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Mallett, C.J.
We granted leave to appeal to determine whether the plaintiffs claim is barred under the six-month discovery rule applicable to her medical malpractice suit. MCL 600.5838a(2); MSA 27A.5838(1)(2). Specifically, we must decide whether the six-month discovery rule period began to run when plaintiff learned of two possible causes for her lesion, one potentially actionable and one not, or whether it began to run only after her physician con firmed the potentially actionable diagnosis. Plaintiff filed her suit more than six months after learning that one of the two possible diagnoses was potentially actionable, but less than six months after her physician confirmed the potentially actionable diagnosis. While we caution that there may be circumstances where the six-month period will not begin to run until a more definitive diagnosis is obtained, we conclude in the present case that the period began to run when the plaintiff learned that one of two possible diagnoses for her lesion was potentially actionable because it was at this point that she should have discovered a possible cause of action. Moll v Abbott Laboratories, 444 Mich 1; 506 NW2d 816 (1993); Gebhardt v O’Rourke, 444 Mich 535; 510 NW2d 900 (1994). We further conclude that when the plaintiff should have discovered her claim is a question of law for resolution on summary disposition because the facts relevant to determining the issue were undisputed. Consequently, we affirm the Court of Appeals decision that plaintiffs suit is barred.
i
FACTS
On September 14, 1986, plaintiff Solowy visited a clinic owned by defendant Oakwood Hospital for diagnosis and treatment of a lesion on her left outer ear. Defendant Thomas Chapel, M.D., examined and removed the lesion and, after obtaining biopsy results, confirmed the diagnosis as basal cell carcinoma. The plaintiff continued treatment with him or with codefendant Johanna Chapel, M.D., his wife and colleague, until her last visit on October 9, 1986. According to the plaintiff, Dr. Thomas Chapel assured her during the course of her treatment that the cancer was “gone” and that there was no chance of it recurring. She also claims that the defendant doctors failed to advise that she should return for further follow-up or treatment.
In January 1992, about five years after her last treatment with the defendant doctors, the plaintiff discovered a similar lesion on her left ear at approximately the same site. She described her symptoms as being nearly identical to those she experienced five years earlier, explaining in her deposition that she felt that “it started all over again.” On March 27, 1992, approximately two months after first discovering the new lesion, the plaintiff consulted a dermatologist, Dr. Katherin Laing. At this initial visit, Dr. Laing advised her that there were two possible diagnoses for the lesion, either the basal cell carcinoma had recurred, or it was noncancerous seborrheic keratosis. Dr. Laing took a tissue sample and ordered a biopsy. On April 9, 1992, Dr. Laing informed the plaintiff that the lesion was indeed a recurrence of cancer. On July 14, 1992, the plaintiff underwent surgery to remove the cancer. Because the cancer had invaded deeper tissues, the surgeon had to remove the entire top portion of the plaintiffs left outer ear in order to remove all the cancer.
On October 5, 1992, the plaintiff filed this medical malpractice lawsuit, alleging that the defendant doctors’ representations to her that her cancer would not recur caused her to delay seeking treatment, resulting in a more radical and disfiguring surgery than would have been required if she had sought treatment earlier. Defendants moved for summary disposition on the ground that the claim was barred by the statute of limitations, having been filed more than two years after the date of last treatment and more than six months after the plaintiff discovered or should have discovered her claim. The trial court granted summary disposition for the defendants, concluding that pursuant to this Court’s decision in Moll, the latest that the plaintiff should have discovered a possible cause of action was March 27, 1992, when Dr. Laing told her that the lesion could be a recurrence of cancer. Because plaintiff filed more than six months after that date, the suit was barred.
Plaintiff appealed, arguing that the six-month discovery period did not begin to run until April 9, 1992, when Dr. Laing confirmed and informed her of the diagnosis. She argued that, because she filed her suit within six months of the date that Dr. Laing confirmed her diagnosis, the suit was timely. The Court of Appeals affirmed the grant of summary disposition:
As more than two years had expired since the last day of treatment by defendants, plaintiff had six months from the time she discovered a “possible” cause of action in which to file this lawsuit. Gebhardt v O’Rourke, 444 Mich 535, 544 (1994). On the basis of objective facts, plaintiff should have known of an injury on the first day she visited her dermatologist; that the suspicions engendered at that time were later confirmed does not affect the commencement of the six-month discovery period which earlier occurred. Moll v Abbott Laboratories, 444 Mich 1, 18 (1993). Plaintiff therefore had until not later than September 27, 1992, to file her cause of action; [because] this cause of action commenced on October 5, 1992, [it] was untimely and summary disposi tion was properly granted. [Unpublished order of the Court of Appeals, entered April 20, 1995 (Docket No. 171123).]
Plaintiff now appeals in this Court. She argues that (1) the “possible cause of action” standard relied on by the Court of Appeals should not apply in medical malpractice cases, (2) the lower courts misapplied the standard to her case, holding her to a higher standard than that applicable to her own treating physician because not even her physician could have known of a possible cause of action until after the biopsy confirmed the diagnosis, and (3) because the parties disputed facts concerning when she should have discovered a cause of action, summary disposition was not proper.
Before examining plaintiffs arguments, we will review the limitation provisions controlling in this case.
n
RELEVANT STATUTE OF LIMITATIONS
In general, a plaintiff in a medical malpractice case must bring his claim within two years of when the claim accrued, or within six months of when he discovered or should have discovered his claim. MCL 600.5805(4); MSA 27A.5805(4) and MCL 600.5838; MSA 27A.5838.
The general limitation period for malpractice actions provides that a plaintiff must bring his action within two years of when the claim first accrues. MCL 600.5805(1), (4); MSA 27A.5805(1), (4). For acts of malpractice occurring before October 1, 1986, the claim accrues on the date that the defendant “discontinue [d] treating or otherwise serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.” MCL 600.5838(1); MSA 27A.5838(1).
On October 1, 1986, an accrual provision specific to medical malpractice claims became effective. This provision states that medical malpractice claims accrue “at the time of the act or omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.” MCL 600.5838a(l); MSA 27A.5838(1)(1). Thus, for acts or omissions giving rise to a claim of malpractice occurring before October 1, 1986, the claim accrues for purposes of the two-year limitation period on the last date of professional services. For acts or omissions giving rise to a claim of malpractice occurring after October 1, 1986, the claim accrues on the date of the alleged act or omission giving rise to the claim.
In this case, Drs. Chapel treated the plaintiff both before and after October 1, 1986, with the last date of treatment having occurred on October 9, 1986. Regardless of whether the allegedly negligent acts or omissions occurred before or after October 1, 1986, plaintiffs suit would be barred under the relevant two-year provision. The latest possible accrual date is October 9, 1986, the last date that defendants rendered professional services. In order to have timely commenced this action within the two-year period, plaintiff would have had to file her suit on or before October 9, 1988. Because the complaint was not filed until nearly four years later, on October 5, 1992, the claim is barred unless plaintiff can prove that she filed her claim within six months of when she discovered or should have discovered her claim.
The six-month discovery rule applicable to this claim provides:
Except as otherwise provided in this subsection, an action involving a claim based on medical malpractice may be commenced at any time within the applicable period prescribed in section 5805 or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim,. whichever is later. [MCL 600.5838a(2); MSA 27A.5838(1X2).[ ]
Applying this subsection, the Court of Appeals determined that the suit was barred because it was filed more than six months after the plaintiff should have discovered a “possible cause of action,” as required by this Court’s opinions in Moll and Gebhardt.
m
POSSIBLE CAUSE OF ACTION STANDARD
A
The plaintiff argues that the “possible cause of action” standard announced in Moll and applied in Gebhardt should not apply in the medical malpractice context. We disagree.
This Court adopted the “possible cause of action” standard for determining when the discovery rule period begins to run in Moll. The majority concluded that an objective standard applied in determining when a plaintiff should have discovered a claim. Fur ther, the plaintiff need not know for certain that he had a claim, or even know of a likely claim before the six-month period would begin. Rather, the discovery rule period begins to run when, on the basis of objective facts, the plaintiff should have known of a possible cause of action. The majority explained:
We find that the best balance is struck in the use of the “possible cause of action” standard. This standard advances the Court’s concern regarding preservation of a plaintiff’s claim when the plaintiff is unaware of an injury or its cause, yet the standard also promotes the Legislature’s concern for finality and encouraging a plaintiff to diligently pursue a cause of action. Once a claimant is aware of an injury and its possible cause, the plaintiff is aware of a possible cause of action. We see no need to further protect the rights of the plaintiff to pursue a claim, because the plaintiff at this point is equipped with sufficient information to protect the claim. This puts the plaintiff, whose situation at one time warranted the safe harbor of the discovery rule, on equal footing with other tort victims whose situation did not require the discovery rule’s protection. [Moll at 23-24 (emphasis added).]
While Moll involved pharmaceutical products liability claims, the majority’s analysis is not specific to those types of claims. Quite the opposite, the analysis supports applying the standard in the context of other types of tort suits that are subject to the discovery rule.
This Court’s opinion in Gebhardt bears this out. In that case, we applied Moll’s “possible cause of action” standard to the statutory six-month discovery rule applicable to legal malpractice claims. MCL 600.5838; MSA 27A.5838, as amended by 1986 PA 178. The rationale of Moll applies equally to malpractice actions, whether legal or medical. Once a plaintiff is aware of an injury and its possible cause, the plaintiff is equipped with the necessary knowledge to preserve and diligently pursue his claim.
B
Application of the “possible cause of action” standard to the facts of Mrs. Solowy’s medical malpractice suit supports the Court of Appeals conclusion that her suit is barred. Before applying this standard to the facts of the present case, we must set forth general principles that apply to the discovery rule.
In Moll at 18, we succinctly set forth some of these principles:
Michigan jurisprudence compels not only the use of an objective standard for determining when an injury is discovered, but it also compels strict adherence to the general rule that “subsequent damages do not give rise to a new cause of action.” . . . The discovery rule applies to discov ery of an injury, not to the discovery of a later realized consequence of the injury.
Further, the plaintiff need not be able to prove each element of the cause of action before the statute of limitations begins to run. Moll at 21; Warren Consolidated Schools v W R Grace & Co, 205 Mich App 580, 583; 518 NW2d 508 (1994), citing Detroit Bd of Ed v Celotex Corp (On Remand), 196 Mich App 694, 706; 493 NW2d 513 (1992).
Mrs. Solowy was aware of a possible cause of action no later than March 27, 1992, the date of her first visit with Dr. Laing. At this visit, Dr. Laing informed her that the lesion on her ear was either a recurrence of the cancer or seborrheic keratosis. She was also aware at this point that her symptoms were identical to those she had experienced five years earlier. The plaintiffs pleadings and deposition testimony allege that had Drs. Chapel told her that the cancer could recur and that follow-up visits would be necessary, she would have sought treatment earlier and consequently, she would not have suffered the degree of injury that she did. Therefore, as of March 27, the plaintiff knew of an injury, i.e., the progression of the lesion on her ear, and its possible cause, i.e., the failure of Drs. Chapel to inform her that the cancer could recur and that she should seek follow-up treatment.
The “possible cause of action” standard does not require that the plaintiff know that the injury to her ear, in the form of the advancement of the disease process, was in fact or even likely caused by the defendant doctors’ alleged omissions. Neither does the standard require that the plaintiff be aware of the full extent of her injury before the clock begins to run. Consequently, it is irrelevant that the plaintiff was not yet aware that the progression of cancer would eventually necessitate removal of the upper portion of her left outer ear.
In summary, after the March 27 visit, the plaintiff, while lacking specific proofs, was armed with the requisite knowledge to diligently pursue her claim.
IV
DELAYED DIAGNOSIS
The plaintiff alternatively argues that the lower courts incorrectly applied the “possible cause of action” standard to her case. She argues that by barring her suit, the lower courts held her to a higher standard than her own treating physician, because not even Dr. Laing could have known of a possible cause of action until she confirmed that the lesion was basal cell carcinoma.
The plaintiffs argument is unconvincing. As explained earlier in part ni(B), once the plaintiff and her physician were aware that the lesion could be a recurrence of cancer, the possible cause of action standard was met. Had Dr. Laing at the first visit also known what Mrs. Solowy knew, i.e., that she had delayed treatment in reliance on the defendant doctors’ alleged failure to warn her of the possibility of recurrence, she too would have known of a possible cause of action as of this date. Consequently, the courts did not hold Mrs. Solowy to a higher standard than her own physician.
We recognize that Mrs. Solowy’s situation is sympathetic because she proceeded with some diligence in filing her claim. Although she did not sit on her rights for long, she unfortunately sat on them long enough to miss the statute of limitations cut off by approxi mately eight days. This type of case illustrates the apparent arbitrariness of statutes of limitations. This arbitrariness, however, is unavoidable and is the essential nature of any statute of limitations. While we are sympathetic to those who miss the deadline by a few days, their claims are nevertheless barred.
We caution, however, that a delay in diagnosis may delay the running of the six-month discovery period in some cases. Some illnesses and injuries may defy even a possible diagnosis until a test, or a battery of tests, can limit the possibilities. In such a case, it would be unfair to deem the plaintiff aware of a possible cause of action before he could reasonably suspect a causal connection to the negligent act or omission. While according to Moll, the “possible cause of action” standard requires less knowledge than a “likely cause of action standard,” it still requires that the plaintiff possess at least some minimum level of information that, when viewed in its totality, suggests a nexus between the injury and the negligent act. In other words, the “possible cause of action” standard is not an “anything is possible” standard.
In the context of a delayed diagnosis, courts should maintain a flexible approach in applying the standard. In this regard, Justice Boyle’s partial concurrence in Moll is instructive:
With the doctrine of reasonableness as a constant and the standard of due diligence as a guide, courts are able to determine when a plaintiff knew or should have known of an injury and its possible . . . cause, as well as whether there is a disputed issue of fact that requires jury resolution. Without a flexible approach, the purpose of adopting the discovery rule for latent injuries, as well as the procedural presumption favoring the nonmoving party on summary disposition, will be undermined.
* * *
As the court in DuBose v Kansas City S R Co, 729 F2d 1026, 1031 (CA 5, 1984), stated, whether a “plaintiff may be charged with awareness that his injury is connected to some cause should depend on factors including how many possible causes exist and whether medical advice suggests an erroneous causal connection or otherwise lays to rest a plaintiffs suspicion regarding what caused his injury.” [Moll at 32-33 (Boyle, J., concurring in part and dissenting in part).]
While Justice Boyle’s arguments for a flexible approach were aimed at refuting the majority’s distinction between a “likely” and “possible” cause of action standard, her words nonetheless counsel wisely in applying the “possible cause of action” standard here.
In applying this flexible approach, courts should consider the totality of information available to the plaintiff, including his own observations of physical discomfort and appearance, his familiarity with the condition through past experience or otherwise, and his physician’s explanations of possible causes or diagnoses of his condition.
Here, even before the diagnosis was confirmed, Mrs. Solowy was aware that her symptoms were identical to those she experienced five years earlier. In her own words, “it started all over again.” Consequently, her observations of the discomfort and of the appearance and condition of her ear should have aroused some suspicion in her mind that the lesion might be cancer. These observations, coupled with Dr. Laing’s explanation that the basal cell carcinoma could recur and that the lesion could be a recurrence of this cancer, supplied Mrs. Solowy with enough information to satisfy the standard.
We are also mindful of the enhanced responsibilities placed on medical malpractice plaintiffs by the 1986 medical malpractice tort reform legislation. See MCL 600.2912a et seq.; MSA 27A.2912(1) et seq. Specifically, the reforms require, among other things, that a plaintiff locate a medical expert who can review the medical records, determine that the claim has merit, and draft an affidavit of merit to submit with the complaint. We realize that a case may arise where, perhaps because of a delay in diagnosis, a plaintiff will not be able to secure an affidavit of merit before the six-month period expires. In such a case, the plaintiffs attorney should seek the relief available in MCL 600.2912d(2); MSA 27A.2912(4)(2), which allows, upon a showing of good cause, an additional twenty-eight days to obtain the required affidavit of merit. During this period, the statute will be tolled and summary disposition motions on the ground of failure to state a claim should not be granted.
These concerns are not present here. Mrs. Solowy could have secured her affidavit of merit and filed her claim well in advance of the cut-off period, even if she had waited for a definitive diagnosis from her physician. It must be remembered that the plaintiff only missed the cut-off period by approximately eight days. Had she decided to wait until her suspicions regarding her injury were confirmed, she still would have had approximately five months and eighteen days to locate an expert, obtain an affidavit of merit, and file suit.
In summary, we caution that when the cause of a plaintiffs injury is difficult to determine because of a delay in diagnosis, the “possible cause of action” standard should be applied with a substantial degree of flexibility. In such a case, courts should be guided by the doctrine of reasonableness and the standard of due diligence and must consider the totality of information available to the plaintiff concerning the injury and its possible causes. While the standard should be applied with flexibility, it should nevertheless be maintained so that the legitimate legislative purposes behind the rather stringent medical malpractice limitation provisions are honored.
v
DISPUTED FACTS
Finally, the plaintiff argues that dismissal of her complaint was improper because the question when she discovered or should have discovered the claim is a factual issue for the jury to resolve. However, in Moll at 26, this Court held that, “in the absence of disputed facts, the question whether a plaintiffs cause of action is barred by the statute of limitations is a question of law to be determined by the trial judge.”
In this case, the plaintiff does not dispute that, as of her first visit to Dr. Laing, she was aware of a high possibility that the lesion on her ear was a recurrence of cancer. The plaintiff also does not dispute that, at this point, she was aware that her delay in seeking treatment was caused by the defendant doctors’ alleged omissions. Consequently, the facts before the trial court relevant to the resolution of the discovery rule issue were undisputed. Simply put, no factual issues remained for the jury to decide.
Further, pursuant to the plain language of the medical malpractice discovery rule provision, the plaintiff bore the burden of coming forward with evidence to show a disputed issue of material fact on the discovery issue.
The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim is on the plaintiff. [MCL 600.5838a(2); MSA 27A.5838(l)(2).][ ]
The plaintiff failed to meet this burden. Rather than coming forward with evidence that she was unaware of a possible cause of action as of March 27, 1992, the plaintiff focused on the fact that, as of this date, there was a possibility that she did not have a cause of action because the lesion on her ear could possibly have been something other than cancer. This fact, undisputed by the defendants, does not support plaintiffs assertion that she could not have been aware of a possible cause of action.
The plaintiff attempts to characterize the lower court determinations regarding the “possible cause of action” issue as an impermissible and disputed “factual inference” that was not supported by the evidence. However, calling it a factual inference does not make it one. Rather, the determination was a legal decision involving application of the undisputed facts to the “possible cause of action” standard. Merely because this legal determination might have been decided differently does not change the nature of the inquiry from one of law to one of fact.
VI
CONCLUSION
The six-month discovery rule period begins to run in medical malpractice cases when the plaintiff, on the basis of objective facts, is aware of a possible cause of action. This occurs when the plaintiff is aware of an injury and a possible causal link between the injury and an act or omission of the physician. When the cause of the plaintiffs injrny is difficult to determine because of a delay in diagnosis, the “possible cause of action” standard should be applied with a substantial degree of flexibility. In such cases, courts should be guided by the doctrine of reasonableness and the standard of due diligence, and must consider the totality of information available to the plaintiff concerning the injury and its possible causes.
Mrs. Solowy should have discovered a possible cause of action on March 27, 1992. As of this date, she was aware that her symptoms were identical to those she experienced five years earlier, and she had been advised by Dr. Laing that the lesion on her ear could be a recurrence of cancer. At this point, she was aware of an injury and a possible causal connection between the injury and the defendant doctors’ alleged failure to warn her of the possibility of recurrence and of the necessity for follow-up visits. Because Mrs. Solowy waited more than six months after this date to file suit, her claim was properly barred.
Additionally, there is no merit to the plaintiff’s argument that the issue whether she should have discovered a possible cause of action was a question of fact for the jury. When, as here, the facts relevant to the discovery rule issue are undisputed, the issue is proper for summary disposition.
Accordingly, we affirm the Court of Appeals decision.
Brickley, Cavanagh, Boyle, Riley, and Weaver, JJ., concurred with Mallett, C.J.
Kelly, J., took no part in the decision of this case.
Seborrheic keratosis is a “benign, noninvasive tumor of epidermal origin.” Dorland’s Illustrated Medical Dictionary (26th ed), p 697. Mrs. Solowy suffered from this condition on other areas of her body when she went to see Dr. Laing on March 27, 1992.
The cited provision reflects the 1986 amendments. However, the language concerning the discovery rule is in all significant respects unchanged. See n 3.
The discovery rule language applied in Gebhardt provided:
Except as otherwise provided ... an action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed ... or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. [MCL 600.5838(2); MSA 27A.5838(2).]
This provision applied to all malpractice claims before the 1986 tort reform amendments. For claims arising after October 1, 1986, the 1986 amendments changed the limitation provisions applicable to medical malpractice suits in several respects. The language concerning discovery, however, remained unchanged, i.e., under the new discovery rule provision, MCL 600.5838a(2); MSA 27A.5838(1)(2), a claim may be filed “within 6 months after the plaintiff discovers or should have discovered the existence of the claim . . . .”
As explained in part II, Drs. Chapel treated the plaintiff both before and after October 1, 1986. While neither the record nor the parties provide a clear answer to whether the 1986 amendments apply, because the discovery rule language is nearly identical, that determination is not necessary to our analysis.
Some of these factors are listed in the current medical malpractice discovery rule provision, MCL 600.5838a(2); MSA 27A.5838(1)(2), which provides in pertinent part:
The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim is on the plaintiff. [Emphasis added.]
The relevant provision currently provides:
(1) Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff’s attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiffs attorney reasonably believes meets the requirements for an expert witness under section 2169. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff’s attorney concerning the allegations contained in the notice and shall contain a statement of each of the following:
(a) The applicable standard of practice or care.
(b) The health professional’s opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.
(d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice.
(2) Upon motion of a party for good cause shown, the court in which the complaint is filed may grant the plaintiff or, if the plaintiff is represented by an attorney, the plaintiff’s attorney, an additional 28 days in which to file the affidavit required under subsection (1). [MCL 600.2912d; MSA 27A.2912(4).]
While the issue is not presently before us, we believe that good cause should be shown in this context by an expert’s letter, indicating that a possible cause of the injury relates to the alleged negligent act or omission and that further time is required for testing in order to confirm the suspected cause.
We also note that although the affidavit of merit requirement places an enhanced responsibility on plaintiffs, the notice requirement found at MCL 600.2912b; MSA 27A.2912(2), in eorqunction with the tolling provision found at MCL 600.5856(d); MSA 27A.5856(d), generally operates to allow plaintiffs an additional 182 days to freely investigate their claim and find an expert. The six-month period is tolled during the 182-day notice period.
We note that the quoted provision reflects the 1986 amendments, which may or may not apply to this case. The previous discovery provision, however, also placed the burden of proof in this regard on the plaintiff. MCL 600.5838; MSA 27A.5838 applies to medical malpractice cases arising before October 1, 1986 (see n 3). This provision states in pertinent part:
The burden of proving that the plaintiff neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim shall be on the plaintiff. [MCL 600.5838(2); MSA 27A.5838(2).]
That is, the lower court might have decided that the plaintiff could not have been aware of a possible cause of action before obtaining a definitive diagnosis because the possibility that the cause of the lesion would prove to be cancer was too remote. We believe, however, that such a determination would have been erroneous. | [
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Weaver, J.
Defendant was convicted of armed robbery and possession of a firearm during the commission of a felony. Because the presentence report failed to show that defendant had a prior felony-firearm conviction, the felony-firearm sentence imposed was a two-year consecutive sentence. When the trial court learned of the inaccuracy in the presentence report the court, sua sponte and without affording defendant a resentencing hearing, enhanced the felony-firearm sentence to five years as statutorily mandated. The Court of Appeals affirmed the increased sentence.
We reverse in part and affirm in part the judgment of the Court of Appeals. We remand for resentencing only with regard to the armed robbery conviction and hold the modification of the felony-firearm sentence to be harmless error because defendant admits the prior felony-firearm conviction.
i
Armed with a gun, defendant robbed a Detroit grocery store in April 1992. He was charged with armed robbery and with possession of a firearm during the commission of that felony. The presentence report stated that he faced a two-year consecutive prison term for the felony-firearm charge.
In February 1993, defendant pleaded guilty as charged. This was a negotiated plea, and the terms of the bargain were placed on the record. During the plea proceeding, the trial court told defendant that he would serve two years in prison for felony-firearm.
In preparation for the March 1993 sentencing, the trial court received a presentence report that listed no prior felony-firearm conviction for defendant. Neither party challenged this portion of the report.
The trial court then sentenced defendant to a term of six to fifteen years in prison for armed robbery. Believing that it was defendant’s first felony-firearm conviction, the court imposed the two-year mandatory consecutive term.
Six weeks later, an employee of the Department of Corrections sent a letter to the trial court stating that defendant had previously been convicted of felony-firearm. The employee stated that, as a second felony-firearm offender, defendant should be serving a five-year term rather than a two-year term.
The trial court informed the Department of Corrections that it could not locate a record of a prior felony-firearm conviction. In response, the department provided a docket number, a date, and the name of the sentencing judge.
In the meantime, defendant had timely requested the appointment of appellate counsel. In April 1993, the court entered an order appointing counsel.
The trial court then entered an amended judgment of sentence, providing that defendant would serve a five-year term of imprisonment for felony-firearm. The amended judgment was entered without notice to either party and without a resentencing hearing.
On appeal, defendant argued that he should be resentenced, but the Court of Appeals affirmed. This Court granted defendant’s application for leave to appeal.
n
The question presented is whether the trial court had the authority to modify defendant’s felony-firearm sentence from two to five years, sua sponte and without a resentencing hearing, when it learned after sentencing that defendant had previously been convicted of felony-firearm.
Defendant does not challenge the existence of the prior felony-firearm conviction. Instead, he argues that he is entitled to resentencing because the trial court should have been required to reconsider the length of his consecutive indeterminate sentence when it enhanced defendant’s felony-firearm sentence to five years. The prosecutor correctly characterizes defendant’s appeal as an attempt to raise the question whether a trial court should consider the effect of the length of a mandatory sentence when setting a consecutive indeterminate sentence.
Although this issue has been addressed by the Court of Appeals, this Court has not addressed this question directly. The Court of Appeals in People v Warner, 190 Mich App 734; 476 NW2d 660 (1991), held that where a defendant receives consecutive sentences and neither sentence exceeds the maximum punishment allowed, the aggregate of the sentences will not be disproportionate under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). In effect, Warner treats each sentence separately under Milboum’s principle of proportionality. Under Administrative Order Nos. 1994-4 and 1996-4, 445 Mich xci and 451 Mich xcii, Warner is controlling. We find Warner’s reasoning persuasive and hold that a sentencing court need not consider the length of a consecutive or concurrent mandatory sentence when setting an indeterminate sentence.
In so holding, we overrule People v Davis, 196 Mich App 597; 493 NW2d 467 (1992), to the extent that it held a sentencing court must consider the effect of the length of the sentence of a mandatory felony-firearm conviction when sentencing the underlying felony. Davis’ attempt to distinguish Warner is not persuasive. Id. at 602, n 2.
III
Although the authority of the court over a defendant typically ends when a valid sentence is pronounced, the court may correct an invalid sentence after sentencing. In re Jenkins, 438 Mich 364; 475 NW2d 279 (1991); People v Barfield, 411 Mich 700; 311 NW2d 724 (1981); People v Fox, 312 Mich 577; 20 NW2d 732 (1945). This established rule is restated in MCR 6.429(A):
The court may correct an invalid sentence, but the court may not modify a valid sentence after it has been imposed except as provided by law.
Thus, it is necessary to address whether the underlying sentences were invalid.
A
A sentence is invalid when it is beyond statutory limits, when it is based upon constitutionally impermissible grounds, improper assumptions of guilt, a misconception of law, or when it conforms to local sentencing policy rather than individualized facts. People v Whalen, 412 Mich 166, 169-170; 312 NW2d 638 (1981). This Court has also repeatedly held that a sentence is invalid if it is based on inaccurate information. People v Triplett, 407 Mich 510, 515; 287 NW2d 165 (1980); Whalen, supra at 170; People v Eason, 435 Mich 228, 233; 458 NW2d 17 (1990).
In this case, the information in the presentence report was inaccurate because it failed to disclose defendant’s prior felony-firearm conviction. A line of Michigan cases hold that sentences based on inaccurate information are invalid. People v Lauzon, 84 Mich App 201; 269 NW2d 524 (1978) (the trial court erred when it sentenced the defendant under the mistaken belief that he had committed a burglary while out on bond); People v Corlin, 95 Mich App 740; 291 NW2d 188 (1980) (the presentence report erroneously stated that the defendant had pleaded guilty of possession, which carried a maximum penalty of two years, rather than delivery, which carried a maximum penalty of seven years); People v Hale (After Remand), 106 Mich App 306; 308 NW2d 174 (1981) (error was found because the defendant’s cooperation with the police was not made known to the court at the time of sentencing); People v Hildabridle, 45 Mich App 93; 206 NW2d 216 (1973) (it was error for the court to sentence the defendant on the basis of inaccurate information regarding the value of the stolen property).
The statutory requirement that the court review a presentence report before imposing a sentence underscores the importance of accuracy in sentencing. MCL 771.14; MSA 28.1144. Presentence reports “inquire into the antecedents, character, and circumstances of the person,” MCL 771.14(1); MSA 28.1144(1), and are integral to sentencing, People v Brown, 393 Mich 174; 224 NW2d 38 (1974) (reasoning that a defendant cannot waive his right to a presentence report). They are intended to insure that the punishment is tailored not only to the offense, but also to the offender. People v Triplett, supra at 513-515.
The staff comment accompanying MCR 6.429(A) states, “ ‘[i]nvalid sentence’ refers to any error or defect in the sentence or sentencing procedure that entitles a defendant to be resentenced or to have the sentence changed.” Although the staff comment seems to anticipate that a sentence will be invalid when the error operates against a defendant, sentences have been held invalid even when the error operated in a defendant’s favor. A sentence may be invalid no matter whom the error benefits because sentencing must not only be tailored to each defendant, but also satisfy “society’s need for protection and its interest in maximizing the offender’s rehabilitative potential.” Triplett, supra at 513 (citations omitted).
Because of the importance of accuracy in sentencing we find that the original felony-firearm sentence was invalid and subject to modification by the trial court under MCR 6.429(A). Because the armed robbery sentence was based on the same inaccurate information, we also hold it invalid under MCR 6.429(A). However, the question remains whether in this case it was error for the trial court to increase defendant’s felony-firearm sentence and implicitly reaffirm the defendant’s armed robbery conviction sua sponte and without affording defendant an opportunity to challenge the new information at a resentencing hearing.
B
MCR 6.429(A) does not specify procedural safeguards that must be afforded a defendant when an invalid sentence is modified. Certain sentence modi fications of invalid sentences are ministerial in nature and do not require a resentencing hearing; however, other modifications require the due process protections of a resentencing hearing.
For example, the majority of cases presume that the correction of a sentence found invalid because of inaccuracies in information relied on at sentencing will occur at a resentencing hearing. See, e.g., People v Lauzon, People v Hale, People v Hildabridle, and People v Corlin, supra. Such a conclusion is consistent with the fact that sentencing is a critical stage of the proceedings at which the defendant has a Sixth Amendment right to be represented by counsel. People v Pubrat, 451 Mich 589, 594; 548 NW2d 595 (1996).
The circumstances of this case are unique, given the fact that the inaccuracy involved a mandatory sentencing scheme under which the trial court had no discretion. The felony-firearm statute states:
A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223, section 227, 227a or 230, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this subsection, the person shall be imprisoned for 10 years. [MCL 750.227b(l); MSA 28.424(2)(1).]
This statute requires proof beyond a reasonable doubt that a defendant carried a firearm during the commission or attempted commission of a felony and nothing more. Similar to the enhancement provision of the controlled substances act, whether a defendant was a first-, second-, or third-time offender under the felony-firearm act affects only the duration of the defendant’s sentence.
Due process protections afforded defendants subject to such sentence enhancement provisions are less than those afforded defendants for the substantive offense, because the enhancement is not a separate element that must be proved beyond a reasonable doubt. People v Eason, supra at 233. Applying People v Eason, the Court of Appeals in People v Williams, 215 Mich App 234, 236; 544 NW2d 480 (1996), held that for enhancement of a felony-firearm sentence “due process is satisfied as long as the sentence is based on accurate information and the defendant has a reasonable opportunity at sentencing to challenge that information.” We agree.
Despite the fact that the inaccuracy in this case involved a mandatory enhancement provision with unique due process considerations, we hesitate to declare the sentence modification at issue purely ministerial because defendant’s armed robbery and felony-firearm sentences were based on inaccurate information in the presentence report. Therefore, we hold that the trial court erred when it modified defendant’s felony-firearm sentence and implicitly resentenced defendant to the same prison term for armed robbery sua sponte and without a resentencing hearing.
IV
In conclusion, we consider the effect of the unique circumstance of this case, that defendant admits the accuracy of the prior felony-firearm conviction, with respect to both the felony-firearm sentence and the armed robbery sentence.
Regarding the felony-firearm sentence, because defendant admits the accuracy of the prior felony-firearm conviction and because the sentencing court was bound by the enhancement provision of MCL 750.227b(l); MSA 28.424(2)(1), it is unnecessary to resentence the defendant for the felony-firearm sentence conviction on remand. All challenges to the felony-firearm sentence are moot, and the court’s failure to afford defendant a resentencing hearing when it amended the sentence was harmless error.
However, because the armed robbery sentence was based on inaccurate information in the presentence report, the defendant does have a right to be resentenced at a resentencing hearing with respect to the armed robbery conviction. On remand, the trial court may consider the new information regarding the prior felony-firearm as it chooses. The court may raise or lower the armed robbery sentence, or it may leave the sentence unchanged. And we repeat, the court is not bound to consider the length of the consecutive mandatory sentence for felony-firearm under Milbourn’s principle of proportionality because each sentence is a separate determination.
The judgment of the Court of Appeals is affirmed in part and reversed in part.
Mallett, C.J., and Brickley and Riley, JJ., concurred with Weaver, J.
MCL 750.529; MSA 28.797.
MCL 750.227b(l); MSA 28.424(2)(1).
The sentencing guidelines were initially computed at two to six years, and the trial court advised defendant that if he accepted the plea, he would he sentenced within that guidelines range. When the guidelines were actually calculated, however, the range was four to twenty years.
Under MCR 6.425(F)(3), this order constituted a timely claim of appeal.
Again, this sentence would be served before the six- to fifteen-year sentence for armed robbery.
The defendant did not attempt to withdraw his plea and did not challenge the accuracy of the prior felony-firearm conviction.
Unpublished opinion per curiam, issued July 12, 1994 (Docket No. 164256).
451 Mich 896 (1996).
Milboum articulated the principle of proportionality, a standard applied when reviewing whether a sentence challenged as excessive actually comports with the seriousness of the offense and the offender.
See also People v Kent, 194 Mich App 206; 486 NW2d 110 (1992), and People v Landis, 197 Mich App 217; 494 NW2d 865 (1992).
A similar issue was addressed by this Court in People v Thomas, 447 Mich 390; 523 NW2d 215 (1994), in which this Court, applying MCL 769.24; MSA 28.1094, held that a partially invalid sentence need not be wholly annulled, but rather may be set aside only in respect to the unlawful excess. Although there was no “unlawful excess” at issue in this case, the principle of Thomas, that even the maximum and minimum terms of a sentence may be adjusted independently, is even more logical when applied to adjustments of sentences for separate convictions.
In People v Corlin, supra, the court initially sentenced the defendant for possession of a controlled substance carrying a twelve-month term, but then realized that the conviction was of delivery of a controlled substance carrying a three- to seven-year term.
Certain modifications of valid sentences may be made “as provided by law.” For example, a trial court may modify a sentence under MCL 769.11b; MSA 28.1083(2), Michigan’s sentence credit statute, and under MCL 801.257; MSA 28.1747(7), authorizing trial courts to reduce a sentence by one-quarter for good conduct.
See, e.g., People v Maxson, 163 Mich App 467; 416 NW2d 247 (1987) (holding the fixing of a maximum sentence is a ministerial act). | [
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Weaver, J.
In this case we consider whether a witness’ prior inconsistent statements, which implicated the defendant, are admissible for impeachment purposes. The Court of Appeals found that the prior inconsistent statements were inadmissible hearsay that could not be used for the purpose of impeachment, reversed defendant’s convictions and remanded the case for a new trial. We reverse the judgment of the Court of Appeals, and remand with instructions.
i
After a jury trial in the Eaton Circuit Court, Robert Kilboum, the defendant, was convicted of two counts of assault with intent to do great bodily harm less than murder. The events giving rise to the charges related to the firing of a firearm into the home of Pamela and Gary McNamara. Testimony at trial established that on the evening of August 18, 1991, at approximately 8 o’clock, Mr. and Mrs. McNamara were walking outside their home when they heard loud noises coming from the direction of the Kilboum residence. According to Pamela McNamara’s testimony at trial, she and her husband saw several people at the Kilboum residence that appeared to be fighting. Mrs. McNamara immediately called the Eaton County Sheriff’s Department. Two deputy sheriffs responded to the call. No arrests were made. Mrs. McNamara testified that soon thereafter she received a threatening phone call from Robert Kilbourri, Sr.
Pamela McNamara further testified that on that same evening, at approximately 11 o’clock, she and her husband were awakened by a loud crashing noise in their kitchen. As Mr. McNamara got up from bed to investigate the noise, a gun went off, and a bullet passed directly over his head. Both Mr. and Mrs. McNamara retreated to the floor for safety. They heard an additional four to five shots being fired near or at their home.
Shortly thereafter, Deputy Michael Schnepp and Deputy Leland Taylor arrived at the McNamara residence in response to a “911” call from Mr. McNamara. At trial, Deputy Schnepp testified that when he arrived at the McNamara residence, he found both Mr. and Mrs. McNamara in their home, visibly terrified. After investigating the McNamara home, Deputy Schnepp discovered a broken axe handle just outside the broken kitchen window. He also observed several bullet holes in the McNamara home. Both Mrs. McNamara and Detective Leonard Benden testified that a trail of damage revealed that the miscreants had withdrawn from the McNamara residence in the direction of the Kilboum residence.
n
Robert Kilboum, Sr., the defendant’s father, was called as a witness in the State’s case in chief. Mr. Kilboum testified that on the day of the incident, he and his three sons — including the defendant — defendant’s girlfriend and friend, were at his trailer drinking, talking, and partying. According to Mr. Kilboum, he and his guests drank approximately three fifths and half a gallon of whiskey that evening. After police finished their inquiry into the report of domestic violence and noise at the Kilboum residence, Mr. Kilboum testified that he called the McNamaras simply to ask them to first call him before calling the police. He testified that Pamela McNamara became irate with him on the telephone, and that he did not threaten her in any way. Mr. Kilboum could not remember if he had discussed the phone call with any of his sons.
During the prosecutor’s direct examination of Mr. Kilboum, the following exchange regarding prior conversations between Mr. Kilboum, Sr., and Detective Bender occurred:
Q. [In] [o]ne of those conversations did you indicate to Detective Benden that Robert Wesley Kilboum [defendant] was responsible for the shooting?
A. No, I don’t.
Q. You don’t recall that?
A. No. I recall telling Detective Benden that Robert would turn himself in. That’s when Detective Benden told me that Craig had already called and admitted doing the shooting.
Later in the state’s case in chief, on redirect examination, the following exchange between the prosecutor and Detective Benden occurred:
Q. Sir, did you have a discussion with Robert Kilboum, Sr. on the telephone when you were trying to get everyone together to talk to them?
A. I had quite a few conversations with Mr. Kilboum on the phone.
Q. Directing your attention [to] the 26th of August 1991, did you receive a phone call from him?
A. Yes.
Q. On that date did he [Robert Kilboum, Sr.] indicate who was responsible for the shooting?
A. Yes.
Q. What did he state?
A. That little Bob [defendant] was the one who shot into the house.
Defendant objected to this questioning on the basis that the officer’s testimony regarding statements purportedly made by Mr. Kilboum was inadmissible hearsay. The trial judge overruled the objection, holding that it was admissible for impeachment purposes to contradict Mr. Kilboum, Sr.’s, previous in-court denial of making the statement. The trial judge instmcted the jury that the testimony of Detective Benden regarding Mr. Kilboum, Sr.’s, prior inconsistent statement could only be used to evaluate the credibility of Mr. Kilboum, Sr., and not to decide defendant’s guilt or innocence.
A jury found defendant guilty of two counts of assault with intent to do great bodily harm less than murder. The trial court judge sentenced defendant to 60 to 120 months in prison. The Court of Appeals reversed defendant’s convictions and remanded the case for a new trial. We granted leave to appeal, lim ited to the issue of admissibility of the prior inconsistent statement.
in
In reversing defendant’s conviction, the Court of Appeals held that the testimony by Detective Benden regarding out-of-court statements purportedly made by Robert Kilboum, Sr., which implicated defendant as the person who had shot into the victims’ house, was inadmissible. The Court of Appeals held that the statements were hearsay and “did not become admissible for impeachment purposes merely because the prosecutor had previously elicited a denial of the purported statements] by Robert Kilboum, Sr.” Unpublished memorandum opinion, issued September 22, 1995 (Docket No. 155397). In support of this, the Court of Appeals relied on People v Stanaway, 446 Mich 643; 521 NW2d 557 (1994). However, it apparently misread the rale set forth by this Court.
Under the current provision of MRE 607 the government can impeach its own witness. The general rule is that evidence of a prior inconsistent statement of the witness may be admitted to impeach a witness even though the statement tends directly to inculpate the defendant. United States v Miller, 664 F2d 94 (CA 5, 1981). People v Stanaway provided an exception to this mle: A prosecutor cannot use a statement that directly tends to inculpate the defendant under the guise of impeachment when there is no other testimony from the witness for which his credibility is relevant to the case.
In People v Stanaway, the defendant was charged with three counts of third-degree criminal sexual conduct, MCL 750.520d(l)(a); MSA 28.788(4)(l)(a), involving sexual intercourse with the complainant when she was fourteen years old. During the prosecution’s case in chief, Stanaway’s nephew was called to testify. When asked by the prosecutor if he had made a statement to Officer Peters regarding an incriminating statement Stanaway had made to the witness, the witness denied ever having made such a statement. The prosecution then called Officer Peters to the stand. The officer testified, over hearsay objections, that the nephew told the officer that Stanaway had said he had had sexual relations with a young girl and would be in a lot of trouble if caught. This Court held that the prior inconsistent statements could not be used to impeach credibility under MRE 613. The reasoning behind this is that the witness had no direct knowledge of any of the alleged incidents and was out of town at the time the incident would have occurred.
The rule set forth in People v Stanaway is that the impeachment should be disallowed when (1) the substance of the statement purportedly used to impeach the credibility of the witness is relevant to the central issue of the case, and (2) there is no other testimony from the witness for which his credibility was relevant to the case.
This is a very narrow rule and does not apply in the instant case. Although the substance of the statements used to impeach the credibility of the witness were indeed relevant to a central issue of the case, the second prong of the test was not met because there was other relevant testimony from the witness for which his credibility was relevant. Robert Kilbourn, Sr., testified about a number of events that took place before the shooting, and indeed was a key actor in some of these events.
The facts here are distinguishable from the situation in People v Ince, 21 F3d 576 (CA 4, 1994). In People v Ince, the court held that the probative value of the contradicting witness’ testimony for impeachment value was “nil.” The court noted in Ince that the witness’ in-court testimony did not affirmatively damage the government's case, and the prosecution had no need to attack her credibility. Id. at 581.
Here, there was at least one direct conflict between Mr. Kilbourn’s testimony at trial and that of another witness. Mr. Kilboum testified that when he phoned Mrs. McNamara he only asked the McNamaras to contact him before calling the police, and that he made no threats. Mrs. McNamara, on the other hand, testified that Mr. Kilboum had made a threatening phone call to her. We find that the officer’s testimony was admissible, because it could properly be used to impeach the credibility of Mr. Kilboum.
rv
Defendant also alleges that the testimony of Officer Benden was inadmissible because the testimony was designed to impeach Robert Kilboum, Sr., on a collateral matter. The record shows that no objection was made at trial on the grounds now asserted on appeal. It is well established that objections to admissibility not properly raised at trial cannot be later asserted on appeal. Marietta v Cliffs Ridge, Inc, 385 Mich 364, 374; 189 NW2d 208 (1971).
v
We reverse the Court of Appeals opinion vacating defendant’s conviction. We remand this case to the Court of Appeals for consideration of those issues that defendant had raised and the Court of Appeals did not address.
Mallett, C.J., and Boyle and Riley, JJ., concurred with Weaver, J.
MCL 750.84; MSA 28.279.
We note that the rule set forth in Stanaway is narrower than the similar rule in the federal courts. The federal courts have held that impeachment may not be used as a subterfuge to place otherwise inadmissible hearsay before the jury. United States v Rogers, 549 F2d 490 (CA 8, 1976). However, Stanaway is limited to hearsay statements that are relevant to the central issue of the case, not merely “otherwise . . . inadmissible hearsay.” Id. at 693.
At trial defendant objected to this testimony solely on the basis of hearsay. | [
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Per Curiam.
The defendant insurer paid benefits to the plaintiff after he filed a claim stating that he was disabled by sickness. When those benefits were soon to expire, the plaintiff sought to recharacterize his disability as the product of an injury. The defendant refused the reclassification, and the plaintiff sued. The circuit court granted summary disposition for the defendant, but the Court of Appeals reversed on the ground that the policies’ definition of “injury” was ambiguous. We reinstate the judgment of the circuit court.
i
Plaintiff Samuel A. Nehra, D.D.S., practiced dentistry for many years. It is agreed that he is disabled by carpal tunnel syndrome.
In 1982 and 1983, Dr. Nehra purchased disability insurance policies from defendant Provident Life & Accident Insurance Company. Both policies insured him against total disability due to “injury” or “sickness.” The policies contained these definitions:
Injuries means accidental bodily injuries occurring while your policy is in force.
Sickness means sickness or disease which is first manifested while your policy is in force.
The policies did not define “accidental bodily injuries.”
Under the policies, benefits for disability stemming from an injury were to be paid throughout the insured’s life, whereas benefits for a disability arising from sickness ended at age sixty-five.
In May 1985, Dr. Nehra submitted a claim for disability benefits under the policies. On the claim form, he answered questions related to a “sickness,” and left unanswered the questions relating to an “accident” or “injuries.” Asked for the “[n]ature and details of sickness,” Dr. Nehra answered:
Duodenal ulcer with hemorrhage; 4/24/85 — Bilateral carpal tunnel syndrome.
Provident began paying disability benefits after receiving the 1985 claim. Over time, the bleeding ulcer resolved itself, but the carpal tunnel syndrome continued.
In August 1987, Dr. Nehra sought to recharacterize his carpal tunnel syndrome as an “injury”-related disability rather than a “sickness.” However, Provident refused to recognize that reclassification. When Dr. Nehra turned sixty-five in February 1993, Provident stopped paying disability benefits.
Dr. Nehra filed an April 1992 action in circuit court, seeking a declaratory judgment that his carpal tunnel syndrome was an “injury.” After discovery, Provident moved for summary disposition on the ground that, as a matter of law, Dr. Nehra’s condition was not an “accidental bodily injury.”
The circuit court granted Provident’s motion. In doing so, it relied primarily upon no-fault insurance cases concerning “accidental bodily injury” in that context. For example, the Court of Appeals in Mollitor v Associated Track Lines, 140 Mich App 431; 364 NW2d 344 (1985), upheld a denial of no-fault benefits to a truck driver who had developed bilateral carpal tunnel syndrome, evidently from years of driving. The Court of Appeals in Mollitor (and the circuit court in the instant case) looked to Wheeler v Tucker Freight Lines Co, Inc, 125 Mich App 123, 127-128; 336 NW2d 14 (1983). In Wheeler, the Court of Appeals reached the same outcome — a denial of no-fault benefits — for a truck driver who was disabled by back problems that developed over nineteen years of driving trucks. The Wheeler panel of the Court of Appeals explained:
Beading the no-fault act as a whole, we conclude that the Legislature intended to authorize the payment of personal protection insurance benefits only for an injury sustained in a single accident, having a temporal and spatial location. Accordingly, we hold that “accidental bodily injury” as that phrase is used in the no-fault act is an injury resulting from only such an accident.
Dr. Nehra appealed, and persuaded the Court of Appeals to set aside the summary disposition that Provident had obtained in the circuit court.
The Court of Appeals said that the principles discussed in Mollitor and Wheeler were limited to the no-fault law. The Court’s decision to set aside the summary disposition was largely premised on a perceived ambiguity in the phrase “accidental bodily injuries”:
Although the contract attempts to define the term “injury,” the language employed may reasonably be interpreted as having multiple meanings. Put simply, it is unclear from the definition whether the cause or the results must be “accidental.” Such language is not clear and unambiguous. Read as a whole, the contract requires defendant to provide disability payments when plaintiff suffers an “accidental bodily injury” during the term the policy is in force. Unfortunately, the term “accidental bodily injury” was not defined in the policy. It is unclear whether the cause of the injury must be unanticipated or whether the resulting injury must be unanticipated. [Emphasis in original.]
In making the point, the Court of Appeals noted this passage from Collins v Nationwide Life Ins Co, 409 Mich 271, 275; 294 NW2d 194 (1980):
[A] distinction has arisen in many states between the term “accidental means” and the terms “accident,” “accidental death,” and, as used in the policy at issue, “accidental bodily injuries.” This distinction is succinctly explained in 10 Couch, Insurance (2d ed), § 41:28, pp 49-50.
“ [Accidental death is an unintended and undesigned result arising from acts voluntarily done, whereas death by accidental means is a result arising from acts unintentionally done or events undesignedly occurring. The term ‘accidental means’ refers to the occurrence or happening which produces the result, rather than the result; it is concerned with the cause of the harm rather than the character of the harm.”
After the Court of Appeals denied rehearing, Provident applied to this Court for leave to appeal.
n
The Court of Appeals is correct that words like “injury” and “accident” can have shifting meanings, depending on the factual context and the area of law in which they are being considered.
For instance, the field of worker’s compensation has a well-developed body of law regarding last-day-of-work injuries, a concept not common elsewhere in the law. As noted above, no-fault insurance benefits for “accidental bodily injury” are payable where there has been “a single accident, having a temporal and spatial location.” And the “sudden and accidental” exception to the pollution exclusion in general liability policies is interpreted so that “ ‘sudden’ includes both a temporal element and a sense of the unexpected” and “ ‘accidental’ means unexpected and unintended.”
The present case is less complex than the Court of Appeals has made it appear, however. Cases like Col lins (where an insured drank himself to a blood-alcohol level of 0.37 percent on November 29, 1973, and died of acute alcohol intoxication) present the issue whether foreseeable but unintended injuries suffered as the result of an intentional act (like Mr. Collins’ drinking) can be deemed “accidental.” Id. at 273. The present case is distinguishable because Dr. Nehra suffered no discrete injury. His own expert has ably explained that carpal tunnel syndrome is the product of prolonged repetition of hand movements. No single event caused the disability.
Dr. Nehra seeks disability benefits for an injury, which the policy defines as an “accidental bodily injur[y].” These are words of common understanding, and thus can be given their ordinary meaning. Heniser v Frankenmuth Mut Ins Co, 449 Mich 155, 161; 534 NW2d 502 (1995); Citizens Ins Co of America v Federated Mut Ins Co, 448 Mich 225, 237; 531 NW2d 138 (1995); Decker v Federal Life Ins Co, 272 Mich 20, 23; 260 NW 782 (1935).
It is true that, in unusual cases, the word “accident” can be ambiguous in the sense explained in Collins— the distinction between an accidental (unanticipated) cause and an accidental (unintended) outcome. However, the word is not ambiguous insofar as its ordinary meaning includes the temporal and spatial elements discussed in the no-fault cases. Thus, if Mr. Collins had drunk himself to death over many years, gradually eroding his vital organs, instead of poisoning himself on a single occasion, there would have been no “accident” in either of the senses discussed in Collins. Without the temporal/spatial component, the word “accidental” adds almost nothing to the phrase “accidental bodily injuries.”
In the present case, Dr. Nehra himself recognized the true nature of his disability when he initially identified it as a “sickness,” not an “accidental bodily injurfy].” The circuit court did not err in agreeing with this assessment.
For these reasons, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court. MCR 7.302(F)(1).
Mallett, C.J., and Brickley, Boyle, Riley, and Weaver, JJ., concurred.
Cavanagh, J., concurred only in the result.
Kelly, J., took no part in the decision of this case.
In deposition testimony, the plaintiff’s expert explained this syndrome:
The little bones that make up the wrist are called carpal bones. . . . There are eight. . . . [I]t’s a u-shaped configuration and then there’s a cap across . . . [s]o that makes a tunnel or canal. . . .
Now, what goes through this tunnel or canal are the two flexor tendons to each of the four fingers, so there are eight tendons, and then there’s an additional tendon, one from the thumb. . . . And then there’s an additional structure called the median nerve that passes through this tunnel or this canal. . . .
Now, normally there’s enough room inside this tuber canal so that there’s no pressure on the median nerve .... Around each one of these tendons, there’s normally a layer of tissue we call synovium that’s like wet tissue paper and it — and this is the problem. The problem occurs in this layer of synovium. It becomes inflamed and when it becomes inflamed it becomes maybe 100 times thicker, very, very thick, so this adds additional substance inside this tube and nerves don’t tolerate pressure.
. . . When we add substance to this inflammatory tissue, this synovial tissue, pack it inside this tube, then we’re adding pressure to that nerve that passes through it and we begin to develop symptoms.
Now, when we bend our wrist, that increases the pressure inside this tube. So people first notice their symptoms when they’re doing something where they’ve got their wrist bent, such as driving the car, talking on the telephone, reading, writing, fixing their hair, and we all sleep with our wrists bent. . . .
Now, if you add enough pressure inside this tube, it doesn’t make any difference whether your wrist is bent or whether it’s straight. You’ve got continuous pressure on this nerve and you get continuous symptoms. The more pressure you get, the more severe the symptoms. You not only get numbness and tingling, but you begin to get pain and the pain will follow that nerve, that nerve body, up into the forearm. It can go up as far as the elbow.
So, that’s what— .... [TJhat’s what you have when you have a carpal tunnel syndrome, and they’re all causing pressure on this nerve, which causes the symptoms that we get and we call carpal tunnel. That’s what it is.
The plaintiff’s expert also explained that “dentists are prone to this type of problem . . . .”
That is a bit of an oversimplification. The policies paid lifetime benefits for a disabling injury occurring before age sixty-five, and twenty-four months of benefits for a disabling injury occurring at or after age sixty-five. For a disabling sickness occurring before age sixty-five, the policies paid benefits to age sixty-five, but not less than twenty-four months. A disabling sickness occurring after age sixty-five would cause payment for twenty-four months.
Provident removed the case to federal district court, but that court remanded the matter to circuit court.
MCL 500.3101 et seq.; MSA 24.13101 et seq.
See MCL 500.3105(1); MSA 24.13105(1).
The plaintiff in Mollitor believed that his wrist problems were traceable to an occasion when he had experienced great difficulty opening a trailer door. The jury was instructed that no-fault benefits could be awarded for an injury attributable to a “single specific accident,” but that no-fault benefits “are not recoverable where the plaintiff’s condition results from a series of events.” Id. at 437. So instructed, the jury answered “no,” when asked whether the plaintiff had sustained accidental bodily injury.
Unpublished opinion per curiam, issued May 23, 1995 (Docket No. 167630), reh den August 3, 1995.
See MCL 418.301(1); MSA 17.237(301)(1).
Wheeler, 125 Mich App 127-128.
Auto-Owners Ins Co v City of Clare, 446 Mich 1, 12; 521 NW2d 480 (1994).
With slightly different policy language, this distinction was further explored in Rynerson v Nat’l Casualty Co, 203 Mich App 562; 513 NW2d 436 (1994).
Though unnecessary to our decision today, it appears that Collins is best limited to its peculiar facts. In Rynerson, the Court of Appeals noted that the Collins interpretation of the phrase “accidental bodily injuries” has twice been said to pertain only to the distinction between accidental and intentional injuries. Riestere v Crown Life Ins Co, 653 F2d 268 (CA 6, 1981), Skowronek v United Benefit Life Ins Co, 567 F Supp 63 (ED Mich, 1983), aff'd 754 F2d 167 (CA 6, 1985). Indeed, Skowronek found that “a closer look discloses that the Collins rationale was peculiarly suited to a death by voluntary alcoholic intoxication.” Id., p 65.
If “accidental” injury can occur naturally over a long period of time, then the only injuries that are not accidental are those that are intentionally inflicted.
That is, Dr. Nehra’s carpal tunnel syndrome was a sickness, as between a sickness and an accidental bodily injury. We do not hold that it could not, in another context, be deemed a chronic injury. | [
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Riley, J.
In this appeal, we address two issues: (1) what constitutes a “fixture” for purposes of the condemnation process, and (2) whether a condemnee can force the condemning agency to pay either the value-in-place or the detach/reattachment costs for his fixtures. We reaffirm the three-part test enumerated in Morris v Alexander, 208 Mich 387; 175 NW 264 (1919), for determining what constitutes a fixture. Property is a fixture if (1) it is annexed to the realty, whether the annexation is actual or constructive; (2) its adaptation or application to the realty being used is appropriate; and (3) there is an intention to make the property a permanent accession to the realty.
We further hold that a condemnee may receive either the value-in-place or the detach/reattachment costs for his fixtures. If the condemnee does nothing, he will receive the value-in-place for his fixtures because the condemning agency includes the value-in-place of fixtures when valuing the condemned realty. If the condemnee elects to remove his fixtures from the condemned realty, he will receive the cost of detaching the fixtures, moving them to his other realty, and reattaching them. For condemnees who make such an election, the just compensation paid for the condemned realty will simultaneously be decreased by the value-in-place of the fixtures. Thus, the proper measure of damages would be the value of the land as enhanced by the fixtures, less the value of the fixtures in view of the necessity of severing them, plus the cost of detaching and reattaching the fixtures. Accordingly, we affirm the decision of the Court of Appeals.
facts and proceedings
Defendants were owners of a one-acre parcel of realty located just west of the Detroit Metropolitan Wayne County Airport, where they operated several small industrial businesses in the industrial building located on the land. In 1992, in the course of acquiring 550 acres of land needed to expand the airport, plaintiff Wayne County offered defendants $188,580 as just compensation for the property pursuant to the Uniform Condemnation Procedures Act (ucpa), MCL 213.55; MSA 8.265(5). The offer was based on (1) the county’s appraised value of the real estate ($155,000), (2) the county’s appraised value-in-place of “immovable fixtures” ($13,075), and (3) the county’s appraised estimate of detach/reattachment costs for movable property ($20,505).
Defendants rejected the county’s offer on the basis of the county’s valuation of defendants’ movable property. The county subsequently filed a condemnation action in the Wayne Circuit Court. Defendants stipulated the necessity of the taking, leaving compensation as the only remaining issue. Defendants filed a motion to compel the county to honor their election to be compensated for their movable property on the basis of their value-in-place ($190,405), rather than detach/reattachment costs ($20,505). Defendants relied on SJI2d 90.20 and SJI2d 90.21 in making this election. The county objected, arguing that it was only obligated to pay defendants the lesser value of the cost of moving or the value-in-place for their movable property. The trial court, relying on SJI2d 90.20 and 90.21, ruled in defendants’ favor:
The Standard Jury Instruction regarding compensable business property, with regard to fixtures, equipment, machinery and personal property, you are to award the owner the present value-in-place of those items unless the owner has elected to remove some or all of them. Here, he’s not elected to remove them. Defendant’s motion is hereby granted.
The Court of Appeals subsequently affirmed the trial court’s decision. 211 Mich App 688, 692; 536 NW2d 598 (1995). It held that although the trial court “clearly erred in making its ruling solely on the basis of the Standard Jury Instructions,” it reached the right result “when it ordered plaintiff to honor defendants’ election to leave their trade fixtures in place and be compensated for their value in place.” Id. at 697. The Court of Appeals further defined “fixtures” according to the three-part test established in Morris, supra, and remanded for the trial court’s consideration of “whether the objects claimed by defendants to be movable fixtures and movable business property are fixtures and thus compensable on a value-in-place basis in a condemnation action.” Id. at 698. On October 30, 1996, this Court granted the county’s motion for leave to appeal. 453 Mich 927.
i
A
Both issues addressed by this Court concern questions of law. Accordingly, our review is de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
B
We first address whether the Court of Appeals was correct in defining “fixtures.” “[T]he term ‘fixture’ necessarily implies something having a possible existence apart from realty, but which may, by annexation, be assimilated into realty.” Kent Storage Co v Grand Rapids Lumber Co, 239 Mich 161, 164; 214 NW 111 (1927). The Court of Appeals defined the term fixture pursuant to the three-part test enumerated in Morris, supra at 390-391: Property is a fixture if the following three criteria exist:
“[First], annexation to the realty, either actual or constructive; second, adaptation or application to the use or purpose to which that part of the realty to which it is connected is appropriated; and third, intention to make the article a permanent accession to the freehold.”
We note that stocks of goods or personal property are clearly not fixtures. In re Widening of Gratiot Ave, 294 Mich 569, 577; 293 NW 755 (1940).
1. ANNEXATION TO REALTY
Annexation refers to
the act of attaching or affixing personal property to real property and, as a general proposition, an object will not acquire the status of a fixture unless it is in some manner or means, albeit slight, attached or affixed, either actually or constructively, to the realty. That is, if the object is not attached to the land or to some structure or appliance which is attached to it, it will retain its character as personalty even though intended for permanent use on the premises. [35 Am Jur 2d, Fixtures, § 5, p 703.]
If an object is not physically affixed to the realty, it may acquire the status of a fixture by constructive annexation. Id., § 11, p 707. This Court first addressed constructive annexation in Colton v Michigan Lafayette Building Co, 267 Mich 122; 255 NW 433 (1934). In Colton, Lafayette subleased from Shelby Land Company realty on which Lafayette erected an office building. After Lafayette defaulted, it surrendered possession of the building to Shelby and assigned to it all subleases with tenants in the building. Lafayette subsequently sought to recover from Shelby certain property it left in the building. This property included articles such as:
[1.] repair parts to elevator switchboard, elevator mgs, window shades, awnings, double doors and trim, base and shoe, red gum partitions, storm doors, elevator uniforms, window curtains, rubber matting, entrance mats, chain falls, Minneapolis thermostats and clock, wall case and mirror, [and] pump tanks for elevator [.]... [2.] unused supplies . . . such ... as paper towels, soap, paint, and electric light bulbs[;] . . . used supplies and detached equipment such as pails, mops, vacuum cleaners, ladders, electric grinder, drill press, etc. . . . [Id. at 127.]
The issue before us was whether those articles were fixtures or personal property. Our focus was whether those articles were constructively annexed to the realty. We held that the first set of articles were fixtures because their removal from the realty would impair both their value and the value of the realty:
These articles could not be removed from the building or transported from place to place without impairing their value as well as the value of the building. This building was erected for the purpose of renting stores and offices to the public and in order to be rentable must have various articles or accessories such as those listed above. [Id.]
As to the second set of articles, we concluded that they were personal property, characterizing them as “ordinary movable office furniture.” Id.
We next addressed constructive annexation in In re Slum Clearance, 332 Mich 485, 494-495; 52 NW2d 195 (1952), in which we considered whether the condemnee’s molten metal and solutions, used in melting pots (a fixture) to create plates, were fixtures. The specific issue was whether the molten steel and solutions were constructively annexed to the realty (or to a fixture on the realty). Relying on Colton, supra, we concluded that the molten metal and solutions were constructively annexed to the melting pots (a fixture on the realty) because the molten metal and solutions were useless without the melting pots and the melting pots were useless without the molten steel and solutions:
Under the circumstances of the instant case, the solutions and molten metal are trade fixtures, in the same category as the accessories and spare parts usable in connection with machinery but not actually affixed to the machinery or a part of land and buildings. The tanks are admittedly trade fixtures, but without the solutions they will not plate anything. The solutions are useless except for use in the plating tanks. They are used only in connection with the tanks, they are expressly made for the purpose and they are essential to the plating operation. The solutions are not sold and are not stocks of merchandise. We consider these solutions are analogous to the detached special parts of, or special tools for, a machine and like the machine (the tanks, in this instance) are constructively annexed to the freehold, and a part of the owner’s trade fixtures. The same applies to the contents of the melting pots. This liquid metal is used only as part of the plating operation and is a trade fixture.
The rationale used by this Court follows the approach used by other jurisdictions. We believe that the United States Court of Appeals for the Fifth Circuit succinctly stated the law of constructive annexation:
“The doctrine of constructive annexation has frequently been applied in the case of articles which are not themselves actually or directly annexed to the realty, but are part of, or accessory to, articles which are so annexed. Thus, where the principal part of the machinery is fixture due to actual annexation to the realty, the parts of it, although not actually annexed to the freehold, are fixture[s] where they would, if removed, leave the principal part unfit for use, and where of themselves they are not capable of general use elsewhere.” [Carmichall v United States, 273 F2d 392, 395 (CA 5, 1960), quoting 22 Am Jur 793, Fixtures, § 72.]
Hence, it is without dispute that Michigan, like other jurisdictions, recognizes the law of constructive annexation.
2. ADAPTATION TO THE USE OF THE REALTY
No Michigan case has addressed the adaptation prong of the fixture test. The Wisconsin Supreme Court aptly defined adaptation as “the relationship between the chattel and the use which is made of the realty to which the chattel is annexed.” Premonstratensian Fathers v Badger Mut Ins Co, 46 Wis 2d 362, 369; 175 NW2d 237 (1970) (storage coolers adapted to retail grocery store). The treatise, 35 Am Jur 2d, Fixtures, § 12, p 708, further explained:
[A]n object introduced onto the realty, may become a fixture if it is a necessary or at least a useful adjunct to the realty, considering the purposes to which the latter is devoted.
We find these authorities informative and a useful guide in developing our jurisprudence in this area.
3. intention to make permanent accession to the realty
This Court examines the objective visible facts to determine whether intention to make the article a permanent accession to the realty exists. Continental Cablevision v Roseville, 430 Mich 727, 736; 425 NW2d 53 (1988). The surrounding circumstances determine the intent of the party making the annexation, not the annexor’s secret subjective intent. Kent Storage Co, supra at 165. Intent may be inferred from the nature of the article affixed, the purpose for which it was affixed, and the manner of annexation. 35 Am Jur 2d, Fixtures, § 15, p 712; American Telephone & Telegraph Co v Muller, 299 F Supp 157, 159 (D SC, 1968); State Hwy & Transportation Comm’r v Edwards Co, Inc, 220 Va 90, 93-94; 255 SE2d 500 (1979); State Hwy Comm v Empire Building Material Co, 17 Or App 616, 625; 523 P2d 584 (1974).
c
Turning to the case now before us, we find that the Court of Appeals correctly held that Morris and its progeny is the proper test to determine what constitutes a fixture for condemnation purposes. Although the trial court did not specifically define what constitutes a fixture, it is clear from defendants’ motion for election and the trial court’s order granting that motion that the trial court considered all defendants’ movable property to be fixtures pursuant to SJI2d 90.20. Because SJI2d 90.20 permits a jury to con- elude that almost any piece of property is a fixture, which is contrary to the test enumerated in Morris and its progeny, we instruct trial courts to no longer use SJI2d 90.20. The trial court failed to apply the proper test. Accordingly, we affirm the decision of the Court of Appeals, which remanded the case to the trial court to determine which of defendants’ “movable business property” constitutes a fixture on the basis of Morris.
n
A
We next address whether the trial court and the Court of Appeals erred in holding that defendants could elect to receive either the value-in-place or the detach/reattachment cost of their fixtures.
The law of eminent domain is governed in Michigan by the constitution and by statute. Const 1963, art 10, § 2 obligates the condemnor of private property to render just compensation to the property owner:
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.
The ucpa “provides standards for the acquisition of property by an agency, the conduct of condemnation actions, and the determination of just compensation.” MCL 213.52(1); MSA 8.265(2)(1). Although § 5 of the ucpa mandates the condemning agency to make the property owner a good-faith offer of just compensation, see MCL 213.55(1); MSA 8.265(5)(1), the ucpa does not specifically define what constitutes just compensation.
This Court has stated that just compensation is given if the injured party is put in as good a position as he would have been if the injury had not occurred. In re Widening of Bagley Ave, 248 Mich 1, 5; 226 NW 688 (1929). “Just compensation should neither enrich the individual at the expense of the public nor the public at the expense of the individual.” In re State Hwy Comm’r, 249 Mich 530, 535; 229 NW 500 (1930).
The UCPA defines “property” as “land, buildings, structures, tenements, hereditaments, easements, tangible and intangible property, and property rights whether real, personal, or mixed, including fluid mineral and gas rights.” MCL 213.51(h); MSA 8.265(l)(h). Because fixtures enhance the value of the realty taken, the condemnor must include their value when valuing the realty. Gratiot Ave, supra at 573; In re Civic Center, 335 Mich 528, 534; 56 NW2d 375 (1953); Kent Storage Co, supra at 164-165 (whatever is affixed to realty becomes a part of the realty). However, if the owner of the land removes a fixture, the value of the realty must be decreased by the value of the fixture removed. Gratiot Ave, supra at 573. But, the award of just compensation must include the cost of detaching and reattaching the fixture because the value of the fixture as severed will be decreased. Id. Thus, the proper measure of damages would be the value of the land as enhanced by the fixtures, less the value of the fixtures in view of the necessity of severing them, plus the cost of detaching and reattaching the fixtures.
With regard to personal property (chattel), the condemnee is entitled to moving expenses. MCL 213.352(1); MSA 8.214(2)(1). The condemnee does not have a right of election in regard to personal property. “ ‘[Pjersonal property’ does not include a fixture, whether removable or not.” MCL 213.352(2); MSA 8.214(2)(2). The maximum payment to an individual or family cannot exceed $1,000; the maximum payment to a business cannot exceed $15,000. MCL 213.352(l)(a); MSA 8.214(2)(l)(a). However, these payment restrictions do not prohibit payments in accordance with applicable regulations for federal reimbursement. MCL 213.353; MSA 8.214(3). But, “[i]n no event shall more than 1 payment be made to the same occupant for the same occupancy.” Id.
B
Turning to the case now before us, the trial court and the Court of Appeals correctly concluded that defendants could receive either the value-in-place or the detach/reattachment cost for their fixtures. How ever, it is misleading to say that a condemnee elects to receive the value-in-place in lieu of the detach/reattachment costs. As discussed, fixtures become part of the realty taken for condemnation purposes. Their fair-market value is computed in the determination of just compensation for the condemned realty. Thus, a condemnee automatically receives value-in-place for his fixtures. If the condemnee chooses to take his fixtures with him, however, he receives the detach/reattachment costs (the just compensation for the realty is simultaneously decreased by the fair-market value of the fixtures). Accordingly, the election, if one is made, is an election to receive the detach/reattachment costs. Therefore, if a condemnee wishes to receive the value-in-place for his fixtures, he does not have to file a motion for election, as did defendants in this case.
The trial court, in holding that defendants were entitled to an election, relied on SJI2d 90.21. We note that SJI2d 90.21 is erroneous to the extent that it permits a condemnee to receive value-in-place for all “equipment, machinery and personal property.” As stated in this opinion, a condemnee is only entitled to value-in-place for fixtures, as defined by Morris and its progeny. For all other property, the condemnee is only entitled to moving costs. Accordingly, we instruct trial courts to no longer use SJI2d 90.21 as it is currently drafted.
m
We reaffirm the three-part test enumerated in Morris and its progeny for determining what constitutes a fixture. We further hold that a condemnee has the right to elect to receive the detach/reattachment costs of his fixtures, rather than the value-in-place he automatically is entitled to. Accordingly, we affirm the decision of the Court of Appeals.
Mallett, C.J., and Brickley, Cavanagh, Boyle, Weaver, and Kelly, JJ., concurred with Riley, J.
The value-in-place is the value of a fixture as attached to the realty. The detach/reattachment costs is the cost of detaching the fixture, moving it to the condemnee’s other realty, and reattaching it.
The parties repeatedly use the term “trade fixtures” in their briefs. It is clear from defendants’ motion to compel plaintiff to honor their election that they used that term to refer to movable machinery and equipment:
4. Mr. Britton owns various items of movable machinery and equipment intended to be permanently utilized in the business operation. See representative portions of the itemized list in the County’s apprais[a]l, Exhibit A.
5. For many years, volume condemning authorities such as the City of Detroit and the MDOT routinely offered owners of movable machinery and equipment (often called “trade fixtures”) an election as to how they would be compensated therefore] on an item by item basis ....
The “trade fixture” appraisal listed well over one hundred items, including the following: tanks, air compressors, forklifts, scales, storage racks, hose-braiding machines, pipe-threading machinery, hydraulic pumps, grinding machinery, and work tables. It also included such miscellaneous items as a coat tree, an electric clock, a first-aid ldt, file cabinets, a refrigerator, a metal folding chair, a flatbed truck, trash drums, and lawn mowers.
Despite the use of the term trade fixture by the parties and the Court of Appeals, this Court notes that a trade fixture is a fixture installed on a leasehold by a tenant that the tenant may remove at the termination of the lease. The concept has no legal application in this case. See In re Widening of Gratiot Ave, 294 Mich 569, 577; 293 NW 755 (1940); 9 Michigan Civil Jurisprudence (1992 rev vol), Fixtures, § 3, pp 415-416. If property, movable or not, satisfies the test enumerated in Morris v Alexander, supra, it is a fixture. If it does not satisfy that test, it is not a fixture.
Defendants asserted that they did not desire to restart their business at another location. Furthermore, defendants also did not claim that the taking included the “going concern value” of their company, i.e., the company’s goodwill. Therefore, we do not address that issue today.
SJI2d 90.20 provides:
The owner is entitled to be compensated for [his/her] fixtures, equipment, machinery and personal property.
The definition of fixtures or equipment or machinery for which compensation may be allowed is very broad. Fixtures are not limited to things actually attached to a building. Fixtures may include small machinery, even hand tools. The test is whether or not it was the intent of the owner to permanently use the item in the operation of [his/her] business. If the answer is yes, then the item is considered to be constructively annexed to the freehold, and a part of the owner’s equipment and fixtures for which compensation shall be allowed.
SJI2d 90.21 provides:
With regard to fixtures, equipment, machinery and personal property, you are to award the owner the present value-in-place of those items unless the owner has elected to remove some or all of them.
If the owner elects to move some or all of [his/her] fixtures, equipment, machinery and personal property, then as to those items moved you should award the total cost of removing those items and reinstalling them in a new location and the loss in value caused by the move.
However, if the cost of moving any particular item to a new location is greater than that item’s value-in-place, you cannot award in your verdict more than the value-in-place. In other words, the government cannot be required to pay more to move a particular item than that item is worth.
Improvements made by a tenant are to be valued on the basis of their useful life without regard to the term of the lease. [Emphasis added.]
See, e.g., Los Angeles v Times-Mirror Co, 219 Cal 198, 207; 25 P2d 826 (1933); Dudley v Hurst, 67 Md 44; 8 A 901 (1887); Wolford v Baxter, 33 Minn 12, 18; 21 NW 744 (1884).
Accession “implies a transfer of ownership and control over the property attached.” Id. at 737. This rationale is supported by a case decided by this Court one hundred years ago. In Lansing Iron & Engine Works v Wilbur, 111 Mich 413, 419; 69 NW 667 (1897), in holding that a boiler installed in a building was personal property and not a fixture, we explained that
“[t]here was nothing done by [the annexor] indicative of an intent to permit the machinery to be so annexed to the realty as to change its character. The state of the title to the realty, and the conduct of [the annexor] regarding the machinery, negatived any intent on his part to allow his interest in the machinery to be absorbed by the owners of the realty, or to permit it to be merged.”
See also 35 Am Jur 2d, Fixtures, § 6, pp 704-705; United States v Five Parcels, 765 F Supp 1283, 1285 (ED Mich, 1991); American Telephone & Telegraph Co v Muller, 299 F Supp 157, 159 (D SC, 1968); State Hwy & Transportation Comm’r v Edwards Co, Inc, 220 Va 90, 93-94; 255 SE2d 500 (1979) (objective test determines intent).
Defendants’ brief in support of their motion for election specifically referenced SJI2d 90.21.
Further, the trial court’s order granting defendant’s motion stated:
It is hereby ordered that Defendants’ Motion be, and the same hereby is, granted. Plaintiff shall honor the election of Defendants to be compensated for movable business property on a value-in-place basis. Plaintiff is hereby required to purchase Defendants’ movable fixtures on a value-in-place basis.
As mentioned in n 2, defendants’ movables included items such as a coat tree, an electric clock, and a first-aid kit. These items could only be characterized as a fixture pursuant to SJI2d 90.20: “The test is whether or not it was the intent of the owner to permanently use the item in the operation of [his/her] business.”
We further note that resolution of what constitutes a fixture is necessary to properly address the election issue. See Prudential Ins Co of America v Cusick, 369 Mich 269, 290; 120 NW2d 1 (1963) (holding that issues can be raised for the first time on appeal if its consideration “is necessary to a proper determination of a case”); MCR 7.316(A)(3) (“The Supreme Court may, at any time, in addition to its general powers .. . permit the reasons or grounds of appeal to be amended or new grounds to be added”).
SJI2d 90.20 provides, in part, that “Mixtures may include small machinery, even hand tools,” and that “[t]he test [used to determine what is a fixture] is whether or not it was the intent of the owner to permanently use the item in the operation of [his/her] business.” SJI2d 90.20 is quoted in full in n 4.
We also expressly overrule State Hwy Comm’r v Miller, 5 Mich App 591; 147 NW2d 424 (1967), and Algonac v Robbins, 69 Mich App 409; 245 NW2d 68 (1976), which stand for the same proposition as SJI2d 90.20.
As the Oregon Supreme Court concisely stated:
Where land is condemned for public uses, the value of buildings or other permanent improvements and fixtures on the land must be considered in determining the owner’s compensation to the extent that they enhance the value of the land to which they are affixed, the appropriator being required either to take the land with improvements he finds thereon, or to reject them in toto. No allowance can be made for personal properly as distinguished from fix tures affixed to the condemned realty. [State Hwy Comm v Superbilt Mfg Co, 204 Or 393, 412-413; 281 P2d 707 (1955).]
At oral argument, defendant asserted that it is unfair that condemnees must wait until trial on the just compensation issue to receive the value-in-place for the fixtures the condemning agency erroneously labeled as personal property. We acknowledge this inconvenience. However, we note that the condemnee is not without recourse because the condemning agency will ultimately be forced to pay the additional compensation, plus interest, and attorney fees up to one-third of the difference between its good-faith offer and the jury’s determination of just compensation. MCL 213.65; MSA 8.265(15) (interest on judgment); MCL 213.66(3); MSA 8.265(16)(3) (attorney fees).
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] |
Mallett, C.J.
In these combined cases, we must decide whether the Worker’s Compensation Appellate Commission acted within the proper scope of its reviewing power in concluding that the magistrates’ findings supporting the grant of benefits were not supported by competent, material, and substantial evidence on the whole record. In both cases, the WCAC reversed the magistrates’ awards and the Court of Appeals affirmed. We affirm in Goff and reverse in Dudley.
i
The questions presented concern the proper interpretation and scope of the “competent, material, and substantial evidence on the whole record” standard that the administrative tribunals are required by statute to apply in evaluating these cases. Because these determinations are often difficult and will have serious implications for future appeals, it is worthwhile to restate the concepts that form the basis of the Worker’s Disability Compensation Act and provide the background for our discussion today.
The wdca was enacted to be workers’ exclusive remedy for work-related injuries. MCL 418.131(1); MSA 17.237(131)(1). The act defines a work-related injury as
a disease or disability wMch is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arises out of and in the course of the employment. An ordinary disease of life to which the public is generally exposed outside of the employment is not compensable. 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 significant manner. [MCL 418.401(2)(b); MSA 17.237(401) (2) (b). ]
A finding that an injury has been significantly caused or aggravated by employment will depend on the “totality of all the occupational factors . . . .” Farrington v Total Petroleum, Inc, 442 Mich 201, 217; 501 NW2d 76 (1993). These factors include the claimant’s health circumstances and various nonoccupational factors.
When a work-related injury is established, the employer may automatically pay an award of benefits. In exchange, the worker refrains from pursuing tradi tional tort or negligence remedies. Weems v Chrysler Corp, 448 Mich 679, 707-708; 533 NW2d 287 (1995) (Cavanagh, J., concurring in part and dissenting in part). Finally, the wdca, intended as a remedial measure, must be “liberally construed to grant rather than deny benefits.” Sobotka v Chrysler Corp, 447 Mich 1, 20, n 18; 523 NW2d 454 (1994) (Boyle, J., lead opinion).
As the cases reveal, establishing a work-related injury is not always an easy task. A finding that an injury is work related only begins the inquiry. Each case turns on its own facts and involves credibility determinations made in the first instance by the presiding magistrate that turn on both lay and expert testimony. Because the findings of the magistrate are conclusive when supported by substantial, competent, and material evidence, it is critical that each reviewing tribunal, whether administrative or judicial, knows both how to apply the standard and its proper role in the process. The question we are faced with on judicial appellate review in each case is “whether the WCAC acted in a manner consistent with the concept of administrative appellate review that is less than de novo review in finding that the magistrate’s decision was or was not supported by competent, material, and substantial evidence on the whole record.” Holden v Ford Motor Co, 439 Mich 257, 267268; 484 NW2d 227 (1992).
A
Our analysis necessarily begins with art 6, § 28 of the Michigan Constitution, which provides in part, “[findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.” Accordingly, in 1985, the Legislature enacted the latest amendments of the wdca to provide- that
findings of fact made by a worker’s compensation magistrate shall be considered conclusive by the commission if supported by competent, material, and substantial evidence on the whole record. As used in this subsection, “substantial evidence” means such evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion. [MCL 418.861a(3); MSA 17.237(861a)(3).[ ]
The 1985 amendments eliminated de novo review by the commission. However, this less than de novo review by the WCAC still includes “both a qualitative and quantitative analysis of that evidence in order to ensure a full, thorough, and fair review.” MCL 418.861a(13); MSA 17.237(861a)(13). The whole record means everything: all the evidence both for and against a certain determination. MCL 418.861a(4); MSA 17.237(861a)(4). Finally, factual determinations of the commission, if acting within the scope of its powers, shall be conclusive,, absent any fraud. The Court of Appeals and this Court may only review questions of- law involved with the wcac’s final orders on application. MCL 418.861a(14); MSA 17.237(861a)(14).
In Holden, we stated that “[d]ue deference should be given to the administrative expertise of the WCAC, as well as to the administrative expertise of the magistrate. ... If the opinion is carefully constructed, a reviewing court should ordinarily defer to the collective judgment of the wcac unless it is manifest that it exceeded its reviewing power.” Id. at 268-269. However, where a party claims that the wcac has exceeded its power by reversing the magistrate, meaningful review must begin with the magistrate’s decision, because if competent, material, and substantial evidence based on the whole record supports the magistrate’s decision, the wcac need go no further. If it does, the wcac is exceeding its authority.
Application of this standard often results in confusion because it is difficult to define. In the statute, “substantial evidence” is defined as “evidence, considering the whole record, as a reasonable mind will accept as adequate to justify the conclusion.” MCL 418.861a(3); MSA 17.237(861a)(3). But it is quite possible that a reasonably minded magistrate could interpret a record differently than a reasonably minded wcac. However, if the magistrate’s conclusion is derived from competent, material, and substantial evidence, then the wcac may not substitute its judgment for that of the magistrate notwithstanding either the reasonableness or the adequacy of the commission’s conclusion.
B
In sharpening our understanding of the competent, material, and substantial evidence standard, we are guided by the principles that govern the Michigan Employment Relations Commission that were articulated in MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974), and highlighted in Holden. The statutory standards of adminis trative and judicial appellate review applicable to the MERC are codified in the labor mediation act and parallel those prescribed for the WCAC. MCL 423.23(e); MSA 17.454(25)(e). Detroit Symphony, supra at 121. In that case we also evaluated the scope of review and the differences between administrative and judicial review. We noted:
The cross-fire of debate at the Constitutional Convention imports meaning to the “substantial evidence” standard in Michigan jurisprudence. What the drafters of the Constitution intended was a thorough judicial review of administrative decision, a review which considers the whole record— that is, both sides of the record — not just those portions of the record supporting the findings of the administrative agency. Although such a review does not attain the status of de novo review, it necessarily entails a degree of qualitative and quantitative evaluation of evidence considered by an agency. Such review must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views. Cognizant of these concerns, the courts must walk the tightrope of duty which requires judges to provide the prescribed meaningful review. [Id. at 124.]
In Holden, we recognized that when the Legislature amended the WDCA, it did not incorporate this language into the substantial evidence standard: that “review by the WCAC is to be ‘undertaken with considerable sensitivity[,]’ . . . [accord] ‘due deference to administrative expertise[,]’ and to avoid displacing a ‘choice between two reasonably differing views.’ ” Holden at 267, quoting Detroit Symphony, supra at 124. Nevertheless, still persuaded by the wisdom and reasoning in Detroit Symphony, we held in Holden that “[d]ue deference should be given to the administrative expertise of the wcac, as well as to the administrative expertise of the magistrate.” Id. at 268. We also noted that the wcac must have some latitude if it finds that the magistrate’s decision was not supported in the record if there is to be any meaningful and effective review at all. Id.
Our role and the role of the Court of Appeals is to determine “whether the wcac acted in a manner consistent with the concept of administrative appellate review that is less than de novo review in finding that the magistrate’s decision was or was not supported by competent, material, and substantial evidence on the whole record.” Id. at 267-268. In performing that task, we noted in Holden and reiterate here that in assessing whether the wcac properly exercised its reviewing power, the Court of Appeals and this Court must consider the following: issues of credibility determined by the magistrate; evidence accepted and rejected by both the magistrate and the wcac; and the care, reasoning, and analysis employed by the magistrate and the wcac in reaching their conclusions. Id. at'268. We note that in conducting our review, this Court should “ordinarily defer to the collective judgment of the WCAC unless it is manifest that it exceeded its reviewing power.” Id. at 269. Accordingly, we developed a four-part guide to facilitate the review process in WDCA proceedings.
We do not now offer a judicial standard in exegesis of the legislatively stated standard. If it appears on judicial appellate review that the wcac carefully examined the record, was duly cognizant of the deference to be given to the decision of the magistrate, did not “misapprehend or grossly misapply” the substantial evidence standard, and gave an adequate reason grounded in the record for reversing the magistrate, the judicial tendency should be to deny leave to appeal or, if it is granted, to affirm, in recognition that the Legislature provided for administrative appellate review by the seven-member wcac of decisions of thirty magistrates, and bestowed on the wcac final fact-finding responsibility subject to constitutionally limited judicial review. [Holden at 269.[ ]
We believe that this test comports with the Michigan Constitution and the intent of the Legislature when it enacted its reform of the WDCA in 1985 that eliminated de novo review by the wcac. We also believe that this test comports with the notions of how meaningful review of administrative proceedings should proceed. We must be respectful of administrative expertise and conduct our judicial reviews so as not to undermine the authority of administrative proceedings. We further believe that this test will insure that substantial evidence review by the WCAC does not become de novo review by some other name in WDCA proceedings. With these principles in mind, we now turn to the cases at hand.
n
A
GOFF v BIL-MAR FOODS, INC
In Goff, the magistrate awarded benefits to the complainant who suffered a back injury at work. The WCAC reversed the magistrate’s award for lack of competent, material, and substantial evidence on the record. The Court of Appeals affirmed the decision of the wcac. We affirm also.
Grant S. Goff was hired by Bil-Mar Foods, Inc. in 1988, and was assigned to operate the “hapman.” This job required the continuous shoveling of twenty-five to thirty pounds of ground turkey from one large tank into smaller pots on wheels. The large tank held approximately 2,000 pounds, and each pot weighed 360 pounds when filled with meat. Upon filling the smaller pot with meat, the plaintiff would roll it approximately four feet to a mechanical lift, where, at the push of a button, it would be lifted, emptied, and lowered. The plaintiff would then push the pot back to the tank and begin the process again.
On the evening of October 25, 1989, after having worked at Bil-Mar for over one year, and while shoveling meat from the tank, the plaintiff said he suddenly blacked out and experienced intense pain in his back and legs. On this particular evening, the lift on the hapman was not functioning properly and had to be watched closely to prevent the pots from hitting the floor. This required the plaintiff to lift the pots up and down by hand to prevent further damage to the.' machine. Plaintiff indicated that he never had back-;, problems before working at this job, but that he now: • has chronic disabling back pain. ‘ ;
The plaintiff was treated initially by the company-.-:, physician, Dr. Chris, who treated him with Motrin and imposed certain restrictions. These included lifting’ :rio(.' more than twenty-five pounds, and no twisting, bend- '; ’ ing, or turning. However, the company did not folldw,: - through with the restrictions and plaintiff testified:, that he was still lifting over twenty-five pounds, i.es‘, ■. loading eighty-pound grinder blades and hauling trash. The plaintiff continued to work in pain uhtil, March 2, 1990, when he was assigned to organizing'1 á. ; cooler. Although he complained that his back- was,, ,. bothering him and that this task was more than his';, -: back could handle, he was given no alternative, othet-.. than to go home. The plaintiff finished the shift; in.: spite of increasing pain and did not return to work:' He received worker’s compensation benefits for sev--' enteen weeks. These payments were stopped after- . Dr. Robertson pronounced him fit for work.
The plaintiff petitioned for reinstatement of befte-:"-. fits. The magistrate granted continuing benefits after finding a work-related continuing partial disability,;.; despite serious doubts regarding the plaintiff’s credibility and the injury itself. The wcac reversed the ' award, finding no competent, material, and substam. ,. tial evidence in the record to support the award. After remand to the Court of Appeals from this Court for consideration as on leave granted, the Court of Appeals affirmed the decision of the wcac.
The plaintiff was evaluated by a parade of doctors and chiropractors, who found little or no objective evidence of the plaintiffs back problems. We will summarize the voluminous findings of the five doctors and one chiropractor who evaluated and treated the plaintiff. The plaintiff told all the doctors that he experienced tremendous back pain, pain down both legs, headaches, anxiety, stomach problems, weight loss, inability to stand erect, difficulty standing, walking, and driving, and difficulty sleeping.
After being treated at work by Dr. Chris, plaintiff sought treatment with Dr. Street, a chiropractor in Marshall, Michigan. Dr. Street referred plaintiff to Dr. Kilpatrick, a second chiropractor, who was located closer to plaintiffs home. Dr. Kilpatrick referred the plaintiff to Gary L. Miller, D.O., a neurologist, who treated the plaintiff between March 5, 1990, and May 16, 1990. Dr. Miller ordered a myriad of medical tests, including lumbar spine x-rays, a complete myelogram, and a CT scan, if indicated.
Dr. Miller found that the plaintiff had a “mild annular disk bulge at the L5-4 level and a suggestion that the left L-5 root was not filling as complete [ly]” as the right. However, after his examination, Dr. Miller concluded that this finding might account for some of the plaintiffs discomfort, but not all the other diffuse problems that he continued to experience. With the exception of this finding, the other tests and the clinical examination did not yield any significant findings to support the plaintiff’s complaints. Dr. Miller determined that plaintiff suffered from both persistent mechanical low back pain, likely related to discogenic disease in the lumbar spine, and primary fibromyalgia syndrome, which he treated with antidepressants and muscle relaxants. In his report to Dr. Kilpatrick, Dr. Miller recommended referring the plaintiff for biofeedback and pain-management techniques, and to Dr. Brink for treatment of depression. Dr. Miller concluded that he would not impose any restrictions on the plaintiff returning to work, but when pressed by opposing counsel, indicated that he might have suggested no heavy manual work. He urged the plaintiff to be as active as possible and to continue with physical therapy and taking aspirin.
At the request of his attorney, plaintiff was examined by Dr. James R. Glessner, a board-certified orthopedic surgeon. Dr. Glessner found that the patient had a list of the spine to the left that intensified with bending forward. Dr. Glessner concluded, after his examination and further testing, that “this man has [a] disc problem in his low back with probable nerve root irritability in the right lower limb; indeed he may have had some nerve root compression in the past. He has no demonstrable objective evidence of nerve root compression at present.” In addition, the x-rays of the plaintiffs lower back, ct scans, myelogram, cervical spine, and sacroiliac joint films, all were either negative or within normal limits. Dr. Glessner recommended lifting restrictions of twenty-five pounds or less, and retraining for a “less arduous-type of occupation in the future.” Dr. Glessner noted that the list was the only objective evidence of any nerve root irritability. On cross-examination during deposition, he agreed that there was no hard objective evidence of disc disease at present other than the list. He conceded that he based his findings on the plaintiffs physical and subjective complaints.
The plaintiff was evaluated by three medical examiners for the defendant. Depositions were taken from all three. J. Alan Robertson, M.D., D.C., examined the plaintiff on June 7, 1990. It was after this examination that benefits were discontinued. After an extensive physical examination, Dr. Robertson concluded:
Clinical examination of Mr. Goff’s person on today’s date does not demonstrate the presence of objective abnormality, either structurally or functionally, to his musculoskeletal system which would represent residuals of injury, regardless of their etiology.
Mr. Goff is not in need of treatment to Ms person for residuals of injuries to have been sustained secondary to the occupational events as .above described to me by Mr. Goff.
From today’s examination, I am unable to demonstrate the presence of objective abnormality to the person of Mr. Goff which would exclude him from the normal performance of those activities common to daily living to include personal hygiemc activities, household chores, recreational activities or gainful employment activities in the field of common manual labor. Mr. Goff does not require environmental modification, personal assistance or functional limitation in the performance of these activities. Mr. Goff is not physically disabled.
Dr. Robertson opined that the plaintiff could return to unrestricted labor, and that the plaintiff engaged in symptom amplification or magnification, to the extent that the symptoms were inconsistent with the objective findings after the clinical examination.
Arnold Eckhouse, D.O., evaluated the plaintiff on July 25, 1990. Dr. Eckhouse found no objective evidence to support the plaintiffs complaints and noted the patient’s nervousness. “I find that at the time of this evaluation, that all of his complaints are subjective in nature. He is extremely nervous, and there may be some functional overlay.” With reference to the L4-L5 bulge, Dr. Eckhouse indicated that it is not always medically significant and is “the price that we pay for walking on two feet.” Dr. Eckhouse disagreed with Dr. Glessner that the patient exhibited a disc problem with nerve root irritability and would not restrict the plaintiff’s work in any way because there were no objective orthopedic findings to justify any limitations.
Dr. Leslie A. Neuman, a board-certified neurologist, examined the plaintiff on December 10, 1990. He performed electrodiagnostic testing on the plaintiff, found all the results to be within normal limits, and concluded that there was no electrodiagnostic explanation for the plaintiffs back problems. Dr. Neuman also noted that plaintiff might be embellishing his symptoms because his examination did not follow “an organic pattern of one nerve root being affected.”
The magistrate found a continuing partial disability and granted a continuing award of benefits to the plaintiff. The magistrate reviewed the findings and opinions in the deposition testimony of the medical personnel who were called on to evaluate or treat the plaintiff. The magistrate also assessed the credibility of the plaintiff. Ultimately, the magistrate noted:
This brings me to a very troublesome aspect of this case. I am convinced that Plaintiff has not only deliberately magnified his current level of symptoms, but has falsely responded to certain clinical tests to manipulate the outcome of the examination. By a way of example:
During Dr. Robertson’s examination, he permitted straight leg raising in the supine position to 65 degrees. At that point, he contracted his leg muscles to prevent further movement. While in the prone position, he contracted his leg muscles to prevent a knee bend from heel to buttock. That is not a physiologic response. At another point, Plaintiff deliberately “froze up” his neck muscles as soon as he realized his neck was being evaluated for movement purposes ....
During Dr. Eckhouse’s examination, he complained of pain on supine straight leg raising at 20 degrees on the right and 40 degrees on the left. Yet, while seated, he accomplished 90 degrees straight leg raising without complaint.
During Dr. Neuman’s examination he complained of pain in all movements with both legs, with straight leg raising complaints at 50 degrees. He also presented “give away weakness” in the proximal muscles of both legs with intact strength distally. That is inconsistent with all of his history, findings and complaints. Weakness in his hip flexors and lateral rotators would relate to an upper lumbar problem ....
Both Dr. Miller and Dr. Eckhouse observed Plaintiff to be extremely nervous or tense and anxietous [sic]. Both observed Plaintiff to be tremulous. Dr. Glessner observed Plaintiff to be “quite protective” of his back. I surmise that there is an unexplored functional component of Plaintiffs symptoms.
The difficulty with this claim is to determine what significance to attach to Plaintiffs embellishments. I am aware that claimants often mistrust the compensation system and feel that they must exaggerate their symptoms in order to be found disabled. By the same token, claimants must preponderate with credible evidence. There is no clear road map to the right result in this case, and if I had only Plaintiffs credibility to rely on, he would probably lose.
However, on the basis of the circumstances leading to the injury, the list discovered by Dr. Glessner, and the bulge at L4-L5, the magistrate determined that the plaintiff should not return to unrestricted common labor and that there should be restrictions on lifting, bending, and twisting. Thus, the magistrate found the plaintiff to have a partial continuing work-related disability and ordered that continuing disability benefits be paid until further order of the bureau.
Bil-Mar appealed the decision to the WCAC on the grounds that there was not competent, material, and substantial evidence on the record to support the magistrate’s finding of a continuing work-related disa bility arising out of the injuries occurring in October, 1989, and March, 1990. The wcac agreed and reversed the award of benefits. The commission held that the magistrate’s reliance on Dr. Glessner’s findings was misplaced and unreasonable because the doctor’s conclusion was based on the plaintiff’s own subjective account. The WCAC quoted from Dr. Glessner’s report:
In summary, I think this man has disc problems in his low back with probable nerve root irritability in the right lower limb; indeed he may have had some nerve root compression in the past. He has no demonstrable objective evidence of nerve root compression at present. If his history was correct, the intense activity he was subjected to last October is probably responsible for his problem. [1993 Mich ACO 166, 169 (emphasis in original).]
The commission also discussed the L4-L5 bulge that four physicians concluded was not significant and could not adequately explain all the plaintiff’s complaints. Id. at 169-170. On the basis of lack of hard objective data in the record, the plaintiff’s embellishment of his symptoms, and the magistrate’s finding that the patient was somewhat incredible, the WCAC reversed the findings of the magistrate on the basis of a lack of competent, material, and substantial evidence in the record. We agree and note further that the application of the Holden test supports this result.
The WCAC carefully reviewed the record, including the opinion of the magistrate, the medical evidence, and the opinions of the doctors. It noted at the outset the magistrate’s concern with the plaintiff’s lack of credibility: “[I]f I had only Plaintiff’s credibility to rely on, he would probably lose.” Id. at 167. The WCAC then pointed out that the magistrate relied on the findings of one examining physician who, not only found no real objective evidence to explain the plaintiffs range of complaints, except for a list in his back, but based his opinion on the plaintiffs physical and subjective complaints. It is true that a magistrate can rely on the medical evidence found to be the most persuasive if there is a reasonable basis for that choice. Clark v Lakeview Community Nursing Home, 1992 Mich ACO 565. However, in this case, the WCAC concluded that the magistrate’s reliance on Dr. Glessner’s testimony was misplaced and unreasonable because the credibility of the information supplied to Dr. Glessner was suspect. This only served to undermine his testimony and supports the wcac’s finding that the magistrate’s decision was not based on competent, material, or substantial record evidence.
The wcac reversed the decision of the magistrate after noting the plaintiff’s obvious lack of credibility, the doctors’ findings that the plaintiff engaged in obvious symptom magnification, the plaintiff’s attempts to control the outcome of his physical examinations, and the doctors’ inability to find any objective explanation for the sum total of the plaintiff’s complaints. This decision was based on a qualitative and quantitative analysis of the whole record. To be fair, the doctors all noted the L4-L5 bulge, but indicated that this is not necessarily abnormal. The only other objective indication of any problem was the list noted by Dr. Glessner, but even in his medical opinion, there was no “demonstrable objective evidence” of a nerve root problem. Therefore, the findings of the magistrate could not be conclusive in this case because the magistrate’s decision was not reasonably supported by any material, competent, and substan tial evidence. Consequently, the WCAC correctly determined that it was not bound by the magistrate’s decision. Finally, we note that the WCAC provided an adequate reason for reversing the decision of the magistrate. The WCAC reviewed the whole record, including the findings of the magistrate and carefully and thoughtfully detailed the reasons for its reversal.
The Court of Appeals noted the proper but limited scope of its own review power. That is a review of only the findings of fact by the WCAC that are conclusive if supported by competent evidence on the whole record. In a brief opinion, the Court of Appeals evaluated the WCAC determination according to the guidelines stated in Holden and affirmed the decision of the WCAC. We affirm and hold that the WCAC properly applied the substantial evidence on the record standard and was justified in finding that the magistrate’s decision was not founded on competent, material, and substantial evidence and therefore could not be considered conclusive.
B
DUDLEY v MORRISON INDUSTRIAL EQUIPMENT CO
In Dudley, the magistrate granted an open award of benefits to the complainant after he suffered a back injury. The WCAC reversed for lack of competent, material, and substantial evidence on the record, and because it concluded that the magistrate should not have found the plaintiff to be a credible witness. The Court of Appeals affirmed the decision of the WCAC. We hold that the WCAC exceeded its authority and erred in reversing the decision of the magistrate. Accordingly, we reverse the Court of Appeals and reinstate the decision of the magistrate.
. George Dudley began working at Morrison Industrial Equipment Company in April, 1968, as a heavy equipment repairman. He previously spent twenty years in the military repairing forklifts. By his own reports, he was in “A-l condition” when he started at Morrison. He injured himself twice, while working on March 4, 1988. The first injury occurred when he reached for his sixty-pound tool box, after parking his truck. When he began to close the door of his truck, his foot slipped and he kicked his back. The next injury occurred later the same day while he was working on a forklift. In the process of checking for the source of an oil leak, he twisted and crawled underneath the lift in such a manner that his back started to hurt, so much so that it took him five minutes to get up. The plaintiff reported the injury to his supervisor and continued to work despite constant pain.
The plaintiff sought medical help with his family doctor, Dr. William Hughes. Dr. Hughes prescribed anti-inflammatory drugs and muscle relaxers, and told him to stay home from work and rest. He returned to work on July 18, 1988, and continued to work despite his pain until November 1988, when he reported loss of feeling in his right leg. Plaintiff also indicated that he was still lifting in excess of one hundred pounds. The plaintiff had received spinal injections for one month that relieved some of his pain, but, by May 24, 1989, his last day of work, the pain became so unbearable that he could not bend. This worsened after he lifted a 135-pound transmission from a truck. He did not return to work after this.
Mr. Dudley was seen by three doctors who testified by deposition. Dr. Hughes had treated plaintiff in his capacity as family physician for ten years. Dr. Hughes had examined the plaintiff in 1980 and noted that at that time, he had no “specific chief complaints.” However, during the course of that examination in response to the doctor’s inquiries, plaintiff told him that from time to time he experienced back stiffness. This was not a “presenting complaint, but were complaints elicited in the process of [the] exam.” This stiffness, however, did not keep the plaintiff from work, was not disabling, and was nonacute.
The plaintiff was treated by Dr. Hughes on March 8, shortly after his injuries at work. The doctor noted that the aggravating factor was the original work injury and that “before the day in question, 3-4-[88], he was able to work, and after the day in question, he was unable to work without pain.” At that time, Dr. Hughes made two diagnoses: acute lumbar myositis and degenerative lumbar disease. Dr. Hughes took the plaintiff off work temporarily. When the plaintiff went back to work it was with a fifty-pound lifting restriction. He also recommended that the plaintiff do bench work and small engine repair.
Dr. Hughes referred the plaintiff to Robert Schneeberger, D.O., to evaluate plaintiffs back. Dr. Schneeberger noted that it is not uncommon for a man plaintiffs age to have some arthritis, and that the strain and sprain he suffered at the time of his injury aggravated the underlying problem, which then became symptomatic.
At the defendant’s request, Dr. Arnold Eckhouse examined the plaintiff and concurred that he suffered from degenerative arthritis attributable to the aging process and everyday wear and tear. However, Dr. Eckhouse admitted that certain activities, like “bending, twisting, reaching, pulling, working in awkward positions, crawling,” if frequent and regular, could place additional stress on the spine and contribute to the degenerative process.
After considering the depositions and the testimony of the plaintiff, the magistrate granted an open award of benefits, holding:
I found Plaintiff to be a credible witness who did work as much as he could following his March 4, 1988 injury. I accept that he could no longer continue working after May 24, 1989 and that he has continuing disabling pain through the present. While Plaintiff did have a specific event injury on March 4, 1988,1 find his primary problem is a result [sic, of] 40 years of very heavy labor. I find that this heavy labor he did in the military and at Defendant significantly aggravated and contributed to the wear and tear arthritis in his low back.
The wcac reversed the decision of the magistrate on the basis of lack of competent, material, and substantial evidence on the whole record for two reasons. First, the wcac found that plaintiff was not a credible witness because of discrepancies in the histories that he gave to Drs. Hughes and Schneeberger. The plaintiff reported to Dr. Hughes that he developed sudden pain when he tried to get out from under the forklift; he told Dr. Schneeberger that the injury occurred while he was lifting and suffered such pain it threw him to his knees.
Second, the wcac noted that the plaintiff failed to mention previous back difficulty. He did not mention that the first time he saw Dr. Hughes in 1980 he reported some limitation of motion in the lumbar spine. Nor did he mention that on February 17, 1988, one month before his injury, he complained of “some mild low back discomfort” to Lenny Kurello, D.O., who had treated him for prostate cancer. Plaintiff had monthly visits with Dr. Kurello to monitor his progress after the prostate surgery. During this particular visit, he complained of some paresthesia, a burning sensation of the skin, on his legs. The doctor informed the plaintiff that this was a mild muscle spasm and to treat it with aspirin and a heating pad. The doctor also noted that the “[n] eurologic exam of the lower extremities shows entirely normal sensory motor function . . . .” The plaintiff did, however, testify upon questioning that he had some pain in the back once in a while “but nothing that was causing any disability,” and that he had noticed some numbness and tingling in his legs, but did not think it was excessive, and it did not keep him from working.
On the basis of the plaintiffs inconsistent accounts to the doctors and his previous back discomfort, the WCAC found that there was no evidence to support a finding that plaintiffs injury was work-related or that the employment significantly contributed to or aggravated his condition. The WCAC found further that the plaintiff’s condition was progressive in nature and that the medical evidence failed to substantiate workplace aggravation and, accordingly, reversed the award. The Court of Appeals agreed and held:
Plaintiff’s history of the March 4, 1988, injury was inconsistent. Dr. Schneeberger’s testimony to the effect that plaintiff’s condition was aggravated by the injury was based in large part on the inaccurate history given by plaintiff. Further, the magistrate failed to analyze the impact of plaintiff’s preexisting condition on his alleged disability, in spite of the fact that each physician acknowledged the existence of his degenerative arthritis. The wcac found that, given plaintiff’s lack of credibility regarding the March 4, 1988 injury, the evidence supported a finding that plaintiff’s condition was related to the aging process. [Unpublished opinion per curiam, issued June 23, 1995 (Docket No. 168027).]
We disagree. The wcac exceeded the scope of its statutory review power and erred in reversing the fact finding of the magistrate.
The magistrate found the witness to be credible, noting in his opinion that the plaintiff did have treatment for lower back stiffness in 1980, but that this was not the reason for the doctor visit and did not cause the plaintiff to miss work. The magistrate noted further that the plaintiff had no problems performing fully on the job until after the March 4 injury. Further, the plaintiff indicated that the new pain was in addition to the previously noted back discomfort. In his opinion, the magistrate only noted the injury that occurred when the plaintiff twisted his back getting out from under the forklift, although the record clearly indicates that there might have been a second injury that occurred when the plaintiff grabbed his tool box and kicked his back. The magistrate, relying on the diagnosis of Dr. Hughes, concluded that the heavy labor plaintiff performed in the military and for the defendant “significantly aggravated and contributed to the wear and tear arthritis in his low back.” In this case, the magistrate chose to rely on Dr. Hughes, the treating physician, and awarded the plaintiff benefits.
In reversing, the wcac noted that it generally defers to the magistrate’s finding with regard to the plaintiff’s credibility. It then concluded that here it could not do so because his testimony was at times inconsistent and suspect. The wcac concluded that if the plaintiff was giving inconsistent histories to different doctors, then the credibility of these medical opinions would be undermined. “We are cognizant of the fact that the Magistrate need not discuss ever[y] single aspect of the evidence presented below and that he is free to accept the medical testimony he finds most persuasive. However, there must be a rational basis for his reliance upon the same in order for us to affirm . . . .” 1993 Mich ACO 1295, 1297.
The Court of Appeals affirmed the decision of the WCAC. We reverse both the decisions of the Court of Appeals and the wcac, and hold that the wcac misapplied the substantial evidence standard and that the Court of Appeals erred in affirming. In applying our guidelines, we find that, in this case, the wcac improperly substituted its judgment for that of the magistrate, and we find its conclusion untenable.
The wcac examined the record but ignored certain important factors considered by the magistrate. None of the doctors disputed the fact that there was an underlying arthritic condition. However, they all ultimately concluded, though maybe not all eagerly, that the type of heavy labor that the plaintiff performed on a daily basis certainly could contribute to the condition and cause disabling symptoms where previously there were none. The magistrate noted that the plaintiff worked as much as he could after the March 4 injury and could not work because of disabling pain afterward. Unlike Goff, this case does not present a plaintiff with no objective evidence of a disabling condition. To the contrary, Mr. Dudley is a plaintiff with an underlying arthritic condition that, before the injury, was simply not disabling at all. The medical testimony does provide evidence of significant workplace aggravation of the underlying arthritic condition. The wcac did not base its decision on the evidence in the record as a whole and improperly substituted its judgment for that of the magistrate. The reliance of the magistrate on Dr. Hughes’ opinion as the treating physician was not unreasonable, and the magistrate’s finding that the previously nondisabling progressive arthritic disease process was significantly aggravated by plaintiff’s work was clearly based on competent, material, and substantial evidence on the record as a whole.
The wcac must be cognizant of the deference due the magistrate. Holden, supra. We find that the WCAC gave only passing lip service to this requirement. It ignored the medical opinions of the treating and examining physicians and rejected the credibility determination of the magistrate in a wholesale manner, in light of objective, palpable, and reliable objective evidence. Consequently, the WCAC both misapprehended and misapplied the substantial evidence standard. Finally, the wcac did not give an adequate reason grounded in the record for reversing the decision of the magistrate. Its conclusion did not reflect careful consideration of the whole record. Instead, it ignores the physicians’ conclusions and rejects the credibility determination of the magistrate. Because the findings of the magistrate were reasonably made on the basis of competent, material, and substantial evidence, they are conclusive, and the WCAC erred in overturning the award and impermissibly substituting its judgment for that of the magistrate. If the magistrate finds the witness to be credible, that judgment should not be overturned because the accounts of the witness’ history as reported by the examining physicians are inconsistent merely because the wcac disagrees.
In its opinion, the Court of Appeals merely restated the findings of fact of the wcac and summarily affirmed the decision of the wcac. It did not adequately assess whether the wcac properly exercised its reviewing power. Nor did it properly consider issues of credibility determined by the magistrate, evidence accepted and rejected by both the magistrate and the WCAC, or the care, reasoning, and analysis with which the magistrate and wcac reached their conclusions. Consequently, the Court of Appeals erred in affirming the decision of the WCAC overturning the award of the magistrate.
m
CONCLUSION
If the magistrate’s decision is reasonably supported in the record by any competent, material, and substantial evidence, then it is conclusive and the wcac must affirm. If it does not, it is exceeding the scope of its reviewing power and impermissibly substituting its judgment for the magistrate’s. In reviewing the magistrate’s decision, the wcac must do so with sensitivity and deference toward the findings and conclusions of the magistrate in its assessment of the record. If in its review the wcac finds that the magistrate did not rely on competent evidence, it must carefully detail its findings of fact and the reasons for its findings grounded in the record. If after such careful review of the record the WCAC finds that the magistrate’s determination was not made on the basis of substantial evidence and is therefore not conclusive, then it is free to make its own findings. In such circumstances, the findings of fact of the wcac are conclusive if the commission was acting within its powers. Ultimately, the role of the Court of Appeals and this Court is only to evaluate whether the wcac exceeded its authority.
These cases illustrate several aspects of the process of reviewing the determinations reached in administrative proceedings. First, these cases address the definition of the competent, material, and substantial evidence standard of review. Second, these cases force us to confront the scope of authority of the WCAC and, when it is permissible, to reverse a decision of the presiding magistrate. Third is the role of the judiciary in reviewing the determinations of the WCAC. Fourth and finally, though not by any means least of all, is the fact that the reviewing tribunals walk a tightrope between conducting a less than de novo review, yet performing one that considers qualitatively and quantitatively all the evidence for and against the determination. We are cognizant of the difficulty inherent in this task.
However, these cases represent one instance in which the wcac correctly applied the standard in its decision to reverse an award and one in which it exceeded its authority in doing so. These cases also illustrate one instance where the Court of Appeals correctly applied the appropriate tests and one in which it did not. We believe that these cases further define and clarify both the standards and the process of administrative and judicial review delineated in Holden. We are hopeful that these illustrations will serve as a more functional guide in future cases.
Brickley, Cavanagh, and Boyle, JJ., concurred with Mallett, C.J.
The only exception to this exclusive remedy is an action for intentional tort. MCL 418.131(1); MSA 17.237(131)(1).
For example, with reference to heart injuries some of the nonoccupational factors evaluated might include age, weight, diet, previous cardiac ailments or ipjuries, genetic predispositions, and the claimant’s consumption of alcohol and use of tobacco or other drugs. Farrington at 217, n 17.
This language became effective on October 1, 1986. Before that date, the act provided that “findings of fact made by a worker’s compensation magistrate shall be considered conclusive by the commission if supported by competent, material, and a preponderance of the evidence on the whole record.” MCL 418.861a(2); MSA 17.237(861a)(2).
MCL 418.861a; MSA 17.237(861a) provides in pertinent part:
(4) As used in subsections (2) and (3), “whole record” means the entire record of the hearing including all of the evidence in favor and all the evidence against a certain determination.
(10) The commission or a panel of the commission, may adopt, in whole or in part, the order and opinion of the worker’s compensation magistrate as the order and opinion of the commission.
(11) The commission or a panel of the commission shall review only those specific findings of fact or conclusions of law that the parties have requested be reviewed.
(12) The commission or a panel of the commission may remand a matter to a worker’s compensation magistrate for purposes of supplying a complete record if it is determined that the record is insufficient for purposes of review.
(13) A review of the evidence pursuant to this section shall include both a qualitative and quantitative analysis of that evidence in order to ensure a full, thorough, and fair review.
(14) The findings of fact made by the commission acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have the power to review questions of law involved with any final order of the commission ....
A look at the common definitions of the terms “competent,” “material,” and “substantial,” is instructive. Black’s Law Dictionary (6th ed), p 284, defines the term competent as “[d]uly qualified; . . . having sufficient capacity, ability or authority . . . .” “Competent evidence” is defined as “[t]hat which the very nature of the thing to be proven requires . . . ."Id. The term “material” is defined as “[¡Important; more or less necessary; having influence or effect . . . .” Id. at 976. “Substantial” is defined as “[o]f real worth and importance; of considerable value; . . . actually existing; real; . . . not illusive; solid; true; veritable.” Id. at 1428. The New World Dictionary, Second College Edition (1974), similarly defines “competent” as “well qualified; capable; fit . . . sufficient; adequate.” Id. at 289. “Material” is defined, among other things, as “important, essential, or pertinent . . . important enough to affect the outcome of a case . . . ."Id. at 874. “Substantial” is defined as “true; not imaginary . . . strong; solid; firm.” Id. at 1420. What can be gleaned from these definitions is that if the magistrate makes a finding or draws a conclusion on the basis of competent, material, and substantial evidence, which is solid, true, reliable, authoritative, capable, and can articulate this evidence from the record, then the decision of the magistrate may not be reversed.
“The findings of the commission with respect to questions of fact if supported by competent, material, and substantial evidence on the record considered as a whole shall be conclusive.”
Although we refused to adopt this analysis as a standard expounding on the legislative one in Holden, as we indicated in the first sentence, we do so now.
The large tank was approximately 4V2 feet deep and four feet square. The top of the tank came up to the bottom of his rib cage. The stainless steel shovel used by the plaintiff had a handle about 3lh feet long. The small pots were about 2Ih feet high and twenty inches square.
There seemed to be some question about this date. The plaintiff’s, 'reoí -! ollection was mistaken. The plaintiff thought the date was February-2, 1990; however, the corrected date, and the one relied on by the magis-- .-; trate, was March 2, 1990. I''i-.'-i
J. Alan Robertson, M.D., examined the plaintiff at the request of Crea-’.1.' tive Risk Management Corporation. CRMC is Bil-Mar’s insurer.
Dr. Street did not testify in this matter.
Fibromyalgia syndrome is related to an underlying depression, in which the patient magnifies pains and symptoms that when treated, the symptoms improve. It is defined as:
[M]usculoskeletaI pain and aching, with pain of the joints, axial skeleton, and muscles and neurovascular disorders being the chief complaints, all patients have multiple areas of local tenderness (tender points). Additionally, there are sleep disorders, morning stiffness, fatigue, subjective swelling, parathesias, and numbness. Headache and irritable bowel syndrome are frequently associated. The syndrome is usually observed between the ages of 40 and 60 years with an at least five female to one male ratio. [Jablonski, Dictionary of Syndromes & Eponymic Diseases, 1991.]
Dr. Miller noted that the plaintiff began to improve on the antidepressants and muscle relaxants, finding plaintiffs anxiety to be reduced; he gained weight and was sleeping better.
The plaintiff did not keep his appointment with Dr. Brink.
A “list” is a tilt to one side. New World Dictionary, n 5 supra, p 825.
This order included the cost of reasonable and necessary medical care, but not chiropractic services after June 7, 1990.
A recent decision by the Court of Appeals illustrates the correct analysis that the Court must employ in determining whether the WCAC exceeded its reviewing authority. In a thoughtful opinion by Judge Markman, the Court of Appeals affirmed the reversal of the magistrate’s award of benefits by the WCAC. Correctly applying the guidelines from Holden, the Court of Appeals held that the WCAC properly found that the magistrate’s decision was not based on substantial evidence. See York v Wayne Co Sheriff’s Dep’t, 219 Mich App 370; 556 NW2d 882 (1996).
Lumbar myositis is pain inflammation and stiffness along the lumbar muscle groups of the lower back. Degenerative lumbar disease is arthritis.
The prostate surgery took place during the summer of 1987.
Recall, however, the deposition testimony of the two other examining physicians, which is not mentioned in the magistrate’s opinion but supports his finding nonetheless. Both Drs. Schneeberger and Eckhouse found it not unusual that a man of the plaintiffs age would have some arthritis. Dr. Schneeberger opined that the strain and sprain suffered at the time of the injury aggravated the underlying problem, which then became symptomatic. Dr. Eckhouse opined that the arthritis was caused by the aging process and everyday wear and tear, although even he admitted that frequent and regular bending, twisting, reaching, pulling, crawling, and working in awkward positions could place additional stress on the spine and contribute to the degenerative process. See ante at 531.
The WCAC makes much of what it says are inconsistent accounts of the injury by the plaintiff to the doctors and the fact that the plaintiff concealed his ongoing back problems. However, the record indicates two incidents occurring on the same day that may have contributed to the patient’s injury. The first occurred when he lifted his tool box, the second when he was under the forklift. The plaintiff readily testified about both of these, and the magistrate had no problem reconciling the fact that Drs. Schneeberger and Hughes did not record them in an identical manner. Further, the WCAC seemed convinced that the plaintiff was deliberately concealing previous back problems. The plaintiff did discuss his previous back difficulty when questioned and noted that at no time were these problems disabling, nor did they ever reach a point where he could not work.
The Court of Appeals concluded:
In this case, the WCAC found that the magistrate’s credibility determination was not supported by the requisite substantial evidence. This Court reviews the WCAC’s finding to determine if it is supported by competent evidence. Holden, supra. We conclude that the WCAC’s finding is so supported. Plaintiff’s history of the March 4, 1988, iryury was inconsistent. Dr. Schneeberger’s testimony to the effect that plaintiff’s condition was aggravated by the iryury was based in large part on the inaccurate history given by plaintiff. Further, the magistrate failed to analyze the impact of plaintiff’s preexisting condition on his alleged disability, in spite of the fact that each physician acknowledged the existence of his degenerative arthritis. The WCAC found that, given plaintiff’s lack of credibility regarding the March 4, 1988 iryury, the evidence supported a finding that plaintiff’s condition was related to the aging process. The physicians’ testimony regarding plaintiff’s preexisting condition supported this finding.
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Per Curiam.
The parties attempted to resolve this commercial dispute through arbitration. However, the agreement contained an invalid clause. For that reason, the Court of Appeals set aside a circuit court judgment that was based on the arbitration agreement.
We agree with the dissenting judge in the Court of Appeals that the remedy ordered by the court is inappropriate in this case. We therefore vacate the judgment of the Court of Appeals, and remand the case to the Court of Appeals for consideration of the issues raised by the parties in their briefs on appeal.
i
In May 1982, McKinlay Transport, Inc., bought the U.S. Truck Company, Inc., and several smaller trucking companies that were wholly owned by U.S. Truck. The sale was formalized with a thirty-six-page “stock purchase agreement.” Among the signatories was plaintiff Wilber M. Bracker, Jr., who was representing the shareholders of U.S. Track.
Basically, the stock purchase agreement called for McKinlay to pay ninety percent of the “consolidated book value net worth” of U.S. Track. The agreement explained the manner in which accountants would determine that figure. Further, the agreement provided for arbitration if there were a dispute regarding the work of the accountants:
2.3 Dispute Over Accounting Matters. If Buyer shall dispute any accounting matter, notice in writing thereof shall be given to Accountants within 60 days from the receipt of the Examination referred to in Paragraph 2.1. Within 45 days after receipt of such notice, said dispute shall be submitted to arbitration by a national accounting firm chosen by Buyer and approved as to competency by Accountants. The decision of such arbitrator shall be final and binding and its fees shall be divided equally between Buyer and Seller. Any questions of contract 'interpretation shall be determined by the Circuit Court for the County of Macomb, State of Michigan, which shall be deemed a court of competent jurisdiction and proper venue to hear such disputes.
Such a dispute did arise. The auditor found the “book value net worth” to be $1,900,167, but McKinlay did not accept the figure. Instead, it exercised its right to arbitration.
McKinlay chose Deloitte, Haskins & Sells as the arbitrator. In November 1984, McKinlay and Deloitte were sued in circuit court by Gerald F. Whitmore, who was then representing the U.S. Track shareholders. Mr. Whitmore sought injunctive and declaratory relief in the form of an order that would bar the selection of Deloitte. Mr. Whitmore alleged that McKinlay and Deloitte shared a “close business relationship” that would prevent Deloitte from functioning as an impartial arbitrator.
The circuit court disqualified Deloitte, and proceedings regarding the selection of an arbitrator continued for years. In June 1989, the Court of Appeals ruled that the circuit court did not err in disqualifying Deloitte. In its opinion, the Court of Appeals also found that McKinlay could proceed to arbitration, rejecting Mr. Whitmore’s argument (presented to the circuit court in an unsuccessful motion for summary disposition) that McKinlay had waived its right to arbitration.
Following the June 1989 decision by the Court of Appeals, the parties stipulated in August 1989 that Seidman & Seidman would be the arbitrator. Seidman’s corporate successor, Bdo Seidman, later undertook the arbitration.
The claim against Deloitte was dismissed with prejudice in October 1989.
An early step in the arbitration proceedings was a February 1990 order, entered by stipulation, adopting “rules of arbitration.” Those rules included the following provisions:
7. ... All disputes concerning discovery, or lack thereof, shall be resolved by the Macomb County Circuit Court.
12. The arbitrator may submit any issues of Contract interpretation in writing to the Court.
13. At such time as the arbitrator determines that it has all of the information necessary for it to make a decision, it shall notify the parties that the hearing is closed.
14. The arbitrator shall have forty-five days from the date the hearing is closed in which to reach a decision. An extension of an additional forty-five days may be granted upon agreement of both parties.
15. In the event of a conflict between the requirements of Generally Accepted Accounting Practices (hereinafter “GAAP”) or the terms of the Contract, the terms of the Contract shall govern.
16. In the event any adjustment to the Consolidated Book Value of the U.S. Truck Company, Inc. (hereinafter “CBV”) rests on an interpretation of the contract disputed by the parties, the arbitrator shall submit its findings in the alternative, setting forth the manner in which the alternate interpretations affect the calculation.
17. The arbitrator shall compute a total adjustment, if any, to the CBV and submit it, along with its findings, in writing, to both parties by first class mail at the addresses set forth herein.
18. The parties shall have twenty days, from the date of mailing, in which to file, with the Court and the Arbitrator, an objection to the arbitrator’s findings.
19. In the absence of objections, judgment shall enter on the arbitrator’s findings.
20. In the event of objections, the Court shall consider and rule on the objections in light of the provisions of the Contract, the prevailing law, and these rules and either affirm the decision of the arbitrator in whole, accept one of the alternative calculations prepared by the arbitrator, or issue an interpretation of any provision of the Contract in dispute and resubmit the matter to the arbitrator for reconsideration of the matter in light of the Court’s interpretation.
21. The failure of any party to comply with the requirements of these rules or any order of the Court implement ing these rules shall constitute a waiver of the right to arbitration.
In February 1991, Bdo Seidman sent a seven-page letter to the circuit court framing two issues regarding the proper interpretation of the contract. Six weeks later, the circuit court rendered its opinion regarding those issues. Subsequent opinions and orders of the circuit court resolved Mr. Whitmore’s motion for settlement of the order and McKinlay’s motion for rehearing.
In December 1991, Bdo Seidman submitted its thirteen-page findings. With regard to one portion of the agreement (pension liability), Bdo Seidman presented two alternative calculations, depending on the circuit court’s interpretation of a paragraph of the stock purchase agreement.
Mr. Whitmore then filed a motion in which he asked the circuit court to adopt the second alternative calculation. McKinlay’s response to the motion included objections to the report of the arbitrator.
In March 1992, the circuit court accepted the second alternative calculation (the one preferred by Mr. Whitmore), and made other rulings regarding the report of the arbitrator. An April 1992 order denied McKinlay’s objections and granted Mr. Whitmore’s motion regarding the proper interpretation of the contract.
At this point, McKinlay filed a claim of appeal.
Mr. Whitmore then moved in the circuit court for entry of judgment and for an order allowing it to draw on a letter of credit that had been submitted to secure the purchase price. The circuit court granted the motion in May 1992. Judgment for Mr. Whitmore entered in June 1992 for an amount somewhat less than $3 million.
Following entry of the June 1992 judgment, McKinlay filed a second claim of appeal.
The Court of Appeals vacated the judgment of the circuit court in July 1995. 212 Mich App 334; 537 NW2d 474 (1995). Judge O’Connell dissented from the Court of Appeals opinion, and from its later denial of rehearing.
The plaintiff has applied to this Court for leave to appeal.
n
The Court of Appeals majority reasoned that the arbitration in this case was statutory arbitration under MCL 600.5001 et seq.) MSA 27A.5001 et seq. That conclusion is drawn from the fact that paragraph nineteen of the previously quoted rules of arbitration stated that judgment could enter on the arbitrator’s findings. See Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 495; 475 NW2d 704 (1991).
The majority concluded, however, that the arbitration agreement was invalid because it called for questions of contract interpretation to be decided by the circuit court. 212 Mich App 341-343. The Court of Appeals explained that statutory arbitration is governed by the statute and MCR 3.602. MCL 600.5021; MSA 27A.5021 provides that “arbitration shall be conducted in accordance with the rules of the supreme court,” and MCR 3.602 provides only a limited role for the circuit court. Thus, only the arbitrator can interpret the contract. Dick v Dick, 210 Mich App 576, 588-589; 534 NW2d 185 (1995); Kaleva-Norman-Dickson School Dist No 6 v Kaleva-Norman-Dickson School Teachers’ Ass’n, 393 Mich 583, 591; 227 NW2d 500 (1975).
The Court of Appeals vacated the circuit court’s judgment, apparently setting aside entirely the arbitration and its result:
To allow parties to create their own arbitration devices after invoking statutory arbitration would create uncertainty regarding the scope of the arbitrators’ authority and the scope of the authority of circuit courts. Further, the efficiency and reliability of arbitration, two important reasons why parties may wish to forgo the use of courts of law, would be disrupted if the parties could create their-own arbitration devices. Accordingly, we conclude that the arbitration agreement and the rules of arbitration adopted by the parties are not enforceable at law because they do not comply with the applicable court rule and statutes.
We vacate the trial court’s order of April 6, 1992, and the judgment and order of June 8, 1992. Should the parties agree to arbitration, then they must do so in accordance with the applicable court rule, MCR 3.602, and statutes, MCL 600.5001 et seq.; MSA 27A.5001 et seq. [212 Mich App 343.]
Writing in dissent, Judge O’Connell said that the case was much simpler than the majority seemed to believe:
I respectfully dissent. The present dispute is no Gordian knot, and requires no fatal sword stroke to resolve. Rather, by addressing the one flaw contained in the agreement, the involvement of the circuit court, the knot quickly unravels. [212 Mich App 343.]
Judge O’Connell thought it inexplicable that the majority cited Dick, since the remedy in Dick was to strike the legally unenforceable provision from the arbitration agreement, enforcing the remaining portions of the agreement. 212 Mich App 344. Judge O’Connell concluded:
I would treat the arbitration agreement presently in issue as this Court treated the arbitration agreement in dispute in Dick. I would strike the clauses that are contrary to the statutory arbitration act, MCL 600.5001 et seq.; MSA 27A.5001 et seq., that is, ¶ 20 and portions of ¶¶ 7 and 18. We would then be left with a wholly valid and enforceable arbitration agreement, as was the result in Dick. The matter would be remanded to the arbitrator for prompt resolution of the issues unlawfully submitted to the circuit court. Further review would be limited to that provided for in the statutory arbitration act.
More generally, it is clear from the arbitration agreement that the intention of the parties was to arbitrate their dispute. For the majority to declare the entire agreement invalid only frustrates the intention of the parties, who are still litigating the sale of a business that took place thirteen years ago._
[Id.]
m
Because civil litigation can be lengthy, expensive, and stressful, it is employed only to resolve disputes that cannot be concluded by any other peaceful method. Thus, parties who can locate an alternative method of dispute resolution are encouraged to bypass the courts and use other appropriate means.
In locating an alternative means of dispute resolution, the parties are generally free to craft whatever method they choose. All sorts of private conciliation, mediation, and arbitration devices are available. What parties are not able to do, however, is reach a private agreement that dictates a role for public institutions.
An arbitration agreement (or a set of arbitration rules) that calls for entry of a circuit court judgment must conform to the statute and the court rule. The Court of Appeals is also correct that MCR 3.602 (which controls under MCL 600.5021; MSA 27A.5021) does not allow the parties to use the courts as a resource that will issue advisory opinions to guide the arbitrator through the more difficult portions of the task. See Dick, supra. Thus, as explained by the Court of Appeals, paragraph 2.3 of the arbitration agreement and several of the “rules of arbitration” are invalid.
We agree with Judge O’Connell, however, that it would be unnecessary and improvident to reject entirely the arbitration agreement in this case. Our ruling today concerns an arbitration agreement executed in 1982, and implemented by rules of arbitration that were adopted by stipulation and executed without protest by the parties and the circuit court. From these events, we can discern neither prejudice to any party nor significant harm to the integrity of the court system. Accordingly, our analysis of the arbitration issue raised sua sponte by the Court of Appeals is prospective, and does not affect the stipulated manner of arbitration adopted by the parties in this case.
For these reasons, we vacate the judgment of the Court of Appeals, and remand the case to the Court of Appeals for consideration of the issues raised by the parties in their briefs on appeal. MCR 7.302(F)(1).
Mallett, C.J., and Brickley, Cavanagh, Boyle, and Weaver, JJ., concurred.
Riley and Kelly, JJ., took no part in the decision of this case.
The parties executed a November 1982 supplement to the agreement. The present dispute does not concern the terms of the supplement.
Mr. Whitmore had assumed that role from Mr. Bracker, because the latter was experiencing health problems.
Whitmore v McKinlay Transport, Inc, unpublished opinion per curiam of the Court of Appeals, issued June 27, 1989 (Docket No. 98441).
Court of Appeals Docket No. 151588.
The judgment stated that it “may be presented to Michigan National Bank of Detroit, to effectuate a draw as contemplated under the Letter of Credit No. 7686-A.” McKinlay moved for a stay pending appeal, but it appears that the motion was denied by the circuit court. Later efforts at collection proved frustrating, and the file contains papers as late as 1993, reflecting Mr. Whitmore’s efforts in this regard.
Court of Appeals Docket No. 153991. During the pendency of this matter in the Court of Appeals, Mr. Whitmore died. The Court of Appeals granted a motion to substitute Mr. Brucker as the plaintiff.
Reh den November 3, 1995 (Docket Nos. 151588, 153991).
(1) All persons, except infants and persons of unsound mind, may, by an instrument in writing, submit to the decision of 1 or more arbitrators, any controversy existing between them, which might be the subject of a civil action, except as herein otherwise provided, and may, in such submission, agree that a judgment of any circuit court shall be rendered upon the award made pursuant to such submission.
(2) A provision in a written contract to settle by arbitration under this chapter, a controversy thereafter arising between the parties to the contract, with relation thereto, and in which it is agreed that a judgment of any circuit court may be rendered upon the award made pursuant to such agreement, shall be valid, enforceable and irrevocable save upon such grounds as exist at law or in equity for the rescission or revocation of any contract. Such an agreement shall stand as a submission to arbitration of any controversy arising under said contract not expressly exempt from arbitration by the terms of the contract. Any arbitration had in pursuance of such agreement shall proceed and the award reached thereby shall be enforced under this chapter.
(3) The provisions of this chapter shall not apply to collective contracts between employers and employees or associations of employees in respect to terms or conditions of employment. [MCL 600.5001; MSA 27A.5001.]
Paragraph 12 need not be struck. It provides only that “[t]he arbitrator may submit any issues of Contract interpretation to the Court” (emphasis supplied). Because the language is permissive, the statutory arbitration act is not necessarily violated by its inclusion._
An unresolved civil dispute can be heard in court if one party flies a complaint that states a claim on which relief can be granted. Either before or after the complaint is filed, the parties can simplify the dispute by a partial settlement, or by agreeing that part of the dispute will be resolved by arbitration. The remaining portion of the dispute can be resolved by a court if, again, there is a claim on which relief can be granted. Later enforcement of a partial settlement or arbitration award is subject to familiar principles of law, including MCL 600.5025; MSA 27A.5025:
Upon the making of an agreement described in [MCL 600.5001; MSA 27A.5001], the circuit courts have jurisdiction to enforce the agreement and to render judgment on an award thereunder. The court may render judgment on the award although the relief given is such that it could not or would not be granted by a court of law or equity in an ordinary civil action.
The problem in this instance is that the parties produced a sales agreement and arbitration rules that called on the circuit court to take a role unrelated to any properly pending litigation (recall that this case came to circuit court on the question, long ago resolved, whether McKinlay could select Deloitte as the arbitrator).
Mr. Brucker argues, on several bases, that this case involves common-law arbitration, not statutory arbitration. See F J Siller & Co v City of Hart, 400 Mich 578, 581; 255 NW2d 347 (1977), and Frolich v Walbridge-Aldinger Co, 236 Mich 425, 429; 210 NW 488 (1926). However, that distinction does not aid him in this case, since private parties remain unable to expand the authority of the circuit court. | [
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Per Curiam.
The plaintiffs sued the Attorney General for defamation, but the circuit court granted summary disposition on the ground that he is immune from tort liability when acting within the scope of his executive authority. The Court of Appeals reversed. We agree that the Attorney General is immune from this suit, and we therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the Court of Claims.
i
In the mid-1980s, the Attorney General conducted a “sting” operation to determine whether some independent transmission shops were doing unnecessary work. In part, the investigation stemmed from a con-cem expressed by the General Motors Coiporation that shops were taking advantage of a federal consent order that required GM to pay for needed repairs to one of its transmission models.
General Motors played a significant role in the Attorney General’s investigation, providing vehicles, transmissions, and office space. However, its involvement evidently was not disclosed, even in 1986 when Attorney General Frank J. Kelley went public with the results of the investigation, and began administrative action to revoke licenses of several transmission shops.
Five years after the sting was announced, the Detroit News ran a two-part series that explained General Motors’ involvement and suggested that the automaker may have stood to gain by the investigation.
Mr. Kelley stoutly defended the investigation, and the means by which it was conducted. It is alleged that, in the course of an interview with a television station, he said:
• “Gm had never contacted me about the investigation. I had already completed investigation against American Transmissions and found them to be fraudulent.”
• “I proved these people — these 13 of them — to be crooks and cheats and operating crooked transmission shops.”
• “So what happened, General Motors had, maybe, some problems with some transmissions. So what happened was these crooks were telling everybody that brought a GM car in that yours were one of those faulty transmissions.”
• “So General Motors was being victimized by these crooks around the country.”
American Transmissions and various of its subsidiary corporate entities demanded a retraction, which Mr. Kelley apparently refused to provide.
In October 1992, the plaintiffs filed a defamation complaint against the Attorney General.
The Attorney General moved for summary disposition on the ground that the plaintiffs had failed to state a claim on which relief could be granted. MCR 2.116(C)(8). After the motion was denied, the Attorney General filed a second motion, alleging that there was no genuine issue as to any material fact, and that he was entitled to judgment as a matter of law. MCR 2.116(C)(10). The Court of Claims granted the second motion.
In entering summary disposition in favor of the Attorney General, the Court of Claims relied on this statutory provision:
Judges, legislators, and the elective or highest appointive executive officials of all levels of government are immune from tort liability for injuries to persons or damages to property whenever they are acting within the scope of their judicial, legislative, or executive authority. [MCL 691.1407(5); MSA 3.996(107)(5).]'
The Court of Appeals reversed the summary disposition, and remanded the case so that the Court of Claims could “determine if there is a question of material fact regarding whether defendant was acting within the scope of his executive authority.” 216 Mich App 119, 121; 548 NW2d 665 (1996).
The Attorney General has applied for leave to appeal.
n
In reversing the summary disposition in favor of the Attorney General, the Court of Appeals explained:
Plaintiffs rely on Marrocco v Randlett, 431 Mich 700; 433 NW2d 68 (1988), and Gracey v Wayne Co Clerk, 213 Mich App 412; 540 NW2d 710 (1995), to support their argument that defendant was not entitled to absolute immunity because his purpose in participating in the interview was not authorized by law. In Gracey, the Court, interpreting Marrocco, held that there is an intentional tort exception to governmental immunity for the intentional use or misuse of a badge of governmental authority for a purpose unauthorized by law. Gracey, supra at 417. Therefore, assuming that defendant had authority to participate in the interview to address an investigation conducted by his office, he nevertheless did not have authority to participate in the interview for the purpose of disseminating false information regarding plaintiffs. If that was defendant’s purpose, as claimed by plaintiffs, he was not acting within the scope of his executive authority, and he is not entitled to immunity for those acts. On remand, therefore, the trial court must determine if there is a question of material fact regarding whether defendant was acting within the scope of his executive authority.
Remanded for further proceedings consistent with this opinion. Jurisdiction is not retained._
[216 Mich App 121.]
In a concurring opinion, Judge Young explained, in greater detail, that Gracey was wrongly decided— Marrocco does not compel an analysis of a public official’s motivation. 216 Mich App 122-125.
in
In Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 592, 633; 363 NW2d 641 (1984), we held that the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their executive authority. That formulation was adopted by the Legislature in 1986 when it passed the provision quoted earlier:
Judges, legislators, and the elective or highest appointive executive officials of all levels of government are immune from tort liability for injuries to persons or damages to property whenever they are acting within the scope of their judicial, legislative, or executive authority. [MCL 691.1407(5); MSA 3.996(107)(5).]
The Legislature’s resolve in this regard is indicated by the legislative history and by the absence of amendment since this language was enacted in 1986.
Marrocco was a suit against the mayor and treasurer of a home-rule city. In a variety of ways, they were alleged to have harassed an assistant city attorney, causing, inter alia, his discharge from employment and an improper increase in the assessment of his home. Observing an absence of authority inter preting the phrase “within their . . . executive authority,” 431 Mich 707, this Court concluded:
We hold that the highest executive officials of local government are not immune from tort liability for acts not within their executive authority. The determination whether particular acts are within their authority depends on a number of factors, including the nature of the specific acts alleged, the position held by the official alleged to have performed the acts, the charter, ordinances, or other local law defining the official’s authority, and the structure and allocation of powers in the particular level of government. It is not our intention now to rule with specificity concerning the authority of officials under the Warren Code. The trial court is the proper forum for an initial determination. [Id. at 710-711.]
Earlier in Marrocco, supra at 707-708, this Court took from a 1987 plurality opinion the emphasized portion of this statement:
We conclude this inquiry by finding that intentional torts are immune if committed within the scope of a governmental function;[ ] however, the intentional use or misuse of a badge of governmental authority for a purpose unauthorized by law is not the exercise of a governmental function.
In Gracey, it was alleged that a county clerk had falsely stated that a lawyer running for judge (against the clerk’s neighbor, whom the clerk was supporting in the primary election) had violated the election laws. The clerk had made these charges at a press conference the day before the primary. While enforcement of election laws is clearly within the scope of a clerk’s authority, the Court of Appeals found in Marrocco a requirement that one look more closely:
Plaintiffs argue that actions of a county clerk that might normally be considered within the scope of authority of the clerk become acts outside that scope when performed for an ulterior purpose. We agree.
* * *
We believe that the Supreme Court in Marrocco v Randlett, 431 Mich 700, 713; 433 NW2d 68 (1988), reintroduced concepts that define governmental function by reference to an actor’s intent. Consequently, if defendant intentionally conducted a press conference to cause some mischief not authorized by law, then his otherwise appropriate action is not the exercise of a governmental function and is outside the scope of his immunity. [213 Mich App 415-416.]
The Gracey panel expressed reluctance with regard to such an improper-purpose exception to the statute’s unambiguous grant of immunity, but felt itself constrained by Marrocco:
We believe that it is a mistake to tamper with the clear, broad concept of absolute immunity as expressed in Ross. However, we are bound by Supreme Court precedent and reluctantly conclude that Marrocco has reintroduced concepts that define executive authority by reference to the actor’s intent. Until the Supreme Court gives further direction or clarification, we presume that there is an intentional-tort exception to governmental immunity for the intentional use or misuse of a badge of governmental authority for a purpose unauthorized by law. Therefore, assuming that [the county clerk] had the authority to call a press conference to address any improprieties that might have occurred during an election, he nevertheless had no authority to conduct a press conference for the purpose of disseminating false information with the intent to sway an election. If that was [the clerk’s] purpose, as claimed by plaintiffs, then he was not acting within the scope of his executive authority, and he is not entitled to absolute immunity for those acts. [213 Mich App 417-418.]
In a separate concurrence, Judge Marilyn Kelly disclaimed such reluctance.
IV
We agree with Judge Young that Gracey was incorrectly decided. The Legislature’s grant of immunity in MCL 691.1407(5); MSA 3.996(107)(5) is written with utter clarity. We need not reach the concern that a malevolent-heart exception might not be workable, since the Legislature has provided no such test.
This Court’s Marrocco opinion does not explicitly adopt an intent exception to governmental immunity, noting that a variety of factors must be considered to determine whether an official is acting with the scope of “executive authority.” 431 Mich 711. This Court did not include “motive” in that roster of considerations, and declined “to rule with specificity concerning the authority of officials” in that case. 431 Mich 711. Further, the language taken from the Smith plurality, 428 Mich 611, in Marrocco at 707-708, adds no such test.
In this case, the Attorney General allegedly defamed the plaintiffs during a 1991 television interview that concerned an earlier fraud investigation conducted by his department. Doubts had been expressed regarding the propriety of the department’s conduct, and Mr. Kelley was responding to questions regarding the investigation. On these facts, the Attorney General clearly is “immune from tort liability” because he was “acting within the scope of [his] executive authority.” MCL 691.1407(5); MSA 3.996(107)(5).
For these reasons, we reverse the judgment of the Court of Appeals and reinstate the judgment of the Court of Claims. MCR 7.302(F)(1).
Mallett, C.J., and Brickley, Cavanagh, Boyle, Riley, and Weaver, JJ., concurred.
Kelly, J., took no part in the decision of this case.
This case has not yet been tried, and the parties are disputing a summary disposition that the Court of Claims entered in favor of the defendant. Thus, the factual allegations of the plaintiffs are taken as true at this stage. The facts do not, however, appear to be in dispute.
The parties are in dispute regarding when and how General Motors’ involvement first came to be known.
The case was initially filed in circuit court, but was later transferred to the Court of Claims.
We concur with the Gracey majority’s reluctance in applying the intentional tort exception to governmental immunity found in Marrocco, suma._
We said the same thing of judges and legislators.
When the Legislature was considering amendments of the governmental immunity statute in 1985 and 1986, it always provided for immunity for judges, legislators, elective officials, and the highest appointive executive officials when they are acting within the scope of their judicial, legislative, or executive authority. See House Legislative 'Analysis, HB 5163 Substitute H-2, November 19, 1985; Senate Analysis, HB 5163 (S-3), March 20, 1986; House Legislative Analysis, HB 5163, July 23, 1986. This is in direct contrast to the treatment of lower level governmental employees. With respect to lower level governmental employees, the Legislature considered various intent-based standards, such as “acting in good faith” and “not acting in bad faith.” See House Legislative Analysis, HB 5163 Substitute H-2, November 19, 1985; House Legislative Analysis, HB 5163, January 16, 1986. The proposed intent requirements were in addition to other prerequisites to immunity in lower level employees; the employee’s “reasonable belief” that he was acting within the scope of his authority and the “gross negligence” standard. Id. Ultimately, however, the specific intent requirement for lower level governmental employees was omitted from the bill as passed. See MCL 691.1407(2); MSA 3.996(107)(2). Thus, although the Legislature considered various intent-based factors for lower level governmental employees, such an intent factor was never considered or included with respect to high level governmental employees. Gracey’s discovery of such a standard for high level officials was contrary to the language and legislative purpose of MCL 691.1407(5); MSA 3.996(107)(5). [216 Mich App 125, n 3 (emphasis deleted).] ■
In Marrocco, the Court was working with the phrase as presented in Ross. As noted earlier, the same formulation also appears in the statute.
Smith v Dep’t of Public Health, 428 Mich 540, 611; 410 NW2d 749 (1987) (opinion of Brickrey, J.), affd on other grounds sub nom Will v Michigan Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989).
In Marrocco, this Court indicated that the inquiry into whether actions are within a public official’s “executive authority” is analogous to the inquiry whether lower level officials are engaged in a “governmental function.” 431 Mich 708.
I agree with the holding of the majority but write separately to express my disagreement with its reluctance in applying the intentional tort exception to governmental immunity found in Marrocco [supra]. I appreciate that the clear, broad concept of absolute immunity is easier for the courts to apply. But, in balance, a remedy must be available to address an intentional use or misuse of governmental authority for a purpose not authorized by law. For that reason, I believe the Marrocco decision was not a mistake, and I apply its holding without reluctance. [213 Mich App 421.]
The factors mentioned in Marrocco, 431 Mich 711, were not presented as an exclusive list. However, each factor is a reasonably “objective” aspect of the overall factual context in which the alleged harm occurs. None involves an inquiry into a person’s subjective state of mind. | [
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Per Curiam.
At the conclusion of a jury trial, the defendant was found guilty, but mentally ill, of first-degree murder and felony-firearm. Though it found two errors in the trial, and an instance in which a sequestration order was violated, the Court of Appeals affirmed on the ground that the errors were harmless. We reverse the judgments of the Court of Appeals and the circuit court, and remand this case for a new trial. One of the errors is of constitutional magnitude, and was not harmless beyond a reasonable doubt.
i
The roots of this case lie in an adulterous relationship between the defendant and a woman whom he met at work. The Court of Appeals has summarized the tumultuous events that followed:
Defendant testified that he met the decedent, Mary Jane Komajda, in 1987, and that they developed a sexual relationship in 1988 despite the fact that defendant was married. In spring 1989, he told Komajda that he wished to end then-relationship. After Komajda told defendant’s then-wife Terry about the relationship, Terry and defendant became estranged and eventually divorced. Although defendant and Komajda resumed their sexual relationship at the end of 1989, defendant broke it off again in February, 1990.
On April 23, 1991, Komajda called Terry and threatened her life. In response, defendant called Komajda the next day and threatened to kill Komajda and her children if she did not leave him and Terry alone. On April 25, 1991, while on a break from his late evening shift at the Ford Motor Chesterfield Trim Plant, defendant spoke to Terry and learned that Komajda had again threatened Terry’s life. Defendant retrieved a .357 Magnum from his house, but left the gun in his car before walking back into the plant.
After defendant reentered the plant, Komajda told him, “Well, I’m going to get her out of the picture once and for all.” Defendant retorted, “say good-bye to your kids,” and retrieved the gun from his car. Defendant went back inside the plant, saw Komajda moving toward the union office, followed her into the back office, and shot her until his gun was empty. Defendant pleaded insanity at trial.
* * *
At trial, defendant testified to many harassing and threatening acts by Komajda. After defendant first broke off their relationship, Komajda followed him home once or twice a week and asked that they continue their relationship. In September, 1989, defendant assaulted Komajda. This came after he learned that Komajda had followed Terry home, threatened Terry with the car Komajda was driving, and shouted obscenities and threats at Terry.
After defendant again broke off the relationship in February, 1990, Komajda began to visit him uninvited, and would not leave despite his requests. Defendant made complaints to the police, but she continued to harass him. His car was twice vandalized with a key while parked at work. In Christmas, 1990, someone broke into his home, and stole a handgun, a vcr, personal files, and a box of personal possessions which included his wedding ring. Komajda taunted defendant at work by displaying a ring around a chain which defendant believed was his wedding ring. In February, 1991, she followed him into a tavern and took his car keys. In March, 1991, she followed him into a church service. After the service, he found that someone had poured syrup into his gas tank. Also in March, 1991, Komajda threatened defendant’s life.
Defendant moved in limine to offer testimonial evidence from: 1) Elizabeth Martin that Komajda threatened defendant’s attorney during defendant’s divorce proceeding; 2) Officer Ameriguidan of the Mount Clemens Police Department that Komajda attempted to run over a police officer after defendant called the police about Komajda’s refusal to leave his home; 3) Terry that Komajda threatened her life because Komajda feared a possible reconciliation between defendant and Terry; and 4) Marlene Thompson that Komajda admitted that she damaged defendant’s car with her keys, put sugar in his gas tank, broke into his home, followed him constantly, engaged in telephone harassment, and threatened to kill Terry. The trial court denied defendant’s motion.![ ]
The defendant was charged with open murder and possession of a firearm during the commission of that felony. MCL 750.316, 750.227b; MSA28.548, 28.424(2).
As indicated, the defendant was permitted to testify at trial concerning various acts of intimidation by Ms. Komajda, though the circuit court sharply limited his ability to produce corroborating evidence of her misconduct. Despite the fact that it was a judicial ruling that precluded the introduction of corroborating evidence, the assistant prosecutor criticized the defendant during closing argument for failing to produce proof that these events actually occurred.
Other controversies arose during the trial. One dispute concerned the prosecution’s violation of an order sequestering witnesses. Another concerned the prosecution’s elicitation of testimony that the defendant, after receiving Miranda warnings, requested counsel.
On the latter subject, the court ruled that a police officer would not be allowed to testify that the defendant had requested an attorney and stopped questioning. However, the court did permit the defendant to be asked whether, after the reading of rights, he had stopped the questioning and requested a lawyer. The assistant prosecutor’s closing argument included references to the request for counsel.
The jury rejected the defense of insanity, and instead found the defendant guilty, but mentally ill, of first-degree murder and felony-firearm. After denying the defendant’s motion for new trial, the circuit court imposed the mandatory sentences of life and two years.
The Court of Appeals affirmed. In doing so, it agreed with the defendant that the circuit court had erred in limiting the evidence concerning Ms. Komajda’s behavior, that the prosecutor had violated the circuit court’s sequestration order, and that the prosecutor inappropriately elicited evidence concerning the defendant’s request for an attorney. However, the Court found no abuse of discretion in the handling of the sequestration problem, and found the evidentiary errors to be harmless.
The defendant filed in this Court an application for leave to appeal, which we held in abeyance pending our decision in People v Mateo, 453 Mich 203; 551 NW2d 891 (1996). After Mateo was decided in July 1996, we denied leave to appeal. 453 Mich 953 (1996).
The defendant has now moved for reconsideration.
n
In recent years, this Court has attempted on several occasions to clarify the principles that determine whether judicial error warrants reversal. In this regard, we have observed that “[r]ules of automatic reversal are disfavored, for a host of obvious reasons.” People v Mosko, 441 Mich 496, 502; 495 NW2d 534 (1992).
In People v Grant, 445 Mich 535, 553; 520 NW2d 123 (1994), we held that “a plain, unpreserved error may not be considered by an appellate court for the first time on appeal unless the error could have been decisive of the outcome or unless it falls under the category of cases, yet to be clearly defined, where prejudice is presumed or reversal is automatic.”
We explained in People v Anderson (After Remand), 446 Mich 392, 405; 521 NW2d 538 (1994), that constitutional error automatically requires reversal if it is a “structural defect in the constitution of the trial mechanism, which defies analysis by harmless-error standards.” We then turned to the rule regarding constitutional error that is not such a structural defect:
At the other end of the spectrum, however, are trial errors that “occur]] during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” [Arizona v] Fulminante, [499 US 279, 307-308; 111 S Ct 1246; 113 L Ed 2d 302 (1991)]. This requires the beneficiary of the error to prove, and the court to determine, beyond a reasonable doubt that there is no “ ‘reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” Chapman [v California, 386 US 18, 23; 87 S Ct 824; 17 L Ed 2d 705 (1967)]. [446 Mich 405-406.]
Finally, our recent Mateo opinion indicates that preserved nonconstitutional error requires reversal only if “prejudicial,” 453 Mich 215, reserving the question of the proper standard for making such a determination, 453 Mich 220.
m
In the present case, the Court of Appeals found at least two instances of judicial error, but concluded that they were harmless. One is an evidentiary question, concerning the extent to which the defendant would be allowed to demonstrate that Ms. Komajda’s misconduct was real, and not just self-serving fiction. While a defendant’s right to present an effective defense can have a constitutional dimension, there is no need in the present case to reach such a question.
Instead, the focus can remain on the second error identified by the Court of Appeals:
Here, after defendant was read his Miranda warnings, he answered a few questions, and then asked for an attorney. At trial, the prosecutor asked defendant whether he stopped talking to police at some point after his arrest, and requested an attorney. In addition, the prosecutor elicited Officer Henry Deblow’s testimony that defendant requested an attorney after being read his Miranda rights.
The prosecution argues that it was seeking evidence of defendant’s request for counsel not as an admission of guilt, but to rebut defendant’s insanity defense. However, the United States Supreme Court has held that it is fundamentally unfair to assure a suspect that his silence will not be used against him and then to use that silence to impeach him at trial. Wainwright v Greenfield, 474 US 284, 293; 106 S Ct 634; 88 L Ed 2d 623 (1986). The Court held that a prosecutor’s use of a defendant’s request for counsel to establish that defendant’s sanity violates the constitutional protection of due process. Id. at 290-292. Accordingly, this evidence was inadmissible.
In addition, the prosecutor compounded the error by using the evidence in closing argument as direct evidence of defendant’s guilt. See People v Vanover, 200 Mich App 498, 503; 505 NW2d 21 (1993). The prosecutor argued that defendant demanded a lawyer, and that, “[w]hen somebody asks for a lawyer they know they’re in trouble.” The Fifth Amendment and Const 1963, art 1, § 17 provide that no person shall be compelled to be a witness against himself or herself in a criminal trial. People v Schollaert, 194 Mich App 158, 164; 486 NW2d 312 (1992). Here, defendant testified to his conversation with the police before he invoked his right to counsel. Because defendant did not speak to the police again. after his request, the prosecutor effectively commented on defendant’s exercise of his constitutional right to remain silent. [Slip op at 4-5.]
Counsel preserved this error by timely objection during trial, and the matter was also addressed in the defendant’s motion for new trial.
As we explained in Anderson, such constitutional error requires reversal unless it is harmless beyond a reasonable doubt. In this instance, we are unable to conclude that the error was harmless.
This was a challenging case for the jury, in which it was asked to determine the defendant’s state of mind during a narrow period of time. The jury had a good deal of evidence regarding the circumstances (though, as indicated earlier, not the full body of evidence it should have received), and it had several expert opinions to weigh. This was a closely contested case, in which the defense theory was not frivolous. The insertion of constitutional error at the key decisional fulcrum of the case — the defendant’s state of mind in the crucial moments — leaves us unable to be sufficiently certain that the error was harmless.
On this record, the prosecution cannot prove beyond a reasonable doubt, nor can this Court so determine, that there is no reasonable possibility that the challenged evidence might have contributed to the conviction.
Accordingly, we grant the defendant’s motion for reconsideration. On reconsideration, we reverse the judgments of the Court of Appeals and the circuit court, and remand this case to the circuit court for new trial. MCR 7.302(F)(1).
Mallett, C.J., and Brickley, Cavanagh, Boyle, Riley, Weaver, and Kelly, JJ., concurred.
Unpublished opinion per curiam, issued June 6, 1995, reh den July 28, 1995 (Docket No. 157952), slip op at 1-2.
The psychiatric and psychological experts at trial also discussed Ms. Komajda’s behavior. They had been given access to police reports and some other background materials, but the defendant’s own accounts were their primary source.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
The Court of Appeals also rejected several other claims made by the defendant on appeal.
Unreported order entered May 31, 1996 (Docket No. 104037).
Brackets and internal quotations are omitted.
People v Stanaway, 446 Mich 643, 694, n 53; 521 NW2d 557 (1994). | [
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Cavanagh, J.
In this case, we are asked to determine whether it was proper for the trial court to instruct the jury on SJI2d 19.02. This instruction allowed the jury to determine, for purposes of premises liability, whether the defendant had possession and control of the parking lot in which plaintiff fell. We hold that the invitee status of a plaintiff, alone, does not create a duty under premises liability law unless the invitor has possession and control of the premises on which the plaintiff was injured.
I. FACTS AND PROCEEDINGS
The defendant operated a small factory in Inkster that manufactured storage racks. There was a fire on January 18, 1988, that virtually destroyed the manufacturing facility. A small separate business office located in front of the manufacturing facility was not burned. Defendant’s insurer hired a fire-repair contractor, Burton Brothers Construction Company, to do the repair and reconstruction work. Plaintiff Terry Orel was an employee of Burton Brothers who worked at the project. On February 3, 1988, the plaintiff was injured at the job site. In the complaint he filed in Wayne Circuit Court, he alleged that he fell on ice and snow in the parking lot as a result of the negligence of the defendant in maintaining the premises. The jury returned a verdict for the defendant, determining that the defendant was not negligent.
After denial of a motion for a new trial, the plaintiff appealed. The plaintiff asserted that the trial court erred in reading SJI2d 19.02 to the jury because the evidence clearly showed that defendant was a possessory landowner with respect to the premises in question. The plaintiff preserved this issue by timely objecting in the trial court.
In an unpublished per curiam opinion, the Court of Appeals reversed, holding that the trial court improperly read SJI2d 19.02 to the jury because the evidence clearly demonstrates that defendant was the possessor of the premises as a matter of law. The Court stated that it is error to submit an instruction regarding an issue that is not sustained by the evidence. Because the jury may have erroneously found that defendant was not in possession of the parking lot, the Court vacated the judgment and remanded the case for a new trial.
The defendant applied for leave to appeal, which this Court granted. 451 Mich 917 (1996).
II. ANALYSIS
At trial, the parties agreed and the jury was instructed that the plaintiff was the defendant’s invitee at the time that he fell. As stated in Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 261; 235 NW2d 732 (1975), an invitor has a duty to take reasonable measures within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to an invitee.
In reversing the decision of the trial court, the Court of Appeals relied primarily on Kendzorek v Guardian Angel Catholic Parish, 178 Mich App 562; 444 NW2d 213 (1989), citing it for the proposition that “[although possessory rights can be ‘loaned’ to another, thereby conferring a duty to make the premises safe, the invitor cannot entirely absolve himself of his obligations by doing so.” Id. at 568-569. The Court in this case acknowledged that there are cases that generally hold that landowners are not subject to liability for the conditions of premises when the landowner does not have control over the premises. How ever, the Court in Kendzorek reasoned that “control is only an issue where the owner is neither the possessor nor the invitor . . . Id. at 569.
Although the Court of Appeals in this case relied on its decision in Kendzorek, it should have followed this Court’s decision in Merritt v Nickelson, 407 Mich 544; 287 NW2d 178 (1980), as the dissent noted. As stated in Merritt:
Premises liability is conditioned upon the presence of both possession and control over the land. This is so because
“[T]he man in possession is in a position of control, and normally best able to prevent any harm to others.”
Michigan has consistently applied this principle in imposing liability for defective premises.
Our application of this principle is in accordance with the Restatement of Torts. The Restatement imposes liability for injuries occurring to trespassers, licensees, and invitees upon those who are “possessors” of the land. A “possessor” is defined as:
“(a) a person who is in occupation of the land with intent to control it or
“(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
“(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).”
Ownership alone is not dispositive. Possession and control are certainly incidents of title ownership, but these possessory rights can be “loaned” to another, thereby conferring the duty to make the premises safe while simultaneously absolving oneself of responsibility. [Id. at 552-553 (citations omitted; emphasis added).]
This Court’s holding in Merritt applies to an invitorinvitee situation. To the extent that Kendzorek ere ates a special rule in the invitor-invitee context, it is overruled. Invitors are subject to liability only if they are possessors.
The jury should be given the instruction in SJI2d 19.02 when there is a dispute regarding who possessed the land at the time of the plaintiffs injury. Who had possession of a piece of land presents a factual issue for resolution by the jury. If there is no dispute, then the instruction should not be given. Additionally, if reasonable minds could not differ regarding who had possession of the land, a directed verdict could be granted, in the discretion of the trial court. Where, as here, a contested issue at trial was whether the defendant, the landowner, had possession of the land at the time that the plaintiff was injured, a trial court must give the instruction in SJI2d 19.02.
In the instant case, the possession instruction was hotly contested. Evidence was presented from which a reasonable jury could have determined that the defendant did not possess and control the parking lot at the time the plaintiff fell. The defendant presented evidence to show that the plaintiffs employer, its employees, subcontractors, and suppliers had completely taken over the parking lot adjacent to the plant, which was separated by a fence from the front office parking lot. There was no evidence that any of the defendant’s employees used the parking lot in question during the extensive reconstruction process. The few employees who worked in the front office parked only in the separately fenced lot adjacent to the front office. Thus, the Court of Appeals as a matter of law should not have held that the defendant possessed the parking lot in which the plaintiff fell.
IH. CONCLUSION
In this case, there was evidence from which the jury could reasonably determine that the defendant did not possess the land on which the plaintiff fell. Thus, the trial court properly read SJI2d 19.02 to the jury. Moreover, the trial court properly denied the plaintiff’s motions for directed verdict and for a new trial. We reverse the decision of the Court of Appeals and reinstate the jury verdict.
Mallett, C.J., and Brickley, Boyle, Riley, Weaver, and Kelly, JJ., concurred with Cavanagh, J.
SJI2d 19.02 states:
A “possessor” is defined as—
a. a person who is in occupation of the land with intent to control it; or
b. a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it; or
c. a person who is entitled to immediate occupation of the land; if no other person is in possession as I have just explained.
As this Court stated in Quinlivan:
There is a clear relationship between the “control and possession” principle . . . and the Restatement “duty to make safe.” The land or property owner’s bundle of possessory responsibilities may be diminished by the “loaning” of one or several of these responsibilities. This “loaning” gives a quantum of “control and possession” to another party. If such quantum of control and possession confers responsibility for an aspect of ownership which gives rise to liability then a “duty to make safe” will be found to exist. [Id. at 269.]
Kendzorek should not have relied on this passage or surrounding reasoning for the proposition that an invitor cannot entirely absolve himself of liability by “loaning” his possessory rights to another, especially after this Court’s decision in Merritt v Niekelson, 407 Mich 544; 287 NW2d 178 (1980).
Although the Court of Appeals in Kendzorek used overly broad language regarding an invitor’s duty, we note that in that case, there was no question whether the defendant landowner also possessed the land at the time of the plaintiff’s injury. Thus, when the Court in Kendzorek stated that “the duty of reasonable care owed by an invitor to his business invitee cannot be delegated,” it is implicit that the invitor also has possession of the premises. Id. at 568. To the extent that Kendzorek can be read to mean that an invitor will be liable even if it did not have possession of the premises at the time of the plaintiff’s iiyury, it is inconsistent with Merritt and therefore overruled.
In the note on use for SJI2d 19.02, it specifically states that the instruction should be given “if there is a dispute as to who had possession of the land.” | [
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Brickley, J.
The defendants were charged in Oakland County with conspiracy to possess with intent to deliver over 650 grams of a controlled substance. They were previously convicted in Muskegon County of conspiracy to possess with intent to deliver cocaine. Because both prosecutions center on the same dates, witnesses, and evidence, we granted leave to appeal, limited to the double jeopardy implications of the defendants’ prosecutions in Oakland County.
We hold that the subsequent prosecution in Oakland County is barred by the Constitution of the United States and the Michigan Constitution. Therefore, the later convictions are reversed and vacated.
i
A
On December 11, 1989, Ronald Gardner,. Cato Peterson, Amir Wilson, and Aaron Banks were traveling in a white Cougar automobile from Detroit to Muskegon. Muskegon County Sheriff Deputy A1 VanHemert received a tip from a confidential informant that Aaron Banks and several other persons would be transporting crack cocaine to a Muskegon Heights neighborhood that afternoon.
Deputy VanHemert and another deputy, Stanley Berdinski, executed a legal stop and search of the vehicle. The deputies seized approximately 222 grams of crack cocaine and arrested the occupants of the vehicle.
Ronald Gardner, Cato Peterson, and Amir Wilson each made statements to the officers. Mr. Gardner stated that he was paid two hundred dollars by Ricky Franklin to drive Messrs. Peterson, Wilson, and Banks to the Muskegon Heights area and that he had previously transported sellers and drugs to that area. He also stated he had picked up money at the home of “Miss Louise” in Muskegon and transported the cash back to Detroit.
Further, Gardner stated that Mr. Franklin was the head of the organization. He stated that cocaine was sometimes transported in the spare tire in the trunk, that the cocaine would be placed into the spare tire at a gas station in Detroit, and the tire would be left behind a warehouse in Muskegon after the cocaine was removed. He knew where Ricky Franklin lived and was willing to show the officers where the warehouse was located. Additionally, Gardner stated he sold drugs for Aaron Banks, that Banks was the boss of the Muskegon operation, and that Franklin gave the drugs to Banks to sell.
Mr. Peterson stated to the officers that he was traveling to Muskegon to sell crack cocaine, that this was his second trip to Muskegon, and that Mr. Franklin was the head of the organization.
Defendant Wilson also made a statement to the Muskegon authorities after his arrest. He stated that he sold crack cocaine for Ricky Franklin and that he had sold drugs on three previous trips to Muskegon. He stated that Mr. Banks would stay at Miss Louise’s house and dispense the crack baggies to the sellers there. Further, he stated that the cocaine was transported in the spare tire in the trunk, that it was easy to recruit sellers from Detroit, and that Mr. Robert Johnson was also involved in the sale of cocaine.
The Muskegon County Prosecutor charged defendants Wilson and Banks with possession of a controlled substance with intent to deliver between 225 and 650 grams. The charges were reduced after the cocaine was weighed to possession with intent to deliver between 50 and 225 grams of cocaine and conspiracy to possess with intent to deliver.
On June 6, 1990, Amir Wilson was convicted by a Muskegon County jury of possession with intent to deliver and conspiracy to deliver between 50 and 225 grams of cocaine. On July 3, 1990, Mr. Wilson was sentenced to two concurrent prison terms of eight to twenty years. On June 11, 1990, Mr. Banks was convicted in Muskegon County of possession of less than 50 grams of cocaine and conspiracy to possess less than 25 grams arising out of the December 11, 1989, arrest. He was sentenced to ten to twenty years in prison and two years eight months to four years in prison, respectively.
B
On July 5, 1990, Southfield police arrested Gerald Hill for possession with intent to deliver between 225 and 649 grams of cocaine. Oakland County officials began an investigation into Mr. Franklin’s drag activities. At this time, the Muskegon and Oakland Counties Sheriff Departments joined efforts to investigate the “Franklin organization.”
In December 1990, an Oakland County citizens grand jury indicted Messrs. Wilson, Banks, Hill, Johnson, and another individual, Terrence Moore, on charges of conspiring from October 1988 to December 1990 to possess with intent to deliver over 650 grams of cocaine.
Defendants Wilson and Banks moved to set aside the indictment on the basis of a violation of double jeopardy. Their motion was denied. Messrs. Wilson, Banks, Hill, and Johnson were jointly tried in September of 1991. Messrs. Wilson and Banks renewed their motion to dismiss at trial, and, again, the motion was denied. After the second trial, defendant Wilson was found guilty of conspiracy to deliver between 50 and 250 grams of cocaine. Defendant Banks was found guilty of conspiracy to possess with intent to deliver more than 650 grams of cocaine. The defendants appealed, and the Court of Appeals affirmed. We granted leave, limited to the double jeopardy issue. 450 Mich 904 (1995).
n
The Fifth Amendment of the United States Constitution provides that “[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb . . . .” The Fifth Amendment double jeopardy protections are applicable to the states through the Fourteenth Amendment. Benton v Maryland, 395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969). “The language of the Michigan Constitution’s double jeopardy provision is substantially similar to that of the United States Constitution.” People v Mezy, 453 Mich 269, 279; 551 NW2d 389 (1996). Michigan’s Constitution, art 1, § 15, declares that “[n]o person shall be subject for the same offense to be twice put in jeopardy.” Further, Michigan had codified the guarantee against double jeopardy.
The double jeopardy guarantee protects against successive prosecutions for the same offense and protects against multiple punishments for the same offense. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). The double jeopardy protections are inherent in our system of jurisprudence because we believe that
the 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. [Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957).]
We follow the federal rule that if a defendant can make a prima facie showing of a violation of the Double Jeopardy Clause, a second prosecution is barred unless the government can demonstrate by a preponderance of the evidence why double jeopardy principles do not bar prosecution. Mezy, supra at 277.
In order to make a prima facie case of double jeopardy, the defendant must show that he was prosecuted twice for the same offense. The same offense includes prosecution for a greater crime after conviction of the lesser included offense. See Brown v Ohio, 432 US 161, 169; 97 S Ct 2221; 53 L Ed 2d 187 (1977). Conspiracy to possess with intent to deliver 50 to 224 grams of cocaine is a lesser included offense of conspiracy to possess with intent to deliver over 650 grams. See People v Marji, 180 Mich App 525, 531; 447 NW2d 835 (1989).
Initially, in its brief to this Court in Wilson, the prosecution’s only argument that more than one conspiracy existed is as follows,
In People v Mezy, 453 Mich 269; 551 NW2d 389 (1996), this Honorable Court recently discussed the problem of determining whether there were two separate drag conspiracies or only one. A further problem is presented in dealing what the Court of Appeals has previously referred to as a “chain conspiracy.” People v Meredith (On Remand), 209 Mich App 403; 531 NW2d 749 (1995), lv den 450 Mich 852 (1995).
As can be .seen from the People’s counter-statement of facts, drug conspiracies involve many individuals, who may have no knowledge of other conspirators or even the extent of the conspiracy when they become involved in it. In addition, as is again demonstrated in this case, certain individuals may only be known to others by a nickname. Further complicating prosecution in drug offenses is the fear inspired by such organizations, resulting in uncooperative witnesses and, as evidenced by Gardner’s and Cato Peterson’s statements in this case, a failure to fully disclose their own or others’ participation in the conspiracy.[ ]
Contrary to the position of the dissent, the people’s argument is not that this Court should find that more than one conspiracy existed, it is that this Court should hold that the Brown exception applies.
Moreover, in the Oakland County case, the people did not charge the defendants with separate conspiracies for agreements that occurred after the December 11, 1989, arrest of these defendants. The defendants were bound over only on one count of conspiracy to deliver or manufacture a controlled substance, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).
Even assuming that the prosecution makes the argument alleged by the dissent, I would still hold that there was only one conspiracy. “The gist of the crime of conspiracy is the agreement of the conspirators to commit one or more unlawful acts, where one or more of the coconspirators do ‘any act to effect the object of the conspiracy.’ ” Mezy at 284, quoting Braverman v United States, 317 US 49, 53; 63 S Ct 99; 87 L Ed 23 (1942). We continued in Mezy:
In order to determine what the extent of the agreement is, so that we may determine whether there are two conspiracies or only one, we will use the same “totality of the circumstances” test used in constitutional double jeopardy analysis. This test includes the following factors: 1) time, 2) persons acting as coconspirators, 3) the statutory offenses charged in the indictments, 4) the overt acts charged by the government or any other description of the offenses charged that indicate the nature and scope of the activity that the government sought to punish in each case, and 5) places where the events alleged as part of the conspiracy took place. The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement each with a separate object. [Mezy, supra at 285, citing United States v Thomas, 759 F2d 659 (CA 8, 1985).[ ]
First, we will explore the time factor. The time frames of the two alleged conspiracies overlap. The felony information for the Muskegon conspiracy does not list a specific time frame. However, at Wilson’s trial in Muskegon, the prosecutor argued that the agreement took place between December 7 and December 11. Also, the jury in Banks’ case was instructed that the prosecution alleged the agreement was made between December 7 and 11, 1989. The overlap in time does not prove that there was only one conspiracy because “many drug offenses occur at the same time without being connected,” Mezy, supra at 288 (Brickley, C.J., concurring in part and dissenting in part). However, unlike Mezy, the facts of this case indicate that there was only one agreement when the other elements of the test are reviewed.
The Muskegon trial was based on an alleged conspiracy between Cato Peterson, Ronald Gardner, Rick Franklin, Amir Wilson, and Aaron Banks. It was alleged by the Muskegon authorities that Franklin was the leader of the conspirators, Aaron Banks acted as a distributor of the cocaine in Muskegon, and cocaine was brought to Muskegon from the Metro Detroit area. In the Oakland County prosecution, it was alleged that Ricky Franklin was the leader of the conspirators, that Aaron Banks acted as a distributor (as did Robert Johnson), and that the cocaine was transported to Muskegon from the City of Detroit and certain areas of Oakland County. The difference was that additional conspirators were indicted in the Oakland County case. All the conspirators in the Muskegon case were considered conspirators in the Oakland County case, whether indicted or not.
Additionally, the statutory offenses were essentially the same. In Muskegon County, the defendants were charged with possession with intent to deliver between 50 and 225 grams of cocaine and conspiracy to possess with intent to deliver. However, no amount was addressed with respect to the conspiracy count. In Oakland County, the defendants were charged with conspiracy to possess with intent to deliver more than 650 grams of a controlled substance. Therefore, the defendants were charged with a greater crime after being convicted of the lesser included offense. Marji, supra at 531.
The overt acts and offenses described by the people for both cases were similar. In fact, in the Oakland County case, the people spent one and one-half days recounting to the jury the facts of the Muskegon case. The same police officers and detectives testified about the same events, in the same location, involving the same evidence. Further, the same witnesses testified about the same events, in the same location, involving the same evidence. Essentially, the Oakland County trial was the Muskegon trial, plus more evidence of events that occurred after the defendants’ roles in the conspiracy ended.
Also, the locations of the conspiracies were the same. The dissent makes much of the fact that one witness, Jeremiah Perry, testified that he told the police that Ricky Franklin sold drugs in Muskegon, Grand Rapids, Benton Harbor, Kalamazoo, Minnesota, Pittsburgh, Ft. Wayne, Indiana, and Lima, Ohio. However, this information was brought out on cross-examination when counsel for codefendant Terrence Moore indicated that Perry could only link Mr. Moore to transactions in Muskegon, not to any other sales he may have mentioned to the police. Furthermore, the prosecution did not link any of these sales to the conspiracy that was charged, and Perry only testified to agreements to sell in Muskegon.
Finally, we note that Wilson’s and Banks’ parts in this conspiracy ended when they were arrested on December 11, 1989. In United States v Goff, 847 F2d 149, 169 (CA 5, 1988), the United States Court of Appeals for the Fifth Circuit differentiated between the end of a conspiracy and the end of an individual’s role in a conspiracy. “ ‘It is well settled that a person’s participation in a conspiracy ends when the person is arrested for his role in the conspiracy.’ ” (Quoting United States v Dunn, 775 F2d 604, 607 [CA 5, 1985].) However, solely because a single individual’s part may have ended, the conspiracy does not necessarily end. “Even when several members of a conspiracy are arrested, the conspiracy itself is not thereby necessarily terminated.” Goff at 170, citing United States v Kalish, 690 F2d 1144, 1151 (CA 5, 1982). “Drug conspiracies involving multiple importation episodes may continue for many months.” Goff at 170.
In Goff, the same four persons were involved in multiple shipments. The court found that even though other personnel continually changed, there was only one conspiracy. The same is true in the instant case. Ricky Franklin and Martese Weidaman were the constant leaders of this conspiracy. Wilson’s and Banks’ involvement in the conspiracy ended after their arrest on December 11, 1989. There was no evidence that Wilson or Banks continued to conspire with Franklin, nor was there evidence that they participated in any activity in furtherance of the conspiracy.
Wilson and Banks made only one agreement with the other members of their conspiracy. That agree- merit was to transport cocaine that was obtained by Ricky Franklin to Muskegon, and to sell the same cocaine in a neighborhood in Muskegon known as the “danger zone.” Each trip to Muskegon was not a separate conspiracy. To say that each trip could be considered a separate conspiracy, or that each sale could be a separate conspiracy, would lead to the exact results sought to be prevented by the Double Jeopardy Clause — subjecting the defendant to the “hazards of trial and possible conviction more than once for an alleged offense.” Green, supra at 187. Therefore, we find that only one conspiracy existed under the facts of this case, and that the defendants have made a showing of double jeopardy.
The burden now shifts to the people to demonstrate by a preponderance of the evidence why double jeopardy principles do not bar prosecution. Mezy, supra at 277. The people argue that the second prosecution was valid under the exception in Brown, supra at 169. The United States Supreme Court held in Brown that “[w]hatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulátive punishment for a greater and lesser included offense.” Id. The Court further stated:
An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence. [Id. at 169, n 7, citing Diaz v United States, 223 US 442, 448-449; 32 S Ct 250; 56 L Ed 500 (1912); Ashe v Swenson, 397 US 436, 453, n 7; 90 S Ct 1189; 25 L Ed 2d 469 (1970) (Brennan, J., concurring).[ ]
The people rely on this exception for its authority to circumvent double jeopardy requirements. However, the people have failed to show this Court why they could not have discovered the greater conspiracy despite the exercise of due diligence. In fact, the testimony at the Muskegon trial indicates that the Muskegon authorities knew that these two defendants were part of a larger conspiracy when they were tried in Muskegon.
The people argue that this Court should rely on the decision in United States v Tolliver, 61 F3d 1189 (CA 5, 1995). The Tolliver court held that “[f]rom the record, it is apparent that while the government may have suspected the existence of [a] conspiracy during the prosecution of [the defendant], at that time the government did not have sufficient evidence to indict [the defendant] for his participation in the . . . conspiracy.” Id. at 1211.
Unlike the facts of Tolliver, the Muskegon authorities knew of the existence of the Franklin organization. They knew that these defendants were directly involved in the conspiracy. The statements of Messrs. Gardner, Peterson, and Wilson indicated the manner in which the cocaine was transported (in spare tires), where the defendants stayed while in Muskegon (Miss Louise’s home), that the organization was headed by Ricky Franklin in Detroit, that others were involved, and that they had made previous trips to sell drugs in Muskegon.
There is evidence that Muskegon authorities had actual knowledge of the greater criminal organization. The testimony of the officers indicate that they had Miss Louise’s home and her neighborhood and Aaron Banks under surveillance for some time. Further, the Muskegon authorities had arrested another member of the organization only weeks before the December 11, 1989, arrest.
The most telling reason for holding that the Muskegon authorities knew of the greater conspiracy, and with the exercise of due diligence could have produced additional evidence to support the greater charge, was the statement made by Mr- Wilson to Deputies VanHemert and Berdinski. Mr. Wilson stated that he had sold as much as $3,000 worth of crack cocaine in a single trip to Muskegon. Further, Mr. Wilson stated that Mr. Banks routinely transported money back to Detroit. When asked what was the most money he had seen transported back to Detroit, he responded, “Around a hundred thousand,” and that was in the summer of 1989. This could have formed the basis for additional investigation by the Muskegon authorities.
Additionally, the convictions were based on the same arrest and seizure of cocaine. The initial convictions were for the December 11, 1989, incident and the second convictions were for a continuing conspiracy from October 1988 to December 1990. The people based the case against these defendants on the same cocaine that was seized on December 11, 1989. The Oakland prosecution was based on the testimony of the same witnesses who testified at the Muskegon trial. Any additional witnesses provided by the prosecution in the Oakland County case only added weight to the prosecution’s case and did not form the basis for an additional separate crime.
Even though the Muskegon authorities did have actual knowledge of the greater conspiracy, the people failed to provide any evidence that the Muskegon authorities exercised due diligence in investigating this organization.
The people argue that Messrs. Gardner and Peterson minimalized their involvement in the organization and that therefore the people could not have known of the greater organization at the time of the first trial. However, the actual statements and trial testimony given by the witnesses show that Messrs. Gardner and Peterson were willing to fully aid the investigation. Moreover, Oakland County had the necessary information to get a grand jury indictment within six months of the sentencing following the first trial of Messrs. Wilson and Banks.
Finally, the knowledge of the Muskegon authorities is imputed to the Oakland County authorities. Therefore, Oakland County is deemed to know all that the Muskegon County authorities knew. As stated in Waller v Florida, 397 US 387, 392; 90 S Ct 1184; 25 L Ed 2d 435 (1970):
“Political subdivisions of States — counties, cities, or whatever — never were and never have been considered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.” [Quoting Reynolds v Sims, 377 US 533, 575; 84 S Ct 1362; 12 L Ed 2d 506 (1964).]
In Waller, the United States Supreme Court overturned the second conviction of the defendant in a state court because the defendant had been tried and convicted previously in a municipal court. The Court held that the second prosecution violated the Double Jeopardy Clause because the prosecutions were by the same sovereign. The counties of Muskegon and Oakland are not separate sovereigns; they are subdivisions of this state. Therefore, we impute the knowledge of the Muskegon authorities to the Oakland County authorities. Any information that the Muskegon authorities knew or could have known if they exercised due diligence in investigating this drug conspiracy will be imputed to the Oakland authorities. Therefore, the state is allowed only one prosecution and that occurred in Muskegon.
m
CONCLUSION
On the basis of the statements of Messrs. Gardner, Peterson, and Wilson, and the evidence introduced at the first trial, the Muskegon prosecutor could have charged Messrs. Wilson and Banks with conspiracy to possess with intent to deliver over 650 grams of cocaine. The prosecutor chose not to do so and charged the defendants with the lesser offense. The second prosecution for the greater offense consti tuted double jeopardy. The people failed to prove to this Court by a preponderance of evidence that the exception articulated in Brown applies to this case. Therefore, we conclude that the second prosecution for the greater offense is barred.
Mat,lktt, C.J., and Cavanagh, J., concurred with Brickley, J.
MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii).
MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(üi). The conspiracy count was not for a specific amount of cocaine.
MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv).
MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v).
Cato Peterson and Ronald Gardner were both given reduced sentences for their cooperation with the investigation, including testifying against defendants Wilson and Banks.
Southfield police made the arrest after a routine traffic stop of the vehicle in which Mr. Hill was a passenger. The vehicle was also occupied by Ricky Franklin. The police allowed Mr. Hill to go into a store across the street from where the vehicle was stopped. After Mr. Hill left the area, store employees alerted police officers that they had found cocaine in a jacket behind the store.
The record indicates that Mr. Franklin has fled this state in order to avoid prosecution.
MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i).
The Court of Appeals did not inquire into the argument that there was more than one conspiracy. The Court stated:
It is clear that Muskegon County could not have known the extent of the conspiracy at the time of defendants’ convictions. Because the crime could not be discovered, despite diligence on the part of the police, until after the commencement of the prosecution for other crimes arising from the same transaction, an exception to the same transaction rule allows a separate prosecution. People v Harding, 443 Mich 693; 506 NW2d 482 (1993). [People v Moore, unpublished opinion per curiam, issued November 28, 1994 (Docket No. 145614), p 3.]
When a defendant shall be acquitted or convicted upon any indictment for an offense, consisting of different degrees, he shall not thereafter be tried or convicted for a different degree of the same offense; nor shall he be tried or convicted for any attempt to commit the offense charged in the indictment or to commit any degree of such offense. [MCL 768.33; MSA 28.1056.]
In its brief in Banks, the people merely incorporate its brief for codefendant Wilson, and then argue that the Brown exception should apply to this case.
In Thomas, the court held that there was more than one agreement. However, the facts of Thomas are significantly different than those in this case. In Thomas, the defendants were charged with conspiracy to travel interstate for the promotion of unlawful activity arising out of hidden interests by organized crime groups in casinos. The defendants were skimming off of different casinos with different partners in the second conspiracy. Therefore, there was more than one agreement.
The testimony of Mr. Dwayne Albert Winn was read into the record. Mr. Winn stated that Aaron Banks distributed the cocaine and collected the money from the sellers in Muskegon. However, this was known by the Muskegon authorities and alleged at the trial in Muskegon. Mr. Winn’s testimony did no more than add weight to the testimonies of Detective VanHemert, Cato Peterson, and Ronald Gardner.
Perry’s testimony dealt only with sales in Muskegon.
There was an inference made that Aaron Banks contacted one of the witnesses, Ronald Gardner, just after their arrest in Muskegon and suggested that Gardner should hire Banks’ attorney. However, the Oakland County judge ruled that this testimony was irrelevant because there was no indication that this was done to silence Gardner.
We adopted this exception in People v Harding, 443 Mich 693, 699-705; 506 NW2d 482 (1993); People v White, 390 Mich 245, 258, n 6; 212 NW2d 222 (1973).
In Tolliver, the defendant argued that the conspiracy count he was charged with was the same offense for which he had been previously convicted. He had been convicted of conspiracy with intent to distribute cocaine, possession with intent to distribute cocaine, and using and carrying firearms in relation to a drug trafficking offense.
The government did not dispute that the overt acts referred to in the superseding indictment were also the overt acts in the first conspiracy. The United States Court of Appeals for the Fifth Circuit held that the defendant proved a prima facie double jeopardy claim. The court then looked to see if the people could prove an exception by a preponderance of the evidence.
Ronald Gardner, Cato Peterson, Deputies Dale Gooden and August Panici testified at both trials. Deputy Berdinski had died between the two trials. Deputy VanHemert’s Oakland County preliminary examination testimony was read into the record in the Oakland County trial. | [
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North, J.
George A. Vincent executed his last will and testament March 17, 1919. He died May 3, 1925, at the age of 72 years. After making certain provisions in his will for his wife which never became operative because her death occurred before that of her husband, the testator directed the executor to sell the real estate and thereupon the estate
“be equally divided among my heirs as follows; to wit: (1) To my son Alfred Vincent, I give, devise and bequeath one-sixth of the entire amount constituting the aforesaid properties, after deducting from the amount such loans as may have been made by me upon his share of the estate.”
A like provision was made for each of his five living children and for a grandson who was the child of the testator’s deceased daughter. Alfred Vincent, as executor of the will, filed a bill in chancery by which he seeks a construction of this will relative to the meaning and application of the provision “after deducting from the amount such loans as may have been made by me upon his share of the estate.” Various matters have arisen incident to the settlement of this estate which seem to have necessitated the filing of this bill.
For many years before making his will, George A. Vincent had kept a book in which entries were made of various amounts of money and other items of personal property which he had given to his children. At the head of each account the name of the child concerned was written, and under the name appears these words: “What I let them have.” Some of the book entries are in the handwriting of George A. Vincent, others in the handwriting of his son Beryl. At the time of the testator’s death he had attached to some of these accounts certain notes which he had paid for the child whose name appeared on that account, and also notes from such child payable to the testator. These accounts were not regularly kept, and from them it is evident that deceased was a man of very limited education. The entries are not numerous, but they go back as far as 1893, while some of the note transactions bear date only a few months before testator’s death. An account of this character was kept as to each child. The largest of the accounts (not including notes) is a little over $300, and they are rather uniform in amount.
After making his will, and in October, 1922, George A. Vincent traded an equity in a house and lot in Durand for a contract interest in a 40-aere farm near Bancroft. He paid the balance of the contract price and secured a deed of the land subject to a mortgage of $2,000 April 4, 1923. On the 19th of October, 1923, he executed and delivered a warranty deed of this 40 acres subject to the $2,000 mortgage to his son Eugene Vincent and his wife, Martha. This deed was recorded December 19, 1923. The executor and other legatees contend that the value of this land should be held to be a charge (i. e. an ademption) against Eugene’s legacy. Eugene asserts that this conveyance to him was a gift by his father and not intended as an advancement against his share of -the estate. Besides presenting this issue, the plaintiff seeks to secure an adjudication as to the kind or character of transactions that shall be taken into consideration in determining the amounts of the respective bequests. In construing the clause under consideration, the trial court held the testator in using the words such loans
“intended to include all advances which had been made to any of his children, either as money loaned, personal property given, or land purchased and deeded, therefore in the final distribution of the estate all such leans, advances, and gifts shall be deducted from the share of each child in the estate upon proper showing-being made as to the amount thereof in the probate court.”
The defendant Eugene Vincent appealed from this decree.
Should the conveyance of real estate to Eugene be held to be an advancement and pro tanto charged against his legacy? It is settled law in this State that a bequest to a child of a testator may be adeemed by a subsequent conveyance of real estate -by the parent to the child.
“A residuáry bequest to a child of a testator will be held to have been adeemed pro tanto by a subsequent conveyance of real estate to the child, where it clearly appears that such was the intention of the testator.” Carmichael v. Lathrop, 108 Mich. 473 (32 L. R. A. 232).
Likewise, if it clearly appears that the subsequent conveyance was a gift and not intended as an advancement, it will be so construed. It will be decisive of this issue in this case either if it “clearly appears that the intent of the testator” was that Eugene’s legacy should be adeemed pro tanto by the conveyance of the real estate; or if, on the contrary, it clearly appears the donor did not intend thereby to change the legacy, but instead' conveyed the farm as a separate and independent gift to Eugene.
All authorities agree that ademption is a matter of intent. Carmichael v. Lathrop, supra. The intent which controls is that of the donor at the time of the-gift, and not the intent of the testator at the time of executing his will. In this case there is neither an occasion nor a justification for questioning appellee’s contention that at the time George A. Vincent made his will he intended each of his six legatees should share equally in his estate after being charged with advancements. But it does not follow from this that more than four years later, when he gave the deed to his son Eugene, his conduct was still prompted and controlled by the same intent. Clearly he had the same right to change his mind touching this matter that any testator has to change the terms of his will. From a careful consideration of this record, we think it clearly and quite conclusively appears that the conveyance of the farm to Eugene was a gift inter vivos and did not affect his legacy. It is contended in behalf of the appellee that neither Eugene Vincent nor his wife, Martha, they being the grantees in the deed in question, should have been allowed to testify to matters equally within the knowledge of the deceased. 3 Comp. Laws 1915, § 12553. In the lower court this testimony was taken over objection, the court at the time reserving its ruling. There is nothing in the record which enables us to ascertain whether or not the trial judge in arriving at his determination considered this testimony. But, if we totally disregard the testimony of Eugene and his wife, as to matters equally within the knowledge of deceased, still we have the testimony of Mrs. Alice Middleton-Pryor, Sylvan Vincent, and Daniel A. Jones. Mrs. Pryor has no interest whatever in the subject-matter of this litigation. It was with her that George A. Vincent traded for the interest in the farm near Bancroft. Mrs. Pryor testified that the following occurred incident to this transaction:
“He (George A. Vincent) said he felt he was indebted to his pn Gene, that he wanted to buy this farm for him'because at the time he was at home he was not in a position to do much for him and he felt he did more for his other boys than he had for this one, that he felt he wanted to buy this farm for him where he was going to make his home. * * * He never said that Gene was going to pay him anything for it; he said he was going to give it to him. He told me that on different occasions. That is what he always said to me; he was buying it expressly for him. He did not say anything to me about Gene owing him anything for it or agreeing to pay him anything for it. He said Gene— of course I had never seen the man, I didn’t know him— * * * In those transactions I had with Mr. George A. Vincent, Eugene Vincent was not present on any of these occasions. I thought Mr. George A. Vincent was a pretty good business man, very sane mentally. * * * Mr. Vincent certainly told me he was going to give this to his son; one reason I remember that is because that is all he told me he wanted the farm for.”
Sylvan Vincent is a son of Eugene and Martha Vincent and was 18 years of age at the time he testified in this case. The following is from his testimony:
“He (George A. Vincent) said he had given it (the farm) to him (Eugene Vincent); he said he presumed he had done more for him than the rest and he deserved it and he gave it to him.”
Daniel A. Jones was the scrivener who prepared the will of George A. Vincent and also the deed from the father to the son. He testified in part as follows:
“The day I drove him (George A. Vincent) to look at the farm he talked quite a little bit about Gene. He said, ‘He has had quite a little tough luck at Milford besides what he had done at home. He was the boy that stood by me through thick and thin and stayed with me until he was 25, and the rest went away before they were 21. I never paid him any wages during that time and I always felt I ought to do something for him. That is- the reason I want this farm.’ * * * I asked (at the time of preparing the deed) the usual question about the consideration and he said, ‘Why, make it one dollar; I guess that will be enough.’ * * * At the time we went over to see the farm he said he wanted to have Gene there with him; he was too far away. * * * He said, T am going to have a room there for myself. I am going to be there part of the time with Geney and part of the time with Beryl.’ ”
This witness also testified that after the deed had been signed by George A. Vincent and delivered to his son Eugene and after Eugene and his wife had left the room, Mr. George. A. Vincent said: “What you have done here today I want you to keep to yourself; say nothing about it to any one.”
The testimony of a contrary purport in this record consists principally in proof of admissions said to have been made by Eugene. There is testimony that on one occasion in a conversation with Alfred, Eugene said, “Pa deeded me that farm up there, and I don’t know what he charged me for it and really meant for it, and if you boys aren’t satisfied I will deed it back and I will divide it up;” and at a later date, upon being asked by Alfred what he intended to do about deeding the place back “so that the appraisers could appraise it along with the other properties,” Eugene said, “I don’t know, Al, I haven’t — I don’t know what father intended to charge me for it or what he intended to do. I haven’t made up my mind.” Mrs. Emily Dodge, the widow of Lloyd Vincent, testified that on one occasion Eugene made an admission of similar import in her presence. These alleged admissions are denied or admitted in somewhat different form by Eugene. Alfred also testified, “He (George A. Vincent) always told me that he wanted each and all of his children to have exactly alike of his property. That $200 note I gave (January 17, 1919) is the last time I remember hearing him say that.”
In considering the foregoing testimony in connection with the other proof in the case, it must be borne in mind that the will was prepared in the same office and by the same man as was the deed from the father to Eugene. The conveyance of the land was. necessarily by deed, witnessed by two persons and duly acknowledged. Not only is there no proof of an intention at that time on the part of George A. Vincent that the value of this real estate should be deducted from Eugene’s legacy, which might very readily and very naturally have been inserted in the instrument itself, but instead the deed recites that it was given for the nominal consideration of one dollar; and, with the evident intent of withholding knowledge of this deed from the other children, the scrivener was cautioned as to secrecy. The testimony surrounding this whole transaction relative to the , farm tends to establish that the deeding of this property to Eugene' and his wife was an independent gift; that it was not intended to affect his legacy under the will, and it must be so held.
Eugene Vincent is the only party appealing, and the issue above decided is the only one stressed in his brief; but because it may be helpful to those charged with closing this estate, and because it may save future litigation between these parties, this will should be further construed to this extent: The meaning of the word “loans” as used in the various clauses of paragraph three, in the absence of proof establishing a contrary conclusion as to particular items, is broad enough to cover the accounts kept in the testator’s books (including those wrongfully removed therefrom, if any) ; and to cover the notes not entered in the book account but owing to the estate or paid by the estate after the death of the testator. This holding conforms to the meaning the testator intended to give this word as indicated by his declaration made at the time he executed his will, as follows: “The loans consist of notes and accounts, a little of both. The book was what I want them to settle by.” Another reason for including the notes above mentioned is that the testator attached these various notes to the respective accounts in the book and evidently considered them a part of the book account.
Because of his death since the execution of the will, the share of Lloyd Vincent will go to his children. 3 Comp. Laws 1915, § 13793. As a legatee under this will, testator’s grandson, Raymond Atherton, stands in the place of his mother, Pearl Vincent Atherton. Therefore in fixing the.amount of each of these portions of the estate, the same method should be followed as though Lloyd and Pearl were living, i. e., the items chargeable to them respectively should be charged against, these respective shares.
For the purpose of equalizing shares on the distribution of this estate, interest at the legal rate should be computed on advancements from the date of the testator’s death, but not before, unless there is some provision in the acknowledgment or in the declaration of the advancement justifying an interest charge. Sprague v. Moore, 130 Mich. 92.
A decree may be entered in this court in accordance herewith and the record remanded to the circuit court of Shiawassee county with ■ directions to certify the case back to the probate court for further proceedings therein. The appellant will have costs in this court taxed against the estate.
Flannigan, C. J., and Fellows, Wiest, Clark, McDonald, Bird, and Sharpe, JJ., concurred. | [
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Riley, J.
In this appeal, we are asked to examine whether a woman who was injured when she slipped and fell on the ice while she entered her parked motor vehicle may recover the alleged cost of her medical expenses from her no-fault automobile insurer as a first-party claimant under the no-fault act. On the undisputed facts of this case, plaintiff established as a matter of law that her injury arose from the use of her parked motor vehicle as a motor vehicle under the no-fault act. We reverse the decisions of the Court of Appeals and circuit court and remand for further proceedings.
I. FACTS AND PROCEEDINGS
On December 23, 1991, plaintiff Carol Putkamer and her sister, Sandy, drove from Lansing to Alpena to spend Christmas with their parents. After unloading their luggage and gifts at their parents’ home, plaintiff and her sister planned to travel to their brother’s home. While plaintiff was getting into her vehicle on the driver’s side, she fell on the ice and was injured. She described the accident as follows:
Sandy was already seated in the passenger seat of my car, which was parked in my parents’ driveway. I then walked to my car, opened the driver’s door and started to get in my car. While shifting my weight to my left leg and attempting to place my right foot on the driver’s side floor board, I lost my footing and fell. The next thing I knew, I was sitting on the ground with my left hand gripping the inside door closure of my car.
Plaintiff allegedly suffered serious injuries to her back that precipitated a disc herniation on April 5, 1992, which required a foot brace, a lumbar brace, extensive medications, and substantial rest.
Consequently, almost one year later, on December 3, 1992, plaintiff sought insurance relief for her medical expenses from her no-fault automobile insurer, defendant Transamerica Insurance Corporation of America. In a letter dated April 21, 1993, defendant insurer refused to provide her benefits, noting that plaintiff “merely fell,” and concluded that “[t]here is no concrete evidence that [you] suffered an accidental bodily injury as a result of a motor vehicle accident ... as defined by the Michigan No-Fault Statute.”
On April 20, 1993, plaintiff brought this action against defendant insurer for first-party benefits for her injury, claiming that her injury arose out of the use of her motor vehicle under the no-fault act. Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that there was no genuine issue of material fact that the injury occurred when plaintiff slipped on the ice and that the involvement of the parked motor vehicle was only incidental to her injury. In a written opinion, the trial court granted the motion in favor of defendant:
This Court is of the opinion that it makes no difference . . . whether [p]laintiff was “entering into” the vehicle at the time she slipped on the ice. . . .
[A] causal connection between the alleged injuries suffered by [pjlaintiff and her maintenance or use of a motor vehicle, required to bring her within the scope of the Michigan No-Fault Act, does not exist.
Plaintiff appealed this decision and, on August 21, 1995, the Court of Appeals affirmed in a peremptory order. This order provided in full:
Pursuant to MCR 7.214(E) and 7.216(A)(7), the Court dispenses with oral argument and affirms the Alpena Circuit Court’s order for summary disposition in this cause. Granting that plaintiff was “entering into” her automobile at the time of injury, the injury was occasioned by a slip and fall due to icy conditions. Plaintiff’s injury thus fails to bear the requisite causal connection to the ownership, maintenance or use of a parked vehicle as a motor vehicle. Dau benspeck v Automobile Club of Michigan, 179 Mich App 453, 455 [446 NW2d 292] (1989), Rajhel v Automobile Club Ins Ass’n, 145 Mich App 593, 595 [378 NW2d 486] (1985), and Block v Citizens Ins Co of America, 111 Mich App 106, 109 [314 NW2d 536] (1981). [Entered August 21, 1995 (Docket No. 170144).]
Plaintiff appealed this decision, and we granted leave to appeal.
H. ANALYSIS
A. STANDARD OF REVIEW
Defendant brought its motion for summary disposition under MCR 2.116(C)(10). In reviewing such a motion, a trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence in a light most favorable to the nonmoving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). A trial court grants the motion where there is no genuine issue of material fact. Id.
The issue in the instant case is whether there was a genuine issue of material fact regarding whether plaintiffs injury was related to the use of her vehicle under the no-fault act, MCL 500.310Í el seq.-, MSA 24.13101 et seq. As the Court of Appeals has noted, where there is no dispute about the facts, the issue whether an injury arose out of the use of a vehicle is a legal issue for a court to decide and not a factual one for a jury. Krueger v Lumbermen’s Mut Casualty Co, 112 Mich App 511, 515; 316 NW2d 474 (1982). See also Wills v State Farm Ins Cos, 437 Mich 205, 208 (Cavanagh, C.J., lead opinion), 215-216 (Riley, J.), 216 (Griffin, J.); 468 NW2d 511 (1991).
In resolving this dispute, we must interpret statutes within the no-fault act. As the cardinal rule of statutory interpretation, this Court gives effect to the Legislature’s intent. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). Where the language of a statute is clear and unambiguous, the courts must apply the statute as written. Id. This Court gives the statute’s language its ordinary and generally accepted meaning. Id. The no-fault act is remedial in nature and is to be liberally construed in favor of the persons who are intended to benefit from it. Id. at 28. An issue of statutory interpretation is a question of law subject to de novo review. See Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
B. STATUTE
The Michigan no-fault insurance act requires a no-fault automobile insurer to provide first-party injury protection for certain injuries related to a motor vehicle:
Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter. [MCL 500.3105(1); MSA 24.13105(1).]
The injury in the instant case involved a parked motor vehicle. The no-fault act expressly addresses a claim that an injury occurred while the motor vehicle was parked:
(1) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless any of the following occur:
(a) The vehicle was parked in such a way as to cause an unreasonable risk of bodily injury which occurred.
(b) . . . [T]he injury was a direct result of physical contact with equipment permanently mounted on the vehicle, while the equipment was being operated or used, or property being lifted onto or lowered from the vehicle in the loading or unloading process.
(c) . . . [T\he injury was sustained by a person while occupying, entering into, or alighting from the vehicle. [MCL 500.3106; MSA 24.13106 (emphasis added).][ ]
Where the motor vehicle is parked, the determination whether the injury is covered by the no-fault insurer generally is governed by the provisions of subsection 3106(1) alone. See Winter v Automobile Club of Michigan, 433 Mich 446, 457; 446 NW2d 132 (1989). There is no need for an additional determination whether the injury is covered under subsection 3105(1). Id. at 458, n 10.
The underlying policy of the parked motor vehicle exclusion of subsection 3106(1) is to ensure that an injury that is covered by the no-fault act involves use of the parked motor vehicle as a motor vehicle. Miller v Auto-Owners Ins Co, 411 Mich 633, 639-640; 309 NW2d 544 (1981). This Court explained the purpose of the parking exclusion in Miller, supra at 639-640:
Injuries involving parked vehicles do not normally involve , the vehicle as a motor vehicle. Injuries involving parked vehicles typically involve the vehicle in much the same way as any other stationary object (such as a tree, sign post or boulder) would be involved.
The stated exceptions to the parking exclusion clarify and reinforce this construction of the exclusion. Each exception pertains to injuries related to the character of a parked vehicle as a motor vehicle — characteristics which make it unlike other stationary roadside objects that can be involved in vehicle accidents. [Emphasis in original.]
Plaintiff claims that the exception in subsection 3106(l)(c) applies because she was injured while entering her vehicle. This Court elaborated in Miller, supra at 640, on the underlying purpose of subsection 3106(l)(c) as an exception to the parked vehicle exclusion:
[Subjection 3106(c) [now subsection 3106(l)(c)] provides an exception for injuries sustained while occupying, entering or alighting from a vehicle, and represents a judgment that the nexus between the activity resulting in injury and the use of the vehicle as a motor vehicle is sufficiently close to justify including the cost of coverage in the no-fault system of compensating motor vehicle accidents.
Consequently, in order for this exception to apply, an injury that occurs while someone occupies, enters, or alights from the vehicle must be “directly related” to the vehicle’s character as a motor vehicle. Id. at 640.
In reviewing the requirement of subsection 3105(1) that the injury arise out of the “use of a motor vehicle as a motor vehicle,” this Court concluded that the Legislature has provided that there should only be coverage where the causal connection between the injury and the use of the motor vehicle was more than incidental, fortuitous, or “but for.” See Thornton v Allstate Ins Co, 425 Mich 643, 659; 391 NW2d 320 (1986). See also Bourne v Farmers Ins Exchange, 449 Mich 193, 198; 534 NW2d 491 (1995); Marzonie v Auto Club Ins Ass’n, 441 Mich 522, 530; 495 NW2d 788 (1992). Similarly, where an injury occurs that is related to a parked motor vehicle, subsection 3106(1) requires that there be a sufficiently close nexus between the injury and the use of the vehicle as a motor vehicle to justify recovery. See Miller, supra. Therefore, we believe that subsection 3106(1), like subsection 3105(1), requires that, in order to recover, the injury must have a causal relationship to the motor vehicle that is more than incidental, fortuitous, or but for.
In summary, where a claimant suffers an injury in an event related to a parked motor vehicle, he must establish that the injury arose out of the ownership, operation, maintenance, or use of the parked vehicle by establishing that he falls into one of the three exceptions to the parking exclusion in subsection 3106(1). In doing so under § 3106, he must demonstrate that (1) his conduct fits one of the three exceptions of subsection 3106(1); (2) the injury arose out of the ownership, operation, maintenance, or use of the parked motor vehicle as a motor vehicle; and (3) the injury had a causal relationship to the parked motor vehicle that is more than incidental, fortuitous, or but for.
C. APPLICATION
In the instant case, there is no dispute that plaintiff was entering the vehicle when she slipped on some ice and was injured. Moreover, there is no dispute that plaintiff was entering the vehicle with the intention of traveling to her brother’s home. Hence, as a matter of law, she was using the parked motor vehicle as a motor vehicle when she was entering the vehicle.
Furthermore, in examining the necessary causal relationship, plaintiff’s injury bore a substantial causal relationship to her use of the parked motor vehicle as a matter of law. There is no dispute that, after opening the door of her parked vehicle, she lifted her right leg into the vehicle, shifted her weight to her left leg, and slipped on the ice while stepping into the vehicle. The act of shifting the weight onto one leg created the precarious condition that precipitated the slip and fall on the ice. This injury appears to be exactly the kind of injury that the Legislature decided should be covered when it established an exception to the parked vehicle exclusion for entering a parked vehicle in subsection 3106(l)(c).
For these reasons, we conclude that plaintiff was injured while entering her vehicle and that her injury arose out of the use of her parked vehicle as a motor vehicle under subsection 3106(l)(c) as a matter of law. There was no genuine issue of material fact on these questions. The circuit court erred in granting summary disposition in favor of defendant under MCR 2.116(C)(10). We reverse the decisions of the Court of Appeals and the circuit court and remand for further proceedings consistent with this opinion.
HI. CONCLUSION
Plaintiff has established as a matter of law that her injury arose out of her use of the parked motor vehicle under § 3106 because there is no dispute that (1) she was injured while entering the parked motor vehicle under subsection 3106(l)(c), (2) her injury was related to her use of the vehicle as a motor vehicle, i.e., she was going to be driving the automobile when she entered it, and (3) there was a sufficient causal connection between her injury and the use of her parked vehicle. We reverse the decision of the Court of Appeals and remand the case to the circuit court for further proceedings.
Mallett, C.J., and Brickley, Boyle, Weaver, and Kelly, JJ., concurred with Riley, J.
Cavanagh, J., concurred only in the result.
In response to the interrogatory that asked her to detail her ipjuries that resulted from her accident, plaintiff stated:
My fall caused me severe, constant and ongoing back pain. This terrible pain then started to radiate into my left buttock and left leg. On April 5, 1992, my disc herniated. On April 15, 1992, I had surgery for left L 4-5 disc herniation.
453 Mich 901 (1996).
In Wills, a majority of the Court agreed that where the facts are not disputed, the determination whether an automobile is parked in such a way so as to create an unreasonable risk of bodily injury under the no-fault act is an issue of statutory construction for a court to decide.
There is an exception to subsections 3106(l)(b) and (c) in subsection (2) under certain conditions for an employee whose injury occurs during the course of his employment and worker’s disability compensation would be available. This exception is not relevant to the instant controversy.
This general rule may not apply where the claim is that the injury arose out of the maintenance of a parked vehicle. A claimant may recover under his no-fault insurer under subsection 3105(1) without regard to whether the vehicle may be considered “parked” under subsection 3106(1). See Miller v Auto-Owners Ins Co, 411 Mich 633, 641; 309 NW2d 544 (1981). We cautioned in Winter, supra at 457, that Miller was “limited to the narrow circumstances of that case.”
In Winter, supra at 458, n 10, we quoted a passage from our decision in Bialochowski v Cross Concrete Pumping Co, 428 Mich 219, 229; 407 NW2d 355 (1987), and disapproved of it:
In Bialochowski, supra at 229, we stated:
“Having concluded that the equipment truck was a motor vehicle being used as a motor vehicle, our inquiry is not complete. In order to receive no-fault benefits for an injury involving a parked vehicle, one of the criteria established in § 3106 of the no-fault act must be met.”
To the extent that this passage can be read to mean that a determination of whether § 3105(1) is fulfilled is to be made separately from a determination of whether § 3106(1) is fulfilled, it is overruled. [Winter, supra at 458, n 10.]
See, e.g., Gooden v Transamerica Ins Corp of America, 166 Mich App 793, 795, 805-806; 420 NW2d 877 (1988), in which the Court of Appeals properly concluded that the claimant was not using the parked motor vehicle as a motor vehicle at the time of his injury because he was using it as a “scaffold” when he climbed on the vehicle like “a perch ... to position and stabilize the ladder” from which he was chipping ice off the roof of his friend’s house.
This conclusion is generally consistent with the analyses of the decisions of the Court of Appeals that have required a claimant to prove that his injury was causally related to his use of the parked motor vehicle. See, e.g., Shanafelt v Allstate Ins Co, 217 Mich App 625, 633; 552 NW2d 671 (1996) (identifying the requirement as the “causative or causal nexus requirement”); Hunt v Citizens Ins Co, 183 Mich App 660, 664; 455 NW2d 384 (1990) (“sufficient causal nexus between the use of the motor vehicle and the injury”); Teman v Transamerica Ins Co of Michigan, 123 Mich App 262, 266; 333 NW2d 244 (1983) (“causal connection between the injury and use of the vehicle”).
We expressly overrule the Court of Appeals decision in McPherson v Auto-Owners Ins Co, 90 Mich App 215, 220; 282 NW2d 289 (1979), in which the Court had concluded that there need not be a causal connection and instead required only that the vehicle provide “the occasion for the injury.” The Court of Appeals had previously disapproved of this analysis. See Gooden, n 7 supra at 798 (“Considering the unanimity of post-McPherson decisions in requiring a separate showing that the motor vehicle was being used as a motor vehicle, we are confident that that case [McPherson] has long since been laid to rest”).
In its response to plaintiffs motion for summary disposition, defendant stated: “Discovery is now complete . . ., and it is umefuted that Defendant [sic, plaintiff] slipped on the ice while getting into the motor vehicle.”
The circuit court relied primarily on the Court of Appeals decision in King v Aetna Casualty & Surety Co, 118 Mich App 648; 325 NW2d 528 (1982), in reaching its decision. In King, the plaintiff was injured when he slipped and fell on ice as he walked toward his motor vehicle. He was holding a bag of groceries and fell when he reached to open the door with his car keys. The Court of Appeals properly concluded that he was not entering his vehicle when he slipped and fell and thus did not qualify for the entering exception to the parking exclusion under subsection 3601(c), now subsection 3601(l)(c). Id. at 651. However, the Court went on, in dicta, to state that there would have been an inadequate causal relationship between the injury and motor vehicle’s use even if he had been entering the vehicle:
We have no difficulty concluding that plaintiff has not shown a causal connection between the use, etc., of his parked vehicle and his injuries. Slipping on ice is simply not foreseeably identifiable with the act of entering a vehicle. It was the ice on the parking lot that caused plaintiff’s injuries; the involvement of his parked vehicle was merely incidental. Consequently, even if we were to find that plaintiff was “entering into" his vehicle when the accident occurred, we would nevertheless conclude that plaintiff was not entitled to no-fault benefits. [Id. at 652 (emphasis added).]
This further analysis is wrong. There is a sufficient causal connection, as contemplated by this exception (now subsection 3106[l][c]) to the parking exclusion, for the case in which a plaintiff is injured when he has opened the door to enter the parked vehicle, as in this particular case, and slips and falls on ice because he has shifted his weight while stepping into the vehicle.
The Court of Appeals relied on three of its previous decisions in affirming the circuit court’s decision to grant summary disposition to defendant: Daubenspeck, Rajhel, and Block. In Daubenspeck and Rajhel, each plaintiff was injured while maintaining the vehicle when the plaintiff slipped and fell. Daubenspeck slipped and feH while refueling his automobile, Daubenspeck, supra at 454, and Rajhel slipped and fell on ice while walking away from her disabled car and toward a tow truck she had called, Rajhel, supra at 594. In each case, the Court of Appeals denied recovery under subsection 3105(1) because there was not the requisite causal connection. These cases are distinguishable from the instant one because they involved maintenance of a vehicle under subsection 3105(1) and this case involves the entering exception under subsection 3106(l)(c). In Daubenspeck and Rajhel, the plaintiffs were not entering into or alighting from the vehicles when the slip and fall occurred. Neither of these cases supports the proposition that the causal connection between an injury that results from slipping on ice while stepping into a parked motor vehicle and the use of the parked motor vehicle is merely incidental.
In Block, supra at 107, the plaintiff slipped and fell on ice while returning to her vehicle, but before she reached it. The Court of Appeals concluded that the plaintiff could not establish the requisite causal connection between the slip and fall and the use of her parked motor vehicle under § 3106. Id. at 108-109. This is the proper result because the plaintiff was neither entering into or alighting from her vehicle at the time of the injury, unlike the instant case. This case does not support the Court of Appeals decision here because the facts of the instant case are distinguishable. | [
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Bird, J.
Plaintiff is a manufacturer of automobile bodies. It has a plant at Ionia and one at Grand Rapids. In October, 1924, it was making bodies in Grand Rapids for the Maxwell Motor Company of Detroit. It was transporting them overland to Detroit by automobile trucks. The plaintiff desired some insurance on the transportation to protect it against fire and the perils of the highway. On October 15, 1924, defendant issued to it a policy covering these risks. Soon thereafter a loss by fire occurred. Proofs of loss were sent to the company. The insurance company investigated, and agreed with plaintiff that its loss amounted to $1,361.23. The defendant did not pay the loss, but soon thereafter denied liability, canceled the policy, and tendered to plaintiff the premium which it had paid. The reasons for cancellation were:
“That a previous policy of the same nature, in which this assured was interested, was canceled by the company on account of the experience which that company had, and' that this risk had been canceled by a previous underwriter on account of losses, contrary to your representations to us.”
In support of this defense defendant showed that plaintiff secured the insurance from a local insurance company, the Grinnell-Row Company, at Grand Rapids, acting as brokers in the matter; that upon inquiry for rates, etc., the defendant stated, in the same letter in which the rates were quoted, the following:
“These quotations are based upon the past experience having been satisfactory, and we shall be glad if you will advise us as to the losses that have been sustained during the past two years.”
No answer was made to this inquiry by the brokers, and later, when the local company ordered the policy, the defendant replied:
“On referring the matter to the representative of the company, we are informed that before issuing a binder the company would wish to have a reply to our communication of October 8th. In other words, if similar insurance has been carried and subsequently canceled on account of poor experience, the St. Paul would not wish to become interested; therefore, we would like to have advices as to whether any company has canceled or refused to issue a contract, and if that answer be in the negative then- we should be advised as to the loss experience.”
Upon receipt of this the local company communicated with plaintiff, and afterwards sent the following wire to the defendant:
“Be Hayes-Ionia Company: No company has carried or refused insurance on this risk. Experience has been good. Only four bodies slightly damaged in six months.”
Upon receipt of this telegram the defendant accepted the application and issued the policy. The defendant, after showing this, offered four vouchers of the Automobile Insurance Company, under policy IMT-2179, paid to the Hayes-Ionia Company, and also vouchers for two claims under policy IMT-2068. All of these claims occurred in 1922, and aggregated the sum of $405.20.
The plaintiff’s showing with reference to these charges was that the insurance policy IMT-2179 was taken out originally by Ivan Horton, the operator of the truck. That policy was taken out in 1922, and covered a different route than the policy in suit. That policy covered bodies which were being transported from Ionia to Lansing. It is shown that plaintiff had no interest in those bodies after they left its factory, because they were sold to the Reo Motor Car Company, f. o. b. Ionia; that when an automobile body was injured the driver would return it to plaintiff to- make repairs. The repairs were made by plaintiff, and Horton paid for them. Horton appears to have been a poor business man, and was slow in making claims and in furnishing proofs of loss and paying premiums. He was also slow in paying plaintiff for repairs. The insurer became dissatisfied, and a conference of the three parties was had, and it resulted in having plaintiff’s name added to a new policy, and, thereafter, claims were paid to plaintiff instead 'of to Horton, and the plaintiff also paid the premiums and saw that the proofs of losses were made. This policy to Horton was surrendered, and not canceled, as is claimed by defendant.
It is further the claim of the plaintiff that the inquiry of defendant had reference to the risk which the plaintiff was then carrying between Grand Rapids and Detroit, and counsel insists that if this be the construction, the telegram sent to defendant before issuing the policy was technically correct. Counsel further claims that this question was one of fact as to what the inquiry had reference to, under all the circumstances of the case. There was also some conflict in the testimony as to what the inquiry was which was directed to the local broker, and that this was a question also for the jury.
We are impressed by a reading of the inquiry that different inferences can be drawn from the language used. There are facts and 'circumstances which support plaintiff’s contention that defendant was asking only about the risk from Grand Rapids to Detroit, the risk which the defendant was asked to assume. If the inquiry receives this construction there was no misrepresentation in the telegram. On the other hand, the inference which defendant draws is not an unreasonable one, that defendant was asking for the result of plaintiff’s experience in transporting cars by automobile. If the jury in a retrial should take defendant’s view, a new question would then arise as to whether plaintiff’s reply should have included its experience with reference to a policy in which it had only a nominal interest.
There may be other minor questions of fact, but this is the important one, and the one upon which the case turns, and we think it should have been submitted ,to the jury. We think the trial court was in error in directing a verdict for defendant.
The judgment is reversed and a new trial ordered, with costs of this court to plaintiff.
Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.
The late Justice Snow and Justice Steere took no part in this decision. | [
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Boyle, J.
We granted leave to appeal to examine the relationship between courts of general jurisdiction and the primary jurisdiction of the Michigan Public Service Commission (MPSC). Specifically, we address the question whether a circuit court may entertain a cause of action against a telephone company alleging negligence, despite the mpsc’s primary jurisdiction over customer claims arising under MPSC tariffs. We also address the applicability of Mpsc Tariff 7 to the plaintiffs case.
For the reasons that follow, we hold that, although a cause of action in tort against a telephone company or a claim that the company has violated the regulatory code or tariff may proceed in a court of general jurisdiction, the doctrine of primary jurisdiction requires dismissal of plaintiffs claim because it arises solely out of the contractual relationship between the telephone company and the plaintiff, its customer, and is limited by Tariff 7.
I. FACTS and proceedings
Plaintiff is a commercial and residential construction company located in Clinton Township. In May, 1991, plaintiff moved its place of business to a new address and requested that defendant Michigan Bell Telephone Company transfer its telephone service to the new address. Upon moving to the new address, plaintiff experienced various problems with its telephone service. Michigan Bell attempted to correct these problems by testing the line for trouble and by sending out repair personnel. Michigan Bell’s records indicate that among the causes for these problems were unauthorized drop lines, underground cable damage, and problems with the plaintiff’s own equipment.
In January, 1992, plaintiff filed a complaint in Macomb Circuit Court alleging negligence on the part of the defendant in installing and maintaining plaintiff’s telephone service, proximately causing a great number of calls from customers and others not to be connected to plaintiff, and resulting in loss of business revenue in excess of $362,000. The complaint was later amended to add a res ipsa loquitur count and a wilful misrepresentation count based on a June, 1991, statement by the defendant that the problems had been corrected.
The defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(4), arguing that the MPSC had “primary jurisdiction” over the plaintiff’s claim, and that plaintiff had not exhausted its administrative remedies. Macomb Circuit Judge George C. Steeh granted the motion, concluding that the plaintiff’s claims were within the jurisdiction of the MPSC, despite the allegations of negligence. The judge reasoned that there was no cause of action in tort where “the parties’ relationship was purely contractual in nature since any alleged duties owed to plaintiff by defendant were governed by the MPSC tariffs.”
The Court of Appeals affirmed in an unpublished per curiam opinion. Like the trial court, the Court of Appeals reasoned that the defendant’s only duty to the plaintiff arose “as a result of a contractual agreement between defendant and a specific individual or entity.” Unpublished opinion per curiam, issued February 27, 1995 (Docket No. 164509), slip op at 1. Thus, the Court concluded, plaintiff had no cognizable cause of action in tort and was required to assert its breach of contract claim before the MPSC. Id.
Plaintiff appealed to this Court, and we now affirm the Court of Appeals decision.
H. PRIMARY JURISDICTION
A
Examination of the jurisdictional issue begins with this Court’s decision in Valentine v Michigan Bell Telephone Co, 388 Mich 19, 25-26; 199 NW2d 182 (1972). In Valentine, we affirmed the dismissal of the plaintiff’s claims in the context of a circuit court complaint seeking a declaration that the MPSC regulations limiting liability were “null and void as against public policy,” and alleging “breach of contract, gross negligence, fraud and misrepresentation, malicious and fraudulent failure to provide reasonably adequate equipment and facilities and service, and willful and wanton negligence.” Id. at 21-22.
Although the issue of primary jurisdiction was raised, we did not explicitly address the doctrine. Thereafter, panels of the Court of Appeals expressed uncertainty regarding the affect of the Valentine decision on the doctrine of primary jurisdiction in the context of suits against public utilities.
Primary jurisdiction “is a concept of judicial deference and discretion.” LeDuc, Michigan Administrative Law, § 10:43, p 70. The doctrine exists as a “recognition of the need for orderly and sensible coordination of the work of agencies and of courts.” White Lake Improvement Ass’n v City of Whitehall, 22 Mich App 262, 282; 177 NW2d 473 (1970). In White Lake, the Court of Appeals correctly noted that “[t]he doctrine of primary jurisdiction does not preclude civil litigation; it merely suspends court action.” Id. at 271. Thus, LeDuc notes, “[p]rimary jurisdiction is not a matter of whether there will be judicial involvement in resolving issues, but rather of when it will occur and where the process will start.” Id. at § 10:44, p 73. A court of general jurisdiction considers the doctrine of primary jurisdiction “whenever there is concurrent original subject matter jurisdiction regarding a disputed issue in both a court and an administrative agency.” Id. at § 10:43, p 70.
In Attorney General v Diamond Mortgage Co, 414 Mich 603, 613; 327 NW2d 805 (1982), we applied the United States Supreme Court’s definition of the doc trine from United States v Western P R Co, 352 US 59; 77 S Ct 161; 1 L Ed 2d 126 (1956):
“ ‘Primary jurisdiction’ . . . applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.”[ ]
The Court observed, “No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation.” Id. at 64.
Professors Davis and Pierce identify three major purposes that usually govern the analysis when a court is deciding whether to defer to an administrative agency under this doctrine. First, a court should consider “the extent to which the agency’s specialized expertise makes it a preferable forum for resolving the issue . . . .” Second, it should consider “the need for uniform resolution of the issue . . . .” Third, it should consider “the potential that judicial resolution of the issue will have an adverse impact on the agency’s performance of its regulatory responsibilities.” Davis & Pierce, 2 Administrative Law (3d ed), § 14.1, p 272. Where applicable, courts of general jurisdiction weigh these considerations and defer to administrative agencies where the case is more appropriately decided before the administrative body.
In Diamond, for example, we rejected application of the doctrine because “[t]he rationales underlying the . . . doctrine [did] not support its application . . . .” Id. at 615. Speaking for the Court, Justice Coleman declined to apply the doctrine of primary jurisdiction because “the real estate brokerage business is not a heavily regulated industry of the type to which the doctrine has typically been held to apply.” Id. at 614. Additionally, she explained that the courts, “without interfering with the responsibilities of the Department of Licensing and Regulation . . . can determine what the obligations of real estate brokers are under our consumer protection, usury, and corporation laws.” Id. at 615. Finally, she observed that the nature of the factual questions in the case, whether defendant made misrepresentations in violation of the Michigan Consumer Protection Act, were not of a type to require agency expertise to evaluate. Id.
In Valentine, we held that claims by utility customers proceed in the circuit court where the “cause of action is based upon a claim that the utility has violated Public Service Commission promulgated tariffs or codes, or if the claim covers some action by the utility outside the regulations of the Public Service Commission . . . Id. at 25. While noting that where a plaintiff pleads a cause of action in tort, “the proper forum ... is a court of general jurisdiction of this State,” id. at 26, we observed with regard to contractual liability:
[T]he code or tariff is part of the contract between the parties and limits of liability therein contained are presumptively valid. Any claim based upon the contractual obligation of the parties is limited to validly promulgated provisions of the tariff or code within the authority of the Public Service Commission. Ordinarily, a party aggrieved by the provisions of a tariff or code should seek relief by an attack upon those provisions before the Public Service Commission .... [Id. (emphasis added).]
In disposing of the case by affirming the lower courts’ dismissals, the Court concluded:
No count sets forth acts or conduct of defendant that would constitute negligence, gross negligence, fraud, misrepresentation, or some other tort. As for any claim in contract, no violation of the code or tariff is pleaded. [Id. at 30.]
Thus, where a plaintiff seeks relief against a telephone company in a court of general jurisdiction, under Valentine, the court may entertain (1) a cause of action in tort, or (2) a claim that the telephone company has violated the regulatory code or tariffs. Customer claims anticipated by the tariffs and regula tions, however, are governed by those tariffs, and relief from the presumptively valid limitations on liability therein must first be sought before the MPSC.
B
The Valentine decision is in harmony with the rationale underlying the doctrine of primary jurisdiction. The circuit court has not been ousted of its original jurisdiction under art 6, § 13 of the Michigan Constitution by the regulatory legislation. Under the telephone act of 1913, the mpsc possessed the “power and jurisdiction to hear and pass upon all matters pertaining to, necessary, or incident to the regulation of all public utilities, including . . . telephone . . . .” MCL 460.6(1); MSA 22.13(6)(1). In other words, the Legislature has broadly defined the power and jurisdiction of the MPSC over such matters, without explicitly providing that this power and jurisdiction is exclusive. Moreover, this is not an area in which the regulatory scheme preempts the field altogether so that all claims must be committed to the administrative body. See, e.g., San Diego Bldg Trades Council v Garmon, 359 US 236; 79 S Ct 773; 3 L Ed 2d 775 (1959) (denying California state court jurisdiction where union picketing giving rise to allegedly tortious acts was arguably encompassed by the National Labor Relations Act, 29 USC 141 et seq.).
Causes of action in tort and those causes of action alleging that a telephone company has violated the tariffs or code are not cases in which the rationale underlying the doctrine of primary jurisdiction usually apply. The complexities of the regulatory scheme will generally not be implicated where the plaintiffs claim is for personal injury, property damage not covered by the tariffs, or other tortious activity, because the regulatory scheme is not designed to address these matters. Likewise, where the claim is that the defendant has somehow violated the tariffs or code, a court of general jurisdiction will usually be able to decide the legal issues involved in the case.
On the other hand, in Valentine we observed:
The jurisdiction of the [mpsc] is primarily prospective — a matter of promulgating regulations and setting rates. Its tariffs and regulations, if applicable, control as to the rights of the parties. The courts are primarily concerned with affording remedies for actions that have taken place. [Id. at 30 (emphasis added).]
Where the claim asserted is essentially a matter already contemplated by the controlling tariffs, such as a claim for defective telephone equipment or service, and the only issue is the extent to which those tariffs will apply, deferral to the MPSC under the doctrine of primary jurisdiction is proper. The mpsc, charged with the authority to regulate and oversee telephone companies, possesses the degree of expertise with regard to the purpose and effect of the governing tariffs to decide whether the presumptively valid tariff provisions apply to particular facts that do not constitute tortious conduct or a violation of the code or tariff. Thus, the first consideration, the need for agency expertise, weighs in favor of deferral of such matters to the mpsc.
The second consideration, the need for uniformity in deciding matters incident to the regulatory scheme, also favors deferral to the MPSC. The mpsc has broad authority to regulate the rate structure to which a telephone company is subject. MCL 460.6(1); MSA 22.13(6)(1). In so doing, it balances the need for the telephone company to cover its expenses and absorb a reasonable return against the need to maintain affordable rates for the use of telephone service by the public. Uniform results in applying the tariffs to customer claims are essential to prevent the telephone company from being exposed to unanticipated liabilities that will hinder its ability to offer affordable telephone service.
Finally, applying the third consideration, if courts were to afford remedies separate from those provided in the tariffs, despite the fact that the tariffs contemplated claims of that nature when they were approved, such remedies could frustrate not only the uniform application of the regulatory scheme but also the agency’s ability to perform its regulatory responsibilities. Thus, the considerations in favor of applying primary jurisdiction clearly favor deference to the MPSC. Primary jurisdiction over those claims covered by the tariffs allows the MPSC, through its regulatory expertise, to provide uniform and predictable results in the performance of its regulatory responsibilities. Allowing trial courts to resolve claims incident to the regulatory scheme, on the other hand, without the expertise of the mpsc, could lead to inconsistent application of the regulatory code or tariffs and competing standards for deciding when the regulatory scheme is operative. This is not what the Legislature intended when it granted the MPSC concurrent jurisdiction over matters incident to the regulatory scheme.
c
Where a customer asserts a cause of action arising purely out of the matters anticipated by the approved tariffs and code, i.e., the regulatory scheme, the doctrine of primary jurisdiction will require the court of general jurisdiction to defer to the mpsc. These matters, “pertaining to, necessary, or incident to the regulation of” the public utility, MCL 460.6(1); MSA 22.13(6)(1), are within the authority of the mpsc. Where, however, a plaintiffs cause of action against a utility company arises in tort, thus potentially requiring a remedy outside the regulatory scheme, or alleges that a telephone company somehow violated the regulatory code or the mpsc tariffs, such a cause of action may proceed in a court of general jurisdiction.
Plaintiff has not alleged any violation of the code or tariffs. Thus, the issue is whether plaintiff’s claim is properly classified as an action in tort or as a claim “pertaining to, necessary, or incident to the regulation of” a public utility.
HI. PLAINTIFFS CLAIMS
Plaintiff claims in its brief that “by negligent tortious conduct, Defendant interrupted Plaintiff’s business by negligently installing and/or maintaining telephone service to Plaintiff’s business and by negligently misdirecting telephone calls intended for the Plaintiff to other telephone subscribers.” Plaintiff’s amended complaint set out allegations of ordinary negligence, res ipsa loquitur, and wilful misrepresentation. The alleged duties owed and violated by defendant were set forth as follows:
Michigan Bell . . . owed Plaintiff a duty to conduct its business in a reasonable manner; to provide the Plaintiff with adequate telephone service . . .; to employ competent trained personnel; to maintain, inspect and use equipment in an appropriate manner so as not to injure the Plaintiff in business; and to be honest and forthright in its dealings with Plaintiff.
We agree with the plaintiff that the defendant owed these duties; however, we conclude that they arose solely out of the contractual relationship between the parties and not from any independent legal obligations supporting a cause of action in tort. Thus, they are matters incident to the regulation of the telephone company within the primary jurisdiction of the MPSC.
A
Plaintiff relies on decisions of the Court of Appeals declining to apply the mpsc’s primary jurisdiction with respect to alleged tortious activity on the part of the telephone company. Hunter v General Telephone Co, 121 Mich App 411, 421; 328 NW2d 648 (1982); Thomas v General Telephone Directory Co, 127 Mich App 788, 794-795; 339 NW2d 257 (1983). Those cases and others cited by both the plaintiff and the defendant turn on differing interpretations of what is required by Valentine in order to plead a cause of action against the telephone company in tort.
For example, in B & W Rustproofing, Inc v Michigan Bell Telephone Co, 88 Mich App 242; 276 NW2d 572 (1979), the Court reversed the circuit court’s dismissal of the plaintiff’s negligence claim where the plaintiff alleged that the defendant “failed to transfer calls to plaintiff’s new number and failed to include that number in the [new] . . . directory.” Id. at 243. The Court cited Valentine for the proposition that
“[a] claim in tort that sets forth facts which would constitute tortious conduct to the injury and damage of the claimant can also be filed in a court of general jurisdiction.” [Id. at 244 (emphasis added).]
Without further elaboration or analysis, the Court concluded, “The complaint sets forth allegations con tending that defendant acted in a negligent manner. Since the complaint alleges tortious conduct on the part of defendant it was properly brought in circuit court.” Id. at 245 (emphasis added). W E Westfall, Inc v Michigan Bell Telephone Co, 129 Mich App 301; 341 NW2d 514 (1983), followed this approach, concluding that the circuit court had jurisdiction because the “plaintiff’s complaint sets forth sufficient factual allegations to state an action in negligence.” Id. at 304.
In Hunter, supra at 415, the Court of Appeals reversed an order of partial summary judgment, allowing the plaintiff to proceed in circuit court seeking “damages for the alleged negligent, reckless, wilful, wanton, malicious and intentional misconduct of defendants.” These allegations arose from the alleged misdirection of callers attempting to reach the plaintiff’s funeral home to the funeral home of the plaintiff’s brother. Id. at 414. The trial court had granted partial summary judgment in part on the basis of the argument that the MPSC had exclusive jurisdiction over “ ‘this essentially contractual dispute.’ ” Id. at 417. Despite its conviction that liability should be governed by MPSC Tariff 7, the Court of Appeals held that it was constrained by “binding precedent” from this Court to reverse and remand the plaintiff’s theory of ordinary negligence for trial. Id. The Court read Valentine as appearing to affirm the notion that “once tortious conduct is properly alleged, a plaintiff may proceed in a court of general jurisdiction against a telephone company to recover full tort damages . . . .” Id. at 419.
The panel concluded that Valentine had essentially “emasculated” the regulatory scheme, id. at 421, but it was forced to reverse entry of partial summary judgment for the defendants.
B & W Rustproofing, Westfall, and Hunter apparently construed Valentine to resolve the jurisdictional question solely on the basis of a mere allegation of tortious conduct, without any serious inquiry into whether the facts alleged in the complaint actually supported the allegations of tortious conduct or violation of a legal duty independent of the contractual relationship. However, Valentine requires such inquiry in the very language quoted by the Court in B & W Rustproofing,
Other panels of the Court of Appeals have rejected the approach that an allegation of negligence permits a plaintiff to proceed in a court of general jurisdiction. For example, in John Cannon Agency v Michigan Bell Telephone Co, 128 Mich App 472, 476; 341 NW2d 115 (1981), the Court rejected the plaintiffs attempt to avoid mpsc limits on liability by alleging negligence in its complaint:
Plaintiff’s claim, although phrased in tort, is clearly one which is based upon the contractual obligations of the parties. The only duty alleged in plaintiff’s complaint is based upon defendant’s promise to inform persons who dialed plaintiff’s old telephone number of plaintiff’s new telephone number. Plaintiff’s argument must be rejected on the authority of Valentine, supra.
The Court of Appeals took this same approach in the instant case, stating:
In a contractual setting, a tort action must rest on a breach of duty distinct from contract. . . . Mere failure to perform an obligation under a contract cannot give rise to a negligence cause of action in tort. . . .
The instant defendant does not owe a general duty to provide and maintain telephone service to the public at large. To the contrary, defendant’s “duty” to do so only arises as a result of a contractual agreement between defendant and a specific individual or entity. . . . [A]bsent the contract for telephone service . . ., defendant did not have a “duty” to provide and maintain the phone system in question. [Slip op at 1-2. See also Heitsch v Hampton, 167 Mich App 629, 634; 423 NW2d 297 (1988) (refusing, absent extraordinary circumstances, to extend the defendant telephone company’s duty beyond its contractual obligations).]
We clarify Valentine and hold that the jurisdictional question is not to be resolved by mere allegation, but rather by analysis of whether the facts pleaded give rise to a legal duty in tort independent of breach of contract.
B
Admitting that mere failure to perform or nonfeasance would not give rise to an action in tort, plaintiff asserts that this case sounds in tort because the defendant committed misfeasance in negligently failing to properly and fully perform its contract. The question whether an action in tort may arise out of a contractual promise has not been without difficulty. Hart v Ludwig, 347 Mich 559, 560; 79 NW2d 895 (1956). However, in Hart, the Court discussed the issue at length in determining whether the plaintiff could maintain an action in tort against a defendant who failed to adequately care for the plaintiffs orchard under the parties’ oral contract. In refusing to allow the plaintiff’s action to proceed in tort, the Court explained, quoting Tuttle v Gilbert Mfg Co, 145 Mass 169, 175; 13 NE 465 (1887):
“As a general rule, there must be some active negligence or misfeasance to support a tort. There must be some breach of duty distinct from breach of contract.” [Hart at 563.]
Acknowledging that the distinction between misfeasance and nonfeasance is often difficult to discern, the Court explained that the fundamental principle separating the causes of action is the concept of duty. The Court noted those cases where misfeasance on a contract was found to support an action in tort as follows:
[I]n each a situation of peril [was] created, with respect to which a tort action would lie without having recourse to the contract itself. Machinery [was] set in motion and life or property [was] endangered. ... In such cases ... we have a “breach of duty distinct from . . . contract.” Or, as Prosser puts it . . . “if a relation exists which would give rise to a legal duty without enforcing the contract promise itself, the tort action will lie, otherwise not.” [Id. at 565 (emphasis added).]
In other words, the threshold inquiry is whether the plaintiff alleges violation of a legal duty separate and distinct from the contractual obligation. The plaintiffs action in Hart failed to state a cause of action in tort because “[t]he only duty, other than that voluntarily assumed in the contract to which the defendant was subject, was his duty to perform his promise in a careful and skillful manner without risk of harm to others, the violation of which [was] not alleged.” Id. at 565. The only other duty — to perform the promise — arose from the contract and could not support an action in tort. Id. at 565-566.
Prosser and Keeton discuss the distinction further:
Misfeasance or negligent affirmative conduct in the performance of a promise generally subjects an actor to tort liability as well as contract liability for physical harm to persons and tangible things. Generally speaking, there is a duty to exercise reasonable care in how one acts to avoid physical harm to persons and tangible things. Entering into a contract with another pursuant to which one party promises to do something does not alter the fact that there was a preexisting obligation or duty to avoid harm when one acts. [Torts, § 92, pp 656-657.]
This duty, however, does not extend to “intangible economic losses.” Id. at 657. For this type of loss, “the manifested intent of the parties should ordinarily control the nature and extent of the obligations of the parties . . . .” Id. In addition to acknowledging this distinction at least as far back as Hart, the distinction has more recently been applied to sales contracts under the UCC under the rubric of the “economic loss doctrine.” Neibarger v Universal Cooperatives, 439 Mich 512, 527; 486 NW2d 612 (1992). The concept has been approved in other contexts. See Corl v Huron Castings, Inc, 450 Mich 620, 626-628; 544 NW2d 278 (1996) (refusing to apply the collateral source rule for tort damages to an employment contract); Ferrett v General Motors Corp, 438 Mich 235, 243; 475 NW2d 243 (1991) (refusing to recognize a cause of action in tort for negligent evaluation of an employee).
In this case, as in Hart, the defendant agreed to provide the plaintiff with services under a contract. Like the defendant in Hart, Michigan Bell allegedly failed to fully perform according to the terms of its promise. While plaintiffs allegations arguably make out a claim for “negligent performance” of the contract, there is no allegation that this conduct by the defendant constitutes tortious activity in that it caused physical harm to persons or tangible property; and plaintiff does not allege violation of an independent legal duty distinct from the duties arising out of the contractual relationship. Like the plaintiff in Valentine, “regardless of the variety of names [plaintiff gives the] claim, [plaintiff is] basically complaining of inadequate service and equipment . . . .” Id. at 22. Thus, under the principles outlined above, there is no cognizable cause of action in tort.
c
Prosser and Keeton discuss “a few situations in which failure to perform a contract may amount to a tort.” Torts, § 92, p 662. Such liability applies principally to common carriers and public utilities under “the old tort duty to serve all comers which arose as to common callings before the idea of contract had developed.” Id. Although telephone companies and other utilities may appear to fall under this old duty, the comprehensive regulatory scheme set up by the Legislature and under which the MPSC was created supersedes the applicability of this duty in Michigan. Prosser & Keeton state:
Most public utilities are now rather intensely regulated .... [T]he duty and responsibilities of the regulated industries should be and are largely determined ... by the regulatory agencies. In dealing with the civil liability of a public utility . . ., primary attention has been given to the nature of the loss .... Intangible consequential damages for interruptions of service and defective performance will normally be allocated to the customer under tariff provisions approved by regulatory agencies. Substantial losses of this kind are normally incurred by industrial and commercial customers who can insure against losses. ... In the light of this regulatory process, the civil liability is neither tortious nor contractual but is rather sui generis. [Id. at 663.]
This is precisely how the regulatory scheme in Michigan was designed to work. The Legislature provided for the regulatory and jurisdictional authority of the MPSC. In the telephone act of 1913, MCL 460.6(1); MSA 22.13(6)(1) provided:
The public service commission is vested with complete power and jurisdiction to regulate all public utilities in the state .... The public service commission is vested with the power and jurisdiction to regulate all . . . services, rules, conditions of service, and all other matters pertaining to the formation, operation, or direction of such public utilities. The public service commission is further granted the power and jurisdiction to hear and pass upon all matters pertaining to, necessary, or incident to the regulation of all public utilities, including . . . telephone ....
Mpsc Tariff 7 states the following with regard to liability for damages:
C. Liability of the Company
1. In the event of an interruption to the service which is not due to the negligence or willful act of the customer, upon notice and application by the customer an allowance will be made for the time interruption continues.
2. The liability of the Company for damages arising out of mistakes, omissions, interruptions, delays, errors or defects in transmission, or failures or defects in facilities furnished by the Company, occurring in the course of furnishing service or other facilities and not caused by the negligence of the customer, or of the Company in failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision shall in no event exceed an amount equivalent to the proportionate charge to the customer for the period of service during which such mistake, omission, interruption, delay or error or defect in transmission, or failure or defect in facilities occurs.
This provision provides that where a customer’s telephone service is defective in a manner anticipated in the tariff, and it is not the customer’s fault, recovery of intangible economic losses, whatever their cause, is limited to the amount the customer paid for the service during the time it was defectively provided. Such defects, by virtue of the fact the tariff anticipated them, are matters “incident to the regula tion of” the telephone company. Tariff 7’s limitation on liability for nonperformance or incomplete performance by a telephone company is presumptively valid, and, as part of the contract between the parties, is the manifested intention of the parties to the agreement. Valentine at 25-26. If a customer is aggrieved by this contractual provision, under the doctrine of primary jurisdiction, its first remedy is before the governing administrative body — the MPSC — not a court of general jurisdiction.
D
As noted above, the problems plaintiff reported to defendant were no dial tone, false busy signals, crossed lines, inability to receive or place calls without a calling card, static, misdirection to another number, no ringing, and low volume. Assuming, as we do for present purposes, that these problems were solely the fault of the defendant, they still fall under the broad language of the tariff as “mistakes, omissions, interruptions, delays, errors or defects in transmission, or failures or defects in facilities furnished by the Company, occurring in the course of furnishing service or other facilities and not caused by the negligence of the customer . . . .” Thus, because these types of problems are anticipated by the tariffs, and are matters incident to the regulation of the utility, the plaintiffs claim falls within the primary jurisdiction of the MPSC and is limited by the tariff.
IV. CONCLUSION
The plaintiffs cause of action was properly dismissed in favor of the primary jurisdiction of the MPSC where the only duty allegedly breached was the contractual duty the defendant had to the plaintiff under the terms of the customer service relationship. The plaintiff did not allege any violation of the regulatory code or tariffs, nor did it allege acts sufficient to constitute tortious conduct. The presumptively valid and comprehensive regulatory scheme anticipated this type of liability and accounted for it adequately as a matter pertaining to the regulation of the public utility. The decision of the Court of Appeals is affirmed.
Mat.t.ett, C.J., and Brickley, Cavanagh, Riley, and Weaver, JJ., concurred with Boyle, J.
Kelly, J., took no part in the decision of this case.
The MPSC is the administrative body charged with the authority to oversee and regulate telephone services and rates. This case arose under the telephone act of 1913, MCL 484.101 et seq.; MSA 22.1441 et seq., which was repealed in 1991. The Michigan Telecommunications Act, MCL 484.2101 et seq.; MSA 22.1469(101) et seq., now governs the telecommunication industry and confers regulatory authority over the telephone services and rates in a manner similar to the telephone act of 1913. MCL 484.2201; MSA 22.1469(201). The tariffs, filed with and approved by the MPSC, govern the contractual relationship between a telephone company and its business and residential customers.
The record reveals that plaintiff reported on various dates the following types of trouble to Michigan Bell: no dial tone, false busy signals, crossed lines, inability to receive incoming calls, inability to place calls without a calling card, static on the line, ringing at another number, no ringing when calls came in, and low volume.
The parties’ experts dispute the nature and extent of any difficulty allegedly caused by the plaintiff’s equipment.
According to Professor LeDuc in his treatise, Michigan Administrative Law, “[a]n unfortunate aspect of the development of the primary jurisdiction doctrine in Michigan has been the appearance of cases which misapprehend the nature of the doctrine itself.” Section 10:60, p 93.
The circuit court granted the defendant’s motion for summary disposition. The Court of Appeals affirmed, finding that “regardless of the variety of names Valentine gave to his claim, he was basically complaining of inadequate service and equipment over which the [MPSC] had primary jurisdiction . . . [and] [a]ny appeal . . . would be to the . . . Circuit Court in accordance with MCL 484.114; MSA 22.1454.” Id. at 22. Since Valentine, the Legislature has repealed the statute providing appeal to the circuit court and replaced it with MCL 484.2203; MSA 22.1469(203), which provides for appeal of MPSC final orders directly to the Court of Appeals.
See Thomas v General Telephone Directory Co, 127 Mich App 788, 794-795; 339 NW2d 257 (1983); Denny’s Auto & Towing, Inc v Michigan Bell Telephone Co, 130 Mich App 355, 362; 343 NW2d 550 (1983); Hunter v General Telephone Co, 121 Mich App 411, 417; 328 NW2d 648 (1982).
“Primary jurisdiction has been distinguished from the exhaustion of administrative remedies by the fact that exhaustion applies when the claim can originally be brought only before an administrative agency.” Diamond, supra at 613.
This consideration has also been expressed as inquiring “whether issues of law, rather than issues of fact, are paramount.” La Salle Townhouses Cooperative Ass'n v Detroit Edison, 69 Mich App 7, 12; 244 NW2d 343 (1976) (Bronson, P.J., concurring).
In Diamond, the Attorney General brought an action in quo warranto against the defendant, a licensed real estate broker, seeking “the revocation of Diamond’s corporate privileges, relief for injured homeowners through the reformation of the mortgage loan transactions, and the imposition of penalties.” Id. at 607. The defendants argued that the Department of Licensing and Regulation should have primary jurisdiction to address certain factual disputes since “many of the acts which plaintiff has alleged would have been grounds for the suspension or revocation of their [real estate brokerage] license . . . Id. at 614.
MCL 445.901 et seq.; MSA 19.418(1) et seq.
As Judge Bronson pointed out in his concurrence in La Salle, n 8 supra at 13, “tort actions against public utilities can be decided initially by the courts even if a tariff is applicable.”
Article 6, § 13 provides in pertinent part:
The circuit court shall have original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law ....
As observed by Professor LeDuc, “the statute did not grant the agency sole jurisdiction . . . .” Id. at § 10:51, p 81.
On the other hand, the losses suffered by a business customer of the telephone company, which may be larger than those of a residential customer, are the type of losses for which the customer may obtain insurance.
In other words, we have decided the issue of primary jurisdiction as it applies to certain customer claims against a telephone company or other utility companies. Where such a claim is anticipated and governed by the MPSC tariff or regulatory scheme, the governing statutes, MCL 460.6(1); MSA 22.13(6)(1) and MCL 460.58; MSA 22.8, and the above policy considerations commit initial jurisdiction over an attack on the application of the tariff or regulation to the MPSC. See, e.g., Consumers Power Co v Michigan, 383 Mich 579, 581; 177 NW2d 160 (1970); National-Standard Co v Dep’t of Treasury, 384 Mich 184, 204; 180 NW2d 764 (1970). The procedures for MPSC hearings on such an attack are governed by MCL 484.2203(l)-(6); MSA 22.1469(203)(l)-(6) with review by the Court of Appeals as set out under MCL 484.2203(7); MSA 22.1469(203)(7), and MCL 460.59; MSA 22.9.
For example, if the customer was entitled to an allowance under the tariffs, and the telephone company arbitrarily refused the allowance, the customer could proceed in a court of general jurisdiction subject to the jurisdictional requirements of MCL 600.605; MSA 27A.605, MCL 600.8301; MSA 27A.8301, and MCR 4.003.
This is not to say that in a given case the doctrine might not be properly invoked by the court, at its discretion, if the expertise of the MPSC is necessary to the resolution of factual issues concerning matters within its regulatory powers.
The panel stated:
We have carefully considered the parties’ arguments and, from a policy standpoint, we are persuaded that defendants’ claims that their liability in this case should be governed by the tariffs and regulation are sound. On the authority of binding precedent, however, we must reverse entry of partial summary judgment for defendants and remand for trial on plaintiff’s theory of ordinary negligence.
[Id. at 417.]
Further uncertainty in this area has followed from the result in Valentine. The Supreme Court found that the plaintiff in Valentine had not pleaded [tortious] “acts or conduct of defendant. . . .” We respectfully disagree . . . and we invite the Supreme Court to clarify the significance of its holding .... [Id. at 421 (emphasis in original).]
Valentine requires that the plaintiff plead “facts which would constitute tortious conduct to the irqury and damage of the claimant . . . .“Id. at 30; B & WRustproofing at 244. Negligence actions rest on the presence of a legal duty. MCR 2.116(C)(8); Friedman v Dozorc, 412 Mich 1, 22; 312 NW2d 585 (1981).
Much of the focus in the briefs and oral argument was on the meaning of Tariff 7 and its scope with regard to which types of actions fell under the jurisdiction of the MPSC or the courts of general jurisdiction. However, a regulatory agency can neither enlarge nor contract the original jurisdiction of the courts. This provision is relevant only to the scope of a telephone company’s liability with regard to the types of problems listed. It is presumptively valid insofar as it does not conflict with governing legislation or the decisions of this Court.
We leave to the MPSC the issue whether the tariff language immediately following the above quotation further limits the company’s liability where it fails to “maintain proper standards,” etc., or exempts plaintiffs damaged by such failures from the preceding limitation on recovery. There was also much focus on this issue in the briefs and argument. Because we need not reach the issue where plaintiff’s claims all clearly fall under the preceding clause, and where the latter clause (“or of the Company in failing to maintain . . . is so poorly drafted, we defer construction to the expertise of the MPSC. We believe this is consistent with the doctrine of primary jurisdiction. However, we strongly encourage the MPSC to require more clarity when approving future tariff language. | [
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Fellows, J.
This writ of certiorari was improvidently issued. The case originated in justice’s court in the city of Detroit, and the judgment in the circuit was for $500. Certiorari should not be permitted to be used to circumvent Act No. 155, Pub. Acts 1923. However, the questions presented are meritorious, and as the case has been argued and submitted, we will treat it as here on writ of error, and the allowance of such writ will be made nunc pro tunc.
The facts briefly stated are these: Defendant Jacoby’s French Cleaners & Dyers, Inc., hereafter referred to as defendant, erected a building in Detroit. Its contractor was Gails Construction Company, who obtained some of the material which went into the building from plaintiff. Plaintiff did not give the notice to defendant required by section 14796, 3 Comp. Laws 1915, as amended by Act No. 140, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 14796). Defendant required of its contractor the affidavit provided for in that section and it was furnished. It did not show that plaintiff furnished any material or that anything was due it, and defendant settled with its contractor and paid the contract price in full. Plaintiff filed a claim of lien and defendant gave a bond under section 14802. Plaintiff later sued the contractor alone and obtained judgment. It then brought this suit against defendant and its sureties on such bond. Two questions are presented:
(1) May an action at law on the bond be maintained ?
(2) May defendant and his sureties in such action contest the validity of the 'claimed lien?
1. There is authority sustaining the contention that only by a common-law action may recovery be had on the bond. Phillips v. Gilbert, 101 U. S. 721; La Centra v. Jackson, 245 Mass. 14 (139 N. E. 429); Martin v. Swift, 120 Ill. 488 (12 N. E. 201). But the court of appeals of New York in Morton v. Tucker, 145 N. Y. 244 (40 N. E. 3), in a well-reasoned opinion held that an equitable proceeding was an appropriate remedy, and pointed out that in such a proceeding all parties could be brought before the court and their equities adjusted. This court followed the New York court in Grace Harbor Lumber Co. v. Ortman, 190 Mich. 429, which was a proceeding in equity. We had before that, in Vaughan v. Wayne Circuit Judge, 153 Mich. 478, held that where there was a common-law action by the contractor, and an equitable action to foreclose liens pending, it was proper for the trial court to defer the trial of the action at law until after the equitable action was disposed of. Later the court of appeals of New York had before it the question of whether an action at law was maintainable on the bond. Ringle v. Matthiessen, 10 N. Y. App. Div. 274 (41 N. Y. Supp. 962), was a common-law action on a bond. The decision was by the appellate division. It was held that it was maintainable. Mr. Justice Williams, who wrote for the court, reviewed the case of Morton v. Tucker, supra, and said:
“We see no reason why the plaintiffs should not have the same right to maintain a common-law action upon this bond as upon any other bond. While, very likely, the plaintiffs might, if they saw fit to do so, have brought the sureties into this foreclosure action, and have their liability therein determined (the court of appeals, in Morton v. Tucker, held such procedure might be adopted), still it would manifestly be unjust to compel the plaintiffs to adopt such procedure.”
This case went to the court of appeals and was there affirmed. Ringle v. Matthiessen, 158 N. Y. 740 (53 N. E. 1131). Consistency at least requires us to likewise follow this later holding. And it is founded on reason and common sense. An equitable proceeding is maintainable. There the equities of all the parties may be worked out. But such remedy should not be exclusive. Take the instant case: there are here no equities to be worked out, no parties other than the parties to this case who are interested. The contractor and everyone else save plaintiff have been paid. A suit in justice’s court could and should settle the controversy between the parties. To require plaintiff and parties similarly situated to file a bill bringing in all interested parties, with the delays incident to chancery proceedings, when a justice’s court case could settle the controversy ought not to be required. It would deny relief to those having small claims who can illy afford to lose them. While an equitable proceeding is maintainable, it is not exclusive, and a common-law action on the bond may be maintained.
2. The remedies being concurrent, defenses available in the statutory equitable proceeding should likewise be available in an action at law. The defendant and its sureties would have had the right to contest the validity of plaintiff’s claimed lien in the statutory equitable proceeding, and we are persuaded they have here. The courts of other jurisdictions have so held. Parsons v. Moses, 40 N. Y. App. Div. 58 (57 N. Y. Supp. 727) ; Burleigh Building Co. v. Building Co., 13 Colo. App. 455 (59 Pac. 83) ; Mitchell v. Schulte, 142 Ark. 446 (222 S. W. 365, 10 A. L. R. 887). And this court, reasoning by analogy, has likewise so held in Barnard v. McLeod, 114 Mich. 75, although the action there was on the contract. As we have pointed out, plaintiff did not give the notice required by the statute and the record establishes that defendant had no knowledge it was furnishing material. On the other hand, defendant took the necessary steps required by the statute to protect it in the payment it made to its contractor and has paid it in full. Plaintiff has not established the validity of its claimed lien.
The judgment must be reversed and a new trial granted. Defendant will recover costs of this court.
North, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Flannigan, C. J., did not sit.
The late Justice Bird took no part in this decision. | [
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Boyle, J.
We granted leave in this case to decide whether reduction of future damages to present cash value under MCL 600.6306; MSA 27A.6306 is to be calculated using compound or simple interest. We reverse the decision of the Court of Appeals and hold that simple interest is appropriate under the statute.
FACTS AND PROCEDURAL HISTORY
Plaintiff Michael Nation, an independent contractor employed by the W. D. E. Electric Company, was engaged in electrical work at the C. J. Link Lumber Company on June 24, 1992, when he fell from a ladder. He sued defendants C. J. Link, Ecolo-Tech, Inc., and W. D. E. Electric Company in the Genesee Circuit Court on various tort theories for the injuries he sustained in the fall. The jury found plaintiff sixty-five percent at fault, but awarded damages against one defendant, W. D. E. Electric, for its comparative negligence as follows: $15,000 for past lost earning capacity and medical expenses, $2,700 for past pain and suffering, $6,372 for future medical expenses, and $1,000 a year for future pain and suffering until the year 2034. The jury applied annual compound interest of five percent to the $1,000 award. It did not award damages for future lost earning capacity.
The trial court, at defendant’s request, reduced plaintiff’s future damages to a present cash value of $42,000, using compound interest. The court rejected plaintiff’s request that simple interest be employed to arrive at a present cash value of $60,611.31. The plaintiff appealed on various grounds, including whether the court used the proper method to reduce the award of future damages. The Court of Appeals affirmed, 213 Mich App 694; 540 NW2d 788 (1995), and we granted leave “limited to whether MCL 600.6306; MSA 27A.6306 requires interest compounding to reduce a jury award to present cash value.” 453 Mich 915 (1996).
i
Section 6306 provides in relevant part:
(1) After a verdict rendered by a trier of fact in favor of a plaintiff, an order of judgment shall be entered by the court . . . against each defendant ... in the following order and in the following judgment amounts:
* * *
(c) All future economic damages, less medical and other health care costs, and less collateral source payments . . . reduced to gross present cash value.
(d) All future medical and other health care costs reduced to gross present cash value.
* * *
(2) As used in this section, “gross present cash value” means the total amount of future damages reduced to present value at a rate of 5% per year for each year in which those damages accrue ....
Before 1986, under the common law, the obligation to perform the reduction of future damages to present cash value in personal injury actions was the obligation of the jury. SJI2d 53.03 instructed the jury to perform the calculation using simple interest. Under the tort reform legislation passed in 1986, § 6306 transferred the obligation to perform the calculation to the trial judge. We decline the invitation to hold that this transfer abrogated the method in place under the common-law scheme. The Legislature did not explicitly require the use of compound interest as it did in the context of judgment interest. Moreover, the Legislature contemporaneously rejected a bill seeking to require just that.
The common law has long favored simple interest and disfavored compound interest, which it has characterized as “interest on accrued interest.” See, e.g., Schwartz v Piper Aircraft Corp, 90 Mich App 324, 327; 282 NW2d 306 (1979). The Court of Appeals aptly there observed:
[T]hose courts which have dealt with similar problems have uniformly rejected compound interest except where specifically authorized by statute or in cases where compounding of interest was granted as a penalty for some misconduct on the part of a defendant. [Id. at 326.][ ]
For nearly eighty years .before the enactment of § 6306, Michigan approved the use of simple interest to reduce damages to present value. Rivers v Bay City Traction & Electric Co, 164 Mich 696; 128 NW 254 (1910). SJI2d 53.03, still applicable to damage awards in cases not covered by § 6306, reflects the state of the common law under Rivers before the enactment of § 6306. A dispute arises now, however, with regard to the meaning of § 6306 because the Leg islature did not explicitly specify which method should be employed by the court in reducing future damage awards to present value.
n
In resolving disputed interpretations of statutory language, it is the function of a reviewing court to effectuate the legislative intent. Hiltz v Phil’s Quality Market, 417 Mich 335, 343; 337 NW2d 237 (1983). If the language used is clear, then the Legislature must have intended the meaning it has plainly expressed, and the statute must be enforced as written. Id. Section 6306 is silent with regard to the kind of interest rate to be employed. However, the Legislature is deemed to act with an understanding of common law in existence before the legislation was enacted. Nummer v Treasury Dep’t, 448 Mich 534, 544; 533 NW2d 250 (1995); Garwols v Bankers Trust Co, 251 Mich 420, 424-425; 232 NW 239 (1930). Moreover, “statutes in derogation of the common law must be strictly construed, and will not be extended by implication to abrogate established rules of common law.” Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502, 508; 309 NW2d 163 (1981). In other words, “[w]here there is doubt regarding the meaning of such a statute, it is to be ‘given the effect which makes the least rather than the most change in the common law.’ ” Energetics, Ltd v Whitmill, 442 Mich 38, 51; 497 NW2d 497 (1993). “This Court will presume that the Legislature of this state is familiar with the principles of statutory construction.” People v Hall, 391 Mich 175, 190; 215 NW2d 166 (1974).
These principles of statutory construction alone are ample authority for the conclusion that simple interest was intended by the Legislature when reenacting § 6306 in 1986. The Legislature did not expressly provide for compound interest, instead making it clear only that the responsibility for making the calculation was being transferred from the jury to the trial judge. The tort reform legislation of 1986 was a comprehensive effort involving numerous compromises. It strains common sense to surmise that the Legislature was unaware of the interest-calculation question and simply overlooked the common-law scheme for reducing judgments to present cash value using simple interest. We therefore presume the Legislature intended to maintain the status quo when it changed the statute without expressly providing that compound interest would be required. To conclude otherwise would violate the clear dictates of well-established rules of statutory interpretation.
m
Extrinsic evidence in the form of legislative history supports our conclusion. First, the Legislature enacted § 6306 as part of 1986 PA 178. That same act also amended parts of MCL 600.6013(5); MSA 27A.6013(5) and MCL 600.6455; MSA 27A.6455, both of which provide for calculation of the interest on judgments using compound interest. Section 6013(6) provides in pertinent part:
[F]or complaints filed on or after January 1, 1987, interest on a money judgment recovered in a civil action shall be calculated at 6-month intervals from the date of filing the complaint at a rate of interest that is equal to 1% plus the average interest rate paid at auctions of 5-year United States treasury notes during the 6 months immediately preceding July 1 and January 1, as certified by the state treasurer, and compounded annually, pursuant to this section. [Emphasis added.]
Before being “extensively revised” in 1980, Gage v Ford Motor Co, 423 Mich 250, 253; 377 NW2d 709 (1985), § 6013 was silent regarding whether simple or compound interest applied. Acknowledging the common-law preference for simple interest that was dis-positive in Schwartz, Gage, supra at 259, this Court held that the Legislature’s silence in this regard demonstrated “that the Legislature did not intend to provide for compounding of [judgment] interest before June 1, 1980,” the effective date of the statute. Id. at 258. Rather, Justice Brickley, speaking for a unanimous Court, concluded that “[t]he analyses of the bill, as well as the wording of the amended statute, clearly indicate[d] the intent that before June 1, 1980, interest was to continue to be computed in the former manner — six percent interest without compounding.” Id. at 258. In reaching this conclusion, we reasoned, “It was clear to the Legislature when it embarked on this amendment that the six percent interest had been construed to be simple interest, Schwartz, supra, and it made no attempt to change it retroactively.” Gage, supra at 259. We find this reasoning to be compelling here.
Assuming the Legislature was aware of the common law as it previously existed, which disfavored compound interest in the context of interest on judgments, as well as in the context of reduction to present cash value, it could have explicitly abrogated the common-law rule for reduction as it had for § 6013. Given that § 6306 evidences no such decision by the Legislature, and in light of our reasoning in Gage, we decline to depart from the established rule.
Second, the Legislature contemporaneously rejected House Bill 5176 in favor of the bill that became 1986 PA 178. That bill would have expressly provided under subsection 6305(2) that “[fjuture damages must be reduced to present value by applying a discount factor of 3%, compounded annually.” We are not inclined to second-guess the process attending the legislative choice made in reaching agreement on the language contained in § 6306. Our province is to give effect to the statute as enacted in the context of the common-law scheme in place at that time. In light of the Legislature’s rejection of an explicit provision requiring compound interest, we presume the Legislature’s silence evidences an intent that courts continue to use simple interest.
IV
Finally, we reject the decision of the United States Court of Appeals for the Sixth Circuit in Kirchgessner v United States, 958 F2d 158 (CA 6, 1992), on which both defendant and the Court of Appeals relied. We find the opinion in that Federal Tort Claims Act case unpersuasive because it fails to rely on Michigan authority and because its underlying rationale is incorrect.
Citing no Michigan or other authority to support its decision, the Sixth Circuit departed from the normal practice of employing simple interest in Michigan because “the difficulty and potential for juror confusion, have been statutorily removed.” Id. at 162. While it is true that the common law under Rivers, supra, viewed five percent simple interest as a rule of convenience, id. at 709, we disagree with the Sixth Circuit’s conclusion that the convenience sought had to do solely with the jury’s inability to grasp the complexities of compound interest. Rather, the convenience rationale underlying Rivers relates to the inability of courts to precisely arrive at a mathematical figure that represents the value money received today will have at some future date. For the sake of convenience, the system takes its best guess at what will be necessary today to compensate the plaintiff for damages expected in the future. It is not a scientific exercise requiring actuarial precision, but is “an effort to ascertain and apply a rale which can be conveniently applied to the facts and result in substantial right . . . .’’Id. Although defendant argues that this provides plaintiff a. windfall, calculation of five percent compound interest is not only well within the competence of the trial court, it is also within the competency of a jury provided with a calculator. The question what is a reasonable method for reducing future damages to present value is a policy judgment based on an assessment of economic indicators. The statute does not indicate that the Legislature has resolved this question in favor of compound interest. Until the Legislature sees fit to more clearly say otherwise, continued application of simple interest is the prudent way to proceed.
v
For the reasons stated above, we hold that future damages under § 6306 are to be reduced to present cash value using the same simple interest that has been employed under the common law for at least eighty years in Michigan. We reverse the decision of the Court of Appeals and vacate the trial court’s judgment as it pertains to future damages. We remand the case to the trial court for entry of a judgment consistent with this opinion.
Mallett, C.J., and Cavanagh and Kelly, JJ., concurred with Boyle, J.
C. J. Link had contracted with W. D. E. for the installation óf a dust-collection system.
Simple interest reduces damages arithmetically by dividing damages in the first year by 1.05, in the second by 1.10, in the third by 1.15, etc. Compound interest reduces damages exponentially each year by dividing the first year by 1.05, but then multiplying the denominator in each year by an additional five percent, so that the denominator in year two is 1.1025, in year three is 1.157625, etc. In effect, the compound method adds accrued interest to the principal before charging the applicable rate of interest to the adjusted principal. We do not dispute here that compound interest is the standard generally employed in the business and financial world today.
See MCL 600.6013(5); MSA 27A.6013(5), MCL 600.6455; MSA 27A.6455.
See House Bill 5176.
See also 47 CJS, Interest & Usury, § 6(c), p 31 (“The law does not favor compound interest or interest on interest .... As a general rule, in the absence of contract therefor ... or of [a] statute authorizing it, compound interest is not allowed to be computed on a debt”).
RJA, chap 63 concerns personal injury verdicts and damages.
See also Gage v Ford Motor Co, 423 Mich 250, 260; 377 NW2d 709 (1985) (“The cardinal rule of statutory construction is to give effect to the intent of the Legislature”).
See also Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 506; 475 NW2d 704 (1991) (presuming that the Legislature acts with knowledge of statutory interpretations by the Court of Appeals).
The Legislature renumbered and reenacted subsections (5)-(10) as subsections (6)-(ll).
In Schwartz, supra, the Court of Appeals addressed whether § 6013 provided for simple or compound interest on a money judgment. Like the statute now before us, § 6013 was silent with respect to the kind of interest to be employed, and the Court concluded simple interest was appropriate because of the common-law preference. Id. at 326.
We reject defendant’s assertion that the contrary conclusion is required if the statutes are read in pari materia
“We are aided in discovering legislative intent in enacting any statute by examining the proposed legislation it considered and rejected, contrasted with the provisions as finally adopted.” Miller v State Farm Mut Automobile Ins Co, 410 Mich 538, 566; 302 NW2d 537 (1981).
Thus, we defer to the legislative choice and reject the dissent’s preference for changing the common law because compound interest may result in a more precise calculation.
28 USC 2674.
The Sixth Circuit has chosen a different path, using modern-day actuarial principles that employ compound interest. United States Steel Corp v Lamp, 436 F2d 1256, 1280, n 11 (CA 6, 1970). Thus, Kirchgessner is consistent with the course taken in federal courts, where “the determination of the discount rate . . . rests within the sound discretion of the District Court.” Lamp at 1280, n 11. We refuse to take such an approach because the Legislature has specifically provided the applicable discount rate without evidencing any intent to alter the common-law procedure.
Moreover, we find the Kirchgessner court’s assertion that the discount in later years will be greater than five percent confusing because the converse might as easily be said of compound interest. | [
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Clark, J.
Plaintiff’s bill for foreclosure of a mortgage was dismissed and it has appealed. Appellant’s counsel, at the hearing here, argued impressively and in chief that the mortgage had been given in the interest and for the benefit of Detroit Mortgage Company and therefore ought to be sustained.
After a study of the record, we are in accord with Judge Dingeman’s opinion, which is adopted as our own :
“This is a proceeding brought by the plaintiff against defendants, Pasadena Land Company and Detroit Mortgage Corporation, to foreclose a mortgage bearing date of November 1/-1923, executed by defendant Pasadena Land Company to plaintiff, to secure its note in the sum of $126,000, the note bearing the same date as the mortgage. Defendant Detroit Mortgage Corpora tion is made a party by the bill of complaint for the reason that the record title to the property was in it at the date of the filing of the bill. The defendant Charles J. DeLand, as receiver of the Detroit Mortgage Corporation, was permitted to intervene and to file a separate answer. Many hundreds of pages of testimony have been taken, and the taking of testimony occupied upwards of from 12 to 15 days. Much of this testimony is important only as bearing upon the past relations of the three corporations involved. The facts material to a determination of the issues are as follows:
“The Detroit Mortgage Corporation is a Delaware corporation, organized to deal in- real estate, land contracts, and mortgages, toi act as trustee under mortgages securing the payment of bonds, and for other purposes. It was organized early in 1917 and about the middle of that year Ben B. Jacob, Charles J. Higgins, and Frederick D. Gleason, three members of its board of directors, were appointed as its executive committee and they continued to so act until after the mortgage in question was given. Plaintiff is a Delaware corporation organized in 1919 by and through the active efforts, largely, of the said Ben B. Jacob and Charles J. Higgins; most of the directors of the Detroit Mortgage Corporation became directors of the Old Mortgage & Finance Company in 1919, the name of the company being originally World’s Securities Corporation, then Old Securities Corporation, and later its present name. Ben B. Jacob was a vice-president of plaintiff from 1919 to 1922; Charles J. Higgins was plaintiff’s treasurer and manager from 1919 to March or April, 1922, and was its secretary in January, A. D. 1923, and signed the contract dated January 13, 1923, and as a result and outgrowth of which contract the mortgage now in dispute was given.
“The Pasadena Land Company was organized by Jacob, Higgins, and Gleason and one Leon H. Hamburger, an employee of Ben B. Jacob, by the execution of articles of incorporation bearing date of June 3, 1920; these articles were filed with the secretary of State on June 9, 1920, and with the clerk of Wayne county on the 1st day of July, 1920. A history of the Pasadena Apartments deals and its relations to the Detroit Mortgage Corporation is necessary to a full understanding of the issues involved, and the material parts are as follows:
“April 21, 1920, Charles J. Higgins made a written offer to the then owner of the Pasadena Apartments to purchase the property at $750,000, the offer being accompanied by his check for $10,000. May 12, 1920, the minutes of the meeting of the board of directors of the Detroit Mortgage Corporation show the recital of an offer from the Detroit Realty Company to sell the Pasadena Apartments for $750,000 with a down payment of $150,000, balance to be paid in instalments under a land contract; then follows a resolution as follows:
“ ‘It was moved and seconded that the executive committee be directed to take steps to secure the purchase for the corporation of the Pasadena Apartment house and the adjoining property to the west at the price of $750,000 and $65,000, respectively, total $815,000, provided they could first secure a responsible purchaser for the same at $1,000,000 net to the company with a down payment of at least $50,000 and on terms as nearly as possible similar to those required in the proposition submitted, and to report the entire matter to the special meeting to be called by the vice-president and general manager, at which meeting suitable resolutions could be presented and passed, and the deal ratified. Carried.’
“Jacob, Higgins, and Gleason were directors at the time and constituted the executive committee of the Detroit Mortgage Corporation. On May 19, 1920, the Detroit Realty Company entered into a land contract to sell the Pasadena Apartments to Charles J. Higgins and Frederick D. Gleason at the price of $750,000, the contract reciting a down payment of $150,000 in cash. This contract was not delivered until on or about June 19, 1920, when final payment of the $150,000 was made.
“Adjoining the Pasadena Apartments on the west was- a piece of land on which there was an old threestcry house and it was apparently deemed advisable to acquire this property as a protection to and in connection with the Pasadena Apartments. Hereafter the Pasadena Apartments will be referred to as Parcel A and the adjoining land as Parcel B.
“On May 22, 1920, Parcel B was deeded by the then owner to Charles J. Higgins, the testimony showing that the purchase price was $65,000 with a down payment of $32,500 and a mortgage back for the balance of $32,500. This property was conveyed by Higgins and wife to the Detroit Mortgage Corporation on June 7, 1920’, subject to the part purchase mortgage thereon for $32,500.
_ “On June 9, 1920, at a meeting of the board of directors of the Detroit Mortgage Corporation, Charles J. Higgins,, as secretary, reported that the executive committee had organized a corporation to purchase Parcel A and Parcel B adjoining, that they, the executive committee, had individually taken a financial interest in the corporation in order to protect the interest and investment of the Detroit Mortgage Corporation and to see that the contract of sale was carried out; also that the initial payment of $50,000 had already been deposited with the Detroit Mortgage Corporation. No deposit of $50,000 or any other amount had in fact been made with the Detroit Mortgage Corporation. On the same day the land contract from the Detroit Realty Company to Higgins and Gleason was assigned to the Detroit Mortgage Corporation and it assumed the payments called for therein.
“The articles of association of the Pasadena Land Company recite a capital stock of $75,000 — all subscribed and all paid in in cash, the stock subscribed by each being as follows:
“Charles J. Higgins $25,000, Frederick D. Gleason $25,000, Ben B. Jacob $24,900 and Leon H. Hamburger $100. The testimony discloses that the only cash paid in by the incorporators or others was as follows:
“Charles J. Higgins, amounts paid on Parcels
A and B, and not to the corporation........$25,000.00
Fred D. Gleason, a/c of his stock, but paid on
the land contract........................... 12,000.00
Detroit Mortgage Corporation, for balance of Gleason’s stock, also applied on contract... 13,000.0(5
Total.................................$50,000.00
“Jacob claims to have given his notes to Higgins for $25,000, but the note was not produced nor was any evidence of any payments thereon satisfactorily established.
“The total amount required to pay the down payments on Parcels A and B was $182,500 and the books of the Detroit Mortgage Corporation show that it advanced moneys for the purchase under an account known as ‘Accounts Payable — Pasadena Account.’ The ledger' sheet for this account could not be located at the time of the trial, but entries from the cash books and journals show this account to be as follows:
“Accounts Payable — 'Pasadena Account.
“1920 Dr. Cr.
“June 1. Check No. 5947 to Charles
J. Higgins ..............$27,996.50
June 4. Check No. 5981 to
F. D. Gleason............ 13,000.00
June 4. Check No. 5983 to
Chas. J. Higgins.......... 50,000.00
June 14. Check No. 6061 to
Chas. J. Higgins.......... 153.58
June 19. Check No. 6087 to
Chas J. Higgins.......... 50,000.00
June 24. Check No. 6103 to
Detroit Realty Company.. 3,802.73
June 26. Journal entry' — credit on
L. C. 528 — Pasadena...... 50,000.00
Dec. 1. Credit Monroe-Booth a/e
Journal 682 ............. 1,000.00
June 26. By refund of check 6103.. $3,802.73
•July 28. Journal, page 565, accounts
payable Pasadena Land
Co., 528 ................
182,500.00
Excess of payments over credits .................
9,540.08
$195,842.81 $195,842.81
“The excess of payments made by the Detroit Mortgage Corporation over the credits in Pasadena accounts was in April, 1921, transferred as an additional account due on the Pasadena land contract No. 528.
“Land contract No. 528 before referred to was the contract between the Detroit Mortgage Corporation and Pasadena Land Company as vendee, under which Parcels A and B were to be sold by the Detroit Mortgage Corporation to Pasadena Land Company. This contract called for the payment of $1,000,000 as the purchase price and it was negotiated and executed by Jacob, Higgins, and Gleason as representing the Detroit Mortgage Corporation and by the same men as the record owners of all of the capital stock of the Pasadena Land Company, Higgins and Gleason, as before stated having the contract for the purchase of Parcel A. The Pasadena Land Company collected the rentals from Parcels A and B, ranging from $9,000 to $13,000 or more per month, but was unable to make the payments called for in the contract and in the meantime the Detroit Mortgage Corporation was. making payments to the Detroit Realty Company on the Gleason and Higgins land contract largely in excess of the amounts received by it. Although the Pasadena Land Company was unable to make its payments on land contract No. 528, yet on April 26, 1922, the Detroit Mortgage Corporation made a new land contract by which it agreed to. sell Parcels A and B to the Pasadena Land Company for $1,050,000 instead of $1,000,000 as originally contracted for. This additional $50,000 so added to the contract price to be paid by the Pasadena Land Company was charged to the Pasadena Land Company and to offset this charge assets of the Detroit Mortgage Corporation were turned over to Ben B. Jacob, and Fred D. Gleason as a payment for their stock in the Pasadena Land Company, it appearing that their stock was. purchased on April 27, A. D. 1922, by Charles J. Higgins under a written agreement by which he, Higgins, agreed to' give them, Jacob and Gleason, a credit on the books of the Detroit Mortgage Corporation in the sum of $25,000 each. The new contract for $1,050,000 was known as L. G. No. 643. The Pasadena Land Company was unable as under its former contract No. 528 to make the payments called for in the new contract for $1,050,000 (No. 643).
“The Old Securities Corporation was not successful and from 1919 to 1922, it had sold considerable of its stock, but had a large deficit. In March, 1922, Jacob and Higgins made a contract to turn all of its stock over to two men, Kloss and Thackera, under such conditions that there would be only from $75,000 to $100,000 outstanding and they agreed to turn over assets of-the full value of the outstanding stock; this they did, turning over, among other assets, a mort gage of $87,000 on some 2,300 acres of land in Newaygo county, Michigan. This mortgage, it appears, was loaned to Jacob and Higgins, and Kloss and Thackera soon learned that it was valueless; they claimed that other assets turned over by Jacob and Higgins were not of the value represented and they also claimed that the Old Securities Corporation had debts and liabilities not disclosed by Jacob and Higgins when the Old Securities stock was turned over. ■
“In December, 1922, Mr. Kloss came to Detroit from Philadelphia and demanded assets of real value, and threatened Jacob and Higgins with arrest if such assets were not forthcoming. Kloss employed attorneys in Detroit and negotiations were entered into for the furnishing of proper and good assets or security. The stock of the Pasadena Land Company was offered to Kloss but refused because of its being of no value on account of the existing contracts and mortgages. After many days of negotiating, an agreement was finally made and various contracts executed on January 9th and 13, 1923, by which, among other things the Detroit Mortgage Corporation agreed to buy from Jacob and Higgins the stock of the Pasadena Land Company for $131,162.69, that- being the amount agreed upon as the deficit of the Old Securities Corporation. For this amount Jacob and Higgins gave their note and to secure the payment of this note the Detroit Mortgage Corporation turned over to Old Securities Corporation or to Kloss. and Thackera representing it, all of the stock of the Pasadena Land Company. Higgins testified that the Detroit Mortgage Company did not want to buy the stock of the Pasadena Land Company and he signed the contract of January 9th only because of the threats of arrest. Simultaneously with the sale and pledge of the stock and as a part of the negotiations a contract was made on January 13, 1923, between Wallace & Company, as brokers, the Old Securities Corporation and Jacob and Higgins, by the terms of which Wallace & Company were to sell the stock of the Old Securities Corporation and a certain percentage on ,the selling price was to be used in redeeming the amount of the $131,162.69 note of Jacob and Higgins, but any such payments and reductions were to be paid, ultimately to and for the use of Jacob and Higgins. Under this contract various credits were given on the said note and up to November 1, 1923, the amount owing on the note had been reduced to $126,000. The negotiations for the purchase of the stock of the Pasadena Land Company by the Detroit Mortgage Corporation, the turning of the same over to the Old Mortgage & Finance Company as collateral to the .note of Jacob and Higgins and the contract between Wallace & Company and Jacob and Higgins were all carried on by Jacob and Higgins for the Detroit Mortgage Corporation and for the Pasadena Land Company, by Kloss and his attorneys for the Old Mortgage & Finance Company and at the same time Higgins was the secretary of the Old Mortgage & Finance Company, and executed its contract with Wallace & Company, Higgins and Jacob, as its secretary. That contract was drawn and executed in Michigan at a. time when the Old Mortgage & Finance Company, a Delaware corporation, had not been authorized to transact business within this State.
“The mortgage here being foreclosed was given to take up the note of Jacob and Higgins for $131,162.69, on which a balance of $126,000 was owing on November 1, 1923, and on the execution of the mortgage the Jacob and Higgins note was surrendered to them and the stock in the Pasadena Land Company was surrendered by plaintiff to the Detroit Mortgage Corporation.
“The applicable legal principles may be briefly summarized as follows:
“While contracts between agents of the corporation occupying positions of trust and confidence and a corporation fairly entered into and honestly executed, where no one 'is defrauded or overreached, are .not. necessarily invalid, such contracts will always be scrutinized with jealous care by courts, to see that no advantage is taken of the corporation or the rights and interests of its stockholders jeopardized. Officers of a corporation may deal with it in good faith if their acts are fair, open and known to the directors and stockholders. Such contracts are not absolutely void, but they are voidable at the election of the party whose interest has been so represented by the party claiming under it.
“If a third person join with a corporate officer in dealing with the corporation, with knowledge that he is such officer, the contract may be set aside as to him as well as the corporate officer. This is upon the theory that where a stranger participates with the officer of a corporation in the commission of an act of manifest bad faith or breach of duty to it, he, equally with the officer, commits a wrong and ought not to derive profit from it.
“Applying these principles to the facts as established by the evidence, the court concludes as follows:
“First. The Pasadena Apartments, both Parcels A and B, were purchased for the Detroit Mortgage Corporation. It was fully paid for at the time, or later, with the money and property of the Detroit Mortgage Corporation and was at all times legally and in fact owned by the Detroit Mortgage Corporation.
“Second. That the Pasadena Land Company was organized under such conditions and circumstances,, and its capital stock, so far as it was paid for, was so largely, if not fully, paid for by the Detroit Mortgage Corporation, that as between Jacob, Higgins and Gleason, and the Detroit Mortgage Corporation, the stock of the Pasadena Land Company was at all times owned by, and was the property of, the Detroit Mortgage Corporation.
“Third. That the alleged purchase of the stock of Pasadena Land Company by the Detroit Mortgage Corporation was a purchase of the stock which it already owned and that the agreement to purchase was wholly without consideration, a nullity and void.
“Fourth. Regardless of the ownership of the Pasadena Apartments and the Pasadena Land Company at the outset, it appears that the Detroit Mortgage Corporation was not indebted to the plaintiff in any sum until the action of the board of directors of the Detroit Mortgage Corporation at its meeting of January 12, 1923, and that the result of that transaction was the assumption of a debt of Higgins and Jacob by the Detroit Mortgage Corporation.
“Fifth. That the execution and delivery of the mortgage here sought to be foreclosed and enforced was wholly without any consideration passing to the Detroit Mortgage Corporation or to any one for its use or benefit.
“Sixth. That the result of the various transactions between the plaintiff and Higgins, Jacob and Gleason and the Pasadena Land Company and the Detroit Mortgage Corporation were so disadvantageous and detrimental to the interests of the stockholders of the Detroit Mortgage Corporation that the mortgage which resulted from such transactions should not be enforced.
“Seventh. That the Old Mortgage & Finance Company had full knowledge of the relations between the Detroit Mortgage Corporation, the Pasadena Land Company and Jacob, Higgins and Gleason, by reason of Mr. Higgins being, at all times up to the 27th day of April, 1922, the treasurer and manager of the Old Mortgage & Finance Company and its secretary when the Pasadena stock was turned over to it as security.
“Much stress is laid upon the claim of ratification, and many acts are pointed to- as forming the basis for this claim. Ratification may be express or implied. There can be no ratification either express or implied unless there is knowledge of all the material facts relating to the unauthorized acts. There was no express ratification. It is urged, however, that various dealings with the property in question, the retention of improvements, thereon, etc., constitute an implied ratification. If the property in question always belonged to the Detroit Mortgage Corporation, it had a right to deal with it as its own. Some claimed acts of ratification are based upon the actions of Higgins, Jacob and Gleason. They could not ratify that- which they could not do originally. The dealings with the property by the board of directors selected after Higgins, Jacob and Gleason had resigned do not appear to have been had with full knowledge of the material facts as developed at the hearing in this case. Under these circumstances the claim of ratification must fail.”
See, McKey v. Swenson, 232 Mich. 505.
Decree affirmed, with costs to appellees.
Flannigan, C. J., and Fellows, Wiest, McDonald, Bird, and Sharpe, JJ., concurred.
The late Justice SNOW took no part in this decision. | [
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Per Curiam.
The question presented is whether marijuana and firearms seized from the defendant’s mobile home should be suppressed because a police officer made a brief and cursory inspection of the residence before the arrival of a search warrant. We hold that the evidence should not have been suppressed, and thus reverse the judgments of the Court of Appeals and the circuit court.
i
On August 31, 1994, officers from the Bay Area Narcotics Enforcement Team (bayanet) and the Michi- - gan National Guard were using a helicopter and a ground crew to conduct a routine drug investigation. Detective Dennis McMahon was acting as “spotter” during this phase of Operation HEMP.
Shortly before 6:00 P.M., while flying over property near Blanchard in Rolland Township, Isabella County, Detective McMahon saw numerous groups of tall plants that he identified as marijuana. They were near a mobile home and a shed. There also was a tractor and several other vehicles at the site.
As the helicopter crew watched, a pickup truck pulling a small boat entered the long driveway. The driver, later identified as Randy Cartwright, gestured for the aircraft to go away. When it did not, but instead dropped lower, he made an obscene gesture and then ran inside the residence. A short while later, he emerged with the defendant and several children. After Mr. Cartwright unhooked the boat from the pickup, the defendant and the children got in the vehicle and drove away. Mr. Cartwright then reentered the home.
The helicopter tried to stop the departing truck, but the defendant maneuvered the vehicle through a grassy area and escaped. She was arrested later.
Meantime, Detective McMahon saw Mr. Cartwright climbing out a window of the mobile home. He climbed back in, upon seeing the helicopter, but then left the residence through the back door. Mr. Cartwright ran through a field behind the mobile home, carrying a large object wrapped in a dark coat or blanket, and disappeared into a woods. He still had not been apprehended at the time of the proceedings in this case.
The ground officers converged on the residence at this point. Deputy Gary Theunick was one of the first to arrive. While two other officers went to the area behind the mobile home, Deputy Theunick entered the residence to make certain that no one else was on the premises. He was inside for thirty to forty-five seconds. Although he saw marijuana and firearms, he did not confiscate anything.
Deputy Theunick testified that after reporting his observations to his supervisor, he checked the shed by looking through an open window. He saw numer ous marijuana plants inside, but no person. He did not enter the building, but again informed his superior of what he had seen.
Partly on the basis of Deputy Theunick’s observations, police obtained a search warrant, which they executed about 8:00 p.m., two hours after they had spotted marijuana from the helicopter. In addition to the approximately seventy marijuana plants that were growing outside the residence, officers found twenty-nine plants in the shed and numerous others stashed behind a stereo inside the mobile home. There were several firearms in a gun cabinet in the master bedroom of the residence, a bowl of marijuana buds setting next to the gun cabinet, and drying marijuana.
The defendant was charged with manufacturing marijuana, possession of a firearm during the commission of a felony, and being a felon in possession of a firearm. She also was charged as an habitual (second-felony) offender.
At the conclusion of the defendant’s preliminary examination, the district court agreed with defense counsel that Deputy Theunick’s entry into the mobile home could not be justified as a protective search. The court concurred with the prosecutor, however, that the seized evidence was admissible under the doctrine of inevitable discovery. The defendant was bound over for trial on all counts.
In the circuit court, the defendant renewed her challenge to Deputy Theunick’s entry without a warrant. The circuit court upheld the district court’s find ing that the deputy’s action was not legally justified. The circuit court ruled further that the marijuana and weapons seized from the mobile home were not admissible under the doctrine of inevitable discovery. The court thus dismissed the charges of felony-firearm and being a felon in possession of a firearm. The defendant was ordered, to stand trial only on the charge of manufacturing marijuana.
The prosecutor appealed to the Court of Appeals. That Court granted leave and, in an unpublished opinion per curiam, affirmed the suppression ruling, two to one.
The prosecutor has appealed the suppression decision to this Court.
H
While conceding that Deputy Theunick’s entry into the mobile home might have been good police practice, the district court held that, nonetheless, it was not a proper search without a warrant. The circuit court ruled that the district court did not abuse its discretion in this regard:
There are portions of the testimony that need to be reconciled for one to conclude either way on the issue of whether or not the search is proper; the search, that is, prior to obtaining the search warrant. The District Judge heard the testimony, was able to observe the demeanor of the witnesses and reconciled the testimony. I’m not going to put myself in the place of the examining magistrate or District Judge and second guess him. I must determine whether or not there was an abuse of discretion, and I find none.
The Court of Appeals majority affirmed, rejecting the prosecutor’s argument that Deputy Theunick’s entry into the mobile home was reasonable under the exigent circumstances exception to the Fourth Amendment warrant requirement. Concern over the safety of the investigating officers, alone, did not provide the necessary circum'stance, the majority said.
The majority explained that under the exigent circumstances exception, police may not enter a dwelling absent probable cause to believe that á crime recently was committed on the premises, or that they will find evidence or the persons who committed the suspected crime. People v Davis, 442 Mich 1, 24; 497 NW2d 910 (1993). There also must be objective facts that demonstrate the need for immediate action either to prevent the imminent destruction of evidence, to protect the officers or other persons, or to prevent the escape of a suspect. People v Blasius, 435 Mich 573, 593-594; 459 NW2d 906 (1990).
The majority observed that in the instant case, although the prosecution introduced evidence pertaining to the need to protect the investigating police officers, the district court apparently found this evidence to lack veracity. An appellate court will defer to the trial court’s resolution of factual issues, especially where it involves the credibility of witnesses. People v Crowell, 186 Mich App 505, 507-508; 465 NW2d 10 (1990), remanded 437 Mich 1004 (1991).
The majority found the cases relied on by the prosecutor to be distinguishable, e.g., Warden, Maryland Penitentiary v Hayden, 387 US 294; 87 S Ct 1642; 18 L Ed 2d 782 (1967), and Maryland v Buie, 494 US 325, 334-336; 110 S Ct 1093; 108 L Ed 2d 276 (1990). The police in Hayden were responding to a report that a suspect was in the house. In Buie, the protective sweep was incident to an arrest. In the instant case, however, the majority noted that the police had no reason to believe that an additional suspect was in the mobile home. Moreover, there were no time constraints to consider should a suspect later have been determined to be hiding in the residence.
The dissent believed that the district court clearly erred in finding that Deputy Theunick’s protective search was unconstitutional. In addition to the facts recited by the majority, the dissent focused on Mr. Cartwright’s arrival during the helicopter surveillance, his obscene hand gesture, and the fact that the defendant drove off a short time later with several children, evading the helicopter’s attempts to stop her vehicle.
The dissent also emphasized that the officers on the ground had been alerted by the helicopter crew as they approached the mobile home that Mr. Cartwright had fled into the woods behind the residence with what could be a long gun. Deputy Theunick conducted a protective search of the dwelling while other officers pursued Mr. Cartwright. The dissent believed it critical that this entire episode resulted from a random fly-over, and that police had no information about the nature of the drug operation on the defendant’s property or the number of persons involved.
It noted that the district court seemed to base its decision on the clearly erroneous premise that a protective search is not permissible on constitutional grounds. In so doing, the court failed to make a definitive factual finding that the protective search in this case was not necessary. Under Buie, police have authority to conduct a protective search if they rea sonably believe that the area in question harbors an individual who poses a danger to them or to others. Such a search is quick and limited, and conducted for the sole purpose of ensuring the safety of police officers and other persons.
The dissent further noted that here officers were pursuing Mr. Cartwright, whom they had probable cause to arrest. He had just left the mobile home, and there was reason to believe he had a gun. The area was remote, and officers had no prior knowledge of the extent and nature of the criminal enterprise they had uncovered. Nor did they have specific knowledge concerning the number of individuals involved. The one person they did see, Mr. Cartwright, was hostile, evasive, and likely armed. It was on the basis of these circumstances that Deputy Theunick carried out a protective search of the mobile home.
The dissent emphasized that the touchstone of Fourth Amendment analysis always is the reasonableness of the governmental invasion of a citizen’s personal security, considering all the circumstances. The protective search was brief and confined to looking for individuals who may have been in the residence. It was conducted incident to an attempt to arrest Mr. Cartwright. The fact that he escaped and was not actually arrested does not affect the reasonableness of the search.
m
The Fourth Amendment of the United States Constitution guarantees the right of the people to be free from unreasonable searches and seizures. US Const, Am IV. The remedy for a violation is suppression of the unlawfully obtained evidence. Weeks v United States, 232 US 383; 34 S Ct 341; 58 L Ed 652 (1914).
One of the exceptions to the Fourth Amendment warrant requirement is the so-called “exigent circumstances” exception. People v Davis, supra at 10, and People v Toohey, 438 Mich 265, 271, n 4; 475 NW2d 16 (1991). This exception still requires reasonableness and probable cause, however. In re Forfeiture of $176,598, 443 Mich 261, 266; 505 NW2d 201 (1993).
In Blasius, supra, this Court noted that the specific exigencies that justify entries without warrants have been gradually defined by the United States Supreme Court over a forty-five-year period. In Minnesota v Olson, 495 US 91; 110 S Ct 1684; 109 L Ed 2d 85 (1990), the Court listed several circumstances that had been cited by the Minnesota Supreme Court as justifying entry of a residence without a warrant, i.e., the hot pursuit of a fleeing felon, to prevent the imminent destruction of evidence, to preclude a suspect’s escape, and where there is a risk of danger to police or others inside or outside a dwelling. The Minnesota court also said that, in the absence of hot pursuit, there must be probable cause to believe that at least one of the other three circumstances exists, and that the gravity of the crime and the likelihood that a suspect is armed should be considered. The United States Supreme Court said that the Minnesota court had applied essentially the correct standards in determining whether exigent circumstances existed.
This Court explained the exigent-circumstances exception this way in In re Forfeiture of $176,598:
Pursuant to the exigent circumstances exception, we hold that the police may enter a dwelling without a warrant if the officers possess probable cause to believe that a crime was recently committed on the premises, and probable cause to believe that the premises contain evidence or perpetrators of the suspected crime. The police must further establish the existence of an actual emergency on the basis of specific and objective facts indicating that immediate action is necessary to (1) prevent the imminent destruction of evidence, (2) protect the police officers or others, or (3) prevent the escape of a suspect. If the police discover evidence of a crime following the entry without a warrant, that evidence may be admissible. [443 Mich 271.]
IV
We agree with the dissenting judge in the Court of Appeals that Deputy Theunick’s entry and protective search of the mobile home was not unreasonable, and thus did not violate the Fourth Amendment. As this Court stated in People v Olajos, 397 Mich 629, 634; 246 NW2d 828 (1976), the validity of an entry for a protective search without a warrant depends on the reasonableness of the response, as perceived by police.
In the instant case, police were conducting a random fly-over drug investigation when a member of the helicopter crew spotted dozens of tall marijuana plants near a mobile home and shed. As the crew watched, a man later identified as Randy Cartwright arrived in a pickup and motioned for the helicopter to leave. He then made an obscene gesture toward the aircraft and ran into the dwelling. A short time later, the defendant and several children came outside and drove away in the truck, ignoring the efforts of the helicopter crew to prevent her from leaving.
Nearly coincident with the arrival of the ground crew, Mr. Cartwright ran out the back door of the mobile home and headed into the woods with a large object wrapped in a dark coat or blanket. It appeared to the helicopter crew that the object might be a gun, perhaps as long as three feet.
A member of the ground crew, Deputy Theunick, was alone in his vehicle. As he approached the residence, he was informed by radio that a man had run from the mobile home into the woods with an object that could be a weapon. While two other ground crew officers rushed to the back of the dwelling in an attempt to locate the suspect, Deputy Theunick entered the mobile home. He explained that he considered this to be a hostile setting, and that he wanted to conduct a protective search. He used the front door, and identified himself as a police officer. He was inside for no more than forty-five seconds. As soon as he determined that no one was there, he left. He had observed weapons and marijuana in the dwelling, but did not confiscate anything.
On cross-examination, Deputy ■ Theunick said it would have been tactically unsound to simply watch the doors of the residence while waiting for a search warrant. Officers did not know how many individuals were involved, they were in a rural setting with little cover, and they had been told that a man had run into the woods from the mobile home with what could be a long gun.
Deputy Theunick’s supervisor, Lieutenant Robert Thomas, agreed that watching the house for an extended period of time would have left officers vulnerable to a sniper attack. He explained on cross-examination that although there were a lot of trees on the property, “it’s open pretty much in the front and rear. . . . [I]f a person was so inclined to be in there and try to snipe somebody, they could have done it real easy.”
Detective McMahon confirmed on cross-examination that he had radioed the helicopter pilot that there might be more suspects inside the mobile home, and that the ground officers should be careful. When asked why it was necessary to enter the residence if the doors could be secured, Detective McMahon responded, “you’re a sitting duck, sir, if you don’t,” and noted that there also could have been someone in the shed.
We reject defense counsel’s suggestion to Detective McMahon that Deputy Theunick’s action was unreasonable because officers could have protected themselves in other ways until they could get a search warrant, e.g., by hiding behind the shed, in the woods, or behind the tractors. Although the burden always is on the government to establish an exception to the warrant requirement, the standard is probable cause, not proof positive.
In this case, the governmental interest in ensuring that the investigating officers were not at risk outweighed the minimal intrusion that occurred. The brief entry into the mobile home was not a full search, but rather a cursory inspection of areas where a person presenting a danger to officers might be found. It lasted no longer than necessary “to dispel the reasonable suspicion of danger . . . .” Buie, supra at 326. Although Buie involved a search incident to arrest, the rationale for allowing a protective search is the same.
v
It is not clear to us whether the district court found the protective search in this case to be unjustified by a need to protect the officers, or whether the court erroneously believed that a protective search is unconstitutional per se. In either event, the district court was incorrect, and the circuit court and Court of Appeals erred in affirming that decision.
Because of our ruling that Deputy Theunick’s entry into the mobile home was proper under the exigent-circumstances exception to the warrant requirement, we need not decide whether the evidence in question was admissible under the doctrine of inevitable discovery.
For the reasons given, we reverse the judgments, below, to the extent that they resulted in the dismissal of the charges of felony-firearm and being a felon in possession of a firearm. This matter is remanded to the circuit court for further proceedings consistent with this opinion. MCR 7.302(F)(1).
Mallett, C.J., and Brickley, Boyle, Riley, and Weaver, JJ., concurred.
Two alternative spellings of this officer’s surname appear in the record, “McMahan” and “McMann.”
MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c).
MCL 750.227b; MSA 28.424(2).
MCL 750.224Í; MSA 28.421(6).
MCL 769.10; MSA 28.1082.
Issued May 21, 1996 (Docket No. 183631).
The Fourth Amendment was made applicable to the states through the Fourteenth Amendment. Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).
The Michigan Constitution also guarantees against unreasonable searches and seizures. Const 1963, art 1, § 11. However, the Michigan Constitution does not provide more protection than the Fourth Amendment under the circumstances of this case. People v Faucett, 442 Mich 153, 158; 499 NW2d 764 (1993).
The record indicates that the mobile home was twelve by sixty feet, with a front addition of approximately the same size. | [
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North, J.
The writ of replevin by which this suit was instituted in the circuit was quashed on defendants’ motion. This order to quash was based on a determination by the trial court that the property in suit was held by the defendants by virtue of a writ of execution, and, therefore, was not subject to replevin. 3 Comp. Laws 1915, § 13084. The case is in this court on plaintiff’s writ of error.
The plaintiff herein was the defendant in a suit in justice’s -court and judgment was rendered against him. He thereupon perfected an appeal to the circuit court. After the appeal had been pending for more than a year, the circuit judge entered an order in substance as follows: “This cause is hereby dismissed without prejudice.” While the record is not clear on this point, we assume this order was entered under the provisions of section 12574, 3 Comp. Laws 1915, which provides for dismissal of a cause for want of prosecution for more than one year. After the entry of the order of dismissal, and evidently on the theory that the dismissal in the circuit permitted the judgment to be revived in the justice’s court (see 3 Comp. Laws 1915, § 14420), execution was issued by the justice and placed in the hands of a constable, who, together with another constable, seized an automobile belonging to the plaintiff herein. This suit in replevin was thereupon instituted in the circuit court by the plaintiff against these two constables. They entered a special appearance and made a motion to quash wherein they asserted plaintiff’s affidavit filed incident to issuing the writ of replevin was false in that it stated the automobile was not seized or held under an execution or attachment. The writ was quashed.
The question presented is this: When an order is entered in the circuit court dismissing a cause without prejudice for want of prosecution after an appeal has been regularly perfected from the justice’s court, is the judgment of the justice thereby reinstated upon compliance with section 14420, 3 Comp. Laws 1915, or does the order of dismissal without prejudice nullify the justice’s court judgment. • The law is well settled in this State that a discontinuance of an appeal is not the'same as a discontinuance .’or dismissal of a suit. French v. Weise, 112 Mich. 586. When an appeal is dismissed or discontinued, the judgment rendered in the justice’s court may be revived (3 Comp. Laws 1915, | 14420); but, the discontinuance of a suit 'or cause concludes the litigation. The same result follows the dismissal of a case that has been brought into the circuit court by appeal as follows the dismissal of a case originally instituted in the circuit. This must be so, since, “upon general appeal from a justice’s court to the circuit court, the suit is for trial de novo, and is subject to the same rules as though originally brought in the latter court.” French v. Weise, supra; 3 Comp. Laws 1915, § 14417. In the instant case, the order of the circuit court was “This cause is hereby dismissed without prejudice.” This order obviously terminated all proceedings therein; and, with the suit dismissed, there was no power to revive the justice’s judgment. The dismissal was without prejudice; but, so far as disclosed by'the record, the plaintiff in the suit appealed made no effort to have the same reinstated. Upon dismissal of the suit the judgment in favor of the plaintiff became a nullity, and, therefore, no valid execution could be issued. The writ of execution being void, it was no execution at all and was not a bar to the plaintiff’s right to institute a replevin suit. The circuit judge was> in error in quashing the writ of replevin; and the order and judgment of the lower court is reversed, with costs of this court to the appellant.
Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.
Chief Justice FLANNIGAN and the late Justice BIRD took no part in this decision. | [
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Weaver, J.
In his appeal from a Court of Appeals decision ordering that the defendant be resentenced, the prosecutor based his arguments on the premise that this Court should overrule People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). We decline to do so because the resolution of this case does not require reexamination of Milbourn. We reverse the Court of Appeals order of October 16, 1995, that vacated defendant’s sentence and ordered resentencing, and reinstate defendant’s sentence.
i
Following a jury trial, defendant was found guilty of entering an occupied dwelling without the owner’s permission and receiving or concealing stolen property over $100. Defendant then pleaded guilty of being an habitual offender, fourth offense, and was sentenced to a prison term of forty to sixty years.
Defendant appealed, and the Court of Appeals affirmed defendant’s convictions, but remanded for resentencing, finding the sentence of forty to sixty years to be disproportionate.
The prosecutor then applied for leave to appeal in this Court. In lieu of granting leave to appeal, we remanded the case to the Court of Appeals for reconsideration in light of People v Cervantes, 448 Mich 620; 532 NW2d 831 (1995). The Court of Appeals issued an order finding that the sentence constituted an abuse of discretion and remanded for resentencing. The prosecutor sought leave to appeal from the order, which this Court has now granted.
n
In overturning defendant’s sentence in its original opinion, April 11, 1995, the Court of Appeals found the sentence to be disproportionate. We disagree.
We first reaffirm our holding in People v Cervantes, supra, that the sentencing guidelines do not apply to the sentencing of habitual offenders. In reviewing sentences imposed for habitual offenders, the reviewing court must determine whether there has been an abuse of discretion. Id. at 627. Applying this standard, we conclude that the trial judge did not abuse his discretion in sentencing defendant to a prison term of forty to sixty years.
The Court of Appeals summed it up well when it noted that “Defendant does, to be sure, have an extensive record and a poor history of community supervision.” On October 11, 1976, he was convicted of attempted larceny from a building and sentenced to two years’ probation. On June 14, 1977, defendant was convicted of attempted receiving and concealing over $100 and was sentenced to 1.5 to 2.5 years in prison. Only two months later, on August 22, 1977, defendant was convicted of attempted larceny from a motor vehicle and sentenced to 1.5 to 2.5 years. Then on September 4, 1980, defendant was convicted of fleeing and eluding and was sentenced to a fine of $185 or nineteen days. Defendant was convicted of receiving and concealing stolen property and sentenced to six months in the Detroit House of Corrections on March 26, 1981. On August 3, 1982, defendant was convicted of two counts of receiving and concealing stolen property over $100. Defendant was sentenced to three years probation on April 15, 1985. On November 5, 1985, defendant was convicted of a violation of probation and sentenced to ninety days in jail. Next, on July 17, 1988, defendant was convicted of larceny from a motor vehicle and was sentenced to three to seven years. Defendant was then placed at a correction center in July, 1990, from which he escaped, and to which he was returned in February 1991.
Defendant was placed on parole ■ on March 31, 1992, but was listed as an absconder by July 9, 1992. Defendant was still on parole when he committed the instant offense in September of 1992. It is clear from defendant’s record that prior attempts to rehabilitate him have utterly failed, and that community supervision is not effective for him.
In addition to acknowledging defendant’s extensive criminal record, the Court of Appeals also recognized that the facts of the instant case are “particularly offensive.” While defendant’s mother was hospitalized with a severe asthma attack, defendant went into her hospital room and removed her keys from her purse. He then stole his mother’s automobile, went to her house, and took thousands of dollars worth of appliances, jewelry, and furs.
In Cervantes, supra at 627-628, we held that a trial court did not abuse its discretion in giving a “significant” sentence to an habitual offender where the trial court considered the defendant’s extensive criminal history and his potential for rehabilitation. In the instant case, the underlying felony was defendant’s eighth, which was committed while on parole from prison where he was serving a sentence for the commission of a different felony. We believe that a trial court does not abuse its discretion in giving a sentence within the statutory limits established by the Legislature when an habitual offender’s underlying felony, in the context of his previous felonies, evidences that the defendant has an inability to conform his conduct to the laws of society. The sentence in this particular case was within the limits authorized by the Legislature for an habitual offender, fourth offense, under MCL 769.12(l)(a); MSA 28.1084(l)(a). The serious nature of this crime, defendant’s extensive criminal history, and his clear inability to reform, convince us that the trial court did not abuse its discretion in imposing defendant’s sentence.
in
Accordingly, we reverse the Court of Appeals order of October 16, 1995, and reinstate defendant’s sentence.
Mallett, C.J., and Boyle and Riley, JJ., concurred with Weaver, J.
MCL 750.115; MSA 28.310.
MCL 750.535; MSA 28.803.
MCL 769.12; MSA 28.1084.
Lastly, defendant asserts that his 40 to 60 year sentence is disproportionate. We agree. The guidelines recommend a minimum sentence of 1 to 3 years for the underlying offense. The guidelines, however, are at most a reference point in assessing the proportionality of an habitual offender’s sentence. While defendant’s minimum sentence of 40 years greatly exceeds the highest recommended minimum of 3 years, the habitual statute allows for such a sentence, and indeed allows for a life sentence. Such sentences, however, should be reserved for the most egregious offenders.
Defendant does, to be sure, have an extensive record and a poor history of community supervision. Moreover, his stealing from his hospitalized mother is particularly offensive. Nonetheless, defendant’s prior record consists exclusively of larcenies and stolen property offenses, and a misdemeanor fleeing and eluding offense. His longest sentence, 3 to 7 years, was imposed in 1988. Under the circumstances, a sentence of 40 to 60 years is disproportionate and resentencing is required. [Unpublished opinion per curiam (Docket No. 165364) (emphasis added).]
We note that three members of this Court have held that the sentencing guidelines do not have a legislative mandate and are therefore without the force of law. See People v Mitchell, 454 Mich 145, 175; 560 NW2d 600 (1997) and Negri v Slotkin, 397 Mich 105; 244 NW2d 98 (1976).
The trial court initially sentenced defendant to ninety days in jail for entering without the owner’s permission and three to five years for receiving and concealing stolen property. These sentences were vacated, and the trial judge sentenced defendant to forty to sixty years in prison for being an habitual offender, fourth offense.
We decided that the trial court did not abuse its discretion in sentencing a defendant to ten to twenty years for breaking and entering and four to eight years for felonious assault:
[The trial court] acted reasonably by considering both defendant’s extensive criminal history and his potential for rehabilitation. The trial judge was correct in performing this analysis because “[u]nder our present framework of indeterminate sentencing, sentences are based more on an assessment of the offender than the offense.” People v Mazzie, 429 Mich 29, 33; 413 NW2d 1 (1987).
Moreover, the trial court in Cervantes considered the fact that the underlying crime was “serious” and that the defendant “had clearly demonstrated his lack of intent to reform by violating his probation.” Id. at 628.
MCL 769.12(1); MSA 28.1084(1) provides in pertinent part:
If a person has been convicted of any combination of 3 or more felonies or attempts to commit felonies, whether the convictions occurred in this state or would have been felonies or attempts to commit felonies in this state if obtained in this state, and that person commits a subsequent felony within this state, the person shall be punished upon conviction of the subsequent felony and sentencing under section 13 of this chapter as follows:
(a) If the subsequent felony is punishable upon a first conviction by imprisonment for a maximum term of 5 years or more or for life, the court, except as otherwise provided in this section or section 1 of chapter XI, may sentence the person upon conviction of the fourth or subsequent offense to imprisonment for life or for a lessee- term. [Emphasis added.]
Defendant’s underlying felony, receiving and concealing stolen property in excess of $100 in violation of MCL 760.535; MSA 28.803, is a felony that carries a maximum punishment of five years in prison. | [
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Bird, J.
On June 26, 1926, defendants sold a farm of 60 acres in Muskegon county, together with certain farm tools, for a consideration of $4,200, and took in part payment thereof a house and lot in Muskegon for $1,850. A few months later plaintiffs discovered that defendants’ representations with reference to the quality of the soil, the extent of the wood land, and the condition of the farm tools were false, and they instituted this suit to recover their damages. The matter was heard before a jury and a judgment rendered for defendants. Plaintiffs bring error and complain of certain instructions of the trial court to the jury:
“It is just as much a fraud for a man to make statements of which he has no knowledge in a reckless disregard of truth, as to make statements knowing them to be false; and if you find that the statements were made by the defendants, or by their agents, March or Lincoln, and were false, it will not make any difference whether the defendants, or their agents making them, knew they were false, or whether they were made recklessly.”
We think this was a fair statement of the law and is in accord with the holding of the cases which counsel cite.
“I also instruct you that if the defendants, through their agents, made such representations as to the value of this farm and personal property thereon, as claimed by the plaintiffs, then you will next consider and determine whether the plaintiff knew, or had any means of knowing, such representations were false.”
The portion of this instruction complained of is the concluding sentence, “or had any means of knowing, such representations were false.” This instruction placed upon plaintiffs a greater duty than the law does. A fair inference from the sentence complained of is that if plaintiffs did have the means of knowing they should be diligent and discover the untruthfulness of the representations. If this were the rule the consequences following nearly every fraud might be avoided by the defendant. John Schweyer & Co. v. Mellon, 196 Mich. 590; Schnepper v. Halleb, 227 Mich. 455.
“I also instruct you that the burden is upon the plaintiff to prove that the defendants, or their agents, H. Bruce March and Roy Lincoln, or either of them, did defraud the plaintiffs, of some of their property, goods, or chattels, and unless the plaintiffs have made this proof by a preponderance of the evidence then you should find for the defendants.”
While this instruction was not very relevant to the conditions being considered, we are unable to see anything very injurious in it.
“I also instruct you that if, upon the whole evidence in the case, the conduct of Gust Tomaras and his wife, and Roy Lincoln and H. Bruce March, as proven by the testimony, is as consistent with an honest purpose as with a fraudulent purpose, you should consider that no fraudulent purpose on their part has been proven, and if not proven, then you should return a verdict in the defendants’ favor.”
Coimsel complains that this instruction places upon the plaintiffs the burden of proving a fraudulent in tent on the part of the defendants, or their agents, in order to entitle them to recover. It was unnecessary for plaintiffs to prove a fraudulent purpose or intent upon the part of defendants, or those representing them. If defendants made representations to plaintiffs with reference to the value and condition of the farm and the personal property, and plaintiffs relied and acted upon them to their damage, and they were false, the purpose or intention of defendants in making the representations would be immaterial. Converse v. Blumrich, 14 Mich. 109 (90 Am. Dec. 230); Aldrich v. Scribner, 154 Mich. 23 (18 L. R. A. [N. S.] 379); Weinberg v. Ladd, 199 Mich. 164; Mulheron v. Koppin Co., 221 Mich. 187; Rosenberg v. Cyrowski, 227 Mich. 508.
For the errors indicated the judgment is reversed, and a new trial granted.
The foregoing opinion was prepared by the late Justice Bird and is now adopted as the opinion of the court.
Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. Flannigan, C. J., did not' sit.
The late Justice SNOW took no part in this decision. | [
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Boyle, J.
We granted leave to appeal to address whether defendant was denied his right to counsel, whether review of a defendant’s sentence is available to the prosecution, and, if so, whether the Court of Appeals erred in ordering resentencing on the basis of a scoring error under the sentencing guidelines. An inference of ineffectiveness and prejudice on the basis of a thirty-day disciplinary suspension in a seven-month period of representation would violate controlling precedent of the United States Supreme Court and of this Court. Sixth Amendment claims based on defective performance must be established by showing constitutionally defective performance that undermines the reliability of the result. We hold that defendant has failed to overcome the presumption that counsel's performance was reasonable or to show that the deficiencies alleged prejudiced the outcome. We also hold that review of a sentence is available to the prosecution on the same terms as the defense. Therefore, because the guidelines do not have the force of law, the Court of Appeals erred in ordering resentencing on the basis of a scoring error under the Michigan Sentencing Guidelines.
We vacate the order of remand and affirm the decision of the Court of Appeals in all other respects.
I. FACTS
On October 3, 1988, decedent Raymond Harlin was the victim of an altercation that took place in defendant Charlie Mitchell’s apartment. Mr. Harlin was beaten with fists, a blackjack, brass knuckles, a baseball bat, and a woodcarving knife before he was shot. He jumped out the window of the third floor apartment and took a cab to Henry Ford Hospital where he died. The cause of death was gunshot wounds to the neck and back.
Defendant was charged with first-degree murder. MCL 750.316; MSA 28.548. Gerald Evelyn was appointed counsel for Mr. Mitchell on October 6, 1988, and represented him at the preliminary examination, on October 14, 1988. At the preliminary examination, the prosecution called Tyrone Thompson, and Mr. Evelyn actively interposed objections during his testimony and argued against the bindover. Mr. Evelyn represented defendant at the final conference on February 3, 1989. On April 5, six months after appointment, Mr. Evelyn received a disciplinary suspension which expired May 5, 1989.
Trial began on May 8, 1989. Tyrone Thompson testified as he had at the preliminary hearing that defendant was the leader of a drug ring and gave the order to shoot Mr. Harlin, which was carried out by codefendant Lamont Mason. Defendant Mitchell did not take the stand, and counsel contended in closing argument that Mr. Thompson’s testimony that defendant ordered the killing was equivocal and that the prosecution had failed to carry the burden of proof beyond a reasonable doubt.
Before trial, defendant wrote six letters to the trial judge, the chief judge, and others, requesting removal of counsel. Defendant complained that Mr. Evelyn had not visited him at the Wayne County jail, instead only meeting with him in the “bullpen” at the Recorder’s Court. Defendant also believed that there vyere certain motions that Mr. Evelyn needed to make before the time to do so expired. On April 27, 1989, eleven days before jury selection was to begin, defendant appeared before the court in propria persona for a hearing on defendant’s “motion for withdrawal of counsel.” Defendant informed the judge on the record that he did not believe counsel was responsive to his concerns, and that counsel had been suspended from practice for thirty days from April 5, 1989, to May 5, 1989. Counsel was officially reinstated on May 8, 1989, the day jury selection in defendant’s trial began. That day, Mr. Evelyn advised the court that defendant wanted him removed and had filed a grievance against him. Counsel did not indicate that he was unprepared.
The judge had taken the April 27 motion under advisement pending receipt of a response from Mr. Evelyn. The issue was revisited on Tuesday, May 9, the second day of jury selection. Mr. Evelyn advised the court that “as of yesterday evening,” at the conclusion of proceedings, defendant was satisfied with his representation; but, because he had been unable to visit him in the jail that evening, defendant would like him removed as counsel. Mr. Evelyn stated that he had talked with defendant on numerous occasions. The court found nothing that would warrant a change of counsel, nor would the court “abort” the proceedings.
The defendant confirmed that he had received copies of the prosecutor’s file in the instant case and another pending case and his transcripts in March, but stated that counsel’s failure to discuss matters with him had led to specific deficiencies, which he detailed. The court directed counsel to confer with defendant and to evaluate and report back regarding any motions defendant might wish to be heard, and Mr. Evelyn’s professional opinion regarding whether they were appropriate. The motion was denied without prejudice.
Thereafter, the defendant’s concerns over evidence seized at the apartment building from apartment 302, and the validity of the search warrant with regard to apartment 302 were resolved to defendant’s satisfaction with a stipulation in which the parties agreed that none of the evidence from apartment 302 except the weapons involved would be admitted. Defendant also expressly waived his right to a Walker hearing for the purpose of suppressing his statement. On Monday, May 15, 1989, Mr. Evelyn informed the court that he had received a grievance filed by the defendant on May 1. Defendant stated he was satisfied with counsel’s resolution of his concerns and wanted to withdraw the grievance.
Following defendant’s conviction on May 17, 1989, of second-degree murder, MCL 750.317; MSA 28.549, defendant appealed, and the Court of Appeals remanded the case for a Ginther hearing. Trial counsel was not called as a witness, and the trial court held that defendant had not shown objective unreasonableness, or prejudice as required by People v Pickens, 446 Mich 298; 521 NW2d 797 (1994). Thereafter, the Court of Appeals affirmed defendant’s conviction, and on the cross appeal by the people, found error in the scoring of certain offense variables under the sentencing guidelines in which ten points had been allocated under offense variable three — “Intent to Kill or Injure” (ov 3), and zero points under offense variable four — “Aggravated Physical Injury” (ov 4). The Court of Appeals ordered the case remanded to the trial court for resentencing consistent with the panel’s rescoring of twenty-five points on OV 3 and twenty-five points on ov 4. Defendant sought leave to appeal his conviction and the order of remand in this Court.
We granted leave, limiting the issues to whether defendant was denied counsel or effective assistance and whether and to what extent a prosecutor may appeal sentencing errors. 450 Mich 993 (1996).
H. THE RIGHT TO COUNSEL: GOVERNING PRINCIPLES
“It has long been recognized that the right to counsel[ ] is the right to the effective assistance of counsel.” McMann v Richardson, 397 US 759, 771, n 14; 90 S Ct 1441; 25 L Ed 2d 763 (1970). However, because “the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial, [a]bsent some effect of [the] challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.” United States v Cronic, 466 US 648, 658; 104 S Ct 2039; 80 L Ed 2d 657 (1984).
The cases interpreting the right to the meaningful assistance of counsel as it affects the right to a fair trial, “present a continuum.” United States v DeCoster, 199 US App DC 359, 364; 624 F2d 196 (1976). Cases on the continuum proceed from “structural or procedural impediments by the state that prevent the accused from receiving the benefits of the constitutional guarantee,” id., to cases where the “issue is counsel’s performance when he is ‘untrammelled and unimpaired’ by state action.” Id. at 365. The companion cases of Cronic and Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), reflect this continuum.
CRONIC
Cases on the continuum range from actual to constructive denial of counsel to instances where the performance of counsel is so deficient that there has been a functional denial of counsel guaranteed by the Sixth Amendment. The methods of analysis employed to determine whether there has been a denial of the constitutional right likewise range from the general to the particular. Cronic reviews the cases in which the courts have found a Sixth Amendment
violation without inquiry into whether the outcome was reliable. “The most obvious example is, of course, the failure of the state to provide any counsel whatever.” DeCoster at 364; see also Cronic at 659 (“a trial is unfair if the accused is denied counsel at a critical stage of his trial”). Equally obvious would be the case in which counsel is provided but does nothing, that is, “no actual ‘Assistance’ ‘for’ the accused’s ‘defence’ is provided,” in that “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing . . . .” Cronic at 654, 659. A prophylactic approach also has been applied to cases in which the court or the state directly interferes with the attorney-client relationship by preventing counsel from rendering assistance. See, e.g., Geders v United States, 425 US 80; 96 S Ct 1330; 47 L Ed 2d 592 (1976) (order prohibiting counsel from conferring with defendant during overnight recess while defendant was testifying); Crutchfield v Wainwright, 803 F2d 1103 (CA 11, 1986) (en banc) (order denying right to confer during trial recess). Because these “circumstances . . . are so likely to prejudice the accused that the cost of litigating .their effect in a particular case is unjustified,” courts are “require[d] ... to conclude that a trial [under such circumstances] is unfair . . . Cronic at 658-659. In these cases, prejudice is presumed. Id.
Next on the continuum are the rare cases in which the circumstances are such that “although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Cronic at 659-660; Powell v Alabama, 287 US 45; 53 S Ct 55; 77 L Ed 158 (1932). As in instances where the state has by statute or order interfered with the attorney-client relationship, the inquiry focuses not on counsel’s performance at trial, but on whether the surrounding circumstances are so likely to have prejudiced the accused that particularized inquiry into the fairness of the result is unjustified. Where the circumstances are not of such “magnitude,” Cronic at 659, n 26, that there has been an “actual breakdown of the adversarial process during the trial of the case,” id. at 657-658, a defendant “can . . . make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel.” Id. at 666. Thus, at the far end of the continuum opposite an actual denial of counsel are those cases in which the “issue is counsel’s performance.” DeCoster at 365. Here, the inquiry is particular, not general, and the question is whether counsel’s actual performance undermines confidence in the reliability of the result.
STRICKLAND/PICKENS
The benchmark case describing the standard for claims of actual ineffective assistance of counsel in Michigan is People v Pickens, supra at 318, which held that the right to counsel under the Michigan Constitution does not justify a more restrictive standard than that applied under the United States Constitution and adopted the Supreme Court’s test in Strickland. That test requires the greatest level of factual inquiry into the actual conduct of the defense and its effect on the outcome of the trial. It places the burden on the defendant to show, with regard to counsel’s performance,
that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment . . . [and] that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland at 687.]
In applying this test, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance . . . .” Id. at 689. Whereas cases at the other end of the continuum indulge a presumption that defendant was prejudiced by counsel’s absence or inertness, or by state interference or other surrounding circumstances as egregious as those found in Powell, cases decided under the Strickland/Pickens test require the defendant to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland at 689.
m. APPLYING CRONIC
The defendant argues, and the dissent agrees, that a thirty-day suspension of trial counsel during a seven-month period of representation is a circumstance making it so unlikely that any lawyer could provide effective assistance that “a total denial of counsel during the critical pretrial period” occurred, post at 191. However, in Cronic, supra, the Court distinguished cases recognizing a presumption of prejudice from claims of ineffective assistance based on defects in performance grounded in allegations of inadequate preparation. The Court rejected the prophylactic approach and held that such claims and other specific claims of a given lawyer’s incompetence at trial either individually or in combination did not justify an inference that the right to counsel had been violated.
Under the test employed by the Court of Appeals, reversal is required even if the lawyer’s actual performance was flawless. By utilizing this inferential approach, the Court of Appeals erred. [Id. at 652-653.]
In Strickland, in which the claims of defective performance included, inter alia, counsel’s failure to investigate and present character witnesses, Justice O’Connor set forth the test applicable to such a claim. As noted above, the Strickland test applied in Michigan requires that a defendant claiming ineffective assistance based on defective performance has the burden of showing that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that but for the unprofessional errors the result of the proceeding would have been different.
The Supreme Court has rejected a categorical prophylactic approach to claims of counsel’s deficient performance and of failure to adequately prepare or investigate in favor of an inquiry into actual performance and prejudice. As Professors LaFave and Israel have noted, “If the Supreme Court had not clearly so indicated [previously], its subsequent opinions in . . . Cronic and Strickland . . . established without doubt its rejection of any such across-the-board categorical approach.” 2 LaFave & Israel, Criminal Procedure, § 11.7, p 25 (1991 Supp). “Read in conjunction with Cronic, Strickland leaves no doubt that a strictly judgmental approach applies to ineffectiveness claims based upon the incompetent performance of counsel.” Id., § 11.10 at 45. To justify reversal under both the United States and Michigan Constitutions, defendant must affirmatively demonstrate that counsel’s performance was objectively unreasonable and so prejudicial as to deprive him of a fair trial.
The dissent attempts to avoid application of this precedent by relying on the examples given in Cronic of cases in which prejudice is presumed and variously characterizing the claim as a circumstance making it unlikely that any lawyer could provide effective representation, as a constructive denial of counsel, or as a denial of counsel combined with a failure to grant a continuance. Dealing with the theories in inverse order, Morris v Slappy, 461 US 1; 103 S Ct 1610; 75 L Ed 2d 610 (1983), demonstrates that the suggestion that defendant’s right to counsel was violated because the trial court should have granted a continuance is error. In Morris, the defendant claimed a constitutional violation in the trial court’s failure to grant a continuance when his original assigned counsel was scheduled for surgery and new counsel was substituted six days before the trial. The court of appeals held that the defendant’s Sixth Amendment right to counsel had been violated and that this violation required reversal without any showing of prejudice. The Supreme Court reversed, finding that the court of appeals had “misread the record and the controlling law and announced a new constitutional standard which is unsupported by any authority.” Id. at 12. Importantly to resolution of the instant case, the Supreme Court observed that
[n]ot every restriction on counsel’s . . . opportunity to investigate ... or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel. . . . [0]nly an unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable request for delay” violates the right to the assistance of counsel. [Id. at 11-12.]
To the extent that the dissent characterizes Mr. Evelyn’s thirty-day suspension as an external constraint constituting a constructive denial of counsel, the conclusion is refuted by Cronic, on which the dissent purports to rely. The Court overturned the court of appeals decision in Cronic, which held precisely, as would the dissent here, that “when circumstances hamper a given lawyer’s preparation of a defendant’s case, the defendant need not show specified errors in the conduct of his defense in order to show ineffective assistance of counsel.” United States v Cronic, 675 F2d 1126, 1128 (CA 10, 1982). The Supreme Court expressly held that the Tenth Circuit Court had erred in finding that claimed external constraint on a given lawyer’s trial counsel's performance — the district court’s decision to give counsel only twenty-five days to prepare for trial — created an inference of ineffectiveness and that reversal was required.
The fact that the accused can attribute a deficiency in his representation to a source external to trial counsel does not make it any more or less likely that he received the type of trial envisioned by the Sixth Amendment, nor does it justify reversal of his conviction absent an actual effect on the trial process or the likelihood of such an effect. [Cronic, 466 US 662, n 31.]
The Court in Cronic also specifically found that allegations of deficient performance due to allegedly inadequate time to prepare were not the type of circumstances justifying a presumption of prejudice as in Powell v Alabama, and specifically observed that the case did not involve a finding that the defendant was deprived of the presence of counsel at a critical stage of the trial. Cronic at 664. Neither Cronic nor this case involves a total denial of counsel during a critical stage of the proceedings or interference by the trial court with the attorney-client relationship. Geders, supra. The Court concluded that allegations of inadequate preparation and investigation under the Sixth Amendment arising from the court-imposed twenty-five days to prepare did not “even arguably” justify a presumption of inability to prepare to meet the bona fide issue of criminal intent. Cronic at 664. Likewise, an allegation of deficient performance stemming from a thirty-day suspension coupled with six-months time for preparation does not justify a pre sumption. These are not circumstances making it so likely that “no lawyer could provide the respondent with the effective assistance of counsel required by the Constitution,” id., that examination of the actual performance of counsel or prejudice is irrelevant.
IV. APPLYING STRICKLAND
A. THE CINTHER EVIDENCE
There is no factual basis for a conclusion that counsel’s performance was constitutionally deficient and undermines confidence in the reliability of the verdict.
“A convicted person who attacks the adequacy of the representation he received at his trial must prove his claim. To the extent his claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court . . . which evidentially supports his claim and which excludes hypotheses consistent with the view that his trial lawyer represented him adequately.” [People v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973).]
No record was made regarding what Mr. Evelyn did or did not do, or whether Mr. Evelyn knew of the alleged eyewitnesses. Counsel’s failure to call witnesses is presumed to be trial strategy, Strickland, supra; Ginther, supra, and Mr. Evelyn was not called to testify at the Ginther hearing. Testimony of the three witnesses who were found by the trial court to be “inconsistent and contradictory of one another” did not exclude the hypotheses of adequacy.
The dissent offers no support for the conclusion that there was any legally viable challenge to the admissibility of the evidence, and the witnesses subject to being called were not eyewitnesses. While the dissent concludes that Mr. Evelyn failed to investigate and that “no reasonable trial strategy exists” for this “failure,” post at 189, n 4, the dissent offers no analysis with respect to how these witnesses might have made a difference at trial.
[T]he Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade. [Cronic at 656, n 19.]
The only bona fide jury issue open to competent defense counsel on these facts was that the government’s witnesses were unworthy of belief and that the state had failed to carry the burden of proof. This is precisely what Mr. Evelyn argued, an argument that persuaded the trial court to direct a verdict on first-degree murder.
B. PERFORMANCE/PREJUDICE
In Pickens, we adopted the test set forth by the United States Supreme Court in Strickland. The reviewing court is to determine (1) whether counsel’s performance was objectively unreasonable, and (2) whether the defendant was prejudiced by counsel's defective performance. Id. at 687. The first prong requires that counsel make “errors so serious that counsel was not functioning as the ‘counsel’ guaran teed the defendant by the Sixth Amendment.” Id. The second requires that “counsel’s ineffective assistance must be found to have been prejudicial in order to reverse an otherwise valid conviction.” Pickens at 314.
Defendant’s claims of ineffective assistance fail on both scores. Nothing in the record indicates that counsel erred in not calling witnesses who were not present when the victim was shot and whose testimony, at best, would have affected only matters collateral to the prosecutor’s theory that the defendant, as leader of a drug ring, gave the order to kill Mr. Harlin.
Any claim that the probability is high that had Nelson and Woodson been called defendant would have been acquitted underscores the record deficiencies the dissent ignores. Whether the witnesses were known to counsel or, if known, would have been deemed by him to be believable by the jury is unknown. It is far from evident, however, that the tes timony of two persons who allegedly happened to be merely present playing chess in a dope house at 10:00 P.M. would be credited by the factfinder. For precisely this reason, Mr. Evelyn’s testimony was critical to a proper assessment of the claim. As the Court observed in Strickland:
[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment of counsel’s other litigation decisions. [Id. at 691.]
Counsel may have failed to call the witnesses because he did not know about them. Alternatively, he may not have called them because of a familiar strategic consideration, namely, that calling witnesses whose testimony is not believable (even with regard to peripheral matters), may jeopardize an otherwise viable defense. On this record, there is no basis to conclude that the failure to present these witnesses was error or that, had the witnesses been presented, “the factfinder would have had a reasonable doubt respecting guilt.” Strickland, supra at 695.
The dissent’s conclusion that Mr. Evelyn’s performance at trial is irrelevant, post at 199, ignores teaching of the United States Supreme Court that “the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his law yer as such. If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client’s evaluation of his performance.” Cronic at 657, n 21. Unless the defendant shows a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, a Sixth Amendment violation has not been established.
The dissent would improvidently extend a remedy to a defendant who received constitutionally effective assistance and who has not been wronged in any real sense. As the Court observed in Strickland, when rejecting a presumption of ineffectiveness regarding alleged individual deficiencies in performance by counsel representing defendants in a criminal trial:
Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessful defense. Counsel’s performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client. [Id. at 690.]
Justice Riley’s observation in Pickens is also apt:
[T]he inevitable result of such a formulation would be an explosion of civil litigation in which juries would be permitted to award damages to a defendant who by definition has been reliably found guilty . . . [t]hat such a perversion of the truth-seeking function of criminal trials was not intended by the Michigan Constitution is beyond question. [Id. at 325-326, n 31.]
V. THE LIMITS OF APPELLATE REVIEW
A reality underlying the Cronic-Strickland continuum is the inability of an appellate court to evaluate in hindsight the infinite variables of trial court practice and the “countless ways to provide effective assistance in any given case.” Id. at 689. For the same reason, the attorney-client privilege is waived and the trial lawyer is a necessary witness on the issue of inadequacy of counsel:
At the hearing, the witness, Williams and Williams’ lawyer are all necessary witnesses. The lawyer is necessary because even the truth and further elaboration of the witness’ assertions would not necessarily require a finding of inadequacy of counsel. By putting in issue the effectiveness of the representation he received at the trial, Williams waived the attorney-client privilege. [People v Michael Williams, 391 Mich 832, 832 (1974).[ ]
Absent any presentation of counsel’s testimony to the trial court, or an inquiry into whether defendant was prejudiced by the suspension, reversal of the trial court’s conclusion that the defendant failed to carry his burden at the Ginther hearing would be postulated not on truth but on pure conjecture. The dissent’s approach, despite the holdings in Williams, Ginther, Cronic, Strickland, Pickens, and People v Pubrat, 451 Mich 589; 548 NW2d 595 (1996), would permit defense lawyers to be “found guilty” of ineffective assistance without ever being heard from and face the unenviable prospect of looking to the prosecutor to protect them at the Ginther hearing.
We do not know that Mr. Evelyn did not “exert at least some effort to explore the truth . . . .” Post at 191, n 7. We do not even know that Mr. Evelyn failed to prepare with regard to the Ginther hearing witnesses. We do know that Mr. Evelyn prepared by holding the preliminary examination and obtaining discovery and that he obtained a directed verdict of not guilty of first-degree murder. Mr. Evelyn should not be deemed guilty of malpractice without his having been given the opportunity to be heard, nor should the defendant be afforded a new trial without record basis for a finding that his conviction was unfairly obtained.
In the real world, defending criminal cases is not for the faint of heart. Lawyers must fulfill ethical obligations to the court, zealously advocate the client’s best interests (which includes establishing that they, and not the client, are in charge of making the professional decisions), and protect themselves against grievances and claims of malpractice. Lawyers will inevitably make errors in the process, but, because both cases and attorneys come in an infinite variety of configurations, those errors can only rarely be defined “with sufficient precision to inform defense attorneys correctly just what conduct to avoid.” Strickland at 693. Thus, the Sixth Amendment guarantees a range of reasonably competent advice and a reliable result. It does not guarantee infallible counsel.
An inference of constitutional ineffectiveness cannot be established on the basis of the “circumstance” of counsel’s thirty-day suspension during seven months of representation, without any inquiry into the conduct of the trial or any record being developed regarding counsel’s actual preparedness and its effect on the result.
vi. appellate counsel
Defendant also claims appellate counsel was ineffective in failing to call trial counsel at the Ginther hearing. There is no better evidence for why this claim should be rejected than the dissent’s holding that ineffectiveness may be inferred without the inquiry into performance and prejudice, which presumes that counsel’s conduct fell within the wide range of reasonable professional assistance.
Appellate counsel had an obvious strategic reason for not calling trial counsel. That reason was that if trial counsel had been called, his explanation for his actions might have been more believable than the testimony of the witnesses offered at the Ginther hearing. Appellate counsel may have failed to call trial counsel at the Ginther hearing because he determined trial counsel would have testified that he did not have notice of the witnesses or that he had a strategic reason for not presenting them (such as credibility or relevance). In any event, because these are strategic decisions, there is no basis to conclude appellate counsel was constitutionally ineffective.
VII. PROSECUTOR’S RIGHT TO APPEAL
A. SENTENCING REVIEW
In People v Coles, 417 Mich 523; 339 NW2d 540 (1983), this Court, by unanimous vote of all justices participating, recognized a defendant’s right to appellate review of a sentence. The Court held:
[A] sentence following a conviction is as much a part of the final judgment of the trial court as is the conviction itself. Since the Court of Appeals has jurisdiction to hear appeals of final judgments of trial courts, . . . the Court of Appeals has jurisdiction to hear appeals involving a review of a defendant’s sentence. [Id. at 535.]
In 1988, the Legislature amended MCL 770.12; MSA 28.1109 to expressly provide for prosecutorial appeals of right and by leave “if the protection against double jeopardy [under the state and federal constitutions] would not bar further proceedings against the defendant . . . .” Reviewing the statute last term, we held that it was enacted “to give the people the same essential right to appeal and seek leave as a defendant enjoys, within the limits of the constitutional prohibition against double jeopardy.” People v Torres, 452 Mich 43, 55; 549 NW2d 540 (1996). It follows that both the prosecutor and the defendant may appeal the sentence under Coles, supra; MCL 770.12; MSA 28.1109.
B. REVIEW OF GUIDELINES CALCULATIONS
Defendant argues, essentially, that a defendant’s right to appeal a sentence on the basis of an erroneous guidelines score is grounded in the due process right to be sentenced on the basis of accurate information. Townsend v Burke, 334 US 736; 68 S Ct 1252; 92 L Ed 1690 (1948). Because due process protects only individuals against state authority, defendant contends that the state cannot assert a right to a rule of symmetry with regard to sentencing appeals.
The holding in Townsend is inapposite. First, in Townsend, the United States Supreme Court held that there is no basis for the assertion of a due process right to be sentenced on correct information unless the sentence is based on an “extensively and materially false” foundation. Townsend, supra at 741. The misapplication of the guidelines typically advanced is not premised on a false foundation. The claim advanced is that the guidelines were misapplied because the instructions were not. properly interpreted or because an undisputed foundation is “insufficient” to support the score. These claims do not rest on allegations of falsify or lack of factual foundation. They would be claims of legal error if guidelines had the force of law.
More fundamentally, reference to the constitutional guarantee of procedural due process at sentencing does not address the principal question presented, which is whether either a defendant or a prosecutor has a substantive right to challenge a guideline miscalculation or misinterpretation, which does not have the force of law. Unlike the federal system, in which the sentencing guidelines are substantive law promulgated pursuant to an act of Congress, 28 USC 994(a) (authorizing promulgation of federal sentencing guidelines by United States Sentencing Commission), or those sister states in which guidelines have been adopted by the legislature, current guidelines used by the trial courts in Michigan exist solely as a result of Administrative Order No. 1988-4. As explained in People v Milbourn, 435 Mich 630, 656-657; 461 NW2d 1 (1990):
[W]e believe that the second edition of the sentencing guidelines is the best “barometer” of where on the continuum from the least to the most threatening circumstances a given case falls.
Nevertheless, because our sentencing guidelines do not have a legislative mandate, we are not prepared to require adherence to the guidelines. [Emphasis in the original.]
Simply stated, because this Court’s guidelines do not have the force of law, a guidelines error does not violate the law. Thus, the claim of a miscalculated variable is not in itself a claim of legal error.
We have long recognized and recently reaffirmed that a sentence may be set aside only when it is invalid. People v Whalen, 412 Mich 166, 169-170; 312 NW2d 638 (1981); In re Jenkins, 438 Mich 364, 373; 475 NW2d 297 (1991). In Jenkins, we observed in dicta that the defendant may challenge the scoring of the sentencing guidelines under MCR 6.429; and in People v Hernandez, 443 Mich 1; 503 NW2d 629 (1993), and People v Walker, 428 Mich 261; 407 NW2d 367 (1987), we discussed preservation of guidelines scoring issues. To the extent that our decisions have been construed to authorize review and reversal for scoring errors or errors of misinterpretation, Milbourn’s correct observation that guidelines do not have the force of law is controlling. Such relief is unavailable.
The challenge here asserted is directed not to the accuracy of the factual basis for the sentence, but, rather, to the judge’s calculation of the sentencing variable on the basis of his discretionary interpretation of the unchallenged facts. The challenge does not state a cognizable claim for relief. There is no juridi cal basis for claims of error based on alleged misinterpretation of the guidelines, instructions regarding how the guidelines should be applied, or misapplication of guideline variables.
As emphasized in Milboum, the guidelines are vehicles to assist the trial judge regarding where a given defendant falls on the sentence continuum recognized by Milboum. Where the guidelines calculation differs from the trial court’s intended sentence, the judge is alerted that the sentence falls outside a normative range and should be evaluated to assure that it is not unfairly disparate, has a rational basis, and is not disproportionate. On postsentence review, guidelines departure is relevant solely for its bearing on the Milboum claim that the sentence is disproportionate. Thus, application of the guidelines states a cognizable claim on appeal only where (1) a factual predicate is wholly unsupported, (2) a factual predicate is materially false, and (3) the sentence is disproportionate.
Appellate courts are not to interpret the guidelines or to score and rescore the variables for offenses and prior record to determine if they were correctly applied. Guidelines are tools to aid the trial court in the exercise of its authority and a framework for the appellate courts’ inquiry into the question whether the sentence is disproportionate and, hence, ah abuse of the trial court’s discretion. The Court of Appeals erred in reversing defendant’s sentence.
vm. conclusion
For the reasons stated above, we affirm the decision of the. Court of Appeals that defendant was not deprived of the effective assistance of counsel and vacate its order remanding this case to the trial court for resentencing.
Brickley and Riley, JJ., concurred with Boyle, J.
We do not reach defendant’s claim that the trial court erred in modifying the sentence under People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). The issue was not preserved below. Moreover, we agree with the Court of Appeals that pointing out what appeared at the time to be two options and advocating the one favorable to the defendant is not ineffective assistance. See McMann v Richardson, 397 US 759, 774; 90 S Ct 1441; 25 L Ed 2d 763 (1970). Because People v Thomas, 447 Mich 390; 523 NW2d 215 (1994), had not yet been decided, there was no clear rule prohibiting correction of a Tanner error by increasing the maximum term.
Defendant had been notified by Mr. Evelyn and advised to contact counsel’s partner, Myzell Sowell.
Presumably the transcript of the preliminary hearing.
Defendant resided in apartment 301; 302 was vacant.
People v Walker, 374 Mich 331; 132 NW2d 87 (1965).
The grievance was filed on May 1, 1989, before Mr. Evelyn had resolved defendant’s concerns to defendant’s satisfaction. In response to the judge’s inquiry with regard to the grievance that had precipitated a motion to withdraw by Mr. Evelyn, defendant stated, “I would like to, you know, cancel that grievance, you know, because all the motions and everything that I requested have been answered. ... I’m satisfied [with counsel], your Honor.” This expression of satisfaction is not a waiver of a claim of ineffective assistance of counsel. Because the appropriate inquiry is not the client’s evaluation of counsel’s performance, but rather whether counsel is a reasonably effective advocate, “we attach no weight to either respondent’s expression of satisfaction with counsel’s performance at the time of his trial, or to his later expression of dissatisfaction.” United States v Cronic, 466 US 648, 657, n 21; 104 S Ct 2039; 80 L Ed 2d 657 (1984).
The judge sentenced defendant to ten to twelve years; two months later, the judge increased the sentence to ten to fifteen years to correct the error under People v Tanner, n 1 supra.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
The right to counsel extends to representation during any “critical stage” of the proceedings, Coleman v Alabama, 399 US 1, 7; 90 S Ct 1999; 26 L Ed 2d 387 (1970), and guarantees “a fair trial and a competent attorney.” Engle v Isaac, 456 US 107, 134; 102 S Ct 1558; 71 L Ed 2d 783 (1982). It does not require the state to provide the defendant with unlimited access to the attorney during the trial. See, e.g., Perry v Leeke, 488 US 272; 109 S Ct 594; 102 L Ed 2d 624 (1989). A fortiori, it does not guarantee a defendant “a private in-depth interview” during pretrial in the place of the defendant’s choosing. Post at 191.
We need not dispute the fact that some circumstances, like those in Powell v Alabama, 287 US 45; 53 S Ct 55; 77 L Ed 158 (1932), are so egregious that prejudice will be presumed. See, e.g., Childress v Johnson, 103 F3d 1221 (CA 5, 1997). In Childress, the court observed that “federal courts of appeal . . . have repeatedly emphasized that constructive denial of counsel as described in Cronic affords only a narrow exception to the requirement that prejudice be proved.” Id. at 1228-1229. Cronic’s reservation of the constructive denial of counsel rule to cases where the “circumstances . . . are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified,” id. at 658, has been applied only in a “narrow spectrum” of cases where the “circumstances . . . [were] so egregious that the defendant was in effect denied any meaningful assistance at all.” Childress at 1229 (emphasis added).
See also Ferguson v Georgia, 365 US 570; 81 S Ct 756; 5 L Ed 2d 783 (1961) (statute barring direct examination of defendant and requiring defendant to testily in an unsworn statement); Brooks v Tennessee, 406 US 605; 92 S Ct 1891; 32 L Ed 2d 358 (1972) (statute allowing judge in a bench trial to preclude closing argument by defense). Such proceedings give rise to a prophylactic approach because they “impair the accused’s enjoyment of the Sixth Amendment guarantee by disabling his counsel from fully assisting and representing him.” DeCoster at 364. Cronic, however, rejects the extension of this approach where, as here, the claim is that counsel’s preparation was inadequate. Id. at 667.
The dissent believes “the suspension, combined with the surrounding circumstances and the gravity of the charge justify a presumption of prejudice,” post at 193, thus arguing that the case belongs with Powell on the continuum. We disagree because the type of presumption alluded to is reserved for cases, like Powell, in which the circumstances are far more egregious than those presented here.
As in Moms, the request was made not by counsel, but by the defendant.
The defendants in Powell had no counsel until the morning of trial, when an attorney from another state, who was unfamiliar with Alabama procedure, acknowledged his willingness to provide representation despite his unpreparedness. Id. at 57.
The dissent’s application of Powell to defense counsel’s thirty-day suspension is factually inapt. Four young, ignorant, and illiterate “negroes” were arrested by an Alabama sheriff’s posse for the rape of two white girls in 1931, were brought to town into the midst of a hostile crowd, and “every step taken from the arrest and arraignment to the sentence was accompanied by the military ... in an atmosphere of tense, hostile, and excited public sentiment.” Id. at 51. None of the defendants was a resident of Alabama, and the trial court never inquired whether they had counsel, the ability to obtain counsel, or needed counsel appointed. Id. at 52. The trial court appointed for arraignment “all the members of the [Alabama] bar” to assist in the defense. Id. at 49.
The defendants were hurried to trial with counsel who had no opportunity to prepare or investigate. The Court found that counsel’s representation then proceeded “pro forma,” so that the “defendants were not accorded the right of counsel in any substantial sense.” Id. at 58. The Court reasoned that
during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the triad itself. [Id. at 57 (emphasis added).]
Defendant was not unrepresented during any critical stage of the proceedings. Defendant was represented at the preliminary examination, during trial, and during all critical stages through sentencing. In fact, given Mr. Sowell’s assumption of the case, there was no period of time when the defendant was not represented. Counsel was not absent at any specific time when “ ‘counsel’s absence might derogate from the accused’s right to a fair trial[,]’ ... as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” Coleman, n 9 supra at 7 (citations omitted). Even if defendant and his mother were fully creditable and Mr. Evelyn did not contact the witnesses and only met with the defendant three times, this is not a “denial of counsel” during a critical stage. Rather, these are allegations of deficient performance by counsel that must meet the Strickland standard.
Given the dissent’s recognition that a Powell-like presumption obviating an inquiry into actual performance or prejudice applies “[wjhen the surrounding circumstances make it so unlikely that any lawyer could provide effective assistance” post at 186 (emphasis added), the fallacy in applying Powell to a thirty-day period of assumed lack of preparation during a seven-month period of representation is obvious. Would any lawyer who had represented the defendant at the examination, had the benefit of discovery, and six-months time to prepare necessarily be ineffective to try this relatively uncomplicated five-day trial if illness had precluded preparation for trial for the thirty-day period preceding trial, if a family emergency had absorbed all time and energy for that period, or, more realistically, if the demands of another, more complex trial had prevented preparation?
While the dissent states that “the criminal justice and attorney discipline systems, without a doubt, combined to deny Mr. Mitchell any assistance of counsel,” post at 190, the disciplinary system is not the creature of the criminal justice system, and neither the government nor the trial court has control over or responsibility for the timing of an order of discipline. Nonetheless, to the extent that the dissent views the situation as analogous to a statute or order which impairs the attorney-client relationship, we note that there is no claim that the order disabled counsel from fully representing him at trial. The interests of both systems as well as those of criminal defendants require that a claim of ineffective assistance based on specific deficiencies of counsel stemming from disciplinary action be treated as a claim that, by its “very nature, require[s] courts to evaluate the attorney’s performance and the effect of that performance on the reliability and fairness of the proceeding.” (Brennan, J., concurring in Strickland at 702) (that claims of specific attorney error were not "cases ‘in which the surrounding circumstances [make] it so unlikely that any lawyer could provide effective assistance that ineffectiveness [is] properly presumed without inquiry into actual performance at trial’ ”).
Although Mr. Evelyn stated at trial that he had met with the defendant on numerous occasions and more than once at the courthouse, the dissent accepts, without any testimony from Mr. Evelyn at the Ginther hearing, defendant’s allegation that the meetings were useless because he was hard of hearing.
As in Cronic, competent appellate counsel has failed to identify any bona fide grounds to suppress the evidence.
The dissent argues that the testimony of the witnesses offered at the Ginther hearing could have been useful to undermine Mr. Thompson’s testimony. Post at 194, n 8. As noted below, we defer to the trial judge’s determination that the testimony offered was contradictory and would not have altered the outcome.
The prosecutor argued that Mr. Mason shot Mr. Harlin at defendant’s direction according to Mr. Thompson’s testimony. Counsel argued that the prosecutor’s witnesses were not credible, that Thompson’s testimony was equivocal, and that the burden of proof had not been sustained because the evidence amounted to nothing more than a “ball of confusion.” Counsel effectively cross-examined the witnesses consistent with his theory of the case. The jury convicted defendant of second-degree murder after Mr. Evelyn successfully moved for a directed verdict that the evidence was insufficient on the elements of first-degree murder.
Counsel also succeeded in excluding damaging evidence from apartment 302.
There was unrebutted testimony that defendant ordered the shooting. Testimony that Thompson came in with the gun could not rebut this testimony. The third witness, Mr. Mason, was a codefendant and the alleged shooter, and was therefore unavailable to testify in defendant’s case until he took the stand in his own case before a separate jury, where he testified the gun belonged to Mr. Thompson. Theoretically, had Mr. Mason’s testimony been beneficial to defendant Mitchell’s case, Mr. Evelyn could have moved to reopen the case. There are several reasons why this argument does not support the claim that the failure to move to reopen could be found objectively unreasonable on this record. First, given that the two defendants had separate juries and severance is only mandated where it is “necessary to avoid prejudice to substantial rights of the defendant,” MCR 6.121(C); People v Hana, 447 Mich 325; 524 NW2d 682 (1994), counsel would presume Mason’s testimony would be harmful to Mitchell. Second, we cannot evaluate Mason’s trial testimony because the record before us does not include Mr. Mason’s trial testimony before the Mason jury. Third, because Mr. Evelyn was not called at the Ointher hearing, we have no way of knowing how he evaluated the situation.
Of course, calling this a “total denial of counsel” is misleading where counsel was not absent during the entire seven-month pretrial phase, but only for thirty days of that phase.
Like all attorneys eligible to receive appointments in Detroit Recorder’s and Wayne Circuit Courts, Mr. Evelyn had completed the requirements of the criminal advocacy program designed to assure more than minimal competence for attorneys representing indigent attorneys. Indeed, in September 1996, Mr. Evelyn was selected to teach one of the eight seminars offered in the 1996 Detroit/Wayne County Criminal Advocacy Program. That program has been in existence since 1983 “for the purpose of developing, expanding, and maintaining high professional standards of representation in felony cases.” Detroit/Wayne County 1996 Criminal Advocacy Program Announcement. It was “designed and developed under the joint auspices of judges, members of the private bar, police, prosecutors, and defense attorneys.” Id. In order to continue receiving appointments in Recorder’s Court, attorneys with less than ten years experience must attend six of the ten seminars offered each year, and attorneys with over ten years experience must attend at least two.
The dissent would adopt its categorical approach to ineffective assistance for failure to investigate or prepare because of lack of time despite Cronic’s warning “against using any rule of thumb ... in determining how much time was needed for defense preparation.” LaFave & Israel, supra, § 11.8 at 28. It is unclear whether this would create a presumption that the prosecutor would be obligated to rebut or a rule of reversal per se. The Supreme Court has adopted a rebuttable presumption of prejudice in some cases, thereby shifting the burden of showing absence of prejudice to the prosecution. See, e.g., Cuyler v Sullivan, 446 US 335; 100 S Ct 1708; 64 L Ed 2d 333 (1980). Even under this approach, the defendant’s claim here would fail because the record establishes that he suffered no prejudice from the suspension or failure to call witnesses.
“It is well established that a defendant in a criminal case who asserts ineffective assistance of counsel waives by doing so the attorney-client privilege.” Howe v Detroit Free Press, 440 Mich 203, 236; 487 NW2d 374 (1992) (separate opinion of Levin, J.). See also Tasby v United States, 504 F2d 332, 336 (CA 8, 1974).
Again, however, the dissent could be interpreted to advocate allowing an appellate court to simply presume ineffective assistance upon the allegation of inability or failure to prepare so that evidence of prejudice from either party would be wholly irrelevant. We reject this result because, by obviating the Ginther procedure in many cases, it would violate Strickland's admonition to assess whether “a particular decision not to investigate [is reasonable], applying a heavy measure of deference to counsel’s judgments.” Id. at 691.
The dissent attempts to avoid our holding in People v Pubrat, supra, that the test for claims of ineffective assistance stemming from disciplinary suspension is that which is set forth in Strickland by suggesting that there is a difference between a suspended lawyer who continues to represent a defendant and a lawyer who it is assumed did not prepare during the period of suspension. Aside from the fact that this approach discourages disciplined lawyers from abiding by their obligation not to practice during a period of suspension, the dissent offers no explanation for why prejudice should be presumed during one temporary suspension, but not the other. Moreover, given the fact that a suspended or disbarred attorney is not prohibited from working in the capacity of an “agent, clerk or employee” of a licensed attorney, Grievance Administrator v Chappell, 418 Mich 1202 (1984), there is neither reason nor justice to create an inference that defendant Mitchell received “no counsel at all during this period.” Post at 191, n 6.
The dissent appears to attach weight to defendant’s expressions of discontent, and to his having filed a grievance against Mr. Evelyn and requested new counsel and an adjournment of trial. Post at 197-198. While the trial court would have been well advised to have made an earlier and more complete record, regarding defendant’s complaint, the weight afforded to these complaints betrays naiveté. Grievances against attorneys and judges may be legitimate. They are also prompted by a desire for a new judge, a new attorney, or an adjournment, and are routine incidents in Recorder’s Court.
Justice Boyle did not participate.
An appeal by a defendant “who pleads guilty or nolo contendere shall be by leave of the court . . . Const 1963, art 1, § 20, ratified November 8, 1994, effective December 24, 1994.
In the federal system, for example, although the decision of a federal judge not to depart from the guidelines is an unreviewable exercise of the trial court’s discretion, miscalculation of the guidelines range is subject to appellate review as legal error. 18 USC 3742(f)(1) (authorizing remand with instructions where a trial court applies guidelines incorrectly); United States v Grandmaison, 77 F3d 555, 560 (CA 1, 1996); United States v Gifford, 17 F3d 462, 473 (CA 1, 1994); United States v Hilton, 946 F2d 955, 957 (CA 1, 1991). Departures from the federal guidelines are reviewed only for abuse of discretion. Koon v United States, 518 US 81; 116 S Ct 2035; 135 L Ed 2d 392 (1996).
Careful evaluation of the effect on trial and appellate courts will undoubtedly attend legislative adoption of sentencing guidelines pursuant to 1994 PA 445; MCL 769.32 eí seq.; MSA 28.1097(3.2) et seq. The Court of Appeals experienced a 132 percent increase in appeals in criminal cases between 1988 and 1994. This Court has not published a single opinion remanding a sentence for failure to meet the requirements of proportionality since People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and my research indicates that only two such cases have been remanded or reversed by order. This research also indicates that the Court of Appeals has published approximately fifteen such reversals during the same period, with only six since People v Merriweather, 447 Mich 799; 527 NW2d 460 (1994). On the other hand, a conservative estimate based on very rough research indicates that during the six years since Milboum was decided this Court has reviewed well over one thousand cases in which this issue was raised. Given the administrative burden of the appeals generated and the limited nature of relief available, the benefit from such allocation of resources is, at best, unclear. The federal guidelines have been widely criticized for the rigidity with which they constrain trial court discretion and for the burden imposed on appellate courts. See, e.g., Freed, Federal sentencing in the wake of guidelines: Unacceptable limits on the discretion of sentencers, 101 Yale L J 1681 (1992); Schulhofer, Assessing the federal sentencing process: The problem is uniformity, not disparity, 29 Am Crim L R 833 (1992); Weinstein, A trial judge’s reflections on departures from the federal sentencing guidelines, 5 Fed Sent Rep 6 (1992); Alschuler, The failure of the sentencing guidelines: A plea for less aggregation, 58 U Chi L R 901 (1991). This criticism may have been part of the impetus for the decisions in Williams v United States, 503 US 193; 112 S Ct 1112; 117 L Ed 2d 341 (1992), and Koon, n 33 supra, which clearly return some of the trial court’s ability to individualize sentences and reject the concept of automatic reversal for guideline error.
For the same reason, error cannot be predicated on a claim that the instructions were misinterpreted.
Errors in calculation of sentencing variables and even reliance upon some invalid factors in arriving at a sentence that departs from the guidelines do not necessarily invalidate a sentence under federal law. The Williams Court explicitly held that an appellate court need not invalidate a sentence on the basis of an improper factor where the prosecution can establish that the sentence would have been the same absent the improper consideration. Williams, n 34 supra at 203; accord People v Hernandez, 443 Mich 1, 12, n 13; 503 NW2d 629 (1993). It appears that, under federal law, a sentence will be insulated from reversal on appeal if the judge states on the record that the sentence would have been the same had the judge only considered proper factors. Id.; Parham, Grist for the mill of sentencing guideline reform: Williams v United States, 28 Wake Forest L R 487 (1993). Even though the Koon Court held that federal judges may not base departures on factors expressly forbidden in the federal guidelines, Williams provides that a sentence will not be overturned where the error is harmless. Williams, n 34 supra at 203 (citing F R Crim P 52[a]). The Court reasoned that a sentence can still “be ‘reasonable’ even if some of the reasons given by the district court to justify the departure from the presumptive guideline range are invalid, provided that the remaining reasons are sufficient to justify the magnitude of the departure.” Id. at 204.
As in Walker, an “effective challenge” involving guidelines is a challenge to the accuracy of the factual information on which the sentence was based, a challenge grounded in the due process clause under Townsend. Walker authorized a review procedure for the preservation of sentencing appeals. Hernandez limited Walker by holding that an appellate court is not compelled to grant a motion to remand where there was “evidence supporting the judge’s initial scoring of the sentencing guidelines variable . ...” Id. at 3. As in Walker, the challenge in Hernandez centered on the factual accuracy of the basis for the sentence. Properly understood, Hernandez affirmed that the accuracy of the information and the adequate notice in the presentence report gave rise to reviewable claims on appeal. It did not authorize a challenge on the basis of the judge’s interpretation of the facts underlying the sentence and the scoring decisions based on it, that is, the manner in which the judge scored the variables.
My brother Cavanagh’s separate statement prompts a response. The fact that some persons cannot see the point of the constitutional limits of judicial authority is precisely the point of repetitively pointing it out.
Where an error was based on an “extensively and materially false” foundation, Townsend requires review. We have not decided the issue whether such a challenge may be asserted by a prosecutor on behalf of a crime victim under Const 1963, art 1, § 24.
Contrary to defendant’s claim, we have never held that the sentencing guidelines provide a clear basis on which sentences might be overturned on appeal. Moreover, in requiring judges to state their reasons for departing from the guidelines, the order does not speak of appellate review, but, rather, of the Sentencing Guidelines Advisory Commission’s use of that information in generating analysis of whether the guidelines are working effectively.
To ask whether it is a misapplication of the guidelines to score points for criminal sexual conduct under OV 12, where prior penetrations were not part “of the same transaction,” is to ask a question whose answer has no legal relevance on appeal. As an inquiry about what the guidelines committee had in mind regarding assessment measures that do not have the force of law, the inquiry, at best, asks for an opinion about how the majority of judges would have sentenced the defendant. | [
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McDonald, J.
The defendant has appealed from a decree of the circuit court of Muskegon county, granting the plaintiff a divorce and the custody of a minor child. The parties were married in April, 1921, and lived together until July, 1926. Two children were born of the marriage, but the custody of one only is here involved. The bill alleges cruelty. The main charge is that the defendant neglected her home and associated with another man for whom she openly declared her preference and expressed her affection. In her cross-bill the defendant also charged cruelty, claiming that the plaintiff was quarrelsome, that he cursed her, called her vile names, ordered her from the home, and charged her with illicit relations with other men. On the hearing, the circuit judge determined that the testimony did not support her charges. He dismissed the cross-bill and entered a decree for the plaintiff for divorce, and the custody of a minor child. The defendant has appealed.
Considerable testimony was taken on the hearing. It was mostly directed to the charge of the defendant’s intimacy with a man named Stong, who at one time was a roomer in the home occupied by the parties. The defendant strenuously denies any improper interest in Mr. Stong, but on this element of the case the weight of the evidence is against her. The testimony of the plaintiff as to her social relations with Stong is strongly supported by that of several disinterested witnesses, including two* officers of the Muskegon Heights police department. Their testimony is in no way discredited. It is unnecessary to detail it. In a case like this, we do not think it is wise to enter into any extended discussion of the facts. The circuit judge who saw the witnesses and heal'd them testify was convinced that much of the domestic discord of these parties was the result of the defendant’s association with Mr. Stong. With his conclusions we agree. We are also convinced from our study of the record that while the plaintiff was not a model husband and was not always blameless in their domestic troubles his misconduct was not sufficient to constitute a legal ground for divorce. It is our judgment that the evidence justified the court in dismissing the defendant’s cross-bill and granting the plaintiff a decree.
The decree gives the custody of the child, an infant daughter about five years of age, to the plaintiff. The statute (3 Comp. Laws 1915, § 11484), favors leaving the custody of children of tender years with the mother. But as the charges, which we have held constitute legal grounds for divorce, reflect on her moral character, we cannot disturb the decree in respect to the custody of the child. Our first consideration is its welfare; but the maternal rights of the mother should not be overlooked. The child is now with the plaintiff in the home of a sister. The decree permits the defendant to visit it there. There is bitter animosity between this sister and the defendant. It is not reasonable to require the defendant to visit at this home. She is entitled to have her daughter alone with her in her own home where she can enjoy her society without restraint. As both of the parties reside in the same city, this can be accomplished without great inconvenience to either and would in no way affect the welfare of the child. In this respect the decree will be modified. The plaintiff will be required to deliver the child to the defendant at her home on Saturday morning of each week, where, at the defendant’s option, it may remain until Sunday evening, when it shall be returned to the plaintiff.
We believe that the court made a reasonable allowance for permanent alimony and in that respect the decree will not be disturbed.
A decree will be entered in accordance with this opinion. Neither party will have costs in this court.
Flannigan, C. J., and Fellows, Wiest, Clark, Bird, and Sharpe, JJ., concurred.
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Riley, J.
In this appeal, we are asked to examine the jury instructions given by a trial court in a felony-murder case in light of our decision in People v Aaron, 409 Mich 672; 299 NW2d 304 (1980). The instructions in the instant case violated Aaron by allowing the jury to convict defendant of murder from his intent to commit the underlying crime alone. The jury did not need to determine that defendant had a malicious intent before determining that he was guilty of murder. Therefore, we would reverse the Court of Appeals decision to affirm defendant’s conviction and would remand for a new trial.
I. FACTS AND PROCEEDINGS
On June 21, 1991, defendant Rodney Dumas and codefendant Patrick Smith entered the garage of Porter Thomas, a self-employed mechanic, to commit an armed robbery. A customer, Eddie Fultz, was present at the garage at the time. When the two men entered the shop, defendant approached Fultz. Smith pushed Thomas into the garage. Fultz explained that he did not work there, but defendant told him to go into the office and said “nothing [will] happen to you.” Defendant gestured to his hip, suggesting that he might have a gun. When defendant looked back toward the garage, Fultz fled by climbing over a seven-foot fence. As he climbed the fence, he heard Thomas repeatedly say in a frightened voice, “I don’t have any money.” Before hitting the ground, Fultz heard a single gunshot. Fultz returned to the garage to see defendant and Smith running toward their vehicle. After Thomas, wounded in the chest, emerged from the garage carrying a rifle, he collapsed. He died from the wound, which was made by a .357 or .38 hollow point bullet.
Defendant and Smith were charged with felony murder. MCL 750.316; MSA 28.548. Smith was also charged with possession of a firearm during the commission of a felony. MCL 750.227b; MSA 28.424(2). In January 1992, defendant and Smith were tried jointly, although separate juries were impaneled. Evidence of similar acts was presented at trial against defendant, indicating that he and Smith had been involved previously in three other armed robberies together. This evidence was introduced for the' purpose of demonstrating defendant’s knowledge that Smith was carrying a gun during the robbery of Thomas. Defendant did not testify and did not call any witnesses. In closing argument, defense'counsel conceded that defendant intended to commit the robbery, but rested his defense on the theory that defendant did not know that Smith had an intent to shoot the victim. Counsel asked that the jury convict defendant of the lesser offense of attempted armed robbery.
The only issue in this appeal is the adequacy of the trial court’s instructions to the jury. Defendant claims that the trial court erred in giving the following instruction:
If you find that the defendant consciously intended to commit, attempted to commit or assist others in the commission of the crime of robbery or larceny, you may infer that he knowingly created a high risk of death or serious bodily injury with knowledge that it probably would cause death.
Defendant objected to this instruction, but the trial court gave the instruction over his objection.
On January 27, 1992, the jury found defendant guilty of first-degree felony murder, and he was sentenced to life in prison without an opportunity for parole, as required under MCL 750.316; MSA 28.548.
Defendant appealed his conviction in the Court of Appeals, which affirmed in an unpublished per curiam opinion, concluding:
A review of the instructions as a whole reveals that the court properly instructed the jurors on the issue of intent. The court read the requisite elements of felony murder. The court included an instruction which addressed the act of murder. The court next instructed the jurors on the fifth element outlined in the CJI2d, which explained that in order to convict a defendant of first-degree felony murder, the killing must occur “as a result of the crime of larceny or robbery.” Finally, the court gave its instruction on transferred intent. Although in isolation, the alleged erroneous instruction may have somewhat blurred the concept of intent to commit the underlying felony and intent to cause great bodily injury, the given instructions, when read as a whole does not amount to reversible error. [Issued January 11, 1995 (Docket No. 153325), slip op at 2.]
Defendant sought leave to appeal, and this Court granted leave, “limited to whether the trial court improperly instructed that the intent required for a felony-murder conviction can be inferred from the intent to commit the underlying felony.”
H. ANALYSIS
A
In reviewing a trial court’s jury instructions, this Court examines the instructions as a whole, and, even if there are some imperfections, there is no basis for reversal if the instructions adequately protected the defendant’s rights by fairly presenting to the jury the issues to be tried. People v Kalder, 284 Mich 235, 241-242; 279 NW 493 (1938). This Court will not reverse a conviction for an instruction that is not “ ‘strictly correct’ ” where we “ ‘can clearly see that the jury could not have been misled by it’ . . . .” People v Dupie, 395 Mich 483, 488-489; 236 NW2d 494 (1975), quoting the syllabus from People v Scott, 6 Mich 287 (1859).
B
To prove murder, the people must demonstrate that the defendant acted with malice in causing the death of another. Aaron, supra at 728. Malice is defined as (1) the intent to kill, (2) the intent to do great bodily harm, or (3) a wanton and wilful disregard of the likelihood that the natural tendency of the defendant’s act is to cause death or great bodily harm, i.e., depraved-heart murder. Id. In 1980, in Aaron, this Court abolished the common-law felony-murder rule, which had previously established that a defendant was guilty of murder for a homicide that occurred during the course of a felony if he had the intent to commit the underlying felony, insofar as this rule equated malice with the intent to commit the underlying felony. See id. at 727-728. Rather, the people must prove one of the three intents that define malice in every murder case. Id. at 728. After this decision, the felony-murder rule continued to exist in part by statute, operating only to elevate a second-degree murder conviction to first-degree murder if the murder occurred during the commission of one of the statutorily enumerated crimes. Id. at 734. At the time of defendant’s trial, the first-degree murder statute provided in full:
Murder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a. dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life. [MCL 750.316; MSA 28.548.[ ]
In abolishing the felony-murder rule from the common law, this Court explained that the malice necessary for a felony-murder conviction cannot be inferred from the intent to commit the underlying felony alone. See Aaron, supra at 727-728. See also People v Kelly, 423 Mich 261, 273; 378 NW2d 365 (1985). However, we noted that the jury may infer a malicious intent from the facts and circumstances of the underlying felony:
The facts and circumstances involved in the perpetration of a felony may evidence an intent to kill, an intent to cause great bodily harm, or a wanton and willful disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm; however, the conclusion must be left to the jury to infer from all the evidence. [Aaron, supra at 728-729. See also Kelly, supra at 273.][ ]
Five years after Aaron was decided, this Court, in Kelly, addressed a similar issue as the one raised in this appeal. Notwithstanding the ruling of Aaron, the trial court in Kelly provided an instruction regarding malice that was virtually the same as the one contested in the instant case, in a felony-murder trial in which the underlying felony was robbery. As in this case, the defendant objected to the instruction, but the trial court overruled the objection. Kelly, supra at 269-270, n 2.
In reviewing the particular instruction, we concluded that the instruction, read in isolation, “may be inaccurate.” Id. at 264. Nevertheless, in reviewing the instructions in their entirety, we determined that the instructions merely identified the underlying crime as a factor for the jury to consider in determining whether the defendant was guilty of malice. Id. at 273. We noted that the contested instruction only created a “permissive inference” and not a mandatory one. Id. at 273, n 4. We also noted that the trial court had (1) properly instructed the jury that malice is an essential element of murder, (2) given a proper instruction on the definition of malice, and (3) instructed the jury that it must consider all the facts and circumstances in determining the defendant’s state of mind. We reasoned that the instruction that the jury must consider all the facts and circumstances “clarified any ambiguity in the instruction objected to by explicitly noting in the proxdmately following paragraphs the factors the jury had to consider to find malice.” Id. at 274-275. Consequently, we concluded that the instructions as a whole “correctly informed the jury of the Aaron standard” and that the instructions did not require the jury to find malice only on the basis of the intent to commit the underlying felony. Id. at 275. In concluding that the given instructions “were accurate,” id. at 276, we contrasted Aaron, and its companion case, People v Thompson, in which the instructions regarding the inference to draw was automatic rather than merely permissive. Kelly, supra at 276-277.
c
In the instant case, defendant was tried for felony murder where the people claimed that the underlying crime was larceny or armed robbery. As in Kelly, the trial court provided the proper instruction that the people must prove one of three intents to prove the requisite intent for murder:
Murder is the killing of one person by another with a certain mental element. For murder, the defendant must have intended to kill, or having intended to do great bodily harm, or the defendant must have intended to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result of his acts ....
In fact, the trial court repeated this definition of malice in its instructions on first- and second-degree murder four times.
The trial court then gave the elements for larceny before it gave the instruction that defendant objected to at trial and challenges on appeal:
If you find that the defendant consciously intended to commit, attempted to commit or assist others in the commission of the crime of robbery or larceny, you may infer that he knowingly created a high risk of death or serious bodily injury with knowledge that it probably would cause death. [Emphasis added.][ ]
This particular instruction, examined in isolation, is erroneous because the jury could conclude that it may infer defendant’s intent to create a high risk of death or great bodily harm with the knowledge that death was the likely result from the intent to commit the underlying crime alone, even if the facts and circumstances of the crime did not support that finding. The word “may” generally denotes discretion, see AFSCME v Highland Park Bd of Ed, 214 Mich App 182, 186; 542 NW2d 333 (1995), and the instruction provides no qualification of when this discretion may be exercised. Hence, the instruction violates Aaron, supra at 727-728, by allowing the jury to convict defendant for murder without finding that he had a malicious state of mind when he committed the crime. This particular instruction should not be given by trial courts.
In Kelly, the trial court gave the erroneous instruction, but then immediately followed it with further instructions on intent, that the jury may infer an intent to kill from the manner of use of a dangerous weapon, and that the jury must consider all facts and circumstances to determine the defendant’s state of mind:
“Now, you must consider all of the facts and circumstances in determining the state of mind of the defendant at the time of the act. This may be inferred from the kind of weapon used, the nature of the wounds inflicted, the circumstances surrounding the killing, the acts, conduct and language of the accused or any other circumstance in evidence.” [Id. at 268.]
We approved the instructions in their entirety because, in context, the general tenor of the instructions was to convey to the jury that it could infer the defendant’s malice from the commission of the underlying crime if the circumstances and facts warranted the inference. Kelly, supra at 275.
However, in the instant case, unlike Kelly, the trial court did not immediately follow the erroneous instruction with a proper one regarding the fact that the jury must consider all the facts and circumstances in determining the defendant’s state of mind. Instead, the trial court provided instructions on the elements of assault with intent to commit armed robbery, attempted armed robbery, and accessory after the fact. After these instructions, the trial court gave an instruction similar to the one that had clarified the erroneous instruction in Kelly, but this one did not refer to the felony-murder charge and only informed the jury that it may consider the facts and circumstances in determining defendant’s intent:
Now the crimes of aimed robbery, larceny, assault with intent to rob and the common law offense of accessory after the fact requires proof of a specific intent. This means that the prosecution must prove not only that the defendant did certain acts, but that he did the acts with the intent to bring about a particular result.
For the crime of larceny, armed robbery, assault with intent to rob[,] this means that the prosecution must prove that the defendant intended to permanently deprive the owner, that is Mr. Porter Thomas[,] of the property.
The defendant’s intent may be proved by what he said, what he did, how he did it or any other facts and circumstances in evidence.
For the crime of common law accessory after the fact the People must prove that at the time of the offense the defendant specifically intended to hinder the other person’s arrest or the other person’s trial or the person’s punishment. And for the crime of attempted armed robbery, this means that the prosecution must prove that the defendant intended to commit the crime of armed robbery.
Once again the defendant’s intent may be proved by what he said, what he did, how he did it or any other facts and circumstances in evidence. [Emphasis added.]
The two italicized instructions, examined in context, appear to refer only to the specific intent crimes identified by the trial court immediately before, and not to the felony-murder charge the trial court described ten pages earlier in the transcript. Moreover, the fact that the instruction did not require the jury to consider the facts and circumstances, but merely allowed the jury to consider them, further limits the likelihood that this instruction could have clarified the erroneous instruction.
Furthermore, the jury instructions given later by the trial court only compounded the error of the inaccurate instruction given earlier by stating in the people’s theory of the case that the people claimed that defendant was guilty of wanton and wilful disregard for others by his “intentional participation in an armed robbery”:
It is the People’s position that on June 21, 1991 in the late afternoon the defendants, Rodney Dumas and Patrick Smith, acting together with a common purpose, went to the Porter Thomas garage in Detroit with the specific intent then of robbing or stealing money from Mr. Thomas. Defendant Dumas knew that Mr. Smith had a gun because when they recently committed three prior armed robberies Mr. Smith always possessed a firearm.
It is the People’s theory that during the attempt to rob or steal Mr. Thomas’ money, he offered som[e] form of resistance, and Patrick Smith shot and killed him with either a .38 caliber or a .357 caliber handgun.
[It] is the People’s theory that when Mr. Smith shot Mr. Thomas in the upper left chest, it was his intent to overcome whatever resistance Mr. Thomas offered.
Prior to and at the time of the attempted robbery of Mr. Thomas it was a common understanding of the Defendant Dumas and Mr. Smith that if there was any resistance from Mr. Thomas, Mr. Smith would use his handgun to meet or overcome it.
It is the People’s theory that it made little difference if any to the defendant Dumas whether Mr. Thomas was killed or suffered great bodily harm. The objective was to end any resistance.
At the time Porter Thomas was fatally shot by Mr. Smith, Defendant Dumas concurred in the killing or in the infliction of the great bodily harm as part of their common purpose, i.e., to rob and avoid apprehension.
In any event[,] Defendant Dumas by his intentional participation in an armed robbery acted in a wilful and wanton manner that had the natural tendency to cause Mr. Thomas’ death. [Emphasis added.]
The trial court’s instructions on the people’s theory initially indicated that the people claimed that defendant had agreed by “common understanding” before the robbery to kill someone or to inflict great bodily harm on someone if during their robbery they encountered any resistance. This is perfectly consistent with Aaron, supra at 728-729. However, the trial court added another argument, separated by the phrase “[i]n any event,” that defendant, because he intentionally participated in the underlying felony, acted in a wanton and wilful manner. This argument indicated that the jury may conclude that defendant acted with malice by the fact alone that he participated in the' robbery. Aaron requires more. Aaron requires that the people prove that the facts and circumstances of the crime evidenced a wanton and wilful disregard for others. Id. at 728-729. Therefore, the instruction on the people’s theory confirmed the previous erroneous instruction by asking the jury to infer a malicious intent irrespective of whether the facts and circumstances warranted the inference.
These statements were part of the instructions to the jury. See MCR 2.516(A)(2) and MCR 2.516(B)(3). They were the last instructions the trial court gave before giving the jury instructions regarding its duty to pick a foreperson.
For these reasons, in the instant case, we conclude that the instructions, even read in their entirety, failed to fairly present the issues the jury was to try. We cannot say that the jury would not have been misled by the particular errors of the trial court. See Dupie, supra at 488-489. We would order all trial courts to refrain from using the erroneous instruction that the jury may infer malice from the commission of the underlying offense without qualifying when the jury may make this inference. Where the trial court decides to give an instruction that the jury may infer malice from the commission of an underlying crime, it should further explain at the same time that the jury may only infer this malice if the facts and circumstances of the intent to commit the underlying crime warrant the inference. A trial court should take its instructions from this Court’s analysis in Aaron, supra at 728-729, if it decides to elaborate on its instructions on the nature of malice. We, of course, would leave to the trial court’s discretion to determine whether there is a need for additional instructions on the question of malice beyond the definition of malice supplied in Aaron, supra at 728.
D
The instructional error in this case was preserved but did not involve a constitutional claim. Thus, it is preserved, nonconstitutional error. Under Michigan law, we shall not set aside a verdict unless such an error resulted in a miscarriage of justice:
No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire case, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. [MCL 769.26; MSA 28.1096 (emphasis added).]
We explained in People v Mateo, 453 Mich 203, 206; 551 NW2d 891 (1996), that this statute does not require “a literal definition” of miscarriage of justice. Where there is overwhelming evidence of a defendant’s guilt, there is no affirmative evidence of a miscarriage of justice. Id. at 207.
In the instant case, the key point was whether defendant harbored a malicious intent when he committed the armed robbery. The evidence on this point was not overwhelming. For this reason, we cannot conclude that the error on the law governing malice in the jury instructions was harmless. The people and defendant focused their closing arguments on the question whether defendant had a malicious intent when he intended to participate in the armed robbery. The people argued in closing:
If by chance it is suggested well, maybe [defendant] was willing to go along with the robbery, and he knew that Smith had a gun. Maybe he didn’t believe that Smith would shoot to kill or to seriously injure.
Members of the jury, if that be his state of mind, he is still guilty of felony murder. Because he would know what Smith would do in the event resistance arose, and he was willing to be a party to it. He put in force along with Smith the chain of events that led to the death of Porter Thomas. [Emphasis added.]
In other words, the people claimed that defendant was guilty of depraved-heart murder because he knew that Smith would use force and defendant nevertheless agreed to assist him. This argument is consistent with Kelly, supra at 278-279, and concentrates on defendant’s state of mind in agreeing to commit the armed robbery. Similarly, defendant contested the same point:
We are not denying that he intended an attempted] robbery on that day. What we are saying is that, ladies and gentlemen, his actions, that is accompanying Mr. Smith does not amount to proof that he’s responsible, that he had the malice, that he had the intent that would lead you to be able to find him guilty of felony murder.
* * *
You are to deal with my client’s conduct, and I ask you to consider only what he did and only what he is responsible for. These are unfor[e]seen results on his part. He had no reason to believe that Mr. Smith was going to do what he did. [Emphasis added.]
Thus, the parties directed the jury’s attention to whether defendant knew that Smith would use the weapon to overcome any opposition by Thomas.
Yet, the trial court’s instructional errors allowed the jury to infer defendant’s malicious intent alone from his intent to participate in the underlying robbery regardless of the facts and circumstances of the rob bery. The jury was instructed to follow the law as the trial court gave it to the jury. Consequently, the jury may have followed the law as given by the trial court and not reached a conclusion about whether defendant agreed with Smith to overcome resistance with force. Instead, it may have decided, with the endorsement of the instructions, that he was guilty because he intended to commit the robbery. Regardless of whether we believe that defendant was guilty of this crime, this factual question was one for the jury. The entire case turned on whether he was malicious, and on this same point the jury was wrongly instructed. We would reverse and remand for a new trial.
m. conclusion
We would reverse the Court of Appeals decision to affirm defendant’s conviction. The trial court’s jury instructions permitted the jury to convict defendant of murder without determining that he had a malicious state of mind in committing a crime. The instructions violated Aaron. Consequently, the instructions failed to fairly present the issues to be tried by the jury and did not adequately protect defendant’s rights. We would remand for a new trial.
Mat,t.ett, C.J., and Brickley, J., concurred with Riley, J.
In particular, defense counsel argued:
[M]y client did in fact go in to Porter Thomas’ establishment on that date. He did in fact intend to rob that establishment.
I’m going to tell you this right straight up. My client did not inten[d] to kill anyone. He did not know that Patrick Smith intended to kill anyone. He did not act in a way which was careless and reckless which would justify a finding that in fact he participated in this murder of Porter Thomas.
* ** *
We are not denying that he intended an attempted] robbery on that day. What we are saying is that, ladies and gentlemen, his actions, that is accompanying Mr. Smith does not amount to proof that he’s responsible, that he had the malice, that he had the intent that would lead you to be able to find him guilty of felony murder.
Defense counsel argued that this instruction would confuse the jury:
By instructing the jury as you have indicated here that there is an inference from the underlying felony, you are in effect, you are saying all you have to do is show that he had a plan, was participating in an armed robbery, and that is enough to establish malice.
And I think that it is extremely confusing. It is unnecessary to do that. The standard certainly is set out. That is what the standard of the prosecution, what standard the prosecution must meet in these cases is clear from Aaron.
Your Honor, I think this does nothing but confuse them and in fact disregards the dictates of Aaron and other cases.
The other impaneled jury was unable to reach a verdict in Smith’s trial. He was retried and convicted of felony murder. The trial court sentenced him to mandatory life in prison. The Court of Appeals affirmed his conviction, and this Court has denied leave to appeal. 450 Mich 992 (1996).
451 Mich 898 (1996).
In 1994, the Legislature modified this statute, 1994 PA 267, effective October 1, 1994, which now provides in pertinent part:
(1) A person who commits any of the following is guilty of first degree murder and shall be punished by imprisonment for life:
* ** *
(b) Murder committed in the perpetration of, or attempt to perpetrate, arson, criminal sexual conduct in the first or third degree, child abuse in the first degree, a major controlled substance offense, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping.
In Aaron, supra at 728, this Court stated as follows:
Although the circumstances surrounding the commission of the felony may evidence a greater intent beyond the intent to commit the felony, or a wanton and willful act in disregard of the possible consequence of death or serious injury, the intent to commit the felony, of itself, does not connote a “man-endangering-state-of-mind." [Emphasis added.]
In Kelly, supra at 273, we stated:
We therefore [in Aaron] decided that the malice necessary for a felony-murder conviction could not be inferred merely from the intent to commit the underlying felony. [Emphasis in original.]
A jury may infer the malice necessary for murder from the intent to commit the underlying felony where that intent evidences a malicious state of mind, but may not do so by the fact alone that a defendant committed the underlying felony and a death resulted. In properly inferring malice from the intent to commit the underlying crime, the jury must consider whether that intent evidenced a malicious state of mind.
In Kelly, supra at 273, the trial court provided this instruction:
“If you find that the defendant consciously intended to commit, attempted to commit or assisted another in the crime of robbery, you may infer that he knowingly created a very high risk of death with knowledge that it probably would cause death.”
The trial judge in Kelly was the same trial judge as in this case, Detroit Recorder’s Court Judge Vera Massey Jones.
On appeal, the people ask this Court to overrule Aaron as an unwarranted judicial intrusion into a legislative function, arguing that the Court has changed the meaning of the term “murder” in MCL 750.316; MSA 28.548 even though the judiciary has no role in the development of the meaning of this statute other than to determine legislative intent. The Legislature provided no definition of murder, but relied on the common-law definition when it enacted the statute in 1931. We decline to examine this claim because it is outside the scope of our order granting leave. See 451 Mich 898 (1996). This issue was raised for the first time in the people’s brief after this Court granted leave to appeal.
In the information, the people charged defendant with felony murder, with larceny as the underlying crime. The trial court determined that it would give instructions on larceny and armed robbery as an underlying crime because armed robbery is also a land of larceny.
Judge Jones operated on the apparent misapprehension that this Court approved this instruction in Kelly. After defense counsel objected to the disputed instruction in the instant case, Judge Jones referred to Kelly by erroneously asserting that this Court approved the particular instruction. The colloquy transpired as follows:
The Court: Your objection [to the particular instruction] is noted for the record.
[Defense Counsel]: May I argue it?
The Court: You may argue, but that’s the case. That’s the one I was trying to remember. That is my case. It came down and got approval in that language.
But go ahead.
[Defense Counsel]: Kelly says. It doesn’t say really, although they affirmed in that case. They said that that particular instruction was inaccurate, but they said given . . . the totality of the instruction given in that case, it wasn’t error.
The Court: They didn’t say that.
[Defense Counsel]: Yes, they did, your Honor.
The Court: No. They didn’t say it was inaccurate.
[Defense Counsel]: The Appeals Court said that sentence in isolation may be inaccurate.
The Court: Maybe this sentence in isolation may be inaccurate, but it was not in isolation.
The dissent argues that the jury was not told that it could infer the malice necessary for a murder conviction from the intent to commit the underlying crime alone. See post at 415, 420. The dissent, however, ignores the plain meaning of the trial court’s instruction that the jury may infer malice if it “find[s] that the defendant consciously intended to commit, attempted to commit or assist others in the commission of the crime of robbery or larceny . . . .” The instruction identifies this one finding alone, i.e., that defendant committed the underlying crime, as adequate by itself, without any modification or qualification, to enable the jury to find malice. By this instruction, the jury need not evaluate the quality of this intent or make any other additional finding before concluding that defendant was guilty of malice.
The dissent mischaracterizes this opinion by contending that we wrongly inteipret this instruction as a requirement that the jury find malice from defendant’s intent to commit the underlying felony alone. Post at 412-413. Rather, the instruction empowers, but does not require, the jury to find malice from defendant’s intent to commit the underlying crime alone. The instruction does not place conditions on when the jury may exercise this power to infer malice. Consequently, the instruction runs afoul of Aaron by authorizing the jury to find malice without requiring it to determine whether defendant in fact acted with malice.
In reaching this conclusion, we do not wish to encourage trial courts to use these instructions. The trial court should aspire to give a completely accurate statement of the law in its instructions to the jury and should not be satisfied with instructions that are, as a whole, merely adequate. Hence, we would direct trial courts to refrain from using the erroneous instruction regarding malice even if the court follows this instruction with further instructions that clarify it.
Even if we considered the fact that this armed robbery was inherently dangerous to human life, this Court in Aaron, supra at 727, addressed this point by explaining that “[t]hose [crimes] which may be seen as inherently dangerous to human life when viewed in the abstract may not be so dangerous when viewed in light of the circumstances of a particular case.” Thus, defendant’s intent to commit this armed robbery under Aaron did not by itself denote that he had an intent to do so with malice.
The dissent argues that the trial court’s statement of the people’s theory of the case was consistent with Aaron. See Boyle, J., post at 414-418. The dissent ignores the point that the jury may have taken the trial court at its word and concluded that defendant acted with malice because of the fact alone that he intentionally participated in the armed robbery. This is inconsistent with the analysis from Aaron, supra at 728. See n 6. Of course, as noted by the dissent, the instructions would have been consistent with Aaron if the trial court had informed the jury that the people’s theory of the case was that defendant acted with malice because the facts and circumstances surrounding his intent to commit the armed robbery evidenced a malicious intent. See Boyle, J., post at 417 (defendant “may be found liable if he aided and abetted the principal and there is evidence that he shared the principal’s intent to kill or inflict great bodily harm, or if he aided and abetted the principal and there is evidence that he himself acted with wanton or wilful disregard of the natural tendency of his behavior”). The trial court did not so instruct the jury here.
MCR 2.516(A)(2) provides in full:
In addition to requests for instructions submitted under subrule (A)(1), after the close of the evidence each party shall submit in writing to the court a statement of the issues and may submit the party’s theory of the case as to each issue. The statement must be concise, be narrative in form, and set forth as issues only those disputed propositions of fact which are supported by the evidence. The theory may include those claims supported by the evidence or admitted.
MCR 2.516(B)(3) provides in pertinent part:
Before or after arguments or at both times, as the court elects, the court shall instruct the jury on the applicable law, the issues presented by the case, and, if a party requests as provided in sub-rule (A)(2), that party’s theory of the case. [Emphasis added.]
In Aaron, supra at 728-729, we held in part:
The facts and circumstances involved in the perpetration of a felony may evidence an intent to kill, an intent to cause great bodily harm, or a wanton and willful disregard of the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm; however, the conclusion must be left to the jury to infer from all the evidence.
In Kelly, supra at 278-279, we stated as follows:
[I]f the aider and abettor participates in a crime with knowledge of his principal’s intent to kill or to cause great bodily harm, he is acting with “wanton and willful disregard” sufficient to support a finding of malice under Aaron. | [
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Clark, J.
Plaintiff caused a writ of capias ad respondendum to be issued against Lewis Unrath and Walter H. Eames. The latter, arrested and held to bail, moved to quash the writ for the reason that the affidavit upon which the order to hold to bail was based was insufficient. The motion prevailed and plaintiff reviews on mandamus.
The rule, with which it is contended the affidavit does not comply, is stated in Sheridan v. Briggs, 53 Mich. 569.
“The principle deducible from these cases is that an affidavit which is used as the basis of a writ which will deprive a person of his liberty, must not only set forth the facts and circumstances in detail, and not conclusions or inferences from facts, but they must be facts within the personal knowledge of the deponent. * * *
“The affidavit upon which a person is held to bail must be of the same legal quality, as evidence, as would be required at the trial, to establish the facts set up or relied on for cause of arrest.”
The affidavit proper, made by plaintiff’s agent and reciting that he has personal knowledge of the facts and statements, adopts the declaration by reference, and in effect makes it a part of the affidavit. 3 Comp. Laws 1915, § 12416; Buchanan v. Wayne Circuit Judge, 233 Mich. 529. It appears that plaintiff purchased paper purporting to arise upon a time sale of an automobile by Unrath. to Eames, and that some installments of the price were later paid to it.
As ground for the writ and the order to hold to bail, it is stated that Unrath and Eames entered into a conspiracy to defraud plaintiff, that the sale was a sham, the paper purporting to evidence the sale and the obligation thereon a fraud, that the payments made were merely in furtherance of the scheme to defraud, that Unrath did not own the automobile, that Eames did not purchase it, and that plaintiff learned of the fraud after accepting the payments. The affidavit and declaration are made up, it seems, of conclusions or inferences from facts not disclosed. A witness might not make a case for plaintiff by testifying “there was a conspiracy,” “the sale was a sham,” “the paper a fraud,” and the like. Questions calling for such answers and the answers would be objectionable for the reason stated in the rule. 22 C. J. p. 485.
The affidavit ought to have set up the facts, if any were known, upon which the stated conclusions were made and from which the inferences were drawn. Gardiner v. Wayne Circuit Judge, 155 Mich. 414; Proctor v. Prout, 17 Mich. 478.
Writ denied, with costs to defendant.
North, Fellows, Wiest, McDonald, Bird, and Sharpe, JJ., concurred.
Chief Justice Flannigan took no part in this decision. | [
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Riley, J.
In People v Denio, we are asked to construe the conspiracy statute, MCL 750.157a; MSA 28.354(1), as it relates to the consecutive sentencing provision of MCL 333.7401(3); MSA 14.15(7401)(3). The conspiracy statute mandates that a person con victed of conspiracy “shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit . . . The consecutive sentencing provision of § 7401(3) mandates that prison terms for the enumerated drug offenses must run consecutively with sentences imposed for other felonies. The issue is whether the consecutive sentencing provision of § 7401(3) falls within the term “penalty” in the conspiracy statute. In People v Banks and People v Tucker, we are asked to determine whether consecutive sentences for an enumerated drug offense and for conspiracy to commit the enumerated drug offense, committed in the same criminal transaction, violates the protection against double jeopardy.
We hold that the Legislature intended the consecutive sentencing provision of § 7401(3) to fall within the term “penalty” in the conspiracy statute because § 7401(3), like the conspiracy statute, is directed at the sentencing court, the entity that imposes penalties. We further hold that consecutive sentences for an enumerated drug offense and for conspiracy to commit the enumerated drug offense do not violate double jeopardy, even when the offenses are committed in the same criminal transaction. We base this holding on our conclusion that the Legislature intended multiple punishments at a single trial for persons who commit a drug offense enumerated in § 7401(3) and conspiracy to commit that drug offense. Accordingly, we reverse the Court of Appeals decision in People v Denio and affirm the Court of Appeals decisions in People v Banks and People v Tucker.
FACTS AND PROCEEDINGS
PEOPLE v DENIO
On August 3, 1994, during trial, Kimber Denio pleaded guilty of conspiracy to deliver less than fifty grams of cocaine, MCL 750.157a; MSA 28.354(1), MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and conspiracy to deliver marijuana, MCL 750.157a; MSA 28.354(1), MCL 333.7401(2)(d); MSA 14.15(7401)(2)(d). On September 7, 1994, pursuant to the consecutive sentencing provision of § 7401(3), the trial court sentenced Denio to consecutive terms of three to twenty years in prison on the conspiracy to deliver cocaine conviction and two to four years in prison on the conspiracy to deliver marijuana conviction.
Denio appealed his sentences, arguing that the trial court erred in imposing consecutive sentences. The Court of Appeals agreed, remanding Demo’s case to the trial court directing it to sentence him to concurrent prison terms. The Court of Appeals reasoned that the consecutive sentencing provision of § 7401(3) did not authorize the trial court to sentence Denio to consecutive prison terms because his sentences were not imposed pursuant to a felony enumerated in § 7401(3), but were, instead, imposed pursuant to the conspiracy statute. On May 21, 1996, we granted the people’s application for leave to appeal.
PEOPLE v BANKS
On April 5, 1993, Gilbert Banks pleaded guilty of conspiracy to deliver less than fifty grams of cocaine, MCL 750.157a; MSA 28.354(1), and possession with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). On May 5, 1993, pursuant to the consecutive sentencing provision of § 7401(3), the trial court sentenced Banks to consecutive terms of 3V2 to 20 years in prison for each offense.
Banks appealed his sentences, arguing that the trial court erred in imposing consecutive sentences. The Court of Appeals disagreed, holding that § 7401(3) mandated consecutive sentences. On May 24, 1996, we granted Banks’ application for leave to appeal.
PEOPLE v TUCKER
On February 14, 1992, following a jury trial, Robert Lee Tucker was convicted of conspiracy to deliver less than fifty grams of cocaine, MCL 750.157a; MSA 28.354(1), and delivery of less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(740l)(2)(a)(iv). On March 17, 1992, pursuant to the consecutive sentencing provision of § 7401(3), the trial court sentenced Tucker to consecutive terms of two to twenty years in prison for each offense.
Tucker appealed his sentences, arguing that they violated the principle of proportionality. The Court of Appeals disagreed and affirmed the ' sentences imposed by the trial court. On May 24, 1996, we granted Tucker’s application for leave to appeal.
i
PEOPLE v DENIO
A
In Denio, we are asked to interpret the conspiracy statute and the consecutive sentencing provision of § 7401(3). Questions of statutory interpretation are questions of law, see St George Greek Orthodox Church of Southgate v Laupmanis Associates, PC, 204 Mich App 278, 282; 514 NW2d 516 (1994), which we review de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).
The purpose of statutory interpretation is to give effect to the intent of the Legislature. People v Morris, 450 Mich 316, 326; 537 NW2d 842 (1995). If a statute is clear, we enforce it as plainly written. Id. However, if a statute is susceptible to more than one interpretation, we must engage in judicial construction and interpret the statute. Id.; Piper v Pettibone Corp, 450 Mich 565, 571; 542 NW2d 269 (1995). Furthermore, a statute that is unambiguous on its face can be “ ‘rendered ambiguous by its interaction with and its relation to other statutes.’ ” People v Jahner, 433 Mich 490, 496; 446 NW2d 151 (1989), quoting 2A Sands, Sutherland Statutory Construction, § 46.04, pp 86-87.
In inteipreting a statute, words are to be given their common, generally accepted meaning. MCL 8.3a; MSA 2.212(1); Hawley v Snider, 346 Mich 181, 185; 77 NW2d 754 (1956). Furthermore, when terms are not expressly defined by a statute, a court may consult dictionary definitions. See In re Forfeiture of Bail Bond, 209 Mich App 540, 544; 531 NW2d 806. (1995).
The “rule of lenity” provides that courts should mitigate punishment when the punishment in a criminal statute is unclear. Jahner, supra at 499-500. This rule, however, does not apply when construing the consecutive sentencing provision of § 7401(3) because our Legislature mandated in MCL 333.1111(2); MSA 14.15(1 111)(2) that provisions of the Public Health Code, which include § 7401(3), are to be “liberally construed for the protection of the health, safety, and welfare of the people of this state.” Morris, supra at 326-327. Furthermore, the “rule of lenity” does not apply in this case, given the penal nature of § 7401(3) and the conspiracy statute. See Morris, supra at 327.
B
Turning to the case now before us, Denio argues that § 7401(3) did not authorize the trial court to impose consecutive sentences because he was not convicted of a drug offense enumerated in that section; rather, he was convicted of conspiracy to commit an enumerated drug offense. We are not persuaded.
Denio was convicted of conspiracy to deliver less than fifty grams of cocaine and conspiracy to deliver marijuana. The conspiracy statute provides that a person convicted of conspiracy
shall be punished by & penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be imposed. [MCL 750.157a(a); MSA 28.354(l)(a) (emphasis added).]
A person convicted of delivery of less than fifty grams of cocaine “shall be imprisoned for not less than 1 year nor more than 20 years, and may be fined not more than $25,000.00, or placed on probation for life.” At the time of Demo’s trial, a person convicted of delivery of marijuana could be punished “by imprisonment for not more than 2 years, or . . . fine[d] . . . [for] not more than $2,000.00, or both.” The trial court sentenced Denio to consecutive terms of imprisonment for his convictions pursuant to § 7401(3), which provides in pertinent part:
A term of imprisonment imposed pursuant to subsection (2)(a) or section 7403(2)(a)(i), 00, (in), or (iv) shall be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony.
The parties do not dispute that the conspiracy statute unambiguously mandates that a person convicted of conspiracy must be punished by the same “penalty” as if he were convicted of the substantive crime he conspired to commit. They also do not dispute that § 7401(3) unambiguously mandates that prison terms for the enumerated drug offenses must run consecutively with sentences imposed for other felonies. The parties differ, however, in their definition of the term “penalty” in the conspiracy statute. Essentially, Denio argues that the consecutive sentencing provision of § 7401(3) does not fall within the term “penalty”; the people argue it does. We believe both definitions are plausible, and therefore engage in statutory construction to interpret the conspiracy statute. See Morris, supra at 326; Piper, supra at 571.
This Court interpreted the term “penalty” in the conspiracy statute in Jahner, supra, where we addressed whether a person sentenced to life imprisonment for conspiracy to commit first-degree murder is eligible for parole consideration under MCL 791.234(4); MSA 28.2304(4). Section 234(4), the so-called “lifer law,” provides that those sentenced to life for first-degree murder or to a minimum term of imprisonment for a major controlled substance offense, are not eligible for parole consideration. We concluded that a person convicted of conspiracy to commit first-degree murder was eligible for parole consideration because the term “penalty” in the conspiracy statute does not include the parole considerations set forth in the “lifer law.” Id. at 502-503. We reasoned that the Legislature could not have intended parole considerations to fall within the term “penalty” in the conspiracy statute because the conspiracy statute is directed at the sentencing court, the entity that imposes penalties, and the “lifer law” is directed at the Parole Board, the independent body that reduces penalties imposed by trial courts on the basis of rehabilitation:
While the conspiracy statute and the “lifer law” both address in general terms the punishment of criminal activity and therefore should be read in pari materia, the two statutes address separate and distinct considerations. The conspiracy statute is directed to the trial court and requires that it impose a particular “penalty” for the offense. However, the statutory command is discharged at the time of sentencing. By contrast, the “lifer law” is not directed at the sentencing court, but rather governs the power and authority of the Parole Board to grant parole under certain circumstances. Given the autonomy granted to the Parole Board and the separate function which it serves, we do not believe that the term “penalty” as it is used in the conspiracy statute encompasses the parole considerations set forth in the “lifer law.” [Id. at 502.]
Unlike parole considerations directed to the Parole Board, the consecutive sentencing provision of § 7401(3), like the conspiracy statute, is directed at the sentencing courts. Accordingly, we hold that the consecutive sentencing provision of § 7401(3) constitutes a “penalty” as that term is used in the conspiracy statute. Thus, being a “penalty,” the trial court was required to impose Denio’s sentence for conspiracy to deliver less , than fifty grams of cocaine to run consecutively with his sentence for conspiracy to deliver marijuana.
We note that our holding is consistent with the legislative purpose of the consecutive sentencing provision of § 7401(3), which was to deter drug offenses:
The enhancement of punishment through consecutive sentencing is a legislative action taken for the ostensible purpose of deterring certain criminal behavior. People v Harden, 434 Mich 196, 201; 454 NW2d 371 (1990). With its ' focus on enhancement of the punishment for commission of certain controlled substance offenses, it is apparent that the aim of § 7401(3) is to deter commission of those offenses by mandating that sentences imposed for the drug crimes enumerated in the statute run consecutively to sentences imposed for other felonies. [Morris, supra at 327-328.] ,
Furthermore, the need for deterrence is not diminished when the crime at issue is conspiracy to commit the enumerated drug offense rather than the enu merated drug offense itself. In fact, the need for deterrence is arguably more dire given the number of people involved in the crime:
“[Collective criminal agreement — partnership in crime— presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality. Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked. Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.” [People v Carter, 415 Mich 558, 570; 330 NW2d 314 (1982), quoting Callanan v United States, 364 US 587, 593-594; 81 S Ct 321; 5 L Ed 2d 312 (1961).]
Finally, the common meaning of “penalty” supports our holding. The Random House Webster’s College Dictionary defines “penalty” as “a punishment imposed or incurred for a violation of law [or] rule . . . .” A sentencing court imposes punishment. By contrast, the Parole Board relaxes the punishment already imposed by the courts.
Accordingly, because the consecutive sentencing provision of § 7401(3) falls within the term “penalty” in the conspiracy statute, the trial court properly imposed Demo’s cocaine conspiracy sentence to run consecutively with his marijuana conspiracy sentence. Thus, we reverse the Court of Appeals decision that reversed the decision of the trial court.
n
PEOPLE v BANKS AND PEOPLE v TUCKER
A
Banks and Tucker initially argue that their respective sentencing judges erred in imposing consecutive sentences because conspiracy to commit an enumerated drug offense does not constitute “another felony” as used in § 7401(3), especially because they committed both the enumerated drug offense and the other felony in the same criminal transaction. We reject defendants’ arguments without further analysis because this Court in Morris, supra, held that “another felony” includes “any other felony violation for which a defendant is being sentenced,” id. at 328 (emphasis added), “regardless of whether the offenses were committed as part of the same transaction or in different and distinct transactions.” Id. at 338.
Defendants also argue that consecutive sentences for an enumerated drug offense and for conspiracy to commit the enumerated drug offense, committed in the same criminal transaction, violate the protection against double jeopardy. This alternative argument proffered by Banks and Tucker is an issue of first impression. It was left unresolved by Morris. We address that issue today, and, for the reasons that follow, find no double jeopardy violation.
B
The guarantee against double jeopardy protects against multiple prosecutions and multiple punishments for the “same offense.” At issue in the cases before us is whether a drug offense enumerated in § 7401(3) and conspiracy to commit that enumerated drug offense, when committed in the same criminal transaction, constitutes the “same offense” for double jeopardy purposes. The intent of the Legislature is the determining factor under the Double Jeopardy Clause of the United States and Michigan Constitutions. People v Robideau, 419 Mich 458, 485; 355 NW2d 592 (1984). Therefore, the issue, stated more precisely, is whether the Legislature intended multiple punishments at a single trial for persons who commit, in the same criminal transaction, a drug offense enumerated in § 7401(3) and conspiracy to commit that drug offense.
The United States Supreme Court has repeatedly held that the test enumerated in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932), is to be used to determine legislative intent in analyzing the protection afforded by the Double Jeopardy Clause of the United States Constitution:
For over half a century we have determined whether a' defendant has been punished twice for the “same offense” by applying the rule set forth in Blockburger v United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed 306 (1932). If “the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.” Ibid. In subsequent applications of the test, we have often concluded that two different statutes define the “same offense,” typically because one is a lesser included offense of the other. [Rutledge v United States, 517 US 292,_; 116 S Ct 1241; 134 L Ed 2d 419, 426 (1996).]
If the Blockburger test is satisfied, it is presumed that the Legislature did not intend to punish the defendant under both statutes. Whalen v United States, 445 US 684, 691-692; 100 S Ct 1432; 63 L Ed 2d 715 (1980). This presumption is rebutted, however, by a clear indication that the Legislature intended punishment under both statutes. Albernaz v United States, 450 US 333, 340; 101 S Ct 1137; 67 L Ed 2d 275 (1981); Mis souri v Hunter, 459 US 359, 368-369; 103 S Ct 673; 74 L Ed 2d 535 (1983).
This Court has rejected the Blockburger test in analyzing the Double Jeopardy Clause of the Michigan Constitution, and instead uses traditional means to determine the intent of the Legislature, such as the subject, language, and history of the statutes. Robideau, supra at 486-487. In Robideau, supra at 487-488, we provided some guidance in furtherance of this task:
Statutes prohibiting conduct that is violative of distinct social norms can generally be viewed as separate and amenable to permitting multiple punishments. A court must identify the type of harm the Legislature intended to prevent. Where two statutes prohibit violations of the same social norm, albeit in a somewhat different manner, as a general principle it can be concluded that the Legislature did not intend multiple punishments. For example, the crimes of larceny over $100, MCL 750.356; MSA 28.588, and larceny in a building, MCL 750.360; MSA 28.592, although having separate elements, are aimed at conduct too similar to conclude that multiple punishment was intended.
A further source of legislative intent can be found in the amount of punishment expressly authorized by the Legislature. Our criminal statutes often build upon one another. Where one statute incorporates most of the elements of a base statute and then increases the penalty as compared to the base statute, it is evidence that the Legislature did not intend punishment under both statutes. The Legislature has taken conduct from the base statute, decided that aggravating conduct deserves additional punishment, and imposed it accordingly, instead of imposing dual convictions.
We do not intend these principles to be an exclusive list. Whatever sources of legislative intent exist should be considered. If no conclusive evidence of legislative intent can be discerned, the rule of lenity requires the conclusion that separate punishments were not intended.[ ]
In analyzing the intent of the Legislature, it must be remembered that “the Legislature’s authority to define a single criminal ‘act’ or ‘offense’ is not diminished by the Double Jeopardy Clause.” People v Wakeford, 418 Mich 95, 108; 341 NW2d 68 (1983). The Legislature is free to determine what activity constitutes a criminal offense subject to criminal penalty. Id.; Robideau, supra at 485. The Double Jeopardy Clauses restrict the courts from imposing more punishment than that intended by the Legislature. Wakeford, supra at 108; Robideau, supra at 469. Thus, if the Legislature desires, it may specifically authorize penalties for what would otherwise be the “same offense.” People v Sturgis, 427 Mich 392, 403; 397 NW2d 783 (1986). “]C]umulative punishment of the same conduct under two different statutes in a single trial does not run afoul of the Double Jeopardy Clause in either the federal or state system.” Id.
c
Turning to the cases now before us, we conclude that the trial courts’ imposition of consecutive sentences for Banks’ and Tucker’s conspiracy and drug convictions did not run afoul of the Double Jeopardy Clause of the United States or Michigan Constitution. Under both federal and state analyses, it is clear that the Legislature intended to separately punish a defendant convicted both of conspiracy to commit a drug offense and of the substantive drug offense, even if he committed the offenses in the same criminal transaction.
With regard to the Double Jeopardy Clause of the United States Constitution, Banks’ and Tucker’s conspiracy and drug offenses do not constitute the “same offense” under the Blockburger test because conspiracy requires a combination or agreement and the drug offenses require possession of an illegal drug. Accordingly, defendants’ consecutive sentences, imposed pursuant to § 7401(3), do not violate the Due Process Clause of the United States Constitution.
The consecutive sentencing provision of § 7401(3) also does not violate the Double Jeopardy Clause of the Michigan Constitution. Focusing on the first source of legislative intent enumerated in Robideau, supra at 487-488, harm to society, the crimes of conspiracy and drug possession violate distinct social norms. The crime of conspiracy is a continuing offense; it “is presumed to continue until there is affirmative evidence of abandonment, withdrawal, disavowal, or defeat of the object of the conspiracy.” United States v Castro, 972 F2d 1107, 1112 (CA 9, 1992). Accordingly, the crime of conspiracy poses a greater threat to society than the substantive crime forming the object of the conspiracy because “each day’s acts bring a renewed threat of the substantive evil [the legislature] sought to prevent.” Toussie v United States, 397 US 112, 122; 90 S Ct 858; 25 L Ed 2d 156 (1970). As the New Jersey Supreme Court explained:
The [drag] conspiracy evidenced continuing and prolonged, rather than episodic, involvement in crime. The object of the conspiracy constituted a direct threat to society, as well as the indirect, albeit real, harm to persons who eventually would be mired in drags. [In re Goldberg, 105 NJ 278, 283; 520 A2d 1147 (1987).]
In contrast to the overreaching and perpetual harm to society caused by the crime of conspiracy, the specific aim of the Legislature in enacting § 7401 was to curb drug trafficking. As indicated in the legislative analysis:
“Some persons claim that the state has failed to stem drag traffic because the penalties for drag dealing are not severe enough, and law enforcement tools are inadequate. They contend that the potential for profit in drag dealing is so great that Michigan’s present penalties pose little or no deterrent to would-be violators, with lenient probation and parole policies weakening the threat of imprisonment still further.” [People v Fields, 448 Mich 58, 64; 528 NW2d 176 (1995), quoting House Legislative Analysis, HB 4190, Third Analysis, May 17, 1978.]
Another distinction between conspiracy and the substantive drug offense is that “the conspiracy statute punishes the planning of the offense” and the drug statute “punishes the actual commission of the crime.” Carter, supra at 586.
The second source of legislative intent enumerated in Robideau, supra at 487-488, the amount of punishment expressly authorized by the Legislature, is. not relevant to the cases now before us because the con spiracy statute does not incoiporate “most of the elements” of the drug statute. See id. at 487. We note, however, that the conspiracy statute provides for punishment equal to the substantive crime; it does not impose an hierarchical, harsher penalty based on the presence of aggravating factors.
Finally, the fact that Banks and Tucker committed the conspiracy and the substantive drug offense in the same criminal transaction is of no consequence. We have repeatedly held that conspiracy is a crime that is separate and distinct from the substantive crime that is its object. Carter, supra at 569; People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975); People v Chambers, 279 Mich 73; 271 NW 556 (1937). Furthermore, the crime of conspiracy does not merge into the offense committed in furtherance of the conspiracy. MCL 768.4; MSA 28.1027 (abolishing the merger doctrine); People v Causley, 299 Mich 340; 300 NW 111 (1941).
Therefore, we hold, on the basis of the intent of the Legislature, that it does not violate the Double Jeopardy Clause of either the United States or Michigan Constitution to sentence a defendant to consecutive prison terms for conviction of a drug offense enumerated in § 7401(3) and conspiracy to commit that offense, even if committed in the same criminal transaction. Accordingly, the Court of Appeals properly affirmed the trial courts’ imposition of consecutive sentences.
in
For the reasons stated above, we reverse the Court of Appeals decision in People v Denio holding that the trial court was without authority to impose consecutive sentences pursuant to § 7401(3). Consecutive sentences were proper. Furthermore, we affirm the Court of Appeals decisions in People v Banks and People v Tucker, Contrary to defendants’ arguments, their consecutive sentences, imposed pursuant to § 7401(3), did not violate the Double Jeopardy Clause of either the United States or Michigan Constitution.
Mallett, C.J., and Brickley, Boyle, and Weaver, JJ., concurred with Riley, J.
Section 157a provides:
Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein:
(a) except as provided in paragraphs (b), (c) and (d) if commission of the offense prohibited by law is punishable by imprisonment for 1 year or more, the person convicted under this section shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be imposed.
(b) Any person convicted of conspiring to violate any provision of this act relative to illegal gambling or wagering or any other acts or ordinances relative to illegal gambling or wagering shall be punished by imprisonment in the state prison for not more than 5 years or by a fine of not more than $10,000.00, or both such fine and imprisonment.
(c) If commission of the offense prohibited by law is punishable by imprisonment for less than 1 year, except as provided in paragraph (b), the person convicted under this section shall be imprisoned for not more than 1 year nor fined more than $1,000.00, or both such fine and imprisonment.
(d) Any person convicted of conspiring to commit a legal act in an illegal manner shall be punished by imprisonment in the state prison for not more than 5 years or by a fine of not more than $10,000.00, or both such fine and imprisonment in the discretion of the court.
Section 7401(3) provides:
A term of imprisonment imposed pursuant to subsection (2) (a) or section 7403(2)(a)(i), (ii), (iii), or (iv) shall be imposed to run consecutively with any term of imprisonment imposed for the commission of another felony. An individual subject to a mandatory term of imprisonment under subsection (2) (a) or section 7403(2)(a)(i), (ii), (iii), or (iv) shall not be eligible for probation, suspension of that sentence, or parole during that mandatory term, except and only to the extent that those provisions permit probation for life, and shall not receive a reduction in that mandatory term of imprisonment by disciplinary credits or any other type of sentence credit reduction.
The people agreed to cancel an arrest warrant against Denio for possession with intent to deliver cocaine and possession of LSD in exchange for his plea agreement.
214 Mich App 647; 543 NW2d 66 (1995).
Id. at 649.
451 Mich 897.
The people agreed to dismiss the supplemental warrant against Banks for habitual offender, fourth offense.
Unpublished opinion per curiam, issued October 20, 1994 (Docket No. 164750).
451 Mich 899. Leave was limited to whether
1) the Legislature intended to require consecutive sentencing for a substantive drug law conviction and a conviction of conspiracy to commit that same drug law offense, where the two convictions arise from a single transaction, and (2) defendant’s pleas of guilty constitute a waiver of this argument.
Unpublished opinion per curiam, issued April 10, 1995 (Docket No. 151725).
451 Mich 899. Leave was limited to
whether the Legislature intended to require consecutive sentencing for a substantive drug law conviction and a conviction of conspiracy to commit that same drug law offense, where the two convictions arise from a single transaction.
“The rule of lenity properly applies only in the circumstances of an ambiguity, or in the absence of any firm indication of legislative intent.” People v Wakeford, 418 Mich 95, 113-114; 341 NW2d 68 (1983).
MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv).
MCL 333.7401(2)(d); MSA 14.15(7401)(2)(d). Subsection 7401(2)(d), which was amended by 1994 PA 221 and became effective on June 1, 1994, provides:
Marihuana or a mixture containing marihuana, is guilty of a felony, punishable as follows:
(i) If the amount is 45 kilograms or more, or 200 plants or more, by imprisonment for not more than 15 years or a fine of not more than $10,000,000.00, or both.
(ii) If the amount is 5 kilograms or more but less than 45 kilograms, or 20 plants or more but fewer than 200 plants, by imprisonment for not more than 7 years or a fine of not more than $500,000.00, or both.
(in) If the amount is less than 5 kilograms or fewer than 20 plants, by imprisonment for not more than 4 years or a fine of not more than $20,000.00, or both.
Our issue in the present cases is one of statutory construction. No challenge has been raised regarding the constitutional validity of § 7401(3) on its face or as applied. [Morris, supra at 324.]
In Banks, we asked the parties to address the issue whether Banks’ pleas of guilty waived his right to challenge the trial court’s imposition of consecutive sentences pursuant to § 7401(3). Banks’ consecutive sentencing argument is based on double jeopardy implications. This Court in Peo ple v New, 427 Mich 482, 491; 398 NW2d 358 (1986), relying on federal precedent, concluded that a defendant pleading guilty could raise on appeal double jeopardy claims, unless his claim “relates solely to the capacity of the state to prove defendant’s factual guilt . . . .’’In United States v Broce, 488 US 563, 575-576; 109 S Ct 757; 102 L Ed 2d 927 (1989), the United States Supreme Court held that a guilty plea waives a defendant’s double jeopardy claim if the court must rely on evidence outside the guilty plea record to determine the merits of his claim. Accordingly, Banks’ argument that his sentences violate the Double Jeopardy Clause of the Michigan Constitution on the basis of “factual double jeopardy,” see Carter, supra at 583-584, is waived. However, the remainder of Banks’ double jeopardy arguments are not waived because analysis of evidence outside the guilty plea record is not required.
The Double Jeopardy Clause of the United States Constitution provides: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .’’US Const, Am V. This guarantee has been made applicable to the states through the Fourteenth Amendment. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). Similarly, the Double Jeopardy Clause of the Michigan Constitution provides: “[n]o person shall be subject for the same offense to be twice put in jeopardy.” Const 1963, art 1, § 15.
Our analysis today is limited to multiple punishments at a single trial. We do not address the issue concerning multiple punishments in separate trials, which implicates the double jeopardy protection against successive prosecutions.
As stated in part I, the rule of lenity does not apply in this case, given the Legislature’s mandate that the Public Health Code is to be “liberally construed for the protection of the health, safety, and welfare of the people of this state.” Morris, supra at 326-327.
See also United States v Morales, 11 F3d 915, 921 (CA 9, 1993) (“The other feature displayed by continuing offenses is that the harm done to society through their commission necessarily continues on for as long as the crime is ongoing”); Carter, supra at 570 (“[T]he danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise”).
We acknowledge that the conspiracy statute gives the sentencing judge discretion to impose an additional $10,000 penalty.
Defendants argue that prosecutors will add a conspiracy charge to the substantive drug charge, irrespective of whether there is evidence to substantiate the conspiracy charge, whenever a group of people are involved in the drug activity. We recognize this potential for abuse. However, we believe that the procedural safeguards in place sufficiently guard against such concern. Specifically, a prosecutor cannot file an information for a felony until an examining magistrate at a preliminary examination has determined that probable cause exists that the defendant committed the charged crimes. MCL 766.13; MSA 28.931 (preliminary examination); MCL 767.42; MSA 28.982 (preliminary examination condition precedent to filing information); MCR 6.110(F) . Pfirther, if the magistrate finds probable cause exists, the defendant can seek review of that decision in the circuit court. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 119-120; 215 NW2d 145 (1974). With these safeguards noted, we bring this potential for abuse to the attention of the magistrates and remind them of the important role they play in safeguarding the rights of both the defendant and the people of the State of Michigan. The reviewing magistrate should carefully examine the conspiracy charge to ensure that sufficient evidence exists for each of the elements of that separate crime. | [
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Flannigan, C. J.
This is an appeal from Macomb county. The controversy involves the ownership of a strip of land 20 feet wide and 150 feet long shown on the original plat of the' village of Romeo as an alley running north and south between lots 8 and 4 on the west and 5 and 6 on the east. It is conceded by all parties the title to the alley strip and the four lots was in one Flora M. Ford on May 10, 1920. On that date she conveyed to defendants by warranty deed:
“All those certain pieces or parcels of land situate and being in the village of Romeo, county of Macomb a.nd State of Michigan, and described as follows, to-wit: Lots three (3) and four (4) in block two (2) and range one (1) east of Main street, and north of St. Clair street, according to a certain plat of said village as recorded in the register of deeds’ office for said county.”
On April 17, 1922, she conveyed the alley strip to plaintiff by warranty deed. When she purchased, plaintiff had both actual and constructive notice of the conveyance to defendants. The alley was never accepted by the village or used as an alley by any one. With the four lots described it was inclosed by a fence and formed a part of the homestead occupied by Mrs. Ford and by those in her chain of title for upward of 70 years. Such rights in the alley, if any, as remained in the proprietor of the plat through the failure of the village to accept his offer of dedication, were acquired by those in Mrs. Ford’s chain of title by adverse possession. Defendants claimed ownership of the entire alley under a memorandum of purchase signed by Mrs. Ford about two years prior to the execution of the deed to them. The description in the memorandum was by metes and bounds and was inclusive of the alley strip. The question of ownership was raised by bill filed by plaintiff and cross-bill filed by defendants. The result was a decree giving defendants the westerly half of the strip. From the decree plaintiff appealed.
The claim of ownership by defendants of the entire alley strip needs no discussion. Recognition of that claim was refused by the court below and from its decree defendants have not appealed. Moreover the record is quite persuasive the claim is without merit in fact or law.
The controlling question is whether the deed to defendants included the west half of the alley. It is a rule of universal recognition that a conveyance of land bounded upon an accepted and opened public highway, street, or alley will pass to the grantee and his assigns the fee to the center of the highway, street, or alley provided the grantor owns to the center and there are no words in the deed showing a contrary intention; and, further, that when a conveyance refers to a map or plat, recorded or not recorded, as a plat, which represents lots as bounded by a street or alley and describes the lots conveyed by their numbers, such description is equivalent to. express language in the deed giving the street or alley- as a boundary. Scudder v. City of Detroit, 117 Mich. 77; Snoddy v. Bolen, 122 Mo. 479 (24 S. W. 142, 25 S. W. 932, 24 L. R. A. 507) ; 2 A. L. R. 6, note; 9 C. J. p. 195. The reasons for the rule are concisely stated in 9 C. J. p. 197. Vide, also, 2 A. L. R. 11. But as to whether such a deed carries to the center of the street or alley or only to the side line of the lot if the street or alley was not accepted or opened when the conveyance was made, judicial opinion is not quite unanimous. This court said in Plumer v. Johnston, 63 Mich. 165.
. “The doctrine is well established that the grantee of a lot bounded upon a street or other highway takes to the center of such street, subject only to the public easement, unless something appears upon the plat, or in the terms of the conveyance, excluding the title from passing under a boundary so described. But this doctrine is limited, and is applied to actual highways, and not to mere paper highways.”
The “actual” highway limitation approved in the Plumer Case is not in harmony with the great weight of authority. Our research has been fruitful in discovering but two cases giving it unqualified support. They are Hopkinson v. McKnight, 31 N. J. Law, 422, and Southerland v. Jackson, 30 Me. 462 (50 Am. Dec. 633). Among the cases holding the opposite doctrine are Paine v. Storage Co., 71 Fed. 626, 19 C. C. A. 99; Harrison v. Augusta Factory, 73 Ga. 447; Johnson v. Arnold, 91 Ga. 659 (18 S. E. 370) ; Hamilton v. Railroad Co., 124 Ill. 235 (15 N. E. 854); Stark v. Coffin, 105 Mass. 328; Manchester v. Hodge, 74 N. H. 468 (69 Atl. 527); Miner v. New York, 37 N. Y. Super. Ct. 171; Bissell v. Railroad Co., 23 N. Y. 61; Clark v. City of Providence, 10 R. I. 437; Pettibone v. Hamilton, 40 Wis. 402; Jarstadt v. Morgan, 48 Wis. 245 (4 N. W. 27) ; Andrews v. Youmans, 78 Wis. 56 (47 N. W. 304).
Section 3355, 1 Comp. Laws 1915, provides that upon vacation of a street or alley the same shall be attached to the lot or ground included in the plat and bordering on such street or alley and' in cases where the land on either side is owned by different people that the title to the vacated street or alley shall vest in each such owners to the center of the street or alley. The vacation statute which makes no distinction between streets and alleys, opened or unopened, reveals legislative recognition of the propriety and justice of the rule that gives the owner of a lot bordering on a street or alley, opened or unopened, title to the center.
To the extent it ingrafted on the general rule the '‘actual” highway limitation, we are of opinion the Plumer Case was wrongly decided. It is. not in harmony with legislative thought and action at home nor with-the clear weight of judicial opinion elsewhere. Neither is it founded on any good reason advanced or discoverable. It concedes the lot owner a way to and from his premises but, unless and until the dedication is accepted, it denies him the right of making any further or other use of the soil of the street on or beneath the surface. There is no more reason to presume the intention in the grantor to withhold the fee of an unopened street after conveying all his right and title to the adjoining lands than there would be if the street was opened. It is quite impossible to infer a different intention in the one case from that which the law has settled shall be inferred in the other.
We hold the correct rule to be that a conveyance of land bounded on a highway, street, or alley carries with it the fee to the center thereof, subject to the easement of public way, provided the grantor at the time of conveyance owned to the center and there are no-words in the deed showing a contrary intent, whether the dedication of the highway, street, or alley has been accepted or not, and whether it has been opened or not. In so far as it may not accord with the rule here announced, Plumer v. Johnston, supra, is overruled.
The decree of the court below will be affirmed, but without costs to either party.
Fellows, Wiest, Clark, McDonald, Bird, and Sharpe, JJ., concurred.
The late Justice SNOW took no part in this decision. | [
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Cavanagh, J.
The issue presented in this case is whether there was sufficient evidence to support defendant’s conviction for armed robbery. The specific legal question, however, that we are required to address yet again is: What is the nature and quantum of evidence that satisfies the “armed” component of armed robbery?
i
The relevant testimony at trial was provided by Jennifer Lusk, who was working at the Dairy Mart store that defendant and another man, Hubbard Hudson, were convicted of robbing. On March 22, 1993, at approximately 1 A.M., defendant and Hudson entered the Dairy Mart store, Hudson looked at the cash register, and then both men left. Approximately fifteen minutes later, they returned and again left without doing anything. After another fifteen-minute interval, the two men entered the store yet again, but this time defendant approached the front of the counter and Hudson positioned himself at the side of the counter. Lusk testified that Hudson had his left hand in the “slash pocket” of his jacket and said to her, “You are going to be robbed.” When asked what Hudson did with his hand while it was in his pocket, Lusk said that he “Just kind of moved it around a little bit.” Lusk never saw a weapon or any other article being fashioned as a weapon, but she followed Hudson’s orders that she dump the contents of the cash register onto the counter. Defendant scooped up the money off the counter while Hudson went behind the counter and, with the same hand he had had in his pocket, took some lottery tickets, but Lusk still saw no weapon or any other article. Both men then left the store.
After trial, the jury found defendant guilty of aiding and abetting an armed robbery. In a split decision, the Court of Appeals affirmed defendant’s conviction. We granted leave, 451 Mich 917 (1996), and now reverse.
n
In People v Saenz, 411 Mich 454, 458; 307 NW2d 675 (1981), this Court unanimously reversed a conviction for armed robbeiy, summarizing the relevant evidence as follows: “[T]he victim’s testimony . . . was that he thought the defendant had a weapon of some kind; he saw no article which resembled a weapon; he saw no bulge under defendant’s coat nor his hand shaped to look like a weapon.” This Court noted the prosecutor’s argument “that the victim believed the defendant had a weapon and that this was a reasonable belief under the circumstances,” but dismissed this argument, noting that it “addresses only one consideration and ignores the requirement that the belief must be induced by the use or fashion of ‘any article’ with which the assailant is armed.” Id. at 457-458. This Court then noted that there was no testimony that the defendant “used his hand and a covering so as to resemble a gun” and, accordingly, concluded that the victim’s testimony “cannot be the basis for an armed robbery conviction.” Id. at 458. The underlying principle is that a subjective belief that a weapon exists is insufficient to satisfy the armed robbery statute.
In People v Parker, 417 Mich 556, 565; 339 NW2d 455 (1983), this Court further explicated the requirements for an armed robbery conviction:
It is not enough that the person assaulted is put in fear; a person who is subjected to an unarmed robbery may be put in fear.
To constitute armed robbery the robber must be armed with an article which is in fact a dangerous weapon — a gun, knife, bludgeon, etc., or some article harmless in itself, but used or fashioned in a manner to induce the reasonable belief that the article is a dangerous weapon.
Words or threats alone can never be dangerous weapons because the statute is concerned with weapons, not words.
To convict, the factfinder must make the determination that at the time of the robbery the assailant was in fact armed with something and not just that the victim thought he was armed. The determination must be based on the evidence.
Words or threats may be evidence of the fact of being armed and under some circumstances they alone might support a verdict of guilty. When no other evidence of the presence of the weapon is adduced, however, it is imperative that the instructions stress the focus of the jury on the presence of the weapon or article and not the fear or belief of the victim.
In People v Jolly, 442 Mich 458; 502 NW2d 177 (1993), the victim was working in a restaurant around midnight when “a man [defendant Jolly] and a woman entered the restaurant. After ordering some food from [the victim], the woman handed him a paper bag and told him her companion had a gun and would shoot him unless he filled the bag with money. [The victim] never saw a gun, and the male robber’s hands were in view at all times; however, he did as the woman asked.” Id. at 461.
At trial, the prosecutor asked the victim what, other than the woman’s assertion, made him think that the male robber had a gun. The following exchange then took place:
[The Victim]: [S]he said, “He has a gun.”
[Prosecutor]: Okay. Was there anything else that made you believe or think about a gun, in your mind?
A. Not really. Normally when, you know, somebody says they have a gun, I just, you know, I just thought that he had a gun.
Q. Okay. Was there anything that made you think that, though, any more?
* * *
A. Well, there was like when he came in he was standing right in front of me. I saw a bulge in his mid, mid area of his — he had a vest on, I saw a bulge. I didn’t know if it was a gun or not. She said that he had a gun and I assumed because there was a bulge it could have been a buckle or anything, and I didn’t know. So I just went by what she said and just did what she asked. [Id. at 462-463.]
In Jolly, the precise legal question presented was whether there was sufficient evidence to submit the issue of armed robbery to the jury. The Jolly majority quoted the excerpt from Parker, and drew the following conclusions:
A fair reading of Parker does not require submission of a dangerous weapon or other article into evidence, nor does it require that a witness see the malee or model number of a gun or knife before the issue can be submitted to the jury. What cannot reach the jury is proof that only focuses on the subjective belief of the victim. In other words, there must be some objective evidence of the existence of a weapon or article before a jury will be permitted to assess the merits of an armed robbery charge. For example, an object pointing out from under a coat, together with statements threatening a victim with being shot, clearly satisfies the statutory definition of armed robbery. In such a case, there is evidence of actual possession of a weapon or article and the testimony regarding statements that, if believed, make clear an intent to convince the victim of the existence of such a weapon or article. The facts in Parker indicate that the victim never saw anything that could have been the knife with which she was being threatened. [442 Mich 468-469 (emphasis added).]
It must be kept in mind that the last sentence applies with equal force to the case at bar. And it must be further emphasized in the instant case that there was no verbal threat relating to a weapon of any kind.
In Jolly, the majority held that the woman robber’s threat that the male robber would shoot the victim if he did not comply and the victim’s observation of a bulge under the male robber’s vest “located in a place where a handgun could conceivably be concealed,” id. at 470, was sufficient circumstantial evidence to submit the armed robbery charge to the jury. We believe that this interpretation of the “evidence” constitutes the absolute minimum level of evidence sufficient to support an armed robbery conviction, and we hold that the evidence in the case at bar is well below this minimum level.
m
In terms of evidentiary sufficiency, this case is virtually identical to Saenz. The victim testified that she thought defendant’s accomplice had a weapon of some kind, but that she never saw any article that resembled the weapon, or a bulge under the accomplice’s coat that conceivably could have been a weapon, or his hand shaped to look like a weapon. Furthermore, the victim did not testify that either defendant or his accomplice threatened that the victim would be shot or stabbed with any alleged weapon. The victim’s testimony cannot be the basis for an armed robbery conviction.
On direct examination, the prosecutor elicited the following responses:
Q. What happens this time? What occurs?
A. The heavier-set one walks to the front of the counter, and the skinnier one comes to the side of the counter, and he had his hand in his — his left hand in his pocket, and he said, “You are going to be robbed.”
* * *
Q. And so the skinnier one walks in and said — he had his hand in his pocket?
A. He had his hand in his pocket like that, like straight in like that, I guess.
Q. Like this (indicating)?
A. But not up so high.
Q. Like that (indicating)?
A. Yeah.
Q. Did you ever see a weapon at any time?
A. No.
Q. What significance did that hand in the pocket have to you when he said you were going to be robbed?
A. Because he never took his hand out of that pocket the whole time I was getting the cash out.
Q. You didn’t see a weapon, though?
A. No.
Q. But he said you were going to be robbed?
A. (Nodding head.)
Q. What happened then?
A. He told me to open the drawer, and it took me a few minutes to get the sequence to get the drawer to come out. And the drawer opened, and it came out, and he told me to grab — to get the drawer and set it up on the counter, the skinnier one.
Q. Who told you you were going to be robbed?
A. The skinny one.
Q. Who told you to open the drawer?
A. The skinny one.
Q. And who told you to take the drawer out?
A. The skinny one.
Q. What happened then? What occurred then?
A. Then he was scooping the money up, and I kind of took a step back to get away from the register, because I didn’t know what he was going to do, and the next thing I know is the skinnier one opened the side door and came back, and then, only then, his hand came out of that pocket, because then he started grabbing out the lottery tickets.
Q. Did he have a weapon in his hand when it came out?
A. No, didn’t see one.
On cross-examination, the following exchange took place:
Q. When Mr. Banks was in this — well, let me withdraw that question and go back a little bit.
The third time these people come in, it was the tall, skinny one you said who had his hand in his pocket?
A. Correct.
Q. And that was in a pocket of a coat or jacket?
A. Yeah.
Q. And could you describe for the jury what kind of pockets were in this coat? In other words, were they pockets or were they more like a coat-type pocket that I have on my suit coat?
A. They were slashed pockets like you get on a flannel jacket, like a quilted flannel jacket with the pockets that go inside that farmers wear.
Q. So kind of hand-warmer pockets?
A. Yeah.
Q. Now, when did you first become aware of this person having his hand in his pocket?
A. When he walked up beside me. He was right — he was right next to me. I couldn’t miss his hand in his pocket.
Q. All right. And the prior two occasions when he came in the store, did he ever have his hand in his pocket that you remember?
A. No. He didn’t have his hands in his pocket.
Q. So he came up beside you, which would have been where, alongside where the door is here?
A. Yeah.
Q. Okay. And Mr. Banks would have been over here in front of the counter, right?
A. Mr. Banks was in front of me.
He H: Hi
Q. And it was — we later determined that it was — Mr. Hudson is the tall, skinny person we are talking about, right?
A. Okay. Right.
Q. And it was Mr. Hudson who was standing on the side with his hand in his pocket?
A. Side, left hand.
Q. What did he do with his hand in his pocket?
A. He said, “You are going to be robbed.”
Q. All right. But did he do anything with his hand or with his jacket?
A. Just kind of moved it around a little bit. That’s all.
Q. Well, maybe we can make this clear for the jury. When Mr. Bloemers was asking questions, he was going like this (indicating).
A. And I told him lower, not so high. Anybody who walks in with a gun is not going to raise it at you. It’s lower.
Q. Do you recall, was this a jacket where it buttoned or zipped or somehow fastened across the front?
A ■ No.' With the slashed pocket, all you have got to do is put your hand in it. If there is a weapon in it, you can’t see it.
Q. Other than that, did he do anything, any motion or activity with his hand in his pocket?
A. Just kept moving whatever he had in his pocket around. I didn’t ask. I wasn’t about to ask.
Q. I understand that. But, for all you know, there was nothing in there but his hand?
A. Okay, yeah.
Q. Did Mr. Banks say anything?
A. No.
Q. Did he threaten you in any way?
A. No.
Q. Did he demand anything of you in any way?
A. No.
Q. I just have one more thing to take up with you, Ms. Lusk. Again, I am referring back to the transcript on the preliminary examination that was held in this matter, and I am on page 6. Mr. Bloemers was asking you some questions at that time, and I believe he was talking about Mr. Hudson.
And in the middle of the page, Mr. Bloemers, he asks, “Where were his hands, if you recall?” Your answer, “He had his hand — he had his left hand in his pocket.” Is that accurate? Do you remember that?
Do you remember that testimony?
A. Yeah, the down here part?
Q. Yes.
A. The skinnier one kept his left hand in his pocket.
Q. Right. Now, let me go over it in just a little more detail so we get it right. You answered, “He had his left hand in his pocket.” And Mr. Bloemers said, “Okay. And what was he doing with that left hand in his pocket? Was he just ...” trailed off, and then you answered, “Just — just kept it there.” “Okay. Could you see whether there was anything inside of that pocket?” Your answer was, “No.” “Okay. Did he do any type of motions with that or non-motions with that, or did it — was it still, or just like this, or how?” I assume he was making some kind of gesture.
A. He just left his hand down.
Q. And then your answer was, “Just kept it in there”?
A. He just kept it in there.
Q. So basically Mr. Hudson, throughout this episode, at least up until the time that he grabbed the lottery tickets, merely kept his left hand in his pocket?
A In his pocket.
Q. And he didn’t really do anything else with it other than just placing it there, correct?
A. Correct.
Q. When you were aware of his hand in his pocket, that drew your attention to Mr. Hudson, didn’t it?
A. Yes.
Q. And so you observed Mr. Hudson and continued to watch him?
A. Yes.
On redirect examination, the victim testified as follows:
Q. You also went further in that preliminary examination and answered some questions to the Court. Do you recall that, at the conclusion of it the Judge asked you some questions?
A. Yes.
Q. About the hand being in the pocket, is that correct?
A. Yes.
* * :|:
Q. Do you recall what you told the Court about the hand in the pocket?
A. Yeah.
Q. What did that mean to you at the time when the Court asked you?
A. That he might have had a gun.
Q. You thought he was going to kill you, right?
A. Yes.
Q. Do you still feel that way from what you saw that day and the actions that he made?
A. Yes.
Q. You never did see the gun, though?
A. No.
The victim did not see any weapon, nor did she see any article fashioned as a weapon. It was not threatened that she would be shot if she did not comply with the robbers’ demands. There was no objec tive evidence that defendant’s accomplice was “armed with a dangerous weapon, or any article used or fashioned in a manner to lead the [victim] ... to reasonably believe it to be a dangerous weapon . . . .” Accordingly, the evidence adduced at trial is legally insufficient to support an armed robbery conviction.
IV
We reverse the judgment of the Court of Appeals and remand to the trial court for resentencing on a conviction for unarmed robbery.
Mallett, C.J., and Brickley and Kelly, JJ., concurred with Cavanagh, J.
MCL 750.529; MSA 28.797. This statutory section provides, in relevant part:
Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years.
The defendant in the instant case was actually convicted of aiding and abetting an armed robbery.
Relative to the charge of armed robbery, the Parker Court considered the propriety of the jury instructions in that case, which were found to be “patently in error.” Id. at 566. The jury instructions are not at issue in the case at bar. | [
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North, J.
The defendants in this case executed and delivered to the plaintiff the following note:
“Bay City, Mich., March 6, 1925.
“$1,050.00.
“For value received, I promise to pay to the order of John Carroll, ten hundred and fifty dollars in weekly instalments of............................ and any further sums that may hereafter be due said John Carroll on open account from me, at the First 'National Bank, Bay City, Michigan, beginning March 6, 1925, till all of said principal sum and sums due on open account as aforesaid shall have been paid in full, with interest on all unpaid sums hereon and such open account at the rate of six per cent. (6%) per annum from date on said principal sum and from due date on items of open account, payable quarterly. The whole amount remaining unpaid to become due and payable upon default. Above secured by real estate mortgage given under date of March 6, 1925.
“Leo Chauret,
“Mrs. Julia Chauret.”
On the same date the defendants also executed and delivered a real estate mortgage
“to secure the repayment of one thousand fifty and 00-100 dollars, with interest thereon at the rate of 6% per annum, which mortgagors agree to pay to said mortgagees according to the terms of one promissory note of even date herewith, executed by said mortgagors to said mortgagees, and to which this mortgage is collateral security.”
The defendants are husband and wife; the land described in the mortgage was their homestead, and title thereto was held by them as tenants by the entirety. Prior to the date of the note and mortgage the plaintiff had sold merchandise to the defendant Leo Chauret, charging the same to his personal account, and in consequence thereof Chauret was indebted to the plaintiff in the sum of $1,050, for which the note and mortgage were given. After the execution and delivery of the note and mortgage, plaintiff continued his sales of merchandise; and at the time of filing the bill herein he claimed there was owing to him from Leo Chauret on this open account $1,088.50, and interest thereon. He thereupon instituted this suit for the purpose of foreclosing his mortgage. He asked for a decree in the amount of $2,158.01, which is made up of an unpaid balance of $1,021.57 on the original obligation, and $1,136.44 on the open account. The defendants admitted their liability for the $1,021.57, and tendered payment of the same after the hearing in the lower court and before the decree was entered. The défendant Leo Chauret also admitted that he was liable individually to the plaintiff at the time of bringing this suit for whatever balance had accrued on the open account. The defendant Julia Chauret denied liability for any portion of this open account on the ground of her disability as a married woman, and maintained that the mortgage could not be enforced as to this portion of the debt. After the defendants had tendered to the plaintiff payment of $1,021.57, and evidently because of such tender having been made, a decree was entered in the circuit dismissing the bill of complaint. The plaintiff has appealed, and the case is for hearing de novo before this court.
Appellant states in his brief:
“The sole question involved is whether the amount claimed by plaintiff, over and above the original $1,050 with interest thereon and taxes, can be enforced against the mortgage security.”
An examination of the record discloses the mortgage under consideration does not follow the terms of the note as to the extent of the obligation; but instead recites it is given “to secure the repayment of one thousand and fifty and 00-100 dollars, with interest thereon at the rate of 6% per annum, which mortgagors agree to pay to said mortgagees according to the terms of one promissory note of even date herewith * * * to which this mortgage is collateral security.” This mortgage lien by its express terms is confined to the repayment of the $1,050 and interest thereon, and the repayment of any taxes or insurance paid by the mortgagees. There is not a word in the mortgage about its securing further sums which might accrue on Leo Chauret’s open account with plaintiff. There can be no doubt that incident to a note for $2,000, a mortgage lien may be given on the real property of the mortgagor to secure the payment of $1,000 or any other portion of the mortgagor’s debt; and the extent of the lien is to be determined by the provisions in the mortgage. As indicated above, this mortgage specifically recites it is “to secure the repayment of $1,050 with interest” according to the terms of a note to which the mortgage is collateral security. The reference to the amount of $1,050 is clearly a limitation of the extent of the mortgage lien, and not a description of the note as might be inferred had the mortgage recited it was “to secure the repayment of a $1,050 note,” etc. While there is hardly need of it, this conclusion is supported by the payment of a mortgage tax on the amount of $1,050 only; which “raises a strong presumption that it was not understood to be operative further as a security.” Lashbrooks v. Hatheway, 52 Mich. 124.
The wife is not liable on the note beyond her admitted liability incident to the. $1,050, because at most she is only a surety as to the balance for which plaintiff seeks to recover. Reed v. Buys, 44 Mich. 80; Naylor v. Minock, 96 Mich. 182 (35 Am. St. Rep. 595). The extent of the mortgage lien is limited to the same amount. Since the wife is not bound by the note, the extent or amount of the mortgage lien must be confined to and limited by the express terms of the mortgage. To hold that the mortgage can be enlarged by the terms of the note in effect is to say that the note is valid and binding upon the wife, rather than that it is invalid. The plaintiff has no right to a mortgage lien beyond the specific provisions of his mortgage.
The foregoing is decisive of this case, and there is no need for considering other questions raised.
The decree of the circuit court is affirmed, with costs of the court to appellees.
Flannigan, C. J., and Fellows, Wiest, Clark, McDonald, Bird, and Sharpe, JJ., concurred. | [
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Flannigan, J.
This is a bill for specific performance. Defendant, a domestic corporation, was the owner of a subdivision in Wayne county known as Dix Avenue Villas. On October 8, 1919, it entered into a land contract with plaintiff, Joseph Wisper, and one Joseph Schwartz for the sale of lot 152 of the subdivision for $4,500, of which $450 was to be paid down and the remainder in monthly installments of $45, including interest at 6 per cent. All taxes and assessments levied against the lot subsequent to the date of the contract were to be paid by the vendees. Time was made of the essence of the contract, and it provided, if the vendees made default in the matter of payments, defendant might immediately declare the contract forfeited. They, made default, notice of forfeiture was given, and defendant resold the property to a bom fide purchaser for $5,000. Before suit was' brought Schwartz assigned his interest in the contract to plaintiff. By letter and in his bill, plaintiff offered to pay the full balance of the purchase price and all interest and charges. On the hearing, evidence as to the value of the lot was introduced by both sides. It was conflicting.
The court found and decreed the notice was not sufficient in law as a declaration of forfeiture; that the property having been resold to other parties specific performance should not be ordered; that defendant breached the contract by rejecting an offer of the vendees made after the property had been resold to pay all arrears; that the case should not be remanded to the law side of the court but retained to award plaintiff his damages; that the value of the lot at the date of the breach was $5,500; that deducting therefrom the balance due on the contract, interest, and taxes, plaintiff was entitled to $1,352.31; and defendant was ordered to pay him that sum with costs to be taxed.
The vendees made payments irregularly, until April 14, 1921. These payments totaled $1,170. Thereafter no payments were made. The affairs of the subdivision were transacted by defendant through its agent, Houseman-Spitzley Corporation. On February 18, 1922, the agent wrote reminding the vendees of their delinquency, suggesting an arrangement to increase the monthly payments until the unpaid balance was wiped out, and warning they were under instructions to foreclose all defaulted contracts. To that letter the vendees made no reply. A second letter was written May 13, 1922, to the effect they felt compelled, to follow instructions and foreclose, but added if the vendees were interested in protecting their equity, they should arrange immediately to resume the monthly payments. On the margin of this letter, which he returned'to the agent, plaintiff wrote:
“We expect to raise money on our bldg, and if you can wait another 30 days we will be in a position to settle up.”
To this request defendant’s agent made no reply but defendant did in fact forbear not only for the period applied for, but upwards of four months, and then, on October 6, 1922, without further warning, the vendees were served with a notice reading as follows:
“Notices have been sent you regarding the condition of your account for the purchase of the above lot.
“Payments on this lot have not been taken care of according to the terms of your contract. We, therefore, declare your contract terminated and are proceeding to re-sell the property.
“Of course, all payments made by you to date are retained as liquidated damages.”
The $45 installments were due and payable on the 8th day of each month. Aside from the initial payment of $450, the vendees made altogether 10 payments. With one exception, none of them were made on time. They were further in default respecting their agreement to pay taxes. The partial payments tendered were accepted by defendant and credited on the contract. Neither the letter of February 18th, nor that of May 13,1922, from the agent to the vendees, stated the amount due or the intention of defendant to forfeit if the same was not paid within a time specified.
The facts of this case call for application of the rule that where a vendor in a land contract, whether time is or is not of the essence thereof, repeatedly accepts past-due payments, it is but equitable, in case he later seeks to rely on a forfeiture provision of the contract, to Require him to give notice of the amount due and of his intention to declare a forfeiture if the same is not paid within a time to be fixed and stated, which must be reasonable. 39 Cyc. p. 1384; Waller v. Lieberman, 214 Mich. 428; Fry v. Miller, 220 Mich. 463; Letinsky v. Smith, 220 Mich. 465; Zadigian v. Gard, 223 Mich. 147; Malys v. W. C. Hood Realty Corp., 229 Mich. 110; Sliwinski v. Gootstein, 234 Mich. 74.
The relief asked by plaintiff was specific performance, yet he freely admits he knew several months before the bill was filed the property had been sold and conveyed to another and for that reason specific performance was impossible. The court found and decreed plaintiff was not entitled to specific performance because of the sale of the property to other parties. When it appeared on the hearing defendant could not specifically perform and that that situation was known to plaintiff before he filed his bill, the case should have been remanded to the law side of the court. In Robinson v. Campbell, 222 Mich. 111, where the only-relief sought was specific performance, and where it appeared the property in controversy had been conveyed by defendant under an order of court and plaintiff knew of that fact before he brought suit, it was held the sole ground of equitable jurisdiction alleged was not established and did not exist when the bill was filed and that the court of equity would not retain jurisdiction to1 award damages. The court said further:
“For the chancery court to exercise jurisdiction over matters not of general equity cognizance, but involved in the litigation, for the purpose of full and final adjustment of the whole controversy, some ground of equitable jurisdiction must in each case be not only asserted in the bill but established upon the hearing.”
In Koontz v. Bay Circuit Judge, 224 Mich. 463, 468, Justice Fellows, who wrote the majority opinion, said:
“There should be no disagreement over the rule that, where a court of equity has obtained jurisdiction of a controversy, it will retain jurisdiction for the purpose of administering full relief. But the statement of the rule assumes that the court of equity has acquired jurisdiction. Where the plaintiff by his proof fails to establish any of the grounds of equitable relief alleged in the bill the court of equity does not acquire jurisdiction and will not assume to settle controversies which are cognizable only at law.”
The decree will be set aside, with costs of both courts to defendant, and the case remanded with liberty to the plaintiff to move for transfer to the law side of the court in accordance’with the provisions of section 12351, 3 Comp. Laws 1915, or dismiss as he may elect.
Sharpe, C. J., and Bird, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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Sharpe, J.
On October 1, 1914, Joseph Kengel executed a written lease of the second and third floors of certain premises owned by him on Library avenue in the city of Detroit to Robert L. Barnard for the term of three years and six months, to be used for hotel purposes only. Before the expiration of this time, the following written instrument was signed:
“Detroit, January 27, 1917. “To Robert L. Barnard or His Successor:
“After the lease expires of rooms No. 56-58 Library avenue, I will repair building after repairing is done will give a new lease from three to six years at reasonable rent to suit both parties.
“Jos. Kengel.
“The undersigned hereby certifies that the signature attached to the above agreement is the signature of Jos. Kengel.
“(Reverse Side.)
“February 1, 1917.
“I hereby certify that the original lease was to commence February 1, 1917, 1 year and two months at $120.00 per month from April 1, 1918, to April 1, 1921 — $150.00 per month and from April 1, 1921, to April 1, 1928 — $200.00 per month but on account of the new addition to be made at the expiration of this present lease, Mr. Kengel thought it best not to give a lease until the repairs were made.
“R. L. Barnard.”
The plaintiff was then negotiating with Barnard for the purchase of his lease and equipment. This deal was consummated on February 1, 1917, with the con sent of Mr. Kengel. Plaintiff has been in possession since that time. He now occupies under what he claims “is a year to year oral extension of the original written lease.” Joseph Kengel died in 1925, and the rent was thereafter paid to the defendants as successors to his title.
On February 23, 1927, the defendants served a notice to quit and demand of possession of the premises on the plaintiff. Proceedings to recover possession were afterwards taken, but were enjoined by the circuit court, in chancery. On April 14, 1927, plaintiff filed his bill of complaint herein, praying for specific performance of the instrument above quoted.
The time limit of the lease from Joseph Kengel to Barnard, assigned to plaintiff, expired on April 1, 1918. Conceding, but not deciding, that the writing executed on January 27, 1917, was enforceable as an agreement to repair and to execute a new lease after that then existing had expired, the limit of time fixed during which the new lease would have run was six years, and expired on April 1, 1924. Plaintiff’s right to enforcement thereof could not extend beyond the time to which he would have been entitled to possession had performance been had. Sorfiewhat similar questions were discussed in Gould v. Hurley, 215 Mich. 234, and in Meadow Heights Country Club v. Hinckley, 229 Mich. 291, wherein options to purchase were considered.
The decree dismissing the bill is affirmed, with costs to appellees.
■ North, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
Chief Justice Flannigan and the late Justice BIRD took no part in this decision. | [
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Clark, J.
On January 9, 1922, defendant purchased shares of the capital stock of Southern Oil & Land Company. By agreement between the company and the plaintiff bank the note for the purchase price was made to the bank. On March 4, 1922, defendant purchased more of the shares and again his note was made to plaintiff. On September 18, 1922, a renewal note was given for the total of both of the notes, $1,850. Another renewal note was given on July 13, 1923, which was taken up on October 18, 1923, by a new note of defendant for $1,850, which note is sued upon. Defendant gave notice under his plea that the notes had been procured from him by fraud of the Southern Oil & Land Company, at least, and that the plaintiff bank is not a holder in due course. One of plaintiff’s contentions is that defendant has waived his right to make such defense. Defendant had verdict and judgment. Plaintiff brings error.
When defendant gave the last renewal note he had knowledge of the averred fraud. We think this is established beyond question. Mr. George H. Church of Tecumseh was sent in March, 1323, by defendant and others to inspect the company's properties and business which were in Arkansas, and to report. Defendant heard his report about March 25, 1923, of which defendant testified:
“Q. Now, Mr. Burkhardt, did you, after hearing Mr. Church’s report arid discussion in regard to1 the condition this company was in, did you then buy bonds?
“A. Yes, sir.
“Q. And why did you buy those bonds ?
“A. They claimed it was the only salvation. We had to make — company had no more money. It had to have some money and we had to put in more.
“Q. Well, the claim was at that time that so far as stock was concerned, the stock was worthless and the only way you could save yourself was to buy bonds; is that it?
•“A. That is the way I considered it. It was worthless.”
In August, 1923, defendant’s certificates of stock, which had been- left at the bank, were forwarded to him, of which he testified:
“Q. And I think you said a few moments ago they kept it until it wasn’t worth anything and then sent it back to you?
“A. Yes, sii”.- After it was dead they sent it to me.”
We need not review the evidence further, finding nothing therein to make an issue on this question. It is true that defendant and other stockholders, including many reputable and well-known men, hoped to save the enterprise by the issue of bonds, but such hope takes nothing from the knowledge of the facts. Counsel are in accord that if, when defendant gave the last renewal note, the note sued upon, he had knowledge of the averred fraud, he has waived his said defense. We conclude that it has been waived. Whether there was in fact fraud is a question not before us. No other question requires consideration. On the motion made by plaintiff, a verdict for the amount due should have been'directed.
Reversed, with costs to plaintiff. Remanded for judgment in favor of plaintiff.
Flannigan, C. J., and Fellows, Wiest, McDonald, Bird, and Sharpe, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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North, J.
This is a case tried by a jury in which the plaintiff sought to recover on the common counts approximately $1,600 from the defendant for certain services which plaintiff claimed he had rendered to the defendant company while acting as its attorney; and he also sought to recover for certain bond coupons and for 35 shares of stock in the defendant company valued at $2,100. The plaintiff asserted that the contract for his services and the transaction through which he became the owner of the stock in the defendant company were consummated through Mr. Melvin E. Raymond. The plaintiff alleged that Raymond was acting as agent of the defendant company. The defendant denied the alleged agency, and claimed that Raymond acted as an independent broker. Approximately three weeks after plaintiff had secured from Raymond the 35 shares of stock in the defendant company in exchange for .certain bonds and coupons, Raymond got possession of the stock from the plaintiff and sent it to the defendant’s office at Chicago. Raymond claimed this was done for the purpose of having the stock re-issued in plaintiff’s name. The defendant retained the stock, claiming Raymond obtained possession of it wrongfully or through a mistake of an officer of the company, and that Raymond had no right or authority to sell the stock. • Verdict was rendered in favor of the plaintiff. Thereafter the defendant submitted to the trial court a motion for judgment notwithstanding verdict and also a motion for a new trial. Each of these motions was denied. The case is here on writ of error.
The 20 assignments of error are covered by defendant’s three contentions as follows: That because there was no evidence tending to prove the same, the court erred in submitting to the jury the question of Raymond’s agency, and even if there was evidence of agency, there was no proof that the transactions herein involved were within the scope of such agency; that the court erred in ruling as to the admissibility of evidence; and that there was error in the refusal of the court to give to the jury certain charges requested by the defendant and also error in the charge as given.
Relative to the question of agency, and the scope thereof, the record discloses the following: The plaintiff testified that John W. Bain, the president of the defendant company, said to the plaintiff, in substance, it seemed to him (Bain) that Raymond was not making progress (at Grand Rapids) along the lines of opening up the State, and after paying Raymond’s expenses for a while he (Bain) was not satisfied, and for that reason he stopped paying Raymond’s expenses. He (Bain) said:
“Raymond was representing• his company, and that Raymond was to make the necessary arrangements in Michigan and' open up this State for life insurance business. * * * Bain did not tell me when I was in Chicago, nor at any other time that Raymond was not employed by the company. * * * I knew Raymond was from time to time drawing drafts on the Equitable Insurance Company, and I knew the Equitable Life Insurance Company was making arrangements at the bank, and I knew the insurance company was paying Raymond’s expenses at the hotel. To do business in Michigan the insurance company would have to- do the very thing Bain was trying to work out through the Grand Rapids Savings Bank account, have to build up the legal reserve. I would tell Raymond what had to be done, and he then would take up with Bain the necessary requirements, and he and Mr. Bain take it up with the bank and others to carry it out. Raymond was telephoning Bain repeatedly from his room in the hotel for consultation and advising him what was necessary to be done. The insurance company, in building up their legal reserve were starting out with a C. D. of $100,000.”
Mr. Gilbert L. Daane, president of the Grand Rapids Savings Bank, testified in substance:
“Mr. Bain talked with me about opening an account with him and borrowing some money for the insurance company. He said he would borrow money and leave it on deposit with us. I understood that they were going to leave their funds on deposit as security to a loan. Mr. Bain said they would have to have some legal reserve in Michigan, and funds in Michigan banks to be used for that purpose. Mr. Raymond was right there at the time.”
This witness had testified that on a former occasion Raymond had told him he was connected with the Equitable Insurance Company, “and was going to bring us some good business. Mr. Bain told me he was opening up to write insurance in Michigan, and 'as I remember it was legal reserve he needed to open Michigan,” etc.
Raymond was arranging to have a Mr. Westra act as general agent in Michigan for the Equitable Life & Casualty Insurance Company, and Mr. Westra testified:
“I saw Raymond write drafts directed to the Equitable Life Insurance Company; in fact I had a couple of these cashed for him.”
Mr. Raymond testified:
“I was authorized to select the personnel, attorney, general agent and others. I was to select all these men and report to Mr. Bain as to who they were, and what they were, and on what basis they were willing to become connected with the company. In the course of my work I selected Mr. Westra, Dr. Slemmons and Mr. Shaw.”
This witness testified -that the foregoing was incident to obtaining business in Michigan for the Equitable Development Company, which had charge of placing insurance for the Equitable Life & Casualty Insurance Company; and the witness said:
“I was not authorized to do anything for the casualty company, although I was authorized by Mr. Bain, who was president of both companies.”
He also testified relative to certain insurance stock in the defendant company which he transferred to the plaintiff in exchange for certain bonds as follows:
“That (the insurance company’s stock) was given to me in connection with my expenses. It was advanced against my commissions.”
The witness also testified:
“Mr. Bain knew I secured the services of some attorney because I cannot execute legal documents. I mentioned plaintiff’s name to him several times. He made no objection to the work being done.”
Other quotations of like purport might be made. Much of the record above set forth is denied, explained, or qualified. But, in determining whether plaintiff had a right to have a jury pass upon these issues, the testimony as to Raymond’s agency and the scope thereof must be considered in the aspect most favorable to the plaintiff. Burghardt v. Railway, 206 Mich. 545 (5 A. L. R. 1333); Alt v. Konkle, 237 Mich. 264. Obviously there was an abundance of proof to 'justify the trial judge in submitting these questions to the jury, and under this record we cannot disregard the determination if the issues involved were properly submitted.
Thirteen of the defendant’s assignments of error relate to rulings as to the admissibility of testimony. Two of these assignments are expressly waived in defendant’s brief. We have given each of the others careful consideration and find that the defendant’s contention relative to them is without merit. None of the rulings were prejudicial to the defendant. A detailed discussion of them would not be helpful to the profession.
The remaining question is whether the trial court committed error in not giving the charges preferred by the defendant or in the charge as given to the jury. A careful reading of the charge discloses that in so far as defendant’s requests were accurate statements of the law applicable to the issues involved, they were covered by the charge as given; and that there is no error in those portions of the court’s charge relative to which error has been assigned.
We think the issues of fact were fairly submitted to the jury, and it cannot be said the verdict was against the weight of evidence. It follows that the trial court’s denial of the motion for judgment notwithstanding verdict and also of the defendant’s, motion for a new trial was correct.
Judgment is affirmed, with costs to appellee.
Flannigan, C. J., and Fellows, Wiest, Clark, McDonald, Bird, and Sharpe, JJ., concurred. | [
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Bird, J.
Plaintiff, a building contractor, entered into a written agreement with defendant to repair his dwelling house. Under the terms of the contract plaintiff was to receive $800 upon completion of the foundation, and the further sum of $1,000* upon the completion of the roof. The balance, $1,384, was to be paid when the work was completed. When the foundation was in and the roof completed plaintiff received only a part of his money, and defendant made promises of payment of the balance, but did not make good. Plaintiff, therefore, abandoned the work, and brought this suit to recover his damages for defendant’s breaching the contract. The jury awarded him a verdict of $865.79.
Defendant makes the following complaints:
Upon motion of plaintiff’s attorneys the trial court disqualified Michael Garvey from acting as attorney in the case for defendant. The record shows that Mr. Garvey drew the contract which is the basis of this suit. A short time before this case was started Mr. Garvey sued plaintiff and filed the following bill of particulars in the circuit court:
“Preparing contract for Mr. Wingilia, and consultation in the matter of Charles Wingilia against Mr. Ashman, $15.”
Mr. Garvey was called to the stand and examined by counsel, and also by the court:
“The Court: Was there a judgment rendered in your favor in that case?
“Mr. Garvey: Yes, your honor.
“The Court: For how much?
“Mr. Garvey: I think something like $162, something like that.
“The Court: The full amount of your claim?
“Mr. Garvey: It was the full amount of the claim.
“The Court: Then I think I would have to hold, under your bill of particulars, the matter of consultation, the way you filed your bill of particulars, would be a legal relation between counsel and client. I will hold in this case that Mr. Garvey is disqualified from appearing as attorney in the case, and what he learned from Mr. Wingilia, his client, would be privileged.”
The testimony of Mr. Garvey discloses that he charged plaintiff for preparing the contract, $15. The difference between this sum and $162 was for consultation in regard to the matter being tried. . We are of the opinion that the court was in no error in disqualifying Mr. Garvey as attorney for defendant in the case. Aside from the legal situation, the trial court did nothing more .than Mr. Garvey’s own sense of propriety should have prompted him to do without a motion. He had drawn the contract and consulted with plaintiff concerning the matter, and was, therefore, in a position to be suspicioned of unprofessional conduct if he accepted employment from defendant.
Complaint is also made because the court did not permit an adjournment after.disqualifying Mr. Garvey. Application was made for a postponement of the case, but the court said that inasmuch as another attorney was interested with Mr. Garvey he saw no reason why tjiey should not proceed. Mr. Herman conducted the case in such a manner that there is no room left for defendant to claim that he was prejudiced by reason of Mr. Garvey being disqualified.
The contract obligated plaintiff to cover the roof with asphalt shingles. This was done, except the back porch, which it was subsequently agreed should be covered with paper roofing, on account of the lack of pitch in the roof. Plaintiff was permitted to show these facts, and defendant complains that the court permitted a parol agreement to alter the written contract. A subsequent oral agreement may be shown in modification of a prior written contract. Summers v. Wagner, 87 Mich. 272; Town v. Jepson, 133 Mich. 673; Strom-Johnson Construction Co. v. Riverview Furniture Store, 227 Mich. 55.
Defendant concedes that he did not pay plaintiff the entire amount due; that he withheld a portion of the consideration to take care of certain claims for labor and material, which plaintiff was indebted for, and the claim is made that he was justified by 3 Comp. Laws 1915, § 14799. The record shows in this case that the real estate, which was the subject of the contract, was owned by defendant and his wife by the entireties, and the contract was signed only by defendant. Under these circumstances no lien could attach. Burman v. Ewald, 192 Mich. 293; F. M. Sibley Lumber Co. v. Letterman, 234 Mich. 32. Inasmuch as plaintiff is not attempting to assert a lien, none of the laborers or materialmen are in a position to assert a lien. Walker v. Syms, 118 Mich. 183. See, also, Barnard v. McLeod, 114 Mich. 73; 3 Comp. Laws 1915, § 14817. In view of these circumstances we do not think defendant was justified in withholding a part of the consideration because plaintiff was indebted to laborers and materialmen.
Complaint is made because the trial court refused to direct a verdict for defendant at the close of plaintiff’s proofs. The basis for this motion was 3 Comp. Laws 1915, § 14799. This objection has just been considered in number 3. We think the point is not well taken.
It is said the court was.in error for its refusal to give the following special question to the jury:
“Had the plaintiff completed the foundation on defendant’s home, and fully completed the roof with asphalt shingles, and fulfilled his part of the agree ment in accordance with the contract at the time he abandoned the work?”
The law regulating the submission of special questions (3 Comp. Laws 1915, § 12611) provides that:
“Provided, Such special questions shall not exceed five in number, and shall be each in single short sentences readily answered by yes or no.”
The special question submitted includes at least three distinct questions, and an answer to them yes or no would mean very little. No error was committed in refusing to give it.
Error is assigned because the trial court did not give counsel’s requests to charge. The trial court may not have given the requests in the words or language of defendant’s requests, but we think he covered the issues very fully and submitted to the jury the conflicting testimony for their consideration.
There are some other errors assigned, but it will be unnecessary to consider them, as we are impressed they are not well taken.
The judgment is affirmed.
The foregoing opinion was prepared by the late Justice Bird and is now adopted as the opinion of the court.
Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.
Chief Justice Flannigan and the late Justice Snow took no part in this decision. | [
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North, J.
This case is one brought on appeal from the circuit court of Chippewa county in which the relief by way of specific performance sought by the plaintiffs and appellants was denied and the bill of complaint dismissed. Reference is made in the record to the defendant’s cross-bill, and at the conclusion of defendant’s answer there is a prayer for affirmative relief. There seems to have been no answer filed to this so-called cross-bill, nor was default entered. In the opinion filed the trial judge said because “the defendant has not sustained the burden of proof, the prayer of the cross-bill must be denied.” While this cross-bill is referred to in the recital portion of the final decree, no disposition of the same or the relief therein sought is decreed. The defendant did not appeal.
Because it is not believed it would be helpful, a detailed statement of all the facts involved will not be attempted. On the 20th day of April, 1926, at the city of Tampa, Florida, the plaintiffs and defendant entered into a contract, by the terms of which plaintiffs 'deeded to defendant certain Florida property, consisting ,of an apartment house and a vacant lot in the city of Tampa, Florida, and the defendant deeded to plaintiffs a tract of 1,400 acres of land situated in Chippewa county, Michigan. The deeds of the respective parties- were deposited with the National City Bank of Tampa, along with the contract, which made provision for the subsequent delivery of the deeds to the grantees. After a recital of the details of the trade and of the incumbrances on the Florida lands, this instrument provided plaintiffs should have at least 30 days from delivery of abstracts to them within which to examine and pass upon the title to the Michigan land, and, further, “if the personal examination reveals the fact that the land is not up to the expectations of” the plaintiffs and appellants herein, then the bank should return the deeds to the respective grantors. The defendant delivered his abstracts to plaintiffs, who had them examined; and, on May 3d, plaintiffs, being satisfied with the title, gave the bank written notice of authority to deliver their deeds to the defendant and demanded delivery of the deed to the Michigan lands. This the bank refused because the defendant had notified the bank on the same date not to deliver his deed. The record shows the defendant, upon inquiry, had been advised in the meantime the Florida property was of much less value than he had supposed it was, and, as he claims, much less than the plaintiffs had represented it to be. This bill was filed to compel the specific performance of this agreement by the delivery of the deeds.
Grosvenor defended on the ground that he was induced to execute his deed and the agreement through fraud and misrepresentation by the plaintiffs relative to the value of the Florida lands, existing leases on the apartment building, the rental income derived therefrom, and as to the provision made in the agreement for the delivery of defendant’s deed, and in some other particulars. None of these need consideration here, because the trial judge found they were not established by the preponderance of proof. We adopt this determination as being justified by the record, at least the finding is favorable to the appellants. •
The relief sought by the plaintiffs was denied by the trial court on the ground that, under the facts and circumstances of this case, it would be contrary to equity and good conscience to grant specific performance, that being a remedy of grace and not of right. Stripped of many details which appear in the record and which were considered in the lengthy opinion filed by the circuit judge, the circumstance which forced this conclusion was that it appears from the proof plaintiffs’ Florida lands were mortgaged for practically their full value, and they are here seeking the aid of a court of equity to force the consummation of a transaction whereby the plaintiffs would receive for their well-nigh worthless equity the defendant’s unincumbered lands, which appear to be worth substantially. $15,000. The trial court properly found that such a transaction would be unjust and in-j equitable; and that the proofs disclosed an overreaching by the plaintiffs. Even if the defendant’s claims of fraud and misrepresentation were not established, as was determined by the court below, still we have a case where clearly the simplicity, the credulity, and lack of experience of this defendant were seized upon by over-zealous plaintiffs, who are here seeking the enforcement of an inequitable contract. Under such circumstances, the remedy of specific performance is not a matter of right, but instead, because of the lack of equity, should be withheld. The equitable principles and the authorities applicable to this case are fully set forth in the recent opinion of Chief Justice Sharpe in Linsell v. Halicki, 240 Mich. 483.
Because the defendant has not appealed from the decree of the lower court, we cannot pass, upon the claim urged in his brief for relief by way of cancellation of the deed which he executed to the plaintiffs or clearing the cloud from the title to his land which he asserts has been created by filing a lis pendens incident to this suit. Herpel v. Herpel, 162 Mich. 606; Lee v. Stratford Arms Hotel Co., 236 Mich. 520.
The decree in the circuit is affirmed, with costs to defendant.
Flannigan, C. J., and Fellows, McDonald, Bird, and Sharpe, JJ., concurred. | [
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Fellows, J.
In the latter part of 1925 and the fore part of 1926, there was considerable activity in Muskegon in lake frontage on Lake Michigan. Defendant Page is a dentist, defendant Shaffer a real estate dealer. They had an option from defendants Fagan and Larsen of some lake frontage in Leelanau county. Plaintiffs are dentists and purchased the Leelanau county property of defendants Page and Shaffer in February, 1926. We are satisfied that none of these parties had seen the property before the sale. The purchase was for resale. The only question in the case is one of fact, i. e., whether defendants, and particularly Dr. Page, represented that the frontage had a sandy beach. Plaintiffs affirm and defendants deny that such representations were made, Dr. Page particularly testifying that in reply to an inquiry by plaintiffs on that subject he stated that he did not know, that he had never seen the property. We may assume from this record that each of the parties is a man of probity and high standing in the community, as each one so concedes of his opponent. Indeed, the case presents little of acrimony common to lawsuits.
The burden was on the plaintiffs to establish their case. The trial judge who heard and saw the witnesses held that they had not met the burden and dismissed their bill filed to set aside the transaction. A careful reading of the testimony in this record is not persuasive that we should reach a different result. While we hear chancery cases de novo and are not controlled by the finding of fact of the trial judge, we should hot overlook the fact thnt he had an advantage we do not possess, that of seeing, hearing the witnesses in open court. While not controlling, his opinion as to their credibility is always helpful.
Fraud is never presumed; it must be proven by a preponderance of the testimony. We can not upon this record find that it has been so proven.
The decree must be affirmed, with costs.
North, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.
Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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McDonald, J.
The plaintiff has brought certiorari to review an order of the department of labor and industry. Her father, James Ryan, was employed by the city of Port Huron as foreman of a gang of workmen, whose business it was to cut grass and weeds and clean the streets. While thus engaged on August 4, 1924, a rain storm came on and the men sought shelter in a nearby private garage. When they were a few feet from the garage, Mr.. Ryan was attacked by a dog and bitten on the leg. From the injury received he died September 16, 1924. Catherine Ryan, Ms widow, made claim for compensation, and an award was entered in her favor 'by a deputy commissioner. Defendants appealed to the board. Subsequently, Helen Ryan, the plaintiff, filed a claim for compensation on the ground that she was wholly dependent on her father at the time of the injury which caused his death. Her claim was also allowed by the deputy commissioner, and the defendants appealed. While the appeals were pending Catherine Ryan, the widow, died. On the hearing the board reversed both awards, holding that:
“1. That the accident to the decedent, James H. Ryan, did not arise out of and in the course of his employment.
“2. That the plaintiff, Helen Ryan, was not a dependent upon the decedent, James H. Ryan, at the time of the happening of the accident.”
Did the accident arise out of and in the course of his employment?
In Hopkins v. Michigan Sugar Co., 184 Mich. 87 (L. R. A. 1916A, 310), it was said:
“It is well settled that, to justify an award, the accident must have arisen ‘out of’ as well as ‘in the course of’ the employment, and the two are separate questions to be determined by different tests, for cases often arise where both requirements are not satisfied. An employee may suffer an accident while engaged at his work or in the course of his employment, which in no sense is attributable to the nature of or risks involved in such employment, and therefore cannot be said to arise out of it.”
So, in the instant case, if it may be said that the workmen’s act, in seeking shelter from the storm, did not break the employment, and that he was then still in the course of his employment, it does not follow that the accident arose out of the employment. To justify a finding that it arose out of the employment, it must appear that the injury received was a risk to which he was exposed by the nature of his employment. The test which should be applied in determining this question is stated in Hopkins v. Michigan Sugar Co., supra, as follows:
“It ‘arises out of’ the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed ás a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard, to which the workman would have been equally exposed, apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.”
And in Thier v. Widdifield, 210 Mich. 355, quoting from an English case, this court said:
“A lineman who, while at his work, is bitten by a snake, will not be allowed to trace his injury to his employment even though he would not have been bitten had he been elsewhere than where his employment called him. * * * It is not enough for the applicant to say, ‘the accident could not have happened if I had not been engaged in the employment or if I had not been in this particular place.’ The applicant must go further and say, ‘the accident arose because of something I was doing in the course of my employment, and because I was exposed by the nature of my employment to some particular danger.’ ”
Applying the above tests, it is clear that the accident did not arise out of the employment. Being bitten by a dog cannot be traceable to the nature of the employment in which Mr. Ryan was engaged. There was not the slightest causal connection between them. The risk of being bitten by a dog was no greater to him because of his employment than it was to any member of the public, who chanced to be in the locality. The accident did not arise out of his employment. It is not necessary to discuss the question as to plaintiff’s dependency.
The order of the board is affirmed, and the writ dismissed.
Bird, C. J., and Sharpe, Snow, Steere, Fellows, Wiest, and Clark, JJ., concurred. | [
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Steere, J.
On March 25, 1915, while a passenger on a west-bound interurban car on defendant’s so-called “Fort line” by west Jefferson avenue to the west city limits of Detroit, plaintiff’s wrist was severely cut on broken glass in a door between the smoker and main body of the car as he was attempting to reach the rear door to alight at his destination near the city limits. Imputing the accident to negligence of defendant’s agents, he brought this action in tort to recover damages for the injury so sustained. The case came to trial in the circuit court of Wayne county on November 9, 1923, resulting in a directed verdict for defendant followed by judgment thereon. Defendant introduced no testimony upon the trial, but when plaintiff rested moved for a directed verdict on the ground that plaintiff had failed to make out a prima facie case, had shown his own negligence caused his injury, and defendant’s claimed negligence, if any, was not the proximate cause of the injury, and the trial court so held. Plaintiff produced two witnesses besides himself — his cousin Alex. Takacs and a fellow-passenger named Tony Pianto. The three resided near each other in the western portion of Detroit near the intersection of Jefferson and West End avenues, were all three employed at the Dodge automobile factory in Hamtramck and were returning from their work together by the familiar route they were traveling that evening.
Defendant operated over its west Jefferson avenue line in connection with its local city cars a system of interurban cars known as the. “Wyandotte-Trenton line,” using larger and differently constructed cars for that purpose, which also were available to local passengers. These cars had an entrance at the front leading into the motorman’s vestibule, from there through a door in a partition to a smoking room and from the smoker through a door in a partition into the main body of the car. Along the right side of the car facing the front was an aisle with all the seats at its left. This aisle ended at a doorway in the rear partition of the car leading out to a rear platform. The partition doors were opened and closed by sliding into and out of the partitions. Plaintiff testified that in his journeys back and forth he had never ridden in that car before.
On the evening in question the three fellow-workmen came down from their place of employment at the Dodge Brothers’ plant on a Baker street car, and transferred at Griswold and Fort street to a westbound Jefferson avenue car. In so doing that evening they boarded one of the Wyandotte-Trenton interurban cars at the rear and took seats forward in the smoking room where they remained until they arose to leave the car at their destination. When they took the car it had few passengers but as it proceeded westward on its run picking them up at different points the seats became filled and the car crowded with the aisles full of standing passengers. Forward in the smoker where plaintiff was he estimated 10 or 15 could stand and said there were “as many as can stand up in there.” He and his two companions sat in the back seat of the smoker next to its rear , partition. The glass in the door of the partition between the smoker and main body of the car was broken and plaintiff’s wrist cut by it when he was trying to open the door to get to the rear platform to alight at his destination. Defendant’s duty and negligence charged in his declaration are:
“that as a passenger on said car he was entitled to be allowed to alight safely therefrom at his destination and was entitled to be accorded reasonable free and safe egress and that the passage ways should not have been blocked by the acts of said defendant, its servants, agents and employees, or if such doors became blocked, plaintiff was entitled to have such obstruction removed and such doors opened for him by the servants, agents and employees of said defendant and that plaintiff was entitled to have said car stopped to permit him. to alight upon his giving proper signal, all of which, rights defendant refused to grant to plaintiff.”
Plaintiff’s assignments of error are against the court’s direction of a verdict for defendant, errors in charging the jury, and refusal of plaintiff’s requests. If the court was right in directing the verdict, plaintiff’s requests and what the court said to the jury call for no consideration. The court’s reasons for taking the case from the jury were, in substance, that, accepting plaintiff’s testimony as true, it showed no proximate, causal connection between the conduct of defendant’s agents who were in charge of the car and plaintiff’s cutting his wrist on glass broken in the partition door while he was trying to open it before the car stopped. Plaintiff’s testimony is somewhat at random and self-contradictory as to where he wanted to leave the car that evening. He said he was accustomed to take and get off the street cars at West End avenue, “which is the nearest point to my home, * * * I was pushing the button to get off first on the corner of Crossley. * * * I lived on Crossley— I wanted to get off at Crossley avenue;” but his story as finally told was that he did not want to get off at either Crossley or West End avenues, but at the Solvay railroad which crosses the street car line between Crossley and West End crossings, and is a forced stop. Leading up to his accident, he said in part:
“The car was very crowded and I thought I would get off before I got to West End avenue anyway. * * _ * The place I wanted to get off was Solvay crossing first. * * * I rang the bell after I got to Crossley for the purpose of stopping at the railroad track. * * * I myself rang the bell the first time; * * * I had to stand up to ring that bell. My other two friends were sitting with me. They were right beside me. We all got up together in order to get off. I started first for the front door. I was the first one that went towards the motorman’s door.”
He and his cousin Alex, then worked their way through the crowd to the forward door of the smoker in the partition back of the motorman’s vestibule and "tried to open it, but were unable to do so. They rapped on the glass in the door and asked the motorman through the closed door to open it. He looked around and laughed at them, as they stated, then turned back and “kept on going.” The car started up at the Solvay railroad crossing stop while they were trying to get that door open and plaintiff rang the bell for the West End avenue crossing. They then turned back through the crowded aisle to go to the rear of the car. When they reached the partition door between the smoker and body of the car plaintiff first tried unsuccessfully to open it, and then Tony took hold. Up to that time there is no evidence of any unusual disturbance or demonstration of hostility by the standing crowd in the smoker through which they had worked their way forward and back, beyond their statement that the people laughed at them. Tony’s effort resulted in his falling against the side window of the car and breaking it. His account of that accident is in part as follows:
“When I tried to open the door and I got the door open about a foot and the door was slid right back and I fell against the window — side window, Mr. Takacs was right alongside of me, and somehow the crowd was pushing, I don’t know how. * * * Anyway, when I pushed this door open about a foot, it slammed right back shut again. It threw me over that time and I broke the side window. When the crowd jumped on us, because the car was loaded; that is the time it pushed Mr. Takacs against that partition door window — that glass when he cut his hand.”
Plaintiff’s account of the accident is, in brief:
“Somebody else pushed it (the door) back. Somebody pushed it back with his foot, or something. The door-glass was broke and knocked me in the door-glass. It came shut again by somebody’s foot. It stayed shut. Somebody pushed me against the glass, that is, knocked me in the head and I fell into it. I don’t know who pushed me. It was just like brothers over there— * * * I didn’t fall down because so many people were there I couldn’t fall down.”
They testified that the car did not stop at West End avenue crossing, but in the street beyond. Tony said that at the time his elbow broke the side window “the bell was ringing again and the car was keeping on going. When he heard it break then the motorman stopped the car.” After the car stopped the doors were opened by some one and the three men got off, plaintiff and Tony by the rear door. Alex, said:
“You know West End, the next block is Cary. The car stopped in the middle of the street. I don’t know what happened over there; the car stopped over there. I saw people walk out the door — what could happen. I didn’t see what my cousin had — just saw that when I got off the car. I didn’t see it on the car. I got off the front door. As soon as the people walk — I don’t know what happen — I see both doors open — both doors — front door, both doors open. I didn’t go to the partition door at all. I was right on the front door.”
If his statement is correct there was not sufficient disturbance at the middle door for him to notice it, although he was right there in the smoker, and he did not know his' cousin had been hurt until after he got off the car. Plaintiff’s counsel base his right to recover on the claimed negligent omission of defendant’s conductor and motorman to prevent the commission of a tort upon him by an unidentified fellow passenger, under the general proposition that as a passenger on defendant’s car he “was not only entitled to be carried safely but was entitled to be protected during the trip and allowed to alight safely at any intersection designated by him and which was a regular stopping place for' such street car.” The question of safely alighting is not involved. Plaintiff was not injured while alighting but while in the car trying to open a door in a partition between the compartments. The Solvay crossing was a forced stop between streets at a railroad crossing, not necessarily a regularly designated stopping place for convenient receipt and discharge of passengers. The motorman’s paramount duty was to properly and safely operate the car, not to look after the passengers nor supervise their entering and leaving it. He was in his closed vestibule alone in performance of his duties at or near a railroad crossing, which required special care and vigilance in operation of the car, when plaintiff or his cousin rapped on the door, and through the closed door asked him to open it. He turned around on hearing.them rap, and, as they state, laughed and turned back again. Alex, said he saw his lips moving, but both said they did not hear him say anything. If he spoke and they did not hear him, it is a fair inference he could not hear what they said. They made no appeal to the conductor who apparently was not in the car at that time. Plaintiff said of his then whereabouts, “the conductor got out on the back end to see whether the crossing was clear. I didn’t see him do it but he always does.” We fail to discover any causal connection between a neglect of duty by the motorman and plaintiff’s injury in another part of the car caused by the tort of a fellow passenger.
Plaintiff and Tony testified that when the accident happened at the rear door of the smoker the conductor was in the main body of the car near the-partition door which they Were on the other side of and trying to open, and did nothing to help them open it. Tony said he could not say how near, stating as his reason, “I don’t know how many men were between him and the door, * * . *
“Q. Couldn’t you see him from where you were?
“A. No, because — I can’t say that.” Their testimony shows that the first demonstration against them followed Tony breaking the side window, immediately after which he says the crowd “jumped on” them and plaintiff was thrown against the partition door window and his hand cut on the broken glass. Tony said that when the motorman heard the side window against which he fell break, he stopped the car. Up to that time they had said nothing to the conductor nor he to them. There is no proof or claim that the conductor was present or had any knowledge of what occurred when plaintiff tried to open the front vestibule door at the Solvay crossing, and in fact he received no injury at that time.
While defendant was not an insurer of its passengers, yet, under the .'general rule as to the duty of common carriers, it was required to exercise the highest degree of care for their personal safety consistent with the nature of its contract of carriage in relation to its, or its servants’, acts or omissions towards them. But its liability is not necessarily to be gauged by that standard when intervening torts of strangers or fellow passengers cause the injury complained of while the relation of passenger and carrier exists. In the latter case it is a qualified liability, and contingent upon whether the carrier or its agents could in the exercise of due diligence have foreseen and prevented the injury, but neglected to do so. That rule is clearly stated in McWilliams v. Railway Co., 146 Mich. 216, where it was held the trial court properly submitted the case to the jury because there was testimony showing or tending to show that the passenger who injured plaintiff was known by the conductor to be intoxicated and annoying, had created a disturbance on the train by firing off a revolver and the conductor had threatened him that if he did not stop he would put him off the train, but did not do so nor take his revolver from him. Justice Ostrander there plainly points out the distinction as follows:
“The negligence for which in such cases the carrier is responsible is not the tort of the fellow passenger or the stranger, but is the negligent omission of the carrier’s servants to prevent the commission of the tort. And courts have, in some cases, distinguished the liability of the carrier for torts committed by the servants and those committed by passengers or by strangers. Tall v. Packet Co., 90 Md. 248 (44 Atl. 1007, 47 L. R. A. 120). But the distinction made seems to go no further than this: that, while the liability to passengers carried for hire for tortious acts of servants is absolute, and that for the acts of strangers or fellow passengers is relative, contingent, and qualified, if the servant of the carrier has, or from known conditions should have, knowledge that the condition or actions of one admitted as a passenger threaten the safety of other passengers, or that mischief is to be reasonably apprehended, the duty to exercise the highest degree of care to insure the safety of passengers at once arises, failing in which the carrier will be held to answer for the damages sustained.”
That rule as to qualified liability for torts inflicted by fellow passengers is supported by abundant author ity and well settled. Defendant could only be charged with neglect by the conductor of some duty owed to plaintiff arising from facts known to him or which in the discharge of his duties he ought to have known. There is no evidence that the conductor had any knowledge, notice or reason to anticipate that the unidentified passenger to whose immediate tort plaintiff imputes his injury had previously been guilty of any misconduct, or might push or knock him into a pane of glass in the partition door. The disturbance was initiated by the energetic efforts of plaintiff and Tony to open the partition door, during which the latter fell against and broke a side window of the car. This was immediately followed by the assault and injury complained of. Plaintiff had never ridden on this interurban car before. By what rules, if any, that type of car was operated as to opening and closing its doors or receiving and discharging passengers, the record does not disclose. But conceding a neglect of duty in that particular on the part of those operating the car and in running past plaintiff’s destination, which might create a liability for actual inconvenience and expense resulting to plaintiff, an assault upon him by a fellow passenger and the cutting of his wrist on a broken window were not the proximate or natural consequences of such negligence, to be foreseen or anticipated by the conductor. If under such circumstances the carrier’s liability was tested by the bare fact that an injury was suffered through an unexpected intervening tort of a fellow passenger, it would make the carrier an absolute insurer of the injured passenger, a liability which the law of negligence does not impose.
The judgment is affirmed.
Bird, C. J., and Sharpe, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
Justice Moore took no part in this decision. ■ | [
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Clark, J.
The information contained a count for murder. A second count charged manslaughter, setting forth in detail that the woman had been killed by efforts of defendant and another to procure her miscarriage, the count being based on section 15225, 3 Comp. Laws 1915:
“Section 34. Every person who shall wilfully'ad-minister 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, or shall have been advised by two physicians to be necessary for that purpose, shall, upon conviction, be punished by imprisonment in a county jail not more than one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”
The offense so defined by the statute is a misdemeanor.
We quote section 15224, 3 Comp. Laws 1915:
“Section 33. Every person who shall administer to any woman pregnant with a quick child, any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter.”
The information was not filed under the section last quoted, as there is no averment that the woman was pregnant with quick child. The offense defined in section 15224 is made by the statute manslaughter, not murder. People v. Olmstead, 30 Mich. 431; People v. Sessions, 58 Mich. 594; People v. Aikin, 66 Mich. 460 (11 Am. St. Rep. 512).
The legislature did not intend to make the misconduct with intent to procure miscarriage, set forth in section 15225, where death of the woman ensues, a more serious offense than like misconduct with intent to destroy a quick child resulting in death, as set forth in section 15224. If death of the woman results from the act or acts with intent to procure miscarriage as defined in section 15225, the offense is manslaughter. People v. Abbott, 116 Mich. 263.
The trial judge in his charge defined murder in first and in second degree, instructed the jury to determine if defendant was guilty of murder so defined, and said further:
“If you find this respondent guilty of murder you must determine and state in your verdict which degree of murder you find him guilty of.
“Accordingly, as you find the facts to be, you may acquit respondent of the graver charge of murder, but still find him guilty of a lesser charge.
“If you do not find this respondent Stahl guilty of murder of either the first or second degree, you will proceed to determine whether he is guilty of the remaining charge of manslaughter.” * * *
To support such instruction the prosecution insisted in the circuit court and here argues that there was some evidence that the operation on the woman was done with intent to kill her, and stress is laid on testimony that the autopsy disclosed that the uterus had been punctured, evidently by a curet. But there is no evidence to support the charge of murder.
Dr. Clark, a witness for the people, stated the ease in fact:
“The pregnant uterus is very taut, similar, perhaps, to a balloon blown up, and it would depend on the. technique of the person as to whether it is easy to avoid the puncturing of the uterine wall. * * * From my examination the cause of her death was uterine hemorrhage and puerperal sepsis as a result of the evacuation of the contents of the uterus, ordinarily known as abortion.”
The technique of the operation does not of itself determine the character of the crime. The theory of murder ought to have been omitted. But it is urged that defendant was not prejudiced in this respect because the jury acquitted him of the major charge of murder, the verdict being of manslaughter; citing People v. Knapp, 26 Mich. 112; People v. Sharp, 163 Mich. 79; People v. Lieska, 161 Mich. 630; People v. Klise, 166 Mich. 1; People v. Collins, 166 Mich. 4. These cases are applicable where there is some evidence at least to support the charge, or degrees, of crime charged and submitted to the jury. But they ought not to be held as excusing the instruction here respecting the major charge of murder where there is no evidence to support it. Fancied cases to illustrate the point-will suggest themselves.
When twelve jurors agree on amount or degree generally there must be composition of views. Here the jurors to determine degree were required improperly to compose their views between the major charge of murder in its degrees, and manslaughter. Defendant testified; if truly, he was innocent. The case was serious, sad. If the murder feature had been omitted from the instructions, and the case submitted on the theory of manslaughter, it cannot now be said with certainty that the jury would have reached the same result.
We quote syllabus of People v. Cismadija, 167 Mich. 210;
“In a prosecution for an assault with intent to commit murder, it was error to charge the jury that respondent, who in a dispute with complaining witness, on being attacked by him, shot complaining witness in the scuffle, would have been guilty of murder if the victim; had died and if the other elements of the crime were present; because the record contained no evidence justifying a higher charge than manslaughter.”
And see 16 C. J. pp. 1025, 1043; Gipe v. State, 165 Ind. 433 (75 N. E. 881, 1 L. R. A. [N. S.] 419).
The instruction is erroneous.
The people’s chief witness was a Mrs. Irving, a nurse. It is shown on a motion for a, new trial that she also testified in the separate and later trial of the doctor in the case, who was acquitted. A comparison of her testimony in the two cases shows inconsistencies seriously affecting the credibility of her testimony in the case at bar. In this connection, too, counsel assign error and argue at length that in cross-examination of such witness they were unduly and improperly restricted by the court.
Some of my Brethren have the opinion that the error first above discussed is not of itself sufficient ground for reversal here, but all agree that on the whole record a new trial should be granted.
Judgment reversed. New trial granted. Defendant remanded to the custody of the sheriff.
Bied, C. J., and Sharpe, Steere, Fellows, Wiest, and McDonald, JJ., concurred.
Justice Moore took no part in this decision. | [
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Reid, J.
By their bill of complaint plaintiffs seek to enforce a parol agreement by which defendants were to purchase certain lands at a scavenger sale in the names of plaintiffs, and plaintiffs ask for an accounting. A motion to dismiss the bill for failure to state á sufficient case was granted. From the decree entered accordingly, plaintiffs appeal.
The bill alleges that plaintiffs were owners of the two lots involved, which had been sold by them on land contracts, upon which contracts there were unpaid balances. Plaintiffs claim that they entered into a parol agreement with the defendants on May 17, 1940, whereby defendants agreed to purchase said lots for plaintiffs at the scavenger sale of the State land office board in the names of plaintiffs, and that defendants thereafter did purchase said lots at the scavenger sale but took the title in their own names. The bill further alleges that when plaintiffs became aware of the situation, they remonstrated with defendants. Pláintiffs claim further that in June, 1941, it was agreed that if plaintiffs would repurchase tlie vendees’ interest in lot 10, defendants would convey lot 15 to plaintiffs. Plaintiffs claim they'repurchased the vendees’ interest in lot 10, so informed defendants, and demanded that defendants convey lot 15 to them but that the defendants refused so to do.
• Plaintiffs rely upon their claim that the defendants violated their trust in acquiring title in their own names and refusing to convey title to plaintiffs;
The motion to dismiss is based on the grounds that the agreement relied on by plaintiffs relates to real estate and is unenforceable because it is not in writing; further, that the claim in the bill that defendants are holding the two lots in trust for. plaintiffs, said trust not being evidenced by writing, is invalid under the Michigan statute; and, further, that the agreement counted on by plaintiffs is indefinite and. uncertain and cannot be specifically enforced:
, The opinion of the trial judge was filed January 17, 1945. Evanoff v. Hall, 310 Mich. 487, was decided February 20, 1945. The bill in the Evanoff Case recited a verbal agreement by which defendant agreed to purchase real estate at a scavenger sale for plaintiff, and the bill was filed to compel conveyance of the real estate to plaintiff. In that case we say (p. 492):
“The evidence is convincing that defendant agreed to purchase the lot foi; plaintiff in the event he was unable to attend the scavenger sale. Under such agreement defendant became and acted as plaintiff’s agent. * * * Defendant' cannot invoke the statute of frauds as a defense against his own fraud or to prevent the enforcement of a constructive trust' in plaintiff’s favor.”
Plaintiffs cite the case of Stephenson v. Golden, 279 Mich. 710, in which we say, at p. 749:
‘£ The defense of the statute of frauds is not available to an agent who purchases in his own name, without knowledge or consent of his principal, State tax lands which he has been directed to redeem on behalf of the owner, and such a purchase is a fraud on the principal and will be. governed by the exception to the statute prohibiting resulting trusts. Backus v. Cowley, 162 Mich. 585. Section 12973, 3 Comp. Laws 1929 applies only where the conveyance is made to the alienee by the consent of the party paying the consideration and does not apply in cases where the deed has been taken by mistake or where fraud exists. Stansell v. American Radiator Co., 163 Mich. 528; Thompson v. Marley, 102 Mich. 476. Where a fraud exists, relief is granted under compiler’s section 12975 as an exception to section 12973 which was never intended to legalize proceedings for the benefit of a grantor in fraud of others; and it has no application to a case where one has, taken a deed in his own name in fraud of the rights of another, nor to a case where, though no fraud is designed, the conveyance has been made to some person other than the purchaser without his consent. Fisher v. Fobes, 22 Mich. 454; McCreary v. McCreary, 90 Mich. 478; Connolly v. Keating, 102 Mich. 1. The statute of frauds cannot be relied upon as a protection to wrongdoers.. 27 C. J. p. 307.”
Further, at p. 757:
“It is a general rule:
“ ‘That the agent who has purchased for himself with his own money, where he should have bought for his principal with the latter’s money, may be made a constructive trustee for the principal, if the agent is reimbursed for his expenditures.’ 3 Bogert on Trusts and Trustees (1st Ed.), p. 1534, § 487, and cases cited.”
See, also, DeMallagh v. DeMallagh (also cited as Mallagh v. Mallagh), 77 Cal. 126 (19 Pac. 256).
It is immaterial in this case that the agent received no consideration for acting as agent, and immaterial that he advanced his own money with .which to purchase.
The decree of the trial court dismissing the bill of complaint is reversed and cause remanded for a hearing on the merits. Plaintiffs shall be accorded their right to prove the claimed contractual relations with the defendants. If the evidence is found to support plaintiffs’ claim as to an- agreement, an accounting should follow by plaintiffs for moneys paid out in their behalf by defendants if the equities so require. Costs to plaintiffs.
Stake, C. J., and North, Btjtzel, Bushnell, Sharpe, and Boyles, JJ., concurred. The late Justice Wiest took no part in the decision of this case.
See 3 Comp. Laws 1929, § 13413 (Stat. Ann. § 26.908). — Reporter.
Stat. Ann. § 26.57. — Reporter.
Stat. Ann. § 26.59'. — Reporter. | [
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Boyles, J.
Plaintiffs, as taxpayers and qualified electors of Banks township, Antrim county, filed an information in the nature of quo warranto in the circuit court for Antrim county to test the legality of an election at which a majority of the voters had decided in favor of establishing a township unit school district. The defendants township of Banks and' the Banks township school district filed an answer, to which plaintiffs filed a reply, and the cause came on for trial before the court.
At the outset of the hearing counsel for the defendants orally moved that the writ be quashed and the case dismissed on the ground, among others, that the defendant township school district at the time the action was commenced had not yet become a legal entity. The court held that this raised a question as to the jurisdiction of the court over the school district, granted the motion to dismiss the case as to the school district, and further held that without the school district being a party its right to corporate existence could not be determined and therefore the action should also be dismissed as to the township. From the judgment of dismissal entered thereon the plaintiffs appeal. -
¥e agree with the trial court that the school district was and is a necessary party to the proceeding, and that the objection to jurisdiction of the court over the school district could be raised by oral motion in open court at the trial.
The situation disclosed by the record is as follows :
The election to decide whether a township unit school district should be organized was held August 29, 1944; the present information to test the legality of the election was filed and process issued September 5th; on that date a board of education for the school district had not yet been elected, but it is conceded that an election was held by the school district on September 9th at which a board of education was elected. The statute (2 Comp. Laws 1929, §7131 [Stat. Ann. §15.51]) provides:
“Whenever a majority of the qualified school electors of any organized township present and voting, vote in favor of organizing said township into a single school district, such township shall, after the election of the board of education as hereinafter provided, be a single school district and shall be governed by the provisions of this act.”
. Defendants rely on the above statute and claim that, the court has no jurisdiction over the school district because it was not a school district at the time this information was filed, on September 5th.
Defendants concede' that process was served on the defendant township of Banks on September 18th, and on the Banks township school district September 20th, after it had a legal existence as a corporate entity. Furthermore, the township of Banks and the township school district filed an answer to the information on October 3d, after the school district had become a legal entity. The court had jurisdiction over both defendants at the.time the motion was made and it was error to dismiss the case. We also call attention to the statute (3 Comp. Laws 1929, §14021 [Stat. Ann. §27.665]), which provides:
“No action at law or in equity shall be defeated by the nonjoinder or misjoinder of parties. New parties may be added and parties misjoined may be dropped, by order 'of the court* at any stage of the cause, as the ends of justice may require.”
We have considered the other grounds relied on for dismissal and find them without merit. The judgment is set. aside and the case remanded for further proceedings. Plaintiffs may have costs of this appeal.
Starr, O. J., and North, Butzel, Bushnell, Sharpe, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case, | [
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Butzel, J.
At about noon on a clear day in June, 1943, the driver of plaintiff’s truck was proceeding in a southerly direction down Wiard road, east of the city of Ypsilanti, Michigan, toward the southerly portion of the Eeorse road. The Wiard road running north and south is an inferior .road, but of sufficient width to accommodate two passing cars. There was a gate across Wiard road where it entered the Eeorse road but it was opened and fastened back. It was possible to close off the road. The Eeorse road is a boulevarded and paved double highway with a very wide plot in the center dividing the two portions of the road. The northerly portion is used exclusively for westerly bound traffic and the southerly portion for traffic going east. Near the Wiard road, as it continues beyond the south line of the southerly portion of the Eeorse road, there is a cut-off, consisting of a three-lane highway, that also leads at an angle in a southerly but different direction. TKfe southerly portion of the Eeorse road is a four-lane highway 40 feet in width. The two portions of the Ecorse road are master highways running east and west and accommodate heavy traffic going between Detroit and Ypsilanti. The Wiard road does not run at a right angle with and across the southern portion of the Ecorse road but at a wider angle so there is a distance of 60 feet between the northerly and southerly lines abutting on the Ecorse road, although the southerly portion of the Ecorse road is only 40 feet wide. In referring to the Ecorse road, we shall refer exclusively to the southerly portion or avenue that accommodates the traffic going east. For convenience, we refer to the four lanes of this southerly portion as lane 1, the most southerly 10 feet of the road, lane 2 consisting of the next 10 feet adjoining, and lanes 3. and 4 the next 10 feet respectively.
Plaintiff’s driver was driving a General Motors Truck built in the late twenties. It had been overhauled, repaired and was in good condition. It had a transit mixer mounted on it and was used to carry paving material. The truck with equipment weighed approximately 8 tons without the mixture it was carrying. There is an incline with a fairly steep grade on Wiard road where it reaches the southerly portion of the Ecorse road. Plaintiff’s driver claims that he came to a full stop from 6 to 12 feet before he drove up the incline. Just as he started he looked down the Ecorse road and saw defendant’s Ford truck, which was also heavily loaded with gravel. It was coming from the west and had reached a viaduct between 900 to 1,000 feet to the west from the Wiard road. Plaintiff’s driver testified that he thought he had time to drive his truck across the road before defendant’s truck would reach the intersection, and he placed the truck in “creeper” gear as he started to cross. It took him three or four seconds to get the car started. His car was on the incline, the front about three feet higher than the rear. However, plaintiff’s driver did not see defendant’s truck approaching until he started his truck up the incline. When after a few seconds he finally started, he was going less than four miles an hour, for in order to get up a speed of four miles an hour on a motor of that age, he would have to have the motor warmed up, in gear, and going as fast as it could go. He claimed he had the accelerator of the truck right down to the floor board. Although he saw defendant’s truck approaching at all times, he did not stop even though he could have stopped within a distance of 10 feet. In the meantime, defendant’s driver was rapidly approaching without slackening his speed.
The case was heard without a jury. The trial judge stated at the end of the disputed testimony that plaintiff’s truck was going between 4 and 5 miles an hour and that would make the speed of defendant’s truck between 48 and 60 miles an hour. The testimony does not bear out this statement for according to the admission of plaintiff’s driver, he was going less than 4 or 5 miles an hour, its maximum speed, until he got his truck going at this speed. In figuring that defendant’s truck must have been going from 48 to 60 miles an hour, the judge also arrived at this conclusion from the fact that when the two trucks collided, defendant’s truck, on striking that of plaintiff just behind the cab, shoved it 50 feet sideways along the road. Defendant’s driver claimed that he was going only 35 miles an hour and that he did not see plaintiff’s truck until he was within 15 or 20 feet from it, and that it was crossing the highway at a very rapid speed. Plaintiff’s driver admitted that he did not blow the horn of the truck when he started or proceeded at a slant across the road so as to warn defendant’s driver. The only witnesses to the accident were the respective drivers. There were no obstructions or traffic that prevented a full view by either driver. Defendant’s driver was experienced and subsequently drove a truck for the transportation department of the army and at, the túne of the trial was in the Army Air Force communications system.
Evidently the judge accepted the testimony of plaintiff’s driver in toto and rejected that of defendant. ' He made no allowance for the discrepancies in plaintiff’s testimony. Plaintiff’s driver claims that he thought defendant’s driver was going to make a turn into Wiard road. At the trial plaintiff’s driver testified in much detail that a railroad track ran between the east and west bound lanes of Ecorse road and there was a depression in the Wiard road before coming to the railroad tracks. He stated he stopped for a switch engine and a couple of cars. During the recess, however, he went to the scene of the accident, and after the recess, he testified that there were no railroad tracks between the two lanes of the Ecorse road. While plaintiff’s driver wavered so much in his testimony that it became rather ' difficult to form a precise picture of his version of just what occurred in the short interval, were this not a law case we would express considerable doubt as to his credibility. There is no question but that he saw defendant’s truck approaching and he could have stopped, as he saw it approaching nearer when’ he got on the Ecorse road. He, however, continued without stopping and the accident occurred. Had 'he observed the duty to give a warning with his horn, defendant’s driver might have seen him and avoided the accident, for the latter did not see plaintiff’s truck until he was very close to it. He was watching the three-lane cut-off from which cars might be coming, not the Wiard. road, an inferior road. At the last moment he saw plaintiff’s truck and to avoid a collision he did try to swerve his car and first turned his car into lane 3 and then came back to lane 2, and then into lane 1 where the accident occurred. However, there is no claim of subsequent negligence. We recognize the rule that the, judge had the right to determine the credibility of witnesses. However, accepting plaintiff’s testimony as true, we hold that plaintiff’s driver was guilty of negligence as a matter of law. Even if he did not wait until defendant’s truck had passed Wiard road, he should have stopped his truck when it got onto the southerly portion of Ecorse road. Under all circumstances, he should have blown his horn to warn defendant’s driver, as he was crossing on a slant.
The judge held that defendant was negligent and not entitled to recover under his cross-declaration. Defendant does not appeal from that part of the decision which denies him recovery against plaintiff. He does claim, however, that plaintiff is guilty of contributory negligence as a matter of law.
We have had a number of similar cases within the last few years. Lodato v. Campbell, 284 Mich. 217; Miller v. City of Detroit, 308 Mich. 611. In DiMatteo v. Smith, 309 Mich. 640, we quoted with approval from Stuck v. Tice, 291 Mich. 486, as follows:
“Normally, under conditions such as these, when two cars collide on a bright clear day at the intersection of thoroughfares of equal importance, both drivers are to blame.”
The facts in all the cases set forth in the briefs differ but the general rule remains the same. There are exceptions where one of the drivers suddenly accelerates his speed or without any reason changes the direction of his car. Plaintiff’s truck was approximately 22 feet long and even in a slanting direction it covered more than two of the 10-foot strips of the 40-foot road.
In DeCoopman v. Hammond, 279 Mich. 619, plaintiff was denied recovery in an intersection case that happened at nighttime where there were two cars approaching. Plaintiff saw the lights of defendant’s approaching car and estimated the distance as from 600 to 900 feet away and thought he had time to cross ahead of it and started his car without looking again. He was just over the center of the traffic lane when defendant’s car struck plaintiff’s car. The court said:
“If defendant was exceeding the speed limit, as claimed by plaintiff, such fact cannot be held an excuse of plaintiff’s want of reasonable care.”
Plaintiff attempts to distinguish all the cases heretofore decided from the present one. There is not any doubt that they can be so distinguished but if the driver of plaintiff’s car coming from an inferior road in a mistaken belief that he can cross the master highway or boulevard before defendant’s rapidly-oncoming car reaches him, does not stop, as the defendant’s car keeps getting nearer, but instead proceeds at the rate of four miles an hour, the maximum rate of speed his car is capable of making in the gear in which it was being operated, and defendant’s car approaches without any change of speed while plaintiff’s car is driven without warning of a horn at a slant straight into the path of defendant’s oncoming car, and there are no extenuating circumstances, plaintiff’s driver is also guilty of negligence as a matter of law, and, therefore, plaintiff cannot recover.
Judgment reversed without a new trial. Costs to defendant.
Starr, C. J., and North, Bushnell, Sharpe, Boyles, and Eeid, JJ., concurred. The late Justice • Wiest took no part in the decision of this case'. | [
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Starr, C. J.
Plaintiff Grace Conklin is the widow, and other plaintiffs are the minor children, of Y. Reynold Conklin, who was fatally injured in-,an automobile accident on April 2, 1944.- The deceased and his brother, Lloyd Conklin, were both employed as truck drivers by defendant transport -company. On Saturday, April 1st, the brothers, each driving, a truck loaded with military equipment, left the terminal of the transport company in Lansing, their destination being the Erie proving grounds near Toledo, Ohio. They followed the route of highway No. 127 to Jackson, Nos. 50 ánd 52 to Adrian, No. 56 to Toledo, and highway No. 2 from there to the proving grounds. They arrived at their destination early Sunday morning, their trucks were unloaded, and they started on the return trip to Lansing over the same route. On the way they decided to visit their friend, Ben Burch, who lived on a farm on Tuttle road near Mason, about a mile from highway 127. When they reached the intersection of Tomlinson road and highway 127, Sunday afternoon, they turned west on Tomlin-son and proceeded one mile to Tuttle road. They then turned north on Tuttle and had gone about half a mile, when the brother, Lloyd, who was ahead, saw their friend Burch beside the road and stopped his truck. The truck driven by deceased crashed into the rear of Lloyd’s truck, and deceased sustained injuries „ resulting in his. death a few days later.
Plaintiff Grace Conklin filed application for adjustment of claim. Defendants answered, contending that the deceased’s injuries did not arise out of and in the course of his employment. The matter was heard before a deputy commissioner, who denied compensation. On review the department reversed the deputy and awarded compensation to plaintiffs for total dependency. Having obtained leave, defendants appeal.
Defendants claim that decedent’s deviation from his regular route to visit his friend, Burch, was not within the scope of his employment, and that his fatal injuries while on such deviation did not arise out of and in the course of his employment. The brother, Lloyd, testified that on 10 to 15 previous round trips to the Erie proving grounds they had followed highway 127 between Lansing and Jackson, except that in some instances, when near or en tering Lansing, they had turned off to stop at an eating place. He said that they were paid on a mileage basis, but the record does not show the route or distance used by the company in computing the mileage. He further testified:
“Q. Now when you got to the Erie proving grounds and unloaded your load, what was your job then?
“A. My job was to get our trucks back to Lansing to the Industrial Transport Company terminal. # # *
“Q. Were you given any directions as to the return route to Lansing?
“A. No. * * *,
“Q. Was there any specific'time in which you were to return that truck to the Industrial Transport Company terminal in Lansing?
“A. No. * ' *. *
“Q. On your return route, you came back the same general way?
“A. Yes.
“ Q. * * * Had you ever left any of those highways on your return trip ?
“A. No. * * *
“Q. ' * * * Now when you turned off U. S. 127 what was your purpose?
“A: To visit Ben Burch. * * *
“I remember of asking that we go * * * and see Ben, and my brother agreed to do it. * ■ * *
“Q. And what occurred * * * after you had proceeded a half-mile on Tuttle road?
“A. Well, I did not recognize Ben’s place and went by the place. He stood by the road and * * * as I went by he called to me and I stopped. * * *
“Q. Then what happened?
“A. Well, as to that I can not say except there was a crash. * * * '•
“Q. And what did you find ?
“A. Found my brother smashed, the truck smashed and him in it. * * *
“Q. Now when you * * * turned off 127 one mile to the north (west) and one-half mile to . the west (north), were you or were you not traveling in the' general direction of Lansing and the terminal of the Industrial Transport Company?
“A. That is right. * * *
“ Q. Did you at the time decide what route you were going to follow from Ben Burch’s across to the terminal in Lansing?
“A. No. * * *
“Q. That is the only reason you turned off at Tomlinson'road, to go and1 see Ben Burch? * * *
“A. That is right. * * *
“Q. Were you ever told that you could not drive off that route?
“A. No. # *
“Q. Did you have any business for the employer that would take you over to Ben Burch’s place on this Sunday?
“A. No.”
There was testimony indicating that the routes which the brothers could have taken to the transport company’s terminal in Lansing,' by way of the Burch farm, were from 2 to 4% miles longer than their' regular route, by way of highway 127. In its* opinion awarding compensation the department said:
‘ ‘ The employer had definitely not specified a particular route over which the trip was to be made ; neither had the employer designated any certain time that the trucks should be returned to its terminal at Lansing-. * * * There was no need for haste. * * * At the time of the injury the boys were driving in a northwesterly direction. That was in the direction of thq employer’s terminal. * * * In choosing the route of travel, which undoubtedly they were permitted to do, they could have chosen any one of .several good roads leading from the vicinity of Mason to Lansing. * _ * #
_ “By failure to specify a particular route it would seem the employer impliedly consented that the deceased and his brother could select any feasible route. Under such circumstances there would be no deviation even though the shortest route of travel was not selected. * * * He had only one duty to perform, that is, to bring the empty truck to the Lansing terminal. It was while he was engaged in the performance of that task that the accident occurred.
“We find that deceased was in the course of his' employment when the accident- occurred, and further the accident which caused the fatal injuries arose out of his employment. ’ ’
We cannot agree with the department’s conclusion. The slight deviation from the usual route over highway 127 is not the controlling factor, but rather the fact that deceased made this deviation for the sole purpose of carrying out a personal mission. In other words, the deviation had no connection with the business óf the employer, but was made for the pleasure of deceased. He had departed from the scope of his employment and at the time and place of his accident was engaged in a pleasure trip to visit his friend, Burch. We find no competent and substantial testimony supporting the finding of the department that deceased was acting within the scope of his employment. In the case of Meehan v. Marion Manor Apartments, 305 Mich. 262, we said:
“An accident, to be compensable, must be one arising ‘out of’ as well as -in the course of’ the employment. Appleford v. Kimmel, 297 Mich. 8. 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 there from. See Appleford v. Kimmel, supra; Dent v. Ford Motor Co., 275 Mich. 39; Rucker v. Michigan Smelting & Refining Co., 300 Mich. 668.”
•The present case is controlled by our decision in Jeffries v. Jodawelky, 304 Mich. 421, in which we said:
“If it be assumed that the route'Jodawelky intended1 to take was feasible, though not the shortest, such facts would not fasten liability on the employer if the employee had departed from the scope of his employment and was engaged on business personal to himself. * ■ * “* ,
“The deviation or departure from the business of the master is the important issue, as we pointed out in Irwin v. Williamson Candy Co., 268 Mich. 100, not the geographical deviation from a prescribed or ‘feasible’ route, as the deviation from the route arises as an incident to the departure by the servant from the scope of his employment. A deviation occurs when a route, which might otherwise have been permissible, is selected to carry out a mission personal to the employee.
“Jodawelky testified positively that when he turned west on McG-raw it was for the sole purpose of visiting the girl. If true, he was not engaged in his employer’s business at the time the accident occurred and the employer would be relieved of liability for the resulting injury.”
In the case of Foote v. Huelster, 272 Mich. 194, we said :
“A servant may deviate somewhat from the direct route without releasiilg his employer from liability but, if he turns aside from the business or errand of his master to engage in some purpose of his own or, as in the case at bar, to accommodate a friend, it is more than a mere deviation and severs the relation essential to fasten liability upon his master for his negligence.”
In Kieszkowski v. Odlewany, 280 Mich. 388, 393, we said:
“Failure to specify a particular route does not, of itself, permit a personal use of the vehicle, and unless consent can be implied from some other source, such use is a deviation.”
See, also, Horvath v. Finest Products Co., 270 Mich. 352; Irwin v. Williamson Candy Co., 268 Mich. 100; Nevins v. Roach, 249 Mich. 311; Drobnicki v. Packard Motor Car Co., 212 Mich. 133; Brinkman v. Zuckerman, 192 Mich. 624.
Our decision in Heatherly v. Tri-State Motor Express, 304 Mich. 303, is readily distinguishable from the instant case, because in that case a deviation of not to exceed three miles from the specified route was allowed by the public service commission, and there was no showing that the deceased driver was on a personal mission or business of his own.
We conclude, as a matter of law, that the deceased’s fatal injuries did not arise out of and in the course of his employment. The award of the department is vacated, with costs to defendants.
North, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case.
See 2 Comp. Laws 1929, § 8417, as amended by Aet No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 8417, Stat. Ann. 1943 Cum. Supp. §17.151).—Reporter. | [
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Bushnell, J.
Defendant William G. Federspiel, treasurer of the County of Gratiot, was granted leave to appeal, so that inquiry might be made into the propriety of a writ.of mandamus issued by the circuit court requiring him to credit to the county law library fund of Gratiot county certaim moneys paid him “on account of fines assessed and collected,” as provided in Act No. 180, Pub. Acts 1935, amending 3 Comp. Laws 1929, §15179 (Comp. Laws Supp. 1940, § 15179, Stat. Ann. §27.2224).
The controlling question involved in this appeal 'is the constitutionality of the act just cited. Defendant contends that this act contravenes the Constitution of 1908, art. 11, § 14, which reads:
“The legislature shall provide by law for the establishment of at least one library in each township and city; and all fines assessed and collected in the several counties, cities and townships for any breach of the penal laws shall be exclusively applied1 to the support of such libraries.”
The act which he urges us to set aside reads:
“Every county treasurer shall keep an accurate account of all moneys paid to him on account of fines, penalties, and forfeitures, and shall credit all fines for the violation 'of the penal laws to the library fund and all other fines, penalties and forfeitures to the general fund; and he shall account therefor to the board of supervisors at each annual meeting of such board. And in case of the sale of any real estate upon an execution upon judgment rendered for the breach of any recognizance in any criminal case it shall be the duty of the county treasurer, in case there are no bidders to the full amount of any such judgment or the value of the property advertised1,.to bid off the same; and in case the same shall not be redeemed within the time allowed by law for the redemption thereof, to sell the same for the best price he can obtain therefor, and place the money received in the general fund; Provided, That in counties having a population of not less than fifty thousand inhabitants, and not exceeding five hundred thousand inhabitants, according to the last Federal census, the county treasurer shall credit semiannually all fines, penalties and forfeitures to a fund to be known as the ‘county law library fund,’ up to but not exceeding the sum of one thousand five hundred dollars in any one year, and in all counties having a population of less than fifty thousand inhabitants, the county treasurer shall credit semiannually all. fines, penalties and forfeitures to a fund to be known as the ‘county law library fund,’ up to, but not exceeding, the sum of seven hundred fifty dollars in any one year. All moneys so credited to the county law library fund shall be paid out by the county treasurer upon the order of the circuit or probate judge or judg'es elected in said county for the purpose of establishing and maintaining a law library for the use of the circuit and probate courts of such county and for the officers of such courts and persons having business in such courts: Provided, That all penalties and forfeitures other than those for the violation of penal laws, paid in the superior court of Grand Rapids, shall be paid by the clerk of said court to the city treasurer of Grand Rapids, who shall credit the same to a fund to be known as the ‘superior court law library fund,r up to but not exceeding the sum of one thousand five hundred dollars in any one year. The money so credited shall be paid out only upon order of the judge of the superior court, for the purpose of maintaining the law library for the use of the superior court of Grand Rapids.”
The trial judge posed two questions in his opinion:
“1. Have law libraries been provided for by the legislature ?
“2. Is a law library a library within the meaning of the terms ‘library’ or ‘such libraries,’ as these words are contained in said constitutional provision?”
He then reasoned that if both of these questions can be answered in the affirmative, the act in question is constitutional. He pointed out that the term “library” in the constitutional mandate is not qualified by any adjective, and he determined from ordinary definitions of the word that a “law library” satisfies the mandate. Various conflicting attorney general opinions are referred to in the record, but, as pointed out by the trial judge in an approved quotation from plaintiff’s trial brief:
“A further principle repeatedly restated by our Michigan Supreme Court, is that every statute passed by the legislature is presumed to be consti tutional, and that it is only when invalidity clearly appears that a court will refuse to sustain its validity. It is stated in Cady v. City of Detroit, 289 Mich. 499, 505:
“ ‘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.’
“The legislature has power to adopt a statute, except as it is prohibited by the Constitution; and a statute will not be declared in conflict with the Constitution while serious doubt exists as to such conflict. Attorney General v. State Board of Assessors, 143 Mich. 73. Doubts as to the constitutionality of a statute should be, if possible, resolved in its favor. Bowman v. Wayne Circuit Judge, 214 Mich. 518.
“A statute will not be declared to conflict with the Constitution while serious doubts- exist as to such conflict. Attorney General v. State Board of Assessors, 143 Mich. 73.
“In determining whether a statute is constitutional, the court may not seek for some hidden or abstruse meaning in one or more clauses of the Constitution to annul the law, since to do so would be to encroach upon the power of the legislature and make the Constitution instead of construe it. Bowerman v. Sheehan, 242 Mich. 95 (61 A. L. R. 859).
“In the construction of doubtful statutes all doubt should be resolved in favor of validity when this is consistent. Union Steam Pump Sales Co. v. Secretary of State, 216 Mich. 261.
“A statute must be presumed to be constitutional unless its repugnancy to the Constitution clearly appears. Fremont Canning Co. v. Waters, 209 Mich. 178; Attorney General v. Railway, 210 Mich. 227.”
See, also, Marquardt v. Fisher, 135 Ore. 256, 259 (295 Pac. 499, 77 A. L. R. 265, 269), and Swann & Bellups v. Kidd, 79 Ala. 431, which uphold statutes requiring taxation of costs in each case tried for the maintenance of law libraries.
Defendant argues that if the act is permitted to stand, the legislature can “earmark” all of the moneys from “fines” to the exclusion of “the establishment of at least one library in each township and city. ’ ’ He directs attention to the fact that the constitutional mandate does not provide a rule for apportioning or equalizing moneys among libra-.ries, and that the act diverts moneys to' the ‘ ‘ county law library” to the exclusion of others, and that it is possible thereby to deprive libraries “in bach township and city” "from all financial support. He also attacks the statute as being class, legislation.
Assuming that the legislature should earmark all fines for county law libraries to the detriment'of general libraries, there is no constitutional inhibition on such action. Unless there is a definite constitutional prohibition, we cannot say that the act in question contravenes the mandate of the people. It is not a question of our judgment in the matter, but that of the law makers. Nor can we say that the classification is arbitrary or unreasonable. This statute pertaining to public affairs does not constitute class legislation because such libraries are “for the use of the circuit and probate courts of such county and for the officers of such courts and,persons having business in such courts.”
We are forced to conclude, as did the trial judge, that the statute does not contravene the Constitution of 1908, art. IP, § 14. _.
The order granting the writ of mandamus must be sustained and the writ may issue as directed by the trial judge. A public question being involved, no costs are allowed.
Starr, C.J., and North, Butzel, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case. | [
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Per Curiam.
These consolidated appeals arise out of flooding on residential property located on Rathmor Road in the city of Bloomfield Hills. In Docket No. 275580, plaintiff Marilyn Froling Revocable Living Trust (the Froling Trust) appeals as of right the trial court’s December 21, 2006, order granting the city of Bloomfield Hills (the city) and Alan and Marilynne Kiriluk, Roger and Barbara Smith, and Gregg and Cindi Williams (collectively, the neighbors) summary disposition and the trial court’s ruling that the neighbors were entitled to attorney fees and costs under MCR 2.405. In Docket No. 277438, the Froling Trust appeals as of right the trial court’s March 23, 2007, order awarding the Kiriluks attorney fees and costs. In Docket No. 278383, the Froling Trust appeals as of right the trial court’s May 9, 2007, order awarding the neighbors attorney fees and costs, and the neighbors cross-appeal that order. We affirm in part and reverse in part.
I. BASIC FACTS AND PROCEDURAL HISTORY
A. THE FLOODING OF THE FROLINGS’ PROPERTY
In 1987, Harold Warner owned two adjacent lots on Rathmor Road in Bloomfield Hills, Michigan. Warner lived in a house on one of the lots, lot 6. The other lot, directly to the east, lot 5, was undeveloped. The Kiriluks purchased lot 5 in January 1987. And in June 1987, William and Marilyn Froling purchased lot 6. William Froling, an experienced real estate developer, met with Warner, walked around the property, and inspected the catch basins and water drainage system. The Frolings purchased the property “as is.”
In 1989, the Kiriluks began plans to build a house on their property. Before construction of the Kiriluks’ house, there had been a natural swale on the southwest corner of the Kiriluks’ lot. The swale served to move water away from the Frolings’ property. Engineers hired by the Kiriluks proposed a site plan that took into account the existing natural drainage system, and the city approved the plan. However, during construction, the Kiriluks brought in dirt to raise the height of their property, and during the re-grading of the lot, the Kiriluks filled in the swale, preventing the natural runoff of water from the southeast corner of the Frolings’ property. Despite this alleged deviation from the approved plan, the city issued an occupancy permit for the Kiriluks’ home.
In April 1989, the Frolings began experiencing significant flooding on their property. William Froling testified that during heavy rain that month he witnessed water surging through a culvert constructed under Rathmor Road and flowing onto the south side of the road. The flooding was so severe that the water levels reached the steps of the front and back porches of the Frolings’ home.
From then on, on numerous occasions following periods of heavy rain or spring thaw, substantial amounts of water would pool on the Frolings’ property, particularly on the west and south sides of their home. According to William Froling, the most significant periods of flooding occurred in June 1996, June 1997, June 2001, April and May 2004, and January 2005. During the June 1997 incident, the Frolings’ basement was completely flooded, causing over $20,000 in property damage. According to the Frolings, in addition to the Kiriluks’ construction, re-grading, construction, and re-direction of water flow on other neighboring properties, including those owned by the Williamses and the Smiths, also contributed to the flooding on their property.
In September 1989, William Froling wrote to the city, requesting that it take steps to alleviate any further flooding problems on his property, asserting that the city should have taken proper precautions when it approved the subdivision plan. Notably, despite claiming that Warner “said he never had any serious water problems while he lived there,” Froling indicated that he was put on notice of potential flooding problems at the time he bought the property:
When I bought the house from Mr. Harold Warner, I asked him why he didn’t install lawn sprinklers — and his remark was “Well, live there a year first and I think you will find out you won’t need sprinklers!” Of course, I did not know what he meant.
The city hired an engineering firm to investigate the Frolings’ flooding complaints, and the investigation revealed that 29 acres of the surrounding property drained into the Frolings’ property. (The Frolings also later hired engineers, who determined that 55 acres of the surrounding property drained into their land.) However, the engineers discovered a private drainage system that they thought was probably constructed by the original property owners and was likely the responsibility of the owners of the system.
In November 1989, the city wrote a letter to William Froling, stating that the city’s policy was to not involve itself in storm water damage in existing subdivisions and that it was the various property owners’ responsibility to resolve any storm water drainage problems affecting their property. More specifically, the city explained as follows:
In 1923, when the Donnelly Farms Subdivision Plat was approved, drainage easements or other utility easements were not required by Bloomfield Township, which granted the plat approval. By today’s standards, a retention basin with adequate holding capacity and regulated release of storm water would be required. The City of Bloomfield Hills does not involve itself in storm water drainage concerns, except where new subdivisions are being considered or the property being developed is in a floodplain ....
Historically, as property developed, each developer was responsible for their storm water runoff. In the 1960’s, the City’s concern was to prevent any storm water from entering the sanitary sewer system and this is a continuing concern to the City of Bloomfield Hills and other governmental agencies today.
In addressing stormwater [sic] drainage, each property owner is responsible for their own specific problems — some involve trenching or berming, others with their own storm sewer and culverts, and some have installed retention ponds on their property. Any of these methods implemented, have been at the affected property owner’s expense. In some instances, where the drainage solution of one property owner detrimentally affects another, civil action in court results in a workable solution.
In your subdivision,... your property is on the lowest elevation. My predecessor, who served the City of Bloomfield Hills for the past forty years, told me he had suggested to the Homeowners Association at one time, that they acquire the vacant lot as a retention pond for stormwater [sic] runoff. However, there was no interest in that proposal, as no one was having drainage problems and the value and location of the property warranted development.
I am not aware of any other stormwater [sic] runoff problems in your subdivision and the solution to your specific problem would appear to be best resolved by accommodating the existing flows of water around your property so as not to affect your home. You can accomplish this by one of the above mentioned methods without involving your neighbor’s property; although, you could take this before your Homeowner Association to determine if sufficient interest exists to explore other engineering solutions.
In October 1990, the city wrote to the Frolings again, stating that the cost of installation of any storm drain system to alleviate storm water runoff on private land would be the property owners’ responsibility.
In 1995, the Smiths’ basement flooded with water. The Smiths blamed the flooding on water coming from the Bloomfield Hills Country Club (the Country Club) and complained to the Country Club’s management. The Smiths and the Country Club ultimately agreed on a solution: installation of an underground pipe extending from the golf course directly into a pond on the Smiths’ and the Williamses’ properties. However, this “solution” increased the flow of water onto the Frolings’ property. The additional amount of water flowing into the pond forced the pond to overflow with greater frequency. The water coming out of the pond would flow through a drainage ditch that the city had created on the north side of Rathmor Road and then through the culvert in the road onto the lower lying property on the south side of Rathmor Road.
In June 1997, the Frolings’ property was flooded again, causing a substantial amount of property damage. After that flood, William Froling wrote to the city commissioners, requesting that they consider construction of a storm water drainage system. In that letter, Froling stated that a neighbor had told him that Warner used a canoe to get off the property after a heavy rain. Froling claimed that the city erred in approving the Kiriluks’ construction and that the city had “confiscated” his property for a retention pond.
The city again hired engineers to study the drainage problems. And in October 1997, the engineers reported their findings to the city’s manager, stating that “the existing drainage system is not of a size large enough to adequately handle the upstream drainage during larger storm events.” The engineers drew up a proposed storm drainage system to “be constructed by the home owner.” The engineers estimated that the cost of the project would be approximately $210,000. Residents of Rathmor Road then signed a petition, requesting that the city construct a storm sewer consistent with the engineers’ plan and proposing that the construction be paid through general tax revenues. The city rejected the proposal.
In March 2000, the Frolings retained a realtor to market their home. However, the realtor advised them that the flooding problems had to be resolved before the home could be sold. The realtor also advised them that, absent a permanent correction of the flooding problems, the property was “ ‘not saleable’ as is.”
In September 2000, after more flooding, William Froling wrote a letter to the city mayor, explaining that during this most recent incident, water was pouring onto their land from every direction, from the east and the Kiriluks’ lot, from the north through the culverts under Rathmor Road, and from the golf course to the south. Froling proposed the creation of a special assessment district to construct the storm water system that the city’s engineers had proposed. The city responded that a special assessment would not be established without a petition signed by area residents.
In 2002, the Country Club added multiple pipes to its course for additional drainage. The pipes tied directly into the pipes that already extended to the Smith/Williams pond.
In May 2004, rain fell consistently over an 18-day period, and the Frolings’ property was flooded again. The Frolings had to hire workers to pump the floodwater away from their house.
In September 2004, the city’s engineers submitted another report to the city, suggesting alternative proposals to remedy the storm water drainage problems. The engineers estimated that the updated cost of construction was approximately $350,000. The engineers explained, however, that “these options are to take water away from Mr. Froling’s property at property lines or corners,” but they would “do nothing for the water that drains from his property toward the home which is at the lowest point of his 2.5 acre lot.” According to the engineers, “To create positive drainage around his home, substantially] more work on his property would need to be done.”
B. THE FROLING TRUST’S COMPLAINT
On November 8, 2004, the Froling Trust filed the present suit, alleging that, among others, the city and the neighbors had taken actions that increased the flow of the water entering the Frolings’ property. More specifically, the Froling Trust asserted claims of nuisance and trespass against the neighbors. The Froling Trust also asserted a claim of intentional trespass against the Kiriluks. With respect to the city, the Froling Trust asserted claims of gross negligence and taking by inverse condemnation for not preventing the flooding.
C. THE NEIGHBORS’ OFFER TO STIPULATE
On January 7, 2005, the neighbors served on the Froling Trust an offer to stipulate the entry of a judgment, offering to resolve all the claims made against them for a total of $100. The offer stated that it was being made “to compromise and settle disputed claims and should not be construed as an admission of any allegation or liability on any claim” and that “no judgment entered pursuant to this offer shall operate as an adjudication of the merits of any allegation or claim.” The Froling Trust did not respond.
D. THE CITY’S MOTION FOR SUMMARY DISPOSITION
In August 2005, the city moved for summary disposition under MCR 2.116(C)(7), (8), and (10), arguing that the governmental immunity doctrine barred the Froling Trust’s claims. The city further argued that it was entitled to summary disposition of the Froling Trust’s inverse condemnation claim because there was no evidence that the city had taken any direct action against the Frolings’ property. In support of its motion, the city presented an affidavit from its engineer, attesting that “[a]ny alleged drainage problems on the Froling property is [sic] not the result of any City sewer or water drainage system.”
After hearing oral arguments on the motion, the trial court granted the city’s motion for summary disposition. The trial court ruled that the doctrine of governmental immunity barred the Froling Trust’s claims against the city. The trial court also agreed with the city that the Froling Trust’s inverse condemnation claim failed because the complaint did not allege any direct action that the city took against the Frolings’ property. Accordingly, the trial court dismissed the city from the action with prejudice.
E. THE NEIGHBORS’ MOTIONS FOR SUMMARY DISPOSITION
In March 2006, the neighbors moved for summary disposition under MCR 2.116(C)(7), (8), and (10), argu ing that the three-year period of limitations, which began to run at the time that the Frolings first noted flooding on their property in 1989, barred the Froling Trust’s trespass and nuisance claims. In connection with this argument, citing Garg v Macomb Co Community Mental Health Services, they further contended that the “continuing wrongs” doctrine has been abrogated in Michigan.
After hearing oral arguments on the motion, the trial court first found that a claim for flooding, like the Froling Trust alleged, accrues at the time the land was first visibly damaged. The trial court explained that damages that accrue at a later date do not renew the limitations period or give rise to a new cause of action. Quoting this Court in Horvath v Delida, the trial court stated that “ ‘a continuing wrong is established by continual tortious acts, not by continual harmful effects from an original, completed act.’ ” The trial court then concluded that the evidence established that the Frolings knew that the land was first visibly damaged in 1989; thus, the court stated that it needed to address the evidence that supported a continuing act separately with regard to each defendant. The trial court ruled that the Froling Trust had failed to produce evidence that the Kiriluks and the Williamses made any recent changes to the land in the three years preceding the complaint that could give rise to a finding of a new tortious act. With respect to the Smiths, however, the trial court concluded that a genuine issue of material fact remained regarding whether the Smiths’ installation of a new outlet pipe on their property had contrib uted to flooding on the Frolings’ property. Accordingly, the trial court granted summary disposition to the Kiriluks and the Williamses, but denied summary disposition with regard to the Smiths.
The Smiths later renewed their motion for summary disposition under MCR 2.116(C)(7) and (10), again arguing that the statute of limitations barred the Froling Trust’s claims. Following a hearing on the motion, the trial court granted the Smiths’ motion because further evidentiary discovery supported a conclusion that there was no genuine issue of material fact that the Smiths took no action on their property within the applicable three-year period.
F. THE NEIGHBORS’ MOTIONS FOR COSTS AND ATTORNEY FEES
The Kiriluks moved for partial costs and attorney fees in the amount of $35,861.27 with regard to their representation by Potter, DeAgostino, Campbell & O’Dea (the Potter firm), the second of two law firms that represented the Kiriluks. The Kiriluks argued that the Froling Trust’s claims were frivolous and that the Kiriluks were entitled to fees and costs under the offer of judgment rule. The Kiriluks also moved for costs in the amount of $146,793.44 with regard to their representation by Honigman Miller Schwartz and Cohn LLP (Honigman Miller), the law firm that initially represented the Kiriluks and also jointly represented the Williamses and the Smiths. The Kiriluks again asserted the offer of judgment rule in support of their motion. Also citing the offer of judgment rule, the Williamses moved for costs in the amount of $89,953.28 with regard to their representation by Honigman Miller.
The trial court held that the Kiriluks and the Williamses were entitled to an award of attorney fees and costs, but the trial court reserved its ruling on the amount of the award pending an evidentiary hearing. After holding an evidentiary hearing on the motion for attorney fees and costs, the trial court awarded the Kiriluks attorney fees and costs in the amount of $35,861.27 related to the Potter firm’s representation. The trial court also awarded attorney fees and costs in the amount of $91,076.99 for the Kiriluks and $79,702.66 for the Williamses related to Honigman Miller’s representation.
The Smiths, citing the offer of judgment rule, also moved for costs in the amount of $158,630.94 with regard to their representation by Honigman Miller. The trial court held that the Smiths were entitled to an award of attorney fees and costs, and after holding an evidentiary hearing, the trial court awarded $140,181.32 to the Smiths for Honigman Miller’s representation.
G. THE PRESENT APPEALS
In January 2007, the Froling Trust appealed the trial court’s orders granting the city and the neighbors summary disposition and the trial court’s orders ruling that the neighbors were entitled to attorney fees and costs under MCR 2.405. In May 2007, the Froling Trust appealed as of right the trial court’s order awarding the Kiriluks attorney fees and costs related to the Potter firm’s representation. And in May 2007, the Froling Trust appealed as of right the trial court’s order awarding the neighbors attorney fees and costs related to Honigman Miller’s representation, and the neighbors cross-appealed.
II. MOTIONS FOR SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Under MCR 2.116(C)(7), a party may move for summary disposition on the ground that a statute of limitations bars the claim. MCR 2.116(C)(7) also provides that a party may move for summary disposition on the ground that governmental immunity bars the claim. Under MCR 2.116(C)(8), a parly may move for summary disposition on the ground that the opposing party has failed to state a claim on which relief can be granted. And under MCR 2.116(C)(10), a party may move for summary disposition on the ground that there is no genuine issue with respect to any material fact and the moving party is entitled to judgment as a matter of law.
Although review under MCR 2.116(C)(8) allows only consideration of the pleadings, our review under MCR 2.116(C)(7) and (10) also must include consideration of all documentary evidence submitted by the parties. More specifically, under MCR 2.116(C)(7), the plaintiffs well-pleaded factual allegations, affidavits, or other admissible documentary evidence must be accepted as true and construed in the plaintiffs favor, unless the movant contradicts such evidence with documentation. Under MCR 2.116(C)(10), the moving party must specifically identify the undisputed factual issues and support its position with documentary evidence. The trial court must consider all the documentary evidence in the light most favorable to the nonmoving party.
We review de novo a trial court’s rulings on a motion for summary disposition, whether a cause of action is barred by a statute of limitations, and the applicability of governmental immunity.
B. THE NEIGHBORS’ MOTIONS FOR SUMMARY DISPOSITION
1. STATUTE OF LIMITATIONS AND THE CONTINUING WRONGS DOCTRINE
Claims of property damage are subject to a three-year period of limitations. Specifically, MCL 600.5805 states:
(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.
(10) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.
And, according the accrual statute, the period of limitations begins to run from the time the claim accrues, which is “the time the wrong upon which the claim is based was done regardless of the time when damage results.”
The Michigan Supreme Court, however, has long recognized an exception to the application of a statutory period of limitations “[w]here there are continuing wrongful acts . . . .” Under the doctrine, sometimes referred to as the “continuing wrongs doctrine,” when the nuisance is of a continuing nature, the period of limitations does not begin to run on the occurrence of the first wrongful act; rather, the period of limitations will not begin to run until the continuing wrong is abated. This Court later confirmed that the doctrine applied in nuisance and trespass cases.
In light of this doctrine, the Froling Trust contends that when it filed this case in November 2004, it presumed that the continuing wrongs doctrine barred the application of the pertinent statute of limitations. The Froling Trust goes on to concede, however, that in May 2005, the Michigan Supreme Court issued its opinion in Garg v Macomb Co Community Mental Health Services.
In Garg, the Michigan Supreme Court overruled Sumner v Goodyear Tire & Rubber Co with respect to its application of the “continuing violations” doctrine. In Sumner, the Court followed federal precedent and applied a “continuing violations” doctrine to a civil rights employment discrimination action. But, in Garg, the Court held that the doctrine was contrary to the statute of limitations in MCL 600.5805(10). According to the Court, the Legislature expressly chose to limit commencement of claims for adverse employment actions to within three years of each action by a defendant:
Section 5805 does not say that a claim outside this three-year period can be revived if it is somehow “sufficiently related” to injuries occurring within the limitations period. Rather, the statute simply states that a plaintiff “shall not” bring a claim for injuries outside the limitations period. Nothing in these provisions permits a plaintiff to recover for injuries outside the limitations period when they are susceptible to being characterized as “continuing violations.” To allow recovery for such claims is simply to extend the limitations period beyond that which was expressly established by the Legislature.[ ]
The neighbors argue that the holding in Garg completely abrogated the use of the continuing wrongs doctrine in Michigan. However, as the Froling Trust points out, Garg and Sumner dealt with employment discrimination claims. And, the Froling Trust notes, in Attorney General ex rel Dep’t of Environmental Quality v Bulk Petroleum Corp, this Court appeared to suggest in a footnote that Garg’s abrogation of the “continuing wrongs” doctrine was limited to the civil rights context. In Bulk Petroleum Corp, after stating that the continuing wrongs doctrine has only been applied in the limited context of nuisance, trespass, and civil rights cases, the Court then noted in a footnote that Garg abrogated the use of the doctrine in “claims filed under the Civil Rights Act, MCL 37.2101 et seq., and the Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq.” Therefore, the Froling Trust argues, Garg was a limited decision and does not apply to bar this present cause of action for nuisance and trespass.
The law relating to the current viability of the continuing wrongs doctrine in the context of nuisance and trespass claims is hopelessly confused. Notably, this confusion might be due to the fact that several different terms have been used to refer to the same doctrine, including, for example, “continuing wrongs doctrine,” “continuing violations doctrine,” “continuing-wrongful-acts doctrine,” and “continuing tort doctrine.”
Since the issuance of Garg, numerous panels of this Court have had the opportunity to consider continuing wrongs arguments. However, most of these decisions have been unpublished, and unpublished deci sions have no precedential value. Besides the Bulk Petroleum Corp panel, only three other panels of this Court have issued published opinions addressing the doctrine.
Six months before this Court released Bulk Petroleum Corp in September 2007, a panel of this Court decided and issued an unpublished decision in Schaendorf v Consumers Energy Co in March 2007. Schaendorf was approved for publication in May 2007. In that case, this Court cited Garg and concluded that “the continuing-wrongful-acts doctrine is no longer viable with respect to claims arising beyond the period of limitations.” Accordingly, the panel held that the trial court erred by not dismissing the plaintiffs’ nuisance claim.
On April 15, 2008, a panel of this Court decided and issued an unpublished opinion in Dep’t of Environmental Quality v Waterous Co. Waterous Co was approved for publication on June 24, 2008. In that case, the panel concluded that the continuing wrongs doctrine applied to an action alleging a recurrent nuisance.
Meanwhile, on April 22, 2008, another panel of this Court issued a published opinion in Terlecki v Stewart. In Terlecki, this Court addressed the plaintiffs’ claims for nuisance and trespass as a result of flooding on their property. The defendants argued that the plaintiffs’ claims were time-barred because the conduct that allegedly caused the flooding occurred more than three years before the plaintiffs filed their lawsuit in October 2005. The plaintiffs countered that the continuing wrongs doctrine saved their claims. The defendants responded, arguing first that Horvath made clear that the doctrine did not apply when the alleged wrongful acts are finite and only continuing harmful effects remained. The defendants then argued alternatively that, in light of Garg, the continuing wrongs doctrine no longer existed in Michigan.
In considering the parties’ arguments, the Terlecki panel examined Garg and concluded that Garg was not limited to discrimination cases because in that case the Court was looking at the plain text of the limitations and accrual statutes when it held that the “ ‘the doctrine has no continued place in the jurisprudence of this state.’ ” Therefore, applying Garg, the Terlecki panel concluded that the continuing wrongs doctrine did not apply and that the timeliness of the plaintiffs’ claims needed to be determined under the plain text of MCL 600.5805(10) alone. The Court additionally concluded that, even applying the continuing wrongs doctrine, the defendants had correctly argued that, under Horvath, the plaintiffs’ claim was barred when the last cognizable tortious act occurred more than three years before the plaintiffs filed their lawsuit, regardless of any subsequent harmful effects.
As can been seen from the line of recent published cases addressing the continuing wrongs doctrine, there is a clear conflict regarding its continued viability in cases alleging nuisance and trespass. Despite this conflict, we follow the holding and rationale of Schaendorf and Terlecki to the extent that they adopt Garg as applying beyond the context of civil rights claims to completely abrogate the continuing wrongs doctrine in trespass and nuisance actions as well. Under the “first out” rule of MCR 7.215(J)(1), we must follow the rule of law established by a prior published opinion of this Court issued on or after November 1, 1990. Therefore, the Bulk Petroleum Corp and Waterous Co panels should have followed Schaendorf or declared a conflict under MCR 7.215(J)(2). Because neither Bulk Petroleum Corp nor Waterous Co declared such a conflict, Schaendorf is the controlling precedent, and we are obligated to reject Bulk Petroleum Corp and Waterous Co to the extent that they conflict with the complete abrogation of the continuing wrongs doctrine in the jurisprudence of this state.
The Froling Trust also argues that Garg and its progeny should not apply because they were not issued until after the Froling Trust filed this cause of action. The neighbors point out that decisions are retroactive unless “ ‘exigent circumstances’ justify the ‘extreme measure’ of prospective-only application.” The Froling Trust nevertheless counters that MCL 600.5869 precludes us from following Garg. MCL 600.5869 states that “ [a]ll actions and rights shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions or right of entry.” According to the Froling Trust, “the law under which the right accrued” in this case was the continuing wrongs doctrine.
However, the Michigan Supreme Court recently abolished another common-law modification of the Legislature’s statutory scheme of periods of limitations and, in so doing, gave its decision retroactive application despite the language of MCL 600.5869. In Trentadue v Buckler Automatic Lawn Sprinkler Co, the Court considered whether the common-law discovery rule (which allowed tolling of the statutory period of limitations when a plaintiff could not have reasonably discovered the elements of a cause of action within the limitations period), could toll the period of limitations under MCL 600.5805(10), or whether MCL 600.5827, the accrual statute, alone governed the time of accrual. The Court ultimately concluded that MCL 600.5827 alone controlled “because the statutory scheme is exclusive and thus precludes this common-law practice of tolling accrual based on discovery in cases where none of the statutory tolling provisions apply.” In so holding, the Court specifically rejected the application of MCL 600.5869 to allow lower courts to continue using the discovery rule. The Court explained that MCL 600.5869 “does not require use of the rule .... Rather, the rule is judge-made law that has been applied on a case-by-case basis.” Moreover, allowing lower courts to continue using the discovery rule “would render [the Court’s] opinion paradoxically meaningless because [its] holding would not apply to events occurring any time before the day [it] decided this case; although a claim that accrues tomorrow will be subject to the relevant statutory period and exceptions, a claim that accrued in 1986 may be brought at any time in the future, indefinitely.” After noting the general rule of retroactive application, the Court then explained:
Even when a decision meets the threshold criterion for prospective application because it clearly establishes a new principle of law, we must consider: “(1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the administration of justice.” Here, prospective-only application is inappropriate. First, the very purpose of our holding is to respect limits the Legislature has placed on plaintiffs’ abilities to revive suits relying on events occurring in the distant past; prospective application is therefore directly opposed to our resolve to honor the Legislature’s policy choice. Moreover, as we already explained, the very nature of the discovery rule defies any reliance on its operation. Finally, the administration of justice is not significantly affected because the rights and interests of plaintiffs and defendants are opposed in these matters; although plaintiffs may be denied relief for stale claims, defendants and the judiciary are relieved from having to defend and decide cases based on deteriorated evidence.[ ]
The same rationale applies with regard to the continuing wrongs doctrine. The purpose of the holdings in Garg and its progeny was to respect the limits the Legislature has placed on a plaintiffs ability to revive a suit by relying on events occurring in the distant past for which only the damaging effects remain. Further, the nature of the continuing wrongs doctrine, in direct conflict with the statute of limitations and the accrual statute, defies any reliance on its operation. Finally, just as with the discovery rule, the administration of justice is not significantly affected because the rights and interests of plaintiffs and defendants are opposed in these matters. Although plaintiffs may be denied relief for stale claims, defendants and the judiciary are relieved from having to defend and decide cases based on deteriorated evidence.
Accordingly, we conclude that Garg and its progeny completely and retroactively abrogated the common-law continuing wrongs doctrine in the jurisprudence of this state, including in nuisance and trespass cases. Therefore, the Froling Trust’s arguments fail to the extent that it relies on that doctrine to save its claims.
2. APPLYING THE PLAIN LANGUAGE OF MCL 600.5805(10)
The Froling Trust nevertheless argues that, even in the event that we interpret Garg as requiring the application of the plain language of MCL 600.5805(10), the trial court erred by dismissing its claims because, under subsection 10, a plaintiff may file a claim anytime within three years following the “time of the ... injury . ...” And the Froling Trust claims that the flooding in May 2004, the time of the Froling Trust’s last alleged “injury,” would be the proper point at which to begin the running of the period of limitations. According to the Froling Trust, caselaw interpreting the accrual statute confirms that the period of limitations begins to run when damage is done, rather than when the conduct transpired.
As stated, MCL 600.5805 provides:
(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued, to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.
(10) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property. [Emphasis added.]
And, according to the accrual statute, a period of limitations begins to run from the time the claim accrues, which is “the time the wrong upon which the claim is based was done regardless of the time when damage results.”
In Trentadue, the Court explained that because under MCL 600.5827 “ ‘[t]he wrong is done when the plaintiff is harmed rather than when the defendant acted,’ ” the statute was “perfectly consistent” with MCL 600.5805(10). This statement stems from the Court’s decision in Stephens v Dixon, in which it stated: “We have held that the term ‘wrong,’ as used in the accrual provision, refers to the date on which the plaintiff was harmed by the defendant’s negligent act, not the date on which the defendant acted negligently.” In other words,
[o]nce all of the elements of an action for . . . injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run. Later damages may result, but they give rise to no new cause of action, nor does the statute of limitations begin to run anew as each item of damage is incurred.[ ]
The operation of these principles can be seen in a case with similar factual circumstances. In Terlecki, the defendants’ last negligent conduct was in 2001 when they capped a pipe running through a culvert near the plaintiffs’ property. That same year, the plaintiffs began experiencing flooding and tree damage on their property. Applying the plain language of MCL 600.5805(10) and MCL 600.5827 to the plaintiffs’ cause of action for nuisance and trespass, this Court concluded that, despite the fact that the plaintiffs continued to suffer flooding and tree damage after 2001, the last possible date that the plaintiffs’ claim could have accrued was in 2001, when both the last conduct and first, subsequent corresponding injury occurred. Ac cordingly, contrary to the Froling Trust’s interpretation of the statutes, its claims are still time-barred.
Here, William Froling’s testimony revealed that the Kiriluks’ last action with regard to drainage of water on their lot was in November 1998. (Throughout their brief the Kiriluks claim that the last act was done in 1997; however, William Froling testified that, to his knowledge, the Kiriluks had not “done anything else with regard to [their] property .. . since November 18th of 1998.”) The Smiths’ last allegedly wrongful conduct occurred in 1995 or 1996, and the Williamses’ last allegedly 'wrongful conduct occurred in 1997. Therefore, William Froling’s testimony established that the last act of any of the three neighboring defendants at issue occurred in 1998. And the Froling Trust alleged that the Frolings next experienced flooding in June 2001. Therefore, it was during this June 2001 flooding that the Froling Trust suffered its first harm from the neighbors’ last negligent act. In other words, after the last of the neighbors allegedly acted negligently in 1998, the harm first occurred, or accrued, in June 2001. Accordingly, the subsequent flooding in May 2004 could only have been the continued result of the neighbors’ completed conduct. Subsequent claims of additional harm caused by one act do not restart the claim previously accrued. For the purposes of accrual, there need only be one wrong and one injury to begin the running of the period of limitations. In sum, the accrual of the claim occurs when both the act and the injury first occur, that is when the “wrong is done.”
Here, the Froling Trust’s last claim first accrued with the flooding in June 2001. Thus, to be timely, the Froling Trust needed to file its claim by June 2004. But because it did not file its claim until November 2004, the Froling Trust’s claims were time-barred. Accordingly, we conclude that, applying the plain language of MCL 600.5805(10), the trial court properly granted the neighbors summary disposition on the ground that the Froling Trust’s claim was untimely.
3. DISCOVERY NOT YET COMPLETE
The Froling Trust argues that the trial court erred by dismissing the Froling Trust’s claims against the Smiths and the Williamses because it was not given the opportunity to depose them regarding whether they approved the Country Club’s actions in 2001 and 2002 of tying its drainage pipes to the pipes that flowed into the Smith/Williams pond.
Generally, summary disposition under MCR 2.116(C)(10) is premature if it is granted before discovery on a disputed issue is complete. However, the mere fact that the discovery period remains open does not automatically mean that the trial court’s decision to grant summary disposition was untimely or otherwise inappropriate. The question is whether further discovery stands a fair chance of uncovering factual support for the opposing party’s position. In addition, a party opposing summary disposition cannot simply state that summary disposition is premature without identifying a disputed issue and supporting that issue with independent evidence. The party opposing summary disposi tion must offer the required MCR 2.116(H) affidavits, with the probable testimony to support its contentions.
Here, the Froling Trust argues that it should have been allowed to conduct further discovery so that it could determine whether the Smiths and the Williamses had any involvement in the Country Club’s 2001 and 2002 conduct of tying in pipes to flow into the Smith/Williams pond. However, the Froling Trust has not shown that there was a fair chance that further discovery would have revealed any evidence of the Smiths’ or the Williamses’ involvement with the Country Club and its conduct. Significantly, the Froling Trust fails to offer an affidavit that supports the contention that any such evidence even exists. Indeed, to the contrary, the Smiths and the Williamses have provided affidavits in which they attest that they had no knowledge of the Country Club’s conduct.
Accordingly, we conclude that the trial court did not err by granting the Smiths and the Williamses summary disposition because there is no merit to the Froling Trust’s argument that summary disposition was premature.
C. THE CITY’S MOTION FOR SUMMARY DISPOSITION
1. GOVERNMENTAL IMMUNITY
The Froling Trust argues that the trial court erred by dismissing the Froling Trust’s claims against the city on the basis of governmental immunity because the trial court failed to consider the “sewage disposal system event” exception to governmental immunity. However, as the city argues, and as counsel for the Froling Trust conceded at oral argument, the Froling Trust waived this argument regarding the sewage disposal system event exception by not properly preserving it in the lower court proceedings. Accordingly, we conclude that there is no merit to the Froling Trust’s argument that the trial court erred by granting the city summary disposition on the ground of governmental immunity.
2. INVERSE CONDEMNATION
The Froling Trust argues that the trial court erred by dismissing the Froling Trust’s inverse condemnation claim against the city because it erred by determining that the Froling Trust failed to allege any affirmative action by the city directed at the Frolings’ property.
A taking for purposes of inverse condemnation means that governmental action has permanently deprived the property owner of any possession or use of the property. When such a taking occurs, the Michigan Constitution entitles the property owner to compensa tion for the value of the property taken. A plaintiff alleging inverse condemnation must prove a causal connection between the government’s action and the alleged damages. For a taking to occur, “there must be some action by the government specifically directed toward the plaintiffs property that has the effect of limiting the use of property.” In other words, the plaintiff must prove that the government’s actions were a substantial cause of the decline of the value of the plaintiffs property and must establish that the government abused its legitimate powers in affirmative actions directly aimed at the plaintiffs property. In determining whether a taking occurred, the form, intensity, and deliberateness of the governmental actions toward the injured party’s property must be examined.
For example, in Attorney General v Ankersen, this Court concluded that the state’s licensing of a person or corporation to conduct a private business could not be regarded as a taking of private property for public use and that the state’s alleged misfeasance in licensing and supervising the operation did not constitute affirmative actions directed at the property. Likewise, in Hinojosa v Dep’t of Natural Resources, this Court concluded that the state’s failure to compensate neighboring property owners for damage caused by fire that spread from a state-owned abandoned house was not an unconstitutional taking because the state took no direct action toward the plaintiffs’ properties.
Here, the Froling Trust argues that the city has taken the Frolings’ property for public use because the city has refused to construct a drainage system to cure their private water problems and because the city approved the Kiriluks’ construction plans. However, the Froling Trust’s claim must fail because it has not alleged any affirmative action by the city directly aimed at the Frolings’ property. Further, because the Froling Trust’s claim is without merit, the trial court did not err by not giving the Froling Trust another opportunity to amend its complaint.
Accordingly, we conclude that the trial court did not err by dismissing the Froling Trust’s inverse condemnation claim because there is no merit to its claim since it failed to allege any affirmative action by the city directed at the Frolings’ property.
III. ATTORNEY FEES AND COSTS
A. STANDARD OF REVIEW
We review for clear error the findings of fact underlying an award of attorney fees. “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake was made.” We review de novo underlying questions of law, and we also review de novo the interpretation and application of the offer of judgment rule.
B. THE NEIGHBORS’ ENTITLEMENT TO ATTORNEY FEES AND COSTS UNDER MCR 2.405
Generally, attorney fees are not recoverable as an element of costs or damages unless expressly allowed by statute, court rule, common-law exception, or contract. Under MCR 2.405, the offer of judgment rule, a party may serve on his or her opponent a written offer to stipulate the entry of a judgment. The purpose of the offer of judgment rule is to avoid protracted litigation and encourage settlement. If the offeree rejects the offer and the adjusted verdict is more favorable to the offeror than the average offer, the offeror may recover actual costs from the offeree. An offer is rejected if not accepted as required by the court rule, including the failure to respond. A judgment resulting from a grant of summary disposition is a verdict for purposes of imposing sanctions pursuant to MCR 2.405.
The Froling Trust argues, in pertinent part, that MCR 2.405(A)(1) was not properly applied in this case because the neighbors’ offer was not an offer of judgment as the court rule defines, but rather an offer of settlement. The neighbors’ offer stated:
Pursuant to MCR 2.405, Defendants Alan Kiriluk and Marilynne Kiriluk, Roger B. Smith and Barbara Smith, and Gregg Williams and Cindi Williams offer to resolve all of the claims brought in Plaintiff’s Complaint by entry of a judgment in the amount of $100.00 against Defendants Alan Kiriluk and Marilynne Kiriluk, Roger B. Smith and Barbara Smith, and Gregg Williams and Cindi Williams and in favor of Plaintiff. This offer is made to compromise and settle disputed claims and shall not be construed as an admission of any allegation or liability on any claim. Further, no judgment entered pursuant to this offer shall operate as an adjudication of the merits of any allegation or claim.
This Court has explained that an offer of settlement is not the same as an offer of judgment.
An agreement to settle does not necessarily result in a judgment. Although it usually results in a stipulated order of dismissal with prejudice, such an order does not constitute an adjudication on the merits. It merely “signifies the final ending of a suit, not a final judgment on the controversy, but an end of that proceeding.” The plain language of MCR 2.405(A)(1) clearly requires an offer of judgment, not just an offer to settle.[ ]
“Unlike the traditional settlement process that involves negotiations between the parties as well as compromise, an offer of judgment is a unilateral attempt to conclude a lawsuit without necessarily exercising arms length negotiations.”
[An] MCR 2.405 offer of judgment is more akin to adjudication and entry of judgment based on the merits.
[A]n offer of judgment more nearly emulates a judgment after a trial rather than a form of settlement.... [T]he key defining point is that private party settlement or mediation involve collective consideration of the facts favoring each party, discussion of the issues, arms-length negotiation and compromise, and contemplation of both entry of judgment and dismissal of the action, whereas an offer of judgment is a unilateral act seeking final resolution of a controversy with sanction of a court by entry of an enforceable judgment. This unilateral act results from a party’s independent evaluation of the merits of the case with an eye toward complete resolution of the matter.[ ]
“[A] judgment entered pursuant to the acceptance of an offer of judgment under MCR 2.405 functions as a full and final adjudication on the merits.. . .” Further, “[r]es judicata applies to consent judgments.”
Here, the record demonstrates that the neighbors’ offer was a unilateral attempt, based on their independent evaluation of the merits of the case, to conclude the lawsuit without the need for engaging in arms-length negotiation and compromise. And the neighbors clearly offered to resolve the pending claims for a sum certain “by entry of a judgment in the amount of $100.00 against” them. However, this was not the complete offer. Rather, the following conditions were attached: “This offer is made to compromise and settle disputed claims and shall not be construed as an admis sion of any allegation or liability on any claim. Further, no judgment entered pursuant to this offer shall operate as an adjudication of the merits of any allegation or claim.”
The effect of these conditions leaves open the possibility of future lawsuits because the language effectively bars the application of res judicata in the future. What the neighbors were seeking was not truly entry of a “judgment” as contemplated by MCR 2.405(A)(1), which judgment has all the attributes of a judgment after full litigation, is considered a final adjudication on the merits, and implicates the doctrine of res judicata. The neighbors’ offer was in actuality a disguised attempt simply to enter a stipulated order of dismissal. The offer did not reflect a willingness to stipulate the entry of a real judgment. Rather, the offer only reflected a willingness to pay the Froling Trust $100 without the strings or attributes of a true judgment being attached. We therefore conclude that the offer failed to meet the requirements of MCR 2.405(A)(1). It would undermine the function of MCR 2.405 to allow a defendant to offer an entry of a judgment but condition such offer on the judgment not having the effect of an ordinary judgment on the merits.
Accordingly, we conclude that the trial court erred by concluding that the neighbors were entitled to an award of attorney fees and costs under MCR 2.405.
C. THE FROLING TRUST’S REMAINING ARGUMENTS
Given our conclusion on the Froling Trust’s argument raised in Docket No. 275580, that the trial court erred by awarding attorney fees and costs to the neighbors under MCR 2.405, we conclude that the trial court similarly erred by awarding attorney fees and costs in Docket No. 277438. Therefore, we need not further address the Froling Trust’s arguments in Docket No. 277438 regarding the trial court’s award of attorney fees and costs, specifically with respect to the Kiriluks, including the portion awarding more than $35,000 in attorney fees to the Kiriluks for the Potter firm’s representation. Because we also conclude that the trial court similarly erred by awarding attorney fees and costs in Docket No. 278383, we need not further address the Froling Trust’s arguments in Docket No. 278383 regarding the trial court’s award of attorney fees and costs with respect to the neighbors, including the portion awarding more than $310,000 in attorney fees to Honigman Miller.
D. THE NEIGHBORS’ ARGUMENTS ON CROSS-APPEAL
Given our conclusion on the Froling Trust’s argument raised in Docket No. 275580, that the trial court erred by awarding attorney fees and costs to the neighbors under MCR 2.405, we need not further address the Smiths’ and the Williamses’ arguments on cross-appeal in Docket No. 278383 regarding the trial court’s award of attorney fees and costs to them. Similarly, we need not further address the Kiriluks’ arguments on cross-appeal in Docket No. 278383, regarding the trial court’s award of attorney fees and costs to them.
Affirmed in part and reversed in part. No taxable costs pursuant to MCR 7.219, neither party having prevailed in full.
In June 1988, the Frolings deeded their home to the Froling Trust, the named plaintiff in these consolidated appeals.
These other parties are not part of these appeals.
Garg v Macomb Co Community Mental Health Services, 472 Mich 263; 696 NW2d 646 (2005), amended 473 Mich 1205 (2005).
Horvath v Delida, 213 Mich App 620, 627; 540 NW2d 760 (1995) (emphasis in Horvath).
MCR 2.405.
MCR 2.116(G)(5); Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999); Johnson v Detroit, 457 Mich 695, 701; 579 NW2d 895 (1998).
MCR 2.116(G)(5); Maiden, supra at 119; Smith v Kowalski, 223 Mich App 610, 616; 567 NW2d 463 (1997); Gortney v Norfolk & W R Co, 216 Mich App 535, 538-539; 549 NW2d 612 (1996).
MCR 2.116(G)(3)(b); Maiden, supra at 120.
MCR 2.116(G)(4); Maiden, supra at 120.
Tillman v Great Lakes Truck Ctr, Inc, 277 Mich App 47, 48; 742 NW2d 622 (2007).
Colbert v Conybeare Law Office, 239 Mich App 608, 613-614; 609 NW2d 208 (2000).
Baker v Waste Mgt of Michigan, Inc, 208 Mich App 602, 605; 528 NW2d 835 (1995).
MCL 600.5827.
Defnet v Detroit, 327 Mich 254, 258; 41 NW2d 539 (1950).
Horvath, supra at 626; Hodgeson v Genesee Co Drain Comm’r, 52 Mich App 411, 413; 217 NW2d 395 (1974).
Moore v City of Pontiac, 143 Mich App 610, 614; 372 NW2d 627 (1985) ; Heisler v Rogers, 113 Mich App 630, 636; 318 NW2d 503 (1982).
Garg, supra.
Id. at 266, 284.
Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986) .
Id. at 536.
Garg, supra at 282, 284-285, 290.
Id. at 282.
Attorney General ex rel Dep’t of Environmental Quality v Bulk Petroleum Corp, 276 Mich App 654, 667 n 3; 741 NW2d 857 (2007).
Bulk Petroleum Corp, supra at 667 n 3.
See Sumner, supra at 524.
Edwards v 17th Dist Court, unpublished opinion per curiam of the Court of Appeals, issued July 31, 2007 (Docket Nos. 269664 and 269873); Dedivanaj v DaimlerChrysler Corp, unpublished opinion per curiam of the Court of Appeals, issued June 21, 2007 (Docket No. 266769); Nelski v Ameritech, unpublished opinion per curiam of the Court of Appeals, issued May 10, 2007 (Docket No. 273728); Romeo Investment Ltd v Michigan Consolidated Gas Co, unpublished opinion per curiam of the Court of Appeals, issued May 1, 2007 (Docket No. 260320); Schultz v Dep’t of Environmental Quality, unpublished opinion per curiam of the Court of Appeals, issued February 20, 2007 (Docket No. 271285); Pueblo v Crystal Lake Improvement Ass’n, unpublished opinion per curiam of the Court of Appeals, issued February 13, 2007 (Docket No. 263231); Ramanathan v Wayne State Univ Bd of Governors, unpublished opinion per curiam of the Court of Appeals, issued January 4, 2007 (Docket No. 266238); Hill v PBG Michigan, LLC, unpublished opinion per curiam of the Court of Appeals, issued October 10,2006 (Docket No. 268692); Hicks Family Ltd Partnership v 1st Nat’l Bank of Howell, unpublished opinion per curiam of the Court of Appeals, issued October 3, 2006 (Docket No. 268400); Ferguson v Hamburg Twp, unpublished opinion per curiam of the Court of Appeals, issued August 8,2006 (Docket No. 267597); Wilkerson v Univ of Michigan, unpublished opinion per curiam of the Court of Appeals, issued July 25, 2006 (Docket No. 265220); Somers v Cowell, unpublished opinion per curiam of the Court of Appeals, issued June 27, 2006 (Docket No. 259598); Allen v Estate of Dr Paul Jerome Treusch, unpublished opinion per curiam of the Court of Appeals, issued April 20, 2006 (Docket No. 259737); Hughes v Gen Motors Corp, unpublished opinion per curiam of the Court of Appeals, issued March 7, 2006 (Docket No. 263688); Detroit Edison Co v Augustin, unpublished opinion per curiam of the Court of Appeals, issued February 2, 2006 (Docket No. 256728); Spink v Macsteel Michigan, unpublished opinion per curiam of the Court of Appeals, issued December 22, 2005 (Docket No. 263140); Commercial Coin Laundry Sys v McGraw, unpublished opinion per curiam of the Court of Appeals, issued December 20, 2005 (Docket No. 256026); Mitchell v Policherla, unpublished opinion per curiam of the Court of Appeals, issued November 15, 2005 (Docket No. 255476); Greenshields v Plymouth Charter Twp, unpublished opinion per curiam of the Court of Appeals, issued August 4, 2005 (Docket No. 261544); Shepherd v Gen Motors Corp, unpublished opinion per curiam of the Court of Appeals, issued July 26, 2005 (Docket No. 260171); Beauchamp v Ford Motor Co, unpublished opinion per curiam of the Court of Appeals, issued May 24, 2005 (Docket No. 256175).
See MCR 7.215(C)(1).
Schaendorf v Consumers Energy Co, 275 Mich App 507; 739 NW2d 402 (2007).
Id. at 517.
Id.
Dep’t of Environmental Quality v Waterous Co, 279 Mich App 346; 760 NW2d 856 (2008).
Id. at 383-386.
Terlecki v Stewart, 278 Mich App 644; 754 NW2d 899 (2008).
Id. at 646-647.
Id. at 646.
Id. at 650.
Id. at 651, citing and quoting Horvath, supra at 627 (“ ‘[A] continuing wrong is established by continual tortious acts, not by continual harmful effects from an original, completed act.’ ”) (emphasis in Horvath).
Terlecki, supra at 651-652.
Id. at 654, quoting Garg, supra at 290.
Terlecki, supra at 657-658.
Id. at 656-657.
Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378, 400; 738 NW2d 664 (2007) (citation omitted).
Id. at 382.
Id. at 389.
Id. at 399.
Id. at 400 (emphasis in original).
Id.
Id. at 400-401 (citation omitted).
MCL 600.5827.
Trentadue, supra at 387 n 8, quoting Boyle v Gen Motors Corp, 468 Mich 226, 231 n 5; 661 NW2d 557 (2003), citing Stephens v Dixon, 449 Mich 531, 534-535; 536 NW2d 755 (1995).
Stephens, supra at 534-535, citing Connelly v Paul Ruddy’s Equip Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972).
Connelly, supra at 151.
Terlecki, supra at 647.
Id.
Id. at 657-658.
See MCL 600.5805(1) (specifically referring to the when “the claim first accrued”) (emphasis added).
Village of Dimondale v Grable, 240 Mich App 553, 566; 618 NW2d 23 (2000).
Id.
Bellows v Delaware McDonald’s Corp, 206 Mich App 555, 561; 522 NW2d 707 (1994); see also MCR 2.116(H)(1) (“A party may show by affidavit that the facts necessary to support the party’s position cannot be presented because the facts are known only to persons whose affidavits the party cannot procure.”).
Coblentz v City of Novi, 475 Mich 558, 570-571; 719 NW2d 73 (2006) (concluding that the plaintiffs could not complain that summary disposition was premature because they did not offer the required MCR 2.116[H] affidavits indicating the probable testimony of witnesses whose affidavits in support of the plaintiffs’ contentions could not be procured).
MCL 691.1401; MCL 691.1407; Jackson Co Drain Comm’r v Village of Stockbridge, 270 Mich App 273, 284; 717 NW2d 391 (2006); Warda v Flushing City Council, 472 Mich 326, 331-332; 696 NW2d 671 (2005); Maskery v Univ of Michigan Bd of Regents, 468 Mich 609, 613-614; 664 NW2d 165 (2003); Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595; 363 NW2d 641 (1984).
MCL 691.1416; MCL 691.1417; Wesche v Mecosta Co Rd Comm, 480 Mich 75, 84 n 10; 746 NW2d 847 (2008); Linton v Arenac Co Rd Comm, 273 Mich App 107; 729 NW2d 883 (2006).
Charles Murphy, MD, PC v Detroit, 201 Mich App 54, 56; 506 NW2d 5 (1993).
Jack Loeks Theatres, Inc v Kentwood, 189 Mich App 603, 608; 474 NW2d 140 (1991), vacated in part on other grounds 439 Mich 968 (1992).
Heinrich v Detroit, 90 Mich App 692, 698; 282 NW2d 448 (1979).
Charles Murphy, supra at 56.
Heinrich, supra at 700.
Id. at 698.
Attorney General v Ankersen, 148 Mich App 524, 561-562; 385 NW2d 658 (1986).
Hinojosa v Dep’t of Natural Resources, 263 Mich App 537, 548-550; 688 NW2d 550 (2004).
Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 660; 213 NW2d 134 (1973) (stating that a court need not entertain a futile amendment).
Taylor v Currie, 277 Mich App 85, 99; 743 NW2d 571 (2007).
Solution Source, Inc v LPR Assoc Ltd Partnership, 252 Mich App 368, 381-382; 652 NW2d 474 (2002).
Hines v Volkswagen of America, Inc, 265 Mich App 432, 438; 695 NW2d 84 (2005).
Castillo v Exclusive Builders, Inc, 273 Mich App 489, 492; 733 NW2d 62 (2007).
Haliw v Sterling Hts, 471 Mich 700, 707; 691 NW2d 753 (2005); Dessart v Burak, 470 Mich 37, 42; 678 NW2d 615 (2004); Fleet Business Credit, LLC v Krapohl Ford Lincoln Mercury Co, 274 Mich App 584, 589; 735 NW2d 644 (2007).
MCR 2.405(B).
Hanley v Mazda Motor Corp, 239 Mich App 596, 603; 609 NW2d 203 (2000).
MCR 2.405(D); Freeman v Consumers Power Co, 437 Mich 514, 516; 473 NW2d 63 (1991).
MCR 2.405(C)(2); Best Financial Corp v Lake States Ins Co, 245 Mich App 383, 388; 628 NW2d 76 (2001).
MCR 2.405(A)(4)(c); Freeman, supra at 518.
Haberkorn v Chrysler Corp, 210 Mich App 354, 378; 533 NW2d 373 (1995).
Id. at 378 (citation omitted).
Hanley, supra at 604.
Id. at 606.
Id. at 606.
Ditmore v Michalik, 244 Mich App 569, 576; 625 NW2d 462 (2001).
See MCR 2.405(A)(1) (“ ‘Offer’ means a written notification to an adverse party of the offeror’s willingness to stipulate to the entry of a judgment in a sum certain, which is deemed to include all costs and interest then accrued.”) (emphasis added). | [
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McDonald, J.
This action was brought to recover the sale price of a fur coat which was sold to the defendant’s wife and charged to him on the 15th day of August, 1921. The defendant is a dentist engaged in the practice of his profession in the city of Detroit, from which he derives a net income of $350 a month. At the time the coat was purchased he and his wife, Hilda Manthey, were living apart. Divorce proceedings were pending. It was the doctor’s claim that he had furnished his wife all necessaries suitable.to his social standing and financial worth, and that, under the circumstances, she had no authority to pledge his credit for the coat in question. The jury gave the plaintiff a verdict for $613.35. A motion for a new trial was made and denied. The defendant brings error, alleging that the verdict is contrary to law and against the great weight of the evidence.
If a husband fails in his duty to provide his wife with the necessaries of life, she may pledge his credit therefor, and, if she does so, the law presumes that it was done with his assent. This presumption does not arise, however, where the parties are not living together. Neither does it arise where the articles purchased are not of ordinary household or family use. For instance, from the purchase by the wife of a diamond ring or a $500 fur coat, though under some circumstances they might be properly classed as necessaries, there would arise no presumption that they were purchased with the husband’s assent. The question of prior dealings between the parties, in which the husband paid similar bills charged to him, would affect the matter of presumption, but the testimony in that regard is too indefinite and unsatisfactory to be of any value. We then have a case in which, while the husband and wife were not living together, the wife pledged his credit for articles of merchandise that were not of the ordinary necessaries. In such a case there is no presumption that the husband assented to the purchase, and the burden of proof is upon the plaintiff to show that he furnished necessaries and under such circumstances as to render the defendant liable. People v. Kellogg, 205 Mich. 482.
There are three elements of the plaintiff’s case, all of which he was required to establish by a preponderance of the evidence. They are, first, that he sold the coat on defendant’s credit; second, that the defendant had refused or neglected to provide suitable wearing apparel for his wife; and third, that the fur coat was one of the necessaries. The first element is not disputed. In the presentation of proofs, but little attention was given to the second element of the plaintiff’s case, but counsel for the defendant submitted a request covering that question. The court did not give it but instructed the jury in a way that made defendant’s liability depend solely on whether the coat came within the class denominated as necessaries. He said:
“The question is one clearly and fully for the jury to determine. First, was the coat purchased; Second, was the coat of the kind and material that would comport with Oscar Manthey’s income and with the station in life which he himself assumed, and which we assume that he had designed his wife to take.”
As bearing on his liability the defendant was entitled to have submitted to the jury the question as to whether 'he had been guilty of neglect of duty in refusing to supply his wife with suitable wearing apparel. If it had been left to them the jury might rightly have said that the failure to provide his wife with a fur coat in the summer time was not a neglect of duty on the part of the husband. It may be said that there was no evidence to justify the submission of that question to the jury. But in that event, the burden of proof being with the plaintiff, the defendant would have been entitled to a directed verdict.
In regard to the evidence the record is very unsatisfactory. The wife was not sworn and no inquiry was made of defendant by either counsel as to how he was providing for his wife at the time she pledged his credit for the coat. He volunteered the statement that he was paying her alimony. He was not examined as to this statement, and no resort was had to the court records to verify or to dispute it. This statement, together with the fact that ordinarily suitable' support does not require the furnishing of a fur coat in the summer time, is some evidence that the husband was not neglecting his duty in the matter of providing necessaries. At least there is no showing to the contrary. This fur coat was bought on the 15th of August, five days after the wife had been served with a summons in divorce proceedings. It is plain that she had no need for such a coat at that time, and that in purchasing it on her husband’s credit she was merely trying to get all she could from him. The plaintiff is suing in her right and his position is no stronger than hers. If it can be said that this case presents any question for a jury, it should have been submitted to them with full instructions as to defendant’s rights and liability. We think the court erred in his charge, as we have herein stated, and also in refusing defendant’s request placing the burden of proof on the plaintiff. For this and the further reason that we think the verdict contrary to law and the weight of the evidence, the judgment should be reversed. The law applicable to the facts here involved will be found in Clark v. Cox, 32 Mich. 204; People v. Kellogg, 205 Mich. 482; and Bergh v. Warner, 47 Minn. 250 (50 N. W. 77, 28 Am. St. Rep. 362).
The judgment is reversed, and a new trial granted. The defendant will have costs.
Bird, C. J., and Snow, Wiest, and Clark, J., concurred with McDonald, J. | [
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WIEST, J.
While passing from a street car to the street curb, plaintiff was struck by an automobile owned and being used by defendant John F. Stahelin and driven by defendant Hattie Stahelin, his daughter, and received injuries. This suit was brought to recover damages. Plaintiff had verdict and judgment and defendants review by writ of error.
Defendants insist that plaintiff was guilty of contributory negligence and their motion for a directed verdict on that ground should have been granted. Plaintiff claimed she got off the trailer of.the street car and looked for oncoming traffic, saw an automobile approach and come to a stop, and then she started for the curb and was struck just before she reached it. Defendants claimed that plaintiff got off the street car trailer, the car then started and she ran directly in front of the automobile; that they saw her at all times, reduced the speed of the automobile to about 10 miles per hour and then put on the brakes and endeavored to save her from injury but struck her with a fender. The evidence presented an issue of fact for the jury and not of law for the court.
.The purpose of requiring automobiles to stop, when about to overtake a street car 'standing to take on or let off passengers, is to safeguard human life, and the restraint is not lifted with the starting of the street. car but remains until travel can be resumed with safety to persons in the street needing to reach the street curb.
The circuit judge instructed the jury that plaintiff eould not recover, if her own want of care contributed to the accident, unless her danger was discovered by defendants in time to have prevented the accident if reasonable care had been exercised. Defendants’ testimony justified submission of the question of discovered negligence and the instruction given sufficiently presented such issue and precluded consideration of concurrent negligence.
There was medical evidence, apart from the hypothetical question, from which the jury could find the injuries were permanent. The hypothetical question was, possibly, too highly colored, but it is well to remember that before the jury could consider the answer every assumed fact therein stated had to be found true under the evidence. We spend no more time upon this subject, because the hypothetical question can be eliminated and still leave sufficient evidence to support submission of the question of permanent injury to the jury.
Exclamations of pain, if any, while being examined by a doctor in preparing for the trial were inadmissible, but existing conditions calculated to produce pain and suffering could be shown. The doctor laid before the jury the examinations and tests he made and said he found marked soreness and rigidity around the sacral iliac joint which impaired movement, and plaintiff's “turning on my table at my request, and also on attempting to rotate the sacral iliac joint-by grasping both bones with one of my hands and telling the patient to attempt to do this motion; it caused her intense pain.” We do not think this testimony rests upon exclamations made by plaintiff, and, therefore, within the rule of exclusion, but shows a'condition of soreness and rigidity, necessarily occasioning intense pain in attempting a bodily movement.
We find no reversible error and the judgment is affirmed, with costs to plaintiff.
Bird, C. J., and Sharpe,. Snow, Steere, Fellows, Clark, and McDonald, JJ., concurred. | [
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SNOW, J.
Plaintiff had verdict against the defendant for $20,000 for breach of promise to marry. This verdict was reduced by the trial judge to $6,500. The only error urged is the refusal to grant a new trial for the reasons, first: That the verdict is against the great weight of the evidence, and second: That it is excessive. While we have carefully examined the record, which is voluminous, it will be unnecessary herein to more than refer to the more important events in an effort to determine whether or not the verdict should be disturbed for the reasons assigned by the defendant. The parties are both natives of Greece. Plaintiff came to Detroit from her native land in September, 1921. The defendant had been in Detroit for some time previous, and was engaged in the fur business with his brother under the firm name of Zissis Brothers. Plaintiff’s brother worked for defendant, who frequently visited him at his home. Testimony was offered by the plaintiff to the effect that on one of these visits defendant saw a picture of her and admired it, and that he urged her brother to bring her to the United States, and stated that if he was favorably impressed he would marry her. After plaintiff arrived in this country she came to live "with her brother in Highland Park, and there defendant met her. They became friendly, he took her for automobile rides and to places of amusement and embraced her many times. Plaintiff further claims that in September, 1922, the defendant asked her to marry him, saying he had obtained her brother’s permission, and she accepted his proposal and it was arranged they, would be married the following June. Plaintiff also claims that in March, 1922, after defendant had had dinner at her house, he asked her to go to the Addison hotel to dance, but that instead he took her to a hotel on Second boulevard where he lived; that they went up to his room on the third floor where he embraced and kissed her and forced her to have sexual relations with him, which caused her to become pregnant. She claims he took her home at 3 o’clock in the morning, where he admitted to her sister-in-law what he had done, and promised her he would marry plaintiff. She claims she consulted physicians later to find out her condition, and when defendant believed she was pregnant he told her to drown herself, although he had been protesting along that he would marry her.
She was corroborated in much of her testimony by others. Her sister-in-law, Angeline Populos, testified to the occasion when it is claimed defendant brought her home after having ravished her. She testified defendant cried and told her he had forced the plaintiff and that he would marry her, and not to tell her brother about it. He told her not to worry about the plaintiff being pregnant as the marriage would fix everything all right. Her brother also corroborated her testimony as to the desire of defendant to have her come to the United States, and his activities in getting her here. He testified to the affection of defendant for plaintiff, and that defendant told him he would marry her if he were given permission to take her out when he wanted to.
The defendant denied practically all of the material things testified to by plaintiff and her witnesses. He disclaimed any interest in or love for the plaintiff; denied he ever promised to marry her or urged that she be brought to this country; denied he saw her picture until after her arrival; denied he took her automobiling or to places of amusement or ever demonstrated any affection for her. He admits calling at her house to take her to the Addison, but says he did so at her invitation. He admits they went to his hotel and to his room and had sexual intercourse, but he insists it was with her consent, and that at no time did she object or protest, nor was he required to use any force whatever. He claims she made improper advances to him and told him of improper relations she had with other men. He claims that before the plaintiff came to this country her sister-in-law told him she was going to marry her to Harry of the El-Roy Lunch.
Defendant offered testimony of other men who visited plaintiff at her home during the time she claims she was keeping company with defendant; also testi mony that plaintiff had told others of her affairs with other men; also testimony of her immodest behavior on the boat coming over, and her statements that she had a man in Athens she was going to marry; that she had told she did not intend to marry the defendant, and that she had a sweetheart by the name of John Fix, and had spent the night with him, and that he had loved her, and showed a picture of herself in a night gown, and that she had other lovers. Defendant also offered testimony to the effect that she had admitted she was not forced by defendant; that she told she had a miscarriage as a result of her intercourse with the defendant. Testimony was also offered of other acts of impropriety by the plaintiff, and facts were testified to that were inconsistent with the claim of the plaintiff.
The above, in substance, is the testimony bearing upon the respective claims of the parties. Defendant’s counsel, in his brief, ridicules the plaintiff’s testimony and points out that her conduct was not consistent with her claims. While this argument was proper here, under the assignments of error, it was also for the jury and was doubtless indulged in in full measure upon the trial of the case.
A careful and complete consideration of the record gives us no room for concluding that the verdict is against the great weight of the evidence, and we are impelled to the same conclusion arrived at by the learned trial judge which he states in his opinion on the motion for a new trial in the following language:
“There are many inconsistencies in the testimony of the plaintiff and she is contradicted in many particulars by the defendant. It is difficult to reconcile some of her testimony with the testimony of reputable and disinterested witnesses sworn by the defendant. The discrepancies, however, have to do with collateral matters and incidents bearing upon her claim of rape, and the pregnancy which she claims resulted. On the claim that defendant promised to marry her, she is corroborated by her brother and sister-in-law, and while it is said that these witnesses are not worthy of belief, their credibility wag a question for the jury. The court is not impressed that the verdict is against the weight of the evidence on the main issues in the case.”
Is the verdict excessive? This case was twice tried before a jury. The first verdict was in the sum of $15,000. A new trial on the ground of newly-discovered evidence was granted, and on the second trial the jury found for the plaintiff a verdict in the sum of $20,000, which was reduced to $6,500 by the trial court. The jury was instructed very plainly that the question of damage for the alleged assault upon her must not be considered as she had a separate cause of action therefor. But for fear the instructions may have been ignored a most substantial reduction in the amount of the verdict was made. Defendant admitted he and his brother had a business worth $40,000, and that in 1922 his income was $7,500. Some evidence was also offered to the effect that defendant had claimed he was worth $100,000. It cannot be said the verdict was excessive.
Judgment affirmed, with costs to plaintiff.
Bird, C. J., and Sharpe, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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"Wiest, J.
Plaintiff was a street worker for the city of Detroit. August 14, 1928, a wagon injured his foot. Upon his application he had an award of weekly payments. He executed a settlement receipt, which was filed with the department of labor and industry. April 16,1931, he applied for further compensation which was denied and no appeal taken. September, 1931, plaintiff filed another petition for compensation, alleging that: “Since May 20, 1931, injury has become worse and shows no signs of healing; petitioner suffers greater pain and is far less able to get around than he was on said date.” November 16, 1931, further compensation was denied and an appeal taken to the full board. January 28, 1932, the full commission found that on April 16, 1931, plaintiff filed a petition claiming permanent disability because of a chronic ulcer on his leg, and stated:
“Before plaintiff can recover he must show that his condition became worse since the award of May 31, 1931. Plaintiff is at present disabled according to all the medical testimony. * * *
“There were but two medical witnesses familiar with plaintiff at the time of the hearing on the first petition for further compensation, one was plaintiff’s own witness, Dr. Harry H. G-oldberg, and the other was defendant’s witness, Dr. E. Yonderheide. Doctor Vonderheide was at one time on the staff of the Receiving Hospital and was the ward physician on October .15, 1928, at which time plaintiff was admitted to the Receiving Hospital, and had occasion to treat him. It was his opinion that the plaintiff’s leg was just the same as it was in May last and that there had been no improvement in the same, he having made his last examination on September 24, 1931, while the doctor admitted the man was not able to work.
“Plaintiff called as a witness Dr. Harry Goldberg who last saw plaintiff on the 20th day of October, 1931, and when asked what was the condition of the leg at that time replied:
“ ‘A. Seems not to progress like it ought to. The healing is retarded.’
“And that it has become worse in the last few months.
“It is not enough to show that plaintiff is disabled. His disability must have some causal connection with his industrial accident. * * * While plaintiff’s doctor testifies that his condition is worse, he does not testify that his disability is any greater now than it was then. We think we must assume from the former award and the testimony in the instant case, that plaintiff is disabled and is no better, had no connection with his industrial accident. ’ ’
And the full commission denied further compensation.
In June, 1933, another petition for further compensation was filed and, upon hearing, denied. Prom this an appeal was taken and an award of compensation made by the commission. This is an appeal from that award and, it is claimed, there was no ■ showing that the original injury had flared up or there was any causal connection between present disability and the injury.
Plaintiff is now about 80 years of age and his present troubles are varicose veins and ulcers.
Two doctors testified; the one called by plaintiff thought it possible the ulcers were caused as a result of the accident; the other, called by defendant, examined plaintiff in October, 1931, and then found an ulcer, and examined him again in July, 1933, and found no material change except “a small ulceration on the external aspect,” •which could not have been the result of an accident five years earlier.
The findings of fact by the commission, if supported by evidence, are final and, though we may not be en rapport therewith, we cannot substitute our judgment in place thereof. This means, however, there must be sufficient evidence to support the findings of the commission. The board must-be able to point to the evidence justifying a particular finding of fact and we, in turn, may review the evidence and determine whether the finding was justifiable. In making findings of fact the commission should consider the preponderance of evidence but, upon review, we cannot employ that test. A possibility is not enough; it must be at least a reasonable probability and rendered such by disclosed facts and circumstances.
Plaintiff testified that his condition was worse than at the time his former application was denied but this in no way established causal connection between the ulcers and previous injury, nor does it add probability to the mere possibility of such connection.
An examination of the record fails to disclose evidence justifying the award.
The award is vacated, with costs to defendant.
Nelson Sharpe, C. J., and Potter, North, Fead, Btjtzel, Btishnell, and Edward M. Sharpe, JJ., concurred. | [
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North, J.
This is a suit for damages for alleged false imprisonment. Upon trial before jury the defendants had verdict and judgment. Plaintiff has appealed. Reversal is sought because of four alleged errors in the rulings of the trial court as to the admissibility of testimony, because the court erred in charging the jury: “There is no malice shown in this case,” and also in charging that the burden of proof was upon plaintiff. Also as a reason in support of the appeal it is asserted that the verdict was against the great weight of the evidence.
Plaintiff alleges that she was unlawfully imprisoned in the jail of Ottawa county from September 16 to 19, 1932. At that time defendant Cornelius Steketee was sheriff of-Ottawa county. There seems to have been serious domestic trouble between plaintiff and her husband. Each contemplated instituting proceedings in the probate court of Ottawa county to have the other adjudicated an insane person. Plaintiff visited the probate court September 16th and insisted that because of fears of her husband she should be cared for. Plaintiff testified that on the 16th she went to the county seat “to see about getting a divorce. I abandoned publicly to the men the matter of inquiring into my husband’s insanity. # * * Absolutely the only thing I asked the probate court officers or demanded to know of them was how to go about getting a divorce from my husband. I told them I would stay under their roof until I found out how to go about getting a divorce. I meant the court house roof. * * * I had abandoned all idea of having his (Mr. Baker’s) insanity examined into by the court.” Plaintiff went into the office of Dr. Ten Have, the county health officer. She testified that she stated to the doctor: “I stay right here until you advise me what to do. * * * The doctor kindly asked me ‘where would you want to go? We have no place here like the juvenile home for you. ’ ’ ’ Plaintiff responded that she preferred any place to the home of her husband and she thereupon voluntarily accompanied the deputy sheriff to the jail, having previously stated to the doctor: “I am staying under the Ottawa county roof until I know what I can do.” Concerning this last utterance she was asked:
“Q. You meant the j ail.
“A. I thought I would stay possible for about two hours somewhere in Ottawa county, and they would tell me to go about and help myself.
“Q. When you said you were going to stay until this was settled, or until you found out what you wanted to know, you meant at the county jail, that is where you proposed and expected to stay, is that what you mean?
“A. I don’t know; I know I never expected to be locked in.”
Plaintiff remained at the jail from Friday until Monday. She claims that she was involuntarily detained during this period in a locked cell. On the other hand the defendant asserts that she remained voluntarily and the cell occupied by her was locked only at night. The issue of fact thus presented was submitted to the jury in the manner disclosed by the following quoted from the judge’s charge:
“If you believe from the testimony given here, that the plaintiff, Mrs. Baker, went to the jail and to the cell and stayed there during all the time she was there of her own free will and consent, and did not at any time express to the sheriff or his deputies a wish to leave, then you must find for the defendant and your verdict will be, no cause of action.
“If you find that Mrs. Baker went to the jail or to this cell of her own free will, but later changed her mind and wished to leave and expressed her wish to the sheriff or one of his deputies, and was not allowed to do so and was kept there against her will; or, if you find that Mrs. Baker did not go to the cell knowing that she was to be locked in, and after she was locked in objected to it and did not stay there of her own free will, then you must find for the plaintiff.”
On the issue thus submitted the jury found against plaintiff’s contention.
We find no reversible error in the rulings on admissibility of evidence. While in the jail plaintiff telephoned to friends. Plaintiff’s counsel, referring to this telephone conversation, asked one of these friends while testifying for plaintiff: “What did she (plaintiff) want you to do?” It does not appear that defendant or one of his deputies heard the telephone conversation. The objection that the question called for hearsay was sustained. Evidently the question also called for the conclusion or opinion of the witness. The ruling was proper. Again objection was sustained to testimony as to what was said in a conversation between one of plaintiff’s witnesses and a stenographer in the probate office. Neither plaintiff nor defendant or any of defendant’s deputies was present. Clearly this was hearsay and properly excluded. The other rulings of which appellant complains were as to matters which were either immaterial or that were covered by testimony given.
The circuit judge was correct in charging the jury that plaintiff had the burden of establishing her case by preponderance of the evidence.
There was no prejudicial error in the charge of the court wherein it was stated: ‘‘There is no malice shown in this case.” Regardless of the correctness or incorrectness of this statement it did not harm plaintiff because at most “malice,” if any, had a bearing only upon the amount of damages to be awarded in case plaintiff prevailed.. The jury found plaintiff was not unlawfully detained and therefore did not have occasion to consider or determine the amount of damages to be awarded. We cannot agree with appellant that the judge’s statement in regard to malice would be taken into consideration by the jurors in passing upon the credibility of witnesses. Further, it may be noted that plaintiff did not allege malice in her declaration nor was there any direct testimony of malice. There was decided conflict in the testimony tending to support plaintiff’s case and that tending to sustain defendant’s contention. An issue of fact was presented and upon the record it cannot be said that the verdict was against the great weight of evidence.
We find no prejudicial error and affirm the judgment entered in the circuit court. Costs to appellees.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Nelson Sharpe, C. J.
The defendant, Henry C. French, was on August 20, 1930, appointed administrator of the estate of Marlin Y. French, who died on July 14, 1930, leaving him surviving' his widow, Addie French, and two minor children, Euth E. French and Euby L. French, of whom their mother was duly appointed guardian. The bond of the administrator in the sum of $5,000 was duly filed, with the Great American Indemnity Company as surety. It was executed by the company by C. J. Palmer under power of attorney.
The administrator received $4,200 in settlement of a claim against a railroad company, and on September 2, 1930, he filed in the probate court an inventory in which he stated that said sum was the only property of the estate. On October 3, 1930, he deposited this money in The Farmers & Workingmen’s Savings Bank at Jackson in a joint savings account, No. 13349, in the names of “Henry C. French” and “Bennett & Palmer.” The bank ledger bears the notation, “both signatures required,” above the signatures of the parties. Bennett & Palmer was the name under which C. J. Palmer was doing business.
On the following day there was delivered to the bank, and its receipt acknowledged in writing by its cashier, what is called a “joint-control notice,” in which the bank was informed that the indemnity company had issued a bond to Henry C. French as “fiduciary” of the estate of Marlin V. French, and that by agreement between him and the company no check, draft or order for the payment of money by the fiduciary should be honored unless countersigned and approved by a representative of the company, and that the notice should remain in force until revoked in writing by the company. It was executed by the company by “Bennett & Palmer,” and under this signature appeared the following: “I hereby confirm the foregoing joint-control arrangement. Henry C. French, adm. (or admr.).”
This agreement was entered into and notice given pursuant to 3 Comp. Laws 1929, § 12419, which reads as follows:
‘ ‘ That it shall be lawful for any party of whom a bond or undertaking is required, and whose surety thereon is such a company, to agree with such surety, for the deposit of any and all moneys and other depositable assets for which such surety is or may be held responsible, with a trust company, safe deposit company or bank, authorized by law to transact business as such in this State, if such deposit is otherwise proper, in such manner as to prevent the withdrawal of such moneys and assets or any part thereof, except with the written consent of such surety, or an order of the court made on such notice to them as such court may direct.”
The Farmers & Workingmen’s Savings Bank closed its doors on January 23, 1931, and on February 11,1931, the Jackson City Bank & Trust Company was appointed receiver of it on petition of the State banking commissioner.
On August 5,1931, the administrator filed his final account, in which he charged himself with $4,200 and interest, $42, and credited himself with $67.75, disbursements. In it he stated that there remained undisposed of, “claim against Farmers and Workingmen’s Bank now in hands of receiver, $4,242, less $424.20 (10 per cent.) paid by the receiver.” He asked for assignment and distribution of the residue of the estate, and that he be discharged and the surety on his bond released from liability.
The plaintiff, widow of the deceased, and as guardian of the minor children, filed objection to its allowance, contending that the administrator was liable to account for the money received by him, less his disbursements. The account was allowed in the probate court and an appeal taken to the circuit court. On trial before a jury a verdict was directed allowing the account of the administrator and judgment entered thereon, from which this appeal has been taken. A motion for a new trial thereafter made was denied.
Stress is laid upon the claim that the abbreviation “adm.” or “admr.” which followed the signature at the bottom of the “joint-control notice” was not placed by him thereon at the time of its delivery to the bank. In the motion for a new trial counsel for the plaintiff submitted an offer to make further proof thereof if a new trial be granted. If this fact be treated as established, it would in no way lessen the effect of the instrument. The cashier of the bank, who acknowledged its receipt, was informed by it that the money was deposited in the joint names of “Henry C. French” and “Bennett & Palmer,” and that both signatures were required for its withdrawal, and was chargeable with knowledge of the trust-fund nature of the deposit. State Bank of St. Johns v. McCabe, 135 Mich. 479.
It appears that Henry C. French and C. J. Palmer as individuals filed proof of their claim under the deposit in the receivership proceedings. The amount so claimed was for “the balance due claimant on savings account No. 13349.” The number of the account was the same as that under which the deposit was made and to which the .“joint-control” notice applied. .The attention of the receiver was thus called to the nature of the account and the check thereafter drawn and paid by it as a dividend was made payable “to the order of Henry C. French & C. J. Palmer,” and indorsed by both of them. It seems clear that this deposit was at all times recognized as belonging to the estate, and not to the administrator personally.
The judgment allowing the account as presented and remanding the matter to the probate court is affirmed, with costs to appellee.
Potter, North, Fead, Weist, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Saad, C. J.
In this medical malpractice action, plaintiff appeals the trial court’s order that granted defendants Dr. David Fertel and Dr. John Schairer’s motions to tax costs and for case evaluation sanctions. For the reasons set forth in this opinion, we affirm.
I. FACTS AND PROCEEDINGS
For purposes of the questions on appeal, the parties do not dispute the essential facts of the case. Plaintiff alleged that defendants, Dr. David Fertel, Dr. John Schairer, Dr. Andrew Zazaian, Dr. David Patterson, and Garden City Hospital, negligently failed to timely diagnose and treat plaintiffs decedent, Andrew Peterson. Pursuant to MCR 2.403, case evaluation took place on April 16, 2007, and the panel recommended an award in favor of plaintiff against Dr. Fertel, Dr. Schairer, and the hospital. Thereafter, defendants filed motions for summary disposition and the trial court granted summary disposition to Drs. Fertel and Schairer on May 1, 2007. Plaintiff filed a motion for reconsideration on May 11, 2007, and plaintiff rejected the case evaluation on May 15, 2007, pursuant to MCR 2.403(L)(1). Dr. Fertel also rejected the case evaluation, but Dr. Schairer accepted it. The trial court denied plaintiffs motion for reconsideration in an order entered on June 19, 2007, and, thereafter, plaintiff settled her claims against the remaining defendants.
In October 2007, Drs. Fertel and Schairer filed motions to tax costs and for case evaluation sanctions. The trial court granted the motions and awarded Dr. Fertel $12,425.50 and awarded Dr. Schairer $8,484.28. The awards included costs incurred by the doctors for expert witnesses and attorney fees incurred from the date plaintiff rejected the case evaluation.
II. ANALYSIS
A. AWARD OF CASE EVALUATION SANCTIONS
Plaintiff contends that the trial court erred when it awarded case evaluation sanctions to Drs. Fertel and Schairer because the trial court granted their motions for summary disposition before the deadline for acceptance or rejection of the case evaluation award.
As our Supreme Court explained in Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008):
Atrial court’s decision whether to grant case-evaluation sanctions under MCR 2.403(0) presents a question of law, which this Court reviews de novo. Casco Twp v Secretary of State, 472 Mich 566, 571; 701 NW2d 102 (2005); Allard v State Farm Ins Co, 271 Mich App 394, 397; 722 NW2d 268 (2006). We review for an abuse of discretion a trial court’s award of attorney fees and costs. Wood [v Detroit Automobile Inter-Ins Exch, 413 Mich 573, 588; 321 NW2d 653 (1982)]. An abuse of discretion occurs when the trial court’s decision is outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
“When called upon to interpret and apply a court rule, this Court applies the principles that govern statutory interpretation.” Haliw v Sterling Hts, 471 Mich 700, 704; 691 NW2d 753 (2005). As this Court further explained in Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 458; 733 NW2d 766 (2006):
“Well-established principles guide this Court’s statutory [or court rule] construction efforts. We begin our analysis by consulting the specific... language at issue.” Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1, 10; 654 NW2d 610 (2002). This Court gives effect to the rule maker’s intent as expressed in the court rule’s terms, giving the words of the rule their plain and ordinary meaning. See Willett v Waterford Charter Twp, 271 Mich App 38, 48; 718 NW2d 386 (2006). If the language poses no ambiguity, this Court need not look outside the rule or construe it, but need only enforce the rule as written. See Ayar v Foodland Distributors, 472 Mich 713, 716; 698 NW2d 875 (2005).
The trial court awarded case evaluation sanctions pursuant to MCR 2.403(0), which provides, in relevant part:
(1) If a party has rejected an evaluation and the action proceeds to verdict, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the case evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the case evaluation.
(2) For the purpose of this rule “verdict” includes,
(a) a jury verdict,
(b) a judgment by the court after a nonjury trial,
(c) a judgment entered as a result of a ruling on a motion after rejection of the case evaluation.
The purpose of the rule that provides for case evaluation sanctions is “to encourage settlement and deter protracted litigation by placing the burden of litigation costs upon the party that required that the case proceed toward trial by rejecting the mediator’s evaluation.” Broadway Coney Island, Inc v Commercial Union Ins Cos, 217 Mich App 109, 114; 550 NW2d 838 (1996).
The parties do not dispute that Drs. Fertel and Schairer received a “more favorable” result under MCR 2.403(0). Instead, plaintiff claims that case evaluation sanctions are improper because the trial court granted summary disposition to Drs. Fertel and Schairer before plaintiff rejected the case evaluation. Drs. Fertel and Schairer take the position that, because plaintiffs motion for reconsideration remained pending when plaintiff rejected the case evaluation, the trial court’s ruling on plaintiffs motion for reconsideration constitutes a “verdict” because it is “a judgment entered as a result of a ruling on a motion after rejection of the case evaluation.” MCR 2.403(O)(2)(c). Plaintiff maintains that the trial court made its dispositive ruling before the rejection and that this rendered the case evaluation irrelevant because Drs. Fertel and Schairer were already dismissed from the case.
The plain language of the MCR 2.403(0) provides that the fee shifting mechanism applies if a party has rejected the case evaluation “and the action proceeds to verdict....” The rule further states that a “verdict” includes “a judgment entered as a result of a ruling on a motion after rejection of the case evaluation.” While plaintiff is correct that the trial court granted Dr. Fertel and Dr. Schairer’s motions for summary disposition before plaintiff rejected the evaluation, the rule does not limit its definition of “verdict” to orders following motions for summary disposition.
We hold that the ruling on plaintiffs motion for reconsideration is a “verdict” within the meaning of MCR 2.403(O)(2)(c). It indisputably constitutes a ruling on a motion after plaintiff rejected the case evaluation. The ruling is also a “judgment,” which is defined as “[a] court’s final determination of the rights and obligations of the parties in a case.” Cheron, Inc v Don Jones, Inc, 244 Mich App 212, 220 n 4; 625 NW2d 93 (2000) (quotation marks and citation omitted). And, unlike cases holding that certain orders do not constitute verdicts, this case does not involve an alternative resolution, like settlement or arbitration, that would indi cate a mutual decision to avoid further litigation and trial. Plaintiff characterizes the case evaluation as “totally irrelevant” after the grant of summary disposition, but this ignores the plain objective of a motion for reconsideration in this context, which is to call attention to the trial court’s alleged error in granting the motion for summary disposition, to urge the reversal of that decision, to keep the action alive against the defendants and, at its essence, to continue the litigation toward trial. Accordingly, granting case evaluation sanctions against plaintiff, who sought to continue the litigation by rejecting the evaluation, fulfills the purpose of the rule, which is to encourage settlement and to deter protracted litigation. For these reasons, we af firm the trial court’s grant of case evaluation sanctions to Drs. Fertel and Schairer.
B. AMOUNT AWARDED
Though we review the decision whether to award case evaluation sanctions de novo, we review the amount awarded for an abuse of discretion. Ivezaj v Auto Club Ins Ass’n, 275 Mich App 349, 356; 737 NW2d 807 (2007). We also review for abuse of discretion the amount awarded as reasonable attorney fees. Zdrojewski v Murphy, 254 Mich App 50, 72; 657 NW2d 721 (2002). We hold that the trial court did not abuse its discretion.
The trial court awarded Drs. Fertel and Schairer case evaluation sanctions under MCR 2.403(O)(l) and (6), which provide:
(1) If a party has rejected an evaluation and the action proceeds to verdict, that party must pay the opposing party’s actual costs unless the verdict is more favorable to the rejecting party than the case evaluation. However, if the opposing party has also rejected the evaluation, a party is entitled to costs only if the verdict is more favorable to that party than the case evaluation.
(6) For the purpose of this rule, actual costs are
(a) those costs taxable in any civil action, and
(b) a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the case evaluation.
Thus, under MCR 2.403(0), Drs. Fertel and Schairer were entitled to collect from plaintiff their actual costs because plaintiff rejected the case evaluation and both doctors received a more favorable result.
As this Court explained in Campbell v Sullins, 257 Mich App 179, 203-204; 667 NW2d 887 (2003):
Case-evaluation sanctions include actual costs. MCR 2.403(O)(l). The term “actual costs” is defined, in part, as “those costs taxable in any civil action.” MCR 2.403(O)(6)(a). Expert-witness fees qualify as “actual costs” under MCR 2.403(0). Elia [v Hazen, 242 Mich App 374, 379-380; 619 NW2d 1 (2000)].
Plaintiff asserts that the trial court should not have awarded any expert witness fees because the expert witnesses did not testify in a deposition or at trial. However, the statute addressing expert witness fees does not state that the expert must provide testimony in order to recover expert witness fees:
No expert witness shall be paid, or receive as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear, or has appeared, awards a larger sum, which sum may be taxed as a part of the taxable costs in the case. Any such witness who shall directly or indirectly receive a larger amount than such award, and any person who shall pay such witness a larger sum than such award, shall be guilty of contempt of court, and on conviction thereof be punished accordingly. [MCL 600.2164(1).]
Indeed, it is well settled that, regardless of whether the expert testifies, the prevailing party may recover fees for trial preparation. Miller Bros v Dep’t of Natural Resources, 203 Mich App 674, 691; 513 NW2d 217 (1994); Herrera v Levine, 176 Mich App 350, 357-358; 439 NW2d 378 (1989). As the Court in Herrera explained:
The language “is to appear” in [MCL 600.2164] applies to the situation at bar in which the case was dismissed before defendant had a chance to call its proposed expert witnesses at trial. Furthermore, the trial court was empowered in its discretion to authorize expert witness fees which included preparation fees.
The reason for the rule is succinctly set forth in State Hwy Comm’r v Rowe, 372 Mich 341, 343; 126 NW2d 702 (1964):
It is not amiss to observe generally that few expert witnesses could testify properly or effectively without careful preparation and, on occasion, without necessary disbursement in the course of such preparation. For instance any medical or legal expert, testifying without preparation and confronted by a cross-examiner of competence, would find little comfort in the witness hox. More important, his testimony would provide but little light for the trier or triers of fact.
For the above reasons, we affirm the trial court’s award of expert witness fees to both Drs. Fertel and Schairer.
Plaintiff also challenges the amount of attorney fees awarded by the trial court and asks this Court to remand the case for an evidentiary hearing. As noted, Drs. Fertel and Schairer were entitled to “a reasonable attorney fee based on a reasonable hourly or daily rate as determined by the trial judge for services necessitated by the rejection of the case evaluation.” MCR 2.403(O)(6)(b). Plaintiffs counsel conceded that Drs. Fertel and Schairer are entitled to attorney fees, but now argues, for the first time, that the trial court should conduct a hearing to determine whether the amount of fees is reasonable. Defendants submitted evidence to support the trial court’s award and, while a trial court must hold an evidentiary hearing when the amount of attorney fees is challenged and when a hearing is requested, Reed v Reed, 265 Mich App 131, 166; 693 NW2d 825 (2005), plaintiff did not, despite ample opportunity to do so. Accordingly, we reject plaintiffs claim and decline to remand for further proceedings.
Affirmed.
Plaintiff failed to respond to the case evaluation and, under MCR 2.403(L)(1), a failure to file a written acceptance or rejection within 28 days of the evaluation constitutes a rejection.
Plaintiff says that she did not attempt to thwart the purpose of the rule by rejecting the case evaluation while the parties were simply awaiting a decision on a motion filed before the deadline for acceptance or rejection of the case evaluation. In Jerico Constr, Inc v Quadrants, Inc, 257 Mich App 22, 34; 666 NW2d 310 (2003), this Court opined that the fee shifting rule applies to judgments entered as a result of a ruling on a motion filed after mediation, because the rule specified it at the time mediation occurred in that case. But the rule was amended in 1997 and, among other changes, the Supreme Court eliminated the reference to a motion filed after mediation, thus negating the suggestion that the rule may not apply when a motion is filed before case evaluation. See 454 Mich cxxviii. Indeed, the court rule does not state that the motion at issue must be filed after the rejection, only that the ruling must be made after rejection. MCR 2.403(O)(2)(c).
The change to the rule was recommended by the Supreme Court’s Mediation Rule Committee. The report states the following with regard to the change:
Current subrule (0)(2)(c) includes in the definition of "verdict” a judgment entered on a motion “filed” after mediation. The Committee concluded that the time of filing of the motion was irrelevant. The rule should be the same if the motion was filed before mediation but for some reason not decided until later.
The Committee recommends a second change regarding cases decided on motion after mediation. Its view was that, in general, rulings on dispositive motions should precede mediation. However, in some courts, cases are submitted to mediation too soon. Discovery is sometimes not complete, and dispositive motions have not been ruled on. This can distort the mediation process, as the mediators’ evaluation may be affected by the knowledge that a dispositive motion is pending or is likely to be filed. That is, they may take into account the likelihood of the defendant winning on a motion in evaluating the case. The evaluation might have been quite different if the panel knew that the motion had been denied. This decreases the likelihood that mediation will dispose of the case, either through acceptance of the evaluation or hv facilitating settlement.
A number of members favored eliminating motion-based judgments from the definition of “verdict. ” The majority did not agree with that view. However, though again there was disagreement, the majority thought the judge should be given some discretion not to award costs in the case of decisions on post-mediation motions. The language recommended for new subrule (O)(10) [now subrule 0(11)] is based on MCR 2.405(D)(3), which gives similar discretion to the court under the offer of judgment rule. [Report of Supreme Court Mediation Rule Committee, 451 Mich 1204, 1223 (1996) (emphasis in original).]
The above discussion confirms that the time of the motion filing it is not relevant under MCR 2.403(O)(2)(c), only that the ruling must occur after case evaluation. The discussion also contemplates that, because the timing of case evaluation and the filing of dispositive motions may undermine the value of the case evaluation process, a plaintiff may ask the trial court to apply subrule 0(11), which provides that, “[i]f the ‘verdict’ is the result of a motion as provided by subrule 0(2)(c), the court may, in the interest of justice, refuse to award actual costs.” However, plaintiff expressly chose not to request relief under this rule, and we need not address it further. | [
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Nelson Sharpe, C. J.
Gustave A. Raupp, an old-time resident of the village of Ecorse, died on March 29, 1923. He left him surviving his widow, Celina Raupp, and seven children, the plaintiffs and defendants herein, with the exception of Marie A. Raupp, who is the wife of Christopher A. Raupp. In his will he appointed his three sons, Christopher, Robert and Leo, the executors thereof. He owned a sawmill property at the time of his death. His executors continued to operate it for some time theréafter, but unsuccessfully. Later, partition proceedings were had, and the family property divided. In this division an undivided one-third interest in the mill property was given to the widow and to Robert and Christopher, hereafter called the defendants.
In the month of August, 1932, the widow, then 71 years of age, took a trip by bus to Bay City to visit her sister. She returned on the 26th somewhat depressed, as her sister had passed away before she arrived. Soon after, she was confined to her bed. Charlotte Montie, a practical nurse then attending her, testified:
“She was irrational at times. But, she would know — at times, as I told you before, at times she would know things, and at times she would not. But, after she had the chill on Friday, the temperature went up and I saw a big change. Then, on Monday, she took another chill and her temperature went up, Monday afternoon, around two o’clock, the temperature went up to 105. I called up the doctor and he said there was nothing he could do. It would not be necessary to come oyer, just to bathe her and bring the temperature down.”
The Monday referred to was the 5th day of September, and her condition was then such that a full time nurse, Margaret Oulette, was employed. Her daughter, Harriet, and her son Herschel, who lived with her, were also in attendance upon her at that time. On September 8th she executed a deed of her interest in the mill property to her sons Robert and Christopher, reserving a life estate therein to herself. She passed away on September 10th. The bill of complaint herein was filed to vacate and set aside ■this deed on the ground of her mental incapacity and the undue influence exercised over her by the defendants to secure its execution.
The trial court, after hearing the witnesses, found “that had it not been for the will of Christopher, imposed upon the old lady, within less than two days of her death, this deed would not have been executed,” and entered a decree vacating and setting it aside, from which the defendants have appealed.
We are satisfied that the preponderance of the evidence sustains the finding of the court. It appears that the partition proceedings were had in May, 1930. Christopher testified that “immediately after the settlement of my father’s estate” his mother said to him in the presence of his brother Robert, when talking about the mill property, “that we should have a deed drawn up any time and that she would sign it and deed it over” to them. His mother was then advanced in years, and it seems strange indeed that nothing was done about it until she was confined to her bed in her last illness. While the deed, and its acknowledgment, is dated September 7th, it is conceded that it was not executed until the morning of September 8th.
Christopher also testified that on September 4th Ms mother said to him, “Chris, have you got those papers made out for the mill property yet?” and that she then expressed a desire to execute a deed; that later he told her that he had had the deed prepared and an attorney would be over in the evening to have it executed, and that a notary came the next morning and the deed was formally executed. He had it recorded on the following’ day.
The nurse, Margaret Oulette, who was in attendance on the mother at the time, heard no conversation about the making of a deed. She testified that when the notary who took the acknowledgment came in on the morning of September 8th, Christopher “explained to her what this paper was for, and she asked for her glasses, and then she wanted a cup of tea. She was quite weak. She wanted to be left alone. She did not like to be bothered. I think I put the pen in her hand and she was told the ‘X’ would be all right. So, she made the X.”
She also testified that after Mrs. Raupp had the tea and her glasses “she wanted to rest after that. They asked if she would sign it, and she wanted to wait until later on. * * * She was very weak, and she did not want to be bothered. She did not want anybody to bother her;” that Christopher at that time asked where Herschel, a brother who was living in the house with his mother, then was, and she told him, “He is outside,” and he then said, “Hurry up and get this over with. ’ ’
The deceased was a member of the Roman Catholic church. In the early morning of the day the deed was executed, a priest came to see her and administered the last rites of the church. She was not at that time able to make a confession. Dr. Roberts, who had been attending her, called to see her before noon on that day. He testified that Christopher then had the deed “and he asked if I would get her to identify it. So, I aroused her and asked if she knew what it was, and she said that she did. I asked her what it was. It was a deed to property. She said ‘Yes I signed it; I did not want to be bothered’ — no. ‘I didn’t want to have trouble.’ I believe that is what she said.”
The trial court heard and saw the witnesses who testified. Without further review of the evidence, we are satisfied that it justified the finding that the deed was executed because of the undue influence brought to bear upon the deceased by her son Christopher.
The decree is affirmed, with costs to appellees.
Potter, North, Fead, Wiest, Btjtzel, and Edward M. Sharpe, JJ., concurred. Bushnell, J., did not sit. | [
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Edward M. Sharpe, J.
In June, 1928, the State Savings Bank of Peck, Michigan, as principal, and the defendants as sureties executed a bond in favor of plaintiff company, the condition of which was that if the bank would keep, account for and pay over on demand all moneys that might be deposited in said bank by the plaintiff, then the obligation would become void.
October 26, 1932, plaintiff deposited in said bank the sum of $1,500 and received the bank’s certificate of deposit payable upon demand. On June 5, 1933, while the bank was in the custody of the State banking department under the provisions of the emergency banking statute, plaintiff presented this certificate of deposit for payment. Upon refusal of the conservator of the bank and the defendant sureties to pay plaintiff’s certificate, the plaintiff brought suit against the sureties on the bond. Defendants moved to dismiss on the ground that the action is barred by Act No. 32, Pub. Acts 1933, § 4, which reads in part:
“Whenever this act operates as a stay of any legal proceedings against any bank or trust company, then, a similar stay for a corresponding time shall be in effect as to any surety, sureties, guarantor or guarantors of such bank or trust company. ’ ’
The act elsewhere provides (section 4):
“During the period of such management and possession by the said commissioner, no actions and remedies at law or suits in equity of any creditor or stockholder or party in interest against any such bank or trust company, or any property of whatsoever kind or nature in the control and custody of the commissioner as aforesaid shall be commenced without the consent of said commissioner and approval of the governor, and the statute of limitations against such claims shall be suspended during such period.”
The plaintiff contends that the act is invalid in so far as it purports to bar this suit because: (1) the title contains no reference to a stay of proceedings against sureties; (2) the emergency justifying the act no longer exists; (3) the áct impairs the obligations of contracts; (4) the act discriminates between sureties for defunct banks and other sureties; (5) the act suspends the judicial powers of the courts for an indefinite period.
The lower court held the act unconstitutional on the last ground and defendants appeal.
As to plaintiff’s first contention, this court held in Commerce-Guardian Trust & Savings Bank v. State of Michigan (syllabus), 228 Mich. 316:
“The purpose of article 5, § 21, of the State Constitution, requiring that ‘no law shall embrace more than one object, which shall be expressed in its title,’ was, first, to prevent the bringing together in one bill subjects diverse in their nature and having no necessary connection, with a view to combine in their favor the advocates of all, and, second, to challenge the attention of those affected by the act to its provisions.”
The second purpose might be otherwise stated as to give the legislature and the public fair notice of the scope of the legislation. The body of the act must not contain provisions contrary to or not germane to the object stated in the title, since the title gives notice that no matters except those which it indicates will be found in the body.
The title of the act here in question reads as follows :
“An act to protect depositors and other creditors of banks and trust companies; to supplement the laws of this State providing for the regulation of the business of banks and trust companies; to provide for the taking over of the management and/or reorganization or liquidation of banks and trust companies under certain conditions by the commissioner of the State banking department; to authorize the borrowing of money and pledging of the assets of banks and trust companies; to further prescribe and define the powers of the commissioner of the State banking department and the governor with reference thereto; to prescribe penalties for the violation of the provisions of this act; to declare the effect of this act; and to extend the provisions of this act to national banks and to banks owned by any_ individual person or any unincorporated association of individual persons under certain conditions.”
There is no intimation in the title of the act that the act contains legislation affecting sureties. Neither is there any necessary relationship between the suspension of proceedings against sureties and the purpose of the act as stated in the title. We must therefore hold that part of the act affecting suits against sureties to be unconstitutional. As this disposes of the case, it will be unnecessary to discuss the other contentions of the plaintiff.
The order of the trial judge denying defendant’s motion to dismiss is affirmed. Costs to plaintiff.
Nelson Sharpe, C. J., and Potter, North, Read, Wiest, Btttzel, and Bushnell, JJ., concurred. | [
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M. J. Kelly, J.
In these consolidated appeals, the Department of Labor and Economic Growth, Unemployment Insurance Agency (the Agency), appeals by leave granted the trial court orders affirming the decisions of the Employment Security Board of Review (the Board) granting federal trade readjustment allowance (TRA) benefits to claimants Tracey Dykstra and Robert Jordan under the Trade Act of 1974. See 19 USC 2101 et seq. On appeal, we must determine whether the time limits provided under 19 USC 2291(a) (5) (A) (ii) limit the period within which a claimant may obtain a waiver of the Trade Act’s training requirement. See 19 USC 2291(a)(5)(C) and 19 USC 2291(c). We conclude that, under the statute’s plain terms, the time limits provided under 19 USC 2291(a) (5) (A) (ii) do not apply to the waivers permitted by 19 USC 2291(a)(5)(C) and 19 USC 2291(c). Further, because the statute is not ambiguous, the Agency had to comply with its terms notwithstanding the contrary interpretation of the United States Department of Labor (the Department). Therefore, the trial courts did not err when they issued orders affirming the Board’s decisions. For these reasons, we affirm in both cases.
I. BACKGROUND, BASIC FACTS, AND PROCEDURAL HISTORY
A. TRA BENEFITS
Under the Trade Act, Congress established a program of benefits intended to supplement state unemployment benefits for workers who have lost their jobs as a result of competition from imports. See Int’l Union, United Automobile, Aerospace, & Agricultural Implement Workers of America v Brock, 477 US 274, 277; 106 S Ct 2523; 91 L Ed 2d 228 (1986).
Under the Act’s scheme, a group of workers, their union, or some other authorized representative may petition the Secretary of Labor to certify that their firm has been adversely affected by imports. [19 USC 2271 to 2273.] If the Secretary issues a certificate of eligibility for such a group, workers within that group who meet certain standards of individual eligibility may then apply for and receive TRA benefits. These benefits are funded entirely by the Federal Government, as is the cost of administering the program. [Id]
Although the Trade Act requires the Secretary of Labor to make the initial certification, the Trade Act permits the secretary “to contract out the job of making individual eligibility determinations to the state agencies that administer state unemployment insurance programs.” Id.; see 19 USC 2311(a). In Michigan, the Agency has been empowered to make the individual eligibility determinations. Nevertheless, Congress has charged the Department with the duty of prescribing regulations necessary to carry out the Trade Act, see 19 USC 2320, and the Agency is “bound to apply the relevant regulations promulgated by the Secretary of Labor and the substantive provisions of the Act.” Brock, 477 US at 278.
In order for a worker to be eligible for benefits, the worker must meet one of three eligibility criteria: the worker must be enrolled in an approved training program, have completed an approved training program, or have obtained a written waiver of the training requirement. See 19 USC 2291(a)(5)(A) to (C); see also 19 USC 2291(c). With regard to the first criterion — enrollment in an approved training program — 19 USC 2291(a) (5) (A) (ii) also provides that the worker must enroll no later than the latest of
(I) the last day of the 16th week after the worker’s most recent total separation from adversely affected employment which meets the requirements of [19 USC 2291(a)(1) and (2)],
(II) the last day of the 8th week after the week in which the Secretary issues a certification covering the worker,
(III) 45 days after the later of the dates specified in subclause (I) or (II), if the Secretary determines there are extenuating circumstances that justify an extension in the enrollment period, or
(IV) the last day of a period determined by the Secretary to be approved for enrollment after the termination of a waiver issued pursuant to [19 USC 2291(c)].
Congress added these deadlines in 2002, and they are commonly referred to as the “8/16 deadline.” See PL 107-210, § 114(b)(3), 116 Stat 939. The Department explained that the amendment was designed to accelerate a worker’s reentry into the work force:
To promote adjustment and accelerate reemployment, the Reform Aet[ ] provides that eligibility for TRA, which is additional income support after unemployment insurance (UI) is exhausted, will be contingent on a worker’s enrollment in training not later than 16 weeks after separation from employment or 8 weeks after the petition for eligibility has been approved, whichever date is later. In extenuating circumstances, these deadlines for enrollment in training may be extended up to 45 days; and a waiver of the enrollment in training requirement to receive basic TRA may be issued only under limited and specified conditions. The Reform Act also increased the length of time that TRA is available to an adversely affected worker who is in training by increasing the availability of “additional” TRA from 26 to 52 weeks and by further adding up to 26 additional weeks of TRA if a worker is enrolled in a course of remedial education. The primary purpose of this extended income support is to minimize workers’ financial hardship until they complete training. By requiring that workers expeditiously enroll in training as a condition of receiving TRA, the Reform Act amendments provide that workers will be more likely to complete the training within the duration of that income support. [71 Fed Reg 50760, 50762 (August 25, 2006).]
To that end, the Department has determined that the deadlines stated in § 2291(a)(5)(A) apply to the waivers permitted under § 2291(c):
This deadline is either the last day of the 8th week after the week of issuance of the certification of eligibility covering the worker or the last day of the 16th week after the worker’s most recent total qualifying separation, whichever is later (commonly referred to as the 8/16 week deadline). The “8/16 week deadline” applies to eligibility for all TRA, both basic and additional TRA. If a worker fails to meet the applicable 8/16 week deadline, then the worker is not eligible for any TRA (basic TRA or additional TRA, including TRA for remedial training) under the relevant certification. In many cases, the 8/16 week deadline for a worker will be reached while the worker is still receiving unemployment insurance (UI). Some workers are not aware that this deadline may apply before they exhaust their UI. The SWA [State Workforce Agency] is responsible for informing workers of these requirements. The SWA must also assist such workers in enrolling in an approved training program prior to the 8/16 week deadline, or issue the workers waivers prior to the 8/16 week deadline, if appropriate. [Trade Adjustment Assistance Program, Training and Employment Guidance Letter No 11-02, Change 1, 69 Fed Reg 60903 (October 13, 2004) (emphasis added).]
Thus, under the Department’s interpretation of 19 USC 2291(a)(5)(A) to (C), a worker must enroll in training or obtain a waiver before the 8/16 deadline in order to qualify for TRA benefits
In the present cases, the Secretary of Labor certified that both claimants’ firms were adversely affected by imports. Hence, both Dykstra and Jordan were entitled to TRA benefits if they met the individual eligibility requirements. However, although both Dykstra and Jordan obtained waivers under 19 USC 2291(c), they did not obtain the waivers within the 8/16 deadline provided under 19 USC 2291(a)(5)(A)(ii). For that reason, the Agency denied both claimants’ requests for TRA benefits.
B. TRACEY DYKSTRA
Dykstra appealed the Agency’s decision in April 2005. A hearing referee held a hearing on the matter in June 2005. At the hearing, an unemployment claims examiner for the Agency specializing in TRA claims testified that Michigan Works! was responsible for notifying employees of their right to receive TRA benefits. The examiner indicated that one method of notification used with companies that have large numbers of employees who are being laid off because of foreign competition is to hold an en masse meeting. Dykstra attended such a meeting after she was laid off, but stated that she was not informed that she needed to fill out Form 802, which is the request for waiver of the TRA training requirement permitted by 19 USC 2291(a)(5)(C). Dykstra stated that she filed the form only after she learned about it from a coworker. However, she filed the form after the enrollment deadlines stated in 19 USC 2291(a)(5)(A). The unemployment examiner testified that it was her opinion that Michigan Works! was at fault for Dykstra’s untimely filing because it failed to timely notify Dykstra of the need to submit the form. The referee then reversed the Agency’s decision to deny Dykstra’s application for benefits. The referee reasoned that the failure of Michigan Works! to comply with its statutory duty under 19 USC 2311(f)(1) to notify Dykstra of her eligibility for TRA benefits constituted good cause for her untimely application.
The Agency then appealed to the Board, which affirmed the referee’s decision. The Board determined that Dykstra acted on the faulty advice of a Michigan Works! employee. It also rejected the Agency’s argument that Michigan Works! was not authorized to act on the Agency’s behalf.
On appeal in the circuit court, the Agency argued that TRA benefits were only available to claimants who met the statutory requirements, including the deadlines set forth in 19 USC 2291(a)(5)(A)(ii), and that because Dykstra did not meet the deadlines, she was ineligible for benefits. The Agency asserted that the Board’s decision was contrary to law and had to be reversed. It also argued that Dykstra could not use the doctrine of estoppel to expand the deadlines on the basis of governmental workers’ errors. The circuit court disagreed and determined that the Agency should be estopped from denying Dykstra benefits when it had failed to exercise its statutory duty. The Agency moved for reconsideration, which was granted in part and denied in part. The circuit court vacated that portion of its previous order applying the doctrine of estoppel, but upheld its previous order to the extent that it awarded Dykstra benefits. It reasoned that the deadlines stated in 19 USC 2291(a) (5) (A) (ii) did not apply to a waiver obtained under 19 USC 2291(a)(5)(C) and 19 USC 2291(c).
C. ROBERT JORDAN
After a chance encounter with a former coworker, Jordan discovered that he might be eligible to receive TRA benefits. Jordan later went to a local Michigan Works! office and applied for TRA benefits and requested a waiver of the training requirement on the ground that he was within two years of meeting the requirements for retiring. See 19 USC 2291(c)(1)(C). Although Jordan obtained his waiver, the Agency denied him benefits on the ground that he obtained the waiver outside the deadlines imposed by 19 USC 2291(a)(5)(A)(ii). Jordan appealed the Agency’s decision, and the referee assigned to his case held a hearing in April 2005. The referee affirmed the Agency’s denial of benefits because Jordan did not file within the statutory deadlines and failed to establish “good cause” for his late application.
Jordan then appealed to the Board. The Board determined that the deadlines in 19 USC 2291(a) (5) (A) (ii) did not apply to the waivers permitted by 19 USC 2291(a)(5)(C). Therefore, because Michigan Works! had issued Jordan a valid waiver, the Board determined that Jordan was eligible for TRA benefits. The Board further found the Agency’s argument that Michigan Works! was not its agent to be disingenuous. Accordingly, the Board reversed the referee’s decision.
On appeal in the circuit court, the Agency argued that TRA benefits were only available to claimants who met the statutory deadlines set forth in 19 USC 2291(a)(5)(A)(ii). Because Jordan did not meet the requisite deadlines, the Agency contended, he was ineligible for benefits. The Agency also reiterated its argument that the doctrine of estoppel did not apply.
Jordan responded that the Board’s decision was not contrary to law because it correctly determined that the deadlines in § 2291(a) (5) (A) (ii) applied only to the enrollment provisions of § 2291(a) (5) (A) (i). He noted that there was no time requirement under the section applicable to waivers. He also argued that it would be inequitable to apply a deadline for benefits that he had not known existed. He asserted that such a result was contrary to the purpose of the law. The Agency countered that the Board’s decision was contrary to the Department’s interpretation of the statute, which was entitled to deference.
The circuit court held a hearing on the matter in July 2006. In August 2006, the circuit court issued an order affirming the Board’s decision.
D. THE APPEALS
After the circuit courts affirmed the reinstatement of benefits, the Agency applied for leave to appeal in this Court in both cases, which this Court denied for lack of merit. See Dep’t of Labor & Economic Growth, Unemployment Ins Agency v Dykstra, unpublished order of the Court of Appeals, entered October 16, 2006 (Docket No. 271535); Dep’t of Labor & Economic Growth v Jordan, unpublished order of the Court of Appeals, entered December 12, 2006 (Docket No. 272634). However, in lieu of granting leave to appeal, our Supreme Court remanded each case to this Court for consideration as on leave granted. See Dep’t of Labor & Economic Growth v Dykstra, 480 Mich 869 (2007); Dep’t of Labor & Economic Growth v Jordan, 480 Mich 869 (2007). This Court thereafter consolidated the appeals.
II. THE STATUTORY DEADLINES
A. STANDARD OF REVIEW
Congress has determined that the review of a determination by a cooperating state agency is to be done “in the same manner and to the same extent as determinations under the applicable State law and only in that manner and to that extent.” 19 USC 2311(d). This Court reviews “a lower court’s review of an agency decision to determine ‘whether the lower court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings.’ ” Dignan v Michigan Pub School Employees Retirement Bd, 253 Mich App 571, 575; 659 NW2d 629 (2002) (citation omitted). The circuit court’s review of the Agency’s decision “is limited to determining whether the decision was contrary to law, was supported by competent, material, and substantial evidence on the whole record, was arbitrary or capricious, was clearly an abuse of discretion, or was otherwise affected by a substantial and material error of law.” Id. at 576. However, this Court reviews de novo the proper interpretation of statutes, such as the Trade Act. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008).
B. PRINCIPLES OF AGENCY DEFERENCE
The present case involves the proper interpretation of the Trade Act. As already noted, the Department has interpreted the Trade Act and determined that the deadlines stated under 19 USC 2291(a)(5)(A)(ii) apply to the waivers permitted by 19 USC 2291(a)(5)(C). Because Congress has charged the Department with the responsibility of promulgating regulations to implement the Trade Act, see 19 USC 2320, the Department’s interpretation of the relevant statutory provisions may be entitled to deference. See Chevron USA, Inc v Natural Resources Defense Council, Inc, 467 US 837, 842-843; 104 S Ct 2778; 81 L Ed 2d 694 (1984). As the Supreme Court explained in Chevron, whether a court must defer to an agency’s interpretation of a statute depends first on whether “Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id.; see also State Treasurer v Abbott, 468 Mich 143, 148; 660 NW2d 714 (2003). However, if Congress has not directly addressed the precise question at issue, the reviewing court does not “simply impose its own construction on the statute .... Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 US at 843.
This deference follows from Congress’s decision to commit the administration of a particular program to the agency:
“The power of an administrative agency to administer a congressionally created . .. program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. [Id. at 843-844 (citation omitted).]
The level of deference is strong; the “court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Id. at 843 nil. Nevertheless, the Supreme Court noted that, ultimately, the
judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect. [Id., at 843 n 9 (citations omitted).]
Accordingly, the first question that must be answered is whether Congress has spoken on the issue of a deadline for filing a training waiver.
C. TIMING AND WAIVERS
The Agency argues that, because 19 USC 2291(a)(5)(C) is silent or ambiguous with regard to time constraints, this Court must defer to the Department’s interpretation that the enrollment deadlines provided under 19 USC 2291(a) (5) (A) (ii) should also apply to the waivers permitted under 19 USC 2291(a)(5)(C). However, this Court will not read statutes in isolation, and, after examining the statutory scheme as a whole, see Macomb Co Prosecutor v Murphy, 464 Mich 149, 159-160; 627 NW2d 247 (2001), we do not agree that Congress was silent on the timing applicable to the waivers permitted by § 2291(a)(5)(C).
A worker does not have to apply for TRA benefits in order to be eligible for training, but he or she does need to meet at least one of the training requirement alternatives stated in § 2291(a)(5) in order to receive monetary benefits. See 19 USC 2291(a); 19 USC 2296; 20 CFR 617.11. Section 2291(a)(5) clearly provides three alternative ways to meet the training requirement: enroll in training, complete training, or obtain a waiver of the training requirement. See also 20 CFR 617.11(a)(2)(vii)(A). Although the statute does provide a specific deadline within which the enrollment alternative must be met, Congress unequivocally provided that the deadlines stated in 19 USC 2291(a) (5) (A) (ii) were to apply to the “enrollment required under clause (i).” Likewise, when crafting an extension for extenuating circumstances, Congress clearly indicated that the extension applied to the “enrollment period.” 19 USC 2291(a)(5)(A)(ii)(III). Hence, under a plain reading, it appears that Congress intended the timing deadlines stated in § 2291(a) (5) (A) (ii) to apply only to enrollments under § 2291(a) (5) (A) (i). Further, the provision of a deadline for the enrollment alternative without providing a similar deadline for the waiver alternative is consistent with the statutory scheme and the purpose behind the TRA benefits.
As the Agency aptly notes, the primary purpose of TRA benefits is to assist workers who have lost their jobs because of competition from imports to quickly return to suitable employment. See 20 CFR 617.2; see also 19 USC 2102(4). Congress has determined that this goal can best be accomplished in many cases by retraining the adversely affected worker. See, e.g., 19 USC 2291(a)(5). In such cases, it makes sense to require the worker to demonstrate a commitment to be retrained by requiring the worker to enroll in an approved training program within a specified time. However, Congress also determined that TRA benefits should be paid to some workers who are adversely affected by foreign competition even without the worker completing or enrolling in a retraining program. To this end, Congress empowered the Secretary of Labor to waive the training requirement imposed under 19 USC 2291(a)(5)(A). See 19 USC 2291(a)(5)(C); 19 USC 2291(c). And the purpose behind a strict deadline for enrollment in retraining does not apply equally to cases involving waivers.
A worker can only qualify for a waiver of the training requirement when there are circumstances that make it “not feasible or appropriate for the worker” to enroll in a training program. 19 USC 2291(c)(1). These circum stances include situations in which the worker will be recalled to work, already has marketable skills, will be retiring, or has health issues that preclude enrollment in an approved training program or when an approved program is unavailable or the worker has good reason for delaying enrollment. See 19 USC 2291(c)(1)(A) to (F). Thus, Congress has specifically provided that TRA benefits may be available to workers who will not participate in a training program. Indeed, in the case of workers who are about to retire, the worker may never even return to active employment. In such cases, a strict deadline would serve only to deprive workers of the TRA benefits that Congress deemed appropriate. Further, given that some circumstances that give rise to eligibility for a waiver may not be known within the deadlines provided under § 2291(a)(5)(A)(ii), application of those deadlines to the training waivers permitted under § 2291(a)(5)(C) might defeat the purpose behind the waiver provision. It is also noteworthy that Congress provided limits on the provision of TRA benefits, which include general limitations on the period within which benefits may be paid to a worker. See 19 USC 2291(a)(1) (requiring workers to apply for TRA benefits before the expiration of a two-year period or the termination of certification); 19 USC 2293 (placing substantive limits on the payment of TRA benefits). Thus, Congress actually provided deadlines for the provision of benefits that are applicable to benefits paid under a waiver of the training requirement. These deadlines are consistent with the purpose behind the waiver provision and Congress’s decision to limit the application of the deadlines stated in § 2291(a) (5) (A) (ii) to the enrollment provision found in § 2291(a) (5) (A) (i). We further note that Congress crafted specific hmitations on the duration of waivers and provided for the revocation of waivers when the basis for granting the waiver is no longer applicable. 19 USC 2291(c)(2). Hence, in addition to directly limiting application of the deadlines found under § 2291(a)(5)(A)(ii), Congress provided clear guidance on the timing and efficacy of waivers.
D. CONCLUSION
When the relevant statutory scheme is interpreted as a whole, Congress’s decision to limit the strict deadlines specified under § 2291(a) (5) (A) (ii) to enrollments under § 2291(a) (5) (A) (i) and its refusal to create a similar deadline for the waivers permitted by § 2291(a)(5)(C) must be understood to have been deliberate. For this reason, we conclude that Congress was not silent on the issue; rather, Congress unambiguously provided that the deadlines stated in § 2291(a) (5) (A) (ii) only applied to the enrollment option provided by § 2291(a) (5) (A) (i). And Congress clearly intended the waivers permitted by § 2291(a)(5)(C) to be subject only to the timing restrictions generally applicable to the provision of TRA benefits. See 19 USC 2291(a)(1). Because Congress’s intent is clear, the Department’s determination that the § 2291(a)(5)(A)(ii) deadlines should apply to the waivers permitted under § 2291(a)(5)(C) and § 2291(c) is not entitled to any deference. Indeed, because the Department’s construction of the statutory scheme contradicts Congress’s unambiguously stated intent to limit application of the § 2291(a)(5)(A)(ii) deadlines, we must reject that construction. Chevron, 467 US at 843 n 9. With regard to both claimants, the Board properly determined that the claimants were entitled to TRA benefits. Because the Board did not err in this regard, the trial courts properly affirmed the Board’s decisions.
We are cognizant that at least one foreign jurisdiction has determined that the statutory language at issue is sufficiently ambiguous to warrant deference to the Department’s interpretation. See Wisconsin Dep’t of Workforce Dev v Labor & Industry Review Comm, 297 Wis 2d 546; 725 NW2d 304 (Wis App, 2006); see also Lowe v Unemployment Compensation Bd of Review, 877 A2d 494, 498 (Pa Cmwlth, 2005). However, foreign authorities are not binding on this Court, and we find these authorities unpersuasive. See Hiner v Mojica, 271 Mich App 604, 612; 722 NW2d 914 (2006) (noting that judicial decisions from foreign jurisdictions are not binding on this Court). The statutory provisions at issue are not ambiguous, and we will enforce them as written. See Macomb Co Pros ecutor, 464 Mich at 158 (noting that courts will enforce unambiguous statutes as written).
There were no errors warranting relief.
Affirmed in both cases. Because the cases involved important questions of public policy, none of the parties may tax costs under MCR 7.219.
PL 107-210, §§ 101 et seq., 116 Stat 939.
Michigan Works! is an association of local agencies. See MCL 408.113(d). The local agencies are selected by local workforce development boards, which also oversee the entities’ provision of workforce services under the Michigan Works One-Stop Service Center System Act, MCL 408.111 et seq. See MCL 408.119 and MCL 408.123. The local Michigan Works! agencies are authorized to serve as the administrators for state and federal funding provided for workforce development services and activities. See MCL 408.127, MCL 408.129, and MCL 408.131.
We note that the Department is rewriting the applicable regulations, which will he codified at 20 CFR 618, and has recognized that it is possible that Congress did not intend for the deadlines stated in 19 USC 2291(a) (5)(A)(ii) to apply to waivers. See 71 Fed Reg 50760 (August 25, 2006). The Department has solicited public comment on this issue:
A related issue, on which the Department seeks public comment, is whether the deadlines should apply to waivers of the training requirement in the case of adversely affected workers who do not enroll in training by the applicable deadline; whether the issuance of a waiver after the deadline has passed can revive eligibility for basic TRA. The Department’s current position, reflected in § 618.725(a) [of the proposed regulations], is that an adversely affected worker who neither enrolls in training by the applicable deadline, nor receives a waiver of the training requirement by that deadline, may not become eligible for TRA by later receiving such a waiver. This position was articulated in the operating instructions in Training and Employment Guidance Letter (TEGL) No. 11-02, Change 1 (69 FR 60903 (2004)), which interpreted [19 USC 2291(a)(5)(A)] as imposing “a deadline by which a worker must be enrolled in approved training, or have a waiver of this requirement, in order to be eligible for TRA..” However, a CSA [cooperating state agency] recently brought to the Department’s attention an alternative reading, based on the structure of the Act, that the applicable deadline applies only to enrollment in training and not to waivers of the training requirement. The argument is that the alternative deadlines are contained only in the Act’s provision on the enrollment in training requirement, [19 USC 2291(a)(5)(A)]; that language in [19 USC 2291(a)(5)(A)(ii)] suggests the requirement applies only to the enrollment in training requirement in [19 USC 2291(a)(5) (A) (i)]; and that the alternative requirement that the worker receive a waiver of the training requirement is contained in a separate provision, [19 USC 2291(a)(5)(C)] of the Act. While this argument is plausible, the Department is concerned that it effectively undermines Congress’ intent that TAA-eligible [eligible for trade adjustment assistance] workers be quickly returned to work or quickly provided with the training they need to succeed in the labor market. In light of this argument, the Department encourages public comments on this issue, [id. at 50784-50785.]
We find it noteworthy that Congress framed this authority as the power to waive “the requirement to be enrolled in training described in subsection (a)(5)(A),” which is the same subsection that contains the deadlines. See 19 USC 2291(c)(1). Because the deadlines are contained in this subsection, when waiving the requirements of § 2291(a)(5)(A), the Secretary of Labor also presumably waives the accompanying deadlines. This is evidence that Congress contemplated that the Secretary of Labor might issue waivers even after the deadlines found in § 2291(a)(5)(A)(ii).
This is may very well be the case for Jordan.
Congress also provided that, when a waiver is revoked, a worker might still obtain TRA benefits under the enrollment provision if the worker enrolls in an approved training program within a period set by the Secretary of Labor after the termination of the waiver. See 19 USC 2291(a) (5) (A) (ii) (IV). It is telling that Congress did not choose to effect this provision through a tolling mechanism — that is, Congress did not provide that the grant of a waiver tolls the period provided under § 2291(a)(5)(A)(ii). Instead, it authorized the secretary to establish a new period after the revocation of the waiver. The decision to handle revocations in this manner further suggests that Congress understood that a waiver could be granted outside the period provided under 19 USC 2291(a)(5)(A)(ii).
We also do not share the Agency’s concern that it must follow the Department’s interpretation or risk breaching its agreement with the Department. Under the Department’s own regulations, the Agency is tasked with following the law. See 20 CFR 617.59. And because we have determined that Congress plainly provided that the deadlines stated in 19 USC 2291(a) (5) (A) (ii) do not apply to waivers, that determination is the law and must be given effect. Chevron, 467 US at 843 n 9.
Even if we were to conclude that the statutory language was ambiguous, we would nevertheless decline to defer to the Department’s construction. The Department’s interpretation is not codified as a regulation. Instead, the Department’s interpretation is found in a letter intended to provide guidance to the various agencies charged with making TRA benefit determinations. Hence, it is not entitled to Chevron deference. See United States v Mead Corp, 533 US 218, 231-235; 121 S Ct 2164; 150 L Ed 2d 292 (2001) (explaining that agency policy statements, manuals, and enforcement guidelines are not entitled to Chevron defer ence). Further, although the letter is persuasive authority, see Skidmore v Swift & Co, 323 US 134, 140; 65 S Ct 161; 89 L Ed 124 (1944), because the letter is inconsistent with the statute’s language and underlying purpose, we would decline to follow it.
Given our resolution of this issue, we decline to address the parties’ alternative arguments concerning estoppel. | [
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Sharpe, J.
Emma J. Eldred executed what purported to be her last will and testament on January 10, 1921. She died on August 3, 1924. The instrument was presented for probate, and, after a hearing on the objections filed, an order denying probate was entered on December 2, 1924. An appeal was taken to the circuit court by the executrix named therein, who was also a legatee. ' On trial in the circuit, the instrument was disallowed by the jury. The proponent here reviews the judgment there entered by writ of error. While both mental incompetency and undue influence were relied upon by contestant to defeat the will, the court withdrew the former from the 'Consideration of the jury. Proponent moved for a directed verdict, and also for judgment notwithstanding the verdict, on the ground of the lack of sufficient proof of undue influence. Error is assigned on the denial of these motions.
Undue Influence. The testatrix was a widow, 62 years of age at the time the instrument was executed. Her husband died in 1914. . They had at that time a daughter, Ethel, the contestant, herein, and a son, who died soon after without heirs. The estate of the father was administered by Ethel. She also looked after her mother's estate in most part until her death. In 1918, Ethel was married to a school-teacher named Wilfred Nevue. They lived in the farm home with the testatrix, renting the farm from her. ' There is proof of strained relations between testatrix and Nevue. The proponent, Dr. Alice J. Vinton, was an intimate friend of the family, and attended the testatrix many times during the ten years preceding her death. She was taken to a hospital in 1919, and treated for nervous troubles. After her daughter's first child was born, in 1920, the testatrix went with the doctor to her home for a visit, but, as the doctor testified,6 asked to remain and pay her board. She stayed there until Ethel and her husband vacated the home in January, 1921.
In the meantime, and soon after she went to the Vinton home, the doctor accompanied her to the office of the probate court and inquired of the register, Mr. Dalton, “if there was something that could be done in regard to arranging Mrs. Eldred’s affairs.” The appointment of a guardian was discussed. Mr. Dalton suggested that the testatrix remain at the Vinton home and the doctor could act as her agent. Dalton had advised with the testatrix on several former occasions, and had drawn a will for her in 1918, in which the bulk of her property had been given to her daughter, Ethel.' After the talk with Dalton, Dr. Vinton accompanied Mrs. Eldred to the office of the Michigan Trust Company, where she signed a paper giving the doctor access to her safety deposit box. The doctor soon after informed the daughter that she was acting under a power of attorney from the deceased. Some months later she accompanied the testatrix to the law office of Mr. Powers, where the will in question was prepared and executed. Mr. Powers had never seen the testatrix before. The-doctor was present during the time the will was prepared.
In this will she bequeathed to her daughter, Ethel, the sum of $10; to Ethel’s young daughter $5; to several other relatives and friends sums ranging from $100 to $400, and to Dr. Vinton the sum of $500. The residue of her estate was bequeathed to Dr. Vinton in trust to convert the same into money and invest it in good securities and to pay to her sister-in-law, Mrs. Hutchings, the income thereof during her life, and on her decease to pay to the United Brethren College at Huntington, Indiana, $1,000, and the balance to the Foreign Missionary Society of the United Brethren in Christ, of Dayton, Ohio. Dr. Vinton was named as executrix in the will.
Shortly after the will was executed the testatrix returned to her own home. She was later committed to the Detention hospital, and afterwards to the Kalamazoo State hospital, where she died on August 3, 1924. The Michigan Trust Company was appointed guardian of her estate. Its report shows that at the time of her death she left real estate valued at $8,400, and personal property valued at $3,880.18, a total of $12,280.18.
In Re Hartlerode’s Estate, 183 Mich. 51, 60, it was said:
“There are certain cases in which the law indulges in the presumption that undue influence has been used, as where a patient makes a will in favor of his physician, a client in favor of his lawyer, or a sick person in favor of a priest or spiritual adviser, whether for his own personal advantage, or for the advantage of some interest of which he is a representative.”
The reasons for the rule thus announced are discussed at length by Mr. Justice Stone and many authorities cited in its support. See, also, In re Bailey’s Estate, 186 Mich. 677; Pritchard v. Hutton, 187 Mich. 346; In re Browne’s Estate, 217 Mich. 621,
The relationship which existed between the doctor and the deceased, and the circumstances under which the will was executed, justify the application of this rule in this case. The only proof offered by the proponent tending to rebut this presumption was her own testimony and that of two neighbors, who were old friends of the deceased. The doctor testified that she never talked to the deceased about how she should dispose of her property; that the deceased told her she wanted to make a will, and asked her what lawyer she employed; that she told her Mr. Powers had drawn a contract for her some years before, and she said, “Well, take me to that man.” Mrs. Ketchall testified that deceased talked to her about making a will before she went to Dr. Vinton’s home, and said she wanted to make a will so that her daughter couldn’t get it if her husband “was alive or living with her,” and said she was going to divide her property between her “friends and the church. She was going to give a lot of it to the church.” Celia Smith testified that the deceased, when visiting her during the time she was at Dr. Vinton’s, said that the doctor was “her friend and adviserthat “she was glad she had made a will, because she had things fixed up, she thought, satisfactorily.” But she also testified that deceased said, “well, I guess, more than once, that she had made her will, and that Dr. Vinton had advised her to make this will.” Mr. Johnson, an attorney of Grand Rapids, connected with the Michigan Trust Company, testified that the deceased consulted him several times about her property matters after she had left the home of Dr. Vinton; that she wanted him to bring a suit against the doctor, claiming she had sold an automobile belonging to her without authority, and that when he suggested writing to the doctor about it she said, “It won’t do any good,” and that on several occasions she said to him, “I want you to draw a will for me.”
It is clearly apparent that the deceased was not in good health at the time she went to Dr. Vinton’s, and that her mind was beginning to weaken.
“The undue influence sufficient to set aside a will must depend to some extent upon the physical and mental condition of the testator. The two are usually intimately connected. What would be undue influence in a case of physical and mental weakness would not be undue influence where he was in the full possession of his mental faculties.” In re Seymour’s Estate, 111 Mich. 203, 205.
We have not overlooked the many cases cited and quoted from in proponent’s brief, including the recent case of In re Bulthuis’ Estate, 232 Mich. 129. In our opinion, they are not controlling on the facts presented on this record. Proponent’s motion for a directed verdict was properly denied.
Charge of the Court. Error is assigned on several extracts from the charge of the court. In it he cast the burden of proof on the contestant to maintain the charge of undue influence. We have read it with care, and we think it fully and fairly stated the claims of the respective parties and the rules of law by which the jury should be governed in their deliberations.
The judgment is affirmed, with costs to appellee.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Boyles, J.
The only question of law in this case is whether the court had lost jurisdiction to sentence defendant by suspending sentence for about 19 months.
George Cordell, appellant, was informed against in Wayne circuit court, along with other defendants, charged with having conspired to obstruct justice. The case was tried before a jury with Hon. Earl C. Pugsley, judge of the Oceana circuit, presiding. On December 15, 1941, the jury returned a verdict of guilty as to 23 defendants including appellant. On January 7,1942, Judge Pugsley sentenced Cordell to not less than two nor more than five years in State prison. Cordell set about perfecting an appeal to this court which was dismissed by order of this court on stipulation of counsel August 18, 1942.
On August 19, 1942, Cordell presented a petition to Judge Pugsley, reciting the dismissal of the appeal, alleging that he had been inducted1 into the armed services and ordered to report for service August 22,1942, that he desired to voluntarily enlist, and asking that the court set aside the sentence and hold any other sentence in abeyance until he had been released from the armed services. On the same day Judge Pugsley entered the following order:
“It is hereby ordered, adjudged and decreed that, the sentence heretofore imposed upon the said George Cordell on the 7th day of January, A.D. 1942, be and the same is hereby set aside and held for naught.
“It is further ordered, adjudged and decreed that any subsequent sentence that may be entered by this honorable court will be held in abeyance until the said George Cordell has been discharged and/or returned from service in the armed forces of the United States.”
Cordell served seven months and three days with the armed forces and was discharged because of a change in the age requirement. -His service commenced August 22, 1942, and continued up to the month of March, 1943. He thereupon returned to this State. Defendant is in disagreement with the sentencing court as to what occurred thereafter. Judge Pugsley, in certifying the record to this court after leave to appeal was granted in the instant ease, states:
“I further certify that during the spring of 1943 the said petitioner did appear before this court while sitting in chambers in the circuit court in the city of Detroit, Wayne county, Michigan, and did then and there advise this court that he had been discharged from military services and that he had been further advised by military officials at the time of his discharge that his services should be more beneficial to the government in the conduct of the war industry in which he claimed to have been engaged immediately prior to the time he entered the military service of the United1 States. Whereupon this court took under advisement, without any promises or assurances to the petitioner, the further order and judgment of the court, and with the understanding that the said petitioner would later report to the court to abide the judgment and order of the court when and where he should be notified to do so.
“I further certify that I caused further investigation to be made in the premises through the probation department of the circuit court of Wayne county, Michigan, and upon my return to Detroit in March, 1944, the said petitioner was notified to appear before this court, whereupon the proceedings were had as more fully appears in the foregoing transcript of proceedings had on March 29, 1944, to which reference is hereby made.
“I further certify that suspension and deferment of the sentence in said cause was made upon the application of the petitioner represented by counsel and that the defendant was also present in court represented by counsel on the 29th day of March, 1944, as more fully appears herein, and that no objections were then and there made to the sentence of the court as then modified and rendered.”
The transcript of the proceedings before the sentencing court on March 29, 1944, shows that defendant by request appeared before the court on that day in person and by counsel, and that the court stated:
“The record may show that in the case of People v. George Cordell, et al., No. 21,096, that the defendant was requested by the court to appear here this morning to abide the order of the court relative to the sentence heretofore imposed by the court on the 7th day of January, 1942, at which time he was sentenced to serve a term of not less than 2 nor more than 5 years in the Southern Michigan prison at J ackson.
‘ ‘ Subsequently, and pending an appeal to the Supreme Court', this sentence was suspended on account of the fact that it appeared to the court that defendant had been taken into the service of the United States army, and his sentence was suspended until his return.
‘ ‘ He has since then returned and is not now in the United States army, and I am ready to consider at this time any reasons, if any there are, why the sentence originally imposed in this case should not become effective.”
Following a statement by defendant’s attorney as to his service in the forces of the United States, his discharge and subsequent work, the court announced :
“As a matter of fairness'to Mr. Cordell, I am disposed to give him credit on the term of 2 years for which he was sentenced, for the time which he served in the United States army; in other words, reducing the minimum of his sentence by 7 months. * # * The sentence, as amended, will be for not less than 17 months nor more than 5 years from and after the 17th day of April. I am giving him until that time to arrange some matters which I understand he has to take care of.”
On the same day a record of the sentence was entered on the journal of the circuit court, as follows :
“At a session of the circuit court for the county of Wayne in the court house in the city of Detroit, on the 29th day of March, A. D. 1944.
“Honorable Earl C. Pugsley, circuit judge.
‘ ‘ George Cordell, the defendant in this cause, having heretofore on January 7,1942, been sentenced to State Prison of Southern Michigan for a period of not less than 2 years, nor more than 5 years, and said sentence having been suspended, until the defendant, George Cordell, shall have been discharged, it is ordered by the court now here that the sentence previously imposed be amended to one of not less than 17 months, nor more than 5 years, said sentence to begin April 17, 1944.”
From this sentence leave to appeal was granted- and execution of the sentence stayed by this court. The only question raised on the appeal is, whether under the foregoing circumstances the court was without jurisdiction to impose sentence on March 29, 1944. More precisely, the question of law is whether the sentencing court, after-suspending sentence at the request of the defendant for a period of 19 months, lost jurisdiction to impose sentence.
It is plain that the probation provisions of the code of criminal procedure (Act No. 175, chap. 11, Pub. Acts 1927 [3 Comp. Laws 1929, § 17371 et seq. (Stat. Ann. § 28.1131 et seq.)]) have no application. While modern conceptions of penology recognize the desirability of suspending sentence on a convicted person for a period of probation during good behavior, this defendant was not put on probation in conformity with the probation statute.
The statute authorizing the judge of the sentencing court to pronounce judgment and pass sentence on persons convicted of crime does not provide the answer, except to the extent that it does not in express terms declare when sentence must be pronounced. 3 Comp. Laws 1929, § 17329 (Stat. Ann. § 28.1072). Several early decisions of this court, beginning with Weaver v. People, 33 Mich. 296, in 1876, have considered the question and are claimed by appellant to control decision in the instant case. At the time these early cases were decided the statute above referred to, in so far as it applies to the instant question, was substantially the same as now (cf. 2 Comp. Laws 1871, § 7997).
In Weaver v. People (1876), supra, the defendant pleaded guilty, the circuit judge suspended sentence until the first day of the next term of court, and the defendant gave recognizance to appear at that time. He was not called in for sentence at the next term nor sentence further suspended. A year later another circuit judge, sitting temporarily in the court where conviction was had, imposed sentence of imprisonment. On review, this court said:
“Sentences may be suspended for various purposes. It may be for the purpose of allowing steps to be taken for a new trial, or other relief, or it may be with a view of letting the offender go without punishment. The release of a defendant on his own recognizance and without sureties, in a merely nominal amount, signifies usually the latter purpose. It at least is a plain assertion of the judge that he did not regard the offense as one that should receive a serious punishment. The failure to take steps during the October term of 1874 was a practical abandonment of the prosecution, and corroborates the opinion that such must have been understood as the object of the suspension, and as the record stands, it is fairly to be inferred it was intentional. To sentence a prisoner to the penitentiary under such circumstances, and when the trial judge has distinctly said he ought not to be so sentenced, is not supplying his omissions, but is overruling his decision. This we think not admissible, and the sentence was unauthorized, and the judgment must be reversed, and the prisoner discharged.”
It is plain that the situation in the Weaver Case, supra, is distinguishable from the case at bar. In the instant case prosecution was not abandoned and the contrary clearly appears in the action of the court in suspending sentence and expressly holding further action in abeyance until defendant was discharged from the armed forces.
In People v. Reilly (1884), 53 Mich. 260, defendant was convicted of crime on October 22, 1881, motion made for a new trial, defendant admitted to bail, and sentence was suspended indefinitely. The motion for new trial was "denied and on November 28, 1882, about 13 months after conviction, the defendant was brought before the court and sentenced to imprisonment. Justice Sherwood wrote:
“Under the third assignment of error the respondent’s counsel claim that the suspension of sentence was so long that the court lost jurisdiction to make the sentence he did. Under our practice courts may, for good cause, suspend sentence a reasonable length of time after trial and conviction. Weaver v. People, 33 Mich. 296. We find nothing in the record showing an abuse of the descretion vested in the judge.”
Justice Champlin disagreed with Justice Sherwood on that point but with apparent inconsistence agreed that there were no errors calling for reversal of the judgment. Justice Cooley concurred. To this extent the case is authority for the conclusion that at that early date the court did not consider that a suspension of sentence for 13 months deprived the court of further jurisdiction.
In People v. Kennedy (1885), 58 Mich. 372, the defendant was convicted of crime on November 28, 1883. By various court orders and for various reasons sentence was deferred until in March, 1885, when the defendant was sentenced to 10 days in the county jail. The court set aside the sentence on the ground that the maximum time for which de fendant might have been imprisoned (90 days) had expired before the last time sentence had been deferred. The conrt said:
“The principle in this case is the same as if the defendant had' been in confinement, as he was under bonds and in the custody of the court; and the deferring of sentence was not asked by him or his counsel.”
Neither of the two reasons for which the sentence was • set aside in the above ease is present in the case at bar.
In People v. Meservey, 76 Mich. 223, the trial court had sentenced the defendants to imprisonment in State prison, and the defendants had been remanded to the county jail to be transferred to the prison. The defendants then made an unsuccessful attempt to escape from the county jail, whereupon the court had the defendants again brought before him, set aside the sentences and resentenced them to longer terms in State prison. The court held that the original sentences had gone into effect, that the attempt to set them aside, together with the imposition of the second sentences, were void. The defendants were remanded to serve the terms of their first sentences. There is small consolation in that case for the defendant now before us. If we were to hold that the act of the court in the instant case setting aside the first sentence and later sentencing this defendant to a minimum of 17 months’ imprisonment was void, and remand the defendant for carrying out the original sentence, defendant’s minimum term would be two years ^instead of 17 months. But the difference in circumstances is apparent. In the case at bar the execution of the original sentence had not' been started, and the setting aside of the sentence as well as deferring of further action was in response to defendant’s express request.
In People v. Jagosz, 253 Mich. 290, the trial court imposed sentence 63 days after conviction without any showing of the cause for delay, and the claim of error on that ground was dismissed by this court with the terse statement:
‘ ‘ There was no error in the delay. ’ ’
Our review of the foregoing cases relied on by defendant is convincing that they are distinguishable by their circumstances from the case at bar. In this case the court granted the defendant’s request that the sentence of two years’ imprisonment be set aside, and1 his further request that the court “hold any other sentence in abeyance until the said defendant Cordell has been released from the armed forces of the United States government.”
Defendant argues that the power to suspend sentence for an indefinite time is equivalent to the power to pardon, and that this power rests solely in the governor. Admittedly this theory was ex-pounded1 in some of the early decisions of this court (e. g., People v. Brown, 54 Mich. 15). However, in considering a statute which expressly authorized the court to suspend sentence indefinitely of one convicted of desertion or abandonment of his wife or minor children (Act No. 144, Pub. Acts 1907) this court held it did not infringe on the pardoning power of the governor. The court said:
“The power to suspend sentence and the power to grant reprieves and pardons are distinct and different in origin and in nature. It has never been supposed that the power of courts to suspend sentence was other than a judicial function. It has been frequently and constantly exercised by courts of record before and since the adoption of the Constitution. * * * Assuming the power to be, as it was at common law asserted to be, a power inherent in courts, no new power is conferred upon courts when the legislature in terms authorizes courts to suspend sentence. The distinction between the pardoning power and the power to suspend sentence is clearly pointed out in the opinion in People, ex rel. Forsyth, v. Court of Sessions, 141 N. Y. 288 (36 N. E. 386, 23 L. R. A. 856). It is said:
“ ‘The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and all civil disabilities remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.’
“We do not find in the language employed in the act or in its probable effect if enforced any encroachment upon the exclusive power of the executive to grant pardons. * * *
“We cannot assume that interference with the judicial power was intended, or that the design was to confer any new power. The proviso must be read so as to sustain, and not destroy, the legislation if such reading is reasonably possible. No condition is imposed upon the exercise of the power of the court to impose sentence in conformity with the statute and a discretion judicially exercised. , * * * It is said in argument that one found guilty of violating the statute may be subjected for an indefinite period to judicial espionage, and at the end of such period be sentenced. We have already indicated, and this is a complete answer to the objection, that the statute will not be construed as conferring upon the court any new power.” People v. Stickle, 156 Mich. 557, 563.
In the case at bar the defendant not only consented to setting aside the sentence first imposed, and the deferring of further action, hut actually requested it of the court. Defendant now argues that jurisdiction to impose the later sentence could not be conferred by consent, having once been lost. This argument is based on the false assumption that the court lost entire jurisdiction over the defendant by the lapse of time between the suspending of sentence and the final sentence, notwithstanding the fact that this was done at defendant’s request. This court has adversely answered defendant’s contention, in Re Tinholt, 223 Mich. 483, where the court said:
“On habeas corpus and accompanying certiorari, plaintiff Tinholt seeks to avoid the sentence imposed, contending that by indefinite and unreasonable postponement of sentence the court lost jurisdiction.
“On November 14, 1922, in the November term of the court, he was convicted of violating’ the prohibition law. On December 8th following, that being the general sentence day of the term, he appeared for sentence. It seems that the prosecuting attorney was hopeful of obtaining, by the aid of plaintiff, evidence of other violations and requested a postponement of sentence. Plaintiff consented to an indefinite postponement. No order was entered, but the court informed plaintiff ‘ that the sentence would be delayed and that he could appear later for sentence.’ On April 18,1923, he was notified to appear for sentence on April 20th following. He appeared and objected to sentence for the reasons stated. Sentence was then pronounced.
“By consenting, plaintiff has waived the right to complain of the indefinite postponement. Assuming that, though the agreed postponement was indefinite, the delay thereunder should not be unreasonable, we find, under the circumstances, no unreasonable delay.”
Sentiment has no place in our discussion of the law of the case. Nor do we see any occasion to re sort to or discuss the decisions from other jurisdictions cited and argued by counsel, indicating a lack of uniformity in deciding the question. The conclusion which we now reach, that the court had jurisdiction to impose the sentence complained of, is in conformity with the previous decisions of this court.
The judgment is affirmed1 and the case remanded for execution of sentence.
North, C. J., and Starr, Wiest, Butzel, Bushnell, Sharpe, and Reid, JJ., concurred. | [
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Butzel, J.
Meta Brinker was struck and severely injured by a coal truck operated by John A. Cowans, who was delivering coal for Koenig Coal & Supply Company, defendant herein. She brought suit against the latter. Edward Brinker, her husband, also plaintiff, brought suit against the same defendant to recover consequential damages because of his wife’s injuries. The,suits were consolidated for trial and each plaintiff was awarded a verdict for a substantial amount by a jury. The judge denied motions by both plaintiffs and defendant to direct verdicts, and also to set aside the verdicts on motions for judgments non obstante veredicto. The defendant appeals. The cases are brought here on one record and single briefs. No question is raised on appeal as to the negligence and amounts of the verdicts. The main question is whether the party who drove the truck was an employee or servant of defendant or, as defendant claims, an independent contractor with whom defendant made a contract for hauling coal.
Defendant claims that the court should have held from the evidence that defendant entered into an oral contract with the owner to deliver coal on a price per tonnage basis, and that the relationship- of independent contractor as to the owner and incidentally the driver of the truck was thus created, and the verdict should have been directed in its favor as a matter of law. Brief review of the facts is necessary.
Defendant, in order to earry on its large coal business, used its own trucks with drivers who were on its payroll, and it also hired privately-owned trucks to do hauling and paid for the latter on a tonnage basis of coal delivered with an additional payment in case the coal would have .to be hauled to a proper receptacle or bins when it reached the premises of customers. Naturally its contract was made with the owners of the trucks. A separate and distinct record was kept as to carriers who owned their own trucks and furnished the drivers. The latter were called by defendant on some of its records and al^o were referred to by its witnesses as “contract carriers.” This title, while pertinent and possibly of some probative value, does not definitely establish the relationship and does not conclusively show that they were independent contractors. There was no written contract and the facts, not the name ascribed to the carriers, established the relationship. There was no agreement for any term between the parties. Either one could terminate the relationship at any time without notice.
Willie Sawyer, the owner of the truck in question, came to one of defendant’s yards and saw its agent in charge who had authority to make the agreement. Sawyer agreed to haul defendant’s coal with his truck, to satisfy and be courteous to the customers, and to pay for any damage caused. According to defendant’s witnesses the truck was to be driven to the designated yard of defendant. There the weight of the truck with the driver was first recorded and the driver was thereupon given a slip as to quantity and kind of coal he was to deliver. The driver went to the silos or receptacles in which the coal was stored and loaded the quantity and quality of coal designated. He then drove back to the scales where the truck, driver and the load were weighed. If the driver had been ordered to deliver a certain tonnage, he first loaded his estimate of the amount of the tonnage ordered, then when the truck with the driver and the coal were weighed, if it were shown that the weight was under or over the tonnage specified, the driver was obliged to either remove some or load additional coal so as to get the correct amount. The driver was shown the place of delivery on a map. He was not ordered to take any designated route nor given instructions as to speed, et cetera. "When he arrived at the place of delivery, he was obliged to see that the coal was properly delivered to the bin or receptacle of the customer. At times he might be able to use a chute from the truck or dump the coal on the ground and use a wheelbarrow to make complete delivery. He was also required to clean up the premises so that no coal was left outside, also to obtain a receipt for coal delivered, and collect the amount of the bill if it was a C.O.D. order, and then return the receipt together with the moneys collected to defendant. He was paid $1.30 per ton for delivery plus a wheeling charge of 50 cents per ton, if the coal had to be wheeled in.
The contract was made with Willie Sawyer. At first he used a different party to drive the truck, but in the early part of October, 1943, Cowans came to defendant’s office. He testified as follows:
“I came in the office, I said I am dr wing Willie Sawyer’s truck, that was the first day I started, he called them up and told him — the other boy reported wouldn’t be able to work any longer because he had to go back in the factory, Sawyer called him up, and told him he had a new guy, I went over and I told him I was driving Sawyer’s truck.”
From that time on, before and after the accident, Cowans drove the truck. On December 22, 1943, the day of the accident, he took out three loads to various parties, making eight deliveries. Defendant paid $12 to Cowans the day of the accident for delivering coal. From September 13, 1943, to January 17, 1944, the amount paid for the hauling by defendant was $1,298.13. During the period that Cowans drove the truck, it was used exclusively for defendant’s business. Cowans was not carried on the payroll of defendant. Cowans’ arrangement with Sawyer was that the latter Avould furnish the truck, Cowans would do the hauling7 and after the expenses for gas 'and oil had been deducted and repaid to SaAvyer, the profits were equally divided. The arrangement was more in the nature of a joint venture. It Avas not a partnership. Defendant knew that Cowans was driving the truck. During this period the truck was used 82 days and made 231 different trips for defendant. Under these conditions, the query arises whether defendant did not have a sufficient right of control over Cowans so as to make itself legally responsible for Ms negligence while driving the truck and delivering coal for defendant.
The trial judge stated that the question was in the twilight zone and left the determination to the jury. Assuming that defendant is correct, in its claims that the judge should have decided the question as a matter of law, nevertheless defendant was not harmed thereby, because it had the benefit of the jury passing upon the question and the judge subsequently in his opinion in deciding the motion for a judgment non obstante veredicto, finally and unequivocally held that under the facts there was not an independent contract relationship.
While the question is a difficult one, it has been very frequently before the court in various States. See 128 A. L. R. 1101, and annotations with reference to previous ones. There would be no benefit in discussing the decisions from other States. We believe the question has been settled in this State. It is true that we have many borderline cases such as Gall v. Detroit Journal Co., 191 Mich. 405 (19 A. L. R. 1164); Zoltowski v. Ternes Coal & Lumber Co., 214 Mich. 231; Brown v. Standard Oil Co., 309 Mich. 101; Bradley v. Republic Creosoting Co., 281 Mich. 177. In these cases the factual setup is very different from that in the instant case. The instant case resembles that of Dennis v. Sinclair Lumber & Fuel Co., 242 Mich. 89, wherein Mr. Justice Wiest, speaking for the court, said:
“Mr. Dennis was hired, with use of his truck, to deliver coal in retail quantities to customers of the lumber and fuel company. Iiis every act was under direction and control of the company. The coal for delivery was selected by the company, weighed under its supervision, billed by the company, and de livered in each, instance under its immediate direction, and, if not paid for before or at delivery, was brought back, and, if -paid for on delivery, the money was brought to the company. * * * _
_ “This court has held that the test of the relationship is the right to control, whether in fact exercised or not. Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385 (Ann. Cas. 1918 C, 664)._ Mr. Dennis served the lumber and fuel company, in accord with its direction as to each load, under its right to control his movements and command his services in carrying out its business requirements, and the company had a right to dispense with the same at will without liability. Mr. Dennis was an employee and not an independent contractor.”
Agáin in the case of Lewis v. Summers, 295 Mich. 20, wherein a minority opinion was filed expressing many of the contentions of defendant’s herein, the majority opinion was signed by five of the seven Justices who sat in the case and who upheld plain-' tiff’s contention. Mr. Justice Wiest, again speaking for the court, said:
“We had occasion in Dennis v. Sinclair Lumber & Fuel Co., 242 Mich. 89, to consider a quite similar case of employment. In that case Mr. Dennis was hired, with use of his truck, to deliver coal in retail quantities to customers of the lumber and fuel company. His every act was under direction and control of the company. The coal for delivery was selected by the company, weighed under its supervision, billed by the company, and delivered in each instance under its immediate direction, and if not paid for on delivery, the money was brought to the company.” (Then follows a quotation from the Dennis Case, as given above.)
Under the law as established in this State, we believe that the driver was defendant’s employee. Plaintiffs were entitled to recover and the judgments are affirmed, but with only one taxation of costs to plaintiffs.
Stale, C. J., and North,' Bushnell, Sharpe, Boyles, and Beil, JJ., concurred. The late Justice ■Wiest took no part in the decision of this case. | [
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Reid, J.
The bill was filed for an injunction restraining defendant A. W. Kutsche & Company from presenting' before an arbitration board its claim against the city arising out of a contract for construction of a sludge digestion tank, elutriation tanks and gas. holder for a sewage treatment plant, and to restrain three defendants, members of a board of arbitration, from proceeding to arbitrate the claim of A. W. Kutsche & Company, hereinafter referred to as the defendant. The members of the board make no defense.
The contract provided for arbitration of claims and disputes arising under it, but plaintiff claims that the provisions therefor were revocable unilaterally, that defendant lost the right and plaintiff lost the benefits of arbitration by defendant’s failure to give timely notice of the various items of its claims from time to time as they arose, thus preventing plaintiff from demanding arbitrations as the work progressed, and that defendant failed to make timely demand for general arbitration. '
Defendant denies these statements and theories and claims that plaintiff does not come into the equity court with clean hands and that plaintiff has 'an adequate remedy at law. The parties agree that the provisions for arbitration in question do not come under or within the Michigan arbitration statute. The general policy of this State is favorable to arbitration, as shown by 3 .Comp. Laws 1929, § 15394, as amended by Act No. 182, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 153945.Stat. Ann. 1943 Rev. § 27.2483), enacted after this controversy arose. See, also, Alpena Lumber Co. v. Fletcher, 48 Mich. 555, 569. If parties desire arbitration, courts should encourage .them, but the nature of such a contract requires faithful compliance with its terms, otherwise the parties will find themselves in the forum they sought to avoid.
The contract provides, among other things ¡
“19. Arbitration.
“The contract contains a provision for arbitration as to any matter of dispute involving time or financial considerations and said arbitration shall be a condition precedent to any right of legal action under the contract. * * * “20. Claims for extra cost.
“If the contractor claims that any instructions by drawings or otherwise involve extra cost under this contract, he shall give the commissioner written notice thereof within 48 hours after the receipt of such instructions and in any event before proceeding to execute the work, except in emergency endangering life or property, and the procedure shall be as provided for changes in the work. No such claim shall be valid unless so made. * * * “27. Damages.
“Any claim for damage arising under this contract shall be made in writing to the party liable within a reasonable time of the first observance of such damage and not later 'than the time of final payment, except as expressly stipulated otherwise in the case of faulty work or materials, and shall be adjusted by agreement or arbitration, f * * ‘£ 34. Engineer’s decisions.
“The engineer shall, within a reasonable time after their presentation to him, make decisions in writing on all claims of the city or the contractor and on all other matters relating to the execution and progress of the work, or the interpretation of the contract documents.
“All such decisions of the engineer shall be final except in cases where time or financial considerations are involved, which, if no agreement in regard thereto is reached, shall be subject to arbitration. * * #
£ £ 39. Arbitration.
“Any decision of the commissioner where time or financial considerations are involved shall be sub mitted to arbitration upon the demand of either party to the dispute.
“The contractor shall not cause a delay of the work during any arbitration proceedings, except by agreement with the commissioner.
“The demand for arbitration shall be filed in writing with the commissioner, in the case of an appeal from his decision, within ten days of its receipt and in any other case within a reasonable time after cause thereof and in no case later than the time of final payment, except as otherwise expressly stipulated in the contract. If the commissioner fails to make a decision within a reasonable time, an appeal to arbitration may be taken as if his decision has been rendered against the party appealing.”
The benefit that plaintiff would derive from timely notice of a claim is that while the controversy was fresh, the engineer and others could see the status of the construction still in progress, and witnesses would still be available and' would possess a better recollection of the matters. In consequence, the plaintiff could seasonably demand arbitration and better present its case. Demand for arbitration could not be made until the claim was presented. Defendant appropriately cites from McCullough v. Clinch-Mitchell Construction Co. (C. C. A.), 71 Fed. (2d) 17:
“It is common knowledge that arbitration provisions of this character are almost universal in construction contracts to prevent the harassments, delays, and losses likely to result to some or all of the parties thereto arising from differences ocr curring during the progress of the work. All construction contracts involve matters as to character of materials, of work, and of methods of doing the work. Determination of such is necessarily a matter of judgment and often the diverse interests of the parties cause difference of opinion with resulting disputes concerning them. It is to the interest of all parties that these disputes he promptly determined and by some one having special knowledge of such matters and who can act upon personal knowledge of the controlling facts.”
Plaintiff justly complains of the loss of such benefits through defendant’s delay.
The contract was entered into February 23, 1938. The work was to be completed December 31, 1938, the price $261,963.04, all of which was paid except $13,245.75 withheld until final estimate. The work was substantially or 97 per cent, completed on March 1, 1939. Some items of construction claimed as uncompleted were pointed out by plaintiff in July, 1939. ■ Nearly all items of plaintiff’s claim occurred before March 27, 1939. All were for matters occurring during the construction. Many of the items were without the 48-hours’ notice required in article 20 and many without any notice whatever. Correspondence over contract matters took place. On September 19, 1938, plaintiff wrote defendant:
“Should you still feel you have a claim against us in this, the procedure for arbitration is well outlined in the contract documents. * * * We again want to emphasize the importance of proceeding without delay in accordance with the instructions given you in Mr. Johnson’s letter of September 16th and again point out to you that you have the privilege to arbitrate any decision or instruction involving financial considerations, in your opinion, in accordance with article 39 * * ■ * We wish also to point out that any delay to the work regarding the matters outlined above caused by you violates article 39 referred to above.” (Italics supplied.)
To which defendant replied, September 21, 1938:
“We can see no reason why you should refuse to pay for such charges, nor do we see any reason for leaving matters of this nature for arbitration. However, if you insist on taking advantage of the arbitration clause in our contract, please accept this letter as notice that we shall present a claim for extra cost as called1 for on page 33, paragraph 20.”
This was about midway in point of time from inception to conclusion of construction. In response to requests in July, 1939, for payment, the city was furnished a detailed statement of items of defendant’s claim, April 10, 1940, and additional data, May 1, 1940.
During the construction the commissioner did not receive any notice under article 20 of the contract.
Article 20 requires the contractor to give the commissioner written notice that instructions will involve extra cost within 48 hours after receipt of the instructions, otherwise the claim for such extra cost is invalid. Defendant’s claim is largely composed of such items. It must surely be a greater burden thrown on plaintiff’s shoulders to prove want of such 48-hours l notice after' two or three years than promptly to prove that fact before arbitrators during progress of the work.
There would be no point in prescribing in the contract limited periods within which demand for arbitration during the construction must be made, if a demand could be made for a general arbitration to include the same matters after the work ’ was finished.
The words in article 39, “shall not cause a delay of the work during any arbitration proceedings,” indicate that . special arbitrations were contemplated to take place while the work was going on.
Articles 19, 27 and 34 indicate a general arbitration. In article 39 special arbitrations are provided for, which are to be considered as the only kind of arbitration contemplated for the subjects there specified.
Defendant in a very skillful presentation of its case gives in great detail the history of the doctrine of revocability of arbitration contracts. As to the nature of the items in dispute, defendant’s brief sets forth:
“The disputes to be arbitrated arise partly out of delays for which plaintiff is claimed to be responsible and partly out of plaintiff’s insistence upon erroneous or unreasonable interpretations of the specifications * * * (which) increased the. contractor’s costs by requiring impractical procedures and extra labor.”
Defendant claims the arbitration in this case falls within the second exception announced in Sieweck v. F. Joseph Lamb Co., 257 Mich. 670, 676:
“There being no provision for statutory arbitration, defendant has failed to sustain' the burden of showing that the agreement came within one of the exceptions to the general rule that an arbitration agreement is not a bar to action. These exceptions are:
“(a) Where the contract makes arbitration a condition precedent, express or implied, to bringing suit.
“(b) Where the contract is-one for construction, paving, or installation.”
Defendant’s own version as to the nature of the disputes in the instant case that are the foundation of its claim is that they “arise out of the execution of the work.” Such claim is subject to special arbitrations as to its various items and not general arbitration.
Tbe time within which arbitration must be demanded for such disputes is expressly limited in the articles herein quoted. The trial judge held the arbitration general and revocable unilaterally.
The construction of article 39 is of controlling importance. Under article 39 either party could appeal to an arbitration board from any decision of the commissioner on any claim by filing with the commissioner a written demand for arbitration within 10 days of receipt of a written decision. If the commissioner did not make a decision within a reasonable time, appeal could be taken by either party the same as though a decision had been rendered against such appellant. If any claim in any other case arose, the demand for arbitration could be made within a reasonable time after cause thereof.
In no case could demand1 for arbitration be made “later than the time of final payment.” These words cover no claim involved in this suit but if given a forced meaning might have the 'effect of wiping out all preceding limitations on the time for demanding arbitration and practically strike out the words, “within 10 days of its receipt” and “within a reasonable time after cause thereof,” just preceding in article 39 if made to apply to the matters covered in the preceding part of the same paragraph.
The rules of construction require that all clauses of the contract be given an effective and1 reasonable meaning if fairly possible. Therefore whatever effect is to be given to the words, “and in no case later than the time of final payment,” these words do not cancel the 10-day limitation or the limitation to a reasonable time within which arbitration could be demanded. The delay in making the demand until after the work was completed was an unreasonable delay in making a demand which was intended and required to be made during the progress of the work.
The construction was finished before September, 1939. In the midst of the work in September, 1938, plaintiff offered permission to defendant to bring on arbitration, which defendant was otherwise too late to demand as to defendant’s then already discussed claims. Defendant declined1 to institute arbitration proceedings. Plaintiff withdrew its offer long before demand for arbitration was made by defendant in 1940. In its letter in 1938, claimed as a waiver and hereinbefore quoted, plaintiff insisted that there be no delay in respect thereto. Defendant claimed' before the trial judge that plaintiff agreed to continue the privilege of special arbitration but the record fails to show such agreement. Arbitration is not defendant’s peculiar privilege. Plaintiff is at least equally interested.
The record on this appeal clearly shows that the defendant herein has repeatedly breached the terms of the contract for arbitration. We think the contract for arbitration, notwithstanding it contains provisions evidently aimed at different types of claims, should be construed1 as one instrument. Since the defendant has breached the contract he cannot be permitted thereafter to have arbitration over the objection of the other party to the contract. To hold otherwise would be to enable the contractor in effect to obtain specific performance of the very contract he had breached. It follows that the defendant herein is not entitled to arbitrate. The foregoing ground of decision in the instant case is applicable rather than the claim of plaintiff that the contract for arbitration is revocable unilaterally.
Defendant neglected1 to give proper notice of its various items during the progress of the work and thus deprived plaintiff of its opportunity to demand arbitration at the time and under the circumstances that would make it most desirable, efficient and accurate. Defendant has not made demand for arbitration within any of the various periods specified in article 39 for making demand, as to any item of its claim under any proper construction of the article, and now has no right to demand it. By defendant’s own statement, its claims are such as the contract contemplated should be arbitrated as the work progressed.
Plaintiff had a right to file this bill on the showing made and its avoidance of the arbitration clauses is justified by defendant’s conduct, otherwise revocation would be inequitable. Plaintiff has not merited the aspersion that it comes into a court of equity with unclean hands. So far as this record shows the city officials have simply performed their duty honestly in investigating and disallowing a claim they consider without merit. A court of equity may set aside an award not made under the contract. M’Curdy v. Daniell, 135 Mich. 55.
The defendant arbitrators have no authority to make an award under or outside of the contract. The question whether defendant’s claim can appropriately and lawfully be submitted to a board of arbitration is properly brought before the equity court on this bill of complaint. Defendant has no right to resort to arbitration and plaintiff declines arbitration.
"While the contract prescribed arbitration as a condition precedent to bringing suit, plaintiff, having asserted the right of revocation, is relegated to the position of having revoked the contract as to arbitration, and1 the condition precedent is considered by us as having been waived or abrogated.
The decree appealed from is affirmed, without prejudice to defendant’s right to sue on its claim, and with costs to plaintiff.
North, O. J., and Starr, Wiest, Butzel, Bushnell, Sharpe, and Boyles, JJ., concurred. | [
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Wiest, J.
This is a suit to rescind an exchange of properties on the ground of fraudulent representations claimed to have been made by a son of defendants who managed the deal for them. But one alleged misrepresentation need be considered, for, if established, it calls for rescission.. Plaintiffs had an equity in a home in the city of Detroit, accepted in the exchange at a value of $6,707. Defendants owned a store building, cottage, and barn, on a large lot in Tipton, Lenawee county. • Gerald Conlin, son of defendants, in business in Detroit, placed an attractive advertise ment of the property in a Detroit newspaper and this brought plaintiffs to see him. An exchange of the properties was effected, plaintiffs turning over their equity in their home and taking the Tipton property at a value of $12,500. Plaintiffs also borrowed $1,000 of defendants and this was added to the contract for the Tipton property.
Plaintiffs claim Gerald Conlin represented there was an offer of $6,000 by the Moreland Brothers Company, for 50 feet square at the corner of the property, and this was a principal inducement as it would permit them to move the store building to another part of the lot and nearly put them out of debt.
Gerald Conlin denied making such representation and testified:
“I stated it had not been on the market for sale except when Moreland Brothers Company had taken an option with my father for $6,000 for this property. * * * I stated Moreland Bros, did not take this -option, continue this option, they had paid $25 on it and then let it go. * * * I at no time made any representation to anybody that there was a $6,000 standing offer on this property at Tipton. * * * The first time Mr. and Mrs. Larzelere came to the store I told them about the Moreland option. I did not tell them that they had offered $6,000, or an option of $6,000 on the 50-foot corner. The first I ever saw of the 50-foot corner was the day I looked at the allegations in this bill. I never saw the option until after this bill was filed. I did not know what was in the option. I told them that my father had made this option, and that Ogden was considering his business was so bad, and he talked with my father. When Morelands came along they made this option with my father. That it did not represent its value, but represented my father’s idea of the value of this business. * * * It is not a fact that I told Mr. and Mrs. Larzelere that Moreland Brothers Company had offered $6,000 for 50 feet square out of the corner of that property.”
Plaintiff Charles R. Larzelere testified that Gerald Conlin said:
“ ‘We have a standing offer from the Moreland Oil Company. They will move the building, and pay $6,000 for a 50-foot corner, and put in a gas station.’ * * * He never mentioned an option. Every time he spoke of the oil proposition it was always a standing offer. He did not say they had an option on it. He did not say whether it was oral or in writing, and that he never had seen it. If he had told me there was an option on the place and it had expired I would not have been interested in it.”
Joseph E. Larzelere, son of plaintiffs, testified:
“Gerald explained there was a $6,000 standing offer on the 50-foot corner by the Moreland Oil Company, and I said that looked pretty good, because of the fact they could sell that corner and pay off their indebtedness, and still have room enough to move the building over and do business. I asked Gerald Conlin why his father did not take it if they had such a good offer, and he said his father was old and did not care to sell the property off piecemeal.”
Plaintiff Birdie C. Larzelere testified:
“He (Gerald) told me there was a $6,000 standing offer on that property and remove the building. I made the remark, ‘That is not so bad, that would pay our debt to Mr. Conlin, your father, and we would have the property clear.’ I did not know about the expense of moving the building. He said he could not just tell, but he supposed they could move it for $1,000. * * * He said the Moreland people had made this offer and they were a very reliable company. He said the property they were going to 'buy was 50x50. There was nothing said at that time about the Moreland Company having an option on the 50x50.”
Gladstone C. Conlin testified to a conversation with plaintiffs, saying:
“My brother spoke of this option, at the time he was talking about this option I interrupted him, I said ‘This is a verbal option.’ He said, T don’t know, it may be a verbal option.’ I don’t know whether it is written or verbal, but I had always understood it was a verbal option. * * * At no time was the word ‘Standing offer’ ever used. This option was explained as having expired. The word was used that the option was finished or through.”
Mr. Ralph C. Bowers, who was present with Mr. Gerald Conlin at one conversation with Mr. Larzelere, testified:
“In the presence of Mr. Larzelere Mr. Conlin stated that Moreland Bros, had an option on the property and that-it had expired. * * * I am sure Gerald stated to Mr. Larzelere that Moreland Bros. Company had an option, but that it had expired. Mr. Larzelere just mentioned about the option. They both talked it over. The amount of the option was not mentioned.”
September 27, 1923, about a year before this deal, an option, running until November 1, 1923, was given the Moreland Brothers Company covering the whole property at the price of $6,000. This option was not accepted.
The trial judge found the representation, with reference to an offer by the Moreland Company, was made, in substance, as claimed by plaintiffs. We are also so persuaded by the evidence and cannot get away from the thought of how senseless it would have been, under the circumstances, to inform plaintiffs that the property they were buying at $12,500 had been offered for sale on option at $6,000 and rejected.
The decree in the circuit required plaintiffs to pay into court the $1,000 loaned to them, also the amount paid by defendants for taxes on the Detroit property, payments of principal and interest on the contract with the owner for that property, with interest thereon at the rate of five per cent, from the time such payments were made and also file with the clerk of the court a release of their interest in the contract for the Tipton property; that thereupon the defendants should file with the clerk of the court a transfer to plaintiffs of the contract for the Detroit property.
The decree in the circuit is affirmed, with costs to plaintiffs, if plaintiffs comply with the terms thereof within 30 days. If plaintiffs fail in such performance then their bill is to stand dismissed, with costs to defendants.
Sharpe, Steere, Fellows, Clark, and McDonald, JJ., concurred. Bird, C. J., and SNOW, J., did not sit. | [
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WIEST, J.
In a written application for life insurance, Charles Bellestri represented he had never suffered from any ailment or disease of the stomach or intestines and had not, within five years, consulted with or been treated by a physician. This was not true, for he had consulted a physician about stomach trouble a few months before making the application and another physician had taken an X-ray of his stomach. The application for insurance was made June 2, 1922; he consulted a physician in February, 1922; and died September 13, 1922, following an operation for duodenal or gastric ulcer. When proofs of death were made, the cause of death was disclosed and the fact of medical consultation previous to the application for insurance, and the insurance company refused to pay and tendered the premium paid to the beneficiary. The beneficiary brought this suit to recover the insurance and had verdict and judgment. Under plea of the general issue, defendant gave notice of the affirmative defense of fraud perpetrated by the false representations mentioned. Defendant moved for a directed verdict and also for judgment notwithstanding the verdict.
The law provides that statements for life insurance shall not avoid a policy unless made in a written application and a copy thereof be indorsed upon or attached to the policy when issued. Act No. 256, Pub. Acts 1917, pt. 3, chap. 2, subd. 2, § 3 (Comp. Laws Supp. 1922, § 9100 [147]).
A photographic copy of the application, slightly reduced in size, was attached to the policy. The circuit judge, sua sponte, instructed the jury that such copy must be reasonably legible to a person having normal eyesight when examined under ordinary conditions of daylight, and if they found it was not reasonably legible then to return a verdict for plaintiff. The jury found it was not legible and rendered verdict for plaintiff. We have the photographic copy before us, and this was all the jury had, for there was no testimony given on the subject. The copy is clearly legible, and, in the absence of testimony tending to question the obvious, the subject should not have been submitted to the jury. Defendant was entitled to a directed verdict under the undisputed evidence. The court should have entered judgment for defendant notwithstanding the verdict of the jury. Whether the applicant for the insurance was aware of his stomach trouble or not was of small moment at the trial, for the evidence is conclusive that he did know he had consulted a physician about three months before and that an X-ray had been taken, and yet he represented he had not consulted a physician within five years. He concealed a material fact by a false representation. The insurer had a right to know that he had consulted a physician, the application called for such knowledge, and if it had been imparted the insurer could have made investigation.
We have not overlooked section 17, chap. 2, pt. 3, Act No. 256, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 9100 [161]), which provides:
“The falsity of any statement in the application for any policy * * * shall not bar the right to recovery thereunder unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.”
The false statement bore a direct relation to acceptance of the risk and the hazard assumed by the insurer. See Rathman v. Casualty Co., 186 Mich. 115, 124 (L. R. A. 1915E, 980, Ann. Cas. 1917C, 459).
The judgment is set aside, with costs to defendant, and, notwithstanding the verdict of the jury, the case is remanded to the circuit with direction to enter judgment for defendant.
Bird, C. J., and Sharpe, Snow, Steere, Fellows, Clark, and McDonald, JJ., concurred. | [
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Dethmers, J.
This is an appeal, upon leave granted, from Court of Appeals’ denial of application for delayed appeal from an order of the recorder’s court of the city of Detroit denying defendant’s motion for appointment of appellate counsel and free transcript for appeal purposes.
On May 11, 1964, defendant was convicted, by a judge sitting without a jury, in the recorder’s court of the city of Detroit, of the misdemeanor of receiving and concealing stolen property under the value of $100. This is an offense cognizable by a justice of the peace. The maximum permissible sentence is 90 days in jail or $100 fine or both. He was sentenced to 90 days in the Detroit house of correction and served the sentence.
It is urged by the people that because defendant completed service of his sentence this appeal should be dismissed on the ground that the case has become moot. For this the following authorities are cited: People v. Leavitt, 41 Mich 470; City of Ishpeming v. Maroney, 49 Mich 226; Pittsburgh Plate Class Co. v. Charles Klein Co., 177 Mich 399; Howe v. Doyle, 187 Mich 655; Thomas v. Montcalm Circuit Judge, 228 Mich 44; Sullivan v. Michigan State Board of Dentistry, 268 Mich 427; Horowitz v. Rott, 235 Mich 369; People v. Pyrros, 323 Mich 329; Johnson v. City of Muskegon Heights, 330 Mich 631; McCarthy v. Wayne Circuit Judge, 294 Mich 368.
At the time of the alleged commission of the misdemeanor and his conviction thereof, defendant was on parole from a previous sentence on a 1962 felony conviction. After the May 11, 1964, misdemeanor conviction, defendant was found guilty by the parole board of parole violation and, after service of his 90-day misdemeanor sentence, was remanded to State prison as a parole violator and is still there as provided by law, serving the remainder of his sentence for the 1962 felony conviction.
There is question as to how the matter of the reasons for his parole revocation, set forth in defendant’s appendix, came into the record in this case. However, the people’s appendix contains material which equally goes into the matter. Prom all that appears in the appendices it is evident that either defendant’s misdemeanor conviction automatically brought about a finding by the parole board of parole violation or that, at least, that conviction was an element and factor in the parole violations charged against defendant and considered by the board in making its finding of parole violation. Accordingly, we consider the above cases cited by the people with respect to mootness inapt. Defendant’s present incarceration may well be considered a consequence, in part at least, of this misdemeanor conviction. More to the point is United States v. Morgan, 346 US 502 (74 S Ct 247, 98 L ed 248), in which the United States Supreme Court said (pp 512, 513):
“Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties. * * * As the power to remedy an invalid sentence exists, * * * respondent is entitled to an opportunity to attempt to show that this conviction was invalid.”
See, also, Jones v. Cunningham, 371 US 236 (83 S Ct 373, 9 L ed 2d 285); United States, ex rel. Harton, v. Wilkins (CA 2), 342 F2d 529; Williams v. United States (CA 7), 332 F2d 36; United States v. Cariola (CA 3), 323 F2d 180; Williams v. United States (CA 7), 310 F2d 696; United States v. Moore (CA 7), 166 F2d 102; United States v, Steese (CA 3), 144 F2d 439; United States, ex rel. Oddo, v. Fay (DC, NY), 236 F Supp 242; Janiec v. State of New Jersey, 85 NJ Super 68 (203 A2d 727); Bojinoff v. People, 299 NY 145 (85 NE2d 909). Because of the parole revocation and present resultant imprisonment, we cannot hold this case moot.
Defendant was not represented by counsel at the misdemeanor trial. Since trial defendant has said that he did not waive his right to trial by jury and the record does not clearly disclose that he did. Other claims of reversible error with respect to the trial and conviction are suggested. None of these, however, are before us for determination now. Bather, it is the subsequent occurrences which are the subject of this appeal. We turn now to these.
Defendant’s brief states the question involved in this appeal as follows:
“Is an indigent misdemeanant entitled as a matter of right to have counsel appointed to appeal a misdemeanor conviction?”
Despite defendant’s wording of this question, it will be noted that there is involved not only appointment of appellate counsel but also furnishing to defendant of a free copy of portions of transcript and record essential to preparation of postconviction motions and appeal.
In Griffin v. Illinois, 351 US 12 (76 S Ct 585, 100 L ed 891, 55 ALR2d 1055), indigent defendants were convicted of armed robbery, which was undoubtedly, as in Michigan, a felony. It was held that the due process and equal protection clauses of the 14th Amendment to the Federal Constitution required furnishing defendants, at public expense, with the portions of the transcript of trial necessary for taking and presenting an appeal.
In Gideon v. Wainwright, 372 US 335 (83 S Ct 792, 9 L ed 2d 799, 93 ALR2d 733), an indigent defendant convicted of a noncapital felony was denied appointment of trial counsel. The court held that defendant’s trial and conviction without being accorded the fundamental right of assistance of counsel violated the 14th Amendment.
In Douglas v. California, 372 US 353 (83 S Ct 814, 9 L ed 2d 811), indigent defendants were convicted of 13 felonies. Denial of their requests for appointment of counsel to prosecute an appeal was held to amount to discrimination between the rich and the poor, in violation of the 14th Amendment.
In Patterson v. Warden, Maryland Penitentiary, 372 US 776 (83 S Ct 1103, 10 L ed 2d 137), defendant had been denied court-appointed counsel because the Maryland statute provided for this only in capital or “serious” cases and the trial court said this one was neither. He was convicted of carrying concealed weapons and sentenced to two years’ imprisonment. The United States Supreme Court vacated judgment and remanded for reconsideration in the light of Gideon v. Wainwright, supra.
Similar are the cases of Lane v. Brown, 372 US 477 (83 S Ct 768, 9 L ed 2d 892), involving a conviction for murder, and Draper v. Washington, 372 US 487 (83 S Ct 774, 9 L ed 2d 899), in which the indigent defendants were convicted of robbery.
These United States Supreme Court decisions, all involving felonies, may not necessarily be controlling of the question in the instant case relating to a misdemeanor.
The Federal criminal justice act, 18 USCA, § 3006A(b), provides that “In every criminal case in which the defendant is charged with a felony or a misdemeanor, other than a petty offense, and appears without counsel” (emphasis supplied) defendant shall be advised by the -commissioner or court that counsel will be appointed to represent him if he is financially unable to obtain counsel.
In the opinions of certain Federal courts of appeal cases language appears indicating that statutory denomination of the offense as a felony or fixing of a serious penalty or the offense being a serious one are not prerequisites to the constitutional right to counsel at public expense and apprisal of defendant of his rights thereto. These do not appear to give heed to the “petty offense” provision of the above Federal statute. For example :
In Evans v. Rives (CA DC), 126 F2d 633, 638, the court of appeals for the District of Columbia said:
“It is further suggested by the District of Columbia that the constitutional guaranty of the right to the assistance of counsel in a criminal case does not apply except in the event of ‘serious offenses.’ No such differentiation is made in the wording of the guaranty itself, and we are cited to no authority, and know of none, making this distinction. The purpose of the guaranty is to give assurance against deprivation of life or liberty except strictly according to law. The petitioner would be as effectively deprived of his liberty by a sentence to a year in jail for the crime of nonsupport of a minor child as by a sentence to a year in jail for any other crime, however serious. And so far as the right to the assistance of counsel is concerned, the Constitution draws no distinction between loss of liberty for a short period and such loss for a long one.”
In Harvey v. Mississippi (CA 5), 340 F2d 263, 271, defendant was convicted, on plea of guilty, of the misdemeanor of possession of whiskey and sentenced to a 90-day jail term and to pay $500 fine. The fifth circuit court of appeals, after quot ing the above quotation from the Evans v. Rives Case, went on to say:
“While the rule as thus stated has never been expressly extended to misdemeanor charges in State tribunals, it has been argued that such a principle is implicit in the Supreme Court’s decision in Gideon v. Wainwright (1963), 372 US 335 (83 S Ct 792, 9 L ed 2d 799, 93 ALR2d 733). Be this as it may, the reasoning in Evans along with other recent right-to-counsel decisions persuades us that we should apply that rule in the present case. See Hamilton v. Alabama, supra, White v. State of Maryland, supra. The failure of notice to Harvey of his right to the assistance of counsel invalidated his guilty plea and rendered his conviction and incarceration constitutionally improper. We therefore reverse the judgment of the trial court and remand the case for the entry of judgment ordering the release of the appellant from custody on the present conviction and sentence.”
In McDonald v. Moore (CA 5), 353 F2d 106, 110, defendant was convicted, on plea of guilty, of the misdemeanor of possession and sale of intoxicating liquor and sentenced to pay a fine of $250 or serve 6 months in county jail. The court of appeals, fifth circuit, reversed the district court’s denial of habeas corpus, and, after again quoting the above language from Evans v. Rives, supra, continued:
“In approving the above quotation this court has, we think, rejected the ‘serious offense’ rule. We also think that Gideon has repudiated the Betts v. Brady ad hoc special circumstance rule of ‘an appraisal of the totality of facts in a given case.’ We are without any authority authorizing the announcement of a petty offense rule. We are not, fortunately, precluded from following precedent. In the Harvey Case the facts were so similar to those in the case before ns as to permit, and probably to require that our decision be the same as was there announced. There it was held that the failure to notify the appellant of his right to the assistance of counsel rendered the plea of guilty and the judgment of conviction and sentence constitutionally invalid. We make the same holding as to the appellant here.”
Among State court of last resort opinions of similar import are:
State v. Anderson, 96 Ariz 123, 131 (392 P2d 784). In that case defendant was convicted of the misdemeanor of attempting to assist the escape from county jail of a prisoner held on felony charges. Defendant was sentenced to 18 months’ imprisonment. He had been denied court-appointed counsel at trial, but was granted appellate counsel. A court rule in that State required appointment of counsel in felony cases. The court said, however, that “Gideon” requires appointment of counsel in cases of “a misdemeanor which falls in the category of a ‘serious offense,’ ” and said, further, that this case was a serious one in which the sentence could be up to 2 years’ imprisonment.
Bolkovac v. State, 229 Ind 294 (98 NE2d 250). In Indiana the Constitution provides for the right to counsel for accused and since it makes no distinction between felonies and misdemeanors, the court held that the right must apply also to misdemeanors, saying that otherwise the legislature could defeat the constitutional provisions and right to counsel by merely denominating offenses as misdemeanors. In this case the offense was child neglect and the sentence for 180 days. Defendant was not given counsel at trial. Reversed on that account.
People v. Witenski, 15 NY2d 392 (259 NYS2d 413, 207 NE2d 358). Defendants were convicted of stealing apples of a value of about $2 in an orchard. They received a 30-day jail sentence plus fine of $25 which none could pay. Hence, they were required to serve 55 days in jail. Although there was a statutory involvement not present in Michigan, the court held that there was a right to appointed counsel in every criminal case “large or small.” Because the justice of the peace, upon their arraignment, only told defendants that they had a right to be represented by counsel but failed to state that they had a right to have counsel appointed for them if they were unable to procure same, the conviction was reversed on that account for violation of “fundamental rights.”
Hunter v. State (Okla), 288 P2d 425. Defendant was convicted of drunk driving, a misdemeanor, and fined $125. The court held 'that defendant had a right to appointed counsel because the State’s Constitution, in providing therefor, made no distinction in that regard between felonies and misdemeanors.
State, ex rel. Barth, v. Burke, 24 Wis 2d 82 (128 NW2d 422). Defendant was convicted, on plea of guilty, of 19 counts of issuing worthless checks, all misdemeanors. After defendant told the trial court that he owned certain property, that court. determined that he was not indigent and accepted his guilty plea. He was sentenced to 4 years’ probation and, upon violation thereof, to 5 years’ imprisonment. The appellate court held that the finding of nonindigency was arbitrary and, hence, for failure to appoint or offer to appoint counsel, reversed the conviction with new trial.
Michigan Constitution of 1963, art 1, § 20, provides that, “In every criminal prosecution, the accused shall have the right * * * to have the assistance of counsel for his defense; to have an appeal as a matter of right; and in courts of record, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.”
GCB 1963, 785.4, provides:
“(1) * * * immediately upon sentencing, the court shall advise the defendant in open court that he is entitled as a matter of constitutional right to appellate review of his conviction and that, if defendant is financially unable to provide counsel to perfect such appeal, the court will appoint counsel for him and will furnish counsel with such portions of the trial transcript counsel requires to prepare postconviction motions and to perfect an appeal. * * *
“(2) Delayed Appeal. In all other criminal cases, application for leave to take delayed appeal may be filed pursuant to the provisions of Mule 806. Upon defendant’s request, if defendant is indigent, the trial court in which defendant was convicted shall appoint counsel for him and shall furnish such portions of the trial transcript counsel so appointed requires to prepare delayed motions for postconviction proceedings in the trial court and to prepare an application for leave to take delayed appeal.”
No distinction is made between felonies and misdemeanors or types or seriousness of crimes in the above quoted language from the Constitution of Michigan and the Michigan court rule relating to the rights of criminal appeal.
The following definitions appear in the Michigan statutes:
“The term ‘felony’ when used in this act, shall be construed to mean an offense for which the offender, on conviction, may be punished by death, or by imprisonment in state prison.” CL 1948, § 750.7 (Stat Ann 1962 Rev § 28.197).
“When any act or omission, not a felony, is punishable according to law, by a fine, penalty or forfeiture, and imprisonment, or by such fine, penalty or forfeiture, or imprisonment, in the discretion of the court, such act or .omission shall be deemed a misdemeanor.” CL 1948, § 750.8 (Stat Ann 1962 Rev § 28.198).
The only distinction between felonies and misdemeanors, insofar as these definitions are concerned, appears to be whether imprisonment is to be in State prison or the county jail.
CL 1948, § 750.504 (Stat Ann 1954 Rev § 28.772), provides:
“A person convicted of a crime declared in this or any other act of the state of Michigan to be a misdemeanor, for which no other punishment is specially prescribed by any statute in force at the time of the conviction and sentence, shall be punished by imprisonment in the county jail for not more than 90 days or by a fine of not more than 100 dollars, or by both such fine and imprisonment.”
CLS 1961, § 774.1 (Stat Ann 1954 Rev § 28.1192), empowers justices of the peace to try all criminal charges punishable by fine not exceeding $100 or imprisonment in the county jail not exceeding 3 months or both such fine and imprisonment. The justice of the peace is empowered to impose these sentences. These are referred to as criminal offenses cognizable by a justice of the peace. Whether or not thus cognizable is made dependent on the permissible maximum penalty and not on whether the statute has denominated the offense to be a misdemeanor or felony.
CL 1948 and CLS 1961, §§ 766.2-766.15 (Stat Ann 1954 Rev §§ 28.920-28.933), inclusive, relate to offenses not cognizable by a justice of the peace. In these it is provided that the justice of the peace may issue a warrant, after arrest conduct an examination of the accused and either discharge him or bind him over for trial in circuit court, depending on whether it' shall appear to the justice of the peace that a crime not cognizable by him has been committed and whether there is probable cause to believe the defendant has committed it. The subsequent proceedings occur in the circuit court or other court of comparable level having jurisdiction thereof.
There are instances in the Michigan statutory law in which offenses are named misdemeanors and for' which the maximum penalty fixed exceeds $100 fine or 3 months’ imprisonment or both. For example : Certain violations of rules and regulations of the public utilities commission are termed “misdemeanors” (CL 1948, § 460.55 [Stat Ann §22.5]) and the penalties fixed at not less then $10 nor more than $1,000 or imprisonment in county jail for not more than 6 months, or both. In People v. Causley, 299 Mich 340, after discussion of the distinction between felonies and misdemeanors, this Court speaks of People v. Lamb, 153 Mich 675, in which, so the Court said, the crime of extortion there involved was a misdemeanor punishable by not more than one year in county jail or $250 fine' or. both. See, also, In re Moynahan, 255 Mich 497, in which this Court refers to the offense therein involved, possession of narcotics, as a misdemeanor punishable by imprisonment limited to one year. See, also, in'that connection, In re Spencer, 252 Mich 48. This gives rise to the term, used in criminal' law circles, “circuit court misdemeanors”. That is to say, the statute labels the offense a misdemeanor, but,- by fixing the maximum penalty, renders the offense one not cognizable by a justice of the peace and, hence, one in which the limit of his power is to bind over to circuit court. When so bound over the procedure is the same as for felonies. Defendant’s need for legal assistance of counsel then may-well be as great as in felony cases. The name “felony” or “misdemeanor” can make small difference as relates to his constitutional right to such assistance. We entertain no doubt that as to such circuit court misdemeanor cases the rule and constitutional requirements are the same as relates to felonies. To hold otherwise would mean, as said in Bolkovac v. State, supra, that the legislature could defeat constitutional rights by the simple device of labelling offenses as misdemeanors.
In the instant case, however, the offense was one cognizable by a justice of the peace. It might be urged that the apparent distinction made in 18 TJSCA, § 3006A(b), supra, between a felony or misdemeanor, on the one hand, and a “petty offense” has application, should be adopted by this Court, and applied here. Scarcely can it be said, however, that a permissible maximum sentence of 3 months’ imprisonment or $100 fine or both leaves the offense one to be regarded as so petty as not entitling the indigent accused to the assistance of counsel. His liberty is involved and in jeopardy in such case. For this the constitutional right is designed’ to insure equality of treatment and chances for acquittal between the rich who can afford to hire counsel and the poor who cannot.
In behalf of the people it is protested, however, that holding for defendant’s contentions in this criminal case would result in a vast wave of pleas of not guilty in cases of clear guilt, with demands for free counsel, in traffic violations of city and village ordinances, of such proportions as to paralyze judicial proceeding's in justice of the peace or magistrate courts. Note may be taken with interest, although not controlling of the case at bar, of the following:
“As before said, the violations of the village ordinances are not considered criminal offenses. Mixer v. Supervisors, 26 Mich 422; People v. Jackson, 8 Mich 110; Jackson v. People, 8 Mich 262.” Village of Vicksburg v. Briggs, 85 Mich 502, 508.
“The term ‘criminal cases,’ used in the laws, refers to none but prosecutions under the State laws. In Jackson v. People, 8 Mich 262, and People v. Jackson, 8 Mich 110, we held that cases under city ordinances could not be brought into this Court by writ of error, or exceptions, but must come up on certiorari. They resemble criminal cases only in being penal proceedings, but no offense is a crime which does not violate the law of the land.” Mixer v. Supervisors of Manistee County, 26 Mich 422, 424.
“Violations of village ordinances are not regarded as criminal offenses.” 1 Gillespie’s Michigan Criminal Law & Procedure, § 2, p 5.
Reversed and remanded to recorder’s court for appointment, upon finding of indigency, of appellate counsel for defendant and furnishing of all portions of the transcript and record essential in preparation of postconviction motions and appeal.
Adams, J., concurred with Dethmers, J.
CLS 1961, § 750.535 (Stat Ann 1965 Cum Supp § 28.803).—Be--PORTER.
368 US 52 (82 S Ct 157, 7 L ed 2d 114).
373 US 59 (83 S Ct 1050, 10 L ed 2d 193).
316 US 455 (62 S Ct 1252, 86 L ed 1595).
Sec 373 Mich xvi,—Reporter. | [
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Bttshnell, J.
This is an appeal by defendant, former circuit judge Glenwood C. Fuller, now an attorney at law in Grand Rapids, from a decree entered in the Allegan circuit upon a petition and complaint filed under Court Rule No. 4 (1933), by Fuller’s clients, Amos Scbafer and Eliese, his wife, residents of Allegan county.
Fuller was retained by Amos Schafer in 1941 in connection with difficulties concerning the lien of a certain mortgage on a farm in Hopkins township. Schafer purchased the farm in 1920 and at that time he assumed and agreed to pay a mortgage of $8,000, held thereon by his cousin Menno Schafer. After Menno Schafer’s death in 1939, Amos Schafer was appointed successively special administrator and administrator of his estate and, while acting as special administrator, Amos Schafer had his deed to the farm recorded and discharged the mortgage. Heirs of Menno Schafer who had á two-thirds interest in his estate took the position that the mortgage had been improperly discharged and claimed that there was an unpaid balance of $4,000 due the estate from Amos Schafer, together with about $2,500 of accrued interest. Certain proceedings followed in the probate court for Allegan county in which Fuller represented Schafer. The opposing heirs took an appeal to the circuit court of Allegan county from the probate order ratifying and confirming the discharge of the mortgage, which appeal was later dismissed upon motion of the attorney for the contesting heirs. Subsequently, Amos Schafer and his wife, represented by Fuller, filed a bill in chancery to clear title and it is in this proceeding that this appeal arises.
About a month after Fuller had been retained Schafer paid him $100, and on July 6, 1942, Schafer gave Fuller an assignment or order on the clerk of the Allegan court for $2,500 out of impounded funds which were to be paid into court on account of royalties for oil taken from the farm. On July 7th, a consent order was entered in the chancery cause directing the oil company to pay the funds which it had impounded to the clerk of the court, and directing the clerk to turn over all funds so paid in excess of the amount of $6,000 to Amos Schafer and his wife, and to retain the $6,000 to protect the heirs on the claimed mortgage. This order was never carried out because on July 7, 1942, Fuller was informed over the telephone, by former opposing counsel, that a settlement was going to be made between opposing counsel and the Schafers directly, and on July 13th a petition for settlement was noticed by the opposing counsel. • Fuller did not appear at the hearing on the proposed settlement but a decree was entered on July 20th, in his absence, which provided, among other things:
“6. That the clerk of the court retain $2,500 in her possession to protect the firm of Fuller, Sherk & Dilley on its claim for attorney fees until the further order of the court.”
As between Fuller and Schafer nothing further was done until December 18, 1942, when Fuller brought an action in the superior court of Grand Rapids against both Amos Schafer and his wife. He secured an order for service of process on Sunday and the Schafers were served on April 18, 1943. Two motions challenging the jurisdiction of the superior court were made and denied. On May 29, 1943, a petition for relief under Court Rule No. 4 was filed by the Schafers in the Allegan chancery proceedings and the order to show cause issued.
Fuller made a motion to dismiss the petition under Court Rule No. 4 on jurisdictional grounds, which was denied, and an answer was filed and proofs taken. The circuit judge did not treat the petition as an original proceeding under Court Rule No. 4 but rather as a request to the court to investigate and make a further order under the jurisdiction reserved in paragraph 6 of its decree. After hearing the proofs the trial judge held that Fuller was entitled to $600 for his legal services which he had performed, allowed him a balance of $1.92 on his expenses, cancelled the assignment of the impounded funds and ordered the balance of $1,898.08 paid over to Amos Schafer.
Fuller now contends that the superior court acquired full jurisdiction and that the circuit court cannot oust that jurisdiction in a proceeding under Court Rule No. 4. The circuit court did, however, have prior jurisdiction. It had and retained jurisdiction of the fund under its prior decree, and i't had jurisdiction of Fuller, the attorney for the plaintiff in the chancery proceeding, under Court Rule No. 4.
“It is a familiar principle that when a court of competent jurisdiction has become possessed of a case, its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of; and no court of co-ordinate authority is at liberty to interfere with its action. The principle is essential to the proper and orderly administration of the laws ,• and while its observance might be required on the grounds of judicial comity and courtesy, it does not rest upon such considerations exclusively, but is enforced to prevent unseemly, expensive and dangerous conflicts of jurisdiction and of process.” MacLean v. Wayne Circuit Judge, 52 Mich. 257.
In the MacLean Case this court pointed out that:
“The matter is not one which, under the circumstances, can come under his (the circuit judge against whom mandamus was sought) cognizance; other courts have control of the controversy with all its incidents-, and have ample competency to do in respect to it whatever may remain to be done. ’ ’
See, also, E. T. Barnum Wire & Iron Works v. Wayne Circuit Judge, 59 Mich. 272, and Bateman v. Railroad Co., 96 Mich. 441.
As stated in Detroit Trust Co. v. Manilow, 272 Mich. 211:
“This rule is subject to the limitation that the two proceedings must be in all respects identical, as to the identity of the parties, the subject matter involved, the nature of the remedies and the character of the relief sought.”’
See, also, authorities there cited.
The circuit court had full jurisdiction to and did properly inquire into the matter and fix the fee.
Canon 12 of Professional Ethics adopted for the Michigan bar provides: “In determining the amount of the fee, it is proper to consider: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause; * * * (3) the customary charges of the bar for similar services; (4) the amount involved in the controversy and the benefits resulting to the client from the services; (5) the contingency or certainty of the compensation. ’ ’
In undertaking these proceedings Fuller, as attorney for Schafer, was faced with a difficult and delicate problem. His problem was primarily to clear title to an oil-producing farm of great value in bitterly contested and involved proceedings, and he was faced with difficulty in proving his position because of the rule barring the testimony of his client. His client was faced with charges of misconduct and fraud. Fuller spent approximately 43 days in the litigation. That the results obtained were meager was primarily due to the settlement of the proceedings by his client without his consent and behind his back. This being a chancery appeal, we hear it de novo and we feel that a proper fee for Fuller would be the sum of $2,150, together with his expenses.
The cause is remanded for the entry of an order allowing Fuller the sum of $2,150 as fees, plus the $1.92, unpaid balance of his costs and expenses, from the fund in the hands of the clerk of the court, and directing that the balance of the fund be paid oyer to Amos Schafer. As so modified, the decree will be affirmed. It is so ordered, with costs to the appellant.
North, C. J., and Wiest, Btjtzel, Sharpe, Boyles, and Reid, JJ., concurred. Starr, J., did not sit. | [
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Bushnell, J.
Plaintiff Charles Gableman is the owner of lot 9 in Sunrise Heights subdivision, Highland township, Oakland county, Michigan, fronting on White lake. He has occupied these premises for some 20 years and has invested upwards of $7,500 in a home thereon. In pursuance of its policy to make the waters of the State available to the public, defendant Department of Conservation purchased four contiguous 50-foot lots in this subdivision, i. e., lots 10, 11, 12 and 13, which immediately adjoin plaintiff’s property. The restrictions of record in this subdivision read substantially as follows:
“Said land is subject to the following restrictions which will run forever with the land to-wit: said lot shall not be sold, leased or occupied to or by any person whatsoever not belonging to the Caucasian race.”
A deed executed in 1942 on lot 11 contains the following restriction:
“Said lot shall not be sold, leased or occupied to or by any person whatsoever not belonging to the Caucasian race.”
After securing title to the lots the department filled in the shore line at a narrow point near the public roadway in order that fishing boats might be launched into the lake from the roadway, and to complete the project the department plans to do certain grading on top of this fill, sod the same, place guard posts running from the county highway in a semicircle pattern to provide a roadway for cars to drive off the main road while launching boats, and to construct a timber boat ramp from the top of the fill to the water’s edge, and to erect signs.
Before this work was completed, plaintiff filed a bill of complaint in the Oakland’county circuit court in which he averred that a public fishing site is contrary to the restrictions upon the use of the premises and to the general plan in existence in the subdivision. He alleged that if defendant completed its project it would constitute a nuisance in that:
“(a) Excessive noise will come from the intended use.
“ (b) Defendant by said construction will destroy the natural shore line, this preventing the plaintiff the full use and enjoyment of his property on said lake.
“ (c) That plaintiff will be prevented free access to his property by said obstruction. ’ ’
The circuit judge found that the character and complexion of the subdivision is strictly residential, and that of its 25 to 30 homes the, cheapest one in the subdivision would be worth not less than $2,000, and that the presence of a public fishing site in the subdivision would—“definitely and perceptibly decrease the value of the homes in said subdivision and will especially decrease the value and be damaging to the property of the plaintiff whose house, of the value aforesaid, will be located only the width of a single drive from the lots to be used by the State for parking purposes for those utilizing said' fishing site.”
The circuit judge also' said:
“The shore line of White lake opposite the four lots now owned by the State was, prior to the time that construction of the fishing site was commenced, curving’, the land gradually sloped from the road‘way to the water’s edge. The natural shore line has now been destroyed and will be further destroyed if the project is completed.. The fill which is located in front of the four lots, which fill extends from the road into the lake, definitely destroys the natural beauty of .the lake as viewed from plaintiff’s property,—the pictures introduced in evidence not to the contrary. From the use to which the fishing site was put prior to the injunction, before the same was advertised or generally known to be a public site, it is apparent that said fishing site is and will continue to be a traffic hazard, located as it is on a curve of the road, which services the subdivision and adjacent communities. It was also apparent that there was and will be attending noise from the parking of cars and from people going to and from the lake. After viewing the property subsequent to the taking of the proof, the court finds that the natural shore line as well as the natural beauty has been changed and that such changes will be more apparent and more damaging if and when the State is permitted to complete its project which will entail the grading of the four lots to the level of the road in order to make them usable for parking purposes.”
Defendant department has appealed from a decree permanently restraining it from—“violating the restriction of the subdivision known as “Sunrise Heights,’ a subdivision located in Highland township, Oakland county, Michigan, and from carrying out or utilizing the property acquired, being lots 10, 11, 12 and 13, aforesaid, as a part of the public fishing site contemplated.”
Although the trial judge held that the use of'these lake lots by those of the Negro race would not constitute occupancy within the meaning of the language in the restriction, that question is before us on this hearing de novo. In the recent case of Bradford v. Goldman, 290 Mich. 338, this-court followed the gen eral rule that occupancy means actual possession. See, also, Adair v. Bonninghausen, 305 Mich. 137.
Applying the reasoning of these authorities, those of the Negro race who might have access to White lake for fishing purposes through the facilities of the Department of Conservation would neither occupy nor possess these lands.
The court was of the opinion that a general plan existed in the subdivision; that the character and complexion of the neighborhood was residential; and that a public fishing site within the subdivision would be foreign to its development and should be restrained.
“Restrictions which are not a matter of record and of which a party has neither actual nor constructive notice cannot be enforced ag*ainst such party. * * * Nor are the plaintiffs entitled to have the restrictions as such enforced.” Muskegon Trust Co. v. Bousma, 247 Mich. 98, 101.
See, also, Kathan v. Stevenson, 307 Mich. 485.
The record shows that one of the lots in this subdivision has been occupied by a boat livery for approximately 10 years. If there ever was a so-called plan restricting the property to residential use only, that plan has not been followed and the department is .not bound by it.
The use proposed by defendant department cannot be restrained1 on esthetic grounds. A similar argument was urged in Smith v. City of Ann Arbor, 303 Mich. 476, with respect to a city dump. The court said in that case:
“Plaintiffs claim that the dump is attractive to school children, that its effect is harmful, decreases the self-confidence of the pupils, causes an increased tendency to lie and disobey, and is bad for their morale. As said by Mr. Justice Wiest in Perry Mount Park Cemetery Ass’n v. Netsel, 274 Mich. 97, a plant may be unsightly and detract somewhat from the beauty of the view, but mere esthetics is beyond the power of the court to regulate.
“Nor do we consider that the use of the dump should be enjoined because it occasions an increased use of the highways or because of increased traffic hazard conditions. To hold otherwise would lead to an absurdity.”
The situation presented in the instant appeal is somewhat like that discussed in Briggs v. City of Grand Rapids, 261 Mich. 11, where the court said:
“Plaintiffs claim the use of the park for football exhibitions will constitute a nuisance to a large number of them living near the park. They also bring the suit as taxpayers in order to protect the city’s rights. [Without discussing whether the rule laid down in Archer v. City of Grand Rapids, 255 Mich. 485, is applicable in the instant case, there is no showing whatsoever that the purpose for which the park is to be used will be a nuisance per se, as plaintiffs fear. Equity, as a rule, will not interfere in advance of the creation of a nuisance where the injury is doubtful or contingent, and anticipated merely from the use to which the property is to be put. Siegel v. Wayne Circuit Judge, 155 Mich. 459; Henry v. Sinclair, 218 Mich. 296; Lansing v. Perry, 216 Mich. 23. The use of the property as an athletic field does not differ widely from that of a park and playground, and the fact that it may on a few occasions and1 for a limited, time become a nuisance seems to be very problematical. Until there is a showing that the nuisance does exist, plaintiffs cannot complain.”
The trial judge offered the following suggestion:
“Generally, it is the court’s opinion that if the State of Michigan feels compelled to establish in connection with the four lots mentioned, a public fishing site, to the undeniable damage of the plain tiff’s property, it should in all fairness proceed to condemn plaintiff’s property to the end that he be reimbursed for the damages sustained.”
We do not think it should be held that the State should be required1 to condemn surrounding property in order to make its natural resources available to the public. The court will take judicial notice of the fact that considerable public funds have been expended in advertising Michigan as a summer playground, and certainly it is the policy of this State to afford its citizens and its visitors free and comfortable use of the waters and scenic beauties of Michigan. See Attorney General, ex rel. Director of Conservation, v. Taggart, 306 Mich. 432. Large sums are spent annually in the upkeep of public parks and playgrounds. Generally speaking, these are well conducted and maintained. The policy of the department in this instance is to be commended and not condemned. We cannot anticipate that this small State park will be conducted'differently from others. Should the occasion require, the property owners are free to take such steps as may be necessary to require the proper authorities to regulate traffic in the vicinity and supervise the conduct of those who visit White lake. It cannot be said that the proposed plan will constitute a nuisance.
The decree is vacated and one may be entered here dismissing plaintiff’s bill of complaint. Because of the nature of the case, the appellant will not be allowed costs,
North, C. J., and Starr, Wiest, Butzel, Sharpe, Boyles, and Reid, JJ., concurred. | [
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North, J.
This is a guest passenger automobile case in which upon trial by jury verdict was rendered in favor of plaintiff, but upon a properly reserved motion judgment non obstante veredicto was ' thereafter entered. Plaintiff has appealed and as’serts that the court in entering judgment non obstante veredicto committed error.
In part the factual situation may be inferred from • appellant’s question number 1 presented1 upon this appeal which reads: .
“Where the evidence disclosed that the defendant was driving her automobile in the nighttime and the plaintiff was a passenger in said car and the defendant allowed another passenger sitting in the front seat to have his arm around the defendant and his hand on the steering wheel, notwithstanding the protests on the part of the plaintiff, and upon approaching another car the passenger who was sitting beside the defendant with his arm and hands as above stated did say, ‘Let’s clip the sons of bitches,’ and did steer the wheel of the car in such manner as to cause a collision with the oncoming car, was the defendant guilty of gross and wilful negligence?”
As to the circumstances leading up to and attending the accident it is sufficient to note the following in addition to those inferred in the above-quoted question. Defendant in the nighttime was driving her car in a westerly direction on M-81, a rather narrow asphalt pavement, between Bloomfield and Saginaw. Defendant and a Mr. Sargent occupied the front seat. Plaintiff, a Mrs. Hudson, a man and a small boy were in the rear seat. Another automobile was approaching from the west with glaring-lights. On two occasions before defendant’s car reached the point of accident plaintiff protested against defendant allowing Sargent to have his hand on the steering wheel. In passing' on defendant’s motion for judgment non obstante 'veredicto the circuit judge found, and the testimony sustains the finding, that “The car was being operated by the defendant at a very reasonable rate of speed, * * * and nothing occurred until the cars were about 20 or 25 feet apart when Sargent, as claimed by the plaintiff, said, ‘Let’s biff the sons-of-bitches,’ and immediately (Sargent) turned the defendant’s car into the oncoming car. * # * The car was not zigzagging or swerving in any manner until it reached a point about 20 or 25 feet from the oncoming car.” The remark attributed to Sargent was prompted by the fact that the car approaching from the west would not or did not dim its glaring lights. Plaintiff testified Sargent “was helping” defendant drive and that her car just before the impact was somewhat to the left over the center line of the pavement. It is plaintiff’s claim that defendant’s refusal to cause Sargent to remove his hand from the steering wheel was wilful and wanton misconduct on her part which caused the collision between these two cars, incident to which plaintiff was injured.
"We think the trial judge was correct in holding that the circumstances disclosed by this record do not constitute evidence tending to sustain the charge of gross, negligence or wilful and wanton misconduct on the part of defendant. Under the statute (1 Comp. Laws 1929, §4648 [Stat. Ann. §9.1446]) plaintiff, being a guest passenger, could not recover unless she proved that defendant’s gross negligence or wilful and wanton misconduct caused or contributed to the cause of the accident. There is nothing in this record which in any way tends 'to show that defendant had any reason timely to suspect that Sargent would at the point of the accident steer her car into collision with the car approaching from the west. Nor is there any testimony that defendant was able to avoid the consequence of that act on the part of Sargent at any time after he made the remark above quoted. Notwithstanding Sargent had his hand' on the steering wheel, the accident would not have happened had he not indulged in the vicious conduct of suddenly, and against defendant’s will, diverting the course of her car toward the oncoming car. His conduct in that respect, though wilful and wanton as to him, should not he charged to the defendant. She had no timely warning or reason to believe that Sargent would indulge in such a reckless act, nor is there any testimony that defendant had either the ability or the opportunity to avoid the accident subsequent to Sargent’s remark. Plaintiff testified that defendant’s car was proceeding at a rate of 35 to 40 miles per hour and the car approaching from the west was moving at a still more rapid rate. Plaintiff also testified that Sargent’s remark was not made until the cars were within 20 or 25 feet of each other, and defendant replied, “I don’t want to.” There can he no issue of fact as to the proximity of the two cars at the time Sargent made his threatening remark. Plaintiff at least twice testified on this phase of the case. Her own testimony was: “When we were approximately 20 or 25 feet from the other car Mr. Sargent said, ‘Let’s clip the sons of hitches.’ ” Under plaintiff’s testimony these two cars were approaching each other at a rate of more than 100 feet per second. It is too plain for argument that the split second of time intervening between Sargent’s remark and the actual collision was too brief to enable defendant to prevent Sargent’s act or to avoid the accident. It is equally plain that defendant’s conduct in permitting Sargent to have his right hand rest upon the steering wheel, if it can he said to he negligence at all, was only ordinary negligence, not gross negligence or wilful and wanton misconduct. In any event, that did not cause the accident. Touching this phase of the case the trial judge said:
“It was not necessary for Sargent to have his hand on the wheel until immediately before the accident, at which time he could have reached up, grabbed the wheel, and turned defendant’s car into the oncoming car.”
In considering tlie instant case it is also pertinent to note we have often held in cases arising under the guest passenger act, a driver is not required at his peril to comply with the demands of his guest passenger, “nor does noneompliance in and of itself constitute evidence of wilfulness or wantonness.” Mogill v. Resnick, 263 Mich. 103, citing numerous cases. We are in accord with the holding of the trial judge that there is no testimony in this case tending to establish plaintiff’s claim of gross negligence or wilful and wanton misconduct on the part of the defendant. The judgment entered in the circuit court is affirmed, with costs to appellee.
Buteel, Sharpe, and Reid, JJ., concurred with North, J. | [
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North, J.
Prior to March 30, 1933, plaintiff, Clarence Gauthier, had been in the employ of defendant William L. Peiter. A dispute arose between the parties as to the amount due from Peiter to Gauthier. By agreement they reached a settlement incident to which Gauthier executed and gave to Peiter a receipt “in full settlement and satisfaction of any and all salary, bonus, and commissions due or to become due the undersigned.” The consideration received by Gauthier incident to this settlement is expressed in exhibit A and reads as follows :
“Grand Rapids, Michigan
“March 30, 1933.
“For a valuable consideration I hereby sell, assign, transfer and set over unto Clarence Gauthier, $700 of the moneys on deposit in my name in the Grand Rapids National Bank, and hereby authorize said Grand Rapids National Bank to pay over to said Clarence Gauthier said sum of $700 out of said moneys so on deposit in my name.
“(Signed) W. L. Peiter.”
Prior to the date of exhibit A the Grand Rapids National Bank had suspended, business and a receiver had been appointed. Both Gauthier and Peiter were fully aware of this fact. On April 5th plaintiff presented a copy of exhibit A at a branch of the Grand Rapids National Bank, and such copy was received by the manager of the branch bank and by him attached to the ledger sheet of Peiter’s account. At the time of receiving the copy the manager of the branch bank indorsed thereon: “Received and filed the above copy, no responsibility assumed. ’ ’ A conservator of the bank was appointed on June 30, 1933, and later was ready and willing to pay all depositors 50 per cent, of their respective deposits. When the bank closed Peiter’s deposit amounted to $1,574.24. The bank was willing to pay plaintiff Gauthier 50 per cent, of $700, or $350; but it proposed to pay Peiter the 50 per cent, dividend on the balance of his account. Gauthier refused to accept such payment and began an action at law for the full $700 which he claimed was then due him under exhibit A above noted. He joined as defendants both the bank and Peiter.
Each of the two defendants appeared by separate counsel and joined issue on the merits. Defendant Peiter contended plaintiff was entitled to payment of only $350, and that he, Peiter, was entitled to the balance of the 50 per cent, dividend. The bank recited in its answer its willingness to pay the total amount of the 50 per cent, dividend as soon as it was determined what amount of the dividend payment each of the other two litigants was entitled to receive. The case was brought for trial before jury, but immediately upon being sworn to try the cause the jury retired and seemingly a discussion occurred between the court and the counsel touching the issues presented by the pleadings and to be determined in the suit. Thereupon counsel for defendant Peiter, after having made a motion that the case be dismissed, stated to the court:
“And the next is a motion to take it from this jury because by the plaintiff’s own declaration he bases his case upon an unambiguous contract in writing which is attached to the declaration. Certainly a written agreement of this sort does not present a question of fact for the jury. ’ ’
The court granted the above motion, saying:
“From the pleadings in the case it would seem that no proofs are necessary as far as the assignment and the agreement * * * are concerned. The court does not consider that they are ambiguous in any way and that if testimony were taken there would be no facts presented that should be considered by the jury. In other words, that there will be no issue of facts raised or presented.”
Thereupon testimony in the nature of a disclosure was taken for the purpose of establishing the amount. of Peiter’s account at the time the bank closed. The court determined that the 50 per cent, dividend on Peiter’s account would be in excess of $700, and that under exhibit A above quoted the bank should pay plaintiff $700.
From the above determination the bank has not appealed; but defendant Peiter has appealed.
Appellant complains that the superior court judge of his own motion erroneously transferred the cause from the law to the equity side of the court. In this connection in his findings the superior court judge said:
“When the defendant Peiter executed to the plaintiff a definite sum to be paid out of his impounded balance, he thereby paid his debt to the plaintiff and deprived himself of all ownership or control over a definite portion of a particular fund. That portion was $700. Plaintiff’s claim is enforceable only in equity. See Schwartz v. Tuchman, 232 Mich. 345.”
We think the superior court judge was in error in his conclusion that the case must be transferred to the equity side of the court. In the Schwarts Case the party who as a debtor or stake holder stood in the position of the bank in the instant case, raised the question in its own behalf by a motion to dismiss the suit at law. It was held that the motion should have been granted, and for reasons noted in the opinion that the controversy between the parties litigant could properly be tried only in a court of equity. But in the case at bar the bank, the only party entitled to raise the question, has in no way challenged the propriety of maintaining the proceedings on the law side of the court, and further, the jury having been dismissed upon appellant’s own motion, he has in no way been prejudiced by the holding of the trial court in this particular.
Nor can appellant, after having so contended in the trial court, complain of the holding there that exhibit A is not ambiguous and that its construction and meaning were matters of law for determination by the court. Under the record thus presented we think the holding of the superior court judge must be sustained, and that the assignment was properly held to be one which entitled plaintiff to receive from moneys otherwise payable to Peiter $700; and that appellant’s contention that exhibit A created the relation of debtor and creditor between the bank and appellee in the amount of $700 and that appellee’s rights were limited to the receipt of the dividends paid on that amount by the bank is not tenable. Other questions presented by the briefs are without merit and do not affect final determination of this litigation.
The decree entered in the superior court is affirmed. Costs to appellee.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, Btjshnell, and Edward M. Sharpe, JJ., concurred. | [
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Nelson Sharpe, C. J.
The purpose of the organization known as the “Brotherhood of Bailroad Trainmen,” is stated in the “preamble” to the constitution of its grand lodge, and reads as follows :
“To unite the railroad trainmen; to promote their general welfare and advance their interests, social, moral, and intellectual; to protect their families by the exercise of benevolence, very needful in a calling so hazardous as ours, this fraternity has been organized.
“Persuaded that it is for the interests both of our members and- their employers that a good understanding should at all times exist between the two, it will be the constant endeavor of this organization to establish mutual confidence, and create and maintain harmonious relations.
“Such are the aims and purposes of the Brotherhood of Bailroad Trainmen.”
To that end its officials endeavor to secure from the railroad companies the adoption of such rules and usages in respect to the wages and working conditions of its members as are fair and reasonable and to their mutual advantage, thus avoiding strikes and other unpleasantness. Agreements between them are at times in the form of contracts. Seniority in service is a right highly prized by and of value to the employees. Negotiations therefor are conducted by the officers of the brotherhood under provisions in its constitution and laws. The individual members do not participate therein, but when contracts are made or rules adopted affecting their rights they may seek review of them by application to their grievance committees and appeal therefrom to other officials called the “courts” of the order. The railroad companies apparently have but little personal interest in such matters.
The main line of the Michigan Central Railroad, now a part of the New York Central Railroad, extends from the city of Detroit to the city of Chicago. It is divided into three divisions; the eastern extending from Detroit to Jackson, the middle from Jackson to Niles, and the western from Niles to Chicago. Each division has a superintendent, and there is through passenger service extending over the three divisions.
In October, 1909, the Michigan Central Railroad placed in effect what is known as schedule rule No. 25, reading as follows:
“When a passenger run extends over more than one superintendent’s division, each division shall furnish a percentage of the crews. Percentage shall be determined by the number of miles on each division. ’ ’
Effective as of August 1, 1914, an agreement was entered into between the brotherhood and the railroad company creating interchangeable rights as between passenger and freight trainmen. Under it freight brakemen might earn seniority rights if employed in the passenger service and passenger brakemen if employed in the freight service. A controversy arose over the application of this provision, and certain proceedings were had in the grand lodge convention of the brotherhood, resulting in its change by the railroad, effective May 1, 1917, to read as follows:
“Baggagemen and brakemen on western and middle divisions' shall be given rights on all through passenger runs between Detroit and Chicago as baggagemen and brakemen respectively.”
By it the word “crews” in the' 1909 rule was construed to refer to conductors only, and under it the brotherhood and the railroad denied seniority and passenger rights to brakemen earned prior thereto. This construction was recognized and adhered to until about the year 1931, when James Wiltsie, the chairman of the Jackson lodge of the brotherhood, was instructed by it to submit the matter to the grievance committee of the order, with the request that the date therein be changed so that it would be effective as of August 1, 1914, instead of -May 1,' 1917.
After a hearing, at which the parties interested were present or represented, the grievance committee complied with the request. An appeal therefrom was taken to the board of directors of the brotherhood and a hearing had after due notice to, and appearance by, the parties interested, and the action of the grievance committee was set aside by the board and a finding made that seniority rights with respect to through trains, in so far as brakemen and baggagemen were concerned, should be determined as of May 1, 1917. An appeal was taken from this decision to the board of appeals, the final court of the order for the determination of such matters. The following entry appears in its minutes:
“After careful consideration of all the evidence, both oral and written, the board of appeals were of the opinion that the decision of the hoard of directors was proper. It was, therefore, decided to deny appeal of Brother J. Wiltsie.”
The plaintiff, a freight brakeman, who- had been in the employ of the Michigan Central -company and its successor, the New York Central Railroad Company, since January 29, 1912, filed the bill of complaint herein. The proceedings as outlined above were set forth therein at some length. In his prayer for relief he asked that the court construe the contracts referred to and determine his rights, and those of other parties interested, thereunder; that the railroad and the brotherhood be compelled to adopt.the construction which will be made by the court, and that the railroad be enjoined from running trains over the middle and western divisions of its road manned by men who have no seniority rights to such runs. His right to relief is based upon the denial of seniority rig'hts between 1914 and 1917, which he claims was a taking of his property without due process of law in violation of his constitutional rights.
Motions to dismiss were made by both the railroad company and the brotherhood. After the submission of some proof, the trial court entered a decree dismissing the bill, from which the plaintiff has appealed.
The railroad companies in their answer asked dismissal for the reason that the allegations therein applicable to them state no cause for equitable relief, and that plaintiff’s remedy, if any, as against them is in an action at law for breach of contract. Plaintiff’s counsel in his brief concedes that under the holding of this court in Mosshammer v. Railway Co., 221 Mich. 407, a mandatory injunction may not be issued “to restrain the breach of a contract for personal services.” It follows that the hill was properly dismissed as to them.
One of the grounds on which the brotherhood asked for dismissal was — •
“That the very subject-matter having been determined by the properly constituted and existing tribunals provided by the constitution and laws of the Brotherhood of Bailroad Trainmen and there being no allegation of fraud upon the part of plaintiff in this bill of complaint, with respect to such final determination, this court has no jurisdiction to determine the subject-matter of plaintiff’s complaint.”
Counsel for the plaintiff insists that under the rules of the brotherhood the decision of the grievance committee was final, and no appeal could be taken therefrom. It is difficult for one not a member of the order to harmonize the provisions in the constitution and laws relative to this question. In some of them the words “grievance committee” appear, and in others the words “general committee.” The printed “report of the board of directors” for the year 1931 and the “report of the board of appeals” for October, 1931, were put in evidence. The proceedings on the appeals here taken appear in them. Mr. Wiltsie was present at both hearings, and no question was raised by him or by any other person as to the jurisdiction of the board of directors or the board of appeals to consider the matter presented. The “report of the board óf appeals” discloses that a number of other cases involving seniority rights were considered and disposed of by it at the same meeting. The claim of a lack of jurisdiction is, in our opinion, without merit.
The reason for the appeal from the action of the grievance committee to the board of directors was thus stated:
“The action taken by this last-named committee contemplates making seniority for middle and west divisions men retroactive from May 1, 1917, to August 1, 1914, in violation of all past practices, laws and policies of the brotherhood. The action of which will force out of employment about 25 to 30 men on the Detroit division and reduce a like number from passenger to freight and in consideration thereof I wish to request a hearing before your honorable body at the earliest possible date to consider this very important matter.”
The same question was presented to the board of appeals. While no fraud is charged, counsel for the plaintiff insists that the decision of both boards was due to a “mistake” made by them, and is not conclusive on the rights of plaintiff. The mistake claimed is not as to any material fact presented to or considered by the boards, but in the conclusion reached in their interpretation of the contract and rules when applied to the facts presented. It is not unusual for a claim of this kind to be made to the decision reached by courts of last resort.
The constitution of the grand lodge of the brotherhood provides for a board of appeals and the manner of their selection. It provides for appeals in certain cases by members of subordinate lodges, and for a report of its decisions and the reasons therefor to the grand lodge. It then provides:
“Such decision shall be the final adjudication of any and all rights and questions included in the appeal. ’ ’
Is the plaintiff bound thereby? He has no inherent right to seniority in service, nor did such right arise out of Ms employment by tbe railroad company except as provided for in tbe contracts entered into, and tbe rules adopted by the company relating’ thereto. One of the purposes of the brotherhood is “to promote their general welfare and advance their interests” and to maintain “a good understanding” with their employers. To avoid strikes and litigation, the members agreed that questions affecting their rights in service should be finally determined by its board of appeals.
No claim is made, nor would the record justify a finding, that the decision of this board was the result of fraud or arbitrary action on its part. It will be presumed that its members acted in good faith and that their only desire was to place such a construction upon the contract and rules as would be beneficial to the entire brotherhood. By Ms membersMp, the plaintiff consented to the manner in which his claim of seniority rights should be disposed of, and he is bound thereby.
The following cases in which somewhat similar questions were decided tend strongly to support this conclusion: Simpson v. Grand International Brotherhood of Locomotive Engineers, 83 W. Va. 355 (98 S. E. 580); Shaup v. Grand International Brotherhood of Locomotive Engineers, 223 Ala. 202 (135 South. 327).
This is the first time this court has been called upon to pass upon such a question, but it has been held in a number of cases that when the by-laws of fraternal organizations, if reasonable and valid, provide a mode for determining when relief shall be given or denied to members by tribunals provided for therein, redress therefor may not be sought in the courts. See, VanPoucke v. Netherland St. Vincent De Paul Society, 63 Mich. 378; Canfield v. Great Camp, Knights of Maccabees, 87 Mich. 626 (13 L. R. A. 625, 24 Am. St. Rep. 186); Fillmore v. Great Camp, Knights of Maccabees, 103 Mich. 437; Raymond v. Farmers’ Mutual Fire Ins. Co., 114 Mich. 386; Hogadone v. Grange Mutual Fire-Ins. Co., 133 Mich. 339; Patrons’ Mutual Fire Ins. Co. v. Attorney General, 166 Mich. 438; Monger v. New Era Association, 171 Mich. 614; Howe v. Patrons’ Mutual Fire Ins. Co., 216 Mich. 560.
The decree is affirmed. No costs will he allowed.
Potter, North, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Butzeu, J.
The Wineman Bealty Company and, in a companion case, the Bethwood Corporation, both Michigan corporations, were granted injunctions enjoining Harry J. Pelavin et al., defendants, from erecting a gas station on lots 592 and 593 of Bobert Oakman’s Livernois and Oakman Highway Subdivision, of part of quarter section 9,10,000-Acre Tract, Greenfield township, Wayne county, Michigan, now in the city of Detroit. Prom the northwest corner of Dexter boulevard and Davison avenue the subdivision extends north approximately one-third of a mile, and west almost one-half mile. It is bounded on the east by Dexter boulevard, running in a somewhat northerly and southerly direction, on the west by Livernois avenue, running north and south, and on the south by Davison avenue, and is traversed by Davison, Clements, Grand and Pasadena avenues, Oakman highway, and LaBelle avenue, in the order named, all running east and west. The Wineman Realty Company property consists of the lots at the northwest corner of Dexter boulevard and Davison avenue, upon which a large apartment building has been erected. The Bethwood Corporation’s property, also improved with a large apartment building, is situated at the southwest corner, of Dexter boulevard and G-rand avenue. Another apartment building has been erected at the southwest corner of Dexter boulevard and Pasadena avenue. Defendants’ lots 592 and 593, as herein-before described, are situated at the southwest corner of Dexter boulevard and Clements avenue. They adjoin the property of the Wineman Realty Company, and are located about 180 feet south of the Bethwood Corporation’s apartment building. The plat of the subdivision was recorded July 5, 1916. All of the apartment buildings have been erected for a considerable period.
Defendants acquired their property by quitclaim deed May 26, 1933. Their predecessors in title, as well as all other lot owners in the subdivision, acquired their property either directly or by mesne conveyances from the subdividers whose deeds contained covenants restricting the use to residential purposes. The restrictions have been rigidly observed throughout the entire subdivision, except in a very few instances. There are but few buildings on Dexter boulevard, a wide thoroughfare, with considerable traffic. It is claimed that the apartment building of the Wineman Realty Company contains a large space on the ground floor which originally, prior to its acquisition by its present owner, was designed for use as a grocery. However, the space was never so used. There is no such claim made in regard to the apartment building of the Bethwood Corporation. There is a small grocery and beauty parlor in the apartment building at the southwest corner of Pasadena avenue and Dexter boulevard. The entrance to the grocery, however, is not on Dexter boulevard but on Pasadena avenue, while that to the beauty parlor is from the inside of the apartment building. A sign on the Dexter boulevard side of the building directs attention to the fact that there is a grocery and beauty parlor in the building. There is no claim that either of the plaintiffs have any responsibility for, or control over, this building. There is no showing whatsoever that they knew about the violation of the restrictions until some time after the businesses were established. Plaintiffs show that the grocery cannot be seen from their properties. It appears that the restriction has been violated in a few instances in respect to property located about a half mile away from the premises here involved. Defendants also show a violation of the restriction on Livernois avenue, over half a mile away. As to this violation, see Austin v. Van Horn, 255 Mich. 117, where we held that, due to the fact that conditions on Livernois avenue had completely changed, it would be inequitable to enforce the restrictions on lot 408 of the subdivision, fronting on Livernois avenue. The city of Detroit had taken a large part of the lots fronting upon Livernois avenue, for the purpose of widening the street, on which a double street car track was laid, and where but few buildings had been erected. The lots, after the condemnation, were left so shallow as to be unfit for residential purposes.
Defendants claim that the character of Dexter boulevard has so changed that the case of Austin v. Van Horn, supra, should govern. We can find no similarity in the conditions. Dexter boulevard remains, as originally laid out, a large boulevard, 100 feet in width. It contains no street car tracks, and the lots have lost none of their width. It is true that property south of the subdivision, fronting on Dexter boulevard, is being used largely for business purposes, but business has not encroached upon the subdivision itself, and plaintiffs are within their full rights in attempting to safeguard their investments by insisting upon the maintenance of the residential character of the subdivision. Where a street has so changed in character that the particular property in question adjoins, on all sides, property used for business purposes, and under the special circumstances it would be inequitable to enforce the restrictions, we have lifted them. See Windemere-Grand Improvement & Protective Ass’n v. American State Bank of Highland Park, 205 Mich. 539. But this is not the situation in the instant case. The distinction was pointed out in Boston-Edison Protective Ass’n v. Goodlove, 248 Mich. 625, where plaintiff sought to enjoin a violation of the restrictions on certain lots which faced on Hamilton boulevard, a wide street with street car lines. The restriction was upheld and the injunction granted, on the ground that the lots in question were part of an exclusive residential district in which the restrictions had always been observed, notwithstanding the fact that other portions of the boulevard outside the subdivision were not subject to restrictions. Defendants also rely on Golden v. Davis, 266 Mich. 7, where we dismissed the bill of complaint on facts entirely different from those in the case at bar, again approving of the decision in Boston-Edison Protective Ass’n v. Goodlove, supra. The owner does not necessarily waive the right to insist on the rigid enforcement of the restrictions in a particular district by failure to insist upon their observance in some other blocks or streets of the same subdivision. Home Development Co. v. Omeleanchik, 253 Mich. 568.
The contention of defendants that the property could be used more profitably for business purposes does not impress us. While it is claimed that it would be far better were property on some main thoroughfares no longer restricted for residential purposes, nevertheless those who have purchased property and otherwise acted in reliance upon the restrictions have property rights that cannot be overlooked. Plaintiffs show that the value of their property would be unfavorably affected by such a violation of their rights. Restrictions generally observed will not be lifted because of business inroads around the subdivision. Smith v. Lynch, 233 Mich. 6. In Moreton v. Louis G. Palmer & Co., 230 Mich. 409, a somewhat similar attempt was made to disregard the restrictions in a residential district, on account of changing conditions on Woodward avenue. We nevertheless upheld the restrictions, finding that there was no such radical change in the character and environment of the neighborhood as to justify a holding that the equities of certain owners of Woodward avenue frontage outweighed those of owners of the balance of the subdivision, who had purchased in reliance on such restrictions and had observed them. It is further claimed that the enforcement of the restrictions has resulted in a depreciation in value of the lots located in the subdivision and fronting on Dexter boulevard. If this were true, it could not in any way affect the rights of plaintiffs, whose properties have been improved by the erection of large apartment buildings, and who are rightfully seeking to have the restrictions maintained. Even if there were any merit in defendants’ claim, we cannot overlook the fact that any such depreciation in value must have taken place prior to the purchase of the property by defendants, whose deeds are dated less than four months prior to the time the instant suits were begun. It is true that they acquired title by quitclaim deeds; nevertheless, the restrictions appear in the recorded muniments of title.
The trial judge was correct in upholding the restrictions and his decree is affirmed, with costs to plaintiffs.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Bird, C. J.
Plaintiff instituted this suit to remove the cloud from his title to a lot in the city of Bessemer. He had relief in the' trial court, and the defendants, save Hughitt, appeal. After an examination of the case we find we are in accord with the conclusion reached by the trial court and, therefore, adopt his opinion as the opinion in the case:
“Plaintiff filed this bill in May, 1922, to set aside and vacate certain deeds, to establish his title to a certain lot in Bessemer, and to obtain other relief. There was a hearing at which all of the parties were represented by counsel. Owing to certain informalities in the pleadings, which have evidently been waived by counsel, a brief statement of the issues is not an easy task. I shall therefore first briefly state the material facts proven at the hearing and later state the issues.
“In 1903, the lot was owned by Cary, one Pierce was his agent with respect thereto. In 1903, Cary, through Pierce, sold the lot to defendant Erikson, under written contract, a copy of which was delivered to Erikson, for $50, reserving the minerals, etc. The contract was not recorded and the lot was then evidently vacant. In 1904, one Trebilcock sold it to plaintiff, plaintiff paying therefor $10 to Pierce and agreeing with Trebilcock to pay to Pierce as agent $50 and interest in addition thereto. This sale was not evidenced by any deed or writing. There is no direct testimony as to what right or title Trebilcock had to the lot. Plaintiff, however, bought it from him in good faith believing he had a right to sell it. .'He paid for the lot in full in 1904 or 1905. He has ¡since October 24, 1904, been in actual possession of the lot believing and claiming that he and nobody else owned it. Nobody ever questioned his right or title or possession until about 1920. He paid the taxes on the lot from 1904 to 1920, both inclusive, and has had it fenced and had a clothes reel on it and has planted it ever since he bought it. Hughitt, who is a trustee for the Chicago & Northwestern Railway Company in the premises, as was likewise Cary, succeeded to the rights of Cary in 1914. Cary and Pierce are dead. In 1918, defendant Erikson, by means of an affidavit (stating, inter alia, that he had lost his copy of the 1903 contract, that he had paid to the vendor’s agent the full purchase price and that he had not assigned the contract or did anything to affect his right to a deed.) and an indemnity bond, procured a warranty deed from Hughitt under the 1903 contract, which he recorded. In 1921 he deeded by warranty to defendant Gervasio, who recorded his deed and now claims to own the lot thereunder.
“Gervasio is and has long been a neighbor of plaintiff. When he bought the lot he knew plaintiff was in possession of it and thought plaintiff owned it, but, as he admitted on the witness stand, refrained from asking plaintiff as to his rights because his, Gervasio’s, lawyer ‘said Distasio had nothing to do _ with it.’ Erikson was living at Ramsay, in Gogebic county, When he procured the deed from Hughitt and at Marenisco township, same county, when he deeded to Gervasio. He was not sworn as a witness, nor has he filed any answer to the plaintiff’s bill.
“Erikson and Gervasio jointly appeared to the original bill and summons by S. W. Patek, their attorney. An answer was filed by Mr. Patek on behalf of Gervasio, but not on Erikson’s behalf. This answer was coupled with a cross-bill against Hughitt. Hughitt answered, filing a cross-bill against Erikson and Mannie, the surety on the above mentioned indemnity bond, and Erikson and Mannie appeared and answered to this cross-bill through Levi S. Rice, their attorney.
“Plaintiff’s original bill, in substance, alleged that Erikson assigned his rights under said 1903 contract to Trebilcock and that Trebilcock in turn assigned to plaintiff.. In paragraph 7 of Hughitt’s cross-bill it is alleged, in substance, that plaintiff commenced this suit claiming to be an assignee of said 1903 contract. The answer of Erikson and Mannie admits the allegations of paragraph 7 of Hughitt’s cross-bill, which is the last numbered paragraph of that cross-bill, and then proceeds:
“ ‘8. As to any allegations thereof, the cross-defendant, Erik Erikson, neither admits nor denies that he made any transfer or assignment to said Pompeo Distasio of any or the land contract set forth in the answer and cross-bill of the defendant Marvin Hughitt, but demands strict proof thereof.’
“Plaintiff, an uneducated, foreign-born, laboring man with little or no conception of business methods or the intricacies of legal documents, was sworn and testified on his own behalf at the hearing. Trebil-cock was unavailable as a witness. After plaintiff had testified his counsel asked leave, which was granted, to amend his bill to conform to the proofs. This was evidently done to avoid any variance which might result from failure to prove an assignment from Erikson to Trebilcock.
“Gervasio is asking that his title be established as against plaintiff; and that in case it is not Hughitt be made to respond in damages. His cross-bill does not involve Erikson, his immediate grantor, or ask any relief as against him. Hughitt asks that Erikson and Mannie be required to answer plaintiff’s bill and prays for general relief.
“Some material peculiarities of Erikson and Mannie’s answer to Hughitt’s cross-bill should be here noted. The document is entitled as an answer to said cross-bill. The cross-bill contains seven paragraphs. The allegations of each of these paragraphs are successively admitted in the answer; then follows the paragraph, numbered 8, above quoted. Number 9 denies that Hughitt is entitled to any of the relief prayed; alleges that the matters and things alleged in his bill are not sufficient in law to entitle him to any of the relief he prays, and prays that they, the cross-defendants Erik-son and Mannie, be hence dismissed, etc. Then follows the formal paragraph alleging that these cross-defendants are without remedy except in a court of equity and formal prayers that Erikson may be decreed to be the owner of the lot in question in the regular chain of title and (2) for general relief.
“Mr. Hughitt’s counsel raises the point that no assignment of the 1903 contract could be valid for the want of indorsement and approval which was required by the contract. If this point could be material under the facts disclosed by the record herein it could not, I think, be sustained. This requirement of the contract was one which might be waived and it would be waived by the vendor’s receipt from the assignee and retention of the payments required by the contract.
“Mr. Gervasio’s counsel rely on 3 Comp. Laws 1915, § 12314; Township of Jasper v. Martin, 161 Mich. 336 (137 Am. St. Rep. 508); and Rodgers v. Beckel, 172 Mich. 544. They claim that under this statute plaintiff cannot prevail without showing 20 years’ adverse possession ‘after the last payment was due — or after the last payment was made’ on the contract of purchase. As before stated there is no direct evidence as to how Trebilcock, plaintiff’s grantor, acquired any right or title to the lot or that he in fact had any. But I have no doubt that plaintiff purchased and paid for this lot in the utmost good faith and it must be conceded that When he purchased the lot from Trebilcock the latter was either the assignee of Erikson, the vendee in the 1908 contract, or else was a stranger to the original title. If Trebilcock was in fact the assignee of the last mentioned contract, then, plaintiff, having paid the purchase price and fulfilled the terms of the contract, was in all equity and good conscience entitled to a deed to the premises and it was unquestionably a fraud for Erikson to have procured the deed under which Gervasio claims in the manner he did, and Gervasio, knowing and being chargeable with knowledge of plaintiff’s right, stands in an unenviable position before the court. On the other hand if Trebilcock was a mere interloper and sold to plaintiff without having any right or title to the lot I cannot see how Gervasio can claim any advantage under the statute, even if it is given the construction which his counsel claim for it, which I am not prepared to follow without more extended study for the reason that I am inclined to the opinion that section 12311 is the section which prescribes the limitation while 12314, as it did before 1913 when the portion now relied upon was added, merely raises a presumption of possession in the cases therein mentioned.
“That there are good grounds for the conclusion that Trebilcock was in fact Erikson’s assignee cannot be denied. He sold the lot to plaintiff for $10 of the purchase price directing plaintiff to pay $50, the 1903 contract price, to Pierce, the agent, with interest. The money was so paid. Plaintiff got no paper from Trebilcock, evidencing the transaction, but, as he testified, he did not know it was necessary to do so. Where is Erikson’s copy of the 1903 contract? Erik-son apparently did nothing with respect to the lot after plaintiff became interested in it until 1918, about the time Gervasio became desirous of acquiring it. No one has testified that there was in fact no assignment from Erikson to Trebilcock. Erikson must know whether or not there was in fact such an assignment made. He did not take the stand. In his answer to Hughitt’s cross-bill he ‘neither admits nor denies/ that he made any assignment to Distasio. Gervasio, Who appeared to the original bill jointly with Erikson evades the allegation of this assignment in the original bill by stating that he has no knowledge of it and therefore neither admits nor denies it. He said nothing about his belief. It has long been the rule in this State, and I do not understand it to have been changed, that. every answer shall contain an explicit admission or denial of every material allegation in the bill as to which the defendant has knowledge or belief, and every such allegation not denied is taken as admitted. See Puterbaugh Ch. Pr., p. 106; Circuit Court Rule No. 25, § 2. Gervasio may not know whether or not such an assignment was made, but it is_ difficult to believe, in view of his close relations with Erikson that he had no information on the subject sufficient upon which to form a belief upon the subject. His counsel, Mr. Patek, has handed the court a memorandum of authorities to which is appended the following:
“ ‘Bill of complaint sets out plaintiff’s claim under a land contract — and the bill is sworn to. Plaintiff sent letters to land office of C. & N. W. Ry. Co., through Mr. Russell then county clerk, with payments on the contract under which plaintiff claims; and the letters (exhibits) show that plaintiff was claiming under the contract just as he alleges in his bill of complaint.’
“Plaintiff impressed the court as a frank and truthful witness. He testified, in substance, that he did not get any papers from Trebilcock; that he did not think it was necessary; that he paid Pierce, the agent, in $5 and $10 and $15 payments; that he never saw any contract that anybody had; that nobody questioned his right, or title or possession, and he never 'heard of Erikson’s claim to the land until two years before the hearing.
“I am of the opinion that there was in fact an assignment from Erikson to Trebilcock and that an amendment to the original bill was not in fact necessary. But whether or not I am correct in this conclusion makes little difference here. Hughitt does not now claim to own the land, except the minerals, and only desires to be freed from liability'under the deed to Erikson. Erikson is entitled to no consideration in a court of equity. He got his deed through falsehood and without consideration. Gervasio had full knowledge of plaintiff’s rights and knew or was chargeable with knowledge of the deceit of Erikson in procuring the deed from Hughitt. These men de liberately set about to beat an honest man out of his property and have little standing in a court of conscience. It would be a rank injustice to permit them to oust the plaintiff or further harass Mr. Hughitt, who acted in the utmost good faith in the premises. Gervasio’s cross-bill will be dismissed. Erikson’s and Mannie’s cross-bill, if the prayer at the end of their answer is intended as such, will be likewise dismissed. Hughitt will be decreed to be the owner of the minerals in the lot and to be free and clear of all liability to Gervasio and Erikson, and each of them, on account of his deed to Erikson. Plaintiff will be decreed to be the owner of the lot, except the minerals, as against all the other parties hereto. The decree will provide for releases in accordance with the conclusions here reached and for the recording of the decree to operate as such releases in case such releases are not promptly furnished. Plaintiff and Hughitt will each recover their full costs against Erikson and Gervasio. No costs will be allowed for or against the surety Mannie.
“George O. Driscoll, “Circuit Judge.”
Perhaps we should add a word to what has been said with reference to the statute, 3 Comp. Laws 1915, § 12314. We are unable to see how this statutory provision has any application to this controversy. When the trial court held that plaintiff had title by adverse possession the statutory provision became immaterial. Upon the other phase of the case plaintiff does not say that he went into possession by means of a contract or lease. Lie supposed that he went into possession because he had title. He believed that his grantor had title. He bought and paid for the- title in 1904 and has claimed to own the premises ever since. In this view we think the statutory provision is not important.
The decree will be affirmed.
Sharpe, Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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North, J.
This is an action for damages arising from the accidental injury and death of plaintiff’s decedent at a time when she was a passenger in an elevator owned and operated by the defendant hotel company in its hotel in the city of Detroit. On trial before jury, plaintiff had judgment. Defendant, now in receivership, appealed.
The accident happened about 2 a. m., March 24, 1929. During the evening of March 23d plaintiff’s decedent, Elizabeth McLeod, and another young-lady together with two male companions attended the Cass Theater and after the show went to the Oriole Terrace where they dined and drank. Between 1:30 and 2:00 o’clock on the morning of the 24th they engaged a cab for the purpose of returning the ladies to their homes in Redford, Mich. It was then discovered that the party had insufficient funds to pay the cab fare. The four thereupon went by cab to the defendant hotel where one of the male members of the company was registered as a guest. The purpose of the trip was that this guest might go to his room where he had a check book and by having a check cashed at his hotel the desired funds would be secured. All four members of the party entered the elevator at the hotel for the purpose of going to the room of this registered guest. The elevator was not crowded. It had a capacity of 15 and at the time there were six persons in the cage. Upon entering the elevator the other young lady in the party sat down upon the stool ordinarily used by the operator of the elevator, and Miss McLeod sat down upon this other young lady’s knee facing the entrance to the elevator. The elevator was started on its upward course and when it was between the second and third floors Miss McLeod pitched forward, striking her head against the door to the elevator shaft between the second and third floors. The upward motion of the car pulled her head down between the door guarding the shaft and the car floor, and she was killed instantly.
Plaintiff’s declaration charges that it was the duty of the defendant to use a high degree of care in selecting persons to operate its elevators, such as were competent, qualified and experienced in the operation thereof; that it was the duty of the defendant and its employees in operating its elevators to exercise a high degree of care, particularly to keep the gates of said elevators closed while such elevators were in motion; not to start the elevators moving in a sudden manner or with unusual speed. Neglect to perform said duties is alleged and it is charged that plaintiff’s decedent came to her death on account of the negligent use and operation of the elevator in which she was a passenger; that such negligence consisted in that defendant’s servant then operating said elevator caused it to start to ascend in an unusually rapid manner and without closing the gate of said elevator, in such manner that plaintiff’s intestate was caused to lose her balance and to be forcibly thrown through the open gate thereof, causing her death.
The primary question presented by this appeal is whether defendant was entitled to have a verdict directed in its favor as a matter of law or whether there was testimony which presented issues of fact as to negligence and contributory negligence.
Negligence. There is testimony that this elevator, in charge of a hotel porter instead of a regular elevator employee, was operated in an unusual and improper manner, such as caused Miss McLeod to fall to the floor of the elevator and resulted in her injuries. One of the two male members of this party-testified :
“The elevator started and went up and I would say to the third floor, I don’t remember exactly, it all happened so quick, and apparently hesitated, and it then went on, and the first thing, one of the young ladies had apparently pitched forward. * * * As I remember it, the elevator sort of hesitated and then went on; I could not say how much of a jerk, but there was apparently a little slight stoppage on the elevator going up and it then went up.
“ Q. When you felt the effect of this little hesitation, was it before the girl’s body passed you?
“A. It was instantly, at the same time.
“Q. What if anything happened .when she pitched forward?
“A. There was no door closed, the safety door, as you would call it, and she struck the door or whatever obstruction there was as the elevator passed, and was caught in there. ’ ’
The other male member of the party testified:
“The elevator started to go up, and I don’t remember whether it was the second or third floor; I don’t know whether it was a jerk in the elevator or what, it all happened so suddenly, but Miss McLeod fell forward and as she fell forward it seemed to me her hat fell off and her hair got caught in the space between the elevator and the wall and it just dragged part of her body down. ’ ’
The following is from the testimony of the other young lady:
“Q. Was there or was there not a sort of jerk at the time?
“A. There was, it seemed, as the elevator just , started, when she went forward.”
The circumstances immediately attending the accident are thus stated in the appellant’s reply brief:
“The elevator was going np at the time deceased fell and she was caught by crashing through the door guarding the elevator shaft. * * * There is no testimony as to the construction of the elevator shaft (i. e. that it was improperly constructed). Furthermore it is immaterial because deceased lunged through the glass of the door guarding the shaft and was caught by the door, not by any projection in the elevator shaft.”
Thus from appellant’s own version of the manner in which plaintiff’s decedent was injured, it appears that regardless of what caused her to fall to the floor of the elevator she seemingly could not have been injured in the manner described had the entrance way to the elevator cage been closed by use of the collapsible door with which it was equipped. The undisputed testimony discloses that this elevator was not only equipped with a collapsible door but also in connection with this door there was an automatic device designed to prevent starting the elevator until the door was closed. It is a fair inference from the testimony that the five- or six-inch space between the wall of the elevator shaft and the edge of the floor of the elevator cage necessitated the use of the collapsible door- and an automatic device in order to operate the elevator with reasonable safety to passengers. Instead of so using the collapsible door and the automatic device, a plug had been placed in the electric switch. This prevented the automatic device from functioning and enabled the operator to use the elevator without closing the cage door. The record justifies the conclusion that this manner of operating the elevator by the employee was known to the defendant, or in exercise of reasonable care should have been so known. Clearly a jury question was presented as to whether defendant negligently operated the elevator and whether such negligence was a proximate cause of the accident. As to proximate cause, it may be noted that regardless of the cause of Miss McLeod’s fall, her death could not have occurred as it did if the collapsible door had been closed. The trial judge was correct in refusing to direct a verdict for defendant on the ground that there was no testimony tending to sustain plaintiff’s charge of negligence. -
Contributory negligence. From the record in this case it is not possible to say as a matter of law that plaintiff’s decedent was guilty of contributory negligence. The proof is that she fell to the floor of the elevator and in so falling went forward and through the open doorway of the elevator cage and to her death. At most it is mere conjecture as to what caused her to fall. It may have been that she succumbed to the intoxicating effect of liquor which she drank earlier in the evening; she may have fainted, the swift or unusual motion of the elevator may have caused her to fall, or (although there is no testimony to that effect) she may have been jostled from her sitting position on her companion’s knee and fallen. Evidently all the obtainable facts were presented in evidence and the question of Miss McLeod’s contributory negligence was properly submitted to the jurors for determination.
Plaintiff’s original declaration set forth his cause of action in the manner hereinbefore indicated. On April 18, 1933, nearly four years after the accident occurred, plaintiff was permitted over defendant’s objection to amend the declaration by pleading the provisions of an ordinance of the city of Detroit, which so far as material, read :
“All (elevator) cars shall be provided with collapsible metal gates or horizontal sliding doors pro vided with, mechanical interlocks or contact switches designed to prevent operation of car while gates are open. * * # Every passenger elevator must be in charge of a competent and reliable operator not less than 18 years of age.”
The case as submitted to the jury by the trial judge includes plaintiff’s claim of right to recover based in part, at least, upon negligence of defendant incident to a claimed violation of the above ordinance provisions. Appellant asserts error on the part of the trial court in permitting this amendment to plaintiff’s declaration after his cause of action, unless otherwise instituted, would have been barred by the statute of limitations. 3 Comp. Laws 1929, § 13976. An examination of the declaration leads to the conclusion that,plaintiff did not by this amendment to the declaration assert a new and different cause of action. Instead, at most, the amendment merely amplifies the allegations of the original declaration, which does not constitute a new cause of action.
“An amendment consisting of a mere amplification or elaboration of the matters stated in the original pleading does not amount to the introduction of a new or different cause of action.” 49 C. J. p. 513.
It should be' noted that the first portion of the quoted ordinance merely requires that all elevators “shall be provided with collapsible metal gates or horizontal sliding doors provided with mechanical interlocks or contact switches.” In the instant case there is no claim of right of recovery because of defendant’s failure to so equip its elevator. It is admitted that the elevator was properly equipped in this respect; but plaintiff complains of defendant’s negligence in failing to make use of such equipment for the safety and protection of plaintiff’s decedent. As to the other provision of the ordinance the only material portion is that which requires the elevator ' to be “in charge of a competent and reliable operator.” Apart from the provision of the ordinance, this duty was imposed by law upon defendantand neglect of this duty was alleged in plaintiff ’s original declaration as a ground of recovery. Under the facts and circumstances of this case the amendment to the declaration did not constitute a new. cause of action and was not prejudicial to defendant ?s rights.
Appellant also asserts-error on the part of the .trial court in, submitting to the jury the question of the competency or i-ncompetenoy of the- operator of defendant’s elevator. 'In-this connection .appellant asserts that there is no evidence that the elevator operator was-incompetent or that he failed to do anything that an ordinarily prudent .person would have done. We cannot- agree- that, there is no testimony of that character in this record. As herein-before noted, there is evidence that the elevator was negligently operated, the, inference may reasonably be drawn that therefore the. operator who was in charge of the elevator at.the-time of the accident was incompetent. Especially is this true, in view of the testimony that at the. time of the accident the elevator mechanically was in good working condition. Mirabile v. Simon J. Murphy Co., 169 Mich. 522; Durfey v. Milligan, 265 Mich. 97, wherein it is held:
“While the accident alone is not evidence of negligence, the accident itself, together with the surrounding ■ circumstances and legitimate iiiferences, may establish negligence.”
Surely from evidence indicating that defendant’s employee operated the elevator in a negligent manner the inference may be legitimately drawn that such employee'was incompetent.
Our review of the record in this case discloses nothing that would justify reversing the judgment entered in the trial court. .'It is therefore affirmed, with costs to appellee.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Btjtzel, and Edward M. Sharpe, JJ., concurred. Btxshnell, J., did not sit."' | [
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BIRD, C. J.
Plaintiff is a construction company. It secured the contract for the erection of a high school building in the city of Saginaw. It sublet the work of lathing and plastering of the building to defendant. Defendant did not finish the work, and, it is claimed, did not comply with the contract in that part of the work which it did perform. Plaintiff began this suit to recover its damage for such failure. The jury assessed its damage at the sum of $28,592.21. Defendant assigns error.
The contract between plaintiff and defendant made the drawings and specifications in the contract between plaintiff and the school board, so far as applicable, a part of it. It provided that the defendant should begin work on June 15, 1922, and should finish the work by October 1, 1922. Plaintiff’s contract with the school board contained a stipulation that plaintiff should finish the work by October 1, 1922, and that it should be liable to pay the school board $100 per day for all delay beyond that date. Defendant was given notice of this provision in its contract with plaintiff. Defendant did not commence the work on June 15, 1922, as stipulated, but did start the work on July 31st without protest. The delay in starting the work appears to have been the fault of the plaintiff in not having the building ready for lathing and plastering on that date.
The trial court charged the jury that:
“I charge you, as regards to the time of the commencing of the work, the American Plastering Company going on there and commencing work on July 31st, was a waiver between the parties as to the stipulated time on or about June 15th. * * * I say to you, under the law, after they went on with the work, that was a waiver as far as the time was concerned. * * *
“I think I have charged you that any waiver of the contract between these parties is binding upon both parties, even though the testimony does not show that there was any writing or agreement outside of these written contracts that have been entered into. I charge you, when men go on, and change dates affecting their work, as these parties did, both parties waive the terms that were entered into their written contract. What I mean by that, if the American Plastering Company went on this job on July 31st, and commenced work there, they waived the fact they should commence there on June 15th; they need not have gone at all but they did go. And the fact that the job was not completed on October 1st, as named in the contract, was waived by the Realty Construction Company; they waived that part of the contract because they permitted these people to go on and continue this work.”
Counsel complain of these instructions because the question of waiver was not left to the jury. When the testimony is not in conflict there is usually no question for the jury. But suppose the question had been left to the jury, what facts would they have found different than the evidence showed? They could have found nothing except that the contract provided the defendant should commence work on June 15th, but' that it did not commence work until July 31st, and the delay was the fault of the plaintiff. There was no dispute about this, and, therefore, we think the question of waiver was one for the court. 40 Cyc. p. 270; 27 R. C. L. p. 912; Cobbs v. Fire Ass’n, 68 Mich. 465-467; Bayer v. Winton Motor Car Co., 194 Mich. 222-233; Schwier v. Assurance Co., 227 Mich. 104, 110.
In any event we fail to see the harm to defendant. This instruction simply put the plaintiff in a position where it could not complain of defendant for not finishing the job by October 1, 1922, and put the defendant in the position where it could not complain of plaintiff for not having the 'building ready so it could proceed on June 15th. Defendant could have refused to go on with the work when plaintiff failed, to have the building ready for it by June 15th. It did not refuse, however, to proceed with the work on July 31st. The court appears to have charged the law, and the ruling at the most was not very important to either.
The second error complained of is the charge of the trial court on the question of damages:
“Now it is the claim of the defendant that, at the time they commenced the work, there was not sufficient area to practically go there and work on; that they put all the men on the job that was practicable from a business standpoint to work upon the job. They further claim that owing to the moisture or wetness of the building that it was not policy for them to proceed with the work more rapidly, because moisture would come through from the plaster above, and it might be the means of rusting their lath. They also claim that the windows were open, and the water also came in from there, which was damage to them. They also stated that there was some rain came in, and wet some plaster,.but there has been no evidence to you as to what that damage was, whether it.was $1, $100 or $1,000. I say to you as jurors you cannot speculate when the parties to the suit do not give you the amount they claim to be due; you cannot speculate as to what damage was done to that plaster. They say it was wet, some of it, by the water coming into the windows.”
Counsel say at no time did it claim damages; that no notice of recoupment was given 'by it; that the proof upon this question was injected, not for the purpose of recovering damages, but to show the reason for the delay in the work. If the defendant claimed no damage on that account, and the court charged it could recover no damage, we are unable to see how any harm was done. Counsel’s suggestion is that it was misleading to the jury. If this be so, it was so harmless that no reversible error resulted.
The following requests were proffered and refused :
“(a) I further charge you that if you find that there was any deviation from the contract of April 7, 1922, which was attached to the bond in question, by reason of any agreement between the Realty Construction Company and the American Plastering Company prior to January 29, 1923, to which the Fidelity & Casualty Company was not a party to and had no knowledge of, you must return a verdict of no cause of action as against the Fidelity & Casualty Company.
“(b) I charge you that if the Realty Construction Company failed to notify the Fidelity & Casualty Company after- it had commenced advancing money for pay rolls and material, and then after serving the notice upon the Fidelity & Casualty Company of January 29, 1923, the Realty Construction Company permitted the American Plastering Company to continue with the plastering work until March 10, 1923, and’ that this is established by the evidence, then 1 charge you that the Realty Construction Company was es-topped from asserting any rights under the bond in question, and the Fidelity & Casualty Company cannot be held liable.”
The court did charge on this question that:
“Third. I further charge you that if you find that there was any deviation from the contract of April 7, 1922, which was attached to the bond in question, by reason of any agreement between the Realty Construction Company and the American Plastering Company prior to January 29, 1923, to which the Fidelity & Casualty Company was not a party to and had no knowledge of, you must return a verdict of no cause of action as against the Fidelity & Casualty Company.”
This charge was more favorable to defendant than it should have been. It is not enough that there is a deviation from the terms of the contract, but it must be a material deviation with a paid surety, and one which results in injury to it in order to release it from liability. People, for use of Contracting Co., v. Bowen, 187 Mich. 257. For this reason the requests proffered should not have been given. • Another reason why the request should have been refused was because it was shown that Mr. Harris, who represented the casualty company, knew of the deviation and expressly consented to it. It is true he denied knowledge or consent. This made it a question.for the jury.
There are other assignments of error which have been examined and considered, but we think they are not well taken.
The judgment is affirmed.
Sharpe, Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Sharpe, J.
Melissa J. Sines presented a claim against the estate of David H. Rader for services performed in his home and on his farm for 551 weeks at $8 per week to the commissioners on claims appointed by the probate court for the county of Ionia, and it was disallowed by them. She took an appeal to the circuit court for that county. On trial by a jury she was allowed $2,755. The administrator reviews the judgment entered thereon by writ of error. The errors assigned will be considered in the order discussed by counsel.
Failure to direct verdict. In 1910, plaintiff, a widow, was living in the State of Ohio. She was a cousin of the deceased. He was then 54 years old, and unmarried. She was two years younger. Early in that year he bought a farm in Ionia county and wrote plaintiff, asking her to come and keep house for him. Some correspondence followed. In a letter written on March 6th he said to her:
“I received your letter and was very glad to hear from you in regard to your coming out to keep house for me. I will be very glad to have you. You bring your youngest boy with you. He can go to school. Now Melissa for paying much wages I can’t this summer.”
Other correspondence followed, resulting in plaintiff’s moving to, and taking charge of, his home in Ionia county. She brought her youngest child, a boy 10 years old, with her. It is undisputed that she re mained on the farm, performed the usual duties of a housekeeper, and assisted in caring for the stock, did the milking, marketed the butter and eggs, and did some work in the garden and fields, until he left the farm in October, 1920.
It is her claim that these services were rendered in the expectation of receiving compensation therefor and that the deceased expected to compensate her, and on the understanding or agreement that such compensation should be paid to her at his death. It is the claim of the estate that she came to the home of the deceased under an arrangement whereby she and her young son were to have a home with him and that she was under such arrangement to receive her living and that of her son and the proceeds of the butter, eggs, etc., sold from the farm, and that she did receive these. Defendant insists that there was no evidence of an express contract, and that the circumstances under which plaintiff performed services were not such that a promise to pay for them by the deceased could be implied. The letter written by the deceased to plaintiff, above referred to, clearly indicates that deceased expected to pay plaintiff wages for such service as she should render if she came to live with him on the farm. Plaintiff’s son testified that deceased said to his mother at one time during the first winter they were there, when money matters were being talked about, “Never mind, you’ll get it all after awhile.” A witness named Davis testified that deceased said to him that “he was going to see that she got his property when he was done with it.” He told Laura Lumbert, a neighbor, who talked with him about the work plaintiff was doing, “Well, if she would work hard as I am myself I want her to have what I have got and if I have my right mind she will get it.” There was other proof tending to show an intention on the part of deceased to compensate plain tiff for the service she was rendering. The defendant offered proof tending to negative any such intention or understanding. Clearly, an issue in this respect was presented for the consideration of the jury. In re Clark’s Estate, 234 Mich. 471, and cases there cited. The relationship of the parties was not such as to raise a presumption that the services were rendered gratuitously. In re Wigent’s Estate, 189 Mich. 507.
Defendant’s requests. We have examined with care the requests preferred. We are impressed that the substance of them, so far as they were applicable to the issue presented, was fairly covered by the in-' structions given.
New trial. It was urged upon the motion for a new trial that the verdict was against the great weight of the evidence, and was excessive. We are impressed that the verdict should not be set aside by us for either of these reasons. The proof offered by defendant was not of so convincing a character as to warrant us in saying that the verdict is against the great weight of the evidence. Neither can we say'that it was excessive. The jury allowed plaintiff $5 per week for the time she was at defendant’s farm. It does not appear that her son was supported entirely by the deceased. He rendered some service for him on the farm and in a pool room conducted by deceased. In view of the service performed by plaintiff in the home and about the farm, and in caring for the deceased when he was ill, we do not feel justified in setting the verdict aside for this reason.
The judgment is affirmed, with costs to appellee.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Starr, C. J.
Defendant was incorporated July 10, 1941, for the purpose of insuring railroad, street railway, and bus company employees against loss of wages caused by discharge or suspension. Its organization was promoted by plaintiff and Roy W. Scott, both of whom had previously been employed by the Conductors Protective Association, which was also engaged in issuing job insurance to railroad employees. As a prerequisite to obtaining a charter, it was necessary for the organizers of defend ant company to obtain at least 300 applications for insurance, and it appears that plaintiff and his agents obtained such applications. On June 9,1941, prior to the organization of the company, plaintiff wrote Mr. Scott, enclosing a suggested contract between himself and the company. His letter outlined by examples how his commissions on membership applications and renewals thereof would be computed and paid. The contract proposed by plaintiff, as revised by Scott and defendant’s attorney, was executed July 22, 1941. It provided in part:
“The Brotherhoods Mutual Benefit of Detroit, Michigan, hereby agree to employ John R. Stevenson, of Battle Creek, Michigan, as field organizer to represent their interests in procuring representatives in the field and to handle Brotherhoods Mutual Benefit sales. * * * -
“In order to compensate John R. Stevenson for his time and efforts in his representative capacity as field organizer, the Brotherhoods Mutual Benefit agree to pay John R. Stevenson as here specified:
“Five dollars commission on each application received at the home office from the territory assigned to said field organizer; five per cent, renewal on each application received for a period of five years.
“This five-dollar commission is to be paid at the rate of one dollar a month for five consecutive months, starting with the sixth month’s dues. The five per cent, renewal is to be paid on each policy at the end of its fiscal year, starting with June, 1942.
“It is understood and agreed that this arrangement will be in effect on and after June 1, 1941, and shall continue as long as the said field organizer shall exert his best efforts in his employment, but not longer than 10 years from June 1, 1941.”
Following the execution of the contract, plaintiff began work as defendant’s representative and field organizer in the territory specified in the contract. He continued until January 15, 1943, when defendant discharged him and canceled the contract. He then began the present suit to recover commissions alleged to be due him under the contract. In its answer defendant denied liability and, by way of set-off and recoupment, claimed damages for alleged breach of contract by plaintiff. On trial without a jury the court awarded plaintiff judgment of $4,276.52, and denied defendant’s claim for damages. Motion for new trial was denied, and defendant appeals.
Plaintiff, traveling by auto and house-car trailer, worked as defendant’s field representative and organizer, principally among the employees of the Union Pacific railroad, until about August 1, 1942. He then returned to Detroit, where defendant maintained its office, claiming that it was impossible for him to travel and work in the field because of shortage of tires and gasoline. Thereafter, until his discharge, he spent some time in defendant’s office and corresponded with agents whom he had appointed. Plaintiff had been made vice president of the company, and after his return to Detroit trouble arose between him and Mr. Scott, who was then treasurer and manager. Much of the voluminous record is devoted to conflicting testimony relative to the trouble between plaintiff and Scott. It appears that defendant was insisting that plaintiff return to his field work among railroad employees. Plaintiff claimed that he could not work in the field and that he could successfully direct and handle his work with agents and representatives by correspondence from Detroit. It would serve no useful purpose to discuss in detail the testimony relative to the dispute between the parties. The situation reached a climax in January, 1943, when defendant discharged plaintiff and canceled the contract. It claimed that he had breached the contract by re maining in Detroit and refusing to work in the territory assigned to him, and by failing to “exert Ms best efforts in Ms employment.”
The contract provided that plaintiff was employed as “field organizer to represent their (defendant’s) interests in procuring representatives in the field and to handle Brotherhoods Mutual Benefit sales.” It was clearly intended that plaintiff would work in the field among the employees of the several railroads specified as his territory. The record indicates that he remained in Detroit after August, 1942, and refused to work in the field. He based his refusal on the tire and gasoline shortage and claimed that he could not travel by train and bus. However, it should be noted that immediately following his discharge in January, 1943, he returned to Ms former employer, the Conductors Protective Association, and traveled the Union Pacific territory by train and bus. We find no valid, excuse for his failure to perform or at least make a good-faith effort to perform Ms work as a field organizer for defendant.- He breached his contract, and defendant was justified in discharging him and canceling the contract.
In Ms amended declaration plaintiff claimed the specified commission of $5' on each application for membership in defendant company, which he and agents appointed by him had obtained. He also claimed the specified 5 per cent, commission on all renewals of the membership policies which he and Ms agents had obtained, and he computed such renewal commissions on the premiums paid during the first year. In its answer defendant alleged that plaintiff’s breach of the contract barred him from -recovery of any commissions.
# If was agreed that prior to January 1,1943, plaintiff -and Ms agents had obtained applications wM'ch, at the contract rate of $5, ■would have entitled him to commissions of $7,876, not including renewal commissions. It was admitted that defendant had made monthly payments on account to plaintiff aggregating $4,928.92, and that plaintiff had waived $570.83 of his commissions. Deducting these amounts from the above sum of $7,876 would leave a balance of $2,376.25. The parties were in dispute as to how the renewal commissions should be determined under the contract. An insurance actuary, who audited defendant’s records relative to commissions claimed by plaintiff, computed the renewal commissions to January 1, 1943, at the sum of $1,627.79, which was on the basis of 5 per cent, of the first year’s premiums. This amount was added to the above balance of $2,376.25, making a total of $4,004.04, for which the trial court granted judgment, with interest of $272.48.
Defendant first contends that the contract in question was entire and indivisible and that plaintiff’s alleged breach barred his recovery of any commissions. Under this contention defendant argues that plaintiff could not recover undér the contract until he had fully performed it. In 2 Elliott, Commentaries on the Law of Contracts, p. 828, § 1543, i.t is stated:
“The question of whether a contract is entire or is to be regarded as severable is a question of construction. A contract is entire when its terms, nature and purposes show that it is contemplated and intended that each and all of its parts, material provisions and the consideration are common each to the other and interdependent. * * * "Whether or not the contract is entire or divisible depends on the intention of the parties. The intention is to be ascertained from the language used, the subject matter of the contract and from a consideration of all the circumstances.”
In the case of Manistee Navigation Co. v. Filer, 185 Mich. 302, 311, we quoted with approval from Beach on the Modern Law of Contracts, p. 887, § 731, as follows:
“A familiar and well-settled principle of the common law is that an entire contract cannot be apportioned. The good sense and reasonableness of the particular case must always guide and govern courts in determining whether a contract is divisible or entire. The question depends, to some extent, upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject matter of the contract. No precise rule can be laid down for the solution of the question. . When the price is expressly apportioned by the contract, or the apportionment may be implied by law, to each item to be performed, the contract will generally be held to be severable.”
Under the contract in question, the $5 commission was to be computed on each application for membership. The 5 per cent, renewal commission was to be computed on each renewal each year. Examination of the contract and of the surrounding facts and circumstances convinces us that the contract was severable, and that plaintiff’s alleged breach did not bar him from recovery of commissions due at the time of his discharge.
Defendant next contends that the trial court erred in its interpretation of the provisions of the contract relative to the payment of renewal commissions. It argues that under the contract plaintiff would not be entitled to the 5 per cent, commission on a renewed policy until the expiration of the renewal period. Plaintiff contends that the 5 per cent, renewal commission should be computed and paid in the first month of the renewal period on the basis of the premium paid for the preceding year. The contract provided1 that defendant would pay plain tiff a renewal commission of 5 per cent, “on each application received” and that “the 5 per cent, renewal is to he paid on each policy at the end of its fiscal year, starting with June, 1942.” This provision regarding renewal commissions is uncertain and ambiguous. Therefore, to determine the intention of the parties it is necessary to consider plaintiff’s letter of June 9, 1941, to Mr. Scott, which accompanied his proposed form of contract. It should be noted that the provisions of the contract submitted by plaintiff, relative to renewal commissions, were identical with the provisions of the above-quoted contract, as executed by the parties. In .his letter accompanying the proposed contract, plaintiff clearly indicated that renewal commissions would begin in June, 1942, and be computed 'on the basis of the premium paid for the preceding year. The provisions of the contract in question, when considered in connection with plaintiff’s letter and the surrounding facts and circumstances, clearly indicate that the parties intended that when a membership policy was renewed, plaintiff would be entitled to the 5 per cent, renewal commission based on the amount of the preceding year’s premium. In other words, plaintiff was entitled to renewal commissions on all policies that had been renewed prior to his discharge, January 15, 1943. By electing to discharge him and cancel the contract, defendant could not defeat his right to recover whatever amount was due him under the contract at the time of his discharge.
By way of set-off and recoupment defendant asserted claim for damages resulting from plaintiff’s alleged breach of contract. In its answer defendant charged: ■
“That because of plaintiff’s failure to perform his contract and to exert his best efforts in promoting the business of the defendant since the month of -August, 1942, the defendant has sustained great loss and damage in that it had to resort to other means and methods to keep its business going and expended the sum of $2,000 in advertising and in putting on contests among its sales representatives, and had the plaintiff been out in the field performing his contract' the defendant company would have received at least 50 applications for -membership and policies per month during the past 16 months which would have earned for the defendant company the sum of $14,400 over a period of one year.”
We cannot overlook defendant’s inconsistency. It first claimed the right to discharge plaintiff because of his alleged breach of contract, and then asserted claim for damages for loss of his valuable services. The major part of its claim was for the loss of premium income which it estimated plaintiff would have produced if he had performed the contract. We find no competent evidence establishing the damages claimed by defendant. Furthermore, such damages were too uncertain and speculative to be capable of definite ascertainment. In Rich v. Daily Creamery Co., 303 Mich. 344, 352, we quoted with approval from Ludwigsen v. Larsen, 227 Mich. 528, 531, as follows:
“In actions on contract, where the profits are in their nature contingent on opportunity, successful operation, and dther uncertain happenings, courts have been loath to allow them to be considered as elements of damage.”
We agree with the trial court who said, “If there is a breach there is, in my opinion, no competent evidence of any damage sustained as a result of the breach. ’ ’
We have repeatedly said that in cases tried without a jury the trial judge may give such weight to the testimony as in his opinion it is entitled to. In such cases we do not reverse unless the judgment is against the clear preponderance of the evidence. Allen v. Kroger Grocery & Baking Co., 310 Mich. 134; Marquette Lumber Co. v. Burke, 308 Mich. 698. The judgment in the present case was not against the clear preponderance of the evidence.
The judgment entered by the trial court included the agreed balance of $2,376.25 due as commissions on original membership applications received prior to January 1, 1943, and also renewal commissions to that date of $1,627.79. The judgment did not include commissions on original applications and renewal commissions during the period from January 1, to January 15,-1943, on which date plaintiff was discharged. As he has not appealed from the judgment, it shall stand as entered.
The judgment for plaintiff is affirmed, with costs of both courts.
North, Wiest, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred1 with Starr, C. J. Butzel, J., concurred in the result. | [
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Bushnbll, J.
Plaintiff James Powers, doing business as Powers Pontiac Sales Company, seeks a writ of mandamus directing defendant Herman H. Dignan, secretary of State, to forthwith issue a motor vehicle dealer’s license as provided for in Act No. 46, Pub. Acts 1921, as amended, 1 Comp. Laws 1929, §§4658-4676 (Comp. Laws Supp. 1940, 1943, §§4658-4676, Stat. Ann. and Stat. Ann. 1943 Cum. Supp. §§ 9.1471-9.1491).
An order to show cause was issued and the secretary of State filed an answer and return in which he claims that Powers, as president of Powers Motor Sales, Inc., a Michigan corporation, has been “guilty of such fraudulent misconduct as a motor vehicle dealer as would, under the terms of the statute, bar him from receiving such a license.” The allegations of fraud are that, while Powers was president of this corporation, he conducted its affairs in such a manner that it is still indebted to the State for sales taxes, and that the records of the corporation were kept so as to conceal such indebtedness in the amount of several thousand dollars, and the corporation, under Powers’ direction, unfairly competed with others in the same line of business.
Defendant’s return states that- tie “quite inadvertently and inadvisedly failed strictly to comply” with, the provisions of section 14 of the act in question (1 Comp. Laws 1929, § 4671, as amended by Act No. 151, Puh. Acts 1943 [Comp. Laws Supp. 1943, §4671, Stat. Ann. 1943 Cum. Supp. § 9.1482]), which reads in part as follows:
“The secretary of State shall be authorized, after a hearing, notice of which shall be given 10 days in advance, for good cause shown, to revoke the license of any motor vehicle dealer, or to refuse to issue a license, as provided1 in section 14f of this act.”
He claims, however, that the matter is still open to lawful inquiry, and avers that he is “now ready and willing to accord plaintiff all of the rights guaranteed by the statute aforesaid, to prepare and serve upon him written charges of misconduct, to give due and timely notice of hearing, and to have present a competent stenographer in order that a complete record may be made available for judicial review in this or other appropriate proceedings.”
Defendant further submits:
“(1) that neither justice nor the public interests would be served by the issuance of a peremptory writ of mandamus, at this time, requiring the secretary of State forthwith to grant to plaintiff the license demanded;
“(2) that, although plaintiff was inadvertently denied due process, and has not yet been accorded a proper hearing, he nevertheless, because of his acts of misconduct, does not stand in this court with clean hands, and he is not entitled to the issuance of the discretionary writ of mandamus;
“(3) that both justice and the public interests require, before the license be granted, or ,a writ of mandamus shall issue, that a proper and regular hearing on such charges be held by this defendant to determine the truth thereof;
“(4) that both justice and ,the public interests would be served, and the rights of all parties protected, if this court should now order that the writ of mandamus be denied without prejudice; or if, holding matters in abeyance under the restraining order, the court should order this defendant to take the necessary and appropriate steps towards a hearing of the charges against the plaintiff, and await the outcome thereof until a transcript of the record of such hearing is made available for review.”
Plaintiff insists that notwithstanding such answer and return he is entitled to a writ of mandamus as prayed and further contends that the act in question is unconstitutional because it violates the United States Constitution, Am. 14, § 1, and the Michigan Constitution (1908), art. 4, § 2, and art. 5, §21.
Powers’ petition for a writ of mandamus must be denied without prejudice, pending a formal administrative hearing on the charges of fraud, because mandamus is not a writ of right but of grace and discretion, and will not lie to compel a public officer to perform a duty dependent upon disputed and doubtful facts. Salisbury v. City of Detroit, 264 Mich. 250. See, also, Sherman v. Atwood, 274 Mich. 621, and St. Joseph Stockyards Co. v. United States, 298 U. S. 38 (56 S. C. 720, 80 L. Ed. 1033).
Because of denial of the writ of mandamus and the pendency of an administrative hearing, we do not pass upon the constitutional questions at this time.
Pending the outcome of the statutory hearing before the secretary of State, the status quo is being maintained under an order of this court so that the conduct of Powers’ business is not being interrupted.
Plaintiff’s petition for a writ of mandamus is denied, but without costs, and without prejudice.
North, C. J., and Starr, Wiest, Butzel, Sharpe, Boyles, and Reid, JJ. concurred. | [
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Per Curiam.
Defendant was charged in separate informations with unarmed robbery, MCL 750.530; MSA 28.798, and unlawfully driving away a motor vehicle, MCL 750.413; MSA 28.645. He pled guilty on May 15, 1981, to attempted unarmed robbery, MCL 750.92; MSA 28.287, and unlawfully driving away a motor vehicle. Defendant was sentenced to concurrent terms of three to five years imprisonment and he appeals by leave granted.
Prior to the preliminary examination, defendant was referred to the Forensic Center for an examination of his competency to stand trial. Although a report was submitted on December 16, 1980, the district court did not hold a competency hearing or make a determination of competency. On December 30, 1980, the district court accepted defendant’s waiver of the preliminary examination and bound defendant over for trial. The trial court also failed to hold a competency hearing or make a determination of competency prior to the plea proceeding on May 15, 1981. See MCL 330.2030; MSA 14.800(1030); GCR 1963, 786.
On August 31, 1982, defendant filed a motion to withdraw his plea and an amended motion for a new trial or, in the alternative, for an evidentiary hearing to determine his competency to plead guilty. Defendant was again referred to the Forensic Center for an evaluation of his competency as of May 15, 1981. A report was submitted and a hearing was held on March 28 and April 11, 1983. Following the hearing, the trial court issued a nunc pro tunc order finding that defendant was competent to plead guilty on May 15, 1981. Defendant’s motion to withdraw the pleas and amended motion for a new trial were denied on May 29, 1983.
Failure to hold a timely competency hearing does not ipso facto entitle a defendant to a new trial. A remand for a nunc pro tunc competency hearing may be a proper remedy. Evidence substantiating incompetency-in-fact must establish that there was a violation of rights before a new trial will be ordered. See People v Lucas, 393 Mich 522, 528; 227 NW2d 763 (1975). We find that defendant’s due process rights were not violated by the nunc pro tunc competency order in this case. Having reviewed the record of the evidentiary hearing, we further find that the trial court did not err in determining that defendant was competent to enter the pleas on May 15, 1981. While Dr. Imasa found it impossible to determine whether defendant was competent or incompetent on the date in question, Dr. Clark was able to conclude that defendant was competent on May 15, 1981. Dr. Clark’s conclusion was based on his December 14, 1982, interview with defendant and his review of defendant’s psychiatric records, including the records of treatment during the months immediately preceding the guilty pleas. Dr. Clark found it significant that defendant was able to fully recall and comprehend the plea proceeding, the events leading up to it and his own role in those events. We conclude that the trial court did not err in ruling that defendant was competent at the time the pleas were entered.
Finally, we have reviewed the record and find that defendant has failed to establish his claim of ineffective assistance of counsel. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976).
Affirmed. | [
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Per Curiam.
We wish to thank the attorneys for appellants and appellees who filed excellent briefs and made very good oral arguments. Appellants’ brief has attached a copy of Mastin v Oakland County Elections Comm, 128 Mich App 789; 341 NW2d 797 (1983). Appellees’ brief has attached to it the record of the proceedings before the Honorable Maureen Pulte Reilly as well as her opinion delivered from the bench on September 23, 1983. The briefs also have attached thereto copies of art 2, § 4 and art 2, § 8 of the 1963 Constitution, the right to recall and purity of elections provisions.
The Wayne County Board of Election Commissioners, under color of 1982 PA 456, made determinations that petitions to recall Senator William Faust, Senator John F. Kelly, Senator Patrick H. McCollough, and Representative Justine Barns met the requirements of 1982 PA 456, including the requirment that the "reasons for recall stated in the petition are * * * of sufficient clarity to enable * * * the electors to identify the course of conduct which is the basis for the recall”. MCL 168.952(3); MSA 6.1952(3). Challenges to all four determinations were consolidated before Judge Reilly. After a hearing held on September 23, 1983, Judge Reilly upheld the determinations issued by the Wayne County Board of Election Commissioners, largely relying on Mastin, supra. Appellants appeal as of right from Judge Reilly’s decision.
Appellants sought to appeal the circuit court’s decision directly to the Supreme Court pursuant to GCR 1963, 852, but the Supreme Court denied their application for leave to appeal prior to decision by the Court of Appeals on October 26, 1983.
Appellants first argue that the standard of review of determination by a county board of election commissioners has yet to be decided by this Court. In their second argument, appellants state that none of the four recall petitions "meets the standards of clarity of readability for petition signers”. Appellants suggest that Mastín did not answer either of these questions.
We disagree. We have carefully read Mastin, supra, and find that it not only addresses both of these arguments but that its answers apply to the instant case as well. Relying on the people’s right to recall an elected official contained in Const 1963, art 2, § 8, the Mastín Court emphasized that "recall review by the courts should be very, very limited. * * * [Tjhis Court only reviews the recall petition to determine whether a sufficiently clear statement is present.” Mastin, supra, pp 793-794. The Mastín Court determined that the petition to recall Senator Mastin, which was similar to the petitions at issue in this case, met that standard. The Court also quoted from our opinion in Schmidt v Genesee County Clerk, 127 Mich App 694, 699; 339 NW2d 526 (1983):
"The statutory requirement that a recall petition contain a clear statement of reasons for the recall was carefully analyzed in Molitor v Miller, 102 Mich App 344; 301 NW2d 532 (1980). That Court held that, where the clarity of the reasons stated in the petition is a close question, doubts should be resolved in favor of the proponents of the recall. Molitor, supra, p 351. We agree with the majority in that case that to require an overly detailed statement of charges would complicate the recall process and defeat the underlying purpose of the constitutional provision for recall, i.e., to provide the people with a speedy, effective process to remove an unsatisfactory public official. See Wallace v Tripp, 358 Mich 668, 678; 101 NW2d 312 (I960).”
Appellants acknowledge that the effect of 1982 PA 456, MCL 168.952; MSA 6.1952, is to give the boards of election commissioners the responsibility of reviewing petitions for clarity prior to the gathering of signatures. Appellants argue that since, because of the statute, this review now occurs before instead of after the circulation of petitions, the clarity standard should be higher. Either as an element of this higher standard or in addition to it —it is unclear which — appellants argue that petitions should be subject to a separate test of "readability”. They introduced an expert witness, one M. Sheila Faunce, who testified before defendant board that, on a scale of 0 to 100 where 0 represents the most difficult to understand, the readability scores of two of the petitions were —2. This testimony failed to impress either defendant board or Judge Reilly. Both approved the petitions for clarity. Appellants urge us to declare the recall petitions "void because all four violate the statutory and case law requirement of readability (clarity)”. Since there is no statutory provision or case law requiring "readability”, it is apparent that appellants treat readability and clarity as the same thing, and we do likewise.
We have examined the recall petitions. The petitions seeking the recall of Senator Faust, Senator Kelly, and Representative Barns all begin the same way:
"On March 24, 1983, [s]he voted for HB 4092 which provides for an increase in the state income tax by 1.75 percentage points, giving a maximum rate of 6.35% during 1983 * * *.”
The petition against Senator McCollough reads:
"He voted for passage of Michigan House Bill No. 4092, on March 24, 1983, increasing the Michigan state income tax rate from 4.6% to 6.35% for the year of 1983 * * *.”
Had the sponsors of the recalls stopped there, the petitions would be very clear. However, they added in condensed form the meaning of 1983 PA 15 in order that the signers of the petition might be able to understand the various adjustments to the income tax rate imposed by the statute as finally passed by the House and Senate and signed by the Governor. This very complicated statute amended MCL 206.51, 206.301, 206.351, 206.481, and 206.496; MSA 7.557(151), 7.557(1301), 7.557(1351), 7.557(1481), and 7.557(1496).
Cetainly it is no one’s fault that the bill which became the statute is complicated. However, the condensed version in the recall petitions is much more "readable” or "clearer” than the act itself. We note that defendant board rejected several prior petitions which had simply stated, e.g., "he voted to increase the state income tax”, probably because of this Court’s opinion in Sessa v State Treasurer, 117 Mich App 46; 323 NW2d 586 (1982).
We think Mastin, supra, covers the other points raised by appellants as well, with the exception of their query as to whether even recall petitions containing lies could be distributed if enough people signed them. Because appellants do not claim that there were any lies in the petitions at issue, we refuse to answer that question at this time.
Appellants have asked us not only to declare the recall petitions void, but also to make declaratory rulings on certain other issues they raise. However, this is an appeal as of right from Judge Reilly’s decision in this case, not a case for declaration of rights. We have already stated that both parties filed good briefs and from them we have a thorough history of recalls in Michigan as well as other states. Appellants in their brief talk "good common sense” but not necessarily the law. We refuse to answer their request for declaration of rights because each case for recall depends on the law in that matter.
Based on this Court’s opinion in Mastin, supra, which we approve, we uphold the trial court’s ruling. No costs, a public question being involved.
Affirmed. | [
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Danhof, C.J.
Mark Dukaj appeals as of right from the March 6, 1985, order of the circuit court which affirmed the decision of the hearing referee for the Michigan Department of Social Services denying petitioner’s request for afdc benefits pursuant to the application of the "lump sum rule,” 42 USC 602(a)(17).
In May, 1982, the afdc benefits for petitioner and his family were terminated when petitioner received a workers’ compensation award of approx imately $12,000. By applying the lump sum rule to the award, dss determined that petitioner would be ineligible for benefits until June, 1984.
The proceeds from petitioner’s workers’ compensation settlement were almost immediately paid over to two creditors. The creditors forced petitioner to accompany them to the bank where bank checks were made payable to them. The creditors had loaned petitioner money at various times between 1975 and 1979 for the purchase of furniture and to cover other expenses while petitioner was employed.
Petitioner reapplied for afdc benefits, but his application was denied and he took no appeal from that decision.
In July, 1982, petitioner left the family home, and his wife reapplied for afdc benefits. Her application was denied, but she received approval for medicare and food stamp benefits. A hearing referee upheld the dss’s denial of the application, and no appeal was taken to the circuit court.
In April, 1983, dss adopted a policy which constitutes the center of controversy in this appeal.
In May, 1983, petitioner moved back into the family home, and reapplied for afdc benefits. His application was denied. His appeal from that decision forms the basis of our review.
Under the lump sum rule, 42 USC 602(a)(17), a lump sum received by an afdc recipient is considered as income to the recipient for a period calculated by dividing the lump sum by the state’s monthly need standard. Zarko v Director, Dep’t of Social Services, 144 Mich App 576, 579; 375 NW2d 765 (1985). The rule was enacted by Congress as part of the Omnibus Budget Reconciliation Act of 1981. See, Collingsworth v Director, Dep’t of Social Services, 146 Mich App 186, 191; 379 NW2d 417 (1985). This was an effort to cause the family to budget the lump sum income for family needs during the entire period of ineligibility. Collingsworth, supra, p 192. The purpose of the lump sum rule is to discourage the family from spending the lump sum income as quickly as possible in order to retain afdc eligibility. Collingsworth, supra.
After the lump sum rule was enacted, the Department of Health & Human Services (hhs) promulgated regulations to implement the lump sum rule. In response to comments received to the published interim regulations, the final implementing regulations authorized an exception for life-threatening circumstances in 45 CFR 233.20(a)(3)(ii)(D) (1982), which provides in pertinent part:
A State may shorten the period of ineligibility where it finds that a life-threatening circumstance exists, and the non-recurring income causing the period of ineligibility has been or will be expended in connection with the life-threatening circumstance. Further, until that time the non-recurring income must have been used to meet essential needs and currently the assistance unit must have no other income or resources sufficient to meet the life-threatening circumstance.
Dss adopted a policy to allow an exception to the lump sum rule for a life-threatening circumstances as follows:
The ineligibility period may be shortened only if a life-threatening circumstance exists and the income causing the ineligibility period has been or will be expended in connection with the life-threatening circumstance. Until that time, the income must have been used to meet the group’s needs on assistance standards and currently the group must have no other income or resources sufficient to meet the life-threatening circumstance.
This policy exception to the lump sum rule was to take effect April 1, 1983. Assistance Payments Manual, Item 330, pp 2-3.
The policy defined a life-threatening circumstance this way:
one which poses a danger to the health and safety of the group or of a group member. Examples are: medical needs not covered by medical insurance, or loss of food and shelter because of fire, flood, or similar catastrophes.
When petitioner filed his application for afdc benefits in May of 1983, he sought a recalculation of the period of ineligibility (i.e., May of 1983 until June of 1984) in light of his loss of the workers’ compensation award. In the administrative hearing, petitioner sought to persuade the hearing referee that his loss of the award was a life-threatening circumstance to which the exception applied. In his conclusions of law, the hearing referee found that the press of petitioner’s creditors did not constitute a life-threatening circumstance as defined by the policy. In his view, a life-threatening circumstance had not occurred from the effective date of the policy. He concluded that "the circumstances of repayment of the loans in 1982 are not covered by the April, 1983 change in policy if they could be characterized as coming within the policy exceptions.”
The circuit court’s review of the life-threatening circumstance exception focused upon the verb tense employed in the language of the policy. According to the circuit court, a recalculation of the ineligibility period could occur if (1) a life-threatening circumstance exists, and (2) the lump sum was used to take care of the life-threatening situation. The circuit court found that the second prong of the test was satisfied but not the first prong. Thus, the circuit court concluded that the policy exception would not be available to a family who had sustained a life-threatening circumstance which occurred before the effective date of the policy, i.e., April 1, 1983, during a period of ineligibility. The circuit court affirmed the conclusion of the hearing referee.
We are asked to construe the dss’s policy allowing an exception for a life-threatening circumstance. The narrow question of law presented for our decision is whether a life-threatening circumstance must have occurred contemporaneously with or after the effective date of the dss policy in order for the policy exception to apply.
We agree with petitioner that the exception may apply to a case such as this in which the life-threatening circumstance occurred before the effective date of the policy. However, we choose to give our decision prospective application so that petitioner does not receive the benefit of the exception which we believe would result in a windfall to him if the length of his ineligibility period was recalculated for the time span between May, 1983 (the date of his application for afdc benefits) and July, 1984 (the end of petitioner’s ineligibility period).
We believe that dss has misinterpreted the policy exception by incorporating a requirement that the life-threatening circumstance occur contemporaneously with the effective date of the policy. Such a requirement is not found in the express language of the policy. We note that the policy language is identical to the language of the regulation adopted by the Department of Health and Human Services, 45 CFR 233.20(a)(3)(ii)(D) (1982). We further note that the purpose for the exception is to provide some flexibility in the application of the lump sum rule. Thus, the policy is remedial in nature.
Although the policy language is silent as to the timing of a life-threatening circumstance, we believe that a more logical construction of the policy merely requires that the life-threatening circumstance occur during the period of ineligibility. Our construction is supported by the origins and the purpose of the policy exception. We decline to place an emphasis upon the verb tense of "exists,” unlike the circuit court and the hearing referee.
We find petitioner’s reliance upon Collingsworth v Director, Dep’t of Social Services, supra, and Brancheau v Director, Dep’t of Social Services, 141 Mich App 527; 367 NW2d 357 (1985), misplaced. In neither case did this Court require the application of the life-threatening circumstance exception. Instead, this Court remanded the cases for consideration of whether the exception applied since the exception had not been considered initially and, in Collingsworth, supra, the record was undeveloped. In neither case was the specific issue which is raised here argued or considered.
Since we have decided to give our decision prospective application, we are not required to remand this case for a factual determination of whether a life-threatening circumstance existed during the period of petitioner’s ineligibility.
Reversed. No costs, a public question being involved. | [
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Shepherd, P.J.
On February 3, 1983, defendant was found guilty by a jury in Wayne County Circuit Court of two counts of accepting a bribe as a public official of the City of Ecorse, MCL 750.118; MSA 28.313. Defendant was sentenced on February 28, 1983, to three years probation with the first year to be served in the Detroit House of Correction. Defendant appeals as of right.
Defendant first claims that he could not be convicted under the statute prohibiting bribery of a public official because, in his capacity as Water Commissioner of the City of Ecorse, he was not a public official but, instead, merely an employee.
The statute under which defendant was charged provides:
"Any executive, legislative or judicial officer who shall corruptly accept any gift or gratuity, or any promise to make any gift, or to do any act beneficial to such officer, under an agreement, or with an understanding that his vote, opinion or judgment shall be given in any particular manner, or upon a particular side of any question, cause or proceeding, which is or may be by law brought before him in his official capacity, or that in such capacity, he shall make any particular nomination or appointment, shall forfeit his office, and be forever disqualified to hold any public office, trust or appointment under the constitution or laws of this state, and shall be guilty of a felony, punishable by imprisonment in the state prison not more than ten [10] years, or by fine of not more than five thousand [5,000] dollars.” MCL 750.118; MSA 28.313.
MCL 750.125; MSA 28.320 prohibits agents, employees or servants, other than public officials, from requesting or accepting bribes.
The trial court informed the jury that:
"The people charge that between February of 1980 on to about December 11 of 1981, Mr. Clark, while holding office as water commissioner for the City of Ecorse, did accept money and gratuities from an individual by the name of Robert Stelzer, with an understanding that the acceptance of such money would affect his judgment in purchasing certain supplies.
"They also charge that Mr. Clark, between December 11 of ’81 and April 1st of ’82, while holding the office of water commissioner, did accept money from a Robert Shall with an understanding that that would affect the exercise of his judgment in purchasing certain supplies.”
The question before this Court is whether defendant was proven to be a public official and therefore properly convicted under MCL 750.118, or whether he was merely an employee so that MCL 750.125 would have been the applicable statute.
In order to convict under the statute pertaining to bribery of a public officer, the accused must be found to hold a public office. Five elements are relevant in determining whether the accused’s position may be deemed a public office:
"(1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional.” People v Freedland, 308 Mich 449, 457-458; 14 NW2d 62 (1944), quoting State ex rel Barney v Hawkins, 79 Mont 506; 257 P 411 (1927).
The difference between a public officer and a mere employee is discussed in 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1145, pp 80-81:
"The duties of a public officer must be more than those of a mere agent or servant. A public officer must be endowed with authority to use his own discretion. He is distinguished from an employee in the greater importance, dignity and independence of his position and in being required to take an official oath, and sometimes to give an official bond.”
The Michigan Supreme Court has decided several cases relevant to the instant case. In Freedland, supra., an account examiner of the Michigan State Sales Tax Division was found to have been improperly charged under MCL 750.118 because he was an employee rather than a public officer. There the Court noted that the defendant was an auditing bookkeeper with limited powers. Any powers exercised by him were performed as an employee of the board of administration. His powers did not emanate from any statute or enabling act; rather, they came directly from the board. Because his position "had neither the dignity nor the discretion usually vested in one holding a public office”, he was not properly charged under the statute prohibiting the accepting of bribes by public officers. Freedland, supra, p 458.
Similarly, in People v Leve, 309 Mich 557; 16 NW2d 72 (1944), the defendant director of the bureau of investigation who interviewed and investigated prospective indigent patients hospitalized at county expense was properly charged under the predecessor of MCL 750.125, rather then MCL 750.118. His position was created by the county board of auditors and his duties were to ascertain facts and make recommendations. He performed no duties independently and without the control of the board of auditors, had no power to determine policies or enter contracts. Thus, even though he accepted money to recommend that a patient be sent to a particular facility, because he was not a public officer his conviction under the predecessor of MCL 750.118 was reversed.
The following facts are relevant to the determination of whether defendant here was a public official or merely an employee. The position of water commissioner was created by an ordinance. The ordinance specified that defendant would work under the direction and supervision of the city engineer who had general charge of operating the water department. The city engineer testified that the department had operated autonomously and without the direct supervision of the city engineer. The city engineer, in whom the city charter had invested the power of purchase, had and did exercise the authority to approve the ordering of supplies for the water department for a three- or four-month period in 1981. Defendant, however, testified that the Mayor had instructed that that authority be returned to defendant. There was evidence in the city’s purchasing agent’s testimony from which the jury could have concluded that the purchasing agent, who actually ordered requisitioned materials from suppliers, acted merely as a rubber stamp in approving orders placed by defendant.
It is our opinion that defendant, in his position as water commissioner, was properly considered a public officer. His position and duties were created by ordinance and he was vested with the authority to use his own discretion. He exercised his judgment in ordering supplies for the water department in his official capacity. We are of the opinion that defendant was properly convicted under MCL 750.118; MSA 28.313.
Defendant next claims that there were errors in the jury instructions on the charged offense. Prior to closing arguments, the trial judge notified counsel that he would give the following instruction with regard to the substantive offense:
"With regard to the substantive offense, the court will give the following instruction: The defendant is charged with the crime of acceptance of a bribe by a public officer. The defendant pleads not guilty to this charge. To establish this charge, the prosecution must prove each of the following elements beyond a reasonable doubt. First, that the defendant was an executive officer. Two, second, that he accepted a gift or gratuity. Third, that the gift or gratuity was made under an agreement or with an understanding that the defendant, in his official capacity would exercise his judgment in a particular manner.”
Defendant did not object at that time nor did he object when the instruction was actually given.
Alleged instructional errors will not be reviewed on appeal if there has been no objection at trial unless manifest injustice is shown. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977). The trial judge has a duty to instruct the jury on the elements of the offense. People v Liggett, 378 Mich 706; 148 NW2d 784 (1967).
While the trial judge did not repeat the exact language of the crime as defined in the statute, we believe that the instructions given communicated the essential elements of the crime. The jury was instructed that they must find defendant to have been an executive officer for the city and that the defendant, in his official capacity, had agreed to exercise his judgment in a particular manner. The idea that the "question, cause or proceeding” which was the subject of the bribe was one that "may be by law brought before him in his official capacity” was communicated in the third element of the instructions given. Defendant neither requested an instruction on the offense nor objected to the charge as given. It is our opinion that no reversible error was committed in the trial court’s instructions to the jury.
Defendant argues that the court erred in denying his motion for a directed verdict of acquittal. This motion was based upon defendant’s argument that the prosecution did not establish that there was any authority on defendant’s part to make purchases. Since we have directed our attention to this argument already, we need only say that the position of the defendant on this issue lacks merit.
Defendant further argues that in closing argument the prosecutor expressed her personal opinion on the credibility of witnesses, adverted to facts as of her own personal knowledge which were not part of the record, misrepresented the facts and the law to the jury, and shifted the burden of proof onto the defendant. Defendant argues that he was prejudiced by the prosecutor’s several breaches of the rules of prosecutorial pro priety and that therefore defendant’s failure to object at trial to such conduct should not bar appellate review. We have carefully reviewed the record and find that there was no such prosecutorial misconduct.
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Boyle, J.
In August, 1984, appellant Robin Rick Manning and William John Luna were charged with first-degree murder, carrying a weapon with unlawful intent, and possession of a firearm during the commission of a felony in connection with the fatal shooting of Thomas Newvine. Newvine’s death stemmed from an argument between himself and Gilbert Morales at a neighborhood house party. During the course of the argument, New-vine forcefully ejected Morales from the party, at which time Morales threatened to return later and kill Newvine. After Morales was ejected from the party, he called William Luna’s house seeking backup in the fight he intended to continue with Newvine.
Subsequently, the defendant and Luna drove to Morales’ home, at which time Morales, armed with two guns, a long-barreled and a shorter-barreled weapon, joined them. When the trio arrived at the party, Newvine was standing in the street immediately outside the home in which the party was being held. Shots were fired from the car and Newvine was killed.
Defendant and William Luna were tried jointly for Newvine’s murder.
On the fifth day of trial, William Luna, on the basis of a plea bargain, pleaded guilty of second-degree murder. The defendant rejected a similar bargain against the advice of counsel.
Outside the jury’s presence, Manning’s counsel then asserted that a new trial was necessary in order to prevent the jury from drawing from Luna’s plea an impermissible inference of Manning’s guilt. Defense counsel did not object to the trial court’s instruction advising the jury that Luna had pleaded guilty or limiting the substantive use of Luna’s plea, but alternatively requested that the trial court inform the jury only that Luna pleaded guilty without specifying the charge to which the plea had been entered. No request was made to limit the prosecution’s use of the plea, and no objection was interposed when the prosecution questioned Manning on direct examination regarding the plea.
The trial court denied the motion for a mistrial and informed the jury that Luna pleaded guilty to second-degree murder, cautioning the jury that it was not to draw any inference from Luna’s guilty plea and that Manning remained entitled to the presumption of innocence. The instruction was given again prior to deliberation.
Luna testified that Mr. Manning answered the call from Morales asking for backup and that he and Manning drove to Morales’ house where Morales brought the guns into the car and said he was going to "blow [the victim] away.” He further testified that Manning drove to the party, got out of the car, and took the .22 from the back seat where Morales had placed it. Manning then entered the front passenger side of the car, passed the .22 to Morales, took the shotgun from him, and, with Luna driving, the three continued to look for Newvine. While Luna testified that Manning did not fire the gun he had, other testimony established that guns were fired both from the front passenger and rear windows. Thus, although Luna testified that Morales fired the fatal shots, his testimony inculpated defendant Manning as an aider and abettor of first-degree murder.
Luna was briefly questioned on direct examina tion about his plea. On cross-examination, a pointed attack on Luna’s credibility was made by defense counsel; following that attack, the prose cution on redirect examination made further reference to the plea in an effort to bolster Luna’s testimony.
The jury found Manning guilty of first-degree murder, carrying a weapon with unlawful intent, and felony-firearm.
After the Court of Appeals affirmed his conviction in an unpublished per curiam opinion, Manning sought leave to appeal in this Court. Leave was granted on two issues: 1) whether the trial court erred by denying the defendant’s motion for a mistrial, and 2) whether the trial court erred in denying the defendant’s request to keep from the jury the details of the codefendant’s guilty plea. For the reasons that follow, we affirm the defendant’s conviction.
i
THE MOTION FOR MISTRIAL
The likelihood that Mr. Manning would be acquitted, or convicted of a lesser offense, was greatly diminished when Mr. Luna pleaded guilty and testified against him. However, the grant or denial of a motion for mistrial rests in the trial court’s sound discretion, and an abuse will be found only where denial of the motion deprived the defendant of a fair and impartial trial. People v Watson, 307 Mich 596; 12 NW2d 476 (1943). Simply put, Mr. Luna’s plea was an unfortunate turn of events for the defendant, but it did not constitute unfair prejudice. Luna’s testimony was competent, relevant and undeniably admissible, and the trial court’s unobjected to cautionary instruction on defendant’s right to be tried solely on the evidence of his own guilt appropriately addressed the potential prejudice inherent in the inculpatory nature of accomplice testimony.
That Luna’s testimony was highly inculpatory is a proposition no reasonable person would dispute. However, were we to hold that the possibility of guilt by association could not be mitigated by a cautionary instruction, as the dissent suggests, it would logically follow that the only alternative would be to exclude accomplice testimony altogether. In this situation we rely on the "almost invariable assumption of the law that jurors follow their instructions . . . .” Richardson v Marsh, 481 US 200, 206; 107 S Ct 1702; 95 L Ed 2d 176 (1987).
We do not suggest that a trial court might not appropriately take the more drastic step of declaring a mistrial where it concludes that even the strongest curative instruction would be insufficient protection for a defendant. United States v Baete, 414 F2d 782 (CA 5, 1969).
We merely hold that on this record, where there is no indication and no claim that the defendants attempted to exculpate themselves while destroying each other or that the prosecution timed the negotiations to achieve that result, the trial court’s action did not deprive the defendant of a fair trial.
ii
THE COURT’S INSTRUCTION REGARDING THE PLEA
Having determined that William Luna’s mid-trial plea did not compel the declaration of a mistrial, the trial court was squarely faced with the issue regarding what to tell the jury about the absence of the codefendant from the defense table. The defense did not object to the jury being told that Luna had pleaded guilty. Rather, counsel asked only that the jury not be told that Luna’s plea was to the second-degree murder charge because "it could have some influence on their deliberations because of the magnitude of the charge.” Thus, defense counsel did not indicate any intent to forgo reference to the witness’ plea but, rather, sought to avoid an inference favorable to credibility from the magnitude of the charge. "[S]uch a limitation on the details of the plea agreements would have been both unfair to the witnesses and misleading to the jury.” United States v Whitehead, 619 F2d 523, 529 (CA 4, 1980).
Suppression of Luna’s plea of guilty of second-degree murder could have confused and misled the jury. A strategic attempt to prevent the jury’s knowledge of the charge to which Luna pleaded could logically only rest on the possibility that the defendant could benefit if the jury incorrectly speculated that Luna had somehow wriggled out of accepting criminal responsibility for the events to which he testified and had pleaded guilty of some other lesser or entirely different offense. Indeed, the dissent’s identification of the "prejudice” to defendant Manning, on close examination, confirms that inviting such speculation is both the purpose and the function of the request to suppress. Obviously, it was not Luna’s plea, but his testimony admitting that he aided and abetted the murder that prejudiced Mr. Manning, albeit not in an unlawful sense. Since it was Luna’s testimony that incriminated Manning, it cannot logically be concluded that it was the details of the plea that "foreclosed the jury’s ability logically to come to any different conclusion regarding Manning,” post, pp 39-40. Stated otherwise, it is obvious that suppressing the charge to which he pleaded would not eliminate the risk of guilt by association inherent in Luna’s testimony but, rather, would only have the effect of preventing the jury from drawing any rehabilitating inference of Luna’s credibility from the fact that he had formally accepted criminal responsibility for his actions, a fact defense counsel alluded to in his reference to "the magnitude of the charge.”
In sum, where it is apparent that a testifying accomplice will be impeached by his dealings with the government, we can perceive no unlawful prejudice to the defendant in the trial court’s telling the jury what has occurred, provided the jury is properly cautioned regarding the limited use of the plea. United States v Earley, 482 F2d 53 (CA 10, 1973), cert den 414 US 1111 (1973); United States v Beasley, 519 F2d 233, 239 (CA 5, 1975); United States v Jones, 425 F2d 1048, 1054 (CA 9, 1970).
When a codefendant pleads guilty and is prepared to testify, a complete instruction avoids jury speculation, limits prejudice, and sets the stage for the issue the jury will almost invariably be asked to resolve, that is, the credibility of the accomplice’s testimony.
Where it is clear, as it was both from the colloquy with defense counsel and counsel’s lack of objection to the prosecutor’s elicitation of the plea, that counsel did not intend to forgo use of the plea itself, and a cautionary instruction is given, we can perceive no error in the revelation of the offense pleaded to by a testifying codefendant. As Judge Higginbotham has observed, "[a] trial judge who is cognizant of the risks is not required to ignore his experience in trying such cases and engage in a pretended ignorance that defendant’s line of attack is yet unknown. Nor are we.” United States v Fusco, 748 F2d 996, 999 (CA 5, 1985).
Ill
THE PROSECUTION’S ELICITATION OF THE PLEA ON DIRECT EXAMINATION
We are persuaded that the unresolved question of the intersection between the holdings in People v Atkins, 397 Mich 163; 243 NW2d 292 (1976), People v Woods, 416 Mich 581; 331 NW2d 707 (1982), and People v Lytal, 415 Mich 603; 329 NW2d 738 (1982), should be addressed for the benefit of the bench and bar. The two lines of cases represent distinct situations involving convictions of accomplice witnesses. The purpose of Atkins/Woods is preventative: to insure that conviction is not based on the prosecution’s knowing use of false material evidence. The rule that allows the factfinder to consider evidence of a guilty plea agreement is permissive and is based on the premise that the jury is ordinarily entitled to know of facts relevant to bias and motive for testimony. Because recent holdings may have furthered confusion regarding issues such as whether the prosecution’s duty to disclose is conditioned upon a request from defense counsel, or whether a plea can be revealed "when it is the plea itself which is the consideration,” People v Rosengren, 159 Mich App 492, 502; 407 NW2d 391 (1987), People v Standifer, 425 Mich 543; 390 NW2d 632 (1986), an explanation of the etiology of both lines of authority is in order.
The Atkins/Woods disclosure requirement was squarely based on Napue v Illinois, 360 US 264; 79 S Ct 1173; 3 L Ed 2d 1217 (1959), and Giglio v United States, 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972), Atkins, supra, p 174, ns 11, 12, and Woods, supra, p 601. These cases stand for the proposition that the defendant’s right to due process is violated by a conviction based on false testimony that a witness was not promised consideration for his testimony, a fact, the Court added in Woods, that should be introduced in evidence. While it may well be that where the record establishes that defense counsel knew of the agreement and did not bring it out, a claim of error would be viewed as defense strategy on appeal, cf. Atkins, supra, pp 171-172 and Woods, supra, p 603, the prosecutor’s constitutional duty to disclose material evidence to defense counsel is not conditional on the defendant’s request. United States v Agurs, 427 US 97; 96 S Ct 2392; 49 L Ed 2d 342 (1976).
To illustrate the distinction between the holdings, we assume a situation in which there is no attack on the accomplice witness. In such a situation, we do not believe Woods is the source of an affirmative right in the prosecution. In short, we do not regard the Atkins/Woods rule as giving the prosecutor a right to override a strategic decision by defense counsel to forgo attack on an accomplice and to authorize the prosecution to disclose such consideration to the jury irrespective of a request. In contrast, in the typical case the accomplice’s credibility is put in issue and consideration bears on that issue. In such a case, we would hold that the fact and terms of the plea agreement may be revealed to the jury during direct examination, and the timing of the revelation is within the trial court’s discretion.
The origin of Lytal is the longstanding principle that a defendant is entitled to have the question of his guilt determined solely on the evidence against him. People v Crawl, 401 Mich 1, 33; 257 NW2d 86 (1977) (Levin, J.). As Justice Levin recognized in Crawl, a prosecutor is entitled on redirect examination to attempt to rebut the implication that an accomplice is testifying "in the hope of obtaining leniency . . . with evidence showing the nature of the concessions made to him.” Id., p 34.
The well-established rule that a plea of a co-defendant or an accomplice is not evidence of a defendant’s guilt is only the starting point for discussion. It is equally well recognized that it is the purpose for which evidence is admitted that governs its proper use. Thus, while a host of cases hold that substantive use of the guilty plea of a codefendant is error, see, e.g., United States v Solomon, 795 F2d 747 (CA 9, 1987); United States v Baez, 703 F2d 453 (CA 10, 1983); United States v Duff, 707 F2d 1315 (CA 8, 1983), the guilty plea of an accomplice is admissible for impeachment or rehabilitation, where its use is appropriately limited. So much was recognized in Crawl and is otherwise well established. See United States v Rothman, 463 F2d 488 (CA 2, 1972); United States v Baete, supra, p 782; United States v Romeros, 600 F2d 1104 (CA 5, 1979); Baker v United States, 393 F2d 604 (CA 9, 1968).
Lytal addressed a situation in which the prosecutor on direct examination elicited the fact of the plea agreement, including the charge to which the accomplices pleaded. Although not mentioned in the text of the opinion, a complete analysis of the admissibility on direct examination of a plea of guilty that is the "consideration,” id., p 612, also requires consideration of the effect of MRE 607(2) (A). The rule is entitled "Who May Impeach” and in relevant part provides:
The credibility of a witness may be attacked by
(2) the calling party if
(A) the calling party is the prosecutor and he is obliged to call the witness.
By contrast, FRE 607 provides:
The credibility of a witness may be attacked by any party, including the party calling the witness.
Thus, the federal rules reject the common-law rule that a party vouches for the credibility of the witnesses it calls, while MRE 607(2)(A) retains the rule for witnesses the prosecution is not "obliged to call.”
Professors Weinstein and Berger observe that the only surprising aspect of the abandonment in the federal rules of the voucher rule is "that it has taken so long to be effected.” 3 Weinstein & Berger, Evidence, § 607[01], p 607-15. The common-law rule is based on an assumption that a party exercises free choice in soliciting witnesses and therefore guarantees the trustworthiness of a witness called by him. In fact, as the United States Supreme Court noted in Chambers v Mississippi, 410 US 284, 296; 93 S Ct 1038; 35 L Ed 2d 297 (1973):
Whatever validity the "voucher” rule may have once enjoyed, and apart from whatever usefulness it retains today in the civil trial process, it bears little present relationship to the realities of the criminal process. It might have been logical for the early common law to require a party to vouch for the credibility of witnesses he brought before the jury to affirm his veracity. Having selected them especially for that purpose, the party might reasonably be expected to stand firmly behind their testimony. But in modern criminal trials, defen dants are rarely able to select their witnesses: they must take them where they find them.
The common-law rule also undermines the law’s truth-seeking function, a principle endorsed by this Court in Rule 401 of the Michigan Rules of Evidence. As Weinstein and Berger further observe, the result of such a rule is to leave the calling party and the factfinder at the mercy of the adversary. If the truth lies on the side of the calling party and the witness tells the truth, he can be attacked by the adversary; if he tells a lie, he will not be attacked, and the calling party under the rule cannot attack unless it can show hostility and surprise. People v White, 401 Mich 482, 508-509; 257 NW2d 912 (1977).
We are unable to reconstruct the reason for retention of the common-law voucher rule in MRE 607(2)(A). The Court’s rejection of the federal approach to prior inconsistent statements, compare FRE 801 and MRE 801, may evidence that a primary concern was the moré troublesome problem of the potential for admission of unreliable evidence in the guise of impeaching one’s own witness. See Weinstein & Berger, supra, pp 607-16 and 607-18. This was the issue that divided this Court as long ago as its decision in People v Elco, 131 Mich 519; 91 NW 755 (1902), where on rehearing, p 523, the Court held that the prosecution could impeach witnesses it was obliged by law to call. While the precise holding was limited to hostile "res gestae” witnesses, p 528, the Court’s discussion in Elco presaged by fifty years the United States Supreme Court’s observations concerning the voucher rule. The Court in Elco stated:_
Whatever force [the voucher rule] may have in civil cases, it has no force in criminal ones, under the decisions of this court. In numerous decisions this court has held that the prosecuting attorney is bound to produce before the jury facts which tend to prove, not only guilt, but those which tend to prove innocence. . . . [M]any of the witnesses in criminal cases do not come from the ranks of those entitled to the presumption of truth-tellers. They are often the accomplices of criminals and participants in crime, who have confessed and promised to testify to escape punishment. . . . Witnesses are not manufactured by the prosecution to order. It must take them as it finds them. [Id., pp 525-526.]
We need not consider an amendment of MRE 607 to resolve the tension between this Court’s preference for the admission of all relevant evidence, MRE 401, that is not more prejudicial than probative, MRE 403, and the anachronistic consequences of applying the voucher rule to bar revealing during direct examination the fact and terms of a plea concession given to an accomplice.
In the typical case the argument regarding admissibility of a plea agreement is one of timing, that is, whether the prosecutor may draw the sting from the defendant’s anticipated cross-examination by eliciting the agreement on direct examination or whether the defendant has a right to draw first blood. Lytal converted the rule that a codefendant’s plea of guilty cannot be used as substantive evidence of another’s guilt into a rule requiring reversal on the basis of an anticipatory rehabilitation of an accomplice impeached by a prosecution concession. Such arguments exalt strategy over substance. In the typical case, the existence of an agreement is "a double-edged sword,” and prejudice is rarely, if ever, to be found on review because the record reveals that each side has attempted to have its side cut more deeply. United States v Arroyo-Angulo, 580 F2d 1137, 1146 (CA 2, 1978), and People v Benton, 402 Mich 47; 260 NW2d 77 (1977).
Although one option may be for the judge to call the witness for the purpose of placing the terms of the agreement in evidence, which is an exception to the voucher rule that the federal system had developed to cushion the effect of the nonimpeachment rule years before FRE 607 eliminated the voucher rule, United States v Browne, 313 F2d 197, 199 (CA 2, 1963); anno: Court’s witnesses (other than expert) in criminal prosecution, 67 ALR2d 538, we would not create a hard-and-fast rule that this is the only acceptable practice. Such an approach might only seed new ground for disputes regarding perceived strategic advantages at trial and claims of error on appeal.
We would hold, therefore, that the trial court’s authority to control the order of proofs, MRE 611, and the completeness rule set forth in MRE 106, vest the trial court with appropriate discretion to determine when the fact and terms of an accomplice’s plea agreement may be admitted. As with other preliminary matters, the trial court should assure itself that a witness’ credibility will be put in question. Where it has done so, the court may either permit the prosecution to anticipate cross-examination by eliciting the terms of the agree ment on direct examination or direct that the terms and conditions of the agreement may be brought out first by defense counsel. The first approach is justified on the theory that in the case of a plea agreement, the prosecutor’s failure to allude to the facts may confuse or mislead the jury. As Judge Posner described it:
A party ought to be able to extract the complete testimony of his witness, including the essential circumstances bearing on its believability, rather than forced to leave gaping holes to be poked at by his opponent. This is particularly true in the matter of a plea or immunity agreement, since the jury is bound to wonder from the outset why someone should be testifying to all these things that damn him along with the defendant, and having wondered may be shocked or puzzled to discover the reason for the first time on cross-examination. ... It is on this theory that defense counsel, in beginning their examination of a defendant, will often ask him about his criminal record, knowing that if they do not ask, the prosecutor will do so on cross-examination. [United States v LeFevour, 798 F2d 977, 983-984 (CA 7, 1986).]
The second approach is justified both because in a given case a prediction (that the witness will be attacked) "may be inaccurate” and anticipated impeachment "has a tendency to become [a] self-fulfilling prophecy,” United States v Fusco, supra, pp 998-999 (opinion of Higginbotham, J.), and because of the trial judge’s superior position in evaluating the shifting existential realities of the trial process. As Professors Weinstein and Berger state in the preface of their work, there is
the need for flexibility and discretion in the court’s conduct of particular cases and particularly in its application of the rules of evidence. . . . [T]he subtle interplay of a wide variety of factors . . . make a trial of any length take on a personality as strongly differentiated from other trials as one human being is from another. . . . These litigation psychodynamics, but dimly if at all perceived from the record, are nevertheless critical in trial supervision. In dealing with them, the oral tradition of the bar and a sense for what is proper, often furnish the best guides. [1 Weinstein & Berger, Evidence, p iv.]
In sum, we would modify the voucher rule in favor of the trial court’s discretionary authority to permit or to limit the elicitation of matters concerning a witness’ credibility on direct examination. When the purpose of reference to a plea agreement is to further the task of evaluating credibility, the agreement is relevant and admissible without reference to the identity of the offering party. United States v Halbert, 640 F2d 1000 (CA 9, 1981). The record establishes the defendant’s intention not to forgo use of the guilty plea, his affirmative employment of it, and a cautionary instruction regarding the limited use of the evidence. We would hold that the fact that the agreement was revealed during direct examination of the accomplice does not constitute prejudicial error.
CONCLUSION
The trial court did not abuse its discretion in denying the motion for mistrial and, in view of the cautionary instruction, did not err in revealing the fact of the plea and the offense to which the plea had been given. Where it is clear that the credibility of a witness/accomplice’s testimony will be put in question, the order in which facts regarding bias are elicited is within the discretion of the trial judge.
The decision of the Court of Appeals is affirmed.
Riley, C.J., and Griffin, J., concurred with Boyle, J.
Gilbert Morales was charged separately and convicted of first-degree murder and possession of a firearm during commission of a felony.
Lima was charged with first-degree murder, felony-firearm and carrying a dangerous weapon with unlawful intent. In exchange for his plea of second-degree murder, and his testimony, the prosecutor dismissed the remaining charges.
Following the trial court’s instruction, the prosecution called William Luna as a witness. On direct examination, the prosecution questioned Luna about his plea:
Q. [Prosecutor]: Mr. Luna, you were a Defendant in this particular trial before today, were you not?
A. [Mr. Luna]: Yes.
Q. And earlier this morning, you pled guilty to second degree murder?
A. Yes.
On redirect examination, the prosecution made further reference to the plea in an effort to bolster the credibility of the codefendant. However, this was only after a pointed attack on Luna’s credibility by the defense:
Q. [Defense Counsel]: In response to one of the Prosecuting Attorney’s questions, you stated or at least agreed with her statement that when you talked to the police, you were trying to, in effect, save your neck. Would that be an accurate statement?
A. Yes.
Q. Were you still trying to save your neck when you entered into a plea bargain agreement?
A. Say that, you know.
Q. Were you still trying to save your neck when you entered into the plea bargain agreement today?
A. Well, all I just want to do is tell the truth like it was because. . .
Q. Why did you suddenly want to tell the truth after you lied so much?
A. Because, you know, that’s the way I feel about it, you know.
Q. What happened that suddenly changed your mind that you feel this way?
A. I just didn’t want to take it to trial because, you know, I’m guilty — we’re guilty, you know.
Q. Mr. Luna, isn’t the truth of the matter that you didn’t want to take it to trial because you didn’t want to risk being found guilty by the jury?
A. No, not that. It’s just like I said. I wanted to plead guilty because I am guilty.
Q. You wanted to take the sure thing, didn’t you?
A. What’s that?
Q. You wanted to take the plea bargain and take the sure thing, didn’t you?
Mrs. McLeod: Objection, Your Honor. I think that counsel and I should approach the bench at this point.
(Whereupon a discussion was held off the record.)
Q. I’m not certain that you answered the last question, Mr. Luna. My question to you was: Didn’t you want to take the plea bargain because you knew what was going to happen?
A. No. I took it because, you know, it’s the way it is.
The dissent fails to articulate the standard by which it determines that the instruction given in this case presents a situation distinct from the myriad of instances where jurors are asked to give effect to evidence for one purpose and not for others. The dissent places heavy reliance on Bruton v United States, 391 US 123, 135-136; 88 S Ct 1620; 20 L Ed 2d 476 (1968), where it was held that the admission of a nontestifying codefendant’s "powerfully incriminating’’ statements in violation of the defendant’s confrontation right could not be cured by a limiting instruction. Not only were the improperly admitted statements of the nontestifying codefendant "devastating,” they were incapable of testing through cross-examination.
The United States Supreme Court has cautioned that Bruton creates only a "narrow exception” to the rule that juries are presumed to follow instructions unless there is an "overwhelming probability” that the jury cannot follow the instruction and the result would be devastating to the defendant’s case. Richardson, supra, p 208. The dissent simply has not explained why the jury in this case should be presumed to have disregarded the instruction that the defendant was to be tried solely on the evidence of his own guilt, without reference to Luna’s plea of guilty of second-degree murder.
If the issue in this case was whether the defendant was entitled to have the jury learn all the terms of the plea agreement, Justice Levin’s observation that the jury was left to speculate on the extent of the consideration would be relevant. It is not. Defendant’s claim is not that error occurred because of the jury’s lack of knowledge; it is that his conviction should be reversed because truthful facts were revealed to the jury. Further, since Luna received the very concession he was promised, a concession which the defendant apparently did not want presented to this jury, presumably for the same reasons he did not want the jury to know the offense to which Luna pled, we are unable to understand how it could be argued that the defendant should have been granted a mistrial so that he would have the opportunity to show this concession at a second trial.
The dissent incorrectly assumes that this opinion would preclude introduction of an accomplice/witness’ guilty plea "where a defendant chooses not to impeach the credibility of that witness on the basis of that plea.” Post, p 36, n 9, p 44. This case does not present that situation. The answer to that question must await a case in which a defendant claims that the plea was not relevant to the credibility issue and the prosecution claims it was. To be sure, it is the defendant’s prerogative to decide whether he will pursue impeachment, but it is the trial judge’s prerogative to initially determine what facts are relevant to the line of impeachment pursued. Hence, our basic disagreement here is with the dissent’s conclusion that counsel may choose to pursue a line of relevant impeachment but prevent exploration of facts undeniably relevant to that issue.
Quaere: Would defense counsel’s waiver of the jury’s knowledge of such facts constitute ineffective assistance of counsel?
Where defense counsel eschews impeachment of the accomplice and the purpose of disclosure is solely to protect the defendant’s right not to be convicted on false testimony, the canons suggest that the prosecutor’s duty to disclose may be satisfied by bringing the agreement to the attention of counsel and the court. ABA Model Rule of Professional Conduct, Rule 3.8(d); Michigan Rules of Professional Conduct, Rule 3.8(d).
A plea concession given to a counseled defendant, which is typically of record, does not present the same concerns.
Chambers v Mississippi, supra, p 296.
The current statute, 1986 PA 46, MCL 767.40a; MSA 28.980(1) provides:
(6) Any party may within the discretion of the court impeach or cross-examine any witnesses as though the witness had been called by another party.
If the defendant makes a timely objection to elicitation of the plea agreement, the inevitability of impeachment may become apparent. It would then fall to the defendant to disclaim any intent to impeach and on the trial judge to either sustain the objection or permit the questioning.
The United States Courts of Appeals for the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits permit elicitation of the agreement on direct examination to assess credibility. United States v Winter, 663 F2d 1120 (CA 1, 1981); United States v Freeman, 302 F2d 347 (CA 2, 1962); United States v Henderson, 717 F2d 135 (CA 4, 1983); United States v Veltre, 591 F2d 347 (CA 5, 1979); United States v Townsend, 796 F2d 158 (CA 6, 1986); United States v Hedman, 630 F2d 1184 (CA 7, 1980); United States v Roberts, 618 F2d 530 (CA 9, 1980). The court observes in Halbert, p 1005, that the plea agreement may be misused "on the level of prejudicial error” in certain circumstances such as where the plea is clearly offered as substantive evidence of guilt. | [
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Per Curiam.
On December 7, 1978, Michigan Bell Telephone Company (hereinafter Bell) filed with the Michigan Public Service Commission (hereinafter MPSC) an application for a rate increase, seeking additional revenues of $142 million. Included in the application was a request for partial and immediate relief in an amount of approximately $48 million, to cover higher labor costs allegedly already effective in 1978 and those to become effective in 1979.
Starting on March 5, 1979, Bell presented its direct case, continuing for 32 hearing days and completing the same on April 18, 1979. On that date, April 18, 1979, Bell filed a written motion for partial and immediate relief in the amount of $48 million annually, being a renewal of its original application for that partial and immediate relief.
On April 27, 1979, the MPSC staff filed its statutory report, after which plaintiff-appellant, Attorney General, offered the sworn testimony and financial exhibits of two of its witnesses. Responding to Bell’s objection, the hearing officer ruled that he would not receive for filing the testimony and exhibits of the Attorney General, nor would he permit the witnesses to testify at that time.
On June 5, 1979, the MPSC issued an order granting partial and immediate relief in the amount of approximately $41,230,000 annually. In this order, the MPSC affirmed the exclusionary ruling regarding the offering of proof by plaintiff-appellant, Attorney General. On July 5, 1979, the Attorney General filed a complaint for statutory judicial review of the commission’s partial and immediate rate order of June 5, 1979, including a motion for temporary injunction, which was argued on August 13, 1979, and was denied in an oral opinion from the bench on that day.
Subsequently, on October 31, 1979, an order incorporating the ruling was filed. On February 13, 1980, the Ingham County Circuit Court, ruling on a motion for rehearing filed by the Attorney General, required the filing of a refund bond. On May 4, 1982, Judge Hotchkiss, of the Ingham County Circuit Court, filed an opinion and entered an order affirming the June 5, 1979, order of the MPSC. That latter order of the Ingham County Circuit Court is now before this Court on appeal.
Subsequent to the MPSC order of June 5, 1979, further hearing was held at which evidence was produced and which hearing was closed on July 13, 1979. On April 1, 1980, the MPSC issued its final rate order in this case, granting a rate increase in the amount of approximately $87.2 million, which includes the amount previously granted as partial and immediate relief.
On appeal, plaintiff-appellant Attorney General raises two issues. First, he claims that the MPSC acted unlawfully in granting the partial and immediate rate relief provided in the June 5, 1979, order, for the reason that customers and their representatives were not permitted to offer evidence in opposition to the rate increase. Secondly, he says that, since the order was unlawful, Bell must refund the monies collected pursuant to it.
On December 23, 1982, the Supreme Court decided Great Lakes Steel Division of National Steel Corp v Public Service Comm, involving issues largely similar to those present in this case. In January, 1983, Michigan Bell filed a motion to affirm, based upon Great Lakes Steel, which motion has not been decided.
The key part of the statute upon which the MPSC order was based provides that:
"* * * the commission, pending the submission of all proofs by any interested parties, may in its discretion and upon written motion by such utility make a finding and enter an order granting partial and immediate relief’. MCL 460.6a(l); MSA 22.13(6a)(l).
In Great Lakes Steel, supra, as here, attack is made upon the "partial and immediate” rate increase granted by the MPSC. In Great Lakes Steel, the Court said:
"[W]e confine our holding to the determination that the partial and immediate rate order is not a 'final order’ within the meaning of § 85 of the APA and Const 1963, art 6, § 28, and thus need not comply with their requirements.”
We do not find that the factual situation in Great Lakes Steel distinguishes it from the factual situation in the within case. Since the reasons for the attack on the partial and immediate rate increase in the within case are substantially similar to those asserted in Great Lakes Steel, we find that the decision in Great Lakes Steel controls the within case and conclude that the appeal is without merit.
The effect of our decision is to hold that the refusal by the MPSC to permit the Attorney General to present his case before ruling on the petition for partial and immediate rate was not in error. In view of our holding, it is unnecessary for us to decide whether or not this appeal taken by plaintiff-appellant Attorney General is moot. However, we do note that full hearing has now been had and an order entered permitting a rate increase which includes and is larger than the interim rate increase which is the subject matter of this appeal. Also, we note that this final disposition of the rate increase request by the MPSC has not been appealed. Therefore, while unnecessary to decision here, these facts suggest mootness.
Since we find the order for partial and immediate relief lawful, no comment is required regarding the second issue involving refund of monies collected under that order.
Affirmed.
416 Mich 166; 330 NW2d 380 (1982).
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Per Curiam.
Defendant was convicted following his plea of guilty of assault with intent to murder, MCL 750.83; MSA 28.278. In exchange for his guilty plea, another charge of assault with intent to murder and a charge of criminal sexual conduct in the first degree, MCL 750.520b; MSA 28.788(2), were dismissed. Following a sentence of 12-1/2 to 25 years, defendant appeals as of right. Defendant contends that his plea was coerced because a new attorney was appointed six days before trial and the trial court refused to adjourn the trial. He further maintains that the trial court improperly influenced the plea bargaining in stating that it would consider granting a more lenient sentence to someone who pled guilty and gave up his right to trial. We disagree.
Defense counsel indicated that he was prepared to go to trial. There is no contrary indication on the record. In accordance with the voluntary plea provision of GCR 1963, 785.7(2), the trial court inquired if there was a plea agreement. A plea agreement with defense counsel, the defendant and the prosecutor was confirmed. No promises other than as stated on the record were made. Defendant was not threatened by anyone. Defendant pled guilty of his own choice. The trial court found on the record that the plea was voluntary. Defendant’s claim of coercion should not be accorded greater weight than his statement at the time of the plea. Cf., People v Gant, 4 Mich App 671, 675; 145 NW2d 381 (1966), lv den 378 Mich 748 (1967).
We find the second part of defendant’s argument, contending that the trial court influenced the plea bargaining process, to be without merit.
The trial court’s precise words were:
The Court: And I must say that I have not agreed upon the possibility of a plea or the possible sentence with the prosecutor, defense counsel, or defendant or anyone else, except in a brief conversation with Mr. Sherwin, after he found out the prosecutor would not offer any sentence-concession plea bargain, Mr. Sherwin asked whether I would engage in discussion of the possible sentence and I told him that I would not, and I never do, that I follow the ABA Standards, including, however, Standard 1.8, and that it seems to me in a case such as this, the plea of guilty is a factor that should be weighed with all other factors in deciding what the sentence should be. It is a factor that saves the community considerable time and money and allows me to go ahead with another case today, and I have got a busy docket.
"It also does not require the testimony of that young boy and his mother, who would, I am sure, find the experience something that they would like to avoid if possible, but that does not mean that if after I read the presentence investigation and know a good deal more about the case and about you, that I might not enter a sentence of life imprisonment, or a very stiff minimum and maximum term.
"Do you understand that, Mr. Roy?
"The Defendant: Yes, your Honor.”
A fair reading of the trial judge’s remarks does not support the defendant’s contention of coercion. The judge stated he had not agreed on the possibility of a plea or possible sentence and would not discuss a possible sentence. He indicated that the plea of guilty was a factor that should be weighed with all other factors in deciding the sentence. He indicated that after reading the presentence investigation report and having a good deal more knowledge about the case, the sentence might be life imprisonment, or a very stiff minimum and maximum term. Upon being asked by the judge, the defendant stated that he understood the judge’s remarks.
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Per Curiam.
This appeal and cross-appeal involve the extent of an easement appurtenant which was granted by plaintiff Lakeside Associates’ predecessors-in-interest (the Mulvaneys) to "Toski Sands, a co-partnership consisting of Thomas D. Bradley and George E. Gerrie” and the trial court’s determination that Lakeside Associates’ "improvements” to the easement (a 500-foot by 66-foot roadway) did not unreasonably infringe on Toski Sands’ use of the easement.
In 1967, George E. Gerrie and Thomas D. Bradley formed a copartnership called Toski Sands and, using partnership money, bought two adjoining parcels of land with a combined length of 500 feet, designated at trial as lots C and D. The deeds were titled in the names of George E. and Carrie L. Gerrie, husband and wife, and Thomas D. and Betty J. Bradley, husband and wife. The deeds were recorded. In 1969, for various business reasons, parcel C was quitclaim deeded by George E. and Carrie L. Gerrie and Thomas D. and Betty J. Bradley to Toski Sands, a copartnership. This deed was also recorded. Parcel C had a length of 200 feet.
Lots C and D bordered on a private road owned by the Mulvaneys, who also owned lot "A”. In June, 1974, Mr. Gerrie and Mr. Bradley approached the Mulvaneys to buy an easement along the 500 feet of the private road which abutted lots C and D. According to the testimony at trial, Mr. Gerrie and Mr. Bradley paid $1,000 for an easement "for road purposes” which was intended to benefit both lots C and D. Mr. Mulvaney testified that he understood that both C and D were owned by the Toski Sands copartnership and that he, in fact, believed C and D were only one parcel. He was specifically told during negotiations that the easement was to benefit all 500 feet of the Toski Sands’ property because "at some future date they [Toski Sands] wished to develop the back [D] of the property”. The Mulvaneys, Mr. Gerrie, and Mr. Bradley also agreed that the easement would be for a road 66 feet in width; this width was required by MCL 221.20; MSA 9.21 and MCL 224.11; MSA 9.111 to dedicate the private road as a county road as the Mulvaneys and the copartners eventually hoped to do. Mr. Mulvaney’s attorney drafted a deed and an agreement which granted a "permanent easement for road purposes”, 500 feet long and 66 feet wide, to "Toski Sands, a co-partnership consisting of Thomas D. Bradley and George E. Gerrie”. This deed was recorded in 1978.
In March, 1979, parcel C was deeded back to Thomas D. and Betty J. Bradley and George E. and Carrie L. Gerrie by the Toski Sands copartnership, and the deed was recorded immediately.
In November, 1979, Lakeside Associates signed a buy-sell agreement with the Mulvaneys to purchase lot A. In negotiations for this property, Mr. Latimer Spinney, the general partner of Lakeside Associates, testified that he was told by Mr. Mulvaney that there was a 500-foot easement "for the party store [Toski Sands ran a party store and carry-out operation on lot C] to give truck access”. He was never told By Mr. Mulvaney that the 500-foot easement was intended to benefit lot D. Mr. Mulvaney testified that he told Mr. Spinney "there was an easement to the Toski Sands for the length of their property which we presumed and thought to be five-hundred feet * * Mulvaney drew a picture showing the easement and gave a copy to Spinney. The picture showed the Toski Sands property as one 500-foot-long parcel with a width of 300 feet. Spinney informed Lakeside Associates’ attorney William Conn, a future limited partner in the enterprise and an experienced real estate attorney, of the easement to "Toski Sands”, and Conn conducted a title search to discover what property was owned by the Mulvaneys and what easements, etc. existed on that property. He discovered the 1974 easement deed from the Mulvaneys to "Toski Sands, a co-partnership consisting of Thomas D. Bradley and George E. Gerrie” and saw that the easement was for 500 feet. However, he also saw that the deed was ambiguous because it did not specify whether the easement was to be appurtenant (running with the land) or in gross (personal to the grantees only), because it did not specify the dominant estate. From his knowledge of property law, he knew that if the easement was to an adjoining landowner, it would be appurtenant. He therefore set out to discover if any of the adjoining landowners was named "Toski Sands”. He found the 1969 deed from the Bradleys and Gerries deeding the 200-foot-long parcel C to "To-ski Sands, a co-partnership”, and concluded from this that the easement was appurtenant. He also concluded that only parcel C was a beneficiary of the easement because only C bore the Toski Sands name, although he knew the easement was for 500 feet and parcel C was only 200 feet long. He did not check subsequent records and so did not discover that parcel C had been deeded back to the Gerries and Bradleys in March, 1979. Lakeside Associates subsequently entered into the buy-sell agreement with the Mulvaneys for lot A.
Problems developed when Lakeside Associates put in an 80- by 14-foot median at the beginning of lot D in the middle of the private road. Lakeside Associates also lined the edges of the road with logs and fir trees which, according to Toski Sands, blocked access to and from the easement onto lot D. Lakeside Associates claimed that the easement did not benefit lot D, while Toski Sands claimed it had bought an easement giving it access along all 500 feet of lots C and D. Lakeside Associates sought a declaratory judgment that only lot C was benefitted by the easement, and Toski Sands counterclaimed for an injunction to force Lakeside Associates to remove the median, logs, and fir trees.
The trial court ruled that the deed granting the easement to Toski Sands was ambiguous because it did not name the dominant estate, and therefore admitted parol evidence of the Mulvaneys’ and Mr. Bradley’s and Mr. Gerrie’s intent when they drafted the agreement. Based upon this evidence, the court ruled that parcel D was also part of the dominant estate. However, the court denied Toski Sands’ request for an injunction because the median, fir trees, and logs did not interfere with either the current use (a vacant lot) of D or any known future use.
On appeal, Lakeside Associates argues that the trial court committed reversible error when it admitted parol evidence of the contracting parties’ intentions when they originally entered into the easement agreement. Lakeside Associates contends that it was a subsequent bona fide purchaser and that therefore the property interests recorded on the public record, on which Lakeside Associates relied, constitute the extent of the property interests in the private road. It further contends that if the original parties failed to accurately and fully record their property interests parol evidence of their intentions might be admissible to settle any dispute between them, but it is not admissible against a subsequent bona fide purchaser who relied on the public record.
We agree that if the intentions of the original contracting parties are not reflected in the public record, a subsequent bona fide purchaser who has relied upon the public record cannot be bound by those unrecorded intentions. Michigan is a race-notice state, MCL 565.29; MSA 26.547, and owners of interests in land can protect their interests by properly recording those interests. Therefore, if Lakeside Associates was in fact a subsequent purchaser without notice of Toski Sands’ full interests in the private road, the trial court’s decision to admit the parol evidence against Lakeside Associates was erroneous.
However, our de novo review of the record, Walker v Bennett, 111 Mich App 40; 315 NW2d 142 (1981), convinces us that Lakeside Associates does not qualify as a subsequent purchaser without notice. We believe that Lakeside Associates was in possession of such facts as would lead a reasonable man to make further inquiries into the extent of the easement sold to "Toski Sands, a co-partnership consisting of Thomas D. Bradley and George E. Gerrie”, and that therefore Lakeside Associates should be taken to have had notice of those facts which it would have discovered if it had used ordinary diligence. Dassance v Nienhuis, 57 Mich App 422, 431-432; 225 NW2d 789 (1975). In negotiations with the Mulvaneys to purchase their interests in lot A and the private road, Lakeside Associates was informed by Mr. Mulvaney that "there was an easement to the Toski Sands for the length of their property which we [the Mulvaneys] presumed and thought to be five-hundred feet * * Mr. Spinney, the general partner of Lakeside Associates, testified that he was only told there was a 500-foot easement "for the party store to give truck access” and that he was never told the easement was intended to benefit lot D. However, the drawing made by Mr. Mulvaney and given to Lakeside Associates showed only one 500-foot-long parcel designated as owned by "Toski Sands carry out and grocery”. Even if this were insufficient to put Lakeside Associates on notice that the easement benefitted both lots C and D, the further discoveries that the deed granting the easement lacked any reference to a dominant easement and that lot C, the only lot designated as owned by "Toski Sands”, was only 200 feet long, should have caused Lakeside Associates to ask the Mulvaneys about the extent of the easement. Finally, the named partners in the Toski Sands copartnership also owned, with the[r wives, the 300-foot-long parcel adjoining lot C. We believe that this combination of facts known to Lakeside Associates would have led a reasonable person to make further inquiries, and we therefore affirm the trial court’s determination that lot D is entitled to the benefits of the easement.
We also affirm the trial court’s decision to deny Toski Sands’ request for an injunction to require Lakeside Associates to remove the 80-foot by 14-foot median and logs and fir trees lining the road. The relative rights of an easement grantee and the owner of the fee subject to the easement were stated in Harvey v Crane, 85 Mich 316, 322-323; 48 NW 582 (1891):
"1. That the conveyance of a right of way gives to the grantee not only a right to an unobstructed passage at all times over defendant’s land, but also such rights as are incident or necessary to the enjoyment of such right of passage.
"2. The owner of the way, where its limits are defined, has not only the right of a free passage over the traveled part, but also to a free passage on such portions of the way as he thinks proper or necessary.
"3. The owner of the fee subject to an easement may rightfully use the land for any purpose not inconsistent with the rights of the owner of the easement.
"4. The rights of the owner of the easement are paramount, to the extent of the grant, to those of the owner of the soil.
"5. The owner of the soil is under no obligation to repair the way, as that duty belongs to the party for whose benefit it is constructed.
"6. What may be considered a proper and reasonable use by the owner of the fee, as distinguished from an unreasonable and improper use, as well as what may be necessary to plaintiffs beneficial use and enjoyment, are questions of fact to be determined by the trial court or jury.” (Citations omitted.)
Here, the owner of the fee (Lakeside Associates) had paved the formerly gravel road, lined the road edges with logs and fir trees for safety purposes, and installed a median at the beginning of lot D. Toski Sands, in the person of Mr. Gerrie, testified that access to lot C was not barred although driveway aprons had been installed to channel traffic in and out of the party store parking lot more safely. Access to lot D was available to cars on both the east and west sides of the property, but trucks could not get onto the lot. However, because the current use of the property was as a vacant lot, and because there were no plans calling for development of the property, there was no reason for trucks to enter the property. The trial court concluded that there was no immediate or likely interference with Toski Sands’ enjoyment of the roadway easement and denied the injunction. The trial court retained jurisdiction of the case, however, to give Toski Sands ready access to the court if its rights were ever infringed. We believe that this was an equitable disposition of the case which adequately protected the parties’ rights.
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R. M. Maher, P.J.
Plaintiffs Farm Bureau Mutual Insurance Company and Paul Callog appeal from the trial court’s order granting summary judgment, GCR 1963, 117.2(1), in favor of defendant Horace Mann Insurance Company.
Plaintiffs filed a complaint for a declaratory judgment seeking a determination of the duties of the parties with respect to Callog, the insured. Defendant Deloris Curtis, individually and as next friend of Harold Curtis, had filed a suit against the Cassapolis School District, the district’s superintendent, the principal of Ross Beatty High School and Callog, a teacher, for injuries sustained by Harold Curtis while taking part in a shop class.
At the time of the accident, Callog was an insured under two separate policies. Horace Mann insured Callog as a member of the Michigan Education Association under a policy providing coverage limits of $750,000 per occurrance. Farm Bureau insured Callog as an employee of the school district under a policy having a limit of $500,000 per occurrence. Each policy contains an "other insurance” clause whereby each company limits the availability of its coverage where other insurance is applicable to the same claim. The Horace Mann policy provides:
"This policy does not apply to any claim made or suit brought against the insured which is insured by another valid policy or policies, whether primary or excess, nor shall the Company be liable to make any payment in connection with any such claim or suit.”
The above provision is commonly known as an "escape clause”. See Appelman, Insurance Law and Practice, § 4910, p 457-458. The Farm Bureau "other insurance” clause provides in pertinent part:
"This insurance is primary insurance, except when stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the Company’s liability under this policy shall not be reduced by the existence of such other insurance.
"When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the Company will not be liable under this policy for a greater proportion of the loss than that stated in the applicable contribution provision below:
"Contribution by Limits: * * * [T]he Company shall not be liable for a greater proportion of such loss than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss.”
The above "other insruance” provision is a "pro rata clause”. See Appleman, supra, § 4908, p 372.
After filing its complaint for declaratory judgment, Farm Bureau moved for summary judgment, GCR 1963, 117.2(1). Horace Mann also moved for summary judgment. The trial court granted Horace Mann’s motion, holding that the Farm Bureau policy provides primary coverage for the loss of its insured.
The sole issue on appeal is whether the trial court erred in granting Horace Mann’s motion for summary judgment.
Both parties agree that either of the policies would cover the loss if the other did not exist. Horace Mann argues that its escape clause should govern and that, since the Farm Bureau policy is a valid policy covering the claim, Horace Mann is not liable to pay the claim. Farm Bureau maintains that its pro-rata clause governs and that, since the Horace Mann policy applies to the loss, Farm Bureau is responsible only for its proportionate share of the loss. We must decide which insurer is primarily liable or whether both are proportionately responsible.
Although the issue has not been addressed before by Michigan courts, the courts of other jurisdictions have considered the proper treatment of a conflict between the "other insurance” clauses of two applicable insurance policies. In Union Ins Co (Mutual) v Iowa Hardware Mutual Ins Co, 175 NW2d 413, 416 (Iowa, 1970), the court listed several of those approaches:
"At first the 'prior-in-'t“ime’ theory was applied by which liability was imposed upon the insurer whose policy was earliest in time. * * * That method was soon criticized as arbitrary, being one of convenience rather than reason, and because the time of coverage is not as significant as the vital fact that coverage existed when the accident occurred. Most courts have abandoned this method. Other tribunals have resolved such cases by determining identity of the primary tort-feasor and directness of his relationship to the insurer. Liability under such method rested upon the insurer whose named insured, as distinguished from an additional insured, is the tort-feasor. This too has been declared arbitrary and rejected by most courts. * * * It would deny coverage for an unnamed or additional insured even though the insurer intended to protect him as an insured. Another method employed in an effort to reconcile double insurance clauses has been that of determining which of two 'other insurance’ provisions is the more specific in its restriction, then giving it effect over the general.” (Citations omitted.)
As the court indicated, the listed approaches have been discredited. A majority view, however, has emerged. The cases representing that view generally involve a conflict between a clause providing that, where other insurance is available, coverage will be afforded only in excess of that policy’s limit — an "excess clause” — and another "other insurance” clause. The majority view attempts to divine the intent of the parties, General Ins Co of America v Rocky Mountain Fire & Casualty Co, 70 Wash 2d 384, 387; 423 P2d 537, 539 (1967), and concludes that excess coverage is not other valid collectible insurance. Thus, the excess clause controls.
The majority view has been criticized as circular. Union Ins Co (Mutual) v Iowa Hardware Mutual Ins Co, supra, p 417. The present case provides an apt illustration of that criticism. Both policies provide primary coverage. Reading the Horace Mann policy first, one could argue that the Farm Bureau policy is a "valid policy” under the escape clause with the result that, pursuant to that clause, Horace Mann has no liability. However, a different result is produced by reading the Farm Bureau policy first. Under its pro-rata clause, one might argue that the Horace Mann policy applies to the loss and, thus, under that clause both insurers are responsible for their proportionate share of the loss. As the court said in Union Ins Co (Mutual), supra, p 417:
"To solve the problem by picking up one policy, and reading it with a result which would be opposite to that reached if the other policy were first in order, is at best a pseudo-solution in that it only aggravates a circular riddle.”
The majority view attempts to resolve an intractable conflict. That is not possible. We recognize "the absurdity of attempting to assume that where conflicting 'other insurance’ provisions exist by reason of overlapping coverages of the same occurrence the provisions of one policy must yield to the provisions of the other”. Lamb-Weston, Inc v Oregon Automobile Ins Co, 219 Or 110, 128; 341 P2d 110, 118-119 (1959). Courts which have arrived at that conclusion represent the minority view. See Union Ins Co (Mutual), supra; Westhoff v American Inter-Ins Exchange, 250 NW2d 404 (Iowa, 1977); Sparling v Allstate Ins Co, 249 Or 471; 439 P2d 616 (1968). Under that approach, the conflicting "other insurance” clauses are declared "repugnant” and are "rejected in toto”. Lamb-Weston, Inc v Oregon Automobile Ins Co, supra, p 129. Once the conflicting clauses are disregarded, both policies clearly provide coverage. Each insurer’s liability is then prorated based on the proportion of the combined policy limits represented by the limits of each insurer’s policy.
We adopt the minority view. The escape clause of the Horace Mann policy and the pro-rata clause of the Farm Bureau policy conflict and must be rejected. Liability for the insured’s claim must be prorated between the insurers.
We conclude that the trial court erred in granting Horace Mann’s motion for summary judgment. The judgment is reversed.
Reversed. | [
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M. J. Kelly, J.
Defendant appeals as of right from his plea-based conviction of criminal sexual conduct in the third degree, MCL 750.520d; MSA 28.788(4). He was sentenced to a term of from 10 to 15 years in prison.
We have reviewed the record and briefs on appeal and find no error.
Defendant was not deprived of his right of allocution at sentencing. The trial court directly inquired of defendant whether he had any corrections or additions to make to the presentence report. Defendant responded that he did not. The trial court then directly asked defendant if he had anything further to say. Defense counsel answered on behalf of the defendant, indicating to the court that he was speaking at defendant’s request. We find that the trial court complied with GCR 1963, 785.8(2) as construed in People v Berry, 409 Mich 774; 298 NW2d 434 (1980).
The trial court also fully complied with GCR 1963, 785.7(l)(g). Defendant was informed that, by pleading guilty, he gave up his right to trial including his right to compulsory process and his right to confront all witnesses. The court rule does not require that defendant be specifically informed that compulsory process is at the public’s expense.
Defendant finally contends that the trial court abused its discretion in imposing the maximum allowable sentence on defendant. Specifically, defendant points out that he had no prior adult record and that his disciplinary record at jail while awaiting sentencing was good. The Michigan Supreme Court has recently expanded the scope of appellate review of sentencing to allow for review of the trial court’s exercise of discretion. People v Coles, 417 Mich 523; 339 NW2d 440 (1983). We must now remand for resentencing where we find that the sentence imposed in a particular case shocks our judicial conscience.
After reviewing the transcripts and presentence report in the instant case, we do not find that the trial court abused its discretion in imposing a 10-to 15-year sentence on defendant.
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J. C. Timms, J.
Plaintiffs’ complaint for injunctive relief charged that defendants’ contemplated activities in removing certain trees along Bower-man Road in Spring Arbor Township, Jackson County, and in widening and paving said road would violate the provisions of the Michigan Environmental Protection Act, MCL 691.1201 et seq.; MSA 14.528(201) et seq., and would result in a taking of plaintiffs’ property without just compensation. Following an evidentiary hearing, the circuit judge found no cause for action and dismissed the complaint. We affirm.
Plaintiffs, who have resided on Bowerman Road for over ten years, own a seventeen-acre parcel on the west side of the road, on which their residence is located and which had seventy-five feet of frontage on the road, together with a single-family dwelling on a five-acre parcel on the east side of Bowerman Road, which includes 330 feet of road frontage.
The road is a heavily tree-lined, graveled, rural secondary road under the jurisdiction of defendant Jackson County Road Commission, and was established many, many years ago under the doctrine of user as provided in MCL 221.20 et seq.; MSA 9.21 et seq. The road bed, or traveled portion of the road, is approximately twenty-four to twenty-six to twenty-eight feet in width, depending upon whose testimony is to be believed. There is no shoulder or ditching on either side of Bowerman Road as it passes plaintiffs’ property. The lawn located on plaintiffs’ five-acre parcel runs directly to the edge of the road and has been maintained by plaintiffs since they have owned the property.
Defendants’ project for reconstructing Bower-man Road anticipated expanding the road to a width of forty-four feet, which would include shoulders and drainage ditches on both sides, and further contemplated the removal of all trees within five to six feet of the edge of the shoulders of the roadway as widened. Plaintiffs’ testimony indicated that there was two hundred forty-eight trees of varying'sizes which had been marked for removal in the .7-mile length of the project.
Since this appeal was taken, substantially all of the work contemplated on Bowerman Road has been completed.
Plaintiffs contend that defendant road commission summarily embarks upon tree removal throughout Jackson County without consideration of environmental factors and that the circuit court should compel defendant road commission to adopt rules that would require the consideration of environmental factors in all of its road construction projects.
Plaintiffs further contend that the widening of Bowerman Road to forty-four feet constitutes a taking of from sixteen to twenty feet of their property of varying lengths, depending upon which parcel of land is considered, without just compensation being paid for the land.
The issue of the refusal of the circuit court to compel defendant road commission to formulate rules requiring consideration of environmental factors in all of its road construction projects was first raised in this appeal. Generally, this Court will not review issues which are raised for the first time on appeal. Sowels v Laborers’ International Union of North America, 112 Mich App 616, 623; 317 NW2d 195 (1981). However, even if this issue had been preserved, upon careful examination of the evidence and the findings of the court, and in light of Kimberly Hills Neighborhood Ass’n v Dion, 114 Mich App 495; 320 NW2d 668 (1982), and Portage v Kalamazoo Co Road Comm, 136 Mich App 276; 355 NW2d 913 (1984), lv den 422 Mich 883 (1985), we find no error in the court’s determination that no violation of mepa existed.
Further, the record discloses a paucity of evidence to establish that the Bowerman Road project was merely a part of an overall policy by defendant road commission to summarily remove trees without consideration of environmental factors.
Plaintiffs suggest that because of their mowing of the grass between the traveled portion of the roadway and the remainder of the statutory thirty-three foot right of way along the 330-foot frontage of plaintiffs’ five-acre parcel, they have retained control over this area. They contend that by widening the roadway to forty-four feet the county would be taking a parcel of their land of dimensions from sixteen to twenty feet wide and three hundred thirty feet long without just compensation therefor. For this proposition, plaintiffs rely upon Rigoni v Michigan Power Co, 131 Mich App 336; 345 NW2d 918 (1984).
We believe that plaintiffs accord too broad an interpretation to. the statement in Rigoni that:
[I]f the landowner offers any evidence to rebut the presumption, the situation changes. Evidence that a structure exists within the four-rod statutory width, or any other evidence that the landowner retained control of an area within the statutory width, is sufficient to rebut the presumption. [131 Mich App 344. Citations omitted.]
We believe that a clear reading of the cases upon which Rigoni is based requires that, to rebut the presumption, the landowner’s control of the disputed area must have been open, notorious, and adverse during the time the statutory ten-year period of continued and uninterrupted use of the highway was running. See Eager v State Highway Comm’r, 376 Mich 148, 154-155; 136 NW2d 16 (1965), and Ellsworth v Grand Rapids, 27 Mich 249, 256 (1873).
No evidence was presented by plaintiffs that either they or their predecessors in title had retained control over the disputed area during any part of the time the ten-year provision of the statute was running. Cf. Eager, supra, pp 151-152. It should be remembered that the landowner has not been deprived of the title of his property, but rather he has by statute impliedly dedicated the use of his property to the public for highway purposes. See Eager, supra, p 154; Ellsworth, supra.
Once having impliedly dedicated his land to the use of the public for highway purposes, the landowner can regain control over a part, or all, of the land so impliedly dedicated only by taking some affirmative action such as erecting a structure or a fence or some other activity on the disputed land which is open, notorious, hostile, and adverse to rights of the public in the highway right of way. Such activity by the landowner must be evidence to the public that the landowner is claiming exclusive use of the disputed lands. Further, such activity of the landowner must have been in evidence, and uninterrupted, for a period of fifteen years. MCL 600.5821(1); MSA 27A.5821(1); see Mackinac Island Development Co, Ltd v Burton Abstract & Title Co, 132 Mich App 504, 518; 349 NW2d 191 (1984), lv den 422 Mich 939 (1985).
We hold that the mowing of grass in the disputed area is not such evidence as would put the public on notice that the landowner is claiming exclusive use of the premises. Mackinac Island Development Co, supra.
We believe that this decision is in harmony with Laug v Ottawa Co Road Comm, 37 Mich App 757; 195 NW2d 336, lv den 387 Mich 767 (1972).
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ON .REMAND
Before: Jansen, P.J., and Holbrook, Jr., and Michael J. Kelly, JJ.
Jansen, P.J.
This case is before us on remand from the Supreme Court, which vacated our prior opinion and remanded for reconsideration of the propriety of the trial court’s grant of summary disposition pursuant to MCR 2.116(C)(8) in light of certain judicially noticed facts. Meyerhoff v Turner Construction Co, 447 Mich 971 (1994). We hold that the trial court erred in considering the judicially noticed facts and erred in granting summary disposition pursuant to MCR 2.116(C)(8). We, therefore, reaffirm the rule of law set forth in our previous opinion. Meyerhoff v Turner Construction Co, 202 Mich App 499; 509 NW2d 847 (1993).
Plaintiffs are twenty-one construction workers who allege that they were exposed to asbestos and asbestos-containing products from February 1987 through April 1988 in the course of their employment while working on the City of Detroit’s Cobo Hall expansion project. Plaintiffs, have apparently not suffered any presently identifiable physical injuries resulting from the alleged exposure; how ever, they brought suit against defendants seeking damages for medical monitoring or surveillance, emotional distress due to the fear of contracting cancer, and the increased risk of contracting cancer.
Defendants moved for summary disposition, alleging that plaintiffs failed to state a claim upon which relief could be granted. MCR 2.116(C)(8). The trial court granted the motion on the basis that plaintiffs did not allege an underlying injury, and that, therefore, their claim was premature. In ruling on the motion, the trial court made the following statements:
I think the premise, and I would like it to be clear that the premise upon which I am deciding the case is that there isn’t any underlying injury. There is simply the exposure and no injury yet and a desire to recover for medical monitoring and the fear of cancer.
Now, I am recognizing although there has not been discovery in this case, and I have not been provided with depositions and affidavits and so on for the proposition that one, asbestosis is a latent disease. There really isn’t a great deal of treatment that is available for it. And thirdly, that the cancer does not, is not more likely than not to occur simply from an exposure to asbestos once you have got asbestosis.
You might find some studies and you might find some experts who might testify that once you have asbestosis, it might be a more likely than not, maybe more likely than not, you might get cancer.
But I am deciding it on that basis. Now, I recognize that that has not all been flushed out by discovery. But everybody that has handled any asbestos litigation including all of you know those things quite well.
I am taking them as true, but I am also adding to that, and I guess this might have some aspect of the (0(10) motion, I am adding to that the things that I think are so well known about the disease that I can judicially notice.
The latency, the fact that there isn’t any real treatment for asbestosis. There isn’t any cure. If I know today that I am going to get it five years from now, there isn’t anything that I can do that I am going to prevent it. So, monitoring isn’t going to be helpful.
Those are the things that I think are factual kinds of things. And somebody that has never been involved in an asbestos case will say you have got to take some depositions. You have got to have some doctors come in and tell us all of that stuff. But everybody in this room who has been involved in asbestos litigation knows all of those facts.
I am taking the allegation in the complaint as true. And inasmuch as there is no allegation that they have an injury now, I feel that their claim is premature.
Under MRE 201(b), a "judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” We find that the facts that the trial court took judicial notice of were neither generally known within the territorial jurisdiction of the trial court nor capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Thus, the trial court erred in taking judicial notice of these facts.
Although it was error for the trial court to take judicial notice of the above-stated facts, that does not affect our holding in our prior opinion. We reaffirm our prior holding that medical-monitoring expenses are a compensable item of damages where the proofs demonstrate that such surveillance to monitor the effect of exposure to toxic substances, such as asbestos, is reasonable and necessary. In determining whether medical-monitoring expenses are reasonable and necessary, the following factors are to be considered: the significance and extent of the exposure; the toxicity of the substance; the seriousness of the diseases for which the individuals are at risk; the relative increase in the chance of onset of disease in those exposed; and the value of early diagnosis. Further, the need for medical diagnostic examinations must be supported by competent, reliable expert testimony.
Accordingly, the trial court erred in requiring the presence of an underlying injury or manifestation of disease before recognizing a claim for medical monitoring or surveillance. We conclude that medical monitoring constitutes a viable legal claim upon which relief may be granted.
With respect to the claim of intentional infliction of emotional distress based on the fear of contracting cancer, we reiterate that plaintiffs shall be given an opportunity to amend their complaint to state a claim for emotional distress due to the fear of contracting cancer, unless the trial court determines that such an amendment would be futile. MCR 2.118(A)(2).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained. | [
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Per Curiam.
Pursuant to a property settlement agreement placed on the record in this divorce action on June 15, 1982, a default judgment of divorce on defendant husband’s counter-complaint was entered over the objection of the plaintiff wife. Plaintiff appeals as of right.
The sole issue presented is whether the trial court erred in entering a default judgment of divorce following the settlement agreement in this case.
According to the settlement agreement, plaintiff was awarded a car (1978 Thunderbird), one-half of the proceeds upon the sale of a Detroit house, $11,165.40 payable within 18 months as one-half of the equity of the marital home, $50 per week alimony for a period of three years, furniture and effects agreed upon, and both burial plots. Defendant was awarded the remaining half of the proceeds on the Detroit property, the remaining equity in the marital home, and his businesses, free and clear. Defendant was also ordered to pay a $325 attorney fee.
In the proceedings on the record on the day of the settlement conference, plaintiff expressed some confusion, inability to hear, and concern about the failure of her own counsel to meet and consult with her prior thereto.
The trial judge indicated that the agreement stated on the record must be understood and clearly agreed to by each party. If not, he said, plaintiff could have a trial. After some clarification, plaintiff stated agreement on the record. Both counsel indicated that defendant was to submit proofs on the counter-complaint. After taking defendant’s proofs, the trial judge stated that a judgment of divorce would be granted upon presentation of a stipulation and order of withdrawal of plaintiff’s complaint and her answer to the counterclaim, together with a judgment containing a provision as heretofore stated, approved by counsel as to form and substance.
Following the settlement agreement hearing, plaintiff discharged her attorney and retained other counsel, who filed objections to defendant’s motion for entry of a judgment of divorce.
Following a hearing before a referee, defendant’s motion was granted. After a further hearing, the referee’s decision was affirmed by another circuit judge. A judgment of divorce was entered.
Courts will uphold the validity of property settlements reached through negotiation and agreement by the parties in a divorce action in the absence of fraud, duress or mutual mistake. This rule applies whether the settlement is in writing and signed by the parties or their representatives, or whether the settlement is orally placed on the record and consented to by the parties, even though not yet formally entered as part of the divorce judgment by the lower court. See Kline v Kline, 92 Mich App 62; 284 NW2d 488 (1979).
In Tinkle v Tinkle, 106 Mich App 423; 308 NW2d 241 (1981), a divorce was granted pursuant to a property settlement agreement placed on the record in open court with both parties and their counsel present. Subsequently, before judgment was entered, plaintiff filed a "petition to set aside settlement judgment and bring matter on for trial”, claiming she had been under stress with medical problems aggravated by the divorce so that she was unable to fully comprehend the settlement. The Court stated:
"The general rule is that a consent judgment cannot be set aside or modified except for fraud or mutual mistake. Insofar as the property settlement provisions of divorce judgments rest upon agreement of the parties they come within the general rule. * * * There is no claim here that fraud or mutual mistake was practiced by defendant on plaintiff. Neither does plaintiff claim nor prove that she was so insane or mentally ill as to lack capacity to make a binding property settlement agreement.
"With respect to her claim that her phsyical condition, taken together with the pressures of the divorce litigation, prevented her from comprehending that which she said she agreed to, we note that the trial judge, hearing both the divorce proceedings and the petition to set aside the settlement, found plaintiff’s claim to be without basis. We decline to upset the trial judge’s findings in that regard; she did not abuse her discretion.” (Footnotes omitted.) Tinkle, supra, p 426.
A similar case, VanWagoner v VanWagoner, 131 Mich App 204; 346 NW2d 77 (1983), upheld the entry of a judgment based on a settlement where the plaintiff claimed he did not understand the settlement and had been under duress at the time it was made because of his physical and mental health. In hearings to set aside the judgment, the plaintiff testified, as did his physician and a psychiatric social worker, to the effect that he was experiencing severe pain and great mental stress at the time of the settlement. The trial court found no basis for relief, stating that the court was satisfied that plaintiff "knew exactly what he was doing”. VanWagoner, supra, p 209. The Court of Appeals panel found that the lower court had not abused its discretion in denying plaintiff’s claim.
The Tinkle and VanWagoner cases stand for the proposition that where a party gives actual consent to a settlement agreement, a judgment based upon that agreement will be overturned only upon a finding of fraud, duress or mutual mistake. Where a party alleges that his or her consent, while actually given, was influenced by circumstances of severe stress, the standard to be applied is that of mental capacity to contract. The VanWagoner Court used the following test, taken from Star Realty, Inc v Bower, 17 Mich App 248, 250; 169 NW2d 194 (1969), lv den 383 Mich 768 (1970):
" 'The well-settled test of mental capacity to contract, properly adopted by the trial court, is whether the person in question possesses sufficient mind to understand, in a reasonable manner, the nature and effect of the act in which he is engaged. However, to avoid a contract it must appear not only that the person was of unsound mind or insane when it was made, but that the unsoundness or insanity was of such a character that he had no reasonable perception of the nature or terms of the contract.’ ”
The finding of the trial court concerning the validity of the parties’ consent to a settlement agreement placed on the record will not be over turned absent a finding of abuse of discretion. Tinkle, supra; VanWagoner, supra, p 214.
In the instant case, however, the plaintiff does not argue that she consented under conditions of extraordinary stress. She argues instead that she did not truly consent at all, for the reasons that she did not understand the nature of the proceedings, that she did not hear all of the settlement terms, and that her trial attorney, having received his $3,000 up-front fee for an uncontested divorce and having negotiated an additional $325 to be paid directly to him by the defendant, did not fully apprise her of what she was agreeing to. The trial court found against her on these claims, and the question presented is whether that finding was an abuse of discretion.
For a consent judgment to become effective, the parties must in fact consent. Hibbard v Hibbard, 27 Mich App 112; 183 NW2d 358 (1970), lv den 384 Mich 802 (1971). A party’s attorney may settle his or her claim only if given authority to do so. Michigan National Bank of Detroit v Patmon, 119 Mich App 772; 327 NW2d 355 (1982). A settlement agreed to in open court by a party through coercion by his or her attorney will not be set aside absent a showing that the other party participated in the coercion. Grand Rapids Growers, Inc v Old Kent Bank & Trust Co, 99 Mich App 128; 297 NW2d 633 (1980). In the present case, there is no showing of coercion or collusion or lack of authority given to plaintiff’s attorney at the settlement hearing.
A reading of the transcript indicates that plaintiff was adequately apprised of the terms of the settlement, except as to the defendant’s business interests. After a discussion of the settlement provisions regarding the real estate, which was evenly divided, and certain furnishings, plaintiffs attorney stated: "I believe we have pretty much covered everything. We have the furniture — ". At this point, defendant’s attorney interrupted and stated:
"Mr. Peckham: One additional thing. Any interest that Mr. Howard has in any businesses that he is involved with, specifically, Morris Howard Used Cars or Morris Howard Car Simonizing will be his sole and separate interest.
"The Court: Is that correct, counsel?
"Mr. Goodman: That is correct.
"The Court: Did you hear the proposed settlement that the lawyers stated?
"Mrs. Howard: Ah, part of it, yes.
"Mr. Goodman: She’s a little hard of hearing.
"Mrs. Howard: I didn’t hear it all.
"The Court: We better go over it. She is going to understand it, counsel, because if I accept it, you’re going to have to appeal it to have me not enter a judgment, I tell you.
"Mr. Goodman: Why don’t we outline it for her and come back?
"The Court: Let’s go over it again rapidly.”
The proposed settlement terms were then repeated by Mr. Peckham, with the exception of the provision concerning the defendant’s business interests. The following colloquy then ensued:
"The Court: Anything else, because I am going to ask both of them. You have got to hear.
"Mrs. Howard: Yes, I heard.
"The Court: Anything else? Is that it?
"Mr. Peckham: That’s it.
"The Court: Have you heard the whole settlement, Mrs. Howard?
"Mrs. Howard: Yes.
"The Court: Is that the settlement to which you are agreeing?
"Mrs. Howard: Well, I will go along with it but * * *
"The Court: No, are you agreeing? We are not making you. If you want to go to trial, you can go to trial. Either you agree to it or you don’t. Do you want that settlement or do you not? It is up to you. You are not going to offend me one way or the other.
"Mrs. Howard: Okay, I agree.
"The Court: You agree. Have you had a chance to discuss this thoroughly with your lawyer?
"Mrs. Howard: No, I haven’t, but I will.
"The Court: No, no, we will take a minute now and discuss it with him.
"Mr. Goodman: We went through everything. Any questions? You are getting the living room, dining room, burial plots, deep freeze. You are getting everything. Do you understand?
"The Court: Have you had a chance to discuss this thoroughly with your lawyer?
"Mrs. Howard: Yes.
"The Court: Are you satisfied with his advice in this matter?
"Mrs. Howard: Yes.”
It is likely, based on the foregoing record, that plaintiff was not aware of the settlement provisions regarding defendant’s business interests. Defendant alleges, in his brief, that the businesses are not going well. In her complaint, plaintiff alleged that the defendant’s income in 1980 was in excess of $100,000, an allegation neither admitted nor denied in defendant’s answer. If defendant’s business interests were substantial assets, failure to repeat that part of the settlement concerning these assets after plaintiff stated that she had not heard all of the terms was a major omission. Plaintiffs consent, in view of that omission, was not valid, and the trial court abused its discretion by entering judgment over plaintiffs objection.
At the end of his opinion in Tinkle, Judge Beasley gave a rather equivocal indication that might provide another avenue of relief for plaintiff:
"While we do not intend to review the equities of property settlements duly agreed to and placed on the record in open court where parties later attempt to renege on such agreements, we do note in this case that the record does not indicate anything unconscionable about the property settlement reached by the parties and their counsel.” 106 Mich App 428.
Inasmuch as there was no trial in this case and the settlement hearing transcript is silent in describing or indicating the value of the defendant’s business interest, it is not possible to assert that the settlement agreement was unconscionable. If, as plaintiff asserts, the defendant’s income was in the six figures, alimony of $50 per week terminating in three years seems meager for a woman in her 60’s after a 17-year marriage.
This matter is remanded to the trial court for a further hearing to determine the value on June 15, 1982, of defendant’s interest in Morris Howard Used Cars and Howard Car Simonizing, and after such determination, what further award, if any, should be made to plaintiff.
Otherwise, we affirm the judgment of divorce. We do not retain jurisdiction.
While the transcript of the June 15, 1982, settlement agreement hearing was not included in the appeal record submitted, a photostat of the proceeding was attached to the appellant’s brief without objection being made. | [
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T. M. Burns, P.J.
On September 20, 1975, plaintiff and her husband, Charles M. Fortier, were involved in a motor vehicle accident. Mr. Fortier died as a result of injuries sustained in that accident. At the time of the accident, the Fortiers were insured by defendant, Aetna Casualty and Surety Company, under a no-fault policy. Defendant was immediately advised of the accident and received a timely application for benefits.
Defendant began paying benefits pursuant to §3108 of the no-fault act, MCL 500.3108; MSA 24.13108. Plaintiff began receiving social security benefits and defendant stopped making these payments. On September 23, 1976, plaintiff brought suit in district court seeking reinstatement of § 3108 benefits and expenses, not exceeding $20 per day, reasonably incurred by plaintiff for the replacement of ordinary and necessary services that the deceased would have performed, but for his death. In addition to these claims, Mrs. Fortier individually brought her own claim for medical and wage losses. Aetna deducted the amount originally paid under § 3108 from this latter claim because they considered that amount to be an overpayment.
On February 22, 1978, defendant sent interrogatories to plaintiff requesting proof to substantiate her claim for loss of services. Plaintiff replied by sending defendant records kept by plaintiff’s children. Mrs. Fortier had agreed to pay her children for services they rendered to replace the services that were formerly performed by her husband. She encouraged the children to keep records of these services. The children marked on calendars the services they performed, the amount of time they spent performing them, and the rates that they charged. Entries from these calendars were then entered onto a ledger. Defendant was given this ledger as proof of these services.
This case went to trial in the district court on June 9, 1980. On the first day of trial, Aetna paid the amount that it had improperly deducted from Mrs. Fortier’s wage loss and medical expenses benefits. Mrs. Fortier’s children then presented testimony of their agreement and of the services that they had rendered. The jury returned a verdict in favor of plaintiff, awarding $10,000 for replacement services and $4,336 for expenses that plaintiff incurred in acquiring Blue Cross insurance which had previously been provided by Mr. Fortier’s employer. The trial judge then awarded 12 percent interest for defendant’s failure to promptly pay the Blue Cross replacement charges, for the charges for replacement services, for the wage loss benefits due plaintiff individually, and for the sum that defendant improperly deducted from the benefits which was paid on the. initial day of trial. The court also awarded attorney fees of one-third of the total sum. Aetna then paid the Blue Cross award with interest and the interest on Mrs. Fortier’s wage loss claim.
Aetna appealed the remainder of the district court’s judgment to the circuit court. The circuit court reversed the district court’s award finding that plaintiff had failed to prove that she had incurred expenses to replace services lost because of the death of her husband. The circuit court found that "checks, receipts and the like” would be required to prove such a claim. A more liberal interpretation of the act, the circuit court felt, would result in reams of collusive litigation. The circuit court also found that when one dependent’s services benefitted another dependent, they were acting in furtherance of the common goal of maintaining the household and, therefore, not replacing their father’s services. The district court judge’s award of penalty interest and attorney fees was also overturned. Plaintiff applied for leave to appeal from the circuit court’s decision, and this Court granted leave.
The circuit court’s ruling that plaintiff could only prove her case by presenting checks and receipts seems to be based on this Court’s decision in Adkins v Auto Owners Ins Co, 105 Mich App 431; 306 NW2d 312 (1980). In Adkins, a widow claimed expenses for replacement services incurred because of her husband’s death. She testified that her husband performed many tasks around the house and "if she were to place a monetary value on his services, she would esti mate $15 to $20 per day was appropriate”. 105 Mich App 433. This Court found that the widow’s testimony was insufficient evidence to show that she had become liable for replacing these services. The widow submitted 12 cancelled checks to establish that she incurred some expenditures to replace her husband’s services. This Court held that the checks were sufficient to prove that she had incurred expenses for the amount of the checks only.
Adkins does not stand for the proposition that one must present the checks, bills, or invoices to support a claim for replacement services. In Adkins, the majority of the widow’s claim was rejected because she failed to establish any agreement to pay for the replacement of these services and only estimated an amount for the value of the lost services. Likewise in Schaible v Michigan Mutual Ins Co, 116 Mich App 116; 321 NW2d 860 (1982), this Court found that an insured’s testimony that he made an agreement with his relatives to pay them for their replacement services if he collected from the insurer was insufficient to prove that he incurred expenses for replacement services. The insured was unable to state how much he had agreed to pay his relatives. The insurer also had paid the insured for half of his claim for replacement services and the insured did not pay any of this money to the relatives pursuant to the agreement. This evidence tends to show that there was no such agreement.
Contrary to the circuit court’s ruling, this Court has found that a plaintiff may recover for replacement services without presenting such formal documentation. In Youmans v Citizens Ins Co of America, 89 Mich App 387; 280 NW2d 539 (1979), lv den 407 Mich 894 (1979), the plaintiffs wife was killed in an automobile accident. Plaintiff remarried and testified that he had an agreement with his new wife to pay her $20 per day to care for his child. He determined this amount based on the benefits provided in the no-fault statute. There was no definite term to the agreement between the parties. This Court allowed plaintiff to recover the claimed expenses. More recently, in Manley v Detroit Automobile Inter-Ins Exchange, 127 Mich App 444; 339 NW2d 205 (1983), a child suffered severe head injuries in an auto accident. The child’s parents brought a claim for services performed for the child. The court, without any documentation, found that there was an implied agreement to provide these services, "[s]ervices performed by Mr. and Mrs. Manley which are 'allowable expenses’ under the rule previously stated are implicitly purchased by [their child] at their reasonable market value”. 127 Mich App 455.
The circuit court erred in requiring plaintiff to present more formal documentation to support her claim. Plaintiff is only required to establish that she incurred a liability. In the instant case, there was testimony to this effect. There was also extensive testimony as to the extent of liability that plaintiff incurred. The fact that decedent’s children made the ledger which supported this testimony does not make the testimony inadmissible. Requiring further documentation such as checks, receipts, and bills would not prevent collusion as the circuit court judge reasoned, because parties in collusion could easily pass these documents between themselves. There is no rule of evidence, nor statutory provision, which would exclude testimony based on a self-made ledger as self-serving. The validity of this testimony is determined by the trier of fact. The circuit court erred in overruling the jury’s verdict.
The circuit court also erred in finding as a matter of law that dependents and other family members were barred from receiving payment for the value of services rendered to other dependents. The no-fault act is not concerned with the status of the person providing the replacement services. The replacement services are recoverable even if performed by members of the family. Butler v Detroit Automobile Inter-Ins Exchange, 121 Mich App 727, 742; 329 NW2d 781 (1982). As stated by this Court in Youmans v Citizens Ins Co, supra, pp 391-392:
"The Supreme Court has decided that the provision of services by a spouse or relative, where reasonable, is compensable under a provision of the Worker’s Disability Compensation Act. MCL 418.315; MSA 17.237(315). Although the provision does not exactly parallel § 3108 of the no-fault act, both statutes create an entitlement for benefits reasonably provided. Kushay v Sexton Dairy Co [394 Mich 69; 228 NW2d 205 (1975)]. Both statutes are concerned with the provision of services and not with the status of the person providing those services. Thus, the Court in Kushay held that a spouse could recover for services rendered to a husband, even though, in all probability, she would have performed them absent the possibility of recovery from the employer. Kushay v Sexton Dairy Co, supra, pp 74-75.” (Emphasis added.)
This Court in Youmans also rejected the family unit theory relied upon by the circuit court. As this Court stated, "[plaintiff’s remarriage, while re-establishing the family unit, in no way affected [the child’s] need for ordinary and necessary services that her dead mother once provided”. 89 Mich App 392. This Court also rejected defendant’s argument that plaintiff need procure the services from someone other than a relative, stating "[t]he insurer should not reap a windfall because ordinary and necessary services rendered to replace those which would have been performed are performed by a wife instead of a housekeeper or a nursemaid”. 89 Mich App 390.
Plaintiff also is not precluded from recovering expenses for replacement services which may seem to cover "ordinary household tasks”. Among the expenses plaintiff became liable to her sons for were babysitting, housecleaning, and lawn mowing. This Court in Adkins, supra, found that plaintiff could recover replacement service expenses for trash disposal, stove repairs, car maintenance, babysitting, plumbing repairs, and woodcutting. 105 Mich App 433. These are substantially the same types of services that plaintiff’s sons provided. The services for which plaintiff claims expenses are within the statutory definition of "ordinary and necessary services”. MCL 500.3108(1); MSA 24.13108(1).
The circuit court also denied interest on plaintiff’s claim finding that the imposition of interest is a penalty against an arbitrary and unreasonable refusal to pay benefits. Such an interpretation of the interest provision has been specifically rejected by this Court. Manley, supra, p 460; Cook v Detroit Automobile Inter-Ins Exchange, 114 Mich App 53; 318 NW2d 476 (1982); Nash v Detroit Automobile Inter-Ins Exchange, 120 Mich App 568; 327 NW2d 521 (1982). The statute, MCL 500.3142; MSA 24.13142, only requires that the insured present the insurer with reasonable proof of loss. If the insurer does not pay the claim within 30 days after receiving this proof, it becomes liable for the interest.
The district court found that interest was recoverable in the instant case because the defendant should have known the children’s ages and improperly deducted its claimed overpayment from the medical bills, that plaintiff provided notice of her claim for Blue Cross benefits and expenses in her answer to defendant’s interrogatories, and that reasonable proof of plaintiff’s claim for replacement services was given when plaintiff responded to defendant’s interrogatories by presenting the ledger prepared by her children. The district court properly awarded penalty interest commencing 30 days after these proofs were presented to defendant. The circuit court erred in holding that plaintiff must prove that defendant arbitrarily or unreasonably delayed payment of these benefits.
We finally consider whether the circuit court properly reversed the district court’s award of attorney fees. The court may hold the insurer liable for plaintiff’s attorney fees, "if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment”. MCL 500.3148(1); MSA 24.13148(1). The district court judge held a separate evidentiary hearing and concluded that defendant unreasonably delayed in making proper payment to the plaintiff. The district court specifically found that "[i]t seems clear from the testimony and evidence presented that there was never an intention to pay the type of claim that was presented”. The record contains sufficient facts to support the district court’s finding that defendant unreasonably refused to pay these benefits. The circuit court, therefore, improperly reversed the district court’s award of attorney fees.
After carefully examining all of the arguments, we find that the district court properly awarded no-fault benefits, interest, and attorney fees. We, therefore, reverse the decision of the circuit court.
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Per Curiam.
On June 1, 1982, the trial court granted defendants’ motion for summary judgment. Plaintiff appeals as of right.
Plaintiff alleged that on April 20, 1976, after being diagnosed as an acute schizophrenic, Anthony Adams was transferred from the Detroit General Hospital to Northville State Hospital. Twelve days later he died. Plaintiff alleges that the death was from defendants’ failure to recognize that Adams was acutely dehydrated and exacerbated the situation by continually injecting drugs into his system. The trial court granted the summary judgment ruling that all defendants are protected by governmental immunity.
The trial court correctly granted summary judgment as to defendant Northville State Hospital. Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), app dis 444 US 804; 100 S Ct 24; 62 L Ed 2d 17 (1979); Smith v Michigan, 122 Mich App 340; 333 NW2d 50 (1983); Siener v Michigan, 117 Mich App 179; 323 NW2d 642 (1982), lv gtd 417 Mich 934 (1983).
We are also persuaded that the trial court properly granted summary judgment for the other defendants as well. In Converse v Isabella County, 126 Mich App 331, 341; 336 NW2d 918 (1983), this Court noted:
"Although it is clear from Supreme Court opinions * * * that government employees can be immune from tort actions, it remains unclear under what standard or test immunity is found to exist.”
At present, this Court has split on whether to use the discretionary/ministerial test or the scope-of-employment test. Cf. Layton v Quinn, 120 Mich App 708; 328 NW2d 95 (1982), with Lewis v Beecher School System, 118 Mich App 105; 324 NW2d 779 (1982). We conclude that the trial court correctly found defendants’ actions to fall within governmental immunity under either test. Diagnosing a patient and giving him drugs is a discretionary activity. If the activity is discretionary, the action is covered by governmental immunity. Fuhrmann v Hattaway, 109 Mich App 429; 311 NW2d 379 (1981), lv den 414 Mich 858 (1982). Defendants’ actions also fit within the scope-of-employment test as commonly used by this Court. Mason v Rosen, 124 Mich App 204; 333 NW2d 513 (1983) .
Affirmed.
We realize that Davis v Lhim, 124 Mich App 291, 296; 335 NW2d 481 (1983), substantially narrowed this test: "A negligent act falls within the scope of the actor’s employment only if the duty he breached is imposed on him because he is a public employee.” However, without clearer guidance from the Supreme Court, we decline to follow this radical change from the present law. Such a test comes dangerously close to judicially eliminating the statutorily imposed immunity. | [
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Sawyer, J.
Plaintiif appeals from an order' of the circuit court granting summary disposition for defendant in this paternity and support action. We reverse.
Plaintiif, appearing through his next friend and aunt, claims that defendant, a sports figure of some renown, is his father. This paternity claim originally was brought at the time of plaintiifs birth by plaintiifs mother, who was not married to defendant at the time of plaintiifs conception and birth. While it does not appear that the court made a formal finding of paternity, it does appear that defendant executed an acknowledgment of paternity. In any event, the prior paternity action was settled by defendant paying plaintiifs mother approximately $52,000 and purchasing an annuity that would provide $2,764.78 a month until plain tiff reached eighteen years of age and then a lump sum payment of $100,000. In conformity with the stipulation, the prior action was dismissed with prejudice upon the purchase of the annuity. Plaintiff’s position is that his right to support could not have been compromised in the earlier settlement.
The heart of this dispute centers on the provisions of the Paternity Act, specifically §3 of the act, MCL 722.713; MSA 25.493, which provides as follows:
(a) An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and the child only when the court having jurisdiction to compel support and education of the child shall have determined that adequate provision is reasonably secured by payment or otherwise and has approved the agreement or compromise.
(b) The performance of the agreement or compromise, when so approved, shall bar other remedies of the mother or child for the support and education of the child.
Unlike in a paternity action, in a divorce action the parties may not compromise or settle their child’s right to receive support. Johns v Johns, 178 Mich App 101, 106; 443 NW2d 446 (1989). In fact, while the Paternity Act specifically provides that the parties may reach a settlement that bars future recovery or modification, under the divorce statutes the court having jurisdiction of the matter specifically is empowered to, from time to time, modify a support award upon a showing of a change in circumstance. MCL 552.17(1); MSA 25.97(1). Plaintiff argues that this fundamental difference between a paternity action and a di vorce proceeding violates equal protection. We agree.
Classifications based upon illegitimacy violate the Equal Protection Clauses of US Const, Am XIV, and Const 1963, art 1, §2, unless they are substantially related to permissible state interests. Spada v Pauley, 149 Mich App 196, 203; 385 NW2d 746 (1986). The question then is whether the different treatment of legitimate and illegitimate children with respect to the modifiability of an award of support is substantially related to a permissible state interest. We are not persuaded that it is.
Defendant argues that there is a very clear public purpose advanced by allowing the settlement and compromise of support issues in paternity proceedings, namely the promotion of settlement and finality. While those are certainly legitimate state interests in general, we do not perceive a difference in the state interest in settlement and finality between Paternity Act proceedings and divorce proceedings. We note that the argument for settlement and finality in a Paternity Act proceeding is as equally strong or as equally weak as it is in a divorce proceeding. The Legislature has determined that the need to modify child support awards in divorce proceedings outweighs the need for settlement and finality. We fail to see how the need differs with respect to illegitimate children. Therefore, if we accept the Legislature’s determination that the need for modification outweighs the need for settlement and finality in a divorce proceeding, then we believe it must follow that the need for modification outweighs the need for settlement and finality in a Paternity Act proceeding as well.
Perhaps historically this weighing of interests was different. The question of the determination of paternity historically was quite different than it is today. With respect to illegitimate children, there legitimately could be a serious question concerning the actual paternity of the child, and methods employed to determine paternity were heavily dependent upon the credibility of the parties and, perhaps, even mere speculation. On the other hand, at least before the abandonment of Lord Mansfield’s Rule in Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), a husband could not deny the paternity of his wife’s child. Thus, a situation existed in which there was a dramatic need to settle the issue of paternity where illegitimate children were concerned, but there was no legal opportunity to settle that question in a divorce proceeding because the husband would be presumed to be the father of the child.
However, both law and medicine have become more sophisticated in recent years, and paternity now may be determined scientifically with a high degree of accuracy utilizing blood tests and dna testing. Indeed, the Paternity Act itself establishes a presumption of paternity if a blood or a dna test establishes a probability of paternity of ninety-nine percent or higher. MCL 722.716(5); MSA 25.496(5). On the other hand, with the abandonment of Lord Mansfield’s Rule, paternity may now be questioned in a divorce proceeding. As a result, the desirability of settlement of paternity issues has moved from being widely disparate between paternity and divorce proceedings to being essentially the same. Paternity actions have evolved from the parading of witnesses in a courtroom to produce what was ultimately a somewhat speculative answer regarding the question of paternity to the conducting of a blood test resulting in a highly accurate determination of paternity. Meanwhile, the question of paternity in a divorce proceeding has changed from "declarations . . . cannot be admitted to bastardize the issue born after marriage” to the same level of inquiry experienced in a paternity proceeding.
Accordingly, not only has the need to settle a Paternity Act proceeding diminished because the danger of inaccurate determinations of paternity or nonpaternity are now minimized, but also, more important to the present inquiry, the need for settlement in a paternity action is now the same as the need for settlement of a paternity question in a divorce proceeding. And, as noted above, because the Legislature has determined in the context of divorce proceedings that the need to allow a modification of child support upon a change in circumstance outweighs the need for settlement and finality, the same conclusion must be applied to paternity actions.
For the above reasons, we conclude that the different treatment between the Paternity Act and divorce proceedings on the child support issue is not substantially related to a permissible state interest. Accordingly, we conclude that MCL 722.713; MSA 25.493 is unconstitutional because it violates equal protection to the extent that it affords the parties to a paternity action greater settlement rights than are afforded parties to a divorce action with respect to the child support issue and to the extent that it renders child support awards under the Paternity Act unmodifiable while child support awards under the divorce statutes remain modifiable. Therefore, plaintiff’s ac tion to seek a modification of the earlier support agreement is justiciable, and the trial court erred in granting summary disposition for defendant.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff may tax costs.
Goodright v Moss, 2 Cowp 591; 98 Eng Rep 1257 (1777).
We note that we render no opinion whether the Legislature could, if it so chose, modify the divorce statutes to comport with the Paternity Act. We merely rule that the issues of settlement and modification must be treated the same for legitimate and illegitimate children, and, in the absence of a modification to the divorce statute, the more restrictive provisions of the Paternity Act are not enforceable. | [
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C. W. Simon, J.
In this action Wayne County seeks an injunction preventing the City of Detroit from closing the Detroit House of Correction, while the city seeks an order of mandamus requiring the county to assume custody of certain persons convicted in the county. The circuit judge granted summary judgment for the city and issued an order containing the following holding:
"The court finds that the statutory responsibility for the housing of the convicted misdemeanants and ordinance violators in the County of Wayne is that of said County, subject to appropriate reimbursements; that the City of Detroit is not mandated by law to continue the operation of the Detroit House of Correction in perpetuity regardless of changing conditions and the fact that 95 percent of the inmates at the facility are not the responsibility of that City.”
The county appeals as of right. The circuit court failed to specify the grounds on which summary judgment was granted and, although the parties agree that the city filed a motion for summary judgment and the county filed a response, the confused circuit court files contain no such documents. Because the county argues on appeal that issues of fact existed which should have precluded summary judgment, we will assume that summary judgment was entered pursuant to GCR 1963, 117.2(3) on the grounds that there was no genuine issue as to any material fact and that the city was entitled to prevail as a matter of law.
A county is required to maintain a jail. MCL 45.16; MSA 5.291. The county jails are to be used as prisons for detention of persons awaiting trial and for the confinement of persons sentenced upon conviction of an offense or committed for any cause authorized by law. MCL 801.1; MSA 28.1721. Villages and cities may use the county jail to confine persons convicted of ordinance violations, MCL 66.8, 90.8; MSA 5.1278, 5.1729, although the county must be compensated by the villages and cities for the expenses of such confinement, People ex rel Mixer v Bd of Supervisors of Manistee County, 26 Mich 422 (1873). Persons convicted of a crime or contempt of court who receive sentences of imprisonment for one year or less must be confined in a county jail or in the Detroit House of Correction. MCL 769.28; MSA 28.1097(1). Confinement in the House of Correction is the legal equivalent of confinement in a county jail. Elliott v People, 13 Mich 365 (1865).
The statute governing the House of Correction, MCL 802.1 et seq.; MSA 28.1811 et seq., was first enacted by 1861 PA 164. The origin of the statute was explained in Detroit v Laughna, 34 Mich 403, 404-405 (1876):
"The city, indeed, built the prison, and has an interest in its finances, as it is responsible to a certain degree for its expenses; but after the house was built under provisions of the city charter, which may or may not have been legally sufficient to provide for its future management, the legislature, either discovering defects, or, more probably, recognizing the manifest impropriety of allowing a prison to be managed by a city council, passed a statute which removed any doubt concerning the legal position of that establishment.”
See also Detroit v Bd of Water Comm’rs, 108 Mich 494; 66 NW 377 (1896), and Green v Dep’t of Corrections, 30 Mich App 648; 186 NW2d 792 (1971), aff’d 386 Mich 459; 192 NW2d 491 (1971). The language employed in MCL 802.1; MSA 28.1811 shows that the statute merely recognized the existence of the House of Correction and provided for its future management:
"That the building erected for that purpose by the city of Detroit, shall be known and recognized as the 'Detroit house of correction’ and shall be used for the confinement, punishment and reformation of criminals or persons sentenced thereto, under the provisions of this act, or any law of this state authorizing the confinement of convicted persons in said house of correction.”
There is no language in the statute mandating the continued existence of the House of Correction. The county has pointed to the title of 1861 PA 164:
"An Act to establish the Detroit house of correction and authorize the confinement of convicted persons and persons awaiting trial or sentence.” (Emphasis added.)
However, the title is not part of the statute; reliance on a title for purposes of statutory construction is permissible only to resolve ambiguity in the body of the statute or where there has been a clear error in omitting material from the body of the statute. People v Jaboro, 76 Mich App 8; 258 NW2d 60 (1977). In Bankhead v Mayor of River Rouge, 387 Mich 610, 614-615; 198 NW2d 414 (1972), the Court explained that the title may be used to limit but not expand the scope of the statute. Reliance on the word "establish” in the title of 1861 PA 164 to conclude that the continuing existence of the House of Correction is mandated would expand the scope of the statute and would be inconsistent with other language in the body of the statute.
The statute commits the power to perform most management functions for the House of Correction to a board of inspectors, MCL 802.2; MSA 28.1812; however, certain powers are reserved to the city. One of those reserved powers is to make agreements to take custody of certain persons. See MCL 802.8; MSA 28.1818 (with any organized county for custody of persons sentenced to confinement for not less than 60 days), MCL 802.8a; MSA 28.1818(1) (with any county having a population of 500,000 or more for custody of persons awaiting trial or sentence), MCL 802.11; MSA 28.1821 (with inspectors of the state prison for custody of certain state prisoners), and MCL 802.16; MSA 28.1826 (with Wayne County for custody of convicted persons who would otherwise be confined in the county jail). Absent such an agreement, persons may not be committed to the House of Correction. Dorsey v People, 37 Mich 382 (1877); see also MCL 802.9, 802.17; MSA 28.1819, 28.1827.
Courts will presume that the Legislature did not intend to do a useless thing, if a statute can be reasonably construed to avoid such a consequence. Brown v Dep’t of State, 45 Mich App 322, 326; 206 NW2d 481 (1973). The Legislature could not have intended to require that an empty House of Correction remain open. Because persons can only be committed to the House of Correction pursuant to an agreement with the city, the city may close the House of Correction if it has no agreement to take custody of any committed persons.
The county, however, relies on two 19th century cases to argue that it may commit persons to the House of Correction even without an agreement. In Wesley v People, 37 Mich 384, 384-385 (1877), the Court held:
"Without attempting to review all the legislation pertaining or referring to the Detroit House of Correction which may be found in the charter of the city of Detroit we are of opinion that section 8160 of the Compiled Laws [the predecessor of MCL 802.16; MSA 28.1826] clearly authorizes the recorder to sentence such convicts to the House of Correction, and that no contract is necessary such as is required by section 8155 of Compiled Laws [now MCL 802.11; MSA 28.1821]. As to the county of Wayne, the House of Correction is made the place of imprisonment for county jail offenses, and must be treated to that extent as if it were the county jail.”
In Detroit v Wayne County Bd of Auditors, 43 Mich 169, 170-171; 5 NW 77 (1880), the Court referred to Wesley v People and stated:
"[I]t was held that the House of Correction must for certain offenses be treated as if it were the jail of Wayne county, and that the Recorder of the city of Detroit had authority to sentence convicts to the House of Correction, and that no contract was necessary with the county as a condition precedent to such right.
"The legislation relating to this subject in no way interferes with the right of the board of auditors of Wayne county to adjust claims against their county, or places that county in this respect upon a footing essentially different from other counties in the State.”
However, the county’s reliance on these cases is based on a misunderstanding of the legislative history. Section 16 and 17 of 1861 PA 164, now MCL 802.16, 802.17; MSA 28.1826, 28.1827, originally read as follows:
"Sec. 16. Immediately after filing the certificate of completion as aforesaid, the said inspectors shall cause a copy thereof to be published in at least three newspapers published in said county, and thereafter it shall be the duty of every court or magistrate in the said county of Wayne, authorized by law to sentence or commit any person to the county jail of said county as vagrants, common drunkards, disorderly persons, common prostitutes, or for assault and battery, petit larceny, or other offenses punishable by imprisonment in the county jail, or by virtue of any final sentence of conviction, except for contempt, to sentence such person to be confined in the said house of correction, there to be received, kept and employed according to law, under the rules and regulations of said house of correction; and it shall be the duty of all officers having the execution of the final process of any court or magistrate sentencing convicted persons to said house of correction, to cause such convicts to be conveyed forthwith to said house of correction, and such officer or officers shall be paid therefor the fees allowed by law for conveying persons to the county jail; but this section shall not apply to those juvenile offenders, who, by law, may be sent to the reform school at Lansing.
"Sec. 17. It shall be lawful for any justice of the peace, police justice or other magistrate having jurisdiction thereof, in the county of Wayne, or in any other county having an agreement with the city of Detroit for the confinement and maintenance of convicted persons in said house of correction, in all cases of complaints for vagrancy, to commit any person except such juvenile offenders as are mentioned in the last preceding section, convicted on such complaint before such justice or magistrate, to said house of correction for a term not exceeding six months.”
By 1879 PA 98, §§ 16 and 17 were amended and a new § 21, now MCL 802.21; MSA 28.1830, was added. The language of these sections has remained unchanged until the present:
"Sec. 16. The board of auditors for the county of Wayne shall have full power and authority to enter into an agreement with the common council of the city of Detroit, or with any authorized agent or officer in behalf of said city, to receive and keep in the Detroit house of correction any person or persons who may be sentenced to confinement in said house of correction by any court or magistrate in said county of Wayne, for the offenses in this section hereafter mentioned. Whenever such agreement shall have been made, it shall be the duty of the board of auditors for said county to give public notice, in some newspaper published within said county, for a period of not less than four weeks, and such notice shall state the period of time that such agreement will remain in force. Upon the making of such agreement, it shall be the duty of every court or magistrate in the said county of Wayne, authorized by law to sentence, or commit any person to the county jail of said county as vagrants, common drunkards, disorderely persons, common prostitutes, or for assault and battery, petit larceny or other offenses punishable by imprisonment in the county jail, or by virtue of any final sentence or conviction, except for contempt, to sentence such person to be confined in the said house of correction, there to be received, kept and employed according to law, under the rules and regulations of said house of correction. And it. shall be the duty of all officers having the execution of the final process of any court or magistrate sentencing convicted persons to said house of correction, to cause such convicts to be conveyed forthwith to said house of correction, and such officer or officers shall be paid therefor the fees allowed by law for conveying persons to the county jail; but this section shall not apply to those juvenile offenders who by law may be sent to the reform school at Lansing.
"Sec. 17. It shall be lawful for any justice of the peace, police justice or other magistrate having jurisdiction thereof, in the county of Wayne (when such agreement shall have been made), or in any other county having an agreement with the authorities of the city of Detroit for the confinement and maintenance of convicted persons in said house of correction, in all cases of complaints for vagrancy, to commit any person, except such juvenile offenders as are mentioned in the last preceding section, convicted on such complaint before such justice or magistrate, to said house of correction, for a term not exceeding six months.
"Sec. 21. The board of auditors of the county of Wayne and the common council of the city of Detroit shall have full power and authority to settle and adjust, on such terms as shall be agreed upon, any and all claims or demands of the city of Detroit against the said county of Wayne for the board and expense of keeping convicted persons in the Detroit house of correction, committed thereto by any officer or magistrate in said county of Wayne, within or without the limits of said city of Detroit, at any time prior to the time this act shall take effect.”
Wesley v People and Detroit v Wayne County Bd of Auditors were clearly based on the language of the statute as it existed before the 1879 amendment. We note that the latter case, although decided in 1880, involved claims for past maintenance of prisoners. The 1879 amendment of the statute demonstrates the legislative intent that the city not be responsible for Wayne County prisoners absent an agreement with Wayne County.
A motion for summary judgment pursuant to GCR 1963, 117.2(3) should be granted only if the affidavits, pleadings, depositions, and documentary evidence filed with the court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. GCR 1963, 117.2(3). Such a motion should be granted if the nonmoving party is unable to provide any evidentiary support for its allegations. Remes v Duby (After Remand), 87 Mich App 534, 538; 274 NW2d 64 (1978). In its complaint and answer to the city’s cross-complaint, the county pled the existence of an agreement. However, the lower court file contains an affidavit by the director of the House of Correction which states that no agreement with the county is currently in existence and that the last agreement shown by the city’s records is dated February 1, 1920. Copies of that agreement are also contained in the record; they show an expiration date for the agreement of February 1, 1921. In its brief on appeal, the county candidly admits that it has no knowledge of any actual written agreement. No claim of an actual oral agreement is made; instead, the county suggests the existence of an implicit agreement. However, because MCL 802.16; MSA 28.1826 requires the county to publish notice of the existence of an agreement and its termination date, an implicit agreement would be insufficient.
The county asserts that other issues of fact exist; however, none of the issues to which the county points are material. On this record, the circuit judge did not err in granting summary judgment for the city.
We note that neither our decision nor that of the circuit court can be construed as requiring the county to assume a duty of maintaining the House of Correction. The county may satisfy its duties under the statutes previously mentioned by providing a county jail.
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Neff, P.J.
i
In lower court Docket No. 92-000236-FH, defendant pleaded guilty of possession of less than twenty-five grams of cocaine, MCL 333.7403(2)(a) (v); MSA 14.15(7403)(2)(a)(v), and of being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. In lower court Docket No. 93-000766-FH, defendant pleaded guilty of resisting and obstructing a police officer, MCL 750.479; MSA 28.747, and of being an habitual offender, third offense, MCL 769.11; MSA 28.1083. Both guilty pleas were taken at the same time, and were in exchange for the prosecution’s agreement to drop a number of additional charges.
Defendant was sentenced to four to fifteen years’ imprisonment as an habitual offender in Docket No. 92-000236-FH, and to sixteen to forty-eight months’ imprisonment as an habitual offender in Docket No. 93-000766-FH. The circuit court ordered defendant’s sentences to run consecutively because he was on bond, and had absconded from that bond, while awaiting trial on the cocaine charge when he committed the crime of resisting and obstructing a police officer. Defendant appeals as of right from the consecutive nature of his sentences and we affirm.
ii
The issue raised by defendant involves whether it is constitutionally permissible to use the same prior felonies to support different habitual offender convictions. Defendant argues that the consecutive nature of his sentences violates his constitutional right against double jeopardy because in each case the same prior felonies were used to support his convictions as an habitual offender.
A
Defendant’s claim must be evaluated in light of the protection afforded by the state and federal constitutions. According to both constitutions, criminal defendants are protected from, among other things, multiple punishments for the same offense. US Const, Am V; Const 1963, art 1, § 15; People v Whiteside, 437 Mich 188, 200; 468 NW2d 504 (1991). Thus, if the habitual offender statute creates a substantive offense, being punished twice on the basis of identical prior felonies would violate a defendant’s right against double jeopardy.
In People v Oswald (After Remand), 188 Mich App 1; 469 NW2d 306 (1991), this Court considered whether the habitual offender statute created a substantive offense. The defendant argued that because of the additional jail time he was facing as an habitual offender, he was entitled to twenty peremptory challenges. This Court disagreed, holding:
The habitual-offender statute does not create a substantive offense that is separate from and inde pendent of the principal charge. Rather, it is a sentence-enhancement procedure with a deterrent and punitive purpose. [Id. at 12.]
B
Because the habitual offender statute does not create a separate offense, defendant’s double jeopardy argument must fail. Defendant was punished once for his controlled substance violation, and once for resisting and obstructing a police officer, clearly two separate crimes, each of which occurred on separate occasions. Whiteside, supra. The additional jail time he received because of his habitual offender status did not result from additional substantive offenses. See also People v Hambrick, 169 Mich App 554, 557; 426 NW2d 702 (1988), and People v Gren, 152 Mich App 20, 26; 391 NW2d 508 (1986). Accordingly, the double jeopardy protection against multiple punishments for the same offense is not implicated. Moreover, Michigan courts have already determined that the habitual offender statute does not violate a defendant’s right against double jeopardy. In re Pardee, 327 Mich 13, 18; 41 NW2d 466 (1950); People v Potts, 55 Mich App 622; 223 NW2d 96 (1974).
Accordingly, defendant’s consecutive sentences for separate crimes do not violate his right against double punishment.
Affirmed.
At the time of the defendant’s trial, he would be entitled to twenty peremptory challenges pursuant to the then-existing MCR 6.102(D) and MCL 768.13; MSA 28.1036 if his "charged offense” was punishable by life imprisonment. Oswald, supra at 9. | [
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Shepherd, J.
Plaintiff sought a declaratory judgment that its potential liability to a third party was covered by an insurance policy issued to plaintiff by defendant and that defendant was contractually bound to defend the plaintiff in a suit against plaintiff filed by the third party. Plaintiff also sought reimbursement for legal defense costs already incurred. Both plaintiff and defendant moved for summary judgment on stipulated facts. In its order of May 24, 1982, the trial court granted defendant’s motion and denied plaintiff’s motion. Plaintiff appeals as of right.
In May, 1974, plaintiff contracted to construct a silo containing a bottom-end unloader-feeder on the farm of Clare and Berniece Feldpausch. On September 25, 1979, the Feldpausches brought suit against plaintiff, alleging damages caused by plaintiff’s breach of contract and negligence. An amended complaint based on the same causes of action was filed on March 31, 1981.
Subsequent to the initiation of the suit against it by the Feldpausches, plaintiff demanded coverage and defense of that lawsuit from defendant, its insurer. Defendant refused coverage and also refused to provide a defense to the lawsuit. Plaintiff then filed this action against defendant seeking a declaratory judgment that the Feldpausches’ claims against it were covered by its insurance policy with defendant and that defendant was required under the provisions of that policy to provide plaintiff a defense to the Feldpausches’ suit. Plaintiff also sought reimbursement for its legal expenses incurred in the defense of the Feldpausches’ suit resulting from defendant’s failure to provide a defense.
On May 24, 1982, the trial court issued an order denying plaintiff’s and granting defendant’s motion for summary judgment. In its opinion of May 7, 1982, the trial court held that none of the claims asserted against plaintiff by the Feldpausches were covered by the insurance policy issued by the defendant.
On appeal, plaintiff contends that the trial court erred in concluding that the Feldpausches’ claims were clearly excluded from coverage under the terms of the policy. We agree with plaintiff.
The duty of an insurance company to provide a defense to a lawsuit brought against its insured is separate and severable from its duty to indemnify the insured for liability imposed after trial. Dochod v Central Mutual Ins Co, 81 Mich App 63, 67; 264 NW2d 122 (1978). Furthermore, it is not necessary that all claims which are brought against the insured in the suit be covered by the policy. If there are any theories of recovery that fall within the policy, the insurer owes a duty to defend the suit. Dochod, supra, p 67. As was said in Space Conditioning, Inc v Ins Co of North America, 294 F Supp 1290, 1293 (ED Mich, 1968):
"The insurer is under a duty to defend if the complaint alleges facts constituting a cause of action within the insurance coverage, even if other facts constituting causes of action not covered by the policy are also alleged.”
The rule regarding an insurer’s duty to defend was elaborated on by this Court in Detroit Edison Co v Michigan Mutual Ins Co, 102 Mich App 136, 141-142; 301 NW2d 832 (1980):
"The duty of the insurer to defend the insured depends upon the allegations in the complaint of the third party in his or her action against the insured. This duty is not limited to meritorious suits and may even extend to actions which are groundless, false, or fraudulent, so long as the allegations against the insured even arguably come within the policy coverage. An insurer has a duty to defend, despite theories of liability asserted against any insured which are not covered under the policy, if there are any theories of recovery that fall within the policy. Dochod v Central Mutual Ins Co, 81 Mich App 63; 264 NW2d 122 (1978). The duty to defend cannot be limited by the precise language of the pleadings. The insurer has the duty to look behind the third party’s allegations to analyze whether coverage is possible. Shepard Marine Construction Co v Maryland Casualty Co, 73 Mich App 62; 250 NW2d 541 (1976). In a case of doubt as to whether or not the complaint against the insured alleges a liability of the insurer under the policy, the doubt must be resolved in the insured’s favor. 14 Couch, Insurance, 2d, § 51:45, p 538.” (Emphasis in original.)
In the instant case, both parties moved for summary judgment pursuant to GCR 1963, 117.2(3). Neither party now contends that a material issue of fact exists. This appeal is based solely on the question of whether the trial court erred as a matter of law in holding that none of the Feldpausches’ claims against plaintiff were arguably covered by plaintiff’s insurance policy issued by defendant.
Defendant does not contend that the Feldpausches’ claims do not fall within the general coverage provisions of the policy. Rather, it claims that they are clearly excluded from coverage by exclusion (m) of the policy which reads as follows:
"This insurance does not apply: * * * (m) to loss of use of tangible property which has not been physically injured or destroyed resulting from
"(1) a delay in or lack of performance by or on behalf of the named insured of any contract or agreement, or
"(2) the failure of the named insured’s products or work performed by or on behalf of the named insured to meet the level of performance, quality, fitness or durability warranted or represented by the named insured;
"but this exclusion does not apply to loss of use of other tangible property resulting from the sudden and accidental physical injury to or destruction of the named insured’s products or work performed by or on behalf of the named insured after such products or work have been put to use by any person or organization other than an insured; * * *.”
The relevant portions of the Feldpausches’ amended complaint are contained in Count I, sections II, III, and IV. Sections II and III allege that plaintiff breached its contract with the Feldpausches and that plaintiff was negligent in the installation of the bottom-end unloader system. Section IV alleges, in six numbered paragraphs, the damages the Feldpausches allegedly sustained "as a result of [instant plaintiffs] negligence in this matter”.
"1. Additional cost to feed his dairy herd during the time the silo was inoperable and while it was being replaced at [Feldpausches’] cost by another functional system.
"2. Approximately 1000 hours of [Feldpausches’] own labor to attempt to get the unloader system working sufficiently to take out enough material from the silo to feed his cattle.
"3. Increased labor costs of harvesting crops due to [Feldpausches’] time spent on attempting to fix the unloader. * * *.
"4. Numerous repair bills paid to [Reurink Brothers] for several electrical motors that burnt out, several broken gear boxes, several sprockets, numerous chains and other miscellaneous equipment all traceable to the negligent installation of the unloading system by [Reurink Brothers].
"5. [Feldpausches] also sustained the cost of installing a new silo unloading system, one that is functional, however, to install this system it necessitated cutting several 'doors’ in the bottom of [Feldpausches’] silo thereby causing [Feldpausches’] silo to become unsealed. [Feldpausches] had paid [Reurink Brothers] to install a. sealed silo at greater expense.
"6. That [Reurink Brothers] represented to [Feldpausch] he would need to run his unloading system only 15-20 minutes to get out enough material to feed his entire herd of 100 dairy cows. In fact to get enough food out to feed his herd [Feldpausch] was required to keep the unloading system in operation 4 to 5 hours long. Thereby increasing his electrical costs substantially.”
The threshold question in determining whether exclusion (m) applies is whether there was a "loss of use of tangible property which has not been physically injured or destroyed”. If the Feldpausches seek compensation for losses of use of tangible property which has not been physically injured or destroyed, coverage is excluded under exclusion (m). Plaintiff argues that none of the damage claims involve the loss of use of any property, tangible or intangible, and that some claims for damages involve physical injury or destruction to property.
While none of the actual injuries alleged by the Feldpausches is specifically labeled the "loss of use” of some property, we decline to read the complaint so narrowly as to find that there are no "loss of use” claims. Some of the claimed injuries clearly seek compensation for physical damage to tangible property, including: paragraph four, claiming numerous repair bills for equipment and burned-out motors, and paragraph five, which claimed that it was necessary to cut doors in the silo. Since exclusion (m) only denies coverage to claims for loss of use of tangible property which has not been physically injured or destroyed, the exclusion does not apply to damages to equipment set forth in paragraph four or those to the silo in paragraph five.
Defendant argues that it is not the nature of the injuries or damages themselves which determine whether the exclusion applies but the nature of the Feldpausches’ claims, i.e., breach of contract and negligence. These types of claims, defendant contends, are excluded from coverage under exclusion (m)(l) and (2). We cannot agree. Clauses (1) and (2) are applied only after it has first been determined that the claim is one for the loss of use of tangible property which has not been damaged or destroyed. Thus, the nature of the claim for damages must be examined before considering the applicability of the two clauses. While defendant may have intended, by the inclusion of exclusion (m) in its insurance contract, to exclude coverage for all losses attributable to an insured’s breach of a performance contract or its negligence in performing its work, defendant’s intent is not made clear in the wording of the insurance policy.
Had this in fact been the goal of defendant, the policy could have included clear language to that effect. Where there is a dispute over the meaning of the terms of an insurance contract, any doubts are to be resolved against the insurer in favor of the insured. Exclusionary clauses in insurance policies are to be strictly construed against the insurer. See Shepard Marine Construction Co, supra, p 64.
As discussed above, many of the claims contained in the Feldpausches’ amended complaint arguably come within the policy coverage because they are not excluded by the language of exclusion (m) for the reason that some of the claims relate to loss of use of tangible personal property which was destroyed in whole or in part. Therefore, defendant had a duty to provide a defense for plaintiff against all of the Feldpausches’ claims. Detroit Edison Co, supra. For these reasons, the order of the trial court granting defendant’s motion for summary judgment is reversed. The trial court shall enter summary judgment for plaintiff requiring defendant to provide a defense for plaintiff and to compensate plaintiff for legal expenses incurred as a result of defendant’s refusal to provide that defense.
We do not decide here that all of the claims raised by the Feldpausches are covered by the insurance policy issued by defendant. The stipulated facts, i.e., the contents of the Feldpausches’ complaints and the insurance policy, do not provide a sufficient factual basis for determining whether these claims are in fact covered by the policy in question, and summary judgment on that issue would therefore be inappropriate. We simply decide that not all of the claims fall within the terms of exclusion (m) and defendant is therefore required to defend plaintiff against all of the Feldpausches’ claims. The question of whether defendant is obligated to pay any of the claims is best left for determination after trial of the Feldpausches’ case. If the Feldpausches are successful, the issue of whether defendant is obligated to pay the claims will be determined by the theory or theories upon which the Feldpausches prevail.
Reversed and remanded for proceedings consistent with this opinion. Costs to plaintiff.
We retain no further jurisdiction. | [
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Mackenzie, J.
Defendant appeals as of right from his plea-based misdemeanor conviction of driving under the influence of liquor (DUIL), second offense, MCL 257.625; MSA 9.2325, for which he was sentenced to one year imprisonment and fined $200. Although defendant pled guilty to a second offense of DUIL, in fact defendant had three prior DUIL misdemeanor convictions which the court considered in sentencing him. Defendant claims that at one of these prior convictions, in 1980, he was not represented by counsel, and thus the court could not properly consider this conviction in sentencing him. The single issue before us is whether defendant is entitled to a remand for a Tucker hearing and possible resentencing. United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972); People v Moore, 391 Mich 426; 216 NW2d 770 (1974).
It is well established that resentencing is required where the record shows that the sentencing court considered a prior conviction at which the defendant was not represented by counsel which is constitutionally infirm because the defendant was not advised of nor effectively waived his right to counsel. United States v Tucker, supra; People v Moore, supra. Although Tucker and Moore involved prior felony convictions, at which the defendant was not represented by counsel, the United States Supreme Court has extended this principle to prior misdemeanor convictions at which the defendant was not represented by counsel. Even if a prior misdemeanor conviction at which the defendant was not represented by counsel is not itself invalid because imprisonment was not imposed and thus no right to counsel existed, Scott v Illinois, 440 US 367; 99 S Ct 1158; 59 L Ed 2d 383 (1979), still that conviction may not be used as a basis for enhancing the penalty and imposing imprisonment for a subsequent offense if the defendant did not make a valid waiver of the right to counsel at the prior proceeding, Baldasar v Illinois, 446 US 222; 100 S Ct 1585; 64 L Ed 2d 169 (1980). A defendant is entitled to a Tucker hearing to determine the validity of a prior conviction at which he was not represented by counsel if he presents prima facie proof that his right to counsel was violated. People v Moore, supra, pp 440-441.
In the instant case, the proof presented by defendant is the transcript of the arraignment on the prior misdemeanor charge reflecting that the court advised defendant of his right to be represented by counsel, inquired into defendant’s financial status, and determined that defendant was not unable to retain counsel. While the court denied defendant appointed counsel, the court explained to defendant that he could retain counsel to represent him at subsequent proceedings. Defendant was later found guilty of DUIL at bench trial at which he was not represented by counsel.
We find that defendant has not provided proof sufficient to permit defendant to collaterally challenge the validity of his prior DUIL conviction, and thus a Tucker hearing is unwarranted. The present case is not one involving a prior conviction at which the defendant was not represented by counsel where the defendant was not advised of his right to counsel or did not effectively waive his right to counsel. Compare United States v Tucker, supra (defendant neither advised of nor validly waived right to counsel); Baldasar v Illinois, supra (no formal waiver of right to counsel); People v Moore, supra (defendant not offered counsel though pleaded poverty). Rather, in the instant case defendant was advised of his right to counsel, was given an opportunity to retain counsel, and was denied appointed counsel only after the court determined that defendant was able to afford counsel. Whether the court erred in finding defendant not indigent and able to afford counsel is an issue which can be raised only in a direct appeal from the prior conviction, and is not a proper basis for a collateral challenge to the prior conviction in an appeal from a subsequent conviction. Consequently, we deny defendant’s request for a remand and affirm his conviction and sentence.
Affirmed. | [
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M. H. Cherry, J.
Defendant was convicted of intentionally aiming a firearm without malice, MCL 750.233; MSA 28.430, discharge of a firearm without malice causing injury, MCL 750.235; MSA 28.432, felonious assault, MCL 750.82; MSA 28.277, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to prison terms of ninety days for Count i; nine months for Count ii; from thirty-two to forty-eight months for Count m; and two years for Count iii. He now appeals as of right.
The charges stemmed from an incident that took place at Blake’s Bar in Detroit. Defendant first pointed and attempted to fire a gun at the bar owner, Jimmy Sloan. The gun failed to discharge. A few minutes later, outside the bar, defendent shot Wade Begley in the leg. Defendant attempted to shoot Begley two more times, but once again the gun failed to discharge.
Defendant originally was charged with three counts of assault with intent to murder and felony-firearm. The first count referred to the pointing and attempted firing of the gun inside the bar; the second count involved the actual shooting of Wade Begley outside the bar; and the third count pertained to the attempted firing of the gun at Begley after Begley was already injured. Defendant claims that Counts ii and iii arose from the same transaction and that charging him twice was violative of the double jeopardy clause. We agree.
The double jeopardy clause prohibits the imposition of multiple punishments for the same offense. People v Stewart, 138 Mich App 629, 633; 361 NW2d 16 (1984). The present case involves prose cutions which are governed by the "same transaction” test as adopted in People v White, 390 Mich 245; 212 NW2d 222 (1973). Accordingly, we must determine whether the crimes "were committed in a continuous time sequence and display a single intent and goal.” Id., p 259.
Using the above test, defendant’s claim that he has been subjected to double jeopardy has merit. Wade Begley testified that he and defendant struggled and defendant broke free and shot him. After Begley fell to the ground, defendant stepped back and attempted to fire the gun two more times. We find that this constituted only one assault; there was division neither by time nor circumstance. The division of the single, continuing transaction into separate counts was improper and violative of the double jeopardy clause. "The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.” Brown v Ohio, 432 US 161, 169; 97 S Ct 2221; 53 L Ed 2d 187 (1977).
While normally this state’s policy of concurrent sentencing would minimize the effects of the violation, the jury verdict rendered had the opposite effect. Defendant was convicted of the lesser included offenses of discharging a firearm without malice causing injury on Count ii and felonious assault on Count iii. Because the crime underlying Count hi was an integral part of the assault charged in Count ii, defendant’s conviction under Count hi is reversed and that part of his sentence is vacated.
Defendant next objects to that portion of the jury instruction dealing with self-defense. The jury was given CJI 7:9:01, which states that deadly force may be used only if the defendant honestly believes that he is in danger of being killed or of receiving serious bodily harm. Defendant apparently believes that the jury should have been instructed on the use of nondeadly force. However, given that defendant originally was charged with three counts of assault with intent to murder and that a firearm was used, the instruction given was correct.
Lastly, defendant contends that his felony-firearm conviction must be reversed if his felonious assault conviction is reversed since there is no underlying felony to support the felony-firearm charge. We disagree. In People v Lewis, 415 Mich 443, 455; 330 NW2d 16 (1982), our Supreme court held that a defendant charged with felony-firearm and an underlying felony need not be convicted of the underlying felony in order that a conviction on the felony-firearm charge may stand. In Lewis, the jury acquitted the defendant of the underlying felony but convicted him of felony-firearm. The court reasoned that the verdict was the result of leniency or compromise. Id., p 453.
We find the rationale of Lewis to be equally applicable in the present case. Juries are not required to render consistent verdicts, especially when, as in this case, there is a multi-count indictment. If a conviction for felony-firearm should stand when a defendant is convicted of no underlying crime, then logic dictates that it should also stand when the jury convicts a defendant of lesser included offenses which happen to be misdemeanors.
In People v Burgess, 419 Mich 305; 353 NW2d 444 (1984), the Supreme Court reversed this Court’s decision affirming the defendant’s conviction for felony-firearm but reversing his conviction for felonious assault. The Supreme Court reasoned that, while juries might return inconsistent verdicts, appellate courts do not share the same free dom. However, in Burgess, the felony-firearm conviction was predicated on only one felonious assault charge and this Court had reversed that charge. Accordingly, the Supreme Court found that the jury’s finding that the assault had been committed could not be relied upon to support the felony-firearm conviction.
In the present case, however, the felony-firearm charge was predicated on each of the three underlying felony charges. Even though we now reverse the felonious assault conviction, there are still two remaining charges on which the felony-firearm conviction can rest. Unlike Burgess, we are not creating an inconsistent verdict but are merely affirming the jury’s already inconsistent verdict.
Affirmed in part and reversed in part. | [
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Per Curiam.
On December 13, 1983, plaintiff, Katie A. Cook, filed a complaint alleging that defendant, Detroit Automobile Inter-Insurance Exchange, had wrongfully set off payments she received from a federal civil service survivor’s annuity against her no-fault survivor’s loss benefits payable by defendant pursuant to MCL 500.3108; MSA 24.13108. Plaintiff moved for summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10), asserting that there were no genuine issues of material fact and that she was entitled to judgment as a matter of law. In her summary judgment motion, plaintiff sought to recover the amount allegedly improperly set off by defendant, actual attorney fees as allowed under MCL 500.3148; MSA 24.13148, prejudgment interest as allowed under MCL 600.6013; MSA 27A.6013 and penalty interest as provided in MCL 500.3142; MSA 24.13142. Defendant filed a counter motion for summary judgment agreeing that there were no genuine issues of material fact, but claiming that it was entitled to judgment as a matter of law. Following a hearing addressing both summary judgment motions, the trial judge granted plaintiffs motion for summary judgment and awarded her all the relief she had sought. Defendant appeals as of right.
On appeal, defendant raises three issues, challenging separately the three components of the relief awarded to plaintiff. Due to our resolution of defendant’s first argument, which challenges the award of the setoff amount to plaintiff, we do not need to address defendant’s other two arguments, which challenge the award of attorney fees and penalty interest to plaintiff.
The facts surrounding this case are not in dispute. Plaintiff’s husband was killed in an automobile accident on August 1, 1982. Defendant, plaintiff’s husband’s no-fault personal protection insurer, immediately began paying plaintiff $1,374 per month in no-fault survivor’s loss benefits pursuant to MCL 500.3108; MSA 24.13108. Under the statute, these benefits are required to be paid for a period of not more than three years. Plaintiff also began receiving a $303 per month federal civil service survivor’s annuity, as her husband had been an employee of the United States Postal Service. In October, 1983, defendant began setting off the payments received by plaintiff from the federal civil service survivor’s annuity against its no-fault payments to her.
Defendant made the setoff pursuant to MCL 500.3109(1); MSA 24.13109(1), which provides:
Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.
Defendant argued both at trial and on appeal that the federal civil service survivor’s annuity payments received by plaintiff are benefits provided or required to be provided under the laws of the federal government and, thus, were subject to the setoff provisions.
5 USC 8341(d) provides a survivor’s annuity for the spouse of a deceased federal civil service employee as follows:
(d) If an employee of Member dies after completing at least 18 months of civilian service, his widow or widower is entitled to an annuity equal to 55 percent of an annuity computed under section 8339(a)-(f), (i), and (o) of this title as may apply with respect to the employee or Member, except that, in the computation of the annuity under such section, the annuity of the employee or Member shall be at least the smaller of—
(1) 40 percent of his average pay; or
(2) the sum obtained under such section after increasing his service of the type last performed by the period elapsing between the date of death and the date he would have become 60 years of age.
The annuity of the widow or widower commences on the day after the employee or Member dies. This annuity and the right thereto terminate on the last day of the month before the widow or widower—
(A) dies; or
(B) remarries before becoming 60 years of age.
Plaintiff receives her federal civil service survivor’s annuity pursuant to this statutory provision.
Thus, under the plain language of MCL 500.3109; MSA 24.13109, it appears that defendant was entitled to make the setoff in this case. However, in Jarosz v DAIIE, the Michigan Supreme Court recently interpreted the setoff statute to allow setoff only where the other government benefits duplicate the benefits provided under the no-fault act. The Jarosz Court went on to announce a two-prong test for determining whether the other government benefits duplicate no-fault benefits:
We conclude that the correct test is: state or federal benefits "provided or required to be provided” must be deducted from no-fault benefits under § 3109(1) if they:
1) Serve the same purpose as the no-fault benefits, and
2) Are provided or are required to be provided as a result of the same accident.[ ]
Applying the two-prong test to the facts of this case, we first note that the death of plaintiff’s husband in an automobile accident triggered both the federal annuity benefits and the no-fault benefits. On appeal, plaintiff contends that the federal annuity benefits were triggered by her husband’s termination of federal civil service employment, not his fatal automobile accident. This is a distinc tion without legal relevance. Plaintiffs husband’s fatal automobile accident caused him to terminate his federal employment and made plaintiff eligible for his federal survivor’s annuity benefits. Thus, we conclude that the second prong of the Jarosz test is clearly met in this case.
The application of the first prong of the Jarosz test is much more difficult in this case. We initially note that the purpose of no-fault survivor’s benefits is to replace wages that would have actually been earned by the decedent and used to provide support to the decedent’s family members. Jarosz, supra. Thus, we must determine whether federal civil service survivor’s annuity benefits also replace wages that would have actually been earned by the decedent and used to provide support to the decedent’s family members or whether they serve some other purpose.
Four recent decisions of the Michigan Supreme Court and this Court provide us with guidance in determining this issue. In O’Donnell v State Farm Mutual Automobile Ins Co, which the Jarosz Court used as a basis for constructing the two-prong test, the Court held that survivor’s benefits provided by federal social security served to replace the wages that the decedent actually would have earned and provided to his family and, thus, were properly set off against no-fault survivor’s loss benefits by the defendant insurer. The Court, in a subsequent decision, extended its holding in O’Donnell and found that disability benefits provided by federal social security served to replace wages that the accident victim would have actually earned absent the accident and, thus, were properly set off against no-fault disability benefits.
On the other side of the line, the Jarosz Court held that old age benefits provided by federal social security served to provide the recipient with retirement security after a certain age, not to replace wages that he would have earned absent the occurrence of an automobile accident. Thus, old age social security benefits could not be set off against no-fault disability benefits.
This Court applied Jarosz in Perkins v Riverside Ins Co of America, and held that pension benefits paid to a surviving spouse of a Michigan State Police trooper served to protect the decedent’s vested retirement contributions and not to replace his wages. Thus, the pension benefits were not properly set off against no-fault survivor’s loss benefits.
The difficulty in the within case is determining whether the federal civil service survivor’s annuity benefits are more like the social security survivor’s benefits in O’Donnell or more like the State Police pension benefits in Perkins. Pursuant to our review of the nature and terms of the federal civil service survivor’s annuity provision, we conclude that plaintiff’s federal annuity benefits in this case are more like the social security survivor’s benefits in O’Donnell. In reaching this conclusion, we first note that federal civil service employees do not pay social security taxes and are not eligible for social security benefits. Thus, it appears that the purpose of the Federal Civil Service Retirement Act, which includes the provision for survivor annuity benefits, is to provide a substitute for social security to federal civil service employees. This inference is supported by the fact that the federal civil service retirement plan is funded by mandatory payroll deductions and employer contributions, as is the case with social security. In addition, the types of benefits, such as survivor annuities, are similar to those provided by social security.
The only major difference between the federal civil service retirement plan and the social security system relevant to our decision is that a federal civil service employee can elect to receive a lump sum payment of his prior contributions upon terminating employment with the federal civil service. However, upon such termination, the former federal civil service employee enters the general social security system and there is no need for him to continue in the federal civil service retirement plan. Thus, this lump sum payment option upon termination does not really distinguish the purpose of the federal civil service retirement plan from that of the social security system.
Furthermore, we note that the survivor’s annuity benefits provided by the federal civil service program are not analogous to a lump sum payment of the employee’s previous contributions to the plan. The survivor is not limited to receiving benefits equal to the employee’s prior contributions. The surviving spouse receives annuity payments until she dies or remarries before age sixty. Thus, the trial judge erred when he viewed plaintiff’s annuity benefits as merely a return of her husband’s contributions to the federal civil service retirement plan. A federal employee’s contributions under the federal civil service retirement plan are like a private employee’s contributions under social security. Therefore, survivor annuity benefits flowing from the federal civil service retirement plan are not properly linked to, or perceived as, a return of employee contributions.
Based on the close analogy between plaintiffs survivor annuity benefits and survivor benefits provided under the general social security system, we conclude that the purpose of plaintiffs survivor annuity benefits, like the social security survivor benefits in O’Donnell, supra, was to replace the actual wages that decedent would have earned if he had not died in the automobile accident. The survivor annuity benefits do not serve the purpose of protecting the decedent’s previous retirement contributions as in Perkins, supra.
Our conclusion on this issue is reinforced by the specific distinctions that can be drawn between the facts in this case and those in Perkins. In Perkins, the spouse was eligible for both social security survivor benefits and the state trooper benefits. Thus, the pension benefits in Perkins could not be perceived as a substitute for social security benefits as can the federal civil service survivor’s benefits in this case. In addition, the state trooper pension paid benefits to the spouse in exactly the amount that the decedent would have received at retirement, thus indicating a purpose to fully protect the decedent’s retirement plan contributions. On the other hand, the federal civil service survivor benefits provide benefits only in the amount of fifty-five percent of what the decedent would receive during retirement, thus indicating a purpose to merely provide a replacement income for lost support to the now single spouse. Finally, the state trooper pension did not vest and provide, survivor benefits until ten years of service had occurred, and there was a substantial interest in protecting the decedent’s retirement plan contributions through a survivor annuity. In contrast, the federal civil service survivor’s benefits are provided after only eighteen months of service, indicating a purpose to provide support for the surviving spouse, not to protect substantial employee contributions.
Since we have concluded that the federal civil service survivor’s annuity benefits were paid to plaintiff for the purpose of replacing her husband’s wages and support, defendant insurer in this situation was entitled to set off these payments against plaintiff’s no-fault survivor’s loss benefits. Furthermore, since the setoff was proper, plaintiff was not entitled to an award of attorney fees and penalty interest based on defendant’s allegedly unreasonable failure to pay no-fault benefits. The trial judge erred in granting plaintiff’s motion for summary judgment and in denying defendant’s motion for summary judgment.
Reversed.
418 Mich 565; 345 NW2d 563 (1984).
Id., p 577.
404 Mich 524; 273 NW2d 829 (1979).
Thompson v DAIIE, 418 Mich 610; 344 NW2d 764 (1984).
141 Mich App 379; 367 NW2d 336 (1985).
5 use 8342(a).
5 USC 8341(d)(2). | [
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T. M. Burns, J.
Defendant was convicted by a jury of attempted second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3), MCL 750.92; MSA 28.287, and kidnapping, MCL 750.349; MSA 28.581. He was sentenced to twenty-five to forty years imprisonment for the kidnapping conviction and a concurrent three- to five-year term for the attempted esc conviction, with credit for two hundred ninety-five days served. Defendant appeals as of right and we affirm.
Defendant argues that the evidence was insufficient to support either of his convictions or, alternatively, that the trial court erred in denying his motion for a directed verdict as to each charge. Because defendant called no witnesses in this case, the standard of review and the analysis as to his sufficiency of the evidence claim will be identical to that applied to his claim of error in denial of his motion for the directed verdicts. The standard for reviewing sufficiency of the evidence questions was set forth in People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980). In reviewing a claim that there was insufficient evidence to support a conviction, the reviewing court must consider the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. See also People v Petrella, 424 Mich 221; 380 NW2d 11 (1985).
The victim in this case was a sixteen-year-old girl who was walking to a bus stop where she would pick up a bus to her high school. She provided the only testimony regarding the incident leading to defendant’s convictions. She testified that on the morning of the incident it was foggy and she was alone. A man, later identified as defendant, grabbed her by the neck and stuck a butcher knife to her side. He forced her to walk a couple of blocks and told her that he had a gun in his pocket. Shortly before the two arrived at defendant’s intended destination, he wrapped a towel around her eyes and put his jacket hood on her. Minutes later, they arrived at a house which defendant unlocked with a key. Once inside, the victim asked defendant why he had grabbed her. His reply was that she was a black woman. At some point after they entered the house, the victim began to cry and defendant told her to shut up because "he hadn’t had [her] pants down yet.” Defendant then threw her on a couch. For the next hour and a half, the victim and defendant talked. Defendant spoke of black women he had dated who had treated him badly. The victim tried to keep defendant talking.
After the talk, defendant laid himself down on the couch next to the victim and began kissing her on the lips and neck. He then rubbed her on the top part of her thighs and on the side of her stomach, but nowhere else. During the episode, the victim asked defendant several times to let her go. Once, he told her that she should finish her education. She replied that she had two tests to take at school that day and that he should let her go. He said that he did not know if he should, but she promised that, if he did, she would not tell anyone. Finally, he took the towel and hood off her and took her to the bathroom so that she could fix her hair. Then he walked her to the bus stop, waited with her, and told her that he was sorry and that he would never do it again.
I
We first consider whether there was sufficient evidence to support defendant’s conviction on the kidnapping charge. The "kidnapping” statute, as it is known, describes various types of conduct which are made punishable by the statute. The Supreme Court in People v Wesley, 421 Mich 375, 383; 365 NW2d 692 (1984), clarified the kidnapping statute by dividing and summarizing the ways in which a person could be convicted of kidnapping. The Supreme Court stated:
Thus, a person can be convicted of kidnapping if it is proven beyond a reasonable doubt that he or she wilfully, maliciously and without lawful authority,
(a) forcibly or secretly conñned or imprisoned any other person within this state against his will, or
(b) forcibly carried or sent such person out of this state, or
(c) forcibly seized or confined, or inveigled or kidnapped any other person
(1) with intent to extort money or other valuable thing thereby, or
(2) with intent either
(A) to cause such person to be secretly confined or imprisoned in this state against his will, or
(B) [to cause such person to be] in any way held to service against his will. [Emphasis added.]
We are concerned in this case only with the forms of conduct described by the Supreme Court in (a) and (c)(2)(A), the portions emphasized above. Defendant was charged under the corresponding portions of the kidnapping statute.
As we see it, the statute is applicable in at least three different aspects to the facts of this case. Defendant could be convicted of kidnapping if the evidence was sufficient to support a finding that he wilfully, maliciously and without lawful authority, (i) forcibly confined or imprisoned the victim (with asportation), (ii) secretly confined or imprisoned the victim, or (iii) forcibly seized or confined the victim with intent to cause her to be secretly confined or imprisoned. The Supreme Court has indicated that asportation is required as an element of kidnapping if the charge is forcible confinement, but not if the charge is some other form of kidnapping. People v Wesley, supra; People v Adams, 389 Mich 222; 205 NW2d 415 (1973). The statute was interpreted to require asportation in that regard for various reasons. Among such reasons were the need to distinguish "true kidnapping” from the common-law misdemeanor of false imprisonment and the need to distinguish actions which are merely incidental to other crimes which involve some intentional confinement of the person of the victim, such as assault, battery, rape or robbery, from actions which would constitute "true kidnapping.”
We find that there was sufficient evidence in this case to support defendant’s conviction. First, the evidence was sufficient to support a finding of forcible confinement. The testimony showed movement of the victim from the bus stop to the home several blocks away. The question in this regard is whether the asportation of the victim was "merely incidental to an underlying crime.” A jury could rationally find beyond a reasonable doubt that the movement was not "merely incidental” in this case. In People v Adams, supra, p 238, the Supreme Court indicated that, "[i]f the movement adds either a greater danger or threat thereof, that is a factor in considering whether the movement adequately constitutes the necessary legal asportation.” When it is necessary to find asportation, it must be shown to be movement having significance independent of any accompanying offense. People v Barker, 411 Mich 291, 300; 307 NW2d 61 (1981). However, a course of movement may be incidental to both a kidnapping and another offense and can be of such quality and character as to supply the asportation element of kidnapping. Id. In this case, the testimony indicates that defendant abducted the victim and took her to a house. Such asportation is sufficient to support a kidnapping conviction. Defendant did not merely grab the victim, pull her aside, and otherwise confine her while he attempted a rape. The degree of movement and degree of confinement was much greater in this case. Defendant decided to move the victim to another location and into a house. The jury could rationally find that it was proven beyond a reasonable doubt that defendant had "kidnapped” the victim under these circumstances.
Second, there was sufficient evidence for a jury to find that defendant secretly confined the victim. Where the charge is secret confinement, asportation is not an element of the offense. Wesley, supra. There is very little case law in Michigan to indicate what constitutes "secret confinement.” Cf., People v Lucille Walker, 135 Mich App 311; 355 NW2d 385 (1984); People v Nodine, 36 Mich App 80; 193 NW2d 172 (1971). One thing is obvious. "Secret” confinement is to be distinguished from confinement in a public place such as a jail or a mental institution. However, not all confinement beyond such extremely public confinement constitutes secret confinement. See Walker, supra. In general, we believe that secret confinement is confinement in a place or manner which makes it unlikely that members of the public will know or learn of the victim’s unwilling confinement within a reasonable period of time. Moreover, in order to establish secret "confinement” or "imprisonment,” some significant type or amount of detention may be required. In this case, the evidence indicated that defendant forced the victim off the streets and into a home. He forced her to remain there for three hours and kept her blindfolded for most of that time. Under these circumstances, there is no question that a jury could rationally conclude that she was "confined” or "imprisoned.” Moreover, a jury could rationally conclude that it was proven beyond a reasonable doubt that such confinement in the house was "secret.” It obviously would be difficult for any other person to know or learn that an abducted victim had been taken and detained there.
Third, a jury could rationally find that it was proven beyond a reasonable doubt that defendant seized the victim with the intent to cause her to be secretly confined. Defendant seized her at a bus stop and took her from there to the house. During that time, he gave no indication of an intent to commit a sexual assault. Even if he had intended to commit a sexual assault, he could also have possessed the requisite intent to cause her to be secretly confined. Defendant thereafter kept the victim in the house for approximately three hours during which time he never succeeded in raping her. Instead, he kept her there blindfolded and talked to her. A rational trier of fact could find, beyond a reasonable doubt, that when defendant seized the victim, he did so with the intent to cause her to be secretly confined and not simply with the intent to rape her.
II
We next address the question of whether there was sufficient evidence to support a conviction of attempted second-degree criminal sexual conduct. We find that there was sufficient evidence.
Defendant argues both that his actions did not amount to an attempt to commit the crime and, even if they did, that he voluntarily abandoned his criminal enterprise before consummating the offense attempted. We believe that the jury could rationally conclude that this was not so.
A
The attempt statute, MCL 750.92; MSA 28.287, provides punishment for any person "who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same.” The crime of at tempt consists of (1) the specific intent to commit a crime, and (2) an overt act going beyond mere preparation toward committing the crime. See People v Coleman, 350 Mich 268, 276; 86 NW2d 281 (1957), and People v Bowen, 10 Mich App 1, 7; 158 NW2d 794 (1968). See also People v Adams, 416 Mich 53, 58, n 5; 330 NW2d 634 (1982). In this case, defendant does not dispute that he had the specific intent to commit the crime, but, rather, he argues that his actions did not amount to an attempt. Indeed, defendant’s intention to commit the crime can be inferred from his statement that he did not have the victim’s pants down yet.
We find that the jury could rationally conclude beyond a reasonable doubt that defendant’s conduct went beyond mere preparation and amounted to an attempt. The evidence indicated that defendant put the victim on the couch, laid himself down next to her, kissed her neck and lips, and touched her thighs and stomach. Because defendant never touched the victim’s intimate parts, he could not have been convicted of the completed crime of second-degree criminal sexual conduct under MCL 750.520c; MSA 28.788(3). However, his actions obviously went beyond mere preparation and planning. His actions constituted direct movement toward the commission of the crime after preparations were made. Cf., People v Coleman, supra.
B
Defendant’s second contention is that, even if his actions amounted to an attempt, he voluntarily abandoned it. This Court has recognized the defense of voluntary abandonment to a charge of attempt. In People v Kimball, 109 Mich App 273, 286-287; 311 NW2d 343 (1981), modified 412 Mich 890 (1981), after an indepth discussion and analysis of the issue, this Court stated:
[T]he issue presented is one of first impression in this state. We are persuaded by the trend of modern authority and hold that voluntary abandonment is an affirmative defense to a prosecution for criminal attempt. The burden is on the defendant to establish by a preponderance of the evidence that he or she has voluntarily and completely abandoned his or her criminal purpose. Abandonment is not "voluntary” when the defendant fails to complete the attempted crime because of unanticipated difficulties, unexpected resistance, or circumstances which increase the probability of detention or apprehension. Nor is the abandonment "voluntary” when the defendant fails to consummate the attempted offense after deciding to postpone the criminal conduct until another time or to substitute another victim or another but similar objective. Such a holding is not at odds with the terms of the statute, which refer to one who "fails,” is "prevented,” or is "intercepted” before completion of the attempted offense. Such language lends itself to a holding that voluntary abandonment is a defense.
We note that the question of whether an affirmative defense has been established is usually a question for the jury and any challenge in that regard goes to the weight and not the sufficiency of the evidence. As noted in Kimball, supra, voluntary abandonment does not negate any element of the crime of attempt, but actually takes place after a defendant has already taken action which legally constitutes an "attempt.” Thus, in the usual case, the prosecutor need not initially present evidence regarding an abandonment or lack thereof. He merely proves his case. The defense is somewhat similar to the entrapment defense which is established by defendant’s proof of conduct independent of that which establishes the elements of the crime. People v D’Angelo, 401 Mich 167, 182-183; 257 NW2d 655 (1977). Because of this, one would normally expect that evidence of an abandonment defense would not be presented at trial until proofs are submitted by defendant. The prosecutor might thereafter present evidence in rebuttal and the jury would weigh the evidence and arrive at its conclusion.
In this case, however, defendant felt that the victim’s testimony which was presented during the prosecutor’s case in chief established his claim of abandonment. He moved for a directed verdict on this ground. We believe that the trial court properly declined to direct a verdict in defendant’s favor.
A trial court may direct a verdict if an affirmative defense is established by proofs presented by the prosecution. In Boudeman v Arnold, 200 Mich 162, 164; 166 NW 985 (1918), the Supreme Court stated:
Where the testimony is all one way, is uncontradicted by any testimony given in the case, either from a party’s own witnesses, or the other party’s witnesses, either on direct or drawn out on cross-examination, or by any facts or circumstances in the case, is not in itself in any way improbable or discredited, and but one legitimate inference may be drawn from it, and a case is thereby made for the plaintiff or a defense made for the defendant, the duty rests upon the court to direct a verdict.
See also People v Jackson, 390 Mich 621, 625, n 2; 212 NW2d 918 (1973). However, we do not believe that the victim’s testimony made out a defense for defendant in this case. Based on her testimony, a fact-finder could legitimately infer that defendant abandoned his attempt in response to the victim’s use of her wits in keeping defendant talking and in convincing him to let her go. While we find it to be a close question, we hold that a victim’s entreaties or pleadings may constitute "unanticipated difficulties” or "unexpected resistance” as those terms were used in Kimball, supra. Thus, the fact-finder could conclude that the abandonment was not voluntary.
Because voluntary abandonment is an affirmative defense, no question regarding sufficiency of the evidence arises. To the exent that defendant’s claim asserts that the jury verdict is against the weight of the evidence, he has failed to preserve the issue for appeal. An objection going to the weight of the evidence can be raised only by a motion for a new trial. People v Powers, 272 Mich 303, 310; 261 NW 543 (1935); People v Strong, 143 Mich App 442, 450; 372 NW2d 335 (1985); People v Matthews, 53 Mich App 232, 235; 218 NW2d 838 (1974); People v Mattison, 26 Mich App 453, 459; 182 NW2d 604 (1970).
III
Defendant’s final issue on appeal is that the trial court abused its discretion in sentencing him to twenty-five to forty years in prison for the kidnapping conviction. Under People v Coles, 417 Mich 523; 339 NW2d 440 (1983), this Court may review a trial court’s exercise of discretion in sentencing, but may afford relief to the defendant only if we find that the trial court, in imposing the sentence, abused its discretion to the extent that it shocks the conscience of this Court. Kidnapping is a serious offense and abduction of a teenager is utterly reprehensible conduct. Under the facts of this case, our conscience is not shocked by the sentence imposed.
Defendant’s convictions and sentences are therefore affirmed. | [
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Per Curiam.
Plaintiff appeals as of right from a trial court order granting defendants’ motions for summary judgment.
American National Holding Company is the sole shareholder of several banks, including American National Bank. For twenty-one years prior to July 30, 1982, plaintiff was employed by the holding company and/or its subsidiary banks. At the time of his allegedly wrongful discharge, plaintiff was a senior vice president of American National Bank.
Plaintiffs amended complaint alleges three theories of recovery in his wrongful discharge action against both the bank and the holding company: (1) breach of contract; (2) negligence; and (3) failure to exercise good faith. Plaintiff alleged that he was led to believe that his employment would be terminated only for cause.
The bank filed a motion for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8), on the ground that plaintiff’s claims were barred by § 24 of the National Bank Act, 12 USC 24. The holding company sought summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(0(10), on the ground that there were no genuine issues of material fact and that the holding company was entitled to judgment as a matter of law because it was not plaintiff’s employer. The trial court granted both defendants’ motions for summary judgment, but did so under Rule 117.2(1), believing that §24 of the National Bank Act applied to the holding company as well as the bank.
A motion for summary judgment for failure to state a claim upon which relief can be granted is designed to test the legal sufficiency of the claim as determined from the pleadings alone. All fac tual allegations are accepted as true along with any inferences or conclusions which may fairly be drawn therefrom. The motion should be granted only where the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Attard v Adamczyk, 141 Mich App 246, 248-249; 367 NW2d 75 (1985).
12 USC 24 sets forth the authority of directors of national banks with regard to employment of bank officers:
Upon duly making and filing articles of association and an organization certificate a national banking association shall become, as from the date of the execution of its organization certificate, a body corporate, and as such, and in the name designated in the organization certificate, it shall have power—
Fifth. To elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places. [Emphasis added.]
This provision has been consistently construed by state and federal courts to preempt state law governing employment relations between a national bank and its officers and to deprive a national bank of the power to employ its officers other than "at pleasure.” Wiskotoni v Michigan National Bank-West, 716 F2d 378, 387 (CA 6, 1983), citing Bollow v Federal Reserve Bank of San Francisco, 650 F2d 1093, 1097, n 3 (CA 9, 1981); Westervelt v Mohrenstecher, 76 F 118, 121 (CA 8, 1896); Kemper v First National Bank in Newton, 94 Ill App 3d 169; 418 NE2d 819 (1981). See also, Alfano v First National Bank of Highland, 111 AD2d 960; 490 NYS2d 56 (1985). In McGeehan v Bank of New Hampshire, NA, 123 NH 83, 86; 455 A2d 1054 (1983), the New Hampshire Supreme Court stated:
The case law uniformly interprets this section and substantially similar provisions as rendering unenforceable, as against public policy, all contractual provisions which do not allow a national banking association to discharge its officers at will without incurring liability for breach of contract.
We hold that the National Bank Act preempts state law in the area of wrongful discharge and precludes plaintiff from making a Toussain ¿-based claim for damages against the bank. Accordingly, plaintiff’s breach of contract claim against the bank must fail.
We then turn to plaintiff’s tort claims for negligence and failure to exercise good faith. With respect to the cause of action for negligence, plaintiff states in his complaint:
16. Defendants, having established the policies and undertaken the obligations owed to plaintiff as terms and conditions of his employment, as previously set forth in this First Amended Complaint, owed to plaintiff a duty to perform such policies and such obligations in a reasonably prudent manner.
With respect to the cause of action for failure to exercise good faith, plaintiff states in his complaint:
17. Defendants, having established the policies and undertaken the obligations owed to plaintiff as terms and conditions of his employment, as previously set forth in this First Amended Complaint, owed to plaintiff a duty to perform such policies and such obligations in good faith towards plaintiff.
We held above that the bank could not contract to employ its officers other than at the pleasure of the bank’s board of directors. It follows, therefore, that the bank could not assume a duty to perform a contract calling for discharge only for cause. Accordingly, plaintiff’s remaining claims against the bank must also fail. The trial court properly granted summary judgment in favor of the bank, pursuant to GCR 1963, 117.2(1).
The trial court erred, however, in granting summary judgment in favor of the holding company. The National Bank Act does not govern national holding companies. The National Bank Holding Company Act, 12 USC 1841 et seq., does not contain a provision similar to § 24 of the National Bank Act. Thus, we do not believe state law is preempted with respect to employment practices of bank holding companies. In his complaint, plaintiff states that he was employed by the holding company from 1972, the year it was formed, through June 30, 1982. Plaintiff states that he was led to believe, by the holding company’s actions and policies, that his employment would not be terminated "except for performance or behavior not keeping with defendant’s standards.” Plaintiff claims that he relied on said policy of employment, and that the holding company had a duty to perform said policy in a reasonably prudent man ner and in good faith towards plaintiff. Accepting plaintiffs allegations as true, we cannot say that plaintiffs claims against the holding company are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Therefore summary judgment pursuant to Rule 117.2(1) was improperly granted.
The holding company also sought summary judgment pursuant to Rule 117.2(3). A motion for summary judgment under this subrule tests whether there is factual support for the claim. When passing upon a motion based on Rule 117.2(3), the court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Longley v Blue Cross & Blue Shield of Michigan, 136 Mich App 336; 356 NW2d 20 (1984). The holding company argues that it cannot be held liable for breach of contract, negligence or a failure to exercise good faith because the bank, and not the holding company, was plaintiff’s employer.
As the party opposing summary judgment, plaintiff had the burden of showing that a genuine issue of disputed fact exists. Linebaugh v Berdish, 144 Mich App 750, 754; 376 NW2d 400 (1985). Giving the benefit of reasonable doubt to plaintiff, we must determine whether the kind of record which might be developed would leave open an issue upon which reasonable minds might differ. Id. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, 389 Mich 363, 371-373; 207 NW2d 316 (1973).
The issue in this case is whether plaintiff was an employee of the holding company. In his brief in opposition to the holding company’s motion for summary judgment, plaintiff claimed that the following facts support his claim that he was an employee of the holding company:
1. In addition to his regular compensation paid by the bank, plaintiff received bonuses from the holding company;
2. The holding company administered plaintiff’s benefits plan;
3. Plaintiff performed work for several of the holding company’s subsidiary banks in addition to the instant bank and was the auditor of all the subsidiary banks;
4. Plaintiff received an employee manual entitled: "American National Holding Company Employee Handbook”; and
5. Plaintiff received a letter of termination from the senior vice president of the holding company.
We believe these facts give rise to a genuine issue of material fact, that is: whether plaintiff was an employee of the holding company. Therefore, we conclude that the holding company was not entitled to summary judgment pursuant to Rule 117.2(3). Plaintiff’s claims against the holding company were erroneously dismissed.
Affirmed in part; reversed in part. Plaintiff’s claims against the holding company are reinstated.
In his complaint, plaintiff averred:
[P]laintiff was led to believe by defendants’ actions and policies that his employment with defendants would not be terminated by defendants, or either of them, unless his job performance was not in keeping with defendants’ standards applicable to the positions which plaintiff held and, further, that if plaintiff’s performance did not meet defendants’ standards, corrective measures would be taken and, further, that if his job or position were eliminated he would be offered another position for which he was qualified.
In Wiskotoni, the court held that § 24 of the National Bank Act did not preempt state law because Wiskotoni was neither appointed nor dismissed by the bank’s board, and therefore, was not considered an "officer” of the bank for purposes of § 24. Plaintiff does not raise this issue in the instant case.
Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980). | [
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Per Curiam.
Plaintiff Balogh began these proceedings to enjoin the City of Flat Rock from enforcing its ordinances pertaining to fishing, wading, and boating in the Huron River where it passes through the city. Defendant Huron Clinton Metropolitan Authority was added as a party defendant because plaintiff also sought portage around the Flat Rock Dam, which is owned by the authority. Plaintiff Balogh arrived at a consent judgment with the city, terminating his involvement in the case,_
At some point, the State of Michigan, through its Attorney General and the Department of Natural Resources, joined as plaintiffs, seeking an injunction to prevent the city from enforcing its ordinance prohibiting nonresidents from using HuRoc Park, which includes an island and adjacent land along the Huron River in the City of Flat Rock. Although the circuit court file is silent on the subject, the parties in their briefs inform us that the state made a motion for summary judgment pursuant to GCR 1963, 117.2(3), on the ground that the ordinance was unconstitutional because it excluded nonresidents from a public park.
Judge Roman S. Gribbs, then a Wayne Circuit Court judge, not only denied the state’s motion for summary judgment, but entered partial summary judgment for the city on the constitutional issue. Judge Gribbs determined that the ordinance did not violate the equal protection clauses of either the state or United States constitutions, because the ordinance had a rational basis. He noted that, unless an ordinance affects fundamental rights or a suspect class, it enjoys a presumption of reasonableness, and it is incumbent upon the party who assails it to establish its arbitrariness. This the state did not do, whereas the city’s argument that admitting nonresidents would cause overcrowding and displace residents whose taxes supported the facility had merit. The court concluded it was "satisfied that the ordinance prohibiting nonresidents from the use of HuRoc Park is a reasonable exercise of the city’s legislative authority and does not invidiously discriminate against nonresidents.”
On appeal the state claims it is objecting to the trial court’s determination that the ordinance is constitutional, but makes no argument in support of this claim. Indeed, the state scarcely mentions the constitution in its brief, and has not cited either the constitution or the provisions under which the ordinance should be struck down. The state has offered nothing to dispute the trial court’s conclusion that the ordinance is reasonable. We must conclude that the state has abandoned its argument that the ordinance is unconstitutional. Livonia v Dep’t of Social Services, 123 Mich App 1, 19; 333 NW2d 151 (1983).
Instead, the state urges us to find the ordinance unlawful because the city may not restrict the nonresident public from using the park and at the same time enjoy a tax exemption on the property, according to the General Property Tax Act, 1893 PA 206, as amended. MCL 211.7m, 211.7x; MSA 7.7(4j), 7.7(4u).
The city concedes that it has claimed a tax exemption for the park since 1950, and has restricted the use of the park to residents or property owners since 1955. It argues that the state’s construction of the statute indicates the city may be claiming an exemption to which it is not entitled, but does not justify invalidating the ordinance.
The incomplete lower court record does not indicate whether the parties ever raised the tax exemption issue in that court, and neither Judge Gribbs’s written opinion nor his final order makes any mention of it. Generally, an issue not raised below is beyond the scope of appellate review. GCR 1963, 801.3(1). However, if the question is one of law, and all of the facts necessary for its resolution have been presented, this Court may review the claim. Kahn-Reiff, Inc v Detroit & Northern Savings & Loan Ass'n 59 Mich App 1, 12; 228 NW2d 816 (1975). Construction of the tax exemption provisions being a question of law, we agree with the state that the park’s "residents only” admission rule is in conflict with its tax-exempt status under the statute, but agree with the city that this does not justify invalidating the ordinance.
Section 7m of the property tax act provides:
Property owned by ... a political subdivision . . . [which] is used to carry out a public purpose itself or on behalf of a political subdivision ... is exempt from taxation under this act. Parks shall be open to the public generally. [MCL 211.7m; MSA 7.7(4j).]
Section 7x exempts from taxation:
Land dedicated to the public and used as a park open to the public generally ... as used in this subdivision, "public” means all the residents of this state. [MCL 211.7x; MSA 7.7(4u).]
The words in the above provisions "open to the public generally,” as well as the definition of "public” to include all state residents, were added by the Legislature in 1952 PA 54, perhaps as a response to the Supreme Court’s decision in Village of Grosse Pointe Woods v Village of St Clair Shores, 326 Mich 376; 40 NW2d 190 (1949). The Court in that case had held that a park restricted by deed for use by residents and taxpayers of the Village of Grosse Pointe Woods was exempt from taxation, despite the restriction, because it was still used for a public purpose, which is all that the predecessor to § 7x required for tax exemption. Whether the statute was amended to alter this holding we do not know. But the amendments effectively exterminated its precedential value. The city in the instant case thus could not argue that by opening the park only to its residents it nevertheless satisfies the statutory requirement that the park be open to the public, since the statute now makes clear that only parks open to all Michigan residents may enjoy tax exemption.
The preamble to the general property tax provisions declares this to be "an act to provide for the assessment of property and the levy and collection of taxes thereon . . . .” MCL 211.1 et seq.; MSA 7.1 et seq. One of the most basic statutory construction rules requires words to be read in light of the general purpose sought to be accomplished by the statute. General Motors Corp v Erves, 395 Mich 604, 617; 236 NW2d 432 (1975). Therefore, the city’s argument that the tax statute cannot be used to . mandate that all Michigan parks must be open to all state residents is sound. To hold otherwise would violate not only canons of statutory construction, but might also run afoul of the "single object” provision of the Michigan Constitution, Const 1963, art 4, § 24.
The state argues, "Either the park must be open to all residents of the state, or the city is not entitled to the property tax exemption it has claimed over the past thirty years.” We agree with the state that this is an accurate summation of the statutory provisions on which the state relies; but the logical corollary is, if the park is not open to all state residents, the tax exemption is illegal. We decline to endorse the converse of this statement, that if the park has been tax exempt, then it must be open to the public of this state.
In other words, as the city’s conduct is at odds with our interpretation of the tax exemption statute, the remedy here would be to remove the tax exemption. We do not believe, however, that the remedy includes the assessment of back taxes owed by the city, and we decline to give our interpretation of the statute retroactive effect to cover the past thirty years. We point out that the statute does not authorize the alternative remedy of continuing the tax exemption and invalidating the restrictive ordinance. The city is free to choose this route and retain its tax exemption, but we will not compel it on authority from the General Property Tax Act.
Affirmed. | [
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