not offered into evidence prior to the conclusion of plaintiffs proofs and the directed verdict of the trial court. Plaintiffs motion in limine to suppress the autopsy report of 0.32% alcohol in the decedent’s urine was denied by the trial judge.
Plaintiff sued the manufacturer of the forklift, Allis-Chalmers Corporation, utilizing theories of negligence, implied warranty, and strict liability. At trial she sought, inter alia, to prove that defendant’s negligence or some defect in the vehicle had caused the accident and that the stability of the forklift had not been properly tested. She also sought to prove that the design of the forklift was defective for failing to provide some sort of factory-installed driver restraint that would have prevented the decedent’s ejection during the rollover and, hence, would have prevented his being pinned under the overhead guard.
However, on appeal, plaintiff does not challenge that portion of the trial court’s directed verdict which found no evidence that either the forklift’s collision with the post or the rollover was caused by a defect in the forklift or the manufacturer’s negligence. She did appeal the denial of her motion in limine to the Court of Appeals, but does not pursue that issue in her appeal to this Court.
The issue she presents to us is whether she established a prima facie case that the forklift was defectively designed because of its failure to include some sort of driver restraint as standard equipment.
In,seeking to prove defective or negligent design, the plaintiff relied on the testimony of one expert witness, Joseph Harris. Mr. Harris was employed as an independent consulting physicist, and previously had worked for General Motors for 12 years in the area of vehicle safety. He had never designed a forklift, nor any part of one, and had not worked in conjunction with their manufacture. He had operated one during a summer about 30 years prior to trial, but not since. Apart from preparing for this litigation, the record is not clear concerning whether any of his work in the area of vehicle safety had related specifically to forklifts. He testified, however, that a forklift was just another type of vehicle to which much of his work on vehicles in general would be applicable.
Plaintiffs expert gave his opinion that a rollover was a foreseeable type of forklift accident. He also stated that it was foreseeable that a forklift driver could be pinned under the overhead protective guard in the event of a rollover. The overhead protective guard, which consisted of four posts and án overhead screen, is a safety device used on forklifts in order to prevent objects from falling on the driver’s head. Mr. Harris recognized the guard as being a proper safety device, but testified that when it is used some sort of driver restraint should be utilized to keep the driver from being ejected through the open sides of the forklift in the event of a rollover.
He suggested four types of driver restraints that might have been effective: first, a seat belt; second, a cage-type enclosure; third, a bar like those used on carnival rides; and fourth, an encapsulating seat which would have arms that to some extent would restrict a driver’s movement. He gave his opinion that had a driver restraint been used the decedent might still have been injured, but he might not have been crushed.
The cage-type enclosure which he suggested was offered by the defendant and other forklift manufacturers as an option. It had been offered to plaintiff’s employer, but was not purchased.
Plaintiff’s expert testified that he was not aware of any law, safety regulation, standard, or policy that required or suggested the use of driver restraints on forklifts. He also did not know of any manufacturer which provided seat belts or any driver restraints as standard equipment. He had not seen driver restraints on the kind of forklift involved in this accident.
Evidence was admitted that union employees at decedent’s workplace indicated after decedent’s death that they would not wear seat belts if they were provided because they considered it more dangerous to be trapped in a forklift during a rollover. They would not be able to jump free. Many kinds of "protective” devices were tested and found to be more dangerous than the model used.
At the close of plaintiffs proofs, the defendant moved for a directed verdict, arguing, inter alia, that the record lacked any basis for the expert witness’s assertion that driver restraints were needed, and that something more than the witness’s mere unsubstantiated assertion was necessary to send this case to the jury. The plaintiff argued that on the basis of the expert’s testimony, the question whether the design was defective should go to the jury on a strict-liability theory.
Circuit Judge Horace W. Gilmore determined that neither a negligent-design theory nor a strict-liability theory was supported by the record. He assumed that the rule of Rutherford v Chrysler Motors Corp, 60 Mich App 392; 231 NW2d 413 (1975), and Larsen v General Motors Corp, 391 F2d 495 (CA 8, 1968), would apply to the forklift industry and stated:
"[These cases do] not mean that the industry has to design a totally crashproof, injuryproof forklift. [They mean] that the manufacturer has a duty to design and manufacture so as to eliminate any unreasonable risk of foreseeable injury to its occupants as a result of a collision. Now I ñnd nothing in this record other than again the bold assertions of Mr. Harris without supporting data of any standard whatever or any showing that you could say there is an unreasonable risk of foreseeable injury of this kind because of the design of this vehicle. It just is not on this record.” (Emphasis added.)
The plaintiff appealed the directed verdict to the Court of Appeals. The Court of Appeals affirmed, but on grounds different from those utilized by the trial judge. Owens v Allis-Chalmers Corp, 83 Mich App 74, 81; 268 NW2d 291 (1978). The majority concluded that
"for a plaintiff to establish a question of fact as to a manufacturer’s breach of duty in design defect products liability litigation, evidence of the following must be presented:
"(1) That the particular design was not in conformity with industry design standards, design guidelines established by an authoritative voluntary association, or design criteria set by legislative or other governmental regulation; or
"(2) That the design choice of the manufacturer carries with it a latent risk of injury and the manufacturer has not adequately communicated the nature of that risk to potential users of the product.”
Apart from the cage-enclosure option, the only time he had seen a forklift equipped with any of the proposed restraints was when he had worked at General Motors and had noticed that two huge forklifts that were used to transport cars had seat belts. | [
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McGregor, J.
Defendant, after working for plaintiffs for about two years, entered into a written agreement with plaintiffs’ accounting partnership, whereby he purchased a 5% interest therein for the sum of $23,456.09. No initial payment was made as the agreement provided for payment out of defendant’s share of the profits. Two instruments, one titled “Partnership Agreement” and the other “Agreement for Sale of Partnership Interest” were executed by the parties. Defendant thereafter became increasingly dissatisfied with the arrangement, alleging inequities in management and profits, and about a year later, defendant voluntarily terminated his relationship with plaintiff partnership and began practicing public accounting locally. A no-competition clause in the partnership contract stated:
“No partner who shall voluntarily withdraw from the partnership * * # shall, for a period of three years * * * engage in the practice of public accounting within a radius of 50 miles.”
At the time of separation, the record indicates that defendant’s accumulated earnings were $6,625.81, applicable to the purchase account. The purchase price of $23,456.09, less the accumulated earnings of $6,625.81, left a balance due to plaintiffs of $16,-830.28. Under the terms of the partnership contract, plaintiffs had the right to repurchase the 5% share of the withdrawing defendant for only 2-1/2% of his capital account, which at that time and under the provisions of the contract, amounted to $12,696.80. The trial court subtracted the repurchase amount from defendant’s debt, and entered judgment for plaintiffs in the amount of $4,133.48. The trial court also declared the covenant not to compete unenforceable because it was in violation of public policy.
Plaintiffs appeal, seeking damages for defendant’s alleged breach of the covenant not to compete as an alternative to specific enforcement. (They apparently feel it is impractical to have specific performance at this point in time.)
Defendant cross-appeals, contending that the alleged partnership agreement was invalid, and therefore, that the judgment of $4,133.48 was in error.
Defendant attacks the validity of the partnership on two grounds. First, he contends that in a four-man partnership, as here involved, where two senior partners own 90% and have exclusive management, including the power to discharge the lesser partner without cause, the contract is invalid for lack of mutuality. The Uniform Partnership Act controls. CL 1948, § 449.18 (Stat Ann 1964 Rev § 20.18). The statute provides that all partners have equal rights in the management and conduct of the partnership business, except those rights and duties of the partners in relation to the partnership as shall be determined by agreement between them. In this signed agreement, the intent is unambiguous: defendant agreed to relinquish all management to the senior partners. The result is a specific agreement between the parties and, under the statute, is valid and binding.
Defendant’s contention that the agreement lacks mutuality because he could be discharged on a whim and would have no recourse is not borne out by the record. Simply stated, mutuality of obligation means that both parties to an agreement are bound or neither is bound. Here, both parties are bound. Defendant here contributes his knowledge and labor for a stated draw or salary and a share of the profits. Plaintiffs can discharge defendant, but if this happens, they are contractually bound to use the partnership contract formula dealing with fees, accounts receivable, and work in progress to reimburse defendant. Hnder the statute and the rules of mutuality of obligation, these defenses to the existence of a partnership cannot be sustained.
Secondly, defendant contends that a person owning 5% of the capital and receiving a salary, without managing authority, is an employee rather than a partner. There is no general rule which will afford an automatic solution of the question of the existence of a partnership relation, as distinguished from an employment relationship, but such solution turns upon the facts and circumstances of association between the parties. Moore v. DuBard (1947), 318 Mich 578. The intention of the parties is of prime importance in considering whether a partnership exists. Lobato v. Paulino (1943), 304 Mich 668. In the present case, the parties referred to each other as partners. They were co-owners and shared in the gross profits. There is ample record testimony and evidence from which the trial court could determine that the parties intended a partnership rather than an employment contract to exist, as it said in its findings:
“The court finds that defendant was a member of a partnership.”
This is reasonable and not clearly erroneous, in view of the record. GrCR 1963, 517.1. When a partnership exists, the partners may by agreement provide for the disposition of their interest in the partnership. Kenyon v. Tidey (1946), 314 Mich 205; Gertz v. Fontecchio (1951), 331 Mich 165. The trial court determined that the defendant owes plaintiffs $4,-133.48 and the judgment is affirmed in that respect.
Michigan, through statutory enactment, has established rules and exceptions concerning restraints of trade. CL 1948, § 445.761 (Stat Ann 1962 Rev § 28.61) declares the illegality of contracts not to engage in business:
“Sec. 1. All agreements and contracts by which any person, co-partnership or corporation promises or agrees not to engage in any avocation, employment, pursuit, trade, profession or business, whether reasonable or unreasonable, partial or general, limited or unlimited, are hereby declared to be against public policy and illegal and void.”
The exceptions to § 445.761 are set forth in CL 1948, § 445.766 (Stat Ann 1962 Rev § 28.66):
“Sec. 6. This act shall not apply to any contract mentioned in this act, nor in restraint of trade where the only object of restraint imposed by the contract is to protect the vendee, or transferee, of a trade, pursuit, avocation, profession or business, or the good will thereof, sold and transferred for a valuable consideration in good faith, and without any intent to create, build up, establish or maintain a monopoly.”
A review of events leading to the partnership agreement is significant. Defendant was plaintiffs’ employee; he received some training from plaintiffs, and was moved to Lansing. He had no clients of his own. Later, he purchased a share of the partnership and became a member. The statutes do not favor covenants not to compete except where a business or profession is sold, including its good will. Defendant, being a partner with a strict fiduciary relationship to the firm, possessed no singular or separate business, profession or good will to sell to the partnership. The trial court held that no sale had been made to the partnership or the remaining partners.
“The court finds that the defendant [Martin Ross] was a member of the partnership, that he did not 'sell’ any business to the partnership, that he 'bought into’ the partnership.
“The court is convinced that the agreement not to compete is against the public policy of Michigan and is, therefore, unenforceable. The exceptions do not assist the plaintiff in this case. It did not buy a business or profession from the defendant.”
A close reading of the controlling statutes indicates the interpretation of the trial court, and the decision based thereon is, under the facts and evidence, both logical and reasonable.
There is sufficient testimony and evidence in the record to support the court’s finding that defendant could not work amicably with his partners, and decided to withdraw, according to the partnership contractual early-retirement plan. Under these conditions, there was no sale or transfer of a business, profession or good will, and the covenant could not be enforceable according to the statute. CL 1948, § 445.766 (Stat Ann 1962 Rev § 28.66).
Judgment of the lower court affirmed on all issues. Costs to appellee.
AH concurred.
CL 1948, §449.18 (Stat Ann 1964 Rev §20.18). | [
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R. B. Burns, P. J.
Plaintiff Leo Hentkowsld was driving his 1955 Plymouth in a northerly direction on county road 441 and defendant Watson was driving a two-ton van owned by defendant Wilcome in a westerly direction on county road 638. Watson failed to stop for the stop sign at the intersection and struck Hentkowski’s vehicle broadside. The negligence of Watson is not in dispute.
Watson was an employee of defendants Mosers. Defendant Wilcome had formerly owned and operated a milk route wherein he would pick up milk from the farmers and haul the milk to the Mosers’ cheese factory. About 2-1/2 months before the accident, Wilcome sold the route to one Edward Jurek, who continued the same relationship with the Mosers.
It had been the custom of Fred Moser and Wilcome to allow each to use the other’s truck if his own truck was having mechanical difficulty; each had made use of the other’s truck on several occasions, although Wileome had never loaned his truck unless he or his driver operated it.
After buying the route, Jurek ordered a new truck for use on the route, and while awaiting delivery was allowed by Wileome to use the latter’s truck. Jurek was instructed not to let anyone else use the truck, but these instructions were never communicated to Moser, nor was Moser ever informed that he was not to use Wilcome’s truck.
One of Moser’s trucks developed mechanical trouble and he asked Jurek to contact Wileome to see if Moser could use Wilcome’s truck, but Jurek failed to make the request. On the day preceding the accident, Moser again inquired of Jurek regarding the use of the truck. The testimony is conflicting as to whether or not permission was given by Jurek, but Wileome was not contacted personally although Moser did attempt to telephone Wileome to ask whether or not he could use the truck.
On these facts the trial court inferred that Moser had had implied consent to make use of Wilcome’s truck. This was buttressed by a finding that Wileome had made no complaints to the police or to Moser concerning unauthorized use of his truck, and had the truck repaired by his own insurance carrier.
The first issue presented for review is:
Was there competent evidence to support a finding of implied consent to use of his vehicle by Wileome?
Appellant argues that the trial court relied on the presumption that the driver of the vehicle at the time of the accident was driving with the owner’s consent, to find that appellant had impliedly con sented to Moser’s use of the truck. Appellant then argues that the presumption is eliminated by direct evidence.
The court did not rely on such a presumption.
The court heard testimony from Moser and Wilcome concerning their relationship and understandings during the time that Wilcome owned and operated the milk route. Testimony was heard from Wilcome and Jurek regarding the sale of the route and Jurek’s use of the truck, and from Moser and Wilcome to the effect that Moser was never told not to use the truck. Appellant does not show us why the evidence is not competent; the briefs rather are directed at the sufficiency thereof. While not uncontradicted, there was certainly enough evidence to support a finding of implied consent by the trial judge. We cannot say that the finding is clearly erroneous. GCR 1963, 517.1.
The second alleged error below is that the trial court’s opinion failed to comply with the specificity requirements of GCR 1963, 517.1. Granted, the court’s opinion is brief, but the court rule does not require over-elaboration of detail or particularization of facts. The opinion below adequately complies with the requirements of the court rule and of this Court as stated in Nicpon v. Nicpon (1968), 9 Mich App 373.
Affirmed. Costs to appellees.
All concurred.
Hatter v. Dodge Brothers (1918), 202 Mich 97.
Christiansen v. Hilber (1937), 282 Mich 403. | [
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Quinn, J.
November 30, 1967, at approximately 2 a.m. and in the vicinity of East Jefferson and Chene, a Detroit police officer observed an automobile driven by defendant traveling at a high rate of speed and subsequently observed that vehicle run a red light. The officer pursued defendant, pulled alongside, sounded his horn and motioned the driver to the curb. Defendant then accelerated, the officer again pulled alongside with blue and red flashers and siren on, and again motioned defendant to the curb. Defendant braked sharply and the officer went past him. Defendant immediately turned left onto Bellevue Avenue and the officer again pursued him. Defendant turned into a driveway and stopped. The officer pulled in behind defendant, alighted from the police vehicle, and observed defendant lying on the front seat of his vehicle with the lights and motor off and the doors locked. Receiving no response from defendant, the officer radioed for assistance. Defendant then got out of his car and was arrested.
Defendant was charged with violating MOLA § 257.602a (Stat Ann 1968 Rev § 9.2302[1]), which reads:
“A driver of a motor vehicle, who is given by hand, voice, emergency light or siren a visual or audible signal by a police officer, acting in the law- i'ul performance of his duty, directing the driver to bring his motor vehicle to a stop, and who wilfully fails to obey such direction, by increasing his speed, extinguishing his lights, or otherwise attempting to flee or elude the officer, is guilty of a misdemeanor. The officer giving the signal shall be in uniform; and a vehicle driven at night shall be adequately identified as an official police vehicle.”
The complaint reads:
“On the 30th day of November, 1967, at the city of Detroit, county of Wayne, Anthony Charles Perez, late of the city of Detroit, county of Wayne and state of Michigan, did operate a motor vehicle to-wit: Chevrolet coach, at 2:10 a.m. east on Jefferson between Crane and Bellevue, fleeing and eluding to avoid traffic arrest, speeding 60 miles per hour in a 35 mile per hour zone, then while being pursued by uniformed police in an adequately marked car with emergency flasher on, failed to stop for red traffic signal, drove 60 miles per hour in a 35 mile per hour zone; improper left turn, being in violation of Section 602A, Act 300, P.A. 1966.”
Defendant’s jury trial January 15, 1968, resulted in his conviction of the offense charged. He was sentenced and he appeals, raising five issues.
Defendant first claims reversible error because the trial court refused to ask juror no. 6, “Your Honor, would you ask juror no. 6, Mrs. Morrison, that if the proofs were even in this case, what her verdict would be?” The record indicates that defendant did not exhaust his peremptory challenges and that he announced his satisfaction with the jury. People v. Lambo (1967), 8 Mich App 320, precludes a finding of error.
At the close of the people’s case, defendant moved for directed verdict for the reason that the complaint failed to allege willfulness. He now claims reversible error in the denial of that motion. The term willful must be included in the charge if it is necessary to indicate the offense. CL 1948, § 767.59 (Stat Ann 1954 Rev § 28.999). Hero the offense charged is apparent from the complaint, with or without the term willful. People v. Driessen (1913), 178 Mich 118. The motion was properly denied.
The foregoing determination obviates discussion of defendant’s claim of reversible error because the trial court, after permitting an amendment of the complaint to include “willful”, failed to include “willful” when he read the complaint to the jury. In addition, the jury was instructed sevéral times that they had to find the act willful before they could find guilt.
Defendant had two counsel.; He claims error because the trial judge would not permit the counsel who was not examining a witness to make .a legal objection. The judge ruled that one counsel or the other, but not both, could participate at one time. If this involved multiple objections by both counsel for defendant or witness examination by both, the trial judge can restrict participation to one counsel. In this case, defense counsel were dividing the work of the defense which is proper, Baumier v. Antiau (1887), 65 Mich 31. The restriction imposed' was reversible error.
When the case was submitted to the jury, defendant orally requested the court to charge that if defendant did not know the vehicle which attempted to stop him was a police vehicle and if he fled as a result of fear and apprehension, he could not then willfully evade and elude a police officer. This request relates to defendant’s theory of the case rather than to any basic element of the offense. Refusal to give it was not reversible error in view of the time the request was made. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 567.
Reversed and remanded.
All concurred.
This citation is in error; the eorreet eitation is PA 1949, No 300, as amended by PA 1966, No 203. | [
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Per Curiam.
April 8, 1969, a jury found defendant guilty of armed robbery, MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797); he was sentenced and he appeals.
Defendant raises two issues for determination on appeal. He first questions the sufficiency of the evidence to justify the guilty verdict. He then contends it was reversible error for the trial court to admit testimony concerning lineup identification without first ascertaining that defendant was represented by counsel at the lineup.
In support of his defense of alibi, defendant produced two witnesses who testified that defendant was with them at the time of the robbery. Their testimony was neither contradicted by rebuttal testimony nor did cross-examination establish defects in such testimony. On this record, defendant argues that the prosecution has failed to negate every reasonable theory consistent with defendant’s innocence, citing in support People v. Johnson (1966), 4 Mich App 205. Thus, the evidence was insufficient to justify the guilty verdict.
The argument is valid, if the jury believed the alibi witnesses. The verdict establishes the fact that the jury did not believe the alibi witnesses, and credibility is a jury question. People v. Bradford (1968), 10 Mich App 696. The record contains ample evidence, if believed by the jury, to establish guilt beyond a reasonable doubt.
There was no objection to the admission of the lineup identification testimony. It is only to prevent fundamental injustice that this Court will consider a question raised for the first time on appeal. People v. Paul F. Baker (1967), 7 Mich App 471. No fundamental injustice appears on this record which indicates that had the question been raised below, the prosecution could have proved that defendant was represented by counsel at the lineup in question.
Affirmed. | [
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Lesinski, C. J.
Defendant Billy O’Neal and two codefendants were tried before the court, after waiving their right to jury' trial, on the charge of undertaking to incite a riot. MOLA § 750.505 (Stat Ann 1954 Bev § 28.773). The trial court acquitted both codefendants and found O’Neal guilty of inciting to riot. Defendant brings this appeal as of right. -
On July 23, 1967, at approximately 5:20 p.m., defendant was observed walking down Hamilton Street in Highland Park with a group of four or five others. They stopped at the corner of Hamilton and Ford Avenue, where they conducted themselves in a loud and noisy manner. Their number grew to 10 or 15 persons and in the immediate vicinity there were approximately 60 or 70 persons, many of whom stood watching from their porches. Based on the actions and statements allegedly made by defendant, he was charged with undertaking to incite a riot.
On appeal defendant raises four issues which we address in the order raised.
1. Is MGLA § 750.505 (Stat Arm 1954 Rev § 28-.773) and the information based on the statute unconstitutionally vaguef
MOLA § 750.505 (Stat Ann 1954 Rev § 28.773) provides:
“Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than five years or by a fine of not more than $10,000, or both in the discretion of the court.”
In this Court’s recent opinion of People v. Lewis (1969), 20 Mich App 653, we held the statute made inciting to riot a felony. We stated at p 657:
“In summary, we hold that there was at the time the informations were issued no statutory prohibition against rioting or inciting to riot; that rioting and inciting to riot were indictable offenses at the common law (even though misdemeanors), and that by the provisions of CLS 1961, § 750.505 these offenses were made felonies.”
In People v. Pickett (1954), 339 Mich 294, defendant raised numerous arguments attacking the constitutionality of the statute. In Pickett, as here, the arguments centered around the alleged vagueness of the statute. Beginning at p 310 the Court stated:
“These questions do not merit individual consideration, notwithstanding the fervor of the argument of counsel. This Court has previously adjudicated these very contentions and our observations in the decisions hereafter cited fully answer the questions raised. People v. Summers (1898), 115 Mich 537; People v. Chambers (1937), 279 Mich 73; People v. Causley (1941), 299 Mich 340; People v. Ormsby (1945), 310 Mich 291; People v. Norwood (1945), 312 Mich 266; People v. DeLano (1947), 318 Mich 557; People v. Simms (1948), 322 Mich 362; People v. Pichitino (1953), 337 Mich 90, cert denied (1954), 347 US 913 (74 S Ct 477; 98 L Ed 1069). What was said in these cases is applicable here and the validity of the statute, therefore, must be sustained.”
Defendant argues, however, that the cases cited by the Court in Pickett do not support the conclusion of the Court and do not meet the arguments of defendant. Defendant states: “It is hard to conclude anything other than that the constitutional questions raised in the Pickett case, and reasserted herein have not yet been thoroughly and finally considered by the Courts of Michigan.”
Although we are not unimpressed by defendant’s thorough and well reasoned-brief, we conclude that the arguments raised in the instant case were fully presented to the Court in Pickett and rejected. If, as defendant argues, Pickett was incorrectly decided, it is for the Supreme Court to say. As an intermediate appellate court, we are bound by the Supreme Court’s opinion in Pickett.
2. May defendant be tried for undertaking to incite three or more persons to riot when MGLA § 750.521 (Stat Ann 1954 Rev § 28.789) requires 12 or more armed persons, or 30 or more unarmed personsf
MOLA § 750.521 (Stat Ann 1954 Eev § 28.789), provides:
“If any persons, to the number of 12 or more, being armed with clubs, or other dangerous weapons, or if any persons, to the number of 30 or more, whether armed or not, shall be unlawfully, riotously .or tumultuously assembled in any township, city or village, it shall be the duty of the mayor and each of the aldermen of such city, the supervisor of such township, the president and each of the trustees or members of the common council of such village, and of every justice of the peace, living in such township, city or village, and also for the sheriff of the county and his deputies, and any member of .a city police force and any member of the Michigan state police, to go among the persons so assembled, or as néar to them as may be with safety, and in the name of'the. people of this state, to command all the persons so assembled immediately and peaceably to, disperse: Provided, however, That the above provision with reference to any member of a city police force shall not apply to any such police officer while he is privately employed.”
In People v. Lewis, supra, at p 656, this Court held that inciting to riot does not come under this statute, but rather under MCLA § 750.505, supra. At p 657 we stated: '
“Examination of CL 1948, § 750.521 et seq. (Stat Ann 1954 Rev § 28.789 et seq.) shows that it does not expressly prohibit or punish inciting to riot or rioting.. Primarily, the statute sets forth duties and procedures to be followed by certain officials if 12 or more armed persons or 30 or more persons, armed or not, unlawfully, riotously or tumultuously assemble.
“Nor do we construe the statute as impliedly prohibiting inciting to riot and rioting since such an implication is unwarranted inasmuch as both were indictable offenses at common law, and as. such, absent an express statutory punishment, are punishable under CLS 1961, § 750.505 as felonies.”
Inasmuch as MCLA § 750.521, supra, does not apply to the instant case, the requirements of 12 or more armed persons or 30 or more unarmed persons also does not apply. As noted in 4 Gillespie, Mich Criminal Law and Procedure (2d ed), § 2206, p 2433:
“A riot at common law may be defined as a tumultuous disturbance of the peace by three or more persons, assembling together at their own authority, with the intent mutually to assist one another against all who shall oppose them, and afterwards putting the design into execution in a turbulent and violent manner, whether the object in question be lawful or otherwise.”
3. Was the evidence adduced at trial sufficient to support defendant’s conviction¶
At trial the court received the following testimony concerning defendant’s conduct:
(1) Patrolman Bledsoe testified that he heard defendant talking in a loud voice, trying to get the people to go home and get their guns and kill the police.
(2) Officer Solomon testified that he heard defendant shouting “Let’s overthrow the police.” He also testified, referring to defendant: “He said, ‘Go home and get your guns and kill all these dirty rotten * * * ’ I am not going to use the exact language. ‘We’re going to burn this town down like we burned Detroit.’ ” Officer Solomon also stated that after defendant was arrested: “He yelled at the top of his voice that, ‘Look what they’re doing to me. Don’t let them take me. Shoot them. Kill them.’ ”
(3) Officer.Neal, referring to defendant, testified: “[A]s we started to place them under arrest, he was screaming, ‘Don’t let these White M.P. cops arrest us. We outnumber them. Don’t let them take us in.’ ”
(4) Officer Pitton testified that defendant was calling slogans to the people and that he stated: “Go home. Get your guns. We’re going to kill these * * * cops. They’re not going to take us. We’re going to burn down Highland Park like we did Detroit.”
(5) Defendant and his companions testified that they were walking down the street peacefully when they were besieged by police.
The trial court recognized the conflict in the testimony and resolved the differences against defendant. The court found that defendant intentionally called to the crowd to burn and kill and to take over Highland Park and that the defendant did incite a riot.
The Court of Appeals will not hear a case anew upon the record and attempt to weigh the evidence. "When the evidence is conflicting, the trial court’s determination will not be set aside when there was some evidence before it on each of the crime’s essential elements. People v. Dolphus (1966), 2 Mich App 229; People v. Williams (1966), 3 Mich App 272; People v. Ritzema (1966), 3 Mich App 637; People v. Bennett (1966), 3 Mich App 326.
The trial court correctly defined inciting to riot as conduct including words, signs and language as would naturally lead or urge other men to engage upon conduct which, if completed, would make a riot. Commonwealth v. Apriceno (1938), 131 Pa Super 158 (198 A 515); Heard v. Rizzo (ED Pa, 1968), 281 F Supp 720; Commonwealth v. Hayes (1965), 205 Pa Super 338 (209 A2d 38); State v. Cole (1959), 249 NC 733 (107 SE2d 732). The trial court had testimony before it establishing that the defendant by his words and acts urged others to riot and therefore, based upon the standards of review expressed above, the lower court’s findings should stand.
4. Was the prosectition for the crime of inciting to riot proscribed by the requirements of the First Amendment to the United States Constitutionf
Although freedom of speech is the cornerstone of any free society, it has long been recognized that it “is not an unlimited, unqualified right, but that the societal value of speech must, on occasion, be subordinated to other values and other considerations.” Dennis v. United States (1951), 341 US 494, 503 (71 S Ct 857, 864; 95 L Ed 1137, 1149). One of the “other considerations” is where the speech creates a “clear and present danger” of a riot. Writing for a unanimous court, Justice Holmes made the classic statement in Schenck v. United States (1919) 249 US 47, 52 (39 S Ct 247, 249; 63 L Ed 470, 473, 474):
“The question in every case is whether the words used are used in such circumstances and are of such a nature' as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Defendant argues that no “clear and present danger” existed in the instant case. The record reveals that the incident resulting in defendant’s arrest took place just outside of Detroit in Highland Park. It occurred approximately 12 hours after Detroit had erupted in a full scale riot. The trial court found that defendant’s yelling and screaming had helped cause a crowd to grow and testimony was received that some persons began to advance on the police. Based on these facts and the statements attributed to defendant, we conclude that a clear and present danger did exist.
Affirmed.
Alb concurred.
Repealed by PA 1968, No 302,
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” | [
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The certified question presented to this Court by the United States District Court for the Eastern District of Michigan is considered and the Court respectfully declines to respond to the question.
On reconsideration the request to answer the question certified by the United States District Court for the Eastern District of Michigan is accepted on February 18, 1983. To be argued and submitted with In re Certified Question, Odgers v Ortho Pharmaceutical Corp, Docket No. 68958. | [
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Fitzgerald, J.
We are asked to determine whether health care providers have the right to an evidentiary hearing either as a matter of fundamental due process or as a contested case under the Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101) et seq., before the Insurance Commissioner approves a change by Blue Cross and Blue Shield of Michigan in their rates of payment.
I
Plaintiffs are skilled nursing care facilities. All are proprietary institutions rendering high-quality, frequently specialized care. They trace the origin of these specialized services to 1966 when Blue Cross and Blue Shield of Michigan (BCBSM) began a convalescent and long-term illness care program (CLTC). The program was designed to provide skilled nursing care away from the hospital to patients suffering chronic illnesses. By reducing the number of hospital beds occupied by chronically ill, terminally ill or recuperating patients, it was hoped that the program would help to reduce and contain costs of care for covered subscribers.
Participation in the CLTC program required nursing homes to be accredited by the Joint Commission on Accreditation of Hospitals. When the program was introduced, few nursing homes met these standards; only about 7% of the nation’s nursing homes were approved by the Joint Commission. Thus, to qualify for inclusion in the program, nursing homes that had previously provided merely custodial care spent considerable funds to upgrade their facilities. Capital improvements were made and equipment purchased, and skilled professional personnel were hired and trained.
The original contracts between BCBSM and the nursing facilities established a rate of reimbursement at the lesser of the provider’s billed charges or one-half the average per diem benefit payment made for acute general care at a participating hospital in the same geographic area. This formula was used routinely from the inception of the CLTC program in 1966 until 1977. The contracts also provided that either party could terminate the arrangement without cause upon 15 days’ notice.
In early September 1977, BCBSM mailed notices to the participating nursing facilities informing them that, at the end of the month, existing contracts would be terminated and the method of reimbursement modified. The notice stated that the changes were being made in an effort to more closely relate approved rates of payment to the providers’ operating costs and, in addition, to help assure that BCBSM payments are not made when a subscriber has primary coverage under the Medicare program. The new rates were to be effective October 1, 1977. On September 30, 1977, plaintiffs were sent a rate schedule indicating that from October 1, skilled nursing facilities would be reimbursed for billed charges limited to a per diem amount based on the 80th percentile of Medicare rates of payment on a regional basis.
It is alleged by plaintiffs that the new rates would not cover their costs and that services to BCBSM subscribers would have to be discontinued. Unable to retain skilled professionals for only private-pay patients, the nursing homes would be forced to revert to simple custodial care institutions.
Various suits were brought in circuit court and temporary restraining orders were issued preventing implementation of the new rate formula.
On November 8, the nursing homes were notified that a public hearing would be held before the Insurance Commissioner concerning the proposed rates. By subsequent letter to the Insurance Commissioner, plaintiffs objected to the informal nature of the proceeding and requested that a contested-case hearing pursuant to the Administrative Procedures Act be held. This request was denied.
The public hearing took place on November 21. One month later, the commissioner, having reviewed the testimony presented at the hearing and the memoranda filed in support of plaintiffs’ positions, issued an order denying that the nursing homes had a right to a contested-case hearing and approving the proposed reimbursement formula. This decision was appealed to the Wayne Circuit Court. That court reversed the declaratory ruling and remanded the case to the Insurance Commission so that a contested-case hearing could be held. The injunctions prohibiting the implementation of the new rate structure were continued. The com missioner appealed this decision and order to the Court of Appeals.
The Court of Appeals reversed the lower court, holding that plaintiffs did not demonstrate the deprivation of any property interest which would entitle them to a contested-case hearing either as a matter of procedural due process or as mandated by the Administrative Procedures Act.
II
"The heart of the matter is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practice fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.”
Notice and the opportunity to be heard are fundamental concepts in the jurisprudence of our state and federal courts. No rigid rule determines which interests will be protected or unprotected; the conclusion to be drawn is that what is procedurally fair in one situation to protect the rights of individuals may be unfair in another.
In 1971, Justice Stewart announced that the United States Supreme Court "has fully and finally rejected the wooden distinction between 'rights’ and 'privileges’ that once seemed to govern the applicability of procedural due process rights.” In Board of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972), the Court held that a teacher hired for one year without tenure had no constitutional right to a hearing when his contract was not renewed. Looking not to the weight but to the nature of the interest asserted, the Court held that the guarantee of procedural due process attached only to secure those interests already acquired in specific benefits. The terms of Mr. Roth’s appointment which served to create and define his assertedly protected interest did not support his claimed right to a hearing before termination.
In Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972), a teacher, hired by a state college system under a series of one-year contracts, also faced termination due to allegations of insubordination. Sindermann’s claims regarding the circumstances of his employment, the college’s de facto tenure program, and his reliance thereon were sufficient to require the opportunity for him to be heard before the decision regarding his termination was made. As Professor Davis has noted, however:
"In the very case in which the Court announced that it had 'finally’ rejected the distinction between rights and privileges, the Court held that the teacher lacked a 'right’ to renewal of the contract.
"After 1972, the Court soon found that even though it could abolish the language of 'privilege’ in its own opinions, it could not abolish the distinction between a 'right’ and lack of a 'right,’ and it could not draw a clean line between the two categories, because some interests clearly deserve legal protection, some interests clearly do not, many are in some degree deserving and in some degree undeserving, and decisions have to be made about interests that are not clearly 'rights’ and not clearly without legal protection.” 2 Davis, Administrative Law Treatise (2d ed), § 11:1, pp 342-343.
Protected property interests are not created by the mere use of special words or key phrases. Our role is to assure that fair procedures are afforded before an individual or entity is deprived of a protected interest and to reaffirm that arbitrary and capricious conduct by any authority will not be sanctioned. Bundo v Walled Lake, 395 Mich 679; 238 NW2d 154 (1976); Bisco’s, Inc v Liquor Control Comm, 395 Mich 706; 238 NW2d 166 (1976).
Plaintiffs contend they are entitled to an evidentiary hearing. They argue that longstanding rates of payment, once determined to be "fair and reasonable”, which materially affect the financial viability of the facility involved must not be altered without an evidentiary hearing to determine the facility’s rights to participate in contracts with BCBSM. This interest in the continuation of certain rates of payment is characterized as "property” entitled to the protection of the Due Process Clause. In reliance upon their reasonable assumptions, plaintiffs allowed the BCBSM convalescent care program to take over approximately 30% to 40% of their total operation. Plaintiffs are now dependent upon the continuation of the program for their viability as skilled nursing facilities.
Plaintiffs also argue that the statutory language which authorizes BCBSM to enter into contracts with skilled nursing facilities and imposes the requirement that the Insurance Commissioner authorize rates which are fair and reasonable entitles them to an evidentiary hearing. Such a hearing would afford the guarantees of rudimentary due process, including timely notice of the action, presentation of witnesses, evidence and arguments, the opportunity to cross-examine any adverse witness, an impartial hearing examiner and a written statement of findings. See Bundo v Walled Lake, supra.
MCL 550.503; MSA 24.623 addressed BCBSM’s ability to enter into contracts with hospitals and health care facilities. In 1973, this statute was amended to specifically authorize BCBSM to contract with nursing facilities. 1973 PA 75. The authority of the Insurance Commissioner to approve the rates charged to subscribers for hospital services was amended to cover nursing facilities as well. The "fair and reasonable” standard urged by plaintiffs as the basis for an evidentiary hearing is set forth in the section of the statute which outlines the commissioner’s authority prior to issuing a certificate of authority to do business and has been interpreted by this Court as being a "standard for exercise of the commissioner’s continuing rate approval authority”. MCL 550.305; MSA 24.595.
We recognize the unique position held by BCBSM. Created by special legislation, it functions as a quasi-public, tax-exempt institution. See Blue Cross & Blue Shield of Michigan v Ins Comm’r, 403 Mich 399; 270 NW2d 845 (1978). The goal of this non-profit health care corporation has been recently reaffirmed by the Legislature: "to assure * * * reasonable access to, and reasonable cost and quality of, health care services, in recognition that the health care financing system is an essential part of the general health, safety, and welfare of the people of this state”. MCL 550.1102; MSA 24.660(102). The commissioner possesses no inherent regulatory authority; his powers are prescribed by the Legislature. Management of BCBSM is entrusted to the board of directors. We hold that the procedures followed here by the Commissioner of Insurance adhered to this legislative scheme and were appropriate to the nature of this case.
As noted above, while the Due Process Clause does not serve to create a protected property interest, its procedural safeguard protects against arbitrary deprivation of existing interests. We find that the actions by the commissioner were not arbitrary, and that plaintiffs were afforded sufficient opportunity to assert their claimed interests before a decision was rendered.
Plaintiffs cite many federal cases in support of their position that their economic stake in the program’s continuity is a property interest entitled to procedural due process protection. See, e.g., Case v Weinberger, 523 F2d 602 (CA 2, 1975); Mercy General Hospital v Weinberger, 410 F Supp 344 (ED Mich, 1975); Langhorne Gardens, Inc v Weinberger, 371 F Supp 1216 (ED Pa, 1974); Coral Gables Convalescent Home, Inc v Richardson, 340 F Supp 646 (SD Fla, 1972). Plaintiff Allen Park Convalescent Home argues that the relationship between nursing homes and Medicare and Medicaid administrators is similar to the relationship between the nursing facilities and BCBSM inasmuch as continued participation is vital to the economic solvency of the nursing homes in both situations, and, in most cases, the nursing home has made substantial expenditures in order to qualify for reimbursement.
In Case v Weinberger, supra, the Court held that a pretermination hearing was not necessary before decertification of a nursing home which failed to meet statutory safety standards. While acknowledging that the expectation of continued participation is a property interest, the Court held that the governmental interest in the safety of the patients justified the procedures employed. The Court noted:
"A nursing facility’s 'need’ for patients has nothing to do with the statutory benefits structure. The facility’s need is incidental. That a particular nursing facility cannot survive without Medicaid participation was certainly not Congress’ foremost consideration in its creation of the Medicaid program. This is not to derogate Mrs. Case’s property interest in her expectation of continued participation. We must, however, place that right in proper perspective with regard to the health and safety expectations of the patients, which expectations the Secretary has a valid interest in protecting. The benefits to a nursing home from its participation in Medicaid reimbursement result from nothing more than a statutory business relationship.” (Footnote omitted.) Case v Weinberger, supra, 607.
In Mercy General Hospital v Weinberger, supra, the Michigan Department of Social Services began to recoup overpayments made to the plaintiff hospital by withholding portions of current claims for reimbursement. In deciding whether the Department of Health, Education and Welfare could properly terminate Medicaid payments without providing a prior hearing, the Court used the same balancing of interests analysis and concluded that the government’s position must prevail. "The reliance of the hospital on these funds, while great indeed, does not rise to the same level. It must also be remembered in this context that the Court is dealing with a corporation as opposed to a private individual.” In this particular situation, the Court concluded that post-termination review would be the most appropriate means to afford due process of law.
We do not believe that these cases mandate a contrary result. Without doubt, the proposed changes in rates of payment will have a serious impact on the operation of the nursing facilities just as the proposed actions in the cited federal cases affected the ability of the nursing homes to continue to function in the same manner. However, this is only one factor to consider in procedural due process analysis. Beginning with the premise that due process is a flexible concept, courts must balance the nature of the affected property interest against the governmental interest involved.
" '[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.’ Cafeteria & Restaurant Workers Union v McElroy, 367 US 886, 895; 81 S Ct 1743, 1748-1749; 6 L Ed 2d 1230, 1236 (1961). To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.” Morrissey v Brewer, 408 US 471, 481; 92 S Ct 2593, 2600; 33 L Ed 2d 484, 494 (1972).
Thus, while we may recognize that some kind of a hearing is due, the nature and timing of such hearing must be determined according to the relationship of the interests involved. See Paramount Convalescent Center, Inc v Dep’t of Health Care Services, 15 Cal 3d 489; 125 Cal Rptr 265; 542 P2d 1 (1975); Klein v Califano, 586 F2d 250 (CA 3, 1978); Lomond View Nursing Homes, Inc v Califano, 639 F2d 674 (CA 10, 1981); Anno: Termination of Medicaid Payments, 37 ALR Fed 682; Friendly, "Some Kind of Hearing”, 123 U Pa L Rev 1267 (1975).
The Legislature has not explicitly afforded an evidentiary hearing to hospitals or nursing facilities. The legislation creating BCBSM speaks of establishing a system which will provide quality health care at reasonable costs to all the people of the state. It is the citizens of Michigan who are the primary beneficiaries of the non-profit health care corporation act. The governmental interest involved is the expeditious delivery of such care to the people in an effective manner.
The proposed changes in the reimbursement formula would significantly reduce the amount of money received by the nursing facilities; all payments, however, would not be eliminated. Plaintiffs urge that their right to receipt of fair and reasonable rates is an interest protected by the guarantees of due process. We agree that procedural fairness is required before changes are made which drastically alter essential terms of the longstanding contractual relationship between plaintiffs and BCBSM. We believe, however, that this has occurred.
The critical element provided by a judicial trial or an administrative hearing is the opportunity for a party to present arguments and evidence in support of its position before a decision is rendered, the chance to respond before final action is taken. Notice and hearing are the means by which we guarantee that a party, knowing the consequences of proposed action, has a forum in which to present its position in a meaningful way.
In this instance, plaintiffs were given notice of the action. At the public hearing they presented witnesses in their behalf and submitted material in support of their position to the Insurance Commissioner. The nursing facilities were given the opportunity to participate in the administrative process before final action was taken. This kind of presentation allows plaintiffs to directly communicate their ideas in a timely, efficient manner. The guarantee of procedural due process does not necessarily require an adversary proceeding. In the administrative hearing, the focus is on the presentation of pertinent information, not the demeanor of the individuals involved. Due process of law, appropriate to the nature of the case and consistent with the statutory requirements, was afforded.
Ill
We agree with the conclusion of the Court of Appeals that in this case an evidentiary hearing is not mandated by the contested-case provision of the Administrative Procedures Act, MCL 24.203(3); MSA 3.560(103)(3). We reach this decision after evaluating the policy of the BCBSM enabling legislation in conjunction with the requirements of the APA.
"A hearing in a contested case permits an administrative agency to make a just decision on the rights, duties or privileges of named parties.” Bienenfeld, Michigan Administrative Law (Ann Arbor: Institute of Continuing Legal Education), p 5-1. Once a matter is determined to be a contested case, chapter 4 of the APA governs the procedures involved and imposes requirements designed to afford the guarantees of due process of law.
The distinct nature of the administrative hearing has been addressed by this Court.
"The relationship of the courts to administrative agencies and tribunals * * * has been one marked by judicial restraint born of several considerations.
"Foremost is the separation of powers. Administrative agencies are a part of the executive branch of government. While they often act in a quasi-judicial capacity, it is recognized that they are established to perform essentially executive functions.
"An appreciation of the theory of administrative law dictates that courts move very cautiously when called upon to interfere with the assumption of jurisdiction by an administrative agency.
"There are other practical considerations. The courts have recognized the expediency of permitting the administrative process to function to the extent of its capacity before intervening at the behest of one who conceives himself aggrieved or threatened by administrative action.
"Matters consigned to administrative determination are often technical in nature, and closely related to the carrying out of some statutorily defined public policy.
"Judicial restraint tends to permit the fullest utilization of the technical fact-finding expertise of the administrative agency and permits the fullest expression of the policy of the statute, while minimizing the burden on court resources.” Judges of 74th Judicial Dist v Bay County, 385 Mich 710, 727-728; 190 NW2d 219, 226 (1971).
The fact that there is a constitutional requirement for a hearing does not mean that a full trial-like proceeding is mandated. Indeed, the United States Supreme Court has emphasized the flexible nature of due process in administrative proceedings when the governing statute does not explicitly provide for a full hearing. Only when the property interest involved was the potential deprivation of the financial means by which to live has the Court insisted on án evidentiary hearing prior to the termination of benefits. See Goldberg v Kelly, 397 US 254; 90 S Ct 1011; 25 L Ed 2d 287 (1970).
We agree with Professor Davis that "[d]ue process can be interpreted to require a hearing to the extent and only to the extent that a party will have a chance to know and to respond to the evidence against him, without requiring a hearing 'on the record’ ”. 2 Davis, Treatise, supra, p 337. See, also, Friendly, supra; Davis, The Requirement of a Trial-Type Hearing, 70 Harv L Rev 193 (1956).
A full trial-like hearing prior to the commissioner’s approval of rates is not explicitly required by statute. The intent of the Legislature has been recently reaffirmed. "It is the public policy of this state that, in the interest of facilitating access to health care services at a fair and reasonable price, an alternate, expeditious, and effective procedure for the resolution of issues and the maintenance of administrative appeals relative to provider class plans be established and utilized * * * so as to minimize uncertainty and délays.” MCL 550.1102; MSA 24.660(102).
The plaintiffs’ interest is alleged to be the continuation of fair and reasonable rates of payment by BCBSM; the nursing facilities contend that a trial-like hearing is required before BCBSM can materially alter a contractual provision.
Administrative procedures must provide the affected party an opportunity to explain its position and rebut adverse evidence. Arbitrary action, bias or prejudicial conduct will not be tolerated. The distinct nature of BCBSM’s position with regard to the citizens it serves and the facilities with which it contracts make this case one of first impression. We do not believe, as argued by plaintiff Nightingale West, Inc., that the decision of the Insurance Commissioner to approve rates of payment made to these nursing facilities constitutes an act of licensing under the APA and, thus, requires that a contested-case hearing be held prior to a reduction in rates of payment. MCL 24.205, subds (1) and (2); MSA 3.560(105), subds (1) and (2).
"A 'license’ is permission by competent authority to do an act which, without such permission, would be illegal.” Bienenfeld, supra, p 7-1; MCL 24.205; MSA 3.560(105). Licensing involves the many procedures administrative agencies perform in conjunction with licenses.
BCBSM requires that nursing facilities meet certain standards in order to participate in the CLTC program. BCBSM’s status as a quasi-public corporation may entitle it to certain benefits granted by the government, but its power is an aspect of its unique position; it has not been given governmental authority to engage in licensing activities when it contracts with hospitals or nursing facilities. Nor does the Insurance Commissioner grant a license, in the traditional sense, to nursing facilities when approving rates pursuant to MCL 550.503. Rather, the commissioner is acknowledging that the rates established by the contracting parties are fair and reasonable charges for health care services incurred by the citizens of Michigan. Thus, while we surely continue to support the rationale underlying our decisions in Bundo v Walled Lake, supra, Bisco’s, Inc v Liquor Control Comm, supra, and other cases which have extended the procedural guarantees of due process, our holding is necessarily confined to the facts of this case.
The Administrative Procedures Act, in the absence of an explicit statutory requirement that an evidentiary hearing be held, guarantees that administrative hearings, however informal, comport with the notions of fairness embodied in the requirements of procedural due process. This hearing has done so.
The decision of the Court of Appeals is affirmed. The matter is remanded to the circuit court for further proceedings not inconsistent with this opinion.
Coleman, C.J., concurred with Fitzgerald, J.
Joint Anti-Fascist Refugee Committee v McGrath, 341 US 123, 170; 71 S Ct 624; 95 L Ed 817 (1951) (Frankfurter, J., concurring).
Board of Regents of State Colleges v Roth, 408 US 564, 571; 92 S a 2701; 33 L Ed 2d 548 (1972).
MCL 550.501 et seq.; MSA 24.621 et seq., was repealed by 1980 PA 350, effective April 3, 1981. MCL 550.503; MSA 24.623 may now be found at MCL 550.1207; MSA 24.660(207).
Blue Cross & Blue Shield of Michigan v Ins Comm’r, 403 Mich 399; 270 NW2d 845 (1978).
410 F Supp 344, 348.
"These decisions underscore the truism that ' "[d]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ * * * More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v Eldridge, 424 US 319, 334-335; 96 S a 893; 47 L Ed 2d 18 (1976).
See, also, Morrissey v Brewer, supra; Goss v Lopez, 419 US 565; 95 S Ct 729; 42 L Ed 2d 725 (1975); Arnett v Kennedy, 416 US 134; 94 S Ct 1633; 40 L Ed 2d 15 (1974); Wolff v McDonnell, 418 US 539; 94 S Ct 2963; 41 L Ed 2d 935 (1974); 2 Davis, Administrative Law Treatise, supra, §§ 10:7-10:8, pp 328-337; 4 Mezines, Stein & Gruff, Administrative Law, § 33.02, pp 33-7 — 33-21. | [
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Per Curiam.
Plaintiff alleged in Ms complaint the following: during the evening of July 25, 1967, the defendant city of Saginaw, Michigan, was in the midst of what is euphemistically termed a civil disturbance; the disturbance was of such magnitude that the city requested assistance from the state police and armed auxiliary police in order to return calm; that same evening, plaintiff was sitting on the porch of a residence in Saginaw and doing nothing more than sitting on that porch; while there on the porch, plaintiff ivas shot in the head by one of the many law enforcement officers in the area and as a result of this injury, plaintiff suffered severe and permanent injuries and paralysis.
Plaintiff further alleged that he was shot through the negligence, gross negligence or wanton and willful misconduct, or intentionally by an agent of defendant. No affidavits were filed by the defendant city controverting any of the facts stated in plaintiff’s complaint.
Defendant filed a motion for accelerated judgment on the basis that the city was immune from tort liability. This position was based on PA 1964, No 170, § 7 (MOLA § 691.1407 [Stat Ann 1969 Eev § 3.996 (107)]). Section 7 states:
“Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein said governmental agency is engaged in the exercise and discharge of a governmental function.”
The circuit court of Saginaw county considered defendant’s motion as one for summary judgment and entered an order granting it.
Plaintiff appeals the granting of defendant’s motion.
The parties to this suit unfortunately did not have at their disposal our decision of Maki v. City of East Tawas (1969), 18 Mich. App 109, when they filed their briefs in this case. Maid discussed the precise issues raised in this appeal on the same § 7. "We determined in Maid that the reference in § 7 to torts generally was impermissibly broad. We further determined that it would be unwise to construe the “tort” in the enactment to mean the “negligence” found in the title. Our conclusion was that § 7 is therefore, unconstitutional. This appeal does not present issues which call for a discussion beyond what was stated in Maid.
Defendant city additionally relies on certain common-law principles allegedly neither abrogated nor compromised by Maki or Williams v. City of Detroit (1961), 364 Mich 231. Not only were these principles not raised before the circuit judge and thus are not properly before this court, Artman v. College Heights Mobile Park, Inc. (1969), 20 Mich App 193, but also the arguments misconstrue plaintiff’s allegations, the purpose of a motion for summary judgment, and the concept of discretion. For these reasons we do not presently consider them.
The issues of fact raised in the pleadings require determination on the merits.
The order granting summary judgment in .favor of defendant is set aside and the cause remanded to the trial court for further proceedings.
No costs, the construction of a statute being involved.
l A motoin for summary judgment does not attack the competency of the evidence. Rather, it assumes the existence of the evidence while denying that it sets forth a valid cause of action. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 358-361. | [
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B. B. Burns, J.
Plaintiff appeals a four to three decision of the -workmen’s compensation appeal hoard reversing a finding by the referee that plaintiff was an employee of defendant H. A. Montgomery Company at the time he was injured in a fall from a ladder at defendant’s premises on November 18, 1964. The question to decide is whether for purposes of workmen’s compensation plaintiff was an employee of defendant at the time of his injury.
Plaintiff became a journeyman electrician in 1929 and so remained. He never obtained a contractor’s license. In 1959, at age 65, plaintiff commenced drawing social security payments. To supplement his income he worked on a part-time employment basis for his brother, an electrical contractor, until 1962, after which time he did part-time journeyman electrical repair work on his own. In late 1964, plaintiff’s part-time work was performed almost exclusively for defendant, a chemical manufacturing corporation. Between the 15th and 20th of each month plaintiff would go to the plant and oil all the motors and do general repair and maintenance work on the electrical equipment. He was also on call for any breakdown or sudden repair work required. He was not authorized to do any new work or work requiring a permit. For that defendant hired electrical contractors.
The majority of the appeal board determined plaintiff to be an independent contractor rather than defendant’s employee. They based this conclusion on the following facts:
“1. Plaintiff provided the same service for other factories and homes.
“2. He deliberately limited Ms earnings to a total of not more than $100 a month for social security purposes.
“3. No social security tax was deducted by the defendant.
“á. No income tax was deducted by the defendant.
“5. The plaintiff filed an income tax profit and loss from business, Form C.
“6. No W-2 Form filed by the defendant or requested by the plaintiff.
“7. Plaintiff only worked when called, other than once a month for machine oiling.
“8. Plaintiff worked unsupervised.
“9. His work as a tradesman is especially amenable to an independent contractor status.
“10. He kept his own. records and did his own billing.
“11. Tax records indicated he did business under a business name.
“12. He earned additional profit through markups on materials.
“13. He used his own tools.
“14. He hired additional help when necessary.”
The dissenting opinion is more persuasive and we quote that portion which analyzes the above points.
“The unrebutted proofs presented paint an entirely different picture of the economic realities existing between the disputing parties than does the 14 brush strokes used by my associate in his opinion. Before we turn to the unrebutted proofs which in my opinion show the true status of the economic relationship existing between the defendant and the plaintiff herein, let us examine the 14 reasons assigned by my associate for holding that plaintiff was an independent contractor.
“Several of the 14 reasons assigned as showing an independent contractor relationship flow from the same proofs and are tantamount to restatements of the' first stated. An example of this are items 3, 4, 5, 6, and 11 which relate to the income tax records of the parties which show that defendant did not deduct taxes from the sums paid plaintiff; and he, being an honest individual, did keep records of his earnings and did report and pay taxes to the federal government upon' the sums received. I cannot believe that evidence, which really shows nothing more than that an employer did not comply with federal rules which require him to withhold taxes from his employee’s paycheck, is proof that no contract of hire existed between the parties. Such approach would permit any employer to escape the red tape n&ceSsary ‘to collect these taxes by simply stating the legal jingle that the ‘person is not my employee,’ then proving his own statement by showing that no taxes were deducted from the payments made for the services rendered. In my opinion very little, if any, of the economic realities referred to by Mr. Justice Smith are involved in the defendant’s failure to deduct taxes from the sums paid plaintiff. Furthermore, in the dissent entered by Mr. Justice Smith in Powell [v. Employment Security Commission (1956), 345 Mich 455] which was later adopted as-controlling law, federal tax records such as those relied upon by Mr. Bowerman, were given the following weight in testing the economic realities between the parties:
' “ ‘It is unnecessary to stress that the ruling of the United States treasury department, made in response to appellants’ request, does not control our determination upon these facts. I agree with my brother that it is not necessary to pass upon the impact of the Federal act on the question here presented.’
“In Itém #1 Mr. Bowerman states that plaintiff provided the ‘same services’ for other factories and homes. What were the services provided? In reality nothing but plaintiff’s labor which was of a skilled nature. Plaintiff does not deny that he did sell- his labor to another employer prior to 1964 on a part-time basis and that be did on occasion do minor electrical repair jobs for neighbors.
# * *
“In reporting and paying his income tax to the collector of internal revenue, plaintiff did use the name Glick Electrical Service upon Federal tax returns, but he could not state why. He had never registered this name with the county, but his brother, who was in the contracting business, had done so. Plaintiff had previously worked for his brother and in all probability did at that time report his income as coming from the Click Electrical Service. The proofs show that plaintiff had never been a partner in the business with his brother, and there is no evidence which shows that plaintiff advertised himself to the community as being in the electrical contracting business, he had no regular payroll, nor employees.
“In Item #2 my associate states that plaintiff deliberately limits his earnings for social security purposes. This economic reality test which leads my associate to conclude that plaintiff was an independent contractor hardly needs comment here; suffice to state, that many thousands of retirees who work part time after their retirement will be surprised to discover that they have suddenly become independent businessmen, not involved with the economic pitfalls of a contract of hire where they are now employed on a part-time basis.
“Item #7 is another way of saying what was said in Item #2. Plaintiff was hired to oil machines between the 15th and 20th of each month and was called to make repairs only when electrical repairs were needed on the part of defendant.
“Item #8 finds that plaintiff worked unsupervised, but the unrebutted proofs recorded on pages 11, 12, 13, 26, 27, and 28 of the record show to the contrary.
“Members of the Electrical Workers Union will be surprised to discover, by the test set forth in Item #9, that they are ‘amenable to an independent contractor status’ and are ‘liable to be brought to account’ and made ‘answerable’ for their work status when they suffer injury. (Last two quotes [sic] from Webster’s International — see amenable).
“Defendant' did not require plaintiff to punch a time clock, and plaintiff kept a record of the hours he worked and submitted his statement to defendant. Payment at the rate of $4.50 per each hour worked was then made by the defendant. No taxes were deducted and plaintiff did keep records of the sums received and reported these sums on his Federal income tax returns. It would seem to me that Item #11 should get little weight in assessing the economic realities of the relationship existing between the parties.
“Item #12 would hold plaintiff to be an independent contractor because he earned additional profit through markup of materials he purchased to perform the job assigned. The proofs show that plaintiff used what parts and materials defendant had availáble, and that defendant’s agent gave plaintiff the right to purchase other items needed to do the job. The agent did this because he didn’t want to be bothered. Plaintiff was told to submit a billing for the items purchased, and does admit that he did mark up the items which he purchased, and it can be said that he made a profit on these items. However, the full significance of any economic reality test involved in these purchases is disclosed by the following testimony:
# * *
“ ‘Q. In replacing parts for Montgomery Company, you would make a list as you went through the plant then ask one of the gentlemen if it was all right to purchase this ?
“ ‘A. As a rule I would go to the plant superintendent, Mr. Alexander. When I first took over Mr. Alexander told me, I went in and ■ asked him about buying these different things and he says “Dave, I want you to go ahead just as you did before and I don’t want to be bothered with purchasing all these small things”. He said, “I want you to go ahead and get it and bill us for it and we will pay it”.’
“Mr. Alexander was not called as a witness in this matter.
“Item #13 relies upon the fact that plaintiff used his own tools. The proofs do show that plaintiff did own some of the tools which he used to perform the work assigned. It appears that these tools were nothing more than personal tools that any skilled tradesman would have. The Supreme Court of Michigan has recognized that such an artisan brings the tools of his trade to the work bench. (Moore v. Fleischman Yeast [1934], 268 Mich 668.) Larger equipment such as ladders (from which he fell), that were needed to perform the assigned task, were furnished by the defendant. * * *
“Item #14 relies upon testimony which shows that plaintiff reported a $150 labor cost on his income tax returns. The following testimony must have begot conclusion #14:
# # *
“‘The Referee: Okay. I have no other questions, I don’t believe. Yes, I do have one other question.
“ ‘Your 1964 return shows an item of cost of labor of $150, do you know what that was for?
“ ‘A, Well, I had to have my — I had to have help on this one job. I don’t recall just which job it was right now.’
* * *
“The true economic picture portrayed by the proofs presented here shows an established business having the need for the labor of someone to work part time, who was possessed of sufficient skill to care for the machinery, make occasional repair and do so without close supervision. A journeyman electrician with long experience, working for others, had recently retired and was interested in part-time employment to supplement his retirement income. He sold his skilled labor by the hour, and worked on a part-time basis for a few friends and one other established business. An agent of defendant called plaintiff, and the unrebutted proofs show that the following contract of hire was entered into:
“ ‘Q. What sort of work were you hired to do for Montgomery?
“‘A. Well, they, Mr. Smith, that was the plant superintendent, he got a hold of me one day after [sic] my brother had sent in his resignation that, well, he only got so bad that he couldn’t do anything himself, he couldn’t even do book work. He called Mr. Smith, Mr. Smith called me and we had a talk and he wanted me to just go around and. supervise everything that was in the shop like oiling motors or whatever their men would get careless, and he wanted me to take care of that and if anything went haywire with the machinery, that is the electric parts of the machinery I was to repair that; but I wasn’t to take on any new work. If they had new work that was to be done they would hire an outside electrician, after 1962 when my brother died.’
“At the time of the injury here in question, the Michigan workmen’s compensation statute defined employers and employees who were subject to the act as follows:
“(MOLA § 411.5 [Stat Ann 1968 Rev § 17.145])
“ ‘Sec. 5. The following shall constitute employers; subject to the provisions of this act:
-X' * #
“ ‘Private 2. Every person, firm and private corporation, including any public service corporation, who has any person in service under any contract of hire, express or implied, oral or written.’
“(MOLA § 411.7 [Stat Ann 1968 Rev § 17.147])
“ ‘Sec. 7. The term “employee” as used in this act shall be construed to mean:
* * *
“ ‘2. Every person in the service of another, under any contract of hire express or implied.’ ”
At the time of the accident, plaintiff was performing substantially all of his part-time labor for defendant. To maintain that he was holding himself out to the public as performing an independent business service because his neighbors and acquaintances of many years would call to have some work done in their homes would be to distort reality. The reality is that as cited in 1A Larson, Workmen’s Compensation Law, § 45.31(a), p 670:
“a regular, recurring, and substantial part of the employer’s work in the form of maintenance and repair, has been contracted out to a workman to whom, whether or not he has a public business, it is such a relatively large item that his relationship to the employer is not that of an independent business man.”
Workmen’s compensation acts were passed as remedial legislation to alleviate social and economic problems of workers. The ills sought to be cured by the passage of such acts demand the acts be given a liberal interpretation.
We find that the plaintiff was an employee of the defendant. The Workmen’s Compensation Appeal Board is reversed and the decision of the hearing referee is reinstated. Costs to plaintiff.
All concurred. | [
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Per Curiam.
Defendant employed the plaintiff tool company to build a die, which was intended to produce a part to be used in the fulfillment of a contract between the Ford Motor Company and the defendant. The die was to be manufactured in accordance with a drawing submitted by the Ford Motor Company. When completed, the die would not produce the required part. Plaintiff contends he advised the defendant, before undertaking the contract, that the proposed design would not give the required results, but the defendant insisted that plaintiff at tempt the job. Plaintiff claims the die was machined in accordance with the drawings submitted and disclaims any responsibility for the nonperformance of the finished die.
Defendant contends that because of the failure of the die, it was required to employ another firm to rebuild the die so that it would produce the required part, at a cost in excess of the original cost, and because of the time necessary for the rebuilding, the Ford Motor Company cancelled its production job contract with defendant.
There was a claim of the plaintiff and a counterclaim of the defendant, under a disputed set of facts, from which the trial court, sitting without a jury, found in favor of the plaintiff in the sum of $2,200 (the difference between the $5,200 judgment for the plaintiff and the $3,000 which had been paid by defendant) and costs. An examination of the lower court record reveals that there was ample evidence to support the lower court’s findings. Findings of fact will not be set aside unless clearly erroneous. GCR1963, 517.1.
Affirmed. | [
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Per Curiam.
These cases raise identical questions regarding interpretation of MCL 750.338; MSA 28.570. At issue is whether a defendant may be convicted of attempting to procure the commission of an act of gross indecency when the act proposed would be between the defendant and another person. We conclude the statute does not apply in such circumstances.
I
In each of these cases there was evidence that the male defendants suggested to other men that the defendant would be willing to perform certain sexual acts with them, in one case for money. No sexual activities took place. Each was convicted of attempting to procure the commission of an act of gross indecency under MCL 750.338; MSA 28.570:
"Any male person who, in public or in private, commits or is a party to the commission of or procures or attempts to procure the commission by any male person of any act of gross indecency with another male person shall be guilty of a felony, punishable by imprisonment in the state prison, for not more than 5 years * * *.” (Emphasis added.)
In Masten, the Court of Appeals affirmed the conviction, the majority citing People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967), as implicitly holding that "the term 'procure’ is not limited to situations in which one person attempts to induce an illegal act involving two or more other persons”. People v Masten, 96 Mich App 127, 133, fn 7; 292 NW2d 171 (1980). Judge Bronson dissented, concluding:
"It is apparent that the ordinary use of the word 'procure’ in the context of sexual activity means the facilitation of sexual activity between two other individuals.” 96 Mich App 139.
The defendant filed a request for review of his conviction under Administrative Order 1977-4, 400 Mich lxvii, and we ordered the prosecutor to show cause why the conviction should not be reversed for the reasons set forth in Judge Bronson’s dissent and by the Court of Appeals panel in People v Mabry, 102 Mich App 336; 301 NW2d 528 (1980). The prosecutor has filed a written response.
In Mabry, the Court of Appeals reversed, expressing agreement with Judge Bronson’s analysis, and reasoning that the offense charged here is distinguished from solicitation because the latter applies to two-party transactions while attempting to procure the commission of an act of gross indecency requires that the proposed sexual activity be between two persons other than the defendant. The prosecutor has filed a delayed application for leave to appeal.
II
We agree with the Court of Appeals in Mabry and Judge Bronson’s dissent in Masten that the part of the statute referring to one who "procures or attempts to procure” an act of gross indecency is meant to apply to situations in which the defendant facilitates or attempts to facilitate the commission of an act of gross indecency by two other persons.. This is simply the more sensible reading of the section. It is meant to proscribe two kinds of conduct: committing gross indecency and bringing about gross indecency. If "procure” is read to include bringing about such acts involving oneself, it adds nothing, since the actor will also have committed the act of gross indecency. Such a reading would have the anomalous result of subjecting those who commit or procure (for themselves) an act of gross indecency to the same five-year penalty, but, if there is only an attempt, one who attempts to commit the act can be sentenced to no more than two and one-half years, while one who attempts to procure (for himself) such an act can be sentenced to five years. If procuring is limited to three-party transactions this sentencing provision is rational. The conduct of one who attempts to procure such an act between others is not made either more or less culpable by the fortuitous circumstance that the other parties commit or do not commit the act of gross indecency.
We are not persuaded by the cases on which the prosecutor relies. Although People v Dexter, supra, involved a conviction for procuring an act of gross indecency in which the defendant was a participant, the issue was not raised or discussed in the opinion. While People v Carey, 217 Mich 601; 187 NW 261 (1922), apparently rejected an argument like that raised here, it did so without either explicitly explaining or, indeed, explicitly stating the issue. For the reasons stated above, we disagree with its conclusion.
Accordingly, in Masten the request for review is treated as an application for leave to appeal. Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we affirm the judgment of the Court of Appeals in Mabry and reverse the defendant’s conviction in Masten.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
In Masten the men to whom the defendant made the offer were police officers. In Mabry the man approached was a school security guard. In each case the defendant was promptly arrested.
MCL 750.448; MSA 28.703:
"Any person, male or female, 17- years of age or older, who shall accost, solicit or invite another in any public place, or in or from any building or vehicle, by word, gesture or any other means, to commit prostitution or to do any other lewd or immoral act, shall be guilty of a misdemeanor.”
MCL 750.92; MSA 28.287. See People v Loveday, 390 Mich 711, 713-715; 212 NW2d 708 (1973).
Carey says only:
"The information charged the procurement of the commission of the offense. This is criticized. It is sufficient to say that the evidence would support a charge of committing or of procuring to commit.” 217 Mich 603-604. | [
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Coleman, C.J.
In this case, we are asked to decide whether the state is liable to a decedent’s personal representative under the wrongful death act for damages for loss of companionship and society in an action which alleges that the state has breached its duty to maintain a highway so that it is reasonably safe for public travel. We hold that the state is liable for such damages, if proved. Accordingly, we reverse the trial court’s grant of defendant’s motion for summary judgment with regard to plaintiff’s claim for damages for loss of companionship and society.
I
On July 13, 1973, plaintiff’s decedent, Thomas Endykiewicz, sustained fatal injuries when the panel truck he was driving collided with another vehicle on the Southfield Expressway. The other vehicle had traveled through a guardrail which was situated on the median dividing the northbound and southbound lanes of the expressway.
Thomas Endykiewicz was survived by his wife, Wilma Jean, and two minor children. In her capacity as the administratrix of the decedent’s estate, Wilma Jean Endykiewicz filed suit in the Court of Claims on July 11, 1975, against defendant State Highway Commission. Her complaint alleged that defendant had breached its statutory duty to maintain its highways in a condition reasonably fit for travel, and requested damages for decedent’s pain and suffering, necessary and reasonable funeral, medical and burial expenses, loss of decedent’s wages, and loss of decedent’s companionship and society.
In the Court of Claims, defendant moved for summary judgment, alleging that the statute which imposes liability for defective highways upon the state represents only a limited waiver of tort liability, and does not permit an award of damages beyond those expressly stated for bodily injury and property damage suffered by the injured person. The trial court granted summary judgment to defendant with respect to plaintiff’s claim for loss of companionship and society. The Court of Appeals affirmed, 102 Mich App 662; 302 NW2d 271 (1981). This Court granted leave to appeal, 411 Mich 1035 (1981).
II
The sole issue presented by this case is whether plaintiff may recover from the state, under applicable provisions of the wrongful death act, damages for the loss of decedent’s companionship and society, in view of MCL 691.1402; MSA 3.996(102), which appears to restrict governmental tort liabil ity for highway defects to bodily injury and property damage suffered by an injured person.
The highway liability statute, MCL 691.1402; MSA 3.996(102) imposes upon "[e]ach governmental agency having jurisdiction over any highway” the duty to "maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel”. The statute further provides, in pertinent part, for governmental liability on account of highway defects:
"Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.”
It is the above-quoted language which has provoked the controversy which arises in this case.
In juxtaposition to the highway liability statute in this case is the wrongful death act, MCL 600.2922; MSA 27A.2922, which exists as the sole vehicle for the recovery of damages occasioned by death. Among the damages which may be recovered from a tortfeasor for the wrongful death of a deceased person are damages "for the loss of the society and companionship of the deceased”. MCL 600.2922(2); MSA 27A.2922(2). Although defendant concedes the general applicability of the wrongful death act as a method for the recovery of damages from the state by reason of highway defects when death has occurred, it asserts that the wrongful death act in its entirety, i.e., with respect to elements of damages, need not be superimposed upon the highway liability act in case of death.
Plaintiffs position is that damages for loss of companionship and society as provided for by the wrongful death act are fully recoverable from the state. The objective of the highway liability statute is to place the government on an equal footing with private tortfeasors. Because a private tortfeasor would have been liable for these damages for the infliction of injuries resulting in death, so too should the state be held liable. Although the Court of Appeals found that the highway liability statute should be strictly construed because it is in derogation of the common law, this rationale is faulty because Michigan has abrogated common-law governmental immunity; see Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976).
Defendant responds that the state has given its consent to be sued only under the terms of MCL 691.1402; MSA 3.996(102). The damages recoverable under this statute are said to be limited to those "suffered by” the person who directly sustained bodily injury, in this case, the decedent. Damages for loss of decedent’s companionship and society do not fall within the category of damages "suffered by” the injured person and therefore are not recoverable from the state under its limited waiver of tort immunity, according to defendant. Also, defendant posits that the highway liability statute is not subject to judicial interpretation because its restrictive language is clear and unambiguous. Pursuing a different tack, defendant agrees with the Court of Appeals that the language of this statute must be strictly construed. Courts should defer to the Legislature’s intent to confine narrowly the state’s tort liability in highway defect cases. Accordingly, plaintiff may not pursue her claim for damages for loss of decedent’s companionship and society.
We find the interpretation of MCL 691.1402; MSA 3.996(102) urged by defendant to be unduly restrictive. Our conclusion, that damages for loss of companionship and society may be recovered in this case and in similar cases, is derived from application of accepted principles of statutory interpretation, identification and analysis of the policies which might be enhanced by preserving statutory tort immunity with reference to these damages, and consideration of supportive case law.
Ill
The parties focus much of their attention on established rules of statutory construction. We agree that these rules lend assistance to the resolution of the case before us, although the rules which we deem pertinent are not necessarily those upon which the parties have placed heavy reliance.
Essentially, the rules of interpretation we address are so familiar and so firmly rooted in our jurisprudence that they require no citation: (1) only ambiguous statutes may be the subject of interpretive scrutiny by the judiciary; (2) the guiding principle of statutory interpretation is to dis cern and give effect to legislative intent; (3) when two statutes address the same person or situation, an attempt should be made to read them harmoniously and to give both statutes a reasonable effect; and (4) the Legislature is presumed to have knowledge of and to act consonantly with existing statutes.
A
The threshold rule, that the language of a statute must be ambiguous before it may be interpreted by the courts, is met in this case. We deem the pertinent language in the highway liability statute, "[a]ny person sustaining bodily injury or damage * * * may recover the damages suffered by him”, sufficiently unclear as to require interpretation with respect to whether recovery may be had for damages which arise as a direct consequence of the injury inflicted as a result of a highway defect and which are expressly compensable under the provisions of the wrongful death act. Defendant’s argument to the contrary on this point is unpersuasive.
Because the language of the highway liability statute is ambiguous with reference to the facts before us, we proceed to examine the statute to ascertain its meaning.
MCL 691.1402; MSA 3.996(102) provides that ”[a]ny person sustaining bodily injury or damage to his property * * * may recover the damages suffered by him” (emphasis added). This language may be viewed from two perspectives: who may recover damages, and what sort of damages may be recovered, in an action against the state for highway defects.
Although the language of MCL 691.1402; MSA 3.996(102), by its terms, does appear to limit the class of persons who might seek recovery to persons who have actually sustained injury to person or property, a restrictive interpretation has not always been accorded this language. One example of a departure from the literal language is significant here. It has been held under predecessor statutes as well as under the present statute that where fatal injuries are sustained by a person as a result of the government’s failure to keep its highways fit for travel, his or her personal representative is entitled to maintain a wrongful death action against the governmental agency. Racho v Detroit, 90 Mich 92; 51 NW 360 (1892); McCaul v Kent County, 231 Mich 681; 204 NW 756 (1925); Pagano v Dep’t of State Highways, 76 Mich App 569; 257 NW2d 172 (1977); Phelps v Dep’t of State Highways, 75 Mich App 442; 254 NW2d 923 (1977). In this case, it is unquestioned that plaintiff is able to seek redress against defendant for decedent’s death, although plaintiff has not expressly been authorized by the statutory language to maintain her action. Thus, case law has identified this plaintiff as the functional equivalent of the person who has suffered bodily injury or property damage.
Given plaintiff’s unique status as one who has not suffered actual injury, but who nevertheless has the right to maintain a suit to remedy wrongs occasioned by highway defects, it is reasonable to permit plaintiff to recover those damages, including damages for loss of companionship and society, which are authorized by the wrongful death act. Although some of the damages permitted for wrongful death are not, in one sense of the phrase, damages suffered by the person who actually was injured (the decedent), they are damages "suf fered” or sustained by the individuals for whose benefit the personal representative, the person allowed to bring suit in the place of the decedent, maintains a wrongful death action. Moreover, these damages arise as a direct consequence of the bodily injury for which relief is sought in this case. The decedent (any person) is in no position to collect damages for injuries suffered by him. If the statute is read literally, the state’s liability would cease upon a decedent’s death. Therefore, it is important to remember that in this case we are not confronted with the highway liability statute in a vacuum. The wrongful death act, which applies "/wjhenever the death of a person or injuries resulting in death shall be caused by wrongful act * * * and the act * * * is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages”, MCL 600.2922(1); MSA 27A.2922(1) (emphasis added), also must be considered. An action for wrongful death exists not as "a cause of action which survives” the decedent, but as "a new action * * * which can be brought, not for the benefit of the estate, but solely for the benefit of the beneficiaries named in the statute”. Lincoln v Detroit & M R Co, 179 Mich 189, 195-196; 146 NW 405 (1914); see, also, Maiuri v Sinacola Construction Co, 382 Mich 391; 170 NW2d 27 (1969). Although the deceased person, had he lived, would have been able to maintain an action for damages for the injuries received, damages different from those which the decedent himself might have received are recoverable in the wrongful death action. Lincoln, supra. In addition, the wrongful death act stands as the exclusive remedy for injuries resulting in death, MCL 600.2922(1); MSA 27A.2922(1).
Defendant would have us segregate the proce dural aspects of the wrongful death act — those which permit the personal representative to maintain an action to recover for injuries resulting from death — from the substantive portions of the act pertaining to damages. We decline to view the wrongful death provisions in such a bifurcated manner. This exclusive remedy, which recognizes an enlargement of damages occasioned by death, must be applied in its entirety. Thus, once it is recognized that the wrongful death act is the exclusive vehicle for recovery from a governmental agency in the event of death, it is appropriate to conclude that the provision for damages contained in the same act also pertains.
B
A second relevant axiom of statutory interpretation is that, given ambiguous language in a statute, the role of the court is to discover the legislative intent, and to give effect to that intent.
One aspect of the intent of the Legislature in promulgating the highway liability statute is readily discernible. The statute exists to provide an opportunity to obtain redress from the responsible governmental agency for those injured as a result of the negligence of the government in its maintenance of highways. In short, the Legislature has given its consent for persons to sue the state for damages occasioned by defective highways. Here, the wrongful death beneficiaries may have been "wronged” by the injuries which culminated in death. Free allowance of the instant action — including the aspect of this action which demands recovery for loss of companionship and society— effects the manifest intent of the Legislature to provide a remedy for those wronged by the government’s failure to maintain its highways.
Although it is argued that 1964 PA 170, the act of which MCL 691.1402; MSA 3.996(102) is a part, reasonably may be perceived as being indicative of the Legislature’s intent to limit, as well as to create, the liability of government, no express words of limitation are evident therein.
In contrast, other specifically worded limitations exist elsewhere in the tort liability statute: e.g., the highway provision states that "liability * * * shall extend only to the improved portion of the highway”; no recovery under the highway provision is permitted for injury or loss suffered before July 1, 1965; and the liability of a governmental agency is further limited by the requirement that the agency have knowledge of the defect, MCL 691.1403; MSA 3.996(103). Thus, plaintiff contends that the Legislature did specifically limit the right of an injured person to recover damages from the government. However, we find that MCL 691.1402; MSA 3.996(102) does not exist in whole or in part as a limitation on recovery. It is, instead, an expansive provision defining the liability of a governmental agency.
Had the Legislature intended to prohibit the recovery of consequential or incidental damages which arise directly from the infliction of injury to person or property at the hands of the government, it would have affirmatively done so in specific language, utilizing express words of limitation, much as it did with respect to other restrictions on liability contained in 1964 PA 170.
C
While observing that the highway liability and wrongful death statutes mesh in this case, we already have touched upon a third tenet of statutory interpretation: that statutes which address the same situation should be read harmoniously and given a concordant and reasonable effect.
This is accomplished in the instant case by permitting recovery for loss of companionship and society in a wrongful death action brought against the state under the consent provided by the highway liability statute. The intents of both statutes in question (one intends to accord a remedy for highway defects, and the other intends to provide broad relief to designated beneficiaries who have sustained a loss as a result of a wrongfully occasioned death) are given full, just, and reasonable effect in this manner.
D
A relevant, although not determinative, maxim of interpretation is that the Legislature, when enacting a statutory provision, is presumed to have knowledge of existing statutes. In 1971, when the Legislature amended the wrongful death act to include damages for loss of companionship and society, it presumably was aware of the highway liability statute and the necessity for using the wrongful death act as a vehicle for recovery in the event that death ensued from the injuries inflicted. Had the Legislature wished to prohibit the recovery of these particular damages in highway defect cases, it appears that it would have taken specific action to this end sometime after 1971. To date, the highway liability statute has not been amended to preclude expressly this sort of recovery.
IV
Had the decedent in the case at bar met his death at the hands of a private tortfeasor, his personal representative without question would be entitled to recover damages for loss of decedent’s companionship and society. Defendant insists that the statutory immunity of government should prevail with respect to these damages, i.e., that the state should not be placed on a footing with private tortfeasors. We look to the policy reasons advanced to justify the immunity of government from tort liability, and proceed to determine whether these policies are well-served by excluding the damages in wrongful death actions brought against the state.
In general, governmental immunity from liability for tort exists in recognition of the possibility that amenability to suit will impede the ability of the government to govern effectively, and will burden the government with costs that it is not prepared to meet without endangering the public fisc. In our view, neither of these policy reasons is jeopardized by permitting this plaintiff to pursue her action for damages for loss of companionship and society.
Requiring the state to be responsible for damages for loss of companionship and society in wrongful death-highway liability cases will not erode the ability of the state to function smoothly and effectively. Because these damages are recoverable in a single wrongful death suit, the number of lawsuits to which the state must respond will not be multiplied. By consenting to suit against the state for injuries resulting from highway defects, the Legislature already has intimated that the state’s capacity to govern is not impaired when it is liable for a broad range of damages. We find that this capacity to govern would not be diminished by allowance of damages for loss of companionship and society.
Nor are we persuaded that by permitting wrongful death beneficiaries to recover damages for loss of companionship and society, state finances, which already hang in a precarious balance, would be severely drained.
We conclude that the policy reasons usually stated in favor of governmental tort immunity are not enhanced by precluding plaintiff from recovering damages for loss of companionship and society.
V
We hold that plaintiff is entitled to pursue her claim for damages for loss of decedent’s companionship and society. Accordingly, we reverse the trial court’s grant of summary judgment in favor of defendant in this regard, and remand this case to the Court of Claims for further proceedings.
Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Coleman, C.J.
Decedent’s wife and children were not involved in the accident.
"All actions for such death, or injuries resulting in death, shall be brought only under this section.” MCL 600.2922(1); MSA 27A.2922(1).
In 1971, the Legislature amended the wrongful death act to include damages for loss of companionship and society among the damages, recoverable for wrongful death; see 1971 PA 65. In Smith v Detroit, 388 Mich 637; 202 NW2d 300 (1972), the Court overruled its decision in Breckon v Franklin Fuel Co, 383 Mich 251; 174 NW2d 836 (1970), which had held that these damages are not available in wrongful death actions.
See Pagano v Dep’t of State Highways, 76 Mich App 569; 257 NW2d 172 (1977); Phelps v Dep’t of State Highways, 75 Mich App 442; 254 NW2d 923 (1977); McCaul v Kent County, 231 Mich 681; 204 NW 756 (1925).
See fn 3. | [
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Per Curiam.
In this cause, plaintiff brought suit in Kent County Circuit Court against defendant for monies allegedly owed to him by one of its divisions, tbe Weber Showcase and Fixture Company, for bonuses earned in 1963, 1964, and 1966.
The trial court, sitting without a jury, found that plaintiff was promised as part of his employment contract, by which he was persuaded to leave his previous position, that he would receive a bonus of 12-1/2% of the improvement of the Grand Rapids division for 1963 over 1962, less certain nonrecurring expenses. The trial court found that plaintiff rightfully relied on this promise and that therefore the defendant was bound to pay for the benefit conferred upon it by the plaintiff. The amount owed for 1963 was found to be $13,270.50 plus 5% interest from January 1,1964.
The trial court rejected defendant’s claim that by accepting a payment of $1,250.00 in July of 1964, the plaintiff waived any claim he might have had for a larger bonus for 1963. The court found that $1,250.00 was not connected with plaintiff’s claimed bonus for 1963. It also found that plaintiff was not entitled to anything in addition to the $1,250.00 for 1964.
With regard to 1966, the court found that when plaintiff had made known his intention to resign in mid-1966, he was “begged to stay on” and promised not only by his immediate superior, but also by a high officer in the home office that if he stayed, he would receive a bonus which was then projected to be about $3,000. The court found that the mid-year projection was based on division earnings of approximately $200,000.
The court found that relying on this promise, the plaintiff remained in his position until January 3, 1967. Since the actual earnings of the division were in excess of $446,000, the bonus as computed by the trial court came to $6,700. Against this figure the trial court credited the $6,000 which the plaintiff had drawn from the company’s account prior to his leaving. He used the money to pay his income taxes.
Although the defendant claims that plaintiff’s actions constituted embezzlement, the trial court found that the plaintiff had acted in good faith, without any criminal intent in his somewhat ill-advised self-help acquisition; and therefore, was not barred from claiming his 1966 bonus. The court further found that plaintiff was not bound by the restriction found in the 1965 bonus plan which said that any bonuses not paid prior to an employee’s leaving were lost to that employee.
The amount due from 1966 then according to the trial court was $700.00 plus 5%, or $758.89. Even if after a review of the record presented, we disagreed with the trial court’s findings, we would not reverse unless we were to find that the trial court was clearly erroneous. GCR 1963, 517.1; see also Lake Louise Christian Community v. Hudson Township of (1968), 10 Mich App 573, 581.
Having reviewed the record and examined the authorities relied upon by the defendant, we do not find that the trial court erred either in its findings of facts, or in its application of the law.
Further, we agree with the trial court that plaintiff justifiably relied on the promises made to him both in hiring and in keeping him on the job through 1966. Consequently, we affirm.
Affirmed. Costs to plaintiff. | [
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Fitzgerald, C.J.
This is an appeal of an Attorney Discipline Board order which suspended the professional license of attorney Robert A. Grimes for 120 days. Appellant grievance administrator contends that the discipline imposed is insufficient in view of the circumstances of this case. We agree, and revoke Grimes’ license to practice law.
I
In August, 1979, Grimes was charged in a formal complaint brought by the grievance administrator with two counts of professional misconduct. The first count stemmed from two felony convic tions for federal income tax evasion. Grimes was accused in the second count of counseling a client to lie to investigators in connection with the tax fraud case.
The criminal prosecution was a "net worth” case in which Grimes was accused of not reporting more than $100,000 in income for 1971 and 1972. His defense to the charges included claims of embezzlement by a former employee, loan repayments from a since-deceased friend, poor judgment, legal error and sloppy bookkeeping.
Federal prosecutors charged that some of the income Grimes concealed had been paid to him for representing clients in personal injury cases. Grimes contended that he did not report these so-called "fees” as income because the money actually served to fund further litigation in the cases. In support of his assertion, Grimes noted agreements between him and clients wherein the-clients "lent” him the sums described in the court judgments as attorney fees. The money was to finance other aspects of the personal injury cases, Grimes contended, with an accounting to come at the end of all litigation. He insisted that the procedure merely was a way of temporarily deferring tax liability. A United States District Court jury in the Eastern District of Michigan found Grimes guilty in September, 1978, of violating 26 USC 7201:
"Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.”
The federal district judge imposed fines totaling $10,000 and costs totaling $4,501.45 on the two counts. Grimes also was ordered imprisoned for one year, but that sentence was reduced to 30 days in jail, and he was placed on probation for one year. The Sixth Circuit Court of Appeals affirmed, 601 F2d 591 (CA 6, 1979); the United States Supreme Court denied certiorari, 444 US 915 (1979).
The gist of count two was that in the course of the tax investigation Grimes reduced to writing a loan agreement supposedly made with a client in 1972, and affixed to it a 1972 date. Further, the grievance administrator charged, Grimes delivered the document to the client and counseled her to attest that she had received it in 1972. The client did so testify, but later recanted and admitted that she really had received the written agreement in 1976.
Grimes’ explanation was that the discrepancy merely reflected semantic confusion. He claimed that he only had reminded his client that the "understanding” as to the loan had been reached in 1972. Grimes denied counseling the client to say that she had received the actual document in 1972.
The three attorneys comprising the St. Clair County Hearing Panel No. 2 listened to testimony from Grimes and several character witnesses from the Flint area, including attorneys, a probate court judge, a former mayor and business persons. The panel then suspended Grimes’ license for 60 days, finding him in violation of various Michigan Court Rules and the Code of Professional Responsibility. The grievance administrator appealed to the Attorney Discipline Board, which increased the period of suspension to 120 days. This Court granted the grievance administrator’s request for leave to appeal. 412 Mich 1101 (1981).
II
Chapter 95 of the Michigan Court Rules has governed attorney disciplinary proceedings since it took effect October 1, 1978. GCR 1963, 953 sets forth the grounds for discipline, including the five which the hearing panel found applicable to Grimes:
"The following acts or omissions by an attorney, individually or in concert with another person, are misconduct and grounds for discipline, whether or not occurring in the course of an attorney-client relationship:
"(1) conduct prejudicial to the proper administration of justice;
"(2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach;
"(3) conduct that is contrary to justice, ethics, honesty, or good morals;
"(4) conduct that violates the standards or rules of professional responsibility adopted by the Court;
"(5) conduct that violates a criminal law of a state or of the United States.”
The hearing panel also found that Grimes had run afoul of certain provisions of the Code of Professional Responsibility which were adopted on October 4, 1971:
"DR 1-102. Misconduct.
"(A) A lawyer shall not:
"(1) Violate a Disciplinary Rule.
"(3) Engage in illegal conduct involving moral turpitude.
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
"(5) Engage in conduct that is prejudicial to the administration of justice.
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”
"DR 7-102. Representing a Client Within the Bounds of the Law.
"(A) In his representation of a client, a lawyer shall not:
"(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.
"(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.”
The Attorney Discipline Board not only upheld the conclusions of the hearing panel, but doubled the period of suspension to 120 days. The board derives from GCR 1963, 967.4 its authority to "affirm, amend, reverse, or nullify the order of the hearing panel in whole or in part or order other discipline”.
It is this Court, however, that has ultimate responsibility to oversee the conduct of the approximately 21,000 members of the State Bar, and to keep unsullied the reputation of the profession. When an order of the Attorney Discipline Board is appealed, therefore, "The Supreme Court may make any order it deems appropriate, including dismissing the appeal.” GCR 1963, 971.5.
In reviewing the discipline imposed in a given case, we are mindful of the sanctions meted out in similar cases, but recognize that analogies are not of great value.
"As a hypothetical proposition, we find dubious the notion that judicial or attorney misconduct cases are comparable beyond a limited and superficial extent. Cases of this type generally must stand on their own facts.” State Bar Grievance Administrator v Del Rio, 407 Mich 336, 350; 285 NW2d 277 (1979).
Our task then is to make certain that within the record of each case there is proper evidentiary support for the findings of the hearing panel and the Attorney Discipline Board. See, for example, State Bar Grievance Administrator v Estes, 390 Mich 585, 593; 212 NW2d 903 (1973), and State Bar Grievance Administrator v Silverman, 408 Mich 100, 110; 289 NW2d 683 (1980).
Neither Grimes nor the grievance administrator has challenged the conclusions of the hearing panel as adopted by the Attorney Discipline Board. Moreover, our review of the entire record convinces us that there was ample support for their findings. The grievance administrator, however, contends that the discipline imposed is not commensurate with the gravity of Grimes’ conduct. Because our decision is to disbar Grimes, it is important to focus first on the goal of disciplinary proceedings.
"Discipline for misconduct is not intended as punish ment for wrongdoing, but for the protection of the public, the courts, and the legal profession. The fact that certain misconduct has remained unchallenged when done by others or when done at other times or has not been earlier made the subject of disciplinary proceedings is not an excuse.” GCR 1963, 954.
This section makes clear that the purpose of discipline cannot be punishment, but does not preclude the effect of discipline from being punishment. It would be a rare attorney, indeed, who would not feel "punished” if precluded from practicing law. Further, the purpose of discipline — protection of the public, the courts and the legal profession — may at times best be achieved through the deterrent effect of punishment. We do not accept the assertion that "protection” and "punishment” are irreconcilable concepts and that the line between them cannot be crossed under GCR 1963, 954.
Ill
As noted earlier, the first count against Grimes in the disciplinary proceedings stemmed from his felony convictions. When an attorney is found guilty of certain crimes, the fact of the conviction itself, without more, may serve as grounds for the suspension of his license.
"If an attorney is convicted of a felony, convicted of a crime punishable by imprisonment for a term of one year or more, convicted of a crime involving moral turpitude, or sentenced after a nolo contendere plea in connection with any of the foregoing, the board may suspend the attorney’s license under rule 955 by order filed and served under subrule 967.5.” GCR 1963, 969.
It is apparent from a reading of the above that Grimes’ convictions fit within several of the categories. Further, as the grievance administrator pointed out, Grimes was convicted of willful evasion of taxes under 26 USC 7201, not of misdemeanor failure to file income tax returns under 26 USC 7203. Jurors in the criminal prosecution disbelieved Grimes’ explanations, at least to the extent that they rejected'his assertion that there had been no deliberate attempt to avoid paying taxes. Thus, cases cited by Grimes which involved 26 USC 7203 are inapposite, as is a case cited by the Attorney Discipline Board.
The felonious nature of Grimes’ convictions and the potential penalties they carried would have been sufficient grounds for suspension of his license. "Any lawyer knowingly engaging in criminally proscribed conduct can properly be charged with an awareness of the possible jeopardy in which such activity may place his professional status.” In the Matter of Rabideau, 102 Wis 2d 16, 25; 306 NW2d 1 (1981).
We emphasize, however, that the Attorney Discipline Board also left undisturbed the hearing panel’s conclusion that Grimes was guilty of "illegal conduct involving moral turpitude” and "conduct involving dishonesty, fraud, deceit, or misrepresentation.” This was a proper conclusion with ample support in the record. "[Mjoral turpitude as a ground for the discipline of an attorney involves fraud, deceit, and intentional dishonesty for purposes of personal gain.” 7 CJS, Attorney and Client, § 67, p 958.
Grimes’ counsel has suggested that his client did not stand before the jury in the tax case as would any other citizen; he implied that because Grimes is an attorney, jurors were more likely to find that his acts had been "willful”. We expressly disavow such a belief.
"Although these views may be commonly held, they cannot be the basis of a disciplinary decision. To foster respect for our legal system we must assume that the jury acted properly and treated [the attorney] as it would any other individual. We cannot ask the public to voluntarily comply with the legal system if we, as lawyers, reject its fairness and application to ourselves.” In the Matter of Stroh, 97 Wash 2d 289, 296, 297; 644 P2d 1161, 1165 (1982).
Grimes was accused in the second count of the complaint filed by the grievance administrator with what amounted to subornation of perjury. The findings of the hearing panel were:
"That in the course of his handling of the Ronald Worth personal injury claim, particularly his course of conduct in obtaining the agreement dated November 3, 1972, signed by Mrs. Donna B. Worth, wife of Ronald Worth, the respondent either knew or should have known that he was, in effect, counseling Mrs. Worth to make false or misleading statements to the Internal Revenue Service in connection with the investigation of the respondent by the United States Treasury Department with regard to his United States income tax returns.”
The panel concluded that Grimes was guilty of participating "in the creation or preservation of evidence when he knows or it is obvious that the evidence is false” and of counseling or assisting his client "in conduct that the lawyer knows to be illegal or fraudulent”.
Despite Grimes’ explanation of semantic confusion, there is adequate support in the record for these conclusions. Such breaches of attorney-client trust violate our profession’s pledge to seek truth and justice.
"[T]he legal system is virtually defenseless against the united forces of a corrupt attorney and a perjured witness. Thus, 'For an attorney at law to actively procure or knowingly countenance the commission of perjury is utterly reprehensible.’ In re Allen, 52 Cal 2d 762, 768; 344 P2d 609 (1959).” In the Matter of Stroh, 97 Wash 2d 289, 295, 296; 644 P2d 1161, 1165 (1982).
The rules of professional conduct adopted by this Court evidence a commitment to high standards and behavior beyond reproach. We cannot stress too strongly the responsibility of members of the bar to carry out their activities, both public and private, with circumspection. _
"[T]he concept of unprofessional conduct now embraces a broader scope and includes conduct outside the narrow confines of a strictly professional relationship that an attorney has with the court, with another attorney or a client.” State v Postorino, 53 Wis 2d 412, 419; 193 NW2d 1 (1972).
A lawyer is a professional "twenty-four hours a day, not eight hours, five days a week”. Id.
IV
The hearing panel, in suspending Grimes’ license for 60 days, noted that the evidence which the attorney had presented in mitigation was not sufficient to avoid discipline. The Attorney Discipline Board, in lengthening the suspension, focused on the seriousness of the offenses and the "lack of regard for the law as applied to him and for the legal system”. This Court, in discussing its authority to change a disciplinary order, has said "we invoke this power only if the disciplinary action imposed by the grievance board is inappropriate”. State Bar Grievance Administrator v Posler, 393 Mich 38, 41; 222 NW2d 511 (1974).
While we adopt the findings of the panel and board, we consider their discipline order "inappropriate” for the reasons discussed earlier and because we do not believe that Grimes’ reinstatement to good standing should be automatic. A suspension for 120 days or less results in automatic reinstatement under GCR 1963, 972.1. However, under GCR 1963, 972.2:
"An attorney whose license to practice law has been revoked or suspended for more than 120 days is not eligible for reinstatement until he has petitioned for reinstatement under rule 973 and has established by clear and convincing evidence that
"(1) he desires in good faith to be restored to the privilege of practicing law in Michigan;
"(2) the term of the suspension ordered has elapsed or 5 years have elapsed since revocation of the license;
"(3) he has not practiced or attempted to practice law contrary to the requirement of his suspension or revocation;
"(4) he has complied fully with the order of discipline;
"(5) his conduct since the order of discipline has been exemplary and above reproach;
"(6) he has a proper understanding of and attitude toward the standards that are imposed on members of the bar and will conduct himself in conformity with those standards;
"(7) he can safely be recommended to the public, the courts, and the legal profession as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and as an officer of the court;
"(8) for a suspension of 3 years or more, he has been recertified by the Board of Law Examiners; and
"(9) he has reimbursed or has agreed to reimburse the Client Security Fund any money paid from the fund as a result of his conduct. Failure to fully reimburse as agreed is ground for revocation of a reinstatement.”
The Attorney Discipline Board addréssed Grimes’ professional competence in its opinion:
"A respondent’s competence or lack thereof is very often a factor in determining whether to require reinstatement proceedings by imposing a suspension of 121 days as opposed to 120 days; because neither the charges nor the record demonstrate a need for re-appraisal of respondent’s abilities or fitness to handle legal matters, reinstatement proceedings will not be required.”
We agree with the grievance administrator that Grimes’ competence should not have been a factor in deciding whether to impose discipline sufficient to require reinstatement proceedings. There was no allegation that Grimes lacked professional skill; further, technical proficiency should not serve to ameliorate the kind of misconduct involved in this case.
Counsel for Grimes also has stressed his client’s previously unblemished record after more than 30 years of practicing law in this state. Several of those years were spent in public employment, as an assistant prosecuting attorney and as an associate municipal judge. However, neither Grimes’ legal background nor his community accomplishments obliterate our responsibility to impose the discipline his violations warrant. In a case involving the reinstatement petition of a former probate judge, we noted that: "Regardless of our feelings of sympathy for a disbarred attorney, our paramount concern must always be to safeguard the public.” In the Matter of Trombly, 398 Mich 377, 382; 247 NW2d 873 (1976).
As we explained earlier, we believe that our order in this case fulfills the protective purpose of attorney disciplinary proceedings. Therefore, the order of the Attorney Discipline Board is affirmed, except that the discipline imposed is changed from suspension for 120 days to disbarment.
Williams, Coleman, Ryan, and Blair Moody, Jr., JJ., concurred with Fitzgerald, C.J.
Kavanagh and Levin, JJ. I would impose the penalty established by the Attorney Discipline Board.
Transcript of proceedings before the St. Clair County Hearing Panel No. 2 of the Attorney Discipline Board, in the matter of Robert A. Grimes, File No. 35939-A, Vol. I, passim.
Id.
In his appearance before the hearing panel, Grimes admitted that Donna Worth had not received the written loan agreement from him in 1972, but rather in 1974. However, she had testified at his criminal tax trial that she received the document from Grimes in 1976.
The opinion and order of the Attorney Discipline Board increasing Grimes’ suspension from 60 to 120 days was filed on January 9, 1981. David Baker Lewis, secretary of the seven-member board, dissented.
Schwartz v Freed, unpublished opinion of the Attorney Discipline Board, decided November 18, 1980 (File No. 36487-A).
Applicants for admission to the State Bar, once certified as qualified by the Board of Law Examiners, must vow to conduct themselves in an exemplary manner, both professionally and personally:
"I Do Solemnly Swear (or Affirm):
"I will support the Constitution of the United States and the Constitution of the State of Michigan;
"I will maintain the respect due to Courts of Justice and judicial officers;
"I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land;
"I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;
"I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compensation in connection with his business except from him or with his knowledge and approval;
"I will abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;
"I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any man’s cause for lucre or malice;
"I will in all other respects conduct myself personally and professionally in conformity with the high standards of conduct imposed on members of the bar as conditions for the privilege to practice law in this State.” | [
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T. M. Burns, J.
The plaintiff brought this action under the Wrongful Death Act, MCLA § 600.2922 (Stat Ann 1969 Cum Supp § 27A.2922). The plaintiff, father of the deceased 16-year-old boy, as administrator seeks to recover for deprivation of mutual society, companionship and support of the deceased; and also in his own right for the ambulance, funeral, and burial expenses incurred by him as the result of his son’s death. The total damages claimed by the plaintiff for all items is $10,000.
The plaintiff appeals the trial court’s granting of defendants’ motion for summary judgment under GCR 1963, 117.
When defendant makes such a motion, he concedes as true for the purposes of his motion all that the plaintiff may rightfully claim from the evidence. Murphy v. Roux (1958), 352 Mich 97, 102. The facts as stated by the plaintiff in his memorandum in opposition to the motion for summary judgment, which the trial court must assume to be true in its consideration of the motion, were:
“Leslie Kreiner had been a guest of his sister who rented a space at defendants’ trailer park in 1966. The defendants possessed a large trailer park with a lake and swimming facilities enclosed. On June 30,1966, Leslie Kreiner went to the lake for a swim; he swam out to a raft which was uot anchored and was in the company of two other residents of the trailer park. The raft drifted out into deep water and the other two parties, the Sterns, jumped off the raft. The deceased had appeared a little frightened about swimming back. After the Sterns had departed from the raft, they heard a splash and upon looking around, they saw the Kreiner boy in the water. He was 16 years old at the time. After swimming for a ways.he appeared to be in trouble and both Mr. and Mrs. Stern went back to assist him. Mr. Stern had almost reached the shore prior to the time that the drowning began.
“They both struggled to assist the boy for a considerable period of time (Mrs. Stern testified from 20-45 minutes), but eventually the boy drowned. The Sterns testified that no one from the shore rendered any assistance to the boy during this period and that there were neither lifeguards nor lifesaving equipment on the shore. Neither Mr. nor Mrs. Stern had any lifesaving training. After the struggle was over, another resident jumped in the lake from the shore and attempted to assist. Shortly thereafter the fire department brought out a motor launch but it was too late. Kreiner has brought suit against the defendants based on their failure to supply lifeguards, lifesaving equipment and for failure to anchor the raft.”
Given these facts, the trial court said in granting the defendants’ motion for summary judgment:
“I have read the briefs and the pleadings and, of course, I have read the pertinent part of the depositions.
“We have here a trailer park. And on this trailer park, there is a place where the occupants of the trailer park may go swimming.
“The decedent was a teen-aged person who knew how to swim; that is evident. In fact, it is evident that he swam out to the raft in this pool, which in a sense is a natural pool. After being there for a while and in fact having clambered on the raft [sic]. And it is true, factually, that the raft was untethered. The group started to swim back and the decedent — one of those things that is so difficult to understand, whether by cramp or otherwise, no one will ever know — he couldn’t make it back. There was even an attempt at assistance on the part of the ones swimming with him. He drowned.
“And, as I said, this teen-aged person was a guest of a registered trailer park occupant.
“Now, I know of no statute, I know of no law that gives rise to a duty on the part of the trailer park owner to supply lifeguards and to have tethered the raft or to have put up a high fence. In fact, the high fence idea would be almost ridiculous with this teen-aged person.
“I fail to see any liability here as a matter of law. And I have looked for it conscientiously, having in mind that this is the defendants’ motion. I am also reluctant because human life was lost. But every incident in human life, no matter how sad or how distressing, does not give rise to a cause of action.
“Therefore, once again, your motion is granted.”
The issue before this Court is whether the trial judge erred in not submitting the question of defendants’ alleged negligence in not having lifeguards or lifesaving equipment such as flotation rings on hand and in not having the raft secured so that it could not be untied, to a jury for determination.
The defendants assert that Glesner v. Jones (1962), 368 Mich 510, is almost identical to the case at bar and “flies in the face of the cases cited by plaintiff” and that “the case of Glesner, supra, clearly establishes that the cases cited by plaintiff are not the law in the State of Michigan.” The defendants further assert that they “were not oper ating a bathing resort or swimming pool under any stretch of the imagination.”
Having examined the Glesner case with great care, we find that it does not support defendants’ assertion, nor does it “fly in the face” of Schweitzer v. Gilmore (CA 2, 1958), 251 F2d 171, or the other cases relied on by the plaintiff. In Glesner, an action was brought on the basis of a resort operator’s alleged negligence in failure to post signs warning that the water around his dock was not deep enough for diving. The plaintiff in Glesner stated at trial, however, that even if such signs had been posted, he would have made his dive as he knew how deep the water was and had decided that he was a sufficiently experienced diver to clear the bottom.
As to defendants’ assertion that they are not operating a bathing resort or swimming pool by any “stretch of the imagination”, we find it impossible to believe the location they chose for their trailer park just happened to have a small lake completely enclosed upon it. We find that any attempt to distinguish the defendants’ lake resort trailer park from a hotel or other similar public resort in this regard would verge on ridiculous. It seems quite obvious that the private lake on defendants’ property was its primary attraction rather than some mere coincidental feature as defendants would have us believe.
The defendants are not and should not be considered to be insurers against all possible injury as the keepers of a place of public resort. They had a duty, however, to see to it that such place was reasonably safe. Gray v. Briggs (1932), 259 Mich 440; Mikulski v. Morgan (1934), 268 Mich 314. See Marietta v. Cliffs Ridge, Inc. (1969), 20 Mich App 449.
The obligation owed to the plaintiff’s decedent was the same obligation owed to all the persons who were actual tenants, at least, as regards the use of the swimming facilities which defendants offered for their use.
The plaintiff’s decedent as the social guest of a tenant in defendants’ trailer park was an invitee to whom defendants owed the obligation of reasonable care. See also Blakeley v. White Star Line (1908), 154 Mich 635; Torma v. Montgomery Ward & Company (1953), 336 Mich 468; Kroll v. Katz (1965), 374 Mich 364, 371; Chamberlain v. Haanpaa (1965), 1 Mich App 303; Genesee Merchants Bank & Trust Company v. Payne (1967), 6 Mich App 204.
Since the plaintiff’s decedent was an invitee, defendants, as the operators of the resort, were under an obligation to use reasonable care to protect him from harm. Gray v. Briggs, supra. See Bartley v. Chiders (Ky, 1968) 433 SW2d 130, 134; McKeever v. Phoenix Jewish Comm. Center (1962), 92 Ariz 121, (374 P2d 875; l ALR3d 957); Tucker v. Dixon (1960), 144 Colo 79 (355 P2d 79); Perkins v. Byrnes (1954), 364 Mo 849 (269 SW2d 52, 48 ALR2d 197); Rovengo v. San Jose Knights of Columbus Hall Ass’n, et. al. (1930), 108 Cal App 591 (291 P 848).
"Whether this obligation has been fulfilled is a question for a jury, not for the trial judge. Keating v. Jones Development of Missouri, Inc. (CA 5, 1969), 398 F2d 1011; Schweitzer, supra. For as the court said in Keating, supra, at p 1015 :
“Negligence is a seldom enclave for trial judge finality. Negligence is a composite of the experiences of the average man and is thus usually confined to jury evaluation. Swimming pool accidents provide no exception. Judges can claim no special competence to pass upon the safeguards appropriate to swimming pools.”
Yet, we need not go outside this jurisdiction for support of our finding that the trial court erred. In Miller v. Miller (1964), 373 Mich. 519, our own Supreme Court (in part quoting from Justice Cooley’s opinion in Detroit & Milwaukee Railroad Co. v. Van Steinburg (1868), 17 Mich 99, 118, 119) said:
“ ‘Negligence, as I understand it, consists in a want of that reasonable care which would he exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable danger of injury. The injury [sic: inquiry (?)] is, therefore, one which must take into consideration all these circumstances, and it must measure the prudence of the party’s conduct by a standard of behavior likely to have been adopted by other persons of common prudence.’
“Unless a judge properly can say that all reasonable men would agree from the undisputed evidentiary facts that there was or was not negligence the issue must be submitted for jury determination (Grand Trunk Railroad Co. v. Ives [1892], 144 US 408, 417 [12 S Ct 679; 36 L Ed 485]), and judgment under the provisions of GCR 1963, 117.2(3) must be denied. It should have been denied in this case.” Miller v. Miller, 373 Mich 519, 525.
Certainly reasonable men might have concluded after a careful examination of all the facts that defendants were negligent in failing to maintain their facilities so that plaintiff’s decedent, who was struggling in the water for between 20 and 45 minutes, might have been saved from drowning, and that their negligence was therefore the proximate cause of the plaintiff’s loss.
Upon remand in consideration of all the circumstances and the measure of prudence expected of such persons as defendants, we refer to Dean Prosser’s book on Torts (3rd ed, Ch 7, § 41) wherein he says on page 246:
“When a child is drowned in a swimming pool, no one can say with certainty that a lifeguard would have saved him, but experience of the community-permits the conclusion that the absence of a lifeguard played a significant part in the drowning.”
We do not by remanding find that defendants’ negligence, if any, was the proximate cause of plaintiff’s decedent’s demise. The jury, after a full consideration of all relevant evidence may, as the jury in Schweitzer, supra, did, find that defendants’ failure to provide lifesaving equipment or lifeguard, or the manner of mooring the raft was not causative negligence. However, upon remand the trial judge should submit the question to a jury under a charge similar to the one upheld in Gluckauf v. Pine Lake Beach Club, Inc. (1963), 78 NJ Super 8 (187 A2d 357). We agree with the Gluckauf court’s holding that the proprietors, such as defendants, of bathing resorts, “ * * * in fulfilment of that general duty of reasonable care, have the specific duty of having suitable persons in attendance and necessary appliances on hand so that bathers, who might get into danger because of deep water, may be properly supervised and effectively rescued, if the need arises.” Gluckauf, supra, pp 26, 27.
Having found that the trial judge erred in granting defendants’ motion for summary judgment on the question of defendants’ duty of care, we remand for trial on that question and the corollary proposition of plaintiff’s decedent’s possible contributory negligence.
Reversed and remanded. Costs to plaintiff.
All concurred. | [
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Danhoe, J.
Following a nonjury trial, defendant was convicted of robbery unarmed, CL 1948, § 750.530 (Stat Ann 1954 Rev § 28.798). On appeal defendant makes numerous allegations of error, the principal one being that he did not specifically waive his right to counsel prior to and during custodial interrogation.
The prosecution accepted the statement of facts presented in the defendant’s brief as follows:
“On July 9,1967, at 8:15 a.m., defendant, who had been arrested the previous day for allegedly snatching a purse from Gladys Pritchard was allegedly informed of his constitutional rights by Detective James Harkness.
“ ‘Q. What did you say to him?
“ ‘A. That he had a right to remain silent; that anything he said may be used against him; and he didn’t have to answer any questions or make any statement; any statement he may make may be used against him in a court of law. I advised him that he had a right to an attorney present before he answered any questions or made any statement, and the attorney could be with him while he made any statement or answered any questions. I advised him that if he could not afford an attorney one would be appointed by the court prior to any questioning. I advised him that he can at any time exercise his rights and not make any statement or answer any questions.
“ ‘Q. Did he sign any form at any time?
“ ‘A. He did. He indicated that he did not wish to make any statement at that time, and he signed it * * * ’ (T. 62, 63.)
“At 3:45 p.m. on July 9, 1967, after defendant allegedly told the doorman at the precinct that he wished to see Detective Harkness, the detective allegedly again advised defendant of his constitutional rights, as follows:
“ CQ. After talking to the doorman, what did you do?
“ ‘A. I again advised Larry Matthews of his constitutional rights at 3:45 p.m. I advised him of the same — do you want me to read it again?
“ ‘Q. No. Did you follow the same procedure in the same general language that you did the first time?
“‘A. I did.
“ ‘Q. At that time was he asked to sign anything?
“ ‘A. He was.
“‘Q. And did he sign?
“ ‘A. He signed his name, yes.
“ ‘Q. He signed his name on a form?
“ ‘A. He did, indicating that he understood his constitutional rights, and further agreed that he wanted to make a statement. (T. 66.)
" ‘Q. The second time did you tell him that he had a right to have his counsel there, now that he is going to make a statement; “Do you want your lawyer here?” Did you put it that way?
“‘A. I read the following—
“ ‘Q. Just answer my question, officer. Did you say to this defendant — •
“ ‘A. I said he could have an attorney present when he made a statement.
“ ‘Q. Did you do that the second time?
‘“A. I did.’ _ (T. 70.)
_ “Over the objection of defense counsel (T. 63, 67-69, 72), the court ruled that the statement was voluntary (T. 73).
“The statement allegedly made by defendant Matthews was then read into evidence (T. 73). It placed defendant at the scene of the purse snatching with the other defendant James Kent and placed the responsibility on James Kent. It conflicted with defendant Matthews’ testimony at trial at which he denied being present at all (T. 82-94).
“Defendant was found guilty of robbery unarmed and was sentenced to from 7 or 9 [sic] to 15 years in prison.
“At the time of sentencing, the following statements were made by the court:
“‘The Court: Oh, he has a terrible record. He’s seventeen years old now; and I imagine that his record goes back to 1960; and you know that must make him 10 years old; and he’s been involved in criminal activity since the age of 10; * * * ’ (Transcript of sentence, p 3.)
“ ‘Now, let me just read you some of the offenses, Mr. Bledsoe, that this boy at the age of 17 has on his record: * * * ’ (Transcript of sentence, p 4.)
“ ‘So I would not tolerate one bit the notion that this boy hasn’t got a record as an adult; and I want to say that as far as I’m concerned he’s got a long-record; he’s as hardened a criminal as I’ve ever seen; and the only thing that happened to change the situation was that he had a birthday that made him 17, and he couldn’t even control that. But that carries him right up.’ ” (Transcript of sentence, p5.)
“Defendant’s motion for new trial was denied by the trial court.”
Defendant does not deny that he was advised of the warnings required by Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602; 16 L Ed 2d 694, 10 ALR3d 974). Rather, defendant asserts that his failure to specifically waive his right to counsel after being advised of his rights bars the admission at trial of any statements made by him during his custodial interrogation. Some of the language from the Miranda case tends to support defendant’s position. For example, at p 470 (86 S Ct at p 1626; 16 L Ed 2d at p 721, 10 ALR3d at p 1009 the Miranda opinion states,
“No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.”
At p 475 (86 S Ct at p 1628; 16 L Ed 2d at p 724, 10 ALR3d at p 1012) the Miranda court wrote,
“An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warn ings are given or simply from the fact that a confession was in fact eventually obtained.”
The people deny that Miranda or other controlling authority requires a defendant’s specific waiver of in-custody constitutional rights, in haec verba, in order for a confession or statement to he admissible at trial. Instead, the people urge this Court to adopt a rule consistent with previous decisions of the Michigan Supreme Court stating that a valid waiver of the privilege against self-incrimination and the right to counsel at the accusatory stage of proceedings does not require a specific statement that the accused waives his specific constitutional rights.
Apparently, this issue is now before an appellate court of this State for the first time. Examination of numerous opinions from other jurisdictions where the courts have considered this question demonstrates that there is a split of authority in this country as to what constitutes waiver of the privilege against self-incrimination and the right to counsel since the Miranda decision.
Defendant has relied primarily on United States v. Low (WD Pa, 1966), 257 F Supp 606; Evans v. United States (CA 8, 1967), 375 F2d 355; Sullins v. United States (CA 10, 1968), 389 F2d 985; People v. Anonymous (1968), 58 Misc 2d 13 (294 NYS2d 248); United States v. Bird (D Mont, 1968), 293 F Supp 1265; and United States v. Nielsen (CA 7, 1968), 392 F2d 849.
After careful review of these cases, we think all are distinguishable except Sullins v. United States and People v. Anonymous, and we reject the per se definition of waiver recognized in those two. Additionally, we note that the Sullins holding, that Miranda requires the accused to specifically decline consultation with a lawyer to constitute a valid waiver, was modified less than six months later by Bond v. United States (CA 10, 1968), 397 F2d 162. The Bond court said, p 165:
“We do not read Miranda to hold that ‘an express declination of the right to counsel is an absolute from which, and only from which, a valid waiver can flow.’ ” (Citing the concurring and dissenting opinion in Sulims.)
The position adopted by the people and followed by the trial court, that there can be a waiver without the use of specific or magic words, is supported by decisions from a number of jurisdictions. In People v. Johnson (1969), 70 Cal 2d 541 (75 Cal Rptr 401, 450 P2d 865) (reversing on other grounds), cert denied, 395 US 969 (89 S Ct 2120; 23 L Ed 2d 758), the court said, p 558 (75 Cal Rptr at p 412, 450 P2d at p 876):
“Once the defendant has been informed of his rights and indicates that he understands those rights, it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows his rights and chooses not to exercise them.”
That rule was followed in People v. Jarvis (1969), 276 Cal App 2d 534 (80 Cal Rptr 832).
There was a similar holding in Hill v. State (Fla, 1969), 223 So 2d 548, where the court said, p 549:
“Therefore, Miranda does not require any affirmative oral or written waiver of counsel by the accused, although if ‘he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there could be no questioning.’ ”
In State v. Flores (1969), 9 Ariz App 502 (454 P2d 172), the court said, p 507 (454 P2d at p 177):
“There was evidence the Miranda warnings had been given three times, and a rundown of the wording of the confession as 'well as the rights cards indicated defendant had an inarticulate but basic understanding of the wording.”
Of like import is the decision in State v. Pace (1969), 80 NM 364 (456 P2d 197).
We think the better rule, that the waiver issue is a matter of proof, is well-stated in United States v. Hayes (CA 4, 1967), 385 F2d 375, 377, 378:
“Thus, we cannot accept appellant’s suggestion that because he did not make a statement — written or oral — that he fully understood and voluntarily waived his rights after admittedly receiving the appropriate warnings, his subsequent answers were automatically rendered inadmissible. Of course, the attendant facts must show clearly and convincingly that he did relinquish his constitutional rights knowingly, intelligently and voluntarily, but a statement by the defendant to that effect is not an essential link in the chain of proof. On the other hand, mere silence of the accused followed by grudging responses to leading questions will be entitled to very little probative value in light of the inherently coercive atmosphere of in-custody interrogation. The government will have to prove more.”
The court then noted a number of factors justifying a conclusion that defendant’s statements wore knowingly and intelligently made. Among the facts which the court considered significant were the lack of physical or psychological coercion, defendant’s alert and healthy appearance, defendant’s use of a telephone after being given Miranda warnings, and defendant’s request for an attorney after brief questioning.
The • aforementioned decisions, while not binding upon this Court, appear to provide the same guide lines as followed by the Michigan Supreme Court with respect to 'waiver of counsel in guilty plea examinations. We think these guidelines should also be followed by Michigan courts in the custodial interrogation situation.
In People v. Hobdy (1968), 380 Mich 686, the Michigan Supreme Court overruled this Court which had held that where the defendant did not expressly waive his right to counsel the defendant’s plea of guilty must be set aside and the ease remanded for trial. Justice O’Hara, writing for the majority, said, pp 689, 690:
“Since the Court of Appeals based its decision squarely on the issue of express waiver, we address ourselves only to that issue.
* # *
“It is not contended by defendant that the circuit judge did not advise him of his right to retained counsel or to counsel at public expense if he were indigent. His only complaint is that he did not expressly waive the right. Outside of the nonprecedential Palmer, we find no reference to an express waiver of counsel in any Michigan or Federal ease cited or discussed.
“The order of the Court of Appeals vacating the plea of guilty is reversed.”
Again in People v. Dunn (1968), 380 Mich 693, Justice O’Hara writing for the majority said, pp 697-699:
“The first question raised is whether appellee waived his right to counsel. On his first appearance before the court he was clearly advised of this right. He requested that he be brought before the court again. His purpose in so requesting was determined by question and answer. There was no necessity that the court again inform him of his right to appointed counsel. When he stated to the court that he desired to plead guilty, after being informed of his right to appointed counsel, he waived that right intelligently and competently. There is no requirement that this waiver be in express form. See People v. Hobdy (1968), 380 Mich 686.
“The nature of the examination of the accused required by the court rule before the acceptance of a plea of guilty need not be in any stereotyped form.
* * *
“But accepting arguendo that the precedential language set forth in the brief of appellee is applicable by analogy, we find they hold in principle as follows: Waiver of counsel is impermissible from a silent record. We agree. A right cannot be waived where there is no showing the accused was aware of the right.
“The right when explained thereafter must be understandingly, competently, and intelligently waived.
* # *
“We here hold that when a trial judge says, as did Judge Simpson here, ‘You understand * * * that you are entitled to an attorney of your own choice and if you are unable to furnish one that the State will furnish you one,’ the right to assistance of counsel has been explained, and an offer of counsel made.
“We further hold that after such an explanation, or one of like substance, and the court asks, as here, a question that fairly imports ‘What do you want to do?’ and the accused replies, in substance, T plead guilty,’ or T desire to plead guilty,’ he has within all constitutional rule, statute, and case law requirement, competently, intelligently, and understandingly waived his right to counsel.”
Much of the Miranda opinion and much of the quotation from it in defendant’s brief relates to the nature and existence of the substantive constitu tional right to counsel, and not to its waiver.- Read in context, the true import of the sentence, p 470 (86 S Ct at p 1628; 16 L Ed 2d at p 721; 10 ALR3d at p 1009), “No effective waiver of the right to counsel during interrogation can he recognized unless specifically made after the warnings we here delineate have been given,” is a definition of the time in the custodial process when the State may initially claim that waiver has occurred. Clearly, that time is after the warnings have been given. The court was saying that the issue of waiver may not even be raised by the State unless and until the prerequisite warnings have been given. We do not construe the quoted sentence as defining the way in which a valid waiver may occur. That matter is discussed in a later portion of the opinion beginning at p 473 (86 S Ct at p 1627; 16 L Ed 2d at p 723; 10 ALR3d at p 1011) with the language “Once-warnings have been given, the subsequent procedure is clear.”
To construe the Miranda opinion as requiring a specific statement that the accused waives his specific constitutional rights would be inconsistent with the language from Miranda at p 476 (86 S Ct at p 1629; 16 L Ed 2d at pp 724, 725; 10 ALR3d at p 1012):
“Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege. Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.”
In the instant case the record is barren of any evidence showing that defendant was threatened, tricked, or cajoled; nor was there lengthy interrogation or incommunicado incarceration. Rather, defendant himself initiated the interview with Detective Harkness which resulted in the statement placing defendant at the scene of the crime. Defendant, several hours after receiving the Miranda warnings and signing a form card, told the precinct “doorman” that he wanted to see Detective Harkness and defendant was again given the Miranda warnings and signed a second form card before making his statement. This record persuades us that defendant did in fact make an intelligent, knowing and voluntary waiver and that the incriminating statement was properly admitted.
Defendant’s remaining questions can be answered more briefly. He asserts that his statement is inadmissible for the reason that it was obtained during a prolonged detention prior to arraignment. Defendant was arrested on July 8, 1967 between 5:15 p.m. and 5:30 p.m. He was arraigned on July 10, 1967. He gave the incriminating statement on July 9, 1967 at 3:45 p.m.
In People v. Farmer (1968), 380 Mich 198, 205 the Court said:
“While this Court has repeatedly condemned the practice of undue detention, the test as to whether such a detention renders a confession involuntary is not the reasonableness of the length of time a person is detained but whether the detention has been used to coerce a confession.”
It is clear from the record in this case that defendant’s detention was not used to coerce the state ment from him and, therefore, it was admissible at trial.
He also alleges that testimony was erroneously introduced that defendant “did not wish to make any statement.” Defendant made no objection at the time. On the authority of People v. Webb (1968), 13 Mich App 625, we find no violation of defendant’s rights and, additionally, the issue was not preserved for review.
Defendant’s attack on the identification showups on the basis that defendant had no attorney present has not been preserved for review because there was no objection to the in-court identifications. People v. Childers (1969), 20 Mich App 639.
Defendant also argues that the court erroneously considered his juvenile record in determining the sentence. This argument was considered in People v. Coleman (1969), 19 Mich App 250, and this Court concluded, p 256:
“The post-conviction examination of juvenile records in order to impose a fair and just sentence is not a use of such records as ‘evidence.’ ”
Other questions posed by defendant have been considered but do not require discussion.
Affirmed.
All concurred. | [
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' R. B. Burns, P. J.
Defendant was convicted by a jury of assault with intent to murder. MOLA § 750.83, (Stat Ann 1962 Rev §28.278). Defendant appeals, claiming that the trial court did not have jurisdiction to hear the case as defendant was not brought to trial within 180 days after being-imprisoned in a state penal institution, that the prosecution introduced evidence of other offenses nof connected to the crime charged, and that evidence was admitted that was obtained as a result of an illegal search and seizure.
MCLA § 780.131 (Stat Ann 1969 Cum Supp §.28.969[1]) -provides in part:
“Whenever the department of corrections shall recfeive notice there is pending in this state any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this state a criminal offense for which a prison sentence might he imposed upon conviction, such inmate shall he brought to trial within' 18Ó days after the department of corrections shall’cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice- of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint.”
MOLA § 780.133 (Stat Ann ■ 1969 Cum Supp § 28.969[3]) states:
“In the event that, within the time limitation set forth in § 1 of this act, action is not commenced on the matter for which request for disposition- -vyas made, no court of this state shall any longer-have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court 'shall enter an order dismissing the same with prejudice.”
In People v. Hendershot (1959), 357 Mich 300, 303, 304 the Court stated: .
“Clearly, if no action is taken and no trial occurs within 180 days, the statute applies. If some preliminary step or action is taken, followed by inexcusable delay beyond the 180-day period and an evident intent not to bring the case to trial promptly,- the statute opens the door to a finding by -the court that good-faith action was not commenced as contemplated by § 3, thus requiring dismissal. The statute does not require the action to be commenced so early within the 180-day period as to insure trial or completion of trial within that period. If, as here, apparent good-faith action is taken well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the -court’s retention of jurisdiction is met.” '
A review of the record in the instant case shows the following facts.
Defendant was arrested on the charge of assault with the intent to commit murder on January 17, 1966, and was arraigned on January 18, 1966.
January 20, 1966, defendant was arraigned on the charge of robbery armed to which he pled guilty April 19,1966, and was sentenced to the state prison for a term of 5 to 10 years.
January 21, 1966, defendant was arraigned on a charge of murder, first degree.
A preliminary examination was held in the instant case on February 8, 1966, and a pretrial conference was set for March 31, 1966. The pretrial conference was adjourned, but was held on April 14,1966.
The pretrial record shows that with counsel present the presiding judge wrote the following comment: “Murder first case pending — -this case to be adj. until after — File No. A 128508.”
The defendant was acquitted February 6, 1967, on the charge of murder first degree, the file No. 128508.
The trial in the instant case was started March 28, 1967.
Good-faith action was taken within the 180-day period and the case moved toward trial when it was adjourned for the practical reason of disposing of the charge of murder first degree. No objection by defendant appears on the record. We hold the trial court did not lose jurisdiction.
Defendant contends the court erred by allowing the prosecution to submit testimony that the defendant was seen approximately two hours before the alleged offense in possession of a revolver similar to the one found at the scene of the crime. The prosecution did not ask, nor was testimony given, as to thé location where the witness saw the defendant, or that the defendant did not have a permit for the gun. The court did not err by admitting the testimony.
Lastly, defendant claims that the court erred by permitting the prosecution to introduce a bloodstained coat found in a bedroom closet at the residence where the defendant was arrested. Defendant was arrested in the bathroom and contends that the search beyond the bathroom was in violation of his constitutional rights. Defendant was arrested at 2408 Clairmount and the record does not show who had control or possession of the premises. However, defendant’s application for the appointment of counsel for appellate review shows his last address to be the same as his mother’s address, 2952 Ewald Circle. This Court, in People v. Hale (1967), 7 Mich App 127, held the immunity to illegal searches and seizures was a personal privilege available only to the person in possesssion or with the right of possession of the premises searched.
Affirmed.
Holbrook, J., concurred.
Y. J. Brennan, J., did not participate. | [
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T. M. Burns, J.
This civil action arises out of an automobile accident which occurred on a snowy night in February, 1963, at the intersection of Stanford and Eleven Mile Road in Oakland County.
Plaintiff testified that he was going east on Eleven Mile Road, at a speed that ranged from 15 to 25 miles per hour, behind an old black Bnick. The plaintiff testified that this Bnick was weaving from lane to lane in a rather erratic and unsafe manner. The plaintiff further testified that as he approached the Stanford intersection, the Bnick was in the lane nearest the curb and seemed to slow down.
The plaintiff testified that he then decided to pass the Bnick, but as he was about to, the Bnick speeded up and came over into the center lane. The Bnick and the plaintiff then proceeded the remaining half block to the intersection where according to the plaintiff’s testimony the Bnick, without giving any indication, stopped suddenly.
The plaintiff was somehow able to stop his car short of a collision with the Bnick; but almost immediately after his sudden stop, his car was hit from the rear by one driven by the defendant.
The defendant, like the plaintiff, was traveling-east on Eleven Mile. The defendant testified that although he was traveling at around 20 miles per hour and about 2-1/2 car lengths behind plaintiff, he never saw the Bnick.
Since he was on a through street and as there was no traffic control device at the intersection, the defendant was surprised when the plaintiff suddenly stopped. The defendant testified that although his car was in good working order, he was unable to stop in time to avoid plaintiff’s car.
The plaintiff says that when his car was struck, it went forward into the Bnick and that the Bnick then left the scene.
Although the passenger in his car was apparently unhurt by the collision, the plaintiff, who had sus tained injuries in a previous rear-end collision, was apparently hurt.
At the conclusion of the trial below, a verdict of no cause of action was returned by the jury on January 30, 1968. An order for judgment on the verdict was filed on February 9, 1968. Plaintiff then filed a motion for new trial, which was denied by an order entered on June 6, 1968.
On appeal, the plaintiff asserts that the jury verdict of no cause of action is against the great and overwhelming weight of the evidence. He further asserts that the trial court committed reversible error in allowing certain photographs to be admitted into evidence; in sustaining an objection to the question “How can those degenerative changes come about?”, even though there was no evidence of degeneration,- in allowing cross-examination of plaintiff’s witness, Dr. Park, as to his qualifications, competence, and credibility; and in allowing cross-examination of the plaintiff as to his record of convictions for prior driving violations.
Was the jury verdict of no cause for action against the great and overwhelming weight of the evidence?
¥e find that the jury verdict of no cause was not against the weight of the evidence. Although plaintiff had the statutory presumptions which arose from MOLA § 257.402 (Stat Ann 1968 Rev § 9.2102) and MOLA § 257.627 (Stat Ann 1968 Rev § 9.2327) in his favor, defendant, in his plea of “sudden emergency” pled an exception to the general rule established thereby.
The plaintiff’s only explanation for stopping suddenly in front of the defendant relies on “the old Buick”. The defendant asserts that he never saw such a car.
The situation in this regard is much like the one which faced the court in Humphrey v. Swan (1968), 14 Mich App 683, 685, 686:
“If the jury chose to believe Swan’s testimony in preference to that of Tasco and Humphrey, it could have found that the Tasco automobile did start up when the light turned green and stopped suddenly without any reason for a sudden stop, thereby confronting Swan with a sudden emergency. If the jury so found it would have been justified in concluding both that Tasco was contributorily negligent and that Swan was not causally negligent. See McKinney v. Anderson (1964), 373 Mich 414, where the Michigan Supreme Court held that since the jury in that case had found the collision occurred in the midst of a sudden emergency not of the defendant’s making neither the rear-end collision statute (MCLA § 257.402 [Stat Ann 1960 Rev § 9.2102]) nor the assured-clear-distance-ahead statute (MCLA § 257.627 [Stat Ann 1960 Rev § 9.2327]) entitled the plaintiff to a directed verdict even though defendant admitted he was going too fast to avoid colliding with the rear end of plaintiff’s vehicle. (Footnotes omitted.)
The Court in Humphrey went on to point out on p 686 that:
“[a]ppellate courts traditionally exercise a broader review of judges’ decisions than of jury verdicts.
“ ‘A jury’s verdict-view of facts is entitled to an even higher degree of appellate respect than is a judge’s verdict-view of the same facts, learned though the judge may be in law. For reasons known well to students of American history, a finding of fact by “the twelvers” is more apt to be sound than that of one man.’ Schneider v. Pomerville (1957), 348 Mich 49, 54.” (Footnotes omitted.)
Consequently, the appellate courts of this state will not substitute their judgment for that of a jury, unless tbe appellate court after a careful review of the record is convinced that there has been a miscarriage of justice. Middleton v. Smigielski (1962), 366 Mich 302.
Having reviewed the record, we do not find “* * * that the verdict is manifestly against the weight of the evidence.” Smigielski, supra, at p 306. There being no manifest injustice, that is to say no miscarriage of justice, we conclude that the trial court did not err in refusing to grant a new trial on that ground. But see Vander Laan v. Miedema (1970) 22 Mich App 170.
Did the trial court commit reversible error by admitting into evidence photographs which had not been submitted at pre-trial, but which were authenticated by the plaintiff as reasonably accurate pictures of the damage shown?
The plaintiff claims that the admittance of these photographs at trial was an unfair surprise because they were not produced at pre-trial under GOB 1963, 301(2).
The trial judge was unconvinced by the plaintiff’s complaints of unfair surprise. He said:
“The Court: I think we can move along. The court can make a ruling on this matter forthwith. I call your attention first to the fact that this case was started January 19, 1965, and pre-trialed on July 8, 1965; has been pending since that time with apparent adjournments, some stipulated to and some apparently for other reasons, and that you, Mr. Taylor, came into this case on Tuesday of this week, so your background of information in regard to this case is not too good.
“I point out further that this accident happened almost five years ago, and people’s memories fre quently fail over a period of five years, but that photographs change very little.
“It would seem to the court that a photograph taken at that time, which your client says is a fair representation, not a complete representation, but a fair representation, might have more probative value in the record and to the jury than would your client’s own memory, dulled by five years’ lapse of time.
“There is no indication in the file that there would be surprise, if you look at the pre-trial statement. The defendant back in ’65 said the exhibits were not known at that time. Since that time there has been measurable discovery had and so it seems to me that it comes as a sort of an illogical position on your part to say now at this late date that you are surprised.
“I find nothing in the record to indicate that fact and your motion to quash is denied. Mr. Willie (court officer) will you call the jury back?”
The admission of these photographs was within the discretion of the trial court, and we do not find that he abused that discretion. Eastman v. Ann Arbor R. Co. (1966), 4 Mich App 540, 545. As the trial judge noted, the plaintiff, under examination by the defense counsel, indicated that the photographs were a fair representation of the damage done to the portions shown. Although the plaintiff asserts that it is necessary for the photographer to authenticate the photos, such is not the law in Michigan. Since the plaintiff, a witness, admits that they are a fair representation of what is shown, they were properly admitted to be given whatever weight the jury thought was their due. Martin Parry Corp. v. Berner (1932), 259 Mich 621, 625; Oppenheim v. Rattner (1967), 6 Mich App 554.
Plaintiff makes the additional complaint that the jury was never properly instructed as to the weight which could be given to the photographs. However, no such instruction was requested at trial. This failure by the plaintiff to make a timely request for an instruction on this matter eliminates the question from our consideration. Obeginski v. James (1966), 4 Mich App 90.
No reversible error having been committed by the trial court in admitting the photographs in question here, we affirm his decision to allow them in.
Did the trial court commit reversible error in sustaining an objection to the question, “How can those degenerative changes come about?”, where there was no claim or testimony that plaintiff had been subjected to any degenerative process?
Although on appeal the plaintiff seeks to re-phrase this issue and alleges that the trial court refused to allow the examination of Dr. Park as to the need for a number of X-rays, the trial court did not foreclose the examination as to the reason or need for such X-rays; but only ruled that the particular question was irrelevant as there was no indication that the plaintiff had been subjected to any such “degenerative process.”
After an examination of the record, we cannot help but uphold the trial court’s ruling as to this question.
Did the trial court commit reversible error in allowing cross-examination of plaintiff’s expert, Dr. Park, as to his qualifications, credibility, and professional ability?
The plaintiff complains on appeal that the trial court allowed the defense to attack Dr. Park collaterally by examining him as to his qualifications. Yet, since the doctor testified as an expert, and since the plaintiff spent considerable time establishing his expertise, the trial court was certainly not abusing its discretion in allowing the defense to question him as to his qualifications. Andre v. Hardin (1875), 32 Mich 324; 11 MLP, Evidence, § 260, p 484.
Further, where one party’s witness, as here with Dr. Park, presents testimony which, if believed by the jury, would establish that party’s case, the burden of challenging by competent proofs the credibility or the competence of such testimony devolves on the opposite party. State Automobile Mutual Insurance Company v. Ropp (1967), 7 Mich App 698, 702, 703.
The defendant was obliged, therefore, to attempt to undercut the credibility and professional competence of Dr. Park or be bound by his affirmative statements. Here again, the latitude of the examination is in the sound discretion of the trial court.
Did the trial court commit reversible error in allowing the cross-examination of the plaintiff as to his record of convictions for prior driving violations?
Since the trial court ruled that evidence of such convictions was admissible only for the purpose of testing the credibility of the plaintiff, it was properly admitted for that purpose under GCR 1963, 607. Taylor v. Walter (1968), 15 Mich App 361; see 3 Honigman & Hawkins, Michigan Court Pules Annotated (2d ed), pp 396-408.
Having found no reversible error we affirm the verdict of no cause of action.
Affirmed. Costs to defendant.
All concurred.
See 374 Mich xy, | [
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Per, Curiam.
The defendant, James L. Stewart, was convicted upon his plea of guilty of uttering and publishing a forged instrument. MCLA § 750.249 (Stat Ann 1962 Rev § 28.446). He appeals.
Preliminary examination was waived and the defendant was bound over to the circuit court. Arraignment on the information in circuit court was originally set for July 25,1968 but defendant’s counsel did not appear. The arraignment was adjourned to August 8, 1968. Although notice of the adjourned date was sent to defendant’s counsel, he also failed to appear at this hearing; the information was read and a plea of not guilty was entered for the defendant by the trial judge.
The defendant was, of course, entitled to have counsel at his side when he was arraigned on the information. It is not claimed, however, that the defendant was in any way prejudiced by the failure of his attorney to appear. We did not discern upon our examination of the record any basis for a claim that the defendant was in fact prejudiced by the entry of a plea of not guilty in the absence of his counsel. If it appeared that the entry of the not guilty plea had disadvantaged the defendant, who ultimately pled guilty, another question would be presented (see Hamilton v. Alabama [1961], 368 US 52 [82 S Ct 157, 7 L Ed 2d 114] ; White v. Maryland [1963], 373 US 59 [83 S Ct 1050, 10 L Ed 2d 193]); in this case we find no reversible error.
The defendant has filed an affidavit stating that before he pled guilty he was promised by his attorney and the assistant prosecuting attorney who was present when he tendered his plea of guilty that other charges pending against him would be dismissed, and that in violation of that commitment the other charges were reinstated.
At the time the defendant pled guilty in the instant case to uttering and publishing, there were also pending against him two separate charges of breaking and entering and a charge of possession of burglary tools. After the defendant was sentenced in the instant case he was tried and convicted on one charge of breaking and entering and the other two charges were dismissed.
The assistant prosecuting attorney who was in court when the defendant’s guilty plea was tendered and accepted has filed an affidavit denying that he made any promise or statement to the defendant for the purpose of inducing him to plead guilty; he added that he did not promise, suggest or imply to the defendant or to his counsel that other cases would be dismissed if he pled guilty. Another assistant prosecuting attorney, who was in charge of all the cases pending against the defendant, has filed an affidavit stating that he met with the defendant on only one occasion (at the time of his “initial arraignment” on the instant charge) and that he did not discuss the disposition of any other case with the defendant or otherwise make any promise or suggestion in an effort to induce him to plead guilty. He added, however, that when defendant’s trial counsel advised him of the defendant’s intention to plead guilty, counsel inquired about the disposition of the other pending cases. The assistant prosecutor says that he then advised defendant’s counsel of the general policy of the Macomb county prosecuting attorney in that regard.
We have no way of knowing whether the defendant’s trial counsel told the defendant of the conversation concerning that general policy and, if so, whether, as the defendant alleges, defendant’s counsel promised him that the other pending charges would be dismissed if he pled guilty. If defendant’s trial counsel did in fact make false representations to the defendant concerning his conversations with the assistant prosecuting attorney, this would present an issue entirely different than a mere erroneous prediction by overly optimistic defense counsel. Cf. People v. Bartlett (1969), 17 Mich App 205, 218; see People v. Byrd (1968), 12 Mich App 186, 226, 227, per Levin, J., concurring. We see no need to consider the complex question of the effect of a misrepresentation by a defendant’s counsel on his plea of guilty except in the context of a testimonial record which would support a finding that false representations were in fact made.
As to the alleged misrepresentation by an assistant prosecuting attorney, we note that while the defendant’s affidavit does not name the assistant prosecuting attorney with whom it is alleged the defendant had discussions, he was identified with sufficient clarity to enable the people to file a responsive affidavit when he was described as the assistant prosecuting attorney who appeared in court when the defendant pled guilty. Cf. People v. Bartlett, supra, pp 216, 218; contrast People v. Scruggs (1969), 14 Mich App 47; People v. Dickerson (1969), 17 Mich App 201; People v. Kindell (1969), 17 Mich App 22.
This case is remanded to the trial court for an evidentiary hearing on the question whether the defendant was induced to plead guilty by unkept promises of his counsel or of an assistant prosecuting attorney. We do not retain jurisdiction. | [
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Ryan, J.
On November 15, 1966, Ralph Nuss was arrested on a warrant charging him with gross indecency between males. After being advised of his Miranda rights he was transported to the Washtenaw County jail where, later in the evening after once again being given Miranda warnings, he made and signed a written statement confessing to the murder of Thomas Brown and Arland Withrow.
On the following day, on the basis of his written statement to the effect that he killed Withrow on a Federal reservation in Milan, Michigan, Nuss was charged with the Withrow murder in the United States District Court. On December 7, 1966, he was charged with the Brown murder in the state court in Washtenaw County.
On January 10, 1967, after further FBI investigation disclosed that the Withrow killing did not occur upon a Federal reservation, the Federal charge was dismissed, it appearing that the Federal court was without jurisdiction in the matter.
State authorities took no action at that time with respect to the Withrow killing.
Three days later, on January 10, 1967, Nuss filed a petition in the Washtenaw Circuit Court, pursuant to MCL 780.501-780.509; MSA 28.967(1)- 28.967(9), asking the court to conduct a hearing to determine whether he was a criminal sexual psychopath. A hearing was conducted according to the provisions of the statute and on March 29, 1967, the court found the defendant to be a criminal sexual psychopath and ordered him committed to the custody of the state hospital commission for confinement in a state hospital.
"Sec. 1. Any person who is suffering from a mental disorder and is not insane or feeble-minded, which mental disorder has existed for a period of not less than 1 year and is coupled with criminal propensities to the commission of sex offenses is hereby declared to be a criminal sexual psychopathic person.
"Sec. 2. Jurisdiction of criminal sexual psychopathic persons charged with criminal offense is vested in the circuit courts of the state, the recorders court of the city of Detroit, and the superior court of the city of Grand Rapids.
"Sec. 3. When any person is charged with a criminal offense, or has been convicted of or has pleaded guilty to such offense and has been placed on probation, or has been convicted or pleaded guilty to such offense but has not yet been sentenced, and it shall appear that such person is a criminal sexual psychopathic person, then the prosecuting attorney of such county, or the attorney general, or some one on behalf of the person charged, may file with the clerk of the court in the same proceeding wherein such person stands charged with, or has been convicted of, or has pleaded guilty to such criminal offense, a statement in writing setting forth facts tending to show that such person is a criminal sexual psychopathic person.
"Sec. 4. Upon the filing of such statement by the prosecuting attorney or the attorney general the court shall, or if filed on behalf of the accused the court may, appoint 2 qualified psychiatrists to make a personal examination of such alleged criminal sexual psychopathic person who shall file with the court a report in writing of the results of their examination together with their conclusions. Said report shall be open to the inspection of the counsel for the accused, but shall not be competent evidence in any other proceeding against accused except the hearing to inquire into his alleged psychopathy. Said alleged psychopath shall be required to answer the questions propounded by such psychiatrists under penalty of contempt of court. In the event that both of such psychiatrists in such report state their conclusions to the effect that such person is a criminal sexual psychopathic person, then proceedings shall be had as provided in this act prior to a trial of such person upon the criminal offense with-which he then stands charged, or prior to sentence if he then stands convicted and has not been placed on probation, or prior to completion of probation sentence.
"Sec. 5. Upon a hearing held for that purpose the court without a jury, unless a jury is demanded prior to said hearing and within 15 days after the filing of the last of said reports, shall ascertain whether or not such person is a criminal sexual psychopathic person. Upon such hearing it shall be competent to introduce evidence of the commission by such person of any number of similar crimes together with the record of the punishment inflicted therefor. If such person is determined to be a criminal sexual psychopathic person, then the court shall commit such person to the state hospital commission to be confined in an appropriate state institution under the jurisdiction of either the state hospital commission or the department of corrections until such person shall have fully and permanently recovered from such psychopathy.
"Sec. 6. The state hospital commission shall have the right to release such person upon parole to such persons and under such conditions as his condition, in the judgment of the state hospital commission, merits.
"Sec. 7. Such criminal sexual psychopathic person shall be discharged only after he shall have fully recovered from such psychopathy. At any time, when he shall appear to have so recovered, a petition in writing setting forth the facts showing such recovery may be filed with the clerk of the court by which he was committed and such court shall proceed to determine whether or not he has fully recovered from such psychopathy. Jury trial of such issue may be had, if demanded before the trial of said issue and within 15 days after the filing of such petition. If, following such hearing, such person is found to have fully recovered from such psychopathy, then the court shall order such person to be discharged from the custody of the state hospital commission. In the event such person is found to have not fully recovered from such psychopathy, then the court shall order such person to be returned to the custody of the state hospital commission to be held under the previous commitment of such person.
"As long as such psychopath shall remain in the custody of the department of mental health of the commission he shall be examined at least once a year by 2 psychiatrists appointed by the commission who shall report in writing their findings including therein any facts tending to show appearance of recovery, to the committing court and to the commission. These reports shall thereafter be available to such committed person’s attorney for use in petitions for discharge, and also as* evidence at any hearings on such petitions if so requested by petitioner, by the prosecutor or by the court.
"Sec. 8. No person who is found in such original hearing to be a criminal sexual psychopathic person and such finding having become final, may thereafter be tried or sentenced upon the offense with which he originally stood charged, or convicted, in the committing court at the time of the filing of the original petition.
"Sec. 9. The state shall defray all expenses of such person while so confined in a state institution and may recover the amount so paid from such person.”
On March 14, 1967, the same day the defendant filed his petition for a criminal sexual psychopath hearing, he also filed a "Demand for Speedy Trial” in the pending Brown murder case. As the circuit court declared in its certified concise statement of the proceedings and facts:
"That petition formally advised the prosecution and the court of the status of the Federal charge; attached a copy of the Federal dismissal; noted that the prosecutor already had possession of confessions in both the Brown and Withrow matters; alleged that since under the criminal sexual psychopath statute appellee had to present evidence of his sexual psychopathic condition, and since he would of necessity present evidence of both homicides, he was being placed in a position of having to waive constitutional rights to be free from self-incrimination in order to make use of the statute; and concluded by demanding a speedy trial in the Withrow matter.”
Despite his demand for speedy trial, no action was taken by state authorities to prosecute Nuss until January 7, 1975, some eight years later.
The year following Nuss’ commitment as a criminal sexual psychopath, the Legislature repealed the Criminal Sexual Psychopath Act by 1968 PA 143. Under § 1 of the new legislation, persons who had been committed as criminal sexual psychopaths under the former act were continued in confinement in state institutions under the jurisdiction of the state Department of Mental Health.
Because it was unclear in the new legislation where jurisdiction lay to conduct hearings to ascertain whether persons committed as criminal sexual psychopaths had recovered, this Court issued Administrative Order 1969-4 which provided:
"It appearing upon repeal of PA 1939, No 165, that jurisdiction to hear petitions to test the recovery of persons committed as criminal sexual psychopaths un der the provisions of said act remains unresolved, that proceedings in various courts wherein relief has been sought have been dismissed with the result that a situation has continued for several months wherein the proper forum for reviewing the propriety of continued custody of persons committed under the provisions of said law remains in question, that protection of the basic rights of such persons and the uninterrupted administration of justice requires designation of a proper forum for hearing said matters until such time as the legislature shall provide clarification, now therefore * * *
"It is ordered, that until such time as there is further legislative clarification of jurisdiction of proceedings for testing recovery of persons committed under the provisions of said PA 1939, No 165, as amended, jurisdiction shall continue in accordance with the provisions of section 7 of said act * * 382 Mich xxix (1969).
The order remains in effect.
On April 9, 1973, a three-judge panel of the Third Judicial Circuit Court (Wayne County) found the commitment and release provisions of the Criminal Sexual Psychopath Act to be unconstitutional and ordered the release of Louis Smith, the appellee in the companion case of People v Smith, ante, 405 Mich 418; 275 NW2d 466 (1979), which is decided today. Smith was then being temporarily detained in Wayne County during the pendency of a civil action in which he was the named plaintiff.
Prior to issuance of the trial court opinion in Doe v Dep’t of Mental Health, state mental health authorities afforded Nuss an opportunity to be transferred to Northville State Hospital which was located in Wayne County, ostensibly to afford him the benefit of the widely anticipated ruling of unconstitutionality of the Criminal Sexual Psychopath Act by the trial court panel. The mental health authorities informed Nuss that if the Wayne Circuit Court held the Criminal Sexual Psychopath Act unconstitutional, the ruling would only apply to those criminal sexual psychopathic persons detained in Wayne County. Nonetheless, Nuss chose to remain in the Ionia State Hospital to continue his treatment.
On July 13, 1973, defendant was paroled from Ionia State Hospital by the hospital superintendent after the latter made the statutory determination that "there are reasonable grounds to believe that [Nuss] has recovered from [his] psychopathy and is not a menace to the safety of himself and others”. MCL 330.35b; MSA 14.825(2).
Approximately a year and a half later, following release of the Court of Appeals decision in People v Smith, supra, the Washtenaw County prosecutor, for the first time, charged Nuss with first-degree murder in the Withrow matter and reactivated the first-degree murder charge in the Brown matter. The two cases were consolidated for preliminary examination in the Fourteenth District Court.
. At his preliminary examination defendant moved to quash the complaints and the warrants, alleging violation of his state and Federal constitutional rights to a speedy trial and against double jeopardy and pleading the statutory bar to prosecution contained in § 8 of the Criminal Sexual Psychopath Act. The motions were denied and Nuss was bound over to the Washtenaw Circuit Court to stand trial. Identical motions were brought in the circuit court and similarly denied.
On October 6, 1975, the circuit court certified the questions at issue in these motions for interlocutory appeal to the Michigan Court of Appeals.
A divided panel of the Court of Appeals reversed the trial court’s determination. People v Nuss, 75 Mich App 346; 254 NW2d 883 (1977).
Judge Maher, writing for the majority, reasoned that the statutory bar contained in § 8 of the repealed Criminal Sexual Psychopath Act prohibited prosecution of defendant for the Brown murder, and that his due process right not to be prejudiced by an unexcusable delay between the date of the offense and the date of the trial precluded his prosecution for the Withrow murder.
We granted the prosecutor’s application for leave to appeal. 400 Mich 824 (1977).
We affirm the Court of Appeals with respect to both of these conclusions.
I. The Brown Matter
Our analysis begins with the uncontroverted fact that the circuit court made a final and binding determination that Nuss was a criminal sexual psychopathic person and committed him to the Department of Mental Health pursuant to the Criminal Sexual Psychopath Act. The principal motivating event underlying the defendant’s criminal sexual psychopath petition and the court’s order of commitment was the murder of Tom Brown, an offense with which the defendant stood charged at the time the petition was filed. The language of § 8 of the now repealed Criminal Sexual Psychopath Act provides that a "person who is found * * * to be a criminal sexual psychopathic person and such finding having become final” may not thereafter be tried for an offense with which he originally stood charged in the committing court at the time the petition requesting a criminal sexual psychopath hearing was filed. Accordingly, the state is statutorily barred from prosecuting defendant for the Brown murder unless a showing can be made that the § 8 bar to prosecution is somehow now inoperative.
We conclude that neither the repeal of the Criminal Sexual Psychopath Act in 1968 nor the Wayne Circuit Court decision addressing the constitutionality of the detention of John Doe affected the final adjudication of defendant Nuss’ psychopathy or the concomitant bar to prosecution.
The principle is elemental that all statutes are prospective in their application unless the contrary clearly appears from the context of the statute itself. Wylie v City Commission of Grand Rapids, 293 Mich 571, 585; 292 NW 668 (1940); Detroit Trust Co v Detroit, 269 Mich 81, 84; 256 NW 811 (1934). There is nothing in the language of the repealing statute, 1968 PA 143, to justify a construction of retrospective application.
The prosecutor’s argument that the Wayne Circuit Court’s judgment in the unreported case of Doe v Dep’t of Mental Health, supra, that the Criminal Sexual Psychopath Act is unconstitutional in its confinement and release provisions is binding in the case before us is without merit. That decision may have been binding upon the parties to it and arguably all other criminal sexual psychopath persons then being detained in Wayne County, but defendant Nuss was neither. He did not consent to the jurisdiction of the Wayne Circuit Court and was not a party to those proceed ings, being confined at the time in the Ionia State Hospital.
This Court has previously entertained and rejected a challenge to the constitutionality of the Criminal Sexual Psychopath Act in People v Chapman, 301 Mich 584; 4 NW2d 18 (1942).
We note further that Nuss was not released from his commitment following the Wayne County proceedings in the Doe case but was continued in confinement until, in due course and in compliance with the release provisions of the Criminal Sexual Psychopath Act, the hospital superintendent determined Nuss had so far recovered from his psychopathy that he could be paroled.
The statutory bar of § 8 which was operative at the time of Nuss’ commitment precludes subsequent criminal proceedings against a person finally found to be a criminal sexual psychopath for those offenses with which he stood charged or convicted at the time the petition requesting the criminal sexual psychopath determination was filed. Because the defendant was charged with the murder of Tom Brown at the time his petition requesting the criminal sexual psychopath determination was filed, the state is barred from trying him for the Brown murder.
II. The Withrow Matter
With respect to the first-degree murder charge in the Withrow murder, we are faced with a somewhat different situation. Initially, the defendant was charged with the Withrow murder in Federal court. After an investigation disclosed a lack of Federal jurisdiction, the charge was dropped. Three days prior to the date on which the Federal charge was dismissed, defendant filed his petition in the state court requesting a criminal sexual psychopath determination in connection with the Brown murder. Although a murder charge in the Withrow matter was pending at the time the criminal sexual psychopath petition was filed, the charge had been brought in the Federal court rather than in the state circuit court. Consequently, later criminal prosecution of the defendant for the Withrow murder was not barred by § 8 of the Criminal Sexual Psychopath Act which provides: "No person who is found in such original hearing to be a criminal sexual psychopathic person and such finding having become final, may thereafter be tried or sentenced upon the offense with which he originally stood charged, or convicted, in the committing court at the time of the filing of the original petition.” (Emphasis supplied.)
Although § 8 of the repealed Criminal Sexual Psychopath Act does not bar the prosecution of the defendant for the Withrow murder, principles of due process may require dismissal of the charge against him if there is evidence that an unjustified delay between the commission of the offense and the filing of the information substantially prejudiced his right to a fair trial. United States v Marion, 404 US 307, 324-326; 92 S Ct 455; 30 L Ed 2d 468 (1971); United States v Feinberg, 383 F2d 60 (CA 2, 1967); Woody v United States, 125 US App DC 192; 370 F2d 214 (1966); Ross v United States, 121 US App DC 233; 349 F2d 210 (1965).
In 1967, before the final criminal sexual psychopath determination was made in his case, the defendant, apparently recognizing the inapplicability of the § 8 bar to prosecution in the Withrow matter, filed a pleading in the Washtenaw Circuit Court notifying the court that the Federal charge had been dropped in the Withrow case and demanding a speedy trial in both the Withrow and the Brown cases. Despite this request and the fact that the Washtenaw County prosecutor already had possession of defendant’s confession in the Withrow murder, the prosecutor did not charge defendant with Withrow’s murder until January 17, 1975, almost eight years later, more than a year and a half after his parole from confinement as a criminal sexual psychopath. Apparently the prosecutor reasoned that as long as the defendant was detained pursuant to a commitment as a criminal sexual psychopath, there was no practical benefit to the prosecution to pursue the Withrow matter. Aside from this practical consideration the prosecutor suggests no justification for his failure to file charges against Nuss, especially in view of Nuss’ demand to be speedily tried for the Withrow killing. As discussed above, § 8 of the Criminal Sexual Psychopath Act did not bar the institution of criminal proceedings nor is there any allegation on the part of the prosecutor that there was insufficient evidence upon which to proceed. In fact, given the strength of the case which derives from the defendant’s detailed confession, the prosecutor had little to lose from the delay. In view of the foregoing, we are persuaded that the lengthy delay between the offense and the filing of the information was unjustifiable.
Against this backdrop of unjustifiable delay we review the record for a showing of prejudice to defendant by reason thereof. United States v Marion, supra, at 325; United States v Feinberg, supra, at 65.
The witnesses who testified at the preliminary examination concerning defendant’s confession admitted that they could not recall many of the circumstances surrounding the defendant’s statement, including the number of police officers who were present. In addition, Dr. Alexander Dukay, one of the psychiatrists who examined defendant and testified at defendant’s criminal sexual psychopath hearing, is now deceased. While the prosecutor argues that Dr. Dukay’s transcribed testimony would be admissible at a subsequent murder trial under MRE 804(b)(1) as former testimony, it is not at all clear that he is correct.
Even if it be assumed that Dr. Dukay’s testimony is now admissible, its probative value is minimal. Dr. Dukay testified at the Criminal Sexual Psychopath Act hearing that Nuss was reacting to an irresistible impulse, a form of insanity. But there was absolutely no development of that point and no defense motive to develop it since a finding of insanity would have precluded a determination that Nuss was a criminal sexual psychopath under the act. Consequently, the witness was not examined fully upon a matter which would now be absolutely crucial to a successful defense.
The purpose for which Dr. Dukay’s expertise was sought and his testimony received in 1967 was wholly different than would be the case today. Moreover, as experienced trial attorneys are so well aware, the probative force of the testimony of an expert being examined and cross-examined before the jury is immeasurably greater than that which is generated by the reading of an eight-year-old transcript of his testimony dealing with a distinctly different aspect of the defendant’s mental state. For all practical purposes, Dr. Dukay’s death has deprived the defendant of probably favorable testimony crucial to his defense.
There can be little question that any expert opinion testimony concerning the defendant’s 1967 mental state which is obtained and presented in 1979 is of severely diminished value. As Judge Bazelon observed in Williams v United States, 102 US App DC 51; 250 F2d 19, 23 (1957):
"Passage of time makes proof of any fact more diffi cult. When the fact at issue is as subtle as a mental state, the difficulty is immeasurably enhanced.” See, also, Dickey v Florida, 398 US 30, 40; 90 S Ct 1564; 26 L Ed 2d 26 (1970) (Brennan, J., concurring).
When the "passage of time” is eight years, during which the subject has undergone six years of treatment and has been pronounced recovered, the difficulty of proof of the earlier mental state is still greater.
Finally, and most importantly, if the defendant had been charged with the murder of Withrow within a reasonable time after the commission of the offense, he would in all likelihood have successfully invoked the provisions of the now repealed Criminal Sexual Psychopath Act and future criminal proceedings on the Withrow charge would have been barred by § 8 of the repealed act.
Record evidence suggests that the circumstances surrounding both murders were extremely similar and Nuss had already been found to be a criminal sexual psychopath in connection with the Brown murder.
As the situation now stands, defendant is denied statutory protections which otherwise would have been available to him. In so doing we conclude that the defendant was substantially prejudiced by the eight-year delay. This prejudice to defendant was the direct consequence of the prosecutor’s failure to reasonably charge defendant with the Withrow murder.
We hold that the substantial prejudice resulting from the unjustifiable delay in commencing criminal proceedings against the defendant precludes a trial on the Withrow matter.
The Court of Appeals is affirmed.
Coleman, C.J., and Kavanagh, Williams,
Levin, Fitzgerald, and Blair Moody, Jr., JJ., concurred with Ryan, J.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
FBI agents learned that Nuss made a statement to a state police official that the Withrow killing took place not on the Federal reservation but in Augusta Township of Washtenaw County.
The Washtenaw County authorities’ earlier deferral to Federal authorities was apparently a matter of policy since state authorities had jurisdiction to prosecute whether or not the killing took place on a Federal reservation. MCL 3.341; MSA 4.61.
The Criminal Sexual Psychopath Statute, as it read in Compiled Laws of 1948, provides:
John Doe v Dep’t of Mental Health, (Wayne County Docket No. HC-73-19434 AW).
In order to protect Smith from inappropriate publicity in connection with the litigation, he was identified as John Doe.
See footnote 1.
In addition to the clear expression of a legislative intent that a statute should operate retrospectively, principles of due process mandate that such retrospective statutory schemes not impair vested rights. Wylie v City Commission of Grand Rapids, 293 Mich 571; 292 NW 668 (1940); Detroit Trust Co v Detroit, 269 Mich 81; 256 NW 811 (1934).
"Any person committed by a criminal court as a criminal sexual psychopath under the provisions of Act No. 165 of the Public Acts of 1939, being sections 780.501 to 780.509 of the Compiled Laws of 1948, and confined in a state institution under the jurisdiction of the state department of mental health, may be placed on parole by the hospital superintendent with the approval of the department. No such person shall be paroled unless there are reasonable grounds to believe that the person has recovered from such psychopathy and is not a menace to the safety of himself and others. Such person may be discharged by the hospital superintendent in accordance with this act, provided that no discharge shall be entered until such criminal sexual psychopathic person has been on parole in the open community for a continuous period of at least 2 years without recurrence of the criminal sexual psychopathic behavior which led to his original commitment. Prior to any such parole, release or discharge, the superintendent of the institution to which such person is committed or held, must first give written notice by certified mail to the prosecuting attorney and chief of police of the county from where such person was committed, and the prosecuting attorney and chief of police of the county to which such person will be released.” MCL 330.35b; MSA 14.825(2).
US Const, Am XIV; Const 1963, art 1, § 17.
Section 4 of the Criminal Sexual Psychopath Act, as it read in Compiled Laws of 1948, provides:
"Sec. 4. Upon the filing of such statement by the prosecuting attorney or the attorney general the court shall, or if filed on behalf of the accused the court may, appoint 2 qualified psychiatrists to make a personal examination of such alleged criminal sexual psychopathic person who shall file with the court a report in writing of the results of their examination together with their conclusions. Said report shall be open to the inspection of the counsel for the accused, but shall not be competent evidence in any other proceeding against accused except the hearing to inquire into his alleged psychopathy. Said alleged psychopath shall be required to answer the questions propounded by such psychiatrists under penalty of contempt of court. In the event that both of such psychiatrists in such report state their conclusions to the effect that such person is a criminal sexual psychopathic person, then proceedings shall be had as provided in this act prior to a trial of such person upon the criminal offense with which he then stands charged, or prior to sentence if he then stands convicted and has not been placed on probation, or prior to completion of probation sentence.” (Emphasis added.)
It is doubtful whether repeal of the Criminal Sexual Psychopath Act would affect the legislative prohibition concerning the admissibility of such evidence. However, we do not decide the question. | [
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Fitzgerald, J.
Plaintiff was injured while re moving a mattress from the home of the defendants, plaintiff’s ex-wife and her husband. As plaintiff handed the mattress from a second-story balcony to friends below, he leaned against a railing constructed by defendant Jack Passino. The railing gave way and plaintiff fell approximately 15 feet to the ground below.
Plaintiff filed suit alleging negligence in:
"a. Using an inadequate means of attaching said railing to the side of a wood-sided house.
"b. Failing to warn plaintiff that the railing thus constructed might or would give way if weight were placed against it, although he [Jack Passino] was then and there present at the time of the said injury.
"c. Failing to construct the said railing properly.
"d. In failing to maintain his premises in a reasonably safe condition.”
The jury returned a verdict of no cause of action in a February 1976 trial. On appeal the Court of Appeals affirmed, stating in a memorandum opinion, "[ajfter a careful review of the record and briefs in this case, we find no reversible error”.
We granted leave to appeal, limited to two questions:
"(1) whether the trial court’s refusal to give, on request, Standard Jury Instruction (Civil) 2.06, was reversible error; and (2) whether the refusal to allow the depositions of the two defendants into evidence violated GCR 1963, 302.4, so as to require a new trial.” 402 Mich 881 (1978).
I
The first question, whether refusal to give SJI 2.06 on plaintiff’s request was reversible error, arises from questions asked by plaintiffs attorney of plaintiffs expert witness. The record reveals that plaintiffs expert, a general building contractor, had spoken with plaintiffs attorney and had visited the accident scené with him. Direct examination of the witness began as follows:
"Q. Mr. Hunsaker, do you remember the month of August, 1974?
"A. Yes.
"Q. And you were contacted by myself, do you recall that?
"A. Yes.
”Q. What did you do in reference to that contact?
"A. You asked me to go out and look at a railing that had broken and somebody had been hurt.
”Q. And did you do that?
"A. Yes.
”Q. Who did you go out there with?
"A. Yourself.
"Q. All right. What did you do after you got there?
"A. We stood on the ground looking up around at the railing. Because your question to me was what would possibly cause that railing to let go.
”Q. And how long were you out there?
"A. About a half hour.
”Q. What else did you do while you were out there?
"A. Observing, in the process of observing, I looked down on the ground and I seen some wood screws.
"Q, What did you do with those screws?
"A. Reached over and picked them up and looked at them.
”Q. What did you do with them thereafter?
"A. Held them in my hand while I was on the site.
”Q. And then what did you do?
"A. Later at your office I inserted them into an envelope and signed the envelope.”
At the close of the instructions to the jury, plaintiff objected to the court’s not having given requested SJI 2.06, which reads:
"It has been brought out that an attorney has talked with a witness. An attorney may properly talk with a witness for the purpose of learning what the witness knows about the case and what testimony he will give.”
Both the trial judge and defense counsel thought the instruction unnecessary:
"The Court: I don’t really have any reluctance to give 2.06 if it’s important, Mr. Sumpter [plaintiffs counsel]. It seems to me that there really wasn’t any testimony brought out that an attorney talked to a witness, unless you want to infer that the deposition represents an attorney talking to a witness. But I would think that would be rather unnecessary. But if you want 2.06 given, I can give that.
"Mr. Stroup [defense counsel]: There was no argument even that anybody was giving distorted testimony by reason of having been with an attorney or being interviewed by one.
"The Court: No, I really don’t see the necessity for it, Mr. Sumpter.”
In denying plaintiff’s motion for a new trial, the trial judge stated, in a written opinion:
"Plaintiff now relies upon Javis v Ypsilanti Board of Education, 393 Mich 689; 227 NW2d 543 (1975). This court does not believe Javis requires reversal.
"Javis requires only that applicable instructions be given and SJI 2.06, under the circumstances of this case, was inapplicable. The omission of such instruction could not have affected the jury verdict.
"This trial court cannot believe that Javis was intended to so constrict the discretion and judgment of the trial court as to make trial judges robots and automatons by requiring the recitation of [standard jury instructions] that do not fit the sense of the case. If the function of the trial judge is reduced to the role of a computer, and the trial judge must deliver instructions when the button is pressed, then much has been lost in the administration of justice.”
Thus, we are required to revisit Javis. We stated in Javis that GCR 1963, 516.6(2) makes mandatory the giving of an applicable standard jury instruction when requested. We chose a strict standard of review for whether an appellate court should find reversible error in failure to give such instruction. We rejected a harmless error standard, finding that standard not unreasonable, but:
"[O]ur responsibility is to adopt the position that we believe will best serve the state’s jurisprudence. It is our judgment at this time that the Court should put its supervisory authority behind the consistent and uniform application of the SJI * * *.” 393 Mich 689, 699.
And:
"We accordingly adopt a strict rule that we believe will provide economy in administration and fairness to the parties: Where there is an omission of, or a deviation from an applicable and accurate SJI, prejudicial error will be presumed; provided that the erroneously omitted SJI was properly requested at trial; * * 393 Mich 689, 702.
In the instant case the record shows a discussion between an attorney and an expert witness and a visit to the accident scene. Thus SJI 2.06 concerning attorney contact with a witness was clearly applicable. While no issue was made of the attor ney-witness contact in the sense of defendants’ suggesting any impropriety, we do not believe whether or not defendant suggested impropriety controls the applicability of the instruction. The standard is applicability, not necessity. While the instruction may serve a curative function when impropriety has been suggested in attorney-witness contact, clearly the instruction has an informative function as well. The comment to the instruction so indicates:
"This instruction is unnecessary unless the fact of an interview has been mentioned during the trial. The court may wish to give this instruction at the time this fact is brought out.” Michigan Standard Jury Instructions — Civil (Ann Arbor: Institute of Continuing Legal Education), p 2.06.
We do not believe Javis totally constrains the discretion of trial judges. The judge’s discretion is still required in determining whether or not the instruction is applicable and whether or not the instruction accurately states the law.
We have reconsidered the Javis rule in the factual context of this case. We reaffirm what we said in Javis:
"The SJI were compiled in an effort to uniformly present juries in civil cases with clear, concise and unbiased instructions to guide their deliberations. Secondarily, the SJI were also designed to conserve the energies of trial counsel and the trial courts by eliminating the need to draft and select proposed instructions on commonly encountered subjects for jury resolution. These enumerated benefits of the SJI are present, of course, only if the SJI are regularly employed by the trial courts.” 393 Mich 689, 697.
We have reevaluated the arguments for and against the strict rule announced in Javis and reassert:
"Whatever wasted effort that will result from the reversal of those few cases wherein a trial court erroneously deviates from the SJI will be overcome by the benefits of conserved trial court time at the instruction stage, certainty to trial counsel as to how the law will be stated to the jury, and a clear and concise instruction for the jury to work with.” 393 Mich 689, 699.
In this case, SJI 2.06 was applicable. It was accurate. The instruction was requested. Refusal to give the instruction was reversible error.
II
The second issue upon which we granted leave to appeal concerns the proper method by which deposition testimony is to be introduced into evidence at trial. In this case plaintiff called each defendant to the stand for cross-examination. After attempting to impeach each defendant by way of reading questions and answers from the deposition, plaintiff moved to admit the entire typewritten transcript of each defendant’s deposition as an exhibit. Defendant objected on the ground that the depositions contained irrelevant and prejudicial matter. Plaintiff contends the trial judge’s refusal to admit the typewritten deposition transcripts is reversible error.
While GCR 1963, 302.4 states that "any part or all of a deposition” is admissible, and GCR 1963, 302.4(2) provides that the deposition of a party may be used by an adverse party for any purpose, both provisions are silent concerning the method by which the deposition is to be admitted.
Two of our cases note that a question-by-question approach is the appropriate method by which to impeach a witness with former testimony recorded in a discovery deposition. In Ruhala v Roby, 379 Mich 102, 114; 150 NW2d 146 (1967), we stated:
"The court rule [GCR 1963, 302.5] contemplates that depositions will be read question by question, so that objections to specific questions can be made and ruled upon.”
And, in Insealator, Inc v Wallace, 357 Mich 233, 252-253; 98 NW2d 643 (1959), in response to plaintiffs allegations of error in the trial judge’s refusal to admit discovery depositions in their entirety, we said:
"The court offered to go through the depositions and make a ruling as to the admissibility of testimony therein. Insealator insisted that they should be admitted in their entirety under this rule. The court properly ruled them out on objection to the effect that they contained irrevelant and immaterial testimony. Opportunity was afforded counsel to use them to contradict or impeach. This counsel apparently did not care to do. No error exists by reason of their exclusion under these circumstances.”
Similarly, with reference to the Federal rule, which our rule parallels, the Ninth Circuit Court of Appeals stated:
"We do not mean to sanction the practice of indiscriminately offering an entire deposition or encourage any attempt to thus impose upon the court.
* * *
"[W]e believe as a general rule the better practice is for the court in the first instance to require counsel to specify the particular portions that are deemed relevant and to limit the offer accordingly.” Pursche v Atlas Scraper & Engineering Co, 300 F2d 467, 488 (CA 9, 1961).
We find no reversible error in the trial judge’s denial of plaintiffs motion to admit the typewritten deposition transcripts. The practice apparently varies from jurisdiction to jurisdiction. Many courts have established a rule that deposition transcripts are not admissible, on the theory that it is what the witness said that is evidence, not the transcript of what was said, as contrasted with written materials which are non-testimonial such as a deed or a contract. We apparently followed that rule at one time. See Chadwick v Chadwick, 52 Mich 545, 549; 18 NW 350 (1884):
"It is usually improper to let the jury take the testimony, consisting of books, papers and depositions etc., with them to the jury-room. The jury are to receive the testimony in open court. The plaintiff, however, waived the irregularity by allowing it to be done in this case without objection. It is unnecessary to discuss the case further.”
See, also, Bulen v Granger, 63 Mich 311; 29 NW 718 (1886).
The rule has evolved, in our case law, into a general proposition that admission of evidence and taking of exhibits to the jury room lies within the discretion of the trial judge, apparently without regard to the testimonial or non-testimonial nature of the items at issue.
Especially in a case such as this, where objections to admissibility were made on grounds of relevancy and prejudice is the trial judge’s discretion important. Other than some general statements about the use of deposition testimony, plaintiff has alleged no prejudice, nor has he pointed with any specificity to any material he sought to have admitted other than that read into the record.
We find no error as to the second issue. The decisions of the trial court and the Court of Appeals are reversed as to the first issue concerning refusal to give SJI 2.06.
Kavanagh, Williams, Levin, and Blair Moody, Jr., JJ., concurred with Fitzgerald, J.
Coleman, C.J.
(to affirm). Like snowflakes, no two trials are alike. In one, an applicable, accurate and requested Standard Jury Instruction may be crucial to a fair and just determination of the cause; in another, the same instruction, although it still could technically be interpreted as applicable, accurate and requested, may be unnecessary and insignificant. The rigid rule established by Javis v Ypsilanti Board of Education, 393 Mich 689; 227 NW2d 543 (1975), ignores this simple truth and requires reversal and a new trial in every case regardless of the circumstances. Even if no prejudice results from the omission of an instruction, the trial court and the originally successful litigants are forced to endure the ordeal of a second trial. Because this Draconian rule fails to give adequate weight to the interests of the parties who originally prevailed and because such a rule is not necessary to achieve the goals of the standard jury instructions, we would modify or interpret Javis at least to permit some flexibility in the appellate review process. Alternatively, if strict compliance under pain of automatic reversal is to remain the rule, we would at least require strict compliance with the Javis prerequisites of applicability, accuracy and a proper request submitted with citation(s) of the record support upon which the request relies, so as to minimize the potential for abuse of the rule and reduce the number of wasteful and burdensome retrials to a minimum. Useless trials are a luxury neither the judicial system nor the individual parties can afford.
I
The ratio decidendi of the strict compliance rule was stated in Javis as follows:
"Whatever wasted effort that will result from the reversal of those few cases wherein a trial court erroneously deviates from the SJI will be overcome by the benefits of conserved trial court time at the instruction stage, certainty to trial counsel as to how the law will be stated to the jury, and a clear and concise instruction for the jury to work with.” p 699.
Although wasted effort is certainly one of the inevitable results that will follow from such a wooden rule, it is by no means the only result or the most important one. Missing from the Javis equation is adequate consideration for the individual human costs the originally successful litigants must suffer, be they plaintiffs or defendants. The physical, psychological and economic repercussions of a retrial are very real and are entitled to greater deference than Javis shows them.
It is, of course, true that sometimes individuals must bear a burden for the good of the whole. The implementation of the Standard Jury Instructions, however, does not require such sacrifices.
Experience has shown that inflexible rules of strict compliance are unwise because they are unnecessarily severe and do not always advance justice. The most recent example involved GCR 1963, 785.7, the mandatory court rule dealing with the requirements for taking and accepting valid guilty pleas in criminal cases. In People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974) — cited by the Javis majority in support of a strict standard of review (see Javis, supra, at 698, fn 2) — the Court declared:
"The requirements for a valid guilty plea after June 1, 1973 are set forth specifically in GCR 1963, 785.7. The bench and bar are hereby advised that strict adherence to those requirements is mandatory and that neither substantial compliance nor the absence of prejudicial error will be deemed sufficient.”
Less than one year later, in Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), Shekoski was modified to permit a more flexible standard of review. Since that time, there has been no discernible drop in the level of adherence to the requirements of GCR 1963, 785.7. Indeed, as the Court recently recognized in People v Thornton, 403 Mich 389, 394-395; 269 NW2d 192 (1978), adherence appears to have increased. The goals of GCR 1963, 785.7 have been substantially achieved without the heavy hand of Shekoski and its concomitant unnecessary reversals of fair and proper convictions.
The goals of the Standard Jury Instructions are important, but we are not convinced that they are more important than the integrity of the guilty plea process or the various constitutional and other rights of an accused that are subject to realistic harmless error rules.
It may be that some Standard Jury Instructions are so essential to a fair determination of every case that their omission, like the omission of certain provisions of GCR 1963, 785.7, or the violation of certain constitutional rights, can never be considered harmless error. The facts of the case at bar, however, demonstrate that SJI 2.06 is not one of those instructions.
SJI 2.06 states:
"It has been brought out that an attorney (or his representative) has talked with a witness. An attorney (or his representative) may properly talk with a witness for the purpose of learning what the witness knows about the case and what testimony he will give.” ’
The plaintiffs complaint alleged inter alia that the defendants had failed to adequately anchor a balcony railing to the side of their house. A disputed factual issue was whether the defendants had used 2- to 2-1/2-inch screws or 1-inch screws to anchor the railing. Plaintiffs counsel outlined this dispute in his opening statement and indicated that he had engaged an expert witness:
"We expect the evidence [of the defendants] to show * * * that they placed two screws, approximately two and a half inches * * * inside each side of the railing fastening this railing to the house * * *. You will learn that a contractor by the name of Elmer Hunsaker, who went out there shortly after this accident, within days, at my request, and searched the ground very thoroughly, came up with four screws that we hope to prove to you are the actual screws that were in there * * * and they are only one inch long.”
Defense counsel did not deny in his opening statement that the 1-inch screws had been found at the scene; nor did he comment on the fact that Mr. Hunsaker had been requested by plaintiff’s counsel to make the examination or insinuate that there was anything suspicious or improper about such a request. Instead, he assumed that the screws had been found and offered an alternate explanation for their presence.
The trial lasted two full days and the transcript is 507 pages long. Plaintiffs counsel in passing brought out the fact that he had spoken to Mr. Hunsaker. The innocuous testimony on point covers little more than a single page:
”Q. Mr. Hunsaker, do you remember the month of August, 1974?
"A. Yes.
"Q. And you were contacted by myself, do you recall that?
"A. Yes.
”Q. What did you do in reference to that contact?
"A. You asked me to go out and look at a railing that had broken and somebody had been hurt.
”Q. And did you do that?
"A. Yes.
”Q. Who did you go out there with?
"A. Yourself.
"Q. All right. What did you do after you got there?
"A. We stood on the ground looking up around at the railing. Because your question to me was what would possibly cause that railing to let go.
”Q. And how long were you out there?
"A. About a half hour.
”Q. What else did you do while you were out there?
"A. Observing, in the process of observing, I looked down on the ground and I seen some wood screws.
”Q. What did you do with those screws?
"A. Reached over and picked them up and looked at them.
"Q. What did you do with them thereafter?
"A. Held them in my hand while I was on the site.
"Q. And then what did you do?
"A. Later at your office I inserted them into an envelope and signed the envelope.”
Again, defense counsel did not comment on the contact between plaintiffs counsel and Mr. Hunsaker and did not insinuate any impropriety. No conversation was alluded to excepting a request to view the premises.
No other mention of the fact that plaintiffs counsel had spoken with Mr. Hunsaker was made by anyone during the rest of the trial.
In closing argument, defense counsel not only did not comment on the contact or insinuate any wrongdoing, but affirmatively stated, "I believe Mr. Hunsaker when he says he found them [the 1-inch screws]”.
When the trial court indicated, in response to plaintiffs counsel’s request for SJI 2.06 (among others), that there had not been any testimony that an attorney had talked to a witness, plaintiffs counsel did not even bring the Hunsaker testimony to the trial court’s attention.
In these circumstances, it is clear that the omission of SJI 2.06 did not prejudice the plaintiff Indeed, ironically, if anyone was prejudiced by this omission, it was the defendants. The defendants had presented testimony that after the railing collapsed, it was reconstructed primarily with the original materials, including the 2- to 2-1/2-inch screws. They then presented testimony from the current owner of the house that a week before the trial he had removed one of the screws from the railing and it was approximately two inches long. No mention was made of any conversation between the owner and defense counsel. Plaintiffs counsel cross-examined as follows:
"Q. Mr. Bush [the current owner], this was just as recently as last Saturday that this request was made?
"A. Yes.
”Q. What information was fed you to prepare you for this removal?
"A. Mr. Stroup [defense counsel] came and asked me if he could see the house and the rail, and I accompanied him out and removed the screw to show him and put it back. That’s it.
"Q. Now, on the other side of the railing — that would be the left side facing it — there is a flat head screw in there, is there?
"A. Yes, there is.
"Q. Did he ask you to remove that ñat head screw?
"A. No.
"Q. Did you remove it at all?
"A. No, I didn’t.
"Q. Do you know how long that screw is?
"A. No, I don’t.
"Q. Did you remove any of the other screws on there?
"A. No, sir. Just one.” (Emphasis added.)
In closing argument, plaintiffs counsel did comment on this episode:
"Another thing that has troubled me in this case. You heard Mr. Bush testify about that Phillips head screw that he took out and measured. Why didn’t Mr. Stroup have him take out that flat head screw and measure that? Might give that some thought while you are in the jury room, as to why we don’t know how long that other flat head screw was that was in there.” (Emphasis added.)
If defense counsel had requested SJI 2.06 and the judge had refused to give it, that might have constituted prejudicial error. In the circumstances of this case, however, the same cannot be said for the plaintiff. There was no prejudice to him. Fur ther, he failed to direct the judge’s attention to any record support for his request. We doubt that these defendants, and the other litigants like them who in the future will be put to the task of another trial, will understand the niceties of or the reasons for the Javis rule.
Recent events have made it painfully clear that the courts can no longer afford the extravagance of unnecessary trials. We would modify the absolute rule established by Javis and hold that the omission of SJI 2.06 in this particular case does not require reversal of the jury’s no cause verdict.
II
In Javis, supra at 702, the Court, cognizant of the strictness of the rule it was establishing, decreed the following prerequisites to invocation of the rule:
"[t]he initial burden is on the parties to request SJI that they may deem accurate and applicable. If the court should disagree, a party bears the burden of pointing out to the court why it considers SJI applicable and accurate. ” (Emphasis added.)
Plaintiff’s counsel in the case at bar failed to comply with the second of these requirements.
After the jury had been instructed, but before it had begun deliberations, plaintiff’s counsel objected to the trial court’s omission of requested Standard Jury Instructions in a classic example of the "shotgun” approach:
"[I]n reference to plaintiff’s proposed instructions: Number one, I would object to the court not having given requested instructions 2.06, 2.11, 11.02, 12.05, 23.01. And for the reason that the evidence supports their having been given.”
In response, the trial court first clearly indicated that it did not recall any testimony about an attorney talking to a witness:
"It seems to me that there really wasn’t any testimony brought out that an attorney talked to a witness, unless you want to infer that the deposition represents an attorney talking to a witness.”
Then, after defense counsel stated that there had not even been any argument concerning the subject, the court clearly indicated its disagreement with plaintiffs counsel’s request for SJI 2.06:
"No, I really don’t see the necessity for it * * *.”
Immediately following this exchange, the trial court addressed seriatim the rest of the Standard Jury Instructions requested by plaintiff’s counsel and indicated why it disagreed with each. Then, plaintiffs counsel had an opportunity to respond. That response was limited to SJI 23.01 (defendant has admitted liability), and made no mention of Mr. Hunsaker’s testimony.
So long as strict compliance under penalty of automatic reversal is to remain the rule, we would require the moving party to do more than plaintiffs counsel did in the case at bar. As a minimum, the testimony allegedly supporting the requested instruction should be brought to the trial court’s attention. Persistence may be required, but the severity of the Javis rule mandates that this be done, so that the trial court can make an informed decision and so that retrials can be reduced to a minimum. This is, we believe, what the Javis Court had in mind. The less than diligent effort illustrated by this case makes it far too easy for counsel to fashion a "handy appellate parachute” for use in the event that the results at trial are unfavorable.
We agree with Justice Fitzgerald as to his Part II.
We would affirm the decisions of the Court of Appeals and the trial court.
Ryan, J., concurred with Coleman, C.J.
"Pertinent portions of Michigan Standard Jury Instructions (SJI) published under authority of this subrule shall be given in each civil case in which jury instructions are given if (a) they are applicable and (b) they accurately state the applicable law.” (Emphasis supplied.)
With respect to the second point, see Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976).
We do not agree with defendants’ (on appeal) and the trial judge’s (in his opinion denying plaintiffs motion for new trial) characterization of plaintiffs failure to reassert the objection after the trial judge first stated "But if you want 2.06 given, I can give that”, then stated, “No, I really don’t see the necessity for it, Mr. Sumpter” as acquiescence in omission of the instruction. The second sentence appears to be a final decision. Further, the trial judge then proceeded directly to other matters.
MCL 600.2161; MSA 27A.2161.
GCR 1963, 302.4, so far as pertinent here, reads:
“At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, * *
The present Federal rule in regard to the use of depositions in court proceedings is FR Civ P 32. The predecessor of FR Civ P 32(a) was FR Civ P 26(d), which was transferred to FR Civ P 32 as part of the rearrangement of the Federal discovery rules made in 1970.
On a similar issue, other jurisdictions hold varying viewpoints concerning the propriety of note-taking by jurors during trial. See Anno: Jury’s Trial Notes, 14 ALR3d 831. While plaintiff has not expressed his goal in offering the deposition transcripts as exhibits with any precision, we assume the end result would have been the presence of the depositions in the jury room during deliberations.
See, generally, Anno: Taking Depositions to Jury Room, 57 ALR2d 1011. See, also, McCormick, Evidence (2d ed), § 217, "Exhibits in the Jury Room”, pp 539-542.
For example, see, Silverstone v London Assurance Corp, 187 Mich 333; 153 NW 802 (1915), citing Chadwick; and People v Onesto, 203 Mich 490; 170 NW 38 (1918), People v De Frenn, 247 Mich 698; 226 NW 710 (1929), and Metcalf v Waterbury, 60 Mich App 553; 231 NW2d 437 (1975), all citing Bulen.
Although plaintiff stated in oral argument that all he ever wanted admitted were those pages of the depositions upon which the testimony used for impeachment at trial appeared, that goal is not apparent from the record or plaintiff’s appellate brief. If that were the case, plaintiff has not explained how having the deposition testimony in the record twice would have advanced the truth-seeking process.
Trial transcript, vol I, p 22.
Id., pp 28-29, 32.
Id., pp 186-187.
Plaintiffs belated attempt on appeal to color certain questions asked by defense counsel as comments or insinuations is specious at best. When these questions are read in context, whatever minuscule support they give to plaintiffs claim disappears. The questions clearly relate to other matters.
Trial transcript, vol II, p 218.
Id., pp 266-268.
Id., pp 184-185.
Id., pp 236-237.
Id., pp 263-264.
Id. p 266.
Id., pp 266-267.
“No, I really don’t see the necessity for it, Mr. Sumpter. With regard to 2.11, there was no evidence of deposition testimony. I think that’s true that admissions of a party are evidence for substantive purposes, but I think you developed those admissions by interrogating the witnesses on the witness stand as to what was said in the deposition. So it was not necessary to introduce the deposition itself. And that was the reason that the court did not permit the deposition to go into evidence because the deposition contained a lot of extraneous information, extraneous to the admission. So if the particular statement contained in the deposition was read into the record, then it seems to me there is sufficient evidence of that statement or admission before the jury. And I really don’t see the application of instruction 2.11 for that reason.
"With regard to 11.02, well, 11.02 as an instruction of contributory negligence is not an issue. And, obviously, the court does not believe that.
“23.01 is an instruction that the defendant has admitted liability. And this court recalls no testimony that the defendant admitted liability.” Id., pp 266-267.
"Plaintiffs theory is that the admission that it’s an ornamental railing is an admission of liability, both in the pleadings and under oath.” Ibid. | [
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Williams, J.
This is an action for the interpretation or construction of a testamentary residuary trust created by the Last Will and Testament of Walter S. Butterfield. The question in this case is whether the word "issue”, used by the testator to define the class of income beneficiaries under the trust, refers to all lineal descendants, which would include great-grandchildren, or whether it is limited solely to grandchildren, i.e., the testator’s children’s children. The trial court and the Court of Appeals found the class of income beneficiaries limited to grandchildren of the testator.
We reverse and find that "issue” under the circumstances of this case must be read more broadly to include all lineal descendants.
I. Facts
The facts of this case are not in dispute.
In 1933, Walter S. Butterfield, at age 65, executed his last will and testament. At that time he was married to his third wife, had five living daughters and six grandchildren. To date, there have been 19 grandchildren born and 31 great-grandchildren.
The will was drafted by the Lansing law firm of Shields, Ballard, Jennings and Taber; the actual scrivener is thought to be Edmund C. Shields, who died in 1947.
Paragraphs 1 through 22 of the will make certain specific bequests. In paragraph 24, the testator created a testamentary trust for the distribution of the remainder of his estate. Paragraph 25 designates certain life-income and estate-for-years beneficiaries. Paragraphs 26 through 29 provide for the distribution of the remainder of the trust income and paragraph 30 provides for the dissolution of the trust and distribution of the corpus. In particular, paragraph 27 provides:
"27. Subject to the preceding annuities and conditions attached thereto, I direct my said trustees to pay out of the net income from my estate as follows:
"To my wife, Irene Daley Butterfield, annually during her lifetime, thirty (30%) percent of said net income and the remainder of said net income to be divided in equal shares, and, one share paid to each of my children, and if, during the lifetime of my wife, Irene Daley Butterfield, any of my said children shall have died, leaving issue of him or her surviving, then the said issue shall receive the parent’s share herein provided for, divided share and share alike, until the termination of said trust estate, as hereinafter provided.”
The testator died in 1936, and for over 35 years trust income was distributed in amounts of 30 percent to Irene Butterfield Goodwin (the testator’s widow) and 70 percent to the testator’s five children, or per stirpes to grandchildren of the testator upon the death of one of the children. However, in December of 1972, Francis K. Berry, II, a grandchild of the testator, died leaving two children, three-month-old David and three-year-old Frank A. Berry, appellants herein. Francis K. Berry, II, succeeded to a portion of the trust income, along with his brothers and sister, per stirpes, when his mother, Helen Berry, a daughter of testator, died. The death of Francis Berry, II, was the first time that a grandchild died leaving children, i.e., great-grandchildren of the testator. The question then arose whether Francis Berry’s share should be distributed per stirpes to his children, David and Frank (great-grandchildren of testator), or whether his share should go to his surviving brother and sister, Paul and Susan Berry, appellees herein.
In January of 1975, two years after the initiation of this suit, Caroline A. Bidwell, another grandchild of the testator, died leaving five children (great-grandchildren of the testator). The direction of distribution of Caroline Bidwell’s share of income involves the same issue as Francis Berry’s share, i.e., whether Caroline Bidwell’s share of income should go to her brother and sister or to her own children who are the great-grandchildren of the testator. As with the case of Francis Berry, the trustees are holding Caroline Bidwell’s portion of income pending the outcome of these proceedings.
The trustees, who take a position of neutrality in this litigation, sought interpretation or construction of the will in the Calhoun Circuit Court in 1973. That court decided that the word "issue” as used by the testator was restrictive, i.e., that "issue” was meant to only include children of the testator’s children, or testator’s grandchildren. The Court of Appeals affirmed the lower court’s opinion. Gowthorpe v Goodwin, 72 Mich App 648; 250 NW2d 514 (1976). We granted leave to appeal June 2, 1977.
II. Issue
The question presented in this action is the proper interpretation of the word "issue” in connection with testator’s children in paragraph 27 of the will; whether "issue” as used in the will means all lineal descendants of testator’s children, i.e. great-grandchildren of testator as well as grandchildren, or only grandchildren of the testator. If "issue” means all lineal descendants, then great-grandchildren would receive their parent’s share of income upon the parent’s death. If "issue” is limited to grandchildren, then upon the death of a grandchild the income would be divided equally among the grandchild’s siblings to increase their existing shares, or absent surviving siblings, it would be divided among the other children or grandchildren per stirpes.
III. Meaning of the Word "Issue”
The primary duty of any court faced with the task of resolving a disputed testamentary disposition is to effectuate as nearly as possible the intention of the testator. Where there is no ambiguity, that intention is to be gleaned from the four corners of the instrument, In re Scheyer’s Estate, 336 Mich 645, 648-649; 59 NW2d 33 (1953); Wheeler v Wood, 104 Mich 414; 62 NW 577 (1895), and the court has merely to interpret and enforce the language employed. If the intention of the testator cannot be gleaned solely by reference to the instrument, in other words, if the document evidences a patent or latent ambiguity, there are two external sources through consideration of which a court may establish the intent of the testator: (1) surrounding circumstances and (2) rules of construction. We find no ambiguity to exist in this case; therefore we resolve this dispute by interpretation of the language within the four corners of the instrument.
The dispute in this case arises because paragraph 30, dealing with the distribution of trust corpus on dissolution, and paragraph 27, dealing with distribution of trust income, employ different language.
Paragraph 30, as set forth in full in footnote 4, supra, establishes that the trust shall be dissolved upon the death of the last survivor among the testator’s wife and children. There is provision for the setting aside of sufficient amounts of principal to pay income to any possible surviving designated life annuitants, but beyond this, distribution of corpus is to be made to all grandchildren of the testator then living, or in the event of no living grandchildren, to the testator’s heirs at law.
In contrast to this reference to grandchildren, paragraph 27, also set forth in full in footnote 4, incorporates reference to the payment of trust income to designated annuitants during their lives, authorizes payment of 30 percent of the net income from the trust to the testator’s widow, and provides that the remainder of the net income from the trust (including, upon the death of the wife, her 30 percent life estate in the net income) be divided in equal shares for payment to Butter-field’s children, and in the case of the death of a child who is survived by issue, then the issue are to receive and divide equally the parent’s share until termination of the trust.
As is discussed below, the word "issue” is defined in Michigan to mean all lineal descendants. As a consequence, there would be no question here but for the fact that the term "issue” is used in paragraph 27 to designate income distributees of the trust and the term "grandchildren” is used in paragraph 30 to designate corpus distributees on dissolution of the same trust. Appellees assert that both terms are thereby rendered ambiguous and must be construed as referring to the same class of people, and that that class is limited to "grandchildren”, excluding great-grandchildren.
We do not agree with appellees that the term "issue” is rendered ambiguous by the use of the term "grandchildren” in paragraph 30, but find that "issue” must be given its clear meaning and by law refer to all lineal descendants.
Although each case must be determined under its individual circumstances, in general, the testamentary disposition of trust corpus and trust income in different manners cannot logically compel a finding of ambiguity. See In re Hicks Estate, 345 Mich 448, 452-453; 75 NW2d 819 (1956). If such a testamentary scheme were to be considered inherently ambiguous, we would greatly increase the necessity of judicial construction of wills and unreasonably constrain the use of language presently considered clear and unambiguous; the net result would doubtless be interference with the longstanding and jealously guarded power to devise and bequeath. See MCL 702.1; MSA 27.3178(71) and MCL 702.4; MSA 27.3178(74).
Clearly, then, a given testator may intend different recipients of income and corpus, In re Hicks Estate, supra. Further, it is beyond dispute that in the instant case, at least as to certain income beneficiaries, this is exactly what the testator intended. The testator specifically designated certain life annuitants to take income under the trust while these same individuals were not to take corpus upon dissolution, despite the fact that they might survive the life of the trust.
In the instant case, because there is no ambiguity created under such a scheme, we must interpret each word of the will in accordance with its clear meaning.
"The authorities are overwhelming that when there is no patent or latent ambiguity in the provisions of a will, the intention to be ascribed to the testator is that intention demonstrated in the will’s plain language.” In re Willey Estate, 9 Mich App 245, 249; 156 NW2d 631 (1967).
In Michigan the meaning of "issue” is set forth in the statutes:
"The word 'issue’ as applied to the descent of estates means all lawful lineal descendants of the ancestor.” MCL 8.3h; MSA 2.212(8).
This statutory definition codifies both the general and technical meaning of "issue” in Michigan; it was in effect in 1933 when the will was drafted and remains in effect today.
Further, although external rules of construction are not necessary when interpreting the language of a will because the testator’s intention can be gleaned from the four corners of the document, there are two qualifications or exceptions to this principal rule. Atkinson, Law of Wills (2d ed), ch 15, § 146, p 811. Even when we can arrive at the testator’s intent by limiting our analysis to the document itself, these two qualifications apply:
"[I]f the testator employed a draftsman skilled in the use of technical words these must be given their technical meaning. It is practically necessary that the testator’s intent should be identified with that of the agent whom he employed to express the intent. Furthermore, to the extent that either a statute or established rule of decision attributes a certain meaning to particular words, that meaning must be accepted.” (Authority omitted.) Atkinson, supra.
These qualifications and the facts that the will was drafted by a lawyer and the statute defines "issue” to comprise all lineal descendants, as well as the clear general meaning of the word "issue” in this state, lead us to the necessary conclusion that the great-grandchildren, as issue, are entitled to their parent’s share of the income under paragraph 27 of the will.
IV. Conclusion
Although we are impressed with the scholarly opinion of the trial court, we do not reach the same conclusion. In the case at bar, all available facts are stipulated by the parties and, therefore, we do not deal with findings of fact which are not set aside unless clearly erroneous, GCR 1963, 517.1, but with application of law.
The plain meaning of the word "issue” in this state leads us to the necessary conclusion that under paragraph 27 of the will, the great-grandchildren are intended "issue” entitled to income. We find no demonstrable intent to the contrary.
Reversed and remanded.
Coleman, C.J., and Kavanagh, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Williams, J.
Although the words "construction” and "interpretation” are frequently used interchangeably in regard to a court’s duties in cases such as this, at least one legal treatise finds benefit in distinguishing between these terms.
"While the difference is not always recognized, it is helpful to draw a distinction between interpretation and construction. The former is the process of discovering the meaning or intention of the testator from permissible data. Construction, in its narrow sense, consists of assigning meaning to the instrument when the testator’s intention cannot be ascertained from proper sources. If interpretation answers all questions relative to disposition of the testator’s property, there is no need of embarking upon the field of construction. In other words, construction is necessary only when interpretation fails.” Atkinson, Law of Wills (2d ed), ch 15, pp 809-810.
In the instant case we will analyze the will through interpretation of the document itself.
A daughter, Mitties L. Rathburn, the only child of Butterfield’s first marriage, had died in 1928. She was survived by one child.
Butterfield fathered four daughters during his second marriage: Laura Page, Caroline B. Allen, Helen Berry and Julia S. Leonard. His youngest daughter, Anne B. Handley, was the sole child of his third and final marriage.
Of the 19 grandchildren, 16 are presently surviving.
Paragraphs 25 through 30 of the will provide:
“25. Said trustees shall determine each year or oftener, if reasonably possible, the net annual income of said trust. If, for and during each year the net annual income of said trust equals or exceeds the sum of One Hundred Thousand ($100,000.00) Dollars, then I direct that said annual income shall be paid out and be disbursed as follows:
"(a) To Mrs. Anna Romigh, Mother of my wife, Irene Daley Butter-field, if she survives my wife, Irene Daley Butterfield, the sum of Two Hundred ($200.00) Dollars per month during her lifetime; and in the event that her husband, George Romigh, should survive the said Anna Romigh, then I direct my executors and trustees to pay to George Romigh the said sum of Two Hundred ($200.00) per month during his lifetime; provided that this annuity to the said Anna Romigh and George Romigh is in lieu of and full satisfaction of any and every claim which they or either of them might have against my estate, and if they or either of them file any claim against my estate, this annuity to become null and void and cancelled.
"(b) To my sister, Helen Cromley, during her lifetime, the sum of Two Thousand Six Hundred ($2,600.00) Dollars per year, provided the said Helen Cromley does not present any claim against my estate, and if she does present any claim against my estate, then this annuity and bequest to become null and void and cancelled.
"(c) To my sister, Grace Butterfield Jones, during her lifetime, the sum of One Thousand Two Hundred ($1,200.00) Dollars per year.
"(d) To my brother, Frank Butterfield and Edna Baum Butterfield, his wife, jointly and to the survivor of them, for his or her life, the sum of Five Thousand Two Hundred ($5,200.00) Dollars per year; provided the said Frank Butterfield and Edna Baum Butterfield, either jointly or severally, shall not present any claim against my estate, and if they do present any claim against this estate, then this annuity and bequest, as to both and each of them, shall be cancelled and be null and void.
"(e) To my brother, John Willard Butterfield, the sum of Six Hundred ($600.00) Dollars per year. At his death this annuity to cease and be null and void.
"(0 If my brother, Frank Butterfield, and his wife, Edna Baum Butterfield, die before either of their two children have attained the age of thirty (30) years, then I direct that to each of their said children there shall be paid the sum of Twelve Hundred ($1,200.00) Dollars per year until the beneficiary thereof reaches the age of thirty (30) years, and as to each of them as he or she reaches the age of thirty (30) years this annuity shall cease and be null and void. At their death, if occurring before reaching thirty (30) years of age, this annuity to become null and void. •
"(g) To my daughter, Anne Butterfield, for her care, maintenance, and education, the sum of Twenty-four Hundred ($2,400.00) Dollars per year, which bequest, however, shall be cancelled when the said Anne Butterfield shall have completed her education, and in any event this bequest shall not extend for a period of time longer than when she shall have attained the age of twenty-four (24) years.
"26. (a) I further direct that if the net income from my estate is in any year less than the sum of One Hundred Thousand ($100,000.00) Dollars, and more than the sum of Fifty Thousand ($50,000.00) Dollars, then each of the annuities hereinabove described in paragraph 25 shall be reduced to fifty (50%) percent of the sums above named, except as to the provision in reference to Anne Butterfield, as referred to in subdivision (g) of paragraph 25, which shall remain in full force and effect.
"(b) I further direct that if the net income from my estate is in any year less than the sum of Fifty Thousand ($50,000.00) Dollars, and more than the sum of Twenty-five Thousand ($25,000.00) Dollars, then each of the annuities hereinabove described in paragraph 25 shall be reduced to twenty-five (25%) percent of the sums above named, except as to the provision in reference to Anne Butterfield, as referred to in subdivision (g) of paragraph 25, which shall remain in full force and effect.
"(c) I further direct that if the net income from my estate is in any year less than the sum of Twenty-five Thousand ($25,000.00) Dollars, then each of the annuities hereinabove described in paragraph 25 shall be cancelled and declared null and void for that particular year, except as to the provision in reference to Anne Butterfield, as referred to in subdivision (g) of paragraph 25, which shall remain in full force and effect.
"27. Subject to the preceding annuities and conditions attached thereto, I direct my said trustees to pay out the net income from my estate as follows:
"To my wife, Irene Daley Butterfield, annually during her lifetime, thirty (30%) percent of said net income and the remainder of said net income to be divided in equal shares, and one share paid to each of my children, and if, during the lifetime of my wife, Irene Daley Butterfield, any of my said children shall have died, leaving issue of him or her surviving, then the said issue shall receive the parent’s share herein provided for, divided share and share alike, until the termination of said trust estate, as hereinafter provided.
"28. At the death of my said wife, Irene Daley Butterfield, the net income from said trust estate shall be divided and paid in equal portions to each of my children, or to the surviving issue of any deceased child, during the lifetime of the longest lived of said children.
"29. If any of my said children have died without leaving issue, either during the lifetime of my said wife, Irene Daley Butterfield, or after her death, then the payment herein provided out of said net income to said so deceased child or children not leaving issue, shall cease and be considered as part of the net income of said estate, and be divided among the remaining children as though that child had not existed.
"30. At the death of the last survivor among my children and my wife, Irene Daley Butterfield, the said trust estate shall cease and be dissolved and the principal thereof shall be divided, distributed and paid, share and share alike, to all of my grandchildren then living. Provided, that if at the death of the last survivor among my children and my wife, Irene Daley Butterfield, there be at that time still living any other annuitant mentioned in this will, then I direct my trustees to set aside out of the principal of said trust estate a sufficient amount of principal so that the income thereof will be sufficient to pay such annuitant or annuitants during their lifetime, and at the death of each of such annuitants the principal so set aside to furnish the income for that annuitant shall be distributed among my grandchildren as provided for distribution of principal of this estate as hereinafter set forth. It being my intention and direction that all of my grandchildren then living shall share equally in such distribution. If at such time there are no grandchildren living, then I direct that said trust estate shall be distributed to my heirs then living in accordance with the Statute for descent and distribution of the laws of the State of Michigan.”
To demonstrate the substantial amount involved, each per stirpes share to the Berry children from March, 1973 through July, 1977, was approximately $39,000 (Helen Berry’s youngest child died in 1972 leaving no lineal descendants, which left her three remaining children to share equally in her one-sixth share of 70 percent of the income).
Disregarding fluctuations in the trust income from year to year, the shares of all income beneficiaries under paragraph 27 of the will increased greatly due to the death of the testator’s wife in 1977. Her 30 percent share of the income is now added back to the amount of income distributed to the "issue”. See paragraph 27 of the will.
An ambiguity is "patent” if the uncertainty as to meaning "appears on the face of the instrument, and arises from the defective, obscure, or insensible language used”. An ambiguity is "latent” "where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates” the possibility of more than one meaning. Black’s Law Dictionary (4th ed), defining "ambiguity”.
"Issue” is also the term used in paragraphs 28 and 29. See footnote 4, supra.
As stated in footnote 5, the testator’s widow is already deceased. The sole surviving child is Anne B. Handley, who was three years of age at the time the will was executed. It is upon her death that the trust will be dissolved and the corpus distributed.
Paragraph 25 provides income distribution to a mother-in-law, brothers and sisters who are clearly not to take distribution of corpus under paragraph 30. See footnote 4. | [
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Per Curiam.
The plaintiff brought suit on an express contract of indemnification. The question is whether the three-year or the six-year statute of limitations period applies to this action in the light of State Mutual Cyclone Ins Co v O & A Electric Coop, 381 Mich 318; 161 NW2d 573 (1968). We hold that the six-year limitation period applies and reverse.
I
In 1971 C & C Construction, the general contractor of a waste-water treatment plant project, entered into an agreement with defendant Southeastern Electric. Southeastern’s duties as subcontractor included the installation of certain transformers. The contract included a clause which provided that Southeastern would "protect and save harmless” C & C from loss or damage to property occasioned by Southeastern’s negligence.
On April 5, 1973, a fire damaged one of the transformers for which C & C Construction was responsible. The loss totaled $92,502.94. Pursuant to a contract of insurance between C & C Construction and the plaintiff insurance company obligating the plaintiff to pay for all losses sustained in excess of $25,000, the plaintiff paid C & C Construction $67,502.94.
On April 27, 1976, three years and three weeks after the fire, the plaintiff filed suit against Southeastern. The complaint alleged that the fire resulted from an employee of Southeastern being away from his post in breach of the contract to install the transformers.
Southeastern moved for accelerated judgment based on the running of the three-year statute of limitations, and the trial court granted the motion.
The plaintiff appealed, contending that since its suit is founded on an express contract of indemnity between Southeastern and C & C Construction, the applicable statute of limitations is six years. The Court of Appeals, like the trial court, however, found the plaintiff’s position inconsistent with our holding in State Mutual, supra.
II
State Mutual and the cases it relied on do not involve actions based on alleged breaches of contracts to indemnify. The instant plaintiff’s com plaint does rest on an alleged breach of a contract to indemnify. The contractual right to indemnity was established in 1971, while the damage was incurred on April 5, 1973. The action is not one "to recover damages for injuries to persons and property”, but, rather, is one "to recover damages or sums due for breach of contract” so that the period of limitations is six years, running from April 5, 1973 when the indemnitee sustained the loss.
Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the Court of Appeals and remand to the circuit court for further proceedings consistent with this opinion.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
Paragraph 7 of the contract begins:
"7. The Sub-contractor will protect and save harmless the Contractor from any loss, cost or damage to him on account of any damage or injury to third persons, or to property, occasioned by the wrongful act, neglect or default of the Sub-contractor, his servants, agents or employees.”
MCL 600.5805(7); MSA 27A.5805(7) provides:
"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.”
MCL 600.5807(8); MSA 27A.5807(8) provides:
"No person may bring or maintain any action to recover damages or sums due for breach of contract, or to enforce the specific performance of any contract 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.
"(8) The period of limitations is 6 years for all other actions to recover damages or sums due for breach of contract.”
MCL 600.5805(7); MSA 27A.5805(7).
MCL 600.5807(8); MSA 27A.5807(8). | [
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Levin, J.
In summary proceedings to recover real property, a writ of restitution may not issue pursuant to a judgment for possession because of nonpayment of money by a tenant or land contract vendee if, "within the time” prescribed by the statute, the amount of the judgment is "paid” to the plaintiff.
The issue is whether Thomas L. Cooper "paid” Peter and Ella Birznieks the amounts stated in judgments for possession when he mailed personal checks for those amounts to the Birznieks’ lawyer on the last day of the time prescribed.
The district court held that the amounts so stated had not been duly paid. The circuit court and Court of Appeals affirmed. We reverse.
I
Cooper purchased two parcels of property under separate land contracts from the Birznieks. These summary proceedings to recover possession were commenced because of delinquency in payments. Judgments in favor of the Birznieks entered November 1, 1973 following a hearing, stating that Cooper had until January 30, 1974 to vacate the property, and that the Birznieks had the right to evict him on January 31, 1974 unless the "amount owed”, stated in the judgments, was "paid within 90 days, or appealed from within ten (10) days”.
On January 30, 1974, the last day the amounts stated could be paid, Cooper mailed personal checks in the requisite amounts, drawn on an out-of-state bank, to the Birznieks’ lawyer. The envelope was postmarked January 30, 1974.
The lawyer wrote Cooper on February 1 that writs of restitution were issued by the court on that day. "The period of redemption expired January 30, 1974, and your payment was not made during the period of redemption. I am returning with this letter an envelope which we received February 1, 1974.1 have not opened this letter and do not know what the contents are.”
Cooper’s motion to quash the writs of restitution was denied after a hearing during which the envelope was opened disclosing the two checks. Cooper testified that after the November 1 hearing the Birznieks’ lawyer "gave me his card and said for me to mail the payments to his office”. Peter Birznieks testified that because of problems with Cooper’s checks he had refused to accept payment by personal check.
The district judge held that personal checks were not proper tender and that mailing on the last day was not timely. She found that some of Cooper’s checks for land contract installments had not been honored on presentation, and noted that he did not deny Birznieks’ claim that he had been instructed to pay such installments in cash or by money order and that there was no testimony that the two checks would have been honored if presented. She concluded that Cooper had no rational basis to believe that personal checks on an out-of-state bank would be accepted. Although, as she also noted, it was not disputed that the Birznieks’ lawyer had instructed him "to mail his redemption payment to him”, placing personal checks in the mail on the last day was not, in light of the past dealings of the parties, timely payment.
II
The judge thus appears to have credited Cooper’s statement that the Birznieks’ lawyer had instructed him to mail the amounts required to avoid forfeiture stated in the judgments to the lawyer. Cooper could reasonably have understood such a statement to mean that he had until the last day to mail the amounts owing.
In Bilandzija v Shilts, 334 Mich 421, 425; 54 NW2d 705 (1952), this Court declared that where a land contract vendor refused a check "on the sole grounds that it was too late” there was no "need for making a more formal and legal tender of cash”. The concept so stated that when the creditor assigns one reason for refusing tender he may not thereafter rely on another is well supported in the Michigan cases.
This case could therefore be decided on the basis that since i) Cooper could reasonably have understood the Birznieks’ lawyer’s statement to mean that mailing on the last day was sufficient, ii) checks for the amounts owing were so mailed, and iii) were refused on the insufficient ground that the mailing was not timely and without regard to the form of the tender (personal checks), the Birznieks cannot rely on the alternative ground that personal checks were sent.
Leave to appeal was not, however, granted to review the facts of this case; it was granted, rather, to consider the broader question of whether mailing a personal check on the last day of the time provided is timely payment under this statute.
Ill
The statute provides:
"When the judgment for possession is for nonpayment of money due under a tenancy or for nonpayment of moneys required to be paid under or any other material breach of an executory contract for purchase of the premises, the writ of restitution shall not issue if, within the time provided, the amount as stated in the judgment, together with the taxed costs, is paid to the plaintiff and other material breaches of an executory contract for purchase of the premises are cured.” MCL 600.5744(6); MSA 27A.5744(6).
The Court of Appeals declared that the tender must occur within the time provided, and that mailing on the last day was not timely. Regarding the form of tender, it declared that Cooper could not, in light of the Birznieks’ previous refusal of personal checks, reasonably have expected that such checks would be accepted. The Court thus laid down a flat rule that the amount owing must be actually received within the time provided, but left open the question whether a form of tender other than cash would satisfy the statute. It indicated that resolution of that question might turn on whether the vendee or tenant had reason to expect, as a result of a course of dealing, that some form of tender other than cash would be acceptable to the vendor or landlord.
The law of tender is replete with cases which depart from the generalization that tender is the payment in hand of legal currency to explore the fact-laden paths of the litigants’ course of dealing. It is well established in contractual relationships that actual delivery of legal tender is not required where there is a course of dealing which justifies the debtor in believing that some other means (e.g., mailing) and form of tender (e.g., personal check) will suffice.
This excursion into the course of dealing, while justified in contract cases where it is sought to determine reasonable expectations, is not appropriate where rights are fixed by statute without regard to the expectations of the parties. Although vendor-vendee and landlord-tenant relationships are grounded in contract, a fixed meaning must, we agree with the Court of Appeals, be given the statutory term "within the time provided”. A fixed meaning must also be given "paid” as used in this statute; therefore, whether personal checks were acceptable does not depend on whether Cooper could, as a result of a course of dealing, reasonably expect that they would be accepted.
A judgment for possession is, under the statute, subject to the redemption rights of the vendee or tenant. No agreement between the parties can deprive a vendee or tenant of his right to cure the default. The parties are beyond the contract. The vendee or tenant now exercises a statutory right, a right which can be diminished neither by the express nor the implied terms of the contract.
It would be anomalous if a vendee’s or tenant’s right to pay by personal check or to send it by mail on the last day for payment were dependent on the idiosyncrasies of a particular vendor-vendee or landlord-tenant relationship.
The sufficiency of tender under a statutory redemption provision should not depend on a lawyer’s ability to amass evidence of a course of dealing. The statute gives the tenant and vendee a last chance to avoid forfeiture. The outcome should not depend upon the presence or absence of a written record or of witnesses to the vendor’s or landlord’s instructions or objections during the course of the contract. Otherwise, one man’s check mailed on the last day might reinstate his equity because his vendor or landlord is unable to prove a previous objection, while at the same time his neighbor’s tender might be inadequate because his vendor or landlord can show routine objection to even the most minor deviation from contract terms. Principle, not providence, should be the governing factor.
While the construction of these statutory terms is not circumscribed by the course of the parties’ dealing, it does not follow that the words should be given an entirely formalistic meaning or that the customary manner of dealing should not be reflected in the construction.
"Paid” may have a clear and plain meaning to lawyers who understand that nothing other than actual delivery to the creditor of coin of the realm is legal tender. Land contract vendees and tenants, however, often are not represented by counsel; Cooper was not represented at the November 1 hearing.
The court rule provides that a judgment for possession shall "include a statement as to the date when a writ of restitution may issue unless he pays the amount due and costs”. The apparent purpose is to inform the vendee or tenant of the amount required and the time within which to pay to avoid loss of possession and forfeiture.
If the remedial purpose of the statute and the informational purpose of the court rule are to be fully implemented, the words "within the time provided” and "paid” should be given a construction consonant with what vendees and tenants would understand although that departs from what lawyers and judges and those counseled by them might understand.
In construing these words, we also have in mind that the meaning we give them affects a matter of practice and procedure, the administration of justice, not merely the administration of a contract. The last judicial act in most forfeitures in summary proceedings is issuance of a writ of restitution. It is ultimately for this Court to decide the procedure for issuance of the writ that serves the Legislature’s substantive purpose and the fair and efficient administration of justice.
IV
A customary means of payment is by personal check. Persons who have checking accounts, an ever-growing percentage of the population, pay their bills by mailing personal checks, whether the debt is a charge account, a utility bill, rent, a mortgage or land contract payment, or a tax owing to government. The debtor is not expected to send a bank or certified check merely because the payment is important or even because it is delinquent.
The means of transmittal customarily employed, whatever the form of payment, is the mails. The debtor is not expected to seek out the creditor and put the instrument of payment in his hand. Mailing on the last day is recognized for many purposes to be timely and, as a result, it is widely thought that communications postmarked on the last date are timely. We perceive no "clear and plain meaning” requiring actual receipt in hand by the end of the last day. While a lawyer would know that mailing on the last day does not constitute compliance in every situation, we seek, again, the meaning which vendees and tenants would understand.
Payments on land contracts and rental payments are routine transactions which are ordinarily accomplished by sending personal checks through the mails.
The meaning ascribed to these terms will govern not only land contract forfeitures, but also forfeitures of tenancies. While the time for redemption of a land contract is 90 days or 6 months, it is only 10 days for a tenancy. The mails are not entirely dependable; what used to take one day for delivery may now take a week. To ascribe to the terms a meaning requiring actual delivery within the time provided would virtually require a tenant to make personal delivery or to mail payment almost immediately upon rendition of the judgment.
The large number of cases where, because of a course of dealing, personal checks or mailing within the time provided or both have been treated as timely payment demonstrates that there are no intractable problems in treating the mailing of personal checks as payment. In those situations receipt of the check is deemed to constitute a conditional payment. The condition is that the check is honored on presentment at the bank; if the check is honored the payment is deemed to have been timely made.
Nor is there any insuperable problem in a timely mailed letter arriving after the date of "forfeiture”. Insurance policies which have expired are routinely reinstated upon receipt out of time of payment.
We conclude that Cooper "paid” the amounts owing "within the time provided” when he mailed personal checks for the amounts stated in the judgments to the Birznieks’ lawyer.
The writs of restitution are quashed. Reversed. Costs to appellant.
Coleman, C.J., and Kavanagh, Williams, and Blair Moody, Jr., JJ., concurred with Levin, J.
Ryan, J.
(to affirm). I agree with Justice Levin that a fixed meaning must be given to the words "within the time provided” found in that section of the summary proceedings act which provides a statutory period of redemption for a land contract purchaser after a judgment for return of the property has been awarded to the land contract seller. MCL 600.5744(6); MSA 27A.5744(6). Beyond this singular point of agreement, however, we part company in this case.
I
The statutory provision which requires our construction reads as follows:
"When the judgment for possession is for nonpayment of money due under a tenancy or for nonpayment of moneys required to be paid under or any other material breach of an executory contract for purchase of the premises, the writ of restitution shall not issue if, within the time provided, the amount as stated in the judgment, together with the taxed costs, is paid to the plaintiff and other material breaches of an executory contract for purchase of the premises are cured.” MCL 600.5744(6); MSA 27A.5744(6). (Emphasis supplied.)
While ostensibly seeking to articulate the layperson’s understanding of these words, Justice Levin expands the phrase "within the time provided” to include the time period provided plus the ordinary course of the mails. In so doing, he attempts, sub silentio, to adapt the so-called "mailbox rule” to a wholly inapposite situation.
The "mailbox rule” is a fiction of law created by judges to provide a fixed guide for determining when an offer has been accepted for the purpose of forming a legally enforceable contract. An early English case is frequently credited as being the first to enunciate this rule. In Adams v Lindsell, 1 B & A1d 681 (1818), the court held that where an offer to contract, calling for a promise, was made in a letter and the acceptance was also made by letter, a contract was formed as soon as the letter of acceptance was placed in the mail. Since 1818 this rule has been generally accepted in our country and has been accepted by this Court.
Before extending this well-established rule to the instant case, however, its rationale deserves careful scrutiny to determine whether it is applicable to the instant situation.
The underlying reason for this rule has been stated as follows:
"[T]here is rational justification for the rule beyond the argument for certainty and stability [in the law of contract formation]. The situation involves two innocent parties, one of whom is subject to a burden in contracts by correspondence. If the acceptance was not completed until received by the offeror, he [the offeree] would have the burden. As the rule exists, the offeror may never know that an acceptance has taken place. As between the two parties, the offeror creates the power of acceptance and he may insist upon receiving the acceptance before the contract is formed. Since the offeror can control the risk involved whereas the offeree cannot, it does not seem unjust to place the burden upon him rather than the offeree.” Grismore on Contracts (rev ed), § 48, pp 67-68. See also, 1 Corbin on Contracts, § 78, p 333, and 1 Williston on Contracts (3d ed), § 81, p 265.
It is clear that the mailbox rule was first adopted as a rule for distributing the risk of failure of the mails in timely communicating an acceptance between two innocent parties negotiating a contract. As between the two parties, it was felt most just to place the risk on that party (the offeror) who had the power to avoid any such risk by specifically stating in the offer that no contract would be formed until the acceptance was actually received.
Such a situation does not obtain here. When MCL 600.5744(6); MSA 27A.5744(6) comes into play, we do not have two "innocent” parties seeking to form an enforceable contract. To the contrary, we have a party who has been formally adjudged in default on an existing, valid land contract and who is thereafter statutorily provided a period of time within which to cure the default.
As between these parties, Justice Levin would read the statutory language as placing what risk there is of late receipt of the moneys found due and owing upon the land contract seller who has no power to control or avoid such a risk. The plain meaning of the language of the statute, as under standable to laypersons and lawyers alike, neither demands nor supports such a construction.
The individual purchaser who has been adjudged in default on a land contract under this statutory provision cannot fairly be likened to the individual who makes an ordinary bill payment on the due date.
Before a land contract seller can even proceed to judgment under the summary proceedings act, the purchaser must actually be in default in the moneys due under, or other material breach of, the land contract. MCL 600.5726; MSA 27A.5726.
After such default, which is presumably known by the defaulting purchaser who is a party to the contract, the seller must serve the purchaser with a notice of forfeiture and allow the purchaser at least 15 days thereafter to pay any moneys due under, or cure any other material breach of, the contract. MCL 600.5728; MSA 27A.5728.
If the default is not cured within that time period, the seller may then proceed to trial after first serving the purchaser with a summons giving notice of the trial date to be held within 15 days of issuance of the summons but not less than 10 days after the summons is served. MCL 600.5735; MSA 27A.5735.
Finally, after the seller obtains a judgment for possession of the premises, the purchaser is allowed an additional statutorily prescribed time period, of 90 days or 6 months, within which to cure the default. MCL 600.5744(3); MSA 27A.5744(3). If the default is not cured "within the time provided”, a writ will issue restoring the seller to possession of the premises. MCL 600.5744(6); MSA 27A.5744(6).
At the time the judgment is obtained, the seller no longer has any control over what follows. If the default is cured "within the time provided”, possession of the premises will remain in the purchaser and the land contract will be reinstated. The purchaser, the party in default, controls the result. The risk distribution rationale of the mailbox rule does not support allowing such a purchaser to make "timely” payment by placing payment in the mails on the last day of the time provided.
1 cannot subscribe to the rule enunciated by Justice Levin. I read the plain meaning of the words "within the time provided” as being understood and understandable by purchasers in default on a land contract, as well as other lay persons, legislators and lawyers, to mean payment must be actually received by the seller on or before the last day provided for payment in the judgment awarded.
Clearly, in these land contract default situations, time is of the essence. Thus, payment must be made within the time provided, or not at all. Unlike contractual situations, where time will generally be deemed to be of the essence only when the parties have expressly made it so, here time is of the essence because the Legislature has expressly made it so. This has been done in recognition of the fact that the seller with a valid judgment has been placed in the anomalous position of waiting a specified period of time without benefit of possession of the premises and with the risk that payment may not be made in that period of time.
II
Because I hold that payment "within the time provided” requires actual receipt by the seller within that time, defendant did not make timely payment. Consequently, it is not necessary to decide whether the out-of-town, personal checks placed in the mail by defendant on the last day of the time provided constituted payment under the statute.
The Court of Appeals should be affirmed.
Fitzgerald, J., concurred with Ryan, J.
MCL 600.5744(6); MSA 27A.5744(6). See Part III for text.
The court rule provides:
"A judgment for possession shall include a statement as to the date when a writ of restitution may issue unless he pays the amount due and costs, or unless he appeals within ten days.” DCR 754.7.
Cooper makes no claim that the judgments do not comply with the court rule.
Records of a savings and loan association, apparently acting for the Birznieks in collecting the payments, contain notations which tend to corroborate Birznieks’ testimony that personal checks were not acceptable. Because we proceed on the basis of the district judge’s finding that the Birznieks had so advised Cooper, it is not consequential whether those records were admissible.
On appeal, the circuit judge said that there was evidence supporting the findings of the district judge and no error in applying the law.
See Keller v Paulos Land Co, 381 Mich 355, 359; 161 NW2d 569 (1968); Murphy v Frank P Miller Co, 229 Mich 162, 166-167; 200 NW 974 (Í924); Fosdick v Van Husan, 21 Mich 567, 575 (1870).
The Court said that it did not agree with Cooper’s effort to analogize "to insurance contracts and service of process in contending that the 'mailbox rule’ should be applied such that his payments should be deemed received as of the date postmarked”. It reasoned that "[t]his case significantly differs from [Cooper’s] examples by involving a judgment and a fixed period prescribed by statute within which the right of redemption must be exercised”. Birznieks v Cooper, 70 Mich App 482, 484-485; 245 NW2d 799 (1976) (emphasis in original).
The Court referred to Gordon Grossman Building Co v Elliot, 382 Mich 596, 603; 171 NW2d 441 (1969), where this Court, in construing provisions' of the Revised Judicature Act (MCL 600.3140; MSA 27A.3140) concerning circuit court foreclosure of mortgages and land contracts, declared that "absent some unusual circumstances” the statute should be strictly construed and its "clear and plain meaning” followed. The "clear and plain meaning” of "within the time provided” "requires actual receipt of tender before the time set for issue of the writ of restitution”. Birznieks v Cooper, supra, p 485.
We note that in foreclosure proceedings the time required to obtain judgment is generally much more extended than in summary proceedings which may be concluded in a matter of weeks. Also, 6 or 12 months is provided to cure the default as contrasted with 90 days or 6 months in land contract forfeitures and as little as 10 days in landlord-tenant cases.
The Court said that Cooper had no reason to believe, in light of the past dealings of the parties, that an uncertified personal check drawn on an out-of-state bank would be accepted as tender under the circumstance that checks for far smaller amounts than required to cure the defaults had been rejected. "Plaintiffs who had refused with cause to accept $75 personal checks from the defendant could not reasonably be expected to accept two checks totalling more than $1,300.” Birznieks v Cooper, supra, pp 485-486.
See Kerr v United States, 108 F2d 585 (CA DC, 1939); United Security Corp v Franklin, 180 A2d 505 (Mun Ct App, DC, 1962).
Payment may be mailed where, by the creditor’s express direction or assent, by the usual course of dealing between the parties, or by other facts from which such direction or assent may be inferred, the creditor has authorized the money to be thus delivered to him. 60 Am Jur 2d, Payments, § 17, p 622.
See Wayzata Enterprises, Inc v Herman, 268 Minn 117; 128 NW2d 156 (1964); Smith v American Mutual Liability Ins Co, 174 So 2d 878 (La App, 1965).
The United States Court of Appeals for the Fifth Circuit explained,
"[t]his is a sensible result, especially considering that historically the law of negotiable instruments is an outgrowth of the Law Merchant in which law, far more than accommodating itself to business necessities, was rather the product of those business practices. No harm lurks in this blending of law and the needs of modern day commerce. If the check is dishonored on presentment to the drawee, no timely 'payment’ has been made.” Duke v Sun Oil Co, 320 F2d 853, 861-862 (CA 5, 1963).
"[R]ules and statutes dealing with redemption are regarded as remedial in character and should be given liberal construction and application to permit a property owner who can pay his debts to do so, and thus make his creditor whole, and save his property.” United States v Loosley, 551 P2d 506, 508 (Utah, 1976).
The Court of Appeals said that the words "within the time provided” are clear and plain. It altogether begs the question to say that what is required to be done must be done "within the time provided”. The question is what must be done and that depends on the construction of the word "paid”.
The importance of interpreting words with a proper sensitivity to their context was underscored by Professor Corbin: "No word or group of words in any language has an 'objective’ meaning separate from and independent of its actual use by some person to convey his thought to another person”. 3 Corbin on Contracts (1971 Supp), § 572B, p 199.
"The words of a statute are to be understood in the sense in which they best harmonize with the subject of the enactment and the object which the Legislature has in view.” Enlich, Interpretation of Statutes, § 73, p 94.
"Of such statutes [remedial], as distinguished from penal statutes, more especially is it said that they are to be construed liberally, to carry out the purpose of the enactment, suppress the mischief and advance the remedy contemplated by the Legislature; i.e., and this is all that liberal construction consists in — they are to be construed 'giving the words * * * the largest, the fullest, and most extensive meaning of which they are susceptible.’ ” Enlich, supra, § 107, p 142.
"Remedial statutes are liberally construed to suppress the evil and advance the remedy. * * *
"What is called a liberal construction is ordinarily one which makes the statutory rule or principle apply to more things or in more situations than would be the case under a strict construction.” 3 Sutherland, Statutory Construction, § 60.01, p 29.
Const 1963, art 6, § 5; see Perin v Peuler (On Rehearing), 373 Mich 531, 541; 130 NW2d 4 (1964); In re 1976 PA 267, 400 Mich 660, 662-663; 255 NW2d 635 (1977); People v Jackson, 391 Mich 323, 336, 346; 217 NW2d 22 (1974); Taylor v Walter, 384 Mich 114, 130; 180 NW2d 24 (1970).
"Checks are a common means of payment. 'It is a matter of common knowledge that checks and drafts are usual and ordinary means of transferring money in the transaction of business.’ ” Mefford v Security Title Insurance Co, 199 Cal App 2d 578, 584; 18 Cal Rptr 877, 880 (1962).
There are some exceptions, e.g., options, but those are not customary transactions.
"Where the insured has under the circumstances an absolute right of revival or reinstatement, his act of mailing an application for revival or reinstatement, together with payment of any necessary premiums or dues, can be deemed an effective reinstatement as of the time of mailing.” 17 Couch on Insurance 2d, § 69:51, p 736.
GCR 1963, 107.3(3) provides that "[s]ervice by mailing is complete upon mailing”.
26 USC 7502(a)(1) provides:
"If any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date * * * js * * * delivered by United States mail to the agency * * * the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document, or payment, is mailed shall be deemed to be the date of delivery or the date of payment, as the case may be.”
The legislative history of the foregoing provision indicates the following intent by Congress in enacting it:
"Present law provides that where a claim, statement, or other document, which is required to be filed by a specified date is properly mailed, the postmarked date is to be considered as the date on which it was filed. This provision, however, does not apply to a return or to a payment of tax. The bill extends this rule to tax returns and payments.
"The provision of this bill which permits the Secretary of the Treasury to require the filing of tax returns at service centers would technically require many taxpayers (for example, those in Hawaii) to mail their returns and payments at a much earlier date in order to insure delivery by the due date. The existing timely-mailing-timely-filing provision was enacted in 1954. At that time the rule was a new concept with which the Internal Revenue Service had had no experience. For this reason, the Service was concerned with applying it to returns and payments because of the unforeseen problems which it believed might develop. Experience with the present provision since 1954 has allayed these fears, and in fact, the Service has in practice generally treated returns and payments which were mailed before the due date as being filed or paid on time.” Legislative History of PL 89-713, 1966 US Code Cong & Admin News, pp 3683-3684.
Charge account agreements do, indeed, provide that service charges will be assessed unless the payment is received by the due date, but that is expressly so stated and not left to construction. More importantly, the penalty for delay is a relatively small interest charge, not forfeiture of a substantial interest or equity.
See fns 6 and 11, supra.
See fns 8 and 9, supra.
See fn 9, supra.
Although Cooper so "paid” such amounts, since Birznieks did not deposit the checks Cooper is not now entitled to credit in such amounts against the amounts owing under the land contracts.
Kutsche v Ford, 222 Mich 442, 447; 192 NW 714 (1923). This rule was also recognized in Peck v Freese, 101 Mich 321, 323; 59 NW 600 (1894).
Furthermore, even if, as Justice Levin opines, "it is widely thought that communications postmarked on the last day are timely”, a conclusion that need not necessarily follow from the basic premise stated, the situations he - enumerates are inapposite to the instant situation facing the Court.
Timely payment of a judgment by a defaulting party to a land contract within a statutorily prescribed time limit is simply not analogous to regular payments of charge accounts, utility bills, mortgage or land contract installments, or taxes owing.
Nor is it analogous to a rule of law providing that payment of insurance premiums for reinstatement or revival of an insurance policy is effective as of the time of mailing, when the absolute right to such reinstatement or revival is provided either by contract or by virtue of a statute intended to regulate the practices of the insurance industry.
Finally, GCR 1963, 107.3(3) and 26 USC 7502(a)(1) do not necessarily support the conclusion that the general understanding is that the date of mailing controls the timeliness of an action. To the contrary, at least the court rule is equally susceptible to being interpreted as a recognition that date of mailing is not generally understood as controlling timeliness, and consequently any such rule must be expressly stated. Further, the statement from the legislative history of the Congressional act relies only on a stated, but unsupported, rationale that filing of claims, statements and other documents are considered timely if properly mailed on the specified dates. Filing of claims, statements or other documents are not akin to payment of a judgment for moneys due and owing under a land contract.
For a discussion of when time will be considered to be of the essence see Friedman v Winshall, 343 Mich 647, 656; 73 NW2d 248 (1955); Grade v Loafman, 314 Mich 364, 367-368; 22 NW2d 746 (1946); 17A CJS, Contracts, § 502(1), p 762, § 504(1), p 789; 91 CJS, Vendor & Purchaser, § 104, p 999; 17 Am Jur 2d, Contracts, § 333, p 770, § 335, p 773. | [
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Coleman, C.J.
On June 3, 1971 Sarah Grigg commenced this action in circuit court on behalf of herself and other Michigan BankAmericard holders who had incurred finance charges on accounts between June 3, 1969 and the date of filing. The substantive merits of plaintiff’s complaint have not been decided, so are not at issue. The sole question is whether the requirements of initiating a class action under Michigan statutes and court rules have been met. There is little Michigan precedential guidance as to such requirements, so it is understandable that attorneys and courts have presented a confusing combination of Federal and state law for analysis.
I. Case History
The plaintiff alleged that the defendant, a national bank doing business in Michigan, had levied finance charges higher than permitted by Michigan law. She alleged this violated 12 USC 85, which generally prohibits a national bank from charging interest rates higher than the rates per mitted by the laws of the state in which the bank is lócated. She asked the circuit court to enjoin the defendant permanently from charging such rates and to award her and the other affected BankAmericard holders the monetary damages authorized by 12 USC 86. She also asked for an award of costs and reasonable attorney fees.
After the defendant filed an answer denying the allegations in the plaintiff’s complaint, the plaintiff moved for summary judgment on the merits and for an order requiring the defendant to notify other potentially aggrieved BankAmericard holders of the pendency of the action. The defendant responded with a cross motion for summary judgment on the merits and a brief in opposition to the plaintiff’s motion to require notice. In this brief, the defendant argued that it should not have to issue notice unless it had first been found liable on the merits. The defendant also filed a motion for summary judgment claiming that as a matter of law, 12 USC 85, 86 did not permit a plaintiff to sue on behalf of other individuals to recover the statutorily authorized damages.
While these motions were pending, the defendant stopped using the billing practices of which the plaintiff complained. This effectively mooted the plaintiff’s request for injunctive relief.
The circuit court decided to rule only on the defendant’s motion for summary judgment con cerning the propriety of a representative lawsuit under 12 USC 85, 86. The court ruled that these statutes did not permit a plaintiff to sue in a representative capacity.
The plaintiff appealed and the Court of Appeals reversed in an unpublished per curiam opinion. Docket No 15,891 (June 22, 1973). The defendant appealed but this Court denied leave to appeal. 390 Mich 810 (1973). The United States Supreme Court denied the defendant’s application for a writ of certiorari. 419 US 840 (1974).
Upon return to circuit court, the plaintiff argued that the motions for summary judgment on the merits previously filed by the parties should be decided first. Then, if the defendant were found liable, the questions relating to the maintenance of a representative action could be decided. The defendant, on the other hand, argued that the merits should not be decided unless the court determined that the action could proceed on a representative basis.
The court chose to follow the defendant’s format and after further briefing and hearings ruled that the action would not be allowed to proceed on a representative basis because:
"1. There’s no common question of fact as to each member of the class and an analysis of the case reveals there could be different questions of law involved as to each member.
"2. The rights here are severable as each member of the class’s claim is different.
"3. For this Court to handle this case as a class action is totally unmanageable.
"4. It is not a superior method of litigating claims in this case. What the Court would be doing is trying thousands of small claim cases. In essence numerous mini trials within the class action itself.
"5. The plaintiff does not fairly or adequately represent the class in this case.
"6. Plaintiff in her deposition said that she wouldn’t pay the cost of notices to all members of the class estimated around $86,000 to over $100,000. She contemplated said notices to be mailed by and at the cost of the defendant.
"7. To require the defendant to send notices would be a horrendous and possibly annihilating punishment and most unjust.” (Opinion of the circuit court, May 30, 1975.)
The court also ruled that the plaintiffs individual claim for damages, which, it was said, only amounted to around $200, including interest from 1969, did not satisfy the amount-in-controversy requirement for circuit court jurisdiction. The court gave the plaintiff the option of having the case transferred to district court or having it dismissed altogether. The plaintiff elected not to proceed individually in district court and the case was therefore dismissed.
The plaintiff appealed but the Court of Appeals affirmed. 72 Mich App 358; 249 NW2d 701 (1976). Using a mixture of state and Federal law and procedure, the panel concluded that the plaintiff could not sue on behalf of the other potentially aggrieved BankAmericard holders because she was unwilling to pay for notice to the other holders, she was a secretary for some of the attorneys handling her case, and the case was unmanageable as a representative action and therefore not a superior method of litigating the individual claims. The panel also concluded that although the substantive merits of the case could have been decided first, the ultimate unmanageability of the case on a representative basis made it unnecessary to do so.
We remand to the trial court for further proceedings consistent with this opinion.
II. Facts
Although the substantive merits of the plaintiffs complaint are not involved in this appeal, some understanding of the defendant’s credit card operation and the billing practices that the plaintiff claims were illegal is necessary in order to analyze the procedural question presented.
A. Systems of Billing
The purchase of goods or services with a BankAmericard is a three-party transaction. The customer using the card receives the purchased items from a merchant. The merchant then sells the account receivable generated by the purchase to the defendant at a discount. The defendant then bills the cardholder for the full amount of the debt. In this case the cardholder’s first contract with BankAmericard provided for a finance charge of 1.5 percent per month (18 percent annually) on the unpaid balance. The subsequent contract was for .0493 percent per day.
Because the number of cardholders is very large, it is not economically feasible to bill them all on the same day. Therefore, the defendant divides the cardholders into smaller, more manageable groups and bills each group on a different day of the month. For example, group one might be billed on the first day of every month, group two on the second, etc. This day is called the billing date.
If the billing date for a particular group happens to fall on a Sunday or a holiday in a given month, the group is billed on the immediately preceding work day. The billing date for each group is the last day of that group’s billing cycle. The number of days in a group’s billing cycle will vary depending on the billing date, the number of days in the month or months spanned by the billing cycle and whether the billing date falls on a Sunday or a holiday.
During the time period pertinent to this appeal, the defendant’s BankAmericard holders were divided into 20 separate billing groups.
From June to October of 1969, the defendant did not impose a finance charge on purchases made with a BankAmericard if the cardholder paid for the purchases in full within 25 days of the cardholder’s billing date. Thus, for example, if a cardholder purchased $200 of goods or services in June, had a billing date of July 1 and paid the defendant $200 by July 26, no finance charge would be imposed. If, however, the purchases were not paid for in full within 25 days, the defendant would impose a finance charge. The finance charge was calculated by multiplying the amount not paid by 1.5 percent. Thus, in the above example, if the cardholder only paid $40 by July 26, the August 1 bill would include: (1) the $160 in principal still owed for the June purchases, and (2) a finance charge of $2.40 (1.5% X $160). If the cardholder had purchased another $100 of goods or services during July, this would also be included in the August 1 bill but without any finance charge. If the cardholder paid the total amount of the August 1 bill by August 26, no further finance charge would be imposed. If the full amount was not paid, another finance charge would be imposed on the amount remaining unpaid.
It was possible that the amount remaining unpaid upon which a finance charge would be imposed could include all or part of the previous month’s finance charge. However, because the defendant applied partial payments first to unpaid finance charges and then to principal, a cardholder would not have a finance charge imposed on the previous month’s finance charge unless the amount paid by the cardholder on the current bill was less than the amount owed for previous finance charges. In the example above, the cardholder would not have a finance charge imposed on the previous finance charge unless the cardholder paid less than $2.40 on the August 1 bill.
In October of 1969 the defendant modified its method of computing finance charges. If a bill was not paid in full within 25 days of the billing date, the defendant would compute the finance charge by multiplying the sum of the actual daily balances in the cardholder’s account during the billing cycle by .0493 percent.
In a 28-day billing cycle, a .0493 percent daily rate amounted to a cyclical rate of 1.3804 percent (.0493% X 28). In a 29-day billing cycle, it amounted to a 1.4297 percent cyclical rate. In a 30-day billing cycle, it amounted to a 1.4790 percent cyclical rate. In a 31-day billing cycle, it amounted to a 1.5283 percent cyclical rate. On a yearly basis, it amounted to a rate of 17.9945 percent.
B. Complaint
The plaintiffs complaint contained three distinct theories of recovery. The first theory was based on the fact that prior to August 20, 1969 (the effective date of the Banking Code of 1969, specifically, MCL 487.491; MSA 23.710[191]), no Michigan stat ute specifically established a 1.5 percent finance charge rate on credit card accounts. In this vacuum, the bank relied upon the Retail Installment Sales Act, MCL 445.862(c); MSA 19.416(112)(c) (not in excess of 1.7 percent per month), studied the rate charged in surrounding states, and set the finance charge on unpaid balances at 1.5 percent. It was the same rate charged by similar institutions around the country and in Michigan. The plaintiff, however, contended that during this period the defendant’s credit card operation should have been governed by MCL 438.31; MSA 19.15(1), the general Michigan law on ordinary interest rates, which set a ceiling of 5 percent per year or 7 percent per year if the loan agreement was in writing. Therefore, the plaintiff claimed that the parties’ contract for a 1.5 percent per month finance charge on the outstanding balance (18 percent per year) from June 3, 1969 to August 20, 1969 violated Michigan law.
The plaintiffs second theory of recovery was based on the defendant’s use of the .0493 percent daily rate to compute finance charges after October of 1969. The plaintiff claimed that the cyclical rate of 1.5283 percent during those months when there was a 31-day billing cycle violated MCL 487.491; MSA 23.710(191), which limits the finance charge on credit card accounts to "1.5% of the unpaid balance per month”, even though the total annual charge was less than the permissible 18 percent and the rate in 28-, 29- or 30-day billing cycles was less than the permissible 1.5 percent.
The plaintiffs third theory of recovery was based on the defendant’s practice of adding unpaid finance charges into the principal amount due and thereafter imposing a finance charge on the whole sum (although crediting payments first to any outstanding finance charge).
III. GCR 1963, 208
Whether the plaintiff can sue the defendant in a Michigan circuit court on behalf of herself and the other potentially aggrieved BankAmericard holders is a procedural question of state law governed by GCR 1963, 208. In analyzing this procedure, it is important to note that GCR 208 is different from its counterpart in the Federal courts, Federal Rule of Civil Procedure 23. Although there are some similarities between GCR 208 and the present Federal rule, the differences are substantial. Care should be taken not to confuse them. See generally, 7 Wright & Miller, Federal Practice and Procedure: Civil, §§ 1752-1753, and 1 Newberg, On Class Actions, §§ 1004-1008, 1216.
The plaintiff contends that GCR 1963, 208.1(3) permits her to sue the defendant on behalf of the other BankAmericard holders. It provides:
"If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may on behalf of all sue or be sued when the character of the right sought to be enforced for or against the class is
* * *
"(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.”
This section of the rule sets forth seven separate requirements which must be satisfied in order for an action to proceed on a representative basis. In essence, the requirements are:
1. There must be an identifiable class;
2. The number of persons in the class must be so large that it would be impracticable to bring them all before the court;
3. The person or persons seeking to represent the class must be members thereof;
4. The interests of the class must be adequately represented;
5. The right or rights sought to be enforced must be several;
6. There must be a common question of law or fact affecting the several rights, and
7. A common relief must be sought.
See generally 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Ch 20, pp 601-602.
A. Identifiable Class
The first clause of GCR 1963, 208.1(3) gives rise to the requirement that the group of persons whom the plaintiff seeks to represent must be identifiable. If the membership of the group is so amorphous that it cannot be definitely ascertained, then there is no "class” and the case cannot proceed on a representative basis.
It is not necessary that each member of the group be named in the complaint. It is sufficient if the members can ultimately be identified. As stated by Honigman & Hawkins, supra, p 602:
"The members of the class need not be specifically named, but they must be described adequately according to their common interests, in order to show that there really are other persons similarly situated and to permit identification of qualifying members of the class when the judgment is invoked for or against them.”
The fact that the membership of the group may change during the course of the litigation does not render the group unidentifiablé. If the members of the group can be identified at the time of judgment, the requirement that the group be identifiable is satisfied.
Whether a sufficiently identifiable group exists is a question of fact which must be decided on a case by case basis.
In the case at bar the plaintiff’s complaint described the group that she seeks to represent as "all other customers of Michigan National Bank who have incurred interest charges pursuant to their use of [the bank’s] credit cards * * * within the two years-prior to the institution of this lawsuit”.
This group is sufficiently identifiable, although with great difficulty as to individuals. The defendant possesses account records for each of its credit card customers, if only in microfilm form. These records are said to contain the information necessary to identify the members of the group, excepting perhaps 10% on which names and last known addresses are not available for miscellaneous reasons.
B. Number of Persons
In excess of 750,000 persons were holders of the defendant’s credit cards at one time or another during the time period framed by the plaintiffs complaint. These persons are potential members of the group that the plaintiff seeks to represent. The defendant has estimated that approximately one-third of these persons never incurred finance charges in connection with their use of the defendant’s credit cards because they always paid their bills in full within the allowable 25 days of their billing date. If this estimate is correct, approximately 500,000 cardholders did incur some finance charges. Although it is not clear at this point in the litigation (for reasons that will be delineated below) precisely how many of these 500,000 cardholders might ultimately be included in the class, the number could be sufficiently large to satisfy this requirement. Whether a class action would promote the convenient administration of justice remains to be ascertained.
C. Membership in Class
The rule states that "such of them [referring to the 'persons constituting a class’], one or more, * * * may * * * sue” on behalf of all. This language requires that a person seeking to represent the class must be a member thereof.
The plaintiff became a holder of one of the defendant’s credit cards in 1967 and continued to be a holder through June of 1971 when this action was commenced. Allegedly she incurred finance charges pursuant to each of the billing practices claimed to be illegal and so is a member of the class.
D. Adequate Representation
The requirement that the class must be adequately represented is an attempt to insure that the rights of the absent class members will be protected. The court’s role in assessing the adequacy of the representation will vary from case to case depending upon the extent to which the rights of the absent class members will be affected if the case is allowed to proceed on a representative basis. If, for example, the final judgment would bind all members of the class or bind all members who do not affirmatively indicate that they wish to be excluded from the class (commonly referred to as "opting out”), then the court would have to focus discrete attention upon the adequacy of notice and of representation. If, on the other hand, the judgment will bind only those members of the class who decide and affirmatively indicate that they wish to be included in the class and to be represented by the class representative and the chosen attorneys (commonly referred to as "opting in”), then there is less reason for such finely drawn surrogate protection by the court as Federal cases mandate. Those not affirmatively "opting in” are not bound by any judgment.
Michigan’s first court rule governing representative actions, Court Rule No 16 (1945) was adopted in 1945. Previously, a judgment in the limited types of representative actions permitted by Michigan case law (common rights were required) was binding on all members of the class.
Rule 16 broadened the range of cases in which Michigan courts could entertain class actions. However, neither Rule 16 nor the original version of FR Civ P 23 spelled out what the binding effect of a judgment would be in a representative action in which the rights involved were not common but several and distinct in nature, the only connection between the class members being a common question of law or fact. The drafters of the Federal rule believed that the binding effect of judgments was a matter of substantive law beyond the scope of their undertaking and therefore did not include this subject in the body of their rule. See 3B Moore’s Federal Practice, Appendix to Chapter 23, ¶ 23.11[1], p 23-2801.
Although the rules themselves were silent on the subject of binding effect, it was clear to the principal drafter of the Federal rule, Professor James Moore, that the judgment in a several rights/common question class action only bound those members of the class who chose to opt in. As such, the common question "class action” was not really a class action at all, in the traditional sense. It was instead a liberal permissive joinder device — an invitation to other similarly situated individuals to join an action and be represented by the class representative. Although many commentators and a few courts challenged this interpretation, it soon became the general rule. This anomaly — a so-called class action that did not necessarily bind all members of the class — came to be known as a "spurious” class action.
Honigman & Hawkins, supra, 605-606, says this about the binding effect of the judgment in a spurious class action:
"The standard formulation is that * * * the judgment in a 'spurious’ class action (sub-rule 208.1[3]) is binding only upon the persons actually named and served as parties. Barron & Holtzoff, Federal Practice and Procedure, § 572.
"According to this formulation, * * * a spurious class action is nothing more than a permissive joinder device or 'an action inviting joinder’. Ibid. Blume, American Civil Procedure, 1955, pp 357-358. Many commentators have urged that it should make no difference which type of class action is involved, so long as the requirements of the rule are met and adequate representation has been assured. According to this view, the judgment in all class actions would be binding, in personam, upon all the members of the class. Barron & Holtzoff, Federal Practice and Procedure, § 572. It is doubtful that this view could prevail as to * * * spurious class actions unless the members of the class had at least received notice of the action, if not formal service of process. * * *
"Implicit support may be found for this conclusion in sub-rule 208.5, which provides that a true class action can be dismissed or compromised only after notice has been given to all members of the class, whereas such notice is optional as a condition precedent to dismissal or compromise of a * * * spurious class action. The apparent reason for this distinction is an assumption that the disposition of the true class action would be binding upon the absentee members of the class, so that they are entitled to notice, whereas the final disposition in a * * * spurious class action will not be binding, in personam, so that notice is discretionary.”
In Paley v Coca Cola Co, 389 Mich 583; 209 NW2d 232 (1973), the opinion written by Justice Swainson and joined by Justice Brennan and this writer echoed the "standard formulation”:
"The type of class action involved in this case, the so-called spurious action (see GCR 1963, 208.1[3]) is actually a form of permissive joinder of parties.” Id., 607.
The other opinion, written by Justice Williams and joined by Chief Justice T. M. Kavanagh and Justice T. G. Kavanagh, did not discuss this subject, but it is clear that Justices Williams and T. G. Kavanagh would have agreed that the spurious action is a permissive joinder device. In Northview Construction Co v St Clair Shores, 395 Mich 497; 236 NW2d 396 (1975), the per curiam opinion signed by those two justices and by Justice Levin stated:
"An action commenced under the authority of GCR 1963, 208.1(3) is commonly known as a 'spurious’ class action. When the number of parties holding similar claims against a defendant is so large that it would be impracticable to bring each claim individually before the court, GCR 1963, 208.1(3) functions as a permissive joinder device. Paley v Coca Cola Co, 389 Mich 583, 607; 209 NW2d 232 (1973) (Opinion of Swainson, J.). It allows at least one named plaintiif to represent the class before the court and to litigate the issues common to the claims against the defendant.” Id., 508.
Although on rehearing, the dissent in Northview became the controlling opinion, 399 Mich 184; 249 NW2d 290 (1976), there was no disagreement with the conclusion that the spurious class action was "a form of permissive joinder of parties”. Paley, supra, 607.
On the basis of the foregoing, we conclude that the judgment in a spurious class action binds only those similarly situated individuals who affirmatively indicate to the court their desire to be included in the class (to "opt in”). This insures maximum protection of the rights of the absent class members in the cases where they need it most — cases in which the rights involved are not common but several and distinct in nature and in which the only connection between the members is a common question of law or fact.
As noted in part III C, above, the plaintiff purports to be a member of the class which she seeks to represent with respect to all three of the claims contained in her complaint. The case has been pursued through the circuit court, the Court of Appeals, this Court, the United States Supreme Court, back to the circuit court, back to the Court of Appeals and finally back to this Court. In addition, when offered the opportunity of either having her individual case transferred to district court or having it dismissed altogether along with the rest of the class, she elected dismissal, thereby enabling her to challenge the circuit court’s ruling that the case could not proceed on a representative basis.
The Court of Appeals recognized that there is little question as to whether this plaintiff "will vigorously pursue the rights of the class through qualified counsel”. As that Court stated: "Defendant does not challenge the adequacy of plaintiff’s counsel nor the plaintiff’s spirit”. Nevertheless, the Court of Appeals ruled that the plaintiff had not satisfied the requirement of adequate representation because: (1) she was not willing to pay the cost of sending personal first-class mail notice to each of the other BankAmericard holders, and (2) because she was employed as a secretary for some of the attorneys handling her case. (The attorneys also represented her husband in a similar class action regarding finance charges on delinquent revolving accounts with Robinson Furniture Company and represented her brother-in-law in two other credit card actions. The attorneys filed a total of seven such suits in Wayne County around the same time.)
1. Notice
The Court of Appeals panel believed that the plaintiffs willingness to pay for notice was relevant to the requirement of adequate representation because they concluded that the Due Process Clause of the Federal Constitution and a recent United States Supreme Court decision interpreting the amended version of FR Civ P 23 required the plaintiff to issue and pay for individual first-class mail notice before the case could proceed on a representative basis. The Court of Appeals based this conclusion on three Federal cases: Mullane v Central Hanover Bank & Trust Co, 339 US 306; 70 S Ct 652; 94 L Ed 865 (1950), Schroeder v New York, 371 US 208; 83 S Ct 279; 9 L Ed 2d 255 (1962) and Eisen v Carlisle & Jacquelin, 417 US 156; 94 S Ct 2140; 40 L Ed 2d 732 (1974).
In Mullane, a state court decree entered pursuant to a state accounting statute terminated all the rights of certain beneficiaries against the trustee of a trust fund. The United States Supreme Court indicated its understanding of the binding effect of the decree as follows:
"The effect of this decree, as held below, is to settle 'all questions respecting the management of the common fund.’ We understand that every right which beneficiaries would otherwise have against the trust company, either as trustee of the common fund or as trustee of any individual trust, for improper management of the common trust fund during the period covered by the accounting is sealed and wholly terminated by the decree.” Id., 311.
On these facts, the Court held that notice by publication to the beneficiaries was insufficient to satisfy the requirements of the Due Process Clause. The Court said:
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded ñnality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
* * *
"Exceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and postoffice addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.” (Emphasis added.) Id., 314-318.
In Schroeder, an individual plaintiff had been deprived of certain water rights by the defendant pursuant to administrative proceedings without having been personally notified by mail of the pendency of the proceedings. The United States Supreme Court again held that notice by publication was insufficient:
"The general rule that emerges from the Mullane case is that notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question. ” (Emphasis added.) Schroeder, supra, 212-213.
The Court did not discuss class actions at all.
In Eisen, the plaintiff attempted to maintain a class action pursuant to the amended version of FR Civ P 23. The amended version differs substantially from its predecessor (and GCR 208) in that it specifically states that the judgment in all types of class actions is binding on all members of the class who do not request exclusion and that notice "shall” be given to all class members. This was one of the most important changes made in the Federal rule. The majority in Eisen said this about notice:
"Rule 23(c)(2) provides that, in any class action maintained under subdivision (b)(3), each class member shall be advised that he has the right to exclude himself from the action on request or to enter an appearance through counsel, and further that the judgment, whether favorable or not, will bind all class members not requesting exclusion. To this end, the court is required to direct to class members 'the best notice practicable under the circumstances, including individual notice to all members who can be identiñed through reasonable effort. ’ We think the import of this language is unmistakable. Individual notice must be sent to all class members whose names and addresses may be ascertained through reasonable effort.
"As the Advisory Committee's Note explained, the Rule was intended to insure that the judgment, whether favorable or not, would bind all class members who did not request exclusion from the suit. 28 USC App, pp 7765-7768. Accordingly, each class member who can be identiñed through reasonable effort must be notified that he may request exclusion from the action and thereby preserve his opportunity to press his claim separately or that he may remain in the class and perhaps participate in the management of the action.” (Footnotes omitted. Emphasis added.) Eisen, supra, 173-176.
These three cases stand for the proposition that when a judgment will bind a given individual (when those not opting out are included in the judgment), the best notice practicable under the circumstances is required, including personal service by mail if the individual’s name and address are known or are easily ascertainable. They cannot fairly be read to hold that the Due Process Clause of the Federal Constitution or the original version of FR Civ P 23 and analogous state rules require that notice must also be sent to persons not affected by the judgment. All three cases involved binding judgments and none of them involved an application of the original version of FR Civ P 23 upon which GCR 208 is patterned.
Mullane, Schroeder and Eisen are, therefore, inapposite and not precedent for Michigan procedural requirements in which only those opting in are bound by the court’s judgment.
The words used in GCR 208 clearly indicate that in Michigan notice is not mandatory in spurious class actions. GCR 208.4 states:
"The court * * * may order that notice be given, in such manner as it may direct * * * .” (Emphasis added.)
GCR 208.5 states:
"A class action shall not be dismissed or compromised without the approval of the court. If the right sought to be enforced is one defined in sub-rule 208.1(1) [true class action], notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. If the right is one defined in paragraph * * * (3) of sub-rule 208.1 [spurious class action], notice shall be given only if the court requires it. ” (Emphasis added.)
This language stands in sharp contrast to the amended version of FR Civ P 23, which states:
"[T]he court shall direct to the members of the class the best notice practicable under the circumstances * * * ”. (Emphasis added.)
On the basis of the foregoing, the Court of Appeals incorrectly concluded that notice to the absent class members in accordance with Eisen, supra, is required as a prerequisite to the maintenance of a spurious class action in Michigan. There has been no specific judicial determination of a "manner” of notice in this case, although the trial court seems to have believed itself bound by the Federal court rule and resultant Federal case law.
The court was correct, however, in determining that costs of any notice must be borne by the plaintiff.
2. Propriety of Class Representative
The Court of Appeals panel also ruled that the plaintiff was not an adequate representative of the class because her státus as a secretary for some of the attorneys handling her case gave rise to an "appearance of solicitation and conflict of interest”. 72 Mich App 358, 373. Neither the circuit court nor the Court of Appeals specifically found that there had been any solicitation or that any actual conflict of interest existed.
The Court of Appeals was correct in assuming that the relationship between a class representative and the attorney or attorneys handling the case can be a relevant consideration in assessing the requirement of adequate representation. If that relationship would impair the representation of the absent class members, it can be the basis for a ruling that the requirement of adequate representation has not been met.
The plaintiff began working as a legal secretary in 1956 for the law firm handling her present case. She is now retired. During her deposition she was repeatedly asked whether she or her attorneys initiated the idea of suing the defendant individually or on a representative basis, and repeatedly she answered that it was she who approached her attorneys and not vice versa. She also stated in response to the defendant’s questions that she had never been offered any bonus, percentage of recovery or any other monetary consideration for bringing this lawsuit.
The Court of Appeals panel placed reliance on the fact that the attorneys handling the plaintiff’s case were also handling other class actions involving other plaintiffs and defendants in which credit card operations were being challenged and the plaintiff was aware of this fact before she approached her attorneys. The panel seemed particularly concerned with the fact that a case very similar to the plaintiff’s case was filed by her attorneys at the same time her case was filed. The panel said:
"We agree with counsel for the defendant that it is highly unusual that two separate banks were violating the interest laws in the same manner and that both plaintiffs would take their complaint to the same lawyer.” Id., 372.
These facts would justify a searching examination of the relationship between the plaintiff and her attorneys and if such examination revealed that this relationship would interfere with her representation of the class, the class portion of the suit could be dismissed. In addition to the option of dismissal, on remand the trial court may wish to consider GCR 208.4, which states, inter alia:
"The court at any stage of an action under sub-rules 208.1 or 208.2 may require such security and impose such terms as shall fairly and adequately protect the interests of the class or association in whose behalf the action is brought * * * ”. (Emphasis added.)
The Committee Notes to this section indicate that it was designed to empower trial judges to deal with "suspicious” or "vexatious” class actions. See Honigman & Hawkins, supra, 601.
E. Nature of Rights
The requirement that the right or rights sought to be enforced must be several in nature has not been contested in this case. Each of the potential members of the class may have a separate and distinct cause of action against the defendant. There is no common fund or obligation involved.
F. Common Questions
In order for a case to proceed on a representative basis under GCR 208.1(3), there must be "a common question of law or fact affecting the several rights” of the class members. The plaintiff contends that the following questions of law are common to the class, there being no common question of fact alleged:
1. Whether it was lawful for the defendant to charge interest on its credit card accounts at the rate of 1.5 percent per month prior to the effective date of MCL 487.491; MSA 23.710(191);
2. Whether Michigan law permitted the defendant to charge a daily rate of interest that resulted in a cyclical rate of 1.5283 percent in the 31rday billing cycles, under 1.5 percent in other cycles and less than the 18 percent permitted annually;
3. Whether Michigan law permitted the defendant to add unpaid finance charges into the principal amount due and thereafter impose a finance charge on the whole sum, although applying any payment first to the unpaid finance charges.
These questions are common to the members of the class defined by the plaintiff’s complaint. The answers to them will affect the members’ individual (several) rights of recovery in the same manner — either the members will be entitled to seek recovery subject to any defenses defendant might have, or they will not be — and they can all be answered without reference to the member’s individual account records or to any other individual differences between the class members. See, generally, 3B Moore’s Federal Practice, ¶ 23.10[5], pp 23-2701 et seq. and 7 Wright & Miller, supra, § 1763.
Although the answers to these questions alone will not be sufficient to settle the entire contro versy, there is no requirement in the rule that all questions necessary for ultimate resolution be common to the members of the class — there need only be "a common question of law or fact” to satisfy this portion of the rule. However, such matters as diversity of defenses, counterclaims, etc. may bear upon determination of whether this class action would promote the convenient administration of justice.
G. Common Relief
The plaintiff has requested the same relief for herself and for all of the other members of the class — the statutory damages prescribed by 12 USC 85, 86. Although each account may be based upon different cycles, dates of entry, sums to be computed, etc., double the finance charges imposed is the relief sought for all qualifying class members during the two-year period in question.
IV. Convenient Administration of Justice
This Court has recognized that there is one further requirement that must be met in order for a case to proceed on a representative basis. Most often this requirement has been referred to under the rubric of "the convenient administration of justice”. Essentially the requirement is an outgrowth of the equitable heritage of class actions and the realization that there are practical limitations on the judiciary’s capability to resolve disputes.
A. Michigan Cases
The "convenient administration of justice” re quirement was first applied by the Court in Young v Thendara, Inc, 328 Mich 42; 43 NW2d 58 (1950). The plaintiffs were attempting to sue the defendant on behalf of themselves and all other lot owners in a subdivision. The purpose of the suit was to establish the lot owners’ rights to use certain easements. The merits of each lot owner’s right to use the easements depended upon the terms of the lot owner’s deed and his or her source of title. This Court said:
"The diversity of sources from which titles to lots have been acquired by all other possible lot owners, the doubt as to the title of their grantors at the time their respective rights accrued, shows the impracticability of considering all owners of lots in the subdivision as a class for the purpose of decreeing their individual rights, in the case at bar.” Id., 48.
In Bajorek v Kurtz, 335 Mich 58; 55 NW2d 727 (1952), the plaintiffs were residential home owners in a certain section of Detroit. The defendant was a manufacturer of cement and related concrete products. The plaintiffs wanted to sue the defendant in one action and recover individual damages caused to their respective homes by the defendant’s operations. They argued that MCL 608.1; MSA 27.591 permitted them all to join in a single action. That statute permitted joinder when "sufficient grounds * * * appear for uniting the causes of action in order to promote the convenient administration of justice”. This Court ruled that the plaintiffs could not join together in one action:
"No claim is here made that the causes of action asserted by plaintiffs are joint. Rather, it is argued that to permit such joinder would 'promote the convenient administration of justice’. It will be noted that under the specific language of the statute 'sufficient grounds’ must appear in order to warrant the joinder of causes of action for the reason here urged. We think it must be said that grounds of such character are not present in the case at bar. We have a situation presented in which a number of persons assert that they have been injured severally in their property rights because of improper and unlawful acts on the part of defendants. It cannot be said with certainty that the same issues will be presented in all of the 25 cases alleged in the declaration and covered by the bill of particulars. Proofs may show damage in some cases but not in others, and defenses may exist against the rights of certain plaintiffs that are not available against other plaintiffs.” Id., 64.
Although Bajorek was based on a statute, this Court subsequently quoted from and referred to Bajorek in a case involving a class action under Rule 16 and ruled that in such a case "the same rule of law would apply”. Palmer Park Theater Co v Highland Park, 362 Mich 326, 344; 106 NW2d 845 (1961).
In Hardware Dealers Mutual Insurance Co v R H Hidey, Inc, 349 Mich 490; 84 NW2d 795 (1957), the Court shed some light on the meaning of the phrase "convenient administration of justice”:
"It must be capable of being said that the doing of justice as between the parties will be in some way favorably affected if the action in question is permitted.
"The language of the statute may not be construed as contemplating merely the expediting of the work of the court.” Id., 514.
The Court went on to deny joinder in part because "it does not appear that any one of these plaintiffs would have been prejudiced had it, or he, brought a separate suit for the recovery of damages claimed”. Id., 514. The Court added:
"We are concerned here with causes of action resulting, as it is claimed, from the invasion of property rights of a number of parties. It may not be said that the same questions will arise in each case. The averments of the declaration indicate that the conduct of the contractor claimed to have been wrongful in character extended over a period of 4 months. We may not assume that all of the abutting properties involved were injured simultaneously by defendant’s improper methods of operating. In some instances the question may arise whether the property claimed to have been damaged was actually abutting property within the meaning of the contractual obligations involved. Under the situation presented the statute does not permit joining the causes of action claimed to have arisen because of the contractor’s wrongful operations in the performance of its contract.” Id., 515.
In Freeman v State-Wide Carpet Distributors, Inc, 365 Mich 313; 112 NW2d 439 (1961), several hundred plaintiffs were attempting to sue the defendants for damages and other relief based on theories of fraudulent misrepresentation. The plaintiffs contended that either MCL 608.1; MSA 27.591 or Rule 16 permitted them to join together in one action. This Court rejected both of these contentions and again denied joinder:
"There is no claim here that plaintiffs assert a joint cause of action. It is claimed that the statute permits joinder of multiple causes of action even if not joint where the 'convenient administration of justice’ would thereby be promoted. A similar claim was made in the recent case of Hardware Dealers Mutual Insurance Co v RH Hidey, Inc, 349 Mich 490, 507, 516, in which separate causes of action asserted by a number of plaintiffs were included in 1 suit. A majority of this Court held that the convenient administration of justice would not be served by permitting joinder in the circumstances disclosed by that record. Both opinions for affirmance relied upon the fact that different questions of law and fact would be involved in the various claims or in defense thereto. Significantly, the dissenting opinion similarly acknowledged (p 506) that 'a complete or substantial disparity of issues of either law or fact and a complete or substantial disparity of defenses available against proposed joint plaintiffs would indeed affect the decision as to whether or not joinder promoted the convenient administration of justice’.
"In the case at bar the bill of complaint embraces separate causes of action arising out of several hundred transactions apparently occurring over a period of many months and perhaps several years. Presumably some of the misrepresentations alleged therein were made to some plaintiffs and not to others and some plaintiffs reasonably may have relied on them and others may not. It is evident that the circumstances of the execution of the purchase contracts and the promissory notes varied considerably so that some plaintiffs may have grounds for rescission not available to others. In short, the very substantial disparity of issues of law and facts between the multiple plaintiffs’ claims would render any judicial proceeding in which all were sought to by adjudicated simultaneously, incomprehensible to the litigants, their counsel and the chancellor as well.
"The same disparity of issues compels our ruling that this cannot be considered a class action under Court Rule No 16 (1945).
"The rule requires that, where the right sought to be enforced in a class action is not joint or common, or secondary, but there are involved instead several rights (as there are here), the object of the action must be adjudication of claims affecting specific property or there must be 'a common question of law or fact affecting the several rights and a common relief must be sought. Plaintiffs suggest that there is a common question of law relating to defendant bank’s status as a holder in due course and that a common question of fact exists because some or all of the plaintiffs relied upon certain television advertising used by the defendants and defendants otherwise followed a uniform pattern of conduct in their dealings with plaintiffs. Although the bank’s status as a holder of various promissory notes may be involved in each of the plaintiffs’ claims and although each plaintiff was subjected to the same advertising or other uniform pattern of conduct, the defendants’ liability to each plaintiff will depend upon speciñc facts which, by the nature of these transactions, cannot be common to all plaintiffs or to any substantial number of them.” (Emphasis added.) Id., 319-321.
The principle which emerges from these cases is that when a court is faced with the question of whether a particular lawsuit can proceed on a representative basis, it must take into account the practical problems that will arise if the case is allowed to proceed on a representative basis.
B. Case at Bar
Two major practical problems will arise if this case is allowed to proceed on a representative basis and the plaintiff ultimately prevails on the merits. The first problem involves the identification of the BankAmericard holders who are actually entitled to some recovery. The second involves the computation of exactly how much money, if any, each and every such cardholder would be entitled to receive, including the computation of alleged counterclaims on approximately 20,000 accounts.
As noted earlier, over 750,000 persons were holders of the defendant’s credit cards at one time or another during the time period framed by the plaintiff’s complaint. Not all of these persons would be entitled to recover damages from the defendant. According to the defendant, approxi mately one-third, or roughly 250,000, of these persons never incurred interest charges. These persons would not be entitled to relief. In addition, corporations and other business entities that acquired credit cards for their employees would not be entitled to recovery. See MCL 450.78; MSA 21.78 (repealed by 1972 PA 284, now MCL 450.1275; MSA 21.200[275]) and MCL 438.61; MSA 19.15(71). Also, it appears that the persons whose credit card accounts were purchased by the defendant from retail stores (estimated at over 165,-000) would also not be entitled to recovery, at least with respect to interest charges incurred before the accounts were purchased.
The defendant contends that it or the circuit court would have to examine each of the 750,000 BankAmericard accounts to determine which cardholders would be entitled to recover and that this process would be extremely burdensome and exacerbated by the unsatisfactory nature of the account records. According to the defendant, the records of that time are on microfilm and must be examined manually. They are not amenable to the use of computers or other modern data processing systems. There also is the probability that proofs in addition to the records would be required. The defendant estimates that this identification process would take many years (4,955 man-years) of labor to complete.
Assuming that the accounts must be reviewed manually and that other proofs would be required, it is still not a necessary conclusion that this process would be extremely burdensome. The only accounts that would have to be examined are the accounts of those persons who chose to opt in. The persons who did not affirmatively join would not be involved in the case. If only a small number of cardholders should opt in, the burden would be much less than that described by the defendant. There might not even be enough to constitute a viable class in light of problems in pursuing the case on a representative basis. This would be a decision for the trial judge. At this point in the case, we have no way of knowing how many cardholders might opt in if given the opportunity. We cannot say that no matter how few cardholders opt in, the practical burden of identifying the cardholders entitled to relief would be so great that the case cannot proceed on a representative basis.
The second major practical problem concerns the computation of individual damages. Because each BankAmericard holder’s account history is different with respect to purchases, payments and amount of finance charge incurred, it would be necessary to examine the accounts individually in order to determine the exact amount of damages due, if any. In addition, the defendant alleges that it would have approximately 20,000 counter-claims involving members of the plaintiff class and that other factors could reduce or preclude any recovery. The defendant again contends that it and/or the circuit court would have to examine manually each of the 750,000 accounts and compute the amount of illegal interest charged and that this would take many more years of labor to complete.
Again, the defendant is not necessarily correct. The only accounts that would have to be examined if the bank were liable would be the accounts of those persons who not only chose to opt in, but who also were identified as eligible for recovery. The burden of computing individual damages would depend upon how many cardholders opted in and how many of those, if any, would be found eligible. At this point there is no way of our knowing how great this burden might be. We also do not know if there would be defenses or counterclaims against any of the persons who might choose to opt in.
Concern has been expressed over the possibility that this lawsuit was instituted and prosecuted as a class action more for the purpose of generating large legal fees for the plaintiff’s attorneys than for the purpose of vindicating the rights of the other class members. This may be true, but there are other ways to prevent abuse of the class action device that do not involve precluding all of the class members, some of whom may legitimately wish to sue, from proceeding on a representative basis. First, depending upon the number of legitimate class members who opt in, the court may dismiss the class portion of the suit. Second, the court is not bound by any fee agreement entered into between the representative plaintiff and her attorneys, excepting as to her personal contingent fee contract. See Bond v Ann Arbor School District, 383 Mich 693, 705; 178 NW2d 484 (1970), where this Court remanded a class action to circuit court for entry of judgment and an award of attorney fees "as shall be set forth in [an] itemized statement * * * and approved by the circuit judge” (emphasis added). The plaintiff in the case at bar has only requested an award of "reasonable” attorney fees. Reasonableness of the fees would depend primarily upon the amount of time the attorneys spent on the case and upon the nature and extent of the benefit conferred upon the intervening class members. Such a fee, plus costs, would be payable from the proceeds of the judgment prior to computation for distribution.
V. Conclusion
On the basis of the foregoing, we conclude that the practical burdens involved in allowing this case to proceed on a representative basis may preclude the plaintiff from suing on a representative basis, but these judgments cannot be intelligently made on the basis of the existing record.
The primary insufficiencies have arisen from a partial, but fatal, reliance upon the amended version of FR Civ P 23 and those Federal cases based upon the necessity of affording due process for absent class members who would be bound by a court’s judgment if they did not affirmatively exclude themselves (opt out) from the litigation. Personal service when possible or "the best notice practicable under the circumstances” is required under that rule.
Because this claim does not qualify for Federal jurisdiction, it is brought in a Michigan court and is subject to state law and rules of procedure applicable to spurious class actions. Under Michigan law and procedure, persons who do not affirmatively join (opt in) the litigation are not bound. They are not represented in or touched by the suit, so their due process rights are not affected.
We therefore reverse the Court of Appeals and remand the case to the circuit court with the following instructions:
1. The plaintiff, at her expense, may issue such notice as she wishes or as the court directs;
2. The court shall set a reasonable time period within which class members must opt in in order to be included in the case;
3. After the time period set by the court has expired and after such briefing and argument as is deemed necessary by the court, the court shall rule on the question of whether allowing the case to proceed on a representative basis will promote the convenient administration of justice, in light of the principles discussed in this Court’s opinion and whether plaintiff is an adequate representative of the class..
This Court retains no jurisdiction.
Kavanagh, Williams, Ryan, and Blair Moody, Jr., JJ., concurred with Coleman, C.J.
Fitzgerald, J., took no part in the decision of this case.
Addendum
Coleman, C.J.
The dissent asserts that "the view ultimately accepted by most courts” was that intervention could occur after a judgment on the merits. The official committee notes to the 1966 revision of FR Civ P 23, written by those intimately involved with the rules, offers a somewhat different picture:
"Hitherto, in a few actions conducted as 'spurious’ class actions and thus nominally designed to extend only to parties and others intervening before the determination of liability, courts have held or intimated that class members might be permitted to intervene after a decision on the merits favorable to their interests, in order to secure the benefits of the decision for themselves, although they would presumably be unaffected by an unfavorable decision.” (Emphasis added.)
Professor Moore, the principal drafter of old FR Civ P 23, offers a similar assessment:
"Some courts * * * subscribed to the view that members of the class would be permitted to intervene after an adjudication on the merits favorable to their interests, in order to secure the benefits of the decision for themselves, although they would not be affected by an unfavorable decision.” (Emphasis changed; footnotes omitted.)
Professor Moore’s analysis of this theory of one-way intervention is illuminating:
”It is submitted that this theory was erroneous. If the decision was not res judicata for or against those not parties, it should have run only to the benefit of those who had intervened before a trial on the merits. Otherwise other members of the class might have remained on the sidelines while the parties litigated the issues, with no risk of being bound by an unfavorable decision, and then have come in to take advantage of a favorable ruling.” (Emphasis added; footnotes omitted.)
Footnote 1 of the dissent quotes from the majority opinion. The quotation omits a pertinent footnote from the majority opinion (footnote 7). The cases cited in that missing footnote explain the situation of a changing class, especially where the changes are caused by the death of an original class member and the devolution of that member’s interests to others.
"Any association may take, receive, reserve, and charge on loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, * * * .”
"The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same: Provided, That such action is commenced within two years from the time the usurious transaction occurred.”
"Banks may collect interest and charges on loans as follows:
"(a) On any loan made pursuant to an existing credit card arrangement or other agreement existing prior to such loan whereby the bank honors the borrower’s draft, pays or agrees to pay the borrower’s obligations, purchases the borrower’s obligation, or advances money to or for the account of the borrower, and in which the loan finance charges are not precomputed but are computed from time to time on the basis of the unpaid balances, interest, and charges in a combined amount of not to exceed 1.5% of the unpaid balance per month.”
"A retail charge agreement may provide for, and the seller or holder may then, notwithstanding the provisions of any other law, charge, collect and receive, a time price differential for the privilege of paying in installments thereunder, in an amount not exceeding 1.7% of the unpaid balance per month. The time price differential under this subsection shall be computed on all amounts unpaid thereunder from month to month, which need not be calendar months, or other regular periods; * * * .”
"The interest of money shall be at the rate of $5.00 upon $100.00 for a year, and at the same rate for a greater or less sum, and for a longer or shorter time, except that in all cases it shall be lawful for the parties to stipulate in writing for the payment of any rate of interest, not exceeding 7% per annum. This act shall not apply to the rate of interest on any note, bond or other evidence of indebtedness issued by any corporation, association or person, the issue and rate of interest of which have been expressly authorized by the public service commission or the securities bureau of the department of commerce, or is regulated by any other law of this state, or of the United States, nor shall it apply to any time price differential which may be charged upon sales of goods or services on credit.” (Emphasis added.)
GCR 1963, 208 is patterned after the original version of FR Civ P 23 promulgated in 1938 and has not been amended to reflect the sweeping changes made in the Federal rule in 1966.
See American State Savings Bank, Trustee, v American State Savings Bank, 288 Mich 78, 85-86; 284 NW 652 (1939), and Detroit v Detroit United Railway, 226 Mich 354, 369-370; 197 NW 697 (1924).
See Dipboye v Acchione, 351 Mich 550, 554; 88 NW2d 611 (1958).
See Dipboye v Acchione, supra; American State Savings Bank, Trustee, v American State Savings Bank, supra; Detroit v Detroit United Railway, supra; and GCR 1963, 208.4.
Court Rule No 16 (1945), like GCR 1963, 208, was patterned after the original version of FR Civ P 23.
See, for example, International Typographical Union v Macomb County, 306 Mich 562; 11 NW2d 242 (1943). The common nature of the rights involved in such cases virtually guaranteed adequate representation and justified a broad binding effect. As the Court in the case above said in the course of holding that a previous class suit bound all members of the class:
"We quote from what we said in our opinion in American State Savings Bank, Trustee, v American State Savings Bank, 288 Mich 78, because we feel that what we said is applicable here:
"There was no issue that could be raised by petitioner in such circumstances that would not affect all other depositors or holders of certificates in the same way. One certificate holder could not have greater rights as to his claim than another, and what would have been a defense or answer to the bill for one would have been the same for another. Their rights and defenses were identical. Petitioner was a member of the class represented by the named defendants.’ ” Id., 576.
See, also, Saginaw v Consumers Power Co, 304 Mich 491; 8 NW2d 149 (1943).
See Dipboye v Acchione, supra, 554 and Honigman & Hawkins, supra, 605.
See 3B Moore’s Federal Practice, ¶ 23.11[3], pp 23-2851, et seq. See, also, Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 25 Georgetown L J 551, 571 (1937).
See 3B Moore’s Federal Practice, supra, ¶ 23.10[3], pp 23-2601, et seq.
See 7 Wright & Miller, supra, § 1752, p 525, 7A Wright & Miller, § 1789; Advisory Committee Notes to Amended FR Civ P 23, reported at 39 FRD 69, 98, 99 (1966); 1 Newberg, supra, § 1216, pp 316-318; Homburger, State Class Actions and the Federal Rule, 71 Columbia L Rev 609, 627-628 (1971).
72 Mich App 358, 368.
Ibid.
See the amended version of FR Civ P 23, §§ c(2) and c(3), which states:
“(2) In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.
"(3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.”
Also see the Advisory Committee Notes to Amended FR Civ P 23 reported at 39 FRD 69, 98-99 (1966).
72 Mich App 358, 371-372.
Compare International Typographical Union v Macomb County, supra; American State Savings Bank, Trustee, v American State Savings Bank, supra; and Detroit v Detroit United R Co, supra.
See, generally, 3B Moore’s Federal Practice, supra, ¶[ 23.10[6], pp 23-2721, et seq., and 7 Wright & Miller, supra, § 1752, pp 536-537.
See GCR 1963, 208.4.
3B Moore’s Federal Practice, p 23-31.
Id., Appendix to Chapter 23, p 23-2854.
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Levin, J.
The question is whether a land contract seller who sends notices of intent to forfeit and of forfeiture has made an irrevocable election requiring him to accept possession of the property when tendered by the purchaser in lieu of money damages for breach of the contract.
We hold that while the seller may not accept or take possession and still seek money damages, he may, even after sending notice of forfeiture, refuse tender of possession and either commence an ac tion for money damages or for foreclosure of the land contract.
One can agree with our colleagues that § 5750 does not evince a "clear and plainly expressed legislative intention to abrogate the common-law rule” without agreeing with their conclusion that sending notice of forfeiture is an election of remedy barring enforcement of the contract. Even if the Legislature did not intend to abrogate the common-law rule, neither did it evince a clear and plain purpose to retain it. It at least left the question of the effect of sending a notice for this Court to resolve, as it does so many other questions.
In all events, it is for this Court to decide whether a common-law rule shall be retained unless the Legislature states a rule that is inconsistent with or precludes a change in the common-law rule. Moreover, practice and procedure in the courts is constitutionally confided to this Court.
Strict adherence to the common-law rule that forfeiture of a land contract is an election of remedies ignores the many changes in the practice since the common-law rule developed and often causes an unjust result.
Sellers no longer are at liberty immediately after forfeiture of a land contract to seize possession of premises and put purchasers out on the street. Forfeiture can be effected only upon observance of procedures which provide land contract purchasers with protections similar to, in many cases equal to or better than, those provided mortgagors.
Mortgagees may obtain a deficiency judgment, whether the foreclosure is by action or advertisement. While the statute precludes a land contract seller from seeking a deficiency judgment if he obtains a writ of restitution and (by implication) if he otherwise obtains possession of the premises, it does not in terms require that result where he has merely announced a forfeiture of a land contract.
Forfeiture of the contract is a prerequisite to commencement of summary proceedings for possession of the premises. Thus, a seller wishing to avail himself of the remedy of summary proceedings must first send notice of forfeiture. It does not follow that the consequence of sending notice of forfeiture should be an irrevocable election precluding an action for damages for nonperformance or an action to foreclose with a view to obtaining a deficiency judgment.
While the seller has other options — he can commence an action for money damages or to foreclose —such actions are, by comparison with summary proceedings, cumbersome, lengthy and therefore frequently ineffectual.
In the context that summary proceedings are the customary form of action against a defaulting purchaser, forfeiture should not, despite the formal language of notices of intent to forfeit and of forfeiture (which we could henceforth change by court rule), be viewed as anything other than a condition precedent to the commencement of summary proceedings. The function of the notices is primarily to inform the purchaser that unless he cures the delinquency he faces court action.
Sending a notice of forfeiture is, except in the extraordinary case, but an early step in a seller’s often long drawn out efforts to obtain compliance by a delinquent purchaser with his obligations under the contract. If the purchaser’s response to the notice is, atypically, 'T am willing to surrender my equity”, or if he so responds after the commencement of summary proceedings, the seller must, indeed, by reason of the statute, make an election. He is then required to decide whether to accept possession or to seek a deficiency judgment.
I
In the instant case the land contract concerned an apartment building located at 1550 Seward, one and a half blocks east of Twelfth Street, in Detroit.
The purchase price was $40,000, with no down payment, payable with interest at 7% per annum in monthly installments of $400 beginning January 1, 1970, and the entire purchase money and interest was payable within 8 years from the date of the contract. The contract included all stoves, refrigerators and other appliances and goods located on the premises.
It was stated that "a City of Detroit inspection dated 8/12/69 consisting of 68 items in 7 pages” had been made, and the purchasers agreed to correct "all violations of record” within six months as "part of the consideration of purchase price”.
Installments of principal and interest were paid in 1970 and 1971. The principal balance on October 1, 1971, was $36,386.10.
About one year later, September 19, 1972, at a time when 12 installments at $400 ($4,800) plus taxes and insurance were in default, the sellers sent the purchasers notice of intention to forfeit the land contract. When the ten days for response expired on September 29, 1972, notice of forfeiture was sent.
The purchasers responded by letter to the sellers’ attorney enclosing a quit-claim deed. The deed stated that it was "given to surrender and deliver up possession of said premises pursuant to” the notice of forfeiture. The letter suggested that the sellers "make immediate arrangements for care of the building and with the tenants. Mr. Stuart J. Montgomery has been the caretaker of the premises, but we believe he will be leaving shortly. Mr. Ben Gruskin was previously informed that the boiler needed repairs”.
Six days later, October 25, 1972, sellers’ attorney responded by letter to the purchasers’ attorney, returning the quit-claim deed, stating that it had been "refused by my clients”. The stated reason for refusal was that demand had been made for surrender of possession on September 19, "which your clients did not see fit to do until long after notice of forfeiture was served upon them”. The letter continued:
"My clients have elected to institute deficiency judgment proceedings in the Wayne County Circuit Court for some $36,000 balance due, plus interest.
"Investigation further indicates that your clients have totally milked the building and that it is presently in a poor state of repair with several building and health code violations. Under these circumstances, it is believed that your 'surrender of possession’ by delivery of the enclosed deed is for the sole purpose of escaping liability for these violations and perhaps some civil liability.”_
The purchasers’ attorney responded the following day that the deed was delivered in compliance with the demand for possession. "Your clients are, therefore, in possession of the real estate.”
The purchasers’ motion for summary judgment on the ground that the sellers had elected their remedy and may not sue in the circuit court for deficiency was denied by the circuit judge who stated that § 5750 "provides, in the absence of a judgment in summary proceedings, the service of a notice of forfeiture is not a bar to circuit court foreclosure of land contract proceedings”.
The sellers’ motion for summary judgment claimed that, by reason of the building code and other violations, the City of Detroit had torn the building down and had placed a lien on the property for the cost of demolition, an amount greater than the value of the land. The property in question was located in an area of unoccupied and vandalized apartment buildings in various states of disrepair, some of which had been torn down by the city. It was opined that the property was without value.
Purchasers responded that the decreased value of the property was the result of the demolition of the building by the city, if such demolition had taken place, and that the demolition was the result of the sellers’ failure to act upon notices sent by the city to the sellers after they had regained possession of the property from the purchasers.
The sellers’ motion for summary judgment was granted and judgment entered in the amount of $36,386.10 principal, $5,305.53 interest and costs, with interest from November 1, 1973. The Court of Appeals reversed, holding that the common-law rule had not been changed by the statute and that sending of the notice of forfeiture was an election of remedies precluding an action to foreclose.
II
Land contract purchasers generally do not willingly surrender possession or forfeit their equity. Most sellers do not seek a return of the property, but payment.
There is no reason to burden the circuit courts with actions to foreclose land contracts. Land contract sellers should not be encouraged to commence such proceedings.
Since the seller’s legitimate interests are generally protected by summary proceedings, he should not be constrained to commence foreclosure proceedings unless it appears that the purchaser does not wish to preserve and is willing to surrender his equity. There is no reason to put him to an election when he does not yet know whether the purchaser intends to protect his equity.
Suppose that a seller were to commence a circuit court action for foreclosure. In the Wayne Circuit Court such an action would not come to trial for three years or more. The seller’s attorney could move to advance, but the purchaser’s attorney might well respond that the judge should, in the exercise of discretion, deny the motion because the case belongs in the Landlord-Tenant Division of the Common Pleas Court where the purchaser’s interests will be better protected.
A circuit judge may refuse to advance, with the result that the seller might have to wait more than three years, perhaps four or five years, before his case comes to trial. In the meantime, installments are not paid, taxes may go into default and insurance may be unpaid.
If the seller commences an action for the unpaid installments in the Common Pleas Court, that too may take two or three years to come to trial unless the cause is advanced. If the seller obtains a money judgment he may find that the purchaser is judgment-proof except, possibly, for his purchaser’s interest under the land contract, but that might also by then be encumbered.
Under the circumstances which prevail, sellers understandably commence summary proceedings with a view to obtaining a resumption of the installment payments. By comparison with an action for foreclosure or money damages, such proceedings move expeditiously and generally accomplish their purpose of persuading the purchaser to cure the delinquency.
If it appears that the purchaser does not desire or intend to perform and is willing to surrender his equity, then the seller must make a decision and, under the statute, is put to an election of remedies. He may accept possession or, if he wishes to obtain a deficiency judgment, abandon the summary proceedings in favor of foreclosure action.
III
The statute does not require the result reached by the Court of Appeals. Insofar as the common-law rule is different, it may, like any other judge-made rule, be changed.
What should be borne in mind is that sending notice of forfeiture does not under the law today effect a forfeiture. The purchaser is protected by the statute from the effect of the notice of forfeiture.
At common law sending notice of forfeiture did forfeit the contract. The seller thereupon became entitled to possession of the premises. Actions for ejectment, trespass and self-help followed. Purchasers were summarily put out without opportunity to cure the default.
Today the significance of sending a notice of forfeiture is altogether different. Except for the rare case where the purchaser wishes to take advantage of the common-law rule to avoid performance of his obligations, it functions, as does the notice of intention to forfeit, as a warning that the seller is about to do something unless the deficiency is cured. A purchaser who receives a notice of intention to forfeit or a notice of forfeiture is simply advised that the seller is impatient and is about to take action because of the delinquency.
The purchaser is protected. The seller cannot evict merely because he sent notice of forfeiture. The seller must, rather, send the notice as a condition precedent to commencement of summary proceedings. If summary proceedings are commenced, the purchaser may still cure the default at any time during the proceedings, and, indeed, as late as three or six months (depending upon the amount theretofore paid) after the conclusion of the proceedings.
The common-law rule has a certain logic to it— one should not be able to both forfeit a contract and enforce it. The fallacy in the logic is the assumption that today the mere sending of notice of forfeiture does in fact forfeit a land contract.
Today inconsistency in pleadings is permitted, inconsistent remedies may be sought and alternative relief granted. The concept of election of remedies has undergone considerable change in recent years. This development in the jurisprudence, eliminating artificial rules regarding consistency of remedies, gives secured creditors generally alternative remedies.
The statute does not, in terms, characterize the seller’s action as an election of remedies until a writ of restitution in fact issues. It is far from clear that the Legislature did not intend to change the common-law rule. In all events, it did not preclude a change in the common-law rule. We are at liberty to change the common-law rule. Doing so would not be inconsistent with any provision of the statute, and would be entirely consistent with it.
The statute says that even a judgment for possession in summary proceedings after forfeiture "does not merge or bar any other claim for relief, except * * * for money payments due or in ar rears under the contract at the time of trial [emphasis supplied]”. Thus, although a judgment for possession has entered, the seller may still seek other relief.
The statute provides further that a judgment for possession after forfeiture "which results in the issuance of a writ of restitution shall also bar any claim for money payments which would have become due under the contract subsequent to the time of issuance of the writ [emphasis supplied]”. Thus, although a judgment for possession has entered, until a writ of restitution issues, the seller may seek to recover additional amounts from the purchaser.
Under the defendants’ construction, if the seller takes any action other than the extraordinary action of commencing an action for a money judgment in district, common pleas or circuit court or an action for foreclosure in circuit court, the purchaser may at any time during the course of the summary proceedings — unless the default is fully cured and the proceedings are thereby terminated —surrender possession, and the purchaser has no alternative but to accept. That is at least arguably inconsistent with the statute which provides that it is not until the writ of restitution issues that the equitable right of redemption is foreclosed and any claim for money payments which become due under the contract subsequent to the time of issuance of the writ is barred.
Our colleagues refer to the Law Revision Commission report recommending changes in the procedures relating to summary proceedings for pos session of premises. The language submitted by the Law Revision Commission would have made the judgment for possession the final act, while § 5750 as enacted by the Legislature makes a judgment for possession only a bar to "any claim for money payments due or in arrears under the contract at the time of trial”, and defers until issuance of a writ of restitution a bar to "any claim for money payments which would have be come due under the contract subsequent to the time of issuance of the writ”.
IV
Concern has been expressed that unsophisticated land contract purchasers may be taken advantage of if we abrogate the common-law rule. A seller could obtain possession of the property, attempt to sell it and, failing to do so, could commence foreclosure proceedings and obtain a deficiency judgment.
A land contract seller may not take possession of the property and attempt to sell it and, if unable to do so, seek then to foreclose. The seller is required to make a choice. That is not the issue.
The issue is when should he be required to make that choice and whether he makes that choice irrevocably when he takes the steps that the law requires him to take as a condition precedent to commencing summary proceedings. The question is whether today he should be put at a disadvantage by having to make an election before he knows whether the purchaser wishes to maintain the contract and to make the required installment payments now that in many counties because of court congestion the only practical remedy for determining whether the defaulting purchaser will adhere to the terms of the contract is summary proceedings.
V
It is manifest that the sellers did not intend to waive the personal liability of the purchasers. After a year without payment, they took preliminary steps in an effort to obtain payment of the defaulted installments. The purchasers’ response was to offer to return the property to the sellers. If the sellers had accepted that offer, they would, indeed, under the statute have elected a remedy and could not have sought a deficiency judgment.
The policy of protecting purchasers who are in difficulty does not require that a seller’s pre-suit notices be transformed into an irrevocable election. Neither consistency nor fairness and the protection of purchasers’ rights, requires retention of the common-law rule.
We do not, however, direct enforcement of the summary judgment for over $40,000 granted the sellers. The facts and circumstances should be further developed, especially since we are announcing a change in the common-law rule.
We reverse the Court of Appeals, vacate the summary judgment, and remand to the circuit court for further proceedings consistent with this opinion.
Coleman, C.J., and Kavanagh, Fitzgerald, and Ryan, JJ., concurred with Levin, J.
MCL 600.5750; MSA 27A.5750.
MCL 600.5726; MSA 27A.5726.
It was a printed form stating that by reason of the default, "you have forfeited your rights thereunder” and if the default is not cured "the undersigned will exercise their option under the said contract to declare said land contract forfeited” and that the purchasers will be required to deliver possession of the premises.
This notice was also a printed form which stated that by reason of the default the sellers elected "to declare * * * said land contract forfeited, effective 15 days after service of this notice”. Unless the default was cured, the purchasers would be required to deliver possession of the premises.
The letter continued that "[r]ather than play the charade of sending the deed back to you and your sending it back to us, we are holding the deed for your clients. You may have it at any time”, and then offered to accept service of process in the event of suit.
In a circuit court action, the seller can, if the land contract so provides (the standard forms of land contract do), accelerate the balance and require the purchaser to pay the entire amount of the land contract balance. In summary proceedings, acceleration is not permitted and the purchaser can cure the default by paying the installments in default.
We note that mortgage foreclosure by advertisement is as expeditious as most summary proceedings, and not subject to judicial supervision unless the mortgagee seeks a deficiency judgment, in which event the adequacy of the bid price can be inquired into, MCL 600.3280; MSA 27A.3280.
A seller who commences a foreclosure action after commencing summary proceedings and a refusal by the purchaser to cure the delinquency will be seen differently when he seeks in circuit court to advance his foreclosure action for prompt determination. It will then not appear that the seller has sought to take advantage of the purchaser, who had an opportunity to cure the delinquency by paying past-due installments.
MCL 600.5744(3); MSA 27A.5744(3).
See, e.g., White & Summers, Handbook of the Law Under the Uniform Commercial Code, pp 964-965; Osborne on Mortgages (2d ed), p 698; 69 Am Jur 2d, Secured Transactions, § 557, pp 446-448.
He may not, however, seek to recover payments in arrears through the time of trial if he has not already sought to recover them in the proceedings.
The commentary states only that a seller "cannot recover the premises under this chapter and then maintain a separate claim for payments due or to become due under the contract”. But that in a sense begs the question of whether tendering a deed following a notice of forfeiture constitutes recovery of the premises where the seller, as here, promptly returns the deed and never takes physical possession of the premises.
The second sentence of the commentary, stating that "if the plaintiff’ prefers to have money damages under the contract, he “should be required to elect that remedy or to foreclose in the circuit court” where the purchaser will receive credit for the proceeds of the foreclosure sale, again does not reach the question before us of whether the sellers’ actions in this case constituted an election of remedies precluding an action for foreclosure.
The proposal of the Law Revision Commission was as follows:
"A judgment for possession under this chapter does not merge or bar any other claim for relief, except that a judgment for possession after forfeiture of an executory contract for the purchase of land shall merge and bar any claim for money payments due or to become due under the contract.” Michigan Law Revision Commission, Fifth Annual Report (1970), p 36.
The statute provides:
"The remedy provided by summary proceedings is in addition to, and not exclusive of, other remedies, either legal, equitable or statutory. A judgment for possession under this chapter does not merge or bar any other claim for relief, except that a judgment for possession after forfeiture of an executory contract for the purchase of premises shall merge and bar any claim for money payments due or in arrears under the contract at the time of trial and that a judgment for possession after forfeiture of such an executory contract which results in the issuance of a writ of restitution shall also bar any claim for money payments which would have become due under the contract subsequent to the time of issuance of the writ. The plaintiff obtaining a judgment for possession of any premises under this chapter is entitled to a civil action against the defendant for damages from the time of forcible entry or detainer, or trespass, or of the notice of forfeiture, notice to quit or demand for possession, as the case may be.” MCL 600.5750; MSA 27A.5750 (emphasis supplied).
It is asserted that the market value of the property and duration of the land contract are factors weighed by the seller in selecting between forfeiture and foreclosure and that the choice between forfeiture and foreclosure puts the seller in a sufficiently advantageous position.
A number of assumptions are involved in those arguments, including that sellers are informed and that it is purchasers who are uninformed and may be taken advantage of. It appears that in some cases the reverse is the case, that it is the purchaser who is well-advised, and the seller who is not, regarding the procedures to be followed and the consequences that the common law attached to sending a notice of forfeiture.
The situation here resembles Smith v General Mortgage Corp, 402 Mich 125; 261 NW2d 710 (1978), where this Court modified a common-law rule to avoid an inequitable result.
The mortgagor’s property, insured for $18,000, was totally destroyed by fire. The plaintiffs were in default in their mortgage payments, the mortgagee foreclosed and bid in the property for $13,961, the amount due. The mortgagors argued that they were entitled to the insurance proceeds because the mortgage debt was extinguished when the mortgagee bid the amount owing at the foreclosure sale. The mortgagee contended that since the property was almost worthless, it was entitled to the portion of the proceeds equal to the debt.
Although the loss occurred before the mortgage sale and the mortgagee would have been entitled to the insurance proceeds to reduce the debt or repair the property, and, having purchased the property at the foreclosure sale, arguably had waived its rights under the mortgage, we held "that when the loss occurs before a foreclosure sale in which the mortgagee purchases the property for a bid which extinguishes the mortgage debt, the mortgagee is not entitled to the insurance proceeds”.
We declined to enforce the common-law rule, stating that strict application of it "would work an injustice in this case”. It would be "unfair” to award the insurance proceeds to the mortgagor "when the [mortgagee] paid the amount of the debt for worthless property”. | [
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Shepherd, P.J.
In these consolidated cases, plaintiffs appeal as of right from the March 1, 1990, circuit court order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(7), claim barred because of immunity granted by law, and MCR 2.116(C)(8), failure to state a claim. We affirm and hold that defendant— either state agencies, officials of the Department of Corrections, or members of the parole board — may not be held liable for violent murders committed by a prisoner released on parole before being eligible for parole consideration. We conclude that for such liability to exist, it would have to be authorized by the Legislature.
In the early morning hours of July 19, 1985, Paul Ray Byars, while on parole, broke into the home of Dale and Debra Dolinger in Ypsilanti, Michigan. Upon entering, Byars brutally murdered two thirteen-year-old boys, Jerry Bruce Harrison and Steven D. Harrison, attempted to murder Dale Dolinger, and placed Debra, Jennifer, and Lisa Dolinger in fear for their lives. Byars had been paroled in August 1984 after serving approxi mately ten years of a twenty- to thirty-five-year sentence imposed in 1974 for rape.
Plaintiffs filed the present actions against the various defendants, alleging that they intentionally and negligently violated the law in paroling Byars five or six years before he was eligible. Plaintiffs contend that defendants’ actions constituted the proximate cause of the murders committed by Byars. Plaintiffs further claim that defendants were engaged in ultra vires activities and thus were not performing governmental functions. Robert Brown is a former director of the Michigan Department of Corrections (mdoc); Perry Johnson was also a director of the mdoc, as well as a director of the Bureau of Field Services; Thomas Koehler was the warden of the Marquette Branch Prison, where Byars was imprisoned; Howard Grossman, Bill Hudson, and Richard Walbrecq were members of the parole board responsible for the release of Byars.
In reviewing a motion brought pursuant to MCR 2.116(C)(7), a court must consider all affidavits, pleadings, depositions, admissions, and documentary evidence filed or submitted by the parties. MCR 2.116(G)(5); Wade v Dep’t of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992); Chivas v Koehler, 182 Mich App 467, 471; 453 NW2d 264 (1990). The plaintiff’s complaint is reviewed to determine whether facts have been pleaded justifying a finding that recovery in tort is not barred by governmental immunity. Pawlak v Redox Corp, 182 Mich App 758, 763; 453 NW2d 304 (1990). A motion for summary disposition pursuant to MCR 2.116(C)(7) should not be granted unless no factual development could provide a basis for recovery. Markis v Grosse Pointe Park, 180 Mich App 545, 551; 448 NW2d 352 (1989).
A motion under MCR 2.116(C)(8), for failure to state a claim upon which relief can be granted, tests the legal sufficiency of a claim by the pleadings alone. MCR 2.116(G)(5); Wade, supra. The court must accept as true all well-pleaded factual allegations, as well as any reasonable inferences or conclusions that can be drawn from them. Hutchinson v Allegan Co (On Remand), 192 Mich App 472, 475; 481 NW2d 807 (1992). The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Wade, supra.
Pursuant to MCL 691.1407; MSA 3.996(107), defendant state agencies are immune from tort liability if they are "engaged in the exercise or discharge of a governmental function” at the time the tort occurs. In Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 633; 363 NW2d 641 (1984), the Court stated that a governmental function is an "activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law.” Id., p 591. In this case, the Department of Corrections, the Bureau of Pardons and Paroles, and the Bureau of Field Services were authorized to release prisoners pursuant to MCL 791.201 et seq.; MSA 28.2271 et seq. and hence were engaged in the exercise or discharge of a governmental function. Because there is no intentional tort exception to governmental immunity, Smith v Dep’t of Public Health, 428 Mich 540, 593; 410 NW2d 749 (1987), aff'd sub nom Will v Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989), defendant state agencies were immune from liability even if the release of Byars may have resulted in an intentional tort. Thus, the trial court properly granted defendant state agencies summary disposition pursuant to MCR 2.116(C)(7) on the ground of governmental immunity.
Before 1986, the law of governmental immunity, as it related to individual officers, employees, and agents, was "a creature of judicial decision-making.” Ross, supra, p 629. Although standards of individual governmental immunity are now provided under MCL 691.1407; MSA 3.996(107), as amended by 1986 PA 175, the statute does not apply to causes of action "arising” before July 1, 1986. 1986 PA 175, § 3. The amended statute grants immunity to individual defendants except for acts of gross negligence.
A cause of action "arises” when the plaintiffs claim accrues, not when it is filed. Abraham v Jackson, 189 Mich App 367, 370; 473 NW2d 699 (1991). Because the cause of action accrued on July 19, 1985, the date on which Byars committed the murders, the amended statute is inapplicable. Thus, the issue is considered under the rules articulated in Ross, where the Court distinguished two categories of individual governmental immunity.
Under the first test set forth in Ross, p 633, "judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their judicial, legislative, or executive authority.” Highest executive officials may qualify for absolute immunity because they have broad-based jurisdiction or extensive authority similar to that of a judge or legislator. Chivas, supra, p 471.
In addition, Ross, supra, pp 633-634, states:
Lower level officials, employees, and agents are immune from tort liability only when they are
1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;
2) acting in good faith; and
3) performing discretionary, as opposed to ministerial acts.
Under this test, no individual immunity exists for ultra vires activities.
Discretionary acts involve personal deliberation, decision, and judgment. Id., pp 634, 635. Ministerial acts involve the execution of a decision entailing minor decision making where the individual has little or no choice. In determining whether acts are discretionary or ministerial, the focus is on the specific acts complained of, rather than the general nature of the activity. Canon v Thumudo, 430 Mich 326, 334; 422 NW2d 688 (1988).
In this case, Robert Brown and Perry Johnson, former directors of the mdoc, occupied that department’s highest executive position. Because these defendants were acting within their broad-based executive authority, they were entitled to absolute immunity under Ross. Chivas, supra, p 471. Therefore, the trial court properly granted defendants Brown and Johnson summary disposition pursuant to MCR 2.116(C)(7) based upon governmental immunity.
The remaining individual defendants do not qualify as "highest executive officials.” As the former warden of the Marquette Branch Prison, defendant Thomas Koehler qualified as a "lower level official” under Ross. Marley v Huron Valley Men’s Facility Warden, 165 Mich App 78, 82; 418 NW2d 430 (1987). Defendants Howard Grossman, Bill Hudson, and Richard Walbrecq, members of the parole board, were likewise properly considered as "lower level officials” for the purposes of governmental immunity.
In arguing that these individual defendants are not entitled to governmental immunity, plaintiffs allege that defendants engaged in ultra vires activities, because they lacked statutory authority to release Byars until he had served his minimum sentence of twenty years reduced by any good-time credits to which he was entitled. Further, plaintiffs allege that these defendants did not act in good faith, and that they were performing ministerial, as opposed to discretionary, acts.
Specifically, plaintiffs allege that defendant Koehler was not acting, or did not reasonably believe that he was acting, within the scope of his authority when he computed Byar’s "good time allowance” under MCL 800.33; MSA 28.1403. Plaintiffs maintain that defendant Koehler automatically awarded Byars all of his good-time credit at the beginning of his sentence, rather than making him earn it, as required under MCL 800.33(6); MSA 28.1403(6). This automatic award of good-time credit meant that Byars was given too much credit, thereby improperly shortening his term. Further, plaintiffs allege that defendant Koehler, in contravention of MCL 800.33(2); MSA 28.1403(2), gave Byars good-time credit during a time he committed major infractions of prison rules. Plaintiffs also allege that defendant Koehler did not have authority to award Byars good-time credit when his sentence was reduced under the Governor’s exercise of his authority pursuant to the (now repealed) Prison Overcrowding Emergency Powers Act. MCL 800.71 et seq.; MSA 28.1437(1) et seq. Plaintiffs also maintain that defendant Koehler exceeded his statutory authority under MCL 800.33(9); MSA 28.1403(9) by automatically awarding Byars "special good time” credits (fifty percent of regular good-time credits) without the consent and approval of the director of the Department of. Corrections. Because defendant Koehler exceeded his statutory authority in awarding good-time credits, Byars, when released, had not served his minimum sentence as it would have been had it been reduced with proper credits for good time. Thus, plaintiffs allege that defendants Grossman, Hudson, and Walbrecq had no jurisdiction under MCL 791.234(1); MSA 28.2304(1) to parole Byars because he was not eligible for parole.
Further, plaintiffs allege that defendants’ actions were not performed in good faith because they knew, or should have known, that their actions in awarding good-time credit were in violation of statute. Specifically, plaintiffs cite audit reports prepared by the Office of the Auditor General, dated October 20, 1983, criticizing the Department of Corrections for violating the law by improperly awarding good-time credits. In addition, an audit report, dated July 12, 1984, which covered the period from September 1978 through October 1983, states that the award of good-time credits for that portion of the sentence that would not have to be served pursuant to the Prison Overcrowding Emergency Powers Act was inconsistent with the good-time credit statute. Plaintiffs further allege that defendants Grossman, Hudson, and Walbrecq failed to investigate whether good-time credit was properly being awarded to Byars. Moreover, plaintiffs contend that defendants ig nored the diagnosis of a prison psychologist just before Byars’ release that Byars was a psychopath "who was not concerned about the values and standards of society.”
Finally, plaintiffs allege that defendants’ acts were not discretionary, simply because they did not have any authority to parole Byars when they did. The alleged absence of statutory authority implies that defendants had no power with which to perform discretionary acts involving personal deliberation, decision, and judgment.
After reviewing the documentary evidence submitted by the parties, we believe that the trial court erroneously granted these defendants summary disposition pursuant to MCR 2.116(C)(7). In this instance, plaintiffs alleged sufficient facts that these individual defendants are not entitled to immunity because they did not satisfy any of the three requirements set forth in Ross for governmental immunity for lower level officials. In asserting that these defendants were not acting, or did not reasonably believe they were acting, within the scope of their authority when they paroled Byars, plaintiffs allege facts supporting a finding that Koehler, Grossman, Hudson, and Walbrecq were acting without statutory authority. Moreover, plaintiffs alleged that these defendants ignored warnings issued by the Office of Auditor General concerning violations of the parole process. The absence of good faith was particularly striking in the case of defendant Walbrecq, who admitted in deposition testimony that he did not even know how good-time credit or special good-time credit was awarded to a prisoner in Michigan. Having alleged sufficient facts that defendants did not have authority to parole Byars when they did, plaintiffs supported the allegation that defendants lacked any discretion, and thus were not perform ing discretionary, as opposed to ministerial acts. Thus, we conclude that the trial court improperly granted these defendants summary disposition pursuant to MCR 2.116(C)(7) on the ground of governmental immunity.
Although the trial court’s order granted defendants summary disposition under MCR 2.116(C)(7) and (8), the trial court did not state in its opinion whether plaintiffs alleged a duty owed by defendants under subrule C(8). Thus, we will next consider whether summary disposition was proper under subrule C (8).
To establish a prima facie case of negligence, a plaintiff must prove: (1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached the duty; (3) that the defendant’s breach of duty was the proximate cause of the plaintiff’s damages; and (4) that the plaintiff suffered damages. Chivas, supra, p 475. A duty is a legally recognized obligation to conform to a particular standard of conduct toward another. Id.; Farwell v Keaton, 396 Mich 281, 286; 240 NW2d 217 (1976). The question whether a duty exists is one of law to be decided by the court. Chivas, supra.
As a general rule, there is no duty to protect an individual who is endangered by the conduct of a third person. Id. In determining whether a legal duty should be imposed, the trial court should balance the societal interests involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence, and the relationship between the parties. Id. However, a duty of reasonable care may arise where one stands in a special relationship with either the victim or the person causing the injury. Id. Where the duty of a public official arises from his official authority, the duty is for the benefit of the public at large. Massey v Dep’t of Corrections, 182 Mich App 238, 241; 451 NW2d 869 (1990). A duty is owed to a specific individual only when performance would affect the individual in a manner different in kind from the way performance would affect the public. Id.
In the case at bar, plaintiffs allege that a duty of care could be imposed on defendants because they had a special relationship with plaintiffs or plaintiffs’ decedents. Specifically, plaintiffs allege that a special relationship existed because defendants returned Byars to his mother’s house in a neighborhood of Ypsilanti where Byars had committed rape in 1974. Before releasing Byars, defendants warned the rape victim, whose house was ten houses away from that of Byars’ mother. In view of the fact that the rape victim and the Dolingers lived on the same block, only a few houses away from one another, and that the Dolinger house was only three houses away from that of Byars’ mother, plaintiffs allege that defendants had a duty to prevent Byars from harming others in the neighborhood, including plaintiffs and plaintiffs’ decedents. Moreover, plaintiffs allege that defendants had a special relationship with Byars because they had control of him and could oversee and restrict his behavior while he was on parole.
In determining whether a special relationship existed, we note that there are no Michigan cases defining a test or setting forth the requirements of a special relationship. A perusal of case law in other jurisdictions reveals various approaches requiring at least some contact between the government agency or official and the victim and also justifiable reliance on the part of the victim upon the promises or actions of the governmental agency or official. For example, in Sawicki v Village of Ottawa Hills, 37 Ohio St 3d 222, 231; 525 NE2d 468 (1988), a case involving a wrongful death and survivorship action against a police department, the Supreme Court of Ohio adopted the four-part test set forth in Cuffy v City of New York, 69 NY2d 255, 260; 513 NY Supp 2d 372; 505 NE2d 937 (1987). In Cuffy, which involved a municipality’s duty to provide police protection, the court set forth the elements of a special relationship as follows: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.”
Similarly, in Chambers-Castanes v King Co, 100 Wash 2d 275, 286; 669 P2d 451 (1983), a case involving alleged negligence by the police, the Supreme Court of Washington stated that a special relationship is present if (1) there is privity between the police and the victim that sets the victim apart from the general public and (2) there are express assurances of protection that lead to reliance by the victim.
The Court of Appeals of the District of Columbia in Platt v District of Columbia, 467 A2d 149, 151 (DC App, 1983) adopted a two-pronged test for a special relationship set forth in Florence v Goldberg, 44 NY2d 189; 404 NYS2d 583; 375 NE2d 763 (1978), under which a plaintiff must show: "(1) a direct contact or continuing contact between the victim and the governmental agency or official; and (2) a justifiable reliance on the part of the victim.” As explained in Warren v District of Columbia, 444 A2d 1, 10-11 (DC App, 1981) (en banc), the first prong requires "some form of privity” between the governmental agency or official and the victim that sets the victim apart from the general public, whereby the victim becomes a "reasonably foreseeable plaintiff.”
In addition, the court in Marvin v Chicago Transit Authority, 113 Ill App 3d 172, 176; 68 Ill Dec 786; 446 NE2d 1183 (1983), in discussing the general requirements of the "special duty” exception, whereby the police owe a special duty to an individual, as opposed to the public as a whole, set forth a four-part test: "(1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or wilful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality.”
Another way of establishing the existence of a special relationship was suggested in Turner v District of Columbia, 532 A2d 662, 667 (DC App, 1987), which noted that a special relationship may be established by a statute prescribing "mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole.” No such statute exists in Michigan.
Applying any of the above tests to the facts of this case, we note that plaintiffs would have failed to establish a special relationship, because the facts described, if proved, would not show that they or their decedents had any kind of contact with defendants, let alone that plaintiffs justifiably relied upon any explicit assurances from defendants. We must conclude that plaintiffs have not alleged facts from which it could be inferred that defendants owed plaintiffs or their decedents a duty of care whose performance would have affected them in a manner different in kind than the way it would have affected the general public. Massey, supra, p 241.
Nor do we find that a special relationship existed between defendants and Byars. Defendants were responsible for parolees generally, and no particular special relationship was alleged between defendants and Byars that was different from the relationship between the warden of a prison and members of the parole board and the general population of parolees (See Chivas, supra, pp 475-476, where this Court declined to find a special relationship between defendant prison guards and escaped inmates, likening the situation to that of a police officer who owes a duty generally to the public and not to a specific individual, unless the officer has a special relationship with the individual, e.g., police brutality against a citizen). Thus, we must conclude that defendants Koehler, Gross-man, Hudson, and Walbrecq are entitled to summary disposition pursuant to MCR 2.116(C)(8) because plaintiffs’ claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.
In summary, although all defendants breached their duty to the general public, we conclude that the trial court properly granted defendant state agencies and defendants Brown and Johnson summary disposition pursuant to MCR 2.116(C)(7) on the ground of governmental immunity. Although the trial court improperly granted defendants Koehler, Grossman, Hudson, and Walbrecq summary disposition under subrule C(7), we conclude that the trial court’s order dismissing the claims against these defendants was proper pursuant to MCR 2.116(C)(8).
Affirmed.
Although the record is not entirely clear whether Perry Johnson was acting as the director of the mdoc or the director of the Bureau of Field Services at the time of the events in question, summary disposition is proper in either instance. As the director of the mdoc, he was entitled to absolute immunity under Ross as "the highest executive official.” Thus, summary disposition is appropriate under MCR 2.116(C)(7). As the director of the Bureau of Meld Services, he would have qualified as a "lower level official.” Although he would not have been entitled to immunity under Ross while acting in this capacity, summary disposition is proper under MCR 2.116(C)(8) insofar as plaintiffs failed to allege the existence of a public duty owed to them or their decedents, as discussed in the following section of this opinion.
Because we have concluded that plaintiffs failed to state a claim against these defendants upon which relief can be granted, we need not decide whether members of the parole board should be considered the "functional equivalent of judges,” and thus entitled to absolute immunity under Ross. Resolving this question, which the trial court did not consider, would not change the result of this case. Nor do we comment on whether the actions taken by the defendants who were members of the parole board in paroling Byars would constitute gross negligence under MCL 691.1407; MSA 3.996(107), as amended by 1986 PA 175, thus making them ineligible for immunity under the statute presently in effect. We note that even if defendants’ conduct were grossly negligent, the issues of duty and special relationship would still exist. | [
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The Court orders that the petition to convene a special panel pursuant to Administrative Order No. 1990-6 is granted and the prior opinion in Docket No. 134343 is vacated.
The question in conflict to be resolved is:
Whether the definition of gross indecency of MCL 750.338; MSA 28.570 is the "common sense of society” definition from People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967), or the definition in People v Lino, 190 Mich App 715; 476 NW2d 654 (1991), adopted from People v Howell, 396 Mich 16; 238 NW2d 148 (1976).
See, also, People v Emmerich, 175 Mich App 283; 437 NW2d 30 (1989), and People v Lynch, 179 Mich App 63; 445 NW2d 803 (1989).
The prosecution may, within 28 days of the date of the Clerk’s certification of this order, submit a supplemental brief. Defendant may file a brief in opposition within 28 days after the prosecution serves its brief on defendant. Fourteen copies of the briefs must be filed._
Unpublished opinion per curiam of the Court of Appeals, decided February 27,1992. | [
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Per Curiam.
Plaintiff appeals as of right an order of dismissal, challenging the trial court’s ruling that, under the doctrine of forum non con veniens, jurisdiction in this products liability case lies with Georgia rather than Michigan. We reverse and remand.
Plaintiff claims that he was injured on September 15, 1986, while working at an Atlanta, Georgia, dairy, when he placed his hand and arm into a Unilog blow mold machine, a machine that apparently makes plastic jugs or bottles, during the trimmer cycle. On September 14, 1988, plaintiff filed a complaint, raising claims of negligent design and manufacture of the blow mold machine.
Defendant answered on November 3, 1988, and five days later on November 8, 1988, moved to dismiss the complaint on the basis of the doctrine of forum non conveniens. The motion was heard on February 1, 1989, and an order dismissing the action on that ground was entered on February 22, 1989. No transcript of that hearing was forwarded for review. The only transcript available is that of plaintiff’s unsuccessful motion for rehearing, heard on March 29, 1989. According to the parties’ "Stipulation Regarding Record on Appeal” filed in this Court on September 4, 1990, the March 1989 transcript comprises the sole transcribed proceeding for our consideration.
On appeal, plaintiff contends that the trial court abused its discretion in dismissing the suit on grounds of forum non conveniens because Michigan is the only forum available to plaintiff, and that Michigan is not a seriously inconvenient forum in any event.
The principle of forum non conveniens establishes the right of a court to resist imposition upon its jurisdiction although such jurisdiction could properly be invoked. It presupposes that there are at least two possible choices of forum. The doctrine applies in Michigan, and its application lies within the discretion of the trial court. Cray v General Motors Corp, 389 Mich 382, 395; 207 NW2d 393 (1973). According to Cray,
[a] balancing out and weighing of factors to be considered in rejecting or accepting jurisdiction in such cases should include:
1. The private interest of the litigant.
a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;
b. Ease of access to sources of proof;
c. Distance from the situs of the accident or incident which gave rise to the litigation;
d. [Enforceability] of any judgment obtained;
e. Possible harassment of either party;
f. Other practical problems which contribute to the ease, expense and expedition of the trial;
g. Possibility of viewing the premises.
2. Matters of public interest.
a. Administrative difficulties which may arise in an area which may not be present in the area of origin;
b. Consideration of the state law which must govern the case;
c. People who are concerned by the proceeding.
3. Reasonable promptness in raising the plea of forum non conveniens.
The courts are charged to consider the plaintiffs choice of forum and to weigh carefully the relative advantages and disadvantages of jurisdiction and the ease of and obstacles to a fair trial in this state. [Id., 395-396.]
Each of the four cases consolidated for decision in Cray involved an incident that occurred in another state. The plaintiffs and witnesses to the incident in each case were nonresidents of Michigan, and none of the witnesses were subject to Michigan’s subpoena power. General Motors, the defendant in each of the cases, had its principal place of business in Detroit. The plaintiffs contended that considerable discovery would be necessary in Michigan with respect to materials and experts because negligent acts allegedly occurred in Michigan, and the Cray Court held that the retention of jurisdiction of the various cases in Michigan did not constitute an abuse of discretion.
A plaintiff’s selection of a forum is ordinarily accorded deference. Anderson v Great Lakes Dredge & Dock Co, 411 Mich 619, 628-629; 309 NW2d 539 (1981); Holme v Jason’s Lounge, 168 Mich App 132, 135; 423 NW2d 585 (1988).
In arguing that Georgia is the more convenient forum, defendant stated that, although it owns and operates a manufacturing facility in Washtenaw County, it is a Wisconsin corporation with its principal place of business in Milwaukee, Wisconsin; that plaintiff’s employer (a temporary employment placement company) as well as the (then) codefendant in whose dairy plaintiff claimed to have been injured were both located in Atlanta, Georgia; and that plaintiff, a resident of Atlanta, received any medical care and treatment there. The gist of defendant’s argument below was that plaintiff is trying to avoid the application of Georgia law by forum shopping, and that the exercise of Michigan jurisdiction would hamper discovery, place most of the witnesses beyond the subpoena power of the trial court, and drive up the cost of defending the action.
Plaintiff, on the other hand, argued that al though the injury occurred in Georgia, the negligence giving rise to this suit, i.e., the negligent design and manufacture of the machine, occurred at defendant’s Michigan plant, and that obtaining the witnesses pertaining to the pleaded negligence at the plant would be easier and less expensive in Michigan.
We cannot know how the trial court analyzed this case under the Cray factors, assuming it engaged in such an analysis, because we do not have the pertinent transcript. Our perusal of the one transcript available, i.e., the March 29, 1989, reconsideration motion transcript, avails us nothing in this regard beyond the discovery that the trial court had not yet determined the conflict-of-law issue that falls under the second Cray factor. Moreover, at the hearing regarding plaintiffs motion for reconsideration, counsel for plaintiff said he had discovered that Georgia law includes a ten-year statute of repose that prevents recovery where the product in question was manufactured more than ten years before the incident. Therefore, plaintiff argued, because the blow mold machine was seventeen years old, plaintiff was without a forum other than Michigan. Defense counsel agreed that the Georgia statute of repose existed, but claimed an inability to determine from its own records the age of the blow mold machine. Ultimately, the trial court denied plaintiffs motion for reconsideration on the ground that plaintiff had merely averred, but not shown, that he was without a forum in Georgia. The court indicated that if plaintiff filed suit in Georgia within the limitation period and found his remedies completely excluded by the statute of repose, he could “renew this motion at a later time for the Court’s consideration.”
In this case, plaintiffs interest in Michigan as his chosen forum (the first Cray factor) is not extreme, but is nevertheless compelling. Any Georgia witnesses will not be subject to Michigan process. This fact alone does not make Michigan an inconvenient forum. Cray, supra. Plaintiffs claims of negligent manufacture and design concern witnesses alleged to be located in Michigan at defendant’s manufacturing facility (a matter not specifically denied by defendant). Sources of proof of such negligence may logically be found in Michigan, and access to those sources may be correspondingly easy. Although Michigan is clearly a great distance from the situs of the incident in which plaintiff claims injury, it is nevertheless a great deal closer to the situs of another incident, i.e., the manufacture or design of the machine, that gives rise to the litigation. The possibility of viewing the dairy premises where plaintiff alleges his injury occurred is remote. Enforceability of any judgment obtained against defendant does not pose great difficulty in view of defendant’s status in this state. On the basis of the record presented, we conclude that plaintiffs interest in pursuing this case in Michigan is relatively great.
The weight of public interest (the second Cray factor) appears to be evenly balanced. Although administrative difficulties may well arise, the disputed question regarding which state law shall govern the case has never been decided. We do not see how a proper balancing of the Cray factors may be accomplished in this case without that question being answered, particularly in light of the fact that plaintiff has apparently agreed to a voluntary dismissal in the event that Georgia law applies. And with regard to the people concerned by these proceedings, it appears to us that the citizenry of Michigan has as much interest in the safe design and manufacture of machinery in this state as does the citizenry of Georgia.
With regard to the third Cray factor, plaintiff claims that defendant did not act with reasonable promptness in raising its plea of forum non conveniens. We agree that defendant’s motion for dismissal based on the doctrine of forum non conveniens was untimely because it was filed after defendant answered. Dayton Mall Motor Inn v Honeywell, Inc, 132 Mich App 174, 180; 347 NW2d 15 (1984). However, timeliness is merely one factor to be considered by the trial court. In our consideration of this case, lack of timeliness must weigh against defendant under Cray.
In summary, the first Cray factor weighs in plaintiff’s favor in his choice of forums, the second factor is neutral, but was incompletely analyzed, and the third weighs slightly in plaintiff’s favor (i.e., weighs against defendant). In view of the limited record presented, we conclude that the trial court’s decision to dismiss this case was therefore an abuse of discretion under Cray.
Moreover, we believe that reconsideration was improperly denied in this case. Plaintiff asserted for the first time in his motion for reconsideration that he had no remedies in Georgia because of Georgia’s ten-year statute of repose and the fact that the machine in question was seventeen years old. It is not the age of the machine that is at issue under the statute of repose, but rather the date the machine was first sold. Counsel for defendant contended that plaintiff was not deprived of remedies in Georgia, while in the same breath claiming that, despite being in possession of the records pertaining to the machine in question, he could not say whether the machine was within the purview of the statute. Essentially, plaintiff claimed (as he does on appeal) that a forum non conveniens analysis was irrelevant in this case because Georgia was not a viable alternate forum, and defendant disagreed without giving any specific basis for its disagreement. In this manner, a critical issue was avoided by both defendant and the trial court:
When a party requests that a court decline jurisdiction based on the doctrine of forum non conveniens, there are two inquiries for the court to make: whether the forum is inconvenient and whether there is a more appropriate forum available. If there is not a more appropriate forum elsewhere, the inquiry ends and the court may not resist imposition of jurisdiction. If there is a more appropriate forum, the court still may not decline jurisdiction unless its own forum is seriously inconvenient. [Robey v Ford Motor Co, 155 Mich App 643, 645; 400 NW2d 610 (1986).]
We reiterate that the doctrine of forum non conveniens presupposes that there are at least two possible choices of forum. Cray, 395. In this case, the trial court did not determine whether any other forum, let alone a forum more appropriate than Michigan, existed. Instead, its decision re quired plaintiff to file suit in Georgia and allow a Georgia court to make that determination. We therefore reverse the order of dismissal and remand this matter to the trial court for an evidentiary hearing with regard to whether Georgia is an available forum under Georgia law. In the event the trial court determines that Georgia is an available forum and plaintiff does not in fact agree to a voluntary dismissal, a forum non conveniens analysis shall again be embarked upon. McLarty v Kubota Tractor, Ltd, 173 Mich App 82, 86-87; 433 NW2d 344 (1988).
Reversed and remanded. We do not retain jurisdiction.
Plaintiff also named the dairy as a tort defendant. However, the trial court dismissed the action against the dairy for lack of jurisdiction on January 24, 1990. The dairy is not a party to this appeal.
Defendant did not file a brief on appeal. Because we do not have the benefit of the transcript of the hearing regarding defendant’s motion to dismiss, explanation of defendant’s position is taken from its pleadings.
The order of dismissal is not specific and no written opinion appears in the record.
See MCR 2.506(G)(1); Holme v Jason’s Lounge, 168 Mich App 132, 135; 423 NW2d 585 (1988).
Again, we have no way of knowing whether this factor was considered by the trial court because we do not have the pertinent transcript before us.
The cases most factually similar to this case are Cray, discussed supra, and Jemaa v MacGregor Athletic Products, 151 Mich App 273, 275, 280; 390 NW2d 180 (1986). Jemaa is distinguishable because the portion of the defendant’s business conducted in Michigan was not connected to the design or manufacture of the football helmets that the plaintiff claimed had been negligently designed or manufactured. Thus, this Court affirmed the trial court’s finding of forum non conveniens.
Consideration of this threshold issue should include the question whether the applicable Georgia limitation period bars suit in that state or whether defendant will stipulate the tolling of the Georgia statute of limitations. See, e.g., Dayton Mall, supra, 177. As best we can determine from the limited record, the statute of limitations issue was raised for the first time on appeal. | [
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Per Curiam.
Plaintiffs have appealed as of right from the trial court’s final order of November 19, 1990, following a motion for declaratory relief that was treated as a motion for, and summary disposition granted, for defendant Michigan Property & Casualty Guaranty Association with respect to the extent of its liability in this case. We affirm.
Plaintiffs instituted this action to recover damages for personal injuries Patrick Yetzke suffered in an automobile accident with defendant Larry Fausak. It was alleged that Fausak was drunk, and plaintiffs claimed that defendant The Welcome Inn had served Fausak alcohol while he was visibly intoxicated. Plaintiffs therefore also alleged a dramshop action against defendant Albert Shafer, doing business as The Welcome Inn.
In January 1990, Fausak’s liability insurer, Cadillac Insurance Company, was placed into liquidation by court order. After a required stay lapsed, the Michigan Property & Casualty Guaranty Association (mpcga) was added as a defendant in place of Fausak’s insolvent insurer so that the mpcga’s liability could be determined. At the time the mpcga was joined in this action, all claims between the various parties had been settled. However, a question remained with regard to the mpcga’s liability. Plaintiffs conceded that for all practical purposes Fausak was uncollectible except to the extent that there was any coverage available through the mpcga. Therefore, the parties agreed that this case could be finally resolved through a motion for declaratory relief. This matter was treated as a motion for summary disposition alleging no genuine issue of material fact, MCR 2.116(0(10).
The parties stipulated the relevant facts for a decision in this case. For the injuries to Patrick Yetzke, a settlement was reached against Shafer for $98,000. Under Patrick Yetzke’s no-fault insurance policy with Wolverine Mutual Insurance Company, he received an additional $25,000 for uninsured motorist coverage. The limits of coverage under Fausak’s policy with Cadillac was $20,000. The value of the claim on behalf of Patrick Yetzke was in excess of $143,000, or beyond the amounts of the settlement and the coverage available.
In the trial court, plaintiffs argued that the mpcga was liable for $20,000, the amount of Fausak’s policy with Cadillac, regardless of the fact that Wolverine had paid $25,000 of uninsured motorist coverage to plaintiffs, because plaintiffs would have been entitled to that coverage, as underinsured motorist coverage, even if Cadillac were not insolvent.
The mpcga argued that the payment of $25,000 was a credit against its liability in place of Cadillac pursuant to MCL 500.7931(3); MSA 24.17931(3). The trial court agreed with the mpcga and ruled that it owed nothing because the amount of the credit, $25,000, exceeded the amount of the covered claim, $20,000. The court held that the mpcga had no liability for the covered claim in this case once a deduction was made for the setoff from other insurance available to plaintiffs. The court agreed with the mpcga that the insurance coverage available to plaintiffs through the uninsured motorist coverage with Wolverine was a direct setoff with regard to the mpcga’s liability in place of Cadillac Insurance. Therefore, the court held that, under MCL 500.7931(3); MSA 24.17931(3), the mpcga had no liability because the setoff exceeded the limits of Cadillac’s policy.
The only issue presented for decision on appeal is whether, under the Property and Casualty Guaranty Association Act, MCL 500.7901 et seq.; MSA 24.17901 et seq., the trial court correctly determined the amount of the mpcga’s liability after the setoff was subtracted.
The purpose of the Property and Casualty Guaranty Association Act is to protect the public against financial losses to either policyholders or claimants due to the insolvency of insurers. Satellite Bowl, Inc v Michigan Property & Casualty Guaranty Ass’n, 165 Mich App 768, 771; 419 NW2d 460 (1988). The act accomplishes this purpose by imposing a statutory duty on the mpcga to pay the obligations of insolvent insurers that constitute "covered claims” as defined by MCL 500.7925; MSA 24.17925. Felsner v McDonald Rent-A-Car, Inc, 173 Mich App 518, 521; 434 NW2d 178 (1988); MCL 500.7931(1); MSA
24.17931(1).
The obligation to pay covered claims is expressed in MCL 500.7931(1); MSA 24.17931(1). Metry, Metry, Sanom & Ashare v Michigan Property & Casualty Guaranty Ass’n, 403 Mich 117, 120; 267 NW2d 695 (1978). That statute also provides, at MCL 500.7931(3); MSA 24.17931(3), that the mpcga is entitled to a credit against a covered claim:
If damages or beneñts are recoverable by a claimant or insured under an insurance policy other than a policy of the insolvent insurer, or from the motor vehicle accident claims fund, or a similar fund, the damages or beneñts recoverable shall be a credit against a covered claim payable under this chapter. If damages against an insured who is not a resident of this state are recoverable by a claimant who is a resident of this state, in whole or in part, from any insolvency fund or its equivalent in the state where the insured is a resident, the damages recoverable shall be a credit against a covered claim payable under this chapter. An insurer or a fund may not maintain an action against an insured of the insolvent insurer to recover an amount which constitutes a credit against a covered claim under this section. An amount paid to a claimant in excess of the amount authorized by this section may be recovered by an action brought by the association. [Emphasis added.]
MCL 500.7925; MSA 24.17925 defines "covered claim” in relevant part as follows:
(1) "Covered claims” means obligations of an insolvent insurer which meet all of the following requirements:
(a) Arise out of the insurance policy contracts of the insolvent insurer issued to residents of this state or are payable to residents of this state on behalf of insureds of the insolvent insurer.
(b) Were unpaid by the insolvent insurer.
(c) Are presented as a claim to the receiver in this state or the association on or before the last date fixed for the filing of claims in the domiciliary delinquency proceedings.
(d) Were incurred or existed before, at the time of, or within 30 days after the date the receiver was appointed.
(e) Arise out of policy contracts of the insolvent insurer issued for all kinds of insurance except life and disability insurance.
(f) Arise out of insurance policy contracts issued on or before the last date on which the insolvent insurer was a member insurer.
(4) Covered claims shall not include any portion of a claim which is in excess of an applicable limit provided in the insurance policy.
If the plaintiffs’ case against Fausak is treated as a covered claim, the extent of the mpcga’s liability is limited by MCL 500.7925(4); MSA 24.17925(4); in other words, the mpcga’s liability cannot exceed the applicable limit of the Cadillac insurance policy, which was $20,000.
The parties do not agree how the setoff should be determined. The mpcga argues that it has no liability in this case because its limit of liability is $20,000, and it is entitled to a setoff of $25,000 paid by Wolverine for the uninsured motorist coverage. Plaintiffs, however, argue that, rather than being against the amount of Cadillac’s policy, the setoff should be against the entire amount of the underlying claim for personal injuries, which is in excess of $143,000 in this case.
We believe, under the clear and unambiguous language of MCL 500.7931; MSA 24.17931, that a setoff is to be deducted from a covered claim. As a covered claim is defined in MCL 500.7925; MSA 24.17925, it is limited in meaning to the insolvent insurer’s policy of insurance. The maximum amount of liability is defined at MCL 500.7925(4); MSA 24.17925(4), again based on the insolvent insurer’s policy limits rather than the extent of the underlying injuries of the claimant. Accordingly, the trial court correctly read MCL 500.7925; MSA 24.17925 and MCL 500.7931(3); MSA 24.17931(3) together. The extent of the mpcga’s liability is $20,000.
Plaintiffs argue that because the purpose of the Property and Casualty Guaranty Association Act is to place claimants in the same position they would have occupied if there had been a valid policy of insurance, they should have received the $25,000 payment from Wolverine for underinsured motorist coverage, in addition to the $20,000 provided by the policy Fausak had. Plaintiffs’ policy of insurance states that it does not provide coverage for underinsured motorists where there was a policy in existence, but the insurer is insolvent:
However, "underinsured motor vehicle” does not include any vehicle or equipment:
8. To which a bodily injury liability bond or policy applies at the time of the accident but the bonding or insuring company;
a. denies coverage; or
b. is or becomes insolvent.
Plaintiffs’ policy did provide coverage in this case for an uninsured motorist:
"Uninsured motor vehicle” means a land motor vehicle or trailer of any type:
4. To which a bodily injury liability bond or policy applies at the time of the accident but the bonding or insuring company:
a. denies coverage; or
b. is or becomes insolvent.
Under plaintiffs’ policy of insurance, it is clear that the situation in this case is covered by uninsured motorist coverage rather than underinsured motorist coverage. However, this still does not resolve the issue at hand where we are asked to interpret MCL 500.7931(3); MSA 24.17931(3) as if the Cadillac policy was simply replaced by coverage through the mpcga.
In order to resolve this question, we must resort to the rules of statutory interpretation. Laws that involve the insurance business are "affected with a public interest,” and therefore must "be liberally construed in favor of policyholders, creditors, and the general public.” Allen v Michigan Property & Casualty Guaranty Ass’n, 129 Mich App 271, 274; 341 NW2d 500 (1983). The language should be construed in the most beneficial way to prevent absurdity, hardship, or injustice, to favor public convenience, and to oppose all prejudice to public interests. Id. Moreover, the statute should be given a reasonable construction considering its purpose and the object it seeks to accomplish. Attorney General ex rel Ins Comm’r v Michigan Property & Casualty Guaranty Ass’n, 80 Mich App 653, 657-658; 263 NW2d 918 (1978).
We believe that plaintiffs’ argument regarding the intent of the Legislature in enacting the Property and Casualty Guaranty Association Act is erroneous. Plaintiffs mistakenly maintain that the purpose of the act is for the mpcga to step into the shoes of insolvent insurers. To the contrary, the purpose is to protect those persons who have a right to rely on the existence of an insurance policy, who otherwise would be rendered helpless because of an insurer’s insolvency. Metry, Metry, supra, p 121; Allen, supra, p 274. Although the statutory scheme created by the Legislature is intended to provide some coverage where a preexisting policy becomes invalid, the setoff provision of MCL 500.7931(3); MSA 24.17931(3) clearly states that if coverage is available under another, valid policy, that coverage must be exhausted before the mpcga becomes involved. We believe this is a reasonable limit upon the mpcga’s liability intended by the Legislature and is consistent with the purpose of the act. See Monical Machinery Co v Michigan Property & Casualty Guaranty Ass’n, 189 Mich App 694, 699; 473 NW2d 808 (1991). Moreover, under plaintiffs’ own no-fault policy, it is clear that in the event there was an insolvent insurer involved, coverage was available for unin sured motorists but not for underinsured motorists. Consequently, plaintiffs cannot logically maintain that they believed that their own policy arguably supported both a payment on behalf of Fausak by the mpcga as well as full coverage for an underinsured motorist if that motorist’s insurer was insolvent. In fact, the extra $5,000 plaintiffs received beyond the limits of Fausak’s policy of $20,000, indicates that plaintiffs were provided with some underinsured motorist coverage, but only in the amount of coverage plaintiffs had that exceeded the amount of Fausak’s former coverage.
The trial court properly granted summary disposition in this case under MCR 2.116(0(10), on the basis of a finding of no genuine issue of material fact. Alyas v Gillard, 180 Mich App 154, 158; 446 NW2d 610 (1989).
Affirmed.
To support their position, plaintiffs quote from Borman’s, Inc v Michigan Property & Casualty Guaranty Ass’n, 717 F Supp 468, 469 (ED Mich, 1989), rev’d 925 F2d 160 (CA 6,1991), that "the Association steps into the insurer’s shoes” when an insurer becomes insolvent. We believe this quote has been misconstrued by plaintiffs as representing the intent of the Legislature. Judge Hackett in her opinion in Borman’s even noted this. See Borman’s, supra, p 477, n 3 (citing Metry, Metry, supra, for the purpose of the Property and Casualty Guaranty Association Act). The mpcga does not replace an insolvent insurer unless the provisions of the act are first complied with.
We likewise distinguish Michigan Mutual Liability Co v Karsten, 13 Mich App 46; 163 NW2d 670 (1968), upon which plaintiffs rely. That decision did not involve MCL 500.7931; MSA 24.17931, but rather the construction of an insurance policy. | [
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Brennan, P.J.
Plaintiff appeals as of right from a January 2, 1990, opinion and order imposing sanctions against him for interference with the entry of the court’s order. Plaintiff brought suit alleging various tort and constitutional violations related to his real property. The trial court granted summary disposition to all defendants and imposed sanctions upon plaintiff. We reverse the order awarding sanctions.
Plaintiff first argues that the court erred in granting defendants summary disposition. However, plaintiff did not file a claim of appeal from the December 13, 1989, order granting summary disposition within twenty-one days as required by MCR 7.204(A)(1)(a). Plaintiff filed a claim of appeal on January 16, 1990. Nor did plaintiff file a delayed application for leave to appeal that order as provided under MCR 7.205(F)(1). Consequently, the issue is not before us.
Plaintiff further argues that the court erred in imposing sanctions against him. The trial court imposed $500 in sanctions against plaintiff after finding that he abused the court rules by trying to object to the substance of the court’s prior decision in his objections to the proposed order, instead of discussing the conformity of the proposed order with the court’s decision. We agree that objections under MCR 2.602 are intended to be limited to form. MCR 2.602(B)(2) provides that ”[t]he court shall sign the judgment or order when its form is approved by all the parties and if, in the court’s determination, it comports with the court’s decision.” See also Saba v Gray, 111 Mich App 304, 310; 314 NW2d 597 (1981). Moreover, we note that parties have an opportunity to move for rehearing or reconsideration under MCR 2.119(F). However, nowhere in the language of MCR 2.602 does it specifically state that objections are limited to form. Moreover, at least one panel of this Court has found that failure to object to the merits of an order under MCR 2.602 waives appellate review of that issue. See Eriksen v Fisher, 166 Mich App 439, 451; 421 NW2d 193 (1988). The implication of that holding is that objections under MCR 2.602 are not limited to form. We disagree with that holding. Nevertheless, in view of the language of the court rule and the conflicting decisions by this Court, we believe that even an attorney would have difficulty determining whether objections under MCR 2.602 are limited to form. In this case, plaintiff, a law school graduate but not a licensed attorney, was appearing in propria persona. Accordingly, we find that the trial court clearly erred in finding that plaintiff abused the court rules and in imposing the sanctions. Contel Systems Corp v Gores, 183 Mich App 706, 711; 455 NW2d 398 (1990).
Reversed. | [
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Corrigan, J.
Plaintiffs appeal a grant of summary disposition of their complaint of breach of contract, wrongful discharge, employment discrimination, fraud, misrepresentation, and intentional infliction of emotional distress. We affirm.
In 1986, defendant decided to open an outpatient family practice clinic in Petersburg in Monroe County. Defendant retained a recruiter to identify a private family practitioner who brought plaintiff Jacintha Kamalnath and defendant together.
In June 1986, plaintiff, an endocrinologist, first visited the area and discussed the clinic plan with John Iacoangeli, defendant’s director of planning and development. Plaintiff was unfamiliar with Monroe County and also lacked experience in the "business” aspects of medical practice. Iacoangeli allegedly stated that the hospital would assist plaintiff with marketing.
On June 20, 1986, Iacoangeli wrote plaintiff as follows:
Thank you for visiting this facility and touring the communities of Monroe and Petersburg on Saturday. As discussed at our meeting, I stated that I would present for your consideration an offer relative to the start-up of a physician office in Petersburg and your retention as a private family practitioner. The following offer is subject to receipt and review of your curriculum vitea [sic].
1. The hospital will provide a net salary guarantee before taxes for one year in an amount not to exceed Sixty Thousand [$60,000] Dollars. The salary guarantee is determined by subtracting office and equipment rental, insurance, including medical liability, salaries, payroll taxes and workers compensation for office staff, office supplies and medical records, dues to medical organizations (ama, Michigan State Medical Society), fees associated with normal business operations (legal and accounting), and telephone.
2. Underwrite the rental of the physician office for the first year of operation.
3. Provide a Fifty-Thousand [$50,000] Dollar line of credit to be used for operational and professional expenses. The interest rate for using these funds will be seven percent. This line of credit will be available for two years.
4. The hospital will assist you with your relocation costs to a home within Monroe County at a cost not to exceed $1,500.
As I mentioned, the salary guarantee is associated with the primary care aspect of the Peters-burg Physician Office. Consultation and other fees associated with your speciality in Endocrinology are separate.
This offer is based on your availability to serve the Petersburg market area as a primary care physician and maintain regular office hours four [4] full days and two [2] half-days a week.
If you have any further questions, please feel free to contact me.
/s/ John R. Iacoangeli
Plaintiff did not accept this written offer. Instead, she suggested various changes and additions, principally an increase in the term from one year to three years and a provision that the hospital handle marketing.
On June 30, 1986, Iacoangeli sent plaintiff a second letter, which provided in part:
It was a pleasure speaking with you again regarding the physician opportunity in Petersburg. As I mentioned, the following revisions to my June 20 letter, are outlined as follows:
1. The net salary-guarantee before taxes in an amount not to exceed Sixty Thousand [$60,000] dollars will be offered for three [3] years, subject to an annual performance review.
2. In addition to those expenses that are subtracted from gross receipts as outlined previously, medical education relating to primary care has been added.
3. Cost of relocation will be increased to a cost not to exceed $2,750.
4. The hospital administration will assist in providing coverage for the office when you are on vacation.
Also, I have enclosed an application for appointment to the Medical Staff. Please complete this as soon as possible. . . .
Defendant subsequently prepared several drafts of a proposed contract, but none of them proved satisfactory to plaintiff, who testified: "[T]here were so many things that was [sic] not acceptable, I saw it [the contract] as not acceptable and that’s the whole thing.”
Plaintiff, however, moved to Petersburg and began work, although she had no signed contract and the clinic was not yet completed. Various problems then developed with equipping and staffing the clinic. Defendant allegedly did not provide promised equipment, office staff, and advertising and did not timely bill the patients. In addition, although the hospital arranged a line of credit, plaintiff allegedly was not informed that the Nine of credit” was actually a personal loan.
The Petersburg clinic was not as successful as the parties had hoped. Relations between them deteriorated. A white male physician, who is allegedly less qualified than plaintiff, was added to the clinic staff. In November 1987, defendant formally notified plaintiff to vacate the clinic after a breakdown in their relationship.
In early 1988, plaintiff filed suit, claiming breach of contract, wrongful discharge, sex and race discrimination in employment, fraud and misrepresentation, negligent misrepresentation, and intentional infliction of emotional distress. Defendant sought summary disposition pursuant to MCR 2.116(C)(8) and (10), asserting that the statute of frauds barred plaintiff’s contract claim, that plaintiff’s sex and race discrimination claims had no factual basis, that the alleged fraud and misrepresentation involved matters of opinion and future promises, that the claim of intentional infliction of emotional distress lacked any basis, and that plaintiff was an independent contractor who could not sue for wrongful discharge. The motion was supported by a detailed affidavit from John Iacoangeli.
Plaintiff’s response brief lacked any citations to authority. The support filed by plaintiff’s counsel consisted of an "Affidavit of Unavailability of Affidavits,” the material portions of which read:
2. The Motion was filed while I was on vacation, and my schedule did not permit me to have the necessary communications with potential witnesses that would have been necessary prerequisites to the preparation of specific affidavits.
3. The persons from whom affidavits might have been obtained would include Plaintiffs, who would have been able to support everything contained in the Complaint, as well as the testimony of Dr. Omana Menon relating to damages, the testimony of Dr. Bruce Feyz and Dr. Amba Krishnan regarding the discrimination claim.[ ]
The court granted defendant’s motion, finding that the June 20 and June 30, 1986, letters were mere offers outside the statute of frauds, that plaintiff was not defendant’s employee, that no genuine issue of fact existed as to the discrimination claims, that the fraud and misrepresentation claims involved promises and matters of opinion with no evidence of intent to deceive, and that no "outrageous conduct” supported plaintiff’s claim of intentional infliction of emotional distress.
Plaintiff sought rehearing, rearguing her earlier points and newly claiming promissory and equitable estoppel. She also sought for the first time recovery in quantum meruit. The court denied the motion for rehearing.
I. THERE WAS NO ENFORCEABLE CONTRACT BETWEEN THE PARTIES.
It is hornbook law that a valid contract requires a "meeting of the minds” on all the essential terms.
In order to form a valid contract, there must be a meeting of the minds on all the material facts. A meeting of the minds is judged by an objective standard, looking to the express words of the parties and their visible acts, not their subjective states of mind. [Stanton v Dachille, 186 Mich App 247, 256; 463 NW2d 479 (1990), citing Heritage Broadcasting Co v Wilson Communications, Inc, 170 Mich App 812, 818; 428 NW2d 784 (1988).]
"Meeting of the minds” is a figure of speech for mutual assent. Goldman v Century Ins Co, 354 Mich 528, 534; 93 NW2d 240 (1958). See also, e.g., Stark v Kent Products, Inc, 62 Mich App 546, 548; 233 NW2d 643 (1975).
An offer is a unilateral declaration of intention, and is not a contract. Western Michigan Univ Bd of Trustees v Slavin, 381 Mich 23, 31; 158 NW2d 884 (1968); Eastern Michigan Univ Bd of Control v Burgess, 45 Mich App 183, 187; 206 NW2d 256 (1973). A contract is made when both parties have executed or accepted it, and not before. Brown v Considine, 108 Mich App 504, 507; 310 NW2d 441 (1981), citing Holder v Aultman, Miller & Co, 169 US 81, 89; 18 S Ct 269; 42 L Ed 669 (1898). A counterproposition is not an acceptance. Harper Bldg Co v Kaplan, 332 Mich 651, 655; 52 NW2d 536 (1952). Mere discussions and negotiation, including unaccepted offers, cannot be a substitute for the formal requirements of a contract. Kirchhoff v Morris, 282 Mich 90, 95; 275 NW 778 (1937).
A mere expression of intention does not make a binding contract, Hammel v Foor, 359 Mich 392, 400; 102 NW2d 196 (1960):
The burden is on plaintiffs to show the existence of the contract sought to be enforced, and no presumption will be indulged in favor of the execution of a contract since, regardless of the equities in a case, the court cannot make a contract for the parties when none exists.
In this case, the parties did not have a sufficient "meeting of the minds” regarding the essential terms of the contract. Plaintiff rejected the June 20 offer, as the June 30 offer makes plain. Plaintiff herself admitted that she did not approve any of the proposed contracts after her move to Peters-burg. Important differences remained between the parties as to basic contractual duties such as the responsibility for certain major expenses. The parties had exchanged a series of offers and counteroffers, not an offer and an acceptance.
Even if the June 20 and 30 letters were considered a binding contract, defendant reserved the right to terminate plaintiff. She had no guarantee of continuation after the first year. The June 30 letter expressly provided that "[t]he net salary-guarantee . . . will be offered for three [3] years, subject to an annual performance review.” [Emphasis supplied.] Plaintiff’s performance was subjected to an annual performance review and found deficient. Iacoangeli averred that defendant terminated plaintiff’s employment "based on her poor performance in operating the Petersburg Clinic in terms of her office hours, patient relations, patient charges, accounting and general management responsibilities.” As noted, plaintiff never countered the Iacoangeli affidavit.
Further, under the statute of frauds, MCL 566.132(a); MSA 26.922(a), "[a]n agreement that, by its terms, is not to be performed within 1 year from the making thereof’ must be in writing and "signed by the party to be charged.” The proposed contract was for three years. The only document signed by defendant’s agent that refers to a three-year term is the June 30 letter. That letter, however, is not a contract; the author refers to "revisions to my June 20 letter.” The June 20 letter was merely "an offer relative to the start-up of a physician office in Petersburg and your retention as a private family practitioner.” Thus, plaintiff’s claim is defeated by the statute of frauds. Plaintiff cannot avoid the effect of the statute by claiming partial performance of the terms of the purported contract. In Michigan, the partial-performance doctrine does not apply to employment contracts for more than one year. McMath v Ford Motor Co, 77 Mich App 721, 725; 259 NW2d 140 (1977).
Plaintiffs alternative argument, seeking compensation under some other theory, was presented to the court below only on plaintiffs motion for rehearing. The trial court did not rule on it. Generally, questions not ruled on below cannot be presented to or considered by a reviewing court, absent a miscarriage of justice. Bajis v Dearborn, 151 Mich App 533, 536; 391 NW2d 401 (1986); Petrus v Dickinson Co Bd of Comm’rs, 184 Mich App 282, 288; 457 NW2d 359 (1990). We see no miscarriage of justice here.
Nevertheless, we find plaintiffs alternative argument to have no merit. Because she has been compensated, she cannot seek recovery in quantum meruit. She was paid for her services at the clinic in 1986 and 1987 at the proposed contract rate of $60,000 a year. The doctrine of quantum meruit allows a party to recover the reasonable value of services rendered. A contract, though void under the statute of frauds, may be admissible to show the value placed on a plaintiffs services by the parties. Ordon v Johnson, 346 Mich 38, 49; 77 NW2d 377 (1956). Plaintiff is not entitled to any additional payment under a quantum meruit analysis.
Nor does the doctrine of equitable estoppel support plaintiff. "[A]s an equitable remedy, [estoppel] is employed to alleviate an unjust result of strict adherence to established legal principles.” Ass’n of Hebrew Teachers v Jewish Welfare Federation, 62 Mich App 54, 60; 233 NW2d 184 (1975). Defendant has not been unjustly enriched at plaintiffs expense.
Even assuming a three-year contract for plaintiffs services, plaintiffs contractual rate of compensation ($60,000 a year) was identical to what she was actually paid. Plaintiffs apparent suggestion that clinic revenues increased because of her activity lacks any merit since her compensation was not tied to clinic income. She would not have received any more than $60,000 a year from defendant had she remained at the Petersburg clinic longer than she did. Had defendant refused to pay plaintiff at all for services rendered or paid her at a lower rate, the case might be different. But plaintiff herself admitted that she was paid appropriately.
Moreover, to support a claim of estoppel, a promise must be definite and clear. McMath, supra at 726, citing Ass’n of Hebrew Teachers, supra at 59. The promises upon which plaintiff allegedly relied are certainly not definite and clear. The only promise mentioned in the complaint was defendant’s "promise to use business expertise and experience.” The doctrine of estoppel should be applied only where the facts are unquestionable and the wrong to be prevented undoubted. Commercial Union Ins Co v Medical Protective Co, 136 Mich App 412, 421; 356 NW2d 648 (1984), rev’d in part on other grounds 426 Mich 109; 393 NW2d 479 (1986). This vague promise does not qualify.
ii. plaintiff’s remaining claims do not warrant REVERSAL.
Plaintiff’s remaining allegations require minimal discussion.
A. EMPLOYMENT DISCRIMINATION
Plaintiff alleges violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., because defendant engaged a white male physician to replace her, a female of Indian origin. MCL 37.2202; MSA 3.548(202) prohibits "discriminat[ion] . . . because of . . . national origin . . . [or] sex.” Plaintiff failed to adduce any evidence whatsoever to support this claim in response to defendant’s properly supported motion for summary disposition. As noted, Iacoangeli averred that he terminated defendant’s relationship with plaintiff solely on the basis of her poor performance.
When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her. [Emphasis supplied; MCR 2.116(G)(4).]
Plaintiff did not come forward with any facts at all. Instead, counsel presented the previously described "Affidavit of Unavailability of Affidavits.” A mere promise to offer factual support at trial is insufficient. McCart v J Walter Thompson USA, Inc, 437 Mich 109, 115, n 4; 469 NW2d 284 (1991). Summary disposition was properly granted pursuant to MCR 2.116(G)(4).
Further, plaintiffs employment discrimination claim fails because plaintiff was not defendant’s employee. The trial court properly found that plaintiff was an independent contractor, not an employee.
An independent contractor is one who, carrying on an independent business, contracts to do work without being subject to the right of control by the employer as to the method of work but only as to the result to be accomplished. [Parham v Preferred Risk Mut Ins Co, 124 Mich App 618, 622-623; 335 NW2d 106 (1983), citing Marchand v Russell, 257 Mich 96; 241 NW 209 (1932).]
The proposed agreement renders plaintiff an independent contractor rather than an employee. The clinic staff were to be plaintiff’s employees, not defendant’s. Plaintiff would be required to pay all expenses from clinic receipts, including insurance, supplies, most business expenses, transportation, and depreciation. Plaintiff would also be liable for rent to defendant. We find no error.
B. FRAUD AND MISREPRESENTATION
We affirm the lower court’s dismissal of the counts of fraud and misrepresentation because plaintiff did not comply with MCR 2.116(G)(4). She failed to produce any affidavits or other evidence to counter lacoangeli’s affidavit denying any intent to defraud or mislead plaintiff.
Moreover, an action for fraudulent misrepresentation must be predicated upon a statement relating to a past or an existing fact. Future promises cannot constitute actionable fraud. State Bank of Standish v Curry, 190 Mich App 616, 623; 476 NW2d 635 (1991), citing Hi-Way Motor Co v Int'l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976). The actions plaintiff complained of principally relate either to promises of future action (e.g., the division of expenses between plaintiff and defendant) or to matters of opinion (e.g., defendant’s business expertise). Although the demographic makeup of Monroe County is a factual matter, plaintiff failed to oppose lacoangeli’s affidavit that he had no intent to defraud her with respect to that fact; as for claimed fraud and misrepresentation about the value of the home
plaintiff purchased, plaintiff had the opportunity to inspect it. Representations as to property value are mere expressions of opinion, especially where plaintiff can inspect the property before purchasing it. Sutton v Benjamin, 231 Mich 153, 155; 203 NW 667 (1925). See also, e.g., Cole Lakes, Inc v Linder, 99 Mich App 496, 505; 297 NW2d 918 (1980).
C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Finally, the trial court properly granted summary disposition of the claim of intentional infliction of emotional distress. A plaintiff must show "extreme and outrageous” conduct. See Roberts v Auto-Owners Ins Co, 422 Mich 594, 602-604; 374 NW2d 905 (1985), citing Restatement Torts, 2d, § 46, p 71. Further, in a contractual setting, a tort action must rest on a breach of duty distinct from contract. Roberts, supra at 603-604. Plaintiff nowhere specifically alleged conduct so extreme or outrageous as to establish liability in tort.
Affirmed. Costs to defendant.
Apparently, plaintiff and her husband did not repay the loan when it became due and the bank brought suit against them. They counterclaimed, alleging fraud and conspiracy. The outcome of that action is not known to this Court.
Plaintiffs’ counsel did not initiate any discovery proceedings between filing suit and the filing of defendant’s motion. We express no opinion about the wisdom of this strategy.
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Holbrook, P. J.
Defendant appeals from conviction by jury verdict of kidnapping. MCLA 750.349; MSA 28.581. He was sentenced to a term of imprisonment from three to ten years.
On August 13, 1969, Millard Bundy III was hitchhiking from his girlfriend’s house in Climax, Michigan. His destination was Battle Creek. Shortly after entering the third vehicle that stopped to give him a ride, he was forced at gunpoint to submit to handcuffs and was driven a short distance to a secluded area near the City of Battle Creek. While there he was forced to perform certain, homosexual acts with the driver of the automobile. Subsequently, the victim was dropped off a short distance from his neighborhood in Battle Creek.
Defendant Peter M. Burke was arrested on August 27, 1969, for the crime of kidnapping. Defendant alleges five assignments of error on this appeal, which we deal with in order.
I.
Whether the court erred by excusing certain res gestae witnesses ?
At the trial, the judge granted the prosecutor’s motion to excuse three witnesses, who were indorsed on the information, from being called to testify in the case.
Defendant and the witnesses were servicemen stationed at Fort Custer, Michigan, at the time of the alleged crime. Prior to trial the base was closed and the proposed witnesses were reassigned. One witness went to Korea, the others to Maine and Colorado. The missing witnesses were stated to have been indorsed for the purpose of showing that defendant owned an automobile, a handgun, and some handcuffs similar to the ones used in the crime.
Subpoenas had been issued and turned over to the local police who attempted to serve them. Evidence indicated and the court observed that these witnesses were unavailable and not in the state.
The case of People v Tiner, 17 Mich App 18 (1969), sets forth the rule that the prosecutor's duty to secure the presence of an indorsed res gestae witness for a criminal trial can be excused if a showing of diligence is made in an effort to produce such witness, and the determination of diligence is within the discretion of the trial court.
The trial court was satisfied that a sufficient showing of diligence had been demonstrated to properly excuse the prosecutor from producing the indorsed witnesses.
From the record here we find no abuse of discretion. See also, People v Melvin Jackson, 21 Mich App 129 (1970).
II.
Whether the trial court erred by permitting the prosecution to introduce evidence of another crime for which the defendant was not charged?
The information charged defendant with the crime of kidnapping only. At the trial evidence of homosexual offenses that allegedly took place after the complaining witness was picked up, was admitted. The court ruled that such evidence was permissible to show a reason or purpose for the alleged crime of kidnapping and further that it was part of the res gestae of the offense. MCLA 768.27; MSA 28.1050 provides as follows:
“In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident, on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”
We conclude that the testimony given was permissible to show the reason, purpose, or motive for the commission of the crime. People v Nawrocki, 6 Mich App 46 (1967). We rule it was also permissible evidence because it constituted a part of the res gestae, pertaining to the crime charged.
“It is elementary that the acts, conduct and demeanor of a person charged with crime at the time of, or shortly before or after the offense is claimed to have been committed, may be shown as a part of the res gestae. Proof of such acts is not rendered inadmissible by the fact that they may tend to show the commission of another crime. 16 CJ, pp 574, 575.” People v Savage, 225 Mich 84, 86 (1923).
III.
Whether the trial court erred in refusing to allow a physical comparison to be made of the defendant’s height and weight with that of another witness ?
At one point during the trial, defense counsel attempted to illustrate to the jury a major discrepancy in the complaining witness’s story by showing the jury at close-up range the height and weight of the defendant by having the defendant stand next to a witness, who testified as to his own height and weight. The judge refused to allow the comparison. Defendant contends this is vital physical evidence which should have 'been allowed. The prosecution asserts that defendant Burke could not properly offer an exhibit of his person to the jury unless he was willing to submit to cross-examination about possible changes in his appearance since the time of the alleged offense. Defendant would not do this because he was unwilling to take the witness stand. The prosecution further contends that the comparison had been made unnecessary by the fact that the victim had admitted giving inconsistent statements to the police concerning the size of the kidnapper,' because he did not want the kidnapper to be apprehended.
Defendant was present in the courtroom and we assume that he stood up during the course of the trial either coming or going. The case of People v Budd, 279 Mich 110 (1937), resolves the issue before us. In that case an offering was made of the defendant’s head size by allowing him to try on a hat that was found at the scene of a robbery. There, as here, the defendant also refrained from taking the stand. The Court held that the defendant did not have a right to try on the hat in front of the jury without becoming a witness for himself. We find no error here.
IV.
Whether the trial court erred by refusing to instruct the jury on circumstantial evidence?
The testimony here of the kidnapping victim alone was sufficient to warrant a verdict of guilty. The most probative evidence was the testimony of his personal experiences during the crime. This testimony was direct evidence, and not circumstantial evidence. Any inferences derived from the corro borating testimony were incidental and did not change the essential characteristics of the proofs of the crime. Therefore, there was no reason for the trial judge to instruct the jury on circumstantial evidence.
Y.
"Whether the court erred by refusing to furnish a copy of the presentence probation report to counsel for defendant, when the report had been demanded prior to sentencing?
The defendant contends that he should have had an opportunity to rebut any adverse material appearing in the presentence report, and he avers his attorney could not function effectively absent the knowledge and contents of the report.
To properly evaluate this issue we relate the facts leading up to the date of sentencing. Defendant was found guilty 'after a jury trial of the offense of kidnapping on May 6, 1970. On June 4, 1970, defendant filed a motion for admission to bail pending appeal. This was opposed by the prosecuting attorney. The court granted said motion.
On June 4, 1970, defense attorney filed a motion for new trial. The motion was answered by the prosecutor on June 12, 1970. A substantial delay was caused waiting for the transcript of the trial to be prepared. On December 24,1970, .the court filed a finding as to said motion and an order denying defendant’s motion for new trial was filed on January 11,1971. Some time thereafter the date of February 8, 1971, was set for sentencing in this matter for the convenience of the defendant. On January 25, 1971, defense attorney filed a demand with the Oalhoun County Probation Department that defense attorney be furnished with a copy of the presentence probation report no later than Wednesday, January 27,1971. On January. 28,1971, defense attorney filed a motion in the court that defense counsel be furnished with a copy of said report. This motion was orally argued February 1, 1971.
The oral argument was not taken down by the reporter, however the attorneys have stipulated to what took place at the time. The pertinent part is as follows:
“The only dialogue that took place between the trial court and either of the attorneys was at a point near the end of the argument when the trial court judge queried the attorney for the appellant along the lines that he had understood that the defendant-appellant had refused to cooperate with the probation department on advice of counsel in connection with the preparation of said report; whereupon counsel for the appellant denied that he had counseled the defendanbappellant not to cooperate with the said probation department and made the comment that, on the contrary, he had advised the defendant-appellant to fully cooperate with the probation department, and that said attorney further stated that it appeared to him from conferring with this client after the said defendant-'appellant had talked to the probation department, that outside of a few perfunctory questions concerning background, to which the defendant-appellant fully and completely responded, that the probation department was not interested in doing anything other than acting as a supra-police agency as to any possible facts that might have led to the criminal charge being brought against said defendant-appellant and that the defendant-appellant, consistent with his not testifying on his own. behalf at trial, did refuse to talk about the latter.”
The defendant did not give any information to the probation officer except facts concerning his background. The other matter, i.e., that the judge was of the opinion that the defendant did not cooperate with the probation officer was fully answered by the defendant’s attorney.
We deem it important to show what transpired at the sentencing of the defendant by the trial court on February 8, 1971, which is as follows :
“The Court: Your name is Peter Michael Burke, right?
“The Defendant: Yes.
“The Court: You stand here with your attorney, Mr. Rae, right?
“The Defendant: Yes.
“The Court: You were convicted of the crime of kidnapping May 6, 1970, by jury trial, is that right?
“The Defendant: I believe so, yes.
“The Court: The record may show I have had conferences with your attorney, he has presented me with character..letters with ratings in the military service. I have reviewed your family history and your family status at the present time. Now do you wish to say anything before I prónounce sentence?
“The Defendant: No.
■ “The Court: Now Mr. Burke, it appears that your record is clean as far as any offenses in the past are concerned. This is a very — I don’t know what word to use — a very important erime, and of course it carries up to life sentence, you understand that?
“The Defendant: Yes, I do
“The Court: I have no desire to sentence you with any such period of time, I assure you. All right, I am going to sentence you as follows, Mr. Burke: I hereby sentence you to the Corrections Commission of the State of Michigan for not more than ten years and not less than three years.”
It appears that defendant availed himself of the privilege of presenting character letters and ratings of his military service which were considered by the trial court. The defendant’s attorney also had con ferences with the trial judge concerning sentencing. There is nothing in the record which would indicate that the trial court considered anything derogatory to the defendant’s past or present except the evidence in the case, which we point out would have justified a much harsher sentence than that which was meted out to the defendant.
The defendant and his counsel were given ample opportunity to make statements which they declined to make presumably because they were satisfied with the written matter presented to the court and the conferences that took place between the defendant’s attorney and the court. People v Malkowski, 385 Mich 244 (1971).
There being no showing of any prejudice to defendant, we rule that it was not reversible error for the trial court to have refused to give to .the defendant a copy of the probation report before sentencing.
Affirmed.
All concurred. | [
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T. M. Burns, J.
Defendant was convicted in a nonjury trial of felony murder contrary to MCLA 750.316; MSA 28.548. He was sentenced to life imprisonment and brings this appeal as of right.
While in the custody of the police, the defendant, after being informed of his rights, at some point in the interrogation, stated that “everything I say is off the record”. At a Walker hearing, defendant maintained that he had asked that everything he said during the interrogation be off the record. Detective Hatchew, an interrogating officer, contended that defendant stated that “everything is off the record” only after he had related sufficient facts to place himself at the scene of the crime.
The trial court, after listening to the testimony of both witnesses, determined that defendant’s statement came only after he had already placed himself at the scene of the crime. He therefore ruled that only the statements made thereafter were inadmissible. The statements made subsequent to the request that everything be kept off the record were deemed inadmissible because the trial court found that defendant relied on certain promises by the policemen that the statements would not be used.
It is defendant’s position that the prosecutor did not carry the burden of proving that the statements placing him at the scene of the crime were voluntary. See Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR2d 974 (1966). Present at the interrogation were Detectives Hatchew and Kostka. Kostka testified that defendant had stated he wanted everything off the record. However, in response to leading questions by the prosecutor, Kostka stated that it was not defendant’s first statement, and that he could not remember what led up to defendant’s demand to keep his statements off the record.
The only individual present who stated that defendant gave the statements placing him at the scene of the crime subsequent to being advised of his rights and before stating* that “everything is off the record” was Detective Hatchew. Defendant therefore contends that a finding that the statements were admissible is contrary to the weight of the evidence.
In denying defendant’s motion for a new trial the court stated:
“At the Walker hearing* on September 9, 1970, it was obvious to the court that Detective Hatchew had a better recollection of what transpired at the interrogation of defendant than did Detective Kostka as is evident from the portions of the transcript cited in defendant’s brief at page eight. Detective Kostka could not remember exactly the sequence of the questioning* or the request by the defendant.
“The court relies on Detective Hatchew’s testimony in this respect.”
At a Walker hearing, the trial judge sits as the trier of fact. Therefore, when confronted with a conflict in the testimony, as in the instant case, it is his duty to determine the credibility of the witnesses and arrive at his decision of whom to believe. The only issue at the Walker hearing was the credibility of the witnesses, and the record amply supports the trial judge’s finding. People v Stroble, 31 Mich App 94 (1971).
Defendant next contends that under the Michigan Constitution the trial court is precluded from sitting as the trier of fact at both the Walker hearing and the trial in chief.
People v Walker, 374 Mich 331 (1965), requires that the issue of voluntariness of a confession is to be determined completely apart from and independent of the jury that determines the defendant’s guilt or innocence. Defendant therefore contends that one who waives a jury trial should be afforded the same independent determination of the voluntariness of his confession.
“Const 1963, art I, sec. 20, guarantees a defendant a right to trial by an ‘impartial jury.’ On jury waiver, a judge ‘shall proceed to hear, try, and determine such cause in accordance with the rules and in like manner as if such cause were being tried before a jury.’ CL 1948, § 763.4 (Stat Ann 1954 Rev § 28.857). In effect, the statute places the same standard of impartiality on the judge as the constitution places on the jury.” People v Frazier Walker, 24 Mich App 360, 361 (1970).
In the instant case the trial judge, while presiding at the Walker hearing, heard only the statements which he ruled were admissible. All of the statements deemed inadmissible were not heard by the trial judge while sitting as trier of fact at the Walker hearing.
Since only the admissible testimony was ever heard by the trial judge, we fail to see how his impartiality could have been affected by his presence at the Walker hearing. Had the judge heard a confession and then, after ruling that it was inadmissible, also sat as trier of fact at the trial in chief, then we would have to decide whether the defendant had been deprived of a fair trial. Here, however, the trial judge heard nothing at the Walker hearing that he did not hear again during the trial. Defendant neither shows prejudice nor any authority which would require us to reverse on this ground. We find his contention to be without merit.
Defendant also contends that the verdict is against the great weight of the evidence. Our review of the record reveals ample evidence to support the conviction. We consider this argument to be completely meritless and, therefore, will not discuss it further.
■ Finally, defendant contends that the trial court committed reversible error in restricting defense counsel’s cross-examination of a prosecution witness.
During trial, one William Lillieberg testified that defendant stated that he “shot a guy the night before at a gas station and wanted me to go with him while he hid the guns”. Lillieberg further testified that defendant described the shooting at the gas station, the hiding* of the guns on Hemphill Road, and the subsequent removal of the guns to a register in defendant’s home. During cross-examination of Lillieberg, defendant’s counsel asked him when he had reported the conversation between himself and the defendant to the police. Lillieberg stated that he reported the incident when he was arrested in February and defense counsel then asked, “What were you picked up for?” The prosecutor objected to the question, and the trial court sustained such objection ruling that the witness could not be impeached on a prior juvenile record. Defendant contends that the court erred in so restricting defense counsel’s scope of cross-examination and that a denial of such cross-examination was a denial of defendant’s constitutional rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.
This Court, in People v Davies, 34 Mich App 19, 26 (1971), leave to appeal denied 385 Mich 773 (1971), stated:
“There is no sound reason for excluding the history of juvenile offenses in a case not ‘against’ the juvenile offender but against someone else whose liberty is at stake. If, as is the law, the jurors are entitled to know ‘what manner of person the defendant is’ if he takes the stand, surely they are also entitled to know what manner of person the people’s chief witness is.
“In this connection it is relevant that our Court has held that a judge may consider a defendant’s juvenile record in imposing sentence. Clearly, if the policy of the statute does not protect the juvenile against use of his juvenile record against him when he is sentenced for another crime, it is not so pervasive that it protects him against disclosure of his record when he is a witness — here the chief, perhaps an indispensable, witness — against someone else.
“The record does not show whether Brudna did in fact have a juvenile record. If he did, then Davies is entitled to a new trial.”
Although Davies was decided after the trial in the instant case, we are in accord with the reasoning contained therein and hold that it is applicable to the instant case. Since Lillieberg was a key prosecution witness, the case must be remanded to the trial court for a hearing to determine whether or not witness Lillieberg did indeed have a juvenile record. If he did, then there must be a new trial since defendant should be able to impeach the credibility of so crucial a witness. If the witness has no record then, of course, defendant was not prejudiced and the conviction will stand.
Remanded to tbe trial court for proceedings in accordance with this opinion.
O’Hara, J., concurred.
Danhof, P. J., concurred in the result only. | [
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McGregor, P. J.
Defendants were found guilty by a jury of the felony of breaking and entering a building with intent to commit a larceny; MCLA 750.110; MSA 28.305. Their convictions arose out of the breaking and entering of Bill’s T Y Store, in Marysville, Michigan. At trial, Louis O’Neill testified that he and his wife were awakened at about 4 a.m. by the sound of breaking glass. The O’Neill residence is located across the street from Bill’s T Y. Upon looking out their window, the O’Neills were able to observe a car parked next to the T Y store, see that the front window of the store had been broken, and that the car parked next to the store was a light-colored convertible. The police were called.
At trial, Dean Keith DeShon, the owner of the store, testified that the store had been locked and that no one had been given permission to enter. He testified also that he was able to determine what was missing by comparing the merchandise on the floor of the store against inventory sheets. The TV sets found in defendants’ possession at the time of their arrest were marked. At trial, defense counsel moved to suppress the admission of these TV sets, the motion was denied, and the sets were admitted into evidence and were identified as being from the store. The captain of the Marysville Police Department testified that at about 4:30 a.m. on the day in question, he received a radio call on his car radio that there was a breaking and entering in progress at Bill’s T V Store. Upon receiving this message and being advised that a convertible was involved, the captain proceeded to Gratiot Avenue by the quickest route, which caused him to be at a point southwest of the store where he observed a convertible driving on Gratiot; he radioed his partner that he had spotted a car similar to the suspected car, and proceeded to follow the car. The officer turned on his overhead light and the suspect car stopped. The police officer’s partner arrived and the two officers searched the car; they found two TV sets in the back seat and the defendants were arrested. The men and the car were searched; a pair of gloves were found on the front seat and two prybars were found on the floor. The captain testified that his partner read the defendants their rights. He further testified that, at the time of their apprehension, the police officers talked to the defendants and they did not care to discuss anything about it. Counsel for the defendants objected and moved for a mistrial on the basis that such a statement amounted to adverse comment on the defendants’ rights to remain silent. The motion was denied. Later, the other officer was permitted to testify, over defense objection, that the defendants were informed of their right to remain silent and that they then remained silent when asked if they wished to talk.
This Court is now asked whether reversible error resulted when the arresting officers were allowed to testify, over the objections of the defense, that the defendants had been informed of their right to remain silent, and had then made no response to the question of whether they had anything to say.
The prosecution may not use at trial the fact that a defendant exercised his privilege of silence in the face of accusation, for such would penalize the defendant for exercising the privilege. Miranda v Arizona, 384 US 436, 468; 86 S Ct 1602, 1624; 16 L Ed 2d 694, 720; 10 ALR3d 974 (1966).
In Griffin v California, 380 US 609; 85 S Ct 1229; 14 L Ed 2d 106 (1965), the prosecution commented in closing argument that the defendant failed to take the stand and testify as to his alibi; the Supreme Court held:
“Comment on the refusal to testify * * * is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.”
The Court then went on to hold that the Fifth Amendment, and its direct application to the Federal government and in its bearing on the states through the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.
A year later Miranda v Arizona, supra, applied Griffin, supra, to the interrogation stage. In footnote 37 the Court says:
“In accord with onr decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”
Long before Miranda, the rule in Michigan was that the prosecutor could not comment on the failure of a defendant to make a statement in the face of an accusation. See People v Bigge, 288 Mich 417, 425 (1939). This Court, in People v Gisondi, 9 Mich App 289 (1967), held that statements of a person in custody may be used in evidence against him, but his silence may not.
The case of State v Stuart, 456 SW 2d 19 (Mo, 1970), while unique in the manner in which the testimony came before the jury, seems to be applicable to the instant case. In response to a question asked by one of the jurors, the police officer indicated that defendant remained silent after being informed of his rights. The Court held that, since the failure to volunteer an explanation is not admissible as an admission, the probability that the jury could have inferred that defendant, by his silence, admitted that the property was stolen by him was too great to allow the verdict to stand. The same could be said of the instant case. Since the defendants here were charged with breaking and entering, the probability that the jury inferred from the fact that they failed to explain their possession of the stolen property that they were admitting that they stole it, is just too great to say it was harmless error. This is amplified by the fact that the defense argues that there was no showing that defendants actually broke into the store. The defense contended that defendants were merely the transporters of the stolen goods.
This is not a case where the issue was not properly preserved by an objection at the trial court level, as in People v Webb, 13 Mich App 625 (1968); People v Lamson, 22 Mich App 365 (1970); People v Thomas Martin, 26 Mich App 359 (1970); and People v Shugar, 29 Mich App 139 (1970). Neither is this a case where the trial judge struck the testimony or admonished the jury not to consider the testimony, as in People v Jew, 21 Mich App 408 (1970); People v Skidmore, 28 Mich App 677 (1970).
In the instant case defense counsel vigorously objected to the testimony and continually renewed the objection; yet the trial court allowed the testimony to be given, did not strike the testimony, and did not admonish the jury.
The admission of such testimony obviously was error. The only question is whether or not it was harmless error. For the reasons set forth in State v Stuart, supra, it would not appear that it could be said that it was harmless error. Also, since the prosecutor failed to file a brief in opposition, the inevitable conclusion is that he agrees that reversible error was committed. People v Walma, 26 Mich App 326 (1970). It would appear that the better rule is that there is absolutely no probative value in eliciting that the defendants were informed of their rights unless the prosecutor intends to offer a confession or statement made by the defendants. Since there is a potential prejudicial effect even from the mere mention of the rights statement, even in the absence of testimony that the defendant wished to exercise those rights, such statements should be excluded. Where there is an objection to such testimony, the trial court, in an attempt to alleviate the error, should immediately strike the testimony and instruct the jury that they should not consider it, and should then prohibit the prosecutor from mak ing any further reference to the defendant’s exercise of his right to remain silent.
Continued expansion of the harmless error rule will merely encourage prosecutors to attempt to get such testimony in, since they know that, if they have a strong case, such testimony will not be considered to he reversible error, yet if they have a weak case, they will use such testimony to buttress the case to gain a conviction and then hope that the issue is not raised on appeal.
The consideration of the other alleged errors is not necessary in the light of our holding herein, and such alleged errors may not occur at retrial.
Defendants’ convictions are reversed and these consolidated cases are remanded for new trial.
All concurred. | [
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Brennan, J.
Plaintiffs appeal as of right from a February 2, 1990, order granting summary disposition to defendants pursuant to MCR 2.116 (C)(8) and dismissing plaintiffs’ age discrimination claim brought under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., as well as their claim of tortious interference with economic advantage. We affirm.
William Frye was an employee and fifty-percent shareholder of J. R. Thomas & Associates, Inc. William Pryor was an employee and fifty-percent shareholder of Pryor Mechanical Sales, Inc. J. R. Thomas and Pryor Mechanical entered into sales representative agreements with Sloan Valve Company and later with Water Control International, Inc., Sloan’s wholly owned subsidiary. Pursuant to the agreements, J. R. Thomas and Pryor Mechanical were independent contractors for defendants. Sixty percent of the revenue Frye generated for J. R. Thomas and ninety percent of the revenue Pryor generated for Pryor Mechanical was allegedly derived from the sale of defendants’ products. In 1989, Sloan and Water Control canceled their sales representative agreements with J. R. Thomas and Pryor Mechanical. At that time, Frye was sixty-six years old and Pryor was sixty-five years old. Pryor asked a representative of Sloan Valve if the cancellation of the sales representative agreements could be reconsidered. The representative indicated: "Forget it — this is a done deal. Besides you’re sixty-five years of age and it’s time for you to retire.”
Plaintiffs subsequently filed this suit, claiming age discrimination in violation of the Civil Rights Act and tortious interference with economic advantage. Defendants filed a motion for summary disposition, claiming that the business relationship between plaintiffs and defendants was not a relationship protected by the act. The trial court granted defendants’ motion for summary disposition. The court indicated that to determine whether plaintiffs were employees, it was required to look at the employer’s right to control the employee. Because plaintiffs had not alleged that they performed their duties under the supervision of defendants or that defendants had the right to control plaintiffs, the court found that summary disposition was appropriate. The court also granted summary disposition with regard to plaintiffs’ claim of tortious interference with business relations. The court indicated that because there was no wrongful act per se, plaintiffs could not recover.
Plaintiffs first argue that the court erred in granting summary disposition to defendants with regard to plaintiffs’ Civil Rights Act claim. A motion for summary disposition brought pursuant to MCR 2.116(C)(8) should be granted only if the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right of recovery. Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988).
The Civil Rights Act provides, in part:
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status. [MCL 37.2202(1) (a); MSA 3.548(202)(l)(a).]
Plaintiffs concede that they do not have an employment relationship with defendants. Plaintiffs argue that a direct employer-employee relationship is not required because the act may be interpreted broadly to include indirect employment relationships. Plaintiffs are not contending that they are entitled to recover on the basis of being independent contractors. Instead, plaintiffs assert that defendants can be held liable under the act for interfering with their employment opportunities with their respective employers. Among other cases, plaintiffs cite Gomez v Alexian Bros Hosp of San Jose, 698 F2d 1019 (CA 9, 1983), and Sibley Memorial Hosp v Wilson, 160 US App DC 14; 488 F2d 1338 (1973). However, even if we were to determine that the act protects such indirect relationships and protects against such interference, we find that plaintiffs would be unable to recover. Plaintiffs were at least fifty-percent shareholders and officers of the corporations that employed them. It would be illogical to find that defendants substantially interfered with plaintiffs’ employment relationship with their respective employers given the type of business relationship plaintiffs had with their employers. Moreover, the conditions of plaintiffs’ employment remained the same after defendants terminated the contracts with plaintiffs’ employers. Gomez, supra. Accordingly, we find that the trial court did not err in granting summary disposition with regard to this issue.
Plaintiffs also argue that the court erred in dismissing their claim of tortious interference with economic advantage. Plaintiffs alleged that defendants interfered with plaintiffs’ business relationships with their respective employers by canceling defendants’ sales representative agreements with J. R. Thomas and Pryor Mechanical. In order to establish a cause of action for tortious interference with economic advantage or business relations, the following must be proven: (1) a valid business relationship or expectancy, (2) knowledge of the relationship or expectancy on the part of the interferer, (3) an intentional interference inducing or causing a breach or termination of a relationship or expectancy, and (4) damages. Feaheny v Caldwell, 175 Mich App 291, 301; 437 NW2d 358 (1989). We believe that the relationship between plaintiffs and their employers was not the type of relationship intended to be protected by the tort of interference with economic advantage. It would be ludicrous to suggest that defendants somehow induced the owners of Pryor Mechanical and J. R. Thomas to breach business relationships with plaintiffs where plaintiffs were officers of their respective corporations and owned fifty percent of the stock. Accordingly, we find that plaintiffs failed to state a claim upon which relief could be granted, and that the trial court properly granted defendants summary disposition with regard to this issue, albeit for the wrong reason. Portice v Otsego Co Sheriff’s Dep’t, 169 Mich App 563, 566; 426 NW2d 706 (1988).
Affirmed. | [
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Memorandum Opinion.
Defendant Frankie Murphy was found guilty by a jury of larceny in a building (MCLA 750.360; MSA 28.592), was sentenced to 2-1/2 to 4 years in prison, and now appeals.
Two of defendant’s allegations of error were not properly preserved for appellate review. Defendant’s third allegation of error is without merit.
Affirmed. | [
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Pee Curiam.
Defendant was convicted by a jury of breaking and entering a store with intent to commit a larceny therein, contrary to MCLA 750.110; MSA 28.305. Subsequently, he was sentenced to serve 9-1/2 to 10 years in prison. He appeals as of right, raising three assignments of error.
First, defendant maintains that the evidence was insufficient to warrant the jury’s verdict of guilty beyond a reasonable doubt. We disagree. The defendant admitted entering a store with the intent to commit a larceny although he denied that he broke the window through which he entered. Testimony of the store’s manager established that the store had been broken into by someone after the manager had secured the premises. The question of fact as to whether the defendant, found within the store, was the person who broke into it was properly submitted to the jury. People v Garrett, 17 Mich App 69 (1969); also People v Wies, 24 Mich App 294 (1970); People v Tiszae, 23 Mich App 114 (1970); People v Lambo, 8 Mich App 320 (1967).
Second, defendant asserts that the trial court’s instructions on lesser included offenses were improper. The record, however, reveals no timely objection or request for instructions on lesser included offenses and, therefore, this issue has not been preserved for review. People v Duerson, 35 Mich App 223 (1971); People v David Smith,, 16 Mich App 198 (1969); People v Lewis, 26 Mich App 290 (1970); People v Walsh, 27 Mich App 100 (1970).
Finally, defendant maintains that the trial court abused its discretion in denying defendant’s motion for a mistrial based upon the claim that defendant was prejudiced by the prosecutor’s remarks, allegedly made off the record, offering the remaining indorsed witnesses to the defense.
In People v Nick, 360 Mich 219, 234 (1960), an unrecorded claim of prejudice was made and the Court responded:
“The claim that one of the women jurors indicated prejudice against defendant because she laughed when certain testimony was given, and when counsel for defendant in argument made some reference to her father, is wholly without merit. The record does not show counsel’s statement and the laughter, if such there was, might well have indicated merely surprise at the reference. In any event on the record before us there is no showing of prejudice against appellant. A like situation obtains with reference to the alleged action of the juror in laughing while a witness was testifying. The testimony is not before us and we have no way of determining the reason for the juror’s amusement. It may be noted in this connection that the trial judge in his opinion stated that he was not aware of any laughter, stating positively that it was not of such character as to cause him to notice it.”
See also People v McDonald, 17 Mich App 88 (1969).
Similarly, in the instant case, the record does not indicate an offer of the remaining witnesses by the prosecutor and the trial judge positively indicated that he heard no such offer.
Affirmed. | [
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Per Curiam.
Defendant pled guilty to charges’ of attempted breaking and entering with intent to commit larceny, a violation of MCLA 750.110; MSA 28-.305, and attempted possession of burglary tools, a violation of MCLA 750.116; MSA 28.311. In this appeal it is claimed that the trial court erred in accepting his guilty plea without making further inquiry in order to ascertain whether or not defendant had a valid defense based on his alleged intoxication. Defendant’s contention is principally grounded upon the following colloquy which took place at the guilty plea hearing:
"The Court: What did you do?
“Defendant Ketola: Well, we were out, we left the house and it was right after the holidays, after Christmas and we were drinking and we had about a case of beer. Then we stopped by Fred’s house and got $10 and bought another case of beer. By that time we were pretty well drunk and we were driving out toward Walled Lake, and we went by this loan company place and we went around to the back of it and went inside of it. After we got in there, I had been working on construction, and doing a job over here in Berkley and I had some tools that I, in the trunk, that I was working with on this job and so we went in there and took the tools and went around and opened the door and after we realized what we had done, we said, let’s get out of here, but it was too late. We didn’t touch, I told them to forget it, leave everything as it was and let’s just leave. We had been drinking, both of us.
“The Court: You did have tools then, tools for burglary, and you did have and made an attempt to possess them for that use 1
“Defendant Ketola: I didn’t have the tools there for that.reason. I had the tools in there for another reason. I knew the tools were in there and I used them for that purpose, but I didn’t bring them, I have a saw, a drill, and a bunch of stuff in there.”
It is well established that evidence of intoxication can negate the requisite specific intent necessary to sustain a defendant’s conviction for a crime which requires proof of specific intent. People v Kelley, 21 Mich App 612 (1970); People v Crane, 27 Mich App 201 (1970); People v Stoner, 23 Mich App 598 (1970). The situation in Stoner is somewhat similar to the case now before us in that there the defendant also claimed he was drunk and indicated that he did not know what he was doing at the time the alleged crime was committed. However, in Stoner the defendant could not recall participating in either the planning or the commission of the crime. Therefore, as the court correctly concluded, a factual basis for the guilty plea was not established.
Considering the case presently before us, the above quoted testimony of defendant indicates that he not only had an awareness of his involvement in a burglary, but also that he was able to recollect the events at the scene of the crime with a substantial degree of specificity. The significance of a defendant’s recollection of the events at the time the alleged crime was committed has been noted by a number of decisions of this Court sustaining guilty pleas. People v Duncan, 17 Mich App 710 (1969); People v Williams, 27 Mich App 567, 571 (1970). In Williams the Court stated:
“It is argued'that the defendant was so intoxicated that he was not able to have the requisite specific intent. However, the defendant was represented by counsel and was able to recount in detail exactly what happened at the time of the crime. He explained to the court how he gained entrance and what he did after he gained entrance. As in People v Nicholson (1969), 18 Mich App 603, this Court is satisfied that defendant’s intoxication did not negate the requisite specific intent, because defendant could recall his acts in detail.”
Likewise, there was no reversible error in the trial court’s acceptance of the defendant’s plea of guilty in the present case.
Affirmed.
People v Bartlett, 17 Mich App 205, 208-209 (1969); GCR 1963, 785.3(2). | [
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Memorandum Opinion.
Defendant pleaded guilty to assault with intent to rob being armed and he appeals. A motion to affirm has been filed by the people.
Upon an examination of the briefs and record it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Motion to affirm is granted. | [
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Per Curiam.
Defendant sold his share of a restaurant to the plaintiff. As a part of the sale of the business, defendant executed a covenant not to en gage in a competitive business within a certain geographical area and for a limited period of time. Plaintiff asserted, and the jury found, that defendant engaged in a competitive business. The jury awarded damages to plaintiff in the amount of $20,-534. Defendant now appeals from the denial of his motion for a new trial or, in the alternative, a remittitur.
The defendant raises numerous allegations of error. A review of the record convinces us that most of these assignments of error are either not properly preserved for appellate review or are totally lacking in merit. The sole question of merit is whether the verdict was excessive.
In this ease it is clear that the jury simply mechanically accepted the amount of damages asserted by the plaintiff, and then reduced that figure to reflect the fact that the plaintiff owned only a 65% share of the business. The amount of damages claimed by the plaintiff included damages other than loss of profits, and because recovery was limited by the instructions of the trial judge to loss of profits, the verdict rendered by the jury was excessive. The plaintiff asserted that the business suffered a loss of profits totalling $16,142.72. This amount is within the scope of the testimony and it is clear that the jury found that there was this loss. When the amount of damages is reduced to reflect the plaintiff’s partial ownership, it is clear that the proper verdict should have been $10,492.77. Therefore, all damages awarded in excess of this figure are excessive.
The cause is remanded to the trial court. If the plaintiff will consent to a remittitur in the amount of $10,041.23 judgment should be entered in his favor for $10,492.77. If the plaintiff will not consent to remittitur the defendant shall have a new trial. GCR 1963, 527.6.
Interest on the adjusted judgment shall be computed from the date of the filing of the complaint. MCLA 600.6013; MSA 27A.6013.
Remanded for further proceedings consistent with this opinion. No costs, neither party having prevailed in full. | [
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Memorandum Opinion.
Defendant pleaded guilty to assault with intent to rob being armed and he appeals. A motion to affirm has been filed by the people.
Upon an examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Motion to affirm is granted. | [
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Targonski, J.
The parties were married June 15, 1957, and separated in May of 1969. On July 3, 1969, plaintiff wife filed a complaint for absolute divorce on the grounds of extreme and repeated cruelty, MCLA 552.7; MSA 25.87. At the outset, defendant husband filed a counterclaim for divorce on the same statutory grounds. However, such counterclaim was withdrawn by defendant prior to trial and allegations of recrimination by plaintiff were filed by defendant.
After 1-1/2 days of testimony, the trial judge dismissed the complaint on the basis that plaintiff had failed to prove by competent testimony the existence of the statutory ground to justify a grant of divorce. Our distinguished colleague, in writing for reversal, relies on the fact that presently the parties are living apart. However, he ignores the fact that this arrangement exists only because plaintiff, upon filing her appeal, applied for and received the assistance of the trial court in the enforcement of a restraining order entered by the trial court at the commencement of the action. Under the terms of the restraining order, defendant was required to vacate and stay away from the marital home pending disposition of the action. He had resumed his domicile in the marital home but respected the court order and vacated the premises in conformity with the terms of the court order, after this appeal was commenced. Obedience to a court order which causes an enforced separation of the parties can hardly be considered justification for a judgment of divorce on the ground that “the parties live apart”.
While it is true that on appeal this Court reviews the record de novo, the Court generally gives great weight to the findings of fact of the trial judge. Hartka v Hartka, 346 Mich 453 (1956). The trial court is where truth is best tested as the contesting parties and their witnesses appear face to face in flesh and blood with weight and size and demeanor under the eyes of the trial judge. He has the opportunity to note the marks of hesitation, averted glances, and to detect the note of hysteria in the voice of the witness who seeks to deceive. Buettner v Buettner, 33 Mich App 448 (1971). We lose that advantage on appeal.
The trial judge, at the conclusion of the testimony, in a well-written and carefully-prepared opinion, cited the extreme cruelty test set forth in Tiffany v Tiffany, 370 Mich 370, 372 (1963), quoting Williams v Williams, 351 Mich 210, 213 (1958):
“ ‘[T]he cruelty we demand is more than display of temper, more than exasperating habits of conduct or expression. We must get into the realm of the evil and the wicked, of brutality, of malignancy, of indignities endangering mental or physical health.’ ”
A careful reading and analysis of the transcript of testimony in the trial court leads us to concur with the trial judge that the test of Tiffany, supra, was not met here. Given the same facts and circumstances, we are not convinced that we would have reached a different conclusion than the trial court did. Riha v Riha, 30 Mich App 145 (1971).
For the reasons cited herein, we find that the lower court should he, and it hereby is, affirmed.
Danhof, P. J., concurred. | [
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Holbrook, J.
Defendant was tried in the circuit court of Kent County on September 9, 1968 before the Honorable Claude Yander Ploeg, was found guilty of murder in the second degree by the jury; and was sentenced to life imprisonment. MCLA § 750.317 (Stat Ann 1954 Rev § 28.549).
The facts surrounding the murder are:
On July 14, 1967 defendant registered at a hotel in Grand Rapids. Defendant planned to return to the room later after celebrating his birthday. At about 9:30 p.m., accompanied by his fiancee, Rosie Hardges, defendant returned to the hotel room. An argument ensued which grew more violent finally terminating in defendant strangling the victim to death with a lamp cord. Defendant then filled the bathtub with water and placed the body face down in the tub.
Defendant left the hotel and later returned to Miss Hardges’ house where he told her parents that she had left him at the theatre, and he had not seen her since. He filed a missing persons report with the Hardges family and then helped them look aronnd Grand Eapids for the victim.
On the morning of July 15, 1967, defendant’s parents drove him back toward Great Lakes Naval Training Center, where he was stationed at the time. While driving on the Illinois Interstate, defendant told his parents that he thought something had happened to Miss Hardges and that he wanted to tell the police. They stopped outside Waukegan, Illinois, and defendant surrendered to the Illinois State Police.
The defendant raises eight issues on appeal which are restated and dealt with in order.
(1) Whether defendant’s confession to the Illinois authorities was in conformity with the requirements of Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602; 16 L Ed 2d 694).
Defendant contends that he was not fully advised of his constitutional rights prior to 'making a: confession to the Illinois State Police officer as required by Miranda. The waiver of his rights was embodied in the trial court record:
“I, Eugene Tubbs, hereby state that I have been advised by Corporal Donald D. Trent, who has identified himself as an Illinois State Police Officer that I have a right to remain silent and that I need not say anything to him or to any other law enforcement officer if I do not desire, and that’ I need not answer any questions, that in the event that I answer any questions the answers that I give can be and may be used as evidence against me. I have further been advised by the officer that I have a right to have a lawyer present at this time and before or during any questioning hereafter by any law enforcement officer. I have further been advised that if I cannot afford a lawyer to be present to be [sic] before or during any questioning’, a lawyer will be provided for me; Having been advised as above and understanding that I have these rights, I hereby freely and voluntarily waive them. Dated at Illinois Interstate 294 this- 15th day of July, A.D. 1967. Signature Eugene Tubbs, witness’ statement. Mine, Corporal Donald D. Trent and Trooper Williams, 916.” Trial Transcript, Vol 1, pp 12-13.
Defendant contends that he was not fully advised of his constitutional rights because he was not advised that interrogation would cease at his request. In support of this position defendant cites People v. Jourdan (1968), 14 Mich App 743. The brief opinion of this Court was as follows:
. “Per Curiam. Defendant was tried by a jury on April 12 and 13,1967, and convicted of breaking and entering, MCLA § 750.110 (Stat Ann 1968 Cum Supp § 28.305). Thereafter, he was sentenced. His appeal attacks the admission of his oral confession at trial.
This -attack is based on the following facts: Defendant was questioned by the police October 5,1965, at which time he was advised of his right to remain silent, that anything he said could and would be used against him m court, that he was entitled to an attorney-and an attorney would be furnished to him if Im could not afford to employ one. Defendant was not.advised that interrogation would cease at his request and that he was entitled to counsel during interrogation, as required by Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602; 16 L Ed 2d 694). Johnson v. New Jersey (1966), 384 US 719 (86 S Ct 1772; 16 L Ed 2d 882), made Miranda applicable to trials commenced after June 13, 1966.
' “Although the trial court determined defendant’s confession voluntary and admissible after a Walker hearing, this court is bound by the Miranda doctrine. People v. Whisenant (1968), 11 Mich App 432. Reversed and new trial ordered.”
The people argue that Miranda does not require the authorities to specifically advise a person in custody before questioning that interrogation will cease at his request. Likewise the people assert that Jourdan misconstrued the ruling of Miranda because the Miranda holding does not require that the accused be specifically and separately advised before he is questioned that interrogation will cease at his request.
Miranda as interpreted in People v. Whisenant, supra, required defendant to be warned of his constitutional rights including the right to have counsel, retained or appointed, present during the questioning and the giving of his statement, but did not rule so as to require a further warning that the interrogation would cease at his request. After a careful reading of Miranda we conclude that the constitutional warnings given to the defendant prior to the making of his confession satisfied the requirement of Miranda, supra.
Miranda, at 384 US 473, 474, reads in part:
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” (Emphasis supplied.)
We conclude that the foregoing reference to the fact that whenever an individual indicates his desire to remain silent, the questioning must cease, is a rule to govern the conduct of the proceedings and is not the setting out of a special warning requirement. The subject’s warning requirements at that point concerning his right to remain silent have already been given.
We consider the Jourdan per curiam decision as dictum insofar as it states: “Defendant was not advised that interrogation would cease at his request * * * as required by Miranda” because it was unneóessary in deciding the case to rule on this aspect of the matter.
People v. Woods (1969), 382 Mich 128, appears to have '.set the rule in Michigan to confine Miranda to its precise command. By our decision herein, we apply Miranda as we understand its precise command. ■ „
(2) Whether the jury was precluded from finding that defendant was. sane at the time of the homicide because defendant produced two medical witnesses at trial whose testimony. conflicted with that of the medical witness called by the people on the-issue of sanity.
Defendant contends that the evidence submitted to the jury was overwhelming that he was mentally incompetent and that the jury disregarded such preponderance of the evidence in arriving at their verdict. Defendant cites neither evidence nor authority for his argument.
At trial, three medical witnesses testified concerning defendant’s mental condition. The two experts testifying for defendant stated that in their opinions he was suffering from various mental disorders. The expert witness called on behalf of the people testified 'that, in his opinion, defendant was sane. Thus evidence was presented on both sides of the sanity issue and the expert testimony was conflicting. It was a jury question and the jury determined that defendant ■ was sane and found him guilty. It was not error for it to do so. As stated in 2 Gillespie, Michigan Criminal Law and Procedure, § 630, p 816:
“It is the sole province of the jury to pass upon conflicts in the testimony. The question of the sufficiency of the evidence is likewise for the jury, unless there is no evidence at all upon material points. * * * It is the province of the jury to determine the credibility of all witnesses, and it may believe one witness as against many. The weight of testimony does not necessarily depend upon the number of witnesses.”
More importantly and more specifically, the Supreme Court has held, in People v. Krugman (1966), 377 Mich 559, 563 (141 NW2d 33), that the issue of the accused’s sanity is to be determined solely by the jury when conflicting evidence is presented:
“The jury is the ultimate judge of defendant’s sanity at the time of the crime, and in this case, since it had before it evidence of defendant’s behavior and state of mind upon the basis of which it could have found defendant sane at that time, it was not bound by the expert testimony of the doctor.”
Based upon the above cited authorities, there was no error in the finding by the jury that defendant was sane at the time of the homicide.
(3) Whether the trial judge committed error by permitting the trial to continue in Grand Rapids after the potential jurors were allegedly exposed to what defendant now asserts constituted prejudicial pretrial publicity in the news media, where the record discloses no motion was made by defendant for a change of venue or a continuance at the appropriate time.
Defendant alleges error by the trial judge in permitting the trial to proceed in Grand Rapids after the potential jurors had allegedly been exposed to what defendant now argues constituted prejudicial pretrial publicity in the news media. Defendant cites no authority in support of this proposition.
There is no indication that defendant ever filed a timely motion for change of venue. Indeed there is no indication on any of the material before this court that there was any publicity or local prejudice at any stage of the proceedings.
Under such circumstances, defendant was not entitled to raise a motion for change of venue based on pretrial publicity at any later stage of the trial; People v. Fitzsimmons (1914), 183 Mich 284 and People v. Havey (1968), 11 Mich App 69. Neither may defendant raise this issue for the first time on appeal. People v. Omell (1968), 15 Mich App 154.
(4) Whether defendant’s confession was rendered inadmissible because his parents were not in the room with him when he made the confession, although defendant had been with his parents until immediately before making his confession and they were never farther away than the next room, and defendant never requested the presence of his parents during the giving of his confession.
Defendant argues that he should not be held accountable for what he told the prosecutor in Illinois while under great mental strain especially when he was denied the counsel and comfort of his parents who were present and available nearby and his parents were not given time to engage an attorney for him.
In addition to the above argument having no basis in law, and no such basis is alleged in support thereof, it has no basis in fact. During the time when defendant actually made the statement, his parents were available in the adjoining room. It also appears that at no time did defendant ever request the presence of his parents.
In like manner, defendant’s allegation that defendant’s parents were not given time to engage an attorney for him is devoid of merit. There is absolutely no indication that anyone wished to retain or was prevented from obtaining an attorney for any reason whatsoever at the time the statement was given.
Defendant’s fourth assignment of error is completely without legal or factual basis.
(5) Whether the trial judge committed error in advising the jury when it returned for questions and further instructions after the charge had been given, where defendant made no objection to any of the additional instructions of the court either at the time or in his motion for a new trial.
Defendant makes no specific allegation of error in this portion of the proceedings, and he cites no authority in support of his argument. The record discloses that the jury returned on two occasions for questions or further instructions after being charged. On the first occasion, the trial judge answered a question for the jury and on the second occasion, he clarified his answer to the earlier question and reiterated part of his original charge at the jury’s request. Defendant stated that he was satisfied with the original charge, and he did not object to any answers or instructions given to the jury on the two occasions. Nor did defendant raise any objections to these answers and additional instructions of the court in his motion for a new trial, filed September 13, 1968.
It is well established that as a general proposition any objections to the trial judge’s instructions to the jury must be raised at the time the instructions are given or the objections are waived. People v. Cassiday (1966), 4 Mich App 215, 144 NW2d 676; People v. Dexter (1967), 6 Mich App 247, 148 NW2d 915; People v. Keys (1968), 9 Mich App 482, 157 NW2d 419; People v. Brown (1968), 13 Mich App 222, 163 NW2d 829. More specifically, in People v. Keiswetter (1967), 7 Mich App 334, this Court held that where “supplemental instructions” to the jury were only a reiteration of the content of the initial instructions of the court and counsel for defendant approved the initial instructions, when given an opportunity to object in accord with GCR 1963, 516.2, there was no error.
The people cite GCR 1963, 516.4 as authority for the proposition that defendant is now precluded from raising objections to any “supplemental instructions” on appeal by his failure to object to them in his motion for a new trial. The rule, entitled “Additional Instruction,” reads as follows:
“While the jury is deliberating, the .court may in its discretion further instruct the jury in the presence of or after notice to counsel. Objections thereto shall be made in a motion for new trial.”
On the basis of this authority defendant is barred from raising objections to any of the jury instructions for the first time on appeal.
(6) Whether the trial judge committed error by allowing a jury composed of ten women and two men to be impaneled and sworn, where defendant made no objections to the qualifications of the jurors at the time and where defendant did not exhaust his peremptory challenges.
Defendant alleges that the trial judge committed error by allowing a jury composed of ten women and two men to be impaneled and sworn to hear his case. No authority is cited in support of this proposition.
It also appears, that neither party exhausted their peremptory challenges.
The law is well settled that any objection to the composition of the jury is waived if the objecting party fails to exhaust his peremptory challenges or afterwards expresses himself as satisfied with the jury. People v. Rose (1934), 268 Mich 529; People v. Lockhart (1955), 342 Mich 595; People v. Lambo (1967), 8 Mich App 320.
Defendant’s sixth assignment of error is without merit.
(7) Whether the trial judge committed- error in permitting the trial to continue after defendant took the stand upon the advice of his counsel to testify in his own behalf.
Defendant argues that “the judge should not have allowed the trial to go on when the defendant’s attorney was telling defendant to say yes to every question.” Stated in more meaningful language, the defendant apparently alleges that the trial judge committed error in permitting the trial to continue after defendant voluntarily took the stand to testify in his own behalf. Defendant cites no authority to support this proposition and fails to disclose any factual basis for this assignment of error.
It is fundamental under the Fifth Amendment of the United States Constitution and Article I, Section 17 of the Michigan Constitution that the accused in a criminal prosecution may not be required to take the stand and give testimony. It is also equally clear that if the accused voluntarily takes the stand to testify in his own behalf “he waives his constitutional privilege against answering self-incriminating questions material to the issue.” 1 Gillespie, Michigan Criminal Law & Procedure § 392, pp 475-476. People v. Lloyd (1967), 5 Mich App 717.
Even if defendant took the stand against his own better judgment as a strategy urged by his counsel, as defendant now suggests was the case, this is not sufficient grounds for reversal. This court, in People v. Kaczor (1968), 14 Mich App 724, 726, 165 NW2d 899, 900 held:
“No such claim of incompetence can be established from this record and no strategic position taken nor decision made during the pretrial and trial stages can be made the basis for a claim of denial of counsel due to incompetence solely because the strategy was not successful. This ground is without merit.”
There is no merit in defendant’s seventh assignment of error.
(8) Whether the trial judge committed error in excusing the people from producing Trooper Williams, Illinois State Police, who was one of the officers who arrested defendant, where Corporal Trent, Trooper Williams’ partner and the other arresting officer, was produced by the people and testified as to all the events surrounding defendant’s arrest, and Trooper Williams was on a hunting trip in Minnesota and could not be reached by mail or telephone at the time of trial.
After the jury was impaneled, a discussion between court and counsel ensued concerning a number of endorsed witnesses who had been excused or were unavailable. The following is a portion of that discussion pertinent to this assignment of error:
“Mr. Stevens: All right, there is also an Illinois trooper by the name of Williams whom avg have tried to reach and are informed by another Illinois trooper, Larry, that he is in the state of Minnesota hunting [sic] without a telephone. However, the other trooper will after a fashion indicate what transpired between this trooper and the respondent and his parents. We are not able to produce this trooper this AAreek. * * *
“Mr. Jarosz: I would make an objection on the records your Honor, as to the fact there are three troopers absent from Illinois as to having some contact with the respondent at the time he appeared at that particular post in Waukegan.
“The Court: Well, your-statement is on the record and also yours and we will go on with the trial and see how the matter is and how the evidence does develop.”
The rule as to the prosecutor’s duty after endorsement was clearly stated in People v. Kern (1967), 6 Mich App 406, 410:
“Page was not a res gestae witness and therefore the prosecutor was not required to endorse his name on the information. See People v. Davis (1955), 343 Mich 348. However, if the prosecutor does endorse the name of such a witness he must secure his presence in court and the defendant is entitled to rely upon the prosecutor’s duty to produce him. See People v. Whittemore (1925), 230 Mich 435; People v. Lummis (1932), 260 Mich 170. Nevertheless, the prosecutor may be excused from producing that witness if he makes a showing of due diligence.” (Emphasis supplied.)
In this case the prosecutor did make a showing upon which the trial judge could correctly conclude that the attendance of the witness could not be secured. Such a conclusion is within the sound discretion of the trial court and should not be overturned on appeal unless there was a clear abuse of discretion which defendant has not demonstrated. People v. Boyles (1968), 11 Mich App 417. See also People v. Woodward (1969), 21 Mich App 549.
Defendant’s eighth assignment of error is without merit.
Affirmed.
All concurred.
People v. Petrosky (1938), 286 Mich 397, 282 NW 191; People v. Placido (1945), 310 Mich 404, 17 NW2d 230; People v. Riddle (1948), 322 Mich 199, 33 NW2d 759; People v. Hancock (1950), 326 Mich 471, 40 NW2d 689; People v. Loudenslager (1950), 327 Mich 718, 42 NW2d 834; People v. Camak (1967), 5 Mich App 655, 147 NW2d 746. In even more specific terms, the Michigan Supreme Court has held that “[t]he weight to he given to the testimony, where conflicting, should he left to the jury.” People v. Henseler (1882), 48 Mich 49, 51, 11 NW 804. See also People v. Stewart (1910), 163 Mich 1, 127 NW 816; People v. Millman (1943), 306 Mich 182, 10 NW2d 885. | [
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J. H. Gillis, J.
On the afternoon of March 1, 1965, an automobile collision occurred at the intersection of Brookdale and Ascot streets in the township of Waterford, Michigan. Plaintiff was traveling west on Brookdale and defendant was southbound on Ascot. No traffic controls or signal lights governed the intersection. At the intersection, the streets were flat and straight; each was approximately 30 feet wide. The weather was clear.
Plaintiff sued for injuries sustained in the collision, alleging defendant’s negligence. Defendant answered, denying negligence and raising the affirmative defense of plaintiff’s contributory negligence. During the pendency of suit, defendant took plaintiff’s discovery deposition. The defendant also deposed James Webb, a Waterford township police officer, who had investigated the collision and prepared an accident report. Thereafter, defendant moved for summary judgment on the ground that plaintiff’s deposition disclosed that there was no genuine issue as to any material fact. GCR 1963, 117.2(3). It was defendant’s position that plaintiff’s deposition showed him to be contributorily negligent as a matter of law. Defendant’s motion was granted and plaintiff appeals.
Plaintiff’s deposition testimony, viewed in the light most favorable to him, reveals that as he approached the intersection he was traveling at approximately 10 miles per hour. Plaintiff explained that he was traveling slowly because he was unfamiliar with the area and “coming to an intersection * * * if I don’t see no sign there, I always go slow to make sure there is no traffic.” Plaintiff observed that the intersection was ungoverned by traffic controls; he looked to his left and to his right, saw no moving vehicles, and then entered the intersection. After entering the intersection, plaintiff again looked to his right. His view was unobstructed. Plaintiff testified:
“Well, as I pulled into the intersection, there was a car parked on the left-hand — no, it would be on the west side of Ascot, back a couple hundred feet. Now, the car was not in motion, at least, it didn’t look like it was moving. It was parked there. I didn’t notice any driver or nothing and then I proceeded on. And that’s the only vehicle that I saw and it was parked there.” When struck by defendant’s car, plaintiff’s car was “just about out of the intersection.” Damage was to the right rear side of plaintiff’s car. After the accident, plaintiff noticed that the car he had seen parked on Ascot street was no longer there.
On such a record, we fail to see how it can be said that plaintiff was contributorily negligent as a matter of law. A jury could properly conclude from plaintiff’s deposition testimony (1) that plaintiff, upon approaching the intersection, saw no moving vehicles; (2) that he observed defendant’s car approximately 200 feet to his right on Ascot street; (3) that defendant’s car, when observed, was parked or moving slowly; and (4) that thereafter defendant covered the distance to the point of impact more quickly than plaintiff was entitled reasonably to expect any lawfully driven vehicle to reach that point. In light of such conclusions, a jury could find plaintiff free from contributory negligence. Todd v. Simonis (1963), 370 Mich 342; Ingram v. Henry (1964), 373 Mich 453.
Defendant, however, contends that in this case, unlike Todd and Ingram, any inference of excessive speed on his part is impermissible. We are referred to the deposition testimony of officer Webb, who testified that at the time of the accident defendant was traveling 18 miles per hour. Defendant also contends that, since he was traveling slowly, plaintiff “failed to see what was plainly there to be seen”— namely, defendant’s car closely approaching the intersection. It suffices to say that both these claims are based solely upon defendant’s statement to officer Webb at the scene that he was traveling at 18 miles per hour. Even if defendant, an interested witness, so testified at trial, the jury could disbelieve him. See 5 Callaghan’s Michigan Pleading & Practice, § 37.205, pp 557, 558; MCLA §600.2158 (Stat Ann 1962 Rev § 27A.2158); Durant v. Stahlin (1964), 374 Mich 82.
We conclude that material questions of fact regarding the speed and course of the vehicles involved remained unresolved upon defendant’s motion. Summary judgment was therefore inappropriately granted.
Reversed and remanded for trial. Costs to plaintiff-appellant.
All concurred. | [
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Lesinski, C. J.
Defendant Martin Mason was convicted of second-degree murder (MCLA § 750.317 [Stat Ann 1954 Rev § 28.549]), following a jury trial. The conviction arose from the fatal shooting of defendant’s wife, Yvonne Mason, in the early morning of March 6, 1968. Defendant brings this appeal as of right.
The facts surrounding the shooting are as follows. Defendant had spent the evening of March 5 in the bar where his wife was employed as a barmaid. After the bar closed an acquaintance drove them to where defendant was staying. Upon arriving, however, Yvonne Mason asked the driver to take her to her aunt’s home. Defendant stated that his wife’s feelings were hurt because he had been kidding her about drinking on the job and getting fat.
Defendant called a cab and followed his wife to her aunt’s home. Defendant apparently was not on the best of terms with the aunt and demanded that Yvonne leave with him.
From the aunt’s home they went to the nearby home of a common acquaintance, Mrs. McNeal. After being admitted, Yvonne sat down in the living-room while defendant and Mrs. McNeal made light conversation for a few moments. Defendant then put some coins in a juke box, started the records playing, and sat down on the couch in the living room.
Yvonne then stated that her ankle was sore and defendant asked whether she wanted him to take her to a hospital. At his suggestion Yvonne got up and walked around the room, testing her ankle. She then sat down on the couch, next to her husband.
Conversation between defendant and decedent followed. Although Mrs. McNeal testified that she “couldn’t tell whether they were friendly or not,” she did state several times that they were not arguing- but only talking with each other. She also stated that they were not talking- in loud voices. Mrs. McNeal retired to her bedroom after a short while.
Defendant testified that he took ont the gun he had been carrying around during the evening and emptied the bullets onto the floor. He testified that “I looked at the gun and it was empty. So I don’t know why, I just clicked the gun, I clicked it and leaned back the way I was sitting and I clicked it again.” Defendant denied knowingly or intentionally pointing the gun at his wife.
Mrs. McNeal testified that she heard the “clicking” and returned to the room adjacent to the living room. She stated that she heard defendant say: “All I have to do is click it one more time.”
Defendant denied making the statement. Bather, he testified that the clicking was making his wife nervous and she told him to put the gun away. He testified that scaring her seemed “amusing” at the time, and clicked the gun again.
Mrs. McNeal testified that after she returned from the bedroom she heard two more clicks and then the gun went off. She then asked what had happened and defendant replied that he had shot his wife and told Mrs. McNeal to call the police.
Shortly after the shooting defendant fled the scene, but turned himself into the police five days later and was arrested.
It was defendant’s position at trial that he thought he had taken all the bullets out of the gun and that the shooting was accidental. In support of his position defendant took the witness stand and testified that he and his wife were on generally good terms and that they were living together during the week before the shooting.
The evidence presented a difficult factual question as to whether malice was present making this act second-degree murder or whether the act was an intentional aiming of the gun without malice, constituting manslaughter. Of great importance was defendant’s state of mind, his feelings toward his wife and his credibility. The prosecutor’s cross-examination of defendant centered around an attempt to show animosity between defendant and his wife during the morning of March 6 and the days preceding the shooting.
In the course of his testimony defendant stated that his wife was living with him at his room during the week prior to her death, that she had spent the night before with him, that she had left directly from there for work on March 5 and that she would have returned home that night but for his kidding her about her drinking and weight. To rebut this testimony and attack defendant’s credibility, the prosecutor introduced the testimony of the investigating police officer regarding what he saw during a search of defendant’s room the day after the shooting. The officer stated that he found defendant’s clothing in the room but that no woman’s clothing or any other indication of a woman’s presence existed. The evidence, thus, tended to prove that defendant’s wife had not been living with him and that he had been lying on the witness stand.
The officer’s testimony was argued to the jury by the prosecutor during summation:
“Now the defendant testified at the time of the incident the deceased was living with him on Little-field, in fact she had lived there for the past four days.
“You heard the testimony of Detective Mason. He testified he went there and went there the next day, tbe day of the shooting, March 6, 1968 and he searched, the bedroom in which the defendant had lived. And he found men’s clothing, one suit, one topcoat, but he didn’t find one stitch of women’s clothing in that bedroom.
“Now, it seems to me that a woman who had lived with her man, her husband, for some 12 days, in fact, he testified she intended to return with him that evening would leave clothing, something, an article in that home in which she was living and which the testimony of Martin Mason indicates she was living.”
Defendant timely objected to the introduction of the rebuttal evidence on the grounds that it was obtained by a warrantless search in violation of the Fourth Amendment. The objection was denied below.
The principal issue on appeal is whether the evidence obtained by the warrantless search was properly admitted to rebut defendant’s testimony.
At trial when the issue of the validity of the search which was the basis for the objected to testimony was raised, the trial court ruled that defendant lacked standing to raise the issue of the legality of the search. The prosecutor asserts this position on appeal.
Whether or not a particular defendant has standing to raise the issue of an unreasonable search and seizure depends on the facts of the case. While the record is not entirely clear, it does appear that the room searched was in a home owned by defendant’s cousin. Defendant held no financial interest in the house. He, and allegedly his wife, had been using the room, however, for approximately four or five days prior to the killing. Defendant left his clothing and his personal papers there when not present.
Although a body of law relative to search and seizure, based largely on gambling and prohibition cases, exists in Michigan, the issue raised in the instant case is not answered. Some authorities make the general statement that “guests in a home are not entitled to claim constitutional immunity against search of premises where the owner himself does not object to the search.” Our review of the cases, however, convinces us that this statement is overly broad. The mere designation of a defendant as a “guest” cannot end the inquiry.
In People v. Azukauckas (supra, footnote 4), the defendant who was merely a guest for a few hours at the homeowner’s Saturday evening party, sought to attack the legality of a search. The Court held that the guest lacked standing.
However, in People v. Gonzales (1959), 356 Mich 247, where the defendant who sought to raise the constitutionality of a search of an automobile was only a passenger, with no apparent financial interest in the car, the Court held that defendant had standing to raise the issue. The Court stated at 257:
“Further, we believe that on the facts in this case defendant had the right to raise the constitutional objection. There is no showing of any waiver of the objection by anyone. And though defendant apparently had only the status of a passenger, when the first requirement of the search (and a material one to its outcome) was that defendant remove himself from the seat in the automobile where he had a right to be, we regard the search as directly affecting him.” (Emphasis supplied.)
There is a fundamental difference between the “guest” in Amkauclcas and the “guest” in the instant case, who was staying with a relative for several days and had his own room. The difference centers largely on the degree of privacy the two “guests” were entitled to in the area searched.
In Jones v. United States (1960), 362 US 257 (80 S Ct 725; 4 L Ed 2d 697), defendant sought to suppress evidence found during a search of an apartment. Defendant testified that the apartment belonged to a friend who had given him the use’ of it and who had loaned him a key. Although he had a suit and shirt at the apartment, his home was elsewhere, he paid nothing for the use of the apartment, he had slept there “maybe a night” and the owner only let him use it “as a friend.” At the time of the search the owner had been away for about five days. The government challenged defendant’s standing’ because he had alleged neither ownership of the seized property (narcotics) “nor an interest in the apartment greater than that of an ‘invitee’ or guest.’ ” 362 US at p 259 (80 S Ct at p 730; 4 L Ed 2d at p 701).
In rejecting the government’s argument the Court in Jones acknowledged its departure from a sub stantial number of lower court opinions. Beginning at p 266 (80 S Ct at p 733; 4 L Ed 2d at p 705), the Court stated:
“We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. * * * Distinctions such as those between ‘lessee,’ ‘licensee,’ ‘invitee’ and ‘guest,’ often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.
“We rejected such distinctions as inappropriate to the law of maritime torts * * t>,! . * * * A fortiori we ought not to bow to them in the fair administration of the criminal law. To do so would not comport with our justly proud claim of the procedural protections accorded to those charged with crime. No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognising that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him.’’ (Emphasis supplied.)
We conclude that defendant had a sufficient privacy interest in the room searched to give him standing to challenge the legality of the search.
It is also the prosecutor’s contention, however, that defendant lacks standing due to his “previous abandonment of this room at the time of the search.” Parman v. United States (1968), 130 App DC 188 (399 F2d 559), and Friedman v. United States (CA 8, 1965), 347 F2d 697, cert denied (1965), 382 US 946 (86 S Ct 407; 15 L Ed 2d 354), are cited by the prosecutor.
Neither the record below nor the authority cited support the prosecutor’s position. As the court pointed out in Friedman, abandonment is a question of fact based on a combination of act and intent. The court stated at 704:
“ * * An abandonment must be made to appear affirmatively by the party relying on it, and an intention to abandon will not ordinarily be presumed, and this is particularly true if the conduct of the owner can be explained consistently with a continued claim. Proof of abandonment must be made by the one asserting it by clear, unequivocal and decisive evidence.’ ”
In both Friedman and Parman the prosecution clearly met its burden of proof. In the instant ease, however, beyond tbe sole fact that defendant did not return to tbe room between the night of the shooting and his arrest five days later, there is nothing on the record indicating abandonment. Flight to avoid prosecution standing alone does not meet the prosecutor’s duty to produce “clear, unequivocal and decisive evidence” of abandonment.
" We conclude, therefore, that within the facts of the instant case that defendant was the person aggrieved by the search, the person against whom the search was directed, and a person with sufficient, unabandoned, interests in the room to have standing. We, therefore, turn to the merits of defendant’s attack.
The prosecution argues that although a thorough search of the room was made and some of defend ant’s papers were seized, that the Fourth Amendment does not apply because only the “observations” made, and not the tangible items seized, were used against defendant at trial. Therefore, even if there was an illegal search, it is contended that the Fourth Amendment is inapplicable.
The Supreme Court stated in United States v. Jeffers (1951), 342 US 48, 51 (72 S Ct 93, 95; 96 L Ed 59, 64), “The Fourth Amendment prohibits both un reasonable searches and unreasonable seizures, and its protection extends to both ‘houses’ and ‘effects.’ ” (Emphasis supplied.) Thus, the provisions of the Fourth Amendment are separable in the sense that there need not be both a search and a seizure before the Amendment applies.
In the instant case if there was an illegal search, defendant has the benefit of the exclusionary rules set forth in Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684; 6 L Ed 2d 1081). Due to the ruling of the trial court that defendant lacked standing and our disposition of the case set forth below, we do not determine whether there was an illegal search.
Moreover, the fact that the product of the search was only the “observations” of the police, as opposed to tangible evidence, is legally irrelevant. The exclusionary rule applies to information, tangible or not, obtained through an illegal search. As noted in Wong Sun v. United States (1963), 371 US 471, 485 (83 S Ct 407, 416; 9 L Ed 2d 441, 454):
“The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States (1961), 365 US 505 (81 S Ct 679; 5 L Ed 2d 734), that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of ‘papers and effects.’ Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. McGinnis v. United States (CA 1, 1955), 227 F2d 598.” (Emphasis supplied.)
And in McGinnis v. United States (CA 1, 1955), 227 F2d 598, cited in Wong Sun, the court stated at p 603:
“We find no basis in the cases or in logic for distinguishing between the introduction into evidence of physical objects illegally taken and the introduction of testimony concerning objects illegally observed. We are aware of no case which makes this distinction. Moreover, it seems to us that the protection afforded by the Constitution against unreasonable search and seizure would be narrowed down to a virtual nullity by any such view of the law, which in effect would grant to the victims of unreasonable search and seizure the rather unsubstantial right to be convicted on the basis of evidence which was illegally observed rather than evidence which was illegally taken.”
The prosecutor argues, however, that even if the evidence was illegally obtained and the Fourth Amendment does apply, the evidence was still admissible, citing Walder v. United States (1954), 347 US 62 (74 S Ct 354; 98 L Ed 503). There the government had obtained evidence of narcotics possession through an illegal search and seizure in 1950. Defendant successfully moved for the suppression of the evidence and shortly thereafter the case was dismissed. Two years later, defendant again was indicted due to an independent and unrelated narcotics transaction. Defendant took the witness stand at trial and testified “I have never sold any narcotics to anyone in my life,” and that he had never possessed narcotics. The Court held the introduction of the evidence illegally seized in 1950 for impeachment permissible because (at p 65 [74 S Ct at p 356; 98 L Ed at p 507]) “defendant went beyond a mere denial of complicity in the crimes * * * and made the sweeping claim that he had never dealt in or possessed any narcotics.”
There is, however, a serious question as to whether Walder is still good law, or whether the reasoning it was based on is still tenable.
The original theory behind the decision was stated at p 65 (74 S Ct at p 356; 98 L Ed at p 507) :
“It is one thing to say that the government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.
“* * * Of course, the constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the government’s disability to challenge his credibility.”
In this Court’s recent case of People v. Marsh (1968), 14 Mich App 518, rev (1970), 383 Mich 495, we were faced with the attempted use by the prosecution of * * * an illegally obtained confession for cross-examination purposes. In an extensive discussion of Walder we expressed serious doubts over its theoretical foundations. At p 529 we stated:
“We note the practical difficulties likely to he encountered in attempting to differentiate between defendant’s ‘denial of the elements’ and ‘sweeping claims.’ When a defendant takes the stand, completely responsive answers to all questions put to him on direct and cross-examination are likely to open up collateral matters. [Citations omitted.]
“Here the trial court argued the necessity of using the inadmissible statements for impeachment to prevent defendant’s perjury and test his credibility. The deféndant is no freer to perjure himself than any other witness; if he does, he subjects himself to prosecution for perjury. The defendant, like any witness, may be impeached. ‘The State should he free to impeach, hut it ought to come by its impeachment as legally as it accumulates its other evidence.’ State v. Brewton (1967), 247 Ore 241, 246 (422 P2d 581, 583), cert denied (1967), 387 US 943 (87 S Ct 2074; 18 L Ed 2d 1328).”
Although, we found it unnecessary in Marsh to decide whether we would reject W alder completely, we did conclude our discussion of the question by noting at p 530:
“We add that on principle the people should not be allowed to have admitted against a defendant who takes the stand evidence that would be inadmissible if he exercised his constitutional right to refrain from taking the stand. A contrary rule would unconstitutionally chill exercise of either the constitutional right to have improper evidence suppressed or the constitutional right to take the stand. [Citations omitted.]
“ ‘ [W] e find it intolerable that one constitutional right should have to be surrendered in order to assert another.’ Simmons v. United States (1968), 390 US 377, 394 (88 S Ct 967, 976; 19 L Ed 2d 1247, 1259).”
If the reasoning of Walder is accurate then logically the prosecution should also be able to use an illegally obtained confession to attack credibility. Yet, in light of Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974), such use of an involuntary confession has been held impermissible. We fail to see any logical basis for saying that evidence obtained in violation of the Fourth Amendment can be used for rebuttal, while evidence obtained in violation of the Fifth Amendment may not.
Moreover, the basic purpose behind the exclusionary rule is to deter illegal activities on the part of the government by making any evidence obtained through such actions totally useless. As noted in Silverthorne Lumber Company, Inc., v. United States (1920), 251 US 385, 392 (40 S Ct 182, 183; 64 L Ed 319, 321):
“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not loe used before the court, but that it shall not be used at all.” (Emphasis supplied.)
To effectuate this purpose courts have held the products of illegal searches unusable in a wide variety of situations. As observed in Walder at pp 64, 65 (74 S Ct at p 356; 98 L Ed at pp 506, 507):
“The government cannot violate the Fourth Amendment * * * and use the fruits of such unlawful conduct to secure a conviction. * * * Nor can the government make indirect use of such evidence for its case, * * * or support a conviction on evidence obtained through leads from the unlawfully obtained evidence, * * * . All these methods are outlawed, and convictions obtained by means of them are invalidated, because they encourage the kind of society that is obnoxious to free men.” (Citations omitted.)
In Terry v. Ohio (1968), 392 US 1 (88 S Ct 1868; 20 L Ed 2d 889), the Court stated at p 13 (88 S Ct at p 1875; 20 L Ed 2d at p 901):
“A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur.”
Yet, if Walder is followed, the “necessary effect of legitimizing tire conduct” noted in Terry will be given to government action which produces illegally obtained evidence.
It would be technically possible to distinguish Walder on the grounds that in the instant case the evidence was found in the course of the police investigation of the charge now being litigated, while in Walder the evidence was found in a previous and independent investigation. There are two difficulties with the distinction. First, the Court in Walder considered the decisive factor to be the testimony of the defendant and the need to rebut it, not the time when the evidence was obtained. Second, the distinction is artificial and overlooks the basis of the exclusionary rule: that illegally obtained evidence “shall not be used at all.”
¥e conclude that the practical and theoretical basis of the Walder decision is no longer viable. We hold, therefore, that Walder is not binding authority and that illegally seized evidence may not be used in cross-examining the defendant or for rebutting his testimony.
Finally, the question arises as to whether the error was prejudicial. It was defendant’s position at trial that the shooting was accidental and that he thought the gun was not loaded. His assertion that he was living with his wife and that they were getting along took on significance in relation to his defense of accident. It was in response to this de fense and in an attempt to attack defendant’s credibility tbat the prosecution offered the illegally obtained evidence.
In light of the emphasis given the evidence during the prosecutor’s summation to the jury, and its relation to defendant’s basic position and the issue of his credibility, we are not satisfied beyond a reasonable doubt that the evidence did not contribute to defendant’s conviction. Chapman v. California (1967), 386 US 18 (87 S Ct 824; 17 L Ed 2d 705); People v. Teal (1969), 20 Mich App 176; People v. Young (1969), 20 Mich App 211.
The trial court ruled below that defendant lacked standing to raise the issue of the legality of the search. The prosecution was, thus, never afforded an opportunity to justify the search. Absent such an opportunity we deem it inappropriate to assume the search was illegal and that a new trial must be granted. Therefore, we remand for an evidentiary hearing to determine the legality of the search.
While our research has not revealed Michigan authority on the question of which party has the burden of proof (cf., however, People v. Hagadorn [1931], 255 Mich 121), numerous cases from other jurisdictions have held that the prosecution must prove that its warrantless search was reasonable. These cases are consistent with the language of the Court in United States v. Jeffers, supra:
“Over and again this Court has emphasized that the mandate of the Amendment requires adherence to judicial processes. See Weeks v. United States (1914), 232 US 383 (34 S Ct 341; 58 L Ed 652); Agnello v. United States (1925), 269 US 20 (46 S Ct 4; 70 L Ed 145). Only where incident to a valid arrest, United States v. Rabinowitz (1950), 339 US 56 (70 S Ct 430; 94 L Ed 653), or in ‘exceptional circumstances,’ Johnson v. United States (1948), 333 US 10 (68 S Ct 367; 92 L Ed 436), may an exemption lie, and then the bttrden is on those seeking the exemption to show the need for it, McDonald v. United States (1948), 335 US 451, 456 (69 S Ct 191, 193; 93 L Ed 153, 158).” (Emphasis supplied.)
And in McDonald v. United States (1948), 335 US 451 (69 S Ct 191; 93 L Ed 153), the Court noted at p 454 (69 S Ct at p 193; 93 L Ed at p 158): “Where, as here, officers are not responding to an emergency, there must be compelling reasons to justify the absence of a search warrant. A search without a warrant demands exceptional circumstances.” The Court concluded at p 456 (69 S Ct at p 193; 93 L Ed at p 158):
“We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.”
In regard to the prosecutor’s burden of proof, we note that on appeal he has argued the the search was legal because of the existence of probable cause to believe defendant did the shooting. While such probable cause undoubtedly existed and would have clearly served as the basis of an arrest, it did not legalize the search of defendant’s room. Permissible, warrantless searches are the exception and only allowed incident to an arrest or where the exigencies of the situation make the warrant re quirement itself ■unreasonable. Chimel v. California (1969), 395 US 752 (89 S Ct 2034; 23 L Ed 2d 685). If probable cause justifying an arrest also justified a warrantless search of a defendant’s dwelling, then as a practical matter search warrants would be rarely required.
Defendant also challenges the instructions to the jury on two grounds. Although given the express opportunity by the trial court neither objection to the instruction was raised below by defendant. Defendant’s failure of timely objection waives any possible right he might have had to object now to the-instructions. People v. Mallory (1966), 2 Mich App 359; People v. Allar (1969), 19 Mich App 675; GCR 1963, 516.2.
We remand to give the prosecution an opportunity to show by clear and convincing evidence “the compelling reasons to justify the absence of a search warrant” and the “exigencies of the situation [that] made that course imperative.”
If, following the hearing, the trial court concludes that the search and seizure were reasonable, the conviction shall stand affirmed. If it is concluded, however, that the search was unreasonable, a new trial shall be ordered.
Remanded for actions consistent with this opinion. We do not retain jurisdiction.
All concurred.
MCLA § 750.329 (Stat Aim 1954 Rev §28.501).
“Any person wlio shall wound, maim or injure any other person by the discharge of any firearm, pointed or aimed, intentionally but without malice, at any such person, shall, if death ensue from such wounding, maiming or injury, be deemed guilty of the crime of manslaughter.”
In deciding the question the trial court stated:
“The Court: The proper person to objeet to that would be the householder. I don’t think he can — the householder would be the one to complain.”
And again:
“The Court: I will say — I have said what I have to say about that. The people who could properly complain to the search would be the householder, not him, unless it was his household,”
See, generally, People v. Norwood (1945), 312 Mich 266; People v. Oaks (1930), 251 Mich 253; People v. Bartoletta (1929), 248 Mich 499; People v. Azukauckas (1927), 241 Mich 182; People v. Anscomb (1926), 234 Mich 203; People v. Hale (1967), 1 Mich App 127.
2 Gillespie, Mich Criminal Law & Procedure (2d ed), § 873, p 1142, citing People v. Azukauckas (1927), 241 Mich 182.
Compare People v. Lovins (1968), 10 Mich App 524, where this Court in an opinion signed by this writer, reached an opposite result grounding its holding on the laels: of presence. A rereading of the opinion at this time convinces the ■writer he was in error in signing same as it is violative of the rule laid down in People v. Gonzales (1959), 356 Mich 247, which was not considered by the Court in Lovins. • . '
The facts proving abandonment in Friedman v. United States (CA 8, 1965), 347 F2d 697, were set out by the court at p 704:
“Briefly summarized, we find the following:
“1. The dance studio closed about the middle of May 1962.
“2. Back rent covering periods prior to the closing of the studio remained unpaid.
“3. The studio’s attorney advised Thorpe Brothers, agents for the landlord, sometime in May 1962 that they could no longer continue in business and would get out as soon as possible.
“4. Thorpe Brothers, Inc., was informed by the attorney for the studios that they could sue if they wanted to but that there wasn’t any money to be obtained therefrom.
“5. Sometime during May 1962 Miss Peterson, with the help of other defendants, took from the studio all the aetive files and the furniture.
“6. Inactive files were taken from the filing cabinets and left on the floor of the studio and in a metal trash barrel.
“7. Kay Peterson, who had been managing the studio business, testified that when she left the studio on May 18th ‘My only thought was that I was closing the door for the last time.’
“8. The premises appeared on Thorpe Brothers’ list of properties for rent as of June 1, 1962.
“9. For rent signs were placed in the windows.
“10. Defendants, through their attorney, had notified the landlord’s agent that they were out of business and could not even pay the past due rent.
“11. On July 24, 1962, the postal inspector, after first obtaining permission from Thorpe Brothers, entered and seized.
“12. Much of the seized property was used in the trial and to obtain the names of ‘victims’ who subsequently appeared and testified for the government.
“Additional testimony, which we find it unnecessary to recite here, lends support to the trial court’s conclusion that the property seized had been abandoned by its owners.”
In Parman v. United States (1968), 130 App DC 188 (399 F2d 559), the court stated at p 193 (p 564):
“The finding of abandonment was premised on the fact that appellant fled Washington almost immediately after the crime was committed and was in Ohio, registered under an assumed name at a tourist home,.when the seareh occurred. He thereupon sold his ear and appeared in Los Angeles where he also engaged an apartment under another assumed name through a lease which extended beyond the period of time for which the tenancy of his Washington apartment had been fixed. While in Los Angeles, appellant sought a job and bought furniture and clothing.”
It might be noted, moreover, that defendant’s leaving his clothing and papers in the room during the five days, tends to indicate an intent to return.
In Jones v. United States, supra, at p 261 (80 S Ct at p 731; 4 L Ed 2d at p 702), the Court notes:
“In order to qualify as a ‘person aggrieved by an unlawful seareh and seizure’ one must have been a victim of a search or seizure, o,ne against whom the seareh was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.”
The testimony of the officer making the seareh was that some items were seized. He described the search:
“A. There was a suitcase; and the bedroom area had papers in it that indicated that it belonged to the defendant in this matter. There were numerous papers; in faet, I confiscated some. I checked the closet of this particular bedroom and there was one man’s suit, a topcoat and a pair of man’s trousers, the only clothing in the room.”
The prosecutor also argues that the evidence seized was not of a testimonial or communicative nature and its introduction did not compel defendant to testify against himself. The prosecution cites Schmerber v. California (1966), 384 US 757 (86 S Ct 1826; 16 L Ed 2d 908). Although we consider Schmerber irrelevant to the instant ease to the extent that it arguably is relevant, it cuts against the position of the prosecutor. The Court in Schmerber held at p 765 (86 S Ct at p 1833; 16 L Ed 2d at p 916) that “Sinee the blood test evidence * * * was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner it was not inadmissible” on Fifth Amendment grounds. However, the Court went on to specifically hold that the evidence was subject to the Fourth Amendment, stating at p 767 (86 S Ct at p 1834; 16 L Ed 2d at pp 917, 918) :
“The values protected by the Fourth Amendment thus substantially overlap those the Fifth Amendment helps to protect. History and precedent have required that we today reject the elaim that the self-incrimination clause of the Fifth Amendment requires the human body in all circumstances to be held inviolate against state expeditions seeking evidence of crime. But if compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a seareh and seizure under the Fourth Amendment. * * * It could not reasonably be argued, and indeed respondent does not argue, that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of ‘persons,’ and depend antecedently upon seizures of ‘persons,’ within the meaning of that Amendment.” (Emphasis supplied.)
The Court added at p 770 (86 S Ct at p 1835; 16 L Ed 2d at p 919) :
“Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned.”
The “plain view” rule announced in People v. Kuntze (1963), 371 Mich 419, and People v. McDonald (1968), 13 Mich App 226, of course, has no applicability in the instant ease. The basic question here is whether the police were acting legally when they entered the room in the first plaee. Such cases as People v. Panknin (1966), 4 Mich App 19, and People v. Tetts (1967), 6 Mich App 254, elearly indicate that when the evidence was observed the officer was “in a place where he has a lawful right to be.” Panknin at p 28.
Even tlie prosecutor found it necessary to concede in Ms brief: “The trend of the United States Supreme Court since that date [1954] has been to severely narrow this exception to the exclusionary rule of evidence obtained in violation of the fundamental rights of the defendant.”
In People v. Marsh (1968), 14 Mich App 518, defendant’s 1941 confession and admissions were used over objection to cross-examine him and for rebuttal at his retrial in 1966. The prosecutor did not contend that Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602; 16 L Ed 2d 694, 10 ALR3d 974), was inapplicable to a case “where' the defendant was originally convieted prior to Miranda and newly tried after Miranda.” (Marsh, supra, pp 522, 523.) We said at p 523: “Accordingly, that question is not before us and is not decided. We intimate no opinion thereon. We defer consideration of that question to a ease where it has been properly raised and briefed.” Our opinion then went on to conclude that a confession, which had been conceded by the prosecutor to have been unlawfully obtained, eouid not be used for rebuttal or to cross-examine the defendant.
Following our opinion, in Jenkins v. Delaware (1969), 395 US 213 (89 S Ct 1677; 23 L Ed 2d 253), and People v. Woods (1969), 382 Mich 128, the Supreme Courts of the United States and Michigan held that pre-Miranda confessions could be used at retrials held after Miranda.
On appeal to the Michigan Supreme Court, Marsh, supra, was reversed. . People v. Marsh (1970), 383 Mich 495. The Court stated at p 496: “The instant ease is resolved by our recent holding in People v. Woods * * * and by Jenkins v. Delaware * 'x * .”
Since this Court’s opinion in Marsh was thus reversed on other grounds! :its precedential value regarding the issue of whether a confession whieh is illegally obtained may be used for cross-examination or rebuttal is unaffected by the Supreme Court’s reversal.
Groshart v. United States (CA 9, 1968), 392 F2d 172; Blair v. United States (1968), 130 App DC 322 (401 F2d 387) ; Proctor v. United States (1968), 131 App DC 241 (404 F2d 819) ; Wheeler v. United States (CA 10, 1967), 382 F2d 998; Fowle v. United States (CA 9, 1969), 410 P2d 48; State v. Brewton (1967), 247 Ore 241 (422 P2d 581), cert denied (1967), 387 US 943 (87 S Ct 2074; 18 L Ed 2d 1328); Commonwealth v. Padgett (1968), 428 Pa 229 (237 A2d 209).
This distinction was noted, by way of footnote, in Groshart v. United States (fn 13), at p 178:
“As we have noted previously, however, Walder involved an unusual situation where two distinct prosecutions had occurred and where evidence illegally seized in connection with the first prosecution was used for impeachment purposes during the second prosecution. Because of this unusual situation, some of the considerations that we discuss infra are not applicable to the same extent in terms of the Walder factual situation.”
Begarding the importance of credibility, it is interesting to note in Kalven and Zeisel, The American Jury (Little, Brown and Company, 1966), that while one of the conclusions of the study of juries -was that juries tend to acquit more often than a judge sitting without a jury, the opposite was true if the defendant made a statement of fact which the judge and jury believed to be false. The authors noted at p 387:
“[T]he defendant, in an apparent effort to make a good ease better, tells a story which neither the judge nor the jury believes. The jury, having found him not credible in one part of his testimony, rejects the rest of it and convicts; the judge, sensing the foolish motivation of the defendant, is able to separate the false part of the defendant’s story from the true. The jury in these eases is following the old credibility maxim, falsus in uno, falsus in omnihus, whereas the judge, if we are to match maxims, separates the wheat from the chaff.”
We are not unfamiliar with the headnote in People v. Ferguson (1965), 376 Mich 90, which reads:
“The burden of asserting and proving facts constituting an illegal search and seizure is upon the defendant moving to suppress the evidence, and where such burden is not sustained, the motion should be denied.”
Our reading of Ferguson, however, convinces us that the headnote is totally unsupported by the decision itself. The language in the decision to whieh the headnote refers simply holds that where defendant has not moved to suppress prior to trial the burden of asserting and proving lack of knowledge of the seareh is on the defendant, if he is to justify his failure to move prior to trial. As the Court noted in Ferguson at p 95, within the facts of the ease “the suggestion is very strong that he knew how the police secured the weapon.”
The Court in Ferguson cited People v. Robinson (1955), 344 Mich 353, which supports the actual holding of the ease, but gives no support whatsoever for the headnote. In Robinson a deputy had made an arrest for a misdemeanor committed in his presence. The defendant challenged the officer’s authority to make the arrest, arguing that since there was a lack of authority any evidence obtained by the illegal conduct must be suppressed. The Court stated at p 364 that defendant had the burden of proving lack of authority of the arresting officer. Yet, even that statement was dicta since the holding of the ease was that defendant could not raise the issue since he made no motion to suppress prior to trial.
Neither Ferguson nor Robinson support the conclusion that the defendant must prove the unconstitutionality of a warrantless search.
See Brett v. United States (CA 5, 1969), 412 F2d 401; Anderson v. Rundle (ED Pa, 1967), 274 F Supp 364; Parrish v. The Civil Service Commission of The County of Alameda (1967), 66 Cal 2d 260 (57 Cal Rptr 623, 425 P2d 223); State v. Call (1965), 8 Ohio App 2d 277 (37 Ohio Op 2d 274, 220 NE2d 130); Commonwealth v. Ellsworth (1966), 421 Pa 169 (218 A2d 249); Ellison v. State (Alaska, 1963), 383 P2d 716; State v. Gaudiosi (1967), 97 NJ Super 565 (235 A2d 680); People v. Cardaio (1966), 18 NY2d 924 (276 NYS2d 1004, 223 NE2d 497).
Placing the burden on the prosecution to show the reasonableness of a warrantless search is also consistent with the settled rule in Michigan that the prosecution has the burden of showing consent to a search by clear and convincing' evidence. People v. Kaigler (1962), 368 Mich 281; People v. Smith (1969), 19 Mich App 359; People v. Bunker (1970), 22 Mich App 396. See, also, Bumper v. North Carolina (1968), 391 US 543 (88 S Ct 1788; 20 L Ed 2d 797).
We recognize that our reeent opinion in People v. Herrera (1969), 19 Mich App 216, held Chimel v. California (1969), 395 US 752 (89 S Ct 2034; 23 L Ed 2d 685), not to be retroactive in application. Berrera, however, was concerned only with Chimel’s holding limiting a search incident to an arrest to the area necessary for the 'protection of the arresting officer and prevention of the concealment or destruction of evidence and its overruling of United States v. Rabinowitz (1950), 339 US 56 (70 S Ct 430; 94 L Ed 653). Where, as here, Chimel merely reiterated existing law, it will, of course, not be limited to prospective application.
Cf. Chimel v. California (1969), 395 US 752 (89 S Ct 2034; 23 L Ed 2d 685):
“Even in the Agnello case the Court relied upon the rule that ‘\b]elief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a - warrant. And such searches are held unlawful notwithstanding facts unquestionably, showing probable cause.’ 269 US at 33 (46 S Ct at 6; 70 L Ed at 149). Clearly, the general requirement that a search warrant be obtained is not lightly to be dispensed with, and ‘the burden is on those seeking [an] exemption [from the reciuirement] to show the need for it * * * .’ United States v. Jeffers (1951), 342 US 48, 51 (72 S Ct 93, 95; 96 L Ed 59, 64).
“Only last term in Terry v. Ohio (1968), 392 US 1 (88 S Ct 1868; 20 L Ed 2d 889), we emphasized that ‘the poliee must, whenever practicable, obtain advance judicial approval of .searches and seizures through the warrant procedure.’ Id., at 20 (88 S Ct at 1879; 20 L Ed 2d at 905), and that ‘[t]he scope of [a] search must be “strictly tied to and justified by” the circumstances which rendered its initiation permissible.’ Id., at 19 (88 S Ct 1878; 20 L Ed 2d at 904).” (Emphasis supplied.)
As is thus made clear in Chimel, probable cause to believe evidence is present does not justify a warrantless search. It does, however, serve as a basis for the issuance of a search warrant. MCLA § 780.652 (Stat Ann 1970 Cum Supp § 28.1259[2] [d]). | [
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V. J. Brennan, J.
Defendant Michael John Foy appeals from an order of the Macomb county circuit court waiving jurisdiction of his children to the probate court.
In July, 1964, the defendant married the plaintiff, Janet M. Foy. Two children were born to them during their marriage, one in December, 1964, the other in December, 1965. In 1967, the plaintiff filed a complaint for divorce in the Macomb County circuit court. The court initially granted temporary custody of the children to the plaintiff, subject to the defendant’s visitation rights, but when she later denied the defendant these rights, the court modified its order and granted temporary custody to the paternal grandparents, with whom the defendant was then and is now living. Despite her earlier refusals to allow the defendant to visit the children, the plaintiff expressed a willingness to relinquish custody to either the defendant or his parents and approved the change in custody. In addition to changing the custody of the children, the court requested on its own motion both a psychiatric examination of the parties and a recommendation by the friend of the court to determine the fitness of each party for future and permanent custody. The plaintiff and defendant stipulated that the report of the court-appointed psychiatrist and the recommendation by the friend of the court could be considered as evidence. Also to be considered as evidence was a report of a psychiatrist retained by the defendant.
The reports and recommendation were subsequently made and submitted to the court. The court-appointed psychiatrist and the friend of the court strongly urged that jurisdiction be waived while the retained psychiatrist strongly urged that the children be placed in the custody of the defendant. On October 14, 1968, after considering the reports and recommendation, the court entered an order of waiver. The order of waiver was later stayed by the court pending this appeal. The defendant contends that the evidence of his unfitness is insufficient to sustain a waiver, and we agree.
MOLA § 552.15 (Stat Ann 1957 Rev, § 25.95) provides:
“The court may, in like manner, on the application of either party, make such order concerning the care and custody of the minor children of the parties, and their suitable maintenance, during the pendency of such suit, as shall be deemed proper and necessary, and for the benefit of the children: Provided, That the court is hereby authorized to waive jurisdiction of any minor children under the age of 17 during the pendency of such suit to the probate court of the county to be governed by the laws of this state with respect to dependent and neglected children under the age of 17 years.”
Under MOLA § 712A.2 (Stat Ann 1969 Cum Supp § 27.3178 [598.2]), the probate court may take jurisdiction over any child under 17 years of age:
“Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality or depravity on the part of a parent, guardian or other custodian, is an unfit place for such child to live in, or whose mother is unmarried and without adequate provision for care and support.”
Before a circuit court may waive jurisdiction over a child to the probate court, there must be presented evidence showing that the child is “dependent and neglected.” In the absence of such evidence, it is reversible error to waive jurisdiction. Moses v. Oakland Circuit Judge (1968), 14 Mich App 265. The parties stipulated that the report of the court-appointed psychiatrist and the friend of the court recommendation could be considered as evidence, and therefore they were admissible into evidence. See Damaschke v. Damaschke (1967), 7 Mich App 478. However, the report and recommendation, and especially the report, are insufficient as presently written to sustain a waiver, since, as we shall see, neither specifies the considerations underlying the conclusion that the defendant is unfit to have custody of the children.
The friend of the court merely recommended that jurisdiction be waived, without saying more. The court-appointed psychiatrist described in the body of his report the defendant’s background and certain events in the defendant’s life as the defendant had related them to him, and then concluded the report by saying:
“It is my opinion that there are certain character and personality deficits here which could well militate against his being an adequate parent under the present circumstances. There are also indications that the parents allowed the development of a considerable degree of emotional instability in him during his growing and developmental years, and one would wonder whether or not his parents are suitable custody figures at this time, considering what they have allowed to happen and come about with him.
* # #
“I would strongly urge to the court that the court consider the possibility of removing custody from both of these parents, and also remove any custody from the in-laws, and place both of these children in an independent [sic] type of home setting as wards of the court. It is my opinion that this should be done and tried for a period of at least one year. In conjunction with this, I believe the father of these children should be required to pay for their support in the foster home. I believe it might be possible then to effect more adequate visitation rights for both parents in a more objective fashion and the situation could then be re-evaluated after a trial period of perhaps 12 months. At any cost, I believe these children should be removed from the setting where they can he used as a vehicle for the hostility of either parent, and that the father should be required to provide support and that each parent should have an opportunity for visitation, separate and apart from each other.”
Acknowledging that we are inexpert in psychiatry, we are nevertheless constrained to say that we find nothing in the body of the report that might be said to be a consideration underlying the conclusion that the defendant is unfit to have custody. The references in the conclusion of the report to “personality deficits” and use of the children as a “vehicle for the hostility of either parent” constitute the only indication of the considerations entertained by the court-appointed psychiatrist. In reviewing the report, the defendant’s psychiatrist said:
“* * * I find no mention of any factors or observations which would, in my opinion, speak against Mr. Foy’s ability to function as an adequate parent to his children. On page 9 of his report, [the court-appointed psychiatrist] does make the statement ‘It is my opinion that there are certain character and personality deficits here which could well militate against his being an adequate parent under the present circumstances.’ [He] does not enumerate these deficits, and I do not find them in his report. Further, [he] recommends that the custody of these children be given to foster parents to avoid their being ‘used as a vehicle for the hostility of both parents at this time.’ Once again, neither in This] report nor in my evaluation have I found evidence that this, in fact, is the case to some undue extent.”
Thus, the court was presented with a report that recommended that jurisdiction of the children be waived, but did not say why.
Failing to specify the considerations underlying the conclusion that the defendant is unfit, the report cannot serve as a basis for waiver. Tbe defendant’s psychiatrist concluded from his own examination that the defendant should have custody of the children, and thus had the task of rebutting the conclusion of the court-appointed psychiatrist. Rebuttal was made impossible, however, without a statement, no matter how brief, of the considerations underlying the conclusion, and he could do no more than make his own recommendation. At the same time, without a statement of the underlying considerations, the court could not weigh the credibility of the two conflicting reports, and faced the dilemma of accepting or rejecting the conclusion without knowing in either case whether it was correct. The defendant was entitled to have his fitness judged on its merit, not on the unsubstantiated word of the court-appointed psychiatrist.
Even if there had been sufficient evidence of the defendant’s unfitness before the court, it would be necessary to remand this case to the circuit court for re-evaluation of the defendant’s fitness for custody, including in the re-evaluation another psychiatric examination and a new recommendation b}r the friend of the court. By staying the order of waiver, the court allowed the grandparents and, in effect, the defendant, since he is living with them, to retain custody of the children up to the present, even though the court-appointed psychiatrist recommended in April, 1968, that the children be immediately removed from their custody. Since April, 1968, and during the time of the grandparents’ continued custody, the circumstances upon which the recommendation was based may well have changed and waiver to the probate court may now be ill-advised. For all we know, the interests of the children might be best served today by continuing the custody of the grandparents or even by allowing tlie children to live with the defendant alone. In any event, the psychiatric report of April, 1968, is no longer current. See Williams v. Williams (1969), 18 Mich App 305.
Reversed and remanded to the circuit court for a re-evaluation of defendant’s fitness for custody and, in turn, a redetermination of custody and the propriety of waiver to the probate court.
All concurred.
The friend of the court was apparently influenced by the report of the court-appointed psychiatrist. In a preliminary report, a friend of the court investigator had said that he could see no reason why the defendant should not have custody, | [
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Marilyn Kelly, J.
The police found a loaded gun under the floor mat on the driver’s side of an automobile defendant was driving. Defendant was charged and convicted of carrying a concealed pistol in a vehicle. MCL 750.227(2); MSA 28.424(2).
At trial during cross-examination, defense counsel brought out that the police had not attempted to fire the weapon and were not able to state under oath that it was operable. Defendant argues on appeal that the prosecution failed to establish its case beyond a reasonable doubt, because it failed to present sufficient proof that the pistol was operable. We affirm.
The parties agree that an affirmative showing of operability is not necessary to the establishment of a prima facie case. In any event, the prosecution included in its case evidence that the pistol when found was loaded with four live rounds and two spent shells. The weapon appeared to be in good operating condition based on a visual inspection. However, defendant argues that, if a gun cannot fire, it cannot by definition be a pistol or a firearm. He argues that, once he raised the affirmative defense of inoperability at trial, the prosecution had the burden of proving beyond a reasonable doubt that the gun could be fired.
A split of authority exists in this Court as to whether a defendant can be convicted of carrying a concealed pistol when the weapon is inoperable. People v Huizenga, 176 Mich App 800; 439 NW2d 922 (1989); People v Sanchez, 98 Mich App 562; 296 NW2d 312 (1980); People v Jiminez, 27 Mich App 633; 183 NW2d 853 (1970). In Jiminez, the defendant had a loaded gun. He was convicted of carrying a concealed weapon. MCL 750.227; MSA 28.424. We ruled that a gun need not be operable for a defendant to be convicted of carrying a concealed weapon.
Eighteen years later, in Huizenga, we strictly construed the definition of "firearm.” Id., 802-805; MCL 8.3t; MSA 2.212(20). We held that, since the gun the defendant was carrying was utterly incapable of propelling a dangerous projectile, it was not a concealed firearm as defined by statute.
We agree with Huizenga that it is not for this Court to enlarge the scope of criminal statutes but, rather, to construe them strictly. We hold that a "pistol,” as defined under the concealed weapons statute, must be operable.
[T]hat is, the pistol must be capable of propelling the requisite-sized dangerous projectile or be able to be altered to do so within a reasonably short time. [Id., 806.]
The Legislature has defined a firearm, including a pistol, as follows:
The word "firearm”, except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means for propulsion, except any smooth bore rifle or handgun designed and manufactured exclusively for propelling bb’s not exceeding .177 calibre by means of spring, gas or air. [MCL 8.3t; MSA 2.212(20).]
An affirmative defense to carrying a concealed pistol can be made by the presentation of proof that the pistol would not fire and could not readily be made to fire. Our resolution of the existing conflict is consistent with the holding in People v Hill, 433 Mich 464; 446 NW2d 140 (1989); see Administrative Order No. 1990-6, 436 Mich lxxxiv. Hill held that temporarily inoperable firearms which can be made operable within a reasonable time fall within the purview of statutes governing the use and possession of firearms. Id., 477. It referenced the then applicable standard criminal jury instruction, CJI 11:1:09 (current CJI2d 11.6). The instruction recognizes that a gun must be "totally inoperable” and "cannot be readily repaired” before a charge of illegal possession of a firearm can be defeated. Id., 476-477.
Defense counsel in this case was correct when arguing during closing that operability is a jury question when allegations of inoperability have been raised. He now argues that the evidence was insufficient to establish operability beyond a reasonable doubt. To resolve a sufficiency of the evidence claim, we view the evidence in the light most favorable to the prosecution; we determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). We review all the evidence presented, including the evidence presented by the defendant. People v Schinella, 160 Mich App 213, 216; 407 NW2d 621 (1987).
In this case, defendant produced no evidence that the gun was inoperable. Defense counsel did nothing more than raise a question about operabil ity; he asked Officer Scott if the gun had been test fired. Therefore, the jury was entitled to conclude that the pistol was operable. We determine that a rational trier of fact could have found the essential elements of the crime were proven beyond a reasonable doubt.
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Connor, J.
The parties to this ease were di vorced in 1956 in the Genesee Circuit Court. The judgment of divorce provided for the support of the parties’ only child. In 1989, plaintiff moved to liquidate and reduce to a separate judgment the total amount of child support in arrears. The trial court, in an order issued on June 5, 1990, denied defendant’s motion for summary disposition, which was based on the defenses of laches and the statute of limitations, and ordered defendant to pay the overdue child support, plus interest and attorney fees. From the order of June 5, 1990, defendant appeals as of right. We reverse that order.
At the time of the divorce, defendant was in the military and stationed at an Air Force base in Texas, but he voluntarily submitted to the circuit court’s jurisdiction for the divorce action.
The judgment of divorce was entered by the circuit court on April 16, 1956. Included in the judgment of divorce was the following provision for child support:
It is further ordered, adjudged and decreed, that the said LeRoy Bolden shall pay to the Clerk of this Court the sum of $15.00 per week for the first two (2) years, then $20.00 per week for the support of the said minor child until said child attains the age of 18 years, or finishes high school, whichever comes first, plus all medical, dental and hospital bills.
In December 1960, the friend of the court filed a petition for a bench warrant for defendant’s arrest because, at that time, there was $3,380 in child support in arrears. However, nothing further occurred in this case in the lower court until 1989, when plaintiff filed a petition to reduce to a judgment the amount of child support still owed.
The parties’ only child, Nickolas, attained the age of eighteen years on January 28, 1973. When the petition was filed on November 14, 1989, Nickolas was thirty-four years old.
In her petition for the past-due child support, plaintiff contended that she had not been aware of defendant’s whereabouts since the 1950s and had learned that he was living in California only because of an article that appeared in 1985 in a Flint newspaper before defendant’s induction into a local sports hall of fame. The article disclosed that defendant, after playing football at Michigan State University, joined the Air Force as a commissioned officer and had also played professional football. The article also disclosed that after the conclusion of his professional football career, defendant’s
post-football career began as a research assistant at Hollins College in Roanoke, Va. Then he joined the staff of Encyclopedia Brittanica. His next step was assistant director of admissions and the graduate business program at Stanford University.
He’s been with Hewlett-Packard for nine years and works among 30 or 40 company divisions in the Bay Area. [Hoyes, Bolden's Breakaway Still Burns in Flint Grid Lore, The Flint Journal, December 1, 1985, p E6.]
According to the article, defendant has resided in California for almost two decades. Plaintiff contended that she had no personal knowledge regarding where defendant resided and therefore she was unable to enforce the support obligation. Plaintiff alleged that defendant owed approximately $18,200 for child support and approximately $500 for medical expenses.
In his answer to the petition, the defendant claimed that the plaintiff was prevented from enforcing the terms of the divorce judgment be cause either the period of limitation had expired or the defense of laches applied. It was also defendant’s contention that he had paid some of the child support, and there allegedly was an agreement with plaintiff that she would notify defendant when, or if, she needed money.
Plaintiff’s response to defendant’s affirmative defenses was that the period of limitation was tolled for those years when defendant was not in the state, MCL 600.5853; MSA 27A.5853.
The trial court treated defendant’s arguments as a motion for summary disposition of plaintiff’s petition, and simply noted that it would not apply either theory to bar this case. We believe that, under the facts of this case, this ruling was erroneous.
Plaintiff’s petition to liquidate the amount owed for child support was an action to enforce the provisions of the divorce decree entered in 1956. The period of limitation for actions to enforce judgments or decrees is ten years, MCL 600.5809(3); MSA 27A.5809(3). Gabler v Woditsch, 143 Mich App 709, 710-711; 372 NW2d 647 (1985). For alimony payments (and child support payments by analogy), the period of limitation begins to run against each alimony installment when it becomes due. Rybinski v Rybinski, 333 Mich 592, 596; 53 NW2d 386 (1952); MCL 600.5837; MSA 27 A.5837.
In this case, the full amount of child support became due on January 28, 1973, when the minor child reached the age of eighteen years. At that point, plaintiff’s action to recover the child support payments had accrued in full, because no further payments were due according to the terms of the divorce decree. See Gabler, supra, pp 710-711. This gave plaintiff, at most, ten additional years to still seek payment for the accrued child support. Id., p 711.
Plaintiff argued both below and on appeal that MCL 600.5853; MSA 27A.5853 applies to toll the period of limitation. That statute provides as follows:
If any person is outside of this state at the time any claim accrues against him the period of limitation shall only begin to run when he enters this state unless a means of service of process sufficient to vest the jurisdiction of a Michigan court over him was available to the plaintiff. If after any claim accrues the person against whom the claim accrued is absent from this state, any and all periods of absence in excess of 2 months at a time shall not be counted as any part of the time limited for the commencement of the action unless while he was outside of this state a means for service of process sufficient to vest the jurisdiction of a Michigan court over him was available to the plaintiff. [Emphasis added.]
Regardless of when the claim accrued, the tolling provision is not applicable if the plaintiff had a means of obtaining personal jurisdiction and proper service over the defendant who was no longer in this state. Schumacher v Tidswell, 138 Mich App 708, 718-720; 360 NW2d 915 (1984); Frazier v Castellani, 130 Mich App 9, 12-15; 342 NW2d 623 (1983).
The Genesee Circuit Court had personal jurisdiction over defendant when the court issued the original judgment of divorce. Defendant agreed to submit to this state’s jurisdiction for the divorce, although at the time he was in the military and stationed in Texas. A party may agree to submit to personal jurisdiction in a particular forum. Potomac Leasing Co v French Connection Shops, Inc, 172 Mich App 108, 112; 431 NW2d 214 (1988). Any subsequent action based on the original judgment, even if brought pursuant to a new complaint, is deemed to be a continuation of the original action so that jurisdiction is proper in the court that rendered the original judgment. McGraw v Parsons, 142 Mich App 22, 24-25; 369 NW2d 251 (1985). See also Dittenber v Rettelle, 162 Mich App 430, 435; 413 NW2d 70 (1987). Consequently, the action filed in 1989 to collect the original judgment was merely a continuation of the 1956 divorce action and the Genesee Circuit Court continued to have personal jurisdiction over the defendant.
Moreover, new process is not required to reduce a child support obligation to an enforceable, final judgment if there was personal jurisdiction over the parties at the time the judgment of divorce was granted. Talbot v Talbot, 99 Mich App 247, 253; 297 NW2d 896 (1980). In this case, because the action to collect the divorce judgment was merely a continuation of the divorce action, service of process would not have been necessary, only notice to defendant of the relief sought. Id. Regardless, the court rules provide for substituted service of process for nonresident defendants subject to personal jurisdiction in this state. See GCR 1963, 105.2(1), now MCR 2.105(A), (B).
We find that the Genesee Circuit Court had continuing personal jurisdiction over defendant in this case, MCL 600.5853; MSA 27A.5853, and that plaintiff had a means for service of process on defendant sufficient to bring the action to collect the judgment. Consequently, MCL 600.5853; MSA 27A.5853 was inapplicable to toll the limitation period in this case.
Plaintiff claimed she lacked knowledge of defendant’s whereabouts, contending that defendant was "hiding” from his obligations to the minor child. These claims do not fall within any current provisions that may toll the period of limitation. If such an exception should be made, we believe it is up to the Legislature. If the plaintiff was having difficulty collecting the child support obligation because she could not find the defendant, she could have renewed the divorce judgment and brought the action at any time within the ten-year period of limitation following the child’s eighteenth birthday. MCL 600.5809(3); MSA 27A.5809(3).
We are further constrained to reject plaintiff’s argument because statutes of limitation are designed to promote diligence on the part of the plaintiff by establishing a reasonable, but limited, time for bringing an action in order to prevent the litigation of stale claims. Frazier, supra, p 14. In this case, we cannot conclude from the record that plaintiff was reasonably diligent in her efforts to enforce the child support obligation. If a custodial parent has the present means to locate an errant parent by utilizing common sources such as relatives, friends, alumni or professional associations, and former employers, that parent cannot simply sit back for years without making any effort to enforce the judgment. In this case, the plaintiff was aware of the defendant’s substantial contacts with the Flint area, Michigan State University, and the United States Air Force. Defendant’s educational and employment history appear to have been open and obvious, and his place of residence relatively stable. Strained relationships between former spouses may make collecting child support an onerous task, but the custodial parent who seeks court intervention cannot ignore personal responsibility to cooperate with the court in seeking to enforce its orders. It is conceivable in this case that the defendant could have been located with minimal effort on the part of the plaintiff. If necessary, the plaintiff also could have solicited the assistance of the friend of the court and sought the aid of appropriate law enforcement authorities.
Accordingly, we believe the trial court erred in ruling as a matter of law that the statute of limitations was not a bar to plaintiff’s request for overdue child support. The mere fact that defendant was not living in this state does not prevent the period of limitation from running in this case because defendant was subject to the state’s jurisdiction for this action and service of process was readily available. Frazier, supra, p 15. Given this result, we need not address defendant’s argument concerning the defense of laches.
Plaintiff has also argued that interest on the child support in arrears should have been granted, as well as attorney fees. Because plaintiff has not filed a cross appeal from the order appealed from, we decline to address these issues, not only because they are not preserved, but because they are also moot in light of our resolution of this case. Michigan Ass’n of Administrative Law Judges v Personnel Director of the State of Michigan, 156 Mich App 388, 395; 402 NW2d 19 (1986).
Reversed.
The trial court, apparently referring to these defenses, noted that the motion for summary disposition was denied without prejudice, because defendant contended there still was a factual issue to be resolved regarding plaintiff’s knowledge of defendant’s whereabouts. We need not address this point because we have decided this case upon the legal arguments made.
See also MCL 600.705(7); MSA 27A.705(7) (effective April 1, 1975, establishing limited personal jurisdiction over nonresident defendants in divorce actions).
Although plaintiff contends that Rybinski,' supra, is dispositive of this issue, we distinguish that decision because there is no discussion whether there was jurisdiction or service of process available against the defendant in Rybinski. That case was based on 1948 CL 609.17, which did not include the same language as now contained in MCL 600.5853; MSA 27A.5853, but courts have interpreted the predecessor statute as having the same purpose. See Campbell v White, 22 Mich 178, 187-199 (1871).
We note that defendant’s former hometown newspaper, The Flint Journal, was able to locate defendant in California when it decided to interview him for the 1985 article that apparently piqued the plaintiffs interest.
We note that, procedurally, plaintiff had at her disposal the Uniform Reciprocal Enforcement of Support Act (uresa), now known as the Revised Uniform Reciprocal Enforcement of Support Act (ruresa), MCL 780.151 et seq.; MSA 25.225(1) et seq., for purposes of enforcing in another state an order of a Michigan court for child support. See McMath v McMath, 174 Mich App 576, 583; 436 NW2d 425 (1989). However, even before the terms of the uresa could become available to plaintiff, she had to have the amount of child support in arrears reduced to a money judgment. Id., pp 582-583. We note too that the procedures available under the uresa are not relevant if efforts first are not made to locate the delinquent parent! | [
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Memorandum Opinion.
This appeal is of right from a jury conviction of murder in the first degree. MCLA 750.316; MSA 28.548.
The error assigned is the admissibility of a photograph of the almost completely incinerated remains of the victim.
The ruling on admissibility was well within the discretion of the trial judge.
No benefit to bench or bar would derive from an extended discussion of the settled and controlling authorities.
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V. J.. Brennan, J.
Plaintiffs, Ralph and Celia Sietsema, sold a parcel of farm property to Norman and Jean Field under a land contract dated May 29, 1964. The contract price was $18,000. The property included a house and barn which the buyers were compelled to insure pursuant to the following provisions ¡of the land contract:
“5. The buyer shall obtain and keep in force fire and extended coverage insurance covering the buildings and improvements now or hereafter on the premises in the name of the seller with a loss payable clause or other endorsement making the proceeds payable to the seller and buyer as their respective interests may appear, with insurers satisfactory to the seller in an amount not less than the balance owing under this contract, and shall deliver all such insurance policies to the seller with premium paid. The buyer may, at his option, separately insure his interest in said buildings and improvements, or, if he maintains insurance for more than the amount of the seller’s interest, the buyer may cause his name to be inserted in the seller’s policies as an additional insured.
“6. In case of loss or damage as a result of which said insurance proceeds are available, the buyer may, within 60 days of said loss or damage, give to the seller written notice of buyer’s election to repair or rebuild the damaged parts of the premises, in which event said insurance proceeds shall be used for such purpose. The balance of said proceeds, if any, which remains after completion of said repairing or rebuilding, or the entire of saiid insurance proceeds if the buyer elects not to repair or rebuild, shall be applied first toward the satisfaction of any existing defaults under the terms of this contract and then as a prepayment upon the principal balance owing, and without penalty, notwithstanding other terms of paragraph two to the contrary. No such prepayment shall defer the time for payment of any remaining payments required by said paragraph two. Any surplus of said proceeds in excess of the balance owing hereon shall be paid to the buyer.
“7. In case of failure of the buyer to obtain, maintain, or deliver said policies of insurance or to pay taxes or special assessments payable by the buyer as above provided, the seller at his election may obtain such insurance and pay all premiums thereon and/or pay such taxes and special assessments, and the sums so expended by the seller shall be a lien on the premises and shall be secured thereby and shall be payable by the buyer forthwith with interest at the rate of 7 per cent per annum.”
In performance of this obligation, the buyers purchased a policy of insurance from the Fremont Mutual Insurance Company (defendant herein). This policy, among other provisions, insured the barn against damage by wind up to a maximum amount of $3,000. The buyers, failed to renew the policy. Defendant notified plaintiffs of this fact by letter dated June 24, 1968, and informed plaintiffs that, pursuant to the terms of. the policy, coverage of their interest would continue for ten days beginning with the date of the notice. The barn was destroyed by wind on Juñe 29, 1968, within the ten-day grace period. On July 3, 1968, plaintiffs notified defendant of the loss and tendered payment for continuation of coverage, which payment was rejected.
Buyers then defaulted on the land contract and plaintiffs obtained a judgment against them on February 27, 1969; the buyers’ redemption period expired on May 30,1969.
Plaintiffs’ attorney made a formal request for payment for the loss of the barn on March 5, 1969. This suit was filed on September 16, 1969.
The trial court found for plaintiffs, and defendant appeals. Defendant first argues that since plaintiffs subsequently resold the property for an amount greater than that due on the land contract at the time of the loss, they have in fact incurred no loss. We agree with the trial court that the rights of the parties were fixed at the time of the loss (Booker T Theatre Co v Great American-Ins Co of N Y, 369 Mich 583 [1963]) and, therefore, plaintiffs’ subsequent resale of the property is not a bar to recovery.
Defendant’s second argument is that it was denied the right to pay the balance due under the contract at the time of the loss anld thus to be subrogated to plaintiffs’ claim. The trial court correctly found that defendant failed to timely exercise this option.
Affirmed. Costs to appellees.
All concurred. | [
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Neff, J.
Defendant appeals as of right from a May 11,1990, judgment of divorce.
i
The parties were legally married on September 17, 1981, and lived as husband and wife until June 13, 1989. Two children were born of the marriage: Michael John Booth, born November 25, 1984, and Jessica Ann Booth, born November 29, 1987. On July 3, 1989, plaintiff filed a verified complaint for divorce, alleging that there had been a breakdown in the marriage relationship and requesting custody of the minor children because of defendant’s violent behavior.
At the bench trial, plaintiff testified that defendant physically abused their son and emotionally abused her. Regarding her earning capacity, plaintiff stated that she was unsure of what kind of employment she was capable of obtaining, but said she had graduated from high school. She stated that defendant owned the marital home at the time of the marriage and admitted that she signed an antenuptial agreement. Plaintiff said that she desired the marital home and sole custody of Michael and Jessica. In addition, she agreed with the recommendation of the friend of the court that defendant pay $241 a week in child support.
Defendant testified that he was employed by Great Lakes Steel during the marriage and, at the time of the marriage, had worked there for eight years. Defendant testified that his biweekly take home pay was $880 and that, on rare occasions, he picked up some side work and earned approximately $200 from each side job. With regard to the antenuptial agreement, defendant testified that he and plaintiff entered into the agreement because he had accumulated a large amount of property before their marriage. Defendant denied physically abusing plaintiff and the minor children, although he admitted hitting Michael to discipline him. Defendant testified that he wanted credit for the assets he acquired before the marriage, but that everything else should be divided equally between the parties. He said that he was not able to pay alimony, did not want his wife to live in the marital home because he cannot afford it, and did not want supervised visitation.
After the trial, the trial court entered an oral opinion on the record and a judgment of divorce. The court awarded both parties a one-half interest in the marital home, as tenants in common, with plaintiff being awarded exclusive possession of the marital home for five years. Defendant was given credit for a $9,000 down payment. Other than a few household items, the remainder of the marital estate was divided equally between the parties. No alimony was awarded.
With regard to the minor children, the trial court awarded the parties joint legal custody of Michael and Jessica and plaintiff sole physical custody. The trial court ordered that defendant have supervised visitation with the minor children and pay $241 a week in support until Michael reaches the age of eighteen, at which time support payments will be reduced to $157 a week. Defendant was also ordered to pay ninety percent of any uninsured medical payments.
ii
Defendant first argues that the trial court erred in finding that, in Michigan, antenuptial agreements are unenforceable as a matter of law and in refusing to enforce the agreement between the parties.
Before the marriage, plaintiff, by her own admission, signed an agreement that provides:
Pre Maritial [sic] Agreement
I, Iris Ann Hajec, of my own Free Will, Agree that in the Event of A Default in My Marriage with Michael A. Booth By either Party, I will Release all Interest in any Equity, Interest, Property and Funds That Michael A. Booth has Accumulated On or Before September 10, 1981. I have Read the Following List and Agree to its Contents. All Equity, Interest, Property and Funds Obtained On or After September 11, 1981 Shall be Shared Equally.
23253 Edward Dearborn Mi. Equity 40,000.00
4334-36 Ogden Detroit Mi. Equity 5,500.00
1979 Chevorlet [sic] Corvett [sic] Equity 12,500.00
1977 Pontiac Grand Prix Equity ' 3,000.00
1979 Yamaha Special 750 Equity 2,000.00
1981 Rinkerbuilt Boat & Motor Equity 6,000.00
1980 Minolta Camera & Equipment Equity 1,200.00
Detroit Edison Stock Equity 185 Shares
Great Lakes Steel Credit Union Savings 1,800.00
Michigan National Bank Ck. & Sav. 2,800.00
Misc. Furniture & Stereo Equipment Value 2,000.00
Note: Under no Circumstances Will this Agreement Be Changed.
The trial court stated on the record that ante-nuptial agreements made in contemplation of divorce are unenforceable in Michigan, but did not make any further findings with regard to the agreement.
Recently, in Rinvelt v Rinvelt, 190 Mich App 372, 379, 382; 475 NW2d 478 (1991), this Court specifically held that antenuptial agreements that govern the division of property are enforceable in the context of divorce. In doing so, the Rinvelt panel agreed with the rationale and the limitations with regard to such agreements set forth in Brooks v Brooks, 733 P2d 1044 (Alas, 1987). Rinvelt, supra, pp 379-382. In Brooks, supra, p 1049, the Alaska Supreme Court recognized that ante-nuptial agreements are generally valid and enforceable, provided that the following three criteria are considered:
1. Was the agreement obtained through fraud, duress or mistake, or misrepresentation or nondisclosure of material fact?
2. Was the agreement unconscionable when executed?
3. Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?
Accordingly, we remand this case to the trial court for findings on each of the above criteria and a determination of whether the antenuptial agreement is enforceable. On remand, plaintiff has the burden of proving and persuading the trial court that the antenuptial agreement is not enforceable. In re Benker Estate, 416 Mich 681, 684; 331 NW2d 193 (1982); Rinvelt, supra, p 382.
hi
Defendant next argues that the trial court abused its discretion in distributing the marital estate. Essentially, defendant claims that the trial court did not give him proper credit for property acquired before the marriage.
If the antenuptial agreement is enforceable, the trial court must then make a redetermination regarding the distribution of the marital estate pursuant to the agreement. If the agreement is found to be invalid, the trial court shall make additional factual findings supported by reasons for distributing the marital estate because the existing inadequate factual findings make appellate review of this issue impossible.
Although we remand for further findings, we note that defendant claims that the trial court abused its discretion in distributing pension benefits that accrued before the marriage.
A conflict exists in this Court with regard to whether a pension accrued before a marriage may be divisible.
In Rogner v Rogner, 179 Mich App 326; 445 NW2d 232 (1989), the defendant argued that the trial court erroneously divided his pension equally where one-third of the pension accrued before the marriage. Id., p 329. In Rogner, supra, pp 329-330, this Court, while recognizing that property rights acquired before the marriage normally are not subject to division, determined that the trial court did not abuse its discretion by including pension benefits attributable to service before the marriage in its division of property, setting forth the following rationale:
The major consideration is the security of the family and the court may utilize any property in the real and personal estate of either party to achieve suitable support for the family as the court "considers just and reasonable after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.” MCL 552.23; MSA 25.103; Zimmers v Zimmers, 346 Mich 28; 77 NW2d 267 (1956). Reitz v Reitz, 338 Mich 309; 61 NW2d 81 (1953).
Another line of cases holds that the portion of a pension that accrued before the marriage cannot be considered part of the marital estate subject to distribution. Lesko v Lesko, 184 Mich App 395; 457 NW2d 695 (1990); Kurz v Kurz, 178 Mich App 284, 292; 443 NW2d 782 (1989); Kilbride v Kilbride, 172 Mich App 421, 435; 432 NW2d 324 (1988). The Kilbride line of cases rely in large part on MCL 552.18(1); MSA 25.98(1), which provides:
Any rights in and to vested pension, annuity, or retirement benefits, or accumulated contributions in any pension, annuity, or retirement system, payable to or on behalf of a party on account of service credit accrued by the party during marriage shall be considered part of the marital estate subject to award by the court under this chapter.
Because we believe the rule in Rogner is the better-reasoned, approach, we hold that pension benefits accrued before marriage may be the subject of a division of property. See also the opinion of Murphy, J., concurring in part and dissenting in part in Kurz, supra, pp 299-301. To the extent that Kilbride, Kurz, and Lesko flatly prohibit the inclusion of pension benefits accrued before the marriage in the division of property, we disagree with those cases. On remand, the trial court may treat as part of the marital estate subject to division those pension benefits that accrued before the marriage if such treatment is "just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.” MCL 552.23(1); MSA 25.103(1); Zimmers, supra; Reitz, supra; Rogner, supra.
IV
Defendant next argues that the trial court abused its discretion in ordering that he pay $241 a week for the support of the parties’ two minor children.
In determining child support, the trial court merely stated on the record that because no alimony was awarded in this case, it was adopting the recommendation of the friend of the court and ordered that defendant pay $241 a week for support of the two minor children. Again, the lack of adequate findings frustrates our review of this issue. Consequently, on remand the trial court must make findings with regard to the needs of the children and each parent’s ability to pay. Thames v Thames, 191 Mich App 299, 306; 477 NW2d 496 (1991); Hoke v Hoke, 162 Mich App 201, 206; 412 NW2d 694 (1987). We note that effective October 10, 1990, the trial court may deviate from the friend of the court support formula only if it determines that application of the formula would be unjust or inappropriate. MCL 722.27(2); MSA 25.312(7X2), MCL 552.16(2); MSA 25.96(2). On remand, the trial court is to utilize the 1992 edition of the Michigan Child Support Guideline Manual.
v
Defendant finally contends that the trial court erred in ordering supervised visitation. We disagree.
The Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq., governs child custody disputes between parents, agencies, or third parties. This Court reviews an order regarding visitation de novo, but will not reverse the order unless the trial court made findings of fact against the great weight of the evidence, committed a palpable abuse of discretion, or committed a clear legal error. Thames, supra, p 305. Visitation shall be granted if it is in the best interests of the child and in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent. MCL 722.27a(l); MSA 25.312(7a)(l). In determining the frequency, duration, and type of visitation to be granted, the trial court may consider the reasonable likelihood of abuse or neglect during visitation, MCL 722.27a(4)(c); MSA 25.312(7a)(4)(c), and may require that visitation occur in the presence of a third party or agency, MCL 722.27a(6)(f); MSA 25.312(7a)(6)(f).
Defendant admitted that he struck Michael, then age five, with a belt on at least one occasion. Plaintiff testified that defendant hit Michael when he was six or eight weeks old. In addition, she said that defendant had been jailed for physically abusing her. Under these circumstances, the trial court did not abuse its discretion in ordering supervised visitation.
VI
We reverse the judgment of divorce and remand to the trial court for further findings consistent with this opinion. We do not retain jurisdiction.
But see the opinion of Murphy, J., concurring in part and dissenting in part, in Kurz v Kurz, 178 Mich App 284, 299-301; 443 NW2d 782 (1989).
We note that the difference between the 1990 and 1992 guidelines is insignificant and believe that it makes more sense to assess the current status of the parties and minor children. | [
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Memorandum Opinion.
Defendant Donald John Stempien was convicted of larceny from a building, MCLA 750.360; MSA 28.592, and he appeals.
Examination of the record and briefs discloses no error.
Affirmed. | [
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Holbrook, Jr., P.J.
In this action for a declaratory interpretation of the Surrogate Parenting Act, MCL 722.851 et seq.; MSA 25.248(151) et seq., plaintiffs appeal as of right from an order of the Wayne Circuit Court granting defendant’s motion for summary disposition for failure to state a claim. We affirm in part and reverse in part.
Plaintiffs are infertile couples and prospective surrogate mothers. In their suit, filed on August 4, 1988, plaintiffs assert that if the Surrogate Parenting Act were interpreted as being an outright ban on surrogacy contracts for pay, the statute would deny them their constitutionally protected privacy rights and would offend the Due Process and Equal Protection Clauses of the state and federal constitutions. Plaintiffs maintain that, to avoid unconstitutionality, the statute must be read as permitting such contracts as long as payment to the birth mother is not contingent upon the relinquishment of her parental rights.
In response to plaintiffs’ motion for a preliminary injunction, defendant moved for summary disposition for failure to state a claim. At the hearing on the motions, counsel for plaintiffs stated on the record that if the court were to interpret the statute in accordance with defendant’s interpretation, plaintiffs would be satisfied with regard to the constitutionality of the statute. Upon that representation, the trial court found the statute to be constitutional and stated that it would issue a declaratory judgment within sixty days.
On October 4, 1988, defendant moved for reconsideration of the court’s oral ruling that a declaratory opinion was to follow, arguing that in light of the agreement of plaintiffs and defendant with regard to the controlling issue, there was no longer a case or controversy and the court had no jurisdiction. Plaintiffs’ response, in essence, was that it had become clear that the alleged agreement was a misunderstanding and the controversy remained. In an opinion and order issued on November 9, 1988, the court held that the statute prohibited surrogacy contracts where the surrogate mother receives compensation and agrees to voluntarily relinquish her parental rights. The court held that it was still permissible to enter into a surrogacy contract where no compensation, other than medical expenses, is paid to the mother. The court then went on to rule that because the parties were in agreement concerning the constitutionality of the statute, there was no actual controversy.
Plaintiffs’ subsequent motion for reconsideration was denied, and this appeal followed.
i
Plaintiffs’ first argument is a jurisdictional one. They argue that the trial court erred in granting summary disposition on the ground that there was no longer an actual controversy. We agree.
A review of the record clearly indicates the existence of a case or controversy. The confusion concerning whether a controversy did exist stems from plaintiffs’ misunderstanding of defendant’s position.
Plaintiffs alleged that in surrogacy arrange ments it is common practice that, once an agreement between the parties has been reached, the infertile couple places the birth mother’s compensation in escrow, payable upon the birth of the child, and the infertile couple usually adopts the child within three to four months after birth. The entire agreement is memorialized in a "memorandum of mutual understanding,” which is generally viewed by the courts as an instrument not legally binding.
On the basis of a mistaken belief that an agreement had been reached to allow interpretation of the statute in a manner that would permit that type of arrangement, plaintiffs’ counsel made his statement concerning the constitutionality of the statute at the hearing. Plaintiffs became aware of the misunderstanding during the period between the hearing and the issuance of the written opinion and order. Plaintiffs then informed the trial court of this misunderstanding in their response to defendant’s motion for reconsideration. The court acknowledged plaintiffs’ response in its opinion of November 9.
Upon this record we conclude that there was a "case or controversy” existing within the meaning of MCE 2.605(A) when the trial court issued its opinion and that, therefore, the court’s finding that it lacked jurisdiction was erroneous.
ii
Having resolved the jurisdictional question in the affirmative, we now address the merits of the case. Plaintiffs’ contend that the statute violates the due process guarantee of freedom from government interference in matters of marriage, family, procreation, and intimate association. They maintain that the state has no compelling interest in intervening in this conduct. We disagree.
We agree with plaintiffs that the Due Process Clauses of the state and federal constitutions, together with the penumbral rights emanating from the specific guarantees of the Bill of Rights, protect "individual decisions in matters of childbearing from unjustified intrusion by the State.” Carey v Population Services Int’l, 431 US 678, 687; 97 S Ct 2010; 52 L Ed 2d 675 (1977). Government however, can justify the abridgment of a fundamental right by demonstrating that a countervailing compelling state interest is thereby promoted and that the means are closely tailored to the end sought to be achieved. Eisenstadt v Baird, 405 US 438, 463-464; 92 S Ct 1029; 31 L Ed 2d 349 (1972) (White, J., concurring).
The question before us, then, is, Did the Legislature have a compelling government interest sufficient to justify intrusion into plaintiffs’ right to procreate in the surrogacy context? We answer that question in the affirmative.
A
The first interest is that of preventing children from becoming mere commodities.
As overwhelmingly repugnant as the thought may be, unbridled surrogacy for profit could encourage the treatment of babies as commodities. Whatever sense of idealism that may motivate a fertile woman into hosting a pregnancy for an infertile couple is rent asunder by the introduction of the profit motive. It could be only a matter of time before desirable, healthy babies would come to be "viewed quantitatively, as merchandise that can be acquired, at market or discount rates.” O’Brien, Commercial Conceptions: A Breeding Ground for Surrogacy, 65 NC L R 127, 144 (1986). As the New Jersey Supreme Court commented in In re Baby M, 109 NJ 396, 440; 537 A2d 1227 (1988): "In a civilized society, there are some things that money should not be able to buy.” In our opinion, babies ought to be one of those things.
B
The best interest of the child is also an interest that is sufficiently compelling to justify government intrusion.
Surrogacy arrangements focus exclusively on the parents’ desires and interests, and, accordingly, the parties are apt to be insensitive to what would be in the children’s best interests. That position is in direct opposition to the child custody law in this state, the guiding principle of which is the best interests of the child. See MCL 722.23; MSA 25.312(3); Duperon v Duperon, 175 Mich App 77; 437 NW2d 318 (1989); and Zuziak v Zuziak, 169 Mich App 741; 426 NW2d 761 (1988).
As the New Jersey Supreme Court in Baby M, supra, p 441 commented: "The long-term effects of surrogacy contracts are unknown, but feared.” It is almost impossible to imagine the emotional anguish that could result to children who learn that they, in effect, were bought and paid for and that their mothers gave birth as a means of obtaining money.
The long-term effects are by no means limited to the emotional trauma that might result from knowing of the purchase and sale aspect of one’s birth. The custody battles that in all likelihood will occur where one of the parties to a surrogacy contract has a change of heart, no doubt, will inflict grievous wounds upon the child regardless of who prevails.
C
A third compelling state interest is that of preventing the exploitation of women.
Surrogacy-for-profit arrangements have the potential for demeaning women by reducing them to the status of "breeding machines.” The plaintiffs before us validate this fear with their argument that the compensation given surrogate mothers is to be looked upon as compensation for their "gestation services” only.
Surrogacy contracts, no matter how they are cast, contemplate, indeed logically dictate, that there be no connection between the birth mother and the baby after the delivery. Were surrogacy contracts to be validated, every surrogate mother would soon be cast in the role of an "unfeeling, emotionless machine whose purpose is to create a life and then disappear.” Recht, "M” is for Money: Baby M and the Surrogate Motherhood Controversy, 37 Am U L R 1013, 1022 (1988).
The potential for such exploitation is much broader than being just gender-based, it is economic-based as well. Women in the lower economic strata could well become "breeding machines” for infertile couples of the upper economic brackets. Accordingly, it is the surrogate who bears the brunt of the contractual obligations, for it is her health that is at risk and her conduct that is restricted. The contracting couple, on the other hand, need to supply only the sperm and the compensation. While the surrogate endures the nine-month gestation period and all the attendant physical burdens and risks, the contracting couple are free to go about their lives, anticipating the delivery of their baby.
This is not to say that all surrogate mothers will feel exploited; we can conceive of instances where the surrogate may derive a great deal of satisfaction from being able to assist an infertile couple in having a child. The fact remains, however, that there is a danger of women being exploited by these surrogacy-for-profit arrangements, and the protection of women from that danger warrant government intrusion.
hi
Having thus concluded that there are compelling interests sufficient to warrant governmental intrusion into the otherwise protected area of privacy in the matter of procreation, we next address plaintiffs’ argument that the statute is so vague and indefinite in meaning that it is incapable of giving fair warning of what conduct is prohibited by the statute.
A statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; and (3) its coverage is overly broad and impinges on First Amendment freedoms. Kolender v Lawson, 461 US 352; 103 S Ct 1855; 75 L Ed 2d 903 (1983); Woll v Attorney General, 409 Mich 500; 297 NW2d 578 (1980); People v Howell, 396 Mich 16; 238 NW2d 148 (1976).
In testing a statute for vagueness, a court should give the words of the statute their ordinary meaning. In re Forfeiture of 719 North Main, 175 Mich App 107, 111; 437 NW2d 332 (1989); People v Jackson, 140 Mich App 283, 287; 364 NW2d 310 (1985).
Plaintiffs’ argument focuses on the use of the conjunctive "and” in the definition of "surrogate parentage contract” found MCL 722.853(i); MSA 25.248(153)(i). Plaintiffs maintain that the phrase "and to voluntarily relinquish her parental rights to the child” means that only those arrangements that link conception and surrogate gestation services to the relinquishment of parental rights are prohibited. The plaintiffs assign error to the trial court’s interpretation that the act prohibits all arrangements' where surrogacy is undertaken for compensation.
We affirm the lower court’s ruling to the extent it holds that the Legislature intended to make void and unenforceable those arrangements that provide both for conception or surrogate gestation services and for the relinquishment of parental rights. The statutory language clearly defines "a surrogate parentage contract” as consisting of two elements: (1) conception, through either natural or artificial insemination, of, or surrogate gestation by a female and (2) her voluntary relinquishment of her parental rights to the child. Only a contract, agreement, or arrangement combining these two elements constitutes a "surrogate parentage contract” that is void and unenforceable under the act.
Section 9 of the act provides that a "surrogate parentage contract” for compensation is unlawful and prohibited. Hence, a contract, agreement, or arrangement providing compensation solely for conception or surrogate gestation services is not unlawful and prohibited, because the element of "relinquishment of parental rights” is lacking.
We therefore reverse that portion of the lower court’s ruling that holds that all surrogate arrangements for compensation are unlawful. Such a reading of the statute is a strained one, because it overlooks the linkage of the elements required to qualify a surrogacy arrangement as a "surrogate parentage contract.” Our role is to interpret the act as written by the Legislature and to give effect to the legislative intent as expressed in the language of the act. If the Legislature intended to prohibit surrogate contracts solely on the basis of the existence of compensation for conception or surrogate gestation services, it failed to do so.
To summarize, we hold:
(1) A surrogate parentage contract is void and unenforceable under § 5;
(2) A surrogate parentage contract entered into for compensation is unlawful and prohibited by §9;
(3) For a surrogate parentage contract to exist there must be present the elements of (1) conception, through either natural or artificial insemination, of, or surrogate gestation by a female and (2) the voluntary relinquishment of her parental rights to the child; and
(4) A contract, agreement, or arrangement that does not contain both elements set forth in (3) above is neither void and unenforceable under § 5 nor unlawful and prohibited by § 9, even when entered into for compensation.
iv
Lastly, plaintiffs argue that because the state permits surrogacy-for-compensation arrangements where the husband is infertile, the state may not, consistent with equal protection, make it a criminal offense for a married couple, where the wife is infertile, to enter into a surrogacy arrangement that provides for the payment of compensation to the surrogate for conception or surrogate gestation services. Given our holding that the act does not prohibit surrogate contracts that provide compensation solely for conception or surrogate gestation services, there is no need to reach plaintiffs’ equal protection argument.
We note that the Legislature has recently passed amendatory language that creates a presumption that every surrogacy contract includes a provision that the surrogate agrees to relinquish her parental rights. 1990 PA 190 amends § 3(i) of the act to read:
"Surrogate parentage contract” means a contract, agreement, or arrangement in which a female agrees to conceive a child through natural or artificial insemination, or in which a female agrees to surrogate gestation, and to voluntarily relinquish her parental or custodial rights to the child. It is presumed that a contract, agreement, or arrangement in which a female agrees to conceive a child through natural or artiñcial insemination by a person other than her husband, or in which a female agrees to surrogate gestation, includes a provision, whether or not express, that the female will relinquish her parental or custodial rights to the child. [Amendatory language emphasized.]
Obviously, we do not render an opinion concerning the effect of this amendatory language, and nothing in this opinion should be read or construed as doing so.
Affirmed in part and reversed in part.
Jansen, J., concurred.
"Surrogate parentage contract” means a contract, agreement, or arrangement in which a female agrees to conceive a child through natural or artificial insemination, or in which a female agrees to surrogate gestation, and to voluntarily relinquish her parental rights to the child. [MCL 722.853(i); MSA 25.248(153) (i).]
A surrogate parentage contract is void and unenforceable as contrary to public policy. [MCL 722.855; MSA 25.248(155).]
(1) A person shall not enter into, induce, arrange, procure, or otherwise assist in the formation of a surrogate parentage contract for compensation.
(2) A participating party . . . who knowingly enters into a surrogate parentage contract for compensation is guilty of a misdemeanor punishable by a fine of not more than $10,000.00 or imprisonment for not more than 1 year, or both.
(3) A person other than a participating party who induces, arranges, procures, or otherwise assists in the formation of a surrogate parentage contract for compensation is guilty' of a felony punishable by a fine of not more than $50,000.00 or imprisonment for not more than 5 years, or both. [MCL 722.859; MSA 25.248(159).]
"Compensation” means a payment of money, objects, services, or anything else having monetary value except payment of expenses incurred as a result of the pregnancy and the actual medical expenses of a surrogate mother or surrogate carrier. [MCL 722.853(a); MSA 15.248(153)(a).] | [
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Holbrook, Jr., J.
Admiral Insurance Company appeals as of right from several orders entered in the Wayne Circuit Court in these consolidated cases involving garnishment and tort claims. We vacate the order awarding attorney fees, but affirm the remaining orders.
The underlying action that ultimately led to these appeals was brought by Mary Brewer against Southgate Police Chief Robert Perrin, several police officers, and the City of Southgate for the wrongful death of her son Gary Catron. At the time of that suit, Southgate’s primary insurer was Admiral. The city also had an excess policy issued by defendant Columbia Casualty Insurance Company. Admiral notified the city that it would not defend Perrin because it contended that the policy did not cover city employees. Columbia agreed to defend and indemnify the individual officers, including Perrin. Columbia retained defendant Frank Brochert to defend Perrin.
Ultimately, Brewer’s claims against Perrin were concluded by entry of a consent judgment for $195,000. Brewer and Perrin also entered into an agreement whereby Perrin assigned to Brewer his rights to any claims against Admiral arising from its policy insuring Southgate, and Brewer agreed not to enforce the consent judgment against Perrin or the city.
Admiral then filed a complaint in federal district court against Columbia, Brewer, Brochert, and Perrin, seeking a declaration that it was not liable to defend or indemnify Perrin under its policy issued to Southgate. Admiral claimed that Columbia and Brochert acted in bad faith, and alleged conflict of interest, tortious interference with a contract, and conspiracy. Admiral also alleged that the settlement between Brewer and Perrin was the result of collusion and conspiracy between Brochert and Columbia to ensure that the settlement would be enforced solely against Admiral and not Columbia.
Sixteen days after Admiral filed its complaint, Brewer filed a writ of garnishment against Admiral based on Perrin’s claim of indemnification. Admiral’s action was transferred to state court, and the two cases were consolidated.
In Brewer’s garnishment action against Admiral, the trial court granted Brewer’s motion for summary disposition, following Admiral’s denial of liability.
The trial court granted Brochert’s motion for summary disposition, dismissing Admiral’s claims against him. Brochert then filed a motion against Admiral for attorney fees. The trial court held that it had jurisdiction over the issue, despite Admiral’s filing of a claim of appeal. The court found that Admiral’s action against Brochert was not frivolous from the outset, but that it lacked merit and should not have been maintained once discovery revealed that the claims against Brochert were factually unsupported. Pursuant to MCR 2.114 and MCL 600.2591; MSA 27A.2591, the court awarded Brochert attorney fees totaling $3,640.
The trial court entered an order granting Columbia’s motion for summary disposition of Admiral’s claims against it and denying Admiral’s cross-motion for summary disposition against Columbia. The trial court found no factual or legal basis for Admiral’s tortious interference claim or for its claims for contribution from Columbia.
The trial court dismissed without prejudice Admiral’s claims against Perrin. Admiral does not appeal this order.
i
On appeal, Admiral raises four issues concerning the summary disposition in favor of Brewer’s writ of garnishment. We consider these issues not pre served for appeal because Admiral failed to provide this Court with a settled statement of facts to substitute for the lost reporter’s notes of the June 21, 1988, hearing at which the trial court made its ruling on the motion. MCR 7.210(B)(2); Holtzlander v Brownell, 182 Mich App 716, 722-723; 453 NW2d 295 (1990); Nye v Gable, Nelson & Murphy, 169 Mich App 411, 417; 425 NW2d 797 (1988). It is the appellant’s obligation to secure the complete transcript of all proceedings in the lower court unless production of the full transcript is excused by order of the trial court or by stipulation of the parties. Nye, p 414; Myers v Jarnac, 189 Mich App 436, 444; 474 NW2d 302 (1991). This Court limits its review to the record provided on appeal and will not consider any alleged evidence or testimony that is not supported by the record presented to the Court for review. Fetz Engineering Co v Ecco Systems, Inc, 188 Mich App 362, 376; 471 NW2d 85 (1991).
MCR 7.210(B)(2) sets forth the procedures to settle a record where the lower court proceedings were transcribed but the parties are unable to obtain a copy from the reporter. There is no indication that Admiral either complied with these provisions or was excused from producing the transcript. Nevertheless, we consider review of the four issues appropriate given their legal, rather than factual, nature. Brewer does not contend that Admiral’s failure to procure the transcript precludes review of the issues. Moreover, our analysis of the issues does not entail review of any alleged evidence or testimony, but is limited to questions of law. _
A
Admiral first argues that Perrin was not an "executive officer” of Southgate and thus was not covered by the insurance policy. Brewer asserts in her writ of garnishment that Perrin was covered by Admiral’s policy. If Perrin was an executive officer, then Admiral’s refusal to defend him binds it to pay any reasonable settlement made between Perrin and Brewer. Alyas v Gillard, 180 Mich App 154, 160; 446 NW2d 610 (1989); Detroit Edison Co v Michigan Mutual Ins Co, 102 Mich App 136, 144; 301 NW2d 832 (1980).
The pertinent provision of the policy states:
II. PERSONS INSURED
Each of the following is an insured under this insurance to the extent set forth below
(c) if the Named Insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such. . . .
Whether a police chief is an executive officer for insurance liability purposes is an issue of first impression in this Court. Other jurisdictions have taken diverse routes to resolve the issue. One approach defines executive officers by analogy to cases construing that term in a private corporation context. See Holm v Mutual Service Casualty Ins Co, 261 NW2d 598 (Minn, 1977); Pullen v Cincinnati Ins Co, Inc, 400 So 2d 393 (Ala, 1981). Another approach defines that term by reference to a governmental structure, while finding that coverage was intended to members of the executive branch of government. See Ohio Casualty Group of Ins Cos v Gray, 746 F2d 381, 385-386 (CA 7, 1984). We are convinced that the best approach is that taken in Holm and Pullen.
The insurance policy provision at issue in both Holm and Pullen is identical to the provision in the case at bar. In Holm, supra, p 601, the Minnesota Supreme Court concluded that an acting police officer was not an executive officer under the policy, but determined that executive officers were
those persons whose position, power, and duties are established in the municipal charter and who are responsible for high-level governmental policy-making. Although somewhat broadly drawn, this definition would generally include a city’s mayor or manager, councilmen, administrative board members, and department heads, while excluding employees whose duties are largely ministerial.
Likewise, in Pullen, supra, pp 398-401, executive officers included managerial positions and de facto department heads.
In this case, the Southgate city code defines the chief of police as the department head of the department of police, with responsibility for directing the work of the police force. The record indicates that Perrin was a policy maker with managerial responsibility for the police force. We are persuaded that Perrin was an executive officer for purposes of the insurance policy even though he performed his duties as police chief under the supervision of the public safety commission. Pullen, supra.
Admiral analogizes to governmental immunity law and maintains that the distinction between discretionary and ministerial duties should define whether a government employee is an executive officer. Governmental immunity for tort liability of executive officers is limited to the highest executive officials. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 592; 363 NW2d 641 (1984). However, a finding that Perrin was not the highest executive officer responsible for police affairs for purposes of tort immunity does not preclude a finding that he was an executive officer for purposes of insurance coverage. We conclude that the trial court did not err in finding that Perrin, as chief of police, was an executive officer under the insurance provision.
B
Admiral’s next issue in the garnishment case is whether it was given an opportunity to prove that the settlement between Brewer and Perrin was unreasonable. Admiral relies on Detroit Edison Co, supra, p 146, for authority that it must have the opportunity to present evidence that the settlement was unreasonable before a judgment for the amount of the settlement is entered against it. However, Detroit Edison Co is distinguishable. That case was remanded to allow the insurance company the opportunity to present evidence of the settlement’s unreasonableness after this Court ruled that the insurance company had the duty to defend the underlying defendant and was liable for any settlement. Id. The underlying plaintiff and defendant in that case had entered into a settlement after the circuit court declared that the insurance company was not compelled to defend the underlying defendant. Here, the record indicates that Admiral had the opportunity to raise the issue of the reasonableness of the settlement and did raise the issue before the trial court granted Brewer summary disposition. We find no error.
c
Admiral’s third issue in the garnishment case is that the trial court erred in granting Brewer summary disposition despite the fact that Admiral had denied in its disclosure any obligation to indemnify Perrin.
If there is a dispute concerning a garnishee defendant’s liability, the issue shall be tried in the same manner as other civil actions. MCR 3.101(M) (1). The garnishment affidavit acts as the plaintiffs complaint against the garnishee defendant, and the disclosure serves as the answer, thus framing the issues. MCR 3.101(M)(2).
After Brewer filed the writ of garnishment and the affidavit, Admiral filed its disclosure, which denied any obligation to defend or indemnify Perrin on the basis that he was not an insured under the insurance policy. The issue formed by these pleadings was whether Perrin was an executive officer for purposes of the insurance policy. Interrogatories were served and depositions taken.
MCR 3.101(M)(3) provides:
Even if the amount of the garnishee defendant’s liability is disputed, the plaintiff may move for judgment against the garnishee defendant to the extent of the admissions in the disclosure.
Consequently, summary disposition in a garnishment proceeding can issue only to the extent of the admissions of the garnishee in the disclosure. Avsco, Inc v Specialty Sounds, Inc, 51 Mich App 360, 363; 214 NW2d 843 (1974).
Summary disposition in Avsco was prematurely granted, because there was no agreement regarding the facts and the trial court could not determine whether the garnishee defendant’s disclosure was fraudulent without holding a hearing. Id. Similarly, in Meier v Romulus Aluminum Foundry, Inc, 18 Mich App 308; 170 NW2d 923 (1969), the plaintiff moved for judgment against the garnishee defendant, contending that certain statements by him constituted an admission of liability. This Court ruled that the trial court erred in granting judgment to the plaintiff, because the garnishee defendant was entitled to an opportunity to present evidence supporting his position. Id.
Summary disposition in this case was proper even though Admiral denied liability to Perrin, because the issue whether Perrin was an executive officer under the insurance policy is a question of law. The parties in this case do not disagree about the facts concerning Perrin’s employment as the chief of police. Because the issue whether Perrin was an executive officer requires interpretation of the insurance contract, summary disposition was appropriate. Burch v Wargo, 378 Mich 200; 144 NW2d 342 (1966).
D
Admiral next contends that the trial court erred in granting Brewer summary disposition because Admiral raised a genuine issue of material fact concerning the reasonableness of the settlement between Perrin and Brewer.
A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. Giving the benefit of reasonable doubt to the nonmoving party, the court must determine whether a record might be developed which would leave open an issue upon which reasonable minds may differ. Pemberton v Dharmani, 188 Mich App 317, 320; 469 NW2d 74 (1991); Petaja v Guck, 178 Mich App 577, 578; 444 NW2d 209 (1989). The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Maize v State Farm Mutual Automobile Ins Co, 190 Mich App 106, 108; 475 NW2d 363 (1991).
Admiral contends that the trial court ignored evidence that, it claims, indicates bad faith or collusion. However, this evidence is irrelevant to the reasonableness of the settlement. See Ford v Clark Equipment Co, 87 Mich App 270, 278-279; 274 NW2d 33 (1978). While we agree with Admiral that this Court is liberal in finding a genuine issue of material fact, we find it unlikely that a record could be developed that would lead reasonable persons to differ concerning the reasonableness of the settlement. Admiral presented no evidence other than the irrelevant claims of bad faith and collusion that the $195,000 settlement for the wrongful death of Brewer’s son was unreasonable.
n
Admiral also raises several issues concerning its case against Brochert. Brochert cross appeals the trial court’s decision granting him attorney fees, arguing that the amount determined by the court is unreasonable.
A
Admiral contends that the trial court erred in granting Brochert summary disposition of its claim for tortious interference with a contract. The court, pursuant to MCR 2.116(C)(8), ruled that Brochert owed a duty to his client only, and not to Admiral. Alternatively, the court reasoned that Brochert’s actions, taken on behalf of his client, were immune from tort liability.
Summary disposition against a claim may be granted on the ground that the opposing party "has failed to state a claim on which relief can be granted.” MCR 2.116(C)(8). A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Formall, Inc v Community National Bank of Pontiac, 166 Mich App 772, 777; 421 NW2d 289 (1988). Summary disposition pursuant to this rule should be granted only where a claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Pawlak v Redox Corp, 182 Mich App 758, 763; 453 NW2d 304 (1990).
Admiral maintains that the trial court improperly relied upon American Employers’ Ins Co v Medical Protective Co, 165 Mich App 657; 419 NW2d 447 (1988), in holding that no duty in contract or tort existed upon which to base Admiral’s cause of action. American Employers’ holds that no duty exists between an attorney and an excess insurer that could support a legal malpractice claim. We agree, but find that the trial court reached the right result, albeit for the wrong reason. Portice v Otsego Co Sheriff’s Dep’t, 169 Mich App 563, 566; 426 NW2d 706 (1988).
Admiral’s cause of action was for tortious interference with a contract, the elements of which are (1) a contract, (2) a breach, and (3) instigation of the breach without justification by the defendant. Jim-Bob, Inc v Mehling, 178 Mich App 71, 95-96; 443 NW2d 451 (1989). The trial court’s reliance upon the nonexistence of a duty is irrelevant to these elements.
Nevertheless, because Admiral failed to plead the existence of a valid contract with Perrin, and the breach thereof, it failed to state a claim upon which relief could be granted. Indeed, Admiral claimed, and sought a declaration that, Perrin was not an insured under the policy issued to the City of Southgate. We conclude that the trial court did not err in granting, pursuant to MCR 2.116(C)(8), Brochert summary disposition of Admiral’s claim of tortious interference with a contract.
B
Admiral next contends that the trial court erred in granting Brochert summary disposition of its claim of conspiracy. Admiral maintains that its complaint alleged that Brochert conspired with Columbia to interfere with Admiral’s rights under its insurance contract with Perrin. Brochert contends that Admiral failed to allege any improper acts that could subject him to liability for conspiracy. We agree.
A civil conspiracy is a combination of two or more persons, by some concerted action, to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by criminal or unlawful means. Feaheny v Caldwell, 175 Mich App 291, 307; 437 NW2d 358 (1989); Temborius v Slatkin, 157 Mich App 587, 599-600; 403 NW2d 821 (1986). Admiral failed to state the existence of a contract between itself and Perrin, so there was no tortious interference with that relationship. Because Admiral has failed to state any tortious action, its conspiracy action must also fail. Early Detection Center, PC v New York Life Ins Co, 157 Mich App 618, 632; 403 NW2d 830 (1986). We conclude that Admiral’s claim of conspiracy failed to state a claim upon which relief could be granted.
c
Next, Admiral argues that the filing of its claim of appeal of the order of summary disposition in favor of Brochert divested the trial court of jurisdiction to award Brochert attorney fees.
After a claim of appeal is filed, a trial court may not set aside or amend the judgment or order appealed from except by order of this Court, by stipulation of the parties, or as otherwise provided by law. MCR 7.208(A). This Court has applied this rule to prohibit a trial court from granting a party attorney fees or costs after the claim of appeal is filed, unless the order or judgment expressed an intention to grant such costs. Wilson v General Motors Corp, 183 Mich App 21, 41; 454 NW2d 405 (1990); Vallance v Brewbaker, 161 Mich App 642, 647-648; 411 NW2d 808 (1987). A trial court may determine the amount of costs to be taxed after a claim of appeal is filed, but only if the judgment provides for costs. MCR 7.208(C)(1); Lincoln v Gupta, 142 Mich App 615, 631; 370 NW2d 312 (1985).
In the present case, Admiral filed its claim of appeal on August 18, 1988. Brochert filed his motion for fees on August 25, 1988, and it was granted on April 28, 1989. The trial court’s order of summary disposition for Brochert did not indicate an intention to award costs or attorney fees, so the court was without jurisdiction to award fees following Admiral’s claim of appeal.
Brochert relies upon Williams v Dep’t of State Hwys, 44 Mich App 51; 205 NW2d 200 (1972), and Hull & Smith Horse Vans, Inc v Carras, 144 Mich App 712; 376 NW2d 392 (1985), in arguing that under MCR 7.208(C), the trial court retains concurrent jurisdiction to perform any act until the record is filed in this Court. In Williams, supra, pp 62-63, this Court held that, pursuant to GCR 1963, 802.2(1), it was proper for the trial court to amend a judgment for the inclusion of interest. That ruling is severely undermined in light of the fact that MCR 7.208(A), which expressly deprives the trial court of jurisdiction, was not in effect at that time. In Hull & Smith, supra, p 721, this Court held that a court need not tax costs at the time an order or judgment is entered. However, the Court in Hull & Smith was not presented with the jurisdiction issue. Consequently, we reverse the trial court’s order granting Brochert attorney fees. Given our resolution of this issue, we find it unnecessary to review the court’s reasons for granting Brochert sanctions, or the amount awarded to him.
hi
Finally, we address Admiral’s issues on appeal concerning its cause of action against Columbia.
A
In its motion for summary disposition filed pursuant to MCR 2.116(C)(10), Admiral argued that it was entitled to complete indemnification as a result of Columbia’s tortious interference with Admiral’s insurance policy. Alternatively, Admiral claimed that Columbia, by its acts and deeds, became the primary insurer of Perrin and that Columbia therefore owed it either complete indemnification or contribution of a pro-rata share of any judgment payable to Brewer. Admiral appeals the court’s denial of the motion. We review the court’s decision to determine whether a record might be developed which would leave open an issue upon which reasonable minds may differ, giving the benefit of reasonable doubt to the non-moving party. Ante, pp 310-311.
Admiral presents three arguments in support of its contention that the trial court erred in denying its motion. First, Admiral maintains that it proved its tortious interference claim. None of the deposition excerpts quoted by Admiral on appeal establish the existence of a contract, breach, or unjustified instigation of a breach. See Jim-Bob, Inc, supra.
Second, Admiral contends that Columbia, having undertaken to defend and indemnify Perrin, was equitably estopped from later denying liability. Equitable estoppel does prevent an insurer who undertakes the defense of an insured, knowing facts that might preclude its liability, from later denying liability. Meirthew v Last, 376 Mich 33; 135 NW2d 353 (1965); Multi-States Transport, Inc v Michigan Mutual Ins Co, 154 Mich App 549, 553-554; 398 NW2d 462 (1986). However, this doctrine was invoked to protect the insured in those cases. We decline to extend this estoppel doctrine to Admiral, particularly because it has failed to show any inducement on the part of Columbia. See Schmude Oil Co v Omar Operating Co, 184 Mich App 574, 581-582; 458 NW2d 659 (1990).
Third, Admiral claims that Columbia must contribute to the payment of the settlement between Perrin and Brewer because of the "other insurance” clauses in the policies of the two companies. We agree with Admiral that the proper treatment of a conflict between "other insurance” clauses of two insurance policies is to disregard the clauses and prorate each insurer’s liability on the proportion of the combined policy limits. Farm Bureau Mutual Ins Co v Horace Mann Ins Co, 131 Mich App 98, 101-104; 345 NW2d 655 (1983); Mary Free Bed Hosp & Rehab Center v Ins Co of North America, 131 Mich App 105; 345 NW2d 658 (1983). However, this rule of law is inapplicable because the two insurance policies in the present case do not conflict. Admiral’s "other insurance” clause provides for pro-rata contribution when the other insurance applies to the loss on the same basis, i:e., as primary, excess, or contingent insurer. Admiral’s "other insurance” clause also provides that its liability shall not be reduced when it is the primary insurer and the other insurance is applicable on an excess or contingent basis. Admiral’s policy is for primary insurance. Columbia’s policy specifically states that it provides excess insurance. Admiral’s pro-rata clause does not apply to Columbia’s policy. Admiral’s third argument also fails. Thus, the court did not err in denying Admiral’s motion for summary disposition.
B
The court granted Columbia’s motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). While a motion under MCR 2.116(C)(8) may be granted on the ground that the opposing party has failed to state a claim on which relief can be granted, summary disposition under MCR 2.116(C) (10) tests whether there is factual support for a claim.
Admiral again presents three arguments asserting why the court erred in granting Columbia summary disposition. First, Admiral claims that Columbia owed it a duty of good faith in accordance with accepted insurance standards. However, the Michigan Supreme Court refused to recognize such a duty between insurers in the absence of a contractual relationship. Commercial Union Ins Co v Medical Protective Co, 426 Mich 109, 124, 126; 393 NW2d 479 (1986).
Second, Admiral again contends that it proved its tortious interference claim against Columbia. Again, we find no merit in this contention. See hi a, ante, p 316.
Third, Admiral maintains that it stated a claim of conspiracy and raised material issues of fact that made summary disposition improper. However, just as Admiral failed to state a claim against Brochert by failing to state a valid underlying tort claim (see ii b, ante, p 313), so too has it failed to state a claim against the alleged coconspirator Columbia. See Early Detection Center, supra. Admiral failed to state a claim of civil conspiracy upon which relief could be granted. Thus, the court did not err in granting Columbia summary disposition.
iv
The court’s orders in favor of Brewer and Columbia are affirmed. The court’s order granting Brochert summary disposition is affirmed. The court’s order granting Brochert attorney fees is vacated.
Affirmed in part and reversed in part.
See Brewer v Perrin, 132 Mich App 520; 349 NW2d 198 (1984), for the facts concerning Catron’s death.
Our decision to review these unpreserved issues should not be interpreted as a back door method of avoiding the court rules. To the extent that Admiral’s issues depend on facts unascertainable on appeal, we decline review.
Compare Atlanta International Ins Co v Bell, 438 Mich 512; 475 NW2d 294 (1991), where the Michigan Supreme Court refused to recognize an attorney-client relationship between an attorney hired by the primary insurer to defend its insured and the insurer. | [
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Per Curiam.
Initially charged with open murder, defendant was tried by a jury on a charge of second-degree murder and convicted of involuntary manslaughter for the death of her newborn son. MCL 750.321; MSA 28.553. She was sentenced to ten to fifteen years’ imprisonment, and appeals as of right, raising numerous issues. We reverse.
The only explanation for the events leading up to the infant’s death was defendant’s statement to the police. She indicated that after smoking crack cocaine the previous evening, she awakened suffering from what she thought were cramps. She went to use the bathroom and instead gave birth while on the toilet stool. Defendant thought she was only 6Vi-months pregnant.
The baby apparently fell headfirst into the water. Defendant told the police that she heard a "small gurgle” or groan, but failed to check the baby or pull it out of the water. Defendant did immediately call an ambulance. The gestation period of the baby was approximately 8 to 8V2 months. It was dead by the time an emergency medical technician examined it.
The main issues in the case were whether the baby was born alive and whether the defendant knew that he was born alive and therefore owed him a duty of care.
In order to be convicted of involuntary manslaughter under these facts, the prosecution had to prove beyond a reasonable doubt (1) the existence of a legal duty; (2) that defendant had the capacity, means, and ability to perform the duty; (3) that she wilfully neglected or refused to perform the duty; and (4) that the death of her son was the direct and immediate consequence of her failure to perform her duty. People v Giddings, 169 Mich App 631, 634-635; 426 NW2d 732 (1988); People v Sealy, 136 Mich App 168, 172; 356 NW2d 614 (1984). Wilful neglect, or gross negligence, is defined as (1) knowledge that a situation existed requiring the use of ordinary care to prevent injury; (2) having the capacity, means, and ability to avoid the harm by the use of ordinary care; and (3) failing to use ordinary care where it would have been apparent to an ordinary mind that harm would result from such failure. Giddings, supra at 635; Sealy, supra at 172-173. Defendant argues that there was insufficient evidence that the baby was born alive and that, therefore, there was no legal duty. She also argues that there was insufficient evidence that she knew that the baby was born alive and that, therefore, there was no gross negligence. After an exhaustive examination of the record, including a review of the lengthy testimony of three pathologists, we agree with defendant’s second contention.
The pathologist who conducted the autopsy testified that the child’s lungs floated. The pathologist who testified for the defendant agreed that the float test was the best evidence of a live birth. A third pathologist testified that he concluded that it was a live birth from the microscopic examination of lung-tissue slides. There was sufficient evidence to conclude beyond a reasonable doubt that the baby was born alive.
However, the only evidence of defendant’s knowledge that the baby was born alive was her admission that she heard a "small gurgle.” All three pathologists testified that this was not conclusive evidence of a live birth and that making that determination in this case had been ex tremely difficult. We must therefore conclude that there was insufficient evidence that defendant knew of the existence of a situation that required the use of ordinary care, that is, that her baby had been born alive.
Defendant next argues that there was insufficient evidence to justify sending the second-degree murder charge to the jury. Again, after carefully reviewing the record, we agree that there was insufficient evidence that she acted with wilful and wanton disregard that death or great bodily harm would result, much less that she had the intent to kill or to cause great bodily harm. People v Lewis, 168 Mich App 255, 268, 270; 423 NW2d 637 (1988). This error is in itself independent grounds for reversal because, "where a jury is permitted consideration of a [higher] charge unwarranted by the proofs there is always prejudice because a defendant’s chance of acquittal on any valid charge is substantially decreased by the possibility of a compromise verdict.” People v Vail, 393 Mich 460, 464; 227 NW2d 535 (1975) (emphasis added); see also People v Jolly, 193 Mich App 192, 199, n 4; 483 NW2d 679 (1992).
Defendant next argues that the trial court erred in not impaneling a new jury after the prosecutor used a peremptory challenge to exclude the only black person in the venire. We disagree. Defendant failed to establish a prima facie case of intentional discrimination. Additionally, the prosecutor’s explanation, that the person was excluded because he knew defendant and her family, was racially neutral. See People v Barker, 179 Mich App 702, 705-706; 446 NW2d 549 (1989), aff'd 437 Mich 161; 468 NW2d 492 (1991) (different issue); see also People v Williams, 174 Mich App 132, 137; 435 NW2d 469 (1989).
Defendant’s fourth assignment of error concerns whether the court properly qualified as an expert the pathologist who performed the autopsy. The requirement under MRE 702 that an expert be qualified by "knowledge, skill, experience, training, or education” is a broad one, and a proposed expert witness should not be required to satisfy an overly narrow test of his own qualifications. Whether a witness’ expertise is as great as that of others in the field is relévant to the weight rather than the admissibility of the testimony and is a question for the jury. People v Whitfield, 425 Mich 116, 122-124; 388 NW2d 206 (1986) (relying on United States v Barker, 553 F2d 1013, 1024 [CA 6, 1977] [McCree, J.]). The trial court did not abuse its discretion in qualifying the pathologist as an expert despite his limited credentials.
Defendant next challenges the trial court’s refusal to allow her to introduce expert testimony that the use of cocaine dulled her senses and that she therefore did not realize that she was in labor. Because voluntary intoxication such as drug use is not a defense to general-intent crimes such as manslaughter and second-degree murder, we need not reach the issue whether defendant’s failure to file a notice of diminished capacity was proper grounds for the exclusion of this evidence. People v Langworthy, 416 Mich 630, 651; 331 NW2d 171 (1982); see also MCL 768.20a; MSA 28.1043(1); MCL 768.21; MSA 28.1044. However, after a careful review of the record, we find that defendant’s lack of knowledge that she was in labor was relevant only to her mental state and, because her mental state could not be refuted by evidence of voluntary intoxication, the evidence was properly excluded on the ground of relevance.
Defendant’s sixth assignment of error concerns the trial court’s refusal to specifically instruct the jury that, to convict her of involuntary manslaugh ter, it had to find beyond a reasonable doubt that defendant knew that her baby had been born alive. We agree. The court instructed the jury that defendant must be found to have known that a situation existed requiring the use of ordinary care to prevent injury. We believe that this is a case where, as in cases involving the use of deadly force to fend against rape, the traditional instructions given do not totally and accurately present the crucial issue to the jury. See People v Barker, 179 Mich App 702, 707-709; 446 NW2d 549 (1989) (holding that instruction stating that deadly force may be used to prevent serious bodily harm was sufficient), aff'd 437 Mich 161, 163-164; 468 NW2d 492 (1991) (holding that an instruction must specifically state that deadly force may be used to prevent rape but finding the error harmless). In this case, the instruction allowed the jury to convict defendant if it found that giving birth was a situation requiring the use of ordinary care, even if it found that defendant did not know that her baby had been born alive. Given the facts of this case, we cannot deem this error harmless. This is an additional ground for reversal.
Defendant lastly argues that the sentencing court abused its discretion in assessing her points for exploitation of the victim’s vulnerability and that her sentence is not proportional to the crime. We agree on both counts. Were we not reversing on other grounds, we would require resentencing. The sentencing guidelines define exploitation as "manipulation of the victim for selfish or unethical purposes.” Therefore, although the sentencing court’s observation that the child was found face down in a toilet is accurate, assessing points for this variable was an abuse of discretion because there was no evidence of manipulation on the record.
Under the sentencing court’s scoring of the exploitation variable, defendant’s sentence of ten to fifteen years would fall within the guidelines and therefore be presumptively proportional even though it is the harshest possible under the statute. See People v Milbourn, 435 Mich 630, 658-659; 461 NW2d 1 (1990); People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987). Nevertheless, the circumstances of defendant’s crime — even as scored by the lower court — did not fall in the highest category for her crime. In light of the facts, we believe that this is the unusual case where a sentence, even though falling within the guidelines, is not proportional because defendant’s conduct does not "rise to a level of seriousness that warrants the most severe penalty the law can inflict for that crime.” Milbourn, supra at 654, 661, 667.
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Per Curiam.
Defendant Roman Danielac was convicted upon a plea of guilty of committing an act of gross indecency between a male and a female, MCLA 750.338b; MSA 28.570(2). He appeals as of right.
The defendant contends that the trial judge failed to comply with'the requirements of OCR 1963, 785.3 in accepting his guilty plea. OCR 1963, 785.3 requires the trial judge to make an examination of the accused with respect to the facts of the crime and the defendant’s participation in it before a guilty plea can be accepted. People v Perine, 7 Mich App 292 (1967). In People v Mason, 13 Mich App 277, 280 (1968), this Court stated:
“The failure to have established facts showing that the defendant committed the crime to which he pled guilty makes it necessary to set aside the conviction.”
In the case at bar, the trial judge accepted defendant’s plea of guilty after eliciting from the defendant that he had engaged in sexual intercourse with a girl over 16 years old in the presence of others.
This Court is, therefore, called upon to determine whether defendant’s statement that he engaged in an act of sexual intercourse in the presence of others was sufficient to establish facts showing that he committed the crime of gross indecency to which he pled guilty.
The gross indecency statute does not define what constitutes its violation. The statute, MCLA 750-.338b; MSA28.570(2), reads:
“Any male person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a female person shall be guilty of a felony, punishable as provided in this section. Any female person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a male person shall be guilty of a felony punishable as provided in this section. Any person who procures or attempts to procure the commission of any act of gross indecency by and between any male person and any female person shall be guilty of a felony punishable as provided in this section. Any person convicted of a felony as provided in this section shall be punished by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00, or if such person was at the time of the said offense a sexually delinquent person, may be punishable by imprisonment in the state prison for an indeterminate term, the minimum of which shall be 1 day and the maximum of which shall be life.”
The circumstances under which defendant participated in the admitted act of sexual intercourse is. crude and offensive. However, the act admitted by the defendant does not constitute a violation of the gross indecency statute cited above.
The statute contemplates an act of gross indecency with a person of the opposite sex. Fornication is not the commission of an “act” of gross indecency “with” a person of the opposite sex. The fact that defendant participated in a normal act of sexual intercourse in the presence of other persons does not change the character of the act. The offense is determined by the nature of the act and is not predicated on whether it is in public or in private.
While the examination by the court elicited despicable conduct on the part of the defendant, it failed to reveal a factual basis for the plea of guilty as required by G-CR 1963, 785.3 and MCLA 768.35; MSA 28.1058.
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Memorandum Opinion.
Defendant was convicted of murder in the second degree, and appeals. The people have filed a motion to affirm.
Upon examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Motion to affirm granted. | [
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Memorandum Opinion.
Defendant was convicted by a jury of the crime of breaking and entering an occupied dwelling with intent to commit larceny. MCLA 750.110; MSA 28.305. He was sentenced to a term of 20 months to 15 years and appeals as of right.
An examination of the reeord and briefs discloses no prejudicial error.
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Weaver, J.
We have before us two appeals from the Workers’ Compensation Appellate Commission, which have been consolidated because both address the issue of an employee’s entitlement to compensation in cases involving heart attacks. We affirm both.
FACTS
Ahmed Makky sought from his employer, General Dynamics Land Systems, Inc., workers’ compensation benefits for disability arising from a heart attack. Plaintiff was employed as a janitor. On February 13, 1985, he drove through a snowstorm to get to work and discovered that his partner was not there. Plaintiff testified that he resolved to complete the entire job, or at least seventy-five percent of it, by himself. As a result, he worked faster than usual.
At 4:00 p.m., while mopping a floor, plaintiff felt pain in his chest and had difficulty breathing. At his supervisor’s request, he attempted to continue working but was unable to do so. Plaintiff was admitted to a hospital on that day, and ten days later he underwent coronary bypass surgery.
Five physicians testified by way of deposition. Defendant’s three physicians, who were not told of plaintiff’s rushed activities on that day, found no relationship between plaintiff’s work and his heart attack. One of plaintiff’s physicians concluded that plaintiff’s work that day contributed to his heart attack in a significant manner. The magistrate found that certain specific work-related events contributed in a significant manner to plaintiff’s disabling heart damage. Defendant appealed, and the wcac affirmed the magistrate’s decision. However, the wcac determined that the magistrate had erred in applying the "significant manner” standard of MCL 418.301(2); MSA 17.237(301X2).
Raymond Rimsa, a brickmason, was working on the morning of April 28, 1986, when he experienced pain in his left arm, chest, and back. At lunch time, he reported his symptoms and went home to rest. Later that afternoon, his wife drove him to a hospital, where a diagnosis of acute myocardial infarction was made. Plaintiff was hospitalized until May 7, 1986, and then rested at home until July 11, 1986. He sought workers’ compensation benefits from S & S Masonry, Inc., for the period of April 28 to July 10 and medical expenses resulting from his heart attack. The magistrate found that plaintiff had failed to prove that he suffered a compensable injury that arose out of and in the course of his employment. Specifically, the magistrate found that plaintiff failed to satisfy MCL 418.301(2); MSA 17.237(301X2).
The magistrate noted that plaintiff had several risk factors for a heart attack: severe coronary arteriosclerosis, a habit of smoking two packs of cigarettes a day, and a family history of heart attacks. The magistrate, concluding that plaintiff had an ordinary disease of life and that a myocardial infarction was going to occur regardless of his employment, denied plaintiff’s claim because of his failure to establish a significant causal relationship between his employment and his heart attack.
Plaintiff appealed to the wcac, which reversed the magistrate’s decision. The wcac determined that the magistrate erred in applying the "significant manner” requirement of § 301(2). The wcac then evaluated plaintiff’s proofs under what it considered the appropriate standard and found that plaintiff had proven by a preponderance of the evidence that his employment was a causative factor of his heart attack. The wcac entered an award of weekly benefits and medical reimbursement.
ISSUE
The primary question before us in both these cases is, What standard should be applied in evaluating workers’ compensation claims for heart attacks?
Originally, the jurisprudence held that the workers’ compensation law did not provide compensation for a person afflicted by an illness or disease not caused or aggravated by his work or working conditions. Kostamo v Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 411 (1979). The Supreme Court had ruled that an employee with an ordinary disease "of life” or preexisting condition was not entitled to compensation unless he could show that either "the work accelerated or aggravated the disease or condition, and thus contributed to it; or . . . the work, coupled with the disease, in fact caused an injury.” Farrington v Total Petroleum, Inc, 189 Mich App 298, 305; 472 NW2d 60 (1991).
In 1980, the Legislature amended MCL 418.401; MSA 17.237(401) by adding the following language to the definition of "personal injury” in subsection 2(b):
Mental disabilities and conditions of the aging process, including but not limited to heart and cardiovascular conditions, shall be compensable if contributed to or aggravated or accelerated by the employment in a signiñcant manner. [Emphasis added.]
In interpreting the effect of this amendment, a panel of this Court has held that it affected only the first prong of the Kostamo standard by adding the words "in a significant manner” to it, while the second prong was not affected. The panel ruled that where an employee’s work, coupled with a preexisting condition, in fact causes an injury, compensation is due without reference to whether factors of employment were a "significant” cause of the injury. Farrington, supra, p 307.
However, we disagree with the Farrington panel’s interpretation of the effect the amendment of MCL 418.401; MSA 17.237(401) had on Kostamo’,s test. It seems to us that not only was the first prong revised by the amendment, but also that the second prong was completely revised.
We would hold that the statute applies to any heart or cardiovascular condition regardless of whether the condition results from a disease or an injury. As the Farrington panel noted, the obvious intent of the amendment was to make the requirements for compensability of heart and cardiovascular conditions more stringent. See Lambard v Saga Food Service, Inc, 127 Mich App 262; 338 NW2d 207 (1983). Unlike the Farrington panel we see no reason to think that this intent should be limited.
However, under Administrative Order No. 1990-6, 436 Mich lxxxiv, we are constrained to follow Farrington.
RESOLUTION
General Dynamics and S&S Masonry both argue that the wcac erred in not applying the "significant manner” standard of causation to determine the compensability of plaintiffs’ claims for heart-related disabilities in their respective cases. As we have seen above, the standard to which we must adhere currently is set out in Farrington and was utilized in both disputes by the wcac.
S&S Masonry also argues that there was insufficient evidence to find that Rimsa’s employment had caused his injury when there was only medical opinion testimony establishing that the injury could be caused by employment- As the reviewing court, we must determine whether the wcac correctly applied its standard of review to the magistrate’s findings of fact. Palmer v ITT Hancock, 189 Mich App 509; 474 NW2d 136 (1991).
The wcac rejected defendant’s contention that the medical testimony was insufficient to establish the causal link. The wcac had already determined that the magistrate had applied the wrong standard. In light of this, we conclude that the wcac was correct in concluding that the magistrate’s findings of fact were not supported by competent, material, and substantial evidence and did not err in making its own findings. Palmer, supra. Further, we are convinced that the wcac’s findings of fact were supported by some competent evidence.
We affirm. | [
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T. J. Lesinski, J.
Plaintiff Mt. Carmel Mercy Hospital and defendants Hanne and Naima Nafso appeal as of right two orders of the Oakland Circuit Court granting summary disposition in favor of defendant-appellee Allstate Insurance Company pursuant to MCR 2.116(0(10) in an action brought to collect no-fault personal injury benefits. At issue is whether the one-year statute of limitations applicable to claims for personal injury protection (pip) benefits bars Mt. Carmel, as Naima Nafso’s assignee, from collecting from Allstate its costs of treating her. We reverse the trial court’s grant of summary disposition for Allstate.
This dispute centers on nonpayment for medical services rendered by Mt. Carmel to Naima Nafso after she was injured in an automobile accident that occurred in August 1986. Between August 17, 1986, and December 5, 1986, Mt. Carmel rendered care, accommodation, and services to Naima, for which it sought a total of $64,160.16.
Allstate insured Hani Nafso, son of defendants Nafso, at the time of the accident. Hani Nafso was driving the automobile in which his mother, Naima, was riding when she was injured. Hani Nafso did not reside in the same household as Naima. Naima Nafso filed an application for no-fault benefits with Allstate under Hani’s no-fault automobile insurance policy on November 15, 1987. Naima assigned her insurance claim to Mt. Carmel in return for the services rendered. Pursuant to the assignment, Mt. Carmel submitted a reimbursement claim for $64,160.16 to Allstate.
Gloria Lewis, a claims adjuster for Allstate, handled the claims. On October 21, 1986, Lewis spoke with Amer Nafso, another son of the Nafsos, for the purpose of determining whether there were any insured motorists living in Naima’s household. Lewis characterized Amer’s answer as "vague,” and she thus contacted a "commercial lookup” approximately two weeks later to determine the existence of insureds in Naima’s household. Lewis was informed that Amer’s address was 19214 Bauman, Detroit, which is also Naima’s residence. Having discovered the existence of another insured residing in Naima’s household, specifically Amer, who was insured by State Farm, Lewis and Allstate allegedly informed the Nafsos’ attorney that Allstate was not obligated to pay Naima’s pip benefits.
A person injured in an automobile accident is entitled to pip benefits from that person’s own policy if one exists, from the policy of a spouse, or from the policy of a relative if domiciled in the same household. See MCL 500.3114(1); MSA 24.13114(1). Lewis sent a letter to this effect to Naima Nafso on February 24, 1987. In her affidavit, Lewis also stated that she denied Mt. Carmel’s request for authorization for Naima’s hospitalization over the telephone and that she referred Mt. Carmel’s employee to the Nafsos’ attorney on April 6,1987.
Apparently, Mt. Carmel assigned its claim against Allstate to World Credit, Inc. The record contains a letter dated November 16, 1987, from Lewis referring World Credit back to the Nafsos’ attorney on the basis that Allstate would not pay the claims until it received notice of payment or denial of benefits by Union Banker pursuant to a coordinated benefits clause in its policy with Hani. The letter also informed World Credit that Allstate had already informed the Nafsos’ attorney that Naima’s bills must be forwarded to State Farm for payment under Amer’s policy.
On August 24, 1988, Mt. Carmel filed this lawsuit, seeking payment of its bill from Allstate, State Farm, and the Nafsos. State Farm was dismissed from the proceedings pursuant to court order. Subsequently, Allstate brought a motion for summary disposition on the ground that Mt. Carmel and the Nafsos failed to file a complaint within one year of Allstate’s denial of coverage for Naima’s pip claim. The trial court granted Allstate’s motion. In a related order, the trial court granted Mt. Carmel’s motion for summary disposition, establishing the liability of the Nafsos and dismissing the case. Mt. Carmel appeals the grant of summary disposition for Allstate and the final dismissal of the case. The Nafsos cross appeal on the same grounds, seeking an order obligating Allstate to pay Mt. Carmel’s bill.
In its opinion and order filed on July 3, 1989, the trial court provided the following reasons for granting Allstate’s motion for summary disposition:
2. A letter from Allstate to counsel for the Nafsos, dated February 24, 1987, refers to a conversation between those parties and further gives written notice that State Farm insures Akram Najir and Amer Nafso.
3. The same letter further gives written notice that State Farm is the proper party with whom a pip claim for the injured party, Naima, should be filed.
4. While the letter does not specifically indicate a denial of claim, the Court finds, based on counsel’s presumed expertise in the field of No-Fault Insurance, that the letter did constitute a sufficient denial.
5. Finally, it would appear that as the statute of limitations was no longer tolled as of the date of Allstate’s letter, the statute expired prior to the filing of the complaint and recovery is barred.
Mt. Carmel and the Nafsos contend that they were never properly informed of Allstate’s purported denial of Naima’s claim. According to them, Allstate’s letter dated February 24, 1987, was not a formal denial. In the alternative, Mt. Carmel and the Nafsos argue that the purported denial was ambiguous and, therefore, the question whether they understood the letter to be a denial was one of fact that should survive a motion for summary disposition. Finally, they assert that Allstate should be estopped from denying coverage because it acknowledged that it would process the claim before the statute of limitations period ran out.
A trial court presented with a motion for summary disposition under MCR 2.116(0(10) must give the benefit of reasonable doubt to the nonmovant and must determine whether a record might be developed that would leave open an issue upon which reasonable minds could differ. Arbelius v Poletti, 188 Mich App 14, 18; 469 NW2d 436 (1991). All inferences are to be drawn in favor of the nonmovant. Id. Before summary disposition may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Id.
The applicable statute of limitations for pip claims is found at MCL 500.3145(1); MSA 24.13145(1). It provides:
An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover beneñts for any portion of the loss incurred more than 1 year before the date on which the action was commenced. . . . [Emphasis added.]
It is undisputed that Naima gave Allstate notice of her claim within one year of the accident. It is also undisputed that the period of limitation was tolled by the filing of Naima’s claim. See Lewis v Detroit Automobile Inter-Ins Exchange, 426 Mich 93, 101-103; 393 NW2d 167 (1986) (notification of a claim for pip benefits within the statutory period of one year tolls the running of the period of limitation until such time as the insurance company issues a formal denial); Johnson v State Farm Mutual Auto Ins Co, 183 Mich App 752, 765; 455 NW2d 420 (1990). Rather, the parties dispute whether Allstate "formally” denied coverage for Naima’s pip claim, which would cause the period of limitation to begin running again.
The one-year-back provision found in MCL 500.3145(1); MSA 24.13145(1) is tolled for any period after notice of the claim is given to the insurance company but before a formal denial of the claim is issued. See Lewis, supra; Johnson, supra. In this case, Naima incurred expenses related to her injury between August and November 1986. She provided notice to Allstate on November 15, 1986. Therefore, the one-year period of limitation was tolled.
On the other hand, Allstate sent a letter to Naima’s attorney on February 24, 1987, in which it allegedly denied Naima’s pip claim. Mt. Carmel, the assignee of Naima’s pip claim, filed this action on August 24, 1988. If Allstate’s letter of February 24, 1987, was a formal denial of coverage as Allstate alleges, then the one-year-back provision of MCL 500.3145(1); MSA 24.13145(1) has not been satisfied and summary disposition was appropriate.
Resolution of this controversy depends on whether the contents of Allstate’s February 24, 1987, letter constitutes a "formal” denial of Naima’s pip claim. The letter provides as follows:
Pursuant to our recent phone conversation, Mr. Amer Nafso and Akram P. Najor live at 19214 Bauman; Detroit, MI 48203; and are insured with State Farm, policy No. 532736261422.
Therefore, a pip claim for Naima Nafso must be ñled with that company.
We are in receipt of Mr. Nafso’s application for benefits. We must know if, if [sic] anyone is taking Mr. Nafso’s place in his store; and is the store suffering a loss due to Mr. Nafso’s injuries?
Please forward a copy of Mr. Nafso’s policy with Continental Life Insurance Company. [Emphasis added.]
What is required for denial of a pip claim is a "formal” denial of liability. Mousa v State Auto Ins Cos, 185 Mich App 293, 295; 460 NW2d 310 (1990). A denial of liability need not be in writing to be formal, id., but it must be explicit. Johnson, supra. In Joiner v Michigan Mutual Ins Co, 137 Mich App 464; 357 NW2d 875 (1984), this Court ruled that the defendant insurance company’s letter responding to the plaintiffs complaint with the Insurance Bureau regarding the denial of workers’ compensation benefits was not a formal denial of the plaintiff’s pip claim and that therefore the one-year provision of MCL 500.3145(1); MSA 24.13145(1) was not applicable. Id. at 473-474. In Bourke v North River Ins Co, 117 Mich App 461; 324 NW2d 52 (1982), this Court held that a denial of liability was not "formal” where the only communication of denial from the insurance company was a verbal denial made by an adjuster in the field. Id. at 470.
Although case law offers little guidance with regard to the question what constitutes formal denial, we find that the language used in the February 24, 1987, letter was a formal denial of Naima Nafso’s claim. The language specifically directs the Nafsos’ attorney to seek pip benefits from Amer’s insurance carrier. The denial was based on Allstate’s reasonable belief that Amer was domiciled in the same household as Naima. Moreover, the language of the third and fourth paragraphs regarding Allstate’s further consideration of a claim by Hanne, to the exclusion of Naima’s claim, further supports our holding.
Next, Mt. Carmel and the Nafsos claim that Allstate’s alleged denial was ambiguous and left a question of fact that should have survived a motion for summary disposition. However, where written documents are unambiguous and unequivocal, their construction is for the Court to decide as a matter of law. See, e.g., Dykema v Muskegon Piston Ring Co, 348 Mich 129, 138; 82 NW2d 467 (1957); Petrie v GRD, Inc, 39 Mich App 619, 621; 197 NW2d 848 (1972). On the basis of the language used in Allstate’s letter of February 24, 1987, we agree with the trial court that the language of denial in the letter was unambiguous.
The third and final argument made on appeal is that Allstate should be estopped from denying liability for medical bills occasioned by the injuries to Naima Nafso. According to appellants, Allstate’s failure to formally deny coverage, and its representations that it was still considering the claim, established a prima facie case of equitable estoppel. Appellants’ theory is that Allstate’s conduct lulled Mt. Carmel into believing that the statute of limitations defense would not be raised. Thus, appellants argue that the failure to file the claim within one year of the purported denial should be attributed to Allstate’s conduct rather than to Mt. Carmel’s lack of diligence. Allstate denies having engaged in any conduct that could have caused Mt. Carmel to believe that Allstate would not assert the statute of limitations to bar the claim.
The elements of promissory estoppel are: (1) a promise, (2) that the promisor should reasonably have expected to induce action of a definite and substantial character on the part of promisee, (3) which in fact produced reliance or forbearance of that nature, and (4) in circumstances such that the promise must be enforced if injustice is to be avoided. Nygard v Nygard, 156 Mich App 94, 100; 401 NW2d 323 (1986); see also 1 Restatement Contracts, 2d, § 90, p 242. An unequivocal promise not to assert a statute of limitations defense is not required to establish equitable estoppel as long as there is conduct other than a promise that induces action of a definite and substantial character. Huhtala v Travelers Ins Co, 401 Mich 118, 132-134, n 16; 257 NW2d 640 (1977).
Two affidavits support the promissory estoppel claim. Counsel for the Nafsos swore to the fact that Allstate never formally denied liability for Naima’s pip claim. We note that the crux of this issue is whether Allstate’s contact with Mt. Carmel establishes the elements of a promissory estoppel claim. Moreover, we agree with the trial court that the February 24, 1987, letter was a formal denial of the claim. Consequently, we fail to see the utility of this affidavit to appellants’ arguments.
In another affidavit, Paul Williamson, an employee of Mt. Carmel, stated that he was advised by an employee of Allstate that Allstate would make payment for the assigned claim after it checked some information about the people living in Naima’s household. In contrast, Gloria Lewis, Allstate’s representative working on Naima’s claim, stated that she told someone at Mt. Carmel that Allstate would not authorize the hospitaliza tion of Naima and that she referred that person to the Nafsos’ attorney on April 6, 1987.
If an employee of Mt. Carmel was told that payment would be made once Allstate finished its inquiry into Naima’s household, then the first element of promissory estoppel would be established upon the making of that promise. See, e.g., Huhtala, supra at 118 (promise by the defendant’s agent to pay the injured plaintiff a full and equitable settlement once her physical condition stabilized changed her cause of action from one of personal injury, with its three-year statute of limitations, into one of breach of contract, which has a six-year statute of limitations). In the alternative, if Allstate told Paul Williamson to wait until it finished its inquiry but otherwise made no promises, and then failed to notify Mt. Carmel before the one-year period of limitation ran out, the first element of equitable estoppel may have been established by conduct. See, e.g., Hanesh v Lake States Mutual Ins Co, 147 Mich App 262, 266; 383 NW2d 179 (1985) (the defendant insurance company could not assert the one-year rule where it forestalled settlement of an automobile injury claim by taking three years to investigate the claim). Resolution of this issue boils down to the question whether to believe Gloria Lewis or Paul Williamson. All inferences must be drawn in favor of the nonmovant and summary disposition may not be granted unless it is impossible for the asserted claim to be supported by evidence at trial. Arbelius, supra at 18. Summary disposition is rarely appropriate in cases involving questions of credibility. Id. Accordingly, the trial court’s grant of summary disposition in favor of Allstate was improper because there was a question of credibility. We conclude that Mt. Carmel is entitled to a remand to allow it an opportunity to establish its promissory estoppel claim, which has a six-year limitation period. See Huhtala, supra at 133-134.
Affirmed in part, reversed in part, and remanded.
Michael J. Kelly, P.J., concurred.
Because we conclude that the February 24, 1987, letter from Allstate to counsel for the Nafsos was a formal denial, the judgment of the lower court with respect to the Nafsos remains in force. It is the alleged acts of Allstate responding to inquiries by Mt. Carmel regarding payment that lead us to believe that a factual issue regarding promissory estoppel exists. | [
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Per Curiam.
Defendant was found guilty by a jury of assault with intent to rape, and gross indecency. He was sentenced to 9 to 10 years in prison on the assault count and 4-1/2 to 5 years in prison on the gross indecency count; the sentences to run concurrently. On appeal he asserts that error arose from the admission of hearsay evidence, that the assault with intent to rape verdict was against the weight of the evidence, that the gross indecency statute is unconstitutionally vague and that, in light of contemporary mores, cunnilingus is not grossly indecent behavior.
Hearsay testimony is generally not admissible because the essential right of cross-examination is absent; and, therefore, the jury is not afforded the opportunity to test the credibility of the person making the statement. People v Chambers, 279 Mich 73 (1937); People v Trilck, 374 Mich 118 (1965); People v Logan, 17 Mich App 363 (1969). Any error resulting from the alleged hearsay testimony herein was rendered moot and harmless by the fact that the conversants were called as witnesses and were subject to cross-examination of defense counsel and the scrutiny of the jury.
There was ample evidence adduced at trial to support the verdict of assault with intent to commit rape.
The gross indecency statute is not constitutionally infirm because of vagueness. People v Dexter, 6 Mich App 247 (1967).
This Court will not substitute its opinion as to whether an act is grossly indecent in the eyes of the community as a whole for that of a properly charged jury. The question of community mores is properly addressed to either the trier of fact or to the legislative branch of government. See People v Haggerty, 27 Mich App 594 (1970).
Affirmed.
MCLA 750.85; MSA 28.280.
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Per Curiam.
In this negligence action, defendant appeals by leave granted from an order of the circuit court denying his motion for summary disposition. We reverse.
i
Defendant’s motion for summary disposition is based on the six-year statute of limitations for actions against architects, professional engineers, or contractors arising from improvements to real property, MCL 600.5839; MSA 27A.5839. Defendant, a residential building contractor, undertook to construct a home for plaintiff and her husband, Marion, in a written contract dated October 16, 1978. Plaintiff occupied the home on September 20, 1979, and has used the home since then as her place of residence.
Initial occupancy of the home occurred before construction was completed and plaintiff complained to defendant, to the Department of Licensing & Regulation, and to the local building inspector — who withheld issuance of a certificate of occupancy until after June 23, 1982 — regarding uncompleted construction work on the home, including complaints concerning the manner in which defendant constructed a certain staircase. The staircase was to be enclosed by walls, with the handrail running along the length of the staircase. Instead, defendant constructed the staircase so that the last several steps were open, and there was no handrail support for those steps.
On September 6, 1986, plaintiff, while descending the staircase at the point where the railing ends, fell and fractured her hip. Suit was commenced on June 10, 1987.
Defendant thereafter moved for summary disposition on the grounds that the applicable period of limitation had expired and that defendant’s conduct was not a proximate cause of plaintiff’s injuries. The trial court denied the motion.
ii
In reviewing summary disposition motions under MCR 2.116(C)(7), this Court must accept all the plaintiff’s well-pleaded allegations as true and construe them most favorably to the plaintiff. Wildfong v Fireman's Fund Ins Co, 181 Mich App 110, 113; 448 NW2d 722 (1989). If no question of fact exists, the issue whether the claim is statutorily barred is one of law for the court. Id.
Defendant argues that plaintiff’s claim is barred because the six-year period of limitation has expired. We agree.
MCL 600.5839(1); MSA 27A.5839(1) provides:
No person may maintain any action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of such injury, against any state licensed architect or professional engineer performing or furnishing the design or supervision of construction of the improvement, or against any contractor making the improvement, more than 6 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement, or 1 year after the defect is discovered or should have been discovered, provided that the defect constitutes the proximate cause of the injury or damage for which the action is brought and is the result of gross negligence on the part of the contractor or licensed architect or professional engineer. However, no such action shall be maintained more than 10 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement.
The statute reflects amendments by 1985 PA 188, effective March 31, 1986. Before these amendments, the six-year statute of limitations applied only to claims made against architects and professional engineers, and the statute contained no "discovery” statute of limitations. The amendments made claims against contractors subject to a six-year statute of limitations for allegations of ordinary negligence and provided a one-year "dis covery” statute of limitations where gross negligence is pleaded.
The amendments were in effect at the time plaintiff’s injuries occurred on September 6, 1986. The one-year "discovery” statute of limitations however, is inapplicable in this case because plaintiff knew of the alleged defective handrail for more than one year before commencing suit, and she did not allege gross negligence. Thus, the focus is whether plaintiff’s claim was filed within six years of the time she occupied, used, or accepted the improvement.
The trial court interpreted the statute to mean that the six-year period of limitation begins to run at the time of occupancy, use, or acceptance of the improvement, whichever is later.
Plaintiff admits she occupied and used the home for more than six years before she fell, but claims that she did not accept the improvement. She further argues that the statute should be read as interpreted by the trial court.
Defendant contends that the trial court’s interpretation of the statute is erroneous. Defendant claims that, because the statute uses the disjunctive "or” in delineating the factors that trigger the running of the period of limitation, only one of the criteria needs to be met.
In Fennell v John J Nesbitt, Inc, 154 Mich App 644, 649; 398 NW2d 481 (1986), a case that dealt with a pre-1986 amendment of the statute, a panel of this Court stated:
We do not read MCL 600.5839; MSA 27A.5839 as a "discovery” statute of limitations. Rather, we find that its operation is predicated upon the time of occupancy or use or acceptance of the improvement. [Emphasis added.]
Although the focus in Fennell was whether the statute at issue was a "discovery” statute of limitations and is different from the issue of statutory interpretation in this case, we find this Court’s language cited above persuasive. We agree with the Fennell panel that the operation of the statute is predicated upon the time of occupancy or use or acceptance.
The question then becomes whether, as defendant contends, only one of the criteria needs to be met in order for the period of limitation to begin to run or whether, as plaintiff contends, the period only begins to run at the time of the latest of the three contingencies.
The primary rule of statutory interpretation is to ascertain and give effect to legislative intent. Nolan v Dep’t of Licensing & Regulation, 151 Mich App 641, 648; 391 NW2d 424 (1986). Where the use of the disjunctive "or” creates ambiguity in a statute, the language of the statute must be construed to give effect to the Legislature’s intent, and the words of the statute must be construed in light of the general purpose sought to be accomplished by the Legislature. Id.
The terms "and” and "or” are often misused in drafting statutes, and inappropriate use of these words has infected statutory enactments. Id., pp 648-649. However, the literal meaning of "or” should be followed unless it renders the statute dubious. Id. A literal interpretation of the word "or” in the context in which it is used in § 5839(1) would not render that portion of the statute dubious.
Black’s Law Dictionary (6th ed) defines "or” as: "A disjunctive particle used to express an alternative or to give a choice of one among two or more things.”
Additionally, in Smith v Elliard, 110 Mich App 25, 30; 312 NW2d 161 (1981), this Court stated:
The Legislature’s use of the disjunctive "or” indicates that a cause of action should be barred if either of the two pertinent statutes of limitations have expired. However, it has been recognized that the terms "or” and "and” are frequently misused and courts sometimes have been led to read one term in place of the other. Still, the terms are not interchangeable and should be followed when their accurate reading does not render the sense of a provision dubious.
Although Smith involved the interpretation of a different statute, its interpretation of the word "or” indicates an alternative or choice between two things.
In applying a literal interpretation of the word "or” in § 5839(1), we find plaintiff’s claim is barred because the six-year period of limitation began to run when she started using the house in 1979. Such an interpretation does not render § 5839(1) dubious and gives effect to the Legislature’s intent to limit causes of action against building contractors not involving allegations of gross negligence to six years.
The trial court erred in denying defendant’s motion for summary disposition. We therefore reverse the order denying summary disposition and remand this case for entry of an order granting summary disposition to defendant.
hi
Because of our resolution of this case, we need not address defendant’s remaining argument.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. | [
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Shepherd, J.
This case involves claims of employment discrimination and breach of contract under Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), in which the trial court granted defendants’ motion for summary disposition pursuant to MCR 2.116(C) (10) with respect to the age discrimination claims of plaintiffs Norman Featherly and Stanley Way, denied defendants’ motion with respect to the age discrimination claim of plaintiff Leroy Gannon, and granted defendants’ motion with respect to the Toussaint claims of all three plaintiffs. Plaintiffs Featherly and Way appeal as of right the dismissal of their age discrimination claims, plaintiff Way appeals the dismissal of his Toussaint claim, and defendants cross appeal the denial of their motion with respect to the age discrimination claim of plaintiff Gannon.
As a result of a business downturn, Teledyne laid off 250 people, including both salaried and union personnel, in December 1987. After consultations with the company’s finance department in the fall of 1987, defendant Thomas Keenan, Teledyne’s president, approved the layoff plan and instructed each vice president in the various departments of the plant to lay off a certain number of employees. The selection of which employees to lay off was made by the immediate supervisor with the concurrence of the manager or vice president of the department or area. Each plaintiff is a former supervisor of Teledyne who was laid off in December 1987 and claims that his layoff was in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and in breach of an implied contract of employment. It was undisputed that each plaintiff was a competent and capable supervisor in his respective area, and that Teledyne claimed to have laid them off because of economic necessity. There is also no dispute that layoffs of numerous employees were, in fact, mandated by economic necessity. The primary issue in this case is whether, in choosing which employees to lay off, the defendants made their selection by using age as a determining factor.
We begin with the assumption that although there may be justification for economic layoffs, an employer may not decide which employees to lay off on the basis of considerations that are prohibited by law, such as race, gender, or age. See King v Michigan Consolidated Gas Co, 177 Mich App 531; 442 NW2d 714 (1989), where the plaintiffs federal civil rights claim based on race was permitted to go to trial even though the employer was faced with an economically necessitated reduction in force. Subsequently, his claim of racial discrimination in violation of state law was also allowed to stand. See also Schipani v Ford Motor Co, 102 Mich App 606; 302 NW2d 307 (1981), in which the plaintiffs Toussaint and age discrimination claims were treated separately. Both cases taken together implicitly stand for the proposition that where an employer has a legitimate reason to terminate (e.g., economic necessity or a contract for employment at will), it may not do so for illegal reasons such as unlawful discrimination.
Since 1975, Norman Featherly had been the production supervisor of the crankshaft departments (Departments Nos. 313 and 316). As a result of the 1987 reduction, the crankshaft departments and "Gears” (Department No. 311) were consolidated. Production Superintendent Harvey Myers, Featherly’s immediate supervisor, and Robert Bramer, the manufacturing manager, decided that Featherly should be laid off because they concluded that he did not have the versatility to supervise both departments. Consequently, Featherly’s duties were added to those of Robert Gilbert, the production supervisor of "Gears.” At the time of his layoff, Featherly was fifty-eight years old and had approximately twenty-five years’ seniority, whereas Gilbert was forty-one years old and had twelve years of supervisory experience.
Leroy Gannon was the supervisor of "non-productive stores” and "cutter grinds” from 1976 until his layoff in 1987. His duties involved maintenance, repair, and operations, as well as resharpening and testing tools. His position was eliminated and his duties were assigned to Thomas Karafa and Harry Mikesell. Karafa is a toolmaker, who was the supervisor of the model shop and tool repair at the time of the layoffs. Mikesell is a manufacturing engineering analyst, whose job is to prepare budgets for the Manufacturing Engineering Department. At the time of his layoff, Gannon was sixty-three years old, whereas Karafa and Mikesell were forty-one and sixty years old, respectively.
From May, 1966 until his layoff in 1987, Stanley Way was a production control supervisor whose duties involved shipping and receiving. After his position was eliminated in the 1987 reduction, his duties were added to those of Bill Ford, the "Master Scheduler.” Ford was retained because Way had no experience with or knowledge of scheduling systems. At the time of Way’s layoff, he was fifty-nine years old and had thirty-seven years’ seniority, whereas Ford was fifty-six years old. In addition, the clerical work related to Way’s position was assigned to Virginia Settler, a sixty-year-old union clerk who had forty-three years’ seniority with Teledyne.
A motion for summary disposition pursuant to MCR 2.116(0(10) may be granted when, except for the amount of damages, there is no genuine issue with regard to any material fact and the moving party is entitled to judgment or partial judgement as a matter of law. A motion for summary disposition tests whether there is factual support for a claim. The trial court must consider the affidavits submitted, pleadings, depositions, admissions, and documentary evidence. Amorello v Monsanto Corp, 186 Mich App 324, 329-330; 463 NW2d 487 (1990). The party opposing the motion has the burden of showing that a genuine issue of material fact exists. Ewers v Stroh Brewery Co, 178 Mich App 371, 374; 443 NW2d 504 (1989). Giving the benefit of reasonable doubt to the nonmovant, the trial court determines whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Amorello, supra, p 330. The court may not make findings of fact or weigh credibility in deciding a motion for summary disposition. Paul v US Mutual Financial Corp, 150 Mich App 773, 779; 389 NW2d 487 (1986).
Plaintiffs’ claims of age discrimination are based upon the Civil Rights Act, which provides:
(1) An employer shall not:
(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of . . . age .... [MCL 37.2202; MSA 3.548(202).]
Michigan courts have considered federal law when reviewing claims of age discrimination based on state law. See Matras v Amoco Oil Co, 424 Mich 675, 683-685; 385 NW2d 586 (1986); Meeka v D & F Corp, 158 Mich App 688, 692; 405 NW2d 125 (1987); Dixon v W W Grainger, Inc, 168 Mich App 107, 113-114; 423 NW2d 580 (1987). Reaffirming the holding of McDonnell Douglas v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), the United States Supreme Court in Texas Dep’t of Community Affairs v Burdine, 450 US 248, 252-253; 101 S Ct 1089; 67 L Ed 2d 207 (1981), set forth the order and allocation of the burden of proof in employment discrimination cases as follows. First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff is successful in proving a prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its actions. Third, if the defendant meets this burden, the plaintiff then has the burden of proving by a preponderance of the evidence that the legitimate reason offered by the defendant was merely a pretext. Id.; Dubey v Stroh Brewery Co, 185 Mich App 561, 563-564; 462 NW2d 758 (1990).
To establish a prima facie case of age discrimination, the plaintiff must show that (1) he was a member of a protected class, (2) he was discharged, (3) he was qualified for the position, and (4) he was replaced by a younger person. Ewers, supra, pp 379-380. Age discrimination may also be established by ordinary principles of proof without resort to any special judicially created presumptions or inferences. Matras, supra, p 683. In an age discrimination claim, the plaintiff must present evidence that (1) he had skills, experience, background, or qualifications comparable to the retained employee and (2) his age was a determining factor in the adverse employment decision. Id., pp 683-684; Meeka, supra, p 692. Evidence that a competent older employee was terminated and a younger employee was retained, standing alone, is insufficient to establish a prima facie case when the employer reduces his work force because of economic necessity. Matras, p 684.
Viewing the evidence in a light most favorable to plaintiffs, we conclude that plaintiffs Featherly and Gannon, but not Way, established a prima facie case of age discrimination.
In the case of Featherly, there was evidence presented that he was qualified for the position of supervisor of the consolidated departments. The record reveals that Featherly was the production supervisor of two departments with nine different lines, whereas Gilbert supervised one department containing two lines. Moreover, Featherly had more experience, as measured in years of seniority, than Gilbert. Featherly also presented sufficient evidence showing that age was a determining factor in his layoff. All the plaintiffs cite an article about the future of Teledyne in the Muskegon area published by the magazine West Michigan Proñle in November 1987, wherein Keenan was quoted as saying:
We intentionally went with a small start in a new product so that we could get our feet wet, build some credibility, get some of the younger kids in here under the special arrangement, get them working and make them a core.
Although defendant Keenan stated in his deposition that he meant that there was enough work for existing employees and that Teledyne would seek to provide employment to future generations in the Muskegon community, his remark is evidence that age was a determining factor in the 1987 layoff insofar as defendants sought to retain a younger work force. Because plaintiff Featherly, age fifty-eight, was replaced by Gilbert, age forty-one, defendant Keenan’s statement provides factual support that age was a determining factor in Featherly’s layoff.
Additional evidence that age was a determining factor in the layoffs was presented in previous litigation arising from the December 1987 layoffs. In John Harris v Teledyne Industries, unpublished opinion per curiam of the Court of Appeals, decided October 8, 1990 (Docket No. 116087), Lloyd Lindland, Teledyne’s vice president of operations, allegedly told Harris, a production supervisor like plaintiff Featherly, that he was laid off because the retained employee was younger and better. Although Lindland, who oversaw the departments to which all the plaintiffs belonged, did not make a similar remark to any plaintiff in the instant case, the statement nevertheless presents some evidence that age may have been a determining factor in Teledyne’s decision to lay off plaintiffs in December 1987.
Moreover, plaintiffs put forward some statistical evidence indicating that the oldest supervisors within each department were the employees most affected by the 1987 layoffs. Plaintiffs allege that whereas the median age of the laid-off supervisors was fifty-five, the median age of those retained was forty-four, and that no supervisor under the age of fifty-one was laid off. Defendants assert that plaintiffs’ average-age analysis distorts the evidence. In particular, defendants allege that there is no persuasive evidence of age discrimination in the case of Featherly, because the average age of the retained production supervisors dropped by only one year after the 1987 layoffs. Although the statistical evidence presented in this case may provide only weak circumstantial evidence of age discrimination, it nonetheless constitutes some factual support for the claim, especially when conjoined with the other facts evidencing age discrimination.
Gannon also established a prima facie case of age discrimination with proof that his position was eliminated and his duties were assigned to Karafa and Mikesell. Alleging that his tool-making and budgeting experience was comparable to that of the retained employees, Gannon presented evidence showing that he was as qualified as Karafa. Further, Gannon presented evidence that age was a determining factor in his layoff. In addition to relying on the statements of defendant Keenan and Lindland, and the statistical evidence, Gannon alleges that remarks made to him by Engineering Manager Gary Tidball before and after the layoff provide evidence that age may have been a determining factor in his layoff. A month or two before the 1987 layoffs were announced, Tidball asked him how long he planned to work. Gannon told him another four to five years. After the announcement of the layoffs, Tidball asked Gannon how old he was and later remarked to Gannon that the layoff would not hurt him much because he could retire. Although the statements attributable to Tidball do not evidence an age discrimination claim as clearly as the remark allegedly made by Lindland in Harris, they support Gannon’s claim that age was a determining factor in his layoff.
Unlike Featherly and Gannon, Way did not present a prima facie case of age discrimination. Although Way provided some evidence that he had qualifications comparable to those of the retained employees, Ford and Settler, he failed to present evidence that age was a determining factor in his layoff. Of the retained employees, Ford, age fifty- six, was only three years younger than plaintiff Way, whereas Settler, age sixty, was one year older and had six years more seniority than Way. Notwithstanding the foregoing evidence showing that age was a factor in Teledyne’s decision to lay off employees in December 1987, the record does not reveal that age was a determining factor in plaintiff Way’s case. Accordingly, we conclude that the trial court did not err in granting defendants’ motion for summary disposition of plaintiff Way’s age discrimination claim.
Because plaintiffs Featherly and Gannon established prima facie cases of age discrimination, the burden shifts to defendants to articulate some legitimate, nondiscriminatory reason for their action. In the present case, defendants maintain that plaintiffs’ layoffs were caused by a business downturn that required the reduction of Teledyne’s work force. In addition, defendants presented evidence that Featherly was laid off because he was not as versatile as the retained employee, Gilbert. Defendants also presented evidence that Gannon’s position was eliminated and his duties assigned to Karafa and Mikesell because Gannon did not possess the retained employees’ respective tool-making and budgetary skills.
Thus, plaintiffs have the burden of showing that this reason was merely a pretext. As this Court observed in Clark v Uniroyal Corp, 119 Mich App 820, 826; 327 NW2d 372 (1982), to avoid a motion for summary disposition after the defendant presents a legitimate, nondiscriminatory reason that rebuts the plaintiffs prima facie case of discrimination,
the plaintiff must put forth factual allegations to raise a triable issue of fact as to whether the proffered reasons were mere pretext. Thus, a plain tiff must present factual allegations allowing the inference that the defendant had a discriminatory reason that was more likely its true motivation or factual allegations that show the defendant’s proffered reason was unworthy of credence. The plaintiff must set forth specific facts showing that there is a genuine issue for trial; conclusory allegations are insufficient to rebut evidence of nondiscriminatory conduct. [Citations omitted.]
In this case, plaintiffs Featherly and Gannon presented evidence leading to the inference that defendants’ proffered reasons were mere pretext. Specifically, Featherly offered factual allegations that defendants’ claim that he was "less versatile” than Gilbert was a mere pretext. The record shows that Featherly was more experienced and possibly more versatile, given that he supervised two departments with nine lines, as opposed to Gilbert, who supervised one department having two lines. Likewise, Gannon set forth specific facts showing that he had greater overall experience than Karafa, the younger retained employee, as well as tool-making knowledge and experience in preparing budgets. As we already observed, both plaintiffs, in establishing a prima facie case of age discrimination, presented sufficient facts showing that age was a determining factor in defendants’ employment decision. Thus, plaintiffs Featherly and Gannon presented specific factual allegations allowing the inference that age discrimination was more likely defendants’ true motivation in the decision in 1987 to lay them off rather than the younger employees. Clark, supra. Accordingly, we conclude that the trial court erroneously granted defendants’ motion for summary disposition of plaintiff Featherly’s age discrimination claim but properly denied defendants’ motion for summary disposition of Gannon’s claim.
Plaintiff Way also claims that summary disposition of his claim of breach of an employment contract was improper. We disagree.
In general, a contract for permanent employment is for an indefinite period and is terminable at will by either party. Toussaint, supra, p 596. In Toussaint, pp 618-619, the Supreme Court held that an employer may be found liable under a theory of implied contract for discharging an employee without cause when the employer makes statements in employee policy manuals or elsewhere that give rise to employees’ legitimate expectations that they will be discharged only for just cause. Butzer v Camelot Hall Convalescent Centre, Inc, 183 Mich App 194, 200-201; 454 NW2d 122 (1989). Recently, in Rowe v Montgomery Ward, 437 Mich 627, 644; 473 NW2d 268 (1991), the Supreme Court held that oral statements of job security must be clear and unequivocal to overcome the presumption of employment at will. However, termination of an employee due to an economically motivated work force reduction ordinarily does not constitute grounds for a wrongful discharge claim. Bouwman v Chrysler Corp, 114 Mich App 670, 681-682; 319 NW2d 621 (1982); Friske v Jasinski Builders, Inc, 156 Mich App 468, 472; 402 NW2d 42 (1986); King v Michigan Consolidated Gas Co, supra, p 537.
In this case, plaintiff Way’s employment, like that of all supervisory employees at Teledyne, was terminable at any time with or without cause. There was no written contract of employment between him and Teledyne. Nevertheless, Way alleges that oral representations made by defendant Keenan gave rise to an implied just-cause contract. At a meeting of two hundred salaried employees one or two years before the layoffs, defendant Keenan allegedly remarked: "If your job stays, you’ll stay.” Upon hearing this remark, Way stated that he felt secure because Teledyne would need a shipping and receiving supervisor as long as it stayed in business. Way claims that Keenan’s oral statement constituted a promise not to terminate an employee except "for cause.”
Because it was undisputed that plaintiff’s employer imposed economically mandated reductions in force, plaintiff failed, as a matter of law, to present facts alleging a breach of contract claim under Toussaint, even if plaintiff’s expectations rise to the level of an implied contract of employment terminable for just cause. Friske, supra. In this case, Way’s position was eliminated. Even though some of the duties associated with his position were assigned to the retained employees, Ford and Settler, plaintiff’s bare assertion that there still is a shipping and receiving supervisory position because Teledyne continues in business is not enough in itself to constitute a claim of wrongful discharge. Bouwman, supra.
Therefore, we reverse the trial court’s grant of defendants’ motion for summary disposition dismissing plaintiff Featherly’s claim of age discrimination, affirm the denial of defendants’ motion with respect to plaintiff Gannon’s age discrimination claim, and affirm the grant of summary disposition dismissing plaintiff Way’s age discrimination and Toussaint claims. | [
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Sawyer, P.J.
Plaintiff appeals from a judgment in favor of defendants, entered following a bench trial, in plaintiff’s action for a writ of assistance, to quiet title, and for rent. We reverse.
Plaintiff is a purchaser at tax sale and defendants are owners of certain real property located in Van Burén Township, Wayne County. Specifically, the Wurms are purchasing the property on land contract and the Moseys are the land contract vendors. Defendants Wurm had failed to pay property taxes for a number of years, apparently commencing with the 1984 property taxes. Pursuant to statute, the property was sold at the 1987 tax sale held on the first Tuesday in May 1987. The property was purchased by plaintiff.
Under the applicable statute, defendants had one year to redeem the property, until the first Tuesday in May 1988, by paying the tax sale amount plus interest at the rate of 1.25 percent a month. MCL 211.74; MSA 7.120. Furthermore, notice was sent to them at least 120 days before that time informing them that they had until May 2, 1988, to redeem the property as required by MCL 211.73c; MSA 7.119(2). They failed to do so. This triggered a reconveyance period. Under MCL 211.140; MSA 7.198, defendants had six months after service by the sheriff of a statutory notice to obtain reconveyance of the property by payment of the sale amount plus a fifty percent penalty and certain fees. The return filed by the sheriff indicates that service was had on the Wurms on August 25, 1988. However, the sheriff was unable to locate defendants Mosey and service by publication was necessary, which was accomplished in October 1988. Thus, the reconveyance period ran until April 11, 1989.
Meanwhile, defendants had also failed to pay the 1985 property taxes and a sale for the 1985 taxes was held in May 1988. Accordingly, sometime in the fall of 1988, a "Final Notice” under MCL 211.73c; MSA 7.119(2) was sent to defendants, reminding them of their right to redeem the property with respect to the 1988 tax sale (for 1985 taxes) and that they had until May 1, 1989, to redeem. At some unspecified point, William Wurm telephoned the Wayne County Treasurer’s office to determine the exact amount he had to pay. According to Wurm, some unnamed individual at the treasurer’s office informed him that he had to pay $1,991.36 and that that payment would take care of the problem for another year, until April of 1990.
The Wurms obtained a loan to pay the taxes, and the payment was mailed to the treasurer’s office on April 24, 1989. The amount of the payment was only sufficient to redeem the property from the 1988 tax sale (for 1985 taxes) and was untimely to obtain reconveyance of the property from the 1987 tax sale (for 1984 taxes). Because the Wurms apparently thought they had done what was necessary to retain ownership of their property, they resisted plaintiffs attempts to gain possession and, hence, this action ensued.
The trial court ruled in favor of defendants, concluding that the Wurms had made a good-faith effort to pay the taxes and that they had received inaccurate information from the county treasurer’s office with regard to both the amount owed and the deadline for payment in order to retain their property. The court further concluded that the good-faith effort was sufficient to allow defendants to exercise their right of reconveyance.
Plaintiff’s first issue is a nonissue. Plaintiff correctly states that the deadline for payment to obtain reconveyance is, as discussed above, set by statute and is six months after the sheriff’s return of service of the notice of reconveyance. The trial court did not determine otherwise. Rather, the trial court concluded that defendants did and could rely on information supplied by the treasurer’s office and that their good-faith effort to obtain reconveyance on the basis of that information excused their noncompliance with the statute. That is, the trial court granted equitable relief.
Thus, the real issue is whether defendants’ good faith is sufficient to excuse noncompliance with the statute. That is, whether it is sufficient to justify missing the statutory deadline for payment to obtain reconveyance. We conclude that the Wurms’ good faith is not sufficient to avoid the requirements of the statute.
The cases relied upon by the trial court are distinguishable from the case at bar. In Dean v Dep’t of Natural Resources, 399 Mich 84; 247 NW2d 876 (1976), the Court specifically did not address the issue whether the plaintiffs good-faith attempt to redeem the property was effective as a redemption because leave to appeal had not been granted with regard to that issue. Id. at 94. Rather, only the claim of unjust enrichment was addressed. Furthermore, the plaintiff in Dean merely paid an inadequate amount based upon the treasurer’s statement, but did so in a timely manner (i.e., before the redemption period had expired).
The other case relied upon by the trial court is Palmer v State Land Office Bd, 304 Mich 628; 8 NW2d 664 (1943). However, Palmer involved a situation where the taxpayer had made a good-faith attempt to pay the taxes before the sale. Indeed, the cases discussed by Palmer involved situations where taxpayers endeavored to pay their taxes, but were misinformed with respect to the amount owed. The payments themselves, although inadequate in amount, were timely. Indeed, the principle set forth in Palmer is:
The above cases leave no room for doubt. The rule in this State is, that a good-faith attempt to pay taxes made within the proper time and to the proper official, which fails through mistake or fault of the tax-collecting official, is the equivalent of payment when asserted in the proper manner. [Id. at 635; statutory citations omitted.]
We agree with the proposition expressed in Palmer: where the county treasurer misinforms a taxpayer, through mistake or fraud, with regard to the amount of taxes owed, and the taxpayer acts in accordance therewith, the county treasurer should not thereafter be permitted to sell the property at a tax sale.
In this case, however, the payment was made long after the tax sale and after the time for redemption and reconveyance had expired. Further, the rights of a third party are now involved, namely, the purchaser at tax sale, plaintiff. To apply the good-faith rule now' would divest plaintiff of the property to which she now has title after defendants’ noncompliance with the statute, albeit that noncompliance may have been the result of a third-party’s (the county treasurer or his agent) misleading information. Plaintiff herself did not mislead defendants. Furthermore, defendants had no less than three notices of the 1987 tax sale (for 1984 taxes) complete with a notice of their rights. They received notice before the tax sale, they received the notice in late 1987 after the tax sale informing them of the redemption deadline (May 2, 1988), and they received the reconveyance notice in 1988 informing them of their right to reconveyance of the property within six months.
To establish a good-faith rule would be to create an equitable remedy to a noncompliance with a statute. The balancing of the equities weighs against defendants. They were three years delinquent in their taxes at the time of the tax sale. Thereafter, they had nearly two years to recover their property during the redemption and reconveyance periods. They failed to do so. Plaintiff, on the other hand, fully complied with all requirements of the statute. Indeed, plaintiff did more than the statute requires and sent an additional notice to defendants shortly before the sheriff served the reconveyance notice.
The equities favor plaintiff, who more than fully complied with the statute, as opposed to defendants, who failed to live up to their obligations under the statute.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff may tax costs.
This figure, $1,991.36, would be the appropriate redemption figure for the 1985 taxes only, with interest calculated through April 30, 1989. This would suggest, then, that the telephone call was made during April of 1989. It is known that the call was placed on or before April 19, 1989, the date the Wurms went to their credit union to obtain a loan with which to pay the taxes.
To the extent plaintiff argues that the trial court erred in concluding that the Wurms received misleading information from the county treasurer’s office and acted in good-faith reliance on that information, we cannot say that the tried court clearly erred in making such a finding.
Though it should be noted that in Palmer there had been a subsequent sale to a tax scavenger after the state purchased the property at the tax sale. | [
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Levin, P. J.
The defendant, Charles McDonald, appeals his conviction of armed robbery. MCLA 750.529; MSA 28.797.
The sole issue is whether the defendant is entitled to a new trial because the jurors were permitted to separate after they began deliberating and before they announced their verdict.
The statute provides that after the jurors in a criminal case retire to consider their verdict the judge may permit them “to separate temporarily, whenever in his judgment such a separation is deemed proper”. MCLA 768.16; MSA 28.1039.
The stenographic transcript shows that the jurors began their deliberations at 10:04 a.m., and the following:
“(At 10:30 a.m., jury rapped on door with verdict. The court attending a meeting.) (Emphasis supplied.)
“(At 10:36 a.m., jury in courtroom.)
“The Clerk: Members of the jury, Judge Colombo has been called away on an emergency meeting this morning and he can’t be back until two o’clock. So you will be excused until two o’clock. You do what you please but don’t discuss this case with anyone. Be back here at two o’clock.
“ (Court and jury in recess until two o’clock p.m.) ”
When the court reconvened the jury announced its verdict finding the defendant guilty.
The record does not show whether the judge had instructed the clerk so to authorize the jurors to separate after reaching a verdict. Thus, we do not know whether the judge acted, exercising his discretion, or whether the separation of the jurors was on the initiative of the clerk.
The general rule is stated in an annotation:
“ * * * [A] separation of the jury after submission of the cause in a felony prosecution, in violation of the statute or without the court’s consent, under such circumstances as to make it reasonably appear that the jurors might have been influenced by outside contacts, creates a presumption of prejudice or injury, and the burden is cast upon the prosecution to show that the defendant was not in fact prejudiced thereby.” Anno: Separation of Jury in Criminal Case, 21 ALR2d 1088, 1145.
We find no Michigan authority directly in point, but what Michigan authority we do find seems to be in accord. See People v Nick, 360 Mich 219, 235 (1960) (Black, J., concurring) Cf. People v Lippert, 304 Mich 685, 693 (1943); Churchill v Alpena Circuit Judge, 56 Mich 536, 540 (1885).
We remand for a determination by the trial court whether the separation permitted by the clerk was in fact- authorized by the judge.
If the judge authorized the separation of the jurors, the court shall determine whether the defendant was prejudiced by the apparent failure to comply with the statutory requirement that after the jurors are taken in charge of an officer it shall “be the duty of the officer so sworn to keep the jury from separating, or from receiving any communication of any character, until they shall have rendered their verdict, except under a special instruction in writing from the trial judge”. (Emphasis supplied.) MCLA 768.16; MSA 28.1039.
If it is determined that the separation was not authorized by the judge, the court shall likewise determine whether the defendant was prejudiced by the separation of the jurors.
On the question whether the defendant was prejudiced, it will be a matter of considerable importance whether, as stated by the court reporter, the jurors in fact returned “with verdict” before they separated. Cf. People v Rushin, 37 Mich App 391 (1971).
Remanded for further proceedings consistent with this opinion.
All concurred.
Similarly, see People v Rushton, 111 Cal App 2d 811, 815; 245 P2d 536, 538 (1952); Landers v State, 281 P2d 193, 195 (Okla Crim App, 1955); State v Creech, 57 Wash 2d 589, 594; 358 P2d 805, 808 (1961); State v Amundsen, 37 Wash 2d 356; 223 P2d 1067 (1950).
In Nick the separation was authorized by the judge and the question was whether the defendant was prejudiced by the mingling of the jurors with persons who commented on the meritorious and then undecided question of guilt or innocence. In a concurring opinion signed by two justices in addition to the writer, who was Mr. Justice Black, the following observation was made: “The ordinary presumption of prejudice, arising from an unauthorized dispersion or separation of jurors during the period of deliberation did not arise in this case.” (Emphasis by Justice Black.), | [
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Taylor, J.
Defendant was charged with assault with intent to murder, carrying a firearm or dangerous weapon with unlawful intent, and possession of a firearm during the commission of a felony. He was convicted by a jury of the lesser offense of assault with intent to do great bodily harm less than murder, as well as carrying a dangerous weapon with unlawful intent and fel ony-firearm. He was sentenced to concurrent prison terms of six to ten and two to five years for the convictions of assault and carrying a dangerous weapon with unlawful intent, respectively, and the mandatory consecutive two-year term for the felony-firearm conviction. He appeals his convictions and sentences as of right, and we affirm.
At trial, the prosecutor presented evidence that defendant telephoned his girl friend’s father and said that he was coming over to blow up his car and house. Within twenty minutes of the telephone call, defendant arrived in a pickup truck. When the victim stepped out to look at the license plate on the truck, defendant stuck his head out of the passenger window, yelled obscenities at the victim, and revealed a handgun. The victim jumped behind a tree, and defendant fired the gun from a distance of approximately twenty yards. The victim heard gunfire, saw the tree move, and heard a whirling noise three or four feet above his head. Although no bullet holes or bullet damage was found, the victim’s version of the events was corroborated by another prosecution witness. Defendant denied having a firearm, yelling obscenities, or threatening the victim.
Defendant’s first claim is that the Double Jeopardy Clauses of the Michigan and United States Constitutions were violated when he was convicted of both assault with intent to commit great bodily harm less than murder and carrying a dangerous weapon with unlawful intent. He argues that the prosecutor artificially bifurcated a single crime by charging defendant separately for the preparation (carrying a dangerous weapon with the intent to attack someone) and the actual attack (the assault charge), thus double punish ment was imposed for a single crime. He also argues that both charges protect society against the same conduct.
Although defendant did not raise this issue in the trial court, we will review the issue because it involves a significant constitutional question. People v Alexander, 188 Mich App 96, 101; 469 NW2d 10 (1991).
Both the Double Jeopardy Clause of the United States Constitution and the similar provision of the Michigan Constitution protect against successive prosecutions for the same offense, and against multiple punishment for the same offense. People v Bewersdorf, 438 Mich 55, 72; 475 NW2d 231 (1991); People v Sturgis, 427 Mich 392, 400; 397 NW2d 783 (1986). The purpose of the double jeopardy protection against multiple punishments for the same offense is to protect the defendant’s interest in not enduring more punishment than was intended by the Legislature. People v Whiteside, 437 Mich 188, 200; 468 NW2d 504 (1991). It is well settled that a double jeopardy challenge based on multiple-punishment grounds is resolved by ascertaining and enforcing the intent of the Legislature. Bewersdorf at 73; Whiteside at 201; Sturgis at 400, 405; People v Robideau, 419 Mich 458, 469; 355 NW2d 592 (1984); People v Wakeford, 418 Mich 95, 105-106; 341 NW2d 68 (1983); People v Kaczorowski, 190 Mich App 165, 169; 475 NW2d 861 (1991).
Under the federal test, two separate offenses generally exist when each offense requires proof of at least one fact that the other offense does not. Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932); People v Wilson, 180 Mich App 12, 16; 446 NW2d 571 (1989). However, two offenses can have common elements and still be separate for double jeopardy purposes if the legislative intent that separate offenses be created is clear from the face of the statutes or the legislative history. Garrett v United States, 471 US 773; 105 S Ct 2407; 85 L Ed 2d 764 (1985); People v McKinley, 168 Mich App 496, 503; 425 NW2d 460 (1988).
The Michigan Constitution, on the other hand, affords broader protection than does its federal counterpart. People v Carter, 415 Mich 558, 582; 330 NW2d 314 (1982). In reviewing a double jeopardy challenge on multiple-punishment grounds under the Michigan Constitution, we consider: (1) whether one statute prohibits conduct violative of a social norm distinct from the norm protected by the other statute, and (2) the amount of punishment authorized by each statute, and whether the statutes are hierarchical or cumulative. Robideau at 487; Sturgis at 407; People v Crawford, 187 Mich App 344, 348-349; 467 NW2d 818 (1991). Comparing the elements of the offense may also be a useful tool. Sturgis at 409; Kaczorowski at 170-171.
In this case, we note that assault with intent to commit great bodily harm less than murder is found in the "Assaults” chapter of the Penal Code. The elements of that offense are: (1) an attempt or offer with force or violence to do corporal hurt to another (an assault), (2) coupled with an intent to do great bodily harm less than murder. People v Mitchell, 149 Mich App 36, 38; 385 NW2d 717 (1986); CJI2d 17.7. Carrying a firearm or dangerous weapon with unlawful intent is found in the "Firearms” chapter of the Penal Code. The elements of that offense are: (1) carrying a firearm or dangerous weapon, (2) with the intent to unlawfully use the weapon against another person. People v Smith, 393 Mich 432, 437; 225 NW2d 165 (1975); People v Davenport, 89 Mich App 678, 682; 282 NW2d 179 (1979); CJI2d 11.17.
In the assault statute, the emphasis is on punishing crimes injurious to other people, regardless of whether a weapon is used to effect the injury. The focus of the weapon statute is on the carrying of the weapon. While the facts of this case make it appear that the two statutes punish the same behavior or protect the same social norm, such a conclusion is not borne out in all situations. As noted above, the assault statute does not require the possession of a firearm or dangerous weapon, while the weapon statute depends upon such possession. Also, the assault statute requires the commission of an actual assault, while the weapon statute requires only the intent to use the possessed weapon illegally against another, not a completed assault. The two statutes are neither hierarchical nor cumulative. For these reasons, we conclude that defendant’s double jeopardy challenge fails under both constitutions.
Defendant’s second claim is that insufficient evidence was adduced to support the requisite intent element of the offense of assault with intent to commit great bodily harm less than murder. Specifically, defendant claims that the threats he made to the victim cannot be the underpinning of a finding with regard to the intent element because the actual harm or activity done, i.e., the shooting, was different than the harm threatened, i.e., that he would blow up the victim’s car and house. However, defendant cites no authority for the proposition that threats of a harm different from that actually perpetrated cannot be used as evidence of the intent to do great bodily harm.
Accordingly, we have viewed the evidence in the light most favorable to the prosecution, and conclude that a rational trier of fact could find that the specific intent element was established beyond a reasonable doubt on the basis of the threats of harm defendant made to the victim, coupled with evidence that defendant called out to the victim using vulgar language and then fired a gun at him from a distance of approximately twenty yards. People v Petrella, 424 Mich 221, 268-270; 380 NW2d 11 (1985); People v Buckner, 144 Mich App 691, 697; 375 NW2d 794 (1985). See also People v Flowers, 191 Mich App 169, 179-180; 477 NW2d 473 (1991), where this Court held the evidence of intent to murder sufficient for purposes of binding over a defendant who hired others to severely beat the victim, offering to pay a premium for each bone broken, although the victim was ultimately shot in the back of the head. Contrary to defendant’s argument in this case, the fact that the bullet missed the victim does not negate the intent element. No actual physical injury is required for the elements of the crime to be established. Mitchell, supra; CJI2d 17.7.
We also disagree with defendant’s contention that the evidence of an assault was insufficient. The victim testified that defendant aimed the handgun at him and that the bullet went through the tree by which he was standing and passed approximately three or four feet over his head.
Finally, defendant claims that he is entitled to be resentenced because, by its comments, the sentencing court indicated that defendant was being sentenced as if he had committed assault with intent to murder rather than the lesser offense of which he was convicted. In this regard, defendant points out that the sentence imposed was only six months less than the maximum sentence permitted under the two-thirds rule of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). Because defendant’s prior criminal record is made up mostly of drug and alcohol offenses, defendant argues that the reasons given for the sentence do not support such a harsh sentence.
We have reviewed the sentencing court’s comments, and find that the court merely pointed out to defendant the seriousness of his actions and the fact that he was lucky that no one was killed. We note that the sentence of six to ten years in prison falls within the computed sentencing guidelines range. Sentences falling within the guidelines range are presumed to be proportionate. People v Milbourn, 435 Mich 630, 635-636; 461 NW2d 1 (1990); People v Dukes, 189 Mich App 262, 266; 471 NW2d 651 (1991). Although a sentence falling within the guidelines range may violate the principle of proportionality in unusual circumstances, Milbourn at 661, no such circumstances are presented here.
Defendant’s convictions and sentences are affirmed.
MCL 750.83; MSA 28.278.
MCL 750.226; MSA 28.423.
MCL 750.227b; MSA 28.424(2).
MCL 750.84; MSA 28.279.
US Const, Am V; Const 1963, art 1, § 15. | [
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Memorandum Opinion.
Defendant entered a plea of guilty to the charge of carrying a concealed weapon, MCLA 750.227; MSA 28.424.
Thereafter he sought to withdraw it. The motion to withdraw was denied. He appeals of right.
We have reviewed the record. We find no infirmity in the taking of the plea nor in the sentence imposed.
Affirmed. | [
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Memorandum Opinion.
Defendant was tried and convicted of assault with intent to rape and of assault with intent to commit the crime of gross indecency and he appeals. A motion to affirm has been filed by the people.
Upon an examination of the briefs and record, it is manifest that the questions sought to be reviewed are so unsubstantial as to need no argument or formal submission.
Motion to affirm is granted. | [
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