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M. E. Dodge, J.
This case raises an issue of first impression: whether a four-week period in which the claimants did not work at the beginning of the school year constituted a period of unemployment entitling them to unemployment benefits or whether it was a period between two successive academic years for which claimants were not entitled to benefits under the Michigan Employment Security Act (mesa), MCL 421.1 et seq.; MSA 17.501 et seq. We hold that it was the former and reverse the circuit court’s denial of unemployment benefits.
Claimants are approximately six hundred teaching and nonteaching employees of respondent school district. The 1981-1982 school year was scheduled to begin September 1, 1981, under collective bargaining agreements between the school district and the teachers and service personnel. Because of financial problems related to a series of millage defeats, the district unilaterally delayed the school year starting date until September 28, 1981. Claimants applied for unemployment compensation benefits for this four-week period. The school district continued claimants’ employment at the contractual end of the school year in June, 1982, to make up the lost work time and to comply with the 180-day school year requirement.
The claims were consolidated by the Michigan Employment Security Commission. The meso hear ing referee determined that the period of denial of benefits for school employees between school years set forth in MCL 421.27(i); MSA 17.529(i) (§ 27[i]) ended with the ordinary date school should have resumed, the parties’ specific contractual date. Accordingly, the referee held that claimants were entitled to benefits for the four-week delay period, and this decision was affirmed by the MESC Board of Review. The circuit court reversed the board’s decision on appeal, holding that claimants were afforded employment for a full school year and that unemployment benefits would result in a windfall for claimants and unjust enrichment.
At the time this case arose, § 27(i) provided with respect to the claimants who are teachers:
(i) Benefits based on service in employment described in section 42(8), (9), and (10) shall be payable in the same amount, on the same terms, and subject to the same conditions as compensation payable on the basis of other service subject to this act, except that:
(1) With respect to service performed in an instructional, research, or principal administrative capacity for an institution of higher education as defined in section 53(2), or for an educational institution other than an institution of higher education as defined in section 53(3), benefits shall not be paid to an individual based on those services for any week of unemployment beginning after December 31, 1977, under either of the following situations:
(a) The week commences during the period between 2 successive academic years or during a similar period between 2 regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual’s contract, to an individual if the individual performs the service in the first of the academic years or terms and if there is a contract or a reasonable assurance that the individual will perform service in an instructional, research, or principal administrative capacity for an educational institution in the second of the academic years or terms, whether or not the terms are successive.
(b) The week commences during an established and customary vacation period of holiday recess if the individual performs the service in the period immediately before the vacation period or holiday recess, and there is a reasonable assurance that the individual will perform the service in the period immediately following the vacation or holiday recess.
Similarly, with respect to the nonteaching claimants, § 27(i)(2) provided:
(2) With respect to service performed in other than an instructional, research, or principal administrative capacity for an educational institution other than an institution of higher education as defined in section 53(3), benefits shall not be paid based on those services for any week of unemployment beginning after December 31, 1977: (a) which commences during the period between 2 successive academic years or terms to any individual if that individual performs the service in the first of the academic years or terms and if there is a reasonable assurance that the individual will perform the service in the second of the academic years or terms; or (b) which commences during an established and customary vacation period or holiday recess if the individual performs the service in the period immediately before the vacation period or holiday recess, and there is a reasonable assurance that the individual will perform the service in the period immediately following the vacation or holiday recess.
Section 27(i)(4) defined "academic year”:
(4) For purposes of this subsection, "academic year” means that period, as defined by the educa tional institution, when classes are in session for that length of time required for students to receive sufficient instruction or earn sufficient credit to complete academic requirements for a particular grade level or to complete instruction in a noncredit course.
The school calendar is a mandatory subject of collective bargaining under § 15 of the public employees relations act, MCL 423.215; MSA 17.455(15). Under the school district’s collective bargaining agreement, the 1981-1982 school year was scheduled to begin on September 1, 1981. Because of financial difficulties, the school district unilaterally moved the starting date to September 28, 1981.
Seizing on the phrase "as defined by the educational institution,” the school district now argues that the 1981-1982 school year should be defined under § 27(i)(4) as beginning on September 28. Acceptance of that argument would mean that a school district could unilaterally change the beginning and ending dates of the school year at any time without its employees being able to collect unemployment benefits. Such an interpretation would defeat the purpose of the mesa, which was intended to soften the economic burden on those who, through no fault of their own, find themselves unemployed. See General Motors Corp v Erves (On Rehearing), 399 Mich 241, 252; 249 NW2d 41 (1976); MCL 421.2; MSA 17.502. The school year was defined by contract as beginning September 1. When claimants did not start work on September 1, their period of unemployment began not in a "period between successive academic years,” but rather during an academic year. The denial period provision did not apply.
Section 27(i) generally protects school employees from the hardships of unemployment to the same extent as other employees. School employees, however, are not entitled to unemployment benefits for those periods when they traditionally do not work. These exceptions for school employees have been upheld by this Court. Larkin v Bay City Public Schools, 89 Mich App 199; 280 NW2d 483 (1979), lv den 406 Mich 979 (1979). This Court has suggested that the Legislature’s exclusion resulted in part because of an opinion that school employees "know of the seasonal layoff well in advance (and may consider it an employment benefit) and are not faced with the same 'economic crunch’ as those who are unpredictably laid off during the year.” Michigan State Employees Ass’n v MESC, 94 Mich App 677, 692-693; 290 NW2d 729 (1980), lv den 408 Mich 952 (1980).
By analogous reasoning, claimants here had every reasonable expectation of returning to work on September 1, 1981. Whatever planning they had done to offset the "economic crunch” of the traditional period was undoubtedly thrown off by an extra four weeks of unemployment.
In light of the purposes behind the mesa, it is entitled to a liberal interpretation. Godsol v Unemployment Compensation Comm, 302 Mich 652, 665; 5 NW2d 519 (1942). This Court has cautioned against constructions of the act which "narrow its coverage and deprive persons entitled thereto of the benefits of the act.” Fifth Dist Republican Committee v MESC, 19 Mich App 449, 452-453; 172 NW2d 825 (1969), lv den 383 Mich 760, cert den 400 US 866; 91 S Ct 104; 27 L Ed 2d 105 (1970). Disqualification provisions should be narrowly construed in favor of those involuntarily unemployed through no fault of their own. Chrysler Corp v DeVine, 92 Mich App 555, 558; 285 NW2d 373 (1979).
With these principles in mind, we are unable to agree with the circuit court that claimants’ unem ployment benefits would constitute a windfall and unjust enrichment merely because they eventually received their full salaries for. the school year when the school year was lengthened. This argument ignores the purpose of the act, i.e, to alleviate the economic burden of unemployment. The fact that a presently unemployed worker may eventually be made whole does little to soften the immediate economic burden caused by a month of unexpected unemployment. Moreover, for any claimants who ordinarily sought other employment during the summer, lengthening the school year deprived them of one month in which to work the next summer. Such claimants would obviously not be enriched, unjustly or otherwise.
As we have noted, claimants expected to begin work on September 1. Had they started that day and worked a week, a day, or even an hour, and then been laid off, they would clearly have been entitled to unemployment compensation benefits even if that time was later made up. The Legislature was apparently less concerned with the possibility of unjust enrichment in such a situation than with the immediate economic burden of unemployed school employees. We see no difference when a school district’s unilateral action delays the bargained-for and scheduled beginning of the school year.
The decision of the mesc fits a liberal interpretation of § 27(i). We reverse the circuit court’s decision and order reinstatement of the mesc decision allowing claimants’ unemployment benefits.
Reversed.
Although we have located no authority dealing directly with this issue, we believe our reasoning is also supported by a federal case cited in the nonteaching appellants’ brief, Chicago Teachers Union v Johnson, 639 F2d 353 (CA 7, 1980), which involved unemployment benefits under the federal Special Unemployment Assistance Program. Due to lack of funds, employment of public school teachers in Chicago was terminated on June 7, 1976, three weeks before the scheduled school closing. The Seventh Circuit determined that the teachers were eligible for unemployment benefits and that the three-week period was not a period between two successive academic years within the meaning of 26 USC 3304, containing a denial period similar to that in the instant case. The court reasoned that the denial period "was intended to be that period characteristic to the educational profession and within the expectation of the teachers.” 639 F2d 357. | [
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W. J. Caprathe, J.
The parties were divorced in May, 1981. The judgment provided for joint physi cal and legal custody of their daughter, Jessica Mills, born April 11, 1977. In October, 1983, plaintiff, Mary Helen Mills, filed a petition for leave to remove Jessica’s domicile to New York and for modification of the divorce judgment with regard to child custody. Defendant, Grant E. Mills, brought a countermotion to modify the divorce judgment. Following an evidentiary hearing, the circuit court granted plaintiffs petition, modified the judgment of divorce regarding custody, and denied defendant’s petition. Defendant appeals as of right from that order.
Defendant contends that the lower court erred in two respects: (1) that the lower court should have decided plaintiffs petition based on the "clear and convincing evidence” rule of MCL 722.27(c); MSA 25.312(7)(c) rather than by the preponderance of evidence on the "best interests of the child” factors stated in MCL 722.23; MSA 25.312(3), and (2) that the lower court abused its discretion in modifying the custody provision of the judgment of divorce. We disagree with both of defendant’s contentions.
The original 1981 divorce judgment provided for joint legal and physical custody of Jessica as follows:
Custody of Minor Child
It is further adjudged and ordered that the parties have joint care, custody, control and education of Jessica Mills, minor child of the parties, until said child is eighteen (18) years old, or until the further Order of the Court; that Plaintiff, Mary Helen Mills, have the physical custody of the child during the week and that the Defendant, Grant E. Mills, have physical custody of the child all weekends each month except one (1) weekend, commencing 6:00 p.m. on Friday, and the child shall be returned to the mother by 8:00 a.m. the following Monday morning; that when the Defendant does not have weekend custody of the child, he shall have physical custody for two (2) days during the following week, and
It is further adjudged and ordered that Defendant, Grant E. Mills, have physical custody of Jessica Mills for six (6) weeks during each summer, and in the event the parties cannot agree upon which six (6) week period the father shall have physical custody, then the Court shall determine the time of his custody; that during said six (6) week period, the Plaintiff shall have physical custody of Jessica Mills from Friday afternoon at 6:00 p.m. until Monday morning at 8:00 a.m., and It is further adjudged and ordered that the domicile of said child shall not be removed from the State of Michigan without the approval of this Court and that Plaintiff shall promptly notify the Friend of the Court whenever said child is moved to another address.
The arrangement worked well until plaintiff became engaged to marry Wes Holloway, and IBM Corporation executive who resides in Scarsdale, New York. Because of her desire to live in New York after the marriage, plaintiff filed the petition for leave to remove domicile and to modify the divorce judgment regarding child custody. The petition asked the court to change Jessica’s domicile and modify the joint physical custody provisions in the judgment. Plaintiff stated in the petition that the existing custody arrangements would be impractical because of the amount of travel involved. Defendant’s petition, filed in November, 1983, sought an order modifying the divorce judgment so that defendant would have primary physical custody of Jessica, with reasonable visitation for plaintiff.
During the hearing in the lower court, defendant contended that the proceeding was actually for a change in custody, with the change of domicile issue being of secondary importance. Plaintiff took the view that the proceeding was for a change of domicile.
After the hearing, the lower court made findings on each of the "best interests of the child” factors stated in MCL 722.23; MSA 25.312(3) and concluded that the evidence preponderated in favor of granting plaintiff’s petition. The court declined to apply the "clear and convincing evidence” rule of MCL 722.27(c); MSA 25.312(7)(c), reasoning that plaintiff’s petition was not for a change in the "established custodial environment.”
The court denied defendant’s petition for sole custody and granted plaintiff permission to remove Jessica’s domicile to New York. It continued joint legal custody, giving defendant custody as follows: eleven weeks each summer, a three-day weekend each October, alternate Thanksgivings, a week each Christmas, to begin December 26, on the even years, each school break between the Christmas and Easter school breaks, a three-day weekend each May, and at all other times agreed upon by the parties.
On appeal, defendant does not contest the denial of his petition for custody. Rather, he requests us to vacate the circuit court’s order and reinstate the original custody and domicile provisions on the ground that the lower court abused its discretion in granting the change of domicile and modifying the custody provisions of the judgment of divorce.
A. Change of Domicile
In deciding whether the lower court erred in granting plaintiffs petition, we first address defendant’s contention that a change of domicile in a joint custody context amounts, as a practical matter, to a change to sole custody. If this is correct, then under MCL 722.27(c); MSA 25.312(7)(c) the lower court would have had power to change Jessica’s domicile only if there was "clear and convincing evidence” that such would be in her best interests. We agree with plaintiffs characterization of the proceedings as being for a change of domicile with modification of the terms of custody, rather than for a change of custody. The original judgment provided for joint custody and the modified judgment clearly continued that joint custody. See Scott v Scott, 124 Mich App 448, 451; 335 NW2d 68 (1983). We therefore reject defendant’s argument that the lower court changed Jessica’s custody as a practical matter and hold that the lower court did not err in declining to apply the "clear and convincing evidence” standard.
Having determined that the lower court properly decided the petition based on the preponderance of the evidence, we next determine whether the lower court erred in granting the petition to remove Jessica from the state based on the "best interests of the child” factors. In Bielawski v Bielawski, 137 Mich App 587, 593; 358 NW2d 383 (1984), this Court held that in reviewing a lower court’s grant of a petition to remove a child from the state, we must decide whether the lower court abused its discretion. See also Scott, supra, p 451, and MCL 722.28; MSA 25.312(8). In exercising its discretion to allow or not to allow removal of a child from the state, the lower court should have followed the criteria enunciated in D’Onofrio v D’Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27 (1976), referred to in Scott, supra, p 452: (1) whether the prospective move has the capacity to improve the quality of life for both the custodial parent and the child; (2) whether the move is inspired by the custodial parent’s desire to defeat or frustrate visitation by the noncustodial parent and whether the custodial parent is likely to comply with the substitute visitation orders where he or she is no longer subject to the jurisdiction of the courts of this state; (3) the extent to which the noncustodial parent who resists the move is motivated by the desire to secure a financial advantage in respect of a continuing support obligation; and (4) the degree to which the court is satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.
Although the lower court discussed and relied on the "best interests of the child” factors and did not expressly apply the D’Onofrio factors, we still find no palpable abuse of discretion in granting plaintiffs petition. The evidence, when viewed in light of the D’Onofrio factors, still supports the judge’s finding. As to factor one, plaintiff testified that if her petition was granted she would move to New York and marry Mr. Holloway. Mr Holloway’s four- to five-bedroom home is in a nice residential area. He earns over $120,000 per year. Plaintiff intended to take a year off after the wedding and return to work thereafter. This evidence supports a finding that the quality of life would be improved for both Jessica and the plaintiff in New York. As to the second factor, there was no suggestion that the move was inspired by a desire to defeat the relationship between Jessica and her father. On the contrary, the court found that both parties were equally willing to encourage an ongoing relationship between the child and the other parent. As to factor four, the lower court provided a realistic opportunity for defendant to have custody of Jessica in Milford. Defendant was given several more weeks of residency during the summer and other periods during the year in lieu of the weekly pattern which had existed. We therefore find that the lower court did not err in granting plaintiffs petition to change Jessica’s domicile.
B. Modification of Residency Terms
Defendant contends that the lower court erred in changing the residency terms of the joint custody provision of the judgment of divorce. Although neither party addresses the standard to be applied where the court modifies the residency terms of a joint custody order, we think the court’s decision in this regard is similar to a change in domicile and should be reversed only where it evidences an abuse of discretion.
The lower court modified the residency terms of the joint custody order because the distance between the residences of the joint custodians was vastly increased as a result of the change of domicile. Having found that the lower court did not abuse its discretion in granting plaintiff’s petition to change domicile, we think it was beneficial to both parties to modify the residency terms in the joint custody order. Travel between the residences would have been much more costly for both parents and burdensome for the child had the original residency terms remained intact. The new terms give defendant more time with Jessica in the summer and require both parties to share equally the transportation expenses. We believe that it would have been untenable not to change the residency terms. We, therefore, find that the lower court did not abuse its discretion in modifying the residency terms of the joint custody order.
Affirmed.
Section 7 of the act permits the court to modify or amend previous custody, support, and visitation orders for proper cause shown or because of a change in circumstances. It states, in pertinent part:
Sec. 7. If a child custody dispute has been submitted to a circuit court as an original action under this act or has arisen incidentally from another action in a circuit court or another [sic] judgment of a circuit court, for the best interests of the child the court may:
(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. [MCL 722.27; MSA 25.312(7). Emphasis added.]
The Scott ease involved a joint physical custody situation in which one of the parents petitioned to remove the minor children to Ohio. The only difference between Scott and the instant case is that, in the present situation, the plaintiff included with her petition for a change of domicile a request for modification of the residency terms of the joint custody provision of the divorce judgment.
The Scott Court applied the D’Onofrio factors to a joint custody situation, although acknowledging that D’Onoñro involved the removal of children by the sole custodial parent. | [
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R. B. Burns, J.
This action arises out of the drowning of Javier Garcia in the Grand River near the Holton Dam located in the City of Jackson. The dam was built in the 1800s and was modified to its present configuration in the mid-1980s. The modifications included a "box section.” The box section is a 5 X 10 foot submerged conduit through which water flows underground for 2,000 feet. The mouth of the pipe is open and unguarded by any grating. Defendant acquired Holton Dam in 1956.
Prior to decedent’s drowning, Noel Jeffrey Potter drowned while swimming in the vicinity of the dam when he was sucked into the pipe and dragged under water for 2,000 feet. Shortly after the boy’s death, 1,257 residents of Jackson signed a petition urging defendant to correct and improve the dam. Garcia drowned in the same manner as Potter approximately eighteen months later.
Plaintiffs filed a complaint sounding in nuisance per se and nuisance in fact. Subsequently, defendant moved for summary judgment, asserting that plaintiffs failed to state a claim upon which relief can be granted, GCR 1963, 117.2(1), now MCR 2.116(C)(8), alleging that the recreational use statute (rus), MCL 300.201; MSA 13.1485, barred the nuisance claims. The trial court granted defendant’s motion, but also granted plaintiffs leave to amend their complaint. Plaintiffs filed an amended complaint which contained one count of nuisance per se. Defendant again moved for summary judgment, contending that the action was still barred by the rus. The disposition of defendant’s second motion is not contained in the lower court record. A hearing on the motion was scheduled, but plaintiffs filed another amended complaint. The form and substance of the second amended complaint is identical to that of the first amended complaint, except that the caption of Count I reads "Wilful Wanton [sic] Misconduct of the Owner of Holton Dam, City of Jackson” instead of "Nuisance per se.” The sufficiency of the second amended complaint is the subject of the present dispute.
Defendant once again moved for summary judgment on the ground that no material issue of fact existed and it was entitled to judgment as a matter of law, pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10). The trial court found that defendant mislabeled its motion and treated it as a motion seeking pretrial disposition based on governmental immunity and proceeded under GCR 1963, 117.2(1), now MCR 2.116(C)(8). The trial court ruled that plaintiffs failed to support a claim of intentional tort to overcome the defense of governmental immunity. The court also concluded that the dam did not fall within the "public building” exception to governmental immunity. Plaintiffs appeal the finding of failure to plead an intentional nuisance.
We first consider whether intentional nuisance claims are subject to a governmental immunity defense. In Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978), a majority of the justices concluded that claims of nuisance per se and intentional nuisance in fact are not barred by governmental immunity. However, there remains some question as to whether this remains true following the Court’s decision in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). We agree with this Court’s statement in Veeneman v Michigan, 143 Mich App 694, 700; 373 NW2d 193 (1985):
The Supreme Court in Ross, supra, did not expressly consider whether a claim of intentional nuisance continues as a common law exception to governmental immunity. However, in Disappearing Lakes Ass’n, supra, one of the cases decided along with Ross, the plaintiffs alleged, inter alia, that the dnr "negligently and/or intentionally created a nuisance” by issuing a permit for dredging certain canals. The Court of Appeals found that the plaintiffs had not pled a valid claim of nuisance because the issuance of dredging permits alone was not sufficient indication that the dnr actually controlled the project which created the nuisance. The Supreme Court affirmed, finding that "[t]he Court of Appeals conclusion that plaintiffs had insufficiently pleaded a nuisance cause of action is not clearly erroneous.” Ross, supra, p 657. We can only infer from this statement that the Court intended to retain the common law intentional nuisance exception recognized in Rosario and Gerzeski. See Landry v Detroit, 143 Mich App 16; 371 NW2d 466 (1985).
We now turn our attention to the question of what a plaintiff must show to establish an intentional nuisance. Justice Moody’s opinion in Ro sario, supra, p 142, set forth the following definition:
In order to find an intentional nuisance, the trier of fact must decide based upon the evidence presented that the governmental agency intended to bring about the conditions which are in fact found to be a nuisance. This finding comports with the definition of intentional nuisance set forth in Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 (1952):
"A second [type of nuisance] includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.”
Justice Moody again quoted from Denny in his opinion in Gerzeski. Gerzeski, supra, pp 161-162. A plaintiff must show that (1) the condition is a nuisance and (2) the government intended to create the condition.
Defendant also argues that the intentional nuisance exception to governmental immunity does not apply in this case since an intentional nuisance requires an affirmative act and defendant, at most, only failed to act to correct a danger. For support, defendant relies on Furness v Public Service Comm, 100 Mich App 365; 299 NW2d 35 (1980). The Furness Court held:
The gravamen of these allegations is that defendants were negligent in failing to correct a known danger (nuisance). This alleged conduct is omissive rather than commissive and would therefore fall within the category of a negligent nuisance. As such it remains protected from suit by governmental immunity. [100 Mich App 370.]
A conflict exists within this Court on this issue. In Landry v Detroit, 143 Mich App 16, 25; 371 NW2d 466 (1985), a panel of this Court concluded that an omission to act can constitute an intentionally created nuisance:
We cannot conclude that plaintiffs’ claim for an intentionally created nuisance in fact is so unenforceable as a matter of law that no factual development could possibly justify recovery. Plaintiffs’ allegation, that defendants refused to take necessary safety measures, pleads a deliberate act by the governmental agency to create the condition. Rosario, p 143.
Like the Landry Court, we also look to Justice Moody’s opinion in Rosario for guidance. After quoting from the complaint, Justice Moody stated:
The terms "neglected” and "failed” allege negligent activity. However, liberally construed, the [complaint] pleads more than negligence on the part of the City of Lansing. The word "refused” denotes more than a "want of care in maintenance” or neglect. In this context, "refused” describes an alleged deliberate act by the governmental agency to create the complained-of condition. [Rosario, supra, p 143.]
We agree with Landry that an omission to act can constitute an intentionally created nuisance.
We now consider the propriety of granting summary judgment under GCR 1963, 117.2(1). In scrutinizing the legal basis of the pleadings, a court must take the factual allegations and reasonable inferences therefrom as true. Martin v Michigan, 129 Mich App 100; 341 NW2d 239 (1983). If no factual development can support the claims, summary disposition is proper. Id.
Plaintiffs claim that defendant intentionally created and maintained a structure that presented a danger to the public. The complaint further alleges that defendant knew of the specific danger, since the Potter boy drowned in the vicinity of the box section and members of the public petitioned defendant to improve the dam. Plaintiffs cite several omissions on the part of defendant, including the failure to erect a grating over the conduit’s opening, provide proper warnings, and implement safety regulations. Although the amended complaint does not contain the word "nuisance,” and may not represent perfection in drafting, the elements of intentional nuisance are alleged.
Accordingly, we conclude that plaintiffs state a claim which evades the defense of governmental immunity.
We now consider the question of whether the recreational use statute prevents a cause of action for intentional nuisance under the facts of this case. That statute provides:
No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee. [MCL 300.210; MSA 13.1485.]
In Burnett v City of Adrian, 414 Mich 448, 456; 326 NW2d 810 (1982), the Court concluded that wilful and wanton misconduct can exist where an omission to act evidences an indifference to whether harm will result:
Upon careful examination of the allegations of the plaintiffs’ fourth amended complaint, conceding the truth of all the well-pleaded allegations and resolving all inferences properly to be drawn therefrom in plaintiffs’ favor, we are satisfied that, on the whole, the plaintiff has alleged, if barely, facts essentially equivalent to an assertion that the City of Adrian, in its acts and omissions, was indifferent to the likelihood that catastrophe would come to a member of the public using the lake, an indifference essentially equivalent to a willingness that it occur.
Similarly, in the case at bar, we believe that plaintiffs’ allegations of defendant’s failure to act following the Potter boy’s drowning and the subsequent public outcry constitute an allegation of wilful and wanton misconduct which, if proved, removes this case from the scope of the rus.
Accordingly, we conclude that plaintiffs did state a claim upon which relief can be granted and that the trial court erred in granting summary judgment to defendant.
Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction not retained. Costs to plaintiffs.
Bronson, P.J., concurred.
We note that a conflict exists in this Court over this issue. Compare Ford v Detroit, 91 Mich App 333; 283 NW2d 739 (1979), with Veeneman, supra. We believe that Veeneman more accurately interprets Rosario and Gerzeski and that Justice Moody’s opinions in those two cases remain the best statement from the Supreme Court on the issue.
Indeed, it is likely that virtually any intentional nuisance which escapes the application of governmental immunity also escapes the rus defense. | [
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Neff, J.
Plaintiff Phillip M. Feaster, for himself and as next friend of Deonte Carpenter, appeals as of right from an order of the circuit court granting summary disposition to defendant and dismissing plaintiffs complaint, which challenged defendant’s residency requirement. We affirm.
i
The facts in this case are not seriously in dispute. In January 1993, Deonte Carpenter, a fourteen-year-old boy, lived with his mother, Angella Carpenter, in South Carolina. Because Ms. Carpenter felt she could not provide Deonte with a suitable home environment, she executed a power of attorney delegating her powers of care and custody to plaintiff Feaster, Ms. Carpenter’s brother, and sent Deonte to live with Feaster, a resident of Portage, Michigan. Feaster then attempted to en roll Deonte in West Middle School, one of defendant’s schools.
In response to Feaster’s request to enroll Deonte, defendant sent Feaster a January 11, 1993, letter stating that, pursuant to the power of attorney signed by Ms. Carpenter, defendant would permit Deonte to attend West Middle School through March 11, 1993, at which time Feaster would be required to supply documentation indicating that a "more permanent arrangement” had been made.
This letter was based on defendant’s policy no. 5118, entitled "Residency of Students.” The specific provision on which defendant relied provides:
A student must be a resident Of the District as defined by the then-existing laws of the State of Michigan to be eligible for enrollment. A student may be eligible for residency under any of the following circumstances:
4. The student resides with individuals who have legal guardianship as determined by a court of competent jurisdiction. This guardianship must be established for the purpose of providing the student a suitable home and not for an educational purpose.
A student may be initially enrolled pursuant to a valid power of attorney designating á relative of the student as the individual responsible for providing the student with a suitable home. However, the District does not recognize a power of attorney as giving a student permanent residence in the District, and the individual presenting such power of attorney shall be notified that a reasonable period of time will be given to establish the aforementioned legal guardianship.
Despite the January 11, 1993, letter, Feaster believed that the power of attorney was sufficient to continue Deonte’s enrollment. On March 11, 1993, a representative of defendant made telephone contact with Feaster and ultimately extended the deadline for Feaster to obtain the proper documentation by one week. Again, Feaster did nothing.
On March 17, 1993, defendant discontinued Deonte’s enrollment at West Middle School. By agreement of the parties, however, Deonte was permitted to complete the 1992-93 school year at the same school.
Plaintiff then filed his complaint, alleging, among other things, that the power of attorney was sufficient to establish Deonte’s residency, and that defendant’s policy no. 5118(4) denied the constitutional rights of due process and equal protection of the law to what plaintiff termed was the "fundamental right” to a free public school education.
Defendant answered and filed its motion for summary disposition under MCR 2.116(C)(10), arguing that policy no. 5118(4) was created in order to allow defendant to comply with state law requirements that it charge and collect tuition from nonresident pupils. According to defendant, because it did not have the resources to investigate each student, it chose to require legal guardianship as a means of ensuring that the statutory residency conditions were met. This scheme, defendant asserted, passed constitutional muster because education is not a fundamental right, and requiring legal guardianship is rationally related to ensuring residency for the legitimate purpose of collecting tuition from nonresident students. Thus, because plaintiff failed to comply with policy no. 5118(4), defendant argued that it properly dismissed Deonte from the school district and was entitled to judgment as a matter of law.
The circuit court agreed with defendant, holding that because education was not a fundamental right, the constitutionality of defendant’s policy no. 5118(4) should be tested under the rational basis test. The court then found the policy rationally related to the collection of tuition from nonresidents, and thus upheld the validity of defendant’s residency policy. The court further determined that procedural due process rights were not violated. Accordingly, the trial court granted summary disposition to defendant.
ii
Before we consider the constitutionality of defendant’s policy no. 5118(4), we must address plaintiffs argument that defendant lacked the authority to promulgate that policy. We find that defendant had the authority to promulgate this rule.
Because this matter involves a question of law, we review de novo the lower court’s determination. Westchester Fire Ins Co v Safeco Ins Co, 203 Mich App 663, 667; 513 NW2d 212 (1994).
Plaintiff argues that by creating policy no. 5118(4), defendant improperly created its own definition of residency. Plaintiff argues that defendant’s residency policy is not consistent with MCL 380.1148; MSA 15.41148, which plaintiff claims defines residency as follows:
Except as provided in section 1711, a child . . . whose parents or legal guardians are unable to provide a home for the child and who is placed in a licensed home or in a home of relatives in the school district for the purpose of securing a suitable home for the child and not for an educational purpose, shall be considered a resident for education purposes of the school district where the home in which the child is living is located. The child shall be ádmitted to the school in the district.
We disagree. School boards, and thus the districts they represent, have the power to make reasonable regulations for the operation of the public schools within the district. MCL 380.1300; MSA 15.41300; Durant v State Bd of Ed, 424 Mich 364, 386; 381 NW2d 662 (1985). MCL 380.1148; MSA 15.41148 provides that a student is a resident if the student is living with a relative for the purposes of securing a suitable home, but not for educational purposes. The statute, however, does not direct how each district is to determine whether a student is living with a relative for the proper purpose. Thus, the statute leaves that determination to the various districts.
Because defendant’s policy no. 5118(4) is merely an attempt by defendant to determine students’ residency pursuant to MCL 380.1148; MSA 15.41148, we find that the trial court properly found defendant to have acted within its statutory grant of powers in promulgating this policy. See Snyder v Charlotte Public School Dist, 421 Mich 517, 528-529; 365 NW2d 151 (1984). Having determined that defendant acted within its statutory authority, we must next determine whether policy no. 5118(4) is constitutional.
in
Plaintiff first challenges the constitutionality of policy no. 5118(4) on the basis that defendant’s policy denied Deonte his fundamental right to a free public education, thus denying him equal protection of the laws. We fail to find any constitutional infirmity in defendant’s residency policy.
A
In order to determine whether the residency policy at issue is constitutional, we must first determine which constitutional test to apply, the rational basis test or the strict scrutiny test. . See People v Sleet, 193 Mich App 604, 605; 484 NW2d 757 (1992).
Plaintiff argues that we should apply the strict scrutiny test, under which defendant’s policy no. 5118(4) would only be upheld if defendant demonstrated that its classification scheme was precisely tailored to serve a compelling governmental interest, because, according to plaintiffs, education is a fundamental right under Michigan’s Constitution. Doe v Dep’t of Social Services, 439 Mich 650, 662; 487 NW2d 166 (1992). Plaintiff, recognizing that the United States Supreme Court held in San Antonio Independent School Dist v Rodriguez, 411 US 1; 93 S Ct 1278; 36 L Ed 2d 16 (1973), that education is not a fundamental right under the United States Constitution, asserts that education is a fundamental right in Michigan under Const 1963, art 8, § 2, which provides, in part, that "[t]he legislature shall maintain and support a system of free public elementary and secondary schools as defined by law.”
There is a conflict in this Court with regard to whether a fundamental right to education exists in Michigan. The majority of panels considering the question have held that, although a free public education is a vitally important service offered by this state, there is no fundamental right to such an education under Michigan’s Constitution. See Palmer v Bloomfield Hills Bd of Ed, 164 Mich App 573; 417 NW2d 505 (1987); East Jackson Public Schools v Michigan, 133 Mich App 132; 348 NW2d 303 (1984); and Sutton v Cadillac Area Public Schools, 117 Mich App 38; 323 NW2d 582 (1982) (opinion by Judge Mackenzie). The lone case to the contrary is Lintz v Alpena Public Schools, 119 Mich App 32; 325 NW2d 803 (1982), which relied, without discussion, on Const 1963, art 8, §2, in finding that a fundamental right exists.
We find that the better-reasoned approach is that taken by the panels represented by Palmer, supra. The Michigan Constitution of 1963 has been held to afford the same equal protection rights as the United States Constitution. Doe, supra at 672; Palmer, supra at 576. As noted above, education is not a fundamental right under the United States Constitution. The mere fact that Const 1963, art 8, mentions education does not alter our decision. The federal constitution ignores education because regulation of education traditionally is a staté function. Palmer, supra.
Accordingly, we resolve the conflict in this Court, and determine that, although a free public education is a vitally important service provided by this state, there is no fundamental right to such an education under our constitution. See, also, Snyder, supra at 525-526. Thus, we apply the rational basis test to determine the validity of defendant’s policy no. 5118(4).
B
Under the rational basis test, we examine defendant’s residency policy to determine whether it creates a classification scheme rationally related to a legitimate governmental purpose. Doe, supra at 662. Further, under this more forgiving test, we do not determine the wisdom, need, or appropriateness of defendant’s residency policy or whether the classification scheme achieves mathematical equality; defendant’s policy no. 5118(4) is presumed to be constitutional. Sleet, supra at 605-607.
Here, it is not argued that the purpose behind defendant’s residency policy is not legitimate. Defendant is required by statute to collect tuition from nonresident students. MCL 380.1401; MSA 15.41401.
The question is whether the means defendant uses to reach its goal of collecting tuition is rationally related to that goal. According to defendant’s proofs below, it does not possess the resources to independently determine whether a potential student meets the statutory residency requirements. Thus, defendant chose to rely on guardianship proceedings because the court could direct the Department of Social Services to investigate the child’s living situation and decide whether the relative was providing a suitable home and not merely a temporary address within a desirable school district.
We find that classifying nonresidents this way— differentiating between those whose relatives have legal guardianship and those whose relatives do not — is rationally related to the collection of tuition from nonresidents. We find defendant’s scheme meets this test because it provides a relatively inexpensive way for defendant to determine whether a student is a resident for statutory purposes. Thus, defendant is able to commit its resources to the primary function of educating children and not to investigating their living arrangements. Also, obtaining legal guardianship, although somewhat more cumbersome than merely obtaining a power of attorney, does not place an onerous burden on the students and their relatives.
c
One aspect of defendant’s residency requirement needs further discussion. As defendant’s representatives testified, the purpose behind the residency statute is to allow for a determination of the reasons behind a child’s placement within defendant’s district. After a review of the statutory guardianship requirements, we conclude that defendant intended to require limited guardianship under MCL 700.424a; MSA 27.5424(1), rather than regular guardianship under MCL 700.424; MSA 27.5424.
For a person to obtain regular guardianship over a minor, the minor’s parents must either have had their parental rights terminated or have allowed the minor to reside with another without providing that person with the legal authority for care and maintenance of the minor. MCL 700.424(3); MSA 27.5424(3).
On the other hand, to obtain limited guardianship, the only requirements are that (1) the parent consents to the appointment of a limited guardian, (2) the parent consents to a suspension of parental rights, and (3) the court approves a limited guardianship placement plan agreed to by both the proposed limited guardian and the parent. MCL 700.424a(l); MSA 27.5424(1)(1).
We conclude that obtaining limited guardianship is the procedure on which defendant intended to rely. The limited guardianship prerequisites more accurately reflect the circumstances in which students such as Deonte are involved. Accordingly, we construe defendant’s policy no. 5118(4) in accordance with defendant’s intent and find that it requires limited guardianship rather than regular guardianship. See Attorney General v Lake States Wood Preserving, Inc, 199 Mich App 149, 155; 501 NW2d 213 (1993), and In re Marin, 198 Mich App 560, 564; 499 NW2d 400 (1993).
D
In finding defendant’s residency policy to be constitutional, we stress that we are not finding that defendant utilized the best method for determining residency; rather, we merely conclude that the method chosen by defendant meets the rational basis test. Accordingly, we find no equal protection violation in defendant’s policy no. 5118(4).
IV
Plaintiff also challenges defendant’s residency policy on grounds of substantive due process, asserting that defendant’s residency policy creates an unconstitutional irrebuttable presumption that a child living with a relative, where legal guardianship has no¡t been established, is not a resident. We find no violation of substantive due process in defendant’s residency policy.
Claimed violations of substantive due process require the judiciary to review the government’s ability to restrict freedom of action with respect to life, liberty, and property. US Const, Am XIV; Const 1963, art 1, § 17; Hobbins v Attorney General, 205 Mich App 194, 210; 518 NW2d 487 (1994), rev’d and remanded on other grounds sub nom People v Kevorkian, 447 Mich 436; 527 NW2d 714 (1994).
We test the constitutionality of defendant’s residency policy in the context of a substantive due process claim using the rational basis test. See Katt v Ins Bureau, 200 Mich App 648, 650; 505 NW2d 37 (1993). For the reasons stated in our discussion of plaintiffs’ equal protection claim, we conclude that defendant’s residency policy meets the rational basis test.
V
Finally, plaintiff challenges the manner in which Deonte’s enrollment was rescinded. Plaintiff argues that, because no formal hearing was held, Deonte’s rights to procedural due process were violated. We disagree.
In Verbison v Auto Club Ins Ass’n, 201 Mich App 635, 641; 506 NW2d 920 (1993), this Court confirmed that rudimentary procedural due process requires (1) notice, (2) an opportunity to defend, (3) a hearing, and (4) a written, although relatively informal, statement of findings. This Court, however, found no' constitutional violation where the plaintiff did not receive a hearing or a written statement of findings. Id. The Court concluded that even if the plaintiff received a hearing and a written statement of facts, the outcome in that case would not have been different.
Here, there can be no dispute that plaintiff received notice of defendant’s intent to rescind Deonte’s enrollment. We also conclude that all of the facts necessary to determine the outcome of this issue were known to both parties. Plaintiff Feaster received written notification on January 11, 1993, that the power of attorney was not sufficient to allow Deonte to be enrolled permanently, and he was contacted by telephone and a letter on March 11, 1993, at which time he was granted an extension of the period within which to supply documentation of a guardianship.
Accordingly, we conclude that, because holding a hearing or requiring a written statement of facts would not have altered the outcome in this case, the lack of these proceedings did not result in a violation of rights to procedural due process. Verbison, supra.
vi
Because defendant acted within its power in creating policy no. 5118(4), and because that residency policy is constitutional, we find that the trial court properly granted summary disposition to defendant.
Affirmed.
Mackenzie, P.J., concurred.
Deonte’s name is spelled various ways throughout the pleadings in this case. We choose the spelling found on Angella Carpenter’s power of attorney, dated January 6,1993.
The power of attorney provided as follows:
I [Angella Carpenter] am the mother of Deonte Carpenter (Born 3-6-79). By signing this power of attorney, I am delegating all of my powers regarding the care custody and property of my son, deonte carpenter, to my Brother, phiijjp feaster .... I am delegating these powers to phillip feaster so that I can secure a suitable home for my son. I understand that the powers I have delegated do not include the power to consent to marriage or the power to consent to adoption.
This Power of Attorney is executed pursuant to authority in the Michigan Probate Code located at MCLA 700.405; MSA 27A.5405. It is intended to be effective when signed, and shall remain in effect, unless terminated by me, for a period of time not to exceed six (6) months.
There is no question that the requisite state action exists for the purposes of this constitutional analysis because defendant is an agency of the state. East Jackson Public Schools v Michigan, 133 Mich App 132, 139; 348 NW2d 303 (1984).
Plaintiff does not argue that Deonte is a member of a suspect classification.
Plaintiff relies on Goss v Lopez, 419 US 565, 573; 95 S Ct 729; 42 L Ed 2d 725 (1975), to claim that a free public education is a property right to which due process protection is afforded. | [
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Per Curiam.
This is a forfeiture action. The intervening claimants appeal as of right from the trial court’s grant of plaintiffs motion for summary disposition under MCR 2.116(C)(10). We affirm.
The intervening claimants are police officers who were shot during a raid on a suspected drug house. They obtained judgments against the owner of the currency, claimant Kevin Eugene Johnson, and filed a lien with the seizing agency. They then intervened in this forfeiture action in an effort to assert their lien.
The officers first argue that, because their interest in the currency assertedly arose before the government’s interest, the trial court erred in finding that plaintiffs interest in the currency was superior to theirs. See Cheboygan Co Construction Code Dep’t v Burke, 148 Mich App 56, 59; 384 NW2d 77 (1985). We disagree.
The government may seize property that is "subject to forfeiture” as defined by the statute. See MCL 333.7522; MSA 14.15(7522). Whether something is "subject to forfeiture” is determined by reference to acts that occurred before the seizure. See MCL 333.7521; MSA 14.15(7521). Thus, the statute contemplates that the government’s forfeiture interest in the property arises, at the latest, at the time the property is seized.
Other sections confirm that the time of seizure is when the government’s right of forfeiture arises. For example, MCL 333.7523(1); MSA 14.15(7523X1) requires forfeiture proceedings to be instituted promptly after the seizure. Similarly, MCL 333.7525; MSA 14.15(7525) allows summary forfeiture upon seizure of certain property.
By contrast, the validity of competing claims of ownership is determined by whether the property became "subject to forfeiture” by reason of acts "committed or omitted without the owner’s knowledge or consent.” See MCL 333.7521(l)(d)(ii), (f); MSA 14.15(7521)(l)(d)(ii), (f) (conveyances and things of value); see also MCL 333.7523(3); MSA 14.15(7523X3) (real property). Because the property becomes "subject to forfeiture” before the seizure, this section clearly presupposes that competing ownership rights must exist, if at all, before the seizure. Thus, both the validity of the government’s claim and the validity of competing claims is determined by reference to facts occurring before the seizure.
Here, the government’s forfeiture interest arose, at the latest, at the time of the seizure. On the other hand, the officers’ interest did not arise until a judgment lien was filed. Therefore, the trial court properly found that the government’s interest had priority over the officers’ interest.
In re Forfeiture of $11,800, 174 Mich App 727, 730-731; 436 NW2d 449 (1989), the only authority relied upon by the officers, is distinguishable. In that case, part of the currency seized belonged to the employer of the claimant, who was the person with whom the suspected drug trafficker had been staying. Id. at 728. The cash was taken by the drug trafficker without the knowledge or consent of either the employer or the employee and was then seized by the government. Id. at 728-729. The claimant’s employer clearly had an innocent ownership interest that predated the seizure.
The employee/claimant merely stepped into the shoes of his employer when he reimbursed the employer following the seizure. Id. at 729-730. Additionally, as bailee for his employer, the claimant had a recognizable possessory interest in the money even before he reimbursed his employer. Id. at 729.
Unlike in $11,800, the claim asserted in the present case arose after the seizure. The officers’ interest is unsupported by any possessory interest existing before the seizure. Therefore, the trial court properly held that the officers’ interest did not have priority over the government’s interest in forfeiture.
Next, the officers argue that the forfeiture action should have been dismissed because the government did not institute forfeiture proceedings "promptly” after the seizure as required by the statute. See MCL 333.7523(1); MSA 14.15(7523X1). They also argue that the failure to institute proceedings promptly deprived them of due process. We disagree.
In determining whether a forfeiture proceeding was instituted promptly, this Court must consider " 'the lapse of time between seizure and filing of the complaint, the reason for the delay, the resulting prejudice to the defendant and the nature of the property seized.’ ” In re Forfeiture of One 1983 Cadillac, 176 Mich App 277, 280-281; 439 NW2d 346 (1989), quoting Dep’t of Natural Resources v Parish, 71 Mich App 745, 750; 249 NW2d 163 (1976). Whether the government’s three-month delay in this case was reasonable is a close question. See 1983 Cadillac, supra at 278-279, 281-283 (four-month delay was unreasonable); but see People v One 1979 Honda Automobile, 139 Mich App 651, 657; 362 NW2d 860 (1984) (2%-month delay was not unreasonable). Further, there is no explanation for the delay apparent from the record.
However, the officers did not obtain an interest in the property until they filed their lien thirteen days before the forfeiture proceeding was commenced. Therefore, the officers did not suffer any prejudice or due process violation by reason of the delay. Compare 1983 Cadillac, supra at 282 (claimant continued making car payments during the four-month delay in order to protect his interest). Additionally, unlike the vehicle in 1983 Cadillac, the cash involved here is not a wasting asset. Id. The trial court did not err in refusing to dismiss the action on this basis.
The officers next argue that, because the forfeiture statute does not protect postseizure lien holders and crime victims, it is contrary to public policy and should be stricken. Alternatively, the officers argue that the innocent owners exception should be construed to encompass innocent victims of crime. We again disagree.
The statute protects only the rights of innocent owners. See MCL 333.7521(l)(d)(ii), (f); MSA 14.15(7521)(l)(d)(ii), (f); MCL 333.7523(3); MSA 14.15(7523)(3); compare MCL 600.4708(1); MSA 27A.4708(1) (proceeds from seized property are to be used to compensate victim). However, the failure to protect crime victims does not render the statute voidable. The Legislature need not deal with every aspect of a problem at the same time. O’Donnell v State Farm Ins, 404 Mich 524, 543; 273 NW2d 829 (1979).
The officers further argue that the statute is unconstitutional as written and as applied. Specifically, they argue that they were deprived of prop erty without due process by the statute’s failure to require that postseizure lien holders be notified when forfeiture proceedings are filed. Additionally, the officers argue that the statute deprives them of equal protection because it protects some ownership interests and not others. These arguments have no merit.
"Statutes are presumed constitutional, and courts have a duty to construe a statute as constitutional unless unconstitutionality is clearly apparent.” Derrick v Detroit, 168 Mich App 560, 563; 425 NW2d 154 (1988). With regard to the equal protection challenge, "[t]he mere fact that the Legislature has chosen to draw a distinction” between owners and postseizure lien holders "does not mean that [the statute] is unconstitutional.” O’Donnell, supra at 547. "If this distinction is supported by a rational basis, then it passes constitutional muster.” Id.
One of the goals of the statute was to make drug dealing unprofitable. However, subjecting innocent people to having their property forfeited on the basis of the acts of others would be unfair and would not deter drug dealing. On the other hand, such unfairness does not arise from a refusal to allow enforcement of a postseizure judgment lien such as this one, which arose with full knowledge that the property was subject to forfeiture and which was not based upon any preseizure claim of innocent ownership. Thus, the distinction has a rational basis and therefore passes constitutional muster.
With regard to the due process challenge, the statute does require notice to persons with ownership interests and therefore is not unconstitutional on its face. Derrick, supra at 563; compare People v Campbell, 39 Mich App 433, 438-440; 198 NW2d 7 (1972) (actual notice insufficient where statute did not require that notice be given). We agree that, in order to allow a court to determine the validity of a claim of ownership, the notice provision should be construed to require notice to parties who have claimed an ownership interest by filing a lien on the seized property. See Campbell, supra at 440. However, plaintiffs failure to give notice in this case does not require reversal because the officers had actual notice and an opportunity to be heard and therefore the error was harmless. MCR 2.613(A).
Affirmed.
Although the caption in the trial court states that the prosecutor was proceeding on behalf of the People of the State of Michigan, the statute and the court’s order below make it clear that the action was brought on behalf of the seizing agency, the City of Detroit Police Department. See MCL 333.7523(1); MSA 14.15(7523X1); see also MCL 333.7524; MSA 14.15(7524).
We reject the contention that an inchoate property interest in the cash arose at the time the officers were shot, before the seizure. At most, a right to sue arose at the time of the shooting. A property right in the cash did not arise, if at all, until the lien was filed and certainly no earlier them the judgment, both of which occurred after the seizure.
We do not reach the question whether the officers had standing to challenge the timeliness of the forfeiture action. | [
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Per Curiam.
In this workers’ compensation case defendants, Ford Motor Company and the Silicosis & Dust Disease Fund, appeal by leave granted from a Workers’ Compensation Appeal Board order requiring defendants to pay plaintiff death benefits due to the death of her husband. We reverse the award of death benefits and hold, based on the factual findings of the appeal board, that plaintiff did not establish the necessary proximate causal connection between decedent’s work-related injury and later death to entitle her to death benefits under MCL 418.375; MSA 17.237(375).
Plaintiffs decedent worked for defendant Ford Motor Company at its Dearborn foundry from 1928 until January 31, 1969. In July, 1970, the Bureau of Workers’ Compensation determined that decedent had developed a compensable work-related injury, i.e., silicosis and emphysema. Decedent received compensation benefits from February 1, 1969, until the date of his death on October 14, 1974. The immediate cause of his death was carcinoma of the right lung with metastases to the brain and femur.
On May 20, 1977, plaintiff filed a petition for a hearing to determine her entitlement to worker’s compensation death benefits. The petition alleged that decedent’s exposure to atmospheric pollutants caused his silicosis which in turn caused his cancer and death. After a hearing the hearing officer ruled that plaintiff was not entitled to benefits because she had not shown that decedent’s silicosis and emphysema were a cause or contributing cause of his death. A majority of the Workers’ Compensation Appeal Board reversed that decision on October 19, 1984, ruling that although plaintiff had failed to establish by a preponderance of the evidence that decedent’s carcinoma was caused by his exposure to atmospheric pollutants at work, plaintiff was nevertheless entitled to benefits because she had shown that decedent’s death was related to his uncontested work-related disability, i.e., silicosis and emphysema.
Defendant Ford Motor Company first argues on appeal that the appeal board majority applied the wrong standard of causation in reaching its conclusion that the cancer was related to the silicosis. We agree. A dependent’s right to compensation benefits, where there has been a death not immediately following the injury, is governed by § 375 of the Workers’ Disability Compensation Act, MCL 418.375; MSA 17.237(375), which provides in pertinent part:
(1) The death of the injured employee prior to the expiration of the period within which he or she would receive such weekly payments shall be deemed to end the disability and all liability for the remainder of such payments which he or she would have received in case he or she had lived shall be terminated, but the employer shall thereupon be liable for the following death benefits in lieu of any further disability indemnity.
(2) If the injury received by such employee was the proximate cause of his or her death, and the deceased employee leaves dependents, as hereinbefore specified, wholly or partially dependent on him or her for support, the death benefit shall be a sum sufficient, when added to the indemnity which at the time of death has been paid or becomes payable under the provisions of this act to the deceased employee, to make the total compensation for the injury and death exclusive of medical, surgical, hospital services, medicines, and rehabilitation services furnished as provided in sections 315 and 319, equal to the full amount which such dependents would have been entitled to receive under the provisions of section 321, in case the injury had resulted in immediate death. Such benefits shall be payable in the same manner as they would be payable under the provisions of section 321 had the injury resulted in immediate death. [Emphasis added.]
A plain reading of this provision clearly provides that where, as here, the employee dies after there has been an adjudication of workers’ compensation liability and payment of those benefits, in order for the employee’s dependents to continue to receive workers’ compensation benefits, it must be shown that the work-related injury received by the employee was the proximate cause of his death.
The appeal board majority did not apply the proximate cause standard in determining that plaintiff was entitled to benefits. Rather it applied the more lenient "any contribution or aggravating factor” standard set forth in cases decided under §301 of the act, which applies to claims for compensation benefits where the claim follows immediately after the work-related injury. MCL 418.301; MSA 17.237(301). However § 301 does not expressly require a proximate causal connection between the employment and the injury as § 375 does between the employment-related injury and a death subsequent to an adjudication of workers’ compensation liability.
Section 301(1) provides:
An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act. In the case of death resulting from the personal injury to the employee, compensation shall be paid to the employee’s dependents as provided in this act. Time of injury or date of injury as used in this act in a case of a disease or in the case of an injury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions that resulted in the employee’s disability or death.
In light of the express language of § 375, which requires plaintiff to show that her husband’s work-related disability, i.e., silicosis and emphysema, was the proximate cause of his death, we conclude that the appeal board majority erred in failing to apply that standard. The Legislature apparently intended to impose a stricter standard of causation in those cases where a death results sometime after the initial injury and determination of entitlement to benefits. The appeal board’s action in applying the more lenient standard contravenes the statute’s clearly expressed mandate.
Defendant Ford Motor Company next argues that the record and the appeal board’s findings do not establish the necessary proximate cause. We agree. The Supreme Court has recently defined proximate cause as "that which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, without which such injury would not have occurred.” McMillian v Vliet, 422 Mich 570, 576; 374 NW2d 679 (1985).
A critical issue at the hearing was whether the cancer was caused by the silicosis or decedent’s 45-year cigarette-smoking habit. Dr. Mozen, a thoracic surgeon, testified that atmospheric pollutants, which could include the cigarette smoke, silica and other pollutants, were a significant factor in the development of decedent’s cancer. He felt that the cigarette smoking and the other pollutants would have an additive effect and that the sum of the two would probably be worse for the individual than either alone. However, he was unable to weigh the respective adverse effect of either factor in the absence of information on the concentration and length of time of exposure.
Dr. Spitz, Chief Medical Examiner for Wayne County and a board-certified pathologist, testified that silicosis "does not predispose to the development of cancer.” In his opinion "the part played by cigarette smoke in this case by far outweighed that of the hypothetical exposure to cancer causing industrial pollutants.”
The appeal board majority agreed with its dissenting member that plaintiff had failed to establish by a preponderance of the evidence that decedent’s cancer was caused by work exposure to industrial pollutants. The majority also accepted Dr. Spitz’s testimony that silica had not been established as a carcinogen and that decedent’s cancer "was a likely result of his cigarette smoking habit.” Nevertheless, the majority found that decedent’s exposure to silica and his resultant silicosis was a contributing factor in his death, apparently on the basis of speculative testimony by Dr. Spitz that, given the presence of silica, exposure to other possible unnamed carcinogenic pollutants could not be categorically ruled out. However, there was no testimony establishing decedent’s exposure to industrial pollutants other than silica, which the board found was not a carcinogen.
Accepting the board’s findings that plaintiff had not established by a preponderance of the evidence that decedent’s cancer was caused by his work-related silicosis, that silica had not been shown to be a carcinogen, and that the cancer was "a likely result” of his smoking habit, we conclude that plaintiff did not establish the necessary proximate causal connection between the employment-related disability and decedent’s death five years later, pursuant to § 375 of the Workers’ Disability Compensation Act. Had the appeal board majority applied the correct standard of causation to their findings they ineluctably would have had to conclude from these findings, as did the dissenting member, that plaintifF had not established the necessary causal nexus. Accordingly, we find it unnecessary to remand this case to the appeal board for reconsideration of causation applying the appropriate standard. We conclude that plaintiff was not entitled to death benefits under § 375.
Defendants have raised three other issues on appeal, the first two concerning the appeal board’s calculation of the amount and duration of benefits, and the third concerning whether plaintiff had timely filed her application for compensation benefits. We agree with defendants on the first two issues and disagree with defendants on the third issue. However, in view of our disposition of the issues discussed above, we do not deem it necessary to discuss these other claims of error.
Reversed. | [
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Per Curiam.
Following a preliminary examination, defendant was bound over to Recorder’s Court for trial on a charge of possession of heroin, fifty grams or less, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv). The people appeal as of right from an order by Recorder’s Court Judge Michael F. Sapala granting defendant’s motion to suppress certain evidence and dismiss the information. We reverse and remand.
The only testimony given at an evidentiary hearing on defendant’s motion was by Police Officer James Kean. He indicated that on November 14, 1984, Officer Kean, Officer Matuzack, and Officer Denardo were sent to the area of Van Court and Tireman in the City of Detroit in response to a complaint of dope trafficking. The officers were in plain clothes and driving an unmarked car. After observing people on the corner of Van Court and Tireman, the officers parked their car. Officer Kean had observed narcotics activity several times earlier that day on the same corner. When Officer Kean rounded the corner, he observed defendant, who was ten feet away, holding several pink coin envelopes. When Kean yelled "police,” defendant dropped several pink coin envelopes and fled. Officer Kean pursued and eventually apprehended the defendant. Officer Kean testified that he believed that the pink coin envelopes the defendant dropped contained heroin. When asked how many times he had seen heroin packaged in this manner, he replied, "hundreds.” Subsequent examination of the packets revealed that they indeed contained heroin.
Based upon the above testimony (which the judge found to be "absolutely credible”), and relying primarily on People v Terrell, 77 Mich App 676; 259 NW2d 187 (1977), the court ruled that the narcotics evidence was inadmissible as the product of illegal police conduct and accordingly ordered the evidence suppressed and the case dismissed.
Appellate review of grants or denials of motions to suppress evidence is made using the "clearly erroneous” standard. People v Burrell, 417 Mich 439; 339 NW2d 403 (1983); People v Jackson, 123 Mich App 423; 332 NW2d 564 (1983). A finding is clearly erroneous where, although there is evidence to support it, the reviewing court is firmly convinced that a mistake has been made. People v Goss, 89 Mich App 598; 280 NW2d 608 (1979). The narrow issue presented in this case is whether under these circumstances the police were justified in attempting a stop of defendant. If the answer is in the negative, then the narcotics evidence was properly held inadmissible under the fruit of the poisonous tree doctrine. People v Shabaz, 424 Mich 42; 378 NW2d 451 (1985). If, on the other hand, the answer is in the affirmative, then no unreasonable police conduct occurred, and the court’s ruling must be reversed. We find that on these facts the police were justified in attempting to stop defendant, and that the trial court clearly erred in reaching a contrary conclusion.
An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Thus, "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot,” 392 US 30, evidence seized as the result of a limited search may be properly introduced against the person from whom it was taken. Under the circumstances here presented, it is clear that Officer Kean’s observation of defendant holding the coin envelopes provided him with a reasonable belief that criminal activity was afoot.
In Wayne Co Prosecutor v Recorder’s Court Judge, 100 Mich App 518; 299 NW2d 63 (1980), a police officer was allowed to enter a motel room, where he observed a plastic bag containing coin envelopes on a bed. No other suspicious activity was observed. The officer seized the envelopes, which contained heroin. The defendant’s motion to suppress the evidence was granted below. A majority of this Court reversed, stating:
[W]e believe the point on which this case turns is the testimony of the arresting officer, who stated that he had encountered coin envelopes of the type seized here 800 or 900 times in the same general area during his experience as a police officer and that such envelopes usually contained heroin. Based on this testimony, which is additionally supported by a countless number of cases yearly confronting both the trial and appellate bench, it is or should be clear by now that coin envelopes of the sort seized from the defendant are not simply innocuous, folded pieces of paper. [100 Mich App 519-520.]
Similarly, in People v Ridgeway, 74 Mich App 306, 314; 253 NW2d 743 (1977), lv den 401 Mich 831 (1977), this Court concluded that an arresting officer had probable cause to believe that a tinfoil packet observed on the defendant’s car floor contained a controlled substance. In support of this position, the Ridgeway panel stated that the strongest support for a finding of probable cause was the arresting officer’s knowledge that tinfoil packages like the one discovered on the defendant’s car floor often contained narcotics.
In Wayne Co Prosecutor v Recorder’s Court Judge, 101 Mich App 772, 777-778; 300 NW2d 516 (1980), this Court again recognized that coin envelopes are commonly used in drug trafficking. We stated:
We find that the arresting officer’s observations of the two defendants, his duties as a narcotics officer, his experience and knowledge of the common use of coin envelopes in drug trafficking, his personal observation of the actual delivery and exchange of currency, and the fact that this incident occurred in an area known for its high narcotics activity, were clearly sufficient to support a finding of probable cause. Thus the examining magistrate abused her discretion in failing to bind defendants over as charged.
People v Terrell, supra, upon which the trial court relied, is distinguishable from the instant case. In Terrell, the only facts which could provide the police with a reasonable belief that criminal activity may have been afoot was the fact that defendant reached into his pocket and fled after observing the police. In this case, in contrast, the officer had far more than a mere furtive gesture upon which to base his suspicion of criminal activity, as the above-cited cases demonstrate. Officer Kean testified that he believed that the pink coin envelopes defendant held contained heroin because he had seen heroin packaged in this manner "hundreds” of times before. Officer Kean’s observation of defendant holding and then dropping the envelopes, his experience and knowledge that coin envelopes often contained narcotics, his personal observation of narcotics activities on that corner earlier that day, and citizen complaints of heavy drug trafficking on that corner were clearly sufficient to support a finding that the attempted stop was legal.
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Per Curiam.
Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to a prison term of from five to twelve years. Defendant appeals as of right.
Defendant was arrested while he was aiding and abetting in the commission of an armed robbery of a Grosse Pointe Farms pharmacy. Defendant, a self-admitted narcotics addict, testified that at 8:30 a.m. on December 24, 1984, he received a phone call from his friend, Kenneth Briggs. Briggs asked defendant to pick him up and drive him to the pharmacy where they intended to procure Dilaudid, a narcotic, with a false prescription. For his efforts, defendant was to receive ten Dilaudid tablets. Defendant had participated in such ventures in the past and agreed to accompany Briggs. Defendant denied having any knowledge that Briggs had a gun or was intending to commit an armed robbery.
The two men arrived at the pharmacy around 10:30 a.m. At first they were reluctant to enter because several customers were already inside and they feared that the pharmacist would refuse to fill their suspiciously large prescription while other customers were present. Once the store cleared, Briggs left the truck and went inside. Briggs approached the pharmacist and pulled a gun from under his coat. He demanded the drug and the pharmacist gave him an unopened box of Dilaudid. Briggs ordered the pharmacist to the floor and ran out of the store, where he and defendant were immediately apprehended by the police.
Following his arrest, Briggs made a statement to the police in which he admitted his participation in the robbery. Briggs testified that he called defendant and asked him to make out a false prescription and drive him to a pharmacy. He had agreed to give defendant some of the drugs for his efforts. Briggs stated further that he concealed the weapon under his jacket and that defendant never saw it.
Briggs pled guilty to armed robbery and felony-firearm in a separate proceeding. He subsequently refused to testify at defendant’s trial, asserting his Fifth Amendment privilege. When defense counsel sought to have Briggs’s statement introduced into evidence under MRE 804(b)(3), the trial court excluded that portion of the statement which tended to exculpate defendant. Defendant argues on appeal that the court erred in excluding the exculpatory statement.
MRE 804(b)(3) provides:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable person in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
In order for a declaration to be admissible under this exception, the statement must be truly against the declarant’s penal interest. People v Williams, 136 Mich App 682, 686; 357 NW2d 741 (1984). In determining whether a statement meets this test, the court must examine the statement in the context in which it was made. If it appears that the declarant had some other motive in making the statement, whether self-interest or otherwise, the declaration should be excluded since it lacks the requisite indicia of reliability that underlies the exception. Williams, supra; People v Blankenship, 108 Mich App 794; 310 NW2d 880 (1981), lv den 412 Mich 857 (1981).
Here, since Briggs was unavailable for trial, defendant sought to admit his statement as an admission against interest. However, our review of the statement reveals that not all of it was a declaration against Briggs’s penal interest. Briggs’s statement that defendant had never seen the weapon did not subject Briggs to criminal liability more serious than that which he already faced. It did not admit to an additional crime or render defendant susceptible to a more severe penalty. While we do not interpret MRE 804(b)(3) to be limited to direct confessions of guilt, the rule should be limited to statements which have or could have a deleterious effect on the declarant’s own interests. Here, the gratuitous statement merely exculpated defendant while leaving Briggs’s position unchanged. Therefore, we find that the exculpatory statement lacked the guarantee of trustworthiness that makes a statement which is truly against penal interest reliable. The trial court did not abuse its discretion by excluding the exclupatory portion of Briggs’s out-of-court statement. See also United States v Marquez, 462 F2d 893 (CA 2, 1972); People v Dortch, 84 Mich App 184; 269 NW2d 541 (1978), lv den 404 Mich 805 (1978).
Defendant also argues that there was sufficient corroboration to clearly indicate trustworthiness. However, an inquiry into the question of sufficiency of corroboration is unnecessary when the trial court finds that as a threshold matter the offered remarks fail to come within the hearsay exception as a "statement against interest” as that phrase is used within MRE 804(b)(3). .
Defendant next claims that the statement was admissible on constitutional grounds citing Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973). In Chambers, the Supreme Court held that it was a denial of due process to exclude hearsay statements against penal interest which bore persuasive insurances of trustworthiness and were critical to Chambers’ defense. Each statement was made spontaneously to a close acquaintance shortly after the murder had occurred, was corroborated by some other evidence in the case, and was in a very real sense self-incriminatory and unquestionably against interest. Moreover, each of the three witnesses was available for cross-examination at trial. Chambers is distinguishable from the present case. Here, the declarant’s collateral exculpatory statement does not bear the persuasive indicia of trustworthiness and is not corroborated by other evidence which is not self-serving. Neither was the declarant available for cross-examination. We do not believe that Chambers requires reversal in this case. See also People v Hawkins, 114 Mich App 714; 319 NW2d 644 (1982); People v Wallach, 110 Mich App 37; 312 NW2d 387 (1981), vacated on other grounds 417 Mich 937 (1983).
Defendant’s next claim on appeal is that the prosecutor impermissibly elicited testimony from the witnesses that at the time of his arrest defendant had no money. We note that defendant failed to object to admission of the evidence, either during the prosecution’s examination of the witnesses or during his closing argument, and our review is limited to determining whether its admission resulted in manifest injustice. People v Bingaman, 144 Mich App 152; 375 NW2d 370 (1984).
Evidence of poverty, dependence on welfare or unemployment is not admissible to show motive or as evidence of a witness’ credibility. People v Johnson, 393 Mich 488; 227 NW2d 523 (1975); People v Henderson, 408 Mich 56; 289 NW2d 376 (1980). It may, however, be admissible in some situations. Henderson, supra. Here, defendant’s theory of the case was that he and Briggs went to the pharmacy with a false prescription intending to buy drugs. In order to refute defendant’s theory, the prosecutor elicited testimony that when defendant and Briggs were arrested they had neither money nor prescriptions. It is clear that this evidence was introduced for the sole purpose of rebutting defendant’s theory of the case. The introduction of the evidence for this limited purpose was not error. Inasmuch as the testimony was properly admitted during trial, the prosecutor’s comments regarding the evidence made during closing argument were also proper.
Defendant’s final argument is that the prosecutor’s comments during closing argument impermissibly shifted the burden of proof to defendant. In support thereof, defendant refers to two comments: one regarding Briggs’ failure to testify at the trial and the other regarding defendant’s inability to account for a one-hour time gap before the robbery. Again, defendant failed to object to the comments, hence, appellate review is precluded unless a miscarriage of justice would result. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977); People v Etchison, 123 Mich App 448; 333 NW2d 309 (1983), lv den 417 Mich 1100.14 (1983).
After reviewing the prosecutor’s comments, we are convinced that they were proper comment on the evidence. A prosecutor is free to comment on the evidence and draw all reasonable inferences therefrom. People v Drew, 83 Mich App 57; 268 NW2d 284 (1978). The prosecutor’s comments were within these bounds. Defendant’s testimony did in fact fail to account for an hour before the commission of the robbery and it was the prosecutor’s theory that defendant and Briggs used this period to plan the crime. In addition, we fail to see how the prosecutor’s comment on Briggs’ absence shifted the burden of proof to defendant. The prosecutor’s remarks were fair comment on the evidence and reversal is not required on this basis.
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Markman, RJ.
Defendant Modular One (hereinafter defendant) appeals as of right the trial court’s grant of plaintiff’s motion for partial summary disposition on the basis that defendant’s liens on certain properties were invalid and unenforceable. We reverse and remand.
I. FACTS AND PROCEEDINGS
This case arises out of plaintiffs action to quiet title to eight residential lots in Flint Township that it purchased through foreclosure. Plaintiff sought to remove defendant’s lien claim with respect to each of the properties. Defendant improved each of the lots with the installation of modular houses, then placed a construction lien on each property before the properties were foreclosed and purchased by plaintiff. Plaintiff asserts that defendant’s hens were invalid because defendant did not possess a statutorily required residential builder’s hcense at the time that it made the improvements on these properties.
Plaintiff moved for summary disposition, contending that defendant’s hens were unenforceable because (1) the lack of a residential builder’s hcense barred defendant from enforcing the hens and (2) the inclusion of nonhenable items in the hen amounts invalidated the hens. Defendant did not file an answer to the motion for summary disposition, but at the hearing regarding the motion it relied on the following defenses: (1) plaintiff lacked standing to challenge the hens and (2) the former owners of the properties had waived the statutory licensing requirement. The trial court granted plaintiff’s motion for summary disposition, reasoning that the hens were unenforceable because defendant did not have a builder’s hcense. The court also determined that plaintiff did have standing to challenge the hens because it was the owner of the properties. We reverse the trial court’s grant of summary disposition.
E. ANALYSIS
This Court reviews decisions concerning motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Stehlik v Johnson (On Rehearing), 206 Mich App 83, 85; 520 NW2d 633 (1994).
MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to [judgment] as a matter of law. A court reviewing such a motion must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the opposing party and grant the benefit of any reasonable doubt to the opposing party. [Id.]
First, we address defendant’s argument that plaintiff did not have standing to challenge the validity of the hens because it was not a party to the construction contract and it did not obtain the rights of the original owners by virtue of its purchase through foreclosure. A construction lien gives the lienor an in rem interest in the property that it has improved. Old Kent Bank of Kalamazoo v Whitaker Constr Co, 222 Mich App 436, 439; 566 NW2d 1 (1997). “Although the proceeding to foreclose on the construction lien originates from the contract, it is an action directed at the property rather than the person or entity who contracted for the services.” Dane Constr, Inc v Royal’s Wine & Deli, Inc, 192 Mich App 287, 292-293; 480 NW2d 343 (1991). Thus, while an action seeking to enforce the provisions of a construction contract would take place between the contracting parties, an action seeking to enforce or to attack a construction hen that arose out of such a contract must take place among those with an interest in the property. Here, plaintiff acquired title to the properties at issue through foreclosure. Pursuant to MCL 600.3236; MSA 27A.3236, a foreclosure sale vests in the purchaser “all the right, title, and interest which the mortgagor had at the time of the execution of the mortgage, or at any time thereafter . . . .” Further, the Legislature codified actions to quiet title and authorized suits to determine competing parties’ respective interests in land in MCL 600.2932(1); MSA 27A.2932(1). VanAlstine v Swanson, 164 Mich App 396, 400; 417 NW2d 516 (1987). Subsection 2932(1) provides as follows:
Any person, whether he is in possession of the land in question or not, who claims any right in, title to, equitable title to, interest in, or right to possession of land, may bring an action in the circuit courts against any other person who claims or might claim any interest inconsistent with the interest claimed by the plaintiff ....
As the owner through foreclosure, plaintiff had title to the property. Because any encumbrance on the property would cloud its title to the property, plaintiff could challenge the validity of any liens clouding its title. Accordingly, the trial court correctly determined that plaintiff could bring this suit to quiet title.
We next turn to the propriety of the trial court’s grant of summary disposition because defendant’s liens were unenforceable. MCL 339.2412; MSA 18.425(2412) provides:
A person or qualifying officer for a corporation or member of a residential builder or residential maintenance and alteration contractor shall not bring or maintain an action in a court of this state for the collection of compensation for the performance of an act or contract for which a license is required by this article without alleging and proving that the person was licensed under this article during the performance of the act or contract.
By its terms, MCL 339.2412; MSA 18.425(2412) prevents an unlicensed contractor from suing to collect a money judgment. Parker v McQuade Plumbing & Heating, Inc, 124 Mich App 469, 471; 335 NW2d 7 (1983). An unlicensed contractor also cannot collect on a counterclaim. Id. However, this statutory language does not deprive an unlicensed builder of all rights. Barbour v Handlos Real Estate & Building Corp, 152 Mich App 174, 184; 393 NW2d 581 (1986). In Parker, supra at 471, this Court held that the statute was intended to protect the public as a shield, not as a sword, and, therefore, does not prohibit an unlicensed contractor from defending a breach of contract suit on its merits. The statute removes only an unlicensed contractor’s power to sue, not its power to defend. Id.
Further, the Supreme Court determined in Kirkendall v Heckinger, 403 Mich 371, 374; 269 NW2d 184 (1978), that, although an unlicensed contractor may not be able to recover on a contract, equity mandated that a contractor be compensated for work that has been performed:
“It is a cardinal principle that equity will not aid a party in doing that which is not equitable. He who seeks equity must be prepared to do equity.” Goodenow v Curtis, 33 Mich 505, 509 (1876).
See, also, Bonninghausen v Hansen, 305 Mich 595; 9 NW2d 856 (1943).
The plaintiffs sought an equitable remedy. Before ordering the conveyance to [plaintiff Dennis Kirkendall], the trial court was obliged to determine the amount the plaintiffs were required to pay the defendants in order to do equity. As the equitable mortgagee, [defendant Carl] Heckinger was entitled as a condition to reconveyance to reasonable expenditures for improvements on the property made with the [plaintiffs’] consent (and in fact with [one plaintiff’s] active participation) while [defendant Carl] Heckinger had title to the property.
This Court also applied this equitable principle to an equitable suit against an unlicensed builder in Green v Ingersoll, 89 Mich App 228, 231-232; 280 NW2d 496 (1979). Relying on Kirkendall, this Court stated:
So too in this case, as noted by the trial judge, it was plaintiffs who first invoked the equity powers of the court. .
. . Although we . . . hold that the court was precluded, under the statute, from granting defendants any relief on their counterclaim, he [sic] was bound to determine the relative equitable rights of all parties in fashioning the appropriate relief.
... If the court determines that plaintiffs are entitled to the equitable relief which they seek, it shall also determine what plaintiffs must pay defendants in order to do equity. [Id. at 237.]
Although defendant here could not maintain an action to enforce its lien because it was unlicensed, MCL 339.2412; MSA 18.425(2412), on the basis of the reasoning of Green and Kirkendall, it appears that plaintiff may nevertheless be required to compensate defendant for its work on the properties. In other words, in order to receive the equitable relief of an unclouded title, Michigan Nat’l Bank & Trust Co v Morren, 194 Mich App 407, 410; 487 NW2d 784 (1992), plaintiff must first do equity. Plaintiff argues that this case is distinguishable from Green and Kirkendall because in those cases, unlike this case: (1) the parties were in contractual privity with each other and therefore had consented to the improvements, (2) a mortgagor/mortgagee relationship existed between the parties, and (3) the parties were in a buyer/seller relationship, Utica Equipment Co v Ray W Mallow Co, 204 Mich App 476, 479, n 1; 516 NW2d 99 (1994). However, in our judgment, a thorough reading of Kirkendall, supra, Green, supra, and Barbour, supra, indicates that none of these factors acts as a bar to requiring that plaintiff first do equity in this case.
First, although the plaintiffs in Kirkendall, supra at 372, asked for and even participated in the construction of the house at issue there, the defendant builder in Green fully constructed the house before plaintiffs entered into the picture and bought the house, Green, supra at 231. Thus, this Court applied the equity principle of Kirkendall in Green without requiring a construction contract or actual consent for the construction. Also, we believe that a requirement of contractual privity would not make sense here, where the focus is upon the property and the equitable value of the work on it, rather than upon any contract to do work. In an equitable action, such as plaintiff’s suit to quiet title, a court ‘“looks at the whole situation and grants or withholds relief as good conscience dictates.’" Morren, supra at 410, quoting Hunter v Slater, 331 Mich 1, 7; 49 NW2d 33 (1951). Therefore, the existence or lack of a contract or a recorded lien should not be the determinative consideration in deciding whether equity requires that a builder be compensated for work on an owner’s property. Whether the owner contracted for the work, or implicitly approved it by buying the property with the builder’s improvements, as here, the owner has benefited at the expense of the builder.
Second, we note that there was no actual mortgage between the parties in either Kirkendall or Green. The trial court in Kirkendall, supra at 373, concluded that the defendant was an equitable mortgagee, which means simply that a “lien [was] required by the facts and circumstances of the parties’ relationship.” 1 Cameron, Michigan Real Property Law (2d ed), § 18.5, p 658. In that case, the key circumstance that mandated a finding of an equitable mortgage was the conveyance of the property by the plaintiff to the unlicensed builder, with reconveyance to take place once the plaintiff had paid for the construction and the improvements made to the property by the builder. Kirkendall, supra at 373. In Green, supra at 232, although the parties discussed a mortgage, it was never executed. Instead, the defendant builder filed a lien against the property for the amount still owing on the house, and the plaintiff sued to remove the lien cloud from the title on the basis of the defendant’s unlicensed status, as here. Unlike Kirkendall, there was not even a finding of an equitable mortgage in Green. Thus, there was no mortgagor/mortgagee relationship between the parties. Similarly, here there appears to be no actual mortgage between the parties. Because the holding in Green, applying the piin ciple of equity, was not based on, nor did it even mention, a mortgage, Green, supra at 237, this factor also does not bar the requiring of equity by plaintiff in this case.
Third, we address the dictum found in a footnote in Utica, supra, requiring a buyer/seller relationship as a prerequisite to equity in an unlicensed contractor case. While we are not constrained to follow this dictum, we also find that the Court in Utica misread the law regarding this issue: Although Kirkendall and Green did involve buyer and seller parties, the Kirkendall equity principle was also applied in Barbour, supra, where the parties did not have a buyer-seller relationship. In that case, the plaintiff owned the land and paid the defendant for the construction of the building upon it and a mortgage to finance the project. Barbour, supra at 180-181. Thus, it appears that this Court has not required a buyer/seller relationship in order to apply the equity principle in this type of case.
Overall, application of the Kirkendall equity principle seems fairly straightforward: Where one party seeks an equitable remedy against an unlicensed builder who has performed residential construction work on property, and circumstances indicate that equity requires that the builder be paid for that work, the party seeking equity must first do equity by compensating the builder. See Green, supra at 237. Here, defendant held hens on plaintiff’s properties that could not be executed because it was an unlicensed builder, MCL 339.2412; MSA 18.425(2412), and plain tiff was fully aware of the recorded liens as well as the improvements before it purchased the properties. We believe that the circumstances in this case warrant application of the equity principle without regard to the existence of a contract, a mortgage, or a buyer/seller relationship. Whether the builder holds a mortgage or a lien, or simply performed work on the property for which collection cannot be made because the builder is unlicensed, the important considerations are whether the plaintiff will benefit through equity at the expense of the defendant builder and thus whether equity requires payment for the work under the particular circumstances of the case. Here, defendant would have been able to sue to collect on the lien but for his unlicensed status, and plaintiff seeks to avoid payment for work on the properties that it knew were still owing at the time that it purchased the properties. In our judgment, under these circumstances, where plaintiff sought to quiet title to its property at the expense of the equitable rights of defendant, as in Kirkendall, Green, and Barbour, plaintiff is required to do equity and pay for defendant’s work on its property before it can receive the equity of an unclouded title.
Applying these principles, we believe that the trial court incorrectly held that defendant’s liens were unenforceable because defendant did not have a builder’s license. As a precondition to resolving plaintiff’s action to quiet title, the court should have determined if defendant was entitled to payment for the work he performed on the property. Because the court concluded only that defendant’s hens were invalid, the court essentially allowed MCL 339.2412; MSA 18.425(2412) to be used as a sword rather than being used as a shield, contrary to this Court’s holdings in Parker, supra at 471; Green, supra at 235-37.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.
Plaintiff moved for summary disposition only against defendant Modular One, because the case relative to defendant Eric Adams was administratively closed because of Adams’ bankruptcy.
In defendant’s brief on appeal, defendant alleges, among other facts, that plaintiff worked with defendant to secure mortgage loans for each of the properties at issue here to be developed by defendant. The implications of this plan on the relationship of the parties are not clear from the allegations before us. However, it appears that at the time of the trial court proceedings in this case, there was a separate pending case in the trial court regarding the relationship between the parties here, the out come of which is unknown to us. For this reason, and because these allegations were not introduced, argued, or decided in the court below, we will not address them for the first time on appeal here.
Plaintiff also argues that defendant’s appeal is moot because it failed to file an action to enforce its claims of lien within one year from the time it recorded its liens pursuant to MCL 570.1117; MSA 26.316(117), and that the inclusion of nonlienable items in the lien amounts invalidated the liens. With regard to the statute of limitations issue, we do not believe that defendant was required to bring a meritless suit in order to preserve its right to receive equity. Because defendant’s liens were unenforceable as a result of his being unlicensed, any suit on his part would have served only to preserve his rights should plaintiff decide to sue defendant in the future. Where a suit is brought in equity and does not rely upon the statute, as here, the statutory limitations period should not, in our judgment, act as an absolute bar, although an equity court may consider all the circumstances of a case in determining equity. In addition, with regard to the lien amount, any recovery by defendant here will be based on equitable principles and reflect the equitable value of his work. It will not be either based on or limited by any contract or statutory considerations. See Kirkendall v Heckinger, 105 Mich App 621, 630; 307 NW2d 699 (1981) (Kirkendall II). We emphasize that it can hardly be said that an unlicensed builder who disregards the statutory licensing requirement and receives equity is thereby in a better position than a licensed builder suing under a contract, inasmuch as the former cannot affirmatively sue or counterclaim for any payments on a mortgage, lien, or contract. See Charles Featherly Constr Co v Property Development Group, Inc, 400 Mich 198; 253 NW2d 643 (1977). An unlicensed builder can only recover money if he is first sued, and the suit is for equitable relief, Kirkendall, supra, and any recovery is limited to the equitable relief judged appropriate by the court, rather than to any amount agreed to in a contract. | [
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Markey, J.
Defendant appeals as of right a declaratory judgment in favor of plaintiffs. We affirm in part and reverse in part.
In 1982, the state of Michigan, through defendant, deeded the wetland at issue to Michigan National Bank (mnb) in exchange for a parcel of land owned by mnb. The deed from the state to mnb included a condition that the land be used for peat farming and that if the condition were violated, the state had the right to reenter and retake the land. Plaintiffs later became owners of the wetland after mnb assigned its mortgage interest in the land to plaintiffs, and plaintiffs foreclosed the mortgage. Plaintiffs seek to construct a 200-acre, $6 million cranberry farm. The construction will consist of, among other things, building dikes, digging ditches, and constructing a reservoir. The proposal also calls for some excavating and filling in of the wetland. Plaintiffs sought, but were denied, a wetland permit from defendant to begin the project, so they initiated the instant declaratory judgment action claiming, inter alia, that the proposed activity was exempt from the permit requirement of the wetland protection act (wpa), MCL 324.30301 et seq.) MSA 13A.30301 et seq., and that the state’s interest in the wetland was void because the condition placed in the deed is of nominal value to the state. The trial court agreed.
i
First, defendant claims that the trial court should have denied plaintiffs’ claims because of plaintiffs’ failure to exhaust the available administrative remedies. We disagree.
Plaintiffs applied for a permit to construct the cranberry farm. Defendant denied the application. Plaintiffs initiated contested case proceedings to challenge the denial of the permit, but before the conclusion of the contested case proceedings, plaintiffs filed the instant action in the circuit court. Michigan courts have long recognized the importance of the doctrine of exhaustion of administrative remedies. Int’l Business Machines Corp v Dep’t of Treasury, 75 Mich App 604, 608; 255 NW2d 702 (1977). Exhaustion of administrative remedies is not an inflexible condition precedent to judicial consideration, however, and will not be required if review of the agency’s final decision would provide an inadequate remedy. Id.
In Inti Business Machines Corp, this Court allowed the plaintiff to seek relief in the circuit court even though the available administrative remedies had not been exhausted because the plaintiff did not challenge the propriety of the agency action taken (declaration of tax liability). Instead, the plaintiff argued that the agency had no authority to take any action in the first place. Because the plaintiff sought to avoid submitting the dispute to the agency procedures, the “very harm that plaintiff seeks to avoid would inevitably occur if plaintiff were required to exhaust administrative remedies before access to judicial review.” Id. at 610. This Court also considered whether the agency’s statutory authority to act was clearly framed for the circuit court, whether extensive findings of fact were unnecessary, and whether a resolution of the issue did not demand special technical expertise. Id.; see also Universal Am-Can Ltd v Attorney General, 197 Mich App 34, 38-39; 494 NW2d 787 (1992) (holding that where the plaintiff claimed that the agency lacked statutory authority to regulate the plaintiff’s activity, “both judicial economy and the interests of justice supported the plaintiff’s actions in filing a complaint in the circuit court for declaratory relief”).
In the case at bar, we believe that plaintiffs’ claim in the circuit court was proper even though they had not exhausted the available administrative remedies. In the circuit court, plaintiffs did not challenge the propriety of defendant’s denial of the permit but sought a declaration that defendant had no statutory authority to require a permit in the first place. Plaintiffs’ argument is that the Legislature exempted the proposed activity from defendant’s regulation. While copious testimony was admitted at trial, the issue was clearly framed for the court as one of law (statutory interpretation) that did not call for extensive findings of fact or technical expertise. Under these circumstances, requiring exhaustion of the available administrative remedies would have been “nothing more than a formal step on the way to the courthouse.” Michigan Supervisors Union OPEIU Local 512 v Dep’t of Civil Service, 209 Mich App 573, 577; 531 NW2d 790 (1995). The trial court therefore did not err in failing to require plaintiffs to exhaust administrative remedies.
n
Next, defendant claims that the trial court improperly ruled that plaintiffs’ proposed activities were exempt from the permit requirements of the WPA. With regard to this issue we agree with defendant.
MCL 324.30304; MSA 13A.30304 prohibits placing fill material in a wetland, dredging or removing soil from a wetland, draining surface water from a wetland, and constructing, operating, or maintaining any use in a wetland without a permit; however, MCL 324.30305; MSA 13A.30305 exempts certain uses from the permit requirement. The exemption at issue here is MCL 324.30305(2)(e); MSA 13A.30305(2)(e) (referred to as the “farming exemption”):
Farming, horticulture, silviculture, lumbering, and ranching activities, including plowing, irrigation, irrigation ditching, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices. Wetland altered under this subsection shall not be used for a purpose other than a purpose described in this subsection without a permit from the department.
The trial court opined that this farming exemption “is not limited in scope to existing farming operations nor limited by the size of the project but includes all activities necessary to commence and to continue farming in a commercially viable manner and to bring land into agricultural production.” We disagree.
The fundamental purpose of statutory construction is to assist the court in discovering and giving effect to the intent of the Legislature. Ansell v Dep’t of Commerce (On Remand), 222 Mich App 347, 355; 564 NW2d 519 (1997). Statutory exceptions operate to restrict the general applicability of legislative language and are strictly construed. See People v Brooks, 184 Mich App 793, 797; 459 NW2d 313 (1990), citing Grand Rapids Motor Coach Co v Public Service Comm, 323 Mich 624; 36 NW2d 299 (1949).
According to Senate Bill Analysis, SB 3, January 17, 1980, and House Legislative Analysis, HB 4049, February 6, 1979, the wpa was intended to enable the state to assume authority to administer the federal Clean Water Act to Michigan’s wetlands. In order for Michigan to assume administration of the Clean Water Act, Michigan’s analogous statute, the wpa, must be enforced in accordance with, and be just as or more stringent than, its federal counterpart. See 40 CFR 233.1(d). The analogous, similarly worded federal farming exemption statute, 33 USC 1344(f), applies only to ongoing, established farming operations; activities that convert an area into farmland or bring an area into farming use are not exempted. See 40 CFR 232.3(c)(1); Avoyelles Sportsmen’s League v Alexander, 473 F Supp 525 (WD La, 1979). Therefore, because the intent behind the WPA was to confer authority over the Clean Water Act, and because in order to assume such authority the wpa must be consistent with, and at least as stringent as, its federal counterpart, the wpa farming exemption must apply only to established uses and not to activities necessary to create new farmland.
The conclusion that the farming exemption was intended to apply to land in established use for agriculture, and was not intended to refer to new farming activities, is also supported by the language of the statutory exemption itself. The farming exemption lists “minor drainage” as an example of a permissible farming activity. According to the definition section of the WPA, MCL 324.30301(b); MSA 13A.30301(b), “minor drainage” refers to activities on “land in established use for agriculture.” Further, it appears that the other examples of permissible farming activities listed in the farming exemption are “activities that would only occur on a continuing basis as part of an ongoing farming or forestry operation.” See Alexander, supra at 535 (interpreting the analogous federal statute in the Clean Water Act, 33 USC 1344[f]).
Also, Michigan courts recognize the principle of statutory construction that express mention in a statute of one thing implies the exclusion of other similar things. Jennings v Southwood, 446 Mich 125, 142; 521 NW2d 230 (1994). The exemption statute, MCL 324.30305; MSA 13A.30305, in the WPA specifically exempts some farm-related construction. Subsection 2(g) allows construction of farm ponds, and subsection 2(i) allows construction of farm roads. No other farm-related construction is specifically allowed. As a result, we are of the opinion that it would be improper to infer that other farm-related construction activities are implied or that the word “farming” implicitly includes construction activities not explicitly enumerated in the exemption statute. In conclusion, the legislative intent behind the wpa, as well as the language of the exemption statute, require us to interpret the farming exemption as applying only to currently existing farmland. Because plaintiffs’ land was not already in agricultural use, the exemption does not apply.
m
Next, defendant claims that the issue whether the state of Michigan’s interest in the land is nominal and unenforceable was barred by res judicata because there was a stipulation in a prior proceeding that the state had an interest in the land superior to plaintiffs. We agree.
Before the instant action, plaintiff Huggett sued the state and a mortgagee seeking to foreclose on the interest of the mortgagee and also asking that the court “enter its order determining the rights of any of [sic] defendants Robert Bolline and State of Michigan and the United States Treasury, if any.” Subsequently, the parties stipulated that the state had an interest superior to any other party at bar. This stipulation was recited in the trial court’s final order, where the trial court ruled, in part, that plaintiffs’ rights were subject to the state’s interests.
Res judicata bars relitigation of claims actually litigated and those claims arising out of the same transaction that could have been litigated. Eaton Co Bd of Co Rd Comm’rs v Schultz, 205 Mich App 371, 376; 521 NW2d 847 (1994). The test for determining whether two claims are identical for res judicata purposes is whether the same facts or evidence are essential to the maintenance of the two claims. Jones v State Farm Ins Co, 202 Mich App 393, 401; 509 NW2d 829 (1993).
Plaintiff Huggett’s complaint in the prior proceedings sought the court’s determination of the state’s rights in the land. Plaintiff Huggett then stipulated the superiority of the state’s interest. In the case at bar, plaintiffs sought to litigate the validity of the condition placed in the deed; however, plaintiff Huggett did not limit the prior proceeding to foreclosure. He specifically asked for a determination of the state’s rights in the land. Because the rights of the state are essentially dependent on the validity of the condition in the deed, the same facts or evidence were essential to the maintenance of both claims, and the validity of the condition could have been litigated in the prior proceeding. It is inequitable to allow plaintiff Huggett to clearly set out a quiet-title claim against the state in a prior proceeding, concede the issue, and then subsequently argue that he did not have the ability to challenge the state’s interest in the first place. Consequently, we find that in the instant action plaintiffs should have been precluded from challenging the state’s interest in the property.
Moreover, even if the doctrine of res judicata did not apply, the condition placed on the land at issue is not nominal, and the state’s interest in the land is enforceable. MCL 554.46; MSA 26.46 provides:
When any conditions annexed to a grant or conveyance of lands are merely nominal and evince no intention of actual and substantial benefit to the party to whom or in whose favor they are to be performed, they may be wholly disregarded, and a failure to perform the same shall in no case operate as a forfeiture of the lands conveyed subject thereto.
In Barrie v Smith, 47 Mich 130, 135; 10 NW 168 (1881), our Supreme Court stated:
The fair construction of this statute is that conditions in a conveyance which evince no intention of actual or substantial benefit to the grantor are merely nominal. Where the observance of the condition is an existing substantial benefit, or its breach works an actual substantial injury to the grantor it cannot be considered as nominal....
Barrie also states that adjoining landowners may place conditions on adjoining lands they transfer to protect their interest in preventing “noxious business from being carried on thereon, or in having it improved in a certain manner.” Id. at 134. We interpret Barrie as holding that adjoining landowners have a special interest in enforcing use conditions placed upon adjoining land they transfer, and that these conditions are not nominal. Because the land at issue adjoins state land, and the state put the condition on land adjoining land it owns, the state has a special interest in enforcing the condition, and the condition is not nominal.
IV
On cross appeal, plaintiffs claim that the state’s interest in the land is unenforceable because it violates the rule against perpetuities. As previously discussed, plaintiffs are precluded from challenging the validity of the state’s interest in the land at issue. Moreover, even if plaintiffs were not precluded from raising this issue, the claim must fail. Generally speaking, rights of entry are not subject to the com mon-law rule against perpetuities, see 61 Am Jur 2d, Perpetuities and Restraints on Alienation, § 47, pp 58-59; 1 Restatement Property (Donative Transfers), 2d, § 1.4 comment c, p 49, and because plaintiffs’ terminable interest was initially created in a conveyance from the state, Michigan’s statutory limitation placed on rights of entry is inapplicable, MCL 554.61; MSA 26.49(11).
Affirmed in part and reversed in part.
Saad, J., concurred.
The contested case proceedings have been held in abeyance pending the resolution of this case.
We acknowledge that while a Senate bill analysis is not an official statement of legislative intent, it is a helpful tool in statutory interpretation. See People v Link, 225 Mich App 211, 217; 570 NW2d 297 (1997). The fact that Michigan became the first state to receive authority to enforce and administer the federal Clean Water Act lends support to the assertion in the Senate bill analysis. See 2 Haynes & Smary, Michigan Environmental Law Deskbook, Land Use Controls and State Lands, § 12.3 (1992 & Supp 1997).
33 USC 1344(f)(1)(A) provides that discharge of dredged or fill material from “normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices” is not prohibited by the act.
In addition, on the basis of the agreement between the state and the federal government, defendant has been interpreting the wpa in accordance with the Clean Water Act. While an agency’s interpretations of statutes it administers are not binding on courts, longstanding interpretations are entitled to great weight unless clearly wrong. See In re Storm, 204 Mich App 323, 327; 514 NW2d 538 (1994). Therefore, we give some deference to defendant’s interpretation.
Whether plaintiffs’ proposed farm should be allowed is a separate issue and is not before this Court. We were simply asked to determine whether plaintiffs must seek a permit, and we answered that question in the affirmative. We offer no opinion with respect to the propriety of plaintiffs’ proposed use of a wetland. | [
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Bandstra, P.J.
In these consolidated appeals, respondent appeals by leave granted a trial court order enforcing arbitrator-issued subpoenas. Petitioner also appeals the order to the extent that it precludes compelling witnesses now or formerly associated with respondent to testify regarding their deliberative processes in deciding to adopt a plan to privatize liquor warehousing and distribution. We reverse the order enforcing the subpoenas and, because of that decision, need not address the question raised by petitioner regarding the scope of the subpoenas.
Petitioner initiated the underlying grievance arbitration pursuant to the parties’ collective bargaining agreement. Petitioner argued that respondent’s adoption of a plan to eliminate the state-operated liquor warehousing and distribution system (and consequent elimination of state jobs) violated the Michigan Constitution’s requirement that an agency may eliminate classified civil service positions only “for reasons of administrative efficiency . . . Const 1963, art 11, § 5. The constitution further provides that employees aggrieved by the abolition of positions shall have a right to appeal through “established grievance procedures.” Id. The arbitration at issue here constitutes the required grievance procedure. During the arbitration process, the contested subpoenas were issued by the arbitrator and enforced in an order petitioner procured from the circuit court.
Respondent argues that the circuit court erred by enforcing subpoenas issued by an arbitrator when no authority supported his issuance of the subpoenas, a question of law we review de novo. Atlas Valley Golf & Country Club, Inc v Village of Goodrich, 227 Mich App 14, 19; 575 NW2d 56 (1997). We agree with respondent. When parties enter into an agreement to submit a matter to arbitration, the arbitrator is “bound to follow the guidelines set forth in the four comers” of the contract. Beattie v Autostyle Plastics, Inc, 217 Mich App 572, 577; 552 NW2d 181 (1996). The parties’ agreement here provides that arbitrations will proceed under the rules of the American Arbitration Association (aaa). The AM rule that applies here states, in pertinent part, that “[a]n arbitrator authorized by law to subpoena witnesses and documents may do so ... .” (Emphasis added.) We conclude from this clear contract language that the parties did not intend to empower an arbitrator to issue subpoenas in the absence of legal authorization.
As petitioner has conceded on appeal, because the parties’ arbitration commenced pursuant to their collective bargaining agreement, it is exempt from several statutes governing other arbitrations, including the Federal Arbitration Act, 9 USC 1 et seq. (see Bacashihua v United States Postal Service, 859 F2d 402, 404-405 [CA 6, 1988]), Michigan’s adoption of the Uniform Arbitration Act, MCL 600.5001 et seq.) MSA 27A.5001 et seq. (see MCL 600.5001[3]; MSA 27A.5001[3]), and the mediation of labor disputes act, MCL 423.1 et seq.) MSA 17.454(1) et seq. (see MCL 423.9d[2][a]; MSA 17.454[10.3][2][aj). Thus, while these statutes may provide subpoena authority in other arbitration proceedings, they do not provide that authority for the collective bargaining agreement arbitration at issue here.
Nonetheless, petitioner argues that “despite the absence of any express authorization” for subpoenas in these statutes, we should look to them “for guidance” and conclude that subpoena authority is necessary to “promote the goals” of constitutional provisions guaranteeing grievance procedures, Const 1963, art 11, § 5, and a fair hearing, Const 1963, art 1, § 17. We do not conclude that subpoena authority is necessary to assure petitioner a fair hearing or a meaningful grievance procedure. Petitioner is certainly not otherwise prevented from presenting its case for the arbitrator’s consideration. Moreover, respondent will likely present employee witnesses during the arbitration process to defend its actions, and petitioner will have the right to cross-examine those witnesses. If respondent fails to produce available witnesses who have relevant knowledge, the arbitrator will likely draw a negative inference against respondent with respect to what those witnesses would say.
The arbitrator’s fact-finding ability might be enhanced by subpoena authority, and petitioner would no doubt use that authority in trying to establish its case. However, we cannot recognize that authority when to do so would be in contravention of the parties’ clear agreement. Beattie, supra at 577-578 (the parties’ agreement constitutes the law of the case, and arbitrators are bound to act within the terms of the contract). The collective bargaining agreement “established” a grievance procedure as required by the constitution, and petitioner voluntarily entered into that agreement. Petitioner thus acquiesced to a grievance procedure that did not encompass subpoena authority, and it cannot now legitimately claim that the procedure is inadequate.
We reverse the order of the circuit court enforcing the subpoenas. We remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
We also note that, in general, the power to issue a subpoena must be expressly conferred by statute and, in the absence of a specific grant of authority, an official has no power to issue a subpoena. 73 CJS, Public Administrative Law & Procedure, § 82, pp 563-564. | [
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Fitzgerald, J.
In Docket No. 199741, James Morris Roberts, a prisoner in the custody of respondent Department of Corrections, appeals by leave granted a circuit court order granting respondent’s motion to dismiss his application for leave to appeal the Parole Board’s decisions to deny him parole and to issue a two-year continuance until his next parole eligibility interview.
In Docket No. 204516, petitioner Robert Lee, Jr., a prisoner in the custody of respondent Department of Corrections, appeals by leave granted a circuit court order affirming respondent’s decisions to issue Lee a two-year continuance until his next parole eligibility interview after denying him parole and to forgo issuance of a declaratory ruling regarding the legality of respondent’s decision to issue the two-year continuance. The appeals were consolidated.
The pivotal question presented is whether the Parole Board, after denying a prisoner parole, has authority to order a continuance of more than twelve months. A continuance is the period before an inmate will next be considered for parole. Roberts and Lee (petitioners) contend that MCL 791.235(7); MSA 28.2305(7) mandates that the time between Parole Board interviews may not exceed twelve months. Subsection 35(7) provides, in pertinent part:
At least 90 days before the expiration of the prisoner’s minimum sentence, or the expiration of a 12-month continuance, a parole eligibility report shall be prepared by appropriate institutional staff.
Subsection 35(7) pertains exclusively to the preparation of parole eligibility reports. Neither subsection 35(7) nor any other statute clearly requires parole consideration at twelve-month intervals. Additionally, subsection 35(7) does not limit the Parole Board’s discretion to determine when it will reconsider a prisoner’s eligibility for parole. Therefore, there exists no statutory impediment to the Parole Board’s determination that petitioners’ eligibility for parole would not be reconsidered for two years.
Petitioners also rely on 1979 AC, R 791.7710(2)(c), which states that if a parole release is denied, the Parole Board shall furnish the prisoner written notice “setting a new hearing date, to be no more than 12 months from the minimum eligibility date or previous pass-over date.” Petitioners assert that this rule entitles prisoners to a parole release interview annually. However, the 1979 version of the rule was superseded by 1988 AACS, R 791.7710, which provides in subrule 710(2) that “[i]f a prisoner is denied parole at his or her minimum parole eligibility date, written notice shall be provided to the prisoner of his or her next parole consideration date, as determined by the parole board.” Petitioners argue that MCL 24.207(k); MSA 3.560(107)(k) makes 1988 AACS, R 791.7710 inapplicable and requires application of 1979 AC, R 791.7710. MCL 24.207(k); MSA 3.560(107)(k) provides, in relevant part, that the following is excluded from the definition of an administrative rule:
Unless another statute requires a rule to be promulgated under this act, a rule or policy that only concerns the inmates of a state correctional facility and does not directly affect other members of the public, except that a rule that only concerns inmates which was promulgated before December 4, 1986, shall be considered a rule and shall remain in effect until rescinded but shall not be amended.
Petitioners contend that because 1979 AC, R 791.7710 was promulgated before December 4, 1986, it could not be amended, making the 1988 change nugatory. We reject this argument. First, nothing indicates that 1988 AACS, R 791.7710 amended, rather than superseded, 1979 AC, R 791.7710. MCL 791.206; MSA 28.2276 provides the Department of Corrections with the authority to promulgate rules controlling the manner in which paroles are considered. Under this authority, 1988 AACS, R 791.7710 was promulgated, giving it the force and effect of law. Replacing the earlier rule with the new version implicitly rescinded the earlier one. Thus, under the most current rule, the scheduling of subsequent parole hearings is discretionary.
Petitioner Roberts argues that his case must be remanded to the Parole Board for a detailed explanation of the reasons for parole denial. Under the circumstances of this case, we agree.
The Parole Board’s decision regarding parole is reviewed for an abuse of discretion. MCR 7.104(D) (5)(b); MCL 791.234(7); MSA 28.2304(7). In denying Roberts parole, the Parole Board perfunctorily cited the following reasons: “nature of crime, insufficient progress, poor prognosis.” The board denied parole in spite of the fact that Roberts had a parole guidelines score of 14, which indicates a “high probability of parole.” See In re Parole of Franciosi, 231 Mich App 607; 586 NW2d 542 (1998).
MCL 791.235(12); MSA 28.2305(12) requires the Parole Board to provide a prisoner denied parole a written explanation of the reason for denial. Here, the Parole Board’s cursoiy statement of the reasons for denial of parole is not sufficient to satisfy the written explanation requirement and does not allow meaningful appellate review of the Parole Board’s decision, particularly in light of Roberts’ high probability of parole. In re Parole of Scholtz, 231 Mich App 104; 585 NW2d 352 (1998). Consequently, it is impossible to determine whether the decision to deny Roberts parole constituted an abuse of the Parole Board’s discretion. We therefore vacate the part of the trial court’s order dismissing the petition to review the decision to deny Roberts parole and remand this case to the Parole Board for an explanation of its decision to deny Roberts parole.
The order in Docket No. 199741 is affirmed in part and vacated in part and the matter is remanded to the Parole Board. The order in Docket No. 204516 is affirmed. We do not retain jurisdiction. | [
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Neff, J.
Pursuant to MCR 7.215(H), this special panel was convened to resolve the conflict between Crego v Coleman, 201 Mich App 443; 506 NW2d 568 (1993) (Crego I), and a later, vacated case involving the same parties, Crego v Coleman, 226 Mich App 815; 573 NW2d 291 (1997) (Crego II). At issue is the constitutionality of § 3 of the Paternity Act, MCL 722.713; MSA 25.493, which allows the parties in a paternity action to reach a settlement barring future recovery or modification of child support. If not for the precedential effect of Crego I, the Crego II panel would have held the statute unconstitutional as violative of the equal protection guarantees of the United States and Michigan Constitutions. We agree with the analysis set forth in Crego II, and thus hold that MCL 722.713; MSA 25.493 is unconstitutional. Accordingly, we affirm the circuit court’s order denying rehearing of an order granting plaintiff’s motion for an increase in defendant’s child support obligation.
i
In October 1978, plaintiff filed a paternity action alleging that defendant is the father of her daughter, who was bom in August 1978. In 1980, the complaint was dismissed pursuant to a settlement agreement reached between the parties in which defendant agreed to pay weekly child support but did not acknowledge paternity. The trial court approved the terms of the settlement, as required by MCL 722.713; MSA 25.493, and ordered defendant to pay $20 a week in child support pending receipt of the friend of the court’s formal recommendation. A second order was entered on September 26, 1980, requiring defendant to pay $35 a week. This second order specified the parties’ intent that the support order be “not modifiable” and that the matter “shall stand settled, discontinued and dismissed” with respect to defendant. On January 30, 1981, after receiving the friend of the court recommendation, the court entered a third and final “permanent” order, which required defendant to pay $50 a week until the child’s eighteenth birthday “or until farther order of the court.” Unlike the two previous orders, however, this order was not signed by the parties, nor did their attorneys approve its form or substance.
In the early 1990s, plaintiff filed a motion to modify the child support order. The trial court dismissed plaintiff’s motion on the basis of res judicata. A divided panel of this Court affirmed, holding that the parties’ settlement agreement was binding and precluded a modification of defendant’s support obligation. Crego I, supra at 447. The Court also rejected plaintiff’s claim that MCL 722.713; MSA 25.493 denies children bom outside marriage their constitutional right of equal protection of the law. Id. at 446.
Two years later, in Dones v Thomas, 210 Mich App 674; 534 NW2d 221 (1995), a different panel of this Court declared MCL 722.713; MSA 25.493 unconstitutional as violative of the constitutional guarantees of equal protection because it authorizes nonmodifiable child support awards in paternity actions, while child support awards in divorce actions always remain modifiable. Following the decision in Dones, plaintiff renewed her motion for modification of the support order. The trial court concluded that it was required to follow Dones, even though it conflicted with Crego I, as long as the parties were afforded an opportunity to resolve any issue regarding paternity with blood tests if they so desired.
Defendant appealed, arguing that Crego I was controlling and that MCL 722.713; MSA 25.493 does not violate the equal protection clause. The panel in Crego II agreed that Crego I was controlling, but stated that if it were not required to follow Crego I, it would find the statute unconstitutional.
n
Children have an inherent right to parental support. Evink v Evink, 214 Mich App 172, 175-176; 542 NW2d 328 (1995). For children bom in wedlock, but whose parents divorce or separate, our Legislature has provided statutory procedures to modify support orders. For example, MCL 552.17(1); MSA 25.97(1) provides:
The court may, from time to time after its issuance, on the petition of either of the parents, revise, and alter a judgment concerning the care, custody, maintenance, and sup port of some or all of the children, as the circumstances of the parents, and the benefit of the children require.
Moreover, it is well settled that in a divorce action, the court may modify a support order even if the parties had entered into an agreement regarding support. Johns v Johns, 178 Mich App 101, 106; 443 NW2d 446 (1989); see also Wiersma v Wiersma, 241 Mich 565, 566; 217 NW 767 (1928) (“ ‘parents may not bargain away the children’s welfare, . . . [and] the court may always do what seems reasonable and necessary to protect the children’s rights’ ’’[citations omitted]). Similarly, children bom outside marriage who are the subject of a filiation order are permitted to seek modification of child support orders, despite contrary agreements between the parties. Boyles v Brown, 69 Mich App 480; 245 NW2d 100 (1976); MCL 722.720; MSA 25.500.
In sharp contrast, the statute at issue here, MCL 722.713; MSA 25.493, 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.
Thus, children bom outside marriage who are not the subject of a filiation order are statutorily denied the right to seek modification of support orders, a right expressly granted to other children. Plaintiff argues that the denial of this right violates the constitutional guarantees of equal protection of the law. We agree.
in
The Equal Protection Clauses of the United States Constitution and the Michigan Constitution are coextensive, Moore v Spangler, 401 Mich 360, 370; 258 NW2d 34 (1977), and provide that no person shall be denied equal protection of the law. US Const, Am XIV; Const 1963, art 1, § 2. This constitutional guarantee requires that persons similarly situated be treated alike. El Souri v Dep’t of Social Services, 429 Mich 203, 207; 414 NW2d 679 (1987).
A
The first step in an equal protection analysis is to determine the appropriate level of judicial scrutiny. The reviewing court will use one of three tests, depending on the type of classification and the nature of the interest at issue. Where a statute creates an inherently suspect classification, such as race, alien-age, ethnicity, and national origin or affects a fundamental interest, the “strict scrutiny” test applies. Plyler v Doe, 457 US 202, 216-217; 102 S Ct 2382; 72 L Ed 2d 786 (1982). Under this test, the statute will be upheld only if the state “demonstrate [s] that its classification scheme has been precisely tailored to serve a compelling governmental interest.” Id. at 217. The “rational basis” test is applied when the classification is not inherently suspect or a fundamental interest is not involved. Id. at 216. Under this test, the legislation is presumed to be constitutional and the party challenging the statute has the burden of proving that the legislation is arbitrary and thus irrational. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 668; 232 NW2d 636 (1975).
Under the third, or “substantial relationship” test, a statutory classification will be struck down as unconstitutional unless it is “substantially related to the achievement of the important governmental objective.” Dep’t of Civil Rights ex rel Forton v Waterford Twp Dep’t of Parks & Recreation, 425 Mich 173, 191; 387 NW2d 821 (1986) (emphasis in original). Without question, classifications based on illegitimacy are subject to this intermediate, or “heightened” scrutiny. Clark v Jeter, 486 US 456, 461; 108 S Ct 1910; 100 L Ed 2d 465 (1988); Spada v Pauley, 149 Mich App 196, 203; 385 NW2d 746 (1986). Therefore, we must determine whether the statute’s classification, which denies children bom outside marriage the right to seek modification of support on changed circumstances, is substantially related to an important state interest.
B
The overriding purpose of the Paternity Act is to see that minor children bom outside marriage are supported and cared for. Whybra v Gustafson, 365 Mich 396, 400; 112 NW2d 503 (1961). This Court has stated, “The announced public policy of this state is to treat children bom out of wedlock as no less deserving of support than those bom in wedlock.” Smith v Robbins, 91 Mich App 284, 289; 283 NW2d 725 (1979). We agree with the panel in Crego II that no “substantially related” state interest exists that would sustain the classification contained in MCL 722.713; MSA 25.493.
l
In upholding the constitutionality of MCL 722.713; MSA 25.493, Crego I relied on the father’s interest in a final settlement of paternity matters. In the context of divorce proceedings, our Legislature has determined that the need to allow a modification of child support on a change of circumstances outweighs the need for settlement and finality. MCL 552.17(1); MSA 25.97(1). We see no difference between the state’s interest in settlement and finality in divorce proceedings and those same interests in actions under the Paternity Act that would justify treating children bom outside marriage any differently than children generally. Indeed, as noted in Crego II, supra at 821, “legitimate and illegitimate children do not differ in their potential for encountering circumstances that may increase their need for financial support.”
In Gomez v Perez, 409 US 535; 93 S Ct 872; 35 L Ed 2d 56 (1973), the United States Supreme Court held that a state statute that granted legitimate children a judicially enforceable right of support from their natural fathers but denied the right to children bom outside marriage was unconstitutional as a violation of the guarantee of equal protection. In so ruling, the Court stated:
[A] State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother. For a State to do so is “illogical and unjust.” [Id. at 538.]
With this we heartily agree. MCL 722.713; MSA 25.493 provides that, unlike legitimate children, children bom outside marriage who are not subject to a filiation order may be foreclosed from future modification of child support, regardless of need. This disparate treatment of children bom outside marriage cannot withstand heightened scrutiny.
2
We disagree with the dissent’s assertion that the circumstances present when a child is bom within marriage are objectively different in substance from the situation where a child is bom outside marriage because in the latter case there is no presumptive father. Children, whether bom within or without marriage, are the same with regard to their rights to support.
Further, as noted by Crego II, the factual determination of paternity is no longer a difficult credibility contest. Scientific advances regarding dna testing now provide for a quicker, easier, and more accurate method for establishing paternity. In fact, a statutory presumption of paternity exists if a blood or DNA test establishes a probability of paternity of ninety-nine percent or higher. MCL 722.7.16(5); MSA 25.496(5). With these advances, there is no longer a difference between the state’s interest in finality and settlement in paternity actions and divorce actions on the basis of difficulty of proof.
IV
Children bom outside marriage are no less deserving of support because of the circumstances of their birth than other children. If there is no limitation on the right of a legitimate child to seek modification of support, then there can be no such limitation on the same right for a child bom outside marriage. The disparate treatment between children bom outside mar riage and legitimate children contained in MCL 722.713; MSA 25.493 violates the federal and state constitutional rights of a child bom outside marriage to equal protection under the law. Accordingly, we hold MCL 722.713; MSA 25.493 is unconstitutional, and we affirm the trial court’s order denying defendant’s motion for rehearing of the order granting plaintiff’s motion for modification of the earlier support agreement.
Affirmed.
Sawyer, McDonald, and Murphy, JJ., concurred.
MCL 722.713; MSA 25.493 was repealed by 1996 PA 308, effective June 1, 1997.
Judge Griffin dissented, opining that the language of the trial court’s final order allowed for modification. Crego I, supra at 448.
The Court in Dones did not mention the previous decision in Crego I.
Our dissenting colleague’s assertion that heightened scrutiny may not be the appropriate test is based on an earnest but strained attempt to distinguish the clear holdings of Gomez v Perez, 409 US 535; 93 S Ct 872; 35 L Ed 2d 56 (1973), and Frame v Nehls, 452 Mich 171; 550 NW2d 739 (1996). In Frame, our Supreme Court held that a statute that made a grandparent’s right to seek visitation rights dependent on whether the child’s parents were involved in divorce proceedings was not subject to strict or heightened equal protection scrutiny because the statute did not discriminate on the basis of legitimacy of the child. Id. at 185. Only then did the Court proceed to use the “rational basis” test and find the grandparent visitation statute constitutional. Id. at 189. Unlike the situation presented in Frame, the discrimination of MCL 722.713; MSA 25.493 is clearly aimed solely at children bom outside marriage whose fathers have settled a paternity suit without acknowledging paternity.
The dissent’s position regarding the applicability of Gomez is similarly flawed. Whether MCL 722.713; MSA 25.493 contains provisions similar to the statutory scheme stmck down in Gomez is not the issue. Rather, the case stands for the modem position that statutes that result in disparate treatment of legitimate children and children bom outside marriage are unconstitutional. Indeed, as the Court itself stated, “[A] State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally.” Gomez, supra at 538.
We note our disagreement with the dissent’s focus on the effect of MCL 722.713; MSA 25.493 on mothers of children bom outside marriage. Although support payments are made to the mother, the right to receive support belongs solely to the child. Evink, supra at 175-176. Accordingly, the payment of support — or the denial of it — is a matter involving the equal protection rights of the child.
Other decisions of this Court have recognized that support may be modified in a paternity action when the order entered pursuant to the parties’ settlement agreement itself provides for future adjustments, such as including the proviso, “until further order of the court.” See Morrison v Richerson, 198 Mich App 202, 211; 497 NW2d 506 (1993); Van Laar v Rozema, 94 Mich App 619, 624; 288 NW2d 667 (1980). Unlike our dissenting colleague, we do not believe that a child’s equal protection rights should hang on so narrow a thread. | [
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Per Curiam.
This case is before us on remand from the Supreme Court for reconsideration in light of McKenzie v Auto Club Ins Ass’n, 458 Mich 214; 580 NW2d 424 (1998). 458 Mich 866 (1998). In McKenzie, the Court held that whether an injury arises out of the use of a motor vehicle as a motor vehicle under MCL 500.3105(1); MSA 24.13105(1) turns on whether the injury is closely related to the transportational function of motor vehicles. Because the plaintiff in McKenzie was using a camper/trailer attached to his pickup truck as a sleeping accommodation at the time of his injury, the Court concluded that the use was too far removed from the transportational function to constitute use of the camper/trailer as a motor vehicle at the time of the injury.
The facts of the present case axe succinctly set forth in Morosini v Citizens Ins Co of America, 224 Mich App 70; 568 NW2d 346 (1997). Plaintiff’s vehicle was struck from the rear by another motorist. The plaintiff got out of his vehicle and was in the process of examining the damage to his vehicle when he was assaulted by the driver of the other vehicle. We held that while assaults are not ordinarily part of the “normal risk” of driving, injuries arising from assaults are compensable under the no-fault act only when the assault arises out of a “normal activity associated with the use of a vehicle as a motor vehicle.” Thus, we concluded that there was a sufficient causal nexus between the injuries sustained by plaintiff in the assault and the use of the motor vehicle as a motor vehicle because plaintiff’s injuries were sustained in the course of fulfilling his statutory obligations as an operator of a motor vehicle involved in an accident to inspect for damage and exchange information with any other driver involved in the accident. MCL 257.618, 257.619; MSA 9.2318, 9.2319. This holding is consistent with the approach that focuses on transportational function because the fulfillment of statutory obligations with regard to motor vehicle accidents is closely related to the transportational function of motor vehicles.
Affirmed. | [
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Young, C.J.
Plaintiff was injured in the course of his employment as a part-time firefighter for defendant Thornapple Township. At the time of his injury, plaintiff was also employed by another employer. Thornapple Township paid plaintiff the maximum weekly wage loss benefits under the Worker’s Disability Compensation Act (WDCA), and plaintiff additionally received ben efits pursuant to a disability insurance policy provided by the township. Thornapple Township did not reduce its workers’ compensation liability by coordinating plaintiff’s workers’ compensation benefits with his disability benefits under MCL 418.354(l)(b). Subsequently, Thornapple Township sought reimbursement from the Second Injury Fund under the dual employment provisions, MCL 418.372, based on the uncoordinated amount of wage loss benefits.
The issue to be determined in this case is the amount that the fund is required to reimburse an employer for its portion of an injured employee’s weekly benefits when the employer fails to coordinate benefits. We hold that the coordination of benefits is mandatory, except in very narrow employment circumstances that are inapplicable in this case. Coordination of benefits serves to reduce the amount of weekly benefits an employer is legally obligated to pay an employee under the WDCA. Any additional sum of weekly benefits volitionally provided by the employer does not alter the employer’s statutory obligation to the injured employee.
If an injured worker was engaged in more than one employment at the time of injury, the WDCA apportions liability between the employment that caused the injury and the Second Injury Fund. When the employment that caused the injury provided less than 80 percent of the employee’s wages, the fund is required to reimburse its “portion of the benefits due the employee. . . . ” Because the fund’s liability is “dependent” upon the employer’s liability, and coordination of the employer’s benefits is compulsory, the fund is required to reimburse its portion of the benefits due on the basis of the coordinated amount of benefits. We reverse the judg ment of the Court of Appeals and remand this case to the magistrate for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
The parties submitted this case under stipulated facts. Plaintiff, Robert Smitter, was employed both as a part-time firefighter for Thornapple Township and as an employee of General Motors Corporation. Smitter earned approximately 11 percent of his total wages with Thornapple Township and 89 percent of his wages with General Motors. On May 3, 2005, Smitter sustained a work-related injury while fighting a fire. He was disabled from both employments for approximately 26 weeks. Given his average weekly wage, Smitter was entitled to workers’ compensation wage loss benefits at the maximum rate of $689 a week. Smitter also received $800 a week in “Sickness & Accident” benefits pursuant to a disability insurance policy fully funded by Thornapple Township. The township did not coordinate the benefits paid from the disability insurance policy against its workers’ compensation obligation. Rather, the township voluntarily paid the state maximum rate of wage loss benefits to plaintiff, in addition to the benefits plaintiff received pursuant to the insurance policy.
Initially, Thornapple Township sought reimbursement from the Second Injury Fund in the amount of $17,897.87 for the entirety of plaintiffs wage loss benefits. The fund agreed to pay $2,077.99 — the amount of its liability if the township had coordinated plaintiffs benefits. On February 2, 2007, Thornapple Township filed an application for a hearing, seeking reimbursement from the Second Injury Fund for “wage loss benefits attributable to earnings from General Motors Corporation” for plaintiffs period of disability. Relying on Rahman v Detroit Board of Education, the magistrate ordered that the fund reimburse Thor-napple Township in the amount of $15,966.75, representing 89 percent of the uncoordinated wage loss benefits paid to Smitter.
The Workers’ Compensation Appellate Commission (WCAC) affirmed the decision of the magistrate. The majority commiserated with the fund’s being required to “support the Township’s public policy of treating its firefighters to benefits beyond the statutory requirements,” agreeing with the fund that it was “unfair to allow an employer to forfeit coordination and force another party to fund that choice.” However, because Rahman controlled the facts of the case, the fund could “not take advantage of the injury employer’s[ ] entitlement to coordination unless the employer coordinates benefits.”
The Court of Appeals initially denied the fund’s application for leave to appeal, but this Court remanded the case to the Court of Appeals for consideration as on leave granted. On remand, the Court of Appeals affirmed the decision of the WCAC. The panel noted that it was bound to follow Rahman pursuant to MCR 7.215(J)(1), that the holding in Rahman was consistent with the statutory language, and that there was no principled reason for distinguishing Rahman from the present case. This Court granted the Second Injury Fund’s application for leave to appeal.
II. STANDARD of review
While this Court’s review of a decision by the WCAC is limited, we review de novo questions of law in a workers’ compensation case. Likewise, questions of statutory interpretation are questions of law reviewed de novo.
In interpreting a statute, our obligation is to discern the legislative intent that may reasonably be inferred from the words actually used in the statute. “A fundamental principle of statutory construction is that ‘a clear and unambiguous statute leaves no room for judicial construction or interpretation.’ ” When the statutory language is unambiguous, the proper role of the judiciary is simply to apply the terms of the statute to the facts of the particular case. In addition, words used by the Legislature must be construed and understood in accordance with their common, ordinary meaning.
III. ANALYSIS
A. RELEVANT STATUTORY PROVISIONS
In order to analyze properly the issues presented in this case, we must examine the interplay between several provisions of the WDCA.
There is no question that plaintiff received an injury arising out of and in the course of his employment with Thornapple Township. Because plaintiff was completely disabled for approximately 26 weeks, MCL 418.351(1) describes the township’s liability for weekly wage loss benefits. It provides in relevant part:
While the incapacity for work resulting from a personal injury is total, the employer shall pay, or cause to be paid as provided in this section, to the injured employee, a weekly compensation of 80% of the employee’s after-tax average weekly wage, but not more than the maximum weekly rate of compensation, as determined under [MCL 418.355]. Compensation shall be paid for the duration of the disability.
MCL 418.354 provides for the coordination of benefits, reducing an employer’s obligation to pay weekly wage benefits under the WBCA when an employee simultaneously receives payments in accordance with specified benefit programs. At the time of plaintiffs injury, MCL 418.354 provided in relevant part as follows:
(1) This section is applicable when either weekly or lump sum payments are made to an employee as a result of liability pursuant to [MCL 418.351, MCL 418.361, or MCL 418.835] with respect to the same time period for which old-age insurance benefit payments under the social security act, 42 U.S.C. 301 to 1397f; payments under a self-insurance plan, a wage continuation plan, or a disability insurance policy provided by the employer-, or pension or retirement payments pursuant to a plan or program established or maintained by the employer, are also received or being received by the employee. Except as otherwise provided in this section, the employer’s obligation to pay or cause to be paid weekly benefits other than specific loss benefits under [MCL 418.361(2)] and (3) shall be reduced by these amounts:
(b) The after-tax amount of the payments received or being received under a self-insurance plan, a wage continuation plan, or under a disability insurance policy provided by the same employer from whom benefits under [MCL 418.351, MCL 418.361, or MCL 418.835] are received if the employee did not contribute directly to the plan or to the payment of premiums regarding the disability insurance policy....
(2) To satisfy any remaining obligations under [MCL 418.351, MCL 418.361, or MCL 418.835], the employer shall pay or cause to be paid to the employee the balance due in either weekly or lump sum payments after the application of subsection (1).
(15) With respect to volunteer fire fighters, volunteer safety patrol officers, volunteer civil defense workers, and volunteer ambulance drivers and attendants who are considered employees for purposes of this act pursuant to [MCL 418.161(1)(a)], the reduction of weekly benefits provided for disability insurance payments under subsection (1)(b) and (c) and subsection (11) may be waived by the employer. An employer that is not a self-insurer may make the waiver provided for under this subsection only at the time a worker’s compensation insurance policy is entered into or renewed.[ ]
MCL 418.372, known as the dual employment provision, apportions liability for an injured employee’s workers’ compensation benefits when the employee was engaged in more than one employment at the time of injury. At the time of plaintiffs injury, the statute provided in relevant part as follows:
(1) If an employee was engaged in more than 1 employment at the time of a personal injury or a personal injury resulting in death, the employer in whose employment the injury or injury resulting in death occurred is liable for all the injured employee’s medical, rehabilitation, and burial benefits. Weekly benefits shall be apportioned as follows:
(a) If the employment which caused the personal injury or death provided more than 80% of the injured employee’s average weekly wages at the time of the personal injury or death, the insurer or self-insurer is liable for all of the weekly benefits.
(b) If the employment which caused the personal injury or death provided 80% or less of the employee’s average weekly wage at the time of the personal injury or death, the insurer or self-insurer is liable for that portion of the employee’s weekly benefits as bears the same ratio to his or her total weekly benefits as the average weekly wage from the employment which caused the personal injury or death bears to his or her total weekly wages. The second injury fund is separately but dependently liable for the remainder of the weekly benefits. The insurer or self-insurer has the obligation to pay the employee or the employee’s dependents at the full rate of compensation. The second injury fund shall reimburse the insurer or self-insurer quarterly for the second injury fund’s portion of the benefits due the employee or the employee’s dependents.
(3) This section does not apply to volunteer public employees entitled to benefits under [MCL 418.161(1)(a)].[ ]
Reading these statutory provisions together, it is clear that, as a starting point, Thornapple Township is obligated by MCL 418.351 to pay Smitter weekly wage loss benefits in the amount of 80 percent of his after-tax average weekly wage, subject to the maximum weekly cap imposed by MCL 418.355, for the duration of his disability.
Because Smitter received benefits pursuant to a disability insurance policy provided by Thornapple Township “with respect to the same time period” as the township’s obligation to pay weekly wage loss benefits pursuant to MCL 418.351, the coordination of benefits provisions are implicated. As Thornapple Township fully funded the disability policy, its “obligation to pay” weekly wage loss benefits “shall he reduced” by the after-tax amount of benefits Smitter received under the policy. The township’s “remaining obligations” regarding Smitter’s wage loss benefits under MCL 418.351 are thus reduced to “the balance due” after coordination.
Lastly, because Smitter was engaged in more than one employment at the time of his injury, the dual employment provisions of MCL 418.372 are applicable. While Thornapple Township remains liable for all of Smitter’s medical and rehabilitation benefits, Smitter’s weekly wage loss benefits are apportioned between the township and the Second Injury Fund because “the employment which caused the personal injury” provided less than 80 percent of Smitter’s wages at the time of his injury. The township is liable for the same percentage of Smitter’s weekly benefits as his average weekly wage from the township bore to his total wages. In other words, because Smitter earned 11 percent of his weekly wages with the township, it is liable for 11 percent of Smitter’s weekly benefits. The fund is “separately but dependently liable” for the remaining 89 percent of Smitter’s weekly benefits, representing the percentage of weekly benefits attributable to Smitter’s employment with General Motors. While the township must provide weekly benefits to Smitter “at the full rate of compensation,” the fund is required to reimburse the township for its “portion of the benefits due the employee . . . .”
B. COORDINATION OF BENEFITS
Relying on Rahman v Detroit Board of Education, Thornapple Township argues that the fund is liable for reimbursement of its portion of the uncoordinated amount of benefits and cannot reduce its liability by claiming entitlement to the coordinated amount, particularly given that the township has “exercised its right” not to coordinate benefits.
In Rahman, the plaintiff suffered a back injury during the course of his employment with the Detroit Board of Education. At the time of injury, Rahman was also employed with the city of Detroit, earning 46 percent of his wages from the board of education and the remaining 54 percent of his wages from the city of Detroit. The magistrate ordered an open award of benefits and further held that the fund had reimbursement liability under the dual employment provisions because the board provided less than 80 percent of Rahman’s average weekly wage.
Rahman also received a pension from the board of education, although the facts do not indicate whether the Board coordinated Rahman’s weekly wage loss benefits. The fund argued that the amount it was required to reimburse the board should be based on the coordinated amount of benefits. The Court of Appeals rejected the fund’s claim, providing the following analysis:
[T]he coordination of benefits provision ... applies if an employee receives worker’s compensation benefits at the same time he receives pension or retirement payments pursuant to a plan or program maintained or established by an employer. [MCL 418.354(1)] provides that “the employer’s obligation to pay or cause to be paid weekly benefits other than specific loss benefits ... shall be reduced by [specified] amounts ....” A plain reading of the subsection indicates that the employer’s obligation to pay the employee benefits may be reduced by the amount of pension the employer pays to the employee.
We reject the [Second Injury Fund’s] argument that the total amount of worker’s compensation benefits payable to plaintiff should be reduced by the amount of the pension benefits plaintiff receives from the board. Again, we consider the clear and unambiguous language of the statute. [MCL 418.354] provides for a reduction in an employer’s obligation to pay benefits if that employer provides the employee a pension. This reduction is clearly premised on the fact that the employer is providing another wage benefit to the employee; the statute allows the employer to coordinate that benefit with its obligation to pay worker’s compensation wage-loss benefits to the employee. It is apparent from the language of the statute that the Legislature intended that the employer whose employment caused an injury alone may take advantage of the coordination provisions. There is no suggestion that the [Second Injury Fund], in a dual employment situation, may take advantage of the injury-employer’s entitlement to coordination. Therefore, the [Second Injury Fund’s] argument is rejected.[ ]
While Rahman claimed to follow the unambiguous language of the statute, it failed to do so. Contrary to Rahman’s holding that an employer’s obligation to pay weekly benefits “may be reduced,” MCL 418.354(1) provides that the employer’s obligation “shall be reduced” by the requisite amounts listed in the statute. The Legislature’s use of the word “shall” generally indicates a mandatory directive, not a discretionary act.
Furthermore, Rahman failed to recognize or address the significance of MCL 418.354(15). This provision explicitly delineates the narrow group of employers that the Legislature has permitted to waive the “reduction of weekly benefits” that is otherwise compelled by the coordination provisions: those employing “volunteer fire fighters, volunteer safety patrol officers, volunteer civil defense workers, and volunteer ambulance drivers and attendants who are considered employees for purposes of this act pursuant to [MCL 418.161(1)(a)] . . . .” Moreover, the scope of allowable waiver encompasses only “disability insurance payments under subsection (1)(b) and (c) and subsection (11). . . .” By specifically outlining the parameters under which an employer may permissibly waive coordination of benefits, the Legislature by implication prohibited all other employers who do not meet the specifications from waiving coordination of benefits. Such a conclusion is incompatible with Rah-man’s holding that the coordination of benefits is a discretionary “entitlement” that may be claimed or relinquished at the pleasure of any employer. While Rahman decried the notion that “the total amount of worker’s compensation benefits payable to plaintiff should be reduced by the amount of the pension benefits plaintiff receives,” that is precisely what MCL 418.354(1) requires. Because the holding in Rahman contravenes the plain language of the statute, it is overruled.
Thus, with the exception of those employments falling within the limits described in MCL 418.354(15), an employer’s obligation to pay weekly benefits under the WDCA “shall be reduced” by the corresponding amounts listed in MCL 418.354(1). The coordination of benefits is mandatory, not discretionary, and reduces an employer’s obligation to pay weekly wage loss benefits as a matter of law. As a practical consideration, an injured worker is unlikely to protest if an employer consciously chooses to pay the employee in excess of what the law requires. However, any additional sum of weekly wage loss benefits volitionally provided by the employer “[flor its own policy reasons” has no effect on the employer’s obligation to pay weekly benefits under the law.
C. THE SECOND INJURY FUND’S LIABILITY
MCL 418.372(1)(b) apportions liability between the fund and the injury employer when the employee was engaged in more than one employment at the time of his injury and the injury employer provided 80 percent or less of the employee’s average weekly wage. The statute does not require reimbursement of any additional amount that the employer voluntarily elects to provide to an injured employee — it only provides that the fund is liable for its “portion of the benefits due the employee . .. Consistent with the common understanding of the word “due,” the benefits due the employee are those that are owed to the employee.
In determining the amount “due” the employee, we note that under the explicit language of the statute, the fund has dependent or contingent liability for the remainder of the weekly benefits for which the injury employer would ordinarily be liable but for the apportionment of liability provided in MCL 418.372. Thus, the fund’s reimbursement liability is expressly conditioned on the injury employer’s statutory liability. As discussed above, the application of MCL 418.354 to reduce an employer’s liability under the WDCA is compulsory and may not be avoided except in very narrow circumstances. Therefore, the amount “due the employee” is the fund’s portion of the employer’s “remaining obligationD” under the act, which is described as “the balance due in either weekly or lump sum payments after the application of’ the coordination provisions. Thus, the fund is obligated to reimburse the employer for its “portion of the benefits due the employee” after the application of MCL 418.354. The fund is not required to reimburse the employer for any additional amounts of benefits that do not reflect the employer’s Lability under the act.
Thornapple Township argues that “strong public policy” considerations support its position and that providing an injured firefighter with full workers’ compensation benefits as well as disability benefits provides an “incentive” for its employees to engage in firefighting services. However, the public policy of Michigan is not to be determined by what a majority of this Court deems desirable or appropriate at a given time. Rather, the public policy of Michigan must be “clearly rooted in the law” as “reflected in our state and federal constitutions, our statutes, and the common law.” Moreover, this Court may not substitute its policy preferences for those policy decisions that have been clearly provided by statute. In this instant case, it is clear from the mandate contained in MCL 418.354(1) that the public policy of Michigan, as articulated by the Legislature, is to prevent duplicative wage loss payments while maintaining “suitable wage-loss benefits.” Additionally, the Legislature has unequivocally indicated that the public policy of Michigan prohibits the employees of fire departments and police departments from receiving “like benefits” from both a municipality and the WDCA. MCL 418.161(c) provides:
Police officers, fire fighters, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state providing like benefits, may waive the provisions of this act and accept like benefits that are provided by the municipality or village but are not entitled to like benefits from both the municipality or village and this act. However, this waiver does not prohibit those employees or their dependents from being reimbursed under [MCL 418.315] for the medical expenses or portion of medical expenses that are not otherwise provided for by the municipality or village. This act shall not be construed as limiting, changing, or repealing any of the provisions of a charter of a municipality or village of this state relating to benefits, compensation, pensions, or retirement independent of this act, provided for employees.
Because the policy arguments advanced by Thornapple Township stand in stark contradiction to the public policy pronouncements of the Legislature, they must fail.
IV CONCLUSION
We conclude that the Second Injury Fund is required to reimburse an employer for the fund’s portion of the benefits due the employee on the basis of the coordinated amount of weekly benefits. We reverse the judgment of the Court of Appeals and remand this case to the magistrate for further proceedings consistent with this opinion.
Markman, Kelly, and ZAHRA, JJ., concurred with Young, C.J.
MCL 418.101 et seq.
See MCL 418.501(1).
MCL 418.372(1)(b).
Rahman v Detroit Bd of Ed, 245 Mich App 103; 627 NW2d 41 (2001).
Now the Michigan Compensation Appellate Commission. Executive Order No. 2011-6; MCL 445.2032.
Smitter v Thornapple Twp, 2009 Mich ACO 175, p 3.
The “injury employer” is the employer the injured party was working for at the time of the injury.
Id.
Smitter v Thornapple Twp, unpublished order of the Court of Appeals, entered April 5, 2010 (Docket No. 294768).
Smitter v Thornapple Twp, 488 Mich 917 (2010).
Smitter v Thornapple Twp, unpublished opinion per curiam of the Court of Appeals, issued November 22, 2011 (Docket No. 294768).
Smitter v Thornapple Twp, 491 Mich 917 (2012).
Rakestraw v Gen Dynamics Land Sys, Inc, 469 Mich 220, 224; 666 NW2d 199 (2003); MCL 418.861; MCL 418.861a(14).
Dep’t of Transp v Tomkins, 481 Mich 184, 190; 749 NW2d 716 (2008).
White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979).
In re Certified Question (Kenneth Henes Special Projects Procurement v Continental Biomass Indus), 468 Mich 109, 113; 659 NW2d 597 (2003), quoting Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993).
Rakestraw, 469 Mich at 224.
MCL 8.3a; Massey v Mandell, 462 Mich 375, 380; 614 NW2d 70 (2000).
See MCL 418.301.
Although the statute was subsequently amended by 2011 PA 266, the provisions relevant to this case have remained substantively unaltered.
MCL 418.354. as amended by 1987 PA 21 (emphasis added).
MCL 418.372, as added by 1980 PA 357 (emphasis added). MCL 418.372 was amended by 2012 PA 83, which amended subsection (3) to read “This section does not apply to individuals entitled to benefits under [MCL 418.161(1)(d), (e), (f), (g), (h), (i), (j), and (o)].”
MCL 418.354.
MCL 418.354(1)(b) (emphasis added).
MCL 418.354(2). At oral argument, the parties agreed that plaintiff is not a volunteer firefighter, one of the very few employments to which “the reduction of weekly benefits provided for disability insurance payments ... may be waived by the employer.” MCL 418.354(15). Indeed, the parties submitted this case under stipulated facts, including the stipulation that Smitter was employed as a “paid part-time firefighter .. ..” This Court has distinguished between stipulations of fact, which are binding on the judiciary, Dana Corp v Employment Security Comm, 371 Mich 107, 110; 123 NW2d 277 (1963), and stipulations of law, which are not binding, In re Finlay Estate, 430 Mich 590, 595; 424 NW2d 272 (1988). Thus, Justice Cavanagh’s reliance on Union Guardian Trust Co v Zack, 274 Mich 108, 113; 264 NW 309 (1936), which involved an admission of law, is inapposite.
MCL 418.372(1)(b).
Id.
Id.
Rahman, 245 Mich App at 120-121 (third alteration in original) (emphasis altered) (citation omitted).
Costa v Community Emergency Med Servs, 475 Mich 403, 409; 716 NW2d 236 (2006); Burton v Reed City Hosp Corp, 471 Mich 745, 752-754; 691 NW2d 424 (2005); Tobin v Civil Serv Comm, 416 Mich 661, 667; 331 NW2d 184 (1982); Smith v Amber Twp Sch Dist, 241 Mich 366, 368-369; 217 NW 15 (1928).
Through 1983 PA 159 the Legislature enacted MCL 418.354(15) and redesignated former subsections (15) to (17). MCL 418.354(15) has remained unaltered since that time.
MCL 418.354(15).
Id.
Under the doctrine of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), the specification in a statute of one particular class excludes all other classes. Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702, 712; 664 NW2d 193 (2003); Dave's Place, Inc v Liquor Control Comm, 277 Mich 551; 269 NW 594 (1936); Detroit v Redford Twp, 253 Mich 453, 455-456; 235 NW 217 (1931).
Rahman, 245 Mich App at 121.
Despite the unambiguous meaning of the word “shall,” Justice McCormack opines that an injury employer may avoid coordinating its compensation obligation under the WDCA because to hold otherwise would prohibit “employers and employees from freely entering into employment contracts under terms as they see fit.” Nothing in this opinion affects the right of an employer to agree to provide any contractual benefit to its employees that it wishes to offer. We have announced no limiting legal principle that would prohibit an injury employer, either by gratuitous impulse or a negotiated contract provision, from providing benefits in excess of its obligation under the WDCA. However, we do conclude, applying the language of the WDCA, that the injury employer in a dual employment situation must bear the cost of its munificence and cannot require the fund to subsidize its choices.
When the injury employer provided more than 80 percent of the employee’s average weekly wage, there is no apportionment of liability. The injury employer is “liable for all of the weekly benefits.” MCL 418.372(1)(a).
Random House Webster’s College Dictionary (1996), p 413 (defining “due” as “owing or owed[.]”).
Random House Webster’s College Dictionary (1996), p 363 (defining “dependent” as “conditioned or determined by something else; contingente.]”).
See MCL 418.351; MCL 418.361.
MCL 418.372(1)(b) imposes liability on the fund for that portion of weekly benefits attributable to the injured employee’s concurrent employment. See Lawrence v Toys R Us, 453 Mich 112, 128; 551 NW2d 155 (1996) (“[T]he fund is only subject to liability for benefits in respect to the wage-earning capacity lost at the concurrent employment.”).
We note that the very same employments permitted to waive the coordination of benefits under MCL 418.354(15) are specifically excluded from the apportionment of liability under the dual employment provisions pursuant to MCL 418.372(3). Thus, when the coordination of benefits is properly waived, the fund has absolutely no reimbursement liability in a dual employment situation.
MCL 418.372(1)(b).
MCL 418.354(2) (emphasis added).
MCL 418.372(1)(b).
This conclusion is further supported by the fact that MCL 418.354(1) refers to “the employer’s obligation.” The only time “obligation” appears in MCL 418.372(1)(b) is in the third sentence, which addresses the “obligation” to “pay the employee... at the full rate of compensation.” When MCL 418.372(1)(b) mentions the employer alone and the fund alone, the provision refers to their “liab[ilities].” Therefore, it is reasonable to conclude that the reference in MCL 418.354(1) to “the employer’s obligation” refers to “the full rate of compensation,” not just the amount for which the employer alone is “liable.” If the full rate must be coordinated, then the fund’s liability to reimburse an employer necessarily occurs after coordination.
Terrien v Zwit, 467 Mich 56, 66-67; 648 NW2d 602 (2002).
See generally Devillers v Auto Club Ins Ass’n, 473 Mich 562, 588-593; 702 NW2d 539 (2005).
See Drouillard v Stroh Brewery Co, 449 Mich 293, 299-300; 536 NW2d 530 (1995).
See Crowe v Detroit, 465 Mich 1, 8-10; 631 NW2d 293 (2001) (providing that “like benefits” are those that are similar in their salient features). | [
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Markman, J.
This case concerns whether the Michigan Tax Tribunal possesses jurisdiction over plaintiffs’ claim for mandamus to enforce the terms of a property-tax ballot proposition that provided for the levy of an additional 0.5 mill property tax in Hillsdale County to fund plaintiff Hillsdale County Senior Services, Inc. (HCSS). Because that claim falls within the scope of MCL 205.731(a) as a “proceeding for direct review of a final decision ... of an agency relating to . . . rates . . . under the property tax laws of this state,” we conclude that the tribunal possesses exclusive and original jurisdiction. Accordingly, we affirm the judgment of the Court of Appeals, which vacated and reversed the circuit court’s judgment for mandamus for lack of subject-matter jurisdiction.
I. FACTS AND HISTORY
Under the activities or services for older persons act (ASOPA), MCL 400.571 et seq., “[a] local unit of gov- eminent may appropriate funds to public or private nonprofit corporations or organizations for the purposes of planning, coordinating, evaluating, and providing services to older persons.” MCL 400.573. ASOPA further provides:
A governing body of a local unit of government may submit a millage proposition to the electorate to levy up to 1 mill for services to older citizens. This proposition may be submitted at any election held by the local unit of government, but shall not be submitted at a special election of the local unit of government called solely for the purpose of submitting this millage proposition. [MCL 400.576]
Pursuant to the foregoing provision, the Hillsdale County Board of Commissioners, as defendant’s legislative body, submitted a millage proposition to the county’s voters in August 2008 to raise funds for the provision of services to older persons by HCSS. The proposition posed the following question:
Shall the limitation on the amount of taxes on the general ad valorem taxes within the County of Hillsdale imposed under Article IX, Section 6, of the Michigan Constitution be increased for said County by .5 mill ($0.50 per $1000 of taxable value) for the period of 2008 to 2022, inclusive, for the intended purpose of planning, coordinating and providing services to older persons by Hillsdale County Senior Services Center, Inc., as provided by Public Act 39 of 1976 [ASOPA]? Shall the county levy such increase in millage for this purpose during such period which will raise in the first year an estimated $676,532?
The proposition was approved at the August 5, 2008 election. Thereafter, in November 2009, HCSS entered into a contract with defendant for the latter to provide services for older persons from January 1, 2009, through December 31, 2010. Hillsdale Co Senior Servs Ctr, Inc v Co of Hillsdale, unpublished opinion per curiam of the Court of Appeals, issued January 3, 2012 (Docket No. 301607) at 2-3. However, in the two fiscal years 2009-2011, for budgetary reasons defendant declined to levy and spend the full 0.5 mill. In response, plaintiffs filed a “Verified Complaint for Mandamus with Request for Temporary Restraining Order, Order to Show Cause, and Request for Preliminary Injunction” in the circuit court, requesting in part that the court:
Issue its permanent Order of Mandamus directing the Defendant, its Board and all of its officers to instruct all pertinent tax billing authorities or agencies (e.g., city or township officials) to levy the full 0.5 mill required by the Proposal, in 2010 and all future years covered by the proposal....
[Appropriate the full amount of the proceeds of the levy to [HSSC] for the provision of services to the older population of the County of Hillsdale.
The circuit court ruled in pertinent part that “the Plaintiffs’ Writ for Mandamus shall be granted and Defendant shall levy the entire 0.5 mill forthwith, to be reflected on the December, 2010, tax notices and every year hereafter until 2022, inclusive, as set forth in the voter approved ballot proposal.” Defendant appealed, arguing that the circuit court lacked subject-matter jurisdiction over the case because it falls within the exclusive and original jurisdiction of the Tax Tribunal. The Court of Appeals agreed with defendant and vacated the circuit court’s judgment. Plaintiff then applied for and was granted leave to appeal to this Court. Hillsdale Co Senior Servs Ctr, Inc v Co of Hillsdale, 493 Mich 852 (2012).
II. STANDARD OF REVIEW
Whether a court has subject-matter jurisdiction is a question of law reviewed de novo. Elba Twp v Gratiot Co Drain Comm’r, 493 Mich 265, 278; 831 NW2d 204 (2013). Issues of statutory interpretation are also reviewed de novo. Id.
III. ANALYSIS
This Court is charged with determining whether the circuit court or the Tax Tribunal possesses subject-matter jurisdiction over this case. As always, we begin by considering the relevant constitutional and statutory provisions.
A. STATUTORY TEXT
The jurisdiction of the circuit court is governed by Const 1963, art 6, § 13, which provides:
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; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the supreme court; and jurisdiction of other cases and matters as provided by rules of the supreme court.
MCL 600.605 further provides:
Circuit courts have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state.
MCL 205.731 provides an exception for jurisdiction in tax cases:
The tribunal has exclusive and original jurisdiction over all of the following:
(a) A proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency[ ] relating to assessment, valuation, rates, special assessments, allocation, or equalization, under the property tax laws of this state.
(b) A proceeding for a refund or redetermination of a tax levied under the property tax laws of this state.
(e) Any other proceeding provided by law.
Thus, for the tribunal to have jurisdiction pursuant to MCL 205.731(a), four elements must be present: (1) a proceeding for direct review of a final decision, finding, ruling, determination, or order; (2) of an agency; (3) relating to an assessment, valuation, rate, special assessment, allocation, or equalization; (4) under the property tax laws. Where all such elements are present, the tribunal’s jurisdiction is both original and exclusive.
The instant appeal is a proceeding for direct review of a “final decision”- the board’s decision not to levy and spend the full 0.5 mill. The board constitutes an “agency” pursuant to the definition set forth in MCL 205.703(a). And the issue here is one arising “under the property tax laws.” See MCL 400.576 (specifically allowing defendant to “levy up to 1 mill [property tax] for services to older citizens”); Const 1963, art 9, § 6 (governing property taxes). Thus, the central issue in this case is whether the board’s decision not to levy and spend the full 0.5 mill “relat[es] to assessment, valuation, rates, special assessments, allocation, or equalization.”
None of the listed terms is statutorily defined, so we begin by consulting a dictionary. Koontz v Ameritech Servs, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). On initial review of this list, “rates” appears to be the most relevant term under the facts of this case. “Rate” means “the amount of a charge or payment with reference to some basis of calculation.” Random House Webster’s College Dictionary (1997). During the pertinent time periods, the board levied 0.15 and 0.25 mills, although plaintiffs claim that the ballot proposition mandated a 0.5 mill levy. Thus, the heart of the dispute pertains to the “amount of a charge” by defendant to its property taxpayers. Although plaintiffs conceded at oral argument that this case does pertain to rates, they argued to the contrary in their briefs on the grounds that the ballot proposition could achieve only two ends: either it absolutely required the levy of the full 0.5 mill or it required nothing. However, despite plaintiffs’ all-or-nothing approach, the instant dispute does involve rates for the simple fact that both “all” and “nothing” constitute rates- 0 percent and 100 percent of the full 0.5 mill— and in any case, defendant did levy and spend portions of the 0.5 mill: 30 percent of the 0.5 mill in 2009-2010 and 50 percent of the 0.5 mill in 2010-2011. Plaintiffs simply argue that defendant is required to levy and spend more- that defendant must levy a larger “amount of charge,” 100 percent of the full 0.5 mill. Accordingly, this case does pertain to “rates.” Thus, all four elements of MCL 205.731(a) are satisfied, and the tribunal possesses exclusive and original jurisdiction in this case.
B. CASELAW
Despite the foregoing, confusion has arisen from earlier caselaw— namely, our decisions in Wikman v Novi, 413 Mich 617; 322 NW2d 103 (1982), and Romulus City Treasurer v Wayne Co Drain Comm’r, 413 Mich 728; 322 NW2d 152 (1982), and the Court of Appeals’ decision in Jackson Dist Library v Jackson Co No 2, 146 Mich App 412; 380 NW2d 116 (1985) (Jackson); rev’d on other grounds, Jackson Dist Library v Jackson Co, 428 Mich 371; 408 NW2d 801 (1987) (Jackson II). We take this opportunity to clarify the general import of those decisions as to the jurisdiction of the tribunal.
Wikman and Romulus were companion cases addressing “special assessments” under MCL 205.731. In Wikman, the plaintiff taxpayer filed suit against the defendant city in circuit court, seeking injunctive relief and claiming that special assessments levied against him for paving a portion of a road had been calculated in an arbitrary and inequitable manner. After issuing a preliminary injunction enjoining the collection of the special assessment, the court declared the special assessment void and permanently enjoined the defendant from its collection. The Court of Appeals reversed and remanded to the tribunal, concluding that the latter possessed jurisdiction, and this Court affirmed. Much of our analysis considered the particularities of special assessments. Wikman, 413 Mich at 633-635 (“We recognize that significant differences exist between special assessments and other forms of taxation.”)- However, Wikman, id. at 647-648, explained more generally:
[The] Tax Tribunal lacks the power to issue an injunction. The issuance of an injunction is an exercise of judicial power. The constitution limits the Legislature’s power to transfer judicial power to administrative agencies, see Const 1963, art 3, § 2, Johnson v Kramer Bros Freight Lines, Inc, 357 Mich 254, 258; 98 NW2d 586 (1959).... MCL 205.732 . .. does not expressly grant the tribunal the power to issue injunctions, and such power will not be extended by implication.
Still, Wikman clarified:
Although injunctive relief may not be directly available, the tribunal is empowered to issue “writs, orders, or directives,” see MCL 205.732,[ ] and nothing in the Tax Tribunal Act prohibits one from seeking equitable relief to enforce a tribunal decision. [Id. at 648 (citations omitted).]
Wikman then concluded that the plaintiffs’ “requests for preliminary and permanent injunctions in these proceedings do not take them out of the exclusive jurisdiction of the tribunal” because the tribunal “has the jurisdiction and ability to resolve all the claims presented.” Id. at 648-649.
In Romulus, the plaintiffs, township and city treasurers and landowners, challenged special assessments for drain taxes, alleging that the defendants, the county and its board, drain commissioner, and treasurer, all committed constructive fraud by using drain funds to pay administrative expenses. At the time of the suit, several hundred thousand dollars were held in escrow and controlled by the plaintiff treasurers. The plaintiffs sought a preliminary injunction prohibiting the defendants from enforcing the special assessments and from using the drain funds for administrative expenses, and an order that the funds held in escrow be returned to the landowner plaintiffs. In circuit court, the defendants moved for accelerated judgment on the grounds that the circuit court lacked subject-matter jurisdiction. The circuit court granted the motion, concluding that the claims were within the tribunal’s jurisdiction. The Court of Appeals then reversed in part because it concluded that the tribunal lacked equitable jurisdiction. Romulus City Treasurer v Wayne Co Drain Comm’r, 86 Mich App 663, 669-670; 273 NW2d 514 (1978) . This Court granted leave to appeal to consider “whether the Michigan Tax Tribunal is the only forum in which relief can be sought. . . .” Romulus City Treasurer v Wayne Co Drain Comm’r, 406 Mich 976, 976-977 (1979) . Romulus, 413 Mich at 746, answered that question in the negative and affirmed the Court of Appeals, concluding:
[I]t is apparent that under extraordinaiy circumstances a city or township treasurer may not be required to fulfill his or her ministerial duties.[ ] If the instant case presents such circumstances, so as to justify the withholding from the county of the funds now in escrow, the circuit court will need to determine what should be done with the funds. We conclude that, if the funds in escrow have been justifiably withheld from the county, the landowner plaintiffs' claim that the funds should be repaid to them because of defendants’ constructive fraud is not a claim for a tax refund [pursuant to MCL 205.731(b)] within the exclusive jurisdiction of the Tax Tribunal.
The Romulus Court further explained that the “Tax Tribunal Act does not prevent a court of equity from determining what should be done with funds that in extraordinary circumstances have been properly withheld from the county.” Id. at 747. However, Romulus also stated:
In cases not involving special assessments, the tribunal’s membership is well-qualified to resolve the disputes concerning those matters that the Legislature has placed within its jurisdiction: assessments, valuations, rates, allocation and equalization.... Although the tribunal, in making its determinations, will make conclusions of law, MCL 205.751,[ ] the matters within its jurisdiction under MCL 205.731 most clearly relate to the basis for a tax, and much less clearly to the proper uses which may be made of the funds once collected. Questions concerning how the funds collected may be expended do not appear to be implicated in disputes related to assessments, valuations, rates, allocation and equalization. The question presented here is whether the exclusive jurisdiction of the Tax Tribunal extends to such questions when the funds are collected pursuant to special assessment laws. [Id. at 737-738 (citation omitted).]
Thus, as with Wikman, Romulus was largely concerned with the particularities of special assessments.
Accordingly, it should first be noted that Wikman and Romulus are of limited application outside the context of special assessments. To the extent that those opinions address the tribunal’s jurisdiction generally, Wik-man indicates that although the tribunal cannot itself issue injunctions, it can issue orders that may be enforced in circuit court. Thus, Wikman does not suggest, as plaintiffs contend, that parties may affirma tively divest the tribunal of jurisdiction by seeking equitable remedies. Indeed, Wikman involved a request for an equitable remedy, and this Court concluded that the tribunal possessed jurisdiction. Moreover, as Wik-man additionally explained, when proceeding under MCL 205.731(a), the tribunal’s jurisdiction is determined by the subject matter of the proceeding, not on the type of relief requested. Thus, plaintiffs’ requested relief here- mandamus- does not divest the tribunal of jurisdiction.
Moreover, Romulus suggests that in “extraordinary circumstances”- those so extraordinary that a court may deny mandamus compelling ministerial acts- the circuit court retains equitable jurisdiction to decide a case that arguably falls within the scope of MCL 205.731(b) (proceedings for refunds). Although this case involves a request for mandamus, it does not present “extraordinary circumstances” such as those present in Romulus, Huron, and Cheboygan. Further, this case does not involve a proceeding for a refund under MCL 205.731(b); rather, it involves a proceeding under MCL 205.731(a). Once again, therefore, the subject matter, not the type of relief requested, determines the tribunal’s jurisdiction. Thus, neither Wikman nor Romulus provides a basis for divesting the tribunal of jurisdiction.
The Court of Appeals’ decision in Jackson is in accord. In 1977, Jackson County voters approved a 20-year levy of one mill to establish a public library system, thereby creating the petitioner, Jackson District Library. In 1982, the respondent, Jackson County Board of Commissioners, rolled back the millage to 0.9651 mill pursuant to MCL 211.24e. The petitioner filed a complaint in circuit court, alleging that the board lacked authorization to roll back the mill. The complaint was subsequently amended to add a second count seeking declaratory judgment as to whether the levy was subject to the statute. These two counts were dismissed by stipulation of the parties for lack of subject-matter jurisdiction, and a petition containing two virtually identical counts was filed with the tribunal, whereupon the tribunal determined that it lacked jurisdiction. However, citing Wikman, the Court of Appeals reversed that determination, concluding:
Petitioner’s claim fits the act’s jurisdictional requirement. Petitioner appealed from a final determination of respondent board to rollback a tax levy pursuant to MCL 211.24e. Respondent board may be viewed as an “agency” for such purpose. The appeal related to a determination of rates under property tax laws, since respondent board’s action was characterized as a tax rate rollback and petitioner asserted that public hearings were held to determine if one mill should be levied. Accordingly, the tribunal had exclusive jurisdiction over petitioner’s claim pursuant to MCL 205.731(a). Because jurisdiction over respondents was obtained when petitioner originally filed its action in the circuit court, the 30-day limitation period of MCL 205.735 was tolled, and thus this matter was not removed from the tribunal’s jurisdiction. Wikman v Novi, 413 Mich 617; 322 NW2d 103 (1982). [Jackson, 146 Mich App at 417-418 (citations omitted).]
Although this Court subsequently reversed Jackson on other grounds, see Jackson II, 428 Mich at 377-378, Jackson’s jurisdictional ruling was never appealed to this Court.
The circumstances surrounding the jurisdictional ruling in Jackson are analogous to those in this case. As the Court of Appeals explained in Hillsdale, unpub op at 5:
In Jackson[], the plaintiffs sought direct review of a “final decision, finding, ruling, determination or order of an agency.” In the present case, plaintiffs sought an order of mandamus to compel the county to levy the full amount of the millage approved by voters. However, the gist of plaintiffs action concerns whether the county has authority to levy less than the millage limitation approved by voters. A jurisdictional claim “should be determined not by how the plaintiff phrases its complaint, but by the relief sought and the underlying basis of the action. ”[ ] Colonial Village Townhouse Cooperative v Riverview, 142 Mich App 474, 477-478; 370 NW2d 25 (1985). As in JacksonQ, the question presented by plaintiffs’ action relates to direct review of a determination of rates under the property tax laws. Accordingly, the Tax Tribunal has subject-matter jurisdiction and the circuit court lacked jurisdiction to enter a judgment of mandamus.
We agree. As explained in Section 111(A) of this opinion, this case falls within the tribunal’s jurisdiction, and, as further explained in this section, such a determination is entirely consistent with Wikman and Romulus. Thus, this case belongs to the tribunal “[n]o matter how skillfully plaintiff camouflages” its claims. Colonial Village, 142 Mich App at 478.
IV CONCLUSION
This case concerns whether the Michigan Tax Tribunal possesses jurisdiction over plaintiffs’ claim for mandamus to enforce the terms of a property-tax ballot proposition that provided for the levy of an additional 0.5 mill property tax in Hillsdale County to fund plaintiff HCSS. Because that claim falls within the scope of MCL 205.731(a) as a “proceeding for direct review of a final decision ... of an agency relating to . . . rates .. . under the property tax laws of this state,” we conclude that the tribunal possesses exclusive and original jurisdiction. Accordingly, we affirm the judgment of the Court of Appeals, which vacated and reversed the circuit court’s judgment for mandamus for lack of subject-matter jurisdiction.
YOUNG, C.J., and KELLY, ZAHRA, McCormack, and VIVIANO, JJ., concurred with Markman, J.
CAVANAGH, J., concurred in the result only.
In 2009-2010, defendant levied and spent 0.15 mill, and in 2010-2011, defendant budgeted to levy and spend 0.25 mill.
The ruling did not, as requested by plaintiffs, order the appropriation of “the full amount of proceeds of the levy” to HCSS. That is, the circuit court did not order defendant to spend the full 0.5 mill by transferring the proceeds to HCSS.
Defendant did not raise the jurisdictional issue in the circuit court. However, as the Court of Appeals asserted:
Although defendant included lack of subject-matter jurisdiction as an affirmative defense, defendant neither briefed nor argued the issue of subject-matter jurisdiction in the trial court. Consequently, the trial court did not rule on whether it had subject-matter jurisdiction. However, the “[l]ack of jurisdiction of the subject matter may be raised at any time and the parties to an action cannot confer jurisdiction by their conduct or action nor can they waive the defense by not raising it.”. [Hillsdale unpub op at 3-4, quoting Paulson v Secretary of State, 154 Mich App 626, 630-631; 398 NW2d 477 (1986).]
MCL 205.703(a) defines “agency” as “a board, official, or administrative agency empowered to make a decision, finding, ruling, assessment, determination, or order that is subject to review under the jurisdiction of the tribunal or that has collected a tax for which a refund is claimed.”
The ballot proposition explicitly referenced Const 1963, art 9, § 6, which provides in part:
Except as otherwise provided in this constitution, the total amount of general ad valorem taxes imposed upon real and tangible personal property for all purposes in any one year shall not exceed 15 mills on each dollar of the assessed valuation of property as finally equalized. Under procedures provided by law, which shall guarantee the right of initiative, separate tax limitations for any county and for the townships and for school districts therein, the aggregate of which shall not exceed 18 mills on each dollar of such valuation, may be adopted and thereafter altered by the vote of a majority of the qualified electors of such county voting thereon, in lieu of the limitation hereinbefore established.
For example, plaintiffs’ counsel stated:
The County decided not to follow the mandate [in the proposition] but to impose a lesser amount and that’s what the County’s board did. They believed they have the discretion to do so. So why is it not a rate? It is a rate, but what they’ve done to resolve this dispute is not going to draw on any of the expertise of the Tax Tribunal that underlay the creation of the Tribunal in the first place.
Because we conclude that this case pertains to rates, we need not address the other terms listed in MCL 205.731(a).
“Special assessments” are “pecuniary exactions made by the government for a special purpose or local improvement, apportioned according to the benefits received.” Wikman, 413 Mich at 632-633.
MCL 205.732 provides:
The tribunal’s powers include, but are not limited to, all of the following:
(a) Affirming, reversing, modifying, or remanding a final decision, finding, ruling, determination, or order of an agency.
(b) Ordering the payment or refund of taxes in a matter over which it may acquire jurisdiction.
(c) Granting other relief or issuing writs, orders, or directives that it deems necessary or appropriate in the process of disposition of a matter over which it may acquire jurisdiction.
(d) Promulgating rules for the implementation of this act, including rules for practice and procedure before the tribunal and for mediation as provided in [MCL 205.747], under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.
(e) Mediating a proceeding before the tribunal.
(f) Certifying mediators to facilitate claims in the court of claims and in the tribunal.
This issue was apparently rendered moot when the Drain Code, MCL 280.1 et seg., was amended. Romulus, 413 Mich at 733 n 2.
Romulus cited two cases involving such “extraordinaiy circumstances.” Both involved situations in which courts had refused to issue writs of mandamus compelling ministerial acts: Huron Co Drain Comm’r v Chandler Twp Supervisor, 90 Mich 278, 279; 51 NW 282 (1892) (the Court refused to issue mandamus because the “proceedings [were] so defective that no legal drain could be laid out, [and] the supervisor was not in the wrong in refusing to assess the tax.”); Cheboygan Co Bd of Supervisors v Mentor Twp Supervisor, 94 Mich 386, 387-388; 54 NW 169 (1892) (the Court refused to issue mandamus where the taxes received therefrom would be put to an illegal use). A ministerial act is one in which “the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Toan v McGinn, 271 Mich 28, 34; 260 NW 108 (1935) (quotation marks and citation omitted).
Wikman foreshadowed this “extraordinary circumstances” exception to the tribunal’s jurisdiction:
Case law exists indicating that the constitution places some limitations on the Legislature’s power to divest the court completely of equity jurisdiction and the judicial power to grant an injunction; see Haggerty v City of Dearborn, 332 Mich 304; 51 NW2d 290 (1952). Thus, while there may be an extraordinary case which justifies the exercise of equity jurisdiction in contravention of a statute, this is not such a case. [Wikman, 413 Mich at 648.]
As the foregoing and Romulus’ reference to the Tax Tribunal Act not “prevent[ing]” courts from acting in equity suggest, such an exception does not actually divest the tribunal of jurisdiction but rather limits the exclusivity of such jurisdiction.
MCL 205.751(1) provides:
A decision and opinion of the tribunal shall be made within a reasonable period, shall be in writing or stated in the record, and shall include a concise statement of facts and conclusions of law, stated separately and, upon order of the tribunal, shall be officially reported and published.
Wikman explained:
The tribunal’s jurisdiction is based either on the subject matter of the proceeding (e.g., a direct review of a final decision of an agency relating to special assessments under property tax laws) or the type of relief requested (i.e., a refund or redetermination of a tax under the property tax laws). In the instant case, the jurisdiction of the Tax Tribunal is governed by the first subsection since plaintiffs are seeking to enjoin permanently the collection of a special assessment rather than to obtain a refund of a tax. Wikman, 413 Mich at 631.]
Plaintiffs alternatively argue that defendant’s defenses raise constitutional claims that the tribunal is unfit to consider, citing Wikman’s statement that “[generally speaking, an agency exercising quasi-judicial power does not undertake the determination of constitutional questions or possess the power to hold statutes unconstitutional.” Wikman, 413 Mich at 646-647. However, plaintiffs omit the sentences that follow: “However, the constitutional claims in this case do not involve the validity of a statute. Rather, plaintiffs’ claim is merely an assertion, in constitutional terms, that the assessment was arbitrary and without foundation.” Id. at 647. As in Wikman, defendant does not seek to invalidate a statute. Defendant’s constitutional defenses do not provide an alternative basis for divesting the tribunal of jurisdiction.
The proposition asked the following question:
Shall the limitation on the total amount of taxes which may be imposed upon all property in the County of Jackson be increased by 1.00 mill on each dollar ($1.00 per $1,000.00) of the assessed valuation, as equalized, for a period of twenty (20) years, 1977 to 1996, inclusive, said millage increase to be used exclusively for the purpose of establishing and operating a single public library system in Jackson County? [Jackson II, 428 Mich at 375 n 5.]
MCL 211.24e(2) provides in relevant part:
[U]nless the taxing unit complies with section 16 of the uniform budgeting and accounting act, 1968 PA 2, MCL 141.436, the governing body of a taxing unit shall not levy ad valorem property taxes for operating purposes for an ensuing fiscal year of the taxing unit that yield an amount more than the sum of the taxes levied at the base tax rate on additions within the taxing unit for the ensuing fiscal year plus an amount equal to the taxes levied for operating purposes for the concluding fiscal year on existing property.
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Young, C.J.
The public employment relations act (PERA) requires public employers to bargain with their employees’ designated representatives concerning the “terms and conditions of employment,” including the calculation of retirement benefits. Failure to do so constitutes an unfair labor practice. The unfair labor practice complaints at issue in this case arise out of the Macomb County Retirement Commission’s decision to change the actuarial table used to calculate joint and survivor retirement benefits for employees retiring after July 1, 2007. We hold that the respondents did not commit an unfair labor practice when they refused to bargain with the charging parties over this decision and that the remedy for this dispute lies in the grievance and arbitration system these parties have created.
If a collective bargaining agreement covers the term or condition of employment in dispute, “the details and enforceability of the provision are left to arbitration.” The unfair labor practice complaints in this case concern subject matters covered by the collective bargaining agreements. Thus, the grievance process contemplated in the collective bargaining agreements is the appropriate avenue to challenge respondents’ actions. The collective bargaining agreements grant the retirement commission discretion to establish actuarial tables to calculate joint and survivor benefits. The retirement commission’s 24-year practice of using the same actuarial table to calculate those benefits does not, on its own, constitute the clear and unmistakable evidence necessary to overcome the collective bargaining agreements’ coverage of the matter and create a new term or condition of employment. As a result, none of the unfair labor practice charges can be sustained. We reverse the decision of the Court of Appeals and remand this case to the Michigan Employment Relations Commission for dismissal of the unfair labor practice complaints.
I. FACTS AND PROCEDURAL HISTORY
The Macomb County Board of Commissioners enacted the retirement ordinance and established the Macomb County Employees Retirement System to “provid[e] pension and retirement benefits for the employees of the County of Macomb ... .” The ordinance vests the seven-member Macomb County Retirement Commission with “the general administration, management and responsibility for the proper operation of the Retirement System, and for construing and making effective the provisions of [the] Ordinance.”
The retirement ordinance grants a retiring county employee the option of receiving a monthly retirement allowance payable only until the employee’s death, or receiving a reduced allowance during the retiree’s life, the payment of which continues after this death and through the life of a named beneficiary. If the retiree chooses to allow a surviving beneficiary to receive payments in addition to his or her own “straight life benefit,” the monthly “joint and survivor” payment is reduced to ensure that it is “the actuarial equivalent.. . of [the employee’s] straight life retirement allowance . . . .” The retirement ordinance does not define the term “actuarial equivalent.”
This case focuses on the method that the retirement system uses to calculate the joint and survivor benefit as compared to the straight life benefit. Until 1982, the county used gender-based actuarial tables to calculate the joint and survivor benefit. However that year, in response to a United States Supreme Court decision and a Michigan Attorney General opinion, the commission concluded that it could not continue to use gender-based actuarial tables. It sought the advice of its actuary, Gabriel, Roder, Smith & Company (GRS), in selecting a single, gender-neutral actuarial table to calculate the joint and survivor payment without regard to either the employee’s or the beneficiary’s gender. GRS outlined several alternative approaches and noted that the only approach “designed to make sure that no participant will receive a lesser benefit than under [existing] procedures,” would be to adopt the female actuarial table for all retirees. Ultimately, the retirement commission chose to adopt the female actuarial table for all retirees.
For 24 years, the retirement system applied the female actuarial table when calculating its retirees’ monthly joint and survivor payments. However, GRS studied the retirement system over a five-year period (2001-2005) and concluded that the joint and survivor benefit was “more valuable than the single life annuity form of payment.” To ensure that the optional joint and survivor payment would “have the same present value, on average, as the straight life normal form of payment,” GRS proposed a different actuarial table for the commission to adopt. GRS determined that a blended table that assumed 60% male retirees and 40% female retirees would best approximate benefits that are equal in value among all the options. At its November 17, 2006 meeting, the commission voted 4-3 to adopt this 60% male actuarial table, to take effect for all employees who retire on or after July 1, 2007.
The charging parties demanded collective bargaining over the change. Respondents rejected this demand and claimed that the existing collective bargaining agreements gave the commission discretion to adopt new actuarial tables. The charging parties then filed unfair labor practice complaints with the Michigan Employment Relations Commission (MERC).
After conducting a three-day hearing, the hearing referee recommended that the MERC dismiss the unfair labor practice charges. She determined that a retirement plan’s actuarial assumptions are mandatory subjects of bargaining under the PERA. However, because the underlying collective bargaining agreements “contain extensive provisions ‘covering’ pension benefits,” and because “the parties were satisfied, and agreed, to have these benefits calculated as provided in the ordinance,” she concluded that the respondents had already fulfilled their statutory duty to bargain over the retirement system’s actuarial assumptions. While “the meaning of the term ‘actuarial equivalent’ in the ordinance involved bona fide questions of contract interpretation,” those questions “are properly subject to resolution through the grievance arbitration procedures set out in the parties’ contracts,” not in litigation over unfair labor practices.
The charging parties filed exceptions to the hearing referee’s proposed decision. The MERC agreed with the charging parties and rejected the referee’s decision and recommended order. It concluded that “[t]he actuarial assumptions at issue here were never memorialized in the Retirement Ordinance or any of the collective bargaining agreements referencing the Retirement Ordinance.” Although the ordinance did not define the actuarially equivalent benefits promised to retirees and their beneficiaries, the term’s meaning “has been subordinated to the question of whether the parties have amended their agreements by the longstanding practice of calculating optional pension benefits that are not the actuarial equivalent of straight life benefits ....” On this question, the MERC determined that the parties “tacitly agreed that joint and survivor benefits would continue to be calculated as they had [been] in the past.” As a result, the MERC concluded that respondents’ unilateral change violated the duty to bargain and that respondents must revert to the female actuarial table.
The Court of Appeals affirmed the MERC’s decision in a split opinion. The majority agreed with the MERC that actuarial assumptions are mandatory subjects of bargaining, that “the term ‘actuarial equivalence’ as used in this case did not unambiguously mean ‘equal in value,’ ” and that the parties’ past practice of using the female actuarial table “constituted a ‘tacit agreement’ ” to continue using it absent collective bargaining. The majority further concluded that the continuous use of the female actuarial table “was ‘so widely acknowledged and mutually accepted that it created an amendment to the contract,’ ” even if the County’s definition of “actuarial equivalence” unambiguously intended to establish options that were equal in value.
The dissenting judge would have reversed the MERC’s decision and would have adopted the hearing referee’s recommended order. The dissenting judge believed that the term “actuarial equivalent” is unambiguous and required “optional retirement benefits [to] be equivalent or equal in value on the basis of actuarial assumptions.” Because it “results in the optional benefits being more valuable than the straight-life benefit,” the dissent opined that using the female actuarial table for all employees was inconsistent with the ordinance. The dissent further reasoned that by agreeing to incorporate the ordinance into their collective bargaining agreements, the employees’ “retirement benefits and the methods used to calculate them — including mortality tables and actuarial assumptions — are ‘covered by’ the parties’ CBAs,” and do not require further bargaining.
We granted respondents’ application for leave to appeal and ordered the parties to brief “whether the Court of Appeals properly applied the holding of Port Huron Ed Ass’n v Port Huron Area Sch Dist, 452 Mich 309 (1996), when it concluded that the parties intended to modify the collective bargaining agreement by use of the 100% female/ 0% male mortality tables.”
II. STANDARD OF REVIEW
In a case on appeal from the MERC, the MERC’s factual findings are conclusive if supported by “competent, material, and substantial evidence on the whole record.” Legal questions, which include questions of statutory interpretation and questions of contract interpretation, are reviewed de novo. As a result, an administrative agency’s legal rulings “are set aside if they are in violation of the constitution or a statute, or affected by a substantial and material error of law.”
III. ANALYSIS
The PERA governs the relationship between public employees and governmental agencies. When it was enacted in 1976, the PERA “drastically altered public employee labor relations in Michigan.” It represents the Legislature’s intent to “assureD public employees of protection against unfair labor practices, and of remedial access to a state-level administrative agency with special expertise in statutory unfair labor practice matters.”
Section 15(1) of the PERA requires a public employer to engage in collective bargaining with its employees’ designated representatives “with respect to wages, hours, and other terms and conditions of employment . . . .” This Court has held that the calculation of retirement benefits is a mandatory subject of collective bargaining. Section 10(1) specifies that “ [i]t shall be unlawful for a public employer ... to refuse to bargain collectively with the representatives of its public emp loyees.” This duty “persists during the life of the collective bargaining agreement.” A violation of § 10(1) “shall be deemed to be [an] unfair labor practice[] remediable by the [MERC].”
This Court’s caselaw explains the PERA’s requirement to engage in collective bargaining: “The primary obligation placed upon the parties in a collective bargaining setting is to meet and confer in good faith.” Good faith requires a party to be “actively engaged in the bargaining process with an open mind and a sincere desire to reach an agreement.” While the parties do not need to reach an agreement on a subject of mandatory collective bargaining, “neither party may take unilateral action on the subject absent an impasse in the negotiations.”
In Port Huron Education Association v Port Huron School District, we examined the statutory duty to bargain in the context of an existing, controlling collective bargaining agreement. An employer “can fulfill its statutory duty by bargaining about a subject and memorializing resolution of that subject in the collective bargaining agreement.” When the parties “ ‘negotiate] for a provision in the collective bargaining agreement that fixes the parties’ rights,’ ” they “ ‘foreclosed further mandatory bargaining’ ” because “the matter is ‘covered by’ the agreement.”
The foundational principle of our contract jurisprudence is that parties must be able to rely on their agreements. This principle applies no less strongly to collective bargaining agreements: when parties to a collective bargaining agreement “ ‘bargain about a subject and memorialize the results of their negotiation in a collective bargaining agreement, they create a set of enforceable rules — a new code of conduct for themselves — on that subject.’ ” A party to the collective bargaining agreement “has a right to rely on the agreement as the statement of its obligations on any topic ‘covered by’ the agreement.”
The MERC ordinarily “does not involve itself with contract interpretation when the agreement provides a grievance process that culminates in arbitration.” However, when a charging party claims that a respondent has failed to bargain over a mandatory subject of bargaining, the MERC must “determine whether the agreement ‘covers’ the dispute.” As a result, “it is often necessary for the MERC ... to review the terms of an agreement to ascertain whether a party has breached its statutory duty to bargain.” If the agreement covers “the term or condition in dispute,” then “the details and enforceability of the provision are left to arbitration.” The MERC itself has recognized this limitation on its scope of authority, which we reaffirm today: when the parties have agreed to a separate grievance or arbitration process, the MERC’s review of a collective bargaining agreement in the context of a refusal-to-bargain claim is limited to determining whether the agreement covers the subject of the claim.
In Port Huron, the charging party also claimed that, notwithstanding a collective bargaining agreement that covered the matter in dispute, the parties’ course of conduct created a new term or condition of employment that existed independently from the collective bargaining agreement. While this Court reviewed the parties’ course-of-conduct claim separately from the collective bargaining agreement, we underscore that it is incumbent on courts and the MERC not to conflate an unfair labor practice complaint with an arbitrable disagreement over the terms of the collective bargaining agreement. Unambiguous language in a collective bargaining agreement dictates the parties’ rights and obligations even in the face of a conflicting past practice, “unless the past practice is so widely acknowledged and mutually accepted that it creates an amendment to the contract.” The party that seeks to overcome unambiguous contract language “must show the parties had a meeting of the minds with respect to the new terms or conditions so that there was an agreement to modify the contract.”
We clarify the Port Huron analysis to explain that this is an exceedingly high burden to meet. Any lesser standard would defeat the finality in collective bargaining agreements and would blur the line between statutory unfair labor practice claims and arbitrable disagreements over the interpretation of collective bargaining agreements. As a result, the party that seeks to overcome an unambiguous collective bargaining agreement must present evidence establishing the parties’ affirmative intent to revise the collective bargaining agreement and establish new terms or conditions of employment. Moreover, because “arbitration has come to be the favored procedure for resolving grievances in federal and Michigan labor relations,” doubt about whether a subject matter is covered should be resolved in favor of having the parties arbitrate the dispute. The arbitrator, not the MERC, is ordinarily best equipped to decide whether a past practice has matured into a new term or condition of employment.
IV APPLICATION
At issue in this case is whether respondents were required to bargain with the charging parties before the retirement commission changed the actuarial tables used to calculate joint and survivor monthly payments. The parties do not dispute that the calculation of retirement benefits is a matter of mandatory collective bargaining. However, respondents claim that the re tirement ordinance unambiguously gave the commission the discretion to change the actuarial tables used to calculate joint and survivor benefits and, moreover, that they satisfied the duty to bargain because the collective bargaining agreements, in turn, incorporate the ordinance’s provisions authorizing this discretion. The charging parties dispute that characterization of the collective bargaining agreement and instead claim that the respondents’ use of the female actuarial table for 24 years created a separate and enforceable term of employment that could not be changed absent additional collective bargaining.
A. THE RETIREMENT ORDINANCE
The Macomb County Retirement Ordinance explicitly provides the retirement commission with discretion to adopt actuarial calculations that apply to the retirement system: “The Retirement Commission shall from time to time adopt such mortality and other tables of experience, and a rate or rates of regular interest, as are necessary in the Retirement System on an actuarial basis.” When an employee selects the joint and survivor option to allow a beneficiary to receive monthly retirement allowance payments after the employee’s death, the ordinance requires the monthly payments to be reduced so that the joint and survivor option is “the actuarial equivalent” of the straight life benefit.
The ordinance does not define the term “actuarial equivalent.” Because “actuarial equivalent” is a term of art, we must assume that the Macomb County Retirement Commission intended the term to have its technical meaning. Black’s Law Dictionary defines “actuarial equivalence” as “[t]he amount of accrued pension benefits to be paid monthly or at some other interval so that the total amount of benefits will be paid over the expected remaining lifetime of the recipient.” This definition makes clear that an actuarially equivalent monthly benefit must be calculated to allocate benefits over a projected period of time, that is, the life expectancy of the recipient(s). The Attorney General reached a similar conclusion in the opinion that prompted the commission’s original action to adopt a female-only actuarial table. When defining the phrase “actuarially equivalent” in the statutory election of early retirement benefits, the Attorney General stated that the term meant a “ ‘benefit of equal value’ ” to its comparison plan “ ‘when computed upon the basis of such mortality and other tables as may be adopted by the retirement board.’ ” We believe that the Attorney Gen eral’s construction accurately describes this technical term and thus we adopt it as our own.
Furthermore, we hold that this definition of “actuarial equivalent” is unambiguous in the context of the ordinance. The ordinance itself makes clear that the county must present the joint and survivor options to a retiring employee in a way that estimates that the employee and his or her beneficiary are projected to receive an equal amount of total benefits from a joint and survivor option as the employee would receive from the straight life option.
Moreover, it is also clear from the evidence in this case that the parties had this same understanding of the term’s meaning. GRS’s report states that the proposed actuarial table is “designed to have the same present value, on average, as the straight life normal form of payment” and states that the 100% female blend is not actuarially equivalent to the straight life payment. Indeed, the charging parties’ own expert witness testified that “[a]ctuarially equivalent to me means equal” and “[identical in value.” For these reasons, we conclude that the dissenting judge of the panel correctly determined that actuarial equivalence requires “optional benefits that include payments to a survivor be equal in value to the straight-life benefit on the basis of statistical data regarding mortality and other factors such as the rate of interest.”
B. THE COLLECTIVE BARGAINING AGREEMENTS
While the ordinance clearly gives the commission discretion to maintain actuarially equivalent joint and survivor benefits, the ordinance is only effective as to unionized employees “as provided in the applicable collective bargaining agreement... .” As a result, we must examine the individual collective bargaining agreements to determine whether they incorporate the ordinance’s terms. Eight of the nine collective bargaining agreements at issue in this case expressly incorporate the terms of the retirement ordinance in the determination of retirement benefits. They state identically that “[t]he Employer shall continue the benefits as provided by the presently constituted Macomb County Employees’ Retirement Ordinance, and the Employer and the employee shall abide by the terms and conditions thereof, provided, that the provisions thereof may be amended by the Employer as provided by the statutes of the State of Michigan . .. Because the collective bargaining agreements cover the calculation of retirement benefits, we conclude that the grievance procedure is the appropriate avenue for the charging parties’ claims arising out of the parties’ rights under their respective collective bargaining agreement.
The ninth collective bargaining agreement — between the Macomb County Road Commission and AFSCME Local 893 — implicitly incorporates the retirement ordinance. A subject “need not be explicitly mentioned in an agreement in order for the subject to be ‘covered by’ the agreement.” In the context of retiree health care benefits, the Local 893 collective bargaining agreement states that “[h]ospital-medical coverage will be extended to a retiring Employee and spouse who qualifies and received [sic] benefits under the Macomb County Retirement Ordinance” and that this coverage “shall be discontinued upon the death of the retiree, unless the spouse continues to be entitled to and receive payment under a retirement benefit option.” Additionally, it states that “[ejmployees retiring from the Road Commission of Macomb County and eligible for benefits under the Ma-comb County Retirement Ordinance” shall receive a $10,000 life insurance benefit. The collective bargaining agreement specifies the formula to calculate a retiree’s pension benefits but, more important for the purposes of this case, it expressly refers to a “retirement benefit option” that allows a surviving beneficiary to receive benefits. As a result, we hold that this collective bargaining agreement incorporates the retirement ordinance to the extent that the ordinance governs optional joint and survivor benefits and that the grievance procedure is the appropriate forum for the remaining charging party to raise its claim regarding disputes arising out of the collective bargaining agreement.
C. PAST PRACTICE
The parties have unambiguously expressed in the collective bargaining agreements their intent that the retirement ordinance governs the commission’s discretion to amend the actuarial tables used to calculate joint and survivor benefits and to ensure that retirees enjoy actuarially equivalent benefits regardless of the option that they select. Nevertheless, the charging parties claim that the past practice of using the female actuarial table to calculate those benefits created a new term or condition of employment that exists independently from the collective bargaining agreement.
As stated, this Court’s caselaw allows a charging party- to raise an unfair labor practice complaint for changing a term or condition of employment even when a collective bargaining agreement controls, but only when the new term or condition amounts to an amendment of the collective bargaining agreement. However, overcoming an unambiguous provision in the collective bargaining agreement requires the charging parties to “show the parties had a meeting of the minds with respect to the new terms or conditions so that there was an agreement to modify the contract.” The past practice must be “so widely acknowledged and mutually accepted that it creates an amendment to the contract.”
The evidence here does not establish more than the charging parties’ unilateral expectation that the female actuarial table would continue to be used even if it were determined by the retirement commission that a different table would better effectuate the provisions of the retirement plan. The charging parties rely only on the fact that the female actuarial table has been used for more than two decades as dispositive of this issue. In Gogebic Community College Michigan Educational Support Personnel Ass’n v Gogebic Community College, the Court of Appeals ruled that the parties intended that the employer would have discretion to choose a dental insurance carrier because the collective bargaining agreement only articulated the benefits due employees. There, testimony that the union’s chief negotiator expected the employer to continue using a particular dental insurance carrier “does not amount to a ‘meeting of the minds’ that the employer would only use the [existing dental carrier] and falls far short of demonstrating conduct showing an unequivocal modification with ‘definite, certain, and intentional’ terms.”
Gogebic is instructive in this case. Indeed, our conclusion here is stronger than that in Gogebic because the ordinance expressly stated that the retirement commission has discretion to amend the actuarial table. Moreover, the parties negotiated the instant collective bargaining agreements before they took effect in 2005 — after the retirement commission had been using the female actuarial table for 23 years. If the parties had intended to remove the discretion from the retirement commission’s authority, they had ample opportunity to do so. The fact that the retirement commission chose not to exercise its discretion until 2006 does not overcome the parties’ reaffirmation in their collective bargaining agreements of the discretion provided to the retirement commission in the ordinance.
The dissent argues that § 15 of the retirement ordinance establishes the parties’ intent to enshrine the 100% female actuarial table as a term of employment, or at least creates an ambiguity regarding whether the retirement commission retained the discretion to adopt a different actuarial table. The dissent is wrong on both counts.
First, § 15 of the ordinance initially reinforces that the retirement commission has discretion to formulate an appropriate actuarial table. Only then does this provision note that the retirement commission “is cur rently using... a blending of male and female rates.” This description of the current actuarial table does not in any way indicate the intent to limit the retirement commission’s discretion to adopt a different actuarial table in the future, nor does it create an ambiguity in the retirement commission’s discretion. Thus, § 15 does not negate — in fact, it reinforces — the retirement commission’s discretion to establish actuarial tables.
Second, while the charging parties and dissent urge that the 100% female actuarial table was a bargained-for benefit that respondents could not unilaterally change, § 15 actually undercuts this argument. Rather than specifying with particularity that the retirement system was “currently using” the 100% female actuarial table, § 15 simply describes the then “current” actuarial table as a “blending of male and female rates.” Accordingly, the dissent’s reliance on § 15 is unfounded.
Finally, the UAW asserts that the retirement commission acknowledged that the actuarial table is a term or condition of employment and points to a statement in the minutes that the county’s human resources director should “meet and confer (not meet and approve) with the unions regarding this change.” However, assuming that the retirement commission’s belief about the nature of these collective bargaining agreements was relevant, this statement actually belies the UAW’s claim that the retirement commission acted with the understanding that the actuarial table was a term or condition of employment. The statement indicates that the commission was not looking for the unions’ ap proval of the 60% male actuarial table but expected that the unions would be consulted about the change. The charging parties can point to no mutual commitment that the retirement commission would continue using the female actuarial table. As a result, the commission’s past practice of using the female actuarial table did not create a term or condition of employment independent from the collective bargaining agreements.
V CONCLUSION
Because the collective bargaining agreements at issue in this case cover the subject of the unfair labor practice claims, the respondents satisfied their statutory obligation to bargain over the calculation of retirement benefits and the appropriate forum for challenging implementation of the collective bargaining agreements is the grievance process that the agreements contemplate. Moreover, absent a mutual agreement, the mere lengthy use of the female actuarial table did not create a term or condition of employment independent of the collective bargaining agreements. Therefore, we reverse the Court of Appeals and remand this case to the MERC for dismissal of the charging parties’ unfair labor practice claims.
Markman, Kelly, and Zahra, JJ., concurred with Young, C.J.
MCL 423.201 et seq.
Port Huron Ed Ass'n v Pori Huron Area Sch Dist, 452 Mich 309, 321; 550 NW2d 228 (1996).
Macomb County retirement ordinance, § 1.
Id. at § 3.
Section 22(b) of the Macomb County retirement ordinance conditions a union represented employee’s benefits on those “provided in the applicable collective bargaining agreement. . . ."
Macomb County retirement ordinance, § 26(a). The ordinance lists five separate options, with varying benefits that the surviving beneficiary would receive.
City of Los Angeles Dept of Water & Power v Manhart, 435 US 702; 98 S Ct 1370; 55 L Ed 2d 657 (1978).
OAG, 1981-1982, No 5846, p 29 (January 22, 1981).
Any employees who retired before July 1, 2007, were unaffected by the decision and continued to receive benefits as calculated from the female actuarial table.
The charging parties are: AFSCME Council 25, Locals 411 and 893; International Union UAW Locals 412 and 889; and Michigan Nurses Association.
The respondents are: Macomb County, Macomb County Road Commission, and 16th Judicial Circuit Court. This case involves nine separate collective bargaining agreements between the charging parties and the respondents, each admitted as exhibits in the hearing before the hearing referee. Article 26(A) of the collective bargaining agreement between UAW Local 412, Unit 75 and Macomb County states that
[t]he Employer shall continue the benefits as provided by the presently constituted Macomb County Employees’ Retirement Ordinance, and the Employer and the employee shall abide by the terms and conditions thereof, provided, that the provisions thereof may he amended by the Employer as provided by the statutes of the State of Michigan ....
An identical provision appears in seven of the other collective bargaining agreements: between UAW Local 889 and Macomb County, between AFSCME Local 411 and Macomb County, between the Michigan Nurses Association and Macomb County, and between four additional bargaining units of UAW Local 412 and Macomb County. The collective bargaining agreement between AFSCME Local 893 and the Macomb County Road Commission referred to the ordinance in outlining health and life insurance benefits and to “retirement benefit optionfs]” in outlining a surviving spouse’s health insurance benefits.
A hearing referee’s proposed decision “shall be considered by the commission only if raised in exceptions or cross exceptions to the proposed decision and recommended order filed under R 423.176.” Mich Admin Code, R 423.161(6). Mich Admin Code, R 423.176 provides that “[ajny party may file written exceptions to the decision and recommended order of the administrative law judge, or to any other part of the record or proceedings, including rulings upon motions or objections, and a brief in support thereof.” Although Teamsters Local 214 was initially a charging party against respondent 16th Judicial Circuit Court, it did not file exceptions to the hearing referee’s decision pursuant to Rule 423.176. Accordingly, the MERC adopted the hearing referee’s decision and recommended order as to Teamsters Local 214. MERC Case No. C07 E-111 (January 25, 2010).
The MERC held that respondents could only change the actuarial table if the parties agreed to a different actuarial table or if, upon expiration of the existing collective bargaining agreements, the parties’ good faith bargaining over the actuarial table reached an impasse. The MERC also ordered respondents to recalculate the joint and survivor benefits of any retiree whose benefits were reduced under the new actuarial table; to compensate them, with interest, for the reduction in benefits it had already paid; and to post a notice indicating their intent to comply with the ruling.
Macomb Co v AFSCME Council 25 Locals 411 & 893, 294 Mich App 149; 818 NW2d 384 (2011).
Id. at 165.
Id. at 166.
Id. at 170, quoting Port Huron Ed Ass’n v Port Huron Area Sch Dist, 452 Mich 309, 329; 550 NW2d 228 (1996) (brackets omitted).
294 Mich App at 178 (Markey, P.J., dissenting).
Id.
Id. at 184 (Markey, P.J., dissenting). Judge Markey alternatively concluded that actuarial assumptions are not subject to mandatory bargaining in the first instance because the commission “is vested with the authority to determine mortality tables and actuarial assumptions necessary to ensure ‘actuarial equivalence’ of optional requirement benefits....” Id. at 172 (Maekey, P.J., dissenting). However, respondents do not raise this threshold issue on appeal. Moreover, this Court has held that the calculation of retirement benefits is a matter of mandatory collective bargaining. Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 63; 214 NW2d 803 (1974).
491 Mich 915 (2012).
Const 1963, art 6, § 28. Amalgamated Transit Union, Local 1564, AFL-CIO v Southeastern Mich Transp Auth, 437 Mich 441, 450; 473 NW2d 249 (1991).
In re Complaint of Rovas Against SBC Mich, 482 Mich 90, 102; 754 NW2d 259 (2008).
In re Egbert R Smith Trust, 480 Mich 19, 24; 745 NW2d 754 (2008).
Little v Hirschman, 469 Mich 553, 557; 677 NW2d 319 (2004).
Amalgamated Transit Union, 437 Mich at 450.
The PERA applies to any “any person holding a position by appointment or employment in the government of this state, in the government of 1 or more of the political subdivisions of this state, in the public school service, in a public or special district, in the service of an authority, commission, or board, or in any other branch of the public service,” subject to exceptions not applicable in this case. MCL 423.201(1)(e).
1976 PA 18; MCL 423.201 et seq.
The Lamphere Sch v Lamphere Federation of Teachers, 400 Mich 104, 116; 252 NW2d 818 (1977). The PERA amended the Hutchinson Act, 1947 PA 336, which “had prohibited public employees from engaging in collective bargaining. The PERA not only permitted collective bargaining by employees, see [MCL 423.09], but it [also] required public employers to negotiate with public employees’ bargaining units, see [MCL 423.10].” Id.
Detroit Fire Fighters Ass’n v Detroit, 408 Mich 663, 684; 293 NW2d 278 (1980).
MCL 423.215(1). Section 15(1) of the PERA covers similar subjects of mandatory collective bargaining as § 8(d) of the National Labor Relations Act. 29 USC 158(d) (requiring covered employers to bargain “with respect to wages, hours, and other terms and conditions of employment”). See Detroit Police Officers Ass’n, 391 Mich at 53 (“The decision by the Michigan Legislature to adopt the language of § 8(d) of the NLRA is significant.”).
Detroit Police Officers Ass’n, 391 Mich at 63.
MCL 423.210(1)(e).
Amalgamated Transit Union, 437 Mich at 449-450.
MCL 423.216.
Detroit Police Officers Ass’n, 391 Mich at 53.
Id. at 53-54.
Id. at 55.
Port Huron Ed Ass’n, 452 Mich at 317-318.
Id. at 318, quoting Local Union No 47, Int’l Brotherhood of Electrical Workers v NLRB, 288 US App DC 363, 368; 927 F2d 635 (1991).
See, e.g., Wilkie v Auto-Owners Ins Co, 469 Mich 41, 52; 664 NW2d 776 (2003) (“The notion, that free men and women may reach agreements regarding their affairs without government interference and that courts will enforce those agreements, is ancient and irrefutable.”).
Port Huron Ed Ass’n, 452 Mich at 319, quoting Dep’t of Navy v Fed Labor Relations Auth, 295 US App DC 239, 248; 962 F2d 48 (1992).
Port Huron Ed Ass’n, 452 Mich at 327.
Id. at 321.
Id.
Id.
Id. “[Arbitration has come to be the favored procedure for resolving grievances in federal and Michigan labor relations . ...” Grand Rapids v Grand, Rapids Lodge No 97, Fraternal Order of Police, 415 Mich 628, 634; 330 NW2d 52 (1982). However, “[t]he preference for arbitration ... is triggered only if the parties agree to arbitrate.” Id.
See St Clair Co Rd Comm v Local 516M Serv Employees Int’l Union, 1992 MERC Labor Op 533, 538 (“Where there is a contract covering the subject matter of a dispute, which has provisions reasonably relied on for the action in question, and the contract also has a grievance procedure with final and binding arbitration, the Commission finds that the contract controls and no PERA issue is presented.”).
Port Huron Ed Ass’n, 452 Mich at 329. When the collective bargaining agreement is ambiguous or silent on the subject, “there need only be ‘tacit agreement that the practice would continue.’ ” Id. at 325, quoting Amalgamated Transit Union, 437 Mich at 454-455.
Port Huron Ed Ass’n, 452 Mich App at 312.
Grand Rapids, 415 Mich at 634.
Detroit Police Officers Ass’n, 391 Mich at 63.
Macomb County Retirement Ordinance, § 15.
Section 26(a) of the Macomb County Retirement Ordinance provides:
Prior to the receipt of his/her first monthly retirement payment but not thereafter, a member may elect to receive his/her retirement allowance as a straight life retirement allowance payable throughout his/her life or he/she may elect to receive the actuarial equivalent, at that time, of his/her straight life retirement allowance in a reduced retirement allowance payable throughout his/her life and nominate a beneficiary . ..
The beneficiary then would receive payments on his or her survival of the employee on the basis of the particular provisions of the five options listed. Moreover, § 22(b) allows a union represented member to “elect to receive his/her retirement allowance under an option provided in Section 26 in lieu of a straight life retirement allowance.”
See MCL 8.3a (“ [Technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”); Gora v City of Ferndale, 456 Mich 704, 711; 576 NW2d 141 (1998) (“The rules governing the construction of statutes apply with equal force to the interpretation of municipal ordinances.”).
Black’s Law Dictionary (8th ed), p 39.
OAG, 1981-1982, No 5846, p 31, quoting King Co Employees’ Ass’n v State Employees Retirement Bd, 54 Wash 2d 1; 336 P2d 387, 391 (1959) (emphasis omitted).
In concluding that the term “actuarial equivalent” is ambiguous, the Court of Appeals majority erroneously focused on a different statement by the charging parties’ expert witness that distinguished actuarial equivalence from the valuation of benefits: “ ‘[Ajetuarially equivalent is usually a term used in a plan document to set the optional forms to another optional form. The valuation of those optional forms is a different matter, whole different assumption set.’ ” Macomb Co, 294 Mich App at 164 (emphasis omitted). However, the extratextual evidence that the Court of Appeals majority used to define the ordinance’s term did not refute the plain meaning of the term.
The expert noted that actuaries use gender-based actuarial tables when valuing future expected outlays for the purposes of valuing its pension obligations on the open market. He testified that “to value these benefits, they would value them as an open market valuation,” which takes a recipient’s sex into account, unlike the method used to define the recipient’s benefits.
Thus, it is unremarkable for an expert to say that the county’s own valuation of its pension obligations uses a different set of assumptions than its calculation of the pension benefits that are due its employees. This internal calculation is a more precise projection of its future pension funding obligations because, unlike the calculation of benefits due an employee, the county’s internal calculation of its obligations can factor the differences in life expectancy between men and women.
Macomb Co, 294 Mich App at 177 (Maekey, P.J., dissent). Judge Markey interpreted the term “actuarial equivalent” by looking to the separate definitions of the terms “actuary” and “equivalent.” However, as stated, the phrase “actuarial equivalence” is a term of art and as such has independent significance, as evidenced by its use in many similar retirement plans. See, e.g., Dunn v Bd of Trustees of Wayne Co Retirement Sys, 160 Mich App 384, 394; 407 NW2d 657 (1987) (“An employee pension... shall be the actuarial equivalent of his accumulated contributions standing to his credit....”) (quotation marks and citation omitted).
Macomb County Retirement Ordinance, § 22(b).
The eight collective bargaining agreements containing identical language are those bargained by: UAW Local 412, Units 39, 46, 49, 55, and 75; UAW Local 889; AFSCME Local 411; and the Michigan Nurses Association.
Each of these collective bargaining agreements specifies a grievance procedure. Six of the collective bargaining agreements provide a grievance procedure for “all disputes that may arise between [the parties] concerning the interpretation or operation of this Agreement.” The collective bargaining agreement between UAW Local 889 and Macomb County states that the grievance procedure applies to “all disputes, including but not limited to dismissals, suspensions, demotions and other disciplinary actions of any type that may arise between [the parties] concerning the interpretation or operation of this Agreement.” Finally, the collective bargaining agreement between UAW Local 412, Unit 46 and Macomb County states that a grievance is “a claim, reasonably, and sensibly founded, of a violation of this Agreement.”
Port Huron Ed Ass ’n, 452 Mich at 322 n 16, citing Dep’t of Navy, 295 US App DC at 252.
The collective bargaining agreement also supplies a grievance process “limited to a complaint or request of the grievant which involves the interpretation [or] application of, or compliance with, the provisions of this Agreement.”
Port Huron Ed Ass’n, 452 Mich at 312 (emphasis added).
Id. at 329 (emphasis added).
Gogebic Community College Mich Ed Support Personnel Ass’n v Gogebic Community College, 246 Mich App 342; 632 NW2d 517 (2001).
Id. at 354, quoting Port Huron, 452 Mich at 329.
“The Retirement Commission shall from time to time adopt such mortality and other tables of experience, and a rate or rates of regular interest, as are necessary in the Retirement System on an actuarial basis.” Macomb County Retirement Ordinance, § 15.
Id. (emphasis added).
In contrast to this case, the charging party in Detroit Police Officers Ass’n v Detroit provided evidence indicating that the employer admitted that the past practice was binding. Detroit Police Officers Ass’n v Detroit, 452 Mich 339, 347; 551 NW2d 349 (1996). | [
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Markman, J.
Defendant’s first trial was declared a mistrial because of a hung jury. Following defendant’s second jury trial, he was convicted of assault with intent to murder and possession of a firearm during the commission of a felony. On appeal, the Court of Appeals reversed defendant’s convictions, concluding inter alia that defendant had been improperly impeached with his silence when the prosecutor made repeated references to his failure to testify at his first trial. We granted leave requesting that the parties address: (1) whether the prosecutor’s impeachment of defendant’s testimony using defendant’s failure to testify at his earlier trial violated defendant’s Fifth Amendment right against self-incrimination and (2) whether prior consistent statements by the complainant were admissible under MRE 801(d)(1)(B). People v Clary, 491 Mich 933 (2012).
Because we believe that the prosecutor’s impeachment of defendant’s testimony with his failure to testify at his earlier trial was not improper, we reverse the judgment of the Court of Appeals to that extent. The Court of Appeals also addressed whether the prosecutor’s references to defendant’s post-arrest, post-Miranda silence were improper and held that reversal was not required because the record was unclear regarding whether the post-arrest silence also constituted post-Miranda silence. However, our review of the transcript of defendant’s arraignment indicates that defendant was informed of his Miranda rights at his arraignment, and thus we hold that the prosecutor’s references to defendant’s post-arrest, post-Miranda silence at trial plainly violated Doyle v Ohio, 426 US 610, 618-619; 96 S Ct 2240; 49 L Ed 2d 91 (1976). Accordingly, we do not disturb the ultimate disposition reached by the Court of Appeals, i.e., the reversal of defendant’s convictions. We otherwise vacate this Court’s June 6, 2012 order granting leave to appeal and deny the prosecutor’s application for leave to appeal because we are not persuaded that this Court should review the remaining question presented. Finally, we remand this case to the trial court for further proceedings consistent with this opinion. If defendant chooses to testify at a third trial, the prosecutor may again refer to defendant’s failure to testify at his first trial without violating defendant’s constitutional rights.
I. FACTS AND HISTORY
At defendant’s first trial, the complainant testified that defendant shot him. Defendant did not testify. The trial was eventually declared a mistrial because of a hung jury. At defendant’s second trial, the complainant again testified that defendant shot him, but this time defendant testified that he did not shoot the complainant. The prosecutor impeached defendant’s testimony by asking him why he had not provided that testimony at the first trial. The prosecutor also commented on defendant’s silence at his first trial during closing arguments. Following defendant’s second jury trial, defendant was convicted of assault with intent to murder, MCL 750.83, and possession of a firearm during the commission of a felony, MCL 750.227b. The Court of Appeals reversed defendant’s convictions, concluding, among other things, that defendant was improperly impeached with his silence when the prosecutor made several references to defendant’s failure to testify at his first trial. People v Clary, unpublished opinion per curiam of the Court of Appeals, issued February 16, 2012 (Docket No. 301906). We granted the prosecutor’s application for leave to appeal. Clary, 491 Mich 933.
II. STANDARD OF REVIEW
Whether defendant was improperly impeached with his silence is a question of law that we review de novo. People v Borgne, 483 Mich 178, 184; 768 NW2d 290 (2009).
III. ANALYSIS
A. BACKGROUND
The Fifth Amendment of the United States Constitution provides that “[n]o person shall... be compelled in any criminal case to be a witness against himself. . . US Const, Am V See also Const 1963, art 1, § 17. The Fifth Amendment has been made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Malloy v Hogan, 378 US 1, 3; 84 S Ct 1489; 12 L Ed 2d 653 (1964). Pursuant to Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966), in order to protect the privilege against compelled self-incrimination during custodial police interrogations, the suspect “must be warned that he has a right to remain silent [and] that any statement he does make may be used as evidence against him . . . .” The United States Supreme Court has held that “the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence [at trial] or instructions by the court that such silence is evidence of guilt.” Griffin v California, 380 US 609, 615; 85 S Ct 1229; 14 L Ed 2d 106 (1965). That is, the Fifth Amendment prohibits using a defendant’s failure to take the stand as substantive evidence of guilt. Id. The Court has also held that “ ‘[w]hen a person under arrest is informed, as Miranda requires, that he may remain silent, [and] that anything he says may be used against him,’ ” “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence [at the time of his arrest] to be used to impeach an explanation subsequently offered at trial.” Doyle, 426 US at 618-619 (citation omitted); see also Borgne, 483 Mich at 186-188; People v Shafier, 483 Mich 205, 212-214; 768 NW2d 305 (2009).
However, the United States Supreme Court has also held that “the use of prearrest silence to impeach a defendant’s credibility violates [n]either the Fifth [n]or the Fourteenth Amendment to the Constitution.” Jenkins v Anderson, 447 US 231, 232, 238, 240; 100 S Ct 2124; 65 L Ed 2d 86 (1980); see also People v Cetlinski (After Remand), 435 Mich 742, 757; 460 NW2d 534 (1990) (“[N] either the Fifth Amendment nor the Michigan Constitution preclude^] the use of prearrest silence for impeachment purposes.”). Moreover, it has also held that “[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.” Fletcher v Weir, 455 US 603, 607; 102 S Ct 1309; 71 L Ed 2d 490 (1982). Finally, it has held that “the Fifth Amendment is not violated when a defendant who testifies in his own defense is impeached with his prior silence” at his first trial. Jenkins, 447 US at 235, citing Raffel v United States, 271 US 494; 46 S Ct 566; 70 L Ed 1054 (1926).
B. RAFFEL AND STEWART
In Raffel, 271 US at 496, 499, the United States Supreme Court held that it was not “error to require the defendant, Raffel, offering himself as a witness upon the second trial, to disclose that he had not testified as a witness in his own behalf upon the first trial.”
The immunity from giving testimony is one which the defendant may waive by offering himself as a witness. When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined as to the facts in issue. He may be examined for the purpose of impeaching his credibility. His failure to deny or explain evidence of incriminating circumstances of which he may have knowledge, may be the basis of adverse inference, and the jury may be so instructed.[ ] His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.
If, therefore, the questions asked of the defendant were logically relevant, and competent within the scope of the rules of cross-examination, they were proper questions .... [Id. at 496-497 (citations omitted).]
The Court then held that asking the defendant about his silence at his first trial was logically relevant and competent within the scope of the general rules of cross-examination:
[W]e do not think the questions asked of him were irrelevant or incompetent. For if the cross-examination had revealed that the real reason for the defendant’s failure to contradict the government’s testimony on the first trial was a lack of faith in the truth or probability of his own story, his answers would have a bearing on his credibility and on the truth of his own testimony in chief.[ ]
It is elementary that a witness who upon direct examination denies making statements relevant to the issue, may be cross-examined with respect to conduct on his part inconsistent with this denial. The value of such testimony, as is always the case with cross-examination, must depend upon the nature of the answers elicited; and their weight is for the jury. But we cannot say that such questions are improper cross-examination, although the trial judge might appropriately instruct the jury that the failure of the defendant to take the stand in his own behalf is not in itself to be taken as an admission of the truth of the testimony which he did not deny. [Id. at 497-498.][ ]
In summary, the Court held:
The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and not for those who do. There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation, as does any other witness. We can discern nothing in the policy of the law against self-incrimination which would require the extension of immunity to any trial or to any tribunal other than that in which the defendant preserves it by refusing to testify. [Id. at 499.]
We are not persuaded by the Court of Appeals’ attempt to distinguish Raffel. The Court of Appeals stated, “Unlike the defendant in Raffel, defendant in this case did not contradict the testimony of a witness offered at both his first and second trial.” Clary, unpub op at 8. We respectfully disagree. In both Raffel and the instant case, the defendant contradicted the testimony of a witness offered at both the first and second trials. In Raffel, the defendant contradicted the testimony of a government agent who testified that the defendant had made admissions of guilt, and in the instant case, defendant contradicted the testimony of the complainant who testified that defendant shot him.
We are equally unpersuaded by the Court of Appeals’ conclusion that the instant case is more like Stewart v United States, 366 US 1; 81 S Ct 941; 6 L Ed 2d 84 (1961). Unlike in Raffel and the instant case, in Stewart the defendant did not contradict the testimony of a witness offered at both his first and second trials. As Stewart, 366 US at 5-6, explained:
The Raffel case . .. involved a situation in which Raffel had sat silent at his first trial in the face of testimony by a government agent that Raffel had previously made admissions pointing to his guilt. On a second trial, Raffel took the stand and denied the truth of this same testimony offered by the same witness. Under these circumstances, this Court held that Raffel’s silence at the first trial could be shown in order to discredit his testimony at the second trial on the theory that the silence itself constituted an admission as to the truth of the agent’s testimony. The result was that Raffel’s silence at the first trial was held properly admitted to impeach the specific testimony he offered at the second trial. Here, on the other hand, the defendant’s entire “testimony” comprised nothing more than “gibberish without meaning” with the result that there was no specific testimony to impeach.
This “gibberish” was apparently offered to demonstrate that the defendant was insane, which was the defendant’s chief defense at all three of his trials, and not to contradict the testimony of any witness. The United States Supreme Court held that because the defendant’s silence was not used for impeachment purposes, it was not admissible under Raffel. In this case, however, defendant’s silence was clearly used for impeach ment purposes and, thus, it is admissible under Raffel. We therefore hold that defendant was not improperly impeached with his silence when the prosecutor made repeated references to his failure to testify at his first trial. Accordingly, if defendant chooses to testify at a third trial, the prosecutor may again refer to defendant’s failure to testify at his first trial without violating defendant’s constitutional rights.
C. DOYLE AND JENKINS
However, the prosecutor may not again refer to defendant’s post-arrest, post -Miranda silence with the police because to do so would clearly violate Doyle, 426 US at 618-619, which prohibits the admission of post-arrest, post -Miranda silence with the police. At defen dant’s second trial, the prosecutor impeached defendant by asking him why, after he was arrested and arraigned, he had not told the police that he did not shoot the complainant. The prosecutor also referred to this silence during her closing argument. The Court of Appeals held that there was no Doyle violation because “[a]fter reviewing the record, it is unclear whether the post-arrest silence referenced by the prosecutor was also post -Miranda silence.” Clary, unpub op at 5. This Court subsequently granted defendant’s motion to consider the transcript of defendant’s arraignment, which shows that defendant had been informed of his Miranda rights at his arraignment. Clary, 821 NW2d 314 (Mich, 2012). Given this new information, it seems clear that the prosecutor’s references to defendant’s post-arrest, post -Miranda silence with the police violated Doyle. Accordingly, we hold that if there is a third trial, defendant’s post-arrest, post-Miranda silence with the police is inadmissible.
Defendant argues that there is a tension between Raffel and Doyle because while Doyle holds that post-Miranda silence is admissible, Raffel holds that silence at an earlier trial is admissible to impeach a defendant who testifies at a subsequent trial, even though this silence is also post -Miranda silence. Although we recognize this tension, we also recognize that Raffel has not been overruled by Doyle or by any other United States Supreme Court decision. Indeed, Doyle expressly held that it was “unnecessary” to address in that case the constitutionality of a prosecutor’s inquiry into silence after the time of arrest because that later silence “present[s] different considerations . . . .” Doyle, 426 US at 616 n 6. Specifically, Doyle explained:
In addition, error of constitutional dimension is asserted because each petitioner was cross-examined as to post- arrest, preliminary hearing, and general pretrial silence when he testified as a defense witness at the other petitioner’s trial. These averments of error present different considerations from those implicated by cross-examining petitioners as defendants as to their silence after receiving Miranda warnings at the time of arrest.[ ] In view of our disposition of this case we find it unnecessary to reach these additional issues. [Id. (emphasis omitted).]
Therefore, it appears that Doyle’s rule prohibiting the admission of post -Miranda silence applies to silence at the time of arrest, while Raffel’s rule permitting the admission of post-Miranda silence applies to silence at an earlier trial when the defendant takes the stand at a subsequent. trial. This conclusion is further underscored by the fact that after Doyle was decided, the United States Supreme Court in Jenkins recognized the continued vitality of Raffel’s rule that a defendant’s silence at his first trial can be used to impeach the defendant at a subsequent trial if the defendant decides to take the stand. Jenkins, 447 US at 235-238. Not only did Jenkins favorably discuss Raffel at length, but it also expressly rejected the suggestion “that the constitutional rule of Raffel was limited by later decisions of the Court,” explaining that “no Court opinion decided since Raffel has challenged its holding that the Fifth Amendment is not violated when a defendant is impeached on the basis of his prior silence.” Id. at 237 n 4.
D. “CHILLING” FIFTH AMENDMENT EIGHTS
Defendant suggests that a person facing a trial will be less likely to rely on his right to remain silent if he knows that his reliance on that right can be subsequently used against him, that is to say, exercise of the Fifth Amendment right against self-incrimination will be “chilled.” However, as Jenkins, 447 US at 236-237, explained, “The Raffel Court explicitly rejected the contention that the possibility of impeachment by prior silence is an impermissible burden upon the exercise of Fifth Amendment rights.” In other words, Raffel specifically considered the argument that “the adoption of the rule contended for by the Government might operate to bring pressure on the accused to take the stand on the first trial, for fear of the consequences of his silence in the event of a second trial; and might influence the defendant to continue his silence on the second trial because his first silence may there be made to count against him,” and held that this argument was “without substance.” Raffel, 271 US at 498-499.
We need not close our eyes to the fact that every person accused of crime is under some pressure to testify, lest the jury, despite carefully framed instructions, draw an unfavorable inference from his silence.[ ] When he does take the stand, he is under the same pressure: to testify fully, rather than avail himself of a partial immunity. And the accused at the second trial may well doubt whether the advantage lies with partial silence or with complete silence. Even if, on his first trial, he were to weigh the consequences of his failure to testify then, in the light of what might occur on a second trial, it would require delicate balances to enable him to say that the rule of partial immunity would make his burden less onerous than the rule that he may remain silent, or at his option, testify fully, explaining his previous silence. We are unable to see that the rule that if he testifies, he must testify fully, adds in any substantial manner to the inescapable embarrassment which the accused must experience in determining whether he shall testify or not. [Id. at 499 (citations omitted).]
It is well established that “the Constitution does not forbid ‘every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.’ ” Jenkins, 447 US at 236, quoting Chaffin v Stynchcombe, 412 US 17, 30; 93 S Ct 1977; 36 L Ed 2d 714 (1973). More specifically, “[i]t is well settled that the government need not make the exercise of the Fifth Amendment privilege cost free.” McKune v Lile, 536 US 24, 41; 122 S Ct 2017; 153 L Ed 2d 47 (2002) (opinion by Kennedy, J.). For example, in Crampton v Ohio, decided with McGautha v California, 402 US 183, 185, 211; 91 S Ct 1454; 28 L Ed 2d 711 (1971), the Court held that Ohio’s single-trial procedure, which allowed a defendant to “remain silent on the issue of guilt only at the cost of surrendering any chance to plead his case on the issue of punishment,” was “constitutionally permissible.” As the Court explained:
The criminal process, like the rest of the legal system, is replete with situations requiring “the making of difficult judgments” as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose....
... It does no violence to the privilege that a person’s choice to testify in his own behalf may open the door to otherwise inadmissible evidence which is damaging to his case....
It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like.[ ] Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify. [Id. at 213-215 (citations omitted).]
Similarly, in Chaffin, 412 US at 18, 29, the Court held that “in those States that entrust the sentencing responsibility to the jury, the Due Process Clause of the Fourteenth Amendment [does not] bar[] the jury from rendering higher sentences on retrials following rever sals of prior convictions,” even though the potential of “harsher sentences on retrial.. . [may] have a ‘chilling effect’ on the convicted defendant’s exercise of his right to challenge his first conviction either by direct appeal or collateral attack.” “The choice occasioned by the possibility of a harsher sentence, even in the case in which the choice may in fact be ‘difficult,’ does not place an impermissible burden on the right of a criminal defendant to appeal or attack collaterally his conviction.” Id. at 35. See also Brady v United States, 397 US 742, 751; 90 S Ct 1463; 25 L Ed 2d 747 (1970) (declining “to hold .. . that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged”); People v Wyngaard, 462 Mich 659, 673-674; 614 NW2d 143 (2000) (“[T]he tactical decision that an inmate must make regarding whether to testify at a disciplinary hearing, when his testimony might potentially be used against him in a subsequent criminal proceeding, while perhaps quite difficult, does not constitute ‘compulsion’ under the Fifth Amendment.”) (citation and quotation marks omitted). Likewise, the fact that a defendant deciding whether to take the stand might consider that, if he does not take the stand and a mistrial is declared and the prosecutor decides to retry him and he subsequently decides to take the stand at his second trial, the prosecutor might be able to use his silence at his first trial to impeach his testimony at the second trial, does not place an impermissible burden on the defendant’s right to not take the stand in the first place. That is, it does not “compel” the defendant “to be a witness against himself,” which is all the Fifth Amendment prohibits.
“In determining whether a constitutional right has been burdened impermissibly, it also is appropriate to consider the legitimacy of the challenged governmental practice.” Jenkins, 447 US at 238. In this case, as in Jenkins, the challenged governmental practice is impeachment on cross-examination of a defendant, and as Jenkins, 447 US at 238, explained:
Attempted impeachment on cross-examination of a defendant, the practice at issue here, may enhance the reliability of the criminal process. Use of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts. A defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics. Once a defendant decides to testify, “[the] interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.”
Thus, impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truthfinding function of the criminal trial. [Citation omitted; alteration in the original.][ ]
A defendant in a criminal case does not have to testify. However, “[i]f he takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness . . . Brown v United States, 356 US 148, 154; 78 S Ct 622; 2 L Ed 2d 589 (1958); see also People v Collier, 426 Mich 23, 38; 393 NW2d 346 (1986) (“When a defendant at trial elects to waive his privilege not to testify and takes the stand, attempted impeachment is a time-honored method of advancing the truthfinding function.”). “Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all.” Brown, 356 US at 155. However, “[h]e cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, [also] an immunity from cross-examination on the matters he has himself put in dispute.” Id. at 155-156. Indeed, if the Fifth Amendment were interpreted to confer a “ ‘right to set forth to the jury all the facts which tend in [the defendant’s] favor without laying himself open to cross-examination upon those facts,’ ” “[i]t would make of the Fifth Amendment not only a human safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.” Id. at 155-156 (citation omitted). Because “ ‘[t]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility,’ ” id. at 156 (citation omitted), the Fifth Amendment has never been interpreted as conferring that right, and we refuse to do so here today.
IV CONCLUSION
For these reasons, we hold that defendant was not improperly impeached with his silence when the prosecutor made repeated references to defendant’s failure to testify at his first trial. We therefore reverse the judgment of the Court of Appeals to the extent that it conflicts with this holding. We also hold that the prosecutor’s references to defendant’s post-arrest, post-Miranda silence at trial plainly violated Doyle. Accordingly, we do not disturb the ultimate disposition reached by the Court of Appeals, i.e., the reversal of defendant’s convictions. We otherwise vacate this Court’s June 6, 2012 order granting leave to appeal and deny the prosecutor’s application for leave to appeal because we are not persuaded that this Court should review the remaining question presented. We also remand this case to the trial court for further proceedings consistent with this opinion. If defendant chooses to testify at a third trial, the prosecutor may again refer to his failure to testify at his first trial without violating defendant’s constitutional rights.
YOUNG, C.J., and Kelly and ZAHRA, JJ., concurred with Markman, J.
For instance, the prosecutor asked defendant, “You didn’t tell that jury the same story you’re telling this jury, did you, sir?” and “[I]f that was the truth and that was so important, why didn’t you tell the last jury?”
Specifically, the prosecutor said, “Well, ladies and gentleman, if it’s the truth, if it’s the truth and you’re on trial, why wouldn’t you tell the first jury?”
Cf. United States v Robinson, 485 US 25, 34; 108 S Ct 864; 99 L Ed 2d 23 (1988) (“It is one thing to hold, as we did in Griffin, that the prosecutor may not treat a defendant’s exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would prohibit the prosecutor from fairly responding to an argument of the defendant by adverting to that silence.”); People v Sutton (After Remand), 436 Mich 575, 580; 464 NW2d 276 (1990) (“[S]ilence is admissible to impeach a defendant’s claim that he did not remain silent.”).
See People v Prevost, 219 Mich 233, 238; 189 NW 92 (1922) (“ ‘The exemption from unfavorable comment is applicable only when the accused wholly refrains from testifying. If he voluntarily goes upon the stand, he waives this exemption, and the State may comment upon his testimony as fully as upon that of any other witness, and may call attention to his silence and demeanor while there, or at the preliminary examination, to his refusal to answer incriminating questions; or to deny prominent and damaging facts of which he must have some personal knowledgef.]’ ”), quoting Under-hill, Criminal Evidence (2d ed), § 68; People v McCrea, 303 Mich 213, 285; 6 NW2d 489 (1942) (“ ‘The privilege of the defendant against self-incrimination and its corollary, the prohibition against comment by counsel for the government upon his failure to testify, have been jealously protected by the courts. But, when the defendant elects, voluntarily, to testify, he waives his privilege, subjects himself to cross-examination and impeachment, and makes comment upon his testimony [or his refusal to testify] entirely proper.’ ”) (citation omitted).
While Justice CAVANAGH may be correct that Raffel “ ‘did not focus on the question whether the cross-examination there involved was in fact probative in impeaching the defendant’s credibility,’ ” post at 288 (emphasis added; citation omitted), Raffel also was not silent on the subject either. Instead, Raffel, 271 US at 497-498, expressly held that the defendant’s prior silence was not “irrelevant” and may “have a bearing on his credibility and on the truth of his own testimony in chief.” Contrary to Justice Cavanagh’s suggestion, we do not hold that “a defendant’s silence is per se highly probative, that a defendant’s silence at a previous trial is ‘plain evidence of guilt’ that should not be suppressed, or that the use of a defendant’s silence as an impeachment tool should be applied with ‘special vigor ....’” Post at 290 n 6. Instead, we simply hold that a defendant’s prior silence might be, under certain circumstances, probative evidence with regard to a defendant’s credibility, or lack thereof, and that when it is, assuming that its admission is otherwise permitted under the rules of evidence, it should not be excluded from the evidence presented to the jury.
Justice Cavanagh cites Justice Levin’s concurrence/dissent in Cetlinski, 435 Mich at 788-789, for the proposition that “ ‘a defendant’s silence is not generally admissible.’ ” Post at 289 (emphasis in the original). However, this seems to be inconsistent with the majority opinion in Cetlinski, 435 Mich at 760 n 31, which held that “prior silence of a witness with regard to a fact to which he has testified, where such silence occurs under circumstances in which he would be expected to speak out, may be used to impeach during cross-examination,” as well as with majority opinions from the United States Supreme Court. See, e.g., Jenkins, 447 US at 239 (“Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.”), citing 3A Wigmore, Evidence (Chadboum rev), § 1042, p 1056; Baxter v Palmigiano, 425 US 308, 319; 96 S Ct 1551; 47 L Ed 2d 810 (1976) (“[T]he Court has consistently recognized that in proper circumstances silence in the face of accusation is a relevant fact not barred from evidence by the Due Process Clause. Indeed,.. . [sjilence is often evidence of the most persuasive character.”) (citations and quotation marks omitted); United States v Hale, 422 US 171, 176; 95 S Ct 2133; 45 L Ed 2d 99 (1975) (“Silence gains more probative weight where it persists in the face of accusation, since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation.”); Grünewald v United States, 353 US 391, 422-423; 77 S Ct 963; 1 L Ed 2d 931 (1957) (“Innocent men are more likely to [remain silent] in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings, where cross-examination and judicially supervised procedure provide safeguards for the establishing of the whole, as against the possibility of merely partial, truth.”).
Moreover, “[t]he decision in Stewart v. United States was based on federal evidentiary grounds, not on the Fifth Amendment,” Jenkins, 447 US at 237 n 4 (citation omitted), and thus it is not binding on this Court. See People v Finley, 431 Mich 506, 514; 431 NW2d 19 (1988).
Defendant alternatively argues that his silence at his first trial is barred as an evidentiary matter. But see Cetlinski, 435 Mich at 760 n 31 (“[P]rior silence of a witness with regard to a fact to which he has testified, where such silence occurs under circumstances in which he would be expected to speak out, may be used to impeach during cross-examination.”). Because defendant did not previously raise this issue, the lower courts did not address it, and thus we will not address it either. However, on remand, defendant is not precluded from raising this issue. To this extent, we agree with Justice Cavanagh that “the fact that impeaching a defendant with his or her silence at a prior trial might be constitutional does not mean that, as an evidentiary matter, a defendant’s prior silence is automatically admissible in a later trial when a defendant elects to waive his constitutional and statutory rights in favor of testifying.” Post at 288-289 (emphasis altered). That is, we agree with Justice Cavanagh that the admission of a defendant’s prior silence, as with any other piece of evidence, must comply with the rules of evidence, including MRE 401 (defining relevant evidence), MRE 402 (providing that relevant evidence is generally admissible), and MRE 403 (providing that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”).
See Note, The Admissibility of Prior Silence to Impeach the Testimony of Criminal Defendants, 18 U Mich J L Reform 741, 752, 766 (1985) (Because “[t]he government inducement to remain silent, which may be caused by the shock of arrest, the fearful nature of custody, the Miranda warnings, or any combination thereof, will gradually lose its influence on the defendant as pressure is diminished and advice of counsel [is] obtained,” “silence occurring long after the Miranda ‘inducement’ may be used for impeachment.”).
See Williams v Florida, 399 US 78, 83-84; 90 S Ct 1893; 26 L Ed 2d 446 (1970) (“The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination.”); Barnes v United States, 412 US 837, 847; 93 S Ct 2357; 37 L Ed 2d 380 (1973) (“Introduction of any evidence, direct or circumstantial, tending to implicate the defendant in the alleged crime increases the pressure on him to testify. The mere massing of evidence against a defendant cannot be regarded as a violation of his privilege against self-incrimination. ”).
The decision in Crampton was later vacated on other grounds. Crampton v Ohio, 408 US 941; 92 S Ct 2873; 33 L Ed 2d 765 (1972).
Similarly, “a statement taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), may be used to impeach a defendant’s credibility.” Jenkins, 447 US at 237, citing Hams v New York, 401 US 222, 225; 91 S Ct 643; 28 L Ed 2d 1 (1971) (“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.”).
See Department of Justice, Office of Legal Policy, Report to the Attorney General on Adverse Inferences from Silence, 22 U Mich J L Reform 1005, 1007 (1989) (“While the nature of the evidence available in criminal prosecutions varies widely from case to case, there is one constant among the potential sources of evidence — -the defendant himself is almost invariably aware of whether he actually committed the offense with which he is charged. The criminal justice system’s approach to that uniquely knowledgeable individual (the defendant) as a source of evidence has an important bearing on its effectiveness in the pursuit of truth and substantive justice.”); Note, 18 U Mich J L Reform at 756 (“Use of prior silence to impeach a defendant’s trial testimony aids in the truth-testing function. Because the defendant has a critical interest in the outcome of his trial, he may have a great incentive to perjure himself or distort the facts when he testifies. Therefore, truth-testing functions of impeachment and cross-examination should he applied with special vigor to assure the veracity of the defendant’s testimony.”).
As explained in the Report to the Attorney General, 22 U Mich J L Reform at 1119-1120:
Any constraints on the discovery or use of evidence that the Constitution actually prescribes must, of course, be scrupulously observed. It is a very different matter, however, to create new “rights,” based on misinterpretations of the Constitution, which limit legislative discretion in seeking to improve the processes of justice for the benefit of the whole public, and impede government in discharging its primary mission of ensuring the security of its people in their lives and liberty:
“Truth here is the aim .... When the guilty go undetected, or, if detected, are nonetheless set free because plain evidence of guilt is suppressed, the price is exacted from what must be the first right of the individual, the right to be protected from criminal attack in his home, in his work, and in the streets. Government is constituted to provide law and order. The Bill of Rights must be understood in the light of that mission.
“There is no right to escape detection. There is no right to commit a perfect crime or to an equal opportunity to that end. The Constitution is not at all offended when a guilty man stubs his toe. On the contrary, it is decent to hope that he will.... Thus the Fifth Amendment does not say that a man shall not be permitted to incriminate himself, or that he shall not be persuaded to do so. It says no more than that a man shall not be ‘compelled’ to give evidence against himself.”
In particular, the [Fjifth [Ajmendment does not state or fairly imply that rules must be adopted to protect the defendant from the inferences which are normally drawn from silence in the face of incriminating circumstances. [Citation omitted.] | [
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Young, C.J.
Our common law has long imposed the same duty of care on landlords and merchants to remedy physical defects in premises over which they exert control. This consistency is premised on the similar degree of control both landlords and merchants exercise over the premises. Where third parties commit criminal acts against tenants and invitees in these controlled areas, landlords and merchants share a similar, albeit lesser, degree of control because of the inherent unpredictability of criminal conduct. Such unpredictability requires the imposition of a duty concomitant with the decreased amount of control. In MacDonald v PKT, Inc, we held that Michigan law imposes a duty on a merchant only when the merchant has notice that a third party’s criminal acts pose a risk of imminent and foreseeable harm to an identifiable invitee. In such a situation, the merchant’s duty to that invitee is limited to reasonably expediting involvement of the police. Recognizing that landlords and merchants exert similar degrees of control over their premises, and cognizant of our historical and consistent treatment of their duty to remedy physical defects, today we make clear that landlords owe the same limited duty of care when put on notice of criminal acts that pose a risk of imminent and foreseeable harm to an identifiable tenant or invitee — a duty to reasonably expedite police involvement.
In this case, because the plaintiff alleged that the landlord’s agents were informed of an imminent threat of criminal conduct against him and the landlord failed to contact the police after such notice, we affirm the judgment of the Court of Appeals in part and remand to the Court of Appeals for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Evergreen Regency Townhomes, LTD (Evergreen) is located in Flint, Michigan, and is owned and operated by Radney Management & Investments, Inc. (Radney). In 2003, Radney entered into a contract with Hi-Tech Protection (Hi-Tech) to provide Evergreen with security personnel to patrol the premises. In the summer of 2006, Radney and Hi-Tech negotiated a new contract with an effective date of August 28, 2006.
On August 4, 2006, plaintiff, Devon Bailey, attended an outdoor social gathering in the common area of Evergreen’s apartment complex, where Hi-Tech’s security guards William Baker and Christopher Campbell were patrolling the premises in a golf cart. At one point during the social event, Evergreen resident Laura Green informed the security guards that defendant Steven Schaaf was brandishing a revolver and threatening to kill someone. The security guards did not respond. Sometime after Green informed the security guards of Schaaf s behavior, the security guards heard two gunshots. Schaaf had shot plaintiff twice in his back, rendering plaintiff a paraplegic.
Plaintiff filed a civil suit against Schaaf, Evergreen, Radney, and Hi-Tech, its owner, and the two security guards on duty at the time of the incident. Plaintiff alleged that the security guards, Baker and Campbell, were agents of Hi-Tech, and that Hi-Tech was an agent of Radney and Evergreen. Plaintiff asserted multiple claims against defendants on the basis of various theories of liability, including premises liability, negligent hiring and supervising, ordinary negligence, vicarious liability, and breach of contract. Defendants filed a motion for partial summary disposition under MCR 2.116(C)(8), arguing that no defendant owed plaintiff any duty. Plaintiff also filed a motion for partial summary disposition under MCR 2.116(0(10), asserting that as a matter of law defendants Radney, Evergreen, and Hi-Tech owed plaintiff a duty on the basis of the contract to provide security services. The Genesee Circuit Court granted defendants’ motion and denied plaintiffs motion, which resulted in the dismissal of plaintiffs claims.
The Court of Appeals affirmed in part and reversed in part the trial court’s order. Regarding plaintiffs premises liability claim against defendants Evergreen and Radney, the Court of Appeals held that defendants owed plaintiff a duty to call the police in response to an ongoing situation on the premises, extending this Court’s decision in MacDonald to the landlord-tenant context. However, the Court of Appeals rejected plaintiffs argument that he was a third-party beneficiary of the provision-of-security contract between Hi-Tech and Evergreen, holding that the parties’ contract on which plaintiff relied — which had an effective date of August 28, 2006 — was not in effect on August 4, 2006, at the time of plaintiffs injuries. Finally, the Court of Appeals, applying Fultz v Union-Commerce Assoc, held that Hi-Tech did not owe plaintiff a duty that was separate and distinct from Hi-Tech’s duties under the original 2003 contract between Hi-Tech and Evergreen that was in effect at the time of plaintiffs injuries.
Defendants Radney and Evergreen filed an application for leave to appeal in this Court, arguing that the Court of Appeals erred by extending MacDonald to the landlord-tenant context, or, alternatively, that defendants were not vicariously hable for the security guards’ negligence because the security guards were not their agents. Moreover, even if the security guards were defendants’ agents, defendants argue that they could not be hable as principals under Al-Shimmari v Detroit Medical Center. Plaintiff also sought leave to cross-appeal the Court of Appeals’ holdings regarding plaintiffs claims that he was a third-party beneficiary of the contract between Evergreen and Hi-Tech, and that Hi-Tech owed plaintiff a duty that was separate and distinct from its contractual obhgations to Evergreen.
We granted defendants’ application for leave to appeal and asked the parties to address
whether the Court of Appeals erred when it extended the limited duty of merchants — to involve the police when a situation on the premises poses an imminent risk of harm to identifiable invitees, see [MacDonald, 464 Mich at 322] — to landlords and other premises proprietors, such as the defendant apartment complex and property management company.[ ]
II. STANDARD OF REVIEW
A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the claim on the basis of the pleadings alone and the ruling is reviewed de novo. “The motion must be granted if no factual development could justify the plaintiff’s claim for relief.” When deciding a motion under MCR 2.116(C)(8), the court must accept as true all factual allegations contained in the complaint. Whether a defendant owes a particular plaintiff a duty is a question of law that this Court reviews de novo. “Only after finding that a duty exists may the factfinder determine whether, in light of the particular facts of the case, there was a breach of the duty.” While ordinarily a juiy determines what constitutes the breach of a duty to provide reasonable care under the circumstances, “in cases in which overriding public policy concerns arise, the court determines what constitutes reasonable care.”
III. HISTORY OF COMMON LAW DUTY OF LANDLORDS AND MERCHANTS TO REMEDY PHYSICAL DEFECTS IN AREAS UNDER THEIR CONTROL
It is a basic principle of negligence law that, as a general rule, “there is no duty that obligates one person to aid or protect another.” However, our common law imposes a duty of care when a special relationship exists. These special relationships are predicated on an imbalance of control, where “one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself.” Michigan law has recognized that a special relationship exists between “[o]wners and occupiers of land [and] their invitees,” including between a landlord and its tenants and their invitees and between a merchant and its invitees.
The law of torts has historically conditioned the special relationship on the control that a possessor of premises — whether landlord or merchant — exerts over the premises. As a result, the law of torts has treated landlords and merchants the same in the context of their duties to maintain the physical premises over which they exercise control. In the landlord-tenant context, Justice COOLEY’s seminal treatise on torts provides that, “[i]n case of office and apartment buildings the landlord must exercise due care to keep the halls, stairs, passageways, and like appurtenances reasonably safe for the tenants and their families and servants and for those who come to visit or transact business with them.” Professors Prosser and Keeton confirm the same and, moreover, recognize that landlords are “closely analogous” to merchants because they both have a duty to keep reasonably safe from physical hazard areas over which they exert control.
This state’s common law has likewise historically recognized the congruence between a landlord’s and a merchant’s duties of care concerning the physical maintenance of premises over which they exercise control. This Court has consistently imposed on both landlords and merchants a duty of care to keep the premises within their control reasonably safe from physical hazard. In Butler v Watson, a poorly attached post situated on the rear porch of a residential apartment building fell and struck a small child. When considering the duties that a residential landlord owes to his tenants and their guests, this Court reasoned that a landlord owes a duty to its tenants and “all those who were approaching or leaving their premises for legitimate purposes” to “exercise reasonable diligence to keep such common portions of the property in a reasonably safe condition... .” This Court imposed the duty because of the control that the landlord continued to exercise over the common portion of the property:
[I]n such circumstances!],] the landlord not having let the common portion of the property to any one tenant, he has reserved the control thereof to himself. Having thus reserved control, it is his duty to exercise ordinary care for the safety of those about the same, other than trespassers, or mere licensees.[ ]
Thus, the landlord owed his tenants and their guests the duty to repair and make reasonably safe the porch upon which plaintiff was injured because it was a common area used by all the tenants and its control was reserved to the landlord.
Similarly, in Goodman v Theatre Parking, Inc, a man exited his car in defendant’s parking lot and stepped on a cinder, spraining his ankle. This Court recognized that a merchant owed its invitees a “duty to maintain its premises in a reasonably safe condition in view of the contemplated use thereof and the purposes for which the invitation has been extended,” and held that the defendant was obligated to keep the surface of its lot in a safe condition so that its patrons would not be harmed in entering or leaving the parking lot. Similarly, this Court’s caselaw has consistently established that a merchant’s duty of reasonable care over the physical premises does not extend to open and obvious physical hazards because of an invitee’s coexisting ability to take reasonable measures to avoid such hazards.
Siegel v Detroit City Ice & Fuel Co provides strong common-law support for concluding that a landlord and merchant have coextensive duties to protect invitees and tenants from physical hazards on the premises. There, two defendants — the commercial owner of a parking lot and the merchant theater that leased the parking lot from the owner — were both held liable for an invitee’s injury that arose from a hazard on the parking lot. After getting out of his car on his way to the theater, the plaintiff fell in a large oblong hole in the parking lot, injuring his femur. This Court explained that, because both the owner/landlord and the merchant/tenant shared control of the property due to the “joint right of ingress and egress,” they both owed a duty of care to invitees on the property. Recognizing that “[t]his is not a case where either the tenant or the landlord had exclusive control and possession of common passageways,” the Court’s decision turned on the fact that “defendants each had possession and control” of the premises. Notably, this Court did not establish that different duties existed for the owner/landlord and the merchant/tenant.
Providing further support for this principle is our opinion in Lipsitz v Schechter, which continued to recognize that a landlord owes a duty to its residential tenants and their invitees to keep areas under its control reasonably safe from physical hazards. For that legal proposition, the Court cited both Butler, a case involving a landlord’s responsibilities for its residential common area, and Siegel, involving as defendants both a commercial landlord and its tenant/merchant. Lipsitz itself involved a tenant who was walking outside her 4-story apartment building and was struck by a screen window that fell from the building. The Court reaffirmed that “the element of control is of prime importance” when determining the existence of a duty. Because the defendant landlord admitted that he had secured a screen window that had fallen from the building and that the landlord’s janitor occasionally removed the screens to wash them, the Court concluded that the landlord exercised control over the screen and was consequently under an obligation to remedy any defect with regard to the screen that constituted a hazard.
These cases illustrate the consistency of our treatment of landlords and merchants as it pertains to the physical maintenance of the areas over which they retain control. Whether someone who controls a premises is a landlord or a merchant, the element of control forms the basis of imposing a duty to invitees. As illustrated in Butler, where “the landlord not having let the common portion of the property to any one tenant, he has reserved the control thereof to himself.” Thus, where tenants, their invitees, or a merchant’s invitees lack control over certain premises, the concomitant actor in the special relationship — the landlord or merchant — bears the burden of control and thus the duty keep such areas reasonably safe.
IV LIABILITY FOR THE CRIMINAL ACTS OF OTHERS
Traditionally, the duty imposed on a landlord or merchant had been limited to protect tenants and other invitees from physical defects in the property over which they retained control, not to protect tenants and other invitees from the criminal acts of others in those controlled areas. However, in a series of cases dating from the 1970s, this Court expanded the duty of both lándlords and merchants to protect their tenants and invitees from those criminal acts. The first case to do so, Manuel v Weitzman, held that a bar owner may be liable in common law negligence for failing to “take action to protect [the plaintiff] from injury” by another patron when the defendant knew that the other patron “had engaged in a fight in a bar at some time before the attack,” when “the bartenders on duty did not take sufficient measures to eject him after he became obstreperous and disruptive,” and when “the bartenders did not act immediately to protect [the plaintiff] from injury” once the initial assault began. In doing so, this Court included for the first time the criminal acts of others being among the hazards within the scope of a merchant’s duty “ ‘to its customers and patrons, including the plaintiff, of maintaining its premises in a reasonably safe condition and of exercising due care to prevent and to obviate the existence of a situation, known to it or that should have been known, that might result in injury.’ ”
Similarly, in Samson v Saginaw Professional Building, Inc, this Court applied the same theory of liability to a commercial landlord that leased office space to an outpatient mental health clinic but that had failed “to provide some security measures or warnings for the safety of its tenants and visitors . . . .” Although this case implied some duty for a landlord or merchant to take prophylactic measures to prevent third parties’ criminal acts before they are imminent, it did not specifically articulate the measures that a landlord or merchant must take to obviate the hazard of third parties’ criminal acts. Indeed, a vigorous dissent in Samson questioned the imposition of such an amorphous duty.
Because “ ‘any legal standard must, in theory, be capable of being known,’ ” this Court has since clarified the scope of the duty to prevent harm arising out of third parties’ criminal acts. In Williams v Cunningham Drug Stores, Inc, this Court held that “a merchant’s duty of reasonable care does not include providing armed, visible security guards to deter criminal acts of third parties.” In doing so, this Court described the unpredictability of crime as the basis for limiting a merchant’s liability toward invitees:
[Although defendant can control the condition of its premises by correcting physical defects that may result in injuries to its invitees, it cannot control the incidence of crime in the community. Today a crime may be committed anywhere and at any time. To require defendant to provide armed, visible security guards to protect invitees from criminal acts in a place of business open to the general public would require defendant to provide a safer environment on its premises than its invitees would encounter in the community at large. Defendant simply does not have that degree of control and is not an insurer of the safety of its invitees.[ ]
In Scott v Harper Recreation, Inc, this Court reiterated the proposition that a merchant “ordinarily has no obligation to provide security guards or to protect customers against crimes committed by third persons” and explained that this principle remains in force “even where a merchant voluntarily takes safety precautions,” such as hiring security guards or installing additional lighting. Accordingly, a merchant’s undertaking of measures to deter the crimes of others does not create a duty to eliminate those crimes. Indeed, the Court recognized that the alternative rule would create a disincentive for security measures. In Mason v Royal Dequindre, Inc, this Court clarified that “merchants have a duty to use reasonable care to protect their identifiable invitees from the foreseeable criminal acts of third parties.” However, beyond indicating that a merchant’s actions “must be reasonable,” the Court did not articulate the scope of the merchant’s duty.
We finally did so in MacDonald, holding that “the duty to respond is limited to reasonably expediting the involvement of the police and that there is no duty to otherwise anticipate and prevent the criminal acts of third parties.” As in Williams, we explained that, “[b]ecause criminal activity is irrational and unpredictable, it is in this sense invariably foreseeable everywhere.” As a result, “it is unjustifiable to make merchants, who not only have much less experience than the police in dealing with criminal activity but are also without a community deputation to do so, effectively vicariously liable for the criminal acts of third parties.” Although the element of control is essential in establishing a landlord or merchant’s duty over the premises, they “do not have effective control over situations involving spontaneous and sudden incidents of criminal activity. On the contrary, control is precisely what has been lost in such a situation.”
In sum, MacDonald clarified the scope of a merchant’s limited duty regarding the criminal acts of third parties:
[Generally merchants “have a duty to use reasonable care to protect their identifiable invitees from the foreseeable criminal acts of third parties.” The duty is triggered by specific acts occurring on the premises that pose a risk of imminent and foreseeable harm to an identifiable invitee. Whether an invitee is readily identifiable as being foresee-ably endangered is a question for the factfinder if reasonable minds could differ on this point. While a merchant is required to take reasonable measures in response to an ongoing situation that is taking place on the premises, there is no obligation to otherwise anticipate the criminal acts of third parties. Consistent with Williams, a merchant is not obligated to do anything more than reasonably expedite the involvement of the police. We also reaffirm that a merchant is not required to provide security guards or otherwise resort to self-help in order to deter or quell such occurrences.[ ]
While this duty has remained in place for merchants since clarified in MacDonald, we have not explicitly articulated the scope of the duty with regard to residential or commercial landlords. We do so today.
V THE SCOPE OF A LANDLORD’S DUTY
In keeping with the traditional common-law understanding that landlords and merchants share a similar level of control over common areas that are open to their tenants and other invitees, and thus assume the same duty of reasonable care with regard to those common areas, we hold that a landlord’s duty regarding criminal acts of third parties is limited to and coextensive with the duty articulated in MacDonald. Thus, a landlord has a duty to respond by reasonably expediting police involvement where it is given notice of a “specific situation occurring] on the premises that would cause a reasonable person to recognize a risk of imminent harm to an identifiable invitee.”
Like a merchant, a landlord can presume that tenants and their invitees will obey the criminal law. Because of the unpredictability and irrationality of criminal activity, “[t]his assumption should continue until a specific situation occurs on the premises that would cause a reasonable person to recognize a risk of imminent harm to an identifiable [tenant or] invitee.” Only when given notice of such a situation is a duty imposed on a landlord. Notice is critical to determination whether a landlord’s duty is triggered; without notice that alerts the landlord to a risk of imminent harm, it may continue to presume that individuals on the premises will not violate the criminal law. To the extent this holding, and the holdings of MacDonald and Williams, conflict with Samson we limit Samson to the duty clarified today and in MacDonald and Williams.
We wish to make clear, however, that just as a landlord does not owe a duty of repair within a tenant’s leasehold, a landlord likewise does not have a duty to respond to criminal acts occurring within the leasehold of a tenant. In both situations, the landlord has surrendered possession and control of the leasehold to the tenant. Because our common law has consistently imposed a duty only where a landlord or merchant exercises control over particular premises, a landlord’s duty arises only when the triggering conduct occurs in those areas under the landlord’s control.
If and when a landlord’s duty is triggered, a reasonable response by the landlord is required. Typically, whether an actor proceeded reasonably is a question for the fact-finder. But, just as in MacDonald and Williams, we determine as a matter of law what constitutes reasonable care when a landlord is confronted with imminent criminal acts occurring on the premises under the landlord’s control. And, like MacDonald, we make clear that as a matter of law, the duty to respond requires only that a landlord make reasonable efforts to expedite police involvement. Landlords, like merchants, have a low degree of control over the criminal acts of others. Our conclusion today does not expand a landlord’s duty concerning third-party criminal acts; requiring more of a landlord than taking reasonable efforts to expedite police involvement would essentially result in the duty to provide police protection, a concept this Court has repeatedly rejected. Consistent with our recognition that the duty to provide police protection is vested with the government, and given the unpredictability of specific acts of crime, we decline to impose any greater obligation on a landlord.
VI. APPLICATION
Plaintiffs amended complaint alleges that plaintiff was attending a barbeque in a “common outdoor area” at Evergreen’s apartment complex, where his brother was a tenant. Plaintiff alleges that during the barbeque, Schaaf entered the premises with a handgun and made threats “to kill somebody.” Further, it is alleged that Laura Green, a tenant, informed the security guards, who were approximately 30 feet away from Schaaf, that “Schaaf was a non-resident, wielding a gun, [and] making threats to shoot people.” It is also alleged that Green “pointed at Schaaf, identifying him” to security guards Baker and Campbell. Importantly, plaintiff alleges that the security guards failed to “notify] any police authorities of Schaaf s dangerous presence,” even though Schaaf was “plainly observable in the immediate vicinity.”
We have no doubt that plaintiff alleges sufficient facts that, if accepted as true, justify imposing a duty on defendants to notify police of the ongoing situation that was taking place at Evergreen. As the Court of Appeals accurately explained, plaintiff alleges facts indicating “the extreme nature of the ongoing situation at Evergreen,” which involved “the most deadly circumstance of all” in the common area of the apartment complex: “a man brandishing a gun — apparently in full view of two security guards — who threatened to fire, and ultimately did fire, that gun with near fatal consequences.” The Court of Appeals also noted that in his complaint, plaintiff characterizes the alleged relationship between the security guards and the landlord as an agency “for purposes of responding to safety issues.” Given the facts alleged involving the contract for security services between the security company and the landlord, we agree with the Court of Appeals that plaintiff has alleged sufficient facts that would impute to the landlord Green’s notice to Baker and Campbell of the ongoing situation involving Schaaf in a common area of the premises. As a result, defendants were on notice that their invitees and tenants faced a specific and imminent harm. Furthermore, plaintiff was an identifiable victim of that harm because he was within the range of the risk of harm created by Schaaf s conduct. Thus, if we accept plaintiffs allegations as true, defendants had a duty to reasonably expedite the involvement of the police, and the Court of Appeals properly held that the defendants were not entitled to summary disposition under MCR 2.116(C)(8).
VII. CONCLUSION
In line with our consistent historical treatment of merchants and landlords in the context of their duty with regard to hazards in areas under their control, we apply the MacDonald framework to situations involving the landlord-tenant special relationship and, thereby, render consistent our treatment of landlords’ and merchants’ duties when faced with imminent criminal action. Because the plaintiff alleged that defendant’s hired security guards failed to contact the police when clearly on notice of an imminent risk to him, we affirm this part of the Court of Appeals judgment.
However, we remand this case to the Court of Appeals for its consideration of Evergreen’s and Radney’s vicarious liability issues under Al-Shimmari, including whether the issues were properly preserved for appeal. Finally, as to plaintiffs application for leave to appeal as cross-appellant, we vacate part V(E) of the Court of Appeals judgment, which upheld the trial court’s dismissal of plaintiffs negligence claims against defendant Hi-Tech on the basis of the contract between Hi-Tech and Evergreen because it applied Fultz, without discussing our clarification of Fultz in Loweke. We remand this case to the Court of Appeals for reconsideration of that issue in light of Loweke and Hill The application for leave to appeal as cross-appellant is denied in all other respects because we are not persuaded that the remaining question presented should be reviewed by this Court.
Kelly, J., and Zahra, McCormack, and Viviano, JJ., concurred with Young, C.J.
MacDonald v PKT, Inc, 464 Mich 322, 338; 628 NW2d 33 (2001).
T.J. Realty, Inc. conducted business under the assumed name of Hi-Tech. Timothy Johnson is the President of Hi-Tech and the owner of T.J. Realty, Inc.
Schaaf pleaded nolo contendere to various criminal charges and is currently incarcerated. In the instant civil action against defendant Schaaf, the trial court entered a default judgment against Schaaf; as a result, his civil liability is not currently at issue.
Bailey v Schaaf, 293 Mich App 611; 810 NW2d 641 (2011)
Id. at 640-642.
Id. at 625-626.
Fultz v Union-Commerce Assoc, 470 Mich 460; 683 NW2d 587 (2004). After Bailey was submitted to the Court of Appeals, but before that Court issued its decision in the case, this Court clarified Fultz. See Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157; 809 NW2d 553 (2011); Hill v Sears, Roebuck & Co, 492 Mich 651; 822 NW2d 190 (2012).
Bailey, 293 Mich App at 642-643.
Al-Shimmari v Detroit Med Ctr, 477 Mich 280; 731 NW2d 29 (2007).
Bailey v Schaaf, 491 Mich 924 (2012). Plaintiffs application for leave to appeal as cross-appellant remained pending. Id.
Spiek v Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998).
Id.
Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995).
Loweke, 489 Mich at 162.
Murdock v Higgins, 454 Mich 46, 53; 559 NW2d 639 (1997).
Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500-501; 418 NW2d 381 (1988); MacDonald, 464 Mich at 336.
Williams, 429 Mich at 498-499; Hargreaves v Deacon, 25 Mich 1, 4 (1872) (“[W]here injury arises to a person from the neglect of one, in doing his lawful business in a lawful way, to provide against accident, the question arises at once whether he was under any legal obligation to look out for the protection of that particular person under those particular circumstances. For the law does not require such vigilance in all cases, or on behalf of all persons.”), abrogated on other grounds, Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 599; 614 NW2d 88 (2000).
Williams, 429 Mich at 499.
Id.
Id. at 499-500.
3 Cooley, A Treatise on the Law of Torts (4th ed), p 219.
Prosser & Keeton, Torts (5th ed), § 63, p 440.
Butler v Watson, 193 Mich 322, 323-324; 159 NW 507 (1916). The child was a guest of her grandparents who were tenants in the apartment building.
Id. at 327-328, quoting Herdt v Koenig, 137 Mo App 589; 119 SW 56 (1909) (quotation marks omitted).
Butler, 193 Mich at 327 (quotation marks and citation omitted).
Goodman v Theatre Parking, Inc, 286 Mich 80, 81; 281 NW 545 (1938).
Id. at 81-82. Nevertheless, this Court held that the plaintiff was ultimately barred from recovery because of his contributory negligence in failing to avoid the hazard. Id. at 83.
Although Goodman negated the merchant’s liability on the basis of the plaintiffs contributory negligence, our subsequent caselaw has clarified that the scope of a premises possessor’s duty “does not generally encompass removal of open and obvious dangers.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). Specifically, Lugo held that “the open and obvious doctrine should not be viewed as some type of ‘exception’ to the duty generally owed invitees, but rather as an integral part of the definition of that duty.” Id. See also Hoffner v Goodman, 492 Mich 450, 460-461; 821 NW2d 88 (2012) (citation omitted) (“The possessor of land ‘owes no duty to protect or warn’ of dangers that are open and obvious because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid.”).
Siegel v Detroit City Ice & Fuel, Co, 324 Mich 205, 214; 36 NW2d 719 (1949).
Id. at 213-214.
Id. at 214.
Lipsitz v Schechter, 377 Mich 685, 687; 142 NW2d 1 (1966).
Id. at 687.
Id. at 689.
Butler, 193 Mich at 327 (quotation marks and citation omitted).
Of course, a landlord’s duty does not extend to the areas within a tenant’s leasehold, because the landlord has relinquished its control over that area to the tenant. See Williams, 429 Mich at 499 n 10; Lipsitz, 377 Mich at 687 (“The lessor, absent agreement to the contrary, surrenders possession and holds only a reversionary interest. Under such circumstances, he is under no obligation to look after or keep in repair premises over which he has no control.”); Prosser & Keeton, Torts (4th ed.), § 63, pp 399-400. This relinquishment of control extinguishes the landlord’s duty of reasonable care over those areas.
Prosser & Keeton, Torts (5th ed), § 63, p 442 (“Prior to 1970, there was no general tort duty on landlords to protect their tenants against criminal theft or attack.”); Goldberg v Housing Auth of City of Newark, 38 NJ 578, 587; 186 A2d 291 (1962) (“The duty to provide police protection is foreign to the history of the landlord-tenant relationship.”). Nationally, that duty began to expand in the context of the landlord-tenant relationship with Kline v 1500 Mass Ave Apartment Corp, 439 F2d 477, 481 (CA DC, 1970) (“[W]here, as here, the landlord has notice of repeated criminal assaults and robberies, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action, it does not seem unfair to place upon the landlord a duty to take those steps which are within his power to minimize the predictable risk to his tenants.”).
Manuel v Weitzman, 386 Mich 157, 166-167; 191 NW2d 474 (1971), overruled in part on other grounds Brewer v Payless Station, Inc, 412 Mich 673; 316 NW2d 702 (1982).
Id. at 163, quoting Torma v Montgomery Ward & Co, 336 Mich 468, 476; 58 NW2d 149. Notably, Torma involved a merchant’s duty to clear a physical defect on the property, and thus typified the traditional understanding of premises liability discussed above.
Samson v Saginaw Prof Bldg, Inc, 393 Mich 393, 408-409; 224 NW2d 843 (1975).
See id. at 411 (Levin, J., dissenting) (“[W]hen the landlord is informed by his tenants that a possible dangerous condition exists in the building, he has a duty to investigate and take available preventative measures.”); Manuel, 386 Mich at 164, quoting Windorski v Doyle, 219 Minn 402, 407; 18 NW2d 142 (1945) (“ ‘The proprietor of such a place has the undoubted right to exclude therefrom drunken and disorderly persons, and the right to remove and expel them when they become in that condition and disorderly, and likely to produce discord and brawls. Being clothed with such power and authority, a corresponding duty to do so in the interests of law and order, and for the protection of his other guests, should be imposed as a matter of law.’ ”).
Samson, 393 Mich at 421 (Levin, J., dissenting) (“No line is discernible to distinguish the liability sought to be imposed on [the defendant] from potential liability of landlords who rent to psychiatrists or lawyers who see persons with violent or criminal backgrounds.”).
Williams, 429 Mich at 503 n 18, quoting Holmes, The Common Law, Lecture III (1923), p 111.
Williams, 429 Mich at 501. Although Williams stated in dicta that a landlord has more control in his relationship with his tenants than does a merchant in his relationship with his invitees, id. at 502 n 17, we note that our common law has historically treated the duties of landlords and merchants similarly. Nevertheless, it is notable that, in making this distinction, Williams refused to apply Samson to the merchant-invitee special relationship.
Id. at 502. This Court has recognized that cases involving the duties of merchants regarding criminal activity on their premises have a bearing on the similar duties of landlords. After Williams, we remanded to the Court of Appeals a case that involved whether a residential landlord had a duty to provide security guards, for reconsideration in light of Williams, which held that a merchant had no duty to provide security guards. Bryant v Brannen, 431 Mich 865; 428 NW2d 346 (1988); on remand 180 Mich App 87; 446 NW2d 847 (1989).
Scott v Harper Recreation, Inc, 444 Mich 441, 451, 452; 506 NW2d 857 (1993).
Id. at 451 (“[W]e decline to adopt a theory of law under which a merchant would be effectively obliged not to take such measures.”). The Court also cited Lee v Borman’s, Inc, 188 Mich App 665; 478 NW2d 653 (1991), and Theis v Abduloor, 174 Mich App 247; 435 NW2d 440 (1988), for the proposition that “providing a measure of security does not oblige a merchant to continue the practice.” Scott, 444 Mich at 451 n 14.
Mason v Royal Dequindre, Inc, 455 Mich 391, 405; 566 NW2d 199 (1997).
MacDonald, 464 Mich at 326.
Id. at 335.
Id.
Id. at 337.
Id. at 338, quoting Mason, 455 Mich at 405 (citations omitted).
MacDonald, 464 Mich at 335.
Id.; see also People v Stone, 463 Mich 558, 565; 621 NW2d 702 (2001) (noting that an individual person can presume that others will obey criminal laws).
MacDonald, 464 Mich at 335.
We do not address the status of Johnston v Harris, 387 Mich 569; 198 NW2d 409 (1972), because it is not implicated under the facts of this case. In Johnston, the plaintiff was attacked in the unlocked and poorly lit vestibule of his apartment by a man who was lurking there. He alleged that the defendant landlord was liable for his injuries because of inadequate lighting in the vestibule and unlocked doors. Johnston held that the landlord’s duty to repair physical defects in common areas applies to “provid[ing] adequate lighting and locks.” Id. at 573. Johnston should he read in light of Scott, however, which reaffirmed Williams’ principle that we impose no liability on premises owners for the failure of voluntary safety precautions. In short, there is a duty imposed on merchants or landlords to repair defects on the premises, but there is no duty to provide extraordinary safety precautions like security guards or extensive lighting. See Williams, 429 Mich at 502; Scott, 444 Mich at 452; Stanley v Town Square Coop, 203 Mich App 143, 150-151; 512 NW2d 51 (1993) (holding that a premises owner has a duty to remedy a condition on the physical premises that creates “an unusual risk of criminal attack,” but no duty to protect from the general hazard of crime which is “inherent in the society in which we live”).
See n 38.
See Williams, 429 Mich at 499 n 10; Lipsitz, 377 Mich at 687; Prosser, Torts (4th ed.), pp 399-400.
MacDonald, 464 Mich at 336.
Williams, 429 Mich at 501.
See, e.g., MacDonald, 464 Mich at 336-337; Williams, 429 Mich at 501.
Bailey, 293 Mich App at 627-628.
Id. at 641. Notably, “Green testified at her deposition that management had instructed the residents to call security to report any crimes.” Id. at 641 n 82.
See MacDonald, 464 Mich at 334.
Al-Shimmari, 477 Mich at 280.
Bailey, 293 Mich App at 642-643.
Fultz, 470 Mich at 460.
Loweke, 489 Mich at 157.
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Mary Beth Kelly, J.
In this case, we decide whether a civil contempt petition that seeks indemnification damages under MCL 600.1721 imposes “tort liability” within the meaning of MCL 691.1407(1) of the governmental tort liability act (GTLA), MCL 691.1401 et seq. Given the Legislature’s use of the common-law term “tort,” we hold that “tort liability” as used in MCL 691.1407(1) of the GTLA encompasses all legal responsibility for civil wrongs, other than a breach of contract, for which a remedy may be obtained in the form of compensatory damages. We further hold that MCL 600.1721 imposes “tort liability” because it authorizes an award of indemnification, or compensatory, damages to remedy a noncontractual civil wrong. Consequently, MCL 691.1407(1) of the GTLA provides governmental agencies with immunity from civil contempt petitions seeking indemnification damages under MCL 600.1721. Because the Court of Appeals reached a contrary conclusion, we reverse the judgment of the Court of Appeals and remand this case to the probate court for entry of an order granting summary disposition in favor of respondent.
I. FACTS AND PROCEDURAL HISTORY
In the summer of 2004, petitioner, Nancy Mick, became increasingly concerned about the mental health of her brother, Stephen Bradley. She noticed that Bradley had grown “more agitated and violent,” and he had admitted to her that he was suicidal. Petitioner feared that if Bradley did not receive help “he could kill himself and his family.” As a result, in August 2004, she petitioned the Kent County Probate Court for Bradley’s hospitalization, averring that Bradley was a danger to himself and his family. She accompanied her petition with a supplemental petition for examination and hospitalization, requesting a court order directing a peace officer to take Bradley into protective custody.
The probate court granted the petitions that same day and issued an order requiring that Bradley submit to psychiatric examination and requiring his hospitalization. The order specified that a “peace officer shall take [Bradley] into protective custody and transport him ... to [Cornerstone Community Mental Health or any community mental health contract facility].” Petitioner immediately submitted the order to respondent, the Kent County Sheriffs Department, for execution and provided additional details to the sergeant on duty concerning how petitioner expected Bradley to react to being taken into custody and the fact that Bradley possessed several firearms.
Respondent, however, did not timely execute the probate court’s order. In the days that followed, petitioner contacted respondent twice in regard to Bradley’s situation, and each time respondent assured her that the pickup would take place as soon as possible. Ultimately, respondent never attempted to take Bradley into protective custody and, nine days after the probate court entered its order, Bradley committed suicide.
After Bradley’s suicide, petitioner wrote to Kent County Sheriff Lawrence A. Stelma, requesting an internal investigation, which ultimately concluded that the failure to execute the order was “an obvious case of simple neglect in that this petition was not executed in the manner that mental health petitions normally are handled.” Stelma informed petitioner by letter of the investigation’s findings, confirming that the order had not been executed and describing respondent’s failure as “an unusual occurrence” that did “not reflect any policy or procedure on the part of the Sheriffs Department . . . .”
More than two years later, petitioner, acting as personal representative of Bradley’s estate, filed a wrong ful death suit against respondent and Stelma, alleging that they were grossly negligent in their failure to execute the probate court order and that their negligence was the proximate cause of Bradley’s death. The circuit court dismissed the case on governmental immunity grounds, opining that respondent was not a legal entity that could be sued and that Stelma was individually immune from suit under the GTLA.
Petitioner did not appeal the circuit court’s dismissal. Instead, she filed a petition for civil contempt in the probate court against respondent. The petition alleged that respondent’s violation of the probate court’s order constituted contempt of court, entitling her to indemnification damages pursuant to MCL 600.1721. The petition replicated the contents of petitioner’s wrongful death complaint and sought damages “including, but not limited to, all of those damages set forth in the Michigan Wrongful Death Statute, MCL 600.2922, et seq.”
Respondent moved for summary disposition, arguing that it was immune from liability under MCL 691.1407(1) of the GTLA because petitioner sought to impose tort liability in the guise of a civil contempt petition. The probate court denied respondent’s motion reasoning that “[governmental immunity does not insulate a contemnor from the contemnor’s refusal or negligence to obey a court order.” The probate court acknowledged an “overlap of remedies between a court[’s] power of contempt and a compensation that may be argued under tort,” but concluded that this overlap did not impede a court’s inherent authority to punish contempt.
- Respondent appealed the probate court’s ruling to the circuit court, which reversed and remanded the case to the probate court for entry of an order granting summary disposition in favor of respondent. Relying on the definition of “tort liability” articulated in Tate v Grand Rapids, the circuit court concluded that petitioner’s civil contempt petition was based in tort because the petition sought damages under the wrongful death statute. The circuit court, therefore, held that petitioner’s claim was barred by the GTLA. While cognizant of courts’ inherent authority to punish contempt, the circuit court concluded that the scope of that inherent authority is limited to the power to punish by fine or imprisonment. Because petitioner did not invoke the probate court’s inherent power to punish contempt by either fine or imprisonment, but instead sought indemnification damages pursuant to MCL 600.1721, the court did not consider its holding — that petitioner’s claim is barred by the GTLA — as infringing on courts’ inherent contempt powers.
The Court of Appeals granted petitioner’s application for leave to appeal and, in a published opinion per curiam, reversed the circuit court’s decision. The Court of Appeals held that the GTLA does not immunize governmental agencies from “tort-like” damages sought pursuant to MCL 600.1721. Relying on Tate and Ross v Consumers Power Co (On Rehearing) the Court of Appeals opined that whether a “contempt claim can survive a governmental immunity challenge is controlled not by the nature of the damages sought, but by whether [the] contempt action is a cause of action that is separate and distinct from one that is grounded in tort liability.” The Court of Appeals explained:
In accord with the Ross Court’s holding that the GTLA will not bar recoveiy simply because the underlying facts could have also established a tort cause of action, we conclude that tort-like damages are recoverable in a contempt action assuming contempt can be proved. Thus, whether the GTLA implicates the viability of Mick’s contempt action rests on whether Mick can successfully plead and establish a contempt cause of action. The nature of the damages being requested has no role in determining whether the action is barred by [the] GTLA. Consequently, the circuit court erred when it dismissed this case merely because the damages sought were similar to tort damages.[ ]
We granted respondent’s application for leave to appeal to consider whether “petitioner’s claim for civil contempt indemnification damages under MCL 600.1721 is barred by the [GTLA].”
II. STANDARD OF REVIEW
We review de novo a decision on a motion for summary disposition. Under MCR 2.116(C)(7), summary disposition is appropriate when a claim is barred by governmental immunity. A party filing suit against a governmental agency bears the burden of pleading his or her claim in avoidance of governmental immunity.
We also review de novo issues of statutory interpretation. When construing a statute, we consider the statute’s plain language and we enforce clear and unambiguous language as written. While terms must be construed according to their plain and ordinary meaning, words and phrases “as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” Moreover, when the Legislature chooses to employ a common- law term without indicating an intent to alter the common law, the term will be interpreted consistent with its common-law meaning.
III. ANALYSIS
Since Michigan became a state in 1837, Michigan jurisprudence has recognized the preexisting common-law concept of sovereign immunity, which immunizes the “sovereign” state from all suits to which the state has not consented, including suits for tortious acts by the state. This common-law concept of sovereign immunity has since been replaced in Michigan by the GTLA and is codified by MCL 691.1407(1), which limits a governmental agency’s exposure to tort liability.
Specifically, MCL 691.1407(1), which is at the center of this litigation, broadly provides that “a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function.” Under the statute, all suits that seek to impose “tort liability” for an agency’s discharge of a governmental function are barred by the GTLA, subject to several exceptions that the Legislature has expressly provided for in the GTLA and in other statutes authorizing suit against governmental agencies. While conceding that none of these exceptions applies to the instant case, petitioner asserts that the immunity afforded by the GTLA is inapplicable because a civil contempt petition seeking indemnification damages does not seek to impose tort liability.
Whether a contempt order imposing indemnification damages imposes tort liability is not readily apparent; the GTLA does not define the phrase “tort liability” and our caselaw has not offered a definition of the phrase. Moreover, the contempt statutes under which petitioner brings suit include no express reference to the imposition of “tort liability.” The civil contempt petition in the instant case is based on the general contempt statute of MCL 600.1701, a provision of the Revised Judicature Act (RJA), MCL 600.101 et seq., that identifies potentially punishable contemptuous conduct. This provision, which is a codification of courts’ power at common law to punish contemptuous conduct, states in relevant part:
The supreme court, circuit court, and all other courts of record, have power to punish by fine or imprisonment, or both, persons guilty of any neglect or violation of duty or misconduct in all of the following cases:
(c) All attorneys, counselors, clerks, registers, sheriffs, coroners, and all other persons in any manner elected or appointed to perform any judicial or ministerial services, for any misbehavior in their office or trust, or for any willful neglect or violation of duty, for disobedience of any process of the court, or any lawful order of the court, or any lawful order of a judge of the court or of any officer authorized to perform the duties of the judge.
(g) Parties to actions, attorneys, counselors, and all other persons for disobeying any lawful order, decree, or process of the court.[ ]
By its plain terms, MCL 600.1701 allows courts to exercise their inherent contempt powers for the purpose of either coercing a contemnor to comply with the court’s order (civil contempt) or punishing a contemnor for contemptuous conduct (criminal contempt) by imposing a “fine or imprisonment, or both . . . .”
In addition to the coercive and punitive sanctions permitted for civil and criminal contempt under MCL 600.1701, a court, in a civil contempt proceeding, may also order indemnification of those persons who have sustained losses as a result of contemptuous conduct under MCL 600.1721. This statute, on which petitioner relies, provides that “[i]f the alleged misconduct has caused an actual loss or injury to any person the court shall order the defendant to pay such person a sufficient sum to indemnify him . . . .”
The contemptuous misconduct referred to in these contempt statutes, however, does not clearly constitute tortious action such that petitioner’s civil contempt petition would necessarily impose tort liability for purposes of the GTLA. Whether petitioner’s claim is barred by the GTLA thus requires two related inquires. First, we must determine the meaning of the phrase “tort liability” as used in MCL 691.1407(1) of the GTLA; and, second, we must decide whether a civil contempt petition seeking indemnification damages under MCL 600.1721 seeks to impose tort liability, such that the GTLA would prohibit petitioner’s claim.
A. TOET LIABILITY
As noted, the GTLA does not define the phrase “tort liability,” nor has this Court previously determined the meaning of that phrase. The lower courts applied the definition of “tort liability” articulated by the Court of Appeals in Tate, a case involving a statute that imposes strict liability on dog owners for injuries resulting from dog bites. In Tate, the plaintiff sought to avoid application of the GTLA by arguing that strict-liability actions fell outside the scope of tort liability. In rejecting the plaintiffs argument, the Court of Appeals explained, “The GTLA unambiguously grants immunity from all tort liability, i.e., all civil wrongs for which legal responsibility is recognized, regardless of how the legal responsibility is determined, except as otherwise provided in the GTLA.”
We do not necessarily disagree with Tate’s general understanding of the phrase “tort liability.” However, in our judgment, Tate’s definition is incomplete and fails to acknowledge the historical underpinnings of the word “tort” as that word has been used in our common law for more than a hundred years. Mainly, a “tort” is an act that has long been understood as a civil wrong that arises from the breach of a legal duty other than the breach of a contractual duty. For example, English common-law courts have for centuries recognized a civil wrong as an infringement on private rights belonging to individuals and divided civil wrongs into two categories: those sounding in contract and those sounding in tort. The Queen’s Bench has acknowledged this division in a case involving a bailee’s liability for injury to the plaintiffs horse, in which it concluded that the legal basis for the plaintiffs claim was a tort and that damages to compensate for the injury should be allowed. Lord Justice Smith explained:
[I]f in order to make out a cause of action it is not necessary for the plaintiff to rely on a contract, the action is one founded on tort; but, on the other hand, if, in order successfully to maintain his action, it is necessary for him to rely upon and prove a contract, the action is one founded upon contract.[ ]
The Queen’s Bench, then, recognized only two types of civil wrongs, those involving contractual wrongs and those involving the breach of some other legal duty, the latter of which is a tort and is remedied through an award of compensatory damages.
Michigan common law, which has its roots in English common law, has likewise recognized this distinction between torts and contracts as the two types of civil wrongs. For example, in Churchill v Howe, this Court considered whether a debtor’s liability was limited to the parties’ contractual relations. In concluding that the creditor’s allegations of fraud sounded in tort, we acknowledged the general principles that a tort requires a “wrong independent of a contract” and that “the distinguishing feature of a tort [is] that it consists in the violation of a right given or neglect of a duty imposed by law, and not by contract.” Stated differently, and as this Court has repeatedly recognized in the nearly one hundred years since Churchill, when a party breaches a duty stemming from a legal obligation, other than a contractual one, the claim sounds in tort.
Our common law likewise incorporates the concept that a tort necessarily involves compensation to an injured party for the wrong committed by a tortfeasor. As we explained in Wilson v Bowen, a case involving an award of damages for malicious prosecution, “the purpose of an action of tort is to recover the damages which the plaintiff has sustained from an injury done him by the defendant; that compensation to the plaintiff is the purpose in view . . . .”
Given the foregoing, it is clear that our common law has defined “tort” to be a civil wrong, other than a breach of contract, for which the court will provide a remedy in the form of compensatory damages. Accordingly, because the word “tort” has “acquired a peculiar and appropriate meaning” in our common law, and because the Legislature is presumed to be aware of the common law when enacting legislation, we conclude that the term “tort” as used in MCL 691.1407(1) is a noncontractual civil wrong for which a remedy may be obtained in the form of compensatory damages.
Our analysis, however, requires more. MCL 691.1407(1) refers not merely to a “tort,” nor to a “tort claim” nor to a “tort action,” but to “tort liability.” The term “tort,” therefore, describes the type of liability from which a governmental agency is immune. As commonly understood, the word “liability,” refers to liableness, i.e., “the state or quality of being liable.” To be “liable” means to be “legally responsible[.]” Construing the term “liability” along with the term “tort,” it becomes apparent that the Legislature intended “tort liability” to encompass legal responsibility arising from a tort. We therefore hold that “tort liability” as used in MCL 691.1407(1) means all legal responsibility arising from a noncontractual civil wrong for which a remedy may be obtained in the form of compensatory damages.
In reaching this holding, we are cognizant of our decision in Ross, on which the Court of Appeals relied in concluding that “tort-like damages are recoverable in a contempt action” against a governmental entity. Our opinion in Ross actually concerned nine cases, including Rocco v Department of Mental Health. In that case, the plaintiffs’ decedent was murdered while he was a patient at a hospital administered by two state agencies. The plaintiffs filed a two-count complaint alleging both negligence and breach of an implied contract. We held that the GTLA barred the plaintiffs’ negligence claim, but that the plaintiffs’ second claim, breach of an implied contract, was not barred. The defendants had argued that the plaintiffs’ contract claim should be dismissed because “most of the allegations contained in Counts I and II are identical. . . .” In rejecting that argument, we stated:
We recognize that plaintiffs have and will attempt to avoid [MCL 691.1407(1)] of the governmental immunity act by basing their causes of action on theories other than tort. Trial and appellate courts are routinely faced with the task of determining whether the essential elements of a particular cause of action have been properly pleaded and proved. If a plaintiff successfully pleads and establishes a non-tort cause of action, [MCL 691.1407(1)] will not bar recovery simply because the underlying facts could have also established a tort cause of action.[ ]
Petitioner and the Court of Appeals interpret this passage from Ross to mean that the label of the action controls in determining whether an action imposes tort liability and that, if the claim is not a traditional tort, then the GTLA is inapplicable and “tort-like” damages are recoverable. Ross, however, made no such pronouncement and did not consider the meaning of “tort liability,” which is the question that is now before this Court. Instead, consistent with our holding in this case, Ross merely recognized that the GTLA does not bar a properly pleaded contract claim.
In addition, our holding clarifies that Ross’s pronouncement, that “non-tort cause[s] of action” are not barred by the GTLA, should not be interpreted as limiting the GTLA’s application to only traditional tort claims. The Legislature’s express decision to use the word “liability” in describing the governmental immunity available under MCL 691.1407(1), rather than “action” or “claim,” indicates that our focus must be on the nature of the liability rather than the type of action pleaded. For this reason, we decline to limit the GTLA’s application to suits expressly pleaded as traditional tort claims, as petitioner would have us hold. Further, because the nature of the liability will often be reflected in the remedy available, we disagree with the Court of Appeals’ statement that “[t]he nature of the damages being requested has no role in determining whether the action is barred by the GTLA.” Instead, because a tort, by definition, encompasses an award of compensatory damages, the nature of the damages is precisely relevant in determining whether the type of liability imposed is tort liability. Accordingly, regardless of how a claim is labeled, courts must consider the entire claim, including the available damages, to determine the nature of the liability imposed.
In summary, several principles emerge from our explication of the phrase “tort liability” that will guide courts charged with the task of determining whether a cause of action imposes tort liability for purposes of the GTLA. Courts considering whether a claim involves tort liability should first focus on the nature of the duty that gives rise to the claim. If the wrong alleged is premised on the breach of a contractual duty, then no tort has occurred, and the GTLA is inapplicable. However, if the wrong is not premised on a breach of a contractual duty, but rather is premised on some other civil wrong, i.e., some other breach of a legal duty, then the GTLA might apply to bar the claim. In that instance, the court must further consider the nature of the liability the claim seeks to impose. If the action permits an award of damages to a private party as compensation for an injury caused by the noncontrac-tual civil wrong, then the action, no matter how it is labeled, seeks to impose tort liability and the GTLA is applicable.
B. CIVIL CONTEMPT INDEMNIFICATION DAMAGES
The civil contempt petition in this case alleges that respondent’s contemptuous misconduct, prohibited by MCL 600.1701, caused Bradley’s suicide and seeks indemnification damages under MCL 600.1721. Because petitioner’s civil contempt petition seeks indemnification under MCL 600.1721, we must construe the language of that provision to determine whether such petitions impose tort liability. The provision states:
If the alleged misconduct has caused an actual loss or injury to any person the court shall order the defendant to pay such person a sufficient sum to indemnify him, in addition to the other penalties which are imposed upon the defendant. The payment and acceptance of this sum is an absolute bar to any action by the aggrieved party to recover damages for the loss or injury.[ ]
Although we have not previously considered whether this language imposes “tort liability,” this Court has implicitly recognized that the elements necessary to establish entitlement to relief under this provision are essentially the same elements necessary to establish a tort, i.e., a legal duty, breach of that duty, causation, and injury. In Holland v Weed, for example, we explained that the predecessor of MCL 600.1721
authorizes this imposition [of indemnification damages] in place of a fine, and it is for the purpose of protecting the civil rights and remedies of the party, and to compensate him for the injury or loss occasioned by the misconduct alleged-, and it is only when an actual loss or injury has been produced to the party by the misconduct alleged, and that is made to appear to the satisfaction of the court, and some sum sufficient to compensate the party or indemnify him is adjudged, that the court can impose the costs and expenses to be paid by such party.[ ]
Stated differently, the plain language of MCL 600.1721 requires a showing of contemptuous misconduct that caused the person seeking indemnification to suffer a loss or injury and, if these elements are established, requires the court to order the contemnor to pay “a sufficient sum to indemnify” the person for the loss.
A closer examination of the statutory language confirms that it contains all the elements of a tort claim in the guise of a contempt claim. Under the first sentence of the statute, the “alleged misconduct,” which is a necessary element of any contempt claim, stems from the “neglect or violation of [a] duty” under MCL 600.1701 or the “omission to perform an act or duty” under MCL 600.1715. Thus, the “alleged misconduct” is synonymous with the legal duty and breach of that duty recognized in traditional tort law. Clearly, this misconduct, which arises from the relevant contempt statute — not a contractual relationship between the parties — is a non-contractual civil wrong.
Because the nature of the duty that gives rise to a civil contempt claim is clearly premised on a noncon-tractual civil wrong, we must further consider the nature of the liability imposed. The first sentence of MCL 600.1721 also requires that this misconduct “causeD” the petitioner’s “actual loss or injury,” thus paralleling the other two elements recognized in a traditional tort claim: causation and damages. Because the first sentence of MCL 600.1721 authorizes a court to order a contemnor to “indemnify” the petitioner for the loss caused by the contemptuous misconduct, the statute clearly sanctions legal responsibility, or liability, in the form of compensatory damages. Plainly, the first sentence of MCL 600.1721 contemplates what is, in essence, a tort suit for money damages.
Additional support for this conclusion is found in the second sentence of MCL 600.1721, which provides that “[t]he payment and acceptance of this sum is an absolute bar to 'any action by the aggrieved party to recover damages for the loss or injury.” That is, the Legislature expressly recognized that a civil contempt claim seeking indemnification damages functions as a substitute for any underlying claim and, thus, bars monetary recovery that could have been achieved in a separate cause of action. As the Legislature acknowledged, the statutory remedy, then, is effectively a proxy for a tort claim.
Given that the statutory language of MCL 600.1721 clearly permits the payment of compensatory damages to a petitioner for a noncontractual civil wrong, we thus hold that a civil contempt petition seeking indemnification damages under MCL 600.1721 seeks to impose “tort liability.” It follows that a party that elects to pursue the statutory remedy available under MCL 600.1721 will be barred from obtaining relief against governmental agencies because those entities are entitled to immunity from “tort liability” under MCL 691.1407(1) of the GTLA. The logical result of this conclusion is that courts are prohibited from exercising their contempt powers by punishing a governmental agency’s contemptuous conduct through an award of indemnification damages under MCL 600.1721.
Our holding, however, should not be interpreted as constraining courts’ inherent contempt powers. While our holding does constrain a court’s statutory authority to order punishment, in the form of compensation in a civil contempt proceeding against a governmental entity, our holding does not infringe on those powers of contempt that are inherent in the judiciary, as recognized in our Constitution and codified by the Legislature. Inherent in the judicial power is the power to prescribe acts that are punishable as contempt through fine or imprisonment, or both. This inherent judicial power to punish contempt, which is essential to the administration of the law, does not include the power to mete out certain punishments for contemptuous acts beyond those contempt powers inherent in the judiciary. Clearly, the punishment the Legislature authorized in MCL 600.1721, compensation for contemptuous misconduct, is not encompassed by the judiciary’s inherent power to punish contempt. Because our holding only involves the GTLA’s application to civil contempt petitions that seek indemnification damages under MCL 600.1721, it does not infringe on courts’ inherent power to punish contempt by fine or impris onment, or both. Moreover, our definition of “tort liability” does not encompass contempt proceedings that seek to invoke courts’ inherent contempt powers; although those proceedings undoubtedly involve a non-contractual civil wrong, the sanction sought does not impose legal responsibility in the form of compensation for the harm done.
C. APPLICATION
The civil contempt petition at issue here alleges that respondent negligently failed to execute the probate court’s order, constituting contemptuous misconduct under MCL 600.1701. The petition alleges that this misconduct caused Bradley’s suicide and seeks indemnification damages for his death under MCL 600.1721. Notably, the damages petitioner seeks in her contempt petition are exactly the same damages that petitioner sought under the wrongful death statute in her previous lawsuit, which was dismissed on governmental immunity grounds. Indeed, the petition substantively replicated petitioner’s prior complaint and sought dam ages “including, but not limited to, all of those damages set forth in the Michigan Wrongful Death Statute.” (Citation omitted.) Through her civil contempt petition, then, petitioner plainly seeks compensatory damages for Bradley’s death. Thus, her civil contempt petition seeks to impose tort liability.
Had petitioner sought to invoke the probate court’s inherent contempt powers, i.e., to fine or imprison a contemnor, or had petitioner otherwise established the applicability of an exception to governmental immunity, then petitioner’s claim might have survived summary disposition. However, petitioner’s civil contempt petition did not invoke the court’s inherent powers of contempt, and she concedes that none of the GTLA’s exceptions are applicable. Consequently, because a civil contempt petition seeking indemnification damages under MCL 600.1721 seeks to impose tort liability, and respondent is immune from tort liability, petitioner’s claim is barred by governmental immunity under MCL 691.1407(1). Respondent is therefore entitled to summary disposition under MCR 2.116(C)(7).
IV .CONCLUSION
Consistent with the Legislature’s intent, our decision clarifies that the phrase “tort liability” as used in MCL 691.1407(1) encompasses all legal responsibility arising from noncontractual civil wrongs for which a remedy may be obtained in the form of compensatory damages. We further recognize that the plain language of MCL 600.1721 authorizes an award of indemnification damages to remedy a noncontractual civil wrong and, thus, falls squarely within the meaning of “tort liability.” Because MCL 691.1407(1) immunizes governmental agencies from tort liability, governmental entities are immune from civil contempt petitions seeking indemnification damages. Petitioner has pleaded such a claim here and because she has not otherwise established the applicability of an exception to the GTLA, respondent is entitled to immunity under MCL 691.1407(1). We reverse the judgment of the Court of Appeals and remand this case to the probate court for entry of an order granting summary disposition in favor of respondent.
Young, C.J., and Markman, Zahra, and Viviano, JJ., concurred with Kelly, J.
The investigation revealed that the sergeant who initially received the order could not execute it because she was on duty alone. She passed it onto the next sergeant who, in turn, assigned it to a deputy. The deputy, waylaid by other police business, passed the order to another officer who indicated that the order would be executed the following day. The order eventually came to rest at a police substation where it remained until the internal investigator found it on August 25, 2004. The investigation report indicated that “it appears as though [the officers] were all somewhat cognizant that the [order] was there; however, no one took initiative to either execute the [order] or access the computer to ascertain if the [order] had been served.”
Both the complaint and petition alleged that respondent “failed and refused to execute the Order issued by the Kent County Probate Court notwithstanding its mandate, delivery of the Order to [respondent], and the repeated inquiry regarding execution of the Order.”
Respondent also alleged that (1) petitioner failed to submit an affidavit from a person witnessing the contemptuous act as required by MCR 3.606(A), (2) respondent was not a legal entity capable of being sued, and (3) petitioner failed to show either a willful violation of the probate court order or the requisite causal link between the alleged contempt and Bradley’s suicide as required by MCL 600.1701. These arguments are not before this Court.
Tate v Grand Rapids, 256 Mich App 656, 660; 671 NW2d 84 (2003).
In re Bradley Estate, 296 Mich App 31; 815 NW2d 799 (2012).
Id. at 38-39.
Tate, 256 Mich App at 660-661.
Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 647-648; 363 NW2d 641 (1984).
In re Bradley Estate, 296 Mich App at 38-39.
Id. at 39 (citation omitted).
In re Bradley Estate, 493 Mich 866 (2012).
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
Glancy v City of Roseville, 457 Mich 580, 583; 577 NW2d 897 (1998).
Odom v Wayne Co, 482 Mich 459, 478-79; 760 NW2d 217 (2008).
Driver v Naini, 490 Mich 239, 246; 802 NW2d 311 (2011).
Id. at 246-247.
MCL 8.3a.
Stone v Williamson, 482 Mich 144, 170; 753 NW2d 106 (2008) (opinion by Cavanagh, J.).
Ross, 420 Mich at 598.
Emphasis added. Likewise, individual governmental officers and employees may be entitled to immunity from “tort liability.” See MCL 691.1407(2) and (5).
See Mack v Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002). The statutory exceptions contained in the GTLA are: (1) the highway exception, MCL 691.1402, (2) the motor vehicle exception, MCL 691.1405, (3) the public building exception, MCL 691.1406, (4) the governmental hospital exception, MCL 691.1407(4), (5) the proprietary function exception, MCL 691.1413, and (6) the sewage system event exception, MCL 691.1417.
In re Contempt of Dougherty, 429 Mich 81, 91 n 14; 413 NW2d 392 (1987), citing Const 1963, art 6, § 1.
MCL 600.1701 (emphasis added). See also MCL 600.1715(2) (providing punishment for contemptuous conduct consisting of “the omission to perform some act or duty....”).
See also MCL 600.1715(1), which generally limits the fine for contempt to not more than $7,500 and the term of imprisonment to no more than 93 days.
A contempt proceeding seeking indemnification damages is a civil contempt proceeding. In re Contempt of Dougherty, 429 Mich at 111 (“A proper civil contempt proceeding [may] seek[] ... to compensate the complainant for actual loss.”).
MCL 600.1721.
Tate, 256 Mich App at 658.
Id. at 659.
Id. at 660. Consistent with this definition, the Court of Appeals explained that “strict liability is based on tort law and may result in tort liability, i.e., civil liability for wrongful conduct.” Id.
As Sir Edward Coke explained, “wrong or injury is in French aptly called tort; because injury and wrong is wrested or crooked, being contrary to that which is right and straight.” I Coke, The First Part of the Institutes of the Laws of England (Butler’s 1st American ed, 1853), p 158b.
See Sinclair v Brougham, [1914] AC 398 (HL), 415 (1914) (Viscount Haldane, LC) (“[B]roadly speaking, so far as proceedings in personam are concerned, the common law of England really recognises (unlike the Roman law) only actions of two classes, those founded on contract and those founded on tort.”); id. at 432 (Lord Dunedin) (“The English common law has various actions which, under a classification which I understand to be really one of modern growth, are divided into actions in respect of contract and of tort.”); Bryant v Herbert, 3 CPD 389, 390 (1878) (Bramwell, LJ) (“One may observe there is no middle term; the statute supposes all actions are founded either on contract or on tort. So that it is tort, if not contract, contract if not tort.”). These English common-law cases are consistent with the understanding of tort espoused by Sir William Blackstone in his 1771 Commentaries, which make the same distinction:
Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof: and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs .... Of the former nature are all actions upon debt or promises; of the latter all actions for trespasses, nuisances, assaults, defamatory words and the like. [3 Blackstone, Commentaries on the Laws of England (Jones ed., 1976), p *117.]
Turner v Stallibrass, 1 QB 56, 58 (1898) (A.L. Smith, LJ). See also id. at 59 (Rigby, LJ) (“The rule is that, if the plaintiff, in order to shew [sic] a cause of action, must rely on a contract, the action is one founded on contract; otherwise it is one of tort.”).
As noted, this understanding of a tort is reflected in Sir William Blackstone’s Commentaries. Aside from recognizing that only two types of civil wrongs exist, Blackstone’s Commentaries also repeatedly confirm that tort actions involve a particular type of compensation— compensatory damages. See 3 Blackstone, p *138 (stating that “[t]he satisfactory remedy for this injury of false imprisonment” is that “the party shall recover damages for the injury he has received”); 3 Blackstone, pp **145-146 (stating that the proper remedy for the wrongful taking of goods is “the restitution of the goods themselves so wrongfully taken, with damages for the loss sustained by such unjust invasion,” and that the law in this regard “contents itself in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving him a satisfaction in damages”); 3 Blackstone, p *220 (stating that when a private person suffers damage by a public nuisance, the remedies by suit are “[b]y action on the case for damages; in which the party injured shall only recover satisfaction for the injury sustained; but cannot thereby remove the nuisance”).
As former Chief Justice of the Michigan Supreme Court Thomas M. Cooley recognized in Cooley, A Treatise on the Law of Torts (2d ed, 1888), p 2, “It is customary in the law to arrange the wrongs for which individuals may demand legal redress into two classes: the first embracing those which consist in a mere breach of contract, and the second those which arise independent of contract.”
Churchill v Howe, 186 Mich 107; 152 NW 989 (1915).
Id. at 111, 114 (citation and quotation marks omitted).
See, e.g., O’Neill v James, 138 Mich 567, 573; 101 NW 828 (1904) (quoting caselaw stating that a party who commits a wrong independent of contract “brings himself within the operation of a principle of the law of torts”) (citation and quotation marks omitted); Hart v Ludwig, 347 Mich 559, 563; 79 NW2d 895 (1956) (approvingly quoting caselaw stating that as a general rule, to support a cause of action in tort, there “must be some breach of duty distinct from breach of contract”) (citation and quotation marks omitted); Phillips v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239, 246-247; 531 NW2d 144 (1995) (holding that the duty not to retaliate against an employee for filing a workers’ compensation claim arises independently from the employment contract and thus sounds in tort).
Stillson v Gibbs, 53 Mich 280, 284; 18 NW 815 (1884) (“The purpose of an action for tort is to recover the damages which the plaintiff has sustained from an injury done him by the defendant.”); Kalembach v Michigan Cent R Co, 87 Mich 509, 524; 49 NW 1082 (1891) (McGrath, J., dissenting) (recognizing that recovery for a tort requires “a wrong as well as damage”).
Wilson v Bowen, 64 Mich 133, 141; 31 NW 81 (1887).
MCL 8.3a; Ford Motor Co v City of Woodhaven, 475 Mich 425, 439; 716 NW2d 247 (2006) (“[C]ommon-law meanings are assumed to apply ... in the absence of evidence to indicate contrary meaning.”) (citation and quotation marks omitted). This definition is consistent with modern authorities’ understanding of the term “tort” as “[a] civil wrong, other than breach of contract, for which a remedy may be obtained, [usually] in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another.” Black’s Law Dictionary (9th ed); see also Prosser & Keeton, Torts (5th ed), § 1, p 2.
Random House Webster’s College Dictionary (2001). Similarly, Black’s Law Dictionary (7th ed) defines “liability” as “[t]he quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment” and as “a financial or pecuniary obligation^]”
Random House Webster’s College Dictionary (2001).
Petitioner argues that this understanding of tort liability is overly inclusive, but offers no alternative definition for the term “tort.” More over, while our definition of “tort” is stated in broad terms, it is consistent with the common-law understanding of that term as adopted by our Legislature in MCL 691.1407(1).
In re Bradley Estate, 296 Mich App at 39.
Ross, 420 Mich at 647.
Id. at 647-648 (emphasis added).
Id. at 647-648; id. at 693-694 (opinion by Levin, J.) (“The language of [MCL 691.1407(1)], however, speaks only to immunity from tort liability; it does not grant immunity from contract claims.”).
Ross, 420 Mich at 647-648.
To follow petitioner’s suggestion, which Justice McCormack also appears to advocate, would exalt form over substance when, instead, we have long recognized that a party’s choice of label for a cause of action is not dispositive and “the gravamen of [a] plaintiffs action is determined by considering the entire claim.” Maiden, 461 Mich at 135. Moreover, we have held on numerous occasions that some causes of action that are not traditional torts nonetheless impose tort liability within the meaning of the GTLA. See, e.g., Donajkowski v Alpena Power Co, 460 Mich 243, 247; 596 NW2d 574 (1999) (sex discrimination in violation of the Civil Rights Act); Phillips, 448 Mich at 248-249 (retaliatory discharge in violation of Worker’s Disability Compensation Act); Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 165; 809 NW2d 553 (2011) (statutory duties may give rise to tort claim); see also Cuddington v United Health Servs, Inc, 298 Mich App 264, 275; 826 NW2d 519 (2012) (statutory “retaliation torts”); 4041-49 WMaple Condo Ass’n v Countrywide Home Loans, Inc, 282 Mich App 452, 459; 768 NW2d 88 (2009) (failure to provide notice under foreclosure statute).
In re Bradley Estate, 296 Mich App at 39.
Indeed, to ignore the type of the damages sought would be to ignore the correlation between the wrong alleged and the available remedy. See Nat’l Copper Co v Minnesota Mining Co, 57 Mich 83, 93; 23 NW 781 (1885) (“[D]amage alone does not give a right of action; there must he a concurrence of wrong and damage.”). As we have explained, tort damages traditionally take the form of compensatory damages. See, e.g., Wilson, 64 Mich at 141. Although other remedies might be available in some circumstances, “ ‘an action for damages is the essential remedy for a tort,’ ” and “ ‘in all such cases it is solely by virtue of the right to damages that the wrong complained of is to he classed as a tort.’ ” Prosser & Keeton, Torts (5th ed), § 1, p 2 n 6, quoting Salmond, Law of Torts (12th ed), p 9.
Justice McCormack pens an eloquent and engaging discussion of the sui generis nature of contempt, one that we do not necessarily disagree with regarding contempt. Where we do differ, however, is in our belief that this case presents a more nuanced issue, namely whether a petitioner can recast a wrongful death claim that is barred by the GTLA as a claim for civil contempt and obtain indemnification damages under MCL 600.1721, which are exactly the same as those damages sought under the wrongful death statute. We see the issue differently, but have not “confuse[d] legal categories” in the least.
In that instance, we emphasize that the plaintiff would be limited to the recovery of contract damages. If a plaintiff seeks the recovery of tort damages stemming from the breach of a contractual duly, then the plaintiffs claim would be insufficient as a matter of law under MCR 2.116(C)(8).
This step of the analysis is fundamental to determining whether an action involving a noncontractual civil wrong seeks to impose tort liability. This is because, in some instances, a noncontractual civil wrong might exist, but instead of seeking compensation to remedy the harm, the plaintiff elects some other remedy, thus rendering governmental immunity inapplicable. For example, a plaintiff may ask a court to enforce his or her rights under the law. See Lash v Traverse City, 479 Mich 180, 196; 735 NW2d 628 (2007) (recognizing that governmental immunity barred a plaintiffs private cause of action seeking monetary damages for an alleged statutory violation, but noting that the plaintiff could enforce the statute by seeking declaratory or injunctive relief); Hadfield v Oakland Co Drain Comm’r, 430 Mich 139, 152 n 5; 422 NW2d 205 (1988) (opinion by Brickley, J.) (“Generally, we do not view actions seeking only equitable relief, such as abatement or injunction, as falling within the purview of governmental immunity.”), overruled on other grounds by Pohutski v City of Allen Park, 465 Mich 675 (2002).
MCL 600.1721 (emphasis added).
Holland v Weed, 87 Mich 584, 587-588; 49 NW 877 (1891).
Emphasis added. The statute was substantially similar when Holland was decided. It provided:
If an actual loss or injury has been produced to any party, by the misconduct alleged, the court shall order a sufficient sum to be paid by the defendant to such party to indemnify him, and to satisfy his costs and expenses, instead of imposing a fine upon such defendant; and in such case, the payment and acceptance of such sum shall be an absolute bar to any action by such aggrieved party, to recover damages for such injury or loss. [How Stat § 7277.]
“Indemnify” is commonly understood to mean “to compensate for damage or loss sustained, expense incurred[.]” Random House Webster’s College Dictionary (2001). And we have previously characterized the relief provided under MCL 600.1721 as compensatory. See In re Contempt of Dougherty, 429 Mich at 98.
Justice Cavanagh posits that a civil contempt petition seeking indemnification damages under MCL 600.1721 does not impose tort liability because the liability imposed arises, not from the breach of a “tort duty,” but from the breach of an “obligation owed to the court.” The Legislature, however, did not use the phrase “tort duty” in MCL 691.1407(1), but instead used the phrase “tort liability” thereby invoking consideration of all noncontractual civil wrongs consistent with the common-law meaning of “tort.” Moreover, while Justice Cavanagh agrees that the purpose of the relief sought is relevant to determining whether tort liability exists, he ignores that MCL 600.1721 expressly permits an award of compensatory damages to “any person” who suffered an injury as a result of the contemptuous act and does not award indemnification damages to the court, which is the party owed a duty under Justice Cavanagh’s analysis. Stated otherwise, a civil contempt petition seeking indemnification damages under MCL 600.1721 does not seek to redress the harm a court may have suffered as a result of the contemptuous act; rather, such a petition seeks to compensate the person who suffered injury from that civil wrong, and therefore the petition is squarely within the meaning of “tort liability.”
Justice McCormack does not analyze the express statutory language of MCL 600.1721 and instead relies on a series of inferences to discern the meaning of the law. Specifically, Justice McCormack reads MCL 600.1701(c) as an express indication that the Legislature intended to waive any claim that government eontemnors are immune from liability for civil contempt indemnification damages. However, the express statutory language of MCL 600.1701 does not include “defendant,” as that term is used in MCL 600.1721, among the listed state actors, and we would draw no such inference. Compare MCL 600.1721 and MCL 600.1701 with other statutes expressly waiving governmental immunity, including the Elliot-Larsen Civil Rights Act, MCL 37.2103(g), MCL 37.2201(a), and MCL 37.2202 (defining “employer” to expressly include state actors who are in turn liable for certain discriminatory conduct); and the Persons with Disabilities Civil Rights Act, MCL 37.1103(g), MCL 37.1201(b), and MCL 37.1202 (same). Nor do we view MCL 691.1407(6), as Justice McCormack does, to inform the meaning of “tort liability” used in MCL 691.1407(1). MCL 691.1407(6), which grants immunity to guardian ad litems from “civil liability,” is simply not implicated in this case. We also do not believe the Legislature’s placement of the contempt statutes in the RJA has any relevance to the meaning of “tort liability.”
Contrary to our holding, petitioner asserts that her contempt petition cannot be classified as a tort because there is not “a hint anywhere” in Michigan jurisprudence suggesting that contempt is a tort. Our discussion in Holland, 87 Mich at 587-588, referred to earlier in this opinion, suggests otherwise. Moreover, petitioner makes this argument without any reference to the statutory language of MCL 600.1721, which as we have explained supports the conclusion that a civil contempt claim seeking indemnification damages imposes tort liability. In any case, we are not alone in recognizing that a civil contempt claim asking for compensatory damages imposes tort liability. See, e.g., Dodson v Dodson, 380 Md 438, 453; 845 A2d 1194 (2004) (“This litigation, although labeled a civil contempt action, was in essence a tort suit for money damages ....”); Parker v United States, 153 F2d 66, 70 (CA 1, 1946) (“An order imposing a compensatory fine in a civil contempt proceeding is ... somewhat analogous to a tort judgment for damages caused by wrongful conduct.”); Vuitton et Fils SA v Carousel Handbags, 592 F2d 126, 130 (CA 2, 1979) (noting that imposition of a compensatory fine for civil contempt is analogous to a tort judgment for damages); Thompson v Cleland, 782 F2d 719, 722 (CA 7, 1986) (noting the same).
The Legislature authorized the award of compensatory damages in the contempt context with the enactment of 1846 RS, ch 121, § 21, the original predecessor of MCL 600.1721.
See Const 1963, art 6, § 1; Langdon v Judges of Wayne Circuit Court, 76 Mich 358, 367; 43 NW 310 (1889) (“The [contempt] statutes are in affirmation of the common-law power of courts to punish for con-tempts ....”).
As this Court explained in In re Huff, 352 Mich 402, 415-416; 91 NW2d 613 (1958):
There is inherent power in the courts, to the full extent that it existed in the courts of England at the common law,... to adjudge and punish for contempt.... Such power, being inherent and a part of the judicial power of constitutional courts, cannot be limited or taken away by act of the legislature nor is it dependent on legislative provision for its validity or procedures to effectuate it. [Citation omitted.]
See Nichols v Judge of Superior Court of Grand Rapids, 130 Mich 187, 192-195; 89 NW 691 (1902) (indicating that the Legislature cannot determine what acts constitute contempt or constrain courts’ power to punish those contemptuous acts, but that it may prescribe certain punishments); Langdon, 76 Mich at 367 (recognizing that the Legislature cannot curtail courts’ contempt powers, but that it may “regulateG the mode of proceeding and prescribe!] what punishment may be inflicted”). Justice McCormack concedes that the Legislature can regulate the courts’ contempt powers. As Nichols and Langdon reflect, this regulation includes the ability to prescribe certain punishments, like that in MCL 600.1721, as long as the regulation does not curtail courts’ inherent power to punish contemptuous acts. As such, injection of separation of powers principles is misplaced. Likewise, the suggestion that our decision has “cede[d]” judicial power is overstated because Michigan courts have never had an inherent power to punish contempt through an award of compensatory damages.
Having concluded that no Michigan court possesses inherent power to award compensatory damages relating to contempt, we need not address the parties’ disagreement whether the probate court, the powers of which are controlled by the Legislature, lacks the inherent power to punish contempt through fine or imprisonment.
By stating “[e]ven if Michigan did not recognize a wrongful death action, hypothetically, respondent here could still have been held in contempt,” Justice McCormack errs in insinuating that a Court’s inherent contempt powers include the ability to award compensatory damages to a third party for loss or injury. The fact that the Legislature added the ability to impose tort liability to the Court’s powers as a possible remedy for contempt does not resolve the issue whether that particular remedy may be used against governmental agencies in the face of the GTLA. If MCL 600.1721 did not exist, then Justice McCormack’s point would be valid.
MCL 600.2922.
We do not disagree with the concern that this Court must safeguard the power of the judicial branch, but note that this case did not involve the willful violation of a court order and the consequential offense to the issuing court, which is the very essence of contempt of court. | [
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Markman, J.
We granted leave to appeal to consider whether the trial court erred by admitting defendant’s confession to a parole officer. The Court of Appeals held that the admission of defendant’s confession violated Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), and Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), because Evans was a “law enforcement officer” for purposes of Miranda. We respectfully disagree because this is not a sufficient condition for the application of these decisions. Even if every parole officer constitutes a “law enforcement officer,” neither an accused’s right under Miranda to be given a series of warnings nor an accused’s right under Edwards to have counsel present apply absent “custodial interrogation” by the officer. Because defendant was not subjected to “custodial interrogation” by the parole officer as that term has come to be understood under Miranda and its progeny, neither defendant’s Miranda nor defendant’s Edwards rights were violated, regardless of whether the parole officer was a law enforcement officer. Thus, the trial court did not err by admitting defendant’s confession. By focusing on the wrong constitutional question, the Court of Appeals considerably expanded the domain of Miranda, particularly with regard to parole officers. Accordingly, we reverse the judgment of the Court of Appeals and reinstate defendant’s conviction and sentence.
I. FACTS AND HISTORY
In 2006, defendant was convicted of unarmed robbery in violation of MCL 750.530, and the trial court sentenced him to serve a prison term of 3 to 15 years. In February 2010, at the discretion of the parole board, defendant was granted parole and provisionally released from prison. Upon release, defendant was placed under the supervision of a parole officer and required to abide by certain conditions of parole. These conditions included that defendant not engage in behavior that constitutes a violation of any federal, state, or local law, that he not use or possess controlled substances, and that he follow the parole officer’s instructions and report as required by the officer.
On June 17, 2010, defendant was taken into custody by police pursuant to a warrant for failing to report, and the next day, his parole officer, Jason Golightly, served defendant with a notice of parole violation pertaining to that failure. On the same day, after advising defendant of his Miranda rights, detectives of the Jackson Police Department questioned defendant concerning a robbery that had occurred at approximately 4:00 a.m. on June 16, 2010, at a Jackson gas station. After voluntarily answering several questions, defendant requested an attorney. The police then discontinued the interrogation.
On June 21, 2010, while defendant was still incarcerated, his parole officer was on vacation, so another officer, Cheryl Evans, went to the jail to serve defendant with an amended notice of parole violation that identified three additional parole violations, one of which related to the June 16 robbery. Evans testified as follows regarding what occurred at the jail:
Q. And what, exactly does [“serve him parole violation charges and get his statement”] mean? What do you do? What’s the process when that happens?
A. When a person is served with a parole violation charge, when we determine they - or we believe they have violated a condition of their parole, we have charges made up. They’re on a piece of paper.
We then go and meet with the person. We serve them the charges, which means I say “Count I,” “Count II” - or, for him, it was Count - it was an additional count, so it was Count III, Count IN Count V And then I review it with him.
I ask him for a statement. We talk a little bit. And then he decides whether he signs the bottom - not saying he’s guilty - just signs that he received the charges.
Then he’s offered a preliminary parole violation hearing, which is a probable cause hearing. And, again, he waived that, but waiving that does not admit he’s guilty. It’s just that he’s waiving the preliminary hearing.
Q. So, did you do all this with the Defendant?
A. Yes.
Q. And did he give you a statement?
A. Yes, he did.
Q. Did one of the charges have to do with the robbery at the Admiral gas station?
A. Yes.
Q. Did he give you a statement as to those charges?
A. Yes.
Q. And what did he say?
A. We talked generally about everything that was going on and he said that he’d been having a rough time. He said that he was living with his cousin, Laurie Brooks, who has a couple of kids, and that he felt - he wasn’t able to get a job and hold a job - and he felt that he was putting a lot of financial stresses on her. And he also said, you know, he, himself, got a little stressed about it and was having a lot of trouble adjusting and he slipped and started using his cocaine again.
And he said he went into the Admiral gas station. He told me that he walked in there to the clerk, asked the clerk for some cigarettes. The clerk turned around to get cigarettes. As the clerk turned around - he actually showed me what he did — he leaned forward like this onto the counter and told the guy in a low voice to — told him to give him the money and he wouldn’t get hurt, and then he said the guy gave him the money and he left.
Relevant here, the meeting between Evans and defendant took place in the jail library and lasted approximately 15 to 25 minutes. Evans did not inform defendant of his Miranda rights or tell defendant that he was not required to speak to her absent a lawyer being present. According to Evans, during the meeting, defendant told her that he had submitted a letter indicating that he wished to talk to the police again, and at the end of the meeting, defendant asked Evans to convey to the police that he wished to speak to them.
Defendant was eventually charged with armed robbery for the gas station incident, and he was tried before a jury. At the beginning of trial, defendant moved to suppress Evans’s testimony regarding defendant’s confession, arguing that it was improperly obtained because defendant had not been informed of his Miranda rights and because defendant had previously requested counsel. After conducting a hearing, the trial court determined that Evans had not been acting in concert with law enforcement officials and that Evans was not herself a law enforcement officer obligated to give Miranda warnings. Accordingly, the court denied defendant’s motion and admitted Evans’s testimony regarding defendant’s confession. The jury convicted defendant of armed robbery, and he was sentenced as a fourth-offense habitual offender to a prison term of 15-30 years.
Defendant appealed, arguing that the trial court had erred when it denied his motion to suppress Evans’s testimony regarding his confession and that the error was not harmless. In a published opinion, the Court of Appeals held that a parole officer is a law enforcement officer for purposes of Miranda, that defendant was in custody when Evans interrogated him, and that the statements made by defendant were thus “inadmissible in a subsequent trial [because] the parolee invoked the right to counsel before questioning.” People v Elliott, 295 Mich App 623, 646; 815 NW2d 575 (2012). The Court of Appeals agreed with defendant that the trial court’s error in denying the motion to suppress was not harmless given the significance the prosecutor had placed on Evans’s testimony. Id. at 647-648. The Court of Appeals reversed defendant’s conviction and remanded for a new trial. Id. at 626. We granted the prosecutor’s application for leave to appeal. People v Elliott, 491 Mich 938 (2012).
II. STANDARD OF REVIEW
“We review a trial court’s factual findings in a ruling on a motion to suppress for clear error. To the extent that a trial court’s ruling on a motion to suppress involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo.” People v Attebury, 463 Mich 662, 668; 624 NW2d 912 (2001). Whether a court applied the correct constitutional standard is reviewed de novo. People v McRae, 469 Mich 704, 710; 678 NW2d 425 (2004).
III. ANALYSIS
In Miranda, the United States Supreme Court held that the Fifth Amendment’s prohibition against compelled self-incrimination requires that the accused be given a series of warnings before being subjected to “custodial interrogation.” Miranda, 384 US at 444 (“Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”). The right to have counsel present during custodial interrogation is a corollary of the right against compelled self-incrimination, because the presence of counsel at custodial interrogation is one way in which to “insure that statements made in the government-established atmosphere are not the product of compulsion.” Id. at 466; see also id. at 470. If the custodial interrogation is not preceded by an adequate warning, statements made during the custodial interrogation may not be introduced into evidence at the accused’s criminal trial. Id. at 444-445.
The prosecutor concedes that Miranda warnings were not given by the parole officer. Thus, the pertinent question is whether the meeting with the parole officer that resulted in defendant’s inculpatory statements constituted custodial interrogation. If the meeting did not constitute custodial interrogation, the ruling of the trial court was correct and the statements were properly admitted into evidence. See People v Hill, 429 Mich 382, 397; 415 NW2d 193 (1987) (indicating that Miranda warnings are not required unless the accused is subject to custodial interrogation). On the other hand, if the meeting did constitute custodial interrogation, the ruling of the trial court was in error and the statements were improperly admitted into evidence.
There is no dispute that defendant invoked his right to have counsel present during custodial interrogation when he was questioned on June 18 by Jackson police detectives about the gas station robbery and that the invocation triggered certain safeguards pursuant to Edwards, 451 US at 484-485. In Edwards, the United States Supreme Court created “additional safeguards” for when the accused invokes his right to have counsel present during custodial interrogation:
[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [HJaving expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. [Edwards, 451 US at 484-485.]
Edwards concerns only the manner in which the accused, after invoking his right to have counsel present during custodial interrogation, can validly waive that right and thereafter be subjected to further custodial interrogation absent counsel. If the accused is never subjected to custodial interrogation after he has invoked his right to counsel, Edwards is inapplicable. In other words, according to Edwards, the right the accused invokes under Miranda is the right to have counsel present during custodial interrogation. Edwards, 451 US at 485-486 (“The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation.”). In the absence of a post-invocation custodial interrogation, there can be no infringement of that right. See, e.g., Maryland v Shatzer, 559 US 98, 111; 130 S Ct 1213; 175 L Ed 2d 1045 (2010). (“In every case involving Edwards, the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress.”); Edwards, 451 US at 487 (“We think it is clear that Edwards was subjected to custodial interrogation [at a second meeting with the police] . . . and that this occurred at the instance of the authorities.”).
The pertinent question in this case is not, as the Court of Appeals believed it to be, “whether Evans was a law enforcement officer under Miranda as a matter of law given her status as a parole officer . .. Elliot, 295 Mich App at 636. Although Miranda discussed the constitutional safeguards in terms of “questioning initiated by law enforcement officers,” Miranda, 384 US at 444, neither Miranda’s right to be given a series of warnings nor Edwards’s right to have counsel present apply absent custodial interrogation, regardless of whether a parole officer constitutes a law enforcement officer. Thus, to determine whether a defendant’s Miranda or Edwards rights have been violated, we must first resolve whether the meeting with the parole officer constituted custodial interrogation. Because we conclude that defendant was not subjected to custodial interrogation by the parole officer, we need not further consider whether a parole officer not acting in concert with or at the request of the police may be considered a law enforcement officer for purposes of Miranda. By focusing on the wrong constitutional question, the Court of Appeals considerably expanded the domain of Miranda, particularly with regard to parole officers.
A. “CUSTODIAL INTERROGATION”
In Miranda, the United States Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. Custodial interrogation occurs “during ‘incommunicado interrogation of individuals in a police-dominated atmosphere.’ ” Illinois v Perkins, 496 US 292, 296; 110 S Ct 2394; 110 L Ed 2d 243 (1990), quoting Miranda, 384 US at 445. “That atmosphere is said to generate ‘inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.’ ” Perkins, 496 US at 296, quoting Miranda, 384 US at 467. “ ‘Fidelity to the doctrine announced in Miranda requires that it be enforced... only in those types of situations in which the concerns that powered the decision are implicated.’ ” Perkins, 496 US at 296, quoting Berkemer v McCarty, 468 US 420, 437; 104 S Ct 3138; 82 L Ed 2d 317 (1984).
Where, as here, a parolee is incarcerated for an alleged parole violation, “custodial” means more than just the normal restrictions that exist as a result of the incarceration. Indeed, the United States Supreme Court has held that “imprisonment alone is not enough to create a custodial situation within the meaning of Miranda.” Howes v Fields, 565 US _, _; 132 S Ct 1181, 1190; 182 L Ed 2d 17 (2012); see also Shatzer, 559 US at 112-113. Instead, whether “incarceration constitutes custody for Miranda purposes . . . depends upon whether it exerts the coercive pressure that Miranda was designed to guard against — the ‘danger of coercion [that] results from the interaction of custody and official interrogation.’ ” Shatzer, 559 US at 112 (emphasis and alteration in original), quoting Perkins, 496 US at 297. In determining whether defendant was presented with the same inherently coercive pressures that were the basis for the decision in Miranda, we find Fields instructive.
In Fields, a Michigan prisoner, Randall Fields, was escorted from his prison cell by a corrections officer to a conference room in which he was questioned by two sheriffs deputies about criminal activity he had allegedly engaged in before coming to prison. Fields was questioned for between five and seven hours and was at no time given Miranda warnings or advised that he did not have to speak with the deputies. Fields was told more than once that he was free to leave and return to his cell. The deputies were armed, but Fields remained free of restraints. The conference room door was sometimes open and sometimes shut. Several times during the interview Fields stated that he no longer wanted to talk to the deputies, but he did not ask to go back to his cell. After Fields eventually confessed and the interview concluded, he had to wait an additional 20 minutes for an escort before returning to his cell well after the time when he generally went to bed.
Under these facts, the United States Supreme Court held that Fields was not in custody for purposes of Miranda, and set forth the following constitutional standards:
As used in our Miranda case law, “custody” is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of “the objective circumstances of the interrogation,” a “reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” And in order to determine how a suspect would have “gauge[d]” his “freedom of movement,” courts must examine “all of the circumstances surrounding the' interrogation.” Relevant factors include the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.
Determining whether an individual’s freedom of movement was curtailed, however, is simply the first step in the analysis, not the last. Not all restraints on freedom of movement amount to custody for purposes of Miranda. We have “decline[d] to accord talismanic power” to the freedom-of-movement inquiry, and have instead asked the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda. “Our cases make clear... that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.”
When a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation. These include the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted. [Fields, 565 US at _; 132 S Ct at 1189-1190, 1192 (citations omitted; alterations in original).]
The Court then held that questioning a person in prison does not generally “involve the shock that very often accompanies arrest,” that “when a prisoner is questioned, he knows that when the questioning ceases, he will remain under confinement,” that a prisoner “is unlikely to be lured into speaking by a longing for prompt release,” and that a prisoner knows his questioners “probably lack the authority to affect the duration of his sentence.” Id. at _; 132 S Ct at 1190-1191. The Court found it “important” that Fields “was told at the outset of the interrogation, and was reminded again thereafter, that he could leave and go back to his cell whenever he wanted.” Id. at _; 132 S Ct at 1193. However, it also noted that Fields “was not advised that he was free to decline to speak with the deputies.” Id. at _; 132 S Ct at 1193. Despite this failing, the Court held that Fields was not in custody for purposes of Miranda.
Pursuant to Fields, the first constitutional step is to determine “whether an individual’s freedom of movement was curtailed. . . .” Fields, 565 US at _; 132 S Ct at 1189. If so, the court should then ask “the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” Id. at _; 132 S Ct at 1190. Thus, “[n]ot all restraints on freedom of movement amount to custody for purposes of Miranda.” Id. at _; 132 S Ct at 1189.
In the instant case, the meeting at issue took place in the jail library, it was of short duration (15 to 25 minutes), defendant was not physically restrained, and he was escorted to the library by a deputy, not by the parole officer. We note, as does the dissent, that one difference between this case and Fields is that defendant in this case was never told that he was free to leave the meeting and return to his cell. However, given that the meeting in this case lasted approximately 15 to 25 minutes, and the one in Fields lasted for five to seven hours, we do not think this fact is particularly compelling, much less dispositive, under the circumstances. More significant is the fact that defendant was not free to leave the jail library by himself. In this respect, this situation resembles that of the defendant in Fields-.
Because he was in prison, respondent was not free to leave the conference room by himself and to make his own way through the facility to his cell. Instead, he was escorted to the conference room and, when he ultimately decided to end the interview, he had to wait about 20 minutes for a corrections officer to arrive and escort him to his cell. But he would have been subject to this same restraint even if he had been taken to the conference room for some reason other than police questioning; under no circumstances could he have reasonably expected to be able to roam free. [Id. at_; 132 S Ct at 1193 (emphasis added).]
Moreover, much like the prisoner in Fields, a “reasonable person” in defendant’s “position,” i.e., a parolee, would be aware that a parole officer is acting independently of the police who placed him in custody and has no control over the jail, its staff, or the individuals incarcerated there. Thus, on balance, we conclude that defendant’s “freedom of movement” was not “curtailed” during the meeting at the jail library. Id. at _; 132 S Ct at 1189. The facts are consistent with an “ ‘environment in which a reasonable person would have felt free to terminate the interview and leave.’ ” Id. at _; 132 S Ct at 1193, quoting Yarborough v Alvarado, 541 US 652, 664-665; 124 S Ct 2140; 158 L Ed 2d 938 (2004).
Even if defendant could show that his freedom of movement was somehow curtailed during the meeting, he still fails to explain how the meeting “presented] the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” Fields, 565 US at _; 132 S Ct at 1189-1190 (“[W]hether an individual’s freedom of movement was curtailed, however, is simply the first step in the analysis, not the last. . . . We have ‘decline[d] to accord talismanic power’ to the freedom-of-movement inquiry, and have instead asked the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda”) (citation omitted; second alteration in original). See also United States v Salyers, 160 F3d 1152, 1159 (CA 7, 1998) (“Custody ‘implies a situation in which the suspect knows he is speaking with a government agent and does not feel free to end the conversation; the essential element of a custodial interrogation is coercion.’ ”), quoting United States v Martin, 63 F3d 1422, 1429 (CA 7, 1995) (emphasis added).
In this case, there is no evidence of coercion or any other manner of psychological intimidation. The parole officer visited defendant as part of her job as a parole officer; her only reasons for speaking to defendant were to advise him of parole violation charges, advise him of his right to a preliminary hearing on those charges, and to see if he was prepared to waive his right to a preliminary hearing. The officer was required to do all of this as part of her job, regardless of whether defendant was in or out of jail. Defendant cannot show inherently coercive pressures that caused him to discuss the robbery with the parole officer. Defendant was in jail for other parole violation charges (absconding) that were unrelated to the charges Evans was there to serve. Also, unlike in Fields, defendant was not questioned for an extended period of time by armed police officers who used a “ ‘sharp tone’ ” and “profanity.” Fields, 565 US at _; 132 S Ct at 1193 (citation omitted). And also unlike in Fields, in which the defendant indicated on several occasions during the interview that he did not want to talk to the police officers, defendant in this case did not even once indicate that he did not want to talk to the parole officer. Nor is there any evidence that the meeting “continued well past the hour” when defendant “generally went to bed,” id. at _; 132 S Ct at 1193, that the officer had the authority to alter the duration of defendant’s incarceration, or that defendant could not terminate the meeting. This situation does not represent custodial interrogation because defendant was not subjected to the type of coercive pressure against which Miranda was designed to guard. It is hardly the sort of incommunicado, police-dominated atmosphere involving custodial interrogation and the “overbearing” of the subject’s will toward which Miranda was directed. Accordingly, in our judgment, there was no “custodial interrogation” as that term has come to be understood under Miranda and its progeny.
The dissent argues that Fields and Shatzer (another opinion that held that imprisonment alone is insufficient to create a custodial interrogation situation within the meaning of Miranda) are significantly distinguishable from the instant case because the defendants in those cases “were both serving sentences for unrelated crimes and living in the prison in which they were interviewed.” Post at 327. However, the dissent fails to recognize that a parolee who is incarcerated as a result of violating a condition of his parole is at that juncture no different than a prisoner who was never paroled in the first place, at least in the sense that both are imprisoned as a result of their underlying offenses. Defendant here was arrested by the police pursuant to a warrant that was issued because he had absconded from parole. Because defendant was on parole and a warrant for his return had been issued as a result of his violation of a condition of parole, defendant, pursuant to Michigan law, could not be considered anything other than a “prisoner,” as were the defendants in Fields and Shatzer. People v Holder, 483 Mich 168, 172-173; 767 NW2d 423 (2009) (“A paroled prisoner is not considered released; rather, the prisoner is simply permitted to leave the confinement of prison.”); MCL 791.238(1) (“Each prisoner on parole shall remain in the legal custody and under the control of the department.”); MCL 791.238(2) (“A prisoner violating the provisions of his or her parole and for whose return a warrant has been issued by the deputy director of the bureau of field services is treated as an escaped prisoner ....”). Therefore, we do not agree that Fields and Shatzer are distinguishable, much less “significantly” so, on this basis.
In viewing the totality of circumstances in Fields and in the present case, we believe that if there was no custodial interrogation in the Miranda sense in Fields, there was certainly no custodial interrogation in the instant case. In Fields, the defendant was questioned by armed police officers; here, defendant was questioned, if you can even call it that, by an unarmed parole officer. In Fields, the defendant was questioned by armed police officers who were trying to obtain a confession from the defendant; here, defendant met with an unarmed parole officer who was there for the principal purpose of serving defendant with an amended notice of parole violations. In Fields, the defendant was questioned by armed police officers for about 5 to 7 hours; here, defendant met with an unarmed parole officer for 15 to 25 minutes. In Fields, the armed police officers used a “sharp tone” and “profanity” while questioning the defendant for several hours; here, the unarmed parole officer was altogether cordial and sympathetic with defendant during their brief meeting. In Fields, the armed police officers continued to question the defendant until well past his regular bedtime; here, the unarmed parole officer did not keep defendant up late at night. In Fields, the defendant repeatedly stated that he did not want to talk to the armed police officers; here, defendant never indicated in any manner that he did not wish to talk to the unarmed parole officer. We believe it is clear that the totality of circumstances in Fields far more closely resembles the kind of custodial interrogation that generated the extraordinary protections of Miranda than does the totality of circumstances in the present case- yet even in Fields, such circumstances were viewed by the United States Supreme Court to he insufficient to trigger the requirements of Miranda.
Moreover, the “inherently coercive” attributes of the parolee/parole officer relationship that the Court of Appeals relied on in reaching its conclusions are wholly inapplicable here because Evans was not defendant’s supervising officer. The Court of Appeals explained:
The rationale for the suppression of statements elicited during a custodial interrogation by a law enforcement officer who does not adhere to Miranda is to “combat” the “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Miranda, 384 US at 467; see also [People v] Williams, 244 Mich App [533, 539; 624 NW2d 575 (2001)]. Such “inherently compelling pressures” exist in the relationship between a parolee and a parole officer. Indeed, this Court has recognized that “both parolees and probationers are under heavy psychological pressure to answer inquiries made by their supervising officers.” People v Faulkner, 90 Mich App 520, 524; 282 NW2d 377 (1979) (quotation marks and citations omitted). This heavy psychological pressure exists because of the unique relationship between a parolee and parole officer.
... [T]he parolee-parole officer relationship often becomes a relationship of trust and confidence, as does the probationer-probation officer relationship addressed by Justice Marshall in Murphy. See Murphy, 465 US at 459-460 (Marshall, J., dissenting). As a parolee develops trust and begins to confide in a parole officer, the parole officer is more likely to elicit from the parolee incriminating statements that the parolee would likely not make to a police interrogator. [Elliot, 295 Mich App at 643.]
However, the Court of Appeals failed to recognize that the parole officer in the instant case was not defendant’s parole officer and thus that they did not have the kind of “unique relationship” of “trust and confidence” that the Court of Appeals assumed that they did. Indeed, much, if not all, of the persuasive authority cited by the Court of Appeals seems inapposite when someone other than the defendant’s supervising parole officer is conducting the meeting.
B. MINNESOTA v MURPHY
In Minnesota v Murphy, 465 US 420; 104 S Ct 1136; 79 L Ed 2d 409 (1984), the respondent was given a suspended prison sentence and placed on probation. During the course of a meeting at his probation officer’s office, the respondent, upon questioning by his probation officer, admitted that he had committed a rape and murder in 1974. The probation officer had previously received information from a treatment counselor that respondent had admitted to the 1974 crimes.
The respondent moved to suppress the confession, but the trial court found that he had not been in custody at the time of the confession and that the confession was neither compelled nor involuntary despite the absence of Miranda warnings. The Minnesota Supreme Court reversed, holding that the respondent’s
failure to claim the privilege when he was questioned was not fatal to his claim “[bjecause of the compulsory nature of the meeting, because [the respondent] was under court order to respond truthfully to his agent’s questions, and because the agent had substantial reason to believe that [the respondent’s] answers were likely to be incriminating.” [Murphy, 465 US at 425, quoting State v Murphy, 324 NW2d 340, 344 (Minn, 1982) (first alteration in original).]
The United States Supreme Court reversed, holding that Miranda warnings are not necessary during the course of a routine probation interview, even when there is a connection between the probation officer-interviewer and the criminal investigative process. The Court rejected the proposition that the fact that the probation officer was consciously seeking incriminating evidence was relevant. Murphy, 465 US at 431 (“[T]he probation officer’s knowledge and intent have no bearing on the outcome of this case.”). The Court also rejected the argument that the respondent might have reasonably expected that his statements to the probation officer would remain confidential:
[W]e cannot conclude that [the probation officer’s] actions would have led a reasonable probationer to believe that his statements to her would remain confidential. A probationer cannot pretend ignorance of the fact that his probation officer “is a peace officer, and as such is allied, to a greater or lesser extent, with his fellow peace offic ers.” ... The fact that [the respondent] apparently expressed no surprise on being informed that his statements would be made available to the police, moreover, strongly suggests that he was not misled by any expectation that his statements would remain confidential. [Id. at 432.]
Finally, the Court held that
the coercion inherent in custodial interrogation derives in large measure from an interrogator’s insinuations that the interrogation will continue until a confession is obtained. Since [the respondent] was not physically restrained and could have left the office, any compulsion he might have felt from the possibility that terminating the meeting would have led to revocation of probation was not comparable to the pressure on a suspect who is painfully aware that he literally cannot escape a persistent custodial interrogator. [Id. at 433 (citation omitted).][ ]
Some courts have noted that a parole officer’s questioning can be inherently more coercive than a law enforcement officer’s questioning because the parole officer can put the parolee in prison more easily than can a police officer. However, whatever the merits of this analysis, this concern does not exist to the same extent once the accused is already in jail for a parole violation because the primary source of the parole officer’s potential for coercion no longer exists. In this sense, a meeting after the accused has been arrested for violating his parole presents a less threatening situation than one conducted by a parole or probation officer before the accused has been arrested. In this case, defendant had already been given notice that his parole was being revoked and that he was in jail for that reason. Thus, no parole officer could threaten to put him in jail; he was already there. Moreover, this was not his parole officer. Defendant could not reasonably be under any illusions that Evans would have possessed any power to immediately free or detain him when he was not even her charge. As was the case in Murphy, there “is no direct evidence that [defendant] confessed because he feared that his probation would be revoked if he remained silent.” Id. at 437. Similarly, defendant’s request at the end of the meeting that the parole officer convey to the police that he wished to speak to them “strongly suggests that he was not misled by any expectation that his statements would remain confidential.” Id. at 432.
C. ESTELLE v SMITH
Unlike the dissent, we disagree that Estelle v Smith, 451 US 454; 101 S Ct 1866; 68 L Ed 2d 359 (1981), is particularly “instructive” with regard to the question at issue here-custody. Post at 333. Indeed, Estelle did not even address that issue. Instead, Estelle simply assumed that the respondent in that case was in custody for Miranda purposes because he “was in custody at the Dallas County Jail when the examination was ordered and when it was conducted.” Id. at 467. Moreover, since Estelle was decided, the Court has affirmatively held that prisoners are not invariably in custody for purposes of Miranda. See Fields, 565 US at _; 132 S Ct at 1190. Because Estelle predated Fields and thus did not engage in the analysis that Fields now requires in determining whether an accused/prisoner was in custody for Miranda purposes, we do not believe that Estelle is relevant with regard to whether defendant was in custody for Miranda purposes, which the dissent agrees is the controlling issue.
Moreover, Estelle is also significantly distinguishable because it involved a court-ordered psychiatric examination. In Estelle, the Court held that the admission of a psychiatrist’s testimony to establish an element of proof necessary to support the imposition of capital punishment violated the respondent’s Fifth Amendment privilege against compelled self-incrimination. The psychiatrist’s testimony related to a 90-minute pretrial competency examination that the psychiatrist had administered to the respondent. The Court em phasized that the competency examination “was ordered even though defense counsel had not put into issue [the respondent’s] competency to stand trial or his sanity at the time of the offense,” Estelle, 451 US at 457 n 1, and that this was a “compulsory examination,” to which the respondent was “compelled to respond,” yet “he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death,” id. at 467-468. The Court summarized:
To meet its burden, the State used respondent’s own statements, unwittingly made without an awareness that he was assisting the State’s efforts to obtain the death penalty. In these distinct circumstances, the Court of Appeals correctly concluded that the Fifth Amendment privilege was implicated.
A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding....
. .. [U]nder Miranda v Arizona, we must conclude that, when faced while in custody with a court-ordered psychiatric inquiry, respondent’s statements to Dr. Grigson were not “given freely and voluntarily without any compelling influences” and, as such, could be used as the State did at the penalty phase only if respondent had been apprised of his rights and had knowingly decided to waive them. [Id. at 466, 468 (citation omitted; emphasis added).]
Unlike what occurred in Estelle, there was no court-ordered “compulsory examination” to which defendant was “compelled to respond” in this case. As a result, Estelle is wholly inapplicable.
IV CONCLUSION
Neither an accused’s right under Miranda to be given a series of warnings nor an accused’s right under Edwards to have counsel present apply absent custodial interrogation. Because defendant was not subjected to custodial interrogation by the parole officer, even if she was a law enforcement officer, neither of those rights were violated, and thus the trial court did not err by admitting defendant’s confession. Accordingly, we reverse the judgment of the Court of Appeals and reinstate defendant’s conviction and sentence.
Kelly, Zahra and Viviano, JJ., concurred with Markman, J.
Defendant was adjudicated responsible as a juvenile in 1982 for assault and battery and in 1983 for fourth-degree criminal sexual conduct. In 1987, defendant pleaded guilty to minor in possession. In 1990, he pleaded guilty to operating a vehicle while under the influence of alcohol, and in 1991, he pleaded guilty to three counts of assault and battery and one count of disturbing the peace. In that same year, he also pleaded guilty to assaulting a police officer and, when he violated probation, he was sent to prison. Also in 1991, in separate cases, he pleaded guilty to malicious destruction of property over $100 and malicious destruction of property under $100. In 1992, he pleaded guilty to misdemeanor resisting a police officer and spent 20 days in jail. In 1993, he pleaded guilty to both possessing an open intoxicant and urinating in public. In 1994, he was convicted of unarmed robbery and sentenced to 5 to 30 years in prison. In 2003, shortly after his release from prison, he pleaded guilty to resisting a police officer and received yet another prison term.
Before going to the jail, Evans reviewed the police report that was created following the robbery. She learned from another parole officer that defendant’s brother had turned defendant in. She also talked to a detective, Ed Smith, who had questioned defendant at the jail a few days earlier. Evans testified that “what we generally do is, if they’re in the middle of an investigation, we just ask them whether or not - if I can go talk to the person without interfering with their investigation, because our issue is separate than theirs.” Smith testified that he told Evans that defendant had requested an attorney, but Evans testified that she did not recall Smith telling her that.
The Court of Appeals also held that the trial court did not clearly err by finding that Evans had not acted in concert with, or at the request of, the police. Elliott, 295 Mich App at 636. Defendant does not appeal that holding. Thus, our order granting the prosecutor’s application stated as follows:
The parties shall address whether, and, in light of Howes v Fields, 565 US _; 132 S Ct 1181; 182 L Ed 2d 17 (2012), under what custodial circumstances, a parole officer not acting in concert with police is required to provide the warnings prescribed by Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), before questioning an in-custody parolee who, during police questioning, has previously invoked his right to counsel under Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981), about an offense giving rise to an alleged parole violation, if the parole officer’s testimony concerning the parolee’s responses to such questioning is to be admissible at the trial for that offense. [Elliott, 491 Mich 938.]
The United States Constitution and the Michigan Constitution both prohibit “compelled” self-incrimination. US Const, Am V (“No person shall... he compelled in any criminal case to be a witness against himself. . . .”); Const 1963, art 1, § 17 (“No person shall he compelled in any criminal case to be a witness against himself. . . .”).
The prosecutor does not argue that defendant validly waived the right to have counsel present during custodial interrogation. Rather, he simply argues that defendant did not have the right to have counsel present during his meeting with Evans. Because we agree, we also do not address waiver in this opinion. That is, unlike the dissenting opinion, we conclude that because the parole officer did not subject defendant to custodial interrogation, defendant had no right to counsel dining his meeting with the parole officer. Because we conclude that defendant had no right to counsel to waive, we do not need to address the concurring opinion’s conclusion that defendant waived that right. The dissenting opinion would broaden the concept of custodial interrogation and thereby ensure that in some unknown number of future cases, voluntary confessions such as that which occurred in this very case, would be rendered inadmissible.
Although we agree with the dissent that defendant “could not be subjected to further custodial interrogation about the robbery until counsel had been made available to him or he initiated communication,” post at 325-326 (emphasis added), we disagree that “Evans’s interview of defendant about the robbery [cannot] be viewed as noncustodial because custody, for purposes of Miranda and Edwards, was not broken between the initial interrogation by the police and Evans’s subsequent questioning three days later,” post at 326. For all of the reasons set forth in this opinion, we believe that defendant’s meeting with the parole officer cannot be viewed as the same as his meeting with the police in terms of constituting “custodial interrogation.” Further, however, we believe it is clear that these constituted entirely distinct episodes, distinct in terms of when they occurred, distinct in terms of their participants, distinct in terms of who was doing the interrogation, distinct in terms of their venue, distinct in terms of their subject matter and purpose, distinct in terms of their coercive aspects, and distinct in terms of the overall environment in which they took place. That one of these episodes can be characterized as involving custodial interrogation carries no particular significance in terms of whether the other can be similarly characterized, as it must be, before defendant’s Miranda rights are implicated. Although, by treating these distinct episodes as part of a “continuing” sequence of events that “never ceased” the dissent can impute the attributes of one meeting to the other meeting, we do not believe this accurately describes the relationship between the events. Indeed, the dissent itself acknowledges that the police “stopped questioning” defendant when he invoked his right to have counsel present, and the dissent identifies no reason why the custodial interrogation that existed during the meeting with the police should necessarily be thought to carry over to the meeting with the parole officer. The only relevant question under Edwards is whether the meeting with the parole officer did or did not constitute custodial interrogation, and we believe that it did not.
See Stansbury v California, 511 US 318, 322; 114 S Ct 1526; 128 L Ed 2d 293 (1994) (“In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation ....”) (emphasis added). The dissent states that “the Fields majority cited the fact that the defendant in that case was told he was free to leave as the ‘[m]ost important’ factor in its determination that the defendant was not in custody.” Post at 329 (alteration in original). More precisely, however, the Court found this fact to he the “most important” only in “offset[tingl” the facts that supported the “argument that Miranda’s custody requirement was met: The interview lasted for between five and seven hours in the evening and continued well past the hour when respondent generally went to bed; the deputies who questioned respondent were armed; and one of the deputies, according to respondent, ‘[u]sed a very sharp tone’.. ..” Fields, 565 US at _; 132 S Ct at 1193 (alteration in original). As defendant in this case was not interviewed for five to seven hours late into the night by armed deputies who used a sharp tone, it is of considerably less relevance that the parole officer did not apprise defendant that he was free to return to his cell, because no such similarly harsh circumstances existed in the first place that needed to be “offset” by this fact.
Berkemer v McCarty, 468 US 420, 442; 104 S Ct 3138; 82 L Ed 2d 317 (1984) (“[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.”); Yarborough v Alvarado, 541 US 652, 663; 124 S Ct 2140; 158 L Ed 2d 938 (2004) (“Courts must examine ‘all of the circumstances surrounding the interrogation’ and determine ‘how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.’ ”). Relevantly, the suspect in Yarborough was also not told “that he was free to leave.” Id. at 655.
Fields, 565 US at _; 132 S Ct at 1191 (2012), quoting Perkins, 496 US at 297 (“ ‘When the suspect has no reason to think that the listeners have official power over him, it should not be assumed that his words are motivated by the reaction he expects from his listeners.’ ”). See also, In JDB v North Carolina, _ US _, _; 131 S Ct 2394, 2404, 2406; 180 L Ed 2d 310 (2011) (stating that “so long as the child’s age was known to the officer at the time of police questioning ... its inclusion in the custody analysis is consistent with the objective nature of [the Miranda custody] test” because “a child’s age differs from other personal characteristics that. . . have no objectively discernible relationship to a reasonable person’s understanding of his freedom of action”). JDB thus distinguished age from a suspect’s “prior interrogation history with law enforcement,” noting that the latter could not be considered without compromising the objective nature of the custody analysis because the effect of this experience is contingent on the psychology of the individual suspect. Id. at _; 131 S Ct at 2404. We do not think it is an unreasonable or “subjective” conclusion that a parolee is more generally aware, precisely because he or she is a parolee, that a parole officer acts independently of the police and has no control over the jail, its staff, or the individuals incarcerated there.
The dissent, post at 331 n 17, errs in its suggestion that Fields did not discuss defendant’s status as an inmate in the “freedom of movement” inquiry in that case. See Fields, 565 US at _; 130 S Ct at 1193 (stating that because the respondent was in prison “under no circumstances could he have reasonably expected to be able to roam free”). We believe that defendant’s “parolee status” is similarly relevant. See also, Shatzer, 559 US at 107-108.
See MCL 791.239a(2) (“Prior to the preliminary hearing, the accused parolee shall be given written notice of the charges . ...”)
See MCL 791.239a(1) (“Within 10 days ¿fter an arrest for an alleged violation of parole, the parolee shall be entitled to a preliminary hearing to determine whether there is probable cause to believe that the conditions of parole have been violated or a fact-finding hearing held pursuant to [MCL 791.240a].”)
Contrary to the dissent’s suggestion, the mere fact that Evans, who was not even defendant’s supervising parole officer, “was present at the jail to serve parole violation charges on defendant” does not mean that Evans had the “ ‘authority to affect the duration of his sentence ....’” Post at 332, quoting Fields, 565 US at _; 132 S Ct at 1191. As explained in Fields, 565 US at _; 132 S Ct at 1191, “a prisoner, unlike a person who has not been convicted and sentenced, knows that the law enforcement officers who question him probably lack the authority to affect the duration of his sentence.” (Emphasis added.) Also, the dissent offers no factual support for its assertion that “Evan’s influence Mould have been critical” regarding “how much time defendant served... .” Post at 332-333 n 21. Instead, it appears that Evans merely filled in for defendant’s supervising parole officer and completed the single discrete task of serving defendant with an amended notice of parole violations, and that defendant’s supervising parole officer was the one ultimately responsible for overseeing his parole violation.
Even if, as the dissent asserts, defendant and Evans had developed a “unique relationship” of “trust and confidence” that created some “psychological pressure” on defendant to answer Evans’s inquires, this would not necessarily have converted defendant’s otherwise voluntary statements into compelled ones.
See, e.g., Elliott, 295 Mich App at 642-643, citing Murphy, 465 US at 459-460 (Marshall, J., dissenting).
The Court further noted that the rule in Miranda was crafted to apply to a situation that “thrusts an individual into ‘an unfamiliar atmosphere’ or ‘interrogation environment. .. created for no purpose other than to subjugate the individual to the will of his examiner.’ ” Murphy, 465 US at 433, quoting Miranda, 384 US at 457. The situation is one that “is said to convey to the suspect a message that he has no choice but to submit to the officers’ will and to confess.” Murphy, 465 US at 433.
See 2 LaFave, Criminal Procedure (3d ed), § 6.10(c), p 878 (“[SJome courts have reached [the conclusion] that custodial interrogation (other than routine interviews) by a probation or parole officer is governed by Miranda because the probationer or parolee is under ‘heavy psychological pressure to cooperate’ with one who can recommend his imprisonment.”) (citations omitted); State v Gallagher, 46 Ohio St 2d 225, 227; 348 NE2d 336 (1976) (“[A] parolee is under heavy pressure to cooperate with his parole officer * * * (who, allegedly,) had the power to recommend the return to prison of a parolee under his charge ... .”) (citation and quotation marks omitted).
The dissent cites Estelle for the proposition that somebody other than a police officer, such as a psychiatrist who performs a court-ordered psychiatric examination, can conduct a custodial interrogation for purposes of Miranda. We do not necessarily disagree with this proposition. However, as both this and the dissenting opinions recognize, “the dispositive issue is whether defendant was subject to custodial interrogation, not the nature of the relationship between the questioner and defendant.” Post at 324. Because we conclude that defendant was not subjected to a custodial interrogation for Miranda purposes, it is wholly unnecessary to address whether a parole officer is a law enforcement officer for Miranda purposes. Infra at 303-305.
The Court explained the circumstances of the examination and how those circumstances implicated the Fifth Amendment:
The fact that respondent’s statements were uttered in the context of a psychiatric examination does not automatically remove them from the reach of the Fifth Amendment. The state trial judge, sua sponte, ordered a psychiatric evaluation of respondent for the limited, neutral purpose of determining his competency to stand trial, but the results of that inquiry were used by the State for a much broader objective that was plainly adverse to respondent. Consequently, the interview with Dr. Grigson cannot he characterized as a routine competency examination restricted to ensuring that respondent understood the charges against him and was capable of assisting in his defense. Indeed, if the application of Dr. Grigson’s findings had been confined to serving that function, no Fifth Amendment issue would have arisen. [Estelle, 451 US at 465 (citation omitted).]
We also note that Estelle concerned the Sixth Amendment right to counsel, not the Fifth Amendment right to counsel:
Because psychiatric examinations of the type at issue here are conducted after adversary proceedings have been instituted, we are not concerned in this case with the limited right to the appointment and presence of counsel recognized as a Fifth Amendment safeguard in Miranda. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378. Rather, the issue before us is whether a defendant’s Sixth Amendment right to the assistance of counsel is abridged when the defendant is not given prior opportunity to consult with counsel about his participation in the psychiatric examination. [Estelle, 451 US at 470 n 14 (citation omitted).] | [
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Cavanagh, J.
Defendant was convicted of two counts of second-degree criminal sexual conduct, MCL 750.520c(1)(a), and assault and battery, MCL 750.81, arising out of accusations made by an eleven-year-old girl. The Court of Appeals affirmed defendant’s convictions. We granted leave to appeal to consider whether out-of-court statements made by police investigators during an interrogation of a defendant that vouch for the credibility of another must be redacted from a recording of the interview before it is played for the jury.
At this juncture, we find it unnecessary to adopt a bright-line rule requiring the automatic redaction of such statements. Instead, applying our rules of evidence, we hold that if such out-of-court statements are not offered for the truth of the matter asserted, the statements may be admissible to the extent that the proponent of the evidence establishes that they are relevant for their proffered purpose as defined by MRE 401. Further, even if relevant, the statements may be excluded under MRE 403. Finally, upon request, the statements must be restricted to their proper scope and the jury instructed accordingly. MRE 105.
Under the facts of this case, we hold that the trial court abused its discretion by allowing all the detectives’ statements commenting on credibility to be presented to the jury on the basis that the statements provided “context” for defendant’s statements, when most of the detectives’ statements were irrelevant for that purpose. Because the error in this case undermined the reliability of the verdict, we reverse the judgment of the Court of Appeals, vacate defendant’s convictions, and remand the case to the trial court for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
The convictions in this case relate to events occurring in the Spring of 2009 while the complainant and her family were at defendant’s home.
The complainant testified that she, her mother, father, and brother went to defendant’s home to watch a hockey game with defendant and his family. According to the complainant, she became tired and slouched back on one of defendant’s couches, attempting to fall asleep. One of defendant’s children was asleep in the same room on another couch, while the adults and another child were downstairs in defendant’s basement. Two other children were asleep somewhere else in defendant’s home. The complainant testified that while she was feigning sleeping, defendant put his hands on her inner thighs and later touched her breasts while cover ing her with a blanket. The complainant also stated that defendant put his thumb under the waistband of her pants, which was near her underwear line. According to the complainant, after defendant left, she went downstairs and asked her parents if they could leave. The complainant’s mother, Jennifer, testified that everything seemed normal when they left and, although there was testimony that the two families continued to see each other after the incident, Jennifer testified that the complainant was not interested in going to defendant’s home. The complainant did not tell anyone about the incident for nearly a year.
A friend of the complainant testified that in late April 2010, she and the complainant were talking about secrets when the complainant stated that someone had touched her while at a gathering, but she did not indicate where she had been touched. Although the friend told the complainant that she needed to tell someone, the complainant did not do so until approximately two weeks later after getting into an argument with her mother.
Jennifer testified that in May 2010, she had been teasing the complainant over her homework when the complainant ran out of the room, upset. Jennifer followed the complainant to her bedroom to find out what was wrong. When the complainant began to cry and indicated that she did not wish to speak, Jennifer asked her a series of questions, including whether she was fighting with a friend or whether someone in the neighborhood had hurt her. When the complainant answered negatively to Jennifer’s questions, Jennifer asked the complainant if she was having a problem with a grownup, to which the complainant nodded “yes.” Jennifer eventually asked the complainant if the problem was with defendant, who, according to the com plainant’s father, was a good friend with whom his family had spent countless hours. In response, the complainant shook her head “yes” and started to cry, but she would not reveal any of the details. Soon thereafter, the complainant’s parents took the complainant to the Kent County Sheriffs Department (KCSD), which referred them to the Children’s Assessment Center of Grand Rapids — a center that assesses children following reports of suspected child abuse. On May 11, 2010, the complainant was interviewed by KCSD Detective Edward Kolakowski. During that interview, the complainant revealed the full extent of the incident for the first time.
That same day, Detective Kolakowski and Detective William Heffron interviewed defendant. Defendant was informed by Detective Kolakowski when he arrived at the Sheriffs Department that the complainant had accused him of inappropriate touching while their families were watching a game a year earlier at defendant’s home. Throughout the interview, defendant denied any improper contact with the complainant, but remembered coming upstairs to get a drink while the complainant and her family were watching a hockey game. Defendant, stated that he saw the complainant asleep, hugged her, and gave her a kiss on her cheek or forehead. Defendant acknowledged that he had been drinking that night, that the complainant seemed vulnerable because she appeared to be asleep, and that his hands accidentally touched the skin of the complainant’s back when he put his arms around her. Defendant, however, explained that none of his actions were sexual, and he did not touch the complainant inappropriately or in the places that she claimed that she was touched. Defendant stated that he and the complainant had always been affectionate, and the complainant had often greeted defendant with a hug and a kiss when they saw each other.
During the interview, Detective Kolakowski and Detective Heffron made statements regarding the complainant and child-victims generally, including the following:
DETECTIVE KOLAKOWSKI: ... Kids have a hard time lying about this stuff because they don’t even want to talk about it, let alone they don’t even want to talk about it to a mere fucking stranger.
DETECTIVE HEFFRON: Especially a 12 year old girl.
DETECTIVE KOLAKOWSKI: And she tells me what happened? And she tells our counselors what happened? And these are — and —and with these interviews, too, it’s not just a interview of, “tell me what happened,” ... they’re ... done with ... Michigan adopted, basically, a forensic interview protocol that there’s a special way that kids have to be interviewed. They’re not interviewed like I can interview you, all right? ... [Y]ou know what? If you can’t do it for yourself, do it for your own little girl.... Make sure she knows that men have to answer to the truth. And make sure that [the complainant] knows that, you know what? [Y]eah, someone fucked up ... . She’s having a devastating time. She loves you. She cares about you. She cares about your family. You want to know what her concern was? You want to know why she waited to tell? Do you want me to tell you?
[DEFENDANT]: Sure.
DETECTIVE KOLAKOWSKI: I’ll tell you....
DETECTIVE HEFFRON: You know there’s a big difference when we interview 4, 5, 6 year olds and when they get up around 10,11,12,13. There’s a big difference. Four, five, six year old kids, they’re easy to manipulate by parents, aunts, uncles — they’re easy to manipulate. They’re terrible actors. They’re terrible. When kids start getting a little bit older they’re better actors. They’re — they’re older, they’re seeing more. She’s 12. The big issue here is if she wanted to get you in trouble — she’s smart enough, and she’s only— and she’s 12 — if, for whatever reason, she wanted to get you in trouble she would — she would—
[DEFENDANT]: That she would say that I fucked her?
DETECTIVE HEFFRON: Absolutely.
[DEFENDANT]: Yeah.
DETECTIVE HEFFRON: Absolutely. “He put his hand down my pants, his finger was in my vagina” all of this “his mouth was on my breast” — that’s what they would do if they’re gonna lie to get somebody in trouble,.. .an older kid like that. Little kids, they never’ve [sic] been exposed to that stuff. They don’t know. But it’s pretty credible when she tells us, “Hey, he touched... me here” and “heput his hand on my breasts” and... “his hand started going down my pants but he couldn’t.” That’s pretty credible; that’s pretty detailed. Again, if there’s no reason for her to make this crap up, why would she say it? This is the last thing... she wanted to do was talk to a total stranger about something like this. Why? Why is she gonna put herself through that if it didn’t happen? We can’t find anything. Kids don’t lie about this stuff. They lie about their homework being done; they lie about, “yep, I did the dishes” when they didn’t... [T]hey lie about “yeah, we were in bed by 10:00.” They don’t lie about this stuff if maybe she’s in trouble for something. This is not the kind of stuff that kids make up to try to get out of some trouble that they’re in. That’s why this is so disturbing.... And again, if she’s talking about “his hand was on my breast, ” she’s not gonna make that crap up. She just isn’t. And this is your opportunity for her to eventually see that you made a mistake, you’re human, and you want to get this worked out so she has the least amount of stress/trauma, whatever, but that she gets the... feeling that “I love the man, the family. He made a mistake and someday as I’m older[”] — because she’s always gonna remember this — this didn’t happen when she was 2 or 3 years old — they don’t remember that stuff. She’s always gonna remember this. At some point she will be able to accept, “Hey, this is what happened. We all make mistakes. He made a mistake.” But you’re gonna have to start by being upfront. And for you to sit here and say that “well, yep, she’s telling the truth about this, but she’s lying about that,” . . . she’s gonna have this report. She’s gonna know exactly what you said, and whatever... message you want to send her that’s ... up to you. We can’t force you. But if she’s saying you touched her breasts — I wasn’t there for the interview [of the complainant] but [Kolakowski, who has] done a lot of interviewing, said, “Bill, there’s no question this happened and the stuff that I’m aware of he probably did’’ — we just need to know why. Was it alcohol ? Was it — I don’t know what your sex life has been at home, but all we want to know is why. Were you ever molested as a child?
[DEFENDANT]: No.
DETECTIVE HEFFRON: Help us out here.
[DEFENDANT]: You asked a lot of different questions right there. I don’t know — I—I don’t know what motivated me. I think I explained it, I was just trying to give her a peck. I don’t know where this touching of the hreast is coming from. [Emphasis added.]
In addition to other statements in the interview, defendant made a pre-trial motion to exclude these emphasized statements. The trial court overruled defendant’s objections, reasoning that the emphasized statements either gave context to defendant’s statements or were “in the nature of the interrogation of the accused,” and the questions and answers could be favorable to both parties.
At trial, a video recording of defendant’s interview was played for the jury. Before the video was played, however, Detective Kolakowski testified regarding his experience with forensic interviews, stating that he had received special training in forensic interviewing techniques; that the technique requires the interviewer to inquire whether the child understands the difference between the truth and a lie and that older children, such as those around 11 years old, understand the difference between the two; that he had done “hundreds” of forensic interviews throughout his career; and that he had followed the forensic interview process when interviewing the complainant. The jury was then given a copy of the transcript, with the following oral instruction:
You’ve been handed .. . what’s going to be marked for appellate purposes as Exhibit 2-A. Again, the transcript is not evidence. It’s the recording that’s going to be played for you that’s the evidence.. .. What you have to make your decision on is based on what... evidence that’s admitted in court.
After the video was played, defense counsel moved for a mistrial, stating that he was essentially making a renewed motion to strike Detective Heffron’s comments because, irrespective of Detective Kolakowski’s comments regarding the complainant’s credibility, Detective Heffron’s statements were too prejudicial. The trial court denied defendant’s motion. However, after an hour-long lunch recess, the judge gave the jury the following instruction in light of defendant’s previous motion:
[A]s relates to [the DVD], which before the lunch recess was played for you, there Eire msmy statements Eind questions by one or more law enforcement officers. These questions or statements, no matter how short or how long, are not evidence, and you must not consider them as such. Only the answers of [the defendant] are evidence. The questions or statements of the law enforcement officers are only provided to you to put into context the answers of [the defendant]. It is only the answers of [the defendant] that are evidence in this case.
In addition to the above testimony, an expert testified for- each party, with the prosecution’s expert stating that it is common for complainants to delay reporting their allegations, and the defense expert stating that delayed reporting can lead to incorrect recollections and that children are susceptible to suggestion by others, including their parents.
Defendant and his wife were the final witnesses. Defendant continued to deny having touched the complainant’s breasts, inner thighs, stomach, or belt-line. Defendant’s wife also testified, asserting that the complainant’s testimony was flawed on the basis of calendars that she maintained to keep track of her family’s schedules. From her records, she believed that the night in question occurred on a night that the complainant had a track meet. As a result, the complainant and her family could not have arrived at defendant’s home until after the hockey play-off games that occurred on that date were over.
The jury found defendant guilty of two counts of second-degree criminal sexual conduct and one count of assault and battery, as a lesser-included offense of assault with the intent to commit criminal sexual conduct in the second degree.
Defendant appealed, arguing, in relevant part, that the trial court abused its discretion by failing to redact numerous statements by the detectives that vouched for the complainant’s credibility. The Court of Appeals affirmed. The Court reasoned that the officers’ statements regarding the complainant’s credibility were properly admitted, explaining that any introductory statements by the detectives provided context for the questions and defendant’s statements in response. We granted defendant’s application for leave to appeal.
II. STANDARD OF REVIEW
A trial court’s decision to admit evidence “will not be disturbed absent an abuse of. . . discretion.” People v McDaniel, 469 Mich 409, 412; 670 NW2d 659 (2003). A trial court abuses its discretion when it chooses an outcome that falls outside the range of principled outcomes. People v Smith, 482 Mich 292, 300; 754 NW2d 284 (2008). However, if an evidentiary error is a non-constitutional, preserved error, then it “is presumed not to be a ground for reversal unless it affirmatively appears that, more probably than not, it was outcome determinative.” People v Krueger, 466 Mich 50, 54; 643 NW2d 223 (2002). An error is “outcome determinative if it undermined the reliability of the verdict” and, in making this determination, a court should “focus on the nature of the error in light of the weight and strength of the untainted evidence.” Id. (quotation marks and citations omitted).
III. LEGAL BACKGROUND
It is “[t]he Anglo-Saxon tradition of criminal justice . . . [that] makes jurors the judges of the credibility of testimony offered by witnesses.” United States v Bailey, 444 US 394, 414; 100 S Ct 624; 62 L Ed 2d 575 (1980). Because it is the province of the jury to determine whether “a particular witness spoke the truth or fabricated a cock-and-bull story,” id. at 414-415, it is improper for a witness or an expert to comment or provide an opinion on the credibility of another person while testifying at trial. People v Buckey, 424 Mich 1, 17; 378 NW2d 432 (1985). See also, People v Peterson, 450 Mich 349, 352; 537 NW2d 857 (1995). Such comments have no probative value, Buckey, 424 Mich at 17, because “they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence.” Connecticut v Taft, 306 Conn 749, 764; 51 A3d 988 (2012) (citation and quotation marks omitted). See also, People v Row, 135 Mich 505, 507; 98 NW 13 (1904) (explaining that opinion testimony regarding a complainant’s veracity is not competent evidence). As a result, such statements are considered “superfluous” and are “inadmissible lay witnessD opinion on the believability of a [witness’s] story” because the jury is “in just as good a position to evaluate the [witness’s] testimony.” People v Smith, 425 Mich 98, 109, 113; 387 NW2d 814 (1986).
(1) whether statements in a recording of a police interview of a criminal defendant that vouch for the credibility of a witness, which would be inadmissible if stated by a trial witness, must be redacted from the recording before the jury views it; or (2) if the jury is allowed to see such a recording without redacting the vouching statements, what circumstances must be present and what, if any, protective measures must be in place. [People v Musser, 493 Mich 860 (2012).]
This case, however, involves a twist on the traditional rule. Specifically, at issue is whether the rule barring testimony regarding the credibility of another person excludes out-of-court statements to the same effect that are contained in the recordings or transcripts of an interrogation. In such a case, the contents of the recording or transcript are not automatically admissible. Instead, our evidentiary rules are triggered, including the rules regarding hearsay.
Under Michigan’s evidentiary rules, “hearsay” is an unsworn, out-of-court statement that is “offered in evidence to prove the truth of the matter asserted.” MRE 801(c) ; People v Stamper, 480 Mich 1, 3; 742 NW2d 607 (2007). Under MRE 802, hearsay is not admissible unless it “falls under one of the hearsay exceptions set forth in the Michigan Rules of Evidence.” Stamper, 480 Mich at 3. If, however, the proponent of the evidence offers the statement for a purpose other than to prove the truth of the matter asserted, then the statement, by definition, is not hearsay. MRE 801(c).
In this case, only the admissibility of the detectives’ statements is at issue. Specifically, the prosecution asserts that the detectives’ statements were properly admitted because they were not offered for the truth of the matter asserted in violation of the prohibition on vouching. Instead, the prosecution asserts that the detectives’ statements were offered solely to provide context for defendant’s statements that the prosecution wished to admit as an admission by a party opponent under MRE 801(d)(2). Defendant, however, asserts that these statements should have been redacted from the interrogation recording before it was presented to the jury because the statements, in effect, improperly vouched for the complainant’s credibility. Alternatively, defendant argues that the detectives’ statements were irrelevant because they were unnecessary to provide context for defendant’s statements. Thus, at issue is whether an interrogator’s out-of-court statements that vouch for the credibility of another person must be redacted from the recording of the interrogation before it is presented to the jury when the prosecution purports to offer the interrogator’s out-of-court statements, not for the truth of the matter asserted, but only to place the defendant’s statements in context for the jury. Specifically, this case asks this Court to consider whether the rule precluding a witness from commenting on another person’s credibility at trial is triggered by an interrogator’s statements that are offered to provide context to a defendant’s statements, rather than offered to prove the truth of the matter asserted, or whether the interrogator’s statements that actually provide context to a defendant’s statements have some probative value, unlike statements commenting on the credibility of another person that are offered for their truth.
Although this Court has yet to expressly opine on this issue, other jurisdictions have come to divergent conclusions. Specifically, some jurisdictions have held that there is “no meaningful difference” between allow ing an officer to comment on another person’s credibility while testifying at tried and allowing the officer to make the same comments on a tape recording in the context of an interrogation interview. See, e.g., Washington v Jones, 117 Wash App 89, 92; 68 P3d 1153 (2003). The logic behind this approach is that, in either case, the jury hears the police officer’s opinion and “clothing the opinion in the garb of an interviewing technique does not help.” Id. See also, Washington v Demery, 144 Wash 2d 753, 765; 30 P3d 1278 (2001) (Alexander, C.J., concurring); id. at 767 (Sanders, J., dissenting); Kansas v Elnicki, 279 Kan 47, 57; 105 P3d 1222 (2005) (“A jury is clearly prohibited from hearing such statements from the witness stand. .. and likewise should be prohibited from hearing them in a videotape, even if the statements are recommended and effective police interrogation tactics.”); Commonwealth v Kitchen, 730 A2d 513, 521 (Pa Super, 1999) (explaining that accusing a defendant of lying during an interrogation is “akin to a prosecutor offering his or her opinion on the truth or falsity of the evidence presented by a criminal defendant” or his or her opinion regarding the guilt of the defendant, neither of which is admissible at trial). Accordingly, under this rationale, such statements must be redacted from a recording before it is submitted to a jury. Id. at 522.
Other jurisdictions, however, have held that “ ‘there is a difference between an investigating officer giving an opinion as testimony before a jury, and an investigating officer giving an opinion during the interrogation of a suspect.’ ” North Carolina v Castaneda, _ NC App _; 715 SE2d 290, 294 (2011), quoting Odeh v State, 36 Fla L Weekly D 1510; 82 So 3d 915, 920 (2011). Specifically, some courts hold that because the comments are an interrogation technique and are “not made for the purpose of expressing an opinion as to [the] defendant’s credibility or veracity at trial,” Castaneda, 775 SE2d at 295, the statements are admissible but “only... to the extent that they provide context to a relevant answer by the [defendant].” Id., quoting Idaho v Cordova, 137 Idaho 635, 641; 51 P3d 449 (2002) (quotation marks omitted). See also, Maine v Mannion, 637 A2d 452, 456 (Me, 1994) (explaining that such statements “are admissible to prove context if they are relevant... and not excludable on the grounds of prejudice, confusion or waste of time”). But see, Lanham v Commonwealth, 171 SW3d 14, 27-29 (Ky, 2005) (without engaging in an exacting relevancy analysis, holding that admitting comments accusing a defendant of lying “is necessary to provide a context” for a defendant’s answers during an interrogation, but limiting the holding to accusations that a defendant is not telling the truth).
IV ANALYSIS
Considering the prohibition on vouching and the prevalence of requests to admit recorded interrogations into evidence to present a defendant’s statements to the jury, courts have justifiably struggled with the issue presented in this case. See Cordova, 137 Idaho at 640 (noting that courts in other jurisdictions have struggled with this precise issue). Under the facts of this case, however, we find it unnecessary to adopt a bright-line rule for the automatic exclusion of out-of-court statements made in the context of an interrogation that comment on another person’s credibility because the issue can be adequately addressed by our existing rules of evidence. Thus, at this juncture, we hold that where the proponent of the evidence offers an interrogator’s out-of-court statements that comment on a person’s credibility for the purpose of providing context to a defendant’s statements, the interrogator’s statements are only admissible to the extent that the proponent of the evidence establishes that the interrogator’s statements are relevant to their proffered purpose. See MRE 401. Even if relevant, the interrogator’s statements may be excluded under MRE 403 and, upon request, must be restricted to their proper scope under MRE 105. Accordingly, to ensure a defendant’s right to a fair trial, trial courts “must vigilantly weed out” otherwise inadmissible statements that are not necessary to accomplish their proffered purpose. People v Crawford, 458 Mich 376, 388; 582 NW2d 785 (1998). To hold otherwise would allow interrogations laced with otherwise inadmissible content to be presented to the jury disguised as context. See id.
A. OVERVIEW
This Court has long held that even if an out-of-court statement is not offered for the truth of the matter asserted, the statement is not automatically admissible because the “touchstone” of admissibility is “relevance.” Id. at 388; People v Wilkins, 408 Mich 69, 72-73; 288 NW2d 583 (1980); MRE 402. Thus, a mechanical recitation by a party that an interrogator’s statements are necessary to provide “context” for a defendant’s responses without explaining how the statements relate to the recited purpose is insufficient to present the interrogator’s statements to the jury; even if an out-of-court statement is not offered for the truth of the matter asserted, the proponent of the evidence must still establish that it is “relevant” under MRE 401. Wilkins, 408 Mich at 72-73; Crawford, 458 Mich at 386 n 6, 387. See also, In re Earle, 355 Mich 596, 602; 95 NW2d 833 (1959) (explaining that if a statement is not offered for the truth of the matter asserted, “[i]t may or may not be received,” depending on whether “it has any relevancy in the case; but if it is not received, this is in no way due to the hearsay rule”) (citation and quotation marks omitted).
Determining whether a statement is relevant requires a trial court to carefully scrutinize whether the statement is both material — i.e., “offered to help prove a proposition which is . .. a matter in issue” — and probative — i.e., “tends to make the existence of any fact that is of consequence to the determination of the action more probable . . . than it would be without the evidence.” Crawford, 458 Mich at 388, 390 (citations and quotation marks omitted). Under these inquiries, if an interrogator’s out-of-court statement is offered to provide context to a defendant’s statement that is not “in issue,” it follows that both the interrogator’s and the defendant’s statements are immaterial and, thus, not relevant. See id. at 389. Likewise, the interrogator’s out-of-court statements or questions have no pro bative value if those statements or questions, when considered in relationship to a defendant’s statements, do not actually provide context to the defendant’s statements. See id. at 389-390. Accordingly, an interrogator’s out-of-court statements must be redacted if that can be done without harming the probative value of a defendant’s statements.
A finding that an interrogator’s out-of-court statement has some relevance to its proffered purpose does not necessarily mean that the statement may be presented to the jury, however. See, e.g., People v Robinson, 417 Mich 661, 664; 340 NW2d 631 (1983) (“Determination of relevancy . . . does not alone determine admissibility.”); MRE 402 (“All relevant evidence is admissible, except as otherwise provided by . . . [the Michigan Rules of Evidence], or other rules adopted by the Supreme Court.”). Specifically, under MRE 403, a trial court has a “historic responsibility” to “always determine whether the danger of unfair prejudice to the defendant substantially outweighs the probative value of the evidence sought to be introduced before admitting such evidence.” Robinson, 417 Mich at 665, 666. See also, Stachowiak v Subczynski, 411 Mich 459, 464-465; 307 NW2d 677 (1981). And “[e]vidence is unfairly prejudicial when there exists a danger that marginally probative evidence will be given undue or preemptive weight by the jury.” Crawford, 458 Mich at 398. Consistent with these principles, a trial court must therefore evaluate the probative value of the out-of-court statements in providing context to a defendant’s statements and the resulting prejudice to a defendant before the interrogator’s out-of-court statements are presented to the jury.
In evaluating a statement’s probative value against its prejudicial effect, a trial court should be particularly mindful that when a statement is not being offered for the truth of the matter asserted and would otherwise be inadmissible if a witness testified to the same at trial, there is a “danger that the jury might have difficulty limiting its consideration of the material to [its] proper purpose[].” Stachowiak, 411 Mich at 465. See also, People v Jenkins, 450 Mich 249, 260; 537 NW2d 828 (1995). Indeed, this Court has recognized that child-sexual-abuse cases present “special considerations” given “the reliability problems created by children’s suggestibility.” Peterson, 450 Mich at 371. Further, although in the context of trial testimony, this Court has condemned opinions related to the truthfulness of alleged child-sexual-abuse complainants even when the opinions are not directed at a specific complainant. This is because in cases hinging on credibility assessments, the risk goes beyond any direct reference to a specific complainant given that the jury is often “looking to ‘hang its hat’ on the testimony of witnesses it views as impartial.” Id. at 376. Likewise, an out-of-court statement made by an investigating officer “may be given undue weight by the jury” where the determination of a defendant’s guilt or innocence hinges on who the jury determines is more credible — the complainant or the defendant. People v Prophet, 101 Mich App 618, 624; 300 NW2d 652 (1980). Thus, even if an interrogator’s statements are not offered for the truth of the matter asserted, courts must be mindful of the problems inherent in presenting the statements to the jury, especially in child-sexual-abuse cases. See Peterson, 450 Mich at 371.
Finally, if an interrogator’s out-of-court statement is determined to be admissible for the purpose of providing context for a defendant’s statements, this determination “does not mean that the judicial duty in admitting [the interrogator’s statement] is circumscribed by [that] conclusion.” Wilkins, 408 Mich at 73. Instead, under MRE 105, if evidence is admissible for one purpose, but not admissible for another purpose, the court, upon request, “shall restrict the evidence to its proper scope . . . .” (Emphasis added.) Thus, because an interrogator’s comments regarding a person’s credibility are not admissible for the truth of the matter asserted, a trial court shall restrict the interrogator’s statements to their proper scope — to actually provide context to a defendant’s statement.
Limiting out-of-court statements that are not offered for the truth of the matter asserted to their proper scope is not a new concept in Michigan jurisprudence. Indeed, this Court has previously rejected the notion that a rote recitation that a statement is not offered for the truth of the matter asserted is sufficient to admit an out-of-court statement. For example, in Wilkins, a police officer was allowed to testify to the contents of an informant’s tip on the basis that the testimony was merely providing a basis for the officer’s subsequent action. This Court held that even if the testimony was relevant for a purpose other than the truth of the matter asserted, under MRE 105, the officer’s testimony should have been restricted to simply provide that the police officer was responding to “a tip,” which was sufficient to establish the reason the officer took subsequent action. Wilkins, 408 Mich at 73.
Likewise, in the context of police interrogations, requiring the interrogating officer to testify at trial and paraphrase the statements he or she made that provoked a relevant statement by a defendant may be necessary in some instances to protect a defendant’s right to a fair trial from the resulting prejudice of allowing the jury to hear the interrogator’s comments verbatim.
B. APPLICATION
Applying these principles to this case, we hold that the trial court abused its discretion by admitting all the detectives’ statements to the jury. As it pertains to Detective Kolakowski’s first statement — that “[k]ids have a hard time lying about this stuff. . . ,” — the statement was irrelevant to providing context'to defendant’s statements because, quite simply, there was no statement from defendant for which the detective’s statement provided context. Instead, Detective Kola-kowski’s statements only provided context to the response of Detective Heffron. Accordingly, Detective Kolakowski’s statement had no probative value for its proffered purpose.
Regarding the second set of statements by Detective Heffron, we hold that the majority of the statements were not probative to actually provide context to defendant’s statements because the majority of the detective’s comments could be redacted without harming the probative value of defendant’s responsive statement. Indeed, when viewed in context, only Detective Hef-fron’s final statement to defendant was actually probative of the matter, and, thus, the previous statements should have been redacted as irrelevant. As to Detective Heffron’s remaining statement, the statement’s probative value was not substantially outweighed by the danger of unfair prejudice to defendant, given the relatively innocuous nature of the detective’s statement.
As to the final exchange, we again hold that the trial court abused its discretion by admitting the entirety of Detective Heffron’s statements. With the exception of Detective Heffron’s final questions and comments, the lengthy narrative of Detective Heffron consisted of statements directed at defendant that were unconnected to any question and could have been easily redacted without harming the probative value of defendant’s statement. As to Detective Heffron’s remaining comments and questions, we again hold that the statements’ probative value was not substantially outweighed by the danger of unfair prejudice to defendant, given the nature of the questions asked.
Finally, even if there was some probative value to the statements that the trial court erroneously failed to redact, the minimal probative value of those statements would be substantially outweighed by the danger of unfair prejudice to defendant under the facts of this case. See MRE 403. This Court has stated that “courts should be particularly insistent in protecting innocent defendants in child sexual abuse cases” given “the concerns of suggestibility and the prejudicial effect an expert’s testimony may have on a jury.” Peterson, 450 Mich at 371. As applied to this case, although Detective Kolakowski was not qualified as an expert, Detective Kolakowski’s specialized training and experience with child complainants was presented to the jury immediately before the jury viewed the recording of the interrogation. Thus, not only was the jury aware that Detective Kolakowski had performed “hundreds” of forensic interviews involving alleged child-sexual-assault victims, but Detective Kolakowski also informed the jury that a child of the same age as the complainant understands “the difference between the truth and a lie.” Accordingly, Detective Kolakowski’s trial testimony regarding his training and experience “gave [Detective Kolakowski] the same aura of superior knowledge that accompanies expert witnesses in other trials.” Cordova, 137 Idaho at 641. Further, the undue weight that jurors may be inclined to place on police officers’ statements heightened the prejudicial effect of the detectives’ frequent out-of-court statements regarding the credibility of child complainants generally and the veracity of the complainant, thus offering the jury the “much sought-after hook on which to hang its hat.” Peterson, 450 Mich at 374 (citation and quotation marks omitted). Accordingly, even if the out-of-court statements that were not redacted had some probative value for their proffered purpose, the probative value was substantially outweighed by the danger of unfair prejudice to defendant.
Our conclusion that the trial court abused its discretion does not end the inquiry, however, because noncon-stitutional, preserved evidentiary errors are not grounds for reversal unless they undermined the reliability of the verdict. Krueger, 466 Mich at 54. In this case, we conclude that they did.
The evidence offered against defendant was not overwhelming. Although the complainant’s testimony did not need to be corroborated, MCL 750.520h, there were no third-party witnesses in this case. Further, the prosecution relied on testimonial evidence and defendant’s statements during the interrogation, and a factual dispute existed between the complainant’s testimony and defendant’s version of the events: defendant did not deny touching the complainant, but denied touching the complainant in the manner that was alleged and denied that his conduct was for sexual gratification. Thus, under the facts of this case, assessing witness credibility was the pervasive issue for the jury. As a result, the jury may have looked to the detectives’ repeated out-of-court statements regarding the complainant’s credibility, given the lack of physical evidence against defendant and the aura of expertise surrounding Detective Kolakowski.
Further, the trial court’s belated limiting instruction did not cure the error. In Jenkins, this Court recognized that “ ‘despite proper instructions to the jury, it is often difficult for them to distinguish between... substantive evidence’ ” and evidence that is offered for another purpose. Jenkins, 450 Mich at 261-262, quoting United States v Morlang, 531 F2d 183, 190 (CA 4, 1975). In Jenkins, the prosecution was allowed to improperly impeach a witness with a prior inconsistent statement by having an officer who took the statement read the entirety of the written memorandum of the witness’s prior statement to the jury. Portions of the memorandum, however, contained prejudicial statements that were unnecessary for impeachment purposes. Id. at 260-262. Given the improper manner in which the prior statements were presented to the jury and the fact that the officer’s testimony went beyond the proper scope of impeachment, Jenkins held that there was a risk that the jury accepted the contents of the memorandum as substantive evidence, and this risk was heightened by the trial court’s failure to provide a limiting instruction at the time the improperly admitted statement was read to the jury. Id. at 260, 263.
In this case, the belated curative instruction likewise does not alter our conclusion that the errors undermined the reliability of the verdict. Indeed, before the recording was presented to the jury, the jury was expressly instructed that “the recording that’s going to be played for you [is] the evidence” and that the jury would “have to make [its] decision” on the basis of the evidence that was admitted. It was not until after the recording was played and after an hour-long recess that the trial court instructed the jury that the detectives’ statements in the recording could only be considered to provide context for defendant’s statements. Thus, the jury viewed the recording with the unqualified instruction in mind that the recording was evidence only to later be informed that all of the recording’s contents could not be considered as such. Cf. People v Clark, 340 Mich 411, 418; 65 NW2d 717 (1954) (stating that when conflicting instructions are given, a court presumes that the jury followed the erroneous instruction). Similar to Jenkins, the risk that the jury accepted the contents of the recording as substantive evidence was heightened by the lack of a limiting instruction before the improperly admitted statements were presented to the jury. Accordingly, although an appropriate limiting instruction may reduce prejudice to a defendant, the lack of a timely limiting instruction in this case reinforces our conclusion that an error requiring reversal occurred.
V CONCLUSION
We hold that under the facts of this case, the trial court abused its discretion by failing to redact the majority of the detectives’ out-of-court statements commenting on credibility from the recording that was played to the jury because they were irrelevant to their offered purpose of actually providing context to defendant’s statements. Moreover, we hold that the errors undermined the reliability of the verdict. Accordingly, we reverse the judgment of the Court of Appeals, vacate defendant’s convictions under MCL 750.520c(1)(a) and MCL 750.81, and remand the case to the trial court for further proceedings consistent with this opinion.
We note that there is a discrepancy between the judgment of sentence and the jury’s actual verdict. Because we are vacating defendant’s convictions, this discrepancy is irrelevant.
Defense counsel also moved to redact other portions of the interview. For purposes of this appeal, our analysis focuses only on those portions of the interview that were admitted over defense counsel’s objections and were raised to this Court. Our limited grant order and resolution of this case should therefore not be construed to preclude defendant from raising additional objections on remand.
People v Musser, unpublished opinion per curiam of the Court of Appeals, issued February 21, 2012 (Docket No. 301675), pp 3-4.
Specifically, this Court asked the parties to address:
Although I continue to adhere to the views expressed in my dissent in Peterson, 450 Mich at 381-398 (Cavanagh, J., dissenting), I recognize that Peterson is the current majority law, and its validity is not at issue in this case.
MRE 801 defines “hearsay” to include an “oral or written assertion,” other than one that is made by the declarant while testifying at trial, that is “offered in evidence to prove the truth of the matter asserted.” MRE 801(a), (c).
See also, McDaniel, 469 Mich at 412.
MRE 801(d)(2)(A) provides in part: “A statement is not hearsay if... [t]he statement is offered against a party and is... the party’s own statement....” See also, People v Lundy, 467 Mich 254, 257; 650 NW2d 332 (2002) (“Admissions by a party are specifically excluded from hearsay . . . .”).
It bears emphasizing that if the prosecution offers or uses an interrogator’s statements that vouch for the credibility of another person to prove the truth of the matter asserted at trial, the interrogator’s statements would be inadmissible under the rule that a witness cannot comment on the credibility of another person, even if the out-of-court statements could somehow fall within a hearsay exception. As noted above, such comments are not probative of the matter and, thus, are not relevant. See People v Knox, 469 Mich 502, 509-510; 674 NW2d 366 (2004).
To the extent that the analysis provided in People v Johnson, 100 Mich App 594; 300 NW2d 332 (1980), could be viewed as inconsistent with this opinion because it did not address whether the interrogator’s statements were relevant for its proffered purpose, it is overruled. As explained within this opinion, even if a statement is not offered for the truth of the matter asserted, it must nevertheless be relevant and otherwise admissible to be presented to the jury.
Under MRE 402:
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible.
MRE 401 provides:
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Indeed, it goes without saying that if an interrogator’s out-of-court statement provokes a statement by the defendant that is irrelevant or would otherwise be inadmissible at tried, no “context” is necessary: if the defendant’s statement is inadmissible, the context surrounding it is likewise inadmissible.
In some circumstances, it might be necessary to consider a specific sequence of questions and answers between an interrogator and a defendant. Portions of an interrogator’s statements, when viewed together, might be relevant to provide context to a defendant’s responses, even though, when viewed in isolation, a single statement of the interrogator, in relation to a single corresponding statement of the defendant, could seemingly be redacted without harming the probative value of a defendant’s statement. This may occur in situations where the proponent of the evidence claims that a defendant’s story evolved in response to a specific sequence of interrogation. Nevertheless, such a scenario would still be subject to a MRE 403 analysis and MRE 105. Because this scenario is not implicated under the facts of this case, however, we need not address this issue further.
MRE 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
MRE 105 provides in full:
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Detective Kolakowski stated, “Kids have a hard time lying about this stuff because they don’t even want to talk about it, let alone they don’t even want to talk about it to a mere fucking stranger.”
Specifically, only the following italicized portion of Detective Heffron’s statement would have been probative to provide context to defendant’s statement:
DETECTIVE HEFFRON: You know there’s a big-difference when-we-interview 4, 5, 6 year olds-and-wfaen-they get up around 10,11,12, 13. There s~a-big difference. Four, five-, sixyear-okHads; they’re easy to-manipulate by parents;-aunts7uncles — they’re easy to-manipulate. They’re terrible-actors. They’re terrible:-When-kids they’re-older,-they’re seeing more. -She Vl-2rTfae~big4ssue here is -if for whatever reason, she wanted to get you in trouble she would — she would — ■
[DEFENDANT]: That she would say that I fucked her?
When viewed in context, only the following, italicized portion of Detective Heffron’s statements would have been probative to provide context to defendant’s statement in response:
DETECTIVE HEFFRON: Absolutely. “He put his hand down my pants, his finger-was in my vagma” all of this-^his mouth was get somebody in trouble,... an older kid-like thafc-bittle lads, they never’ve [sic] been exposed to that-stuff. They don’t know. But its pretty-credible when-she tells us, “Hey, he touched-:.. me here”- and “-he put his hand on my breasts-’-’-and . .. “his hand-started going-down my pants-but he couldn’t.” That’s pretty-credible; that’s pretty detailed — Again, if there’s no reason-for her to malee this crap up, why wmrid-she say it?-This is the last-thing:. . she wanted-t-o-do was talk-to a total stranger-about something-like thisT Why?-Why is she gcmna-put herself through -that — if it didn’t-happen? We can’t fmd-anything. -Kids don’t lie-about this stuff: [T]hey lie about then-homework being done; they-Iie -about, “yep,I did the dishes” when-they didn’t.- ■ ■ [T]hey lie-about “yeah, we were in bed by UhCXb^-They don’t lie about-this stuff if maybeshe^s makectp-to-try to get out of- some-trouble that they’re in. Thats why th-is-is-so disturbing. . . -. And again, if she’s talkmg-about “his hand was on my breasty- she’s not gonna make that crap up. She just isn’t. And this is-your opportunity for her to eventually see worked-out so she has-the least amount-of stress/trauma; whafr family. He made a mistake-and someday as I’m older — because she’s always gonna remember this — this didn’t happen-when she was 2-or-3-years old — t-hey-don’t remember that stuffi-She’s always gonna-remember ttttSrrAt -some point she will be-able- to accept, “Hey, this-is what happened:-We ail-make mistakes. He- made-a mistake-. ” But you’re-gonna have to start by being-upfront. And for you to-sit here and say-t-hat “well, yep,- she’s telling-t-hc-truth about this, but-she’s lying about that,” . .-rche’s gonna have this-report: She’s -gonna know exactly what you said, and whatever ... message you-want to send her that’s . ,-rup to you. We can’t force yom Bui if she’s saying you touched her breasts —I wasn’t there-for the know why. Was it alcohol ? Was it — I don’t know what your sex life has been at home, but all we want to know is why. Were you ever molested as a child?
[DEPENDANT]: No.
DETECTIVE HEFFRON: Help us out here.
[DEFENDANT]: You asked a lot of different questions right there. I don’t know — I—I don’t know what motivated me. I think I explained it, I was just trying to give her a peck. I don’t know where this touching of the breast is coming from. [Emphasis added.]
See footnote 19.
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North, J.
The defendant herein was charged with having committed rape. He was convicted of an assault with intent to commit the crime of rape. His case is in this court by writ of error. The defendant admitted the act of sexual intercourse, but asserts that it was accomplished with the consent of the female. A detailed recital of the assault alleged to have been committed by the defendant and of the final accomplishment of his licentious purpose might add to the volume of salacious legal literature, but it would be a poor service to public morals and it is deemed unnecessary in this case.
There are two assignments of error. The first is that the trial judge wrongfully denied defendant’s motion for a new trial. The reasons assigned in support of this motion are as follows:
“(1) Because the verdict of the jury was contrary to the overwhelming weight of evidence.
_ “(2) Because the jury failed to follow the instructions of the court when he charged them as to the minor offense of rape, and disregarded his warning not to bring in a compromise verdict.
“(3) Because the jury under the evidence offered could only bring in one of two verdicts, viz., guilty of rape or not guilty of rape, and there was no testimony on which to base their verdict of assault with intent to rape.”
The two reasons first above given are not sustained by the record. As to the third reason, it may be said there is ample proof of the fact that the defendant assaulted his victim with an intent to rape her; that he was temporarily interrupted in his attempt by the approach of other people; that he thereafter renewed the assault and finally accomplished his purpose. It would not constitute a defense even though the resistance or reluctance of the female was finally overcome without the degree of force or threats requisite to constitute the crime of rape, providing it was proven that the defendant had in the first instance committed an assault with intent to rape. The motion for a new trial was properly denied.
The second assignment of error concerns defendant’s contention that he was not allowed to cross-examine the people’s witness, Otto Smith, relative to the contents of a writing which purported to have been a transcript of an interview between the witness and the prosecuting attorney. By consent of counsel the entire statement was received in evidence; and the trial judge said “If parts are read, all may be read by either counsel as deemed necessary.” Later the trial judge stated to defendant’s counsel: “You may ask ‘him
if he was asked these questions and answers.” While there was some colloquy between counsel as to what record might be made relative to this statement, nowhere does it appear that the court limited the cross-examination of the witness Smith in relation thereto; This assignment of error is also without merit.
The judgment of the lower court is affirmed.
Fellows, 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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Clark, J.
East Grand Rapids became a city of the fourth class pursuant to statute and a charter was adopted. Two commissioners were to be elected from each ward. We quote two sections of the charter:
“At the first election to be held under this charter the candidate for commissioner from each ward who receives the highest number of votes cast in his said ward shall be declared elected until the close of the municipal year 1929. The candidate for commissioner from each ward, as aforesaid, receiving the next highest number of votes cast, shall be declared elected to the commission until the close of the municipal year 1928. Thereafter, commissioners shall be elected for the full two-year term, the term of one commissioner from each ward expiring each year.”
“Candidates for any elective office, to be voted for at any municipal election under the provisions of this charter, shall be nominated at a primary election, and no other names shall be placed on the election ballot for the election of such officer: Provided, however, That in all primary elections any candidate for an office who receives a majority of all votes cast for candidates for that office shall thereby be elected.”
In the second ward, at the first primary election after the adoption of the charter, there were three candidates for commissioner, plaintiff Swain, plaintiff Frye, and one Osborn. Two hundred eighty-six electors voted in the ward. Swain received 186 votes, Frye 164 and Osborn 135, a total of 485. Plaintiffs contended that each of them had received a majority of all votes cast and were entitled to be certified as elected by virtue of sections of the charter above quoted. The canvassers certified them as nominated, not as elected, and they brought actions in mandamus which were consolidated and decided against them and they bring certiorari.
Appellants contend that, having been favored by more than one-half the electors voting, they have a majority and are elected. Appellees reply that such contention is contrary to the plain language of the charter, and they suggest that the 485 votes cast might have been distributed 150 to one candidate, 160 to another and 175 to a third, and that thus each candidate might have received more than one-half of 286. Plaintiffs reply that, had they each received 286 votes, neither, under appellees’ theory, would have had a majority of the then total vote of '572. There being two offices to be filled and candidates for the same without designation for long term or short term, it is plain that the charter does not provide for the contingency, does not provide for election by primary vote. That being so, the courts should decline to interfere by mandamus, there being a remedy adequate and available, an election.
Judgment affirmed.
Sharpe, C. J., and Bird, Flannigan, Fellows, Wiest, and McDonald, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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Flannigan, J.
This is an action for divorce. The parties were married in Canada in July, 1910, and settled in Windsor, Ontario. Five children were born, of whom three are living. Plaintiff was arrested by the Canadian authorities in 1919 for nonsupport of his family. ■ While under bail for his appearance in that proceeding he came across the border to Michigan. About seven years thereafter he filed his bill for divorce, alleging extreme cruelty. The wife voluntarily appeared and submitted herself to the jurisdiction of the court, whereby, although a nonresident, she became privileged to seek divorce by cross-bill. Clutton v. Clutton, 108 Mich. 267 (31 L. R. A. 160). For her answer defendant claimed the benefit of cross-bill, and, alleging nonsupport, prayed for divorce, alimony, allowance for support of the children, and general relief. A hearing was had. The decree that followed dismissed plaintiff’s bill, gave defendant absolute divorce on her cross-bill and custody of the children. He was given the right to visit the children at the home of the mother in Windsor and was ordered to pay the clerk of the court to- be turned over to the mother for the support of the children, $10 each week from the date of the decree until the youngest child reached the age of 18 years. Other provisions of the decree are not material on the issues presented by the appeal. From the decree plaintiff appealed.
His counsel’s first contention is that under the proofs plaintiff, and not defendant should have been granted divorce. The action of the court in refusing him and granting her divorce was fully justified by the proofs.
Counsel’s further contention is that without providing plaintiff opportunity .for visitation of the children in this State the decree, if otherwise proper, was unauthorized to the extent it obligates him to contribute towards their support, citing. Myers v. Myers, 143 Mich. 32, and Meyers v. Meyers, 161 Mich. 487. Neither case is in point. The controlling facts of both are substantially alike. The parents entered into an agreement to become effective if divorce was granted, giving custody of the child to the mother and providing for its support and visitation by the father. The father in each case was relieved from further payment of support money to the mother on the ground that removal of the child from the State by the mother, which interfered with the father’s right of visitation, constituted a violation of the agreement by her. The question there was one of contract. The authority of a court of equity to place the custody of a child of divorced parents with h nonresident mother and charge the father with its support was not involved or passed upon in either of the cases cited.
Where a decree of divorce is granted, the court, may make such further decree as it shall deem just and proper concerning the care, custody, and maintenance of minor children of the parties, and may determine with which of the parties the children, or any of them, shall remain. 3 Comp. Laws 1915, § 11407.
The rule is universal that a child of divorced parents is a ward of the court and that, in providing for its. care, custody, maintenance, and education., the paramount consideration shall be its welfare. To that welfare, the claims and personal rights and desires of parents and even the wishes of the child must yield. Corrie v. Corrie, 42 Mich. 509; Weiss v. Weiss, 174 Mich. 431; 19 C. J. p. 343, and cases in note.
Where, in the fair and impartial exercise of its wise discretion, the court finds it conducive to the best interests of the child to do so, it is authorized' by the statute cited to award its custody to a parent who resides without the State, and in this or a foreign country, and, where the custody is awarded the mother, to charge the father with the child’s maintenance and support.
Access to the child by the parent denied custody is an important right. It is recognized that awarding custody to a nonresident parent may render the privilege of visitation impracticable in many cases. That privilege is not an absolute right but one which must yield to the good of the child. Waldref v. Waldref, 135 Minn. 473 (159 N. W. 1068) ; Bedolfe v. Bedolfe, 71 Wash. 60 (127 Pac. 594); 19 C. J. p. 348. Its feasible exercise should be safeguarded by the decree, but only to the extent it may be done without opposing the best interest of the child. Where the proofs are convincing the welfare of the child demands that course be taken its custody may and should be awarded to the nonresident parent notwithstanding the effect may be the defeat of visitation by the resident parent.
That a father is deprived of access to his child by a divorce decree does not relieve him from obligation to support it. Whether he is refused the right of visitation because found unfit, or its exercise is obstructed by permitting the residence of the child in- a foreign jurisdiction, he may nevertheless be charged with its maintenance. A contrary rule would be preposterous. It would mean that. a husband and father who applied for and obtained a divorce in this State from his wife residing with their child in, for example, a country of Europe, or against whom a divorce is granted on the cross-bill of the nonresident wife, is to be relieved of all obligation to contribute to the support of the infant unless it is brought across the ocean to facilitate his right of visitation. Under the proofs in this case the court could not do otherwise than conclude the best interest of the children demanded they be placed in the custody of the mother at her home in Windsor.
The decree is affirmed, with, costs of this court to defendant.
Sharpe, C. J., and Bird, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
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Fellows, J.
Defendant is engaged in the printing, engraving and binding business in the city of Grand Rapids. In a separate room it has two monotype casters and two monotype keyboards. These mono-type casters cast the'type from molten metal, 75 per cent, of which is lead, heated to between 700 and 725 degrees. Some dross accumulates on the top which is skimmed off by the operator. The used type, dross, and accumulations of metal with the sweepings are remelted in the furnace room and cast into pigs which go to the operating room. Plaintiff before he attained his majority entered the employ of defendant as a helper in the composing room. Later he desired to learn to operate the monotype casters and was given instructions. He operated the monotype caster, and did the work of remelting the metal for nearly a year and a half, when he was taken seriously ill and was obliged to give up his work. That he is seriously afflicted with nephritis, commonly called Bright’s disease, is established conclusively, and is not controverted. Plaintiff’s medical testimony tends to establish that its cause is lead poisoning. . This is denied by defendant’s medical witnesses. It is the. plaintiff’s theory that inasmuch as an occupational disease does not come within the purview of the workmen’s compensation act (Adams v. Acme White Lead & Color Works, 182 Mich. 157 [L. R. A. 1916A, 283, Ann. Cas. 1916D, 689]), he may maintain an action at common law for negligence of the master which results in the contracting of such ' occupation^ disease, and that he has established such negligence' in the instant case. Defendant here reviews a judgment entered upon a verdict in a substantial amount, which, however, is not claimed to be. excessive if plaintiff should recover, and insists (1) that a common-law action for an occupational disease may not be maintained; (2) that no negligence .of defendant is shown; and (3) that plaintiff is guilty.of contributory negligence.
We are so thoroughly convinced that no negligence of the defendant is shown that we shall rest .decision on that ground alone. The machines used by defendant are of .standard construction in common use in printing establishments the country over; this is in no way denied. The remelting is done in accordance with the common practice in like concerns. While plaintiffs counsel strenuously controvert the proposition, a careful reading of this voluminous record is convincing that defendant’s monotype plant is operated as are other-monotype plants in the country, and particularly in Grand Rapids, and that this fact is established by the undisputed evidence. Plaintiff’s theory is that small particles of lead arise from the heated metal and that a hood with ventilating pipe should be placed over the melting pot to carry them off, and it appeared that another plant in Grand Rapids had a hood over the melting pot, but the manager of that plant was called as a witness and testified that such' hood was- installed to carry off the fumes of the gas from the burner under the pot and from oil or grease which might get into the pot, and not to carry off particles of lead; that it had not been used or needed for the purpose designed; that the workmen would not make use of it; and that it had been discarded and had not been put to any use for two years. The testimony is without dispute that the gas used in that city is of superior quality and that little or no odor arises from its use. Plaintiff further claims that lead particles otherwise get in the air and may be inhaled with other dust, and that the room did not have sufficient ventilation to carry off the lead-ladened atmosphere. But the undisputed testimony established that there were several windows in the room so arranged that they could be opened at all times for much or little fresh air, and plaintiff’s own testimony shows that he had charge of the room. He could ventilate it or not as and when he saw fit. The means of ventilation had been provided by the master. Testimony on behalf of defendant, and it is the only testimony in the case on the subject, establishes that no case of the contracting of lead poisoning by a mono- type operator was ever known. One witness testifies that he knew of a printer contracting lead poisoning but this was in the olden days when the type was in cases and type setting was done by hand, and this particular printer had a habit of frequently putting his fingers to his nose. There is also some hearsay testimony that witnesses had heard that printers had lead poisoning. But the case is barren of any testimony showing or tending to show that any monotype operator had been so afflicted. Of course, the burden was not on the defendant to establish its freedom from negligence. It rested on plaintiff to establish such negligence.
We are not here dealing with the failure to discharge a statutory duty. Before the master at common law can be called upon to account to the servant in this class of cases, it must be established that he has a duty to perform and that he has failed to discharge that duty. He is not an insurer, and the right to recover must be predicated on his negligence. To say that he is negligent is to say that he has done that which a reasonably careful man should not have done, or that he has failed to do that which a reasonably careful man should have done. In Pollock on Torts (Webb’s Pollock on Torts, 45), it is said:
“Now, a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behaviour we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular_ case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant’s place should have foreseen as likely to happen, there is no wrong and no liability.”
And in 4 Thompson on Negligence (2d Ed.), § 3774, it is said:
“In applying this doctrine of reasonable care, it is well held that a master is not liable for injuries to his servant resulting from an accident of such a character that reasonable men, proceeding with reasonable caution, would not ordinarily have foreseen and anticipated it, — such as an injury happening under very exceptional circumstances, although the proper precautionary measure, if taken, would have prevented it.”
In Kitteringham v. Railway Co., 62 Iowa, 285 (17 N. W. 585), the plaintiff sought to recover for damages claimed to have been sustained by poisoned grease on old brasses he was instructed to clean. Defendant had verdict, and among the errors assigned were several on the charge of the court. In discussing one of these assignments, it was said:
“Appellant complains of an instruction given at the request of defendant, as follows:
“ ‘The jury are instructed that the uncontrovertible testimony in the case discloses that defendant and its employees had no knowledge of the existence of any poisonous substance on the said brasses in question, at the time of said injury; and if, from the experience of defendant and its employees, as disclosed by the .evidence, they had no cause or reason to believe that there was any poisonous substance on said brasses, there can be no recovery in this action.’
“It is said that this instruction assumes that the railroad company must possess actual knowledge when the law only requires means of knowledge, and also assumes that the experience of a railroad company will excuse any negligence that it may be guilty of. The instruction is not vulnerable to the criticism made. As already stated, the evidence strongly preponderates against the view that any poisonous matter accumulates upon the brasses before their removal from the axles. If nothing had ever occurred in the experience of defendant to suggest the existence of such poisonous accumulation, it did not possess such knowledge as would render it negligent in not discovering the'existence of poisonous matter on the brasses in question.”
In Gould v. Slater Woolen Co., 147 Mass. 315 (17 N. E. 531), it was held (quoting the syllabus) :
“A woolen manufacturer who uses in dyeing his cloths the most common mordant, which so far as. known has never caused injury to any one merely handling cloths dyed therewith, and which he did not know or suppose, and had no reason to know or suppose, to be injurious, is not liable to a purchaser poisoned by handling the cloth.”
In O’Reilly v. Powers Mercantile Co., 144 Minn. 261 (175 N. W. 116), the plaintiff sought to recover damages for illness claimed to have been occasioned by inhaling disease germs while working in a place where furs were stored. It was said by the court:
“The record is barren as to proof that respondent' knew or had reason to believe that either the air or the walls of the room contained any disease germs or other dangerous infection. There was no proof that any hides not thoroughly cured were ever put into the room. Nor were chemicals of any kind ever used to protect the furs from moths or other vermin. We think the evidence justified the trial court in directing a verdict.”
A few excerpts from our own cases will demonstrate that this court is in accord with the rule announced:
“Until a master knows and appreciates, or in the exercise of ordinary care should know and appreciate, a danger to his employee, there certainly is no obligation upon him to warn that employee of such danger.” Stone v. Bennett, 194 Mich. 441.
“As defendant was bound to exercise the care and only the care that an ordinarily prudent person situated like itself would exercise, it was bound to know what and only what such ordinarily prudent person should know.” Siegel v. United Electric Heating Co., 143 Mich. 484.
“The defendant in this case, when it took the plaintiff into its employment, did not warrant the safety of its track, nor the sufficiency of its machinery and appliances, nor the competency of its other servants. It did not insure the plaintiff against the insufficiency of the one, or the incompetency of the other, and it owes no duty to the plaintiff beyond that of reasonable or ordinary care.” Hewitt v. Railroad Co., 67 Mich. 61.
In Shadford v. Railway Co., 111 Mich. 390, this court quoted with approval the following language from Titus v. Railroad Co., 136 Pa. St. 618 (20 Am. St. Rep. 944):
“Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of 'the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same; and, however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way, for which” liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall in effect dictate the customs or control the business of the community.”
See, also, Lockwood v. Tennant, 137 Mich. 305; Michigan Cent. R. Co. v. Smithson, 45 Mich. 212; Fort Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 133; Mackin v. Refrigerator Co., 100 Mich. 276; Canfield v. Iowa Dairy Separator Co., 172 Iowa, 164 (154 N. W. 434) ; Hysell v. Swift & Co., 78 Mo. App. 39; Whalen v. Rosnosky, 195 Mass. 545 (81 N. E. 282, 122 Am. St. Rep. 271); M. T. Stevens & Sons Co. v. Daigneault, 4 Fed. (2d) 53; Potter v. Richardson & Robbins Co., 29 Del. 314 (99 Atl. 540).
The case most relied upon by plaintiff’s counsel (Fox v. White Lead & Color Works, 84 Mich. 676) is clearly distinguishable from the instant case. In that case the plaintiff’s testimony not only tended to show that defendant, with knowledge of the poisonous character of the fumes which arose from the vat in which paris green was being manufactured and the poisonous substance going into it, failed to warn plaintiff of the danger, but it also tended to show that his foreman had been instructed not to give such warning. In the instant case and upon this record no monotype operator had ever contracted lead poisoning until the plaintiff did. It was an exceptional case. Under the circumstances, a reasonably careful- employer proceeding with reasonable caution would not ordinarily have foreseen and anticipated it. Defendant was bound by those things it knew, or in the exercise of reasonable care it should have foreseen and anticipated, but its duty did not extend beyond that. It was not bound to construct and operate its plant so as to insure against dangers of which it had no knowledge and which a reasonably careful man exercising reasonable care would not foresee and anticipate, nor would he be bound to warn employees of such dangers. We conclude that no negligence of defendant is established on this record.
The judgment will be reversed, and, the provisions of the Empson act having been'followed, the case will be remanded with instructions to enter judgment for defendant notwithstanding the verdict.
Flannigan, C. J., and Wiest, Clark, McDonald, Bird, and Sharpe, JJ., concurred.
The late Justice SNOW took no part in this decision. | [
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Per Curiam.
The prosecution appeals by right the trial court’s orders granting defendants’ motions to quash the informations. Because MCL 257.625, as amended by 2006 PA 564, does not violate the prohibition against ex post facto laws, and because it does not deny defendants their rights to equal protection and due process, we reverse and remand for further proceedings.
i
In Docket No. 286689, defendant, Colleen Sadows, was charged with operating a vehicle while intoxicated (OWI), MCL 257.625(1), a misdemeanor. Because Sadows was previously convicted of operating a motor vehicle while under the influence of liquor (OUIL) in 1997 and 2001, the prosecution sought to convict Sadows of a felony pursuant to MCL 257.625(9) or (11), as amended by 2006 PA 564, effective January 3, 2007. In Docket No. 286693, defendant John Gale was charged with OWI and, because he had previously been convicted of OUIL in 1994 and 2000, the prosecution also sought to convict him of a felony pursuant to MCL 257.625(9) or (11). Each defendant filed a motion to quash the respective information. The trial court granted the motions, concluding that MCL 257.625(9) and (11), as amended, were not merely sentencing enhancements because the subsections changed the charged offense from a misdemeanor to a felony and that the two subsections violated the constitutional prohibition against ex post facto laws and the constitutional guarantee of equal protection.*
II
The prosecution argues that the trial court erred by ruling that the application of MCL 257.625(9) and (11), as amended, violates the Ex Post Facto Clause of both the federal constitution and the state constitution, US Const, art I, § 10; Const 1963, art 1, § 10. We agree. We review constitutional questions de novo. People v Pitts, 222 Mich App 260, 263; 564 NW2d 93 (1997). A statute is presumed constitutional, People v Hubbard (After Remand), 217 Mich App 459, 483; 552 NW2d 493 (1996), and the party challenging the statute has the burden of proving its invalidity, People v Thomas, 201 Mich App 111, 117; 505 NW2d 873 (1993).
In People v Perkins, 280 Mich App 244, 251-252; 760 NW2d 669 (2008), this Court held that MCL 257.625(9), as amended, did not violate the prohibition against ex post facto laws. The Court reasoned that “the amendment did not attach legal consequences to [the] prior offenses, which occurred before the amendment’s effective date. Rather, the amendment made the consequences of current offenses, which occurred after January 3, 2007, more severe on the basis of [the] prior convictions.” Id. at 251. Because MCL 257.625(9) does not punish the prior offenses, “the change in the predicate offenses used to raise current conduct to the felony level does not constitute an ex post facto violation.” Id. at 252. Our Supreme Court “affirm[ed] the Court of Appeals decision holding that. . . MCL 257.625 does not violate the ex post facto provisions of the federal and state constitutions.” People v Perkins, 482 Mich 1118 (2008). Accordingly, the trial court erred by concluding that the application of MCL 257.625, as amended, violates the prohibition against ex post facto laws.
The prosecution also argues that the trial court erred by concluding that MCL 257.625, as amended, violates the Equal Protection Clause of both the federal constitution and the state constitution, US Const, Am XTV( § 1; Const 1963, art 1, § 2. We agree.
The guarantee of equal protection requires that government treat similarly situated persons alike. People v Haynes, 256 Mich App 341, 345; 664 NW2d 225 (2003). “Unless the alleged discrimination involves a suspect class or impinges on the exercise of a fundamental right, a contested statute is evaluated under the rational basis test.” Id. Defendants do not allege that MCL 257.625(9) and (11), as amended, target a suspect class. Further, the disparate treatment of criminal offenders does not impinge on an individual’s fundamental rights. Id. Defendants have not established that the amendment of MCL 257.625(9) and (11) is arbitrary and not rationally related to a legitimate governmental interest. Haynes, supra at 346. Rather, the enhancement provisions are tailored to OWI repeat offenders and are rationally related to the government’s interest in reducing habitual drunken driving and alcohol-related traffic fatalities. See id. at 347-348. The trial court erred by ruling that the application of MCL 257.625(9) and (11), as amended, violates the constitutional guarantee of equal protection.
We also reject defendants’ argument that the application of MCL 257.625(9) and (11) violates the Due Process Clause of both the federal constitution and the state constitution, US Const, Am XTV( § 1; Const 1963, art 1, § 17. “The constitutional guarantee of due process, in its most fundamental sense, is a guarantee against arbitrary legislation.” Whitman v Lake Diane Corp, 267 Mich App 176, 181; 704 NW2d 468 (2005). As already stated, MCL 257.625(9) and (11), as amended, are not arbitrary. The amendment is rationally related to the Legislature’s interest in reducing habitual drunken driving. Further, defendants had constructive notice, pursuant to the amendment, that their prior OUIL convictions would subject them to felony prosecutions if they operated a vehicle while under the influ ence of liquor. Haynes, supra at 349. Consequently, defendants’ argument that the application of MCL 257.625(9) and (11), as amended, violates their due process rights is unavailing.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
Before MCL 257.625 was amended, a defendant could only be convicted of a felony rather than a misdemeanor if he or she had been convicted or two or more drunken driving offenses within the previous 10 years. People v Perkins, 280 Mich App 244, 250; 760 NW2d 669 (2008), aff'd 482 Mich 1118 (2008). The amendment eliminated the 10-year requirement and allows the use of any two drunken driving convictions for enhancement, regardless of the time that elapsed between the prior convictions and the current offense. Id.
This Court consolidated the two cases for appeal. People v Sadows, unpublished order of the Court of Appeals, entered August 22, 2008 (Docket Nos. 286689, 286693).
The Court’s decision in Perkins also applies to MCL 257.625(11).
We reject any argument by defendants that, because a sentencing court is not to consider prior convictions for which there is a 10-year period between the discharge date of the prior conviction and the sentencing offense in scoring prior record variables 1 through 5, MCL 777.50(1), (2), the Legislature did not intend for the amendment of MCL 257.625(9) and (11) to apply to OWI or OUIL convictions that were obtained more than 10 years before the current OWI offense. Such an argument is contrary to the plain language of MCL 257.625(9) and (11). People v Hill, 269 Mich App 505, 515; 715 NW2d 301 (2006). Further, the amendment of MCL 257.625(9) and (11) is the more specific and more recent enactment. Verizon North, Inc v Pub Service Comm, 260 Mich App 432, 438; 677 NW2d 918 (2004).
We refuse to find MCL 257.625(9) and (11), as amended, violative of due process because, as argued by defendants, the administrative burdens of applying the amendment would be “considerable.” No considerable administrative burdens are present in applying the amendment to either defendant. | [
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Sharpe, J.
On June 16, 1919, plaintiff leased certain premises to the defendant “for the term of one year with preference for another year.” At the expiration of the year, defendant did not vacate and plaintiffs began summary proceedings to recover possession. The result in the commissioner’s court is not disclosed by the record. On appeal to the circuit court, a verdict was directed for the defendant. Defendant had in the meantime vacated the premises. On August 2, 1921, plaintiffs commenced this suit to recover the rent for the second year. Defendant pleaded an estoppel and by cross-declaration, hereafter particularly referred to, sought to recover damages. The trial court directed a verdict for plaintiffs for $570, the amount of the rent due under the terms of the lease. He submitted defendant’s claim under his cross-declaration to the jury. They found for the plaintiffs. Defendant reviews the judgment entered on the verdict by writ of error.
Estoppel. Defendant’s claim of estoppel is based on plaintiffs’ claim in the commissioner’s and circuit courts that defendant had no lease of the premises and was not entitled to the possession thereof. The court found against plaintiffs. It held that defendant was lawfully entitled to hold under his lease for the second year. The rights of the parties, under the lease became thereby fixed, and plaintiffs were entitled to recover the second year’s rental from the defendant. Their mistake as to their legal rights in no way estopped them from enforcing payment thereof. Smith v. Sprague, 119 Mich. 148 (75 Am. St. Rep. 384); Sheffield Car Co. v. Hydraulic Co., 171 Mich. 423, 451.
Defendant’s cross-declaration. The averments thereof state, in brief, that just before the first year of defendant’s occupancy had expired he had an opportunity to sell the soft drink and lunch business he was conducting on.the premises and that, on the prospective purchaser’s inquiry of plaintiffs as to defendant’s rights under his lease, they fraudulently represented to her that the lease would terminate at! the end of the first year, and that they thereby induced and persuaded the prospective purchaser to desist from buying defendant’s business, by reason whereof defendant sustained damage in the sum of more than $1,500. To maintain this claim, defendant called the prospective purchaser, who testified that she asked Mr. Binder about the lease and he said, in effect, that it would expire at the end of the first year.
There is nothing to indicate that Mr. Binder did not so state in good faith. That he honestly believed that what he said was true is clearly indicated by the proceedings taken by him to recover possession. An action for slander of title must be grounded on malice. Walkley v. Bostwick, 49 Mich. 374.
In Harrison v. Howe, 109 Mich. 476, the following from Newell on Defamation, 206, was quoted approvingly :
“The mere fact that a person asserts a claim to the property which is unfounded does not warrant a presumption of malice.”
No actionable fraud was established.
Plaintiffs’ motion for a directed verdict as to de fendant’s claim should have been granted. It is therefore unnecessary to consider the errors assigned on the charge to the jury.
The judgment is affirmed.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Wiest, J.
This case is instituted by plaintiffs to reform a contract as to the purchase price therein named in regard to the sale and exchange of apartment house properties between the parties. Defendants other than the Shevitzes and Sloans are not interested in the result. Prior to April 8, 1920, plaintiffs were the owners of the equitable title to valuable real estate in the city of Detroit, known as the Palmer apartments, containing 22 apartments and 3 stores. They had purchased this property on a land contract from one Albert E. and Fannye Bernstein. On the above date plaintiffs entered into a contract with the defendants Jacob Shevitz and Anna Shevitz, his wife, and David Sloan and Bose Sloan, his wife, in regard to said property. That portion of the contract which is material for the consideration of this case is as follows:
“Parties of the first part agree to sell, and parties of the second part agree to buy all of that certain piece or parcel of property known as the Palmer apartments, located * * * , for a price of one hundred twenty-six thousand and ten ($126,010) dollars, payable as follows: One thousand ($1,000) dollars upon execution of this agreement as consideration herefor and as earnest money, receipt whereof is hereby confessed and acknowledged by the first parties; fourteen thousand ($14,000) dollars in cash as the closing of this transaction; thirty-one thousand two hundred forty ($31,240) dollars by the second parties assigning or turning over to the first parties all of their right, title and interest in and to a certain other land contract; * * * and the balance of said purchase price of one hundred twenty-six thousand and ten ($126,010) dollars, amounting to eighty-one thousand three hundred ($81,300) to be paid by the second parties accepting an assignment of and assuming and agreeing to pay such an amount upon that certain land contract covering the premises first above described, known as the Palmer apartments to be purchased by the second parties hereto as evidenced by that certain land contract under date of the first day of August, A. D. 1918, between Albert E. Bernstein and Fannye Bernstein * * * and assigned so far as vendees are concerned to Guy W. Jensen, one of the first parties hereto.”
It will be noted that the consideration named in the first instance in the contract, viz., $126,010, does not tally with the itemized statement in the contract which follows, viz., $1,000 down as earnest money, $14,000 in cash at the time of closing the transaction, $31,240 by the assigning to plaintiffs of the land contract owned by defendants, and $81,300 balance due on the Palmer apartment contract to the Bernsteins or their assigns, which defendants assumed and agreed to pay, which makes a total of $127,540.
Plaintiffs claim that the four specified items correctly state the purchase price, and that the insertion in the contract of $126,010 as the purchase price was clearly an error, and that the transaction was a trade rather than a purchase and sale agreement, which they claim is indicated by the various manners in which the total sum was arrived at.
Defendants, on the contrary, contend that they were to purchase the property for $126,000; that they were to assume the indebtedness of $81,300, turn over to plaintiffs their equity in the land contract referred to, amounting to $31,240, pay $1,000 earnest money, and the balance, $12,470, in cash. This issue of fact was heard by the chancellor, who, after listening to a considerable amount of testimony, filed his opinion in which he held that the true purchase price was $127,540, and that the price mentioned in the contract of $126,010 was clearly a mistake, a mutual error of the parties, which ought to be corrected by the decree of the court. Such a decree was duly entered and the defendants Jacob Shevitz, Anna Shevitz, David Sloan, and Rose Sloan, appealed therefrom.
There can be no question of the right of a chancery court to grant relief of reformation of a contract on the ground of fraud or mutual mistake. This cannot be done in a court of law. Skiba v. Gustin, 161 Mich. 358; Bush v. Merriman, 87 Mich. 260; Kenyon v. Cunningham, 146 Mich. 430; Schlossman v. Rouse, 197 Mich. 399; 23 R. C. L. p. 331; Labranche v. Perron, 209 Mich. 239; Kutsche v. Ford, 222 Mich. 442, and many others.
Was the chancellor then correct in his conclusion of fact ? It would be unprofitable to quote the record exhaustively to show how he arrived at the conclusion as to $127,540 being the correct amount defendants were to pay the plaintiffs in this transaction. The following will suffice: The contract itself provides for a number of items which total the sum named, and the sum of $126,010 mentioned in the contract may well have been inserted by reason of a mistake in adding those items. No one attempts to account for the odd $10 in the latter figure, and the defendants themselves claim they were to pay only $126,000, and that they do not know how the extra $10 came to be added.
During the progress of negotiations between the parties two extensions of time were given the defendants, who on each occasion paid plaintiffs $1,000 therefor. This left a balance of cash to be paid of $12,000, provided the purchase price was $127,540, as contended by the plaintiffs, while if the price was $126,010, as defendants claim, the balance of cash to be paid would have been only $10,470. Still, when the deal was finally consummated defendants took to plaintiffs’ office a check for exactly $12,000, tending to show most clearly that they then expected such an amount due, and intended to pay it to plaintiffs.
Further, the record discloses that the defendants borrowed from one Kosofsky and Bergman $15,000 to be applied on the contract in question. That their dealing with these men was in writing, in which it was recited that the cost of acquiring plaintiffs’ land contract on the Palmer apartments was $46,240, which, added to the balance due thereon from plaintiffs, to wit, $81,300, made the exact total of $127,540 as claimed by the plaintiffs.
We agree with the chancellor in his conclusion of fact which he states as follows:
“Considering the fact that the several specified items of payment aggregated $127,540, coupled with the testimony of the plaintiffs that those items constitute the purchase price of the property, and considering in addition to that the representations made by the defendants in their agreement with Kosofsky and Bergman, that it cost him $46,240 to obtain plaintiffs’ equity therein, which is the difference between the indebtedness assumed by the defendants and the $127,540; considering the further fact that the defendants had paid $3,000 of the $15,000, and when the deal was closed came to plaintiffs’ office with a check for the exact difference between what' had been paid and the $15,000, the only logical, reason able conclusion that can be reached from such a state of facts is that when these transactions were finally consummated and the money borrowed by the defendants from Kosofsky and Bergman, they then understood, as stated, that they were to pay $46,240 for plaintiffs’ equity, which made the actual purchase price of the property, as they then understood it, $127,540, and that the purchase price entered in the contract of $126,010 was clearly an error, which ought and may be corrected by a decree of this court to correspond with the facts.”
In arriving at the same conclusion as the chancellor, we have not overlooked the evidence of the defendants which makes a question of fact. We are, however, convinced, after a careful consideration of the entire record, that the decree of the trial court should be sustained.
Affirmed, with costs to plaintiffs.
Bird, C. J., and Sharpe, Steere, Fellows, Clark, and McDonald, JJ., concurred. Snow, J., did not sit. | [
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Sharpe, J.
This case involves the construction of the will of Francis Adams which was executed July 8, 1885. At the time the will was. executed, Francis Adams was a widower with three daughters living, namely, Mary Louise Adams, Annie Graves Adams, and Evelyn Francis Adams. Subsequently, lie married and of this marriage there was born one daughter, now Katherine A. Stoepel. Francis Adams died in 1893 and at that time the three children by his first wife were more than 20 years of age while Katherine A. Stoepel was four years old.
By his will testator devised and bequeathed all of his property “to my trustees hereinafter named in trust for the following purposes.” After instructions to pay testator’s debts and certain monetary payments including one to ,St. Luke’s Hospital Church Home and Orphanage, the will provided that:
“The remainder of my estate to be divided into three equal parts, one share to be held by my trustees for each of my daughters, Evelyn Francis, Annie Graves and Mary Louise Adams.
“During the minority of my daughters, my trustees are to pay to each, from the income of her share, a sufficient sum for her proper support and education. When each comes of age, she shall be paid $1,000 and from and after this time, she shall receive the net income of her share, after the payment of the proper expenses for the care and protection thereof.
“Each of my daughters, when she arrives at the age of 24 shall be one of the trustees of her share.
“Upon the death of either of my daughters, leaving children, the trustees of her share shall retain the same until the youngest of such children shall be 21 years of age, using such portion of the' income as may be necessary, in case they are without other adequate resources, for their maintenance and education. Said trustees to have the discretion to advance to any such child of my daughter, if they consider it for his or her advantage a sum not to exceed 40 per cent, of the estimated value of his or her share, at any time after he or she becomes of age.
“In case'of the death of either of my daughters, leaving no children, of her share shall be disposed of as provided by ber last will and testament. One tenth shall be paid to St. Luke’s Hospital Church Home and Orphanage, upon the same conditions as are attached to.the legacy hereinbefore made to that institution. One-half of the remainder shall be paid to her surviying sister or sisters, in equal shares, and the other half to the trustees of such surviving sister or sisters, in equal shares, to be held by them under the trust hereinbefore created.
“I hereby appoint Frederick E. Driggs and Henry E. Harmon (of Medaugh, Driggs & Harmon) & George E. Avery, executors and trustees under this my will.- They to give bonds not to exceed $2,000 and to have full power to sell and convey any of the property hereby devised, at public or private sale, for cash or on time, as may seem most advantageous; and to invest and keep invested the proceeds thereof, until the expiration of the trust hereby created; and to do all things in the care, protection and management of said property that I could do, if alive. My daughters to become trustees of their several shares, as above provided and to give no bonds. Upon the death of any of the. trustees herein appointed, the vacancy is to be filled by the surviving trustees and in that case the appointment is to be approved by all my surviving daughters who may be of age. Provided that the husband of either of my daughters shall not become a trustee under any of such trusts.”
The will was presented for probate to the probate court of Wayne county on December 16, 1893, and admitted to probate on June 19, 1894. The estate consisted of a large amount of real and personal property. The will was subject to the following statutory rights of testátor’s widow.
“The widow of every deceased person- shall be entitled to dower, or the use, during her natural life of one-third part of all the lands whereof her hus band was seized of an estate of inheritance, at any time during the marriage, unless she is lawfully barred thereof.” 2 How. Stat. §5733, being 3 Comp. Laws 1897, § 8918.
“All dispositions of personal property by last will and testament shall be subject to the following limitations and restrictions:
“First, If the testator shall leave surviving him, a wife, the testamentary disposition shall be subject to the election of such wife, to take any interest that may be given to her, by the testator in his last will and testament; or in lieu thereof, to ta'ke the sum or share that would have passed to her, under the statute of distributions, had the testator died intestate, until the sum shall amount to five thousand dollars, and of the residue of the estate one-half the sum or share that would have passed to her, under the statute of distributions, had the testator died intestate, and in case no provision be made for her in said will, she shall be entitled to the election aforesaid.” 2 How. Stat. §5824, being 3 Comp. Laws 1897, § 9300.
“The election to take otherwise than under the will, in any contingency above contemplated, shall be made in writing, and filed in the court in which proceedings for the settlement of the estate are being taken, within one year from the probate' of the will; and the failure to file such election.within the time above provided shall be deemed an election to take under the will. ’ ’ 2 How. Stat. § 5825, being 3 Comp. Laws 1897, §9301.
The widow elected to take under the statute and reserved her statutory dower. She died December 16, 1931. The daughter, Katherine, having been born subsequent to tbe making of tbe will and no provision having been made for her, was entitled under 2 How. Stat. § 5809, to take tbe same proportion as if the testator bad died intestate.
Tbe executors’ final account was allowed and upon order of tbe court, the residue 'of the estate was distributed and assigned as follows:
“Realty: % to Katherine; % to tbe trustees for Mary, Annie and Evelyn — all subject to tbe widow’s right of dower.
“Personalty: (% of first $15,000) and % of tbe remainder to tbe widow; % of tbe remainder to Katherine; % of tbe remainder to tbe trustees for Mary, Annie and Evelyn. ’ ’
Tbe probate court appointed tbe Union Trust Company guardian of Katherine. She became of age January 29, 1911. On February 21, 1911, she gave ber guardian a final receipt for $40,434.11 which recited that tbe guardian “has settled with jne to my full satisfaction its account as my guardian. ’ ’
Mary Louise Adams, then Mary Louise Pardee, died March 5, 1900, leaving two children, Starr C. Pardee, born May 31, 1898, and Dorothy L. Pardee, born May 12, 1899. During Mary Louise Adams’ life she received tbe income from tbe property trusteed for ber benefit and, thereafter, such property was retained by tbe trustee until Dorothy L. Pardee became of age May 12, 1920, whereupon tbe property was delivered to Starr Pardee and Dorothy Pardee in equal portions.
On December 23, 1920, tbe Security Trust Company, successor trustee of Driggs, Avery and Harmon, filed the trustee’s ninth account reciting that:
“By tbe terms of tbe last will and testament of said Francis Adams, deceased, % of bis estate was held in trust for each of his three daughters during their lives, and upon the death of each daughter her respective share of the estate was directed to be distributed equally, to her surviving children when the youngest of such children became of age.
“That Mary Louise Adunas Pardee, one of the daughters of said deceased, died on the 5th day of March A.D. 1900, and was survived by two children Starr Carlton Pardee and Dorothy L. Pardee. That said Dorothy L. Pardee, the younger of said children, arrived at the age of 21 years on the 12th day pf May, 1920. That your petitioner thereupon made distribution to said children of their joint % share of said estate under the terms of said will, as is more fully shown by the schedule of distribution of the estate and by the receipts of said Starr Carlton Pardee and Dorothy L. Pardee which are hereto attached and made a part hereof..
“Your petitioner further shows that, at the time of the distribution to said Starr Carlton Pardee and Dorothy L. Pardee of their shares of said estate, it was found advisable to divide and set apart the residue of said estate into two separate trusts, for Evelyn Francis Adams and Annie Craves Adams, the surviving daughters of said deceased, and that thereafter individual trust accounts for said daughters have been kept by your petitioner as is more fully shown by the foregoing accounting. That hereafter your petitioner will file separate accounts as trustee for Evelyn Francis Adams and Annie Craves Adams, respectively.”
Notice of hearing on the account was published and on January 25, 1921, the account was allowed. Beginning with the trustee’s tenth account filed February 9, 1922, it filed separate accounts as to the trusts for Annie Craves Adams and Evelyn Francis Adams. In 1929, the Security Trust Company consolidated with the Detroit Trust Company. Annually the trust company filed its accounts, which •were allowed,
Evelyn F. Adams died testate May 27,1936, without issue. Her will was admitted to probate in California. On December 13, 1937, a decree of distribution was entered decreeing that the residue of her estate be distributed to Starr C. Pardee and Dorothy L. Pardee in equal shares. .
, On January 23,1937, the Detroit Trust Company, trustee, filed its twenty-fifth and final account as to the one-third trusteed for Evelyn’s benefit. At the time of her déath, the value of the trust as to her was $67,298.89. On March 9, 1937, the account was allowed and distributed under the will of Francis Adams as follows:
“To St. Luke’s Hospital Church Home and Orphanage 1/10
To Starr Carlton Párdee 1/10
To Dorothy Louise Pardee 1/10
To Annie> Graves Adams 7/20
To Detroit Trust Co., in trust for Annie Graves Adams 7/20”
Annie Graves Adams died testate June 1, 1943, leaving no children surviving her. During her lifetime she received the income from the trust for her benefit. The value of the trust at the time of her death was $89,417.68 less a bank assessment liability. Her will was admitted to probate July 6, 1943, and the Detroit Trust Company was appointed and qualified as executor. After bequeathing her personal effects to Dorothy L. Pardee and $4,000 to specific legatees, her will provided:
“9. I give, devise and bequeath to the residuary legatees and devisees named in the next succeeding paragraph of this, my last will and testament, being paragraph 10 hereof, as their interests therein appear, all of my right, title and interest in and to that portion of the estate of my father, Francis Adams, which, according to the provisions of his last will and testament, I have the power to dispose of nnder this, my last will and testament.
“10. All the rest, residue and remainder of my estate of every kind and nature, wheresoever situate, I give, devise, and' bequeath to my niece Dorothy Louise Pardee, of Los Angeles, California, and my nephew Starr Carlton Pardee, of San Francisco, California, share and share alike.”
On October 4, 1943, the Detroit Trust Company, as trustee under the will of Francis Adams, filed its bill of complaint in the chancery court of Wayne county praying for a construction of the Adams’ will and a determination of the ownership of the balance of the corpus of the trust in its hands, which is in .the approximate amount of $55,000. Defendants Starr C. Pardee and Dorothy L. Pardee filed cross bills in which they assert that the testator’s widow and Katherine A. Stoepel had received from the Francis Adams estate their full and only interest; and that the trust set up in the will related solely to the residue of the estate in which the widow and Katherine A. Stoepel have no interest. They also assert that the orphanage should be limited to one-tenth of the fund originally trusteed for Annie’s benefit. The orphanage asserted in its answer to the cross bill that it was also entitled to one-tenth of the accretion to the trust for Annie’s benefit caused by Evelyn’s death. Katherine A. Stoepel filed an answer to the bill of complaint and cross bills. She claimed at the trial that all of the original beneficiaries having died, a portion of the estate did1 not vest and falls back into the estate of Francis Adams to be distributed to his heirs, of which she is one.
On December 4,1944, the trial court filed an opinion in which he determined that the widow had re ceived lier statutory interest in the estate and was entitled to nothing more; that Katherine A. Stoepel had also received all of her share in the estate and had no interest in the remainder of the estate; and that the orphanage was entitled to one-tenth of the trust fund as originally created for Annie’s benefit augmented by the accretions resulting from Evelyn’s death. A decree was entered conforming to the opinion filed.
Katherine A. Stoepel, defendant, appeals and urges that the title and ownership of the $55,000 which remains as a result of the trust having failed did not vest in the three daughters of Francis Adams; and that the estate claimed for the three daughters violates the statute against restraint on alienation and the rule against perpetuities.
Appellees claim that the right of the widow and Katherine A. Stoepel to take statutory shares in the estate of Francis Adams did n'ot create intestacy as to others, nor affect the will except to reduce the amount of testate property; that the widow and Katherine A. Stoepel, having had their maximum shares, Katherine A. Stoepel is not a party in interest as to any part of the remaining trust fund; that the funds in question are a portion of testator’s estate that was assigned and distributed to the testamentary trustee by court order; that such order is now res judicata; and that under the will of Francis Adams:
“1. Evelyn and Annie Adams respectively took a vested estate in the thirds originally trusteed for their respective benefit, subject to the trustee’s right of possession for their benefit and to partial defeasance upon certain contingencies.
“2. Evelyn’s vested estate terminated upon her death without children and passed perforce her will to Starr and Dorothy, %o to St. Luke’s, %o to Annie outright and %o to the trustee for Annie’s benefit. Annie’s %o interest, thus derived,"was also a vested estate, subject only to the trustee’s right of possession for her benefit and to the contingency of Vio passing to St. Luke’s in the event Annie died without issue. - -
“3. When Evelyn died (following Mary’s death) all trustee function as to her share ceased except during Anniejs life to collect and distribute the income on the %o of Evelyn’s share which was added to Annie’s trust. When Annie died without children, the only remaining trustee function as to Annie’s original % and the %o from Evelyn’s share was to deliver to St. Luke’s its share. Whereupon the remaining property held for Annie’s benefit was freed from the trustee’s possessory right and vested in Starr and Dorothy as Annie’s sole devisees and legatees. ’ ’
The validity of the will is not in issue, nor does the right of the widow and daughter, Katherine A. Stoepel, to take their statutory shares affect 'the will except to reduce the amount of testate property. See In re McLennan’s Estate, 179 Mich. 595. The principal issue in this case relates to whether Evelyn and Annie Adams took a vested estate in the property trusteed for their benefit subject to the trustee’s right of possession for their benefit and to partial defeasance upon certain contingencies.
In Gardner v. City National Bank & Trust Co., 267 Mich. 270, 279, we said:
“The law favors that construction of a will which will distribute the testator’s estate most nearly in accordance with the statutes of descent and distribution. Rivenett v. Bourquin, 53 Mich. 10. It favors the vesting of' estates. Toms v. Williams, 41 Mich. 552; Hull v. Osborn, 151 Mich. 8; Taylor v. Richards, 153 Mich. 667; Van Gallow v. Brandt, 168 Mich. 642.”
The law favors the vesting of estates. In Rodey v. Stotz, 280 Mich. 90, 100, we said: “The law favors the construction which regards an estate vested rather than contingent.” See, also, Rood v. Hovey, 50 Mich. 395; Union Mutual Association of Battle Creek v. Montgomery, 70 Mich. 587 (14 Am. St. Rep. 519).
In Taylor v. Richards, 153 Mich. 667, William Davis died leaving a will and codicil in which he gave, devised and bequeathed to William H. Davis a farm and personal property thereon and authorized his executors to sell and convey the real estate and use the proceeds and income for the support and education of William H. Davis. The will also provided :
“The title thereto (the farm) to remain in my executors until he arrives at 25 years of age, when, if he shall show himself worthy and of steady habits, my said executors shall, if they deem it safe and for his best interest, transfer and convey said farm * * * to * * * said William H. Davis, or in ease they shall have previously sold said farm then they shall transfer to said William H. Davis the proceeds * * * if they shall so deem it safe and for his best interest.”
The testator left a widow who elected to taire her dower and distributive portion under the statute. Upon the death of William H. Davis in 1906, the court was asked to construe the William Davis will and determine whether William H. Davis had a vested estate in the farm. The court said:
“It is clear to us that the testator intended by his will to bequeath his entire estate in the Davison farm. We must therefore hold that by the will the entire estate passed to the devisees therein named. Those devisees are William H. Davis and testator’s executors. To the executors was bequeathed no beneficial interest. The devise to them was merely in trust. To William H. Davis was devised the entire beneficial interest. He was the sole beneficiary of the trust. When the purpose of the trust ceased, the estate of the trustee ceased. Section 8851, 3 Comp. Laws 1897. That purpose ceased when William H. Davis died, and, he being then the owner of the entire beneficial interest, the entire estate descended to his heirs.”
In coming to our conclusion we have in mind that at the time the will was executed testator’s children by his first wife were the only natural objects of his bounty; that the primary rule of construction of wills is to ascertain the true intention of the testator and such intention must be ascertained from a consideration of all the provisions of the will in the light of the circumstances surrounding the testator at the time the will was made (Kirsher v. Todd, 195 Mich. 297); that under the statute testator’s entire estate insofar as it concerns real property is presumed to pass by the will (2 How. Stat. §5786), while in Mann v. Hyde, 71 Mich. 278, we said: “Under our statutes, as well as under the general policy of the law, no part of a testator’s estate should be treated as intestate if it can be reasonably avoided;” and that the will reads, “I'give and bequeath all my property to my trustees * * * in trust for the following purposes,” thus indicating testator’s intention to pass all of his property for the benefit of his three daughters. It is our opinion that the three daughters, upon the death of their father, had a present interest in the income of the property; that the beqnest to the executors was in trust without beneficial interest to them; and that the trust estate provided by the will was a vested interest in the beneficiaries. Katherine A-. Stoepel having received her full share of the estate cannot predicate a claim upon any of the 'trust property.
The decree of the trial court is affirmed, with costs to plaintiff.
Staer, C. J., and North, Bittzel, Bushnell, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this ease.
See 3 Comp. Laws 1929, § 13072 (Stat. Ann. § 26.221).—Re-porter.
See Act No. 288, chap. 2, § 69, Pub. Acts 1939 (Comp. Laws Supp. 1940, §16289-2 [69], Stat. Ann. 1943 Rev. §27.3178 [139]). —Reporter,
See Act' No. 288, chap. 2, § 12, Pub. Acts 1939 (Comp. Laws Supp. 1940, §16289-2 [12], Stat. Ann. 1943 Bev. §27.3178 [82]).
See 3 Comp. Laws 1929, § 12934 et seq. (Stat. Aim. § 26.14 et seq.).—Repobeeb.
This is 3 Comp. Laws 1929, § 12989 (Stat. Ann. § 26.73).—RE-PORTER.
See Aet No. 288, chap. 2, § 2, Pub. Acts 1939 (Comp. Law Supp. 1940, § 16289-2 [2], Stat. Ann. 1943 Rey. § 27.3178[72] ).—Reporter. | [
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SNOW, J.
The plaintiff assigns error upon the dismissal of his declaration by the trial judge. This is one of a number of cases recently brought into this court involving what is claimed to have been fraudulent sales of securities of the National Hardwood Company, a Delaware corporation. Thomson v. Kent Circuit Judge, 230 Mich. 354; Chapple v. Jacobson, post, 558; Chapple v. National Hardwood Co., ante, 296, and Dinsmore v. National Hardwood Co., ante, 300. The record does not disclose that defendants Jacobson and Sempliner were ever served with process.
By admission of counsel for plaintiff, the fraud as alleged in the declaration is based solely upon doings and proceedings before the Michigan securities commission prior to its authorisation of the sale by said corporation of its stocks and bonds. The circuit judge held:
“Under the circumstances of this case as alleged in the declaration, the proceedings had and acts done and the statements made before the Michigan securities commission do not constitute a cause of action against the National Hardwood Company, defendant. For this reason, the declaration is dismissed.”
The sole question before us is as to the correctness of this holding, and we assume in our discussion that the declaration sufficiently alleges material misrepresentations to the commission as to' the true status of the company, in what respects it is unnecessary to refer.
Act No. 46, Pub. Acts 1915 (3 Comp. Laws 1915, § 11945 et seq.), as amended by Act No. 404, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 11945 et seq.), now repealed (Act No. 220, Pub. Acts 1923), was in effect at the time of the alleged fraud on the securities commission. . It required, among other things, foreign corporations to obtain permission before offering its stock and securities for sale in this State. Applica tion, containing a statement of the financial condition of the corporation, its assets and liabilities, together with a copy of its prospectus and advertising matter, had to be first filed with the commission. 3 Comp. Laws 1915, § 11948. From this application and such additional information as the commission might demand or acquire, it made its determination on the right to sell. Its records were open to the public. The statute made it a misdemeanor for any one to make false representation for the purpose of deceiving the commission (3 Comp. Laws 1915, § 11963), punishable by fine or imprisonment or both (3 Comp. Laws 1915, § 11967).
The issuing of a certificate by the commission to a corporation to sell its stock and securities was not, nor was it ever intended, as a guaranty to the public that it could with impunity engage in their purchase. To guard against conveying any such impression to any one, the statute expressly provided that there should be printed on such certificate, in type two sizes larger than any other part of the certificate, the words: “The commission does not recommend the purchase of this security.” 3 Comp. Laws 1915, § 11953. The application is not made to be used as an inducement to the public to buy the securities of the applicant, but only to give the commission such information as it may require in order that permission to offer the securities for sale may be obtained. Representations to the commission are not intended for the prospective purchaser, and unless he knows and relies upon them when he purchases, it cannot be advanced that he was in any way influenced by them. Plaintiff makes no claim that he knew of or relied upon the truthfulness of disclosures to the commission. While all records of the proceedings before the commission were at all times open to his inspection, he gave them no attention or consideration until long after he had made the purchase complained of. Shall he then be now permitted to invoke the question of fraud and deceit in representations he claims were made to some one other than himself, never intended to reach him, nor to operate as an inducement for him to buy? This court has not been called upon heretofore to deal directly with this subject, but after a careful review of the authorities cited by counsel for the respective parties, and from our research, we are not able to find authority upon which appellant’s position may be sustained, but in reason, and from strong, well considered, and exhaustive opinions from other jurisdictions, we hold that the question must be answered in the negative. Following is a brief review of some of these authorities:
Peek v. Gurney, 6 Eng. & Ir. App. 377, is a leading case and referred to in practically all of the reported cases which may be regarded as in point. Here a false prospectus was put out by the corporation to induce subscriptions to its stock, and the corporation was held liable to all persons subscribing directly in reliance upon such false prospectus. But it was also held that there was no liability to persons Who purchased the stock in the open market in reliance upon the prospectus, and that the' false representations could only be relied upon by persons to whom' they were addressed or intended to be communicated, viz., such persons as subscribed directly of the corporation.
Hunnewell v. Duxbury, 154 Mass. 286 (28 N. E. 267, 13 L. R. A. 733). In this case a Maine corporation sought to do business in Massachusetts. In order to do so it had filed with the commissioner of corporations of that State a certificate containing certain false statements as to its assets. The plaintiff claimed to have known of and relied upon these false statements and bought the company’s notes because thereof. In holding that no action could be maintained because of the misstatements contained in the certificate, the court said:
“The main question, which is raised both by the demurrer to the second count of the declaration and by the exceptions, is whether the plaintiff can maintain an action of deceit for alleged misstatements contained in the certificate. In the opinion of a majority of the court this question should have been decided adversely to the plaintiff. The execution by the defendants of the certificate to enable the corporation to file it under the St. of 1884, c. 330, § 3, was too remote from any design to influence the action of the plaintiff to make it the foundation of an action for deceit. To sustain such an action misrepresentations must either have been made to the plaintiff individually, or as one of the public, or as one of a class to whom they are in fact addressed, or have been intended to influence his conduct in the particular of which he complains. This certificate was not communicated by the defendants, or by the corporation, to the public or to the plaintiff. It was filed with a State official for the definite purpose of complying with a requirement imposed as a condition precedent to the right of the corporation to act in Massachusetts. Its design was not to procure credit among merchants, but to secure the right to transact business in the State.”
And again:
“In the case at bar, the certificate was made and filed for the definite purpose, not' of influencing the public, but of obtaining from the State a specific right, which did not affect the validity of its contracts, but merely relieved its agents in Massachusetts of a penalty. It was not addressed to, or intended for the public, and was known to the plaintiff only from the search of his attorney. It could not have been intended or designed by the defendants that the plaintiff should ascertain its contents and be induced by them to take the notes. It is not such a representation, made by one to another with intent to deceive, as will sustain the action. Its statements are in no fair sense addressed to the person who searches for, discovers and acts upon them, and cannot fairly be inferred or found to have been made with the intent to deceive him.”
Greene v. Mercantile Trust Co., 111 N. Y. Supp. 802. Here, too, the action was for fraud and deceit based on a false prospectus issued and circulated by the defendants. The case of Peek v. Gurney, supra, was declared as “undoubtedly the law” of the State of New York; citing Brackett v. Griswold, 112 N. Y. 470 (20 N. E. 376); Kuelling v. Lean Manfg. Co., 183 N. Y. 78 (75 N. E. 1098, 2 L. R. A. [N. S.] 303, 5 Ann. Cas. 124, 111 Am. St. Rep. 691); Squiers v. Thompson, 73 N. Y. App. Div. 555 (76 N. Y. Supp. 734).
The court further said:
“One of the essential elements necessary to sustain actions of this, nature is that the false representations made should have been intended to influence the action of the particular person defrauded, or the action of a class of which he is a constituent member.”
Also,
“On the face of the prospectus we cannot see how the plaintiff can base any right of action against the defendants for deceit in buying the stock of the shipbuilding company, for he was not the person addressed or intended to be influenced by it.”
Hindman v. National Bank, 50 C. C. A. 623, 112 Fed. 931 (57 L. R. A. 108). In the State of Kentucky, an insurance company could not do business until all its capital stock had been actually paid in in cash, nor until the insurance commissioner was satisfied of this fact and issued a license. The defendant bank made certificate that it had on deposit such an amount. Before the plaintiff bought stock he went to the office of the insurance commissioner and examined the certificate of the bank, and bought stock in the company relying on its truth. It was not true, the stock was worthless, and plaintiff brought suit against the bank. It was held that the plaintiff had no right to rely upon the certificate unless the company actually referred! him to the certificate. Without such reference the court argues:
“To what extent did the plaintiff have a right to rely upon the truth of the representations contained in’ the cashier’s certificate? Some direct connection between the bank and the plaintiff in error in the communication of this certificate is essential to a recovery. If the statement was addressed to, and intended only to influence the action of the State insurance commissioner in respect to the licensing of the insurance company, he cannot sustain a recovery, even though he and others may have been led into the purchase of the shares of the insurance company as a consequence of the action of the insurance commissioner in admitting the company to do business upon the representation of the bank’s certificate. The plaintiff’s action, in the aspect of it now under consideration, is for fraud and deceit and such an action must be bottomed upon false representations made to him, and with intent that he should be influenced thereby. The plaintiff does not sufficiently connect himself with the representations by the bare fact that he bought stock in a company which was improperly admitted to do business upon representations addressed to the State commissioner. The injury in such case is too remote.”
A writ of certiorari in this case was denied by the United States Supreme Court. 186 U. S. 483 (22 Sup. Ct. 943).
Cheney v. Dickinson, 96 C. C. A. 314, 172 Fed. 109 (28 L. R. A. [N. S.] 359). This was an action to recover damages because of a false prospectus put out by the company. The plaintiff, however, purchased stock from another stockholder at less than par, relying upon statements in the prospectus. In denying the right of recovery, the court said:
“Only one inference can be drawn from the prospectus. The defendants were inviting everyone into whose hands the prospectus should come to buy-treasury stock. This was in aid of the conspiracy, and the only conspiracy, which the evidence tended to sustain. And to all persons who bought treasury stock — who paid their money into the fund over which the defendants had a control and interest in common— relying on the truth of the statements of fact in the prospectus, all of the defendants Who were parties to -the false statements might well be held answerable in damages. But the plaintiff, so far as the defendants were concerned, was a purchaser on the market. And while the sponsors for false prospectuses that are issued to bring in money to the common treasury are justly made to respond to all persons who take the invited action, yet the law recognizes no right of action in. one who relies without invitation on a statement addressed to a particular class which he stays out of.”
The action in the instant case, based entirely upon claimed fraud and deceit upon the securities commission, must, in view of all recognized authority, fail. The proceedings before the commission, under the law, were for the commission, and not intended to influence the public in buying the company’s securities. The circuit judge was right in his conclusion that, in the case presented by the declaration, plaintiff had no right of action against the National Hardwood Company.
The exceptions of plaintiff are dismissed, with costs to the defendant.
Bird, C. J., and Sharpe, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Steere, J., took no part in this decision. | [
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Wiest, J.
October 5, 1915, the United States circuit court of appeals, first circuit, in a suit in equity, for infringement of letters patent, No. 1,046,066, known as the Harmatta patent, held the patent valid. Thomson Electric Welding Co. v. Barney & Berry, 227 Fed. 428. January 30, 1317, plaintiff, owner of the patent, by written contract licensed defendant to operate spot and point welding machines under the patent, and defendant agreed to pay specified royalties quarterly. July 13, 1920, this suit was commenced to recover the royalties due up to that date. Defendant, under plea of the general issue, gave notice that the patent was invalid, and, therefore, the consideration for its undertaking to pay royalties had failed.
October 5, 1920, the district court of the United States, eastern district of Michigan, in a suit in equity for infringement, held the patent void for anticipation in the prior art and lack of invention. Thomson Spot Welder Co. v. Ford Motor Co., 268 Fed. 836. That decision was affirmed, June 28, 1922, by the circuit court of appeals, sixth circuit. Thomson Spot Welder Co. v. Ford Motor Co., 281 Fed. 680. This conflict of decisions in the first and sixth circuits was reviewed on certiorari in the Supreme Court of the United States. And, June 2, 1924, that court held the patent void for want of patentable invention, affirming the decision in the sixth circuit. Thomson Spot Welder Co. v. Ford Motor Co., 265 U. S. 445 (44 Sup. Ct. 533).
The suit at bar being for royalties due before decision by the Supreme Court of the United States, may defendant defeat the action on the ground of failure of consideration? The question is not new. It has repeatedly been decided adversely to defendant's contention. We note the fact that at the date of the contract the patent had been held valid in the first circuit and defendant in the license contract expressly acknowledged the validity of the patent for “its remaining term,” and, therefore, reasons existed for a license contract. While such matters do not govern the rule of law to be applied, they are properly noticeable. At any time previous to the decision' of the Supreme Court of the United States defendant would have repudiated the license contract with some degree of hazard. In a suit for royalties under a license contract the licensee cannot set up the invalidity of the patent as a defense. In 30 Cyc. p. 952, the rule is stated as follows with reference to an assignment of a patent:
“In the absence of fraud or warranty the assignee of a patent right cannot refuse to make the payments agreed upon merely because the patent is found to be invalid.”
In Havana Press Drill Co. v. Ashurst, 148 Ill. 115, 139 (35 N. E. 873), it was held:
“The licensee, in a suit to recover the royalties agreed to be paid, will not be permitted to contest the validity of the patent. There is no warrant of such validity implied in a license given thereunder, and proof of its invalidity is no defense to a suit for the promised royalties. Birdsall v. Perego, 5 Blatch. (U. S.) 251; Pope Manfg. Co. v. Owsley, 27 Fed. 100; Bartlett v. Holbrook, 1 Gray (Mass.), 119.”
Jones v. Burnham, 67 Me. 93 (24 Am. Rep. 10), was very much like this case. We quote from the opinion:
“When this license was given, the plaintiffs were holders of letters patent issued in due form, and claimed they were valid. At that time controversies were pending for the purpose of testing their validity. A decision of the circuit court of the United States had been rendered sustaining the patent. The plaintiffs claimed the right to control the manufacture of the patented article. All these facts were fully known to the defendants, and with that knowledge they procured their license and manufactured under it, in preference to manufacturing in defiance of the patent.
“An appeal was entered in the case pending in the circuit court, and upon a hearing before the Supreme Court of the United States, the decision in the circuit court was reversed and the plaintiffs’ patent declared void, for want of novelty. Sewall v. Jones, 91 U. S. 171.
“The question presented is whether the plaintiffs, under these circumstances, are entitled to recover?
“The defense set up is a want of consideration. Here was a patent. It was prima facie valid. It had been adjudged valid by the circuit court of the United States. * * * The defendants were unwilling to incur the risk attendant upon interfering with a patent already adjudged valid by a court of high authority. * * * According to the weight of judicial authority, the plaintiffs are entitled to recover.”
In Clark v. Amoskeag Manfg. Co., 62 N. H. 612, the action was to recover royalties under a license contract. Held, with citation of authorities: .
“Evidence of the invalidity of the patent was properly rejected.”
We quote from the syllabus of Marsh v. Harris Manfg. Co., 63 Wis. 276 (22 N. W. 516):
“One who, under a license from the patentee, has had the undisturbed use and enjoyment of an apparently valid patent, is liable for royalties agreed to be paid, and in an action therefor is estopped to set up' as a defense the actual invalidity of the patent; and especially is this so where, in the license or agreement under which he used the patent, he admitted its validity and agreed not to dispute the same in any action.”
See, also, Marston v. Swett, 82 N. Y. 526; Marston v. Swett, 66 N. Y. 206 (23 Am. Rep. 43); Schwarzenbach v. Odorless Excavating Apparatus Co., 65 Md. 34 (57 Am. Rep. 301); Strong v. Carver Cotton Gin Co., 197 Mass. 53 (83 N. E. 328, 14 L. R. A. [N. S.] 274, 14 Ann. Cas. 1182).
No legal defense was interposed. The license con tract, being valid, fixed the liability of defendant, and there was no error in rendering judgment for the amount due under the terms of the contract up to the time of suit. We express no opinion upon rights of the parties with reference to royalties after the patent was held invalid by the Supreme Court of the United States.
Defendant asks to have the case remanded to the equity side of the court, if the holding here is adverse to it, in order that it may aver fraud in the inception of the contract. In defending at law and prosecuting review here defendant has hazarded something more than merely being remanded to equity. It must be an exceptional case, involving unquestioned equities, to lead us, after full review at law, to affirm a judgment and then grant the loser a chance to interpose another defense in equity. We find no occasion to do so in this instance. This disposition of the case renders it unnecessary to decide plaintiff’s motion to strike the bill of exceptions from the record and files.
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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McDonald, J.
(dissenting). This is an appeal from a decree dismissing the plaintiff’s bill which was filed for an accounting with the city of Detroit and the First National Bank of Pontiac, and for an injunction restraining the city from paying the bank any money on an assignment from defendant Livingston, and for the subrogation of the plaintiff to the rights of Livingston in a construction contract which he had with the city. On September 27, 1921, the city of Detroit entered into a contract with defendant Livingston for the construction of a sewer for the sum of $38,068. Livingston gave the customary statutory bond and a faithful performance bond with the plaintiff as surety. The contract called for the construction of 10,880 feet of sewer. After Livingston had completed 10,000 feet he abandoned the contract. The plaintiff took over the work and completed it at a loss of $6,152.19. While Livingston was in charge of the work he borrowed $5,000 from the defendant bank, and gave it an assignment for that amount of money due on the contract. Livingston’s contract with the city provided that no assignment of any money payable thereunder should be effective without the consent of the commissioner of public works. The assignment to the bank was consented to in writing by the commissioner, as follows:
“Approved, except as to labor claims and claims for material for this work.”
The assignment was made on December 12, 1921, and on December 16, 1921, the city gave its check for $4,667.44 on account thereof, payable to the joint order of Livingston and the bank. This check, properly indorsed, was deposited in Livingston’s commercial account at the bank. One thousand dollars of the money was- paid by him on his indebtedness to the bank, and the balance was used in payment for construction work on the sewer. After this suit was started the city paid the plaintiff $15,182.81, that amount being the balance due on completion of the work. So that the only issue now involved relates to the $4,667.44 which the city paid on the assignment. It is thei claim of the plaintiff that its right to this money is superior to that of the bank, and that legally and equitably it is entitled to have it applied in payment of its loss. On the hearing the court entered a decree granting relief as to defendant Livingston, but dismissing the bill as to the bank. The plaintiff has appealed.
Under the theory that an assignee takes no greater right or interest than that possessed, by his assignor, the plaintiff argues that inasmuch as Livingston owed $•11,619.67 for materials at the time of the assignment, he was not entitled to the payment of the $4,667.44, that the city should have retained that amount, or would have retained it if it had known the facts, to protect the materialmen whose claims the plaintiff, as surety, was subsequently required to pay; and that, therefore, the bank’s interest in the fund assigned is subject to the amount then due the materialmen.
By the terms of the contract between the city and Livingston, it was the duty of the city to retain out of each estimate 10 per cent, of the amount and value of the work done by the contractor, and 20 per cent, of the value of materials delivered. It seems to be conceded that when the estimate of $4,667.44 was made and paid, the city retained the 10 per cent, and 20 per cent, required by the contract. The city could retain no greater amount, except in case the material-men had filed sworn statements of amounts due and unpaid for material, in which event it could withhold sufficient money to pay their claims. The contract so provided. But as no such statements were filed the contractor had á right to insist on the payment of the $4,667.44, and the city had a right to pay it. The city had no greater rights or duties than those authorized by the contract. So that when the commissioner wrote on the assignment the city’s approval, “except as to labor claims and claims for material for this work,” he had reference only to such claims as materialmen might establish by filing sworn statements as provided by the contract, and to the 10 per cent, and 20 per cent, amounts which it was required to retain. As no such statements had been filed, and as the city had retained the amounts which it was authorized to retain under the contract, the exception to the approval was without effect upon the assignment. In this connection it is urged by counsel that it was the practice of the city to withhold sufficient money to pay labor and material claims. The contract and not the practice controls and fixes the rights of the parties. We think that, under the circumstances of this case, the contractor had a right to make the assignment, to insist on the payment of the money, and that the city would not have been warranted in refusing to pay. If it were money that should have been retained or which was in the hands of the city at the time plaintiff’s liability arose, there would be no question as to the superior rights of the surety and its right to follow the funds in possession of the bank. Board of County Road Com’rs of Calhoun Co. v. Surety Co., 216 Mich. 528.
But this money was paid on an estimate in which all that the city could retain under the contract was retained. It was paid during the progress of the work, and therefore before plaintiff’s liability accrued. To the extent that it was used in the construction of the work, the surety company benefited. It is clear from the evidence that the money went into the contractor’s bank account, that he used $3,667.44 of it in payment for work and materials on the construction, and gave the bank the balance as part payment of a loan for money which also went into the construction work. It thus appears that the plaintiff surety did not suffer any loss by the assignment and the payment of this money to the bank. It cannot complain that the city paid out money to the contractor or his assignee according to contract, as the work progressed. It could not ask that the city retain any of this money. Its only right was to have the city retain such amounts as the contract required it to retain and to hold what remained in its hands when the surety became liable and was compelled to complete the work. We think that the circuit judge made an equitable disposition of the matter in issue.
The decree should be affirmed, with costs to the defendants.
Bird, C. J., concurred with McDonald, J.
Fellows, J.
I am unable to concur in the opinion of Mr. Justice McDonald in this case. I am satisfied that the principle laid down and the authorities considered and cited in Board of County Road Com’rs of Calhoun Co. v. Surety Co., 216 Mich. 528, settles the law in this State in accordance with the overwhelming weight of authority that the rights of the surety on bonds of the character here involved are superior to the rights of the assignee of the contractor who holds assignment of the amount due him or claimed to be due him. I think the infirmity in my Brother’s opinion is in his assumption that the contractor, Livingston, at the time the order was issued could have compelled payment to him by the city. If at that time Livingston had insisted on payment, and it had appeared as this record discloses the fact to be, that he then owed the Cadillac Clay Company $6,481.44 and the United Fuel & Supply Company $5,138.23 for material that went into the job, it is obvious to me that his claim for a present payment could not have been sustained.- The city could not have been required to make a payment which in law would discharge the surety either entirely or pro tanto and in Sandusky Grain Co. v. Condensed Milk Co., 214 Mich. 306, we held that payments made to the contractor which did not reach the laborer or materialmen discharged the surety, at least pro tanto. Such payment would be a voluntary payment discharging the surety and could not be required of the city. The clause in the contract giving the materialmen the right to file an affidavit of their claim permitted the city to pay direct to them, but this did not deprive the materialmen of the benefit of the bond, and if they chose they could sue direct on the bond, and if the surety paid it would be subrogated. The city quite clearly recognized that materialmen and laborers must be paid before the contractor or his assignee had anything coming, and made only the limited and conditional acceptance quoted by my Brother.
In the final analysis the case must be determined, I think, by the determination of the date at which the rights and equities of the parties attached. If the rights and equities of the surety attached on the execution of the bond or relate back to that date, they are superior to those of the assignee, becausé at the date of the assignment the contractor had nothing to assign. I think both as matter of contract and as matter of law the surety’s equities attached on the date of the bond. The contractor, Livingston, applied to the surety company to become his surety on September 27, 1921, and in the application agreed:
“That if the applicant shall fail to comply with the conditions of the contract for which the said bond is to be given, the applicant’s title in and right of possession of the plant and materials concerned with the said contract shall immediately vest in the company, and the company shall be subrogated to all the rights and property of the applicant arising out of the said contract; and in such event the company shall have the right and the opportunity to assume the remainder of the said contract, and, at its option, to perform or to sublet the same.”
I shall not undertake a review of the authorities. A large number of them were cited by Justice Clark in Board of County Road Com’rs of Calhoun Co. v. Surety Co,, supra. I think the Supreme Court of the United States settled the question in Prairie State Bank v. United States, 164 U. S. 227 (17 Sup. Ct. 142). In that case the bank and the surety company both claimed the fund. Mr. Justice White who wrote the opinion thus states the question before the court:
“The question to be determined is which of the two contestants possesses a superior right to the fund.”
He then considers the question of subrogation and says :
“Under the principles thus governing subrogation, it is clear whilst Hitchcock was entitled to subrogation, the 'bank was not. The former in making his payments discharged an obligation due by Sundberg for the performance of which he, Hitchcock, was bound under the obligation of his suretyship. The bank, on the contrary, was a mere volunteer, who lent money to Sundberg on the faith of a presumed agreement and of supposed rights acquired thereunder. The sole question, therefore, is whether the equitable lien, which the bank claims it has, without reference to the question of its subrogation, is paramount to the right of subrogation which unquestionably exists in favor of Hitchcock. In other words, the rights of the parties depend - upon whether Hitchcock’s subrogation must be considered as arising from and relating back to the date of the original contract, or as taking its origin solely from the date of the advance by him.”
And after an exhaustive review of the authorities concludes:
“Sundberg & Company could not transfer to the bank any greater rights in the fund than they themselves possessed. Their rights were subordinate to those of the United States and the sureties. Depending, therefore, solely upon rights claimed to have been derived in February, 1890, by express contract with Sundberg & Company, it necessarily results that the equity, if any, acquired by the Prairie Bank in the ten per cent, fund then in existence and thereafter to arise was subordinate to the equity which had, in May, 1888, arisen in favor of the surety Hitchcock.”
This case has been many times cited by State courts and in Hardaway v. Surety Co., 211 U. S. 552 (29 Sup. Ct. 202), and Henningsen v. Guaranty Co., 208 U. S. 404 (28 Sup. Ct. 389). In the last cited case the court' quoted with approval the following language from the opinion of the circuit court of appeals:
“Whatever equity, if any, the bank had to the fund in question, arose solely by reason of the loans it made to Henningsen. Henningsen’s surety was, upon elementary principles, entitled to assert the equitable doctrine of subrogation; but it is equally clear that the bank was not, for it was a mere volunteer, and under no legal obligation to loan its money.”
But it is said the money was loaned to Livingston to be used on this job and was so used. I think the testimony is rather hazy on this claim, but, be that as it may, precisely the same claim was made and overruled in Wasco County v. Insurance Co., 88 Or. 465 (172 Pac. 126, L. R. A. 1918D, 732, Ann. Cas. 1918E, 656), upon which case Board of County Road Com’rs of Calhoun Co. v. Surety Co., supra, is largely bottomed. The opinion in that case contains an exhaustive consideration of the cases, and decision rests on the rule, recognized almost universally, that the equities of the surety, having attached at the date of the bond, are superior to those of an assignee (who is at most a volunteer) of later date. It was there said:
“When the bank loaned its money it knew that before Cromer entered upon the performance of his contract he had given a bond signed by a surety, and that the law required the county to reserve 25 per cent, of each monthly estimate. From the date of the contract of suretyship the bank was bound to know that the insurance company had an equity in the funds to be reserved; and when the bank loaned its money it did something that it was not obliged to do, and it must be deemed to have acted with a full knowledge of the right of the surety. The contractor and the bank could not create a lien in favor of the bank upon the reserved fund and make it paramount to a prior and then existing lien of the surety. First Nat. Bank v. Surety Co., 52 C. C. A. 313, 114 Fed. 529, 532; Hardaway v. Surety Co., 80 C. C. A. 283, 150 Fed. 465, 473, and affirmed in 211 U. S. 552, 561 (29 Sup. Ct. 202); Title Guaranty & Surety Co. v. Dutcher, 203 Fed. 167, 169; Illinois Surety Co. v. City of Galion, 211 Fed. 161, 163; In re P. McGarry & Son, 153 C. C. A. 326, 240 Fed. 400, 402; Columbia Digger Co. v. Sparks, 142 C. C. A. 304, 227 Fed. 780, 784; Stearns, Suretyship, § 482.”
' Livingston, the contractor, used $3,667.44 to pay labor and materialmen’s claims; the bank had $1,000, which it applied on its note. In my judgment it should respond for the thousand dollars but should not respond for the $3,667.44 simply because it passed through its hands.
The decree is reversed and one here entered in accordance herewith, with costs to plaintiff.
Sharpe, Snow, Steere, Wiest, and Clark, JJ., concurred with Fellows, J. | [
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Edward M. Sharpe, J.
Plaintiffs are the owners of the Fountain Bathhouse in Mount Clemens, Michigan. They gave a second mortgage to Leslie Ullrich who, in turn, assigned the same to his brother, Paul J. Ullrich. February 9, 1932, Laura Ullrich, widow of Paul J. Ullrich, acquired title to the mortgage by assignment from the executors of the estate of Paul J. Ullrich. Upon default, she foreclosed the mortgage and bid in the property at sheriff’s sale June 8, 1932, for $2,617.52.
June 7, 1933, two days before the equity of redemption would expire, plaintiffs filed their bill of complaint for relief under Act No. 98, Pub. Acts 1933, against Leslie Ullrich as an individual and as executor of the estate of Paul J. Ullrich, deceased. July 5, 1933, the trial court permitted plaintiffs to amend their bill of complaint to show the true mortgagee and to add Laura Ullrich as one of the defendants.
At the time the bill of complaint was filed there were unpaid taxes on the property amounting to $3,853.62, a first mortgage of $6,845, unpaid interest in the sum of $479.16. During the year 1932 plaintiffs had received rental from the premises in the sum of $1,800, no part of which had been used for upkeep or for the payment of any indebtedness on the premises.
Plaintiffs contend that the suit is in the nature of an in rem action and had actually been instituted before the expiration of the period of redemption, while the defendants moved to dismiss upon the grounds that as to Laura Ullrich the court had no jurisdiction under Act No. 98, Pub. Acts 1933, since the proceedings as to her had not been commenced before the expiration of the period of redemption, and further, that plaintiffs had not made out a case for equitable relief.
The trial court dismissed the bill of complaint on both grounds and plaintiffs appeal.
The plaintiffs’ contention that this is an in rem action is without foundation. The nature of the relief asked is an injunction, which is a purely personal remedy and can be granted only against those persons of whom the court has actual jurisdiction.
Act No. 98, Pub. Acts 1933, requires that the suit be instituted before the expiration of the period of redemption. As to defendant Laura Ullrich the suit was not instituted until after the expiration of the period of redemption and the fact that institution of suit against her took place by way of amendment of the original bill does not affect this result.
“The running of the statute of limitations is not interrupted by the commencement of an action against the servant of the real party in interest, against a person no longer a party in interest, against a person in the wrong capacity, or against the wrong party.” 37 C. J. p. 1062.
“The general rule is well settled that, where new parties defendant are brought in by amendment, the statute of limitations continues to run in their favor until thus made parties. The suit cannot be considered as having been commenced against them until they are made parties.” 37 C. J. p. 1066.
These statements are well borne out by the decisions. In the early case of Miller v. M’Intyre, 6 Pet. (31 U. S.) 61, 64, the court held:
“Until the defendants were made parties to the bill, the suit cannot be considered as having been commenced against them. It would be a novel and unjust principle to make the defendants responsible for a proceeding of which they had no notice; and where a final decree in the case could not have prejudiced their rights.”
The foregoing case was cited with approval in United States v. Martinez, 195 U. S. 469, 473 (25 Sup. Ct. 80), in which the court also said:
“For obvious reasons, a party brought into court by an amendment, and who has, for the first time, an opportunity to make defense to the' action, has a right to treat the proceedings, as to him, as commenced by the process which brings him into court.”
In Leatherman v. Times Co., 88 Ky. 291 (11 S. W. 12, 3 L. R. A. 324, 21 Am. St. Rep. 342), it was held that an action commenced against a certain defendant as a corporation could not be sustained on an amendment made after the statute of limitations had run, alleging that the defendant was a partnership instead of a corporation, and substituting the indi vidual partners as defendants, although the original summons was served upon one of them as the business manager of the supposed corporation, and an answer was filed in the name of the company before the statute had run without disclosing whether it was incorporated or not. The court said (page 295):
“But the case falls within the principle that where a plaintiff commences his action against the wrong party, when no such party was in existence, and, after the statute of limitations has fully run, amends his petition by bringing in new parties as defendants, the parties so brought in may successfully rely upon the statute of limitations as a defense.”
In Proctor v. The Wells Bros. Co. of New York, 262 Ill. 77 (104 N. E. 186, Ann. Cas. 1915 B, 273), the court held that where there are two corporations of similar names and one of them is named defendant and one of its officers was summoned, the suit is not commenced against the other so far as the statute of limitations is concerned until the issuance of a new summons, which is necessary to bring the new party into court, and it is immaterial that plaintiff intended to sue the second party in the first instance.
Again, in Svidersky v. Industrial Commission of Ohio, 43 Ohio App. 162, 167 (183 N. E. 43, 44), the rule was succinctly stated:
“The commencement of an action by service of summons on a party named as defendant will not stop the running of the statute of limitations for commencing the action against a second party made defendant by amendment to the petition, thus making a new party of one against whom the limitations has expired during the pendency of the action, unless the original defendant was a joint contractor or otherwise interested in the action.”
Other cases to the same effect are: Wilson’s Adm’r v. Holt, 91 Ala. 204 (8 South. 794); Sherman v. S. K. D. Oil Co., 185 Cal. 534 (197 Pac. 799); Harrison v. McCormick, 122 Cal. 651 (55 Pac. 592); Frost v. Smith, 148 Ga. 840 (98 S. E. 471); Knox v. Laird, 92 Ga. 123 (17 S. E. 988); Bower v. Thomas, 69 Ga. 47; Garrity v. State Board of Administration of Educational Institutions, 99 Kan. 695 (162 Pac. 1167); Lewis v. Hines, 81 N. H. 24 (120 Atl. 728); Shaw v. Cock, 78 N. Y. 194; Girardi v. Laquin Lumber Co., 232 Pa. 1 (81 Atl. 63).
The record discloses that plaintiffs failed to pay taxes for the years 1930, 1931 and 1932, amounting to the sum of $3,853.62, failed to keep the premises in repair, and applied no part of the $1,800 rent received to the upkeep of the property. Upon these facts the trial court denied relief upon equitable grounds. We think the court was right. The statute is throughout purely permissive in terms, depending upon the discretion of the court and never a matter of right.
We have considered other claims made by plaintiffs, but they are not material to the issue and a decision upon them would serve no useful purpose.
Judgment affirmed, with costs to defendants.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Btjtzel, and Bushnell, JJ., concurred. | [
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North, J.
Plaintiff seeks possession of a store building occupied by defendant. From a judgment adverse to him by the circuit court commissioner defendant appealed to the circuit court. After hearing without a jury in the circuit court, judgment was entered against defendant. He has appealed. The main issue is presented by defendant’s contention that at the time this suit was instituted plaintiff had no right, title or interest in the leased property occupied by defendant and therefore was not and is not now entitled to possession of the leased premises.
In 1941, plaintiff was incorporated under Michigan law, and it thereafter engaged in the furniture business in the leased premises. Its occupancy was as assignee of the original lessee under a lease given by the owners. On December 1, 1942, plaintiff corporation was dissolved by a resolution of its board1 of directors. Its creditors were fully cared for, and its assets, except the above-mentioned lease, were assigned to Frank Davis, who was the sole owner of the stock in plaintiff corporation. Davis continued the furniture business in the leased premises until April 19, 1943, at which time he sold to defendant the furniture business, i.e., “the entire stock of merchandise, fixtures and good will,” excepting minor chattels not here involved. In the memorandum incident to this sale Davis agreed he would and he did: “Procure from the Kay Furniture Company * *= * a lease of the premises * * * for a period1 of 6 months * * * with an option to the second party (defendant) to take an assignment of and assume the lessee’s interest in the underlying lease, * * * which underlying lease is now held by the Kay Furniture Company as assignee.” Instead of taking an assignment of the lessee’s interest in the underlying lease at the time defendant’s first sublease expired, defendant entered into a second sublease with plaintiff as lessor. This second sublease terminated October 15,1944, that being the same date on which •the original or underlying lease also expired. Prior to the expiration of defendant’s second sublease he was given notice by his lessor that possession was demanded of him at the end of his lease.
The underlying or original lease (as amended) gave to the lessee the option of extending the term for two years. In May, 1944, the lease was extended by the owners with plaintiff for two years — October 15,1944, to October 15, 1946. It is under this extension that plaintiff asserts it was entitled to possession on and after October 15, 1944, the date on which defendant’s second sublease expired. But defendant asserts that this renewal of the lease or extension of the leasehold term was wholly ineffective and void because by resolution of its directors plaintiff corporation was dissolved and its assets liquidated as of December 1, 1942. The pertinent statutory provision reads:
“Sec. 75. All corporations whose charters shall have expired by limitation or dissolution * * * shall nevertheless continue to be bodies corporate for the further term of three years -from such expiration, dissolution or forfeiture for the purpose of prosecuting and defending suits for or against them and of enabling them gradually to settle and close their affairs and to dispose of and convey their property and to divide their assets; but not for the purpose of continuing the business for which such corporations were organized.” Act No. 327, §75, Pub. Acts 1931, as amended by Act No. 96, Pub. Acts 1933 (Comp. Laws Supp. 1940, §10135-75, Stat. Ann. § 21.75).
Defendant asserts that the renewal of the lease or the extension of its terms for two years from and after October 15, 1944, was not for the purpose of enabling plaintiff corporation “gradually to settle and close their affairs and to dispose of and convey their property; ’ ’ and therefore it resulted merely in an attempted extension of the lease which was wholly ineffective, and in consequence defendant asserts plaintiff had no rights in the leased property when it began this suit. In taking this position defendant relies upon such decisions as McGuffie v. Carter, 42 Mich. 497, and Johnson v. Riddle, 240 U. S. 467, 480 (36 Sup. Ct. 393, 60 L. Ed. 752), wherein it is held: “A tenant is not estopped1 to show that his landlord’s title has expired or has been terminated by operation of law. ’ ’ Unless defendant is right in asserting that renewal by plaintiff of its lease was not incident to winding up its corporate affairs, decision of the trial court must be affirmed.
■ Plaintiff’s leasehold interest must be held to be one of its assets. It included right of renewal for two years. The undisputed record is that, notwithstanding its other assets were assigned to Prank Davis, this lease was not so assigned. ■ It remained an asset of the dissolved corporation. By exercising its right of renewal plaintiff corporation merely perpetuated and thereby conserved a potential asset. Its right to do so is not affected by the fact that Mr. Davis owned all of the corporate stock.
■ Defendant is in error in asserting that on December 1,1942, plaintiff corporation was fully and completely liquidated and all of its assets passed to Davis. Instead, as noted above, the corporation continued1 to possess its original lease as an asset. Under it plaintiff had the right to sell and assign its leasehold interest, and also the right to sublease. This lease continued to be an undisposed of asset of the corporation after December 1, 1942, when it was dissolved by resolution of its directors. The lease was not assigned to Davis, nor did it pass to him by operation of law upon dissolution of plaintiff corporation. Under the above-quoted statute plaintiff within the three-year period had the right to liquidate this asset either by selling its leasehold rights or by subletting.
Defendant is also in error when he asserts in substance that by renewal of plaintiff’s lease plaintiff continued its former business and thereby violated that portion of the above-quoted statute which provides that a dissolved corporation shall not continue as a body corporate “for the purpose of continuing the business for which such corporations were organized.” The purpose for which plaintiff was organized was to engage in the furniture business. By renewal of its lease plaintiff did not undertake to and in fact did not continue the business for which it was organized, i.e., the furniture business. The renewal of plaintiff’s lease was not invalid as being an attempt to consummate a contract in violation of law. This conclusion is justified notwithstanding incident to the renewal of its lease plaintiff corporation thereby became obligated to pay future accruals of rent. Within proper limitations, of which we think this is one, a corporation may assume obligations which are incident to the liquidation of its assets. For example, a corporation may continue to hold for the time being items of its property notwithstanding by so doing the corporation will obligate itself to pay accruing taxes.
And in view of our conclusion that plaintiff could lawfully renew or- extend the term of the underlying lease, defendant can gain nothing by his contention that plaintiff could not enter into a valid sublease with defendant for the reason that incident thereto plaintiff corporation, then in process of liquidation, would assume some contingent liabilities, such as repairing the premises in case of fire. If defendant’s sublease was invalid then, under our holding above expressed, plaintiff must prevail in this suit.
Our decision herein is in no way based upon the usually applicable rule that a tenant may not question his landlord’s title until the tenant has first surrendered possession of the leased- premises to the landlord. Instead, decision herein is bottomed on our holding that plaintiff corporation had the right to and did renew the underlying lease, and therefore was entitled to possession of the property in suit upon the expiration of defendant’s sublease on October 15, 1944. The law which in the main governs decision has been accurately stated as follows : v
“During the period of extended life given a corporation by statute for the purpose of winding up its affairs, it is entitled to hold property, or to acquire property, and to transfer or convey the same, even in trust, to wind up the business.” 16 (1942 Rev.) Fletcher Cyc. Corp. (Perm. Ed.)', § 8171, p. 938.
Notwithstanding defendant’s contentions herein-before noted and other reasons and arguments presented in defendant’s brief, which have been considered but which we think are without merit, the judgment entered in the circuit court is affirmed. Costs to appellee.
Starr, C. J., and Btjtzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case. | [
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Nelson Sharpe, C.
J. The plaintiff was appointed receiver of the American State Savings Bank by the circuit court for the county of Ingham, in chancery, on February 6, 1932, on petition of the State banking commissioner. On October 7, 1932, the court, on petition of the commissioner, — “and being of the opinion that it is necessary in order to pay the liabilities of said bank that the statutory liability of the stockholders of said bank should be enforced,”— entered an order assessing the stockholders the amount of their stock at the par value thereof, payable 30 days thereafter, and directed the receiver to proceed with its collection. The order further provided:
“That the liability created by this assessment may be enforced by said receiver against the stockholders of said bank in suits at law and/or in equity. ’ ’
On December 30,1932, the bill of complaint herein was filed to enforce the payment of said assessment. The plaintiff had decree. The defendants have appealed therefrom.
There is no dispute about the facts. Frederick J. Thoman had been the owner of stock in the bank since the year 1915. In March, 1930, in order to permit certain stock to be sold to the Detroit Bankers ’ Company, he surrendered his certificate and, at his request, the balance of the stock was reissued in the name of “Frederick J. and/or Nettie Avery Thoman. ” It is conceded that Nettie Avery Thoman was the wife of Frederick J. Thoman, and had no knowledge that her name was placed in the certificate and paid no consideration to her husband therefor. In June, 1930, the bank issued a “dividend check” in the amount of $822, payable to “Frederick J. or Nettie Avery Thoman.” This check came to their residence during the absence of Mr. Thoman, and she indorsed it and deposited it in a joint bank account in the city of Jackson, where they resided. Both she and her husband checked upon this account. Other dividend checks were later received, payable to the same persons, and indorsed and deposited by Mr. Thoman in the joint account.
The defendants were residents of the county of Jackson at the time the suit was instituted. After service upon them, they moved to dismiss for the reason that the chancery court had no jurisdiction of the subject-matter as set up in the bill of complaint. The statute which imposes the liability upon stockholders (3 Comp. Laws 1929, § 11945) provides :
“Such liability may be enforced in a suit at law or in equity by any such bank in process of liquidation, or by any receiver, or other officer succeeding to the legal rights of said bank.”
The purpose of the legislature in providing that suits to enforce such liability might be brought at law or in equity seems apparent. It was deemed advisable that the liability of stockholders should be determined by the court in which the receivership proceedings were pending. Otherwise, the anomaly might be created of a finding of liability in one circuit court and denial of it in another. Of course, review in this court might be had, but by the provision in the statute an orderly proceeding was provided under which the receiver and the rights of creditors would not be burdened by the expense of unnecessary litigation and decision rests in the court in which the proceedings were pending. We cannot find that the constitutional rights of the defendants have been affected thereby.
Counsel insists that under the facts as stated no personal liability rests upon the defendant Nettie Avery Thoman. Our statutes relating to the personal liability of a married-woman, as many times construed by this court (Kies v. Walworth, 250 Mich. 34; Seymour v. Powers, 255 Mich. 624), are not here applicable. The liability of a stockholder in a bank is imposed by the statute. It was created for the protection of the creditors of the bank. Although in a limited sense there is an element of contract when one becomes a stockholder, the liability for an assessment is based on the provisions of the statute.
In 3 R. C. L. p. 402, it is said:
“Where the statute in general terms imposes upon the stockholders of a bank liability for its debts, a married woman who owns stock in a bank is not exempt on account of coverture from such liability. She incurs liability by virtue of the statute as owner of the stock ánd not by contract, and where she is capable of becoming a stockholder her liability does not depend upon her general power to contract.”
See, Christopher v. Norvell, 201 U. S. 216 (26 Sup. Ct. 502, 5 Ann. Cas. 740), and cases cited therein; Thomas v. Commonwealth Trust Co. of Pittsburgh, 2 Fed. Supp. 654.
It is urged that her husband caused this stock to be issued in their joint names in order to create an estate in joint tenancy therein with the right of survivorship (3 Comp. Laws 1929, §13071), and that, as she paid nothing for it, she should not be held liable for the assessment. It appears, however, that a dividend thereon, payable to “Frederick J. or Nettie Avery Thoman,” was received and indorsed and deposited by her in a bank in which they kept a joint account, and that other similar checks were so deposited by her husband.
In Keyser v. Hitz, 133 U. S. 138 (10 Sup. Ct. 290), in which it was sought to hold a married woman liable for stock in a bank, which her husband, an officer of the bank, had caused-to be issued in her name, of which fact she claimed to have had no knowledge, but admitted that she had indorsed the checks for dividends issued thereon, the court said (p. 149):
“If she indorsed them, or either of them, she is estopped to say that she did not know their contents, and was not the owner of the shares of stock upon which the dividends were declared; for each check discloses upon its face that it was payable to her order, and was for dividends on stock standing in her name on the books of the bank.”
See, also, Sanger v. Upton, 91 U. S. 56; Clarke v. Kelley (C. C. A.), 19 Fed. (2d) 920.
While the bank was in process of liquidation, the banking law was amended by Act No. 8, Pub. Acts 1932 (Ex. Sess.), which was given immediate effect. Acting under it, the banking commissioner filed a “petition for reorganization,” stating therein that 85 per cent, of the deposit liability had joined in a plan of reorganization, a copy of which was annexed thereto, and that he believed “it to be to the best interests of those interested in said bank that the same be given effect.” An order to show cause was duly made and published, and on the hearing thereof on March 13, 1933, the court entered an order approving the plan, confirmed the appointment of the trustees under the voting trust agreement, and directed that the assets of the bank in the hands of the receiver be held in abeyance until the further order of the court. On April 19th following, an order was entered directing the receiver to transfer to the directors of the bank all of the assets in his hands except — ‘ ‘ all causes of action now held by said receiver against stockholders of said bank by virtue of an order of assessment against said stockholders dated October 7, 1932,” and certain other causes of action.
Section 65a of Act No. 8 provides that if the court approves the plan of reorganization and such plan provides for an assessment upon the stockholders and the court shall deem an assessment necessary to satisfy the debts of the bank, it shall include in its order provisions therefor. The plan of reorganization recited that an assessment upon the stockholders had been ordered by the court and that “if said bank is reorganized the avails of such assessment shall be paid into said reorganized bank for the use and benefit of the depositors.”
Notwithstanding this recital and the approval of the plan by the court, and the provision in the order of April 19th for the retention by the receiver of all causes of action for the collection of the assessments ordered on October 7th, defendants’ counsel insists that, as the order affirming the plan of reorganization did not in specific terms provide for an assessment, this suit may not be maintained. In discussing this question, the trial court said:
“The order approving the plan for reorganization recognized, preserved and continued the liability of the stockholders for the assessment as fixed by the order of October 7, 1932. Such recognition was as valid as would have been the ordering of a new assessment, when the court approved the reorganization plan.”
In this we think he was clearly right. The plan of reorganization r.elied upon the Collection of the assessment, and the order of the court approving it reserved to the receiver the right to bring action therefor. Counsel concedes that a supplemental order might have been made. In our opinion it was unnecessary to do so.
It is alst» urged that, if the defendants be compelled to pay the assessment, they will be required under the reorganization, to which they did not consent, to continue as stockholders in the reorganized bank and be liable as sncb. Counsel for tbe plaintiff fittingly answer this contention by saying:
“If stock in the new bank is ever offered to them they cannot be compelled to and need not accept it, in which event there can be no liability imposed upon them.”
The decree is affirmed, with costs to the plaintiff.
Potter, North, Fead, Wiest, Butzel, and Edward M. Sharpe, JJ., concurred. Bushnell, J., did not sit. | [
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Murray, P.J.
In these consolidated appeals, defendants, the Department of Environmental Quality and the Director of the Department of Environmental Quality (collectively the DEQ), and Merit Energy Company, appeal as of right the trial court’s June 25, 2007, opinion and final order granting in part plaintiffs’ motion for clarification and modification of the court’s prior order of injunction. Flaintiffs Anglers of the AuSable, Inc., and Mayer Family Investments, L.L.C., cross-appeal that same order. We reverse that order to the extent it concludes that the DEQ’s easement failed to convey riparian rights to Merit Energy, and we reverse the trial court’s decision not to dismiss the DEQ. In all other respects we affirm that order. Additionally, defendants appeal as of right the trial court’s order awarding plaintiffs fees and costs. We reverse that order insofar as it pertains to the DEQ and to the extent that it awards costs for (1) James Janiczek’s transcript under the Revised Judicature Act (RJA), MCL 600.2401 et seq., and (2) “other costs” under the Michigan Environmental Frotection Act (MEPA), MCL 324.1701 et seq. In all other respects, we affirm that order.
I. BACKGROUND
This case arises out of Merit Energy’s proposed plan to treat a plume of contaminated groundwater, located in the Manistee watershed, and discharge that treated water into the AuSable River water system.
In 2004, Merit Energy purchased the Hayes 22 Central Production Facility (CPF) located in Hayes Township, Otsego County, Michigan, from Shell Western Exploration and Production, Inc. Pursuant to the transfer agreement with Shell, Merit Energy entered into a settlement agreement with the DEQ to treat the plume, which originated from the CPF. Although spanning an area of 60 acres, the exact size of the plume, which continues to expand, is unknown. Among the contaminants in the plume are benzene, toluene, ethylbenzene, and xylenes (BTEX) and chlorides contained in brine. The plume has already contaminated two residential drinking wells and may contaminate other residential wells as it continues to expand.
After acquiring the CPF, Merit Energy evaluated a number of options to treat the plume, ultimately deeming air stripping — a process forcing a stream of air through water causing hydrocarbons (i.e., the BTEX) to evaporate — the most effective option. Regarding disposal of treated water, Merit Energy determined that discharge into a waterway would be the most prudent alternative and selected Koike Creek as the best outlet.
Koike Creek forms the headwater system for the AuSable River watershed. Groundwater feeds this creek, which originates in a wetland system owned by the Michigan Department of Natural Resources (DNR). From the wetland system, the creek flows past four beaver dams then under a driveway owned by plaintiff Nancy A. Forcier Trust (Forcier) and into Lynn Lake. Both Koike Creek and Lynn Lake form an oligotrophic system, i.e., an ecosystem with low nutrient content and resultant high degree of clarity. While Mayer is the only riparian owner along Lynn Lake, members of Anglers use this lake for recreational purposes.
In 2004, the DEQ approved Merit Energy’s corrective action plan, which called for pumping the contaminated groundwater from the plume to the CPF for iron and air stripper treatment. In addition, the DEQ issued a general permit and certificate of coverage (COC) allowing discharge of treated water from the air stripper system into the wetland area flowing into Koike Creek. Accordingly, Merit Energy constructed a pipeline from the CPF to the wetland system. The pipeline spans 1.3 miles and traverses nearly one-half mile of state-owned land. Merit Energy obtained an easement from the DNR for the construction over state land. Although the COC permits Merit Energy to discharge 800 gallons of treated water a minute into Koike Creek, the plan provides for a discharge of only 700 gallons a minute, at which rate it was estimated the plume would be fully treated in 10 years. The pipeline was constructed in late 2005 or 2006. However, the remainder of the corrective action plan has not been implemented.
When a hearing referee dismissed plaintiffs’ administrative challenge to the COC in September 2005, plaintiffs filed suit in the Otsego Circuit Court, petitioning for review of that decision and alleging both common-law water rights violations and statutory violations under the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq., including MEPA. The trial court separated plaintiffs’ petition regarding the contested case hearing and remanded that matter for review by the DEQ director.
Following a bench trial regarding plaintiffs’ other claims, the trial court issued an opinion and order on May 29, 2007, enjoining Merit Energy from discharging any treated water into the Koike Creek water system. Specifically, after determining that it had proper subject-matter jurisdiction, the court concluded that the proposed discharge would constitute an unreasonable use of riparian rights, which the DNR’s easement failed to convey to Merit Energy, as well as a MEPA violation. The court noted, however, that should Merit Energy obtain an easement granting riparian rights, an evidentiary hearing would commence if the parties were unable to agree on reasonable use. Plaintiffs moved for clarification and modification of this order, and the court entered an order of clarification and modification on June 25, 2007, indicating that no bar exists for the artificial use of a watercourse for the benefit of a parcel outside a watershed, the DNR may convey riparian rights by easement to Merit Energy, and the proposed discharge was unreasonable. The court also modified the May 29, 2007, order to be the final order in this case.
On August 8, 2007, the court awarded plaintiffs fees and costs for their expert witnesses under MCL 600.2164 of the RJA or, alternatively, under MEPA in the interests of justice. In addition, the court awarded “other costs” requested by plaintiffs exclusively under MEPA.
II. ANALYSIS
A. SUBJECT-MATTER JURISDICTION
Defendants first argue that the pre-enforcement review provision of part 201, MCL 324.20101 et seq., of the NREPA deprived the trial court of subject-matter jurisdiction over plaintiffs’ MEPA claim. We disagree. This Court reviews de novo both the question of subject-matter jurisdiction and application of the NREPA, but reviews a trial court’s factual findings for clear error. In re Petition by Wayne Co Treasurer, 478 Mich 1, 14; 732 NW2d 458 (2007); Michigan Bear Hunters Ass’n v Natural Resources Comm, 277 Mich App 512, 526; 746 NW2d 320 (2008); Preserve the Dunes, Inc v Dep’t of Environmental Quality (On Remand), 264 Mich App 257, 259; 690 NW2d 487 (2004) (Preserve the Dunes II).
The pre-enforcement review provision of part 201 provides, in relevant part: “A state court does not have jurisdiction to review challenges to a response activity selected or approved by the department under this part or to review an administrative order issued under this part in any action. . . MCL 324.20137(4) (emphasis supplied). The evidence established that the DEQ’s approval of Merit Energy’s corrective action plan fell under part 615, not part 201. Part 615 of the NREPA regulates oil and gas well facilities and provides the DEQ with authority over matters relating to unreasonable damage to groundwater resulting from the use of such facilities. See MCL 324.61501(q)(i)(B), MCL 324.61503, and MCL 324.61505. Indeed, DEQ employees Ricky Henderson and Judith Woodcock, who reviewed and approved the corrective action plan, testified that the plan was specifically “approved by the department under” part 615.
Defendants, however, contend that the preenforcement bar is applicable because the corrective action plan constitutes a “response activity” under part 201. For several reasons, this argument is not persuasive. First, as noted above, the DEQ did not select or approve the corrective action plan under part 201, but instead specifically cited part 615. Second, part 201 defines a “[r]esponse activity” as the
evaluation, interim response activity, remedial action, demolition, or the taking of other actions necessary to protect the public health, safety, or welfare, or the environment or the natural resources. Response activity also includes health assessments or health effect studies carried out under the supervision, or with the approval of, the department of public health and enforcement actions related to any response activity. [MCL 324.20101(l)(ee).]
Here, even though the corrective action plan referenced part 201 to establish “risk based cleanup goals for the site,” it is not clear that such guidance constituted a “response activity” under part 201. For starters, the DEQ expressly approved a “Corrective Action Plan,” which is specifically referenced in part 615, and to which part 201 makes no reference. Rather, part 201 provides for a “[r]emedial action plan,” which is “a work plan for performing remedial action under this part.” MCL 324.20101(l)(dd) (emphasis supplied). Moreover, that administrative rules promulgated under part 615 require well cleanup in accordance with all applicable state laws and regulations pertaining to losses of oil and gas is insufficient to show that part 615 incorporates part 201. See Mich Admin Code, R 324.1006. Indeed, neither part 615 nor rules promulgated pursuant to that part make any reference to part 201. Furthermore, it is part 615 of the NREPA that deals specifically with oil and gas waste — the contamination at issue in this case. Therefore, given that part 201 expressly limits jurisdiction only where a response activity is approved “under this part,” MCL 324.20137(4), the bar of part 201 does not apply to this case where the corrective action plan was not a “response activity” and was approved by the DEQ under part 615.
In furtherance of their argument that the preenforcement review provision of part 201 applies, defendants rely on Genesco, Inc v Dep’t of Environmental Quality, 250 Mich App 45, 53; 645 NW2d 319 (2002), contending that because parts 201 and 615 both have the same general purpose of protecting the environment, they must be construed in pari materia. Genesco, however, is not instructive on this issue.
In Genesco, the DEQ approved a remedial action plan under part 201. The plaintiff, which operated a leather tannery adjacent to a contaminated lake, claimed that because the DEQ’s remediation plan under part 201 violated part 17 (i.e., MEPA), the pre-enforcement review provision of part 201 was inapplicable. Id. at 47-49. This Court affirmed the trial court’s conclusion that part 201 deprived the court of subject-matter jurisdiction and held that “claims under part 17 may not be brought where the underlying controversy is over a ‘response activity’ as defined in part 201.” Id. at 53. In arriving at this conclusion the Court explained that “parts 17 and 201 must be read in pari materia because they both have the same general purpose of protecting the environment... and must be read in the context of the entire [NREPA] so as to produce an harmonious whole” lest pre-enforcement litigation frustrate the DEQ’s attempt to clean contaminated sites. Id.
Here, we have already concluded that plaintiffs’ challenge was in no way predicated on part 201. Thus, in contrast to Genesco, the parts of the NREPA to be construed in pari materia are parts 17 (MEPA) and 615. Unlike part 201, however, part 615 contains no bar to subject-matter jurisdiction. Thus, application of Genesco does not deprive the circuit court of subject-matter jurisdiction.
While we are cognizant of defendants’ argument that this conclusion may allow pre-enforcement litigation that could potentially delay future cleanup efforts of contaminated sites approved under part 615, the plain language of part 201 unambiguously limits subject-matter jurisdiction to plans approved “under this part.” MCL 324.20137(4). Thus, even were we to construe parts 201 and 615 in pari materia, we would conclude that the pre-enforcement bar is inapplicable here. Indeed,'where “the statute’s language is clear and unambiguous, we assume that the Legislature intended its plain meaning, and we enforce the statute as written.” South Haven v Van Buren Co Bd of Comm’rs, 478 Mich 518, 528; 734 NW2d 533 (2007) (quotation marks and citation omitted). In light of this, the proper forum for resolution of defendants’ concern is the Legislature, rather than this Court. Therefore, there was no bar to the circuit court’s subject-matter jurisdiction in this case.
We also disagree with defendants’ argument that because part 615 confers exclusive jurisdiction on the Ingham Circuit Court to hear this case, plaintiffs brought suit in the wrong forum. See MCL 324.61517(2). As a point of fact, plaintiffs did not bring suit under part 615. Rather, plaintiffs responded that the pre-enforcement provision of part 201 was inapplicable because the DEQ approved Merit Energy’s plan under part 615. In other words, plaintiffs’ reliance on part 615 does not underlie and was not used as a basis for a cause of action in this case, but rather is asserted in a defensive posture to defendants’ argument that part 201 bars subject-matter jurisdiction. Jurisdiction was proper in the Otsego Circuit Court. MCL 324.1701(1).
B. THE DEQ’S ADMINISTRATIVE ACTION
We do, however, agree with the DEQ’s contention that because its review of Merit Energy’s corrective action plan and issuance of the COC constituted an administrative decision, it did not violate MEPA. “[W]e review de novo the proper application of MEPA. But we will not overturn a trial court’s findings of fact unless they are clearly erroneous.” Preserve the Dunes II, supra at 259 (citations omitted).
“MEPA provides a cause of action for declaratory and other equitable relief for conduct that is likely to result in the pollution, impairment, or destruction of Michigan’s natural resources” and provides for immediate judicial review of allegedly harmful conduct. Preserve the Dunes, Inc v Dep’t of Environmental Quality, 471 Mich 508, 512; 684 NW2d 847 (2004) (Preserve the Dunes I); MCL 324.1701(2) and MCL 324.1703(1). Regarding intervention in permit proceedings, MEPA “requires a potential intervenor to file a pleading asserting that the proceeding or action for judicial review involves conduct that has violated, or is likely to violate, MEPA.” Preserve the Dunes I, supra at 521 (emphasis supplied); MCL 324.1705(1). However, “[w]here a defendant’s conduct itself does not offend MEPA, no MEPA violation exists.” Preserve the Dunes I, supra at 519. Because plaintiffs challenged the DEQ’s approval of the corrective action plan, their challenge pertained to an administrative decision rather than conduct. However, “[a]n improper administrative decision, standing alone, does not harm the environment.” Id. Indeed, it is the actual discharge of treated water into Koike Creek and Lynn Lake that plaintiffs assert would harm the environment. Thus, MEPA provides no basis for judicial review of this agency decision. “To hold otherwise would broaden by judicial fiat the scope of MEPA and create a cause of action that has no basis in MEPA’s language or structure.” Id. at 524. Consequently, the court erred by failing to dismiss the DEQ from this action.
C. THE EASEMENT
Defendants next argue that the trial court erred by finding that the easement failed to adequately specify the right to discharge treated water. “The extent of a party’s rights under an easement is a question of fact, and a trial court’s determination of those facts is reviewed for clear error.” Blackhawk Dev Corp v Village of Dexter, 473 Mich 33, 40; 700 NW2d 364 (2005). We hold that the trial court erred by ruling that the easement did not allow Merit Energy to discharge the water into the watershed.
“[T]he use of an easement must be confined strictly to the purposes for which it was granted or reserved.” Id. at 41 (quotation marks and citation omitted). Not surprisingly, these purposes are determined by the text of the easement. Little v Kin, 468 Mich 699, 700; 664 NW2d 749 (2003) (.Little ID- “Where the language of a legal instrument is plain and unambiguous, it is to be enforced as written and no further inquiry is permitted. If the text of the easement is ambiguous, extrinsic evidence may be considered by the trial court in order to determine the scope of the easement.” Id. (citation omitted).
The easement in this case expressly provided Merit Energy the “right to place, construct, operate, repair, and maintain” the pipeline over the state-owned land at issue. The term “operate” clearly and unambiguously refers to the operation of the pipeline that will discharge treated water into Koike Creek. Further supporting this plain meaning is the easement’s own requirement that Merit Energy notify the DNR of the release of any toxic or hazardous substance resulting from operation of the pipeline. Additionally, attached to the easement is a condition requiring Merit Energy to submit “operating instructions” requiring visual inspection of the water line and discharge point on a regular basis. Thus, the term “operate” clearly encompasses the discharge of treated water. Further, plaintiffs are incorrect that the easement only permitted operation of the pipeline to the riprap area above the wetland. On the contrary, the reference diagram attached to the easement clearly indicates discharge flowing into Koike Creek. Therefore, the trial court erred by concluding that the easement failed to grant Merit Energy the right to discharge treated water into Koike Creek.
We also reject plaintiffs’ contention on cross-appeal that because Merit Energy’s land is nonriparian, the trial court erred by ruling that Merit Energy could lawfully obtain an easement. This Court reviews the scope and application of common-law claims, such as the application of riparian law, de novo, but reviews a trial court’s factual findings in a bench trial for clear error. Michigan Citizens for Water Conservation v Nestle Waters North America Inc, 269 Mich App 25, 53; 709 NW2d 174 (2005), aff'd in part, rev’d in part, and remanded on other grounds 479 Mich 280 (2007); Walters v Snyder, 239 Mich App 453, 456; 608 NW2d 97 (2000).
“[W]hile full riparian rights and ownership may not be severed from riparian land and transferred to non-riparian backlot owners, Michigan law clearly allows the original owner of riparian property to grant an easement to backlot owners to enjoy certain rights that are traditionally regarded as exclusively riparian.” Little v Kin, 249 Mich App 502, 504-505; 644 NW2d 375 (2002) (Little I), aff'd 468 Mich 699 (2003). Traditionally, riparian owners are permitted to drain their land into an adjoining watercourse, Saginaw Co v McKillop, 203 Mich 46, 52; 168 NW 922 (1918), and rights granted to nonriparians by easement are not limited to access or ingress and egress, Dyball v Lennox, 260 Mich App 698, 706; 680 NW2d 522 (2004), citing Little I, supra at 514-516. Thus, the DNR, as a riparian owner, could lawfully convey the easement at issue to Merit Energy.
While plaintiffs maintain that the grant was apart from the land because it pertained to water originating on nonriparian land, this argument confuses the right at issue, i.e., the DNR’s right to discharge water into a watercourse. This right is inherently riparian and therefore connected to, rather than apart from, the land. McKillop, supra at 52. It is this riparian right that was granted by easement. Therefore, plaintiffs’ argument does not hold water.
D. COMMON-LAW CLAIMS
As an initial matter, defendants claim that the court erred by finding that the proposed discharge would affect plaintiffs’ property rights by affecting their use of Koike Creek and Lynn Lake. We disagree. This Court reviews the scope and application of common-law claims de novo, but reviews a trial court’s factual findings in a bench trial for clear error. Nestlé, supra at 53; Walters, supra at 456.
“Riparian rights are derived from and are dependent on ownership of ‘land’ which abuts a natural body of water; thus, they constitute part of the property possessed by riparian landowners and become their property rights.” Hess v West Bloomfield Twp, 439 Mich 550, 562; 486 NW2d 628 (1992). “ ‘[A]U the riparian proprietors have an equal or common right to use the water, but each must exercise his rights in a reasonable manner and to a reasonable extent, so as not to interfere unnecessarily with the corresponding rights of others.’ ” Square Lake Hills Condo Ass’n v Bloomfield Twp, 437 Mich 310, 337 n 9; 471 NW2d 321 (1991) (LEVIN, J., dissenting), quoting 23 Michigan Law & Practice, Waters and Watercourses, § 2, p 262.
Merit Energy proposes to use this water system to discharge treated water. The trial court found that the following would result as a consequence of Merit Energy’s use: increased sedimentation, phosphorus levels, and erosion into Lynn Lake; significant flooding along Koike Creek; aesthetic and economic impairment of Koike Creek; overall drop in water quality and increase in turbidity; and harm to aquatic life. The record supports these findings. In light of the effects of the proposed discharge, Merit Energy’s use of the water system would necessarily interfere with plaintiffs’ use, thereby affecting their riparian rights. Indeed, our Supreme Court has long held that any use that “materially ... adulterates the water” may impair riparian rights “for the ordinary purposes of life.” People v Hulbert, 131 Mich 156, 168-169; 91 NW 211 (1902) (quotation marks and citations omitted). Moreover, although defendants assert that diminution in water quality alone is not actionable, plaintiffs’ alleged injury in fact was sufficient to support a cause of action where they “aver[red] that they use[d] the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 629; 684 NW2d 800 (2004) (quotation marks and citations omitted).
Defendants also contend that plaintiffs cannot claim a property right in lands that have been traditionally flooded as a result of the Lake Tecon impoundment above the discharge site. However, the only authority defendants cite in support of this proposition does not address this specific point. See Burt v Munger, 314 Mich 659; 23 NW2d 117 (1946); Hyatt v Albro, 121 Mich 638; 80 NW 641 (1899). In any event, the proposed discharge would have a qualitatively different effect on Koike Creek than any traditional flooding. Indeed, plaintiffs’ expert, Dr. Christopher Grobbel, testified that previous flooding was a natural event of short-term duration, whereas the proposed discharge would inundate the area for a period of many years. Thus, defendants’ argument fails.
On cross-appeal, plaintiffs argue that the trial court should have applied surface water law because the proposed discharge does not originate on the DNR’s land. We disagree. The characterization of water as a watercourse or surface water governs a party’s right to discharge water into a water system. Kernen v Homestead Dev Co, 232 Mich App 503, 511-512; 591 NW2d 369 (1998). Here, the corrective action plan calls for the treated water to be discharged into the wetland system that flows into Koike Creek. The wetland system and Koike Creek originate solely on DNR property. It is undisputed that Koike Creek is classified as a watercourse before flowing onto plaintiffs’ land. Thus, regardless of whether the treated water is surface water at the discharge point, it is no longer surface water by the time it reaches plaintiffs land because surface waters “are lost by. .. reaching some definite water course or substantial body of water into which they flow.” Id. at 511 n 7. Therefore, the trial court correctly deemed surface water law inapplicable.
Plaintiffs argue, alternatively, that the trial court erroneously applied the reasonable use balancing test. However, this Court has determined that “under Michigan’s riparian authorities, water disputes between riparian proprietors are resolved by a reasonable use test that balances competing water uses to determine whether one riparian proprietor’s water use, which interferes with another’s use, is unreasonable under the circumstances.” Nestlé, supra at 58. “Under the reasonable use doctrine, a riparian owner may make any and all reasonable uses of the water, as long [as he does] not unreasonably interfere with the other riparian owners’ opportunity for reasonable use.” Id. at 55 (quotation marks and citation omitted). Here, although Merit Energy is not a riparian proprietor, its proposed discharge specifically utilizes the rights granted by the DNR’s easement. Since the rights the DNR granted by easement are riparian, this dispute should be analyzed under the law applicable to disputes between riparian proprietors.
It is plaintiffs’ contention that the reasonable use balancing test enunciated in Nestlé is inapplicable because Nestlé was a groundwater case. Although plaintiffs are correct that Nestlé applied the reasonable use balancing test to a groundwater claim, the test is not limited to groundwater cases. On the contrary, after reviewing the origin and development of water law in Michigan since the 19th century, id., citing Dumont v Kellogg, 29 Mich 420, 422 (1874), Nestlé specifically concluded, before addressing any groundwater claim, that “water disputes between riparian proprietors are resolved by a reasonable use test,” Nestlé, supra at 58.
Plaintiffs note that Nestlé is distinguishable because the groundwater at issue in Nestlé had a hydraulic connection to the watercourse whereas Merit Energy’s proposal to discharge treated water constitutes a use of riparian rights to benefit nonriparian (i.e., Merit Energy’s) land. This contingency does not distinguish Nestlé, but instead is a factor in Nestlé’s reasonable use balancing test. Id. at 72. Moreover, Nestlé relied on the Restatement of Torts, 2d, in applying the reasonable use balancing test to the groundwater dispute, id. at 71 n 46, citing 4 Restatement Torts, 2d, § 850A, p 220, and the factors set forth in that Restatement section pertain to the reasonable use of water generally — i.e., without specific limitation to groundwater disputes. Further, although Nestlé expressly adopted and applied the reasonable use balancing test to a dispute between groundwater and riparian users, Nestlé identified this test as the one “first stated in Dumont[.]” Nestlé, supra at 68. The Dumont test was not limited to groundwater cases. Dumont, supra at 423-425. In light of this, it cannot be said that Nestlé ignored the doctrine of stare decisis or that its explanation of the reasonable use balancing test constituted mere dictum. Consequently, we conclude that because it was only the Nestlé Court’s application of the reasonable use balancing test that pertained to a groundwater dispute, its explanation and analysis of the reasonable use balancing test is instructive here. Therefore, the trial court correctly concluded that the reasonable use balancing test applies.
Finally, we note Merit Energy’s contention that the trial court failed to determine the volume of water to be discharged under the reasonable use balancing test. However, that finding would have been premature given the trial court’s finding — albeit an erroneous one — that the easement did not convey the right to discharge. In any event, the arguments and evidence presented at trial focused on whether the proposed discharge was reasonable or whether reasonable alternatives existed, and the trial court determined the reasonableness of the proposed discharge. In addition, the trial court’s final order did not effectively overrule the interim order’s enjoining of the proposed discharge or conclusion that further evidence could be submitted concerning a lower discharge amount, as the only limiting language in the final order refers to the court’s finding that the proposed discharge was unreasonable.
E. MEPA
Defendants’ principal argument under MEPA is that the trial court erred by finding a prima facie violation of MEPA because it failed to apply part 31 (the water resources protection act) of the NREPA, MCL 324.3101 et seq., as a pollution control standard. We disagree. “[W]e review de novo the proper application of MEPA. But we will not overturn a trial court’s findings of fact unless they are clearly erroneous.” Preserve the Dunes II, supra at 259 (citations omitted).
To establish a prima facie violation of MEPA, a plaintiff must show that “the defendant has or is likely to pollute, impair, or destroy the air, water, or other natural resources.” Nestlé, supra at 88, citing MCL 324.1703(1) and Ray v Mason Co Drain Comm’r, 393 Mich 294, 309; 224 NW2d 883 (1975). “[I]n determining that a plaintiff has made out a prima facie MEPA violation, the trial court may either (1) make detailed and specific findings that the defendant’s conduct has polluted, impaired, or destroyed, or is likely to pollute, impair, or destroy, the air, water, or other natural resources, or (2) find that the defendant has violated an applicable pollution control standard.” Nestlé, supra at 89 (citations omitted; emphasis supplied). Once aprima facie case is established, the burden shifts to the defendant, who may rebut the prima facie case with evidence to the contrary. Id.
As a preliminary matter, defendants argue that the standards for determining a prima facie MEPA violation enunciated in Nestlé do not present “equally available methods” of inquiry. Rather, defendants contend that a court may make detailed and specific factual findings regarding a defendant’s conduct only if no applicable pollution control standard exists or if an existing pollution control standard is deficient. Although a creative argument, we cannot square it with the statute and caselaw.
MEPA does not contain specific standards or requirements concerning adverse environmental impact. Nemeth v Abonmarche Dev, Inc, 457 Mich 16, 30; 576 NW2d 641 (1998). It does, however, set forth how a case is to proceed in the circuit court, starting off with the plaintiffs having to prove a prima facie case that the defendant’s conduct has polluted or will likely pollute natural resources:
When the plaintiff in the action has made a prima facie showing that the conduct of the defendant has polluted, impaired, or destroyed or is likely to pollute, impair, or destroy the air, water, or other natural resources or the public trust in these resources, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant’s conduct and that his or her conduct is consistent with the promotion of the public health, safety, and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution, impairment, or destruction. Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts apply to actions brought under this part. [MCL 324.1703(1).]
Courts are to consider this statute for guidance in crafting findings of fact, City of Jackson v Thompson-McCully Co, LLC, 239 Mich App 482, 488; 608 NW2d 531 (2000), and the statute’s focus is entirely on the defendant’s conduct relative to polluting, impairing, or destroying natural resources. Consequently, and contrary to defendants’ argument, our courts have held that there are two ways to prove a prima facie MEPA case, one of which is proving that the defendant’s conduct violated a pollution control standard. See Nestlé, supra at 89; Preserve the Dunes I, supra at 517 n 5 (noting that the defendant’s opportunity to rebut a prima facie case remains the same “whether that violation has been established independently or by reference to another statute’s pollution control standard” [emphasis supplied]).
Defendant places great emphasis on MCL 324.1701(2), which provides:
In granting relief provided by subsection (1), if there is a standard for pollution or for an antipollution device or procedure, fixed by rule or otherwise, by the state or an instrumentality, agency, or political subdivision of the state, the court may:
(a) Determine the validity, applicability, and reasonableness of the standard.
(b) If a court finds a standard to be deficient, direct the adoption of a standard approved and specified by the court. [Emphasis supplied.]
The plain language of this section applies at the point when a circuit court is “granting relief” as authorized by subsection l, and thus applies' after a violation of MEPA has been found. Black’s Law Dictionary (7th ed); ADVO-Systems, Inc v Dep’t of Treasury, 186 Mich App 419, 424; 465 NW2d 349 (1990) (dictionaries are useful tools for determining the common understanding of undefined statutory terms). Through this section, the Legislature has provided courts with the explicit authority to fashion relief consistent with existing pollution control standards, or to adopt new standards if the existing ones are found invalid, inapplicable, or unreasonable. But the Legislature has created no requirement that a prima facie case must include a trial court analysis and finding about any applicable pollution control standard. Indeed, as already discussed, MCL 324.1703(1) contains no such requirement, and its general provisions on standards of proof indicate otherwise. See Nemeth, supra at 30 (observing that MEPA creates an environmental common law that “does not impose specific requirements or standards; instead, it provides for de novo review in Michigan courts, allowing those courts to determine any adverse environmental effect and to take appropriate measures”). Thus, the only determinative statutory requirement in evaluating a prima facie MEPA violation “is whether the defendant’s conduct will, in fact, pollute, impair, or destroy a natural resource.” Preserve the Dunes I, supra at 517 n 5.
And that is where defendants misconstrue the varying statements about pollution control standards in Nemeth and its progeny. Determining whether a statute contains a pollution control standard is relevant when the plaintiff has alleged, as a way to prove a prima facie case, that the defendant’s conduct has, or will, violate a statute or regulation. At that point the court must decide if the statute contains a pollution control standard, for if it does, the defendant’s violation of the statute, by itself, can be used to satisfy the prima facie case standard. Nemeth, supra at 36; Nestlé, supra at 89. If the statute does not contain a pollution control standard, as the trial court concluded in this case, then a violation of the statute cannot alone establish a prima facie case. Id. at 94. Hence, Nemeth does not require a trial court to determine whether statutes cited by defendants contain pollution control standards, as Nemeth and the other decisions addressed the need to decide if the statutes allegedly violated contained pollution control standards in order to avoid using the violations as lone support for prima facie cases.
Here, plaintiffs attempted to prove a prima facie case with factual proof that defendants’ discharge of treated water into Koike Creek will likely pollute, impair or destroy natural resources in violation of parts 31, 301, and 303 of MEPA. As required by caselaw, see Nemeth, supra at 35, the trial court determined that parts 301 and 303 did not contain pollution control standards, but nonetheless properly utilized them, in part, in deciding whether defendants violated MEPA. See Nestlé, supra at 92 n 69. The trial court made detailed findings of fact in determining that defendants’ rate of discharging treated water would likely pollute or impair the natural resource at issue, and that defendants therefore violated MEPA. That process is all that is required by statute, MCL 324.1703(1), and caselaw. Nemeth, supra at 36-37; Ray, supra at 309-310; Nestlé, supra at 88-89.
Defendants argue, in the alternative, that the trial court substantively erred by relying on the Portage factors and using parts 301 and 303 as pollution control standards in finding a prima facie MEPA violation. This is incorrect. For starters, while the Portage factors are case specific, Nemeth, supra at 35, the trial court did not exclusively rely on them in its analysis. On the contrary, the court also examined parts 301 and 303, which the court acknowledged did not contain pollution control standards, as well as relied on its own findings under the common-law reasonable use factors in finding a prima facie violation. This is an appropriate use of both the Portage factors and parts 301 and 303. Nestlé, supra at 92 n 69, 97. Indeed, the court ultimately concluded that a review of all the factors “weights] in favor of plaintiffs” and that it was “[f]or this reason . .. that plaintiffs have established a prima facie MEPA violation.” Therefore, defendants’ contention fails.
Finally, we disagree with defendants’ assertion that the trial court failed to articulate a pollution control standard. “[T]he MEPA specifically authorizes a court to determine the validity, reasonableness, and applica bility of any standard for pollution or pollution control and to specify a new or different pollution control standard if the agency’s standard falls short of the substantive requirements of MEPA.” Nemeth, supra at 30 (quotation marks, citation, and emphasis omitted). Here, the court made detailed and specific findings that the proposed discharge would: significantly affect wildlife; cause increased flooding, sedimentation, phosphorus levels, chloride levels, and erosion; and severely affect the water quality of the system. Although the court failed to use the words “pollution control standard” in making its findings, we do not find this flaw fatal. First of all, since the court found no pollution control standard, it did not need to create a new one. Second, even statutes that articulate pollution control standards need not contain the words “pollution control standard” to be considered as containing pollution control standards. Rather, determinative of whether statutes contain pollution control standards is whether “the purposes are to protect natural resources or to prevent pollution and environmental degradation ....” Nestlé, supra at 92 In this case, it is clear that the purpose of the trial court’s findings and conclusion that Merit Energy’s specific discharge proposal violated MEPA was to protect natural resources and prevent environmental degradation. In other words, the court sufficiently articulated a pollution control standard by holding that the discharge of 700 gallons a minute of treated water into Koike Creek would likely pollute and impair that watershed system.
Before moving on, however, we again note that the trial court’s interim order allows Merit Energy to return to court with a different proposal, presumably one providing for a discharge of less than the 700 gallons a minute that the court found violated MEPA. The trial court will then have another opportunity to either make detailed findings of fact, or perhaps explicitly create a new standard that sets a limit, if any, regarding the amount of treated water that can lawfully be discharged into Koike Creek.
F. EVIDENTIARY CLAIMS
This brings us to defendants’ assertion that the trial court committed numerous evidentiary errors. Specifically, defendants argue that the trial court erred by finding that the proposed discharge would likely pollute, impair, or destroy natural resources because its decision was based on the following inadmissible evidence: (1) article abstracts admitted as exhibit 83 and the testimony of plaintiffs expert, Dr. Mark Luttenton based on this exhibit and (2) graphs admitted as exhibits 67 and 135 and the stage discharge analysis of plaintiffs expert, David Hyndman, based on these exhibits. Also, defendants assert that the court improperly excluded defense exhibits and defense expert testimony.
This Court reviews a trial court’s decision to admit evidence for an abuse of discretion. Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004). “However, when the trial court’s decision to admit evidence involves a preliminary question of law, the issue is reviewed de novo, and admitting evidence that is inadmissible as a matter of law constitutes an abuse of discretion.” Barnett v Hidalgo, 478 Mich 151, 159; 732 NW2d 472 (2007). A trial court abuses its discretion when its decision is outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). We hold that the trial court did not abuse its discretion in its evidentiary rulings or, if it did so, it was harmless error.
i. EXHIBIT 83 AND EXPERT ANALYSIS
Exhibit 83 consisted of article abstracts pertaining to the effects of chlorides on water systems. Defendants maintain that this evidence was inadmissible hearsay. Defendants are correct, as the article abstracts are out-of-court statements offered for their truth and do not fall within an established hearsay exception. MRE 801(c); Merrow v Bofferding, 458 Mich 617, 626; 581 NW2d 696 (1998). However, we conclude that any error was harmless as there is no indication that the court relied on these abstracts in making its decision.
Further, the inadmissibility of exhibit 83 did not preclude Luttenton’s testimony concerning the effects of chlorides on aquatic invertebrates. Under MRE 703, the “facts or data in the particular case upon which an expert bases an opinion or inference shall be in evidence.” Therefore, a party must show that the “facts or data” upon which an expert relies is admissible before an expert may render an opinion. People v Yost, 278 Mich App 341, 362-363; 749 NW2d 753 (2008). This presumes, however, that the “facts or data” refer to the facts of the case that would support the expert’s opinion and do not include information or documentation pertaining to the expert’s education concerning the topic.
Arguably, the abstracts upon which Luttenton relied pertained to his education on the introduction of chlorides into water systems and their effect on aquatic invertebrates. In contrast, the facts that support Luttenton’s opinion are the data concerning the actual chlorides the proposed discharge would add to Koike Creek and Lynn Lake. Exhibit 83 did not contain that data, which defendants do not challenge. Thus, Luttenton’s opinion on this matter was properly admitted. In any event, if the evidence was improperly admitted, any error would be harmless as the court’s consideration of the effects on aquatic invertebrates was but one of many negative effects supporting the injunction.
ii. EXHIBITS 67 AND 135 AND EXPERT ANALYSIS
Hyndman testified that the proposed discharge would increase the water level and flow in Lynn Lake and Koike Creek. This stage discharge analysis was based on water flow measurements made by Hyndman, Grobbel, and Robert Workman. The court admitted these measurements as exhibits 67 and 135.
Defendants challenge the admission of these exhibits on the ground that they were based on unreliable data. “[T]he trial court’s role as gatekeeper does not require it to search for absolute truth, to admit only uncontested evidence, or to resolve genuine scientific disputes.” Chapin v A & L Parts, Inc, 274 Mich App 122, 127; 732 NW2d 578 (2007) (DAVIS, J.). Rather, the focus of the inquiry is whether the expert based his conclusions on a sound foundation. Id. at 139.
With respect to this inquiry, MRE 702 provides:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Regarding exhibit 67, defendants assert that the data were unreliable because, with the exception of one flow measurement, Hyndman relied on Grobbel’s measurements even though Hyndman claimed his measurement procedure was more reliable than Grobbel’s and because Hyndman’s and Grobbel’s measurements were taken inside culverts. We agree with the trial court and hold that the trial court correctly ruled that defendants’ stated objections to the procedures employed by Hyndman go more to the weight of his testimony than to the reliability, and thus admissibility, of his testimony. Surman v Surman, 277 Mich App 287, 309-310; 745 NW2d 802 (2007).
We also reject defendants’ arguments for two additional reasons. First, while Hyndman claimed that Grobbel used a different measurement procedure, he did not assert that his was more reliable, and defendants fail to explain how the use of different procedures affected the reliability of the measurements. Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998). Second, both Hyndman and Grobbel asserted that the ideal locations for measurements in this system were on the upstream side of culverts. Thus, the stage discharge analysis was not based on unreliable data.
Concerning exhibit 135, defendants point out that Hyndman simply fashioned this exhibit by adding and removing data points from exhibit 67. However, Hyndman explained that he only removed one data point, which was an “outlier,” i.e., a data point that was not representative of the relationship depicted in the exhibit. Additionally, disagreement between Grobbel and Susan Baker, a defense expert, is relevant to the credibility and weight of each witness’s testimony, the determination of which is within the province of the trial court. Ellsworth v Hotel Corp of America, 236 Mich App 185, 194; 600 NW2d 129 (1999). Apparently, the court gave more weight to Hyndman’s stage discharge analysis, and that was not an abuse of discretion. And any error was harmless since Hyndman’s conclusion and the court’s ruling were not solely based on the stage discharge analysis, but focused on additional factors that included the effect of the proposed discharge on wildlife and water quality. People v Rodriquez (On Remand), 216 Mich App 329, 332; 549 NW2d 359 (1996) (“The erroneous admission of evidence is harmless if it did not prejudice the defendant.”).
iii. EXCLUSION OF DEFENSE EXHIBITS AND EXPERT TESTIMONY
Defendants’ last evidentiary argument is that the trial court erroneously excluded portions of Baker’s testimony and exhibits supporting that testimony, as well as portions of Workman’s surrebuttal testimony.
With respect to Baker, the court excluded a portion of exhibit XX, a North Carolina storm manual, exhibit EE, which consisted of Baker’s drawings illustrating the evolutionary stages of the Koike Creek system, and Baker’s related testimony. These exclusions were not improper. First, the only portion of exhibit XX excluded was the portion that Baker admitted she did not use in her analysis. Thus, that evidence was not relevant and was therefore inadmissible. MRE 402; Woodard v Custer, 476 Mich 545, 569; 719 NW2d 842 (2006). Second, concerning exhibit EE, even if a proper foundation were laid, Baker’s analysis of this exhibit concerning whether the system was no longer in an eroding state was not dispositive with regard to Baker’s ultimate conclusion that the proposed discharge would not cause erosion. Indeed, Baker considered the effects of vegetation, beaver dams, shear stress, tractive force, and permissible velocity in reaching this conclusion. Thus, any error in excluding exhibit EE and testimony pertaining to that exhibit did not prejudice defendants and was therefore harmless.
Regarding Workman, defendants assert that the court improperly precluded Workman’s surrebuttal testimony concerning analysis of Grobbel’s flow measurements incorporated into exhibit 135. However, it does not appear that Workman was qualified to render such an opinion, given that his expertise was in aquatic biology and his analysis of the flow measurements pertained to aquatic wildlife and habitat rather than hydrology or hydrogeology, for which Workman was offering surrebuttal testimony. Indeed, under MRE 702, an expert must be qualified “by knowledge, skill, experience, training, or education” before rendering an opinion. Craig, supra at 78. In light of this, the trial court did not abuse its discretion by precluding Workman’s testimony on this issue.
G. EXPERT FEES AND COSTS
Merit Energy challenges the trial court’s award pursuant to the RJA and, alternatively, MEPA for “other costs,” as well as transcript costs under “Category D” and the transcript cost of James Janiczek. Merit Energy is correct in part. “[T]he award of taxable costs to the prevailing party is within the trial court’s discretion.” Allard v State Farm Ins Co, 271 Mich App 394, 403; 722 NW2d 268 (2006). “However, what constitutes costs is governed by statute, and questions of statutory construction are reviewed de novo.” Nestlé, supra at 106 (citations omitted).
The RJA provides the statutory authority for awards of costs and fees. J C Bldg Corp II v Parkhurst Homes, Inc, 217 Mich App 421, 429; 552 NW2d 466 (1996). “Under MCL 600.2405(2) [of the RJA], ‘costs’ include matters specially made taxable elsewhere in the statutes or court rules.” Nestlé, supra at 107. Accordingly, plaintiffs sought costs under MCL 600.2164 (regarding recovery of costs for experts) and MCL 324.1703(3).
i. COSTS AND FEES UNDER THE RJA
Merit Energy initially challenges the trial court’s award of “other costs” under the RJA. However, plaintiffs concede that costs and fees awarded under the “other costs” category are only recoverable under MEPA through the RJA catch-all provision, MCL 600.2405(2).
Next, Merit Energy correctly argues that MCL 600.2543(2) and 600.2549 of the RJA do not permit taxation of transcript costs. At the outset, we note that except for Janiczek’s transcript, for which the court expressly awarded costs under the RJA, transcript costs fall under plaintiffs’ “other costs” category. However, the RJA did not support an award for any transcript costs. Indeed, plaintiffs did not acquire transcripts for the purpose of moving for a new trial or for appeal as required by MCL 600.2543(2) (pertaining to recovery for trial transcripts costs). Similarly, plaintiffs did not file with the trial court clerk any deposition transcript that was read into evidence, as required by MCL 600.2549. Morrison v East Lansing, 255 Mich App 505, 522; 660 NW2d 395 (2003). Consequently, the RJA did not permit an award for any transcript costs, including Janiczek’s.
Although Merit Energy also challenges the award for “Category D” costs and fees on this same statutory basis, “Category D” contains no deposition transcript expense; rather, it “refers to any [expert’s] work in preparation for any deposition and. . . attendance at any deposition.” Thus, MCL 600.2549 is inapplicable to the review of the costs awarded for “Category D” expenses.
ii. “OTHER COSTS” UNDER MEPA
Merit Energy’s final contention is that MEPA did not support an award for plaintiffs’ “other costs.” Although subsection 1703(3) of MEPA contains a rather open-ended cost provision stating: “Costs may be apportioned to the parties if the interests of justice require[,]” this Court has held that because “the statutory authority for costs is found at MCL 600.2401 et seg.[,] . . . the costs allowed under MEPA are the same as the costs allowed under the Revised Judicature Act.” Nestlé, supra at 108. Thus, plaintiffs’ attempt to distinguish “taxable costs” under the RJA from “costs” under MEPA is nothing more than a distinction without a difference. Consequently, the trial court erred by awarding transcript costs included in the “other costs” category as those costs were not proper under the RJA.
Additionally, we hold that the trial court erred by awarding the remainder of the “other costs” category —including expenses for copy costs, fax costs, postage, UPS overnight delivery, travel expenses, filing fees, transcripts, Westlaw research, and miscellaneous trial supplies — because these costs amount to no more than attorney fees, which are not awardable under MEPA. Nemeth, supra at 44. While plaintiffs assert that these costs represent expenses broader than attorney fees, this argument fails to take into account that attorney fees encompass more than just “work performed personally by members of the bar.” Allard, supra at 404 (quotation marks and citation omitted). Rather,
[t]he rule allowing an award of attorney fees has traditionally anticipated the allowance of a fee sufficient to cover the office overhead of an attorney together with a reasonable profit. The inclusion of.. . the expenses incurred[] reflects the traditional understanding that attorney fees should be sufficient to recoup at least a portion of overhead costs. Fixed overhead costs include such items as employee wages, rent, equipment rental, and so forth. Thus, until a statute or a court rule specifies otherwise, the attorney fees must take into account the work not only of attorneys, but also of secretaries, messengers, paralegals, and others whose labor contributes to the work product for which an attorney bills a client, and it must also take account of other expenses and profit. [Id. at 404-405 (some emphasis in original omitted; quotation marks and citations omitted).]
Here, the additional costs categorized as “other costs” (with the exception of the transcript costs) constitute nothing more than office overhead and other expenses related to the general practice of law. Thus, these “other costs” are best described as attorney fees, for which MEPA does not expressly provide compensation. In light of this, the trial court abused its discretion by awarding “other costs” under MEPA.
H. CONCLUSION
We reverse the trial court’s June 25, 2007, opinion and final order insofar as it holds that the DEQ’s easement failed to convey riparian rights to Merit Energy, and we hold that the DEQ should have been dismissed from this case. In all other respects we affirm that order. In addition, we reverse the trial court’s order awarding costs and fees insofar as it pertains to the DEQ and to the extent that it awards costs for (1) Janiczek’s transcript under the RJA and (2) “other costs” under MEPA. In all other respects, we affirm that order. No taxable costs pursuant to MCR 7.219, a question of public policy involved.
Merit Energy also considered using infiltration basins (shallow underground basins permitting absorption of treated water into soil) and injection wells (a process by which contaminated groundwater is exchanged with treated water), but rejected these options because complications, including increased plume size, may ensue. In ultimately settling on air stripping, Merit Energy worked closely with the DEQ to find a cost-effective procedure that would satisfy DEQ regulations. The DEQ approved the air stripping, and that decision was at issue in the administrative appeal. See note 6 of this opinion.
Although Merit Energy examined Frenchman’s Creek, Lake Tecon, and the Manistee River as alternative discharge outlets, Merit Energy concluded that Koike Creek was the best option because the others contained access problems and were farther from the plume.
The AuSable River is a designated Blue Ribbon trout stream, and the evidence showed that Koike Creek provides optimal spawning conditions for native brook trout.
Janney Simpson of plaintiff Mayer Family Investments testified that her family has used this water system since 1916, and that she and her family currently use Lynn Lake for fishing, swimming, rowing, kayaking, and canoeing and that they also fish near the inlet of Koike Creek.
Specifically, the water was to he discharged into an underground catch basin where it would bubble up into a riprap and “sheet flow” down into the wetland area.
The director affirmed the hearing referee’s decision, which, upon plaintiffs’ subsequent appeal, the circuit court reversed. Both this Court, and the Supreme Court on reconsideration, denied defendants’ delayed application for leave to appeal the circuit court’s decision. Anglers of the AuSable, Inc v Dep’t of Environmental Quality, 483 Mich 887 (2009); Anglers of the AuSable, Inc v Dep’t of Environmental Quality, unpublished order of the Court of Appeals, entered September 24, 2008 (Docket No. 284315).
While MCL 324.20137(4)(a) through (e) contain several exceptions to this bar on pre-enforcement review, the parties raise no issue regarding these exceptions.
Part 615 defines “[Underground waste,” in part, as: “Unreasonable damage to underground fresh ... waters ... from operations for the . . . handling of oil or gas,” MCL 324.6150l(q)(i)(B), and defines “[s]urface waste,” in part, as: “The unnecessary or excessive surface loss or destruction without beneficial use, however caused, of gas, oil, or other product, but including the loss or destruction... resulting from. . . seepage [or] leakage .. . especially a loss or destruction... from inefficient storage or handling of oil,” MCL 324.61504(q)(ii)(A).
Defendants point out that because the DEQ used the spill clean-up criteria and definition of petroleum in part 201 in its administration of part 615, the corrective action plan constituted a “response activity” under part 201. However, that the DEQ did not require Merit Energy to conduct any interim response activities or feasibility studies as required by regulations promulgated pursuant to part 201 undercuts this point. See MCL 324.20114(l)(h) and Mich Admin Code, R 299.5526(l)(h) and (n). Additionally, defendants contend that the transfer settlement agreement demonstrates that the proposed remediation plan constituted a “response activity.” However, a fair reading of the transfer settlement agreement in context does not support this conclusion. Indeed, the transfer settlement agreement expressly provides: “Both parties agree under part 615, the Agreement set forth herein is necessary to prevent waste, to alleviate pollution, impairment, and the destruction of the State of Michigan’s natural resources.”
Plaintiffs contend that the DEQ was a proper party because the COC gave Merit Energy riparian or property rights to discharge treated water into Koike Creek that would harm the environment. However, the COC merely authorizes the discharge of water and makes no reference to a grant of property rights.
Although both defendants and the trial court cited this Court’s opinion in Little v Kin, 249 Mich App 502, 511; 644 NW2d 375 (2002) (Little I), aff'd 468 Mich 699 (2003), in support of the proposition that “the intent of the plattors should be determined with reference to the language used in connection with the facts and circumstances existing at the time of the grant” to determine the scope of an easement, our Supreme Court expressly rejected this approach, finding it “clearly inconsistent with the well-established principles of legal interpretation ... [and] thus incorrect.” Little II, supra at 700 n 2.
“Land which includes or is bounded by a natural watercourse is defined as riparian.” Thies v Howland, 424 Mich 282, 287-288; 380 NW2d 463 (1985).
Although plaintiffs call attention to Alburger v Philadelphia Electric Co, 112 Pa Commw 441, 445; 535 A2d 729 (1988), that case pertained to a riparian owner’s right to discharge into a stream water not originating from riparian land. In contrast, the water in this case would he discharged into an area feeding a watercourse that originated exclusively on riparian land.
We note that, contrary to defendants’ assertion, Mayer and Forcier, as members of Anglers, had standing as individual plaintiffs. Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 629; 684 NW2d 800 (2004).
Turbidity is a measurement of cloudiness in the water caused by suspended particles.
The characterization of water as a watercourse entitles a riparian owner to reasonable use of that watercourse, but does not permit the riparian owner to pollute the water or to unreasonably increase the flow to the extent that it floods another riparian owner’s property. Kernen supra at 511-512. In contrast, the characterization of water as surface water renders an increase in flow by the owner of an upper estate a trespass because “the owner of a lower or servient estate must receive the surface water from the upper or dominant estate in its natural flow.” Id. at 512 (quotation marks and citation omitted).
Plaintiffs’ assertion that an “unreasonable use per se test” was applicable also fails in light of the Nestle Court’s treatment of that issue: “[I]n the context of riparian rights, prior courts have determined that uses that did not benefit the riparian land were unreasonable per se ... we believe that such a per se rule is incompatible with modern use of the balancing test. Instead, we hold that the location of the use is but one of the factors that should be considered in balancing the relative interests.” Nestlé, supra at 72 n 49.
Subsection 1, MCL 324.1701(1), allows a circuit court to grant declaratory and equitable relief if the plaintiff proves that the defendant has violated MEPA.
Without such a legislative grant of authority, a court disregarding applicable statutory requirements would be acting outside the realm of valid judicial authority. Miller v Riverwood Recreation Ctr, Inc, 215 Mich App 561, 563; 546 NW2d 684 (1996).
That the trial court did not explicitly discuss why part 31 of the NREPA and part 4 of the regulations did not contain pollution control standards is insignificant because the caselaw requires only that the court utilize an “appropriate standard” when deciding the case and fashioning relief, and that standard can be, as in this case, the detailed findings and conclusions made by the court. Nemeth, supra at 35; Ray, supra at 309.
Neither party has cited a statute or regulation that places any limit on the amount of discharge, if any, that is permitted in this situation.
While plaintiffs argue that the abstracts were admissible under MRE 707, that rule pertains to the admissibility of statements in reliable treatises for impeachment purposes on cross-examination and is therefore not applicable here.
Defendants also challenge Hyndman’s failure to apply a standard deviation analysis. However, Hyndman explained that this approach was not proper in evaluating the measurements at issue. Thus, the trial court had discretion to accept or reject Hyndman’s evaluation.
Defendants also contend there was inadequate time to prepare for the introduction of these exhibits since they were not disclosed until the day before trial. However, given that defendants did not begin their case-in-chief until two weeks after exhibit 67 was entered and given that exhibit 135 was entered as rebuttal testimony and applied the same discharge analysis as exhibit 67, we conclude that there was no prejudice.
We note that, contrary to defendants’ assertion, the record reveals that the trial court admitted exhibit TT in its entirety.
Each charge in plaintiffs’ expert invoices is itemized under one of four categories: “Category T” for “Trial Matters,” referring to work done in preparation for trial testimony; “Category D” for “Deposition Matters,” referring to time spent preparing for and attending depositions; “Category C” for “Consultations,” referring to work involving meetings with plaintiffs’ attorneys regarding strategy; and “Category NE’ for “Non Lawsuit” matters, referring to work done on matters before the lawsuit was filed or work done in review of matters not pertaining to the lawsuit.
The DEQ also challenged the award of certain costs and fees. However, its dismissal from this matter renders those challenges moot.
The DEQ raised additional arguments challenging the propriety of awards for “Category D” and “Category T” costs and fees, but since the DEQ should have been dismissed from this case, we decline to address them. See MCR 7.302(G)(4). | [
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Fellows, J.
Plaintiff brought this action to recover for damages occasioned him by reason of the alleged negligence of the defendant, and recovered a substantial judgment. There are no assignments of error on the admission or rejection of testimony. No motion was made for a directed verdict nor was any such request preferred. The case was tried by both parties as a jury case with disputed questions of fact, and defendant preferred two requests on that theory, both of which were given in substance. After verdict defendant filed a motion for a new trial, for the first time claiming that negligence of defendant was not established. He also insisted the verdict was excessive. These are the questions here sought to be reviewed.
If defendant’s counsel conceived that no case had been made against defendant at the close of the proofs, it was their duty to request the court to so charge. Not having preferred any such request or made such a motion, but on the contrary having treated the case as one for the jury and preferred requests on that theory, they can not now complain in this court that the trial judge should have so charged. Kinney v. Folkerts, 84 Mich. 616; Fowles v. Rupert, 143 Mich. 246; Little v. Williams, 107 Mich. 652; Moden v. Sup’ts of Poor of Van Buren Co., 183 Mich. 120; Stuart v. Holt, 166 Mich. 549; Minds v. Keyes, 189 Mich. 629; McCormick v. Hawkins, 169 Mich. 641. Nor can they raise the question for the first time on a motion for a new trial. Colwell v. Alpena Power Co., 178 Mich. 183; Moore v. Royal Oak Lumber & Supply Co., 171 Mich. 400; Mahiat v. Codde, 106 Mich. 387; Ward v. Carey, 200 Mich. 217.
There is an insuperable objection to reviewing the denial of the motion for a new trial. No exception was taken to his order overruling the motion. Under these circumstances, the question is not before us. Section 12635, 3 Comp. Laws 1915; Vezina v. Shermer, 198 Mich. 757; Marsh v. Rogers, 226 Mich. 290; Mahder v. Wax, 192 Mich. 479; Bennett v. Denton, 194 Mich. 610; Hotchkiss v. Weinmann-Matthews Co., 175 Mich. 652; Boland v. Telephone Co., 161 Mich. 315; Groat v. Railway, 153 Mich. 165.
Upon this record we are powerless to do otherwise than affirm the judgment.
Bird, C. J., and Sharpe, Snow, Steere, Wiest, Clark, and McDonald, JJ., concurred. | [
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Sharpe, J.
(dissenting). This is a suit for specific performance of a land contract. The facts-have been stipulated. On February 26, 1938, the Highland Park State Bank as seller entered into an executory contract with plaintiffs for the sale of a house and lot in the city of Detroit for .the sum of $6,250 with a down payment of $937.50 and the balance to be paid in monthly instalments of not. less than $54 including interest with the proviso that the purchase price should be paid in full within 10 years from date.
The contract also provided:
“4 (a) That the bank or its assigns may at any time encumber said land by mortgage or mortgages to secure not more than the balance owing hereon at the time such mortgage is executed nor more than 50 per cent, of the purchase money paid and to be paid under this contract, which mortgage or mortgages shall be a first lien upon the land superior to the rights of the purchaser therein, provided notice of the execution of such mortgage shall be sent to the purchaser. * * *
“ (d) If the title of the bank is now or hereafter encumbered by mortgage, the bank (if the maker of the mortgage) or its assigns shall meet the payments of principal and interest thereon as they mature * * * and in the event proceedings are commenced to recover possession or enforce payment of such mortgage because of the bank’s or its assigns’ default, the purchaser may at any time thereafter while such proceedings are pending encumber said land by mortgage securing such sum as can be obtained upon such terms as may be required and with the proceeds pay and discharge such mortgage * * * and when the sum owing hereon is reduced to the amount owing upon such mortgage or owing to [upon?] any mortgage executed under either of the powers in this contract enjoined, a conveydncé shall be made in the form above provided with a covenant by the grantee to assume and pay the same. * * *
‘ ‘ (h) That the bank at its option may convert this - land contract into a mortgage whenever the principal due hereunder has been reduced in an amount satisfactory to the bank, and the purchaser or any assignee of the purchaser agrees to accept a deed in fulfillment of the contract and to execute a mortgage on the bank’s standard mortgage form for the unpaid balance owing on such contract, payable at the same time or times, and at the same rate of interest provided by said contract, and on like terms and conditions as set forth in said contract.”
On May 29, 1944, the bank assigned its interest in the land contract and conveyed said land to defendant Melvin F. Lanphar & Company; and at the same time, notified plaintiffs to make future payments to that company. On June 9, 1944, the Lanphar company mortgaged the premises to defendant Occidental Life Insurance Company of California for the amount of the unpaid balance of principal and interest which was $2,874.57. The mortgage provided for monthly payments of $54 with interest at the rate of 6 per cent. On the day that the mortgage was executed, defendant Lanphar company executed a quitclaim deed naming plaintiffs as grantees. The deed recited that plaintiffs assumed and agreed to pay the mortgage. Plaintiffs were not consulted in advance regarding the mortgage or the execution and recording of the quitclaim deed and have refused to be bound by the arrangement. On July 14, 1944, plaintiffs tendered to defendant Lanphar company the sum of $2,892.53 in full payment of the principal and interest owing on said contract and requested defendant to execute a deed in accordance with the terms of the land contract.
The trial court entered a decree reciting:
“1. That under the terms of the land contract involved in this cause the plaintiffs have the right and privilege of paying the full amount of the balance owing on said land contract, and that upon receipt thereof the said seller named in said contract and the defendants herein, as assignees of the interest of said seller in said contract, are obligated to convey said premises to said plaintiffs free and clear of all encumbrances.
“2. That under the terms of said land contract any mortgage placed on said premises, in addition to the ordinary mortgage provisions, must also contain a provision that the purchasers under said land contract, the same being the plaintiffs herein, shall have the privilege of paying any balance owing thereon whenever they may desire to so do.
“3. That the mortgage referred to in said bill of complaint is not in accordance with the terms of said land contract to the extent that it does not contain a provision permitting plaintiffs to pay the amount owing thereon at such time as they may desire so to do, and is therefore contrary to the rights of the plaintiffs herein, and to that extent illegal and unenforceable as a mortgage lien against said premises.
“4. That plaintiffs are hereby adjudged and decreed to have the right upon payment to said defendants of the amount owing on said mortgage to receive from defendants a full, complete'and valid discharge of the same. ’ ’
Defendants appeal and urge that plaintiffs, having entered into the land contract, consented to the grantor executing a prior mortgage upon the premises ; that the burden of writing limitations into the consent given in the land contract rests upon plaintiffs; and that their interest is subordinate to the mortgage which meets the limitations expressed in the land contract.
When plaintiffs entered into the land contract, they agreed to make monthly payments of $54 or more. They also agreed that the bank or its assigns could encumber the premises by mortgage to secure not more than the balance owing on the land contract; and that when the amount due on the land contract equalled the amount of the mortgage, the land would be conveyed to the purchasers with a covenant by purchasers to assume the mortgage. In the ease at bar, the mortgage when executed equalled the amount due on the land contract, but did not provide for payments in excess of $54 per month.
In Shapero v. Picard, 235 Mich. 481, we said:
“Consent to mortgage would carry with it the right to make a mortgage in form customarily adopted in conveyancing and universally recognized by the courts as valid.”
In Dirr v. Hitchman, 260 Mich. 179, we said:
“In determining the equitable rights of the respective parties, the court is bound by the specific terms of their contract.”
Plaintiffs and the bank contracted that the bank or its assigns could mortgage the premises to a third person. In the event that the premises were so mortgaged, the only condition of interest in the case at bar was as to the amount of the mortgage. No mention was made as to how and when the mortgage was to be paid. Plaintiffs had it within their power to name further conditions when the land contract was executed. They did not choose to do so. They may not now complain.
The decree of the trial court should be reversed and plaintiffs ’ bill of complaint dismissed, with costs to defendants.
North, J.
In this appeal, which is from a decree in the trial court granting specific performance to plaintiffs, Mr. Justice Sharpe has written for reversal. I am unable to agree with that result.
Plaintiffs purchased the real property involved in this suit on a land contract in which the Highland Park State Bank was the vendor. The contract is lengthy, contains a great variety of provisions for the protection of the vendor and the body of it is printed in comparatively small type. It is a fair inference from the record that this contract was prepared by or at least furnished by the bank. Therefore any uncertainty or ambiguity in the terms of the contra'ct should be most strongly construed against the bank as vendor. In that particular any assignee of the bank’s interest or any mortgagee possessed of a mortgage encumbrance given by the bank or bank’s assignee should be held to be in the same position — i. e., the terms of the contract as against any of such parties should be construed favorably to the contract vendees.
The contract is divided into four subdivisions and the1 fourth subdivision consists of paragraphs designated (a) to (]) inclusive. Decision of the instant appeal turns upon the construction to be given to paragraphs (a) and (h). They read:
“(a) That the bank or its assigns may at any time encumber said land by mortgage or mortgages to secure not more than the balance owing hereon at the time such mortgage is executed nor more than 50 per cent, of the purchase money paid and to be paid under this contract, which mortgage or mortgages shall he a first lien upon the land superior to the rights of the purchaser therein, provided notice of the execution of such mortgage shall be sent to the purchaser by registered mail after execution thereof and the purchaser will on demand execute any instrument demanded of the bank or its assigns reasonably necessary or requisite to execute or confirm the execution of the foregoing power.”
“ (h) That the bank at its option may convert this land contract into a mortgage whenever the principal' due hereunder has been reduced in. an amount satisfactory to the bank and the purchaser or any assignee of the purchaser agrees to accept a deed in fulfillment of the land contract and to execute a mortgage on the bank’s standard mortgage form for the unpaid balance owing on said contract, payable at the same time or times, and at the same rate of interest as provided by said contract, and on like terms and conditions as set forth in said contract.”
These two paragraphs should be construed together and in the light of all the terms of the original land contract, with notice of which as to plaintiffs’ rights thereunder the defendants herein are chargeable. If for no other reason, such notice of plaintiffs’ rights arises from the fact that they have been in possession of the property since the inception of the contract.
The land contract provided $iat the unpaid portion of the purchase price was to be paid as follows: “all of which purchase money and interest shall be paid in instalments of not less than $54 each, payable March 26, 1938, next and not less than the last-named sum monthly thereafter; said payments to be applied first upon interest and the balance on principal. Provided the entire purchase money and interest shall be fully paid within 10 years from the date hereof, anything herein to the contrary notwithstanding.” Under the foregoing provision the purchasers had the right to pay the contract in full at any time a monthly payment fell due. But the mortgage held by the defendant insurance company by its terms is not payable in full within 10 years after the date of the contract; nor under its express terms could plaintiffs pay this mortgage of $2,874.57 with interest at 6 per cent, per annum upon their property at a rate in excess of $54 .per month. In other words by the literal terms of the mortgage plaintiffs were prevented from paying for their property as expeditiously as they had the right to do under the terms of their land contract, of which defendants herein had notice.
Not only should the contract in suit be construed favorably to plaintiffs, for the reason hereinbefore indicated, but the contract should be read as a whole. Both provisions as to the right of the vendor to convert the status of the contract vendor into the status of a mortgagee are in part 4 of the contract. Paragraph (a) of this part 4 of the contract should not be read and construed wholly apart from the other provisions of part 4, particularly the paragraph designated (li). In this latter paragraph it is expressly provided that a mortgage placed on the property by the vendor should be “payable at the same time or times, and at the same rate of interest as provided by said contract, and on like terms and conditions as set forth in said contract.” The Lanphar Company is not only the assignee of the bank as contract vendor, but it is also grantee of the bank’s title; and thereafter the bank could not exercise any right under (h). But the Lanphar Company could and did in effect exercise the rights provided in (h). The mortgage held by the defendant insurance company violates plaintiffs’ rights under the above-quoted portion of the land contract, and the mortgage is also violative of plaintiffs’ rights under the provision of the contract wherein it is stated: ‘ ‘ Provided the entire purchase money and interest shall be fully paid within 10 years from the date hereof, anything herein to the contrary notwithstanding.” The contract was to be paid in full by February, 1948; but the mortgage cannot be paid in full until June, 1949.
The land contract read as a whole clearly gives the vendees the right to pay the purchase price as. expeditiously as they may desire. As noted, they are deprived of that right under the terms of the mortgage. Such a result can be sustained only by lifting out of the contract a limited portion of paragraph (a) of part 4 and disregarding other plain provisions above quoted from paragraph (h) of part 4 of the contract. To so construe the contract would be in violation of the vendees’ rights of which defendants are chargeable with notice. Such a construction of the contract pursued to its logical conclusion would, as the circuit judge pointed out, lead to strange and unjust results such as follows: “If the defendants’ contention is correct, this mortgage could have read at the rate of $25 per month at 7 per cent, interest and to be paid within 10 years or even 25 years, or a mortgage could have been placed payable at the rate of $100 per month at seven per cent, interest, to be paid within 6 months or 30 days.” It would be a strained and unduly harsh construction of the conflicting provisions of this land contract so to hold. The trial court was correct in decreeing that plaintiffs “have the right upon payment to said defendants (defendant life insurance company) of the amount owing on said mortgage to receive from defendants a full, complete and valid discharge of the same.”
It is admitted in the record that on July 14, 1944, plaintiffs tendered to defendant Melvin F. Lanphar & Company $2,892.53 as payment in full of the then unpaid portion of the land contract. No complaint is made because of the tender having been made to the Lanphar Company instead of to the mortgagee, the life insurance company. And by stipulation of counsel it is further admitted: “Thereafter plaintiffs have been ready, filling and able to pay said sura at any time but defendants have refused and continue to refuse to accept such payment or to execute said deed.” We are. not in accord with appellants’ contention. that the trial court erred in holding that the above tender made by plaintiffs was, under the circumstances of this case, sufficient to stop subsequent accrual of interest. In the light of the stipulation it is obvious that it would have been an idle ceremony for plaintiffs to have deposited in court the amount tendered because “defendants have refused and continue to refuse to-accept such payment.” Defendants have no right by refusing payment tendered of the unpaid contract purchase price to compel plaintiffs to continue to pay interest thereon, even though plaintiffs were occupying the purchased premises.
The decree entered in the circuit court is affirmed, with costs to appellees.
Starr, C. J., and Carr, Butzel, Bushnell, Boyles, and Reid, JJ., concurred with North, J. | [
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Fellows, J.
(after stating the facts). We find it necessary to consider but one of the questions involved in the case although the excellent briefs and the fair presentation of the case by all counsel offers a temptation to treat the case in all its aspects. But to sustain the bill plaintiff must succeed upon all his contentions. If he fails in any one of them he can not succeed in the case. As we have reached a conclusion adverse to him on one of the questions involved, we shall only consider that question. Primarily, plaintiff must succeed on the first question; his bill is bottomed on the correctness of his claim of want of authority of the substituted trustee to make the sale, but if that question has been necessarily adjudicated in a court having jurisdiction of the parties and the subject-matter adverse to such claim, then such adjudication is res adjudicaba and he is bound by it whether such decision is right or wrong. We shall, therefore, consider only the question of res adjudicaba.
Before discussing the cases let us restate what was before the probate court. The accounts submitted showed the conversion of the real estate into personal property, and the trustee was charged with such personal property in the inventory submitted and the real estate was said to be the same “except as shown in this account,” making in effect a credit for the real estate sold. In the accounts and petition compensation for making the sale either in the form of commissions or extra compensation was asked. Manifestly, if the sale was a nullity, the trust company was not entitled to a credit in the real estate account, nor should it be charged with the proceeds of a void sale in the account of personal property. It is equally obvious that the trust company was not entitled to compensation for making a sale it had no right or authority to make. Indeed, that was the view of the attorney then représenting plaintiff, and that was the issue then tendered in the probate court. There was, therefore, something before the probate court besides the simple checking over of items of receipts and disbursements.
We shall consider only a portion of the Michigan cases, as we are satisfied they have disposed of the question. Doubtless In re Doyle’s Estate, 147 Mich. 544, goes further to sustain plaintiff’s contention than any other case decided by this court. > It may be that it is not fully in accord with some of our later holdings, but it should be noted that the court then had before it a specific order made by consent and without notice and of which this court there said:
“This was not an adjudication by the court determining who was entitled to this estate and assigning the residue to such persons. It was merely an order settling and allowing the final account of the administrator and ordering his discharge.”
In Shurte v. Fletcher, 111 Mich. 84, the bill was filed to set aside a contract and it was claimed that the decision of the probate court declining administration of the estate of complainant’s deceased father on the ground that the estate had been settled by the parties between themselves was res adjudicaba. But the jurisdiction to set aside the contract was in a court of equity, not the probate court. In declining to hold that the decision of the judge of probate was res adjudicaba, it was said:
“We do not think the claim of res judicaba can be sustained. There was nothing in the pleadings to indicate that the probate judge was called upon to construe the effect of the alleged settlement. The probate court would not have power to decree a specific performance of the agreement made by the parties, if it was a valid one, and they refused to carry it out; neither would it have the power to set aside the agreement and cancel it, if it was invalid.”
Michigan Home Missionary Society v. Corning, 164 Mich. 395, is also relied upon by appellant. Some of the language used in that case was held to be obiber in a case to which we shall presently refer, but it should be noted that it was held (p. 405) that such an order as was before the court, i. e., one requiring a legatee of money to accept anything but money, was a nullity.
Byrne v. Hume, 84 Mich. 185, ,is also relied upon by plaintiff. Language found in that case having reference to the simple allowance of the account of the executor tends to support his contention, but it will be noted that complainant in that case had filed a petition in probate court, the determination of which necessitated a construction of the will; she had not appealed from an adverse decision, and it was said:
“But it is her misfortune that she did not appeal from the order of the probate court. There, a petition was filed setting out, substantially, what is set out in this bill, and the probate court ruled the construction of the will against her. From this decree denying her rights she had not appealed. Under our former ruling, we have settled the doctrine of this State that the probate courts have the jurisdiction in the settle ment of estates to construe wills. Glover v. Reid, 80 Mich. 228, and cases there cited. This jurisdiction is given under How. Stat. § 5964. It is true that the cases cited arose under appeals from probate courts; but the doctrine laid down in those cases clearly recognized the jurisdiction conferred by the statute. The decree of the probate court must therefore be held as determining the construction of the will, and res judicata to the present bill.”
So here plaintiff went into probate court and made the same claim he here asserts. He tendered to that court the issue of the validity of the sale under the ninth clause of the will. To make the order made by the probate court it was necessary to construe that clause adversely to plaintiff’s claim, then and now asserted.
The allowance of the annual accounts of testamentary trustees on notice is made by statute final and binding upon all parties in interest except for fraudulent concealment or fraudulent misrepresentation (3 Comp. Laws 1915, § 14089). See, also, Morton v. Johnston, 124 Mich. 561; Nowland v. Rice’s Estate, 138 Mich. 146.
But, as we have pointed out, there was something more before the probate court than a checking over of thé receipts and disbursements. The right of the trustee to sell real estate without obtaining a license from the probate court was challenged and the determination of the question of whether such right existed was necessary to decision. This claim of right necessitated a construction of the ninth clause of the will. If the language of that clause carried such right to the successor trustee, then no license was required; if not, one was required. One construction of that clause would render the sale valid, another one void. It was, therefore, necessary to construe the will. It is settled beyond peradventure that the probate court has exclusive jurisdiction in the settlement of estates and has the power to construe a will. Among the numerous cases so holding see Tipson v. Jeannot, 204 Mich. 403; Glover v. Reid, 80 Mich. 228; Byrne v. Hume, supra; Calhoun v. Cracknell, 202 Mich. 430. Having the jurisdiction to construe wills, its construction where necessarily involved must be final unless appealed from. In Calhoun v. Cracknell, supra, it was said:
“We therefore agree with the court below that in order to properly declare the succession, the probate court is obviously called upon to construe a will dealing with real, as well as personal estate. Under the statute cited, the probate court is invested with power, and, at the time of the disposition of the estate, has jurisdiction to construe a will and make disposition accordingly; and we are of the opinion that case was properly disposed of upon the ground that judgments of the probate court stand upon the same basis _ as judgments of other courts of record, are conclusive, and become res adjudicata
In Riebow v. Ensch, 220 Mich. 450, it was said by Mr. Justice Wiest, speaking for the court:
“The petition of plaintiff in the probate court squarely raised the question of whether the real estate belonged to the estate, of George Riebow or to the estate of Ernestine Riebow. To determine that question the probate court had to construe the will, and did construe it, and held it gave Ernestine Riebow a life estate only.
“No appeal having been taken from such determination by the plaintiff herein, who was petitioner therein, and the very question here presented having been there determined, such former adjudication barred plaintiff from filing the bill to have the will construed.”
In the recent case of Chapin v. Chapin, 229 Mich. 515, and Thompson v. Thompson, 229 Mich. 526, Mr. Justice Sharpe, who wrote both cases, so fully reviews the power of the probate courts and the application of the doctrine of res adjudicata to their decisions as to leave little if anything more to be said. These cases fully sustain the contention of defendant trust company. The fact that the proceedings in the probate court dragged over several months’ time and the order was not finally entered until after this bill was filed does not affect the question. The probate court acquired jurisdiction months before this bill was filed and the delay in decision did not oust it of jurisdiction.
The decree will be affirmed, with costs.
Bird, C. J., and Sharpe, Steere, Wiest, Clark, and McDonald, JJ., concurred. Snow, J., did not sit. | [
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Per Curiam.
In this action for breach of a no-fault insurance contract and fraud, in which plaintiff, Tammy Johnson, sought payment of personal protection insurance benefits, plaintiff appeals by leave granted the trial court’s order granting partial summary disposition to defendants Wausau Insurance Company and Nationwide Indemnity, Inc. Because the one- year-back rule of MCL 500.3145(1) bars plaintiffs no-fault claim for benefits that accrued before July 20, 2005, and because plaintiff cannot establish the reliance element of her fraud claim, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
On October 5,1983, Nancy Eastman, then 10 months old, suffered severe brain injuries in an automobile accident. Eastman’s parents were unable to care for her after her release from a hospital. Dorothy Bencheck agreed to care for Eastman and subsequently became Eastman’s legal guardian.
Defendant Wausau Insurance Company insured Eastman’s father through a no-fault insurance policy. According to letters from defendant, as a settlement for any claims Eastman may have had against her father, it paid $37,500 to Eastman. The settlement money was placed in a fund under the protection of the probate court. Defendant also agreed to pay Bencheck $20 a day for her care of Eastman.
According to Bencheck, she called defendant “constantly” on “[different occasions, different times” about whether she was entitled to additional benefits for caring for Eastman. She was told, usually by Albert Abdey, a claims adjuster, that defendant had paid everything that it was going to pay to Eastman and that she should petition the probate court to get money from the settlement proceeds. Bencheck testified that defendant never informed her that she was entitled to attendant care benefits that were paid on an hourly basis. In 1989, Bencheck suffered financial difficulty, and after the probate court denied a request for money from Eastman’s settlement proceeds, she was no longer able to care for Eastman.
In April 1990, plaintiff took over the care of Eastman. She received $20 a day from defendant for caring for Eastman. The payment, at some time, increased to $21 a day. When plaintiff inquired about the increase, Abdey replied that it was a cost of living adjustment. There was no testimony from plaintiff that she ever asked Abdey if she was entitled to receive additional benefits for caring for Eastman.
Abdey admitted that he never advised either Bencheck or plaintiff that they were entitled to attendant care benefits based on an hourly rate. He did not believe they were entitled to such benefits because such benefits “make[] it [i.e., caring for the disabled person] a job.” Further, he did not recall Bencheck ever asking him if she was entitled to additional benefits. And, even if she had, Abdey would not have advised her of any benefits because defendant was paying the benefits it had agreed to pay in the settlement.
In the summer of 2006, plaintiff sued defendant for breach of contract. The complaint was later amended to include a claim for fraud or fraudulent misrepresentation. Plaintiff alleged that defendant, despite having knowledge that Eastman required supervision 24 hours a day, never told or advised her that she was entitled to attendant care benefits. Plaintiff also alleged that, when she inquired about whether she was entitled to additional benefits, defendant told her that no additional benefits were availablé to her. Plaintiff alleged that defendant made material representations that were false, made the representations knowing that they were false or made them recklessly without knowledge of the truth, made the representations with the intent that plaintiff would rely on them, and that plaintiff did rely on the representations.
Defendant moved for partial summary disposition under MCR 2.116(C)(8) and (10). Defendant argued that, because plaintiffs cause of action arose out of the no-fault act, MCL 500.3101 et seq., the one-year-back rule of MCL 500.3145(1) barred plaintiffs claim for benefits that accrued before July 20,2005. Defendant further argued that plaintiff had not shown that it had committed any fraud or misrepresentation. In response, plaintiff argued that defendant had made material misrepresentations concerning the benefits available for Eastman’s care because defendant, despite knowing that Eastman required constant supervision, represented to plaintiff and Bencheck that they were not entitled to any benefits beyond the $20 (and later $21) daily payments. The trial court granted the motion for partial summary disposition. Because it concluded that there was no factual issue concerning whether the elements of fraud had been established, the trial court refused to exercise its equitable power to avoid application of the one-year-back rule. It barred plaintiff from recovering any personal protection insurance benefits that were available for the care of Eastman under the no-fault act before July 20, 2005.
Plaintiff moved this Court for leave to appeal the trial court’s order. We granted plaintiffs application. Johnson v Wausau Ins Co, unpublished order of the Court of Appeals, entered June 6, 2008 (Docket No. 281624).
II. ANALYSIS
On appeal, plaintiff maintains that the trial court erred by granting defendant’s motion for partial sum mary disposition because when the submitted documentary evidence is considered in a light most favorable to her, questions of material fact exist regarding whether defendant committed fraud in connection with its failure to provide attendant care benefits to plaintiff and Bencheck for their care of Eastman. In particular, plaintiff argues that Abdey intentionally misrepresented that attendant care benefits based on an hourly rate were not available for the care of Eastman and that plaintiff and Bencheck relied on his representations to their financial detriment, evidenced by the fact that they just accepted the $20 (and later $21) daily payments.
A. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Gillie v Genesee Co Treasurer, 277 Mich App 333, 344; 745 NW2d 137 (2007). Defendant moved for summary disposition under MCR 2.116(C)(8) and (10). The trial court did not specify under which subrule it was granting the motion. Because the parties relied on matters beyond the pleadings, we will treat the motion as being granted under MCR 2.116(C)(10). Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 457; 750 NW2d 615 (2008). A motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Mulcahey v Verhines, 276 Mich App 693, 698; 742 NW2d 393 (2007). The Court must consider all the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted by the parties in a light most favorable to the nonmoving party. Id. at 698-699. Summary disposition is properly granted if the evidence presented establishes that no genuine question of material fact exists and the moving party is entitled to judgment as a matter of law. Id. at 699.
B. APPLICABLE LAW
“Under MCL 500.3107, family members are entitled to reasonable compensation for the services they provide at home to an injured person in need of care.” Bonkowski v Allstate Ins Co, 281 Mich App 154, 164; 761 NW2d 784 (2008). For purposes of this appeal, there appears to be no dispute that plaintiff and Bencheck were entitled to compensation beyond the $20 (and later $21) daily payments for their care of Eastman.
MCL 500.3145(1), the one-year-back rule of the no-fault act, provides in pertinent part:
An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has heen made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivors loss has heen incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. [Emphasis added.]
In Devillers v Auto Club Ins Ass’n, 473 Mich 562, 574, 586; 702 NW2d 539 (2005), the Supreme Court held that the last sentence of MCL 500.3145(1) must be applied as written: a claimant’s recovery for personal protection insurance benefits is limited to losses in curred during the one year that precedes commencement of the action. The Court overruled Lewis v Detroit Automobile Inter-Ins Exch, 426 Mich 93; 393 NW2d 167 (1986), in which the Court had extended the doctrine of judicial tolling to the one-year-back rule, such that the one-year-back limitation was tolled from the time the insured made a specific claim for benefits until the date the claim was formally denied. Devillers, supra at 577, 586. Nonetheless, the Court held that in “unusual circumstances,” i.e., fraud or mutual mistake, a court may invoke its equitable power to avoid application of the one-year-back rule. Id. at 590-591.
The six elements of actionable fraud were set forth in Hi-Way Motor Co v Int’l Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976):
“[T]o constitute actionable fraud, it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery.” [Quoting Candler v Heigho, 208 Mich 115, 121; 175 NW 141 (1919).]
Fraud will not be presumed; it must be proven by “clear, satisfactory and convincing evidence.” Hi-Way Motor Co, supra at 336.
Shortly after this Court granted plaintiffs application for leave to appeal, the Supreme Court, in Cooper v Auto Club Ins Ass’n, 481 Mich 399; 751 NW2d 443 (2008), specifically addressed whether an action for fraud is subject to the one-year-back rule of MCL 500.3145(1). The Court stated:
Because the one-year-back rule only applies to actions brought under the no-fault act, and because a fraud action is not a no-fault action, i.e., an “action for recovery of personal protection insurance benefits payable under [the no-fault act] for accidental bodily injury,” MCL 500.3145(1), but instead is an independent and distinct action for recovery of damages payable under the common law for losses incurred as a result of the insurer’s fraudulent conduct, we hold that a common-law cause of action for fraud is not subject to the one-year-back rule. [Id. at 401 (emphasis added).]
The Court clarified that, because a fraud claim is separate from a no-fault claim, a court does not need to invoke its equitable power in the fraud action to avoid application of the one-year-back rule. Id. at 413. “[T]he no-fault rules simply do not apply” to the fraud claim. Id.
However, the Supreme Court cautioned that, because some insureds may attempt to circumvent the one-year-back rule by asserting a common-law fraud claim against an insurer, “trial courts should exercise special care in assessing these types of fraud claims.” Id. at 413-414. Regarding the reliance element of fraud, the Court stated:
In particular, courts should carefully consider in this context whether insureds can satisfy the reliance factor. Insureds must “show that any reliance on [the insurer’s] representations was reasonable.” Foreman v Foreman, 266 Mich App 132, 141-142; 701 NW2d 167 (2005). Because fraud cannot be “perpetrated upon one who has fiill knowledge to the contrary of a representation,” Montgomery Ward & Co v Williams, 330 Mich 275, 284; 47 NW2d 607 (1951), insureds’ claims that they have reasonably relied on misrepresentations that clearly contradict the terms of their insurance policies must fail. One is presumed to have read the terms of his or her insurance policy, see Van Buren v St Joseph Co Village Fire Ins Co, 28 Mich 398, 408 (1874); therefore, when the insurer has made a statement that clearly conflicts with the terms of the insurance policy, an insured cannot argue that he or she reasonably relied on that statement without questioning it in light of the provisions of the policy. See also McIntyre v Lyon, 325 Mich 167, 174[;] 37 NW2d 903 (1949); Phillips v Smeekens, 50 Mich App 693, 697; 213 NW2d 862 (1973). In addition, insureds will ordinarily be unable to establish the reliance element with regard to misrepresentations made during the claims handling and negotiation process, because during these processes the parties are in an obvious adversarial position and generally deal with each other at arm’s length. See Mayhew v Phoenix Ins Co, 23 Mich 105 (1871) (Where the insured has the same knowledge or means of knowledge as the insurer, the insurer cannot be regarded as occupying any fiduciary relationship that would entitle the insured to rely on the insurer’s representations, and a settlement hastily made with the insurer under such circumstances will not be set aside for fraud. Insureds are bound to inform themselves of their rights before acting, and, if they fail to do so, they themselves are responsible for the loss.); Nieves v Bell Industries, Inc, 204 Mich App 459, 464; 517 NW2d 235 (1994) (“There can be no fraud when a person has the means to determine that a representation is not true.”). However, when the process involves information and facts that are exclusively or primarily within the insurers’ “perceived ‘expertise’ in insurance matters, or facts obtained by the insurer[s] in the course of [their] investigation, and unknown” to the insureds, the insureds can more reasonably argue that they relied on the insurers’ misrepresentations. 14 Couch, Insurance, 3d, § 208:19, p 208-26; see also Crook v Ford, 249 Mich 500, 504-505; 229 NW 587 (1930); French v Ryan, 104 Mich 625, 630; 62 NW 1016 (1895); Tabor v Michigan Mut Life Ins Co, 44 Mich 324, 331; 6 NW 830 (1880). [Id. at 414-416.]
C. APPLICATION OF COOPER
Even assuming that Abdey made a fraudulent misrepresentation when, in response to Bencheck’s inquiries about additional benefits, he told her that additional benefits were not available to her or when, in the absence of such an inquiry, he failed to inform Bencheck and plaintiff that additional benefits were available to them, plaintiff cannot establish that either she or Bencheck relied on the fraudulent misrepresentation. Abdey’s representation did not involve information or facts that were exclusively or primarily in the control of defendant. Rather, Abdey’s misrepresentation concerned what benefits were available to plaintiff and Bencheck for their care of Eastman under the no-fault act. Plaintiff and Bencheck had the means, i.e., consultation with a lawyer, to determine whether Abdey’s representation was true. Indeed, soon after plaintiff learned that additional benefits might be available for her care of Eastman, she consulted a lawyer and the present case was initiated shortly thereafter. Plaintiff does not claim, nor is there even the slightest hint of evidence, that defendant in any way prevented her or Bencheck from determining the truthfulness of Abdey’s representation. Because plaintiff and Bencheck had the means to determine the accuracy of Abdey’s representation, plaintiff is not able to establish that either she or Bencheck relied on Abdey’s representation. Accordingly, plaintiffs claim for fraud fails.
Because plaintiff cannot establish a claim for fraud and because the one-year-back rule bars plaintiffs no-fault claim for benefits that accrued before July 20, 2005, the trial court did not err by granting defendant’s motion for partial summary disposition. We therefore affirm the trial court’s order granting the motion.
Affirmed.
It appears from the record that, at some time after the accident, defendant Nationwide Indemnity took over Wausau Insurance Company. We will collectively refer to Wausau Insurance Company and Nationwide Indemnity as defendant.
Eastman suffered her injuries in the automobile accident because she had not been placed in a child safety seat.
MCL 500.3107(1) (a) provides that personal protection insurance benefits are payable for “ [allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.”
We note that while plaintiff, in her appellate brief, cited Cooper for the proposition that the one-year-back rule does not apply to a fraud claim, plaintiff failed to address the Supreme Court’s cautionary notes regarding the reliance element of fraud. | [
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Per Curiam.
In this action alleging breach of management and partnership agreements between plaintiff and the various defendants, plaintiff appeals as of right, challenging the trial court’s orders granting summary disposition of his breach of contract claim against defendant Ondre Moore under MCR 2.116(C)(10) and granting summary disposition of his unjust enrichment claim against several of the defendants under MCR 2.116(C)(10). We affirm.
This Court reviews de novo a circuit court’s decision with regard to a motion for summary disposition. Trost v Buckstop Lure Co, Inc, 249 Mich App 580, 583; 644 NW2d 54 (2002). A motion brought under MCR 2.116(0(10) tests the factual support for a claim. Lewis v LeGrow, 258 Mich App 175, 192; 670 NW2d 675 (2003). This Court “ ‘must consider the available pleadings, affidavits, depositions, and other documentary evidence in a light most favorable to the nonmoving party and determine whether the moving party was entitled to judgment as a matter of law.’ ” Michigan Ed Employees Mut Ins Co v Turow, 242 Mich App 112, 114-115; 617 NW2d 725 (2000), quoting Unisys Corp v Ins Comm’r, 236 Mich App 686, 689; 601 NW2d 155 (1999).
I. PLAINTIFF’S OBLIGATION TO OBTAIN A LICENSE
Plaintiff argues that the trial court erred by dismissing his breach of contract claim against Moore. We disagree.
The state of Michigan mandates licensing of all personnel agencies pursuant to MCL 339.1003(1), which provides: “A person shall not open, operate, or maintain a personnel agency in this state without first obtaining the appropriate license from the department.”
MCL 339.1019(b) provides:
A personnel agency, or any licensed agent or other agent or employee of a personnel agency shall not do any of the following:
(b) Bring or maintain an action in a court of this state for the collection of compensation for the performance of an act or contract for services as a personnel agency without alleging and proving that the agency and its agent were licensed under this article during the performance of the act or contract.
Under the Occupational Code, MCL 339.101 et seq., there are two types of personnel agencies. A “Type A” personnel agency is
a person who is engaged in the business or profession of serving, assisting, or in any way aiding a client seeking employment or making basic career decisions, who puts a client in direct contact with employers, and who receives a fee from the client for the services rendered or offered to he rendered. [MCL 339.1001(k).]
A “Type B” personnel agency is
a person who is engaged in the business or profession of serving, assisting, or in any way aiding or consulting with a client to make basic career decisions and who receives a fee from the client for the services rendered or offered to be rendered. [MCL 339.1001®.]
The two categories of personnel agencies were created in 1992, as part of a revision of article 10 of the Occupational Code by 1992 PA 253. Before the revision, there were five classes of employment agencies, with varying degrees of regulation. The 1992 revision replaced the five classes with the two categories of “personnel” agencies: (1) Type A agencies, which are employment agencies that place clients in direct contact with employers, and (2) Type B agencies, which are more in the nature of consulting agencies and assist clients in making basic career decisions.
In this case, the management agreement states that plaintiff was to provide Moore with “advice, counsel and guidance in the development of [his] career as an artist in the entertainment and entertainment-related industries” and to advise and counsel Moore on various aspects of his career. Thus, the agreement was one whereby plaintiff agreed to assist Moore in making basic career decisions, and plaintiff was to receive a fee for those services. Accordingly, plaintiff qualifies as a Type B personnel agency, as defined in MCL 339.1001(Z), and was required to be licensed under MCL 339.1003(1).
We disagree with plaintiffs claim that he is exempt from licensure under MCL 339.1003(2)(d), which provides an exemption for the
business of procuring, offering, promising, promoting, or attempting to provide an engagement for an athletic event, a circus, concert, vaudeville, theatrical, or other entertainment, or of giving information as to where an engagement may be procured or provided for an actor, artist, athlete, entertainer, or performer in an athletic event, a circus, vaudeville, theatrical, or other entertainment.
That exemption is not applicable here because plaintiffs contract was not a contract to procure, offer, promise, or promote any engagements for Moore, nor was plaintiff in the business of giving information about where engagements could be procured or provided for Moore. Indeed, the contract provides:
Artist [Moore] acknowledges that Manager [plaintiff] is not an employment agency or theatrical agent, that Manager has not offered or attempted or promised to obtain, seek or procure employment or engagements for Artist, and that manager is not obligated, authorized, licensed or expected to do so.
II. CHOICE OF LAW
In a further attempt to avoid application of article 10, plaintiff relies on ¶ 14 of the contract to argue that it is not governed by Michigan law. Paragraph 14 provides:
Jurisdiction. Notwithstanding any subsequent agreements entered into by Artist, Artist agrees that the validity, construction and effect of this agreement shall be governed by the laws of the State of Georgia.
When determining the applicable law, the expectations of the parties must be balanced with the interests of the states. Martino v Cottman Transmission Systems, Inc, 218 Mich App 54, 60; 554 NW2d 17 (1996). The parties’ choice of law should be applied if the issue is one the parties could have resolved by an express contractual provision. However, there are exceptions. The parties’ choice of law will not be followed if (1) the chosen state has no substantial relationship to the parties or the transaction or (2) there is no reasonable basis for choosing that state’s law. Also, the chosen state’s law will not be applied when it would be contrary to the fundamental policy of a state that has a materially greater interest than the chosen state in the determination of the particular issue and whose law would be applicable in the absence of an effective choice of law by the parties. Id. at 60-61.
Both parties are Michigan residents, and the contract was executed in Michigan. Plaintiff did not offer any evidence showing that Georgia has a substantial relationship to either the parties or the transaction. Moreover, plaintiff filed this case in Michigan, and this case proceeded in Michigan for more than three years before the choice of law issue was ever raised. In response to defendants’ prior motion for partial summary disposition (based in part on the statute of limitations), plaintiff cited Michigan law and at no time claimed that Georgia law governed the parties’ agreement. It was not until more than 3V2 years into litigation, when another motion for summary disposition was filed, that the choice of Georgia law in the parties’ contract was mentioned. Accordingly, the trial court did not err by refusing to apply Georgia law.
For these reasons, the trial court properly dismissed plaintiffs breach of contract claim against Moore because plaintiff was not licensed as a personnel agency. Nor could plaintiff proceed against Moore under an equitable theory, such as unjust enrichment, because doing so would defeat the statutory bar to an action provided by MCL 339.1019(b). See Stokes v Millen Roofing Co, 466 Mich 660, 671-673; 649 NW2d 371 (2002).
III. UNJUST ENRICHMENT
The trial court also properly dismissed plaintiffs unjust enrichment claim against the other members of defendant D-12, Inc. Unjust enrichment requires a plaintiff to prove (1) the receipt of a benefit by the defendant from the plaintiff and (2) an inequity resulting to the plaintiff because of the retention of the benefit by the defendant. Belle Isle Grill Corp v Detroit, 256 Mich App 463, 478; 666 NW2d 271 (2003). If this is established, the law will imply a contract in order to prevent unjust enrichment. Id. However, a contract will be implied only if there is no express contract covering the same subject matter. Id.
There was an express contract in place between plaintiff and D-12 that governed plaintiffs entitlement to compensation for his work as a manager. Accordingly, a contract may not be implied under a theory of unjust enrichment.
Affirmed. | [
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Owens, J.
Plaintiffs appeal as of right the trial court’s order granting defendants’ motion in limine to strike plaintiffs’ expert witness, Dr. Frederick A. Valauri, pursuant to MCL 600.2169(l)(b). We consider this case without oral argument, pursuant to MCR 7.214(E), and affirm.
Issues of statutory construction are reviewed de novo on appeal. Wickens v Oakwood Healthcare Sys, 465 Mich 53, 59; 631 NW2d 686 (2001); Grossman v Brown, 470 Mich 593, 598; 685 NW2d 198 (2004). However, a trial court’s ruling regarding a proposed expert’s qualifications to testify is reviewed for an abuse of discretion. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006); Wolford v Duncan, 279 Mich App 631, 637; 760 NW2d 253 (2008). An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes. Woodard, supra at 557, citing Novi v Robert Adell Children’s Funded Trust, 473 Mich 242, 254; 701 NW2d 144 (2005). When interpreting a statute, the primary goal is to give effect to the Legislature’s intent. Brown v Detroit Mayor, 478 Mich 589, 593; 734 NW2d 514 (2007); Grossman, supra at 598. The language of the statute must first be reviewed. Judicial construction is neither required nor permitted if the statute is unambiguous on its face. It is assumed the Legislature intended the words expressed if the statute is unambiguous. Brown, supra at 593; Grossman, supra at 598. Courts may consult dictionary definitions of terms that are not defined in a statute. Woodard, supra at 561; People v Perkins, 473 Mich 626, 639; 703 NW2d 448 (2005).
Plaintiffs argue that the trial court erred by finding that the language “devoted a majority of his or her professional time” in MCL 600.2169(l)(b) requires a physician to devote more than 50 percent of his or her professional time to the relevant specialty in order to be qualified to testify as an expert witness. Plaintiffs further argue that the 30 to 40 percent of Dr. Valauri’s time that was devoted to hand surgery constituted the majority of his professional time spread among the three different areas in which he practiced (hand surgery, reconstructive surgery of the extremities, and cosmetic surgery) and as such should be sufficient to qualify him to testify for purposes of MCL 600.2169(l)(b). We disagree.
The only issue in this case is whether Dr. Valauri devoted a sufficient amount of time to hand surgery in his practice to qualify as an expert witness under MCL 600.2169, which provides in relevant part as follows:
(1) In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose hehalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.
(b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty. [Emphasis added.]
The “specialty requirement is tied to the occurrence of the alleged malpractice and not unrelated specialties that a defendant physician may hold.” Tate v Detroit Receiving Hosp, 249 Mich App 212, 218; 642 NW2d 346 (2002). In Woodard, the Court quoted the language of MCL 600.2169(l)(b), noting:
Obviously, a specialist can only devote a majority of his professional time to one specialty. Therefore it is clear that § 2169(1) only requires the plaintiffs expert to match one of the defendant physician’s specialties.
... As we explained above, one cannot devote a ‘majority’ of one’s professional time to more than one specialty. [Woodard, supra at 560, 566 (emphasis in original).] [ ]
The plaintiffs expert must have devoted a majority of his or her professional time during the year immediately preceding the date on which the alleged malpractice occurred to practicing or teaching the one most relevant specialty the defendant physician was practicing at the time of the alleged malpractice. Id. See also Reeves v Carson City Hosp (On Remand), 274 Mich App 622, 630; 736 NW2d 284 (2007) (remanding to the trial court to determine whether the plaintiffs expert spent the majority of his time in the active clinical practice of emergency medicine, the instruction of students in the relevant specialty, or as the medical director of emergency services and board member, advisor, and consultant to various entities).
The language in § 2169(l)(b) is unambiguous, and judicial construction is neither required nor permitted. Brown, supra; Grossman, supra. The statute states that the expert must have spent the majority of his or her time the year preceding the alleged malpractice practicing or teaching the specialty the defendant physician was practicing at the time of the alleged malpractice. MCL 600.2169(l)(b). To the extent the word “majority” needs explanation, it is defined as, “the greater part or larger number; more than half of a total.” Webster’s New World Dictionary, 2d College Ed (1980). MCL 600.2169(l)(b), therefore, requires a proposed expert physician to spend greater than 50 percent of his or her professional time practicing the relevant specialty the year before the alleged malpractice. Dr. Valauri testified he spent only 30 to 40 percent of his time in the practice of hand surgery, which, being a plurality rather than a majority of his time, is insufficient to qualify him as an expert for purposes of MCL 600.2169(l)(b).
Given the unambiguous language of the statute and the caselaw on this issue, this panel is constrained to affirm the trial court’s decision. However, we note that this is not a result we think the Legislature intended. Defendant Dr. John M. Markley was board-certified in plastic surgery with an added qualification in hand surgery, as was Dr. Valauri. We believe that this similarity, coupled with the fact that Dr. Valauri spent more than 50 percent of his time in the area of hand surgery and the closely related area of reconstructive surgery of other extremities, should qualify him as an expert in this situation. Nonetheless, we reluctantly hold that the trial court did not abuse its discretion by granting defendants’ motion in limine to strike plaintiffs’ expert witness. Woodard, supra at 557; Wolford, supra at 637.
We further note that although we believe that Dr. Valauri should qualify as an expert, we do not agree with the dissent’s rationale. Using the definition of “majority” advocated by our colleague, an expert could engage in 11 different areas of practice, but because the expert spent 10 percent of his or her time in one area (greater than the amount of time spent in any other) he or she would qualify as an expert in that area. Although admittedly unlikely, this scenario demonstrates that defining “majority” as “an amount that represents the largest percentage of the whole, even if this amount is less than 50 percent,” could result in expert opinions being rendered by underqualified individuals.
Affirmed.
Whitbeck, EJ., concurred.
In his dissent, our esteemed colleague argues that the term “majority” should refer to “an amount that represents the largest percentage of the whole, even if this amount is less than 50 percent.” Let us consider a situation where a doctor spends 40 percent of his time in one area, 40 percent in a second area, and 20 percent in a third. Under our colleague’s definition, this hypothetical doctor would then be in the position of devoting the “majority” of his time to two different specialties. Because the Woodard Court maintained that this is impossible, it is clear that the Woodard Court relied on a definition of “majority” as “an amount that exceeds 50 percent of the total.”
Our colleague contends that Dr. Valauri spent 40 percent of his time in the practice of hand surgery. However, this was not his testimony. If he only spent 30 percent of his time practicing hand surgery, then even by the dissent’s definition of “majority” he still would not have satisfied the requirements of MCL 600.2169(l)(b). | [
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Bushnell, J.
The validity and constitutionality of Act No. 248, Pub. Acts 1943 (Comp. Laws Supp. 1943, §§4685-53, 4685-53a, Stat. Ann. §§9.1543, 9.1543 [1]), is challenged in this appeal. The title of the act is as follows:
“An act to amend section 3 of Act No. 203 of the Public Acts of 1933, entitled, ‘An act to provide for the revocation and suspension of operators’ and chauffeurs’ licenses and registration certificates; to require proof of ability to respond in damages for injuries caused by the operation of motor vehicles; to prescribe the form of and conditions in insurance policies covering such risks; to subject such policies to the approval of the commissioner of insurance; to provide for the payment of judgments in instalments in certain cases so as to meet the requirements of this act; to provide for furnishing by the secretary of State of information relative to the operating records of any person; to authorize the secretary of State to make rules for the administration of this act and to prescribe penalties for the violation of the provisions thereof,’ as last amended by Act No. 216 of the Public Acts of 1939; and to add to said act a new section to stand as section 3a thereof.”
Act No. 203, Pub. Acts 1933 (Comp. Laws Supp. 1940, §§4685-51—4685-69, Stat. Ann. §§9.1541-9.1557), is known as “the Michigan motor vehicle financial responsibility act of 1933.” The only change which the 1943 act made in the 1933 act as amended, so far as section 3 is concerned, is to require satisfaction within 30 days of any judgment involving damages “in excess of $50” instead of “in excess of $300,” as provided in the .original act. No question is raised on this appeal as to the change in section 3.
Section 3a, which was added to the original act, is questioned on the following grounds, (a) that the legislature failed to observe constitutional provisions in the legislative process of its adoption of the added section, and (b) that the added section contravenes various provisions of both State and Federal Constitutions. Appellants argue that the 1943 enactment is void because the legislature (1) failed to publish at length or to re-enact the act revised, and (2) because the amendment embraces more than one object, which is not expressed in its title. Appellants also contend that the act is void because (1) it violates the equal-protection-of-the-laws clauses of both Constitutions, (2) the due-process-of-law clauses, (3) it is contrary to the provisions of the guaranties against self-incrimination, and (4) it infringes upon the right of municipalities to reasonable control of their streets.
Section 3a, in substance, requires every operator or owner of a motor vehicle involved in an accident in which any person is killed or injured, to report in writing to the secretary of State, giving the names and addresses of the owners and operators of all motor vehicles involved, of all persons injured or killed, the date, time and place of the accident, and the name-of any insurance carrier whose policy of insurance was in force and applicable to the liability of the owner or operator. Failure to furnish such report within 10 days constitutes a misdemeanor and sufficient ground for the suspension or revocation of the operator’s license and registration certificate, unless showing of financial responsibility is made. The suspension is to continue until such proof is furnished, unless the injury or death claims are satisfied. The section provides a method for releasing the security and for self-insurance permits to be issued to the owner or operator of 25 or more motor vehicles. It also provides that the report may be examined by any person named therein, or his attorney, and for otherwise withholding the same from public inspection. It states that the provisions of the section shall not be applicable to any motor vehicle, or driver thereof, owned by the State or any agency, municipality or political subdivision thereof.
Plaintiffs Surtman, Pfeiffer, and others, owners and operators of motor vehicles, filed a bill in equity to enjoin defendant Dignan, secretary of State, from enforcing the provisions of section 3a of the act. The trial judge entered a decree denying such relief and dismissed the bill of complaint and an intervening bill, which was filed in the cause. From this decree plaintiffs and interveners have appealed.
The 1943 session of the legislature adopted Joint Rule 15, generally known as the “short-title” rule. It provides, in substance, that, when considering an amendment to an act which had been given a short title, such as the one here involved, the title of a proposed amendment during its passage through both houses is required to contain only the .“short title” of the act proposed to be amended with the chapter, part numbers, and compiler’s section numbers, if any, and the year of compilation. Following the passage of an amendment in the house other than the house of origin, the title is there amended by strihing out the “short title” and inserting in lieu thereof the last full title of the amended act, together with such other corrections and amendments as may be necessary, so that the amended title may be agreed to by the house in which the bill originated.
Such procedure was followed in the enactment of. the amendment to the act in question. Appellants say this is a violation of the Constitution of 1908, art. 5, § 21, which reads in part as follows:
“Sec. 21. No law shall embrace more than one object, which shall be expressed in its title. No law shall be revised, altered or amended by reference to its title only; but the act revised and the section or sections of the act altered or amended shall be reenacted and published at length.”
This constitutional provision expressly refers to the title of an act as enacted, rather than to the title of a bill during its various steps towards enactment. The act in question did not attempt to amend the original act by reference only to the title of that act, but made the change in the original act by reenacting section 3 in its entirety, as amended, and adding a new section 3a in full.
The legislature was not required to re-enact and publish the amended act in full. People v. Shuler, 136 Mich, 161.
We need not repeat the discussion of this proposition as stated in People v. Stimer, 248 Mich. 272 (67 A. L. R. 552), where the court said:
“In so far as the act under consideration revises, alters, or amends Act No. 181, Pub. Acts 1919, it does so in express language, published at length; and in so far as the change or alteration is by implication merely, it does not offend the constitutional provision.”
Under the doctrine of “reasonable construction” enunciated by Mr. Justice Cooley in People, ex rel. Drake, v. Mahaney, 13 Mich. 481, 496, 497, the legislative procedure here involved cannot be said to violate this constitutional provision.
But, say the appellants, the amendment embraces more than one object, which is not expressed in its title. It should be noted that the legislature did not amend the title to the original act, and that title is sufficient to give notice to all concerned of the general object of the act and the interests likely to be affected. The act has but one primary object, i. e., to require financial responsibility on the part of owners and operators of motor vehicles, and the general object of the added section is completely within the object of the original act and is identical therewith. As said in Common Council of Detroit v. Schmid, 128 Mich. 379, 388 (92 Am. St. Rep. 468):
“Whatever might have been incorporated into the original act under the title of such original act may be added by way of amendment under the most general title.”
Consideration of the language of the added section does not show any objects wdiich are foreign to the statement in the title of the original act, and the amendment contains matter which should be ex pected within the body of an act bearing the original title of this act. See Weco Products Co. v. Sam’s Cut Rate, Inc., 296 Mich. 190, 196, and1 authorities therein cited.
A still more recent discussion of this question may be found in Jacobson v. Carlson, 302 Mich. 448, where other authorities are also cited, and the amendment was held to be “equally germane,-auxiliary and incidental” to the general purpose of the act there in question. - ■
Although appellants concede that the legislature might, if it saw fit, provide for compulsory automobile insurance against personal injury or death claims, they nevertheless take the position that the “unreasonable” restrictions imposed upon the operation of motor vehicles on the highways of this State deprive plaintiffs of certain constitutional guaranties. In their argument appellants attempt to distinguish between those owners and operators casually involved in an accident without negligence or culpability and those otherwise involved. They deem this to be a violation of the equal-protection clauses of the Constitutions.
Certain owners and operators are required to file written reports, although the operators of vehicles owned by the public are not required to do so.
The test to be applied is one of “reasonableness. ” The restrictions imposed by the legislature are for the purpose of protecting the life and safety of the traveling public. As pointed out by the trial judge:
“Appalling misuse of the highways by .irresponsible drivers has brought forward the urgent problem of insuring persons injured or the families of persons killed in automobile accidents that the person liable for such loss will be in a position to pay.”
“The fact that a rule of law may in certain instances work a hardship does not violate the due- process-of-law clause of the Constitution, provided it operates without any discrimination and in like manner against all persons of a class.” Peoples Wayne County Bank v. Wolverine Box Co., 250 Mich. 273, 281 (69 A. L. R. 1024).
.We also agree with the following statement of the trial judge:
“Even though it may he said that the classification prescribed by the legislature in this amendment might be discriminatory, it cannot be held to be unconstitutional unless it is constructively unreasonable and held as arbitrary classification. The classification so fixed in this act is by no means capricious or without an adequate determining principle. It was the evident intent of the legislature in enacting this law to secure greater public. safety. ”
The classification is neither arbitrary, capricious nor unreasonable. Naudzius v. Lahr, 253 Mich. 216 (74 A. L. R. 1189, 30 N. C. C. A. 179).
The act in question does not violate the equal-protection and due-process clauses of the State and Federal Constitutions. Nor does it deprive the owner or operator of a motor vehicle of his constitutional guaranty (Const. 1908, art. 2, §16) against self-incrimination by requiring the filing of a report when a vehicle is involved in an accident resulting in the death or injury of any person.
This same question was decided in People v. Thompson, 259 Mich. 109, and decision there is controlling here. The requirements of this act are similar to those found in the uniform motor vehicle act, Act No. 318, Pub. Acts 1927, as amended, and particularly section 30 thereof. 2 Comp. Laws 1929, § 4722, as amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4722, Stat. Ann. 1943 Cum. Supp. § 9.1590).
Appellants charge that the act infringes upon the right of the various municipalities of the State to exercise reasonable control of their streets, as provided in the Constitution of 1908, art. 8, § 28.
The reasonable control of streets reserved to municipalities by the Constitution is mot impaired by legislation which seeks to maintain safety upon the public highways any more than such reasonable control is infringed by requiring motor vehicles operating upon such streets to be licensed by the State. As said in People v. McGraw, 184 Mich. 233, 238:
“In other words, the municipality retains reasonable control of its highways, which is such control as cannot be said to be unreasonable and inconsistent with regulations which have been established, o.r may be established, by the State itself with reference thereto. This construction allows a municipality to recognize local and peculiar conditions and to pass ordinances regulating traffic on its streets, which do not contravene the State laws.”
We have not referred to the various financial responsibility acts enacted by many States. It is sufficient to say that more than 30 of the States have passed such legislation. One nearly in line with the statute in question is that of New Hampshire. Its constitutionality was sustained in Rosenblum v. Griffin, 89 N. H. 314 (197 Atl. 701, 115 A. L. R. 1367). Decision in the Rosenblum Case reached the same result as was reached by this court in People v. Thompson, supra, 123, where the court said:
“In accepting the license from the State, one must also accept all reasonable conditions imposed by the State in granting the license. The State has seen fit to impose as such conditions the various pro visions embodied in section 30. These provisions are not only humanitarian, but obviously contribute to the mutual welfare and safety of all users of the highways.”
The decree dismissing appellants’ and interveners’ bills is affirmed, but without costs, a public question being involved1.
North, 0. J., and Starr, Wiist, Butzel, Sharpe, Boyles, and Beid, JJ., concurred. •
This section of the original act was amended by Act No. 250, Pub. Acts -1935; by Act No. 228, Pub. Acts 1937, wherein the maximum amount of judgment was reduced from $300 to $150; by Act No. 216, Pub. Acts 1939, wherein the maximum amount of judgment was further reduced to $75.—Reporter.
See U. S. Const. Am. 14; Mich, Const. 1908, art. 2, § g 1, 16.—Re-porter. | [
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Potter, J.
Plaintiff, a resident of Detroit, sued defendant, a Michigan corporation, to recover damages in the sum of $50,000 for breach of contract. Plaintiff’s claim is based upon an alleged special contract with defendant corporation by which it agreed to pay him $25,000 to obtain an extension of a lease of premises occupied by it, upon which it did business, which contract plaintiff claims he fully performed, not only obtaining such extension of lease but at the same time a decreased rental. He also included a claimed item of $4,300 of back salary to which he claimed he was entitled by reason of having been employed by defendant at $100 a week for 1932. A motion to dismiss was made and overruled, and plaintiff amended his declaration. Defendant answered and demanded a trial by jury. The case was tried by jury and special questions submitted by the trial court thereto and answered by the jury which found: that defendant’s board of directors in August, 1931, passed a resolution employing plaintiff to secure an extension of its lease from Parker-Webb & Company for which plaintiff was to be paid $25,000; the secretary of the defendant company wrote in longhand and signed such resolution; that no other officer of the corporation signed such resolution; and defendant’s board of directors did not pass a resolution employing plaintiff at $100. a week for the year 1932.
Defendant moved for a new trial which motion was subsequently amended. Defendant also moved to dismiss plaintiff’s declaration and enter judgment for defendant because no contract was proved which satisfied the requirements of the statute of frauds (3 Comp. Laws 1929, §13417). The latter motion the court granted and entered judgment for defendant. Plaintiff prosecutes an appeal in the nature of a writ of error, claiming the trial court erred in setting aside the finding of the jury that defendant passed a resolution employing plaintiff at $25,000 to obtain an extension of its lease from Parker-Webb and Alphonse D. Posselius for 30 years; in setting aside the jury’s finding that a resolution in longhand written and signed by the secretary of defendant company, found by the jury to have been passed and adopted by the board of directors of defendant, was not so passed and adopted; that the trial court had no right to substitute a negative answer to questions specially submitted to and answered in the affirmative by the jury; that after verdict and judgment without reservation under the so-called Empson act (3 Comp. Laws 1929, §§ 14531-14534), the trial court had no authority to set aside the verdict and judgment for plaintiff and enter judgment for defendant; that the trial court could not consider defendant’s requests to charge because they were filed 23 days after the case was submitted to the jury and submitted to plaintiff’s attorney 56 days after the case was tried and submitted to the jury; that the trial court had no right to amend the record after verdict and judgment so as to show questions were reserved which were not reserved on the trial. Although there are 19 errors assigned, grouped as stated above, if there was legally sufficient, competent evidence to sustain the contract of employment and special employment, plaintiff would be entitled to a reversal.
The sole witness testifying to the resolution in writing, claimed to have been signed by the secretary and president of defendant, was plaintiff. He testified he saw such resolution. All of the members of the board of directors of defendant company, including its secretary and president who are claimed to have signed the resolution employing plaintiff, deny the existence of such resolution, deny the subject matter of the resolution was considered at any meeting of the board of directors, and deny any such resolution was ever passed by the board of directors.
Corporations may function only through corporate officers (People, ex rel. Township of La Grange, v. State Treasurer, 24 Mich. 468); and a corporation maybe bound only by corporate action, Finley Shoe & Leather Co. v. Kurtz, 34 Mich. 89. The transactions and acts of a corporation may be proven by entries upon its corporate books, and such entries are considered the best evidence of the acts of a corporation. People, ex rel. Attorney General, v. Oakland County Bank, 1 Doug. 282.
Parol evidence is not sought to be introduced to contradict the record of the corporation. It is sought to be introduced for the purpose of showing facts which plaintiff claims were omitted from the corporate record. Township of Taymouth v. Koehler, 35 Mich. 22. In order to exclude parol evidence of a contract, it must first be settled there is a subsisting written contract between the parties. Kalamazoo Novelty Manfg. Works v. Macalister, 40 Mich. 84.
Where, as here, the immediate issue is whether there is or is not a writing covering the contract, it is not competent to exclude oral testimony bearing upon that issue. Kalamazoo Novelty Manfg. Works v. Macalister, supra. Testimony tending to show there was a resolution in writing passed by the corporation to employ the plaintiff and that he accepted the employment and performed the services for which he claims compensation was therefore competent.
“What is resolved upon at a meeting of a board of directors of a private corporation may be proven by the record of the proceedings of the board, if one is kept and the proceedings entered, but if a record is not kept, or the proceedings are not recorded, parol evidence is admissible to show what was resolved upon, and by what vote it was carried. ’ ’ Ten Eyck v. Railroad Co., 74 Mich. 226 (3 L. R. A. 378, 16 Am. St. Rep. 633).
But that is not all. Plaintiff must show a contract valid and enforceable and not prohibited by the statute of frauds (3 Comp. Laws 1929, § 13417). He seeks to recover upon a contract to pay a commission for acquiring a modification of a lease of real estate or a new lease. The facts are in dispute. In the consideration of the case the testimony must be construed most favorably to the plaintiff. The alleged contract is claimed to have been made with defendant corporation which can act only by its board of directors.
“The directors of a corporation are its agents. The entire management of corporate affairs is com mitted to their charge, upon the trust and confidence that they shall he cared for and managed within the limits of the powers conferred by law upon the corporation, and for the common benefit of the stockholders.” Ten Eyck v. Railroad Co., supra.
The record of the action of the board of directors or governing body of the corporation is the best evidence of corporate action, but here there is no record of corporate action and every one concerned except plaintiff contends there never was any corporate action taken and therefore never any record thereof, but notwithstanding this contention of defendant it is clearly the rule that parol evidence may be given of corporate action taken though a record thereof was omitted from the corporate minutes. What plaintiff claims was omitted from the corporate records is that at a meeting in August, 1931, a resolution was adopted by the board of directors in substance, in the following terms:
“That Ben B. Jacob, be and is hereby authorized to negotiate and procure from Parker-Webb and Alphonse D. Posselius an extension of the present unexpired leases for a period of 30 years — not to exceed 30 years — at an increase of rental 25 per cent, over and ab'ove the present unexpired leases; that when said leases are secured for the Gratiot Central Market Company that Ben B. Jacob be paid $25,000.”
Plaintiff contends the passage of this resolution was sufficient to constitute a corporate contract or at least a memorandum sufficient under the statute of frauds to bind defendant corporation. Plaintiff contends this resolution, though not entered upon the minutes of the corporation, was reduced to longhand by the secretary and signed by the secretary and president. It is- well settled that in the absence of corporate action conferring authority upon the president of a private corporation he is only the presiding officer of the board of directors at their corporate meetings and at the meetings of the stockholders. 10 Cyc. p. 903; 7 R. C. L. p. 450.
“Aside from his position as presiding officer of the board of directors and of the stockholders when convened in general meeting, the president of a corporation has by virtue of his office, merely, no greater power than that of any director. "Whatever authority he has must be expressly conferred on him by statute, charter, or by-law or the board of directors or be implied from express powers granted, usage or custom, or the nature of the company’s business.” 14a C. J. p. 93.
The same rule applies to the powers of the secretary of a corporation. The secretary of a private corporation has no power to enter into contracts and the fact she was a director of the corporation gives her no such authority. Toles v. Duplex Power Car Co., 219 Mich. 466.
"We are unable to find any testimony which indicates that either the president or the secretary of defendant were lawfully authorized to sign the memorandum in question. This memorandum is not sufficient to constitute a contract with the defendant corporation unless it was signed as required by the statute. The plaintiff testifies, however, though it is denied by everyone else concerned, this resolution was signed by the president and by the secretary of the corporation, and hence constitutes a sufficient memorandum within 3 Comp. Laws 1929, § 13417, generally referred to as the statute of frauds. It is not claimed; this resolution was signed in the corporate name; that it was under the seal of the corporation; that it was entered upon the corporate rain utes; that a copy thereof was delivered to plaintiff.It was not a memorandum signed by the party to be charged. While it was not required to be so signed under the statute of frauds, it being sufficient if signed by some person lawfully authorized by the corporation so to sign, proof of authority to sign and bind the corporation is lacldng.
There being no authority apparent or proven to authorize the president and secretary to sign this claimed resolution and bind defendant corporation, we think plaintiff not entitled to recover. The judgment of the trial court is affirmed, with costs.
Nelson Sharpe, C. J., and North, Fead, Wiest, Butzel, Bitshnell, and Edward M. Sharpe, JJ., concurred. | [
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North, J.
This appeal is incident to the foreclosure in chancery of a real estate mortgage. Certain aspects of the litigation have already been adjudicated in this court. See Union Guardian Trust Co. v. Rood, 261 Mich. 188; 265 Mich. 354. The foreclosure sale having been consummated, an order of confirmation was entered. Defendants thereafter made two motions, one to vacate the sale and the other to vacate the order of confirmation. These motions were denied and the defendants have appealed.
One of the reasons urged in support of this appeal is stated by appellants as follows:
“Because the said sale is manifestly inequitable and unfair to these defendants, being a sale for less than the amount of the said decree, interest, charges and costs, notwithstanding the said decree was obtained by vacating a sale to the plaintiff at its request because of its supposed mistake, without fault on the part of the defendant or either of them, at which prior sale the plaintiff had purchased the property at full amount due; and by vacating the sale and purchasing at a greatly reduced price, a personal liability is left against the defendant, John R. Rood, in the sum of $8,918.54, and notwithstanding that the defendants’ equity in the property so sold was appraised by the plaintiff itself at the time the obligation sued on was incurred at $104,000.”
The “prior sale” referred to in the above quotation is the attempted foreclosure sale which in our former decision was held to be wholly void. 261 Mich. 188. ■ The attempted sale passed no title. It bound no one. It was in no way connected with the subsequent foreclosure proceedings instituted in equity or the foreclosure sale ultimately decreed. We are not here concerned with the right or power of the circuit judge to have fixed a minimum sale price in the amount bid by the mortgagee at the void sale. Appellants had notice of the settlement of the decree in the chancery foreclosure and later appealed to this court; but it does not appear from the record, nor is it claimed, that appellants at any time asked the trial court or this court to decree a minimum sale price prior to making the motions involved in this appeal. At the time of presenting these motions to the trial court there was no showing which would have justified the court in refusing confirmation of the sale made, or what amounts to the same thing, setting aside the order of confirmation. In the foreclosure sale the mortgagee bought the property for $33,000. There is no showing that the mortgaged property was sold for less than it was then worth or that more could be obtained on resale. Appellants’ sole claim is that because at an attempted foreclosure sale held 16 months earlier than the present sale the mortgagee had bid a larger amount, it should now be required to renew that bid or the sale be not confirmed. Denial of the motions by the circuit judge is wholly justified by the record.
Appellants cite and rely upon Northwestern Loan & Discount Corp. v. Scully, 256 Mich. 202. That case arose from very different circumstances and is not at all to the point presented by this appeal. Unlike the instant case, in the Scully Case the mortgagor in no way assailed the validity of the statutory foreclosure of the real estate mortgage, nor did he make any claim that the title to all the mortgaged property did not pass by the foreclosure sale. Instead the mortgagee, after the period of redemption had expired, filed a bill of complaint for a second foreclosure on the ground that there was some question as to the validity of the title the mortgagee had obtained by purchasing at the sale under the statutory foreclosure. From a decree dismissing the bill of complaint, plaintiff appealed. Under the circumstances this court in reversing the decree dismissing the bill of complaint and permitting foreclosure in chancery, imposed the condition of granting such relief that a deficiency decree should not be taken. Decision in the Scully Case is not a precedent nor an authority for the relief sought by appellants in the instant case. When a foreclosure sale has been made in accordance with the decree entered, confirmation of such sale is a matter which in a large measure rests in the sound discretion of the trial court. Michigan Trust Co. v. Cody, 264 Mich. 258. In the instant case there is no showing that would justify holding that the trial court did not properly exercise such discretion.
There is no merit to appellants’ contention that the confirmation order should be vacated because it was made “without advance notice to the defendants. ’ ’ Appellants were duly served with a copy of the order of confirmation and notice that it had been filed and entered at a time stated. This was in strict accord with the established practice in this jurisdiction as well as with court rule provisions. See Court Rule No. 45 (1933); Puterbaugh’s Michigan Chancery Practice (3d Ed.), p. 373; Stace’s Michigan Chancery Practice, § 377.
The order of the circuit court from which defendants have appealed is affirmed. Costs to appellee.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, and Edward M. Sharpe, JJ.; concurred. Busi-inell, J., did not sit. | [
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Gleicher, J.
Respondent, Vasko Nestorovski, appeals as of right an Oakland County Probate Court order adopting an arbitrator’s decision invalidating the decedent’s 2001 will, setting aside two deeds signed in 2001 and a power of attorney signed in 2000, and distributing the assets of the decedent’s estate pursuant to the laws of intestate succession. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Vlado Nestorovski, the decedent, was born in Macedonia in 1925. In 1972, Vlado and his wife emigrated to the United States. The Nestorovskis’ two children, respondent and petitioner, Bora Petrovski, are the only interested persons for the purposes of these proceedings.
In April 2001, respondent consulted attorney Rod Sarcevich regarding an estate plan for Vlado. Sarcevich referred respondent to attorney Ronald Ambrose. Ambrose met with respondent and Vlado at his law office. Ambrose later testified that during their meeting, which lasted less then 10 minutes, Vlado spoke only “broken English.” The parties agree that Vlado could not read or understand documents written in English. After Ambrose’s single brief meeting with Vlado and respondent, Ambrose prepared Vlado’s will, which bequeathed all of his property and assets to respondent, with the exception of a $60,000 payment to petitioner. Ambrose also prepared two quitclaim deeds conveying Vlado’s individual ownership of two Michigan properties to respondent, with joint ownership and survivor-ship rights.
On April 25, 2001, Sarcevich brought the will, the deeds, and another power of attorney to the home Vlado shared with respondent and respondent’s family. Vlado signed the documents in the presence of a priest and a neighbor. Sarcevich admitted that he did not speak Serbian and that he made no effort to explain the documents to Vlado. The priest, a certified translator, translated the documents into Serbian for Vlado.
After Vlado’s death, petitioner filed in the Oakland County Probate Court a petition challenging the validity of the will and the two deeds. The petition alleged that respondent unduly influenced Vlado and that Vlado lacked the requisite testamentary capacity because he had suffered from Alzheimer’s disease since 1999. Petitioner sought to have the will and the deeds set aside and requested an award of attorney fees and costs.
The probate court ordered the parties to engage in facilitation of their dispute. On May 20, 2005, the court-appointed facilitator spent six hours with the litigants, but could not achieve a resolution. On September 27, 2005, the day scheduled for trial, the probate court entered a handwritten order prepared by petitioner’s attorney, stating, “This matter is to be scheduled for binding arbitration before a sole arbitrator to be determined by the parties within one week.” The signature of respondent’s attorney appears on the order, next to the word “Approved.” The parties agree that no transcript exists documenting their positions regarding the planned arbitration. Neither party ever filed an objection to arbitration, and neither sought to revoke the agreement before the arbitrator rendered a decision.
The arbitration commenced on November 29, 2005, and extended through three days. The parties presented witnesses and submitted written closing arguments. Patricia Gormely Prince, the parties’ chosen arbitrator, later prepared a detailed “Arbitration Decision and Award,” finding that “Vlado was subject to undue influence and was not competent to make a Will.” Prince similarly concluded that Vlado’s lack of capacity warranted the setting aside of the two quitclaim deeds Vlado signed in April 2001 and a power of attorney that Vlado signed in 2000. Prince also determined that MCL 700.2101 and MCL 700.2103 required that Vlado’s estate be equally divided between petitioner and respondent. Prince recommended that the parties bear “their own attorney fees” and that no fees be charged to Vlado’s estate.
On May 31, 2006, respondent filed in the probate court “Objections to Certain Provisions” of the arbitration decision, which contested only the portions of the ruling involving Vlado’s real property and the power of attorney Vlado signed in 2000. In support of those objections, respondent invoked MCL 600.5005 and McFerren v B & B Investment Group, 233 Mich App 505; 592 NW2d 782 (1999). On the same day, respondent filed a “Supplemental Objection” to the entire arbitration decision and award, insisting that, as reflected by the Michigan Supreme Court’s analysis in In re Meredith Estate, 275 Mich 278; 266 NW 351 (1936), the probate court lacked the authority to refer to arbitration the parties’ estate-based dispute concerning Vlado’s testamentary capacity. The probate court confirmed the arbitrator’s decision “in its entirity [sic],” and this appeal ensued.
II. ANALYSIS
A. THE AGREEMENT TO ARBITRATE
Respondent contends that because the parties did not have a written arbitration agreement, the probate court erred by adopting the arbitrator’s award. Respondent failed to raise this issue in the probate court. “Generally, an issue not raised before and considered by the trial court is not preserved for appellate review.” Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98; 494 NW2d 791 (1992). However, because “the question is one of law and the facts necessary for its resolution have been presented,” we choose to review respondent’s contention. Id. at 98-99.
In a document filed in the probate court entitled “Response to Petition for Entry of Order Upon Breach of Contract,” respondent admitted that the probate court entered a stipulated order for arbitration. This Court has recognized that stipulations are “a type of contract....” Limbach v Oakland Co Bd of Co Rd Comm’rs, 226 Mich App 389, 394; 573 NW2d 336 (1997). “Stipulated orders that are accepted by the trial court are generally construed under the same rules of construction as contracts.” Phillips v Jordan, 241 Mich App 17, 21; 614 NW2d 183 (2000).
The stipulated order involved here unambiguously provides that “[t]his matter is to be scheduled for binding arbitration before a sole arbitrator to be determined by the parties within one week.” Moreover, by voluntarily participating in the arbitration process without objection, respondent waived the issue whether the parties had entered into a valid agreement to arbitrate. American Motorists Ins Co v Llanes, 396 Mich 113, 114; 240 NW2d 203 (1976). “[A] party may not participate in an arbitration and adopt a ‘wait and see’ posture, complaining for the first time only if the ruling on the issue submitted is unfavorable.” Arrow Overall Supply Co v Peloquin Enterprises, 414 Mich 95, 99-100; 323 NW2d 1 (1982). We thus reject as factually and legally unfounded respondent’s claim that the parties lacked a written arbitration agreement.
Respondent next challenges the arbitrator’s ruling as violative of MCL 700.1302, pursuant to which the probate court possesses exclusive jurisdiction over estate-related disputes. We review de novo “a trial court’s determination that an issue is subject to arbitration----” Rooyakker & Sitz, PLLC v Plante & Moran, PLLC, 276 Mich App 146, 152; 742 NW2d 409 (2007).
Respondent’s jurisdictional argument rests primarily on In re Meredith Estate. According to respondent, In re Meredith Estate compels a conclusion that despite the parties’ stipulation to submit their dispute to arbitration, they could not properly agree to “supersede” the probate court’s statutorily vested responsibility to determine Vlado’s testamentary capacity. Respondent therefore suggests that the probate court lacked authority to adopt the arbitrator’s decision. Petitioner concedes that § 1302 invests the probate court with “exclusive legal and equitable jurisdiction” regarding all matters relating to a decedent’s estate, but argues that this jurisdictional exclusivity does not limit the probate court’s power to enforce a common-law arbitration agreement. Petitioner further asserts that MCR 5.143(A) specifically authorizes the probate court to employ methods of alternative dispute resolution and that the jurisdictional limitations deemed critical in In re Meredith Estate no longer apply. Because the parties argue at length concerning the interpretation and application of In re Meredith Estate, we now turn to a careful examination of that decision.
The decedent in In re Meredith Estate executed his will in March 1932, naming the Detroit Trust Company and James O. Murfin as his executors and trustees. In re Meredith Estate, supra at 284. In August 1934, the decedent executed a codicil that named Frederick W. Campbell as an additional executor and trustee, but did not otherwise alter any aspects of the will. Id. After the decedent died in December 1934, Murfin petitioned for the admission of the will to probate, and Campbell petitioned to admit the codicil. Id. at 284-285. At a probate court hearing, Murfin testified that the decedent’s doctors had advised Murfin that the decedent “was mentally incompetent to transact business when” he executed the codicil. Id. at 285. The decedent’s housekeeper expressed her belief that “Mr. Meredith knew what he was doing” when he executed the codicil, and that his doctor had examined him before he executed it. Id.
Campbell and Murfin agreed “in open court to submit the question of the mental competency of the testator to a leading Detroit attorney.” Id. The attorney interviewed witnesses and concluded that the decedent lacked “sufficient testamentary capacity to make and execute the codicil....” Id. The probate court admitted the will to probate, but rejected the codicil. Id. at 286. Campbell appealed, arguing that because the probate of a will or codicil constituted an in rem proceeding, it was not subject to common-law arbitration. Id. at 287.
The Michigan Supreme Court considered whether the executors possessed the authority to submit the question of the testator’s mental capacity to ascertainment by a third party. The Supreme Court commenced its analysis by observing, “The rule is firmly settled in this State that estates of deceased persons may be settled between all those interested competent to con tract without the intervention of the probate court.” Id. at 290. However, the Supreme Court noted, “That question is not here.” Id. Rather, the Supreme Court explained, “The only question is who shall act as executor of his last will and testament which includes the original instrument and any legal codicils thereto duly admitted to probate.” Id. The Supreme Court further demarcated the scope of its analysis as follows: “Assuming there was an agreement between the executors named in the will and the executor named in the codicil, the question is whether they had any power or authority to agree in open court to submit the question of the mental competency of the testator to a third person for determination.” Id. (emphasis added).
The Supreme Court reasoned as follows that the probate court had erred by adopting the arbitrator’s decision:
The statutes contemplate a hearing before the probate court and a determination by the probate court of the testamentary capacity of the testator. Under the statute, notice of the time and place of proving the will and the codicil must be given and this notice is usually given by publication to all persons interested, and the date fixed by such notice is “when all concerned may appear and contest the probate of the will.” No order or rule of court named [the third-party attorney] as the person before whom testimony in relation to the mental competency of the testator was to be taken and the testimony, if any adduced, was not taken before him by deposition. [Id. at 290-291 (citations omitted).]
Manifestly, the Supreme Court premised its decision in In re Meredith Estate on the language of the probate statutes then in existence. The following statements in the opinion underscore our conclusion that in reaching its decision, the Supreme Court in In re Meredith Estate relied exclusively on the provisions of the 1929 Michigan Compiled Laws governing probate proceedings:
The sole authority to pass upon the testamentary capacity of the testator is vested by statute in the probate court....
Parties cannot by agreement supersede the essential regulations made by law for the investigation of causes, and by stipulation set aside the statutory method prescribed for determining the mental capacity of the testator.
The right to contest a will is, in this State, purely statutory and can be exercised only in accordance with and within the limitations prescribed by statute. [Id. at 291-292 (citations omitted; emphasis added).]
The Supreme Court further observed in In re Meredith Estate that “[t]he legatees and beneficiaries under the trusts created by the will are not here” and “[t]here is nothing upon the face of the order which indicates it was an order entered by consent.” Id. at 294, 296. Consequently, the executors and trustees of the decedent’s estate had
no such interest in the estate as to permit them to agree to submit the testamentary capacity of testator to a third person for determination. Their agreement could not bind those who have a pecuniary interest in the estate. No agreement of this kind under any circumstances could bind the estate unless all persons interested therein were parties thereto. [Id. at 294 (emphasis added).]
The Supreme Court in In re Meredith Estate thus held that executors or trustees may not agree to arbitrate the competency of a testator. In obiter dictum, the Supreme Court added:
No stipulation such as here involved can oust the jurisdiction of the probate court, permit the probate judge to abdicate his jurisdiction and power or delegate it to a third person not a judicial officer, and no stipulation can provide for the determination of the status of the codicil in any other manner than that provided by statute. Jurisdiction to determine the competency of the testator may not be conferred by agreement on a third person. [Id. at 297.]
Several conclusions reached by the Supreme Court in In re Meredith Estate derive from its unique facts. The arbitration conducted by the “leading Detroit attorney” proceeded informally, without notice to or involvement of all interested parties or the administration of oaths to witnesses. Id. at 285, 291. Murfin and Campbell neglected to agree in advance whether the arbitration would be binding. Id. at 295. These procedural deficiencies undoubtedly fueled the Supreme Court’s condemnation of the use of arbitration under the circumstances presented in that case. Id. at 295-298.
But the procedures utilized in this case differ markedly from those described in In re Meredith Estate. Here, all interested parties agreed to submit their dispute to binding arbitration. Counsel for the parties entered into a written stipulation for binding arbitration, and the arbitrator held a hearing during which she placed witnesses under oath. These distinctions are highly significant and render In re Meredith Estate inapplicable. However, because of the broad nature of the Michigan Supreme Court’s critical pronouncements regarding the arbitrability of any probate dispute, we must now consider whether the current state of the law in Michigan allows for resolution of probate litigation through binding arbitration.
During the more than 72 years that have elapsed since the Michigan Supreme Court announced its decision in In re Meredith Estate, our Legislature has enacted three substantial revisions of Michigan’s probate laws. When the Supreme Court decided In re Meredith Estate, 3 Comp Laws 1929, Chapter LI, § 15519 et seq., governed the powers and jurisdiction of the probate courts. During that era, our Supreme Court observed that “[p]robate courts have always been regarded as courts for peculiar and limited purposes, which are outside ordinary litigation, and incapable of dealing completely with ordinary rights.” Burgess v Jackson Circuit Judge, 249 Mich 558, 563; 229 NW 481 (1930). In 1939, the Legislature enacted a new probate code. 1939 PA 288. In 1978, the Legislature replaced the 1939 probate code with the Revised Probate Code. 1978 PA 642. Neither the older probate codes nor the Revised Probate Code furnished the probate court with general equitable powers. Van Etten v Manufacturers Nat’l Bank of Detroit, 119 Mich App 277, 282-283, 287; 326 NW2d 479 (1982). However, when the Legislature enacted the Revised Probate Code, it unquestionably expanded the powers of the probate courts by contemporaneously enacting MCL 600.847, which provides as follows:
In the exercise of jurisdiction vested in the probate court by law, the probate court shall have the same powers as the circuit court to hear and determine any matter and make any proper orders to fully effectuate the probate court’s jurisdiction and decisions. [Emphasis added.]
In 1998, our Legislature enacted the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., which took effect in April 2000. EPIC confers on probate courts the “exclusive legal and equitable jurisdiction” of matters that “relate[] to the settlement of a deceased individual’s estate . . ..” MCL 700.1302(a). Section 1303(1) of EPIC provides the following:
In addition to the jurisdiction conferred by section 1302 and other laws, the court has concurrent legal and equitable jurisdiction to do all of the following in regard to an estate of a decedent... :
(a) Determine a property right or interest.
(b) Authorize partition of property.
(c) Authorize or compel specific performance of a contract in a joint or mutual will or of a contract to leave property by will.
In addition to expanding the probate court’s powers, the Legislature crafted EPIC as a user friendly code, with provisions designed to reduce court involvement in trusts and estates. For example, MCL 700.1303(3) states:
The underlying purpose and policy of this section is to simplify the disposition of an action or proceeding involving a decedent’s, a protected individual’s, a ward’s, or a trust estate by consolidating the probate and other related actions or proceedings in the probate court.
The Legislature additionally instructed that all of EPIC
shall be liberally construed and applied to promote its underlying purposes and policies, which include all of the following:
(a) To simplify and clarify the law concerning the affairs of decedents, missing individuals, protected individuals, minors, and legally incapacitated individuals.
(c) To promote a speedy and efficient system for liquidating a decedent’s estate and making distribution to the decedent’s successors. [MCL 700.1201.]
Significant procedural innovations have accompanied the evolution of the probate court’s substantive powers. In 1980, this Court declared that “the general court rules do not apply to the probate court except in those instances where the probate court rules adopt provisions of the general court rules by specific reference.” In re Swanson Estate, 98 Mich App 347, 350; 296 NW2d 256 (1980). The current Michigan Court Rules contrarily provide that “[procedure in probate court is governed by the rules applicable to other civil proceedings, except as modified by the rules in this chapter.” MCR 5.001(A). Thus, the rules of practice in probate courts are now substantially similar to those in the circuit courts.
Along with the Legislature’s modernization of probate practice, Michigan’s courts have witnessed an expansion in the use and judicial approval of alternative dispute resolution (ADR) procedures. In 1999, this Court observed that “[¡judicial approval of arbitration has broadened and strengthened in recent decades.” Rembert v Ryan’s Steak Houses, Inc, 235 Mich App 118, 128; 596 NW2d 208 (1999). “While our legal system may have had only a lukewarm tolerance for arbitration in the past, it now embraces arbitration as an expeditious, inexpensive, and fair means of dispute resolution.” Hetrick v David A Friedman, DPM, PC, 237 Mich App 264, 271; 602 NW2d 603 (1999), disapproved on other grounds in Wold Architects & Engineers v Strat, 474 Mich 223, 232 n 3; 713 NW2d 750 (2006). In contrast with currently prevailing judicial philosophies regarding ADR, “centuries of judicial hostility to arbitration agreements” previously limited their enforcement. Scherk v Alberto-Culver Co, 417 US 506, 510; 94 S Ct 2449; 41 L Ed 2d 270 (1974). The United States Supreme Court observed in Scherk that English courts “traditionally considered irrevocable arbitration agree ments as ‘ousting’ the courts of jurisdiction, and refused to enforce such agreements for this reason.” Id. at n 4.
In In re Meredith Estate, supra at 297, the Supreme Court suggested in obiter dictum that arbitration would divest the probate court of its rightful jurisdiction: “No stipulation such as here involved can oust the jurisdiction of the probate court, permit the probate judge to abdicate his jurisdiction and power or delegate it to a third person . . . .” This Court rejected a similar jurisdictional argument in Rooyakker, supra at 150-152, in which the plaintiffs challenged a circuit court’s enforcement of a contractual agreement containing client solicitation and arbitration clauses. The plaintiffs asserted that because the circuit courts have exclusive jurisdiction of claims under the Michigan Antitrust Reform Act (MARA), MCL 445.771, the circuit court erred by referring to arbitration the question whether the client solicitation clause violated MARA. Rooyakker, supra at 155. This Court concluded that the circuit court did not err, explaining, “Just because the statute provides jurisdiction to the circuit court, it does not follow that it precludes arbitration. If the Legislature intended to exempt all antitrust actions from arbitration, it could have done so.” Id. at 156.
We find the logic of Rooyakker compelling and reject the notion that arbitration divests a court of its rightful statutory jurisdiction. We agree with the Minnesota Supreme Court’s explanation that
there appears never to have been any factual basis for holding that an agreement to arbitrate “ousted” jurisdiction. It has no effect upon the jurisdiction of any court. Arbitration simply removes a controversy from the arena of litigation. It is no more an ouster of judicial jurisdiction than is compromise and settlement or that peculiar offspring of legal ingenuity known as the covenant not to sue. Each disposes of issues without litigation. One no more than the other ousts the courts of jurisdiction. The right to a jury trial, even in a criminal case, may be waived. So, also, may the right to litigate be waived. Such waiver may be the result of contract or unilateral action. [Park Constr Co v Independent School Dist No 32, Carver Co, 209 Minn 182, 186; 296 NW 475 (1941).]
See also Wold Architects & Engineers, supra at 249 (concurring opinion by Corrigan, J.):
[T]he common-law rule allowing unilateral revocation of arbitration agreements is based on the outdated notions that arbitration is an unfavorable means of resolving disputes and that arbitration ousts the courts of their rightful jurisdiction over disputes. The courts are no longer jealous of their jurisdiction, and arbitration is now a favored method of dispute resolution.
We further observe that when the Supreme Court decided In re Meredith Estate, the common law generally supported the use of arbitration in will contests. For example, in two cases predating Meredith, Hoste v Dalton, 137 Mich 522, 523-524; 100 NW 750 (1904), and Sellers v Perry, 191 Mich 619; 158 NW 144 (1916), the Supreme Court upheld agreements removing will challenges from probate court jurisdiction. Reflective of this pro-arbitration attitude in the context of probate disputes is Professor Martin Domke’s note, in his treatise on Commercial Arbitration, that President George Washington “embodied in his Last Will and Testament a reference to arbitration by fair-minded men”; Washington’s will provided, in relevant part, as follows:
“But having endeavored to be plain and explicit in all the Devises — even at the expense of prolixity, perhaps of tautology, I hope, and trust, that no disputes will arise concerning them; but if contrary to expectation the case should be otherwise from the want of legal expression, or the usual technical terms, or because too much or too little has been said on any of the devises to be consonant with law, my will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants, each having the choice of one, and the third by those two — which three men thus chosen shall, unfettered by Law, or legal constructions, declare their sense of the Testator’s intention; and such decision is, to all intents and purposes, to be binding on the Parties as if it had been given in the Supreme Court of the United States.” [1 Domke, Commercial Arbitration (3d ed), § 16.6 p 16-36 (2008 update).]
Despite the Michigan Supreme Court’s rejection of the particular probate arbitration conducted in In re Meredith Estate, other precedent supports the proposition that our Supreme Court has approved of and accepted properly conducted common-law arbitration in probate matters. In Hoste, supra at 523, the widow and children of the deceased “entered into a written agreement by which they settled a pending contest of the will” of the decedent. The arbitration agreement provided, “ Tf any question should hereafter arise between the parties hereto as to the construction and enforcement of this agreement, the same shall be submitted for decision to this court [the agreement was entitled in the circuit court for the county of Wayne] and its decision shall be final.’ ” Id. at 525. The complainants brought suit to enforce the arbitration agreement, and the circuit court entered a decree in their favor. Id. at 523. The defendants contended that the arbitration agreement was invalid because it “ousts the Supreme Court of jurisdiction.” Id. at 526. The Supreme Court rejected this argument, reasoning as follows:
The agreement under consideration does not oust all courts of their jurisdiction. On the contrary, it requires the decision of a court of competent jurisdiction, and the only court of original jurisdiction. It is true that the agreement, by preventing the defeated litigant from reviewing his case in the Supreme Court, ousts that court of its jurisdiction. That agreement is not prohibited by the foregoing authorities. [Id.]
The Supreme Court concluded, “We think on grounds of public policy litigants should be encouraged to accept as final the decisions of courts of original jurisdiction.” Id. at 527.
In light of the Michigan Supreme Court’s analysis in Hoste, we reject respondent’s argument that probate proceedings inherently lack arbitrability. The Supreme Court’s unconditional acceptance and enforcement of the arbitration agreement in Hoste clearly signals that even under the probate laws existing 100 years ago, properly convened and conducted arbitration could resolve a will contest.
Moreover, EPIC has eliminated virtually all the restrictions that applied to probate court powers in 1936, when the Supreme Court decided In re Meredith Estate. The aversion to arbitration articulated in In re Meredith Estate must give way to the substantial changes in the substantive and procedural law governing probate practice, as well as jurisprudential recogni tion of the “desirability of arbitration as an alternative to the complications of litigation.” Scherk, supra at 511 (quotation marks and citation omitted). For example, the current Michigan Court Rules contain several provisions encouraging courts and litigants to utilize ADR. A court rule applicable to the circuit courts, MCR 2.410, addresses ADR procedures in those courts, describing them as “any process designed to resolve a legal dispute in the place of court adjudication,” including settlement conferences, case evaluation, domestic relations mediation, “and other procedures provided by local court rule or ordered on stipulation of the parties.” MCR 2.410(A)(2). In 2001, our Supreme Court adopted a corresponding probate court rule, MCR 5.143(A), which states, “The court may submit to mediation, case evaluation, or other alternative dispute resolution process one or more requests for relief in any contested proceeding. MCR 2.410 applies to the extent feasible.”
In summary, we hold that to the limited extent that In re Meredith Estate barred arbitration of probate disputes, that holding lacks continued viability because it has been superseded by more recent legislative developments and intervening changes in the court rules. Further, the central holding of In re Meredith Estate lacks applicability here, because all interested parties had notice of the contemplated arbitration, agreed that the arbitration would supply a binding resolution regarding Vlado’s testamentary capacity, and actively participated in the arbitration process. Therefore, In re Meredith Estate does not preclude the instant parties from conducting binding common-law arbitration of probate disputes, including the question of testamentary capacity.
B. THE QUITCLAIM DEEDS
Respondent next argues that the arbitrator lacked the authority to render any award regarding the quitclaim deeds, which she set aside on the basis of her finding that “Vlado was subject to undue influence and was not competent to transfer property.” In support of his argument, respondent invokes MCL 600.5005 and McFerren. Petitioner replies that because the parties participated in common-law rather than statutory arbitration, the arbitrator properly considered the distribution of Vlado’s real property. Petitioner further asserts that respondent’s full participation in the arbitration deprived him of the ability to challenge its scope. We review de novo a circuit court’s decision to enforce a statutory arbitration award. Tokar v Albery, 258 Mich App 350, 352; 671 NW2d 139 (2003). The existence of a contract to arbitrate and its enforceability constitute judicial questions that we also consider de novo. Watts v Polaczyk, 242 Mich App 600, 603; 619 NW2d 714 (2000).
In Michigan, a distinction exists between statutory and common-law arbitration. Wold Architects & Engineers, supra at 229. The Michigan arbitration act (MAA), MCL 600.5001 et seq., governs statutory arbitration. For an agreement to qualify for statutory arbitration, it must meet the requirements contained in the statute. Wold Architects & Engineers, supra at 229. The statute, MCL 600.5001(1), applies to the arbitration of existing controversies, and provides as follows:
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.
The arbitration statute “only refers to such agreements as fix upon some designated court in which judgment shall be entered on the award.” McGunn v Hanlin, 29 Mich 476, 480 (1874). “When the parties’ agreement to arbitrate does not comply with the requirements of MCL 600.5001, the parties are said to have agreed to a common-law arbitration.” Wold Architects & Engineers, supra at 231. “[T]he result of a defective statutory arbitration is a common-law arbitration____” Whitaker v Seth E Giem & Assoc, Inc, 85 Mich App 511, 513; 271 NW2d 296 (1978). Because the order submitting the parties’ dispute to arbitration did not provide that a judgment could enter in accordance with the arbitrator’s decision, this case involves common-law arbitration, to which the statutory arbitration procedures do not apply. Beattie v Autostyle Plastics, Inc, 217 Mich App 572, 578; 552 NW2d 181 (1996).
Respondent contends that regardless of whether the arbitration qualified as common-law or statutory, the arbitrator lacked jurisdiction to consider the parties’ interests in Vlado’s real property. Respondent points out that MCL 600.5005 prohibits submitting to arbitration a dispute involving real estate ownership interests. Additionally, respondent asserts that in McFerren, this Court construed MCL 600.5005 as precluding arbitration of all disputes regarding fee ownership interests in real property.
In McFerren, supra at 509-511, this Court held that an arbitrator lacked jurisdiction to decide competing quiet-title claims because of the arbitration prohibition contained in MCL 600.5005:
A submission to arbitration shall not be made respecting the claim of any person to any estate, in fee, or for life, in real estate, except as provided in Act No. 59 of the Public Acts of 1978, as amended, being sections 559.101 to 559.272 of the Michigan Compiled Laws.[ ] However, a claim to an interest for a term of years, or for 1 year or less, in real estate, and controversies respecting the partition of lands between joint tenants or tenants in common, concerning the boundaries of lands, or concerning the admeasurement of dower, may be submitted to arbitration.
However, seven years after this Court decided McFerren, our Supreme Court reemphasized in Wold Architects & Engineers that common-law arbitration continues to exist in Michigan, not having been preempted by statutory arbitration. According to the Supreme Court, statutory and common-law arbitrations “have long coexisted” in our state, and the MAA includes no provisions evidencing a legislative intent to reform the common law. Wold Architects & Engineers, supra at 234. Because “the language of the MAA does not show an intention to abrogate common-law arbitration,” the Supreme Court concluded “that the MAA.. . does not occupy the entire area of arbitration law and does not preempt common-law arbitration in Michigan.” Id. at 234-235. If arbitration agreements do not conform to the MAA, they simply are not enforceable under the MAA. Id. at 231. For example, if parties were to arbitrate a real estate dispute in violation of MCL 600.5005, they could not enforce the award in the circuit court.
If parties wish to conform an agreement to statutory requirements, they must reduce it to writing and include the requirement that a circuit court may enter judgment on the award. “Otherwise, it will be treated as an agreement for common-law arbitration.” Wold Architects & Engineers, supra at 235. Here, the parties failed to conform their arbitration agreement to the statutory requirements. Accordingly, the common-law arbitration they conducted is not subject to the statutory arbitration requirements or prohibitions. Because the common law does not limit the parties’ ability to arbitrate real estate disputes, we reject that MCL 600.5005 precluded arbitration regarding Vlado’s capacity to execute the deeds.
The Supreme Court’s decision in Hoste buttresses our conclusion that MCL 600.5005 does not apply to or restrict a common-law arbitration. The complainants in Hoste were married women. Id. at 524. The MAA then in effect provided, “All persons, except infants and married women, and persons of unsound mind, may, by an instrument in writing, submit to the decision of one or more arbitrators, any controversy existing between them ....” 1897 CL 10924. The defendants argued that the parties’ settlement, achieved through arbitration, did not bind them “because complainants, being married women, were incapable of entering into a contract of arbitration.” Hoste, supra at 524. The Supreme Court rejected this logic, holding, “The arbitration in question was not a statutory arbitration, and therefore the clause in section 10924 of the Compiled Laws of 1897, excepting ‘married women’ from the persons who may enter into a statutory arbitration, has no application.” Hoste, supra at 524.
Here, as in Hoste, the parties conducted a common-law arbitration. Here, as in Hoste, the MAA would have altogether precluded arbitration of the dispute. But because the common law governed the instant parties’ arbitration, and not the statute, the heirs remained free to contractually agree to arbitrate whether Vlado possessed the requisite mental capacity when he signed the two quitclaim deeds in April 2001. Although MCL 600.5005 prohibits the submission of certain real estate disputes to statutory arbitration, we hold on the basis of Wold Architects & Engineers that § 5005 does not eliminate the parties’ ability to arbitrate a real estate dispute under the common law.
C. THE POWER OF ATTORNEY
Respondent next argues that neither the arbitrator nor the probate court possessed the authority to set aside a power of attorney Vlado executed in 2000. The power of attorney permitted a Macedonian attorney to act on Vlado’s behalf with respect to real and personal property Vlado owned in Macedonia. Respondent avers that the probate court lacked jurisdiction to enter an order regarding the Macedonian property or affecting the actions of the foreign attorney.
Respondent premises his argument on quoted material contained in Niemetta v Teakle, 210 Mich 590; 178 NW 37 (1920), specifically its holding that a court lacked power “to make decrees affecting property beyond its jurisdiction.” Id. at 592-593. However, in Niemetta, the Supreme Court upheld an equitable order entered by the Wayne Circuit Court regarding property located in Macomb County, explaining, “In view of the fact that all parties were before the court we see no serious barriers in the way which would prevent the Wayne circuit court from com pelling an equitable adjustment of the matters involved.” Id. at 594.
Contrary to respondent’s contention, the probate court in this case did not assume jurisdiction over the Macedonian property. Rather, the arbitrator merely determined that Vlado had become incompetent by January 1, 2000. In light of the arbitrator’s finding concerning Vlado’s lack of competency, the arbitrator recommended that the probate court set aside the power of attorney Vlado signed in September 2000 and that the foreign property be considered an asset of the probate estate unless it had been transferred before January 1, 2000. We conclude that the probate court correctly determined that it possessed the authority to set aside the power of attorney.
D. THE SCOPE OF THE ARBITRATION
Respondent additionally contends that the arbitrator exceeded the scope of the arbitration agreement by considering whether Vlado lacked testamentary capacity before the date that he executed the will and the deeds. Although respondent failed to raise this issue in the probate court, we nonetheless will address it because the argument involves a legal question and the facts necessary for its resolution appear in the record. Adam, supra at 98-99.
A three-part test applies for ascertaining the arbitrability of a particular issue: “1) is there an arbitration agreement in a contract between the parties; 2) is the disputed issue on its face or arguably within the contract’s arbitration clause; and 3) is the dispute expressly exempted from arbitration by the terms of the contract.” Detroit Automobile Inter-Ins Exch v Reck, 90 Mich App 286, 290; 282 NW2d 292 (1979). This Court has expressed a general disapproval of segregating disputed issues “into categories of ‘arbitrable sheep and judicially-triable goats’.” Id. at 289. “Any doubts about the arbitrability of an issue should be resolved in favor of arbitration.” Huntington Woods v Ajax Paving Industries, Inc (After Remand), 196 Mich App 71, 75; 492 NW2d 463 (1992).
The parties’ stipulation, which constituted their arbitration agreement, described the scope of the contemplated arbitration simply as “[t]his matter.” The “matter” pending before the probate court involved the distribution of Vlado’s entire probate estate, not merely selected assets. Petitioner’s March 2004 petition alleged that “[f]rom 1999 to the time of his death, Vlado Nestorovski did not have the mental capacity, ability, or power to understand the nature, character, effect and extent of his property.” Vlado’s testamentary capacity to execute the power of attorney plainly falls within the broad scope of the matters presented in the case. Respondent’s failure to lodge in the probate court an objection to the arbitrator’s consideration of the power of attorney further suggests that the parties understood this issue to fall within the scope of the parties’ arbitration agreement. Because the basic arbitrability requirements exist in this case, we find that the arbitrator properly considered Vlado’s capacity to execute the 2000 power of attorney.
Respondent lastly complains that the arbitrator exceeded her authority by deciding that both parties should bear their own attorney fees and that none of the fees should be chargeable to the estate. Respondent maintains that MCL 700.3720 requires that the estate pay his attorney fees. According to MCL 700.3720, “[i]f a personal representative or person nominated as personal representative defends or prosecutes a proceeding in good faith, whether successful or not, the personal representative is entitled to receive from the estate necessary expenses and disbursements including reasonable attorney fees incurred.” “[W]here the fiduciary was partially to blame for bringing about unnecessary litigation, the fiduciary rather than the estate should be responsible for the attorney’s fees.” In re Valentino Estate, 128 Mich App 87, 95-96; 339 NW2d 698 (1983). Given the arbitrator’s well-supported finding that respondent exerted undue influence on Vlado, we conclude that MCL 700.3720 does not apply here because respondent did not defend the April 2001 will “in good faith.”
Affirmed.
BORRELLO, J. concurred.
Vlado’s wife, Vesna, died in 1994 and is not an interested party. MCR 5.125(C)(8)(a).
Vlado and Vesna lived with respondent, respondent’s wife, and respondent’s family for 27 years.
In Dean Witter Reynolds, Inc v Byrd, 470 US 213, 219-220; 105 S Ct 1238; 84 L Ed 2d 158 (1985), the Supreme Court again noted “the judiciary’s longstanding refusal to enforce agreements to arbitrate” and Congress’s more recent characterization of this attitude as “ ‘an anachronism of our American law’ ” deriving from “ ‘the jealousy of the English courts for their own jurisdiction Id. at 220 n 6 (citation omitted).
In Sellers, supra at 627, the Supreme Court expressed, “It is, we think, well settled in this State that legatees under a will, and persons having such an interest in the estate as to entitle them to contest the instrument, may make valid agreements to forbear a contest, and such contracts are favored by the law when made in good faith.”
On the same basis, we reject the dissent’s contention that In re Meredith Estate held that testamentary capacity is never arbitrable, or resides “within the exclusive jurisdiction of the probate court.” Post at 204-205. The dissent has elected to entirely ignore Hoste, as well as the plain language in In re Meredith Estate anchoring that opinion to its unique facts and the probate statutes then in existence.
We emphasize that, contrary to the allegations made by the dissent, our holding in this case neither overrules In re Meredith Estate nor disturbs the rule of stare decisis. Post at 205. The facts of the instant case bear no resemblance to those presented in In re Meredith Estate, and neither do the controlling statutory authorities. The doctrine of stare decisis lacks applicability when the Legislature has amended the statutory underpinnings of a Supreme Court decision. See Lamp v Reynolds, 249 Mich App 591, 604; 645 NW2d 311 (2002), and People v Pfaffle, 246 Mich App 282, 303-304; 632 NW2d 162 (2001).
Throughout Wold Architects & Engineers, supra at 235, the Supreme Court referred to statutory arbitration as being governed by the provisions of “MCL 600.5001 et seq.” We thus construe MCL 600.5005, as contained within the MAA.
Those statutes involve condominiums and do not apply here. | [
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Wiest, J.
Defendant is a fraternal organization with a social gathering place in the city of Grand Rapids, where it maintains a bar under license to sell liquors. Saturday evening, June 20,1942, plaintiff, a member, with a few friends, visited the place and were served with beer. About 1: 30 o ’clock, Sunday morning, they had some more beer and- became boisterous' and plaintiff claimed the right to be so served until 2 o ’clock Sunday morning. This led to an altercation. Within a few days thereafter plaintiff presented written charges upon which he. sought discipline of the president of the society and other named members for their interference with his claimed rights on the mentioned occasion. This brought forth countercharges of misconduct by plaintiff and members of his party on the occasion mentioned. The matter came before the trustees and executive officers on July 9, 1942, and the trustees recommended that plaintiff and the society members of his party be penalized according to the constitution, part 12, articles (b) (c). At the regular meeting of the membership of the society on July 14, 1942, the parties interested, including plaintiff, were heard at length upon the subject matter mentioned and, by vote of 66 to 50, plaintiff was disciplined by loss of his voice and vote and right to attend meetings for one year.
Plaintiff brought this action to recover damages for humiliation, shame, disgrace and loss of his membership rights, claiming that the discipline administered was contrary to the procedure estab listed by tbe laws of tbe society. Upon trial of tbe issues without a jury tbe circuit judge held tbe disciplinary procedure employed was void, awarded plaintiff $300 dámages and denied defendant’s motion for a new trial. Defendant reviews by appeal.
Tbe written complaint, dated June 24,1942, signed by plaintiff and three others, stated that Saturday evening, June 20,1942 :
‘ ‘ Our group was of 12 individuals—8 society members and 4 friends. We were enjoying tbe evening when just 1: 30 (Sunday morning) tbe bartender and tbe society’s president started to put out tbe lights. People started to be restless and nervous. It was seen that from an orderly evening signs of dissatisfaction became evident among tbe members. Then former president and now a member of trustees, Friend Stanley Phillips went to ask tbe bartender Warnas and President Lackus not to act as they have because tbe laws permit tbe sale of liquor until 2 a.m., then why make confusion here. But Lackus and A. Warnas did not listen to bis suggestion, and instead started to put out more and more lights and told tbe people to get out. One of our group asked A. Warnas that be bring some drinks. A. Warnas brought tbe drinks, took tbe money and said that these are the last drinks. We said all right, and again tbe lights went out. Then Charles Jakems called Warnas and said ‘You said that this was tbe last drink, then why do you put out tbe lights ? When we drink these we will leave anyway. ’ Then A. Warnas said, ‘If you don’t go you will be thrown out.’ And then President Lackus told tbe waitress to take tbe glasses away from us. Of course, tbe waitress took tbe glasses from our table, which were not empty and cost our member $1.30. Whereupon tbe police was called and also told Frank Zegunas not to let us into tbe ball. June 29th we came to tbe ball and we were stopped, could not get into tbe society ball,
“Honorable society members: This above-mentioned. statement was that evening’s action, which even the accused cannot deny. Therefore, we pray that all you members think about this incident and seriously consider society’s member’s rights. Such action of executives gravely endangers our society.
“Therefore, we demand that those above-mentioned members be punished by the society and that they should return the $1.30 which was taken for the last drinks, and be punished for insulting our wives and our friends.”
The counterversion of the affair, as appears in the testimony at the trial, was that plaintiff and his party were hilarious and very noisy and, upon being requested to quiet down and leave, threw beer bottles at the president and others and were so boisterous that some one called the police. Such version of the affair by the accused was placed before the society by letter. At the next regular meeting of the society the whole subject matter was taken up and plaintiff and others interested were fully heard and, as the ultimate authority in the premises, the members voted the mentioned discipline of plaintiff.
Plaintiff’s complaint brought before the regular meeting of the society the whole subject matter of the beer-drinking incident, inclusive of his conduct and that of the accused, and it was open to the accused, without service of the countercharges, to present fully their version of the affair. The circuit judge was in error in holding otherwise. Plaintiff started the investigation which, necessarily,-involved the whole affair and in a sense was “hoisted by his own petard.” The disciplinary proceeding was carried out and actively participated in by plaintiff under part 12 of the bylaws of the society which provide :
‘ ‘ Transgressions
“1. A member may be investigated and penalized for the following matters: * * *
“2. (b) By loss of voice and vote for not longer
than one year.
“(c) By being forbidden to attend meetings for not longer than one year. ’ ’
Plaintiff now contends that the procedure should have been under part 13, before a “society court.” That part provides:
“Society Court
“There shall exist, for the purpose of hearing claims against the society by members, and charges against members of the society, a society court. The presiding officer of this court shall be the president of this society, and the judicial power shall be vested in the members of the society present at the convening of said court.
“1. A complaint may be made against a member or members by any member or officer, and must be made by a written report to the society officers. The secretary shall send to the member or members against whom a charge is made a copy of the charges, together with a notice that the charges will be read at the next ensuing meeting and a judgment -made. * * *
“After both sides have been heard, the arguments have been made by the complaining member or officer, by the accused member, and by any other members of the society who may care to discuss the matter, a vote shall be taken as to whether or not the member is guilty of the charges, and as to whether' or not he shall be suspended temporarily and permanently. The judgment thus made and rendered is final.”
The provision for hearing claims against the society by members relates to benefits. The society court provision as to charges against members relates to suspension, temporarily or permanently, of members found guilty under charges more serious than calling for mere disciplinary action. In any event, plaintiff, by active participation in the procedure employed, is bound thereby.
The judgment is reversed, without a new trial and with costs of both courts to defendant.
North, C. J., and Stakr, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Wiest, J.
Plaintiff John Kallas owned an automobile and carried a public liability insurance policy, issued by defendant company to the amount of $2,500. He leased the automobile to one Wilson to be used as a taxicab and, February 5, 1939, the automobile, while being so used by Wilson and driven by his employee, ran a red light and struck and injured three young children of Stephen Brown, one of whom died from his injuries two days later. An adjuster of the insurance company investigated the matter and, being of the opinion that the company was liable, opened negotiations with Mr. Brown toward settlement of the company’s liability. The negotiations resulted in payment of $2,250 in full satisfaction of any claims against the company, reserving, however, to Mr. Brown a right of action against Kallas for damages, if any. Mr. Brown, as administrator of the estate of his deceased son, brought action against Mr. Kallas and on October 18, 1940, recovered judgment for $6,400, upon which a body execution was issued against Mr. Kallas, and he was confined in the Wayne county jail for about two weeks. Later Mr. Kallas brought this suit for damages against the insurance company, claiming right to recover the amount of the insurance and have damages for his arrest and imprisonment, claiming he never consented to the adjustment between the insurance company and Mr. Brown and that the insur anee company did not defend Mm as provided in the policy. Upon trial, by jury, plaintiff was awarded the sum of $2,904.56, being the amount of the insurance, with interest and costs of $94, taxed in the Brown action.
In the adjustment with Mr. Brown the insurance company claims it sought to save plaintiff from suit, but Mr. Brown reserved the right to bring suit against plaintiff and the orders of the probate court authorized him to accept the offer of the insurance company.
Mr. Kallas did not appeal from the judgment against Mm in the action brought by Mr. Brown, nor was the public liability insurance amount deducted from the verdict and judgment thereon.
The insurance company, claiming errors in fulings, charge of the court, and denial of judgment non obstante veredicto and for a new trial, appeals.
In the adjustment between the insurance company and Mr. Brown it was considered that it would entail litigation of two years to adjudicate the liability of Mr. Kallas and the company and, therefore, the present worth of $2,500 for that period was fixed at the sum of $2,250.
The trial judge left to the jury the issue of fact as to whether Kallas consented to the adjustment with Mr. Brown and the jury found he did not.
■ Mr. Brown was appointed, by the probate court, guardian for his two injured daughters and administrator of the estate of his deceased son, and as such executed and delivered to defendant herein the following covenant, which was in accord with previous. settlement agreements between defendant and Mr. Brown and in accord with probate court authorization.
“Covenant not to sue”
“For and in consideration of the payment of $1,950 to the estate of Raymond Brown, deceased, by Stephen David Brown, administrator, and the sum of $100 to the estate of Virginia Brown by Stephen David Brown, guardian, and the sum of $200 to the estate of Luella Mae Brown by Stephen David Brown, guardian, receipt of which sums is hereby confessed and acknowledged by each of the said estates and by the administrator and guardian thereof, Stephen David Brown, each of the said estates by the said administrator and guardian, jointly and severally, hereby agree not to sue or attach in law or in equity the Lincoln Mutual Casualty Company, a Michigan corporation, by reason of a certain policy of insurance number 28061 pertaining to an automobile collision which occurred on or about the 5th day of February, A. D. 1939, at or near the intersection of Windemere avenue and Woodward avenue in the city of Highland Park, Michigan.
“It is a further condition that all the above said estates jointly and severally agree through the said administrator and guardian, Stephen David Brown, that should any litigation be instituted by them against the parties said to be responsible for the said collision, namely, John Kallas, Arthur S'chram, and Charles Wilson, jointly or severally, and that thereafter if judgment be obtained against any or all of the last three mentioned, that then this instrument may be filed in any such suit or combination of such suits to operate as a satisfaction of judgment to the extent of $2,500, and to completely satisfy in full any further claims against said policy of insurance and the said Lincoln Mutual Casualty Company.
“Estate of Raymond Brown, deceased,
By (signed) Stephen David Brown, Administrator.
“Estate of Virginia Brown, a minor
By (signed) Stephen David Brown, Guardian.
“Estate of Luella Mae Brown, a minor
By (signed) Stephen David Brown, Guardian.
“Dated: 3/23/39.”
Defendant claims it was led to negotiate the settlement of its insurance liability because satisfied that Mr. Kallas had no defense and Mr. Brown was much in need of money. We notice, however, that the expressed pity for Mr. Brown did not prevent defendant from reducing its liability to the extent of $250.
The insurance policy required the company—“To investigate all accidents and to defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim, covered by this policy, whether groundless or not, for damages suffered or alleged to have been suffered on account of the bodily injuries or death or the damage to or the destruction of property. To pay all costs taxed against the assured in any legal procedure defended by the company in accordance with the foregoing agreement. ’ ’
At the trial of the Brown case an attorney for the insurance company was present but just what activity he exercised is not apparent. Under the insuranee contract it was the obligation of defendant, to save plaintiff harmless to the extent of $2,500, by virtue of Mr. Brown’s covenant that the payment to him could be used to reduce any judgment he might obtain against Mr. Kallas.
When the verdict was rendered and before judgment was entered thereon it was the duty of defendant to inform the court of the provisions. of, the covenant and to ask reduction of $2,500 from the judgment on the verdict. This was not done and the judgment' for $6,400 was entered and still stands against plaintiff, with interest on the full amount accumulating thereon.
Plaintiff has not paid any part of the $6,400 judgment and apparently no part thereof can be collected from him. It is simple justice that the amount of $2,500 be remitted from the $6,400 judgment if that can now be accomplished. Court Kule No. 72, § 1 (g) (1933), enables this court, upon appeal, to “give any judgment and make any order which ought to have been given or made, and make such other and further orders' and grant such relief, whether mentioned in the notice of appeal or not, as the case may require.”
In the Brown case defendant failed to protect itself or the insured by introducing the covenant given by Mr. Brown and thereby reducing Mr. Brown’s judgment against Mr. Kallas by $2,500. Before the covenant of Mr. Brown was executed defendant was jointly liable with plaintiff to the extent of $2,500. This joint but limited liability was by insurance contract and defendant could recognize and settle its liability without consent of plaintiff herein, saving, however, right of action by Mr. Brown, if any, against the other person liable. This is the rule, even as to joint tort-feasors. Act No. 303, § 2, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 14497b, Stat. Ann. 1943 Cum. Supp. §27.1683 [2]).
Under the peculiar situation here disclosed plaintiff is entitled to have the $6,400 judgment in the Brown case reduced by the sum of $2,500, and final decision in the instant case is held in abeyance to give defendant an opportunity by remittitur from, or by proceeding against Mr. Brown, to accomplish such result and operative nunc pro tunc as of the date of the Brown judgment. This matter of grace must be accomplished by defendant within a reasonable time and, if not so done, plaintiff may move the court for vacation of the leave and affirmance of. the judgment in the circuit court, modified, however, by elimination of the item of $94, costs and interest thereon in the Brown case. If the mentioned remittitur or reduction is seasonably filed and certified to this court by the clerk of the circuit court, the judgment will be reversed, but in any event with costs of this court to plaintiff.
North, C. J., and Starr, Btjtzel, Bushnell, Sharpe, Boyles, and Beid, JJ., concurred. | [
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Per Curiam.
See Burch v. Wargo, 1 Mich App 365. Upon leave granted the plaintiff administrator reviews determination by the Court of Appeals that the “Restrictive Indorsement” of the first policy excluded liability of the garnishee for payment of the judgment entered in the principal suit.
The indorsement on its face is free from ambiguity or doubt. The consequential question is whether the insurer and the insured agreed with pertinent effectiveness that “the terms of this indorsement shall remain applicable upon any subsequent renewal or renewals of this policy.” Preliminary to review of this question it is noted (a) that no contention is made that the indorsement was “with drawn” upon “mutual consent” prior to the time plaintiff’s cause against the principal defendant arose, and (b) that plaintiff does not claim — aside from reliance upon presently considered section 520 of the vehicle code — that the carry-over clause of the indorsement was invalid. (For a discussion and citation of authorities concerned generally with this question, see annotation headed “Motor vehicle insurance: exclusionary provision relating to age of operator”; 83 ALR2d 1236.)
The closely analogous principles laid down in Eghotz v. Creech, 365 Mich 527 are fully applicable here. Unless some provision of statute or known rule of public policy has ordained otherwise, the parties were entitled to and did validly contract that the exclusion of coverage, when the designated minor son was driving the insured automobile, would until “withdrawn” carry over and become a part of any identifiable-as-such “renewal or renewals of this policy.”
In Eghotz the question was whether specific provisions appearing in an automobile liability policy, for automatic suspension of coverage for nonpayment of premium, prevailed over claim that section 3020 of the insurance code (CLS 1961, §500.3020 [Stat Ann 1957 Rev §21.13020]) required written notice of cancellation as a condition of such suspension. Holding that they did, the Court provided an appropriate introduction to analysis of our stated question:
“If the provisions of the statute exclude any other method for the cancellation or suspension of a casualty insurance policy, the trial court was in error. If the provisions of the statute do not exclude a time-payment indorsement, then the decision of the trial judge was correct.
“The early Michigan cases laid down the proposition that a policy of insurance is much the same as any other contract. It is a matter of agreement by the parties. The courts will determine what that agreement was and enforce it accordingly.” (p 530)
From this generally settled observation we turn to plaintiff’s reliance upon that part of said section 520 which reads (CLS 1961, §257.520 [Stat Ann 1960 Rev § 9.2220]):
“5. The policy, the written application therefor, if any, and any rider or indorsement which does not conflict with the provisions of this chapter, shall constitute the entire contract between the parties.”
The trouble with plaintiff’s contention is that it is factually misplaced. That, which in section 520 the legislature referred to as “this chapter,” is chapter 5 of the vehicle code of 1949 (Act No 300). The chapter is headed “financial responsibility act.” Its terms applicable to liability insurance refer only to policies furnished pursuant to that chapter; whereas the first and second Wargo policies were contracted for and issued, not by force of any statutorily coerced “proof of financial responsibility” but by the right of free contract limited only by the insurance code of 1956, as amended. To be precise, said section 520 applies only when “proof of financial responsibility for the future” (see heading which immediately precedes sections 511 through 528 of the vehicle code) is statutorily required, a situation not presently before the Court.
The point is governed by the insurance code (CLS 1961, § 500.10Ó et seq. [Stat Ann 1957 Rev § 24.1100 'et seq.)). There, corresponding with Eghots, no provision appears which in any way limited the right of Frankenmuth and Mrs. Wargo to contract as they did by indorsement and agreed carry-over of sncb indorsement. We proceed:
It is significant that the legislature, on at least eight specific occasions appearing in the insurance code, chose to require an “entire contract between the parties” clause. Such specific occasions were section 2226 (life insurance); section 3407 (disability insurance); section 3608 (group disability insurance) ; section 3640 (blanket disability insurance); sections 4004 and 4014 (life and annuity contracts); section 4210 (industrial life insurance) and section 4434 (group life insurance). But when the reader comes to chapter 30 of the code (CLS 1961, § 500.3004 et seq. [Stat Ann 1957 Rev § 24.13004 et seq.]), dealing with casualty insurance contracts, he finds no such requirement. This is a clear instance then, for application of the rule exclusion. As in Eghots, Mrs. Wargo and the insurer were left by the insurance code free to contract as was done by the quoted restrictive indorsement. That contract is not shown as having been contrary to Michigan’s public policy as same stood prior to the legislative session of 1965.
Having decided that the indorsement was valid as against plaintiff’s reliance upon the quoted portion of said section 520, an important feature of the stated question remains for answer. The garnishee asserted and the trial judge denied that the second policy was a “renewal” within meaning and purpose of the aforesaid indorsement. The issue thus recorded has prompted a series of questions which, through our clerk, were propounded for answer by counsel shortly after oral argument of the case. The questions:
“(a) What proof by affidavit or document was before the trial judge on the basis of which it may be ruled summarily that the second policy was (or was not) a ‘subsequent renewal’ of the first policy?
“(b) May the Court safely assume that Mrs. Wargo did not apply in writing for the second policy? If there was such an application, would it not likely disclose that the policy to be issued would (or would not) constitute a ‘subsequent renewal’ within contemplation of the indorsement?
“(c) Is it claimed by the insurer that the words ‘restrictive indorsement,’ typed as they are into the second policy, are sufficient to render the second policy a ‘subsequent renewal’ of the first policy?
“(d) Generally, what of present record will justify present determination that the second policy was (or was not) a ‘subsequent renewal’?
“(e) Finally, do counsel agree that the foregoing questions are ready for determination on the record made before Judge Moore, pursuant to GCft 1963, 117? (Note in such connection Mr. Girard’s repeated contention that the record presents fact issues, 35a, 38a, 47a).”
The respective answers of counsel are agreeable in one respect, that is, they have stipulated that there are “no material issues of fact to be determined.” The result is that the case is due now for summary judgment upon a record presenting three conclusions of controlling force.
The first is that the garnishee was shown by plaintiff’s motion for summary judgment as having been prima facie liable for payment of the judgment entered in the principal suit. This follows since the second policy contains no relevant restriction of liability and no words indicative of intent that the second policy was or would constitute a “renewal” of the first.
The second is that the garnishee bore and yet bears the burden of establishing its affirmative defense ; that of no liability on account of legal effectiveness — as against plaintiff’s judgment in the principal suit — of the restrictive indorsement.
The third is that the garnishee has failed to establish, or to offer proof of the fact, that the second policy was a “renewal” of the first policy.
To conclude: There being no application by Mrs. Wargo for the second policy, in writing or otherwise so far as we are advised, and no words in the second policy showing or tending to show that it was a “renewal” of the first rather than a new and distinct policy, and the terms of coverage and amount of aggregate premium as between the two policies being somewhat variant, we are obliged to hold that the garnishee has failed to meet plaintiff’s motion for summary judgment with proof by affidavit of fact or produced document that the second policy was a “renewal” of the first.
The result effected by the record made in circuit, supplemented by the aforesaid declarations of counsel that there are no issues of fact to be determined, is the same as if the issue had gone to trial upon that record with neither party submitting proof over and above the affidavits for and against summary judgment. The case having reached this Court in that agreed posture, we accept the record accordingly and determine for foregoing reasons that the garnishee bas failed to sustain the defense it has asserted and ■ that the circuit judge was right in-entering judgment against the garnishee.
The judgment of the Court of Appeals is reversed. That court will enter a judgment affirming the judgment of the circuit court. Costs of all courts to plaintiff.
T. M. Kavanagh, C. J., and Dethmers, Kelly, Black, Souris, Smith, O’Hara, and Adams, JJ., concurred.
We shall refer to the poliey expiring June 4, 1962, as the “first poliey.” The poliey in effect when plaintiff’s cause accrued will be identified as the “second policy.” The cause accrued October 23, 1962.
For convenience of the reader the critical wording of the indorsement, which indorsement was signed by the insured, countersigned by the insurer and added to the first poliey a little over a month after its date, is requoted here:
“Restrictive Indorsement Effective Date January 15, 1962
In consideration of the premium set forth in the declaration attached hereto it is expressly agreed between the company and the insured that the company shall not be liable for any loss or damage under any of the various clauses of this poliey if the insured automobile is involved in any accident or occurrence arising out of the operation or control of said vehicle by
TOM AMOS WARGO
Also, the undersigned assured herewith agrees that the terms of this indorsement shall remain applicable upon any subsequent renewal or renewals of this policy. This indorsement, however, may be withdrawn from sueh subsequently renewed policies upon mutual consent of both the insured and the company.”
The quoted provision appeared in the original financial responsibility act as PA 1933, No 203, § 14 second subd (b). It was enaeted intaet as a part of said - chapter 5. The only exception was the substitution- of “chapter” for “act.”
For diseussion of tlie rule and applicability thereof, see Sebewaing Industries, Inc., v. Village of Sebewaing, 337 Mich 530, 544-548.
We do not intimate either way that the aggregate effeet of PA 1965, No 198 (CL 1948, § 257.1101 et seq. [Stat Ann 1965 Cum Supp § 9.2801 et seg.]) ; PA 1965, No 388, amending CLS 1961, § 500-.3010 (Stat Ann 1968 Cum Supp § 24.13010); and PA 1965, No 389, amending CL 1948, §§ 257.1103, 257.1106, 257.1107, 257.1112, 257.1113, 257.1119, 257.1122, 257.1123 (Stat Ann 1966 Current Material, p 6, §§ 9.2803, 9.2806, and Stat Ann 1968 Cum Supp §§ 9.2807, 9.2812, 9.28Í3, 9.2819, 9.2822, 9.2823), may have changed sueh policy. That question is for another ease,
The praetiee called for by GCR 1963, 738 was not pursued below. After fifing of the garnishee’s disclosure, wherein liability was denied, no interrogatories were served and no demand for oral examination of the garnishee was made. Instead, summary judgment was sought immediately under GGR 1963, 117. | [
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Per Curiam.
This is an application for writ of habeas corpus.
Petitioner alleges that he is imprisoned by the United States marshal for the western district of Michigan, and the sheriff of the county of Berrien, on a capias ad satisfaciendum, issued by the United States district court for the western district of Michigan. He avers errors in the judgment upon which the capias issued, and asserts that the Federal court erroneously assumed jurisdiction of the suit and of his person. He appeared specially in the case and moved to quash the summons and attacked the jurisdiction of the court and, upon denial of his motion, entered no further appearance and judgment was taken against him by default.
The application is so out of the ordinary that, in denying the writ, we file this memorandum.
Petitioner invokes the power of this court to issue writs of habeas corpus. Several sections of the statute, as well as authority we shall mention, bars issuance of the writ.
Section 15207, 3 Comp. Laws 1929, known as section 8 of the habeas corpus act, provides:
“The following persons shall not be entitled to prosecute such writ:
“1. Persons committed or detained by virtue of any process issued by any court of the United States, or any judge thereof, in cases where such courts or judges have exclusive jurisdiction under the laws of the United States, or shall have acquired exclusive jurisdiction by the commencement of suits in such courts.”
Section 15210 provides:
‘ ‘ The petition must state in substance: * * *
“2. That such person is not committed or detained by virtue of any process, judgment, decree or execution specified in the preceding eighth section. ’ ’
Section 15211 provides:
“Any court or officer empowered to grant any writ applied for under this chapter, to whom such petition shall be presented, shall grant such writ without delay, unless it shall appear from the petition itself, or from the documents annexed, that the party applying therefor is, by the provisions of this chapter, prohibited from prosecuting such writ.”
Section 15229 provides:
“But no court or officer, on the return of any habeas corpus or certiorari issued under this chapter, shall have power to inquire into the legality or justice of any process, judgment, decree or execution, specified in the preceding eighth section of this chapter.”
Controverted matters of law and fact were for determination of the Federal district court and cannot be impeached and examined collaterally by this court.
We have repeatedly held that habeas corpus may not be employed to serve in any instance where review could and should have been had by writ of error or certiorari. See In re Joseph, 206 Mich. 659.
The writ petitioner here seeks would bring to reexamination collateral questions of fact and law presented to and adjudicated by the Federal district court. Petitioner is within the dominion and exclusive jurisdiction of the United States court.
As said in Abelman v. Booth and United States v. Booth, 21 How. (62 U. S.), 506, 523:
“If he is wrongfully imprisoned, their judicial tribunals can release him and afford him redress. And although, as we have said, it is the duty of the marshal, or other person holding him, to make known, by a proper return, the authority under which, he detains him, it is at the same time imperatively his duty to obey the process of the United States, to hold" the prisoner in custody under it, and to refuse obedience to the mandate or process of any other government. And consequently it is his duty not to take the prisoner, nor suffer him to be taken, before a State judge or court upon a habeas corpus issued under State authority. No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or to require him to be brought before them.”
To like effect see Tarble’s Case, 13 Wall. (80 U. S.) 397; Rodman v. Pothier, 264 U. S. 399 (44 Sup. Ct. 360); In re Spangler, 11 Mich. 298.
In Tarble’s Case the chief justice dissented and stated:
“I have no doubt of the right of a State court to inquire into the jurisdiction of a Federal court upon habeas corpus, and to discharge when satisfied that the petitioner for the writ is restrained of liberty by the sentence of a court without jurisdiction.”
This emphasized the holding in that case.
In Williamson’s Case, 26 Pa. 9 (67 Am. Dec. 374), it was contended that the whole proceeding in the district court of the United States was coram non judice, null and void.
Mr. Justice Lowrie, in concurring in refusing the writ, stated:
“Is it meant to say that we must, on habeas corpus, inquire whether a court, legitimately established, has rightly decided the question of its jurisdiction. # * * If it is well founded, then it applies to all sorts of cases; for the question of jurisdiction is involved in them all; every judgment rendered is an assertion of the jurisdiction of the court that renders it. If the allegation of want of jurisdiction entitles us to review it, then there are but few cases in tfie Federal courts that are beyond the interference of the State courts, if a defendant desires to have it. ’ ’
The whole of that case can be read with profit.
The petition states no case for issuance of the writ of habeas corpus. The statutes of this State and holdings of this court and of the United States supreme court forbid the writ in this instance.
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Adams, J.
At about 2 a.m., November 23, 1963, Alfred Sanders was driven by Ms brother, Lester Sanders, to the house of Lawrence Liggett. Alfred Sanders knocked several times on Liggett’s door and awakened him. After a discussion, Liggett dressed and drove his car to Harper avenue, followed by the two Sanders. They drove to the vicinity of Ray’s Radio Clinic. Alfred Sanders broke into the TV shop and took two TVs. He was apprehended by Officers Clark and Stank as he was seen crossing Harper approximately 30 feet from the TV shop. Officers Kelly and Knaus were cruising west on Harper. Kelly observed two men run out of the areaway to the TV shop and Knaus noticed that the door was busted. Kelly chased Liggett on foot up to an expressway fence where he apprehended him. Knaus pursued the Sanders’ car and several blocks away apprehended Lester Sanders. Alfred Sanders and Lawrence Liggett were charged with breaking and entering in the nighttime. No charge was placed against Lester Sanders.
Alfred Sanders and Lawrence Liggett were tried together. During the selection of the jury, the judge made this statement:
“It is the claim of the people that the owner closed his place of business around 8 at night. At about 3 in the morning, the two patrolmen saw defendant Alfred Sanders carrying two Admiral television sets in the neighborhood. That they arrested him and claimed that he admitted breaking into the TV store. Later on, about this time, a Sergeant Kelly and another patrolman observed the two men running. They took after them. The sergeant arrested the defendant. I gv,ess it was one or the other, but they were arrested in the neighborhood.
“The car belonging to one of the defendants, was parked in the neighborhood and one of the defend ants had the two television sets. An investigation disclosed a window had been broken and entrance had been gained. That is in substance the theory of the people.” (Emphasis supplied.)
The judge cautioned the jury that he was merely telling it the theory of the people’s case. However, it will be seen that the judge did not distinguish the persons involved or the purported role of each in the breaking and entering.
Alfred Sanders took the stand and confessed to the burglary. Upon direct examination by his attorney, he testified as follows:
“Q. Now, after getting out of the car, what did you do, if anything?
“A. Well, I walked away from them. I walked approximately 50 or 60 feet from Harper street, and then I turned around and came back. I put my shoulder to the door across the street. I put my shoulder to the door of the TV shop and broke the glass and went in and come out with the two TVs.
“Q. You did this on your own, is that correct?
“A. Yes, I did.
“Q. Did you have any assistance in the perpetration of this offense?
“A. No.
“Q. Is there anything else you want to say to this jury?
“A. Yes, Lawrence Liggett, [Lester Sanders] my brother, he didn’t—
“The Court (interposing). No, proceed by question and answer.
“Q. (continuing) Did your brother Lester in any way participate in the commission of this crime?
“A. No, he didn’t.
“Q. Did the defendant Lawrence Liggett in any way participate in the perpetration—
“Mr. Connor (interposing). I am going to object.
“The Court. Of course I will sustain tbe objection. It is a question of fact.” (Emphasis supplied.)
The judge in part charged the jury as follows:
“You should consider the whole picture and it is a contention of the people that Lawrence Liggett, the defendant here, came from the doorway and ran and was apprehended by the sergeant. You heard the story of the defendant. His brother had him drive him to the home of Sanders. He previously had a discussion with Sanders and ashed the one Sanders to point out where this radio shop was on Mack avenue. Sanders, at 2 or 2:30 in the morning, got his car out and drove up there after which he told his brother to go home. His brother did not and Liggett, according to his own testimony, went in and burglarized the store. * * *
“Another very important test is their interest or lack of interest in the outcome of the case. It would seem if you believed the sergeants, you have a right to take into consideration their method and manner given in their testimony and interest or lack of interest. They stated that they chased Sanders and young Liggett from the store. One officer took after the car and the other apprehended him near the freeway fence. The theory of the people, if it is right, is that Sanders — that they were both scared away and, of course, Liggett was apprehended the moment he got a few feet from the door.
“As to the prosecutor’s discretion, it seems there is a lack of testimony to connect up the brother, and mere knowledge is not sufficient. There must be an overt act. There must be cooperation and the people claim that there was cooperation between Sanders and Liggett. He pointed out the store. They were going to use his car. The other brother has no record. Now, in Liggett’s cross-examination, it was brought out that he has two previous convictions for burglary. * * *
“Now, I am leaving the matter to you, but, as I say, all of the elements of burglary have been testified to. It will be up to you to determine whether it is nighttime and then the other question of fact is did defendant Sanders have any knowledge, and did he cooperate, et cetera. You are to take all of these facts into consideration in arriving at a verdict as to Liggett and Sanders and determine whether or not they are guilty of breaking and entering a business place in the nighttime with intent to commit larceny. * * *
“Mr. Connor [Assistant Prosecuting Attorney]. Your Honor, I believe you said that Sanders was the one that admitted the breaking and entering. It was not Sanders that made the admission on the stand. Liggett was the one that made the admission, Your Honor.
“The Court. I may have misspoke myself. I may have gotten confused. However, the jury will remember the testimony and will also remember which one took the stand.” (Emphasis supplied.)
After the jury had reached a verdict and a roll call was taken by the court clerk, the following occurred:
“The Court. Before I take the verdict, I did explain to you that in discussing the case with you in your final charge, I did get confused by calling Sanders — Liggett. Is that straight in your minds, now?
“The Jury. Yes.
“The Court. You have been concentrating on this. However, in the meantime instead of concentrating on this one case I have been taking pleas and have another case going on and, in addition to that, I have had a couple of sentences this morning, et cetera. So, you can see I am not able to concentrate like you can. But, before I take your verdict, you know who took the stand and who did not? You remember the circumstances as to who was apprehended by the sergeant and was captured by the two patrolmen?
“The Jury. Yes.
“The Court. I did not mislead you in any way?
“The Jury. No.
“The Court. You all agree to that?
“The Jury. Yes.”
The jury brought in a verdict of guilty as to both defendants. Upon appeal by Liggett, the Court of Appeals (1 Mich App 261) held that, while the charge was misleading, no new trial was required because the judge had made sure the jury was not misled. Appeal was taken to this Court upon leave granted.
Did the court err in keeping from the jury testimony by defendant Alfred Sanders concerning defendant Liggett’s participation or lack thereof in the breaking and entering? The court correctly sustained the objection to the question as to whether Liggett participated in the burglary. The solicited answer required the witness to form his own judgment as to the meaning of the phrase “participate in the perpetration” and then apply that judgment as a test against the acts, if any, of the defendant Lawrence Liggett. The question went to the elements of the crime and was so understood by the trial judge in his ruling. In the form in which the question was framed there could be no assurance that the answer would be limited to a factual recital as it called for a conclusion of law by the witness. People v. Row, 135 Mich 505; Ramsey v. State, 24 Ala App 83 (130 S 674), certiorari denied, 222 Ala 37 (130 S 676); Anderson v. State, 129 Tex Crim 586 (90 SW2d 564); State v. Watson, 243 Or 454 (414 P2d 337); State v. Borde, 209 La 905 (25 S2d 736); State v. Bradley, 231 Iowa 1112 (3 NW2d 133). Defense counsel could have questioned the witness as to the witness’ knowledge of what Liggett did or did not do but counsel did not elect to pursue such a proper inquiry.
Did the charge of the court which confused the identities of the two defendants constitute prejudicial and reversible error? Was it prejudicial error for the court to imply that Lester Sanders was not brought to trial because he had no record and to state that Liggett was cross-examined and had two previous convictions ?
It is settled law of this State that the trial judge should instruct the jury in criminal cases as to general features of the case, define the offense and indicate that which is essential to prove to establish the offense, even in the absence of request. A case may be reversed because the charge omits a legally essential ingredient. People v. Prinz, 148 Mich 307; People v. Kanar, 314 Mich 242, 254; People v. Hearn, 354 Mich 468. Similarly, without a request, a case may be reversed because of an erroneous or misleading charge as opposed to one which merely omits a pertinent though not legally necessary point. People v. MacPherson, 323 Mich 438, 448 et seq.; People v. Guillett, 342 Mich 1, 7; People v. Oberstaedt, 372 Mich 521, 526. Defendant has a right to have a properly instructed jury pass upon the evidence. People v. Visel, 275 Mich 77, 81.
Whenever defendants are jointly tried, it is of utmost importance that the rights of each defendant be carefully protected by the trial judge. No defendant should be convicted of the crime of another defendant. In this case, at the outset of the trial, the judge neglected to identify the defendants or their purported roles. There may have been confusion of identities during the trial itself. Finally, in the charge to the jury there is a hopeless confusion of the defendants.
Three persons, to a greater or lesser extent, were involved in the events of November 23, 1963, in the vicinity of Ray’s Radio Clinic. One of those three persons — Lester Sanders — never was charged with any offense. The case against him, if any, was disposed of by determination of the prosecuting attorney. Lester Sanders and Lawrence Liggett, according to the testimony of the police officers, were in close proximity to one another when first seen by them. Alfred Sanders, the confessed defendant, was apprehended with the stolen TVs in his possession by entirely different police officers. It was the judge’s responsibility not to be confused as to the identity of these three men and, if he did become confused, no matter what other duties he may have been seeking to discharge because of an overburdened court, it was his responsibility to be doubly sure that his confusion did not confuse the jury.
When a judge candidly admits to his own confusion which was so great that the identities of two defendants were incorrectly stated at least 11 times in his charge to the jury, and when he attributes admission of two previous convictions to defendant Liggett who never took the' stand, it cannot be said with any certainty that the confused judge did not mislead the jury. His attempt to cure the confusion, since it was made after the jury had arrived at its verdict, came too late. We are convinced that the errors complained of were such as to deprive defendant of a fair trial “by an impartial jury.” or, to use the words of the statute, “resulted in a miscarriage of justice.” CL 1948, § 769.26 (Stat Ann 1954 Rev § 28-.1096).
In the case of Chapman v. California, 386 US 18 (87 S Ct 824, 17 L ed 2d 705), the United States Supreme Court had occasion to consider what constitutes harmless error. The Court said (p 22):
“All 50 States have harmless-error statutes or rules, and the United States long ago through its Congress established for its courts the rule that judgments shall not be reversed for 'errors or defects which do not affect the substantial rights of the parties.’ 28 USC § 2111. None of these rules on its face distinguishes between Federal constitutional errors and errors of State law or Federal statutes and rules. All of these rules, State or Federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not resulting in the automatic reversal of the conviction.”
The Court concluded in that case that (p 25):
“The State prosecutor’s argument and the trial judge’s instruction to the jury continuously and repeatedly impressed the jury that from the failure of petitioners to testify, to all intents and purposes, the inferences from the facts in evidence had to be drawn in favor of the State — in short, that by their silence petitioners had served as irrefutable witnesses against themselves. And though the case in which, this occurred presented a reasonably strong ‘circumstantial well of evidence’ against petitioners (People v. Teale and Chapman, 63 Cal 2d 178, 197 [404 P2d 209, 220]), it was also a case in which absent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought'in n'ot-guilty verdicts. Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable-doubt, that the prosecutor’s comments and the trial' judge’s instruction did not contribute to petitioners’convictions.”
To reiterate, of the three men involved in this matter, Lester Sanders, whose actions closely parallel those of this appellant, was not prosecuted; Alfred Sanders pled not guilty but confessed on the stand; Lawrence Liggett never did testify but was identified in the ‘judge’s charge to the jury as if he were the defendant who testified and confessed!!■ Surely if a man is to be convicted of a crime, it should be crystal clear he has been convicted of his own crime, not that of a confessed codefendant!
It has not been demonstrated beyond a reasonable doubt that the trial judge’s instructions did not contribute to defendant’s conviction.
The verdict and sentence of the trial court should be set aside and a new trial granted.
Dethmers, C. J., and T. M. Kavanagh and Souris, JJ., concurred with Adams, J.
CL 1948, § 750.110 (Stat Ann 1962 Rev § 28.305).—Reporter.
Note the confusion of names liere. Query — Error by tbe court stenographer or by defendant Alfred Sanders?
Note confusion at this point by the assistant prosecutor. Alfred Sanders made the admission.
See US Const, Am 6; Mich Const 1908, aft 2, 819: Mich Const 1963, art 1, § 20.
28 USC § 2111 provides:
“Oil the hearing of any appeal or writ of certiorari in any ease, the court shall give judgment after an examination of the record without regard to errors or defects which do not affeet the substantial rights of the parties.”
Federal Rule Criminal Procedure, 52(a) provides:
“Any error, defoet, irregularity or variance which does not affeet substantial rights shall be disregarded.” See, also, Federal Rule Civil Procedure 61. | [
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Per Curiam.
The issue raised by this case is whether evidence extrinsic to a written document, unambiguous on its face, may be used to establish that the document did not represent the entire agreement of the parties. The trial court and the Court of Appeals held that the parol evidence rule precluded the use of extrinsic evidence and concluded that the plaintiff was entitled to summary judgment. We disagree and reverse.
I
Plaintiff NAG Enterprises, Inc., brought this action against defendants All State Industries, Inc., and Meridian Industries, Inc., seeking a judgment against All State on a promissory note between it as payor and Meridian as payee, and against Meridian on the written guarantee of payment it gave when it assigned the note to NAG.
A default judgment was entered against All State for failure to answer the complaint. However, Meridian filed an answer and a counterclaim in which it maintained that the assignment of the note and giving of the written guarantee were not unconditional but were part of a more complicated security agreement and that NAG had been reimbursed for the advances that the assignment and guarantee were meant to secure.
NAG moved for summary judgment, arguing that as to its claim Meridian had failed to state a valid defense, and as to the counterclaim Meridian had failed to state a claim on which relief could be granted. GCR 1963, 117.2, subrules (1) and (2). NAG claimed that the parol evidence rule prohibited Meridian from seeking to vary the terms of the guarantee.
The trial court granted the motion and the Court of Appeals initially granted NAG’s motion to affirm. We vacated that decision and remanded to the Court of Appeals for plenary consideration. 402 Mich 825 (1977). Thereafter, the Court of Appeals affirmed in a per curiam opinion., 85 Mich App 194; 270 NW2d 738 (1978).
II
Meridian conceded the execution of the assignment and guarantee, and there is no dispute that, in form, they are unconditional and unambiguous and do not refer to their part in any security transaction.
The Court of Appeals stated as the applicable legal principle that:
"When two parties have made a contract and have expressed it in writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing. 3 Corbin on Contracts, § 573.” 85 Mich App 198.
The court went on to discuss Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195; 220 NW2d 664 (1974), and Union Oil Co of California v Newton, 397 Mich 486; 245 NW2d 11 (1976), and concluded that the test for applying the parol evidence rule is whether the extrinsic evidence seeks to contradict the terms of the written instrument.
This analysis overlooks the prerequisite to the application of the parol evidence rule: there must be a finding that the parties intended the written instrument to be a complete expression of their agreement as to the matters covered. Extrinsic evidence of prior or contemporaneous agreements or negotiations is admissible as it bears on this threshold question of whether the written instrument is such an "integrated” agreement. As we said in Goodwin, Inc v Orson E Coe Pontiac, Inc, supra:
"A number of well-established exceptions to the parol evidence rule have been recognized, however, by Michigan courts. For example, the rule does not preclude admission of extrinsic evidence showing: that the writing was a sham, not intended to create legal relations, Tepsich v Howe Construction Co, 377 Mich 18, 23-25; 138 NW2d 376 (1965); that the contract has no efficacy or effect because of fraud, illegality, or mistake, Rood v Midwest Matrix Mart, Inc, 350 Mich 559, 564-567; 87 NW2d 186 (1957); Schupp v Davey Tree Expert Co, 235 Mich 268, 271; 209 NW 85 (1926); that the parties did not 'integrate’ their agreement, or assent to it as the final embodiment of their understanding, Mardon v Ferris, 328 Mich 398, 400; 43 NW2d 904 (1950); Wagner v Egleston, 49 Mich 218; 13 NW 522 (1882); or that the agreement was only 'partially integrated’ because essential elements were not reduced to writing, Brady v Central Excavators, Inc, 316 Mich 594; 25 NW2d 630 (1947).” 392 Mich 204.
Ill
Meridian’s answer and counterclaim in this case raised the issues of whether the note and the assignment and guarantee constituted the complete agreement of the parties and whether the agreement had been breached. Thus, Meridian’s answer stated a valid defense to NAG’s claim, and its counterclaim stated a claim on which relief could be granted. It was error to grant NAG’s motion for summary judgment.
Accordingly, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgments of the Court of Appeals and Oakland Circuit Court and remand to the Oakland Circuit Court for further proceedings.
The plaintiffs motions to dismiss and to affirm are denied.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
It should be noted that the assignment and guarantee are not a negotiable instrument; thus, the principles applicable to negotiable instruments do not apply. MCL 440.3104(l)(b); MSA 19.3104(l)(b).
Restatement Contracts, 2d (Tentative Draft No. 5, 1970), § 235.
Restatement Contracts, 2d (Tentative Draft No. 6, 1971), § 240, p 36, states, in relevant part:
"Evidence of Prior or Contemporaneous Agreements and Negotiations.
"Agreements and negotiations prior to or contemporaneous with the adoption of a writing are admissible in evidence to establish
"(a) that the writing is or is not an integrated agreement;
"(b) that the integrated agreement, if any, is completely or partially integrated.” | [
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Dethmers, J.
(dissenting). This was original mandamus to compel defendant to grant a license to plaintiff■ for operation of a drugstore for the year commencing July 1, 1962. The case now makes its third full dress appearance here. On December 5, 1963, by opinion of a majority of this Court, it was ordered that the writ issue. Superx Drugs Corporation v. State Board of Pharmacy, 372 Mich 22, 44. After rehearing denied and later granted, this Court remanded the matter to defendant board for hearing and determination, with jurisdiction retained here for further appellate review if desired by either party. Superx Drugs Corporation v. State Board of Pharmacy, 375 Mich 314. Beading of the opinions at the above two citations will disclose the facts and issues involved. We are now at the juncture of the review desired by plaintiff of the determination of defendant board, on said remand, denying the license.
The question before this Court still is whether plaintiff is entitled to the license.
Plaintiff was incorporated in 1909, for a term of 30 years. In 1939 it filed articles with the corporation and securities commission .extending its corporate life for another 30 years. We take judicial notice of the fact that, as appears from that commission’s records, Prank Jones, both in 1909 and 1939, owned more than 25% of the stock, and that the records of defendant board disclose that he was continuously, during that period, a registered pharmacist. It is a fair inference — a valid presumption, not disputed in this case, that such was the situation throughout that 30-year period, including September 5, 1927, when PA 1927, No 359, § 1 (CL 1948, § 338.481 [Stat Ann 1956 Bev § 14.771]), governing the ownership and licensing of pharmacies and drugstores, became effective. . _
On May 25, 1962, the Kroger Company acquired all of the stock of plaintiff corporation. Prom then on, concededly, none of plaintiff’s stock was held by a registered pharmacist. On or about June 5, 1962, plaintiff filed with defendant board application for the license here in question. Upon its denial this suit was brought. - .
The above cited section of the governing statute reads as follows:
“Every pharmacy, drug store or apothecary shop shall he owned by a registered pharmacist and no partnership or corporation shall own a drug store, pharmacy or apothecary shop unless at least 25 per cent of all stock is held by registered pharmacists, except that any corporation, organized and existing under the laws of the State of Michigan, or any other State of the United States, authorized to do business in the State of Michigan and empowered by its charter to own and conduct pharmacies, drug stores or apothecary shops and which, at the time of the passage of this act, owns and conducts a drug store or stores, pharmacy or pharmacies, apothecary shop or shops in the State of Michigan may continue to own and conduct the same and may establish and own additional pharmacies, drug stores or apothecary shops in accordance with provisions of this article: Provided, That any such corporation which shall not continue to own at least 1 of the pharmacies, drug stores or apothecary shops theretofore owned by it, or ceases to be actively engaged in the practice of pharmacy in the State of Michigan, shall not be permitted thereafter to own a drug store, pharmacy or apothecary shop: And provided further, That any person not a registered pharmacist who at the time of the passage of this act owns a pharmacy, drug store or apothecary shop in the State of Michigan, may continue to own and conduct the same in accordance with existing laws and regulations : And provided further, That the administrator, executor or trustee of the estate of any deceased owner of a pharmacy, drug store or apothecary shop, or the widow, heirs or next of kin of such deceased owner, may continue to own and conduct such pharmacy, drug store or apothecary shop in accordance with existing laws and regulations: Provided further, That this act shall not apply to stores or shops in which patent or proprietary medicines and ordinary domestic or household remedies, such as the sale of is provided for in section 18 of Act No. 134, Public Acts of 1885, are the only drugs and medicines sold at retail.”
Plaintiff contended before defendant board, as here, that despite tbe lack of present ownership of any of its stock by a registered pharmacist, it was entitled to a license under the so-called grandfather clause of the above quoted governing statute. This was on the theory that plaintiff corporation, at the time of the passage of the 1927 act, owned and was conducting a drug store and had continued to do so, uninterruptedly, ever since, thus qualifying it for license renewal under that statutory provision.
Defendant’s first position was that plaintiff had lost its “grandfather” clause rights because the closing of its store, for remodeling, from August 30, 1958, to November 24, 1958, amounted to its discontinuance of ownership and conducting of a drugstore within the meaning of the quoted language of the statute, thus ending its grandfather clause rights. That contention and the further reason advanced by defendant for denial of license, namely, that plaintiff had engaged in unlawful sales of drugs without prescriptions signed by a physician, this Court disposed of in 372 Mich, supra, adversely to defendant’s position and, hence, ordered issuance of the writ. With respect to those points we remain of the same view still. We would be no further disposed now to go along with defendant’s argument, not raised on the first appeal, that plaintiff’s grandfather rights, if it had any, were lost by reason of and during a period when its capital stock was pledged to an insurance company as security for an indebtedness and loans.
On the latest argument before this Court, for the first time, counsel for defendant raised the point that plaintiff was not entitled to anything under the grandfather clause, not because, as previously contended by it, plaintiff had lost those rights, but because plaintiff had never had grandfather clause rights. Although belatedly raised, we permitted the question to be argued at that late date and to be considered and briefed by both parties in supplemental briefs.
This last above consideration presents a question of statutory construction. Defendant says that the language of the statute creating the so-called grandfather rights means that any corporation which, at time of passage of the act, did not meet the requirement of ownership of at least 25% of its stock by registered pharmacists but was then owning and conducting a drugstore would be permitted to continue to do so. Plaintiff says that the language means that any corporation, regardless of who held its stock at the time, which owned and conducted a drugstore at the time of passage of the act might continue to do so thereafter, even if, in the future, there was no ownership of at least 25% of its stock by registered pharmacists. We adopt defendant’s version as the correct interpretation.
“The purpose of an exception or grandfather clause is to exempt from the statutory regulations imposed for the first time on a trade or profession those members thereof who are then engaged in the newly regulated field.” State, ex rel. Krausmann, v. Streeter, 226 Minn 458, 463 (33 NW2d 56). (Emphasis supplied.)
See 18A Words and Phrases (Perm ed), p 359, General law.
Manifestly, the legislative intent and purpose was to require that at least 25% of the stock of corporations owning and conducting drugstores should be owned by registered pharmacists, but to make an exemption and exception for corporations which, at the time of passage of the act, were not so owned but were owning and conducting drugstores. A corpo ration qualified to act under the statute, at the time of its passage, without benefit of that portion constituting the grandfather clause was in no need of an exemption from the requirements of the statute and, hence, the exemption was meaningless as to it and had no application to it. In the instant case, at the time of the passage of the act, more than 25% of plaintiff’s stock was owned by Prank J ones. Hence, passage of the act and enforcement of its requirements and regulations could have had no adverse effect on plaintiff’s continued right to own and conduct a drugstore. It was in no need of the beneficent terms of the exemption or grandfather clause and, accordingly, acquired no rights under it. Having acquired no grandfather rights, and 25% or more of its stock not being held by registered pharmacists at the time of the application for the license here in question, plaintiff did not then meet statutory requirements and defendant board was, therefore, correct in denying the application.
It will he noted in Mr. Justice Carr’s majority opinion, 372 Mich 22, on pages 59 and 60, that constitutionality of the act was not there passed upon by this Court. Plaintiff asserts that, if construed to require denial of its application for license, the act is violative of plaintiff’s constitutional rights to operate a legitimate private business, in that the act’s prohibition hears no reasonable relationship to public health, safety, and morals and creates arbitrary and unnecessary restrictions, depriving plaintiff of due process and equal protection of the laws. Plaintiff’s reliance in this connection is placed on Liggett Co. v. Baldridge, 278 US 105 (49 S Ct 57, 73 L ed 204), in which a Pennsylvania statute requiring that stockholders of a pharmacy corporation must be registered pharmacists was held to he constitutionally invalid on the ground that it contravened the due process and equal protection clauses of the 14th Amendment of the Constitution of the United States. This, says plaintiff, was a holding based on the concept of economic due process, with the court saying, so plaintiff asserts, that the act bore no relationship to public health. With respect to that precise point, what the court did say, on page 113, is the following:
“In the light of the various requirements of the Pennsylvania statutes, it is made clear, if it were otherwise doubtful, that mere stock ownership in a corporation, owning and operating a drug store, can have no real or substantial relation to the public health. * * * No facts are presented by the record, and, so far as appears, none were presented to the legislature which enacted the statute, that properly could give rise to a different conclusion.” (Emphasis supplied.)
In the instant case the record is otherwise. There is testimony of eminent pharmacologists, teachers and practitioners in the field, that in their opinion there is a reasonable relationship between the statute’s stock ownership requirements and public health and safety. They also testified as to their reasons for their opinions. It is true that there also is testimony in the record to the contrary. As this Court said, however, in Grocers Dairy Company v. Department of Agriculture Director, 377 Mich 71:
“The presumption of the constitutionality of a statute favors validity and, if the relation between the statute and the public welfare is debatable, the legislative judgment must be accepted.”
In the 1963 decision of Ferguson v. Skrupa, 372 US 726 (83 S Ct 1028, 10 L ed 2d 93, 95 ALR2d 1347), coming 35 years after Liggett, the court said (pp 730, 731):
“We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies. * * *
“We refuse to sit as a ‘superlegislature to weigh the wisdom of legislation,’ and we emphatically refuse to go back to the time when courts used the due process clause ‘to strike down State laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.’ ”
The above was cited with approval in: Head v. New Mexico Board of Examiners in Optometry, 374 US 424 (83 S Ct 1759, 10 L ed 2d 983); England v. Medical Examiners, 375 US 411 (84 S Ct 461, 11 L ed 2d 440); Atlanta Motel v. United States, 379 US 241 (85 S Ct 348, 13 L ed 2d 258); Meat Cutters Union v. Jewel Tea Co., 381 US 676 (85 S Ct 1596, 14 L ed 2d 640).
In Daniel v. Family Security Life Insurance Co., 336 US 220 (69 S Ct 550, 93 L ed 632, 10 ALR2d 945), the court said (pp 224, 225):
“We cannot say that South Carolina is not entitled to call the funeral insurance business an evil. Nor can we say that the statute has no relation to the elimination of those evils. There our inquiry must stop.
“This rationale did not find expression in Liggett Co. v. Baldridge, 278 US 105, on which respondents rely. According to the majority in Liggett, ‘a State cannot, “under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them.” ’ ” (Emphasis supplied.)
We think significant the language of the United States Supreme Court in Daniel to the effect that there has been “a pronounced shift of emphasis” in that court since its decision in Liggett, with respect to the meaning of the words “unreasonable” and “arbitrary” as applied to State statutes regulating tbe operation of business, to tbe extent that in Daniel a State statute prohibiting life insurance companies from engaging in the undertaking business and undertakers from serving as agents for such companies was upheld as being a reasonable and not an arbitrary exercise of the police power for the protection of the public.
In People v. Carroll, 274 Mich 451, a statute requiring the owner or operator of a dental parlor to be a regularly licensed dentist was upheld as not unconstitutional. This Court said (p 456):
“It is a well-known fact that in the profession of dentistry the services rendered are personal and call for knowledge in a high degree and that to separate this knowledge from the power of control is an evil, the correction of which was attempted by the instant legislation. The evils which arise from divorcing the ‘power of control’ from ‘knowledge’ apply with equal force to a partnership as well as a corporation.”
The sale of drugs and poisons can very directly affect public health, safety and the general welfare. The legislative judgment, when supported, as in this case, by testimony of professional men in this field, that the character of ownership of stock in corporations engaging in such sales can have an effect on public health, debatable though that may be, is not a subject for judicial redetermination. Grocers Dairy Company v. Department of Agriculture Director, supra.
"We hold that the act is constitutional, that plaintiff acquired no rights under its grandfather clause, and that the defendant board was, therefore, right in denying the license.
Writ should be denied. No costs.
O’Hara, J.
The background and facts in this case are sufficiently set forth in Mr- Justice Duthjiebs’ opinion. I accept them as I do his statement of the issue:
“The question before this Court still is whether plaintiff is entitled to the license.”
I disagree with his conclusion and respectfully dissent therefrom. In order to understand my position it is essential to set out in full the determination of the defendant board:
“1. Therefore it is the determination of the board that based upon the facts, as determined from the full record, the Owl Drug Co., the predecessor of the applicant, did not actively engage in the practice of pharmacy from January, 1958, even though the corporate structure was there. Thus the applicant has not fulfilled the requirements of the statute so as to be eligible for a license under the provisions of PA 1927, No 359.
“2. The board wishes to point out that this decision is based upon its determination of the facts and the law. The board further notes that the order of the Supreme Court of May 10, 1965 provides that each party shall have 20 days to appeal the decision of the board to the Supreme Court. The board assumes and hopes that the applicant will exercise this right of appeal so that the highest court of this State may determine the validity of the board’s decision.”
The foregoing “determination” is based upon the board’s conclusions of law, and those conclusions, of necessity, are a part of the “determination.” The critical conclusions are therefore set out:
“Conclusions or Law Regarding Foregoing Facts :
¿Í* # *
“II. Considering now: Is the applicant entitled to exercise the rights of a ‘grandfather’ as provided in PA 1927, No 359?
“1. That M. L. Briggs, the former sole stock owner of Owl Drug Company (predecessor of Superx Drugs Corporation), escrowed his stock to the Wolverine Insurance Company on December 12, 1957, as security for funds placed in escrow by Wolverine to pay the debts of Owl Drug Company.
“2. That subsequently, as a result of Briggs’ inability to pay, Wolverine became the owner of the stock on January 2,1958. That thereupon, under the terms of the escrow agreement of December 12,1957, Briggs became the manager of the Owl Drug store in the employ of Wolverine Insurance Company at a salary of $100 weekly. That the escrow agreement was signed by Briggs and was between Briggs and Wolverine Insurance Company, and not the Owl Drug Company.
“3. That Wolverine Insurance Company continued to operate the Owl Drug store as the owner thereof until its sale of the stock on November 6, 1958, to Herbert Herman. That during the interim period there had been no reorganization of officers or board of directors.
“4. That during the above period prior to the sale to Herman, Wolverine as a part of its operation of the drug store paid all bills in connection therewith. Exhibit P. 1, item 6, introduced as part of the record before Judge Coleman states, First party (Briggs) agrees upon sale of stock to second party (Wolverine Insurance Co.) to resign in writing as an officer of Owl Drug and will secure resignations of all officers and directors.
“5. Wolverine Insurance Company applied for renewal of license in June of 1958 using Briggs’ name as president, when in reality he was only an employee having no corporate power, was a deception of the true identity and fact.
“Further, a like situation did exist from 1958 through 1962 when the store was in Mr. Herbert Herman’s name, d/b/a Herman Pharmacy, licensed as such and not that of the corporation. All business as far as the public was concerned, was conducted under his name. The prescription labels, store signs and advertising were in Herman’s name and not that of the Owl Drug Company (Exhibits 11, 16, D-2, appendix 225a and others).
“Conclusions of Law, Regarding Grandfather Status:
“1. Application for license renewal in June of 1958 signed by Briggs as president of Owl Drug Company was in violation of section 19 of PA 1949, No 163 [which] stated ‘If any registered pharmacist * • * * shall have obtained a license by misrepresentation, error, or fraud * * * the State board of pharmacy shall have the power to revoke or suspend such license or certificate after giving any such person reasonable notice and an opportunity to be heard.’ (Noting that a pharmacy is licensed and a pharmacist is certificated or registered.)
“2. PA 1927, No 359 (ownership of drug stores act), provides that every pharmacy shall be owned by a registered pharmacist and no partnership or corporation shall own a drug store, pharmacy or apothecary shop unless at least 25 per cent of all stock is held by registered pharmacist; provided, however, that drug stores or pharmacies which were owned and conducted at the time of the passage of the act (1927) may continue to own and conduct the same and establish and own additional pharmacies ; provided, that any such corporation which shall not continue to own at least one of the pharmacies, drug stores or apothecary shops theretofore owned by it, or ceases to be actively engaged in the practice of pharmacy, shall not be permitted thereafter to own a drug store.
“The Owl Drug Company, during the period of the operation of the drug store, by Wolverine from January of 1958 to November of 1958, ceased to be actively engaged in the practice of pharmacy within the meaning of this act. That Wolverine Insurance Company improperly controlled and operated the drug store without a license by use of subterfuge (also noting that Wolverine was acting beyond the scope of its corporate charter).
“3. Herbert Herman, d/b/a Herman Pharmacy, licensed as snch by the board and alluding to the public that the store was the Herman Pharmacy, further demonstrates that the Owl Drug Company was not actively engaged in the practice of pharmacy during this time. (Also noting that a corporation, by law cannot do business under an assumed name other than its corporate name.)”
It is beyond dispute that the board did not find or hold that plaintiff corporation did not acquire “grandfather” rights because such rights did not vest in plaintiff’s predecessor. Contrariwise, it held unequivocally that they did. This for the reason that the board found those rights which accrued on the effective date of the statute in 1927 were lost during the period when the predecessor corporation, the Owl Drug Co., had escrowed its stock to the Wolverine Insurance Company, and thus that the “grandfather” sequence was broken. The board then critically and crucially holds in its “determination”:
“3. If, upon appeal, the Supreme Court should determine that the decision of the board was incorrect, and that the Owl Drug Co. and the applicant have continued to he actively'engaged in the practice of pharmacy so as to come within the provisions of PA 1927, No 359 then there is nothing further of this record to deny applicant a license.” (Emphasis supplied.)
However, Mr. Justice Dethmers holds:
“We would be no further disposed now to go along with defendant’s argument, not raised on the first appeal, that plaintiff’s grandfather rights, if it had any, were lost hy reason of and during a period iohen its capital stock was pledged to an insurance company as security for an indebtedness and loans.” (Emphasis supplied.)
Thus, under his opinion, Mr. Justice Dethmers reverses the board on the only basis upon which it withheld a license, and this in face of the somewhat unusual statement that absent such a finding being affirmed “there is nothing further of this record to deny applicant a license.”
Thus, to concur with my esteemed colleague I would perforce have to make an initial finding of fact in this Court that no “grandfather” rights accrued. The vigorous dissents in the prior opinions were directed only to the method of review of the fact-finding process. It would seem the dissenters would hardly be any less vigorous if this Court on review were to make its own original findings of fact. But the distinguished senior Associate Justice says, as I understand him, that he does this on the basis of taking judicial notice of certain public records. He then comes to certain legal conclusions therefrom.
Again, I must respectfully disagree. In the first place, it is well settled that appellate courts on review cannot take judicial notice in order to raise issues not presented by the pleadings:
“Resort cannot be had to judicial knowledge to raise controversies not presented by the pleadings.” (Mountain View Mining & Milling Co. v. McFadden, 180 US 533 [syllabus] [21 S Ct 488, 45 L ed 656].)
I suppose it might be said that in this special statutory procedure that before the decision of the board there were no “pleadings” as such in a literal sense. But surely for the application of a settled legal principle no such narrow interpretation should be made. The “pleadings” are in fact the proceedings below and they circumscribed the controversy as definitively as if they had been titled “complaint” or “answer”. Either the principle for which McFadden stands is settled and sound or it isn’t. I think it is. To reject it in this case would be to revolutionize the appellate process to such, a degree as to change its essential character.
But let ns assume arguendo that there is some reason which I do not perceive that in this case this principle should not be applied, what then of the interpretation of the statute contended for by Justice Deti-imers? Is it sound? Put in the traditional phraseology, does it under well-established principles reflect that all important “legislative intent” ?
Legislative intent, our eases tell us, is found by statutory construction. But before courts are free to construe statutes, they must find some reason for so doing:
“The cardinal rule of statutory construction is to ascertain and give effect to the intention of the legislature. If the language of a statutory provision is unambiguous, the intent must be determined accordingly.”
Further citations in support of this principle are unnecessary. None to the contrary, to my knowledge, exists. The relevant section of the statute, after stating the conditions under which corporations can, after the effective date of the act, own and operate drugstores and pharmacies, provides:
“except that any corporation, organized and existing under the laws of the State of Michigan, or any other State of the United States, authorized to do business in the State of Michigan and empowered by its charter to own and conduct pharmacies, drug stores or apothecary shops and which, at the time of the passage of this act, owns and conducts a drug store or stores, pharmacy or pharmacies, apothecary shop or shops in the State of Michigan may continue to own and conduct the same and may establish and own additional pharmacies, drug stores or apoth ecary shops in accordance with provisions of this article.” (Emphasis supplied.)
This exception, my confrere says, really does not mean “any” corporation as it plainly reads, hut it means only any corporation which prior to the enactment of the statute was not in compliance with its stock ownership requirements. I cannot agree. In the first place, the statute doesn’t say so. In the second place, there is no basis in reason for reading the additional language into it.
Contrariwise, to me, reason and logic inveigh against this judicial addition to the plain language of the statute. Many harsh examples of what this interpretation would and could do in individual cases to licensees who for years have operated upon the interpretation always heretofore accorded to the statute that “any corporation” means “any corporation” could be cited. However, the most all-embracing and clearest is that so to hold would bring about the following bizarre result. It would actually discriminate against the corporate licensee who was in compliance with the 25% ownership provision by a registered pharmacist prior to the effective date of the act. If such licensee was in compliance, and thus under the oral argument-advanced theory of the solicitor general (but not so found by the board) acquired no “grandfather” rights, such corporate licensee’s capital stock could only be acquired by another corporation which meets the 25% prior ownership test. His noncomplying counterpart corporation on the effective date of the act however can sell to the world. It’s one thing to read into a statute additional and necessary wording to avoid an absurd result. I’m not aware, however, of any principle of statutory construction that approves reading language into a statute to bring one about.
In view of the somewhat equivocal and, to a degree, anomalous findings of the board, I am hard put to know whether I am writing to affirm or reverse. However, all writing Justices in this case in any of its trips to our Bench seem in agreement that the issue presented is whether plaintiff appellant is entitled to the issuance of a license.
Within the well-established limitations on judicial review of fact-finding by hoards and commissions I can find nothing to do hut reverse the defendant board and order the issuance of a license. The only legal conclusion made by the board to support the denial of a license is specifically repudiated by Justice Dethmers in his opinion. It was specifically repudiated by the majority in the prior opinion.
Mr. Justice Black in his strong dissent, after the first hearing before us, stated the principle involved :
“The questions to he heard and decided on remand are those of specific application of statutory terms, to presented facts, which the appointed agency of administration must determine initially ” (Emphasis supplied.)
Hnder the hoard’s decision, the facts found and the statute applied, save for the twice repudiated break-in-sequence theory leave us no alternative. The effect of the hoard’s finding and determination is to say appellant is entitled to a license. The hoard will not and did not issue it. In this situation a court has nothing to do but direct the issuance of the license by the proper writ. This is not to review the findings of fact of a board or commission by mandamus. This is not to compel a legislatively created and duty- entrusted hoard to act in a certain way. My decision here rests solely and completely upon the long settled-principle that where nothing remains to he done by a board or a commission, except to perform a ministerial act which that board or commission will not perform, mandamus lies to compel its performance. Said another way:
“Mandamus lies only to enforce strict legal rights.” People, ex rel. Houghton County, v. Auditor General, 36 Mich 271, at p 273).
In the case at bar the board tells us:
“If, upon appeal, the Supreme Court should determine * * * that the Owl Drug Co. and the applicant have continued to be actively engaged in the practice of pharmacy * * * then there is nothing further of this record to deny applicant a license.”
The Supreme Court has already determined that in legal consequence, the hypothecation of stock and the escrow agreement with regard thereto did not constitute a break in continuity of corporate succession, and that hence there was no failure to engage continuously in the practice of pharmacy.
Mr. Justice Dethmers in his opinion reaffirms this:
“We would be no further disposed now to go along with defendant’s argument, not raised on the first appeal, that plaintiff’s grandfather rights, if it had any, were lost by reason of and during a period when its capital stock was pledged to an insurance company as security for an indebtedness and loans.” (Quoted supra.)
I cannot but conclude that under the findings of fact and the law of the case appellant is entitled to a license.
In view of the reasons herein assigned, I do not reach the question of the constitutionality of the in volved statute, and for this reason I do not pass thereon.
Let the writ of mandamus issue.
Kelly and Smith, JJ., concurred with O’Hara, J.
Emphasis supplied.
Melia v. Employment Security Comm., 346 Mich 544, at p 562.
CL 1948, § 338.481 (Stat Ann 1956 Rev § 14.771).
Superx Drugs Corporation v. State Board of Pharmacy, 372 Mich 22, at pp 42, 43. | [
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Bushnell, J.
Plaintiff filed a bill to quiet title to certain lands in West Bloomfield township, Oakland county, Michigan, to which she claimed title by sheriff’s deed. The deed was executed May 23, 1931, following a mortgage foreclosure by advertisement, but was not deposited with the register of deeds until September 14,1931. Defendant made no attempt to redeem from the sale, but refused to recognize its validity because of plaintiff’s failure to record the deed within 20 days from the date of sale. The instant suit was not commenced until the time for redemption had expired, as computed from the date of deposit of the deed. Defendant filed a cross-bill asking that he be declared the owner in fee simple of the premises. The court held the sheriff’s deed valid and forever barred appellant from asserting or claiming any interest in and to said lands, or any part thereof.
The applicable part of 3 Comp. Laws 1929, § 14433, reads:
“Such deed or deeds shall, as soon as practicable, and within twenty days after such sale, be deposited with the register of deeds of the county in which the land therein described is situated, and the register shall indorse thereon the time the same was received, and for the better preservation thereof, shall record the same at length in a book to be provided in his office for that purpose, and shall index the same in the regular index of deeds.”
The 20-day provision was inserted in the statute by Act No. 152, Pub. Acts 1875. The former law required that the officer or person making the sale should “forthwith * * * deposit the same with the register of deeds of the county in which the land is situated.”
In order to determine the validity of the sheriff’s deed, we must decide whether the statute is mandatory or directory, and if directory, whether defendant is estopped to attack the validity of plaintiff’s deed. Appellant claims Judge Christiancy’s opinion in Doyle v. Howard, 16 Mich. 261, is controlling, and that since 1867 it has never been questioned in our subsequent decisions. Appellee contends, however, that Judge Christiancy in Doyle v. Howard, supra, departed from the rule he stated in Johnstone v. Scott, 11 Mich. 232, and that the subsequent decisions of this court have followed Johnstone v. Scott, supra, rather than Doyle v. Howard, supra.
Johnstone v. Scott, supra, was an action of ejectment in which plaintiff questioned the validity of a recorded sheriff’s deed to which was attached a certificate incorrectly stating that the conveyance became absolute in one year. The statute then in force allowing two years for redemption, the defendant made no attempt to redeem and the court held the foreclosure valid and the statute directory in so far as it pertained to the certificate, stating, however, that the erroneous indorsement could not alter the legal period of redemption.
In Doyle v. Howard, supra, also a foreclosure by advertisement, the court held the foreclosure and sale invalid because of the sheriff’s failure to execute and deposit the deed or any affidavit of the facts of the sale with the register of deeds, until after the expiration of more than a year from the time of sale. Justice Christiancy there said:
“The whole proceeding is ex parte, and not judicial. # * * It is, therefore, essential to the rights of the mortgagor and those claiming under him subsequent to tbe mortgage, that all the safeguards which the statute has provided for the protection of their rights should be substantially observed. And every step of the proceeding which the statute has provided for divesting their title, and the observance of which the court can see might operate as a protection of their rights, must be considered as inserted for that purpose, and for their benefit, so far as it may thus operate, and not merely as directory, or to be dispensed with, without their consent. * # *
“And, though a mortgagor may have seen a notice of foreclosure and sale in the newspaper, yet, if, some time after the day fixed for the sale, he should, on inquiry, find that no deed had been deposited with the register, he might very properly infer that the proceeding had been abandoned without being perfected by a sale.
£ £ The rights thus secured to the mortgagor by the provisions in reference to the deed and its deposit with the register, are substantial rights, of which he would be deprived by the omission to execute and deposit the deed, as required by the statute. We must, therefore, hold the provisions of the statute, so far as they relate to the execution and deposit of the deed, to be mandatory, and not merely directory. ’ ’
After the foregoing language describing the provisions of the statutes as mandatory, the learned judge qualified his holding and pointed out that:
“We do not mean to assert that the foreclosure would be void, by reason of the deed not being executed and deposited on the very day of the sale, or within a few days thereafter. But we confine our opinion to the case where no deed has been executed or deposited until after the expiration of a year from the day of sale. In such a case we enter tain no donbt the sale should be treated as invalid for any purpose of conveying the title.”
It may be that this decision, 'which was written while the earlier statute requiring that the deed be deposited “forthwith” was in full force and effect, influenced the amendment to the statute in 1875.
The trial court, in its opinion in the instant case, quoted from Perkins v. Keller, 43 Mich. 53, in support of the contention that a failure to observe with exactitude the provisions of the statute with regard to the deposit of deeds does not necessarily invalidate so long as no injury has resulted to the mortgagor and he has not been hampered in any effort to redeem. The deed in the Perkins Case was not filed until 20 days after the sale, and the court said on the question of delay:
“Upon the first point we think the objection is not well taken. We have held in Lilly v. Gibbs, 39 Mich. 394, that the time of redemption in such a case does not begin to run until the deed is filed. In Doyle v. Howard, 16 Mich. 261, and Grover v. Fox, 36 Mich. 461, the delay was such as to destroy all the purposes of the statute. But it was suggested in Doyle v. Howard, that a brief delay, while it might subject the sheriff to a mandamus requiring him to perform his duty, ought not to entirely destroy the foreclosure. It does not seem to us reasonable to regard the delay of 20 days as of itself enough to subject the purchaser to any other loss than the extension of the right of redemption for that period. ’ ’
Both this and the Lilly Case are authority for the view that the provisions of the former statute were not mandatory.
The statute was amended and now provides a reasonable time (20 days) after sale during which the deed may be filed. Has the rule been changed by the 1875 statutory enactment? In speaking of statutory foreclosures, Justice Campbell said in Reading v. Waterman, 46 Mich. 107, decided in 1881:
“The statutes regulating them are made to enlarge and not to cut down the rights of mortgagors. Before such statutes were passed, sales made under a power of sale contained in a mortgage were governed by the same rules applicable to sales under any other power, and courts in the absence of statutes have never applied to such powers any such technical rules as would impair the security of purchasers. The power is part of the contract, and should be construed on principles applicable to contracts, and not as a hostile process.
“The statutes were intended to prevent surprise or unfairness, and they should be enforced in everything substantial. Courts cannot disregard any of their positive provisions. But on the other hand those provisions cannot be enlarged or unreasonably construed so as to render mortgage sales unsafe, or to make bidding hazardous. The law was designed to encourage and not to destroy recourse to these simple and cheap remedies; and while no substantial right should be disregarded, substantial regularity is all that should be held imperative.”
Has there been a substantial compliance with the statute? Lau v. Scribner, 197 Mich. 414. Standing alone, a deed recorded over 90 days after the expiration of the 20 days allowed by statute might be ineffective to pass title, especially if the rights of the mortgagor were materially affected, and certainly so if the rights of others intervened.
The learned trial judge declared in his opinion:
‘ ‘ Could the defendant show prejudice through the failure to promptly record the deed there would be more force to his claims. He made no effort, how ever, following the sale, either within the year granted for redemption, or, within a year from the filing of the deed, to redeem. He makes no tender now of the amount due under the mortgage; neither does he allege a readiness to pay the obligation it secured. Under such circumstances the court ought not to set aside the sale except for a clear failure to comply with some mandatory provision of the statute which prejudiced the mortgagee’s rights and operated to destroy the purpose of the statute. ’ ’ •
In this case no showing is made of any damage suffered by the mortgagor as a result of the failure to deposit the deed. If damage had been shown, it seems certain that the appellant would have been entitled to relief, and the sale might have been held invalid. Grover v. Fox, supra. The query may be made, Where shall the line be drawn if this deed is held valid? When the parties resort to a court of equity, we may, in such case, determine their rights, within-the rules, of course, with regard to the particular situation before us.
We see no reason to allow appellant the benefit of a new foreclosure merely because he insists upon a technical and strict construction of the statute. The equities are not with his position. It may be true that appellee, or some one acting for her, has acted inadvertently in the matter, but no harm has been done the parties or anyone claiming through them. The situation appeals to the conscience of the court. We hold that the provisions of the statute as to the time of recording are directory and, under the circumstances of the instant case, defendant is estopped to question the validity of plaintiff’s deed.
The decree is affirmed, with costs to appellee.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Butzel, and Edward M. Sharpe, JJ., concurred. | [
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Wiest, J.
This is an original proceeding in mandamus. Plaintiff is a constitutional officer, being one of the circuit judges of the sixth judicial circuit, comprising the county of Oakland. He was elected to that office in April, 1929, for a term of six years, commencing January 1, 1930, and is-now serving. At the time of his election and commencement of service, his salary, fixed by legislative enactment, was $6,000 per annum, payable by the State, and an additional salary of $5,000, payable by the county of Oakland, under resolution of the board of supervisors. The Oakland board of supervisors, at its session in the fall of 1933, by resolution, decreased the salary to be paid by the county to circuit judges to $2,000 per year. In February, 1934, plaintiff served a written demand on the board of supervisors and board of county auditors of Oakland county for the payment of his salary at the rate of $5,000 per year. Upon refusal to comply this proceeding was instituted.
The main question relates to the power of the board of supervisors to decrease plaintiff’s salary after he assumed office on January 1, 1930, in view of the provisions of article 16, § 3, of the Constitution. The applicable part of that section reads:
“Salaries of public officers, except circuit judges, shall not be increased, nor shall the salary of any public officer be decreased, after election or appointment. ’ ’
Circuit judges are excepted from the inhibition on increase of salary; while all public officials are with in the inhibition against decrease of salary during term of office. The mandate applies to all public officers having fixed terms and to all salary-fixing bodies. See Crawford v. Hunt, 41 Ariz. 229 (17 Pac. [2d] 802).
The Constitution, article 7, § 12, empowered the board of supervisors to fix additional salary. It reads:
“Each of the judges of the circuit courts shall receive a salary payable monthly. In addition to the salary paid from the State treasury, each circuit judge may receive from any county in which he regularly holds court such additional salary as may be determined from time to time by the board of supervisors of the county. In any county where such additional salary is granted it shall' be paid at the same rate to all circuit judges regularly holding court therein.”
The legislature, under that section, fixed the annual salary to be paid circuit judges by the State at the sum of $6,000. 3 Comp. Laws 1929, § 13673. The board of supervisors of Oakland county had, previous to plaintiff’s entry upon his term of office, fixed the additional salary at the sum of $5,000 per annum.
Defendants rely upon the holding in Adsit v. Smith, 129 Mich. 4. We need but point out that the Constitution, at that time in its temporary schedule, inhibited the legislature only from increasing or diminishing compensation of officers. The Constitution of 1908 clearly extends the inhibition against decreases to the board of supervisors. The language “such additional salary as may be determined from time to time by the board of supervisors of the county,” was stressed in the Adsit Case and was of signal moment for at that time there was no re straint elsewhere imposed by the Constitution, and this permitted change at any time. The same language is in the present Constitution but subjected to the mentioned restraint on decrease after election or appointment.
The board of supervisors had no power to decrease the salary during plaintiff’s term of office.
It is urged in behalf of defendants that section 21, added to article 10, of the Constitution, by amendment in 1932, operates to nullify, modify or repeal, by implication or otherwise, article 10, § 3, and any statute enacted to carry out the provisions of such section 3.
Section 3 of article 10 requires the legislature to provide by law a uniform rule of taxation. Section 21 of article 10 (1932 amendment) relates also, to taxation and provides :
“The total amount of taxes assessed against property for all purposes in any one year shall not exceed one and one-half per cent, of the assessed valuation of said property, except taxes levied for the payment of interest and principal on obligations heretofore incurred, which sums shall be separately assessed in all cases: Provided, that this limitation may be increased for a period of not to exceed five years at any one time, to not more than a total of five per cent, of the assessed valuation, by a two-thirds vote of the electors of any assessing district, or when provided for by the charter of a municipal corporation: Provided further, that this limitation shall not apply to taxes levied in the year 1932.”
It is said that article 10, § 3, and appropriate legislation thereunder, relative to assessment, levy and collection of taxes, afforded the county revenue sufficient to meet operating expenses, inclusive of salaries of officials, but section 21 of that article established a maximum rate of taxation rendering it mandatory to reduce salaries of all officers and curtail expenses, else the county could not function, and plaintiff’s salary reduction was hut one instance out of the many reductions made.
By Act No. 62, Pub. Acts 1933, the legislature provided for property tax limitation, under article 10, § 21, by setting up a method of equalization and allocation among governmental units, and it is said that the tax allocation commission has allocated for county purposes in Oakland county three and four-tenths of the 15-mill limitation. This will afford a tax of $3.40 per thousand of valuation, to be spread for county purposes, and bring $495,156.12, if collected, of which it is stated, $269,959.20 is devoted to payment of salaries.
We find nothing in article 10, § 21, of the Constitution abrogating the other provisions of the Constitution upon which plaintiff relies. Nor can we consider curtailment of tax revenue a valid ground for reducing plaintiff’s salary during his term of office.
It will be noted that article 10, § 21, expressly provides that the mill limitation may be exceeded for a period of not to exceed five years at any one time, to a total of not more than five per cent, of the assessed valuation, by a two-thirds vote of the electors of the assessment district.
Plaintiff has an existing right to have the salary at the rate of $5,000 per annum paid to him by the county of Oakland and, if necessary, the writ of mandamus will issue.
The question being of public moment there-will be no costs to either party.
Nelson Sharpe, C. J., and Potter, North, Fead, Butzel, and Edward M. Sharpe, JJ., concurred. Bushnell, J., did not sit. | [
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Riley, C.J.
In these cases, consolidated for purposes of appeal, we are asked to determine whether the trial courts erred in refusing to give jury instructions on common-law and statutory involuntary manslaughter and self-defense. If we conclude that the trial courts erred, then we must also decide whether the errors were harmless.
In People v Heflin, we hold that the trial court did not err in refusing to instruct the jury regarding the offense of statutory involuntary manslaughter even though it instructed the jury regarding voluntary manslaughter. We reverse the decision of the Court of Appeals and reinstate the decision of the trial court.
In People v Landrum, we would hold that the trial court did not err in failing to give, sua sponte, an instruction regarding common-law involuntary manslaughter. We also would hold that the trial court’s instruction to the jury adequately presented defendant’s theory of self-defense. Therefore, we reverse the decision óf the Court of Appeals and reinstate the decision of the trial court.
I. PACTS AND PROCEEDINGS
A. PEOPLE v HEFLIN
On August 3, 1984, defendant shot and killed his son-in-law, Rory "Rich” Petersen. The prosecutor charged defendant with first-degree murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). A jury convicted defendant of second-degree murder, MCL 750.317; MSA 28.549, and felony-firearm. Defendant received a prison term of nineteen to forty years for the second-degree murder conviction and the mandatory two-year prison term for the felony-firearm conviction.
At approximately 3:30 p.m. on the afternoon of the fatal shooting, Wilma Heflin, defendant’s wife, and Marcia Petersen, defendant’s daughter and the deceased’s wife, were canning food at the defendant’s home. Rich Petersen, who had earlier dropped his wife and children off at defendant’s home, drove into defendant’s driveway to pick up Marcia and their two children, Tara and Joshua Richard. He never left his car. Marcia came outside and asked Rich to return in about an hour. Rich left immediately.
Defendant confronted Marcia about the incident and became enraged after Marcia confirmed his suspicion that Rich had just driven up his driveway. Apparently, defendant had warned Rich not to come onto defendant’s property. Defendant and his wife asserted that the animosity they felt toward Rich was premised partially on their belief that Rich physically abused Tara and Joshua.
At the time of the confrontation between defendant and Marcia, defendant had noticed several bruises on Tara’s face and threatened to beat Marcia if he ever saw the child’s face bruised again. Marcia claims that defendant slapped her at that moment, causing her to lose her balance and fall; whereas, defendant claims that he accidentally knocked Marcia down when he reached over to pick up Tara. In either case, Marcia grabbed the children and ran home. Rich became angry after Marcia entered their home crying that defendant had hit her. Rich got into his car and drove toward defendant’s house.
Defendant testified that he noticed Rich driving down his street at approximately forty to forty-five miles per hour, honking his horn. Defendant went into the house, retrieved a loaded 12-gauge shotgun from behind the front door, and reappeared in the front yard. Rich stopped the car in the street and yelled, "yeah ... I beat her. What are you going to do about it?” at which point defendant testified he saw Rich reach over toward the passenger side of the car for what defendant thought was a gun. Defendant shot and killed Rich. The evidence established that he fired all five rounds from the shotgun. However, defendant only remembers shooting the gun one time. Rich was shot twice, and died almost instantaneously.
At trial, defendant admitted shooting Rich, but argued that he acted in self-defense and for the safety of his daughter and granddaughter. He also stated that he felt fearful and angry when he saw Rich approaching his house. In addition, defendant’s wife testified that Rich had threatened the Heflins on several prior occasions._
The trial judge instructed the jury regarding the charges of first- and second-degree murder, self-defense, and voluntary manslaughter, but he refused defendant’s request to instruct the jury for the offenses of statutory involuntary manslaughter, involuntary manslaughter, reckless use of a firearm, and arguably imperfect self-defense. During deliberation, the jury requested that the judge reinstruct them with regard to first- and second-degree murder and manslaughter. The judge complied. The jury convicted defendant of second-degree murder and felony-firearm.
Defendant appealed, and the Court of Appeals reversed in an unpublished per curium opinion and remanded the case for a new trial. The Court of Appeals held that the trial court committed prejudicial error in refusing to instruct the jury regarding the lesser included offense of statutory involuntary manslaughter. This Court granted leave to appeal in consolidation with People v Landrum, limited to the issue whether the trial judge must instruct the jury regarding the offense of statutory involuntary manslaughter when it also instructs the jury regarding voluntary manslaughter.
B. PEOPLE v LANDRUM
A jury convicted defendant of second-degree murder, MCL 750.317; MSA 28.549, for the beating death of sixty-seven-year-old Henry Thomas on December 5, 1983. Defendant, an admitted prosti tute, stated that she met Thomas at a local bar a week earlier and that he solicited her services then, but had no money. Defendant told Thomas to return when he had money. On December 5, Thomas returned to the bar and requested that the defendant accompany him to his residence. Defendant agreed after Thomas promised to pay her thirty dollars when they got to Thomas’ house. On the way to defendant’s home, they stopped off at a local liquor store to pick up some whiskey.
Defendant and Thomas drank the whiskey and danced for about an hour after they first arrived at Thomas’ house. Shortly thereafter, Thomas told defendant to take off her blouse. Defendant agreed to do so, but only after Thomas paid her the thirty dollars that they previously agreed upon. Thomas never responded. The two resumed dancing. Defendant stayed because she assumed that Thomas would eventually pay her the thirty dollars. After approximately an hour, Thomas said that he had the money and asked defendant to go into the bedroom. Defendant complied. On the way to the bedroom, Thomas pushed defendant toward the bedroom and stated that he had decided not to pay defendant, but that they would have sex anyway. Once again, defendant said that Thomas had to pay her before she would have sex with him. At this point, Thomas told defendant that she could either "fuck or fight.” Defendant got undressed and into the bed. Defendant stated that she was not afraid Thomas would kill her. She continued to protest that Thomas should pay her. Thomas disrobed and began to climb on top of defendant when she hit him on the head with the telephone receiver. Thomas started bleeding profusely. Thomas grabbed defendant as she tried to get out of the bed, and the two fell to the floor. Defendant hit Thomas with the end table. She ran into the bathroom and closed the door.
Defendant stated that Thomas tried to force his way into the bathroom. Defendant moved away from the door, allowing it to swing open. Thomas’ momentum carried him into the bathtub. Thomas pulled defendant into the bathtub and the two continued to fight. Defendant managed to get out of the bathtub. Thomas followed defendant and pushed her into the toilet, breaking the toilet seat. Defendant grabbed a bottle and beat Thomas with it several times. Next, defendant pushed Thomas back into the bathtub. Defendant grabbed the telephone receiver and continued to pummel Thomas every time he attempted to get out of the tub. Defendant stated that Thomas eventually gave up and appeared ready to fall asleep. As defendant got dressed, she heard defendant say, "[b]abe, are you still here?” Defendant replied, "[y]eah, I’m still here.” Thomas repeated the question as defendant left the apartment.
Defendant went to a friend’s house to clean Thomas’ blood off herself and change her bloodstained clothes. She also testified that she attempted to call Thomas to make sure that he felt all right. Nobody answered. The police found Thomas dead in the bathroom and the bathroom virtually painted with his blood. Thomas had two broken ribs and a broken nose. Thomas had numerous cuts on his face and forehead, and several fractured teeth. He died due to an obstruction of his upper airway by blood and debris (his fractured teeth). Defendant, on the other hand, emerged from the fight relatively unscathed. The police arrested defendant the next day. She admit ted killing Thomas, but claimed she did not intend to do so and acted in self-defense.
The prosecutor charged defendant with first-degree murder. The trial judge instructed the jury with regard to second-degree murder, self-defense, and, sua sponte, voluntary manslaughter. The trial court refused to instruct the jury with regard to common-law involuntary manslaughter ("gross negligence”).
The jury found defendant guilty of second-degree murder. The Court of Appeals reversed defendant’s conviction in a published per curiam opinion. People v Landrum, 160 Mich App 159; 407 NW2d 614 (1986). This Court remanded for reconsideration in light of People v Beach, 429 Mich 450; 418 NW2d 861 (1988). The Court of Appeals again reversed in another per curium opinion. People v Landrum (On Remand), 171 Mich App 148; 429 NW2d 818 (1988). The Court of Appeals concluded that the trial court’s failure, sua sponte, to instruct with regard to common-law involuntary manslaughter failed to allow the jury to convict defendant of an offense consistent with the theory of her case. This Court granted leave to appeal in consolidation with People v Heflin, limited to the following issues: (1) whether the trial court erred in not giving, sua sponte, an instruction regarding the offense of common-law involuntary manslaughter, (2) if so, whether the error was harmless, and (3) whether the trial court’s instruction adequately presented the defendant’s claim of self-defense to the jury.
II. PRIMARY LEGAL PRINCIPLES
LESSER INCLUDED OFFENSE INSTRUCTIONS
This Court addressed the legal doctrines necessary to resolve issues involving lesser included offense instructions in People v Beach, supra at 460-465. In Beach, we reaffirmed the distinction between "necessary” and "cognate” lesser included offenses. Necessarily included lesser offenses are those in which the defendant cannot commit the greater offense without also committing the lesser offense. On the other hand, cognate lesser included offenses are those in which the lesser offense shares some common elements with the greater offense, but which may also include some elements not found in the greater offense. Id. at 461; People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).
This distinction becomes important in determining when a trial judge must instruct the jury with regard to a particular lesser included offense. In Beach, this Court articulated the following rule:
[W]hen the lesser offense is necessarily included, rather than cognate, the evidence will always support the lesser offense if it supports the greater. However, cognate offenses require the evidence in each particular trial to be examined to determine whether the specific evidence adduced would support a conviction of the requested lesser offense.
... A Michigan defendant may request and receive necessarily included offense instructions without regard to the evidence, and a cognate lesser included offense instruction if the evidence adduced at trial would support a conviction of the requested lesser offense. [Id. at 463-465.]
It is against this backdrop that we must decide the cases before us today.
III. ANALYSIS
A. PEOPLE v HEFLIN
Defendant primarily contends that the trial court erred when it refused defendant’s requested instruction to the jury regarding the offense of statutory involuntary manslaughter when it also instructs the jury regarding voluntary manslaughter. MCL 750.329; MSA 28.561 defines statutory manslaughter as:
Any person who shall wound, maim or injure any other person by the discharge of any firearm, pointed or aimed, intentionally but without malice, at any such person, shall, if death ensue from such wounding, maiming or injury, be deemed guilty of the crime of manslaughter.
Initially, defendant argues that statutory involuntary manslaughter is a cognate lesser included offense of murder. Although previously we have held that common-law involuntary manslaughter is a cognate lesser included offense of murder, we have not specifically addressed the issue whether statutory involuntary manslaughter similarly falls within the cognate offenses to murder. Beach, supra at 476; People v Richardson, 409 Mich 126, 135; 293 NW2d 332 (1980); People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978); People v Paul, 395 Mich 444, 449-450; 236 NW2d 486 (1975). Today, we remove any doubt and conclude that statutory involuntary manslaughter is a cognate lesser included offense of murder.
Thus, defendant in the instant case argues that under Ora Jones, the trial court should have instructed the jury regarding the lesser offense of statutory involuntary manslaughter because the evidence would support a conviction under the statute. Defendant advances the argument that if the prosecutor does not have to establish "without malice” beyond a reasonable doubt, then the defendant does not have to disprove "without malice” to warrant an instruction regarding the statutory offense. In turn, defendant relies upon People v Doss, 406 Mich 90, 98, n 3; 276 NW2d 9 (1979), in which we recognized that the Michigan Criminal Jury Instruction 16:4:06 accurately set forth the elements of statutory involuntary manslaughter:
(1) That the deceased died on or about a date;
(2) That the death was caused by an act of the defendant;
(3) That the defendant caused the death without lawful justification or excuse;
(4) That the death resulted from the discharge of a firearm;
(5) That at, the time of such discharge, the defendant was pointing or aiming the firearm at the deceased; and
(6) That at the time of such discharge, the defendant intended to point or aim the firearm at the deceased.
Defendant argues that because the evidence sup ports each element of the applicable criminal jury instruction, the trial court must give the requested instruction. Defendant relies upon two Court of Appeals decisions which held that "the only proof necessary to support the charge [under MCL 750.329; MSA 28.561] was that [the] defendant intentionally pointed the gun at [the decedent] and that she died as a result of the subsequent discharge of the firearm.” People v Germain, 91 Mich App 154, 159; 284 NW2d 260 (1979), rev’d on other grounds 411 Mich 858 (1981); People v Michael Fuqua, 146 Mich App 133, 139; 379 NW2d 396 (1985). Admittedly, if we agree with defendant and the two Court of Appeals decisions, then refusal to give the requested instruction constitutes error in the instant case.
However, even if we agreed with the defendant that he satisfied all the elements of statutory involuntary manslaughter, we disagree that the trial court erred in not instructing the jury on the offense. Rather, we agree with the plaintiff that defendant misinterprets Ora Jones and that the Court of Appeals wrongly decided Germain and Michael Fuqua. Furthermore, we also disagree with the dissent that Doss is nearly indistinguishable from the instant cage. In Doss, we held that the plaintiff does not have to prove "without malice” in order to establish commission of the alleged offense. In our opinion, a significant difference exists between requiring the plaintiff to prove a negative element and a situation in which the defendant concedes that he intentionally killed the victim, but argues that he had a legal justification for doing so. In the instant case, defendant could have required the prosecutor to prove that the defendant had the requisite mens rea for murder either by not conceding as much or arguing in the alternative. He chose not to do so. Rather, he chose to concede an element in order to proceed with his sole ground for defense. He cannot now seek reversal on the basis of the trial court’s refusal to instruct the jury on an offense inconsistent with the evidence and defendant’s theory of the case. Thus, the trial court properly refused to give the requested instruction because the entire basis of defendant’s defense consisted of self-defense.
In Ora Jones, the trial judge instructed the jury with regard to murder in the second degree and voluntary manslaughter. The defendant never objected to these instructions. However, before the jury began deliberation, defense counsel requested instructions regarding the statutory offense killing or injuring a person by careless, reckless, or negligent discharge of a firearm. The trial court refused to give this instruction. This Court held that the trial judge erred in refusing to give the instruction. We also held that the trial court committed error requiring reversal in giving a misleading instruction regarding manslaughter because it instructed the jury regarding voluntary manslaugh ter, but not involuntary manslaughter. However, the defendant argues that Ora Jones stands for the proposition that anytime a trial judge instructs the jury with regard to voluntary manslaughter, it must also instruct the jury with regard to involuntary manslaughter. We do not agree.
Rather, in our opinion, a more careful analysis of Ora Jones and its progeny reveals that it cannot be construed so broadly. Rather, we draw the rule of Ora Jones more narrowly, applying it only when either party offers some evidence consistent with the requested instruction. In Ora Jones, the prosecutor argued that the defendant killed the deceased intentionally. The defendant on the other hand, contested that he accidentally killed the deceased. As the Court stated:
During both his opening statement and closing argument, defense counsel asserted the shooting was accidental. During his closing argument he also alluded to the fact that the jury might find the defendant guilty of manslaughter rather than murder in the second degree. [Id. at 385.]
Similarly, the Court stated:
The prosecutor claimed intentional shooting, the defendant maintained it was accidental. The jury was not obliged to accept either theory but could have concluded that the killing was the result of criminal negligence, e.g., involuntary manslaughter. Had the judge not instructed at all on manslaughter, there would be no reversible error, because no request for instruction on manslaughter was made. See People v Henry, 395 Mich 367; 236 NW2d 489 (1975).
Having undertaken to do so, however, it was reversible error to give a misleading instruction which recognized only the prosecution’s theory but not the defendant’s.
The defense theory was accidental shooting. The trial court’s instruction did not adequately present this to the jury. [Id. at 393-394.]
Thus, the trial judge in Ora Jones erred in not instructing the jury regarding involuntary manslaughter because defendant produced some evidence consistent with an instruction regarding involuntary manslaughter, specifically, that he accidentally killed the victim. In our opinion, the rationale of Ora Jones makes perfect sense; if the trial court instructs the jury regarding the defendant’s theory of the case, then it must do so correctly. Otherwise, an instruction only with regard to voluntary "heat of passion” manslaughter fails to convey the theory of defendant’s case to the jury, that defendant accidentally killed the deceased. People v Martin, 130 Mich App 609; 344 NW2d 17 (1983).
We find the cases which relied upon Ora Jones similarly inapplicable to the facts of the instant case. For example, in People v Richardson, supra, the defendant argued at trial that the deceased died as the result of the accidental discharge of the firearm. The trial judge instructed the jury regarding first- and second-degree murder and voluntary manslaughter. Defendant requested instructions regarding manslaughter and careless discharge of a firearm. The trial judge instructed the jury only with regard to the additional offense of voluntary manslaughter. The Richardson Court concluded that the trial court erred. As the Court stated,
In the present case the prosecutor’s theory was that the defendant, with premeditation, deliberation, and malice, intentionally killed Paul Cook. The defense case offered, in differing measures, ingredients of provocation, accident, self-defense, and "criminal” negligence of the kind that attends involuntary manslaughter. Our review of the record convinces us that there was evidence presented . . . which would have supported a conviction of involuntary manslaughter. [Id. at 136-138. Emphasis added.][ ]
See also People v Arthur Jones, 419 Mich 577; 357 NW2d 837 (1984); People v West, 408 Mich 332, 343; 291 NW2d 48 (1980); People v Paul, supra; Martin, supra; People v Jones, 76 Mich App 601, 604-605; 257 NW2d 185 (1977). Cf. People v King, 98 Mich App 146; 296 NW2d 211 (1980) (some evidence of provocation is needed before it is error to refuse a request regarding voluntary manslaughter). The defendant in each of these cases presented some evidence consistent with the crime of involuntary manslaughter.
However, in the instant case, defendant never argued that he accidentally or unintentionally killed Rich Petersen. Rather, he steadfastly maintained throughout the trial that he shot and killed the victim in self-defense. In Michigan, the killing of another person in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm. Doss, supra at 102-103; People v Lenkevich, 394 Mich 117, 124; 229 NW2d 298 (1975); People v Giacalone, 242 Mich 16, 21-22; 217 NW 758 (1928); People v Macard, 73 Mich 15, 20; 40 NW 784 (1888); People v Pond, 8 Mich 150, 175 (1860); People v Garfield, 166 Mich App 66, 76-77; 420 NW2d 124 (1988); People v Green, 113 Mich App 699, 704; 318 NW2d 547 (1982); People v Oster, 67 Mich App 490, 501; 241 NW2d 260 (1976); People v Perez, 66 Mich App 685, 692; 239 NW2d 432 (1976); People v Shelton, 64 Mich App 154, 156-157; 235 NW2d 93 (1975). A finding that a defendant acted in justifiable self-defense necessarily requires a finding that the defendant acted intentionally, but that the circumstances justified his actions. People v Plozai (On Remand), 139 Mich App 802, 809-810; 362 NW2d 867 (1984) (the defendant admitted killing the deceased in self-defense; "[u]nlike Richardson, where the shooting was claimed to be unintended because it was accidental, defendant in the present case made no claim that his actions were anything but intentional”).
Conversely, a defendant who relies entirely upon the defense of self-defense cannot expect the trial judge to instruct the jury regarding statutory involuntary manslaughter, a crime neither supported by the evidence nor presented to the jury by the defendant or the prosecutor. People v Carter, 387 Mich 397, 422-423; 197 NW2d 57 (1972); People v Heard, 103 Mich App 571; 303 NW2d 240 (1981); People v Livingston, 63 Mich App 129, 134-135; 234 NW2d 176 (1975). A holding to the con trary defies both logic and common sense. We do not imply that a defendant may not maintain inconsistent defenses. However, a trial court need not instruct the jury on inconsistent theories when neither party produces a modicum of evidence in support of a particular theory. As this Court stated in Carter, "[i]n a criminal case, if there is a request to charge as to a lesser included offense, but there is no evidence of such a lesser included offense, or the facts are such that the court or the jury would be obliged to conclude that the defendant was guilty of the offense charged or not guilty, no charge as to a lesser included offense need be given.” Id. at 422-423. We agree and so hold. Otherwise, the jury conceivably could convict a defendant of a lesser crime upon the basis of factors inconsistent with and wholly unrelated to the evidence introduced at trial.
In our opinion, in promulgating the involuntary manslaughter statute, the Legislature intended to punish the intentional pointing of a firearm which results in death even though the defendant did not act with the criminal intent sufficient for conviction under common-law involuntary manslaughter. People v Maghzal, 170 Mich App 340, 345; 427 NW2d 552 (1988); People v Duggan, 115 Mich App 269, 272; 320 NW2d 241 (1982). For example, the Court of Appeals recently addressed the purpose of statutory involuntary manslaughter:
The general rule appears to be that, when a person points a gun at someone as a joke, reason ably believing the gun not to be loaded, and pulls the trigger and the gun discharges and kills the victim, he is guilty of manslaughter. 40 Am Jur 2d, Homicide, § 95, p 390. [Maghzal, supra at 345.]
In Maghzal, the defendant killed her husband when she jokingly pointed and fired a gun at him. The defendant stated that she took the clip out and thought the gun was empty. In a bench trial, the trial court considered the crime of second-degree murder, but refused the defendant’s request to consider common-law and statutory involuntary manslaughter. The Court of Appeals reversed and held, "[t]he defense theory was accidental shooting; defense counsel argued the two lesser offenses in closing argument. We rule that the factfinder must address those theories argued by defendant and which were supported by the facts.” Id. at 347. We agree with the Court of Appeals application of statutory involuntary manslaughter as applied to the facts of Maghzal.
Conversely, in the instant case, we hold that the trial judge did not err in refusing to instruct the jury regarding the offense of statutory involuntary manslaughter even though it instructed the jury regarding voluntary manslaughter. We reverse the decision of the Court of Appeals and reinstate the decision of the trial court.
S. PEOPLE v LANDRUM
Our analysis begins first with the issue whether the trial court erred in failing to instruct the jury, sua sponte, regarding common-law involuntary manslaughter in the instant case. The circuit judge instructed the jury as to second-degree murder and, sua sponte, as to voluntary manslaughter. The trial court refused to instruct the jury regarding common-law involuntary manslaughter. Defen dant never objected to these instructions. Defendant concedes that if the trial judge did not instruct the jury, sua sponte, regarding voluntary manslaughter, then he would not have to instruct the jury regarding common-law involuntary manslaughter. However, defendant argues that once a trial judge instructs a jury, sua sponte, regarding voluntary manslaughter, he must also instruct the jury regarding common-law involuntary manslaughter. We disagree.
In Heflin, we concluded that even if defendant requested an instruction with regard to a cognate lesser included offense, the trial judge must only issue the lesser included offense instruction when the evidence adduced at trial would support a conviction of that crime. We relied upon Ora Jones, in which this Court held that the trial court erred in not instructing regarding involuntary manslaughter even though the defendant never requested the instruction because the trial court’s instruction did not accurately reflect defendant’s theory of the case. Ora Jones, supra at 393-394; see also Richardson, supra at 137-138; Martin, supra. We find Ora Jones equally applicable in the instant case. Thus, we must determine whether defendant introduced evidence at trial that would support a conviction of involuntary manslaughter. If she did, then the trial judge must instruct the jury regarding common-law involuntary manslaughter. Ora Jones, Arthur Jones, Chamblis, and Heard, supra.
Defendant’s assertion that the evidence supported the crime of involuntary manslaughter presents a narrow issue of first impression for this Court, specifically, whether Michigan will recognize the doctrine of "imperfect” or "qualified” self-defense as a means of mitigating murder to involuntary manslaughter.
Generally, other jurisdictions apply imperfect self-defense to situations in which defendant acted in self-defense, but with excessive force, or as the initial aggressor. People v Morin, 31 Mich App 301, 311, n 7; 187 NW2d 434 (1971) (Levin, J.); People v Deason, 148 Mich App 27, 31-32; 348 NW2d 72 (1985); State v Powell, 84 NJ 305, 313; 419 A2d 406 (1980); Perkins & Boyce, Criminal Law (3d ed), pp 1137-1143. Some Michigan Court of Appeals panels would limit application of the doctrine to the latter situation. People v Amos, 163 Mich App 50; 414 NW2d 147 (1987); People v Vicuna, 141 Mich App 486; 367 NW2d 887 (1985); People v Springer, 100 Mich App 418; 298 NW2d 750 (1980). In the instant case, defendant admits that she killed Thomas in self-defense, but she argues that she used excessive force and, therefore, accidentally killed Thomas.
In Michigan, " 'involuntary manslaughter is the unintentional killing of another without malice in (1) the commission of some unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm, or (2) the commission of some lawful act, negligently performed or (3) in the negligent omission to perform some legal duty.’ ” Beach, supra at 477; Richardson, supra at 135-136; People v Townes, 391 Mich 578, 590-591; 218 NW2d 136 (1974). As applied in the instant case, defendant contends that the trial court erred in not instructing the jury regarding common-law involuntary manslaughter, asserting that the second definition is implicated. " 'Involuntary manslaughter is the unintentional killing of another without malice in . . . the commission of some lawful act, negligently performed . . . .’ ” Beach, supra at 477. While we agree that the imperfect self-defense theory has yet to be considered by this Court, we do not agree that adoption of the theory would require an instruction regarding common-law involuntary manslaughter in this matter.
As we stated in Heflin, supra, "the killing of another person in self-defense is justifiable homicide if the defendant honestly and reasonably believes that his life is in imminent danger or that there is a threat of serious bodily harm.” Thus, an act committed in self-defense which conforms to this definition constitutes a lawful act. However, an act committed in self-defense but with excessive force or in which defendant was the initial aggressor does not meet the elements of lawful self-defense. Therefore, by definition, "imperfect self-defense” is an unlawful act that does not fall within the definition of common-law involuntary manslaughter: a lawful act negligently performed. We would so hold.
Lastly, we address the issue whether the trial court’s instruction regarding self-defense adequately presented the defendant’s claim of self-defense to the jury. The trial court’s instruction complied with the criminal jury instruction that permits the use of deadly force in self-defense. CJI T&Ol. Defendant never objected to this instruc tion. Although the jury instructions require the trial judge to instruct the jury that the defendant may use deadly force if threatened with impending death or bodily harm, they do not require the trial judge to specifically inform the jury that the defendant may use deadly force to repel a potential forcible rape.
Over a century ago, this Court equated common-law rape with the most atrocious felonies. People v Pond, supra at 181-182. One could even argue that common-law rape was the ultimate intrusion that one person forces upon another. The victim suffered the strong likelihood of irreparable physical and psychological harm. Kates & Engberg, Deadly force self-defense against rape, 15 U Cal Davis L R 873 (1982). Only an archaic system of justice would suggest that a woman cannot use deadly force to defend herself against common-law rape. Therefore, it necessarily follows that a woman who fears being raped, also fears the threat of serious bodily harm. Not surprisingly, the defendant requests that this Court adopt a rule which would require the trial court to instruct the jury per se that a defendant may employ self-defense to repel a potential forcible rape.
However, neither party recognizes the difficulties the trial judges would have imposing such a broad rule. The Legislature codified and expanded common-law rape into varying degrees of "criminal sexual conduct” in 1974. MCL 750.520a et seq.; MSA 28.788(1) et seq. Unlike common-law rape, under these statutory provisions, forcible criminal sexual conduct may arise from circumstances in which the victim never had an honest and reasonable belief that his life is in imminent danger or threat of serious bodily harm. See, e.g., MCL 750.520b(l)(f)(iii), 750.520d(l)(b); MSA 28.788(2)(l)(f) (iii), 28.788(4)(l)(b). Rather than specify each and every statutory definition of criminal sexual conduct that would mandate an instruction regarding self-defense, we would hold that a person may use deadly force in self-defense to repel a criminal sexual assault when confronted with force that the person reasonably believes could result in imminent death or serious bodily harm. This instruction addresses the delicate balance between the well-established doctrine of self-defense on the one hand, and the extremely egregious and personally intrusive crime of criminal sexual conduct on the other. Accordingly, we would hold that a trial court should instruct the jury that a person may use deadly force in self-defense to repel a criminal sexual assault when confronted with force that the person reasonably believes could result in imminent death or serious bodily harm.
However, our resolution of this broader issue does not resolve the specific issue upon which this Court granted leave to appeal: "whether the trial court’s instruction adequately presented the defendant’s claim of self-defense to the jury.” Defendant never objected to the trial judge’s issuance of the criminal jury instruction. Consequently, we will only reverse the decision of the trial court if it resulted in manifest injustice. People v Kelly, 423 Mich 261; 378 NW2d 365 (1985). We would hold that it did not.
Plaintiff persuasively argues that the trial judge and counsel adequately instructed the jury that rape constitutes serious and imminent bodily injury. Defense counsel focused his voir dire inquiry upon the issue whether any potential juror had difficulty in returning a verdict of not guilty when defendant, a prostitute, used deadly force in self-defense to defend against a rapist. Most significantly, defense counsel reemphasized this point during closing arguments: ■
I asked you, ladies and gentlemen, is there any question in the minds of any one of you as to whether there could be a rape or an attempted rape of a prostitute and you all indicated by your silence that yes, there can be, and you are right. I asked you if there was any question in your mind as to whether or not rape is an act of great bodily harm. I submit to you that each of you, using your common sense, would definitely say yes. The rape of any woman, ladies and gentlemen, can cause her not only great bodily harm and mental harm, but it may last for a lifetime.
Let’s get to the meat of this thing, and I certainly don’t intend to take a great deal of time in my talking with you. There is no question but that Henry Green Thomas died and is a probability that he, himself, fell in the tub and there is also that reasonable possibility that the acts of Celestine Landrum, what she did, may have caused or contributed to the death of Henry Green Thomas. What she did, did she have a right to do? There again, I stated to you that defending herself against a rape or an attempted rape is an absolute right and if she did so in order to prevent that rape or in order to prevent great bodily harm, the Court will instruct you that then she had a right to do anything that she could do even to the point of taking a life. [Emphasis added.]
In our opinion, these statements, the conformity of the trial court’s self-defense instruction to the criminal jury instructions, the tenor of the entire trial court proceeding, and defendant’s failure to object to the issuance of these instructions, adequately presented defendant’s theory of self-defense to the jury in the instant case. We do not believe that the instruction in the instant case resulted in the type of manifest injustice that this Court contemplated in Kelly when it stated that " '[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.’ ” Kelly, supra at 272; Henderson v Kibbe, 431 US 145, 154; 97 S Ct 1730; 52 L Ed 2d 203 (1976).
Accordingly, we reverse the decision of the Court of Appeals and reinstate the decision of the trial court.
In Heflin, Brickley, Boyle, and Griffin, JJ., concurred with Riley, C.J.
In Landrum, Griffin, J., concurred with Riley, C.J. Brickley and Boyle, JJ., concurred in the result only.
MCL 750.329; MSA 28.561.
Defendant admitted that he considered Rich "a no-good bastard.” Defendant’s wife referred to Rich as a "leach and a sponge.” Defendant’s son, Joey Heflin, stated that defendant had previously threatened to "stop his (Rich Petersen’s) ass,” and his wife testified that some months earlier, defendant "probably would have beat him to death.” On the other hand, defendant’s wife also stated that Rich had threatened them on numerous occasions.
Some evidence suggested otherwise. The police found an empty box of 12-gauge shotgun shells on the bed in the guest bedroom. At the very least, this raised the inference at trial that defendant went into the house, retrieved and loaded the shotgun, and then returned outside to confront Petersen.
The police never found a gun in the car. In fact, Marcia testified that defendant knew Petersen did not own a gun.
Defendant did not expressly raise the imperfect self-defense argument. The Court of Appeals disposed of the issue on this basis. This Court denied defendant’s application for leave to appeal, which included the issue of "imperfect self-defense.” 430 Mich 890 (1988). Although defendant requested that we address this issue in his brief and at oral arguments, we decline to do so.
430 Mich 890 (1988).
Thomas had a blood-alcohol level of 0.16 percent. Defendant admitted drinking whiskey with Thomas. She also stated that she had consumed less than Thomas. However, the police never had an opportunity to test her blood-alcohol level.
The trial court dismissed the charged offense of first-degree murder at the close of proofs.
431 Mich 906 (1988).
For example, in Ora Jones, this Court concluded that the trial judge erred in not instructing the jury with regard to statutory involuntary manslaughter, but that the error did not require reversal because defendant never requested the instruction. Id. at 392-393. However, if the court classified the offense as a necessarily included lesser offense, then the trial judge committed error requiring reversal despite defendant’s failure to request the instruction. People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975). By not so concluding in Ora Jones, we tacitly agreed that statutory involuntary manslaughter falls within the cognate offenses to murder. See also People v Doss, 406 Mich 90, 98-99; 276 NW2d 9 (1979) (the presence of malice is the quality that distinguishes murder from manslaughter). In analogous circumstances, we recently classified the statutory offense of killing or injuring a person by careless, reckless, or negligent discharge of a firearm as a cognate lesser included offense to murder. Beach, supra at 462-463.
Since writing People v Germain, the author of this opinion acknowledges that on readdressing the issue sub judice she believes that her analysis in Germain was incorrect.
Plaintiff incorrectly concedes this point.
The dissent claims that we fail to acknowledge and justify our departure from previous precedent set by this Court. The dissent bases its argument upon the premise that "implicit conclusions” constitute binding precedent upon this Court. However, just as obiter dictum does not constitute binding precedent, we reject the dissent’s contention that "implicit conclusions” do so. Therefore, we see no basis for the dissent’s allegations that we have failed to "acknowledge” or "justify” a departure from prior decisions. Put simply, we have not previously decided the issue before us today, and there is no binding precedent from which we must acknowledge or justify a departure.
This Court also held that the trial court did not err in not giving, sua sponte, an instruction regarding the statutory offense of involuntary manslaughter, MCL 750.329; MSA 28.561. Id. at 393.
Even People v Rochowiak, 416 Mich 235, 243; 330 NW2d 669 (1982), which this Court recently has questioned, stated that, "Ora Jones is distinguishable as a case where the defense theory was accident.”
Several older decisions stated that a defendant must only "honestly” believe that his life is in imminent danger or that there is a threat of death or serious bodily harm. People v Lennon, 71 Mich 298, 300-301; 38 NW 871 (1888); People v Burkard, 374 Mich 430, 438; 132 NW2d 106 (1965); People v Deason, 148 Mich App 27, 31; 384 NW2d 72 (1985); People v Robinson, 79 Mich App 145, 156-161; 261 NW2d 544 (1977). Apparently, the dissent believes that this Court has not recently addressed the issue whether the defendant must "honestly and reasonably” or only "honestly” believe his life is in imminent danger. However, in our opinion, this Court addressed and held in Doss that a defendant must "honestly and reasonably” believe his life is in imminent danger to avail himself on the theory of self-defense. We adhere to Doss and those decisions which require both an "honest and reasonable” belief. Furthermore, if "reasonableness” is not an additional element of self-defense, then the "unreasonableness” of defendant’s beliefs should not mitigate murder to manslaughter.
Similarly, this Court has held that a defendant was not entitled to an instruction on self-defense when the trial court instructed the jury on murder and manslaughter because the defendant denied committing the homicide. People v Droste, 160 Mich 66, 80; 125 NW 87 (1910). See also People v Trammell, 70 Mich App 351, 355; 247 NW2d 311 (1976) (the defendant argued that he accidentally killed the victim and, therefore, the trial judge did not err in giving, sua sponte, an instruction on self-defense).
Additionally, we reject plaintiff’s request to overturn People v Arthur Jones, supra. In Arthur Jones, we held that the trial court erred in not instructing the jury regarding involuntary manslaughter because the defendant introduced some evidence by "accident.” Plaintiff wants this Court to adopt the position advocated by the dissent which focused upon whether the defendant requested the instruction on involuntary manslaughter. While the defendant should request the instruction regarding involuntary manslaughter under the circumstances in the instant case, this does not (üminish the trial judge’s duty to issue the requisite lesser included instruction when supported by the evidence and consistent with defendant’s theory of the case.
Conversely, we reject defendant’s contention that we should require the trial judge to instruct the jury regarding involuntary manslaughter anytime the court instructs the jury regarding voluntary manslaughter. We have recognized that voluntary and involuntary manslaughter quite often arise out of different factual scenarios. People v Townes, 391 Mich 578; 218 NW2d 136 (1974). Accordingly, the evidence adduced at trial must be the determinative factor in deciding whether to issue an instruction.
Defendant does not argue that the facts of the instant case fall within the "unlawful act” definition of involuntary manslaughter. Even assuming that the defendant had so argued, we would be constrained to disagree with her under the facts of the instant case. The defendant killed Thomas by repeatedly bludgeoning him to death with a telephone, a bottle, and a leg of a table. These acts either constituted a felonious act (assault with a dangerous weapon) or an act naturally tending to cause great bodily harm (assault with intent to do great bodily harm). Therefore, as we concluded in Beach, the nature of the underlying act precludes characterization of the offense in the instant case as involuntary manslaughter.
Our order granting leave to appeal excluded argument regarding the doctrine of imperfect self-defense. However, in light of statements made at oral argument, in addressing the first issue that we granted leave to appeal to consider, "whether the trial court erred in not giving, sua sponte, an instruction on the offense of involuntary manslaughter,” we must briefly address the doctrine of imperfect self-defense insofar as it applies to the facts of the instant case.
The dissent’s analogy of the instant case to People v Jackson, 390 Mich 621; 212 NW2d 918 (1973), is misplaced. Jackson involved a situation in which the defendant aimed his gun at his adversary but missed and hit an innocent bystander. Thus, Jackson involved the shooting of the bystander and not the person at which the defendant aimed. Had defendant shot his adversary in proper self-defense, and not the bystander, then he would be guilty of no crime. We justify the disparate treatment of these offenses on the ground that the defendant may have an entirely different mental pattern with regard to his intent to kill his adversary versus the bystander. On the other hand, Jackson would be analogous to the instant case if the defendant intentionally killed his adversary, but not in proper self-defense.
Defendant in HeBin cites several cases for the proposition that should require an instruction regarding involuntary manslaughter. People v Clark, 130 Cal App 3d 371, 381-382; 181 Cal Rptr 682 (1982); State v Denny, 27 Ariz App 354; 555 P2d 111 (1976). However, a review of these cases illustrates that in each case, the defendant not only argued self-defense, but also "accidental lulling.” Rather, the majority of jurisdictions that recognize "imperfect self-defense” use it as a method of negating the element of malice in a murder charge. These jurisdictions assimilate it with voluntary manslaughter committed in the “heat of passion” which also negates the malice element of murder. Consequently, in these jurisdictions, "imperfect self-defense” mitigates murder to voluntary manslaughter.
(1) One of the defenses raised in this case is that the defendant acted in lawful self-defense. The law recognizes the right of a person to use force or even to take a life in defense of his own person under certain circumstances. When a person acts in lawful self-defense, such actions are excused and the defendant is not guilty of any crime.
(2) In considering whether or not the defendant acted in lawful self-defense, you should carefully consider all of the evidence in light of the following rules:
(3) First, at the time of the act the defendant must honestly believe that he is in danger of being killed or of receiving serious bodily harm. If he so believes, he may immediately act and defend himself, even to the extent of taking human life if necessary. Although it may now turn out that the appearances were false and that he was mistaken as to the extent of the real danger, he is to be judged by the circumstances as they appeared to him at the time of the act.
(4) Second, the degree of danger which must be feared is serious bodily harm or death. A person is not justified in killing or inflicting great bodily injury upon another in order to protect himself from what appears to be slight or insignificant injury. In deciding whether at the time the defendant feared for his life or safety, you should consider all of the surrounding circumstances: [the condition of the parties, including their relative strength/whether the other party was armed with a dangerous weapon or had other means to injure the defendant/ the nature of the threat or attack of the other party/previous acts of brutality or threats of the other party of which the defendant was aware],
(5) Third, the act or acts taken by the defendant must have appeared to the defendant at the time to be immediately necessary. A person is justified in using only such an amount of force as may appear necessary at the time to defend himself from danger. In considering whether the degree of force appeared to be necessary, you should consider the excitement of the moment and what alternatives the defendant knew existed.
A defendant in a state of excitement is not held to fine distinctions of judgment about how much force is necessary for him to use to protect himself. [CJI 7:9:01.]
The jury instructions only require an "honest” belief. However, as we stated in Heflin, supra, a "defendant [must] honestly and reasonably believe[ ] that his life is in danger or that there is a threat of serious bodily harm.”
The Women Lawyers Association of Michigan filed an amicus curiae brief. For purposes of simplicity, we reference their arguments to defendant.
The plaintiff apparently concedes this, but contends that the trial court adequately instructed the jury on self-defense in the instant case.
The dissent apparently recognizes the problem trial judges would have in deciding which statutory provisions of criminal sexual conduct would require an instruction of a defendant’s right to use deadly force under the longstanding doctrine of self-defense. However, rather than attempt to apply the doctrine as it exists to the facts of a particular case, the dissent redefines the rule as it applies to all criminal sexual conduct. The dissent bases its decision upon the following analogy: "[t]his Court has the luxury of interpreting common-law formulations to reach a correct result. The Court can say that a tomato is a vegetable even though it is a fruit.” Post, p 557 (Levin, J.).
In other words, the dissent believes that this Court can call something that which it is not. Although nobody disagrees that "rape” is one of the most reprehensible crimes, we cannot agree with the dissent that we should create a different and special rule that would allow the use of deadly force to any and all allegations of criminal sexual conduct. While the dissent’s proposed rule may be socially appealing, we believe it sets dangerous legal precedent. For example, what happens in a case involving self-defense of another? Under traditional notions of this doctrine, the third party steps into the shoes of the individual threatened. However, under the dissent’s proposed rule, it would seem that a person who overhears a man threaten a woman with future injury if she does not consent to sexual intercourse would be justified in killing the threatening person. Although we doubt the dissent intends this result, it is the logical extension of its rule in the instant case. Of course, we suppose that just as the dissent created a special rule of self-defense to meet all the statutory crimes of criminal sexual conduct, it could also conclude that the special rules it adopts today only apply to a woman being attacked. As the dissent states, "[t]his Court can say that a tomato is a vegetable even though it is a fruit.” In our opinion, rather than altering the law in the instant case, we prefer to apply it in a consistent and workable manner, while at the same time making sure that those threatened with criminal sexual conduct have the ability to defend themselves with the amount of force necessary under the circumstances.
1974 PA 266.
We reject defendant’s contention that the prosecutor misled the jury during closing arguments when he argued that defendant did not act in self-defense, but rather murdered Thomas for money. Plaintiff argued throughout the trial that defendant beat Thomas to death because he would not pay her for having sex with him, not because she feared serious bodily harm or being raped. Defendant argued that defendant acted in self-defense. It is not surprising that the prosecutor stressed the facts which best supported his theory of the case; whereas, defendant argued those which supported her theory of the case. However, this does not mean that the jury did not receive instructions which adequately apprised them of defendant’s theory of self-defense. The trial court and defendant made sure the jury understood defendant’s right to use deadly force under the facts of the instant case. | [
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Ryan, J.
We granted leave to appeal in this case, and in Moody v Pulte Homes, Inc, 423 Mich 150; 378 NW2d 319 (1985), decided today, primarily in order to reconsider the rule announced in Javis v Ypsilanti Bd of Ed, 393 Mich 689, 702-703; 227 NW2d 543 (1975), which states:
Where there is an omission of, or deviation from an applicable and accurate sji [Standard Jury Instruction], prejudicial error will be presumed; provided that the erroneously omitted sji was properly requested at trial; and, provided that in those cases where error is charged as a result of a deviation from a sji, said deviation was brought to the attention of the trial court prior to the commencement of jury deliberations.
Although four issues are presented for decision, all are ultimately concerned with the question whether we should continue to adhere to the requirement of Javis that a trial court’s failure to give an accurate, applicable, and properly requested sji will result in automatic reversal without regard to any prejudice to the complaining party.
We conclude that in light of the standard of review we adopt today for review of instructional errors arising from failure to utilize or departure from the language of the sji, the decision of the Court of Appeals in this case must be reversed.
This case arose out of the October 5, 1980, beating of plaintiff Andrew Johnson by defendant Patrick Corbet on a sidewalk in L’Anse, Michigan. Plaintiffs claim against Corbet is based on assault and battery, while his claim against the other defendants is based on the Dram Shop Act. MCL 436.22(5); MSA 18.993(5). Defendant William E. Emery, doing business as Bella Vista Bar, is not a party to this appeal because the jury returned a verdict of no cause of action in his favor. Plaintiff obtained a $200,000 verdict against defendants Corbet and Jack Peterson, doing business as Buck-horn Bar and Swede’s Bar. Peterson’s motion for a new trial or, in the alternative, for remittitur was denied. The Court of Appeals reversed. _
At trial, plaintiff called Corbet as an opposite party witness. See MRE 607(2)(B) and MCL 600.2161; MSA 27A.2161. Although named a defendant in the suit, a default had been entered against Corbet prior to the commencement of trial. A default judgment, however, had not been entered against him. In response to questions put to him by defendant’s counsel, Corbet testified that he had once been convicted of burglary in Chicago. The date of the conviction was never specified. When the examination of Corbet was concluded, Warren Selden, who was Corbet’s drinking companion on the day in question, was called as a witness for plaintiff and, upon cross-examination by counsel for Peterson, stated that he had been convicted of "larceny from a building” in 1978 and "bad checks” in 1967. No objection was registered to the evidence of the prior convictions of either witness.
At the close of all the evidence, the trial court excused the jury and discussed with counsel their requests for instructions to the jury. At the outset, the court stated:
The Court: You aren’t going to be able to decide this afternoon those [instructions] that you’d like to have given and those that you would not like to have given. I’m going to tell you the ones that I’m going to give and then you can reserve your objections to them until after I’ve given them and we can go from there. There are some other matters that pertain to your instructions that are much more important that I think we’d better get to before we lose any more time.
As to all of your requests — let me just refer to my notes. I will give pretty generally all of your requests that are the standard jury instructions. Those that I do not feel that are applicable or are repetitious and otherwise, I will indicate those I will not give. [Emphasis added.]
Defendants Peterson and Emery had previously filed written requests for instructions to the jury. Peterson’s requests did not include SJI2d 5.03. Emery’s did.
SJI2d 5.03, states:
Impeachment by Proof of Conviction of Crime
In deciding whether you should believe a witness you may take into account the fact that [he/ or/she] has been convicted of a crime and give that fact such weight as you believe it deserves under the circumstances.
After a brief discussion with counsel concerning their requests for instructions, the following occurred:
[Counsel for Defendant Peterson]: Your Honor, I’d like to add one more. I’d like to ask that Standard Jury Instruction 5.03 on impeachment by proof of conviction of crime be given.
The Court: That’ll be denied. That takes care of that.
[Counsel for Defendant Peterson]: All right.
The Court: You can take your objection to it.
[Defendant] Emery’s requests, I think you’ve requested 4.06 too, Mr. Hood. That will not be given. Conviction of a crime, 5.03 will not be given.
After the court instructed the jury, Peterson’s counsel objected to the court’s refusal to give SJI2d 5.03. The trial court noted the objection and stated, once again, that the instruction would not be given.
The Court of Appeals reversed because the trial judge failed to include in his jury instructions SJI2d 5.03 as requested by Peterson in his proposed instructions to the jury. 127 Mich App 804; 339 NW2d 648 (1983). In reversing, the Court of Appeals held that since SJI2d 5.03 was accurate, applicable, and had been requested by Peterson, the trial court was duty bound to give it, and its failure to do so was error requiring reversal as a matter of law, citing Javis, supra. We granted plaintiff’s application for leave to appeal, and ordered that this case be argued and submitted together with Moody, supra. 419 Mich 869 (1984).
Plaintiff now brings several assignments of error which amount essentially to four claims:
I. Since it was not shown that Corbet’s prior conviction for burglary occurred within ten years of the time of trial, as required by MRE 609, evidence of the prior conviction was not admissible and thus no instructions need have been given concerning it.
II. SJI2d 5.03 was not properly requested by defendant Peterson because his request was not made timely, according to the trial court’s pretrial order.
III. The issue of the trial court’s failure to give SJI2d 5.03 was not preserved for appellate review because it was not raised in a motion for a new trial.
IV. The presumption of prejudicial error rule announced by this Court in Javis should not be deemed to be conclusive.
I
Plaintiff asserts that because there was no showing that Corbet’s burglary conviction was obtained, or that he was released from confinement for the conviction within ten years of the trial in this case, required conditions of admissibility of such evidence under MRE 609(b), no "adequate evidentiary foundation” was established for admission of the prior conviction. Therefore, "SJI2d 5.03 was simply not applicable,” and the trial court did not err in refusing to give it. Plaintiff adds:
Since Defendant-Appellee Peterson failed to produce the foundation required by MRE 609 to support SJI2d § 5.03, he should not complain on appeal that the Standard Jury Instruction was not given.
Defendant responds that the plaintiff "is confusing the Rules of Evidence with the Standard Jury Instructions,” and "cannot now rely upon a rule of evidence to keep out evidence that he gratuitously introduced himself by putting the Defendant Cor-bet on the stand for cross-examination, putting the witness Selden on the stand as one of the witnesses, and then introducing the deposition of the Defendant Corbet without, qualification.” We agree.
Proof of Corbet’s prior conviction was elicited by Peterson on cross-examination. No objection was registered to the evidence by any party, and any deficiency in the foundational requirements for admissibility of the burglary conviction has been waived. Whether evidence of the conviction might have been excluded by the trial court as too remote had it been shown, for example, that the conviction was obtained more than ten years prior to the trial, is speculation at best. No such objection was made. Once the evidence was received, the jury was entitled, indeed required, to consider it. Since evidence of the burglary conviction was before the jury, SJI2d 5.03 was applicable, and the defendant is not foreclosed from complaining on appeal that the requested instruction was not given.
Plaintiff also contends that the instruction on prior convictions was inapplicable to Selden’s testimony. The theory is that Selden’s testimony was of no probative worth in the case because Selden testified that he was unable to remember the events of the day in question, or even whether he was with Corbet on that occasion because he was intoxicated, having consumed one and one-half to two cases of beer that day. Plaintiff argues:
A close review of Selden’s testimony reveals that he offered no relevant or material testimony. He gave no assistance to either Plaintiff or Defendant’s position.
Thus, Selden was really a "non-witness” and the sole purpose in his being called to testify was to demonstrate to the jury that all possible known information was being presented for their consideration.
However, since Selden’s testimony contributed nothing to the case, his credibility was not at issue and therefore, SJI2d 5.03 was without significance or application as to him.
The short answer to plaintiffs argument is that Selden’s testimony, having been offered by plaintiff and received by the court, was before the jury for its consideration, and its worth was for the jurors to decide. Once a witness is sworn and gives evidence, no matter how minimal the probative force of the testimony may be, the significance of the evidence and the credibility of the witness who supplied it are before the jury to assess. Dalton v Grand Trunk WR Co, 350 Mich 479, 486; 87 NW2d 145 (1957); Dempsey v Miles, 342 Mich 185, 193; 69 NW2d 135 (1955); Sebright v Moore, 33 Mich 92, 93 (1875). While it is entirely possible that Selden’s testimony was so lacking in materiality or relevancy that it might, upon timely objection, have been excluded or, if received, stricken upon timely motion, no such objection or motion was made. Plaintiff offered no objection to defense counsel’s cross-examination inquiry of Selden concerning his prior criminal record. That evidence was intended, of course, to impeach the witness’ veracity. Plaintiff will not now be heard to assert that Selden’s testimony had no relevancy and should not have been received, thus rendering the witness’ veracity immaterial and SJI2d 5.03 inapplicable. We think SJI2d 5.03 was applicable to Corbet’s and Selden’s testimony.
II
Plaintiff claims that the defendant failed to preserve for appeal the issue of the trial court’s failure to give SJI2d 5.03 because the defendant did not properly request the instruction and may not rely upon his codefendant’s (Emery’s) timely request for it. Plaintiff further claims that, at any rate, the issue has not been preserved for appeal because the defendant did not raise the matter in a motion for new trial.
We reject both arguments.
It is undisputed that the trial court’s January 7, 1982, pretrial order directed that "written requests for instructions, together with supporting authority, to be filed with the court on or before the selection of the jury,” and that although Peterson’s counsel filed a list of written requests for certain jury instructions, SJI2d 5.03 was not among them. The list of written requests filed by counsel for Emery included SJI2d 5.03. Nevertheless, at the close of all the proofs and while discussing with the court the proposed jury instructions, counsel for Peterson specifically requested, albeit orally, that the court give SJI2d 5.03. The court denied the request, and in the same breath declared that Emery’s previously filed written request for the same instruction likewise would not be given. The court gave no reason for the ruling, and did not suggest that the request by Peterson was denied as being out of time or that Emery’s similar request was denied as lacking merit.
Trial courts have the discretion to entertain additional requests for jury instructions and, in fact, customarily do so despite the familiar form of pretrial order issued in this case. Not only did Peterson’s counsel request the instruction prior to the court’s jury charge, he also objected to its omission immediately following completion of the charge and before the jury retired to begin its deliberations. We think the trial court was free to entertain Peterson’s oral request for SJI2d 5.03 as a supplement to the written request for instructions earlier filed.
Ill
Plaintiff claims that the jury instruction issue has not been preserved for appeal for the additional reason that the issue was not raised in a motion for new trial.
We know of no authority in this state requiring that a motion for new trial be made in a civil case in order to preserve for appellate review the trial court’s failure to give a properly requested sji, and plaintiff cites none. We have carefully examined the cases cited by plaintiff as standing for the proposition that there is such a requirement. None is controlling. _
In the case before us, timely objection was made to the omission of SJI2d 5.03 before the court began instructing the jury and afterwards.
We have never held, and our court rules do not provide, that an assignment of error concerning jury instructions, to which objection is timely made at trial, is waived on appeal unless also raised in a motion for a new trial. While there might be some procedural merit in a rule which requires that issues concerning instructional errors be raised in a motion for new trial as a condition precedent to their consideration on appeal, such a requirement is not now the law.
IV
We come now to the issue for which we granted leave to appeal: whether the failure to give an accurate, applicable, and properly requested Standard Jury Instruction is or should be, in all cases, error requiring reversal. Javis, supra.
GCR 1963, 516.6(2) provided:
Pertinent portions of Michigan Standard Jury Instructions (sji) published under authority of this subrule shall be given in each civil case in which jury instructions are given if (a) they are applicable and (b) they accurately state the applicable law.
To repeat, the rule announced in Javis is:
Where there is an omission of, or a deviation from an applicable and accurate sji, prejudicial error will be presumed; provided that the erroneously omitted sji was properly requested at trial; and, provided that in those cases where error is charged as a result of a deviation from a sji, said deviation was brought to the attention of the trial court prior to the commencement of jury deliberations. [Javis, supra, pp 702-703.]
A reassessment of the Javis rule should begin with a careful review of the case itself.
In Javis, the Court was considering a motorcycle-school bus accident case in which the motorcyclist and his passenger sued for recovery of personal injury damages. Upon cross-examination of the defendant school bus driver, plaintiffs’ counsel attempted to impeach the witness by showing that certain statements the witness made in his pretrial discovery deposition were inconsistent with his testimony at trial. _
At the appropriate time, plaintiffs’ counsel requested that the court’s jury instructions include then-applicable SJI 3.01(A), covering impeachment of a party witness by a prior inconsistent statement. The trial court declined to give the requested instruction, preferring instead to instruct the jury concerning general witness credibility, without detailed emphasis upon impeachment of a party witness by a prior inconsistent statement. When the jury returned a verdict of no cause of action, the plaintiffs appealed, claiming that the trial court’s failure to give SJI 3.01(A) requested by plaintiffs was error requiring reversal because Rule 516.6(2) mandates that the Standard Jury Instructions be given "if (a) they are applicable, and (b) they accurately state the law.”
This Court acknowledged the "mandatory nature” of the sji, but observed that the duty to give the appropriate sji "does not, however, resolve the difficult issue of whether an appellate court should find reversible error in any failure to give a requested and applicable sji” because Rule 516.6 "makes no mention of a standard of review” for departure from or failure to give an applicable sji. Javis, supra, p 898. After noting that the generally applicable standard of review for instructional error is the harmless error rule as provided in GCR 1963, 529.1, the Court opted nevertheless to "put its supervisory authority behind the consistent and uniform application of the sji” by adopting "a strict standard for sji errors,” Javis, supra, p 699, mandating automatic reversal, without regard to any showing of any unfair prejudice, whenever a trial court declines to give an accurate and applicable sji which is properly requested by a party.
The automatic reversal rule was adopted despite the plain language of Rule 529.1 that the standard for review of a claim of error arising from "anything done or omitted by the court” requires that no verdict should be set aside or new trial granted unless the refusal to do so would be "inconsistent with substantial justice.” The Court was able to reconcile adoption of a presumption of prejudice standard of review for sji errors despite the fact that Rule 529.1 establishes a harmless error standard for reviewing discrepancies in civil proceedings because
[s]uch a result (presumption of reversible error) would not ignore the harmless error rule of GCR 1963, 529.1, but rather would construe the specific requirements of GCR 1963, 516.6 as controlling over the general provisions of the harmless error rule. [Javis, supra, p 698.]
That was so, even though, as the Court observed, "GCR 1963, 516 makes no mention of a standard of review” for instructional errors. Id.
Acknowledging that the newly adopted presumption of prejudice rule was an expression of the Court’s preference for the policy it served rather than the harmless error Rule 529.1 earlier adopted, the Court said:
It would be reasonable, and consistent with our policy in other instances of mandatory rules to take a strict approach and confirm our position in favor of the mandatory use of the sji by requiring any erroneous deviation to be treated as requiring reversal.
We observe in passing that the "presumption of prejudice” rule in Shekoski survived for less than one year. In Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), the automatic reversal rule of Shekoski was abandoned as unworkable and unjust and a more flexible standard of review was adopted.
Responding to the argument that the new rule would require that verdicts be set aside in cases in which there could be no showing of prejudicial error for failure to give a requested sji, the Court stated:
Whatever wasted effort that will result from the reversal of those few cases wherein a trial court erroneously deviates from the sji will be overcome by the benefits of conserved trial court time at the instruction stage, certainty to trial counsel as to how the law will be stated to the jury, and a clear and concise instruction for the jury to work with. [Javis, supra, p 699.]
Four years after the decision in Javis, this Court decided Socha v Passino, 405 Mich 458; 275 NW2d 243 (1979). In that case, over the dissent of two justices, the Court reaffirmed its adherence to the Javis rule that a trial court commits error requiring reversal as a matter of law, if it fails to give an sji which is accurate, applicable, and properly requested by counsel. In Socha, the jury verdict for the defendant was vacated because the trial judge declined to give SJI 2.06, which provided:
It has been brought out that an attorney has talked with a witness. An attorney may properly talk with a witness for the purpose of learning what the witness knows about the case and what testimony he will give.
A careful reading of Javis and Socha reveals that the essential rationale for the Javis rule was this Court’s desire, as a matter of policy, to force compliance with Rule 516.6(2) because the sji "uniformly present juries in civil cases with clear, concise and unbiased instructions to guide their deliberations,” and because use of "the sji . . . conserve[s] the energies of trial counsel and the trial courts by eliminating the need to draft and select proposed instructions on commonly encountered subjects for jury resolution.” Socha, supra, p 467, quoting Javis, supra, p 697. "These enumerated benefits of the sji are present,” the Court said, "only if the sji are regularly employed by the trial courts.” Id.
We fully agree with the Javis Court’s statement of the original purposes of the sji and the salutary effect of their regular use in trial courts. We conclude, however, that the regular, indeed mandatory, use of the sji by trial courts does not require the enforcement sanction of automatic reversal for departure from the requirements of 516.6(2), and we believe that, on the basis of ten years of experience with Javis, fairness will not permit it.
Ten years ago, when Javis was written, the majority of this Court may have been understandably concerned that some, perhaps many, trial judges were not yet regularly using the somewhat new Standard Jury Instructions.
It is very clear that trial courts throughout the state are accustomed to using the Standard Jury Instructions, use them as a matter of course, and, in fact, depend very heavily upon the work of the Standard Jury Instruction Committee to monitor and update existing sji, and promptly publish new instructions as statutory and case law change. The rather considerable combined trial and appellate court experience of the members of this Court is that the use of the sji has become so habitual and commonplace in our trial courtrooms, and that trial judges rely so routinely upon counsel to request accurate and applicable sji, that the "strict standard for sji error” announced in Javis is no longer needed in order to assure compliance with the court rule or to achieve the policy goals that moved the Javis Court to adopt the rule of that case.
The goals sought to be accomplished by the Javis rule have been largely realized. No practice is more firmly rooted in trial court procedure throughout this state than the use of sji. It is now virtually automatic that at the close of the proofs the jury is excused and the trial court and counsel take up discussion of the requested sji. Ordinarily, a list of proposed sji, often identified only by number, or perhaps by subject title, are presented to the court by counsel for each side, sometimes together with the text of special instructions not covered in the sji. Lawyers and judges have become so familiar with the sji and so accustomed to relying upon them that the colloquy concerning proposed jury instructions is often conducted largely in the language of sji numbers.
Automatic nullification of trial court verdicts without regard to prejudice, even in relatively small numbers, for inconsequential departures from the sji, given the attendant inconvenience, expense, and anguish to litigants, the resultant consumption of trial and appellate judicial resources, and the attendant inefficiency and burden upon the taxpayers, is an inappropriate sanction for harmless procedural trial error. We are per suaded that the automatic reversal sanction of the Javis rule has accomplished its intended purpose and that its continued application is too often counterproductive of fairness.
We continue to believe that the Standard Jury-Instructions should be utilized by the bench and bar for the salutary policy reasons articulated by the Court in Javis. Indeed, MCR 2.516(D)(2) mandates their use. That, however, as the Javis Court observed, "does not . . . resolve the difficult issue of whether an appellate court should find reversible error in any failure to give a requested and applicable sji.” Javis, supra, p 698. (Emphasis added.) We think an appellate court should not do so and should vacate a jury verdict only when the failure to comply with MCR 2.516 amounts to an "error or defect” in the trial so that the failure to set aside the verdict would be "inconsistent with substantial justice.” That is the harmless error standard adopted by this Court in GCR 1963, 529 and readopted in MCR 2.613(A), and applicable in all civil proceedings. We now hold that it is once again the applicable standard for appellate review of instructional errors, including departure from the requirements of MCR 2.516(D)(2). We will continue to require adherence to the express language of Rule 2.516. What is modified today is the standard of review for errors committed as a result of noncompliance with the rule.
That means, for example, that when an accurate and applicable sji has been properly requested by a party, it shall be given by the trial court if the court, in its discretion, gives an instruction at all on the general subject covered by the requested sji. However, it remains the duty of the trial court, as historically it has been, to determine the subject matter of the instructions to be given to the jury, and that includes the duty to determine the applicability of the particular sji requested by counsel. Socha, supra, p 467. That duty cannot be delegated to counsel. Merely because the evidence in a casé may include the subject matter of an sji, it does not mean that the court, upon request of counsel, is automatically required to read every sji which might tangentially touch on the subject matter. The trial court’s duty to determine the "applicability,” under MCR 2.516, of a requested sji runs deeper than that and calls for the exercise of discretion. It is conceivable, for example, that a given sji would accurately state the law and be applicable, in the theoretical sense that the evidence in a case included reference to the subject matter of that sji, but that a wise and experienced trial judge, in the exercise of informed discretion, would determine that reading the sji would confuse the jurors or unnecessarily distract them from the material issues in the case, or extend the jury instruction process out of all proportion to the educational benefit to the jurors and fairness to the litigants, or unduly emphasize a potentially prejudicial aspect of the evidence, or simply add nothing to an otherwise balanced and fair jury charge nor enhance the ability of the jurors to decide the case intelligently, fairly, and impartially. This, of course, is a way of saying that it is for the trial court to determine when the sji are applicable, not in an abstract or theoretical sense, but in the context of the "personality” of the particular case on trial, and with due regard for the adversaries’ theories of the case and of counsel’s legitimate desire to structure jury argument around anticipated jury instructions.
Appellate review of assignments of error claiming a violation of MCR 2.516 will henceforth be tested according to the standard adopted in MCR 2.613. While the appellate court should not hesitate to reverse for a violation of Rule 2.516, it should not do so unless it concludes that noncompliance with the rule resulted in such unfair prejudice to the complaining party that the failure to vacate the jury verdict would be "inconsistent with substantial justice.”
V
We turn, then, to a determination of whether, in this case, the failure to give requested SJI2d 5.03 violated that standard.
It is clear that Corbet and Selden were shown to have criminal records. The evidence of their prior criminality was unquestionably admissible and no objection was registered to the evidence. There is no question that, prior to the jury being instructed, Peterson’s counsel requested that the trial court include SJI2d 5.03 in its instructions to the jury and timely objected when the instruction was not given. The trial court gave no reason for declining to give the requested instruction. Had the trial judge explained for the record, and consequently for us, why he thought the requested instruction was not accurate or applicable, or why, for other reasons, it should not be given, we would be greatly assisted in determining whether the court’s discretion in rejecting the requested instruction was soundly exercised. The court did not do so, however, and we are required to test the departure from Rule 516 without the benefit of the trial court’s reasoning.
The properly requested instruction the trial court failed to give reads:
Impeachment by Proof of Conviction of Crime
In deciding whether you should believe a witness you may take into account the fact that [he/ or/she] has been convicted of a crime and give that fact such weight as you believe it deserves under the circumstances.
The instruction, like the impeaching evidence which made it applicable, related to the credibility of Corbet and Selden. The closest the trial court came during its instructions to the jury to giving the thrust of omitted SJI2d 5.03 was the court’s instruction on general credibility of witnesses, which was given. The court’s charge in that connection was:
In determining whether any fact has been proved, you shall consider all the evidence bearing on that fact, without regard to which party produced the evidence. It is not necessary for every fact to be proven directly by a witness or an exhibit. A fact may be proven indirectly by other facts or circumstances from which it usually and reasonably follows according to the common experience and observation of mankind. This is called circumstantial evidence, which you are to consider along with other evidence in the case.
Now you are the sole judges of the facts in the case and must determine which witnesses you will believe and what weight you will give to their testimony. In doing so, you may take into account each witness’s ability and opportunity to observe, his or her memory, his or her manner while testifying, any interest, bias or prejudice he or she may have, and the reasonableness of his or her testimony considered in light of all the evidence in the case.
In deciding whether you believe a witness, you may consider the fact that at some earlier time he said or did something that does not agree with what he said — with what he testified to on an important point. What he or she said earlier may be considered only in deciding whether you should believe him or her, and may not be considered as proof of the facts in his or her earlier statements, unless he or she testified that his or her earlier statement was true, in which event it may be considered as proof of the facts in the statement.
In deciding whether you believe a party who has testified, you may consider that at some earlier time he said or did something that did not agree with what he said or what he testified to here on an important point. Because he is a party, what he said or did earlier may be considered not only in deciding whether you should believe him, but also may be considered as evidence of the facts in this case.
The question then is whether the trial court’s failure to focus the jury’s attention directly upon the fact that two of the witnesses were shown to have prior convictions unfairly prejudiced the defendant to the extent that failure to vacate the jury’s verdict would be "inconsistent with substantial justice.” Stated differently, the rhetorical question might be, "What enlightening or clarifying benefit would the jurors have realized from hearing SJI2d 5.03, failing which, the proceedings were unfair to the defendant?”
The jurors heard the evidence that Corbet had been convicted of burglary on some date unknown, and that Selden had been convicted of larceny from a building in 1978 and of passing "bad checks” in 1967. Had the court read SJI2d 5.03, the jurors would have been told that, in deciding whether Corbet and Selden were believable, they could take into account the fact that both witnesses had criminal records. It is difficult, of course, to conceive of any other purpose for which the jurors might have considered the evidence. SJI2d 5.03 could only have briefly emphasized what the jury already knew: Corbet was once a burglar and Selden a thief and bad check passer, and their testimony should be evaluated in that light.
The evidence of the two witnesses’ criminal records could only have related to their credibility —and that is precisely the purpose for which both counsel asked the jury to consider it. We do not think that by giving SJI2d 5.03, the trial court could have emphasized the proper relevance of the impeaching evidence any more accurately or forcefully than both counsel did.
In closing arguments, counsel for both Johnson and Peterson devoted substantial attention to the credibility of the witnesses, and each concluded that, in the final analysis, the jury verdict would turn in large measure upon the jurors’ determination of the credibility of Corbet, Selden and Johnson. Both counsel assigned very little value to Selden’s testimony because of the witness’ claimed inability to recall the events of the day in question because of his intoxication. In support of their claims that the credibility of Corbet and Selden was critical to the determination of the case, each counsel made specific mention of the witnesses’ criminal records. In his closing argument to the jury, counsel for Peterson stated:
Mr. Selden was a convicted criminal, by his own admission here in Court. And, of course, that’s the only other testimony you’ve got, that of another convicted criminal and a confessed alcoholic, Mr. Corbet.
And,
It is incredible that a man with Mr. Corbet’s background and with his admitted addiction to alcohol, his admitted memory lapses, it is incredi ble that he remembers exactly the point in time on a particular day when he got intoxicated.
Still later, counsel for Peterson argued:
Now, Mr. Corbet is not only a former drug addict and is not only a convicted criminal, he came out of Chicago, he is streetwise.
Counsel for Emery also referred to Corbet’s criminal record:
[Corbet is] a convicted felon, he’s a drug addict, all of this by his own admission.
Thus the jury’s attention was specifically drawn to the witnesses’ criminal histories in the context of the claim that such evidence related to their credibility. Reading SJI2d 5.03 to the jurors could have done no more.
Upon a review of the whole record, particularly in light of defense counsel’s scathing denunciation of Corbet’s and Selden’s credibility, accusing both of being alcoholics, drug addicts, "brain damaged” and convicted criminals, we are unable to say that the trial court’s erroneous refusal to give SJI2d 5.03 unfairly prejudiced the defendant, and that the failure to vacate the jury verdict for the plaintiff would be "inconsistent with substantial justice.”
Reversed, and the verdict of the jury is reinstated.
Brickley, Cavanagh, Boyle, and Riley, JJ., concurred with Ryan, J.
127 Mich App 804; 339 NW2d 648 (1983). The Court of Appeals per curiam opinion accurately summarized the testimony relevant to this appeal:
"Defendant Corbet was called as a witness on behalf of the plaintiff. Defendant Corbet testified that prior to the date of the incident herein, October 5, 1980, he had been drinking continuously for a week. On October 5, 1980, he allegedly consumed eight cans of beer before going out to the Bella Vista Bar, where he allegedly drank blackberry brandy and beer. Defendant Corbet stated that, after leaving Bella Vista, he and Warren Selden consumed intoxicating beverages at the Buckhorn Bar, Swede’s Bar, and the Buckhorn Bar again. He is an alcoholic who has received repeated treatment and attributes his violent temper to the consumption of intoxicants. He had at sometime in the past been convicted of burglary in Chicago.
"Warren Selden, called as a witness by the plaintiff, stated that he had been drinking on October 4, 1980, and that he had consumed several cases of beer on October 5, 1980. He admitted that his testimony regarding the entire incident was not very reliable. He testified that he had been convicted of larceny from a building in 1978.
"The testimony of bartenders and employees of Peterson who worked in his bars on the day of the incident indicated that they had not served defendant Corbet on the day in question, and only one of them observed him anywhere near the bars.” 127 Mich App 806-807.
At the pretrial conference, the trial court had issued the following order:
"Trial briefs: Covering any and all issues and written requests for instructions, together with supporting authority therefore [sic], to be filed with the court on or before the selection of the jury for trial of said cause.”
MRE 609:
“(b) Time Limit.
"Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.”
In Yates v Wenk, 363 Mich 311; 109 NW2d 828 (1961), the Court found error, albeit not prejudicial, where the trial judge refused to consider "certain handwritten requests to charge submitted to him by defendant at the conclusion of proofs.” The Court there stated:
"Although trial counsel should be encouraged to prepare requests to charge well in advance of their need by anticipating the issues which the proofs will develop, they should not be discouraged from making changes therein, or additions thereto, at any time before the jury retires to deliberate if developments in the late stages of the case (or even in the court’s charge) indicate such changes or additions are necessary to the protection of the rights of the parties. Crippen v Hope, 38 Mich 344 [1878].” Yates, supra, pp 316-317.
In several decisions rendered before the adoption of the General Court Rules of 1963, the Court has indicated disapproval of oral requests for jury instructions. See, e.g., Peden v Carpenter, 352 Mich 604, 610; 90 NW2d 647 (1958); Corpron v Skiprick, 334 Mich 311, 319; 54 NW2d 601 (1952). However, in People v Herbert Van Smith, Jr, 388 Mich 457, 461-462; 203 NW2d 94 (1972), the Court noted that GCR 1963, 516.1 "provides that written requests should be made at or before the close of evidence, but neither forecloses oral requests nor limits the time for making them.” See also People v Rogers, 411 Mich 202, 208; 305 NW2d 857 (1981).
In Dixison v Asher, 7 Mich App 547; 152 NW2d 161 (1967), the appellants complained that the jury verdict was inadequate as a matter of law and also raised, for the first time, a charge of inadequate jury instruction, a claim that had not been raised in the motion for new trial at which the issue of the inadequacy of the verdict was addressed. The Court of Appeals cited no authority for its statement that the appellant’s complaint on appeal concerning the jury instruction "was waived due to failure to raise it on the motion for new trial,” and we are aware of none.
In Seaton v State Farm Life Ins Co, 75 Mich App 252, 260; 254 NW2d 858 (1977), the Court of Appeals declared: "We will not review alleged error in supplemental jury instructions where objection was not initially raised below in a motion for new trial,” citing GCR 1963, 516.4. That rule provided:
"While the jury is deliberating the court may in its discretion further instruct the jury, in the presence of or after notice to counsel. Objections thereto shall be made in a motion for new trial.” (Emphasis added.)
The plaintiffs complaint in this case does not relate to an instruction given "[wjhile the jury [was] deliberating.” Thus, GCR 1963, 516.4 is inapplicable. Even if applicable, the rule does not provide that such an objection, if not raised in a motion for new trial, is waived.
In Hill v Husky Briquetting, Inc, 78 Mich App 452, 459; 260 NW2d 131 (1977), the Court stated that the "defendant has waived any right to appellate review of [an instructional] objection by its failure to raise the issue on the motion for a new tried.” The Court cited only Dixison, supra, which, as we have said, is not controlling because it cites no authority from this Court, the General Court Rules, or otherwise for such a requirement.
Finally, plaintiff cites this Court’s decision in Sacred Heart Aid Society v Aetna Casualty & Surety Co, 355 Mich 480; 94 NW2d 850 (1959). In that case, responding to the appellant’s claim of instructional error, the Court stated:
"Appellant may not now contend that the failure of the trial judge to charge that defendant Jachim stood in a fiduciary relation to plaintiff was prejudicial to it. It does not appear that the question was raised in the trial court on the motion for new trial, or otherwise.” (Emphasis added.) Id., p 488.
Sacred Heart Aid Society is distinguishable because this Court emphasized that there had been no objection in the trial court about any deficiency in the jury charge, either in a motion for new trial or otherwise, that is, during trial. Here, the defendant objected at trial to the failure to give SJI2d 5.03.
The Court described the alleged inconsistencies as follows:
"1. The time taken by the Javis motorcycle to travel the 400 feet from the point it first became visible to Baltzell to the point of collision.
"Deposition: T believe something around seven seconds.’
"Trial: '[0]nly a matter of seconds. . . . Well, I believe it’s something less than that [seven seconds] now that I think about it and I have been out there driving that road again.’
"2. The speed of the bus as it entered the intersection and began its southbound turn.
"Deposition: T was proceeding south going about five miles an hour.’.
"Trial: 'Less than five miles an hour. . . . Five or less, around there? [sic].’
"3. The position of the bus in the southbound lane of Hogback Road at the time of collision.
"Deposition: T don’t believe [Javis] could have [found room to maneuver around the bus] on the paved portion.’
"Trial: 'I’m not sure if I blocked the whole lane. I know it [the bus] was in that lane, but I don’t know how much I blocked.’ ” Javis, supra, p 695.
OCR 529.1 stated:
"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding shall construe these rules to secure the just, speedy, and inexpensive determination of every action so as to avoid the consequences of any error or defect in the proceeding which does not affect the substantial rights of the parties.”
See for example, GCR 1963, 785.7(5), and People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), where the Court stated in part:
"The requirements for a valid guilty plea after June 1, 1973 are set forth specifically in GCR 1963, 785.7. The bench and bar are hereby advised that strict adherence to those requirements is mandatory and that neither substantial compliance nor the absence of prejudicial error will be deemed sufficient.”
On April 14, 1970, the Supreme Court amended GCR 1963, 516 by adding subpart .6. The new subsection created a Standard Jury Instruction Committee and provided that the committee "shall have authority from time to time to adopt and publish standard jury instructions or to alter or repeal standard jury instructions in effect.” In subpart .6(2), the new sji were made mandatory in the language which appears in the rule today. The first set of sji adopted and promulgated by the Standard Jury Instruction Committee covered simple personal injury actions as well as some general instructional matters for use in the trial of most civil jury cases.
Thus, at the time Javis was written, the sji had been in existence for just five, years and covered only a small portion of the myriad subject matter with which trial judges were concerned in charging circuit court juries in civil cases. The judges were required to continue to depend heavily upon their own carefully crafted jury instructions, some suitable for regular use as pattern instructions in subject areas not covered by the sji, and others required to be written to accommodate the unique requirements of individual cases.
The presumption of prejudice rule appears not to have found favor generally. Of the six states besides Michigan that require the use of standard jury instructions (Arkansas, Colorado, Illinois, Missouri, New Mexico, and Oklahoma), only Missouri has adopted an "automatic reversal” or "presumption of prejudice” rule. Brown v St Louis Public Service Co, 421 SW2d 255 (Mo, 1967). In the remaining five states, reversal follows upon departure from or failure to give an applicable and accurate standard jury instruction, when the reviewing court finds unfair prejudice to have resulted.
"At least in Missouri this error is presumed to be prejudicial; but in other jurisdictions, error is to be judicially determined rather than presumed or concluded.” See Anno: Construction of statutes or rules making mandatory the use of pattern or uniform approved jury instructions, 49 ALR3d 131.
Research discloses at least ten published Court of Appeals cases in which trial court verdicts were set aside for failure to give sji requested by counsel without regard to whether the instructions as given were fair, complete, and balanced, or whether the refusal to give the omitted sji unfairly prejudiced the complaining party: Jones v Porretta, 138 Mich App 241; 360 NW2d 181 (1984); Tibitoski v Macomb Disposal Service, Inc, 136 Mich App 259; 356 NW2d 15 (1984); Villar v E W Bliss Co, 134 Mich App 116; 350 NW2d 920 (1984) (rev’d on other grounds, but the Court stated, in dicta, that there was Javis error as well); Citizens National Bank v Mayes, 133 Mich App 808; 350 NW2d 809 (1984); Glavin v Baker Material Handling Corp, 132 Mich App 318; 347 NW2d 222 (1984); Johnson v Corbet, 127 Mich App 804; 339 NW2d 648 (1983); Young v Ann Arbor, 119 Mich App 512; 326 NW2d 547 (1982); Jackovich v General Adjustment Bureau, Inc, 119 Mich App 221; 326 NW2d 458 (1982); Serra v DeMaestri, 66 Mich App 171; 238 NW2d 568 (1975); Bolser v Davis, 62 Mich App 731; 233 NW2d 845 (1975). In addition, of course, see Javis and Socha, supra.
The new court rule provides:
"(2) Pertinent portions of the Michigan Standard Jury Instructions (sji) must be given in each action in which jury instructions are given if
"(a) they are applicable,
"(b) they accurately state the applicable law, and
"(c) they are requested by a party.” MCR 2.516(D)(2).
MCR 2.613:
"(A) Harmless Error. An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.”
While this Court is reluctant to impose upon the trial courts a boiler-plate requirement to state reasons for discretionary rulings, it is manifest that appellate deference to the exercise of trial court discretion is made unnecessarily difficult, and often impossible, when trial courts fail to articulate the reasons for a discretionary ruling, particularly concerning the refusal to give requested jury instructions. | [
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M. J. Kelly, P. J.
More than ten years after suffering an injury in the course of his employment, plaintiff obtained a circuit court order rescinding a workers’ compensation redemption agreement signed by the parties and approved after a hearing before a workers’ compensation hearing officer. The question of first impression raised on this appeal is whether plaintiff must, as a condition precedent to maintaining an action seeking rescission, tender a return of the amount of the redemption agreement settlement.
On May 15, 1972, plaintiff was injured while installing drywall sheet rock. Plaintiff was employed by defendant, although whether as a sala ried employee or as a subcontractor is a subject of dispute. Plaintiff was injured when 15 sheets of drywall fell on him, striking him in the back and pushing him head-first through a facing wall of similar material. Plaintiff was stooped over when struck, was stunned for a few moments, and, when he extricated himself, noted a stiffness in his back and pains in his waist and head. Plaintiff continued to work for two months after the incident, but one morning he bent over and froze in the bent position. After medical consultation, he ultimately had surgery on his back.
On August 8, 1972, plaintiff filed a workers’ compensation claim against Zinn alleging injuries to his back, legs, and nervous system. The record does not reveal whether medical benefits were paid prior to the filing of his petition, nor indeed does the record reveal the amount of medical expenses incurred. The record is also unclear as to whether any disability benefits were paid voluntarily between the date of the injury, May 15, 1972, and the date of the redemption, March 1, 1973, although the implication is that none were paid because plaintiff continued to work for two months directly following. On March 1, 1973, the redemption settlement in an amount of $7,500 was approved.
Plaintiff brought this circuit court rescission action on November 19, 1979, alleging that the redemption agreement was based on a mutual mistake of fact. Plaintiff claims he began to experience emotional problems sometime in 1974. Apparently plaintiff would break out into uncontrollable rages over minor annoyances. He also suffered memory lapses in five- to eight-minute spells during which he was unaware of the events occurring around him. In July of 1975, plaintiff sought treat ment at the Muskegon Mental Health Clinic. He was treated there for about a year before being referred to Dr. Ford, a clinical psychologist. The doctor diagnosed temporal lobe epilepsy, which he believed was "directly related to an injury that [plaintiff] sustained while working as a laborer on a job in which a sheet of concrete wall came in on top of him”. Plaintiff was referred for consultation to Dr. Pugh, from the University of Michigan Hospital, who concurred in Dr. Ford’s diagnosis.
A bench trial in the circuit court was held on January 27, 1982. On October 29, 1982, the circuit court entered an order granting plaintiff rescission and holding that plaintiff need not repay the redemption amount before proceeding with his suit. Defendant appeals as of right from the circuit court judgment.
I
Did plaintiff show by a preponderance of the evidence the existence of a mutual mistake of fact entitling plaintiff to have the redemption agreement set aside?
The circuit court has jurisdiction to rescind a workers’ compensation redemption agreement on the ground of mutual mistake. Solo v Chrysler Corp (On Rehearing), 408 Mich 345, 352-353; 292 NW2d 438 (1980). Plaintiff must show that the agreement was based on mutual mistake by a preponderance of the evidence, Hall v Strom Construction Co, 368 Mich 253, 257; 118 NW2d 281 (1962), although the majority of jurisdictions require clear and convincing evidence, 71 ALR2d 82, § 18, pp 172-175. This Court reviews de novo. Hall, p 257.
The facts in this case are nearly identical to those in Hall, supra. In Hall, the plaintiff suffered head and back injuries when a cement block fell on him while he was doing construction work for Strom. Hall’s hospital record noted, "brain concussion and back strain”. Both the plaintiff and the insurer "were concerned more with the trivial — as it turned out — back injury. All looked upon the head blow as something of but temporary annoyance”. Hall, p 257. Hall signed a release for the nominal sum of $425, but was subsequently diagnosed as having epilepsy due to the head injury. The circuit court held that there was a mutual mistake as to the nature of Hall’s injury and ordered that the settlement agreement be set aside. The Michigan Supreme Court affirmed.
In Solo, supra, the Supreme Court specifically held that workers’ compensation redemption agreements may be set aside based on common-law principles of mutual mistake of fact. Accordingly, here the circuit court’s order setting aside the parties’ redemption agreement under facts nearly identical to those contained in Hall was proper.
II
As a condition precedent to seeking rescission of a redemption agreement for a mutual mistake, must a plaintiff return the consideration received for the redemption agreement?
"When a release or compromise settlement of a claim has been obtained through fraud, duress, or mistake, or at a time when the person executing the release was not mentally competent, and such person seeks to recover on his original cause of action, a tender or offer to return the consideration received for the release is ordinarily held to be a condition precedent to its being set aside. * * * [I]t is true that in some instances of a release procured through fraud in the factum, which renders the release void instead of merely voidable, it has been held that a return of the consideration is not necessary * * *.” 53 ALR2d 757, § 1, p 758.
Absent fraud, the consideration received in a settlement agreement must be tendered back before the settlement agreement can be rescinded. Carey v Levy, 329 Mich 458, 464-465; 45 NW2d 352 (1951); Randall v Port Huron, St Clair & Marine City R Co, 215 Mich 413, 423; 184 NW 435 (1921); Lewis v Aetna Casualty & Surety Co, 109 Mich App 136, 140; 311 NW2d 317 (1981). The tender must be made within a reasonable time, under the circumstances of the case, after discovery of the mutual mistake. Carey, p 464; 53 ALR2d 757, § 3, p 761.
The finding of the trial judge in this regard was that plaintiff was not required to tender the return of the $7,500 sum received following the redemption. The circuit court held:
"Relative to the requirement that the plaintiff must tender to defendant all sums previously paid pursuant to the redemption agreement as a condition precedent to a rescission of said agreement this court is not satisfied such a requirement is mandated by the law of this state. In making this ruling the court is cognizant of the decisions of the Michigan Court of Appeals rendered in Lewis v Aetna Casualty & Surety Co, 109 Mich App 136 [311 NW2d 317] (1981), and Chapman v Ross, 47 Mich App 201 [209 NW2d 288] (1973).
"The issue has never been raised or even suggested that plaintiff is not entitled to the $7,500.00 as compensation for the injuries known unto him and defendants at the time the redemption agreement was executed. The sole question is whether or not the "cap” can be lifted or removed from that settlement to permit plaintiff to recover additional compensation for now known injuries that may be attributable to the accident occurring ón May 15, 1972, to require plaintiff to tender back those sums which he is legitimately entitled to, as a condition precedent to seeking recovery of additional sums that he may also legitimately be entitled to, would not be equitable and violative of the very concept of 'compensating’ one for injuries and resulting disability when one is injured during the course of their employment.”
The fallacy with the trial court’s finding is that liability was disputed, not conceded, in the workers’ compensation disability proceedings. The hearing officer, apparently summarizing the parties’ positions, stated:
"[T]he reason we are recommending the settlement, there would be a substantial issue if the case were tried as to whether he was an independent contractor or employee of the defendant. It’s undisputed that during some or most all of the time that Mr. McDonald worked for the defendant, he also, that is Mr. McDonald also had a man working for him.”
We have no way of knowing if there are any sums to which the plaintiff was "legitimately entitled”. We are not faced with a situation where voluntary benefits were paid as to the weekly disability benefits, indeed we do not even know how much time plaintiff lost from work preceding the redemption. We do not know the medical benefits or whether the medical benefits were indeed voluntarily paid by the defendant or his carrier. Under these conditions we find that the remedy adopted in Carey v Levy, supra, is appropriate. There, the Court required the plaintiff to tender back the consideration he received in settlement of his claim for personal injuries received in an automobile accident but gave the plaintiff 30 days in which to do so before dismissal would be ordered.
"The circuit court’s order dismissing plaintiffs’ suit is affirmed, but without prejudice to hearing and determination by the trial judge of a motion by plaintiffs to reinstate their suit, provided within 30 days after our decision herein they make or tender restitution and file proof thereof in the circuit court, and promptly after filing such proof submit their motion for reinstatement.” 329 Mich 466.
We remand to the circuit court for dismissal, provided that if the plaintiff shall, within 30 days of our order of remand, tender restitution and file proof thereof in the circuit court, the order of dismissal shall not be entered and the circuit court’s order granting rescission, dated October 29, 1982, and filed November 1, 1982, shall instead be affirmed.
No costs, neither party having prevailed. | [
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Griffin, J.
Plaintiff seeks workers’ compensation benefits for injuries incurred in an automobile accident while traveling from home to her doctor’s office where she was to receive treatment for a prior work-related compensable injury. Nearly half a century ago, in Rucker v Michigan Smelting & Refining Co, 300 Mich 668; 2 NW2d 808 (1942), this Court held that a subsequent injury sustained under similar circumstances was not compensable because it did not arise "out of and in the course of employment” within the meaning of the act. In this appeal we are asked to extend workers’ compensation coverage to include plaintiff’s automobile accident injuries. Taking into account that Rucker was the law in 1972 when the Legislature passed the no-fault act, which allocated costs as between the no-fault and workers’ compensation system, and noting that the Legislature, despite numerous opportunities to do so, has left undisturbed our holding in Rucker, we decline to overrule it. Accordingly, we affirm the decision of the Court of Appeals.
i
While engaged in defendant Chrysler’s employ on April 1, 1978, plaintiff Corrine Dean suffered a work-related injury when an explosion hurled a piece of metal against her leg. Defendant does not dispute that this injury is compensable under the Workers’ Disability Compensation Act. Plaintiff returned to work around May 19, 1978, and was placed on restricted or favored-work status. Plaintiff did not report to work on June 28, 1978, in order to attend an appointment with her personal physician to review the results of lab tests and receive further treatment in connection with the prior work-related leg injury. While en route from home to her physician’s office plaintiff sustained multiple injuries in a one-car motor vehicle accident in which her car apparently flipped over a concrete barrier.
In addition to workers’ disability compensation for the workplace leg injury, which is not contested, plaintiff seeks coverage under the act for the injuries sustained in the June 28, 1978, motor vehicle accident. A hearing referee found that although "plaintiff’s injury, while travelling to the doctor’s office [did] not constitute a new compensable injury ... it [was] a consequence of the origi nal injury and the disability . . . therefore, [was] compensable as resultant therefrom.” The wcab affirmed with modifications not relevant to this appeal.
Subsequently, a unanimous panel of the Court of Appeals reversed in an unpublished per curiam opinion. Finding that Rucker controlled, the Court concluded that the injuries sustained in the automobile accident did not arise out of and in the course of plaintiff’s employment because they were not the direct and natural result of the compensable primary injury.
Plaintiff’s initial application to this Court for leave to appeal was denied. 431 Mich 913 (1988). However, plaintiff filed a motion for reconsideration, and we then granted leave to appeal. 432 Mich 921 (1989).
ii
In Rucker, supra, the plaintiff suffered a work-connected injury while in the defendant’s employ and was sent to a doctor who treated the injury. Afterwards, the doctor sent the plaintiff home in a taxicab at the expense of the defendant’s insurer. While en route, the cab was involved in a collision, resulting in an injury to the plaintiff’s eye. In determining whether the accident which occasioned the plaintiff’s eye injury "arose out of and in the course of his employment,” the Rucker Court stated the general rule that injuries arise out of the employment
"[w]hen there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed, and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of’ the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment.” [300 Mich 671, quoting Appleford v Kimmel, 297 Mich 8, 12; 296 NW 861 (1941).]
The Rucker Court unanimously held that there was "no causal connection” between the prior work-related injury and the injury suffered in the taxicab collision. 300 Mich 672 (emphasis added). Although Rucker is virtually indistinguishable, plaintiff in this case urges that Rucker no longer controls. It is claimed that Rucker was overruled by the plurality decision in Whetro v Awkerman, 383 Mich 235; 174 NW2d 783 (1970), to the extent that Rucker required a proximate cause between the injury and employment. In Whetro, three members of this Court stated "that the law in Michigan today no longer requires the establishment of a proximately causal connection between the employment and the injury to entitle a claimant to compensation.” Id. at 242.
We reject the argument that Whetro had such an effect with respect to a subsequent injury that occurs away from the workplace. Aside from the fact that the Whetro plurality opinion is not prece dent, it simply does not address the question of compensability of such a second or subsequent injury.
Whetro is distinguishable from Rucker on two grounds. First, the Whetro claimant was injured when a tornado destroyed the building "wherein he was working for his employer . . . .” Id. at 239. (Emphasis added.) Thus, unlike the employee in Rucker and in this case, the claimant in Whetro was actually engaged in his employer’s business when he was injured.
Secondly, Whetro’s focus was not on a second or subsequent injury; rather, the question there was whether the first, and only, injury was compensable. By contrast, the issue in this case, as in Rucker, is whether a second or subsequent injury is compensable. Accordingly, Whetro did not overrule Rucker, expressly or by implication.
In his treatise on workmen’s compensation, Professor Larson recognizes that the causation rules applicable to a workplace primary injury are not the same as the causation principles which should apply to a second or subsequent injury that occurs away from the workplace. As Larson explains:
A distinction must be observed between causa tion rules affecting the primary injury . . . and causation rules that determine how far the range of compensable consequences is carried, once the primary injury is causally connected with the employment. As to the primary injury, it has been shown that the "arising” test is a unique one quite unrelated to common-law concepts of legal cause, and it will be shown later that the employee’s own contributory negligence is ordinarily not an intervening cause preventing initial compensability. But when the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of "direct and natural results,” and of claimant’s own conduct as an independent intervening cause. [1 Larson, Workmen’s Compensation Law, § 13.11, p 3-502. Emphasis added.]
"The basic rule” to be applied to second injury cases according to Professor Larson
is that a subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct and natural result of a compensable primary injury. [Id., p 3-503. Emphasis added.]
However, Larson is required to concede that the "basic rule” is inadequate to justify compensation for most second injuries because, "in the strict sense, none of the consequential injuries we are concerned with are in the course of employment . . . .” Id., § 13.11(d), p 3-542. Thus, Larson finds it "necessary to contrive” a new "quasi-course of employment” concept for analyzing the more difficult cases:
By this expression [quasi-course of employment] is meant activities undertaken by the employee following upon his injury which, although they take place outside the time and space limits of the employment, and would not be considered employment activities for usual purposes, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury. [Id.]
In further explanation of his "quasi-course of employment” approach, Larson states:
There is no intention at this point to suggest that the formulation here worked out is drawn from the pronouncements of actual cases. On the contrary, the reported opinions have developed no satisfactory overall analysis of the problem. However, if one looks at the actual holdings, one can find considerable support for the proposition that the pattern of principle here developed is not out of line with the main body of case law on the subject. [Id., p 3-546.]
While it may be true, as the dissent contends, that a tally of the decisions by courts in other jurisdictions would show that a slight majority line up with the approach taken by Professor Larson, that alone could hardly serve as a principled basis for reversal of the rule in Rucker. Such reasoning would disregard our duty to construe a statute so as to give effect to the Legislature’s intent. As stated in McKinstry v Valley OB-GYN Clinic, PC, 428 Mich 167, 190-191; 405 NW2d 88 (1987):
"In the interpretation of statutes, the legislative will is the all-important or controlling factor. Indeed, it is frequently stated in effect that the intention of the legislature constitutes the law. Accordingly, the primary rule of construction of statutes is to ascertain and declare the intention of the legislature, and to carry such intention into effect to the fullest degree. A construction adopted should not be such as to nullify, destroy, or defeat the intention of the legislature.” [Quoting 73 Am Jur 2d, Statutes, § 145, p 351.]
When, over a period of many years, the Legislature has acquiesced in this Court’s construction of a statute, the judicial power to change that interpretation ought to be exercised with great restraint. On more than one occasion our Court has quoted with approval the statement that stare decisis
"is especially applicable where the construction placed on a statute by previous decisions has been long acquiesced in by the legislature, by its continued use or failure to change the language of the statute so construed, the power to change the law as interpreted being regarded, in such circumstances, as one to be exercised solely by the legislature.” [Consumers Power Co v Muskegon Co, 346 Mich 243, 251; 78 NW2d 223 (1956), quoting 21 CJS, Courts, § 214, pp 388-390. See also In re Clayton Estate, 343 Mich 101, 107; 72 NW2d 1 (1955).][ ]
To the extent that prolonged acquiescence suggests legislative approval of the construction given by this Court to a statutory provision, it is reinforced when the Legislature reenacts the statutory language without change. In Smith v Detroit, 388 Mich 637, 650-651; 202 NW2d 300 (1972), we said:
"Even more persuasive is the rule that where the basic provisions of a statute have been construed by the courts and these provisions are subsequently reenacted by the legislature, it may be assumed that the legislature acted with knowledge of the Court’s decisions and that the legislature intended the reenacted statute to carry the Court’s interpretation with it.” [Emphasis in original.][ ]
Not only has the Legislature convened many times since Rucker was decided in 1942, but the Legislature on numerous occasions has revised and amended the act. However, the Legislature has never seen fit to make a substantive change in the "out of and in the course of employment” requirement, nor has it undermined in any way this Court’s construction and application of that language in Rucker, decided nearly half a century ago.
Moreover, we believe that our decision today is consistent with the intent of the Legislature manifested by its reform efforts during the past decade. A purpose of the comprehensive 1980 and 1981 revisions of the workers’ compensation system was to overturn or modify expansive interpretations placed upon the act by this Court. Although the dollar amount of benefits payable to workers eligible for compensation was increased, there can be no doubt that the Legislature also intended through its 1980 and 1981 reform efforts to narrow and restrict the eligibility qualifications. Against that background, and in light of the fact that the Legislature has never seen fit to disturb the rule in Rucker, we decline to overrule it because we believe that the Legislature intended the result we reach today.
m
To hold that Rucker no longer controls the disposition of this case would not only require that we disregard legislative intent but it would have the effect of usurping legislative responsibility in an important respect. When the no-fault system was enacted in 1972, Rucker was the controlling law; it stood for the proposition that a subsequent injury incurred in a motor vehicle accident while en route for treatment of a prior compensable injury was not covered by workers’ compensation. Thus, the Legislature’s allocation of costs as between the no-fault and workers’ compensation systems was made with an awareness that the no- fault insurance system would shoulder the cost of such accidents.
Justice Levin’s reasoning in joining to form a majority for the result in McClure v General Motors (On Rehearing), 408 Mich 191, 210; 289 NW2d 631 (1980), which involved an off-premises lunchtime accident, is directly applicable to the instant case. As he then explained,
Under the case law extant when the no-fault insurance act was enacted, employers were not generally liable for off-premises lunchtime injuries and thus, under the act, the motor vehicle insurer of the worker or a family member would ordinarily bear the entire cost of motor vehicle injuries during the lunch period. An extension today of worker’s compensation coverage to lunchtime automobile injuries would, because of § 3109 of the no-fault act, allow the motor vehicle carrier a deduction for worker’s compensation benefits payable and thus work a reallocation, probably unforeseen by the Legislature, of the cost of insurance reparations for such accidents from the no-fault system to the worker’s compensation system. This Court should not disturb the cost allocation extant when the no-fault act was enacted.
Justice Levin further explained,
It is no answer to say that because the purpose of § 3109 was to reduce the cost of no-fault insurance, a reallocation of the cost of [such] motor vehicle accidents away from the no-fault system furthers the Legislature’s purpose. The legislative decision embodied in § 3109 may have been based on assumptions regarding the existing costs to the worker’s compensation system that did not include payment for [such] automobile injuries generally. An extension of worker’s compensation liability to [such] automobile injuries not previously covered would impose on that system the greater part of the burden of providing insurance reparations for injuries heretofore compensated through the motor vehicle insurance system. [Id. at 229.]
As in the case of the off-premises lunchtime accident addressed in McClure, overturning Rucker would, for the first time, charge to the workers’ compensation system the cost of injuries sustained in motor vehicle accidents while en route for treatment of a prior compensable injury. Because Rucker was settled law in 1972 when the no-fault act was passed, the Legislature had no reason to anticipate such an extension of workers’ compensation liability to injuries incurred in a motor vehicle accident otherwise covered by the no-fault act. The result advocated by plaintiff would necessarily work a reallocation of the costs associated with such motor vehicle accidents as between the no-fault and workers’ compensation systems, without clear direction from the Legislature.
For these reasons, and on the authority of Rucker, we affirm the decision of the Court of Appeals.
Riley, C.J., and Levin and Brickley, JJ., concurred with Griffin, J.
MCL 418.101 et seq.; MSA 17.237(101) et seq.
MCL 418.301; MSA 17.237(301) provides:
An employee, who receives a personal injury arising out of and in the course of employment by an employer who is subject to this act at the time of the injury, shall be paid compensation as provided in this act.
MCL 500.3101 et seq.; MSA 24.13101 et seq.
We note that a distinction has been made between "aggravation” of a preexisting compensable injury and a subsequent injury which is distinct from the prior work-related injury. See 1 Larson, Workmen’s Compensation Law, § 13.11, p 3-348.91. In the past we have held that aggravation of a preexisting occupational disease is also compensable. Braxton v Chevrolet Grey Iron Foundry Div of General Motors Corp, 396 Mich 685; 242 NW2d 420 (1976). However, Ms. Dean does not allege that the injuries she received in the automobile accident were an "aggravation” of the prior work-related leg injury.
Docket No. 98898, decided August 10,1988.
Justice Black "would” have supported the reasoning of the lead opinion in Whetro had the "question not been previously decided . . . .” However, since the question had been "settled by a series of unanimous decisions of this Court,” 383 Mich 245, Justice Black’s rationale for providing the fourth vote for affirmance was merely to "attain some judgment of a case in which the Court finds itself fractured into indecisive groups . . . 383 Mich 248.
A "majority of the Court must agree on a ground for decision in order to make that binding precedent for future decisions.” People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973). See also Groening v McCambridge, 282 Mich 135, 140; 275 NW 795 (1937), Breckon v Franklin Fuel Co, 383 Mich 251, 278; 174 NW2d 836 (1970), In re Curzenski Estate, 384 Mich 334, 336; 183 NW2d 220 (1971), Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976), and Apportionment of Wayne Co Bd of Comm’rs—1982, 413 Mich 224, 249-250; 321 NW2d 615 (1982).
In a companion case, Emery v Huge Co, the employee was "killed when the motel in which he was staying while on a business trip for his employer was destroyed by the tornado . . . .” Whetro, supra at 239-240 (emphasis added).
In Rucker, supra at 672, the Court rejected the argument that the employee was still, at the time of the subsequent injury, under the control of his employer.
Although Professor Larson states that courts have usually found a sufficient causal nexus merely because the prior injury occasioned the trip to the doctor, Larson, supra, § 13.13, p 3-564, in many of the cases cited by Larson a much stronger causal nexus was present. See, e.g., Taylor v Centex Construction Co, 191 Kan 130; 379 P2d 217 (1963) (the claimant’s supervisor directed him to report to a certain doctor, the trip was on company time and company pay, gasoline for the trip was provided by the employer, and the accident occurred while claimant was returning to work); Charles N Clark Associates, Ltd v Robinson, 357 So 2d 924 (Miss, 1978) (the employer authorized and suggested that the claimant should see a doctor and offered to pay for the time missed); Bettasso v Snow-Hill Coal Corp, 135 Ind App 396; 189 NE2d 833 (1963) (the employer placed the claimant in an ambulance which was then involved in an accident as a result of slowing down for the company doctor); Augustine v NYS Elmira Correctional Facility, 64 AD2d 340; 410 NYS2d 141 (1978) (a department of the employer ordered the claimant to submit to an examination).
" 'Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation.’ ” Abendschein v Farrell, 382 Mich 510, 517; 170 NW2d 137 (1969) (citations omitted, quoting Burnet v Coronado Oil & Gas Co, 285 US 393; 52 S Ct 443; 76 L Ed 815 (1932) (Brandeis, J., dissenting). See also In re Clayton Estate, supra at 107; Consumers Power Co v Muskegon Co, supra at 251; Whetro v Awkerman, supra at 247 (Black, J., for affirmance).
In Sheppard v Michigan Nat’l Bank, 348 Mich 577, 631-632; 83 NW2d 614 (1957), Chief Justice Dethmers, concurring, wrote:
Where a statutory provision is re-enacted without change in language, it must be presumed that the action was taken in light of prior judicial construction placed upon it and with the intent to adopt such construction. When the Supreme Court has placed an interpretation on a statute over a considerable period of years it may indulge in the judicial assumption that the legislature has been content with that interpretation because of its failure to exercise its independent prerogative to restate the provision. [Citations omitted.]
See also Magreta v Ambassador Steel Co, 380 Mich 513, 520; 158 NW2d 473 (1968) (" 'The silence of the legislature ... to this Court’s interpretation of its intent . . . can only be construed as consent to the accuracy of that interpretation’ ”).
See, e.g., 1943 PA 245; 1954 PA 175; 1969 PA 317; 1980 PA 357; 1981 PA 200; 1984 PA 304; 1985 PA 103; 1987 PA 28.
The Workers’ Disability Compensation Act originated in 1912 (1st Ex Sess) PA 10. Over the years, the relevant statutory provision requiring that, to be compensable, the injury must arise out of and in the course of employment, has remained largely unchanged. The original statute provided:
If an employe . . . receives a personal injury arising out of and in the course of his employment by an employer ... he shall be paid compensation in the manner and to the extent hereinafter provided ....
The statute was amended by 1943 PA 245 to provide, in part, "An employe, who receives a personal injury arising out of and in the course of his employment by an employer . . . .”
The statute was amended once again by 1954 PA 175; however, the relevant phrase was not changed.
In 1969 PA 317, the Legislature revised and consolidated the workers’ compensation act. Section 301 provided: "An employee, who receives a personal injury arising out of and in the course of his employment by an employer . . . .”
1980 PA 357; 1981 PA 192; 1981 PA 193; 1981 PA 194; 1981 PA 195; 1981 PA 196; 1981 PA 197; 1981 PA 198; 1981 PA 199; 1981 PA 200; 1981 PA 201; 1981 PA 202; 1981 PA 203.
In general, see Booms & Salter, Workers’ disability compensation, 27 Wayne L R 1035, 1053-1054 (1981).
That a line of this Court’s decisions, handed down prior to 1980, "expanded and broadened the sweep of workers’ compensation coverage” was acknowledged in McClure v General Motors Corp (On Rehearing), 408 Mich 191, 203; 289 NW2d 631 (1980) (opinion of Ryan, J.). For a list of this Court’s decisions, regarded by Justice Ryan as having had that effect, see id. at 203, n 4.
See Senate Analysis Section, SB 1044, January 7, 1981; 1980 Journal of the Senate 3439-3440 (statement of Senator VanderLaan); 1980 Journal of the Senate 821-822 (statement of Senator Welborn); also Booms & Salter, n 16 supra, pp 1053-1054.
The Legislature is presumed to be aware of existing judicial interpretations of the law when passing legislation. Jeruzal v Wayne Co Drain Comm’r, 350 Mich 527, 534; 87 NW2d 122 (1957).
The dissent argues that the Legislature presumably was aware that Rucker was no longer good law in 1972, when it passed the no-fault act. We disagree. It is one thing to presume that the Legislature is aware of prior unanimous decisions, such as Rucker, and entirely another to suggest that the Legislature discerns that a plurality decision, such as Whetro, implicitly overruled a case which had, in 1972 when the no-fault act was passed, stood as precedent for thirty years. | [
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Per Curiam.
This is a consolidated appeal before this Court on order of the Michigan Supreme Court to consider this case as on leave granted, arising out of a claim for workers’ compensation disability benefits. 417 Mich 1002 (1983).
On March 10, 1966, plaintiff was severely burned in an explosion involving a tank truck while he was employed by DePree Company. As a result of this incident, plaintiff spent four months in the Burn Unit at University Hospital in Ann Arbor. Treatment for the burns resulted in his deafness.
In May, 1967, plaintiff returned to work. He had difficulties with pain, headaches, ringing in his ears, and communicating with people. The communication problem caused him to become "frus trated and depressed”. Sometime in 1972, plaintiff was transferred from assistant lab director to lab technician. In March, 1972, plaintiff was discharged; at this time he was not feeling well. Soon thereafter, he was reinstated, but was told that he could not "be sick anymore”. In April, 1972, plaintiff was admitted to a hospital and a psychiatric evaluation was conducted. Plaintiff stated that difficulties with communicating made his job very hard, and that he was continually confused, frustrated, and depressed. On May 24, 1976, plaintiff quit his job. Plaintiff attributed his decision to leave DePree to increasingly severe communication problems, constant roaring sounds in his head, headaches, and nervousness aggravated by contact with people. He also complained of company harassment. In August, 1977, plaintiff filed a claim for workers’ compensation disability benefits.
The hearing officer determined that plaintiff was totally and permanently disabled by emotional problems arising as a result of the March 10, 1966, injury. The hearing officer found no "aggravational injury on 5/24/76” and determined that Zurich Insurance Company, which insured DePree in March, 1966, was on risk and that Travelers Insurance Company, which insured DePree after Zurich, was not on risk.
The Workers’ Compensation Appeal Board (WCAB), modified the decision of the hearing officer. The WCAB found a 1976 injury date, with no total and permanent disability, and that Travelers was on risk to pay plaintiff general disability benefits.
In 1969, plaintiff’s action against the company owning the tank truck involved in the 1966 explosion was settled for $150,000. After reimbursing Zurich for workers’ compensation benefits and paying attorney fees and costs plaintiff netted approximately $100,000. The WCAB concluded that, pursuant to MCL 418.827(5); MSA 17.237(827)(5), Travelers was entitled to claim as a credit against workers’ compensation benefits due the net amount which plaintiff received from the third-party settlement.
In Docket No. 71553, plaintiff appeals the determination that Travelers is entitled to claim a credit against the third-party settlement, as does Zurich in Docket No. 71554. In Docket No. 71555, Travelers appeals the determination that plaintiff is entitled to workers’ compensation disability benefits, related issues going to the amount of payments to which plaintiff is entitled, and the determination that, in the event plaintiff is deemed entitled to benefits, it is the insurer on risk rather than Zurich. Although we will address each of the issues raised, rather than address them by docket number, we will first consider whether plaintiff is entitled to benefits, then the issue of which insurer is liable for benefits, and finally the questions going to the amount of payments to which plaintiff is entitled.
I
Plaintiff’s Entitlement to Workers’ Compensation Disability Benefits
Travelers asserts that the WCAB erred in awarding plaintiff benefits for emotional disability because plaintiff did not provide notice to DePree, his employer, sufficient to inform it that he claimed to suffer a work-related injury. Although defendant terminated his employment in May, 1976, he did not claim workers’ compensation benefits until August, 1977. As it applied in 1976, MCL 418.381(1); MSA 17.237(381X1) provided in pertinent part:
"No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury has been given to the employer within 3 months after the happening thereof and unless the claim for compensation with respect to the injury, which claim may be either oral or in writing, has been made within 6 months after the occurrence of the same * * *. In a case in which the employer has been given notice of the happening of the injury or has notice or knowledge of the happening of the accident within 3 months after the happening of the same, and fails, neglects or refuses to report the injury to the bureau as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of the employer or his insurer, until a report of the injury has been filed with the bureau.”
Plaintiff’s letter of resignation of May 24, 1976, stated that "for reasons of health I am terminating my employment with the DePree Company”. By subsequent letter of June 2, 1976, plaintiff informed DePree that "my reason for termination of employment is work related”. The WCAB found that these letters, taken together with internal company documents, including job evaluations which described, under the heading of "stability”, plaintiff’s tendency to "blow up” and become irritable with co-workers, were sufficient to place DePree on notice of the nature of his work-related claim. Fred Sackett, DePree’s personnel director, acknowledged that he did not attempt to ascertain the basis of plaintiffs claim that his resignation was work-related.
The question of notice is one of fact for the WCAB, and its findings are binding on the courts if there is any evidentiary support for them. Smith v Kelsey-Hayes Co (After Remand), 404 Mich 70, 73; 273 NW2d 1 (1978). Although a close question, the WCAB’s conclusion of sufficient notice is supportable on this record.
We believe that Travelers’ reliance upon Nicholson v Lansing Bd of Ed, 127 Mich App 551; 339 NW2d 482 (1983), is misplaced. In Nicholson, this Court held that mere knowledge by an employer of an employee’s absence from work as a consequence of sickness or injury is not sufficient notice to require reporting the injury to the workers’ compensation bureau. Here, however, DePree received two letters from plaintiff within a few days, the first of which indicated he was resigning for work-related reasons and the second of which claimed the resignation to be for reasons of health. Moreover, DePree’s own files showed that plaintiff had manifested emotional problems at work. The additional facts present in this case distinguish it from Nicholson and allowed the WCAB to find sufficient notice under MCL 418.381; MSA 17.237(381) so as to preclude the statute of limitations defense.
II
Determining Whether Travelers or Zurich Is on Risk for Workers’ Compensation Benefits
Travelers also contends that the evidence clearly reveals that there was no 1976 injury and that plaintiffs emotional injuries, if any, are the direct result of the 1966 explosion and injury. If, in fact, the first injury was not aggravated by subsequent work incidents but, rather, plaintiffs condition resulted from progressive deterioration arising out of the first injury which ultimately led to disability, then. Zurich, rather than Travelers, is on risk for providing plaintiff benefits for this disability. See Thick v Lapeer Metal Products Co, 103 Mich App 491, 495-496; 302 NW2d 902 (1981). Whether there was work-related aggravation of the original injury is a question of fact for the WCAB. Thick, supra. In the absence of fraud, the WCAB’s findings of fact are conclusive if there is any evidence to support them. Aquilina v General Motors Corp, 403 Mich 206, 213; 267 NW2d 923 (1978).
The hearing officer’s attribution of plaintiffs emotional disability to the 1966 incident, without subsequent work aggravation, was a fair conclusion to draw from the evidence. At the same time, we certainly cannot say that the WCAB’s finding of a 1976 emotional disability, arising out of "perceived harassment and an unfriendly work environment”, in combination with the residuals of the 1966 incident, is unsupported by the evidence.
Psychiatrist Forrest R. Van Dam testified that plaintiffs condition arose from repeated frustrations that plaintiff perceived in his workplace and which were not the result of any natural progression of the 1966 injury. He further pointed to conflicts with co-workers which contributed to plaintiffs poor self-image, rendering plaintiff unable to work. Similarly, psychiatrist Robert Troske attributed plaintiffs condition to mounting frustration over changes in the workplace and, ultimately, his inability to adapt to these changes.
Travelers, noting that plaintiffs communication problems were initially created by the 1966 explosion which resulted in his deafness, contends that it was solely the progressive deterioration of his ability to communicate, not aggravated by his subsequent work, which resulted in the disability. Travelers further notes that plaintiff, himself, attributed his work difficulties to his deafness and his inability to communicate, rather the to the job itself, and asserts that this proves that the disability was unrelated to the job. However, we are persuaded that the WCAB’s finding is supportable by Zurich’s counsel’s response to Travelers’ syllogism. Zurich’s counsel argues in his brief on appeal:
"[Plaintiff’s] forthright statements that the problems he had on the job were the cause of his subsequent difficulties, are transferred into statements that his inability to communicate, not his job requirements, were his problem. In the same way, a worker might say his problem is his back, without thereby excusing the lifting which gave rise to his back problem. We would be rather surprised to hear an individual suffering from a work-related back problem say, at time of trial, that his problem was "150 pounds”. He is more likely to say that his problem is his back. Or, his difficulty in communicating. That hardly excuses the [situation] which brought on this back or the psychiatric problem. If you ask the questions concerning how his back got that way, or how his condition got to be too much, then you get the answers about the precipitating incidents and situations.”
The record contains evidence which would allow the WCAB to conclude that post-1966 precipitating incidents and situations resulted in the emotional disability and that this disability did not simply represent the progressive deterioration of plaintiffs deafness.
Travelers also argues that, even if plaintiff did sustain a work-related emotional disability in 1976, the symptoms and residuals from any post-1966 aggravation no longer exist and his continuing disability, if any, flows directly from the 1966 injury. In so arguing, Travelers relies on Carter v General Motors Corp, 361 Mich 577; 106 NW2d 105 (1960). There, in the leading case in the nation on this subject, the Michigan Supreme Court held that plaintiff’s emotional breakdown was compensable. The plaintiff in Carter suffered from a preexisting schizophrenic condition which, as a consequence of the employment, became symptomatic and resulted in a disability. However, the Court reversed the award of continuing benefits, emphasizing that plaintiff’s expert had testified that, although plaintiff should not return to production work, this was not because he was currently disabled by schizophrenia but, rather, because his schizophrenia rendered him susceptible to future mental breakdowns if he were subjected to the pressures of production work. The Court noted that this susceptibility to mental breakdowns was the very reason why plaintiff should not have been employed in production work in the first place. In other words, although the work environment caused the plaintiff in Carter to become symptomatic, his underlying psychopathology was not changed by the workplace.
Travelers points to expert testimony in this case which shows that the psychiatrists agree that, since terminating his employment with DePree, any work-related frustrations no longer continue to play a role in his mental disease process. Moreover, plaintiffs expert, Dr. Forrest Van Dam, testified that when plaintiff was examined in September, 1978, plaintiff displayed no symptoms of ongo ing neurosis or psychotic disorder. Dr. Van Dam further testified, however, that plaintiff should not return to a job where he faces communication difficulties. Similarly, psychiatrist Robert Troske and psychologist Don L. Van Ostenberg testified that plaintiff was now free of psychopathology and the only reason why he should not work would be to accommodate his deafness. Given this testimony, Travelers argues that plaintiff’s deafness, not any post-1966 explosion aggravations in the workplace, is the basis of any current disability and that Zurich is thus liable for benefits.
The crucial distinction between this case and Carter is that here the WCAB found (and this finding is supported by the record) that plaintiffs underlying psychological condition actually changed as a consequence of the conditions in the workplace subsequent to his return to DePree after the 1966 injury. Although plaintiff is now relatively asymptomatic, his underlying psychological condition, altered by the combination of the 1966 injury and the subsequent difficulties in the workplace, have rendered him hostile and aggressive toward placement into an environment which he cannot control, that is, the environment of almost any workplace. The subsequent emotional traumas of the workplace have also left plaintiff with a lack of motivation and a largely passive personality. Unlike Carter, where the plaintiff’s underlying psychological condition, itself, did not deteriorate, here, as a consequence of post-1966 injury incidents in the workplace, plaintiff’s underlying mental state has deteriorated for the worse. Here, the WCAB found that the contraindication of work arose directly out of the workplace, while in Carter there was a contraindication for a particular type of work only and this contraindication existed prior to employment of any variety.
Ill
Issues Relating to the Amount of Workers’ Compensation Payments to Which Plaintiff Is Entitled
Zurich and plaintiff argue that the WCAB erred in allowing Travelers to claim credits on its liability against plaintiff’s third-party settlement arising out of the 1966 explosion and injury. They contend that, pursuant to MCL 418.827(5); MSA 17.237(827)(5), Travelers is not entitled to any credit for the third-party settlement because this settlement was paid on account of the 1966 injury, not the 1976 injury which the WCAB found resulted in disability.
In Pitoniak v Borman's, Inc, 104 Mich App 718, 730; 305 NW2d 305 (1981), relied upon by plaintiff and Zurich, this Court held that "reimbursement is only available where the injury for which compensation is payable under the act was caused by and creates liability in a third party”. In Griggs v Budd Co, 90 Mich App 649; 282 NW2d 431 (1979), relied upon by Travelers, this Court held merely that where a subsequent non-work accident aggravates and intensifies a work-related disability, to the extent that the employer or its insurer must pay compensation for this aggravation, reimbursement from a third-party tortfeasor is not precluded because the third-party’s liability did not arise out of a work-related incident.
We conclude that under either Pitoniak or Griggs it was error to allow Travelers to claim credits against the third-party settlement. The WCAB’s finding that there was a new work-related injury which resulted in disability in 1976, as opposed to the hearing officer’s finding that plaintiff’s disability merely represented the progressive deterioration of the 1966 injury, not aggravated by post-1966 workplace conditions, precludes granting Travelers credits against the third-party settlement. Both Pitoniak and Griggs are premised on the view that the right to reimbursement under MCL 418.827; MSA 17.237(827) follows liability. See, also, Downie v Kent Products, 122 Mich App 722, 740; 333 NW2d 528 (1983). Travelers is not, and was not, liable for the consequences of the 1966 injury; Zurich was and paid benefits accordingly. Travelers is responsible only for the consequences of the new 1976 injury, while the third-party settlement was to compensate plaintiff for the damages caused by the 1966 incident. Clearly, no portion of the settlement represented compensation for lost wages as a consequence of emotional or psychological disability because, at the time of this settlement, plaintiff was working and had not suffered such work loss. To the extent that the settlement represented compensation for more generalized psychic injuries, such as mental anguish, that settlement compensated for plaintiff’s noneconomic damages and, because a workers’ compensation insurer is not liable for payment of noneconomic damages, Travelers is not entitled to claim credits against this portion of the settlement. See Logan v Edward C Levy Co, 99 Mich App 356, 360-362; 297 NW2d 664 (1980). That portion of the WCAB award allowing Travelers a credit against the third-party settlement must be struck. We so order.
Travelers also contends that the WCAB erred in awarding interest on the entire amount of unpaid, but due, workers’ compensation benefits at 12% per annum, instead of awarding this rate of inter est only on those payments due, but unpaid, after January 1, 1982, the effective date of the amendment of MCL 418.801; MSA 27.237(801), adding subsection 5 which provides for the 12% rate of interest. This argument was recently rejected by the Supreme Court in Selk v Detroit Plastic Products, 419 Mich 1, 15; 345 NW2d 184 (1984).
Docket No. 71555 (Travelers’ liability and interest on unpaid, but due, benefits after January 1, 1982) is affirmed; Docket Nos. 71553 and 71554 (Travelers’ entitlement to credits against the third-party settlement) are reversed, and the WCAB order is modified to strike the provision in that order allowing Travelers to claim credits on the third-party settlement. Plaintiff and Zurich may tax costs.
Even if it is now excused from any obligation to pay plaintiff weekly compensation benefits, Zurich may, at some point, be called upon to provide medical care on account of the burns suffered by plaintiff in 1966. See MCL 418.315; MSA 17.237(315). Zurich is worried that, if Travelers is allowed to claim a credit on the third-party settlement arising out of the 1966 incident, it may find that that settlement has been completely exhausted by the credit extended to Travelers.
A portion of this settlement did compensate plaintiff for work loss while he was recuperating from the physical effects which the explosion caused to his person. | [
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Shepherd, J.
Plaintiff appeals as of right from a jury verdict of no cause of action in her negligence suit arising out of an automobile collision with defendant Diamond. Plaintiff was also unsuccessful in her motion for new trial. We affirm._
Facts
On September 28, 1974, plaintiff was injured in an automobile collision. On May 18, 1978, plaintiff filed a complaint naming as defendants Diamond and the Farm Bureau Insurance Group, which insured both Diamond and plaintiff. In its answer, the insurance group denied being a corporate body and said it did not conduct business as a legal entity.
On June 13, 1978, defendant Diamond moved for accelerated judgment based upon the three-year statute of limitations. In her answer to the motion, plaintiff claimed that the statutory period was extended for two years pursuant to MCL 600.5855; MSA 27A.5855 because of fraudulent concealment. At the same time, plaintiff sought leave to file an amended complaint, naming defendant Community Service Insurance Company as the proper corporate defendant.
On July 14, 1978, plaintiff’s motion was granted and the amended complaint filed. The complaint alleged, inter alia, that:
(a) Defendant Diamond was negligent in the operation of his vehicle;
(b) Defendant Community Service Insurance Company continued to represent to plaintiff that she was receiving and would continue to receive all possible no-fault benefits which, in turn, led plaintiff to believe that there was no reason for plaintiff to consider a third-party suit;
(c) On the day the statute of limitations ran, Community Service informed plaintiff that her insurance benefits were being terminated;
(d) Plaintiff had no knowledge that Diamond was insured by Community Service until after the benefits were terminated;
(e) Diamond (as principal) was estopped from raising the three-year statute of limitations because of the actions of his agent (Community Service); and
(f) Community Service failed to provide plaintiff with all benefits to which she was entitled and its misrepresentation caused her to lose compensation which she would have recovered in a suit against Diamond.
On November 21, 1978, Diamond withdrew his motion for accelerated judgment and waived his statute of limitations defense. At the same time, defendant Community Service moved for summary judgment, claiming that, since Diamond had withdrawn the statute of limitations defense, plaintiff could proceed in her action against Diamond and would suffer no damage by any action of Community Service. Plaintiff opposed the motion for summary judgment, arguing that the misrepresentation action against Community Service was a separate tort from the underlying action and one for which exemplary damages could be awarded.
On . April 20, 1979, the trial court granted Community Service’s motion for summary judgment, holding that, by Diamond’s waiving of the statutory three-year period of limitations, defendants had given back to plaintiff the cause of action she had prior to the running of the statute of limitations. As to whether plaintiff also had a cause of action against Community Service, the court stated:
"The remaining issue is then having been restored the cause of action against defendant, Michael Diamond, does plaintiff have a cause of action against the insurance company? * * *
"While the defendant company in this case is the plaintiffs no-fault insurer, there is no contractual obli gation flowing between recovery under defendant Michael Diamond’s contractual relation with the same insurance company until and unless liability and damages are proven.
"The plaintiff in this case may or may not have a cause of action against the defendant insurance company (her insurer) for refusal to pay or for nonpayment of no-fault benefits under the Michigan No-Fault Insurance Act since not pleaded in her complaint, but plaintiff has no cause of action against defendant’s insurer once being restored her cause of action against the principal defendant.”
After Community Service was dismissed as a defendant, the case proceeded to discovery. Jury trial commenced on February 23, 1982. Both plaintiff and Diamond testified as to their respective versions of the accident. Each claimed that the other had been driving in the wrong lane. Two other witnesses testified: a local police chief who lived adjacent to the accident site and a police officer who had been visiting at the police chiefs home on the night the accident occurred. Their testimony was somewhat conflicting and neither had actually seen the collision take place.
After closing arguments and instruction by the trial court, the jury deliberated for 32 minutes before returning a verdict of no cause of action. On March 24, 1982, plaintiff filed a motion for new trial, contending that the verdict was against the great weight of the evidence and that the May 29, 1979, dismissal of Community Service as a defendant was contrary to law. In her accompanying brief, plaintiff argued that Community Service’s misrepresentations had caused a loss of evidence which would have resulted in a presumption that such evidence (witnesses for a dramshop action, etc.) would operate against Community Service. As such a presumption would not be applicable against Diamond, plaintiff claimed that the proofs against the insurance company would be stronger.
The hearing on the motion for new trial was held on April 5, 1982. Defense counsel argued that plaintiff’s claim regarding the dismissal of Community Service was not timely since Community Service had been dismissed as a defendant nearly three years earlier, and also that the motion was improper since plaintiff had failed to allege destruction of evidence in her complaint.
In denying plaintiff’s motion for new trial, the trial court found that the verdict was not against the great weight of the evidence and that there was
"nothing in the complaint about any loss of any evidence attributable to any delay in the proceedings or the lawsuit being commenced. This is a brand new, novel presentation of facts that have surfaced after the jury has rendered their verdict. And, even so, under the facts of this case, I cannot feel that the insurance company in any way had control with who would be found in the bar or what evidence there was. They had no control over their retention or disposition. I just have to adhere to my previous ruling on the granting of the summary judgment. I don’t believe you have a sufficient basis for me to reconsider that.”
On appeal, plaintiff claims two errors: (1) the trial court should not have ordered the dismissal of Community Service as a defendant in 1979, and (2) the jury verdict was against the great weight of the evidence.
I
In her amended complaint, plaintiff’s claim against Community Service was for misrepresentation which deprived her of the compensation she would have received in a suit against Diamond. Once the statute of limitations defense was waived by Diamond, however, that problem was cured.
In her motion for new trial, plaintiff raised, for the first time, a claim that Community Service’s misrepresentation also caused her to lose valuable evidence that should have been collected shortly after the accident. Plaintiff again raises this claim on appeal, citing Johnson v Secretary of State, 406 Mich 420; 280 NW2d 9 (1979), for the evidentiary rule that the destruction of or failure to produce evidence by one party gives rise to the presumption that such evidence would work against that party.
Until recently, there was apparently no specific theory of liability for the destruction of or failure to produce evidence. Such a theory was recognized by this Court, however, in Jackovich v General Adjustment Bureau, Inc, 119 Mich App 221; 326 NW2d 458 (1982). Jackovich involved a claim of wrongful interference with economic interests. The plaintiff was seriously injured when a propane tank in his home exploded. Both plaintiff and the installer of a connection between the tank and a propane boiler were insured by the defendant Continental Insurance Company. Continental assigned to defendant General Adjustment Bureau the adjustment of the loss under plaintiff’s homeowner’s policy. An employee of an engineering firm hired by the defendant to locate the cause of the explosion lost some parts he had removed from plaintiff’s home. Plaintiff reluctantly settled his lawsuit because his attorney thought the case could not be established without the missing evidence. Subsequently, plaintiff filed suit against the investigator and Continental Insurance Company. Finding Continental liable to plaintiff for the loss of evidence, this Court stated:
"Evidence was presented during the trial which could support a finding that Continental Insurance Company did interfere with the plaintiffs rights. Therefore, it was an issue properly before the jury. * * *
"* * * We reject defendant’s argument that no cognizable claims were presented at trial. The law of Michigan recognizes the tort of interference with economic relations. Wilkerson v Carlo, 101 Mich App 629, 632; 300 NW2d 658 (1980). Moreover, Choi’s misplacement of the parts did appear to be negligent.” Jackovich, supra, pp 240-241.
Although there are factual differences between Jackovich and the instant case (most significantly, in the instant case concrete evidence was not lost), Jackovich provides support for an action for wrongful interference with economic interests or relations based on the loss of evidence. Plaintiff here, however, failed to include a Jackovich-type claim in her complaint.
In her complaint, plaintiff essentially outlined three claims:
(1) Count I — Community Service, the agent of Diamond, made fraudulent misrepresentations to induce plaintiff not to bring the action within the statutory time period, and Diamond should be estopped from raising the statute of limitations defense.
(2) Count II — Plaintiff relied on the misrepresentations and was injured by her failure to be compensated after the three-year period. She would have been so compensated if suit had been brought against Diamond.
(3) Count III — The misrepresentations and breach of contract by Community Service deprived plaintiff of all insurance benefits to which she was entitled.
There is no mention here of lost evidence. There is no indication that plaintiff felt she had been damaged in a way that could not be cured by Diamond’s waiver of the statute of limitations. Although plaintiff raises a legally recognizable theory of liability on appeal, we will not reverse on the strength of a claim that was neither included in plaintiff’s complaint nor raised at trial or at the summary judgment hearing, clearly the place to have raised the claim that Community Service had prevented plaintiff from obtaining evidence. See Reed v St Clair Rubber Co, 118 Mich App 1, 11; 324 NW2d 512 (1982).
As the trial court pointed out in its opinion denying plaintiff’s motion for new trial, plaintiff had never before alleged that evidence had been lost. Also fatal to plaintiff’s claim is her failure to allege the exact nature of the evidence which may have been lost. While a claim for loss of evidence may be legally viable, such will not be the case where the lost evidence is not identified to the court.
We do not say that a plaintiff may never have an action against an insurance company which neglected to tell the plaintiff that it insured both parties to an accident and which made misrepresentations to the plaintiff which caused her to sit on her rights while valuable evidence disappeared. We do hold, however, that such a plaintiff must raise her claim of lost evidence in a timely manner. Here, plaintiff did not allege a loss of evidence in her May, 1978, complaint nor in the July, 1978, amendment. She never sought to amend her complaint to add such a claim, even when Community Service moved for summary judgment in 1979, resulting in its dismissal as a defendant. At no time during the trial did plaintiff allege that evidence had been lost due to Community Service’s misrepresentations. It was not until plaintiff’s 1982 motion for new trial that the allegation first surfaced. We find that plaintiff waived any claim against Community Service for loss of evidence by her failure to raise that issue at any time prior to the verdict. Discussing a similar situation in Three Lakes Ass’n v Whiting, 75 Mich App 564, 581; 255 NW2d 686 (1977), this Court stated:
"This, however, was not the argument presented to the trial court. Plaintiff may not shift ground on appeal and come up with new theories here after being unsuccessful on the one presented in the trial court. Thompson v Ecorse, 7 Mich App 492; 152 NW2d 51 (1967); Rinaldi v Livonia, 69 Mich App 58, 64; 244 NW2d 609 (1976).”
See also Darin & Armstrong v Ben Agree Co, 88 Mich App 128, 137; 276 NW2d 869 (1979), lv den 406 Mich 1007 (1979).
We agree with the trial court in the instant case that a similar theory operates in a motion for new trial, barring exigent circumstances which were not present here. The trial court’s orders granting summary judgment and dismissing Community Service as a defendant and denying plaintiff’s motion for new trial are therefore affirmed.
II
Plaintiff next argues that the jury’s verdict was against the great weight of the evidence. We disagree.
On appeal, the trial court’s denial of a motion for new trial because the verdict was contrary to the great weight of the evidence will only be disturbed for an abuse of discretion. Murphy v Sobel, 66 Mich App 122; 238 NW2d 547 (1975); Walls v Transamerican Freight Lines, 37 Mich App 307; 194 NW2d 422 (1971). This Court has not been eager to set aside the ruling of the trial judge. See, e.g, Termaat v Bohn Aluminum & Brass Co, 362 Mich 598; 107 NW2d 783 (1961).
As Honigman and Hawkins notes:
"It is impossible to describe objectively the standard by which the weight of the evidence is measured in passing on a motion for a new trial. There is no reason to suppose that other verbal formulas would be any more helpful or meaningful than that used in the rule itself — the verdict 'is against the great weight of the evidence.’ On the one hand, a discretionary grant of a new trial may be appropriate, even though there was sufficient evidence to withstand a motion for a directed verdict — that is, when there was some substantial evidence to carry the issue to the jury. Davis v Belmont Creamery Co, 281 Mich 165; 274 NW 749 (1937). On the other hand, it would be error for the trial judge to grant a new trial simply because he might draw different inferences from the evidence, resolve conflicting testimony in a different way, reach a different conclusion as to the credibility of witnesses, or prefer a different decision as between permissible alternatives * * *. Between these extremes lies an area in which the proof begins to weigh heavily against the verdict, wherein the trial judge’s discretion must be accepted as the best guide to whether fairness requires a new trial.” 3 Honigman & Hawkins, Michigan Court Rules Annotated, p 113.
In the instant case, plaintiff’s and defendant’s versions of the collision differed. Plaintiff testified that as she crested a hill on a curving road, defendant Diamond came toward her driving on plaintiff’s side of the road. Although she tried to swerve to the left, plaintiff could not avoid Diamond entirely and his car collided with hers. Diamond, on the other hand, testified that he was driving slowly on the far right side of the road when plaintiff came up the hill in the wrong lane and struck him head on.
The police officer who saw the accident scene testified that he could smell liquor on Diamond’s breath but that Diamond did not appear impaired. Diamond had told him immediately after the accident that he had been going about 45 miles per hour, although at trial Diamond testified that he was going much more slowly. Diamond explained the apparent discrepancy by saying that he had misunderstood the officer’s question at the scene of the accident and had meant that he had been going about 45 miles per hour before approaching the curves and hills immediately ahead of the situs of the accident. Although the two police witnesses differed somewhat in their descriptions of the cars’ locations after the accident, they did not witness the collision itself and could only describe post-impact conditions.
While the record evidence does not inspire the clear and immediate conclusion that defendant Diamond’s version was the correct one, we are unable to say that the trial court’s denial of plaintiff’s motion and its finding that the jury verdict was not against the great weight of the evidence was an abuse of discretion. The jury could have judged Diamond the more credible of the parties, perhaps as a result of his attack on the veracity and credibility of plaintiff. The police witnesses could not agree as to whether a sketch of the accident scene introduced into evidence was a point-of-impact sketch or one which represented the cars at rest following the collision. Each party argued that the evidence presented was more favorable to himself or herself.
We therefore agree with the trial court’s denial of plaintiffs motion for new trial and decline to reverse either the jury verdict or the order denying the motion.
Affirmed. Costs to appellees.
We understand plaintiff to be saying that if the insurance company had not caused her to delay suing the tortfeasor there might have been additional evidence which might have surfaced favorable to plaintiff’s cause. Plaintiff then reasons that such nonpleaded and unknown evidence is presumed to favor plaintiff. We are not willing to extend the presumption contained in Johnson v Secretary of State, 406 Mich 420, 433; 280 NW2d 9 (1979), to evidence the existence of which has not been established or alleged. | [
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Per Curiam.
This defendant persuaded the trial court to exclude evidence that he had committed a prior bad act. The issue now before us is whether the defendant’s own direct examination testimony introduced the subject to the jury, thus opening the door for the prosecution to cross-examine the defendant on the prior bad act and introduce rebuttal testimony that the prior bad act did occur. We agree with the defendant that his testimony on direct examination did not introduce the prior bad act and that evidence of the prior bad act should not have been admitted at trial. We therefore reverse the defendant’s conviction and remand the case to the circuit court for a new trial.
I
In separate informations, the defendant was charged with having engaged in sexual contact with C.C., a person under the age of thirteen, on July 1, 1979, and on July 14, 1979. MCL 750.520c(l)(a); MSA 28.788(3)(l)(a). More than a year before the trial, the defendant filed a written motion in limine requesting the trial court to exclude evidence that, in August of 1979, he had kissed a young girl named K.P. on the mouth. Not long after, the trial court issued a written order reserving its ruling on this matter until the trial.
The case was tried in late July of 1981. When the defendant’s motion in limine was again considered, the trial court held that the evidence concerning K.P. should be excluded:
But the court has great reluctance, and, in fact, will not allow the testimony of [K.P.] for the reason the court cannot see the similarity between kissing which may’ve been a totally innocent act and the other acts of which the defendant is accused which are obviously of a sexual nature. I assume kissing in some instances does lead to other acts of intimacy, sometimes it doesn’t. Sometimes it’s done for purely affectionate reasons. But I do not see the similarity between the two, and I believe that if the court were to allow it that the prejudicial effect would in this particular case far outweigh, far, far outweigh any probative value it would have. So, therefore, the court will rule, and does rule, that the prosecutor may not ask this witness any questions relating to a specific occurrence or occurrences which may’ve occurred, and which were contained in the prosecutor’s offer of proof.
In due course, the defendant took the stand and denied any impropriety with C.C. The prosecutor seized on the final question and answer of the defendant’s direct examination as an invitation to inquire whether the defendant had ever kissed K.P.:
Q. Mr. Hernandez, did you ever touch this child, [C.C.]?
A. No, I haven’t.
Q. Did you ever touch her in a sexual manner as she testified?
A. I never touched that child.
Q. Did you ever touch any child in the manner she testified?
A. I never touched any child.
[Defense Counsel]: I don’t have any further questions. Thank you.
[Assistant Prosecutor]: Could I have the last question and answer read back, your honor?
The Court: Yes.
Cross Examination by [Assistant Prosecutor]:
Q. Mr. Hernandez, your testimony is you have never touched any child in a sexual manner?
A. Never touched any child.
Q. Have you ever kissed a little girl?
A. I’ve kissed a lot of children.
Q. Have you ever kissed [K.P.]?
A. Not to my knowledge, no, I have never.
Q. Did you ever take [K.P.] into your cabin one time when you were looking for something and kiss her and put your arm around her, and then tell [K.P.] don’t tell your parents, let’s let this be our little secret?
A. No sir.
Q. You never did that?
A. No sir.
Q. Do you know who [K.P.] is? You saw her?
A. Yes, I know who she is.
Q. And you’re swearing under oath you never ever kissed [K.P.] in her life?
A. No, I have not.
Q. And you’re swearing under oath that you never told [K.P.] don’t tell anybody about this, let’s keep this our little secret?
A. I never have.
The defendant did not object at the time those questions were asked, but once the jury was absent, he strenuously objected to what had happened, as well as to the prosecution’s plan to call K.P. as a rebuttal witness. The defendant observed that K.P.’s name was never mentioned during the direct examination. Moreover, argued the defendant, the final question and answer of his direct examination had concerned his sexual touching. Unpersuaded, the trial court ruled that it would allow the prosecution to employ K.P. as a rebuttal witness:
The court finds that one of the, if not the leading, one of the leading cases involving the matter of rebuttal testimony is found in the case of People v Bennett, 393 Mich 445 [224 NW2d 840 (1975)]. At 449 and 450 the court stated that rebuttal is limited to the refutation of relevant and material evidence, hence evidence bearing on an issue properly raised in the case. Such issue, of course, could be one raised in the prosecutor’s case in chief, or one raised by way of defense, and evidence on either would be subject to rebuttal. But here where the prosecutor did not offer this evidence in his case in chief, which he would’ve had to do if this were to be regarded as an admission, it did not bear on an issue raised by the People; neither does it bear on an issue raised by the defense. In People v Grigsby [On Remand], 99 Mich App 672, 675 [299 NW2d 21 (1980)], it is clear that rebuttal testimony is limited to the refutation of relevant and material evidence, hence evidence bearing on an issue properly raised in a case. It is also clear that a prosecutor may not elicit a denial of some statement not properly in the case and subsequently inject the issue into the case through rebuttal. They cite [People v] McGillen #1 [392 Mich 251; 220 NW2d 677 (1974)], they cite Bennett and others. This general subject matter was reviewed, I thought, rather thoroughly, and the court took the position that the alleged activity between the defendant and the young child, [K.P.], was not to be injected into the case by the People. In this situation we have a situation where not only has the defendant denied ever touching in any way the alleged victim in this case, [C.], but has also testified in response to a question asked by his attorney that he never touched any other little girl as well. Further on cross examination he has denied having ever kissed [K.P.] and also denied having told her not to tell anyone of the particular instant [sic]. The prosecution attempted to offer this evidence in its case in chief, and was rejected by the court. However, in this instance we have a question that was raised by the defense counsel and answered by his client. The subject matter was then gone into on cross examination without objection, and the court believes that this is a — that the subject matter is proper for rebuttal as long as it’s limited to the refutation of relevant and material evidence, and it was evidence which bears on an issue that was raised by the defense. Therefore, I will allow the rebuttal testimony of this young child.
In his direct examination of K.P., the assistant prosecutor elicited the following testimony:
Q. Okay. And did Danny go into the closet with you?
A. Yes.
Q. What happened, if anything, in the closet?
A. He said that he was going to teach me how to kiss.
Q. Okay. And what happened next?
A. He kissed me.
Q. Okay. And where were his hands when he kissed you?
A. Just on my back.
Q. Okay. How old were you then?
A. Eleven.
Q. Okay. What did Danny say to you, if he said anything, after he kissed you?
A. He said don’t tell anyone, it’s just our little secret.
K.P.’s testimony was emphasized at several points in the assistant prosecutor’s argument to the jury:
One of the questions I thought about was why didn’t [C.] tell her mother about this earlier? I think you got that answer by [K.]. The same reason that [K.] didn’t tell her folks, her brother or anybody about this, as defense counsel so kindly brought out, is because that man told these little girls not to tell people what he was doing to them. He denied it. Well, I didn’t touch — I didn’t touch any of those girls. I never did anything like this, he says. Then [K.] gets on the stand under oath and recounts an incident to you where not only did he teach her how to kiss, apparently he decided to teach [C.] how to do a little bit more than kiss. He wanted it to be our little secret. Let’s not tell anybody. That shows you what the defendant was doing. It was up at the cottage, the same summer of '79, and she’s an attractive little eleven year old girl. He says, hey, here’s my chance. I’ll kiss her in the closet. I’ll teach her how to kiss and see what’s going to happen next. Boy, I don’t want anybody to know about this because I know I shouldn’t be doing this kind of thing. I shouldn’t be going after little eleven year old girls. I’m a forty year old man. I shouldn’t be doing this kind of stuff. So, little girl, let’s just keep this our little secret. Do you think [K.] was lying to you? Is she part of this vast conspiracy to convict this defendant? I don’t think the evidence shows that. It shows a plan or scheme.
Why would [C.] and her family lie? There has been no reason whatsoever from that witness stand; no reason whatsoever that [C.] and her family would lie about what happened. There’s no reason [K.] would lie about what happened. The judge will tell you that you can only listen to evidence from the witness stand. Finally look at what the defendant’s little scheme, little plan was. He’s up north, and his girlfriend is not around. There’s a couple of cute little girls running around. He doesn’t just do this with [C.], although he goes farther with her. He tries the same type of thing with [K.]. Not only that, he gets on the witness stand and says, no, that never happened. He swore to you under oath, ladies and gentlemen. Make no mistake about it. He sat right there and he swore to you under oath that he never kissed [K.] that summer, and that he never told her not to tell anybody. Do you know why he swore that? Because, boy, he sure doesn’t want you folks to believe that he was trying this with another little girl. But that other little girl was here, ladies and gentlemen, and she got up and said, yes, he did. I don’t think she’s very happy about being here. She told you she was nervous. You could see she was nervous. Was she lying? Again, why would she lie? Does the defendant have a reason to lie about it? You bet, he doesn’t want to be convicted. Did she have a reason to lie about it? No. All she has to do is say, no, he never kissed me. He never touched me. That’s not what she said, ladies and gentlemen. Again, she told you the truth.
After the jury returned a verdict of guilty as charged, the defendant was sentenced to concurrent terms of from three to fifteen years in prison. The Court of Appeals affirmed the convictions, rejecting the defendant’s claim that there was error in the trial court’s handling of the testimony of K.P.:
The prosecutor sought to use similar acts evidence against the defendant. The evidence consisted of the testimony of 11-year-old [K.P.], that defendant had kissed her and told her not to tell anyone. The trial judge ruled that the evidence was inadmissible. Defendant testified at trial that he had never touched any girl in the way claimed by the alleged victim. On cross-examination, defendant denied every [sic] having kissed [K.P.]. The prosecutor was then allowed to present the contrary testimony of [K.P.].
Defendant argues that the admission of [Ms. K.P.]’s testimony denied him a fair trial. We disagree with this claim, because we disagree with the defendant’s contention that the cross-examination of defendant concerning [K.P.] was improper. Defendant "opened the door” to testimony concerning sexual contact with young girls by denying that he had ever engaged in such contact. By doing so, he placed his character in issue. The prosecutor was free to present extrinsic evidence of defendant’s propensity to engage in such conduct. This case is not similar to People v Mitchell, 402 Mich 506; 265 NW2d 163 (1978). In that case, the prosecution introduced evidence suggesting homosexual activity on the defendant’s part. Defendant denied having engaged in such activity and the prosecutor was allowed to present extrinsic evidence refuting the denial. In the present case, the defendant clearly opened the door by his broad denial of sexual activity with children. The testimony of [K.P.] was admissible to refute this claim. See People v Edmonds, 93 Mich App 129, 134-135; 285 NW2d 802 (1979). This testimony was not improperly used in rebuttal; it was clearly not admissible in the People’s case-in-chief.
The defendant has now filed in this Court a delayed application for leave to appeal.
II
We need not tarry at our determination that the trial court was correct in its original decision to exclude the evidence concerning K.P. This evidence wholly fails to satisfy the applicable standards for the admission of such evidence. People v Major, 407 Mich 394, 398-399; 285 NW2d 660 (1979); People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982).
Rather, the issue is whether the otherwise inadmissible evidence became a fit subject for cross-examination and rebuttal as a result of the defendant’s denials. In People v McGillen #1, 392 Mich 251, 264-268; 220 NW2d 677 (1974), a rape defendant testified that he had never spanked any of his children (including the victim) and that he had never struck the victim with his hand. Having already decided to reverse the defendant’s conviction because of an unrelated error, this Court explained its view of the rebuttal testimony that the prosecution had introduced to contradict the defendant’s denials:
It would be relevant to contradict the testimony of the defendant as to whether or not he ever struck the prosecutrix and, by so showing, introduce evidence tending to show the state of mind of the prosecutrix at the time of this alleged incident. Any fear which Barbara had of her father would be relevant on the question of the amount of resistance she could be expected to put forth to her father’s advances. It might also be relevant to show that defendant has struck other members of the family, but only so far as that act was committed in Barbara’s presence, or was in some way communicated to her and had some effect on her mental attitude towards resisting her father’s will.
Without this vital connective link, this rebuttal testimony becomes collateral to the issue being tried and inadmissible.
Also, where the nature of the rebuttal testimony itself, as presented in this case, is so inherently inflammatory and prejudicial, the trial judge, when the proper objections are raised, should consider whether or not any probative value it may have is outweighed by the inherent prejudice to the defendant and if so, exclude it from testimony. This is particularly so where, as in this casé, the prosecutor proceeds to question the witness on all the emotionally appealing, prejudicial details of the father’s "spanking.” These details, it is noted, go beyond simple contradiction of the defendant’s testimony in this case. Generally, the only type of contradictory evidence that is admissible is that which directly tends to disprove the exact testimony given by a witness. [392 Mich 267-268.]
We explained a bit more about rebuttal in People v Bennett, 393 Mich 445; 224 NW2d 840 (1975). In Bennett, the defendant was on trial for first-degree murder. After the prosecution had introduced its case in chief, the defendant produced alibi witnesses and took the stand himself to deny the shooting. On cross-examination, the defendant was asked whether he had ever told a fellow jail inmate that there were going to be more murders after he was released from the jail. The defendant responded, "No.” The trial court then permitted the prosecution to rebut the defendant’s denial through the testimony of a witness who said, "I heard him saying that he had another fellow to kill when he get out.” We explained that this was improper rebuttal and cautioned that rebuttal is limited to refutation of relevant and material evidence. The prosecution had argued that this was proper rebuttal testimony since it contradicted defendant’s denial. We were unpersuaded:
This argument misconceives the office of rebuttal. Rebuttal is limited to the refutation of relevant and material evidence — hence evidence bearing on an issue properly raised in a case.
Such issue of course could be one raised in the prosecutor’s case in chief or one raised by way of defense, and evidence on either would be subject to rebuttal.
But here, where the prosecutor did not offer this evidence in his case in chief, which he would have had to do if this were to be regarded as an admission or part of a scheme, it did not bear on an issue raised by the people.
Neither does it bear on an issue raised by the defense.
The device of eliciting a denial of some statement not properly in the case at the time of denial will not serve to inject an issue.
Both the statement and the veracity of the witness are then collateral matters and the cross-examiner is bound by the response. People v Hillhouse, 80 Mich 580; 45 NW 484 (1890). [Bennett, 393 Mich 449-450.]
Similarly, in People v Losey, 413 Mich 346; 320 NW2d 49 (1982), we reversed a conviction after the prosecution introduced rebuttal testimony to contradict the defendant’s denial of a matter that was introduced during cross-examination of the defen dant and that was of doubtful relevance. The prosecutor conceded that the rebuttal was error, and we noted again the Bennett rule that the device of eliciting a denial on cross-examination may not be used to inject a new issue into the case. We also repeated a statement we had made in People v Teague, 411 Mich 562, 566; 309 NW2d 530 (1981), that extrinsic evidence cannot be introduced to impeach a witness on a collateral matter.
Ill
The defense, having moved in limine to exclude testimony concerning K.P. and having obtained a favorable ruling, was entitled to rely upon that determination. The prosecutor’s cross-examination of the defendant concerning K.P. compromised the prior ruling of the trial court in this regard. The final question and answer of the defendant’s direct examination had nothing to do with kissing and instead concerned whether the defendant had ever touched any child in a sexual manner.
For the same reasons, the introduction of the rebuttal testimony was error. Moreover, it contradicted several principles that were explained in the above-cited cases. It was rebuttal on a collateral issue, i.e., rebuttal on an issue not material to the resolution of the case. Moreover, its prejudicial effect surely outweighed any probative value. MRE 403. Finally, it did not disprove the exact testimony of the defendant, except insofar as it tended to disprove the denial proffered during the improper cross-examination concerning K.P.
This was a closely contested credibility contest in which the defendant denied any wrongdoing. On the whole record before us, we cannot say that the cross-examination of the defendant and the introduction of rebuttal testimony concerning K.P. was harmless beyond a reasonable doubt.
Therefore, in lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and the circuit court, and we remand this case to the circuit court for a new trial. MCR 7.302(F)(1). This disposition makes it unnecessary for us to address the defendant’s remaining issues.
Williams, C.J., and Levin, Ryan, Brickley, Cavanagh, and Riley, JJ., concurred.
A short time later, defense counsel explained the lack of objection:
"Your honor, may I only say that the reason the matter was not objected to was so as not to draw the attention of the jury to what was going on at that point. As soon as that question was asked, did you ever kiss [K.P.], ¿1 jurors — all twelve jurors’ eyes opened up to double their normal size. I couldn’t have objected to that and had a discussion in front of the court. They would have at least been left with the impression that there was something that the defense was trying to hide from this jury. The prosecutor knowing of the court’s previous ruling had the defense in a position with my hands tied behind my back. I was damned if I objected, and I’m now being damned if I didn’t object. There was little to do at that point once the question had come out. There was no way this court could have ever instructed that jury to disregard any question as to whether the defendant ever kissed [K.P.]. I just — the decision was made at that point not to object to it, not to draw attention to the matter. Now here we are in a position because I didn’t do that, the court is saying, well, because you didn’t object, and the prosecutor clearly elicited that testimony as to [K.P.]. The man elicited a denial. He knew what he was doing. He knew exactly what he was doing. He had the little girl sitting in the hallway so the defendant could deny that, and so he could trot her in here and get in front of this jury what the court previously ruled they cannot do because of the prejudicial effect. Now it’s coming in anyway because he’s elicited a denial. The name of [K.P.] was never mentioned by the defense when it was examining Mr. Hernandez.”
Unpublished opinion per curiam of the Court of Appeals, decided July 22, 1983 (Docket No. 61265).
On the facts of this case, defense counsel acted responsibly by waiting until the first opportunity to renew his objection outside the presence of the jury. See n 1. | [
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Ryan, J.
This is an action for personal injury damages arising out of a construction-site accident in which the plaintiff, Marvin Moody, lost a portion of the fingers of his left hand. We granted leave to appeal in order to consider a number of assignments of error relating to the trial court’s handling of the jury-instruction phase of the trial, specifically, the court’s refusal to advise counsel before final argument what instructions the jury would be given, the failure to give the "material substance” of the plaintiffs’ theories of the case, and the refusal to give a number of proposed jury instructions requested by the plaintiffs.
The facts of the case insofar as they are pertinent to our decision are as follows: Pulte Homes, Inc., was the developer and general contractor for a residential construction project in the City of Troy. Defendant Clyde Cinader was employed by Pulte Homes as a subcontractor under a written contract with Pulte to provide backfill and grading work at the construction site. Clyde Cinader was not present when the plaintiff was injured, al though his employee and son, Scott Cinader, and another employee, Duane Joyce, were present. Marvin Moody was hired by Clyde Cinader to haul dirt at the project.
The testimony of the various witnesses differs sharply as to how Moody was injured. It appears incontrovertible, however, that the injury occurred when Moody’s left hand was caught between a fan belt and a pulley while Moody was helping Scott Cinader start a bulldozer. There was sharply conflicting testimony whether Scott Cinader started the bulldozer while Moody’s hand was in the area of the fan belt and pulley, or whether Moody started the engine himself by placing a piece of metal across a solenoid.
Moody and his wife filed a two-count complaint against Pulte Homes and Clyde Cinader. Count I of the complaint alleged that the work undertaken by Pulte Homes through its contractor, Clyde Cinader, was inherently dangerous and that Pulte Homes was "vicariously liable” for the negligent acts of Cinader and directly liable for its own negligence in hiring a careless and incompetent contractor, in failing to exercise control over the personnel and equipment on the project, and in failing to supervise the project. Count I also alleged that Cinader was directly negligent in hiring incompetent employees and permitting them to operate heavy equipment and in failing to adequately supervise and inspect the project. Plaintiffs also alleged that Cinader was vicariously liable for the negligence of his employee and son, Scott Cinader, in starting and operating the bulldozer without warning to the plaintiff, and without permitting the plaintiff to leave the vicinity of the bulldozer.
Count II of the complaint alleged that plaintiff was a third-party beneficiary of a written contract between the defendants that imposed various duties upon each of them regarding project safety and the safety of personnel on the job site. At the close of plaintiffs’ proofs, the trial court granted a motion for a directed verdict as to Count II in favor of Pulte Homes. At the close of all the proofs, the jury returned a verdict of no cause of action, and the Court of Appeals affirmed. 125 Mich App 739; 337 NW2d 283 (1983).
I
In the first of the assignments of error we address, plaintiff claims to have been unfairly prejudiced by the trial court’s failure to advise counsel, prior to closing arguments, which of the proposed jury instructions requested by the parties would be given and which would not.
At the close of the proofs, counsel for all the parties presented to the court their requests for jury instructions. After listening to argument concerning the proposed instructions, the court directed the attorneys to proceed with closing arguments, without indicating which of the parties’ requested instructions, if any, would be given. The plaintiff objected. The following occurred:
The Court: Bring in the jury Mr. Grekonich.
[.Plaintiff’s Counsel]: Your Honor, may we have a ruling on the instructions?
The Court: No. Just follow along. I’ll give the instructions to the jury.
(Whereupon the jury was escorted into and seated in the Courtroom)
[Plaintiff’s Counsel]: Could we approach the bench?
The Court: Yes.
(Whereupon counsel approached the bench, off the record.)
After closing arguments, the following occurred:
(Whereupon the Court Officer was duly sworn the the [sic] jury excused from the Courtroom at approximately 5:45 p.m.)
The Court: The record should reflect that [plaintiff’s counsel] asked earlier that the Court rule in advance on the various discussions or conflicts between their attitudes about the proposed jury instructions. Go ahead.
[PlaintifFs Counsel]: Yes, your Honor. I simply want the record to show a clear objection to the Court’s failing to rule before our having to argue to the jury.
The Court: Yes, and I want the record to show that you are not now just bringing it up. You did bring it up earlier.
[Plaintiff’s Counsel]: Yes, thank you your Honor. And I assume and the Court presumes there is an objection to the Court’s failure to give many of the proffered instructions that were not given?
The Court: Yes. Let the record reflect, because this is the time, and I take it neither counsel has abandoned your request for the jury instructions that you made that were not given. Any that were not given, you have not abandoned that request.
[Plaintiff’s Counsel]: Yes, that is correct.
[Defense Counsel]: That is correct.
[Plaintiff’s Counsel]: And I object to the Court’s refusal to give those that the Court did not give.
The Court: Likewise true?
[Defense Counsel]: Yes, but I’m happy.
Plaintiff claims that the court’s refusal to advise counsel prior to closing arguments which, if any, of the requested jury instructions would be given is error.
We agree.
GCR 1963, 516.1 stated, in pertinent part:
Request for Instructions. At or before the close of the evidence, any party may, or at any time the Court reasonably directs, the parties shall, file written requests that the Court instruct the jury on the law as set forth in the request. A copy of such requested instructions shall be served on the adverse parties in accordance with [GCR 1963,] 107. The court shall inform counsel of its proposed action on the requests prior to their arguments to the jury, and, subject to the provision of subrule 516.3, shall instruct the jury after the arguments are completed. [Emphasis supplied.]
The court gave no reason for its failure to comply with the court rule, and none is evident from the record.
The purpose of the rule that requires that counsel shall be informed, prior to addressing the jury, of the court’s decision concerning requested instructions is, of course, to enable counsel to tailor the closing argument to the facts of the case in the context of the law that the court will advise the jury is applicable. If the court decides not to give one or more instructions requested by counsel, particularly instructions critical of a party’s theory of recovery, counsel should know that before addressing the jury, not only to avoid embarrassment and the appearance of ineptness, but to avoid needless comment upon irrelevant matters, to avoid the risk of alienating jurors with what may appear, to them, to be unfair attention to inconsequential or inappropriate matters or even an attempt to confuse them. More importantly, compliance with the rule tends to preclude prejudice to a party that may follow upon any of the foregoing. See Hunt v Deming, 375 Mich 581, 585; 134 NW2d 662 (1965).
Here, as will be seen shortly, counsel for plaintiff requested at least ten instructions that the trial court did not give, and the court required plaintiff’s counsel to argue without knowing whether or not the instructions would be given.
It is obvious from the language of Rule 516.1 that the trial court erred in violating its mandate.
Having found error in the trial court’s failure to comply with Rule 516.1, we must now consider whether such error can be considered harmless. GCR 1963, 529.1. Because we reverse in part the judgment of the Court of Appeals and vacate, on other grounds, the jury’s verdict of no cause of action against defendant Cinader, it is not necessary to address plaintiff’s claim of unfair prejudice from the violation of Rule 516.1 with respect to plaintiff’s claims against Cinader. It suffices to repeat that the rule is mandatory and does not confer upon trial courts the freedom to ignore it. Hunt, supra, p 584.
As stated below, however, we affirm the Court of Appeals judgment affirming the verdict of no cause of action in favor of Pulte Homes, Inc. Given the lack of evidence in support of plaintiff’s claims against Pulte, we do not think that the trial court erred in failing to give to the jury plaintiff’s proposed special instructions concerning Pulte’s liability. (See n 19.) Since the evidence did not warrant giving these instructions, the plaintiff was not unfairly prejudiced by the trial court’s failure to inform counsel that it was not going to give them.
Moreover, our refusal to reverse and remand for a new trial against Pulte Homes on the basis of the trial court’s failure to comply with Rule 516.1 is not "inconsistent with substantial justice,” Rule 529.1, because the lack of evidence supporting plaintiffs claims against Pulte would have justified the trial court’s granting of a directed verdict on all of those claims. In their complaint, plaintiffs alleged several theories of liability against Pulte Homes: (1) vicarious liability for the negligent acts of its subcontractor Cinader; (2) direct liability for negligently hiring a careless and incompetent subcontractor; (3) direct liability for negligently failing to exercise control and supervision over the construction project. However, the great bulk of the testimony and arguments presented by plaintiffs in this case related to the alleged negligence of defendant Cinader, particularly his alleged vicarious liability for the acts of his employee, Scott Cinader. There was a complete failure of proof regarding plaintiffs claims of negligent hiring or negligent supervision on the part of Pulte Homes. As for the vicarious liability claim, the general rule is that a general contractor is not liable for the negligent acts of an independent subcontractor in the absence of the right of control. Barlow v Krieghoff Co, 310 Mich 195, 198; 16 NW2d 715 (1944). Plaintiff presented no evidence suggesting that Pulte had retained the right to control the personnel or equipment brought onto the construction site. Indeed, the contract between Pulte and Cinader, introduced by plaintiff as a trial exhibit, specifically stated that "[the] Subcontractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the work.”
Assessing the evidence in a light most favorable to the plaintiffs, we are convinced that Pulte Homes would have been entitled to a directed verdict, as a matter of law, on all of plaintiffs claims against it. Therefore, we find the trial court’s violation of Rule 516.1 to be harmless error as to defendant Pulte.
II
In his next assignment of error, plaintiff asserts that the trial court erroneously refused to comply with GCR 1963, 302.4(4) and MRE 106 in failing to require Clyde Cinader’s counsel to offer into evidence all or substantially all of Moody’s discovery deposition after a portion of it was offered and received in evidence. Specifically, plaintiff asserts that the Court of Appeals erroneously applied an abuse of discretion standard for reviewing violations of Rule 302.4(4) and MRE 106.
GCR 1963, 302.4(4) provides:
Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceed ing, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any 1 of the following provisions:
(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.
MRE 106 provides:
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
The Court of Appeals held:
The above rules are designed to prevent unfairness which may result if a statement is taken out of context. However, a trial court has discretion in ruling on the admissibility of a deposition, and the court’s exercise of discretion will be upheld unless an abuse of discretion is manifest. Hilyer v Hole, 114 Mich App 38, 41; 318 NW2d 598 (1982). [125 Mich App 747.]
The Court of Appeals then concluded:
Instead of requiring the defendants to introduce into evidence the portions of Moody’s deposition that were relevant to the starting of the bulldozer, the trial court stated that plaintiffs could introduce the evidence during Moody’s redirect examination. Because the deposition was admitted into evidence and brought to the jury’s attention, we conclude that the trial court did not abuse its discretion by denying plaintiffs’ request to have defendants introduce into evidence the deposition testimony. [125 Mich App 748.]
We think that the Court of Appeals correctly applied an abuse of discretion standard in reviewing the asserted violation of these court rules. MRE 611(a) states:
The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
It is clear that the mode and order of admitting proofs and interrogating witnesses rest within the discretion of the trial court. Coburn v Goldberg, 326 Mich 280, 285; 40 NW2d 150 (1949). We do not read GCR 302.4(4) nor MRE 106 as eliminating that discretion. See McCormick, Evidence (3d ed), § 56, p 145. We agree with the Court of Appeals that the trial court did not abuse its discretion in this case because it allowed plaintiff’s counsel to introduce into evidence the other relevant portions of Moody’s deposition on redirect examination.
Ill
Plaintiff also claims entitlement to reversal and a new trial because the trial court erroneously failed to advise the jury of the plaintiffs’ theory of the case as required by GCR 1963, 516.7, and erroneously failed to give ten proposed jury instructions requested by the plaintiff. Four of the requested instructions were the following sjis:
SJI2d 3.06 Whether Party Is Insured Is Irrelevant
SJI2d 3.10 Circumstantial Evidence
SJI2d 5.01 Impeachment of a Witness (Not a Party) by Prior Inconsistent Statement or Conduct
SJI2d 5.02 Impeachment of a Party by Prior Inconsistent Statement or Conduct
The other six instructions requested by plaintiff and rejected by the court are the following:
Supplemental Proposed Instruction No. 1 Third-Party Beneficiary Contract Liability of Defendant Cinader
Supplemental Proposed Instruction No. 2 Vicarious Liability of Defendant Cinader for Acts of His Employees
Special Instruction No. 1 Negligence Arising out of the Failure to Perform a Contractual Obligation
Special Instruction No. 2 Liability of a General Contractor for Hazardous Work
Special Instruction No. 3 Liability of One Contracting an Activity Through Servants or Other Agents
[Untitled] Corporation Liable for Acts of Agents
A
We address first the plaintiffs’ claim that the trial court disregarded the requirements of GCR 1963, 516.7 in failing to apprise the jury of plaintiffs’ theory of the case.
The rule provided:
.7 Statement of Issues and Theories of the Parties
(a) The court shall present to the jury the issues in the case and, if a party requests after the close of the evidence, that party’s theory of the case.
Gj) After the close of the evidence each party shall submit in writing to the court a statement of the issues and, if a party makes a request under subrule .7(a), his 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. It must be submitted in addition to requests for instructions submitted under subrule 516.1. The theory may include those claims supported by the evidence or admitted.
(c) The court need not give the statement or theory in the form submitted if the court presents to the jury the material substance of the issues and of the theories of each party.
Acknowledging that the trial court is not required to repeat a party’s theory of the case verbatim, plaintiff claims, however, that the court in this case did not give the "material substance of the issues and . . . the theories” of the plaintiff’s case.
Plaintiffs’ lawsuit against defendant Cinader comprises three theories: (1) Cinader’s negligent failure to properly supervise his employees on the job site as required by Cinader’s contract with defendant Pulte; (2) Cinader’s negligence in placing a bulldozer "in extraordinarily poor condition” on the job site; (3) the negligent operation of the bulldozer by Cinader’s employees causing plaintiff’s injury. The first and second of the theories are claims of primary liability for acts of omission (1) or commission (2) of defendant Clyde Cinader himself. The third theory of recovery is one of vicarious liability of an employer-principal for the negligence of his employee-agent.
The complete text of the plaintiffs’ three theories of liability, as submitted to the trial court, are reproduced below on the left, and the trial court’s entire statement of the plaintiffs’ theories against defendant Cinader is reproduced below on the right.
It is the claim of the Plaintiff that, although Defendant, Cinader’s contract called for him to give his personal attention to the work and to maintain a competent supervisor on the job site, he failed to do so, leaving the work in the hands of the two teenagers.
Plaintiffs also contend that the bulldozer in question was in extremely poor con dition and should have never been allowed on the job site by either Defendant Cinader or Defendant Pulte Homes, Inc.
It is the Plaintiff’s claim that he was asked to assist in the starting of Defendant Cinader’s bulldozer, and while checking the fan belt Defendant Cinader’s son turned the engine over, and that cut off one finger and seriously injured another one, and that the conduct of Cinader’s son was negligent and that negligence resulted in the injury to his hand ....
It is the claim of the Plaintiff that he was asked to assist one of the teenage employees of Defendant, Cinader, in starting the bulldozer and his hand was injured when that teenage employee attempted to start the equipment without checking to be sure that Marvin Moody was clear.
Factually, the essence of plaintiff’s theories of recovery against defendant Cinader is that the plaintiff was injured because of Cinader’s carelessness in the fashion in which he conducted his affairs as a subcontractor at the construction site, specifically as regards the operation by his employee-son of the bulldozer Cinader brought to the job site for use in completing his work as a subcontractor.
Legally, however, plaintiffs indentified three separate and distinct legal duties assertedly breached by Cinader, proof of any one of which, if shown to have proximately resulted in Moody’s injury, warranted recovery. Each was an analytical route plaintiff invited the jury to follow to reach the conclúsion that Cinader was responsible for Moody’s injury.
It was not necessary at that threshold part of the instructions to the jury that the court fully delineate the principles of tort or contract law and the legal analysis that underlay the plaintiff’s claim. The detail concerning the legal character of the duties owed to the plaintiff, the analytical distinction between the respective duties, and the jurors’ duties with respect to each theory proved, were matters to be covered in the more substantive portion of the court’s charge when advising the jurors as to the law governing the case.
It is our view, however, that Rule 516.7 requires the trial court to include in its statement of a party’s theory of the case, at a minimum, all legally relevant facts to that party’s theories of recovery. When the trial court told the jury that the plaintiff’s theory was that the plaintiff was injured because "while [he was] checking the fan belt[,] defendant Cinader’s son turned the engine over, and that cut off one finger and seriously injured another one, and that the conduct of Cinader’s son was negligent and that negligence resulted in the injury to [Moody’s] hand,” the court had adequately stated the legally relevant facts pertaining to the plaintiff’s third theory of recovery, that of vicarious liability of an employer-principal for the negligence of his employee-agent. However, plaintiff alleged two other theories of primary liability for the allegedly negligent acts of Clyde Cinader himself, and the trial court’s statement omitted the legally relevant facts pertaining to those theories: (a) that Cinader had left the job site undér the supervision of his teenaged son (relevant to plaintiff’s first theory), and (b) that Cinader allowed the use of a bulldozer on the job site which was in poor condition (relevant to plaintiff’s second theory). Both of these were "disputed propositions of fact which [were] supported by the evidence,” Rule 516.7(b), and therefore would have been properly included in the trial court’s statement of plaintiff’s case. When a trial court has stated only the facts which are legally relevant to one of a party’s theories of recovery, it has not adequately complied with GCR 1963, 516.7. Therefore, we hold that the trial court erred in failing to comply with the mandate of Rule 516.7.
We are unable to conclude that this error was harmless in view of the fact that, as discussed below, the court’s instructions on the applicable law were also seriously deficient. Taken together, the shortcomings in the court’s statement of plaintiff’s theory of the case, and the serious deficiencies in the court’s substantive charge to the jury, so unfairly prejudiced the appellants in a materially substantial way that we are required to reverse as to defendant Cinader.
B
It is asserted that, in addition to his failure to adequately describe the plaintiffs’ theories of recovery, the trial judge erroneously failed to give ten jury instructions proposed by plaintiff. The first four were standard jury instructions (SJI2d), and the last six were special instructions drafted by plaintiff’s trial counsel and assertedly tailored to the plaintiffs’ theories of recovery and the evidence in the case. It must be remembered, of course, that none of the counsel in the case had any way of knowing, before the jury was instructed, which of the requested instructions would be given and which would not.
1
Plaintiff first complains that the court erred in failing to give SJI2d 3.06, concerning insurance coverage, which reads:
Whether a party is insured has no bearing whatever on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.
After retiring to consider their verdict, the jurors interrupted their deliberations, returned to the courtroom, and submitted a question to the court. The record shows what occurred:
The Court: The record should reflect the following question from the jury.
"Did Mr. Moody have bodily injury insurance to cover on site accidents doing [sic] his May 27, 1977 job?”
Gentlemen your responses, or your suggested responses to that question?
[Plaintiff’s Counsel]: Your Honor, I think that the only proper response would be SJI 2nd, 3.06, the instruction informing the jury that insurance is irrelevant.
The Court: I can’t hear you.
[Plaintiff’s Counsel]: Informing the jury that insurance is irrelevant to the case.
[Defense Counsel]: I think under the circumstances I have to agree.
The Court: You can bring in the jury Mr. Grekonich.
(Whereupon the jury was escorted into the Courtroom)
The Court: Ladies and gentlemen I have been delivered a question. And I don’t want to hurt anybody’s feelings, but I understand the question, and I don’t know, we don’t know, and it’s none of our business, in short I guess.
Let me read the question for the purposes of our record.
"Did Mr. Moody have bodily injury insurance to cover on site accidents doing his May 27, 1977 job.”
That is the question. Whether he did or not, as I indicated, isn’t any of our business. Our concern here is the issue of negligence on either party’s side and contributory negligence if any, and what injury occurred and what damages were suffered.
I mean it is a normal, and perhaps human reaction to be concerned about that, but that has nothing to do with whether or not somebody’s at fault, or whether or not they suffered an injury or whether or not that injury is compensable in dollars and cents.
Juror Number Six: Your Honor could we make an explanation of our question?
The Court: No, you don’t have to, and don’t apologize for it.
Juror Number Six: No, I mean why we want an answer.
The Court: Okay.
Juror Number Six: We read the contract by the sub-contractor, that he signed, and in that contract it is specifically stated that it was his duty to see to it that a third, that a sub-contractor, to him had full insurance coverage.
The Court: Okay.
Juror Number Six: And, so we feel that if he did not do that, then he was negligent of not doing that and of not completing that contract. That was our feeling.
The Court: Okay. Now, in none of the theories, nor in the case that we have given to you, has he been sued for not conforming to that part of the contract.
Juror Number Six: I see.
The Court: So, again I tell you I don’t know, and we won’t and we won’t care until somebody sues him for that.
Juror Number Six: That helps.
The Court: Well, I can see, you go romping through there and you say well, we’ve got the contract and I think that should be our concern.
The standard jury instruction specifically with regard to insurance says that whether a party is insured has no bearing whatever on any issue that you have to decide, and you should refrain from any inference or speculation or discussion about insurance.
You know, you might get involved as jurors some time in a suit where somebody is either suing on a policy or because somebody else didn’t buy one, and well, that would be what you have in that case. But it is not involved here.
It is evident from the colloquy between the court and Juror Number Six that had the trial judge merely read SJI2d 3.06 he would not have addressed the jurors’ real concerns. The jurors were troubled whether defendant Cinader was liable, on a breach of contract theory, for failure to comply with a term of the construction contract — the duty of the subcontractor to "see to it that a third, that a subcontractor to him had full insurance coverage.” The court correctly disabused the jurors of the idea that such a theory was before them. His handling of the jury question was brief, direct, responsive, and accurate. SJI2d 3.06 would not, standing alone, have adequately responded to the jurors’ inquiry. The court did not err.
2
Plaintiff next complains that the court failed to give requested SJI2d 3.10 concerning Circumstantial Evidence.
The instruction reads:
It is not necessary that every fact be proven directly by a witness or an exhibit. A fact may be proven indirectly by other facts or circumstances, from which it usually and reasonably follows according to the common experience and observation of mankind. This is called circumstantial evidence, which you are to consider along with other evidence in the case.
Neither in his brief to this Court nor in oral argument has plaintiff suggested what circumstantial evidence was introduced in this case to warrant the requested instruction. We have carefully examined the record and we can find none.
On the record before us, the court was not obligated to instruct on circumstantial evidence.
3
Next, the plaintiff complains of prejudice resulting from the court’s failure to give requested SJI2d 5.01 and 5.02. At the time of trial, SJI2d 5.01 read:
In deciding whether you should believe a witness, you may consider the fact that at some earlier time [he/or/she] [said/did] something that does not agree with what [he/or/she] testified to here on an important point. What [he/or/she] said earlier may be considered only in deciding whether you should believe [him/or/her] and may not be considered as proof of the facts in [his/or/ her] earlier statement (unless [he/or/she] testified that [his/or/her] earlier statement was true, in which event it may be considered as proof of the facts in the statement).
By its terms, the instruction is designed to emphasize that any prior inconsistent statement which may have been used to impeach the veracity of a witness may be considered by the jury only for the significance it has in reflecting upon the credibility of the witness for having spoken inconsistently at different times on the same important point. The unstated thrust of the instruction is that the prior inconsistent statement of the non-party witness is ordinarily inadmissible hearsay and may not be considered by the jury for the truth of the content of the prior statement.
The only non-party witnesses who testified at the trial were Scott Cinader and Duane Joyce, Cinader’s employees. However, plaintiff does not invite our attention to any evidence in the record of any effort to impeach the credibility of either non-party witness with the use of a prior inconsistent statement. Consequently, there was no necessity for the court to give the requested instruction, and its refusal to do so was not error.
More troublesome is the court’s failure to give requested SJI2d 5.02 concerning impeachment of a party witness by a prior inconsistent statement. At the time of trial, that instruction read:
In deciding whether you should believe a party who has testified, you may consider that at some earlier time [he/or/she] [said/did] something that does not agree with what [he/or/she] testified to here on an important point. Because [he/or/she] is a party, what [he/or/she] [said/did] earlier may be considered not only in deciding whether you should believe [him/or/her], but also may be considered as evidence of the facts in this case.
One of the principal purposes of SJI2d 5.02 was to distinguish between purposes for which the jury may consider a prior inconsistent statement by a party witness and a prior inconsistent statement of a non-party witness. While the latter may be considered only as bearing on the veracity of the witness impeached, the former, because it may be the admission of a party opponent, is "not hearsay” under MRE 801(d)(2)(A) and thus may be considered by the jury both as bearing on the witness’ veracity and for the truth of the content of the statement. See "Note on Use,” SJI2d 5.02.
Upon cross-examination, Moody was confronted with two previous statements he had made: his pretrial discovery deposition and a lengthy handwritten statement made shortly after the accident. Defense counsel used both statements in an effort to impeach Moody’s veracity by showing that his testimony at trial was at variance, in different particulars, with both the discovery deposition and the handwritten statement.
The deposition material was of questionable inconsistency. At one place in the deposition, Moody is shown to have stated that he, rather than Scott Cinader, had touched the wires that started the bulldozer. At trial, Moody steadfastly insisted that he had not touched the wires, and that the deposition text which read, "I touched the wires,” was a typographical error or had been taken down or transcribed incorrectly by the stenographer, and should have read, "He touched the wires.” Plaintiffs’ counsel strenuously objected to the use of the deposition as a prior inconsistent statement, charging that the text of the deposition was in error. He later introduced other parts of the deposition which tended to show that Moody had all along maintained that he had not touched the wires, strongly suggesting that there indeed had been an error in the deposition transcript. Nevertheless, the point was in dispute and the effort at impeachment was before the jury.
Defense counsel unquestionably succeeded in showing that Moody’s' trial testimony was inconsistent with a portion of his handwritten pretrial statement in which he declared that Scott Cinader may not have heard Moody tell Cinader not to start the engine of the bulldozer. At trial, Moody stated that he was "positive he heard me.” In the handwritten statement, plaintiff said: "I told [Scott Cinader] not to start the engine, as I had found the trouble but he did start, and maybe he did not hear me . . . Moody attempted to explain the apparent inconsistency by stating: "Maybe I could have made a mistake there, saying that he didn’t hear me,” and "I’m positive he did hear me. When this question was asked of me, I just don’t know directly what was said.”
Upon redirect examination, plaintiffs’ counsel offered the entire handwritten statement in evidence. It was received without objection.
Plainly, Moody was shown to have made at least one prior inconsistent statement, and possibly two. Ordinarily, in such circumstances, the impeaching party, not the party attacked, will insist that SJI2d 5.02 or its equivalent be given, not only because it calls the jury’s attention to the fact that the witness’ veracity has been impeached, but because it advises the jury that the out-of-court prior inconsistent statement may be considered for the truth of its content. That is so, as we have said, because it is an admission of a party opponent and "not hearsay” under MRE 801(d)(2)(A). Here, however, counsel for the party witness who was impeached offered the prior inconsistent statement without stating the purpose for which he wished it to be considered by the jury. No matter by whom the handwritten statement was offered, once the statement was received in evidence, SJI2d 5.02 was applicable. _
Despite the request by plaintiffs’ counsel, the trial court declined to give the requested instruction. Plaintiff claims the failure to do so violated the rule of Javis v Ypsilanti Bd of Ed, 393 Mich 689; 227 NW2d 543 (1975), since the instruction was accurate, applicable, and properly requested by plaintiffs’ counsel.
The Court of Appeals stated that the trial court did not err in failing to give SJI2d 5.02 because the prior inconsistent statement had been admitted in evidence, and because the court’s general charge on credibility of the witness sufficiently covered the matter. The Court of Appeals added:
The determination of whether the requested instruction is applicable and accurate is within the trial court’s discretion. Zmija v Baron, 119 Mich App 524, 540; 326 NW2d 908 (1982). Here we find no abuse of discretion. [125 Mich App 754.]
We think the trial court erred in failing to give requested SJI2d 5.02.
Ordinarily, a trial court’s discretion to determine whether to give a requested standard jury instruction does not include the authority to decline to give the instruction when it is plainly accurate, applicable, and is properly requested by a party. GCR 1963, 516.6(2).
As we said today in Johnson v Corbet, 423 Mich 304, 326-327; 377 NW2d 713 (1985):_
However, it remains the duty of the trial court, as historically it has been, to determine the subject matter of the instructions to be given to the jury, and that includes the duty to determine the applicability of the particular sji requested by counsel. Socha [v Passino, 405 Mich 458, 467; 275 NW2d 243 (1979)]. That duty cannot be delegated to counsel. Merely because the evidence in a case may include the subject matter of an sji, it does not mean that the court, upon request of counsel, is automatically required to read every sji which might tangentially touch on the subject matter. The trial court’s duty to determine the "applicability,” under MCR 2.516, of a requested sji runs deeper than that and calls for the exercise of discretion. It is conceivable, for example, that a given sji would accurately state the law and be applicable, in the theoretical sense that the evidence in a case included reference to the subject matter of that sji, but that a wise and experienced trial judge, in the exercise of informed discretion, would determine that reading the sji would confuse the jurors or unnecessarily distract them from the material issues in the case, or extend the jury instruction process out of all proportion to the educational benefit to the jurors and fairness to the litigants, or unduly emphasize a potentially prejudicial aspect of the evidence, or simply add nothing to an otherwise balanced and fair jury charge nor enhance the ability of the jurors to decide the case intelligently, fairly, and impartially. This, of course, is a way of saying that it is for the trial court to determine when the sji are applicable, not in an abstract or theoretical sense, but in the context of the "personality” of the particular case on trial, and with due regard for the adversaries’ theories of the case and of counsel’s legitimate desire to structure jury argument around anticipated jury instructions.
But even in cases in which the requested sji was unquestionably applicable, as here, there remains the appellate duty to determine whether the error in omitting the sji was so prejudicial as to require reversal.
Under Javis, and until today, the trial court’s failure to give SJI2d 5.02 in this case would have been error requiring reversal without regard to any unfair prejudice to the complaining party. However, under the modification of the Javis rule we announced today in Johnson, we must decide whether the failure to give SJI2d 5.02 so unfairly prejudiced the plaintiff that failure to vacate the jury’s verdict would be "inconsistent with substantial justice.”
We think it did not. In fact, the particular departure from the mandate of GCR 1963, 516.6(2) involved here is an excellent example of the need for easing the sweep of the prophylactic presumption of error rule of Javis. Here, the prior inconsistent statements related to relatively insignificant points, matters that on the whole record were unlikely to influence the jury concerning the Moodys’ general credibility.
With the introduction of substantial portions of the discovery deposition and the explanatory testimony of Moody, plaintiffs’ counsel persuasively demonstrated that the purported prior inconsistent deposition statement by Moody that read, "I touched the wires,” was either a typographical error, or had been taken down incorrectly in the first instance, and should have read, "He touched the wires.” Nowhere else in the evidence is there any suggestion that Moody had "touched the wires.”
Similarly, we think the impeachment of Moody by the use of the prior handwritten statement was, in the context of the whole trial, a matter of little or no significance to the jury. Recall, that the trial testimony of Moody which was attacked was his statement on cross-examination that he was "posi tive” that Scott Cinader had heard him caution Cinader not to start the engine:
Question [by defense counsel]: Mr. Moody, how do you know Scott Cinader heard you say, don’t start the engine?
Answer: As clear and as loud as my voice is, I’m positive he heard me.
The impeaching prior inconsistent statement upon which defense counsel relied was Moody’s pretrial statement as follows:
I told him not to start the engine, as I had found the trouble, but he did start, and maybe he did not hear me.
Although the question whether Moody had warned Scott Cinader not to start the engine might have had importance on the question of Moody’s possible comparative negligence and Scott Cinader’s negligence, the testimony sought to be impeached could hardly be determinative of the matter. Despite Moody’s trial testimony, the fact is that he could not have been "positive” that Cinader heard his warning. He could only have had an opinion upon the matter. Whether Cinader heard him or not is a matter which could not have been within Moody’s personal knowledge, particularly since Cinader made no acknowledgment of having heard the warning. Similarly, the prior handwritten statement that "maybe [Cinader] did not hear me” is wholly speculative and therefore equally lacking in probativeness about whether the warning had been heard.
While the court erred in failing to instruct the jury that it was entitled to consider Moody’s prior inconsistent statements for their truth, the court’s failure to do so was harmless, given the relatively innocuous subject matter of the asserted inconsistencies and the fact that the court fully and accurately instructed the jury that the credibility of the witness was in dispute and that the jury was obligated to consider all the evidence in the case in order to determine who to believe relative to disputed points in the evidence. We conclude that the court’s failure to give SJI2d 5.02, although error, did not materially prejudice the plaintiff.
IV
We address finally the plaintiff’s claim that he suffered material prejudice because of the court’s refusal to give several requested special jury instructions. Those instructions, to repeat, are plaintiffs’ Supplemental Proposed Instruction No. 1 concerning Cinader’s liability to Moody as a third-party beneficiary under the contract between Cinader and Pulte Homes, plaintiffs’ Supplemental Proposed Instruction No. 2 concerning the vicarious liability of Cinader for the acts of his employees, plaintiffs’ Special Instruction No. 1 concerning duties owed to third persons arising out of a contractual relationship, plaintiffs’ Special Instruction No. 2 concerning the liability of Pulte for the negligence of its subcontractor, plaintiffs’ Spe cial Instruction No. 3 concerning the vicarious liability of "[o]ne conducting an activity through servants or other agents”, and plaintiffs’ proposed instruction regarding the liability of Pulte Homes, Inc., for the acts of its agents and employees. Four of these requested Special Instructions were concerned with the potential liability of Clyde Cinader.
The special significance of those instructions that related to Cinader is that Cinader was not present at the construction site at the time of the accident and had no direct involvement in the activities which ultimately resulted in the plaintiffs injury. On the basis of the plaintiffs’ theory of the case, the only possible way he could recover against Cinader was if he could establish, by a preponderance of the evidence: (1) Cinader’s direct liability for failing to supervise the activities of his employees on the job site, or (2) his direct liability for placing a "dangerous” bulldozer on the job site for use by his employees, or (3) his vicarious liability as an employer responsible for the negligent acts of his employees performed in the scope of their employment.
Those theories could not have been on the jurors’ minds, however, because the trial court declined to articulate the plaintiffs’ theories in the language suggested by the plaintiff, or in any other language, but advised the jurors instead that "[i]t is the Plaintiffs claim that he was asked to assist in the starting of Defendant Cinader’s bulldozer and, while checking the fan belt, Defendant Cinader’s son turned the engine over, and [injured plaintiff] and that the conduct of Cinader’s son was negligent . . . Nothing in the court’s abbreviated statement of the plaintiffs’ theories of liability against Cinader suggested that it was plaintiff’s claim that Cinader was liable because of his failure to supervise the work of his employee-son, or because he placed a dangerous bulldozer on a job site, or because the law imposes vicarious liability upon an employer for the negligent acts of his employee committed within the course of employment. Moreover, nothing in the trial court’s substantive instructions to the jury concerning the law applicable to this case suggested, even remotely, that the asserted negligence of Scott Cinader was attributable to his father-employer Clyde Cinader, or that recovery could be had against Clyde Cinader for his primary negligence in failing to supervise the job or for negligently placing a dangerous instrumentality on the job site.
Even viewed in a light most favorable to the defendant, the most an ordinarily attentive juror could have derived from the court’s instructions was that a verdict could be returned for plaintiff if the jurors found that the plaintiff was injured because the defendant’s "son was negligent and that negligence resulted in the injury” to the plaintiff. But against whom such verdict could be returned was not made clear. Even that statement was described by the trial court as the "plaintiffs’ claim” and not a verdict option available to the jury on the basis of a duty imposed by law upon the defendant and the evidence in the case. Immediately following that statement, the court declared that the "[p]laintiff further claims that defendant Pulte should have been out there on the job site, either supervising or controlling the con duct of the Cinaders . . . No such claim of failure to supervise against Cinader was recognized by the trial court, and the jury was not instructed to consider such failure as a means of holding Cinader liable. Moreover, as we have said, the vicarious liability of Cinader as an employer responsible for the negligent acts of his employee was never addressed by the court either as a theory pleaded by the plaintiff or as an issue before the jury to be resolved. While lawyers and judges may have had no trouble interpreting the evidence and the court’s instructions as implicitly recognizing the possible vicarious liability of Cinader as an employer, jurors untrained in the law of torts and agency cannot be expected to have inferred it.
In addition, of course, there was no mention in the trial court’s instructions of the jury’s duty to consider whether Cinader was liable to the plaintiff under a third-party beneficiary contract theory of liability arising from the contract between the general contractor, Pulte Homes, and the subcontractor, Cinader.
The court’s failure to instruct the jury in detail concerning the plaintiffs’ vicarious liability theory against Clyde Cinader as employer of Scott Cinader was not ameliorated by the verdict form given to the jurors and the six questions contained in the verdict form. The only special questions in the verdict form having reference to Cinader at all read:
Question Number 1: Was the defendant Pulte negligent?
Answer: Yes or no.
Question Number (a): Was the defendant Cinader negligent?
Answer: Yes or no.
Given the fact that most of the evidence in the case bearing on the question of active negligence related to the acts or omissions of Scott Cinader and very little related to the acts or omissions of Clyde Cinader, the jurors could not have been expected to know, without instructions from the court, that Clyde Cinader could be liable under the legal fiction of vicarious liability or directly liable upon proof that he failed to supervise his employees on the job site and provided a dangerous bulldozer for use in their work.
We conclude that the jury was inadequately instructed concerning the legal issues pleaded in the case and raised by the evidence, specifically the duties imposed by law with respect to the asserted liability of Cinader.
For the foregoing reasons, we reverse the judgment of the Court of Appeals as to defendant Cinader, affirm the judgment as to defendant Pulte Homes, and remand the matter to the circuit court for a new trial.
Brickley, Cavanagh, Boyle, and Riley, JJ., concurred with Ryan, J.
Use of "plaintiff” hereafter refers to Marvin Moody.
The Michigan Court Rules of 1985 had not been adopted when this case was tried. MCR 2.516(A)(4) is essentially the same as GCR 1963, 516.1 and provides:
"(4.) The court shall inform the attorneys of its proposed action on the requests before their arguments to the jury.”
The Court of Appeals accurately summarized the facts relevant to this assertion of error:
"In this case, Marvin Moody testified that Scott Cinader attempted to start the bulldozer’s engine by placing a metal object over the starter’s solenoid. On cross-examination, a portion of Moody’s deposition transcript was read, in which Moody stated that he touched the wires that started the bulldozer. Moody contended that the deposition transcript read by defense counsel contained misprints or mistakes, and that he did not testify on oral examination as having touched the wires. At this point, plaintiffs’ attorney requested that the court require defendants to read other portions of Moody’s deposition relevant to the ignition of the bulldozer engine. The court ruled that plaintiffs’ attorney could address the issue on redirect examination. On redirect examination, Moody contended that he did not start the bulldozer. Further, plaintiffs’ counsel read at length from Moody’s deposition, with continued verification by Moody, in an attempt to convince the jury that the reporter had incorrectly transcribed Moody’s testimony on several pages, including the page read by defense counsel during cross-examination and admitted into evidence as defendants’ Exhibit A. Plaintiffs then marked and entered into evidence several pages of Moody’s deposition transcript with the admitted transcript pages being marked as plaintiffs’ Exhibits 5 through 8. On appeal, plaintiffs contend that the trial court committed reversible error by refusing to require defendants to introduce into evidence the portions of Moody’s deposition which were relevant to starting the bulldozer engine.” 125 Mich App 747-748.
MCR 2.308, concerning the use of depositions in court proceedings, does not include the language of GCR 1963, 302.4(4). The Note to MCR 2.308 states: "That subject is now covered by MRE 106.”
The court further stated:
"Plaintiff further claims the defendant Pulte should have been out there on the job site, either supervising or controlling the conduct of the Cinaders in such a fashion that the injury could not have occurred, and that they breached a duty in not supervising and controlling, and because of that, they are also liable for the injury that has been suffered by the plaintiff.”
Plaintiffs do not assert as error the trial court’s failure to give the material substance of their negligence claim against defendant Pulte. As stated, the trial court had directed a verdict for Pulte on Count II (Breach of Third-Party Beneficiary Contract) at the close of plaintiffs’ proofs. At that time, the court took under advisement defense counsel’s motion for a directed verdict on Pulte’s behalf as to Count I (Negligence). The trial court, however, never ruled on the matter but, instead, submitted one of plaintiffs’ three negligence theories against Pulte to the jury.
While the court’s statement referred to only one of plaintiff’s three theories of recovery against Pulte, any possible error is harmless in light of our previous conclusion that the evidence presented at trial did not support any of these theories. We note that GCR 1963, 516.7(b) states that "[a party’s] theory [of the case] may include those claims supported by the evidence or admitted.” (Emphasis added.)
While it is speculation at best, perhaps the jurors’ confusion could have been avoided had the trial court more explicitly advised the jury at the outset of the instructions concerning the three legal theories upon which the plaintiffs’ claim was brought which would not have included the insurance coverage question.
It is arguable that in every case in which witnesses testify there is necessarily some circumstantial evidence, if only concerning the veracity of the witnesses. If that is what appellants have in mind— and we are left to guess at the matter because no suggestion is made that any circumstantial evidence was introduced in the case — we think the trial court’s instructions to the jury concerning the general credibility of witnesses, SJI2d 4.01, 4.07, adequately covered the subject.
We express no opinion about the admissibility of plaintiff’s out-of-court statement offered by plaintiff. No limiting instruction concerning its use was sought or given, and no objection was registered to its receipt in evidence.
It may, of course, have been plaintiffs’ strategy to invite the jury to consider the entire two-page detailed statement in order to show how substantially consistent, in important matters, Moody’s trial testimony was with his very early pretrial statement, thus emphasiz ing the relative insignificance of the one inconsistency that was highlighted.
In Javis, supra, pp 702-703, we held:
"Where there is an omission of, or deviation from an applicable and accurate sji [Standard Jury Instruction], prejudicial error will be presumed; provided that the erroneously omitted sji was properly requested at trial; and, provided that in those cases where error is charged as a result of a deviation from a sji, said deviation was brought to the attention of the trial court prior to the commencement of jury deliberations.”
The court’s instructions in that connection were as follows:
"In determining whether any fact has been proved, you should consider all of the evidence that bears on that fact, regardless of which party may have produced the evidence.
"You have a right to consider all of the evidence in the light of your own general knowledge and experience in the affairs of life and take into account whether any particular evidence seems reasonable and probable. However, if you had personal knowledge of a particular fact, in this case, such knowledge could not be used as evidence. That is why you will recall I was inquiring at the beginning of the case if any of you had personal knowledge of the case or any of the parties involved, and that sort of thing.
"As to the credibility of witnesses, you are the sole judges of the facts in the case and you have to determine which witnesses you will believe and what weight you will give that testimony. In doing so, you may take into account the witnesses’ ability and opportunity to observe, the witnesses’ memory and manner while testifying, any interest or bias or prejudice a witness might have, and the reasonableness of the testimony considered in light of all of the other evidence in the case.”
As further support for our holding that plaintiff was not materially prejudiced by the court’s failure to give SJI2d 5.02, we note that SJI2d 5.02 informs the jury that it may consider a party’s prior inconsistent statements as substantive evidence. It does not state that the jury may also consider a party’s prior consistent statements as substantive evidence. It is difficult to conceive of any benefit of which the plaintiff might have been deprived from the jury not considering his prior inconsistent statements as substantive evidence.
"A contract between the Defendant Pulte Homes, Inc. and Defendant Clyde Cinader has been placed into evidence in this case. In that contract Defendant Clyde Cinader accepted certain specified duties pertaining to the work involved in this case.
"Your verdict will be for the Plaintiff if you find that the Defendant failed to perform any duty imposed by the contract for the benefit of persons on the job site, and that failure to perform a contractual duty was a proximate cause of the injury to Marvin Moody.”
"It is further undisputed in this case that Scott Cinader and Duane Joyce were employees of the Defendant Clyde Cinader who were acting in the course of their employment at all times relevant to this case. Defendant Clyde Cinader is, therefore, liable for the acts of those persons.”
"'Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. The duty may arise generally by operation of law under application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others. This rule of the common law arises out of the concept that every person is under the general duty to so act, or to use that which he controls as not to injure another. [Citation omitted.]
" 'Such duty of care may be a specific duty owing to the Plaintiff by a Defendant, or it may be a general one owed by a Defendant to the public, of which the Plaintiff is a part. Moreover, while this duty of care, as an essential element of actionable negligence, arises by operation of law, it may and frequently does arise out of a contractual relationship, the reason being that accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done. Clark v Dalman, 379 Mich 251, 260-261 [150 NW2d 755] (1967).’
"Each defendant was bound by law to see that the work which is part of its contract it was bound to do was not done in a negligent manner. Wight v Christman Co, 244 Mich 208, 215 [221 NW 314] (1928).”
"A principal employing a contractor must use care to employ a competent contractor to do work which will involve a risk of physical harm unless it is skillfully and carefully done.
"A careful contractor is one with competent supervision, proper equipment, and an accident prevention program comparable to that of a reasonably prudent contractor in similar circumstances. The more hazardous the work, the greater the duty of continuing surveillance.
"Certain factors are important: (1) the danger of which others will be exposed if the contractor’s work is not properly done; (2) the character of the work to be done — whether the work lies within the competence of the average man or is work which can be properly done only by persons possessing special skills and training; (3) the existence of a relation between the parties of protecting the other.
"A company which knows or should know in the exercise of ordinary care that its contractor is using unsafe equipment or methods has a duty to see that safe equipment and methods are used.”
"One conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent:
"a. in giving improper or ambiguous orders or failing to make proper regulations;
or
"b. in the employment of improper persons or instrumentalities in work involving risk or harm to others;
or
"c. in the supervision of the activity;
or
"d. in permitting, or failing to prevent, negligent conduct of persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.”
"Corporation Liable for Acts of Agents
"The defendant Pulte Homes, Inc. in this case is a corporation and, as such, is capable of acting only through its agents and employees. It is undisputed in this case that Robert Richardson, Robert Wagner and William Magnuson were employees of the defendant Pulte Homes, Inc. who were acting in the course of employment. Defendant Pulte Homes, Inc. is, therefore liable for the acts of those persons.”
The remaining two instructions (see ns 16 and 18) were concerned with the potential liability of Pulte Homes, Inc. As discussed above, the trial court had directed a verdict for Pulte on Count II of plaintiffs’ complaint (Breach of Third-Party Beneficiary Contract). In stating plaintiffs’ theories of the case, the trial court instructed the jury that "[pjlaintiff further claims the defendant Pulte should have been out there on the job site, either supervising or controlling the conduct of the Cinaders in such a fashion that the injury could not have occurred . . . .”
Virtually none of the trial testimony related to the alleged negligence of Pulte Homes. Plaintiffs did not call any of the corporate defendant’s employees or agents, as witnesses. Plaintiffs’ counsel made only a brief reference to Pulte Homes in his closing argument. In light of the absence of evidence regarding Pulte’s negligence, we do not find the trial court’s failure to give plaintiffs’ two proposed instructions concerning Pulte to be error requiring reversal. See Jaworski v Great Scott Supermarkets, Inc, 403 Mich 689, 697; 272 NW2d 518 (1978); Susich v Michigan Consolidated Gas Co, 292 Mich 612, 616; 291 NW 26 (1940); Curth v New York Life Ins Co, 274 Mich 513, 525; 265 NW 749 (1936).
Although defense counsel moved for a directed verdict in favor of Cinader on the plaintiffs’ third-party beneficiary contract theory of liability, the trial court never made a ruling on this motion. Therefore, in light of the fact that the written contract between Cinader and Pulte was admitted into evidence, this theory of liability against Cinader was a matter upon which the jury should have been instructed. | [
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Per Curiam.
Defendant Yamaha Motor Corporation, usa, appeals as of right the decision of a Macomb Circuit Court judge granting plaintiff damages for breach of warranty, plus attorney fees pursuant to MCL 440.2714, 440.2715; MSA 19.2714, 19.2715.
The events giving rise to the present action are provided in the following stipulated statement of facts:
On May 28, 1981, plaintiff purchased a motorcycle from defendant Anderson’s Vehicle Sales, Inc., which was manufactured by defendant Yamaha Motor Corporation, USA. Payment was partially made in cash and partially financed. The National Bank of Detroit, as assignee of the purchase agreement, was also a codefendant at the trial court level but is not a party to this appeal.
The vehicle carried a six-month limited warranty which provided in part:
During the period of warranty any authorized Yamaha dealer will provide:
1. The replacement of any part adjudged defective by Yamaha due to faulty workmanship or material from the factory.
2. Any repairs made necessary by faulty workmanship or material from the factory.
On August 15, 1981, while the vehicle was still under warranty, it developed a tapping noise in the engine. At this time the vehicle had been driven only 3,115 miles. Plaintiff immediately stopped operating the vehicle and returned it to Anderson’s several days later. The acting service manager examined the bike and prepared a service order.
On August 20, 1981, Anderson’s informed plaintiff that the engine had seized up while a mechanic had been operating it. Plaintiff was also told at that time not to worry because the problem was not serious and would be covered by warranty. An employee of Anderson’s who was not a licensed mechanic diagnosed what he thought to be the problem and immediately ordered the necessary parts for repair. Although replacement parts could usually be obtained within one week, it took approximately three weeks to obtain these parts.
When the parts were delivered, a second Anderson’s employee (a licensed mechanic) began working on the bike. It was discovered that the problem had been misdiagnosed and was more serious than first believed. The oil pump had failed causing serious engine damage, requiring replacement of nearly every major engine component. Plaintiff was not immediately notified of this finding.
On October 12, 1981, plaintiff wrote nbd a letter advising it that he was stopping payment because of the alleged breach of warranty. He also stated that a complaint was filed with the Attorney General’s office and that an action was pending on the matter. Anderson’s responded to an inquiry from the Attorney General’s office by a letter dated October 19, 1981, stating in part:
Upon receipt of these parts our mechanic started work on this vehicle, only to find that the entire lower end (crankshaft) was completely destroyed, due to oil pump failure. At this time we are waiting to hear from the Yamaha factory representative to get their approval on a complete new engine. We feel that this would be the best way to repair this vehicle. We will do everything in our power to rectify this problem as soon as possible.
Plaintiff subsequently received from the Attorney General’s office a copy of Anderson’s letter. This was the first information he was given that the engine was seriously damaged.
On October 26, 1981, Anderson’s wrote to plaintiff that they had received Yamaha’s permission to repair the engine and that the parts would be ordered that day. Anderson’s estimated that delivery of the parts would take two weeks and repairs would be completed in an additional week. Plaintiff responded by letter on October 29, 1981, stating that he would accept only a new engine with a new warranty, not a rebuilt engine.
On November 25, 1981, Anderson’s called plaintiff and told him that his motorcycle was repaired and ready to be picked up. It is undisputed that the bike was in proper working order at this time. Plaintiff refused to accept the bike and attempted to revoke the sales contract on the grounds that the repairs were not made within a reasonable time and that his faith in the motorcycle had been destroyed.
On December 28, 1981, plaintiff instructed Yamaha to take the motorcycle back and return his purchase money. Yamaha refused this demand. The bike was subsequently sold on plaintiff’s behalf. Nbd was paid off and plaintiff received a partial refund of his purchase price.
Plaintiff then commenced this action based on the Consumer Protection Act, the Uniform Commercial Code, and the Magnuson-Moss Warranty Act. He sought recovery for out-of-pocket expenditures, attorney fees and costs. The trial court held that the limited warranty of repair or replacement contained in the sales contract had failed in its essential purpose, thereby allowing plaintiff to seek remedies provided by the ucc, MCL 440.2719(2); MSA 19.2719(2), and that plaintiff had properly revoked his acceptance of the motorcycle because the nonconformity substantially impaired its value to him. MCL 440.2608; MSA 19.2608. Plaintiff was awarded the unrefunded balance of his purchase money, court costs, and attorney fees in the amount of $8,520. Defendant Yamaha argues that the trial court erred in finding that plaintiff properly revoked his acceptance of the motorcycle.
Under §2-719 of the ucc, MCL 440.2719; MSA 19.2719, the parties to a sales agreement may agree to limit remedies and damages for breach of the agreement. However, subsection (2) further provides that, where the limited remedy fails in its purpose or operates to deprive either party of the value of the bargain, the parties may pursue other remedies provided elsewhere in the ucc. Latimer v William Mueller & Sons, Inc, 149 Mich App 620; 386 NW2d 618 (1986); North American Steel Corp v Siderius, Inc, 75 Mich App 391; 254 NW2d 899 (1977), lv den 402 Mich 810 (1977). One remedy available to a buyer for the seller’s breach of warranty is revocation. MCL 440.2608; MSA 19.2608.
The purchase agreement between plaintiff and defendant contained a limited warranty that provided in part:
during the period of warranty any authorized Yamaha dealer will provide:
1. The replacement of any part adjudged defective by Yamaha due to faulty workmanship or material from the factory.
2. Any repairs made necessary by faulty workmanship or material from the factory.
While the terms of this provision would generally restrict plaintiffs remedies to replacement of the defective part, we agree with the finding of the trial court that in this case the limited warranty failed in its essential purpose and plaintiff was therefore entitled to pursue other remedies. MCL 440.2719; MSA 19.2719.
Here, plaintiff had the motorcycle in his possession for only ten weeks before it became totally inoperable. He immediately returned it to the dealer where it remained for over three months. By the time the motorcycle was returned to him, it was late November and the weather precluded its use.
While we do not dispute defendant Yamaha’s contention that it acted in good faith, its good faith efforts do not excuse its failure to have the motorcycle repaired and returned to plaintiff within a reasonable time. "Commendable efforts alone do not relieve a seller of his obligation to repair.” Jacobs v Rosemone Dodge-Winnebago South, 310 NW2d 71, 75 (Minn, 1981). Where a manufacturer or dealer has limited its obligation under the sales agreement to repair or replace defective parts the seller does not have an unlimited time to make the repairs, but rather must repair or replace the parts within a reasonable time. See Anno: Construction and effect of new motor vehicle warranty limiting manufacturer’s liability to repair or replacement of defective parts, 2 ALR4th 576, § 5[d], pp 602-604 and cases cited therein; 67A Am Jur 2d, Sales, § 923, pp 326-327. Further, the manufacturer’s or dealer’s failure to make repairs need not be willfully dilatory or even negligent for the damage to the buyer is the same whether the seller acts in good faith or in bad. In either case, the buyer loses the substantial benefit of his bargain. Cayuga Harvester, Inc v Allis-Chalmers Corp, 95 App Div 2d 5; 465 NYS2d 606 (1983).
What is a reasonable time for taking any action depends on the nature and circumstances of the case. Here plaintiffs motorcycle remained inoperable for more than three months. Moreover, the court found that the cause of the delay was the misdiagnosis by defendant’s employee. Under the circumstances of this case, we are not persuaded that the court erred in finding the delay unreasonable. We conclude that, since defendant failed to repair the motorcycle within a reasonable time, plaintiff was deprived of his exclusive remedy and the limited warranty failed in its essential purpose.
Defendant Yamaha also argues that plaintiff failed to properly revoke his acceptance since he did not timely notify defendant of the revocation, ucc § 2-608, MCL 440.2608; MSA 19.2608, provides that the buyer may revoke his acceptance of the goods whose nonconformity substantially impairs its value to him. In order to meet this test, the buyer must show that the nonconformity has a devaluing effect on him and that the buyer’s assessment is factually correct. Colonial Dodge, Inc v Miller, 420 Mich 452, 458; 362 NW2d 704 (1984).
Plaintiff testified that, because of the delay and the fundamental nature of the defect, he lost confidence in the manufacturer and dealer and his faith in the motorcycle was destroyed. Based on plaintiffs testimony, the trial court found that the nonconformity in the motorcycle substantially impaired its value to him. Defendant does not dispute this finding on appeal and we are satisfied that, under the facts of this case, defendant Yamaha’s failure to replace the damaged engine with a complete new engine constituted a substantial impairment in the value of the motorcycle to plaintiff.
Subsection 2. of ucc 2-608 requires the buyer to notify the seller of his revocation within a reasonable time after he discovers the defect. Defendant Yamaha contends that plaintiff’s revocation was not timely. This contention is contradicted by the record. As previously indicated, plaintiff first learned that defendant Yamaha intended to rebuild the damaged engine by letter dated October 26, 1981. Plaintiff responded by letter dated October 29 that he found a rebuilt engine "totally unacceptable” and that he refused acceptance of the motorcycle. We find that notice of revocation was given within a reasonable time.
Defendant Yamaha’s final claim is that the court abused its discretion in awarding plaintiff attorney fees as consequential damages where the warranty excluded consequential damages. Defendant Yamaha argues that, even if the limitation of remedy provision failed in its essential purpose, its failure does not invalidate the provision excluding consequential damages.
In Cady v Dick Loehr’s, Inc, 100 Mich App 543; 299 NW2d 69 (1980), a panel of this Court ruled that § 2-715 of the Uniform Commercial Code, MCL 440.2715(1); MSA 19.2715(1), confers discretion on the trial judge to award attorney’s fees as an element of the damages incurred from a breach of warranty. However, it is not clear from our reading of Cady whether the parties’ sales agreement contained a provision excluding incidential or consequential damages. Here the limited warranty contained a provision specifically excluding "any incidental or consequential damages”. Such limitations of liability are permitted under ucc § 2-719(3) unless the limitation is unconscionable.
Plaintiff argues that the repair and replace pro vision and the limitation of damages clause are mutually dependent, and the defendant Yamaha’s failure to perform under the first causes the latter to fail as well. Defendant Yamaha contends that the two provisions are independent. While we can find no Michigan case which has decided this issue, many other jurisdictions have addressed the question and reached conflicting conclusions. Compare Cayuga Harvester, supra, and Stutts v Green Ford, Inc, 47 NC App 503; 267 SE2d 919 (1980) (even if the repair and replacement provision fails in its essential purpose, the exclusion of consequential damages provision remains in effect), with Clark v International Harvester Co, 99 Idaho 326; 581 P2d 784 (1978), and Koehring Co v API, Inc, 369 F Supp 882 (ED Mich, 1974) (in which the courts refused to restrict the buyers to the limitation of liability provision).
We agree with those jurisdictions which have held that the failure of an exclusive remedy provision contained in a warranty renders the limitation of damages provision inoperable. In our view, the repair and replace remedy and the exclusion of consequential damages are integral and interdependent parts of the warranty and once defendant Yamaha is found to have breached its obligation to repair or replace, the provision excluding consequential damages will be deemed to have failed and the buyer may pursue the general remedies provided by the ucc. To hold otherwise would permit the seller to repudiate its limited obligation under the warranty while shielding itself behind another provision of the very warranty it has repudiated. This result is particularly untenable where, as here, the bulk of the buyer’s damages are the consequential damages which the seller now seeks to avoid. See Jones & McKnight Corp v Birdsboro Corp, 320 F Supp 39 (ND Ill, 1970). In this case, failure to award plaintiff attorney’s fees would in effect result in no remedy at all. We find that the court did not abuse its discretion in awarding attorney’s fees as consequential damages.
For the reasons set forth above, we believe that plaintiff is also entitled to appellate attorney fees. See Central Transport, Inc, v Fruehauf Corp, 139 Mich App 536, 549; 362 NW2d 823 (1984). Accordingly, we remand for a determination of reasonable appellate attorney fees.
Affirmed and remanded. | [
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Per Curiam.
Defendant Phairatch Sarnsethsiri, M.D., appeals as of right from a jury verdict in favor of plaintiffs in this medical malpractice case.
Plaintiff James Belobradich was injured in a motorcycle accident on July 2, 1976. He was taken to the emergency room at Holy Cross Hospital with multiple fractures of the left leg and other injuries. The hospital assigned defendant, an orthopedic surgeon, to treat plaintiff. However, due to progressive circulatory problems and infection in plaintiff’s left leg, the leg was amputated below the knee on August 20, 1976.
Plaintiffs subsequently filed a complaint alleging that the amputation resulted from failure of attending physicians, including defendant, to recognize and treat the impaired circulation in James Belobradich’s left leg. Following trial, judgment was entered against defendant and in favor of James Belobradich for $700,000 and in favor of Margaret Belobradich for $50,000.
Defendant raises three issues on appeal. Initially defendant maintains that, as an "on-call” specialist assigned to plaintiff’s case by the hospital, defendant fell within the ambit of an agreement to arbitrate signed by plaintiff on July 7, 1976. In Kukowski v Piskin, 99 Mich App 1; 297 NW2d 612 (1980), aff'd by an equally divided Court 415 Mich 31; 327 NW2d 832 (1982), a panel of this Court held that a patient who executes such an agreement agrees to arbitrate claims involving parties other than the hospital, including independent staff doctors who had executed an agreement to arbitrate. See, also, McCloy v Dorfman, 123 Mich App 710, 714-715; 333 NW2d 338 (1983). In this case, although defendant did sign an agreement to arbitrate, he did not do so until several months after plaintiff had been treated and had executed his arbitration agreement.
The result sought by defendant would run contrary to the explicit language of the arbitration agreement signed by plaintiff. The agreement provided that it would be binding upon "this hospital, its employees and those of its independent staff doctors and consultants who have agreed to arbitrate”. (Emphasis supplied.) Under nearly identical facts, this Court in Brown v Considine, 108 Mich App 504; 310 NW2d 441 (1981), ruled that the patient’s agreement did not cover his claim against the defendant doctor, because at the time of its execution the defendant had not agreed to the arbitration of claims against him.
Ignoring Brown, defendant argues that he should be covered by the agreement because plaintiff looked to the hospital for treatment and perceived defendant solely as an agent of the hospital. Defendant relies on Grewe v Mt Clemens General Hospital, 404 Mich 240; 273 NW2d 429 (1978), wherein the Supreme Court held that under the doctrine of agency by estoppel a hospital may be held liable for the acts of medical personnel who were its ostensible agents. See, also, Howard v Park, 37 Mich App 496; 195 NW2d 39 (1972), lv den 387 Mich 782 (1972), citing 1 Callaghan’s Michigan Civil Jurisprudence, Agency, § 27, pp 171-173. While this is fine authority, we are at a loss to comprehend how it supports defendant’s position. The fact that, in a proper case, a hospital may be estopped to deny an agency relationship through the equitable device of ostensible agency does not compel the conclusion that an independent medical contractor, arguably held out as the hospital’s agent, becomes implicitly bound to an arbitration agreement executed between the hospital and a patient. We follow Brown and rule that plaintiff was not bound to arbitrate his claim against defendant.
Defendant next maintains that the trial court erred in permitting plaintiffs, through the testimony of their expert Dr. Byron A. Genner, III, to introduce testimony in support of unpleaded claims of malpractice.
Plaintiffs’ expert witness testified that defendant violated the standard of orthopedic care by closing the fascia without allowing for drainage of the leg, and by using an inadequate capillary/pinch test for circulation. Defendant objected to this testimony on the grounds that these claims of malpractice had not been specifically alleged in the complaint. The witness further testified that a vascular surgeon should have been consulted postoperatively and that a rod instead of plates and screws should have been used to immobilize the fracture. Defendant did not object to this testimony.
At trial, the court ruled that the closing of the fascia without drainage was covered by paragraph 14, subparagraphs (d) through (g) of the complaint:
"[Defendant doctors did breach said standard of care owed in the following, but not limited to, manner:
* * *
"d) failed to sterilize adequately the affected area to and to use adequate medical precautions to prevent development of infection in the injured area;
"e) failed to split or remove the cast when it became apparent that the tightness of the cast had cut off circulation in plaintiff’s lower leg and that infection had set in;
"f) permitted the development of infection, gangrene and rotting of skin and flesh under the cast with no adequate steps to prevent and/or to heal said condition;
"g) failed to adequately follow plaintiff’s progress in orthopedic aftercare so as to ascertain development of infection and to take steps to prevent or heal said infection.”
The court further determined that paragraph 4, subparagraph (o) covered the capillary/pinch test testimony. That portion of the complaint alleged that defendant physicians "failed, after initial examination, to heed obvious signs and indications of a lack of blood supply in the affected area; further failed to explore into and/or determine the cause or causes of said lack of blood supply in the affected area; failed at that time to consult with a vascular surgeon to determine the cause of the obvious circulatory problems.”
Plaintiffs were obviously not entitled to litigate issues or claims not raised in the pleadings. Dolan v O M Scott & Sons, 23 Mich App 13; 178 NW2d 108 (1970). GCR 1963, 111.1(1) requires that the complaint contain "such specific averments as are necessary reasonably to inform the adverse party of the nature of the cause he is called upon to defend”. This Court, relying on Simonelli v Cassidy, 336 Mich 635; 59 NW2d 28 (1953), has held that an elevated degree of specificity is required in medical malpractice cases, the complaint dictating the exact theories of negligence to be shown. O’Toole v Fortino, 97 Mich App 797; 295 NW2d 867 (1980), lv den 410 Mich 863 (1980); Serafin v Peoples Community Hospital Authority, 67 Mich App 560, 565; 242 NW2d 438 (1976), lv den 397 Mich 880 (1976); Haase v DePree, 3 Mich App 337, 341; 142 NW2d 486 (1966). One panel of this Court, however, has suggested in dicta that the Simonelli Court did not intend a departure from general pleading rules in malpractice cases. Hill v Freeman, 117 Mich App 788, 791-792; 324 NW2d 504 (1982), lv den 417 Mich 1004 (1983). Any endeavor on our part to solve the Simonelli riddle would be an academic exercise because we would achieve the same result under either standard.
The purpose of any requirement of specificity in pleadings is to provide a defendant with sufficient notice to prepare a defense to the charges. Welniak v Alcantara, 100 Mich App 714, 716; 300 NW2d 323 (1980). With regard to three of the allegedly novel negligence theories, we believe that sufficiently distinct averments were made in the complaint to notify defendant of these issues. In our opinion, the trial court was correct in determining that the claims of malpractice in closing the fascia without drainage and in using the capillary/pinch test were adequately alleged. The former claim is covered by subparagraphs 14(d) through (f), supra, concerning failure to take precautions to prevent tissue infection and decay. The capillary/pinch test evidence related to the allegations of subsection 14(o), supra, as well as subsection 14(p), which stated:
"p) subsequent to the initial surgery, failed to timely perform or have performed, diagnositc testing to indi cate whether or not the affected area was receiving an adequate supply of blood.”
We further find that subparagraph 14(p) above embraces proofs concerning defendant’s post-operative failure to consult a vascular surgeon. This leaves the question of Dr. Genner’s opinion testimony that defendant should have employed an intermedulary rod, or some alternate device, instead of plates and screws to immobilize the fracture.
We find no error in admission of this testimony, not objected to at trial, because it could have been the subject of an amendment under GCR 1963, 118.3. This rule provides:
".3 Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. In such case an amendment of the pleadings to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, amendment to conform to such proof shall not. be allowed unless the party desiring amendment satisfies the court that the amendment and the admission of such evidence would not prejudice the objecting party in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”
Defendant deposed Dr. Genner prior to trial and this issue, indeed all issues now complained of save the capillary/pinch test issue, came to light and were extensively explored during that deposition. Defendant hence may not claim that he was prejudiced through surprise by admission of that testimony. Berwald v Kasal, 102 Mich App 269; 301 NW2d 499 (1980). We conclude that admission of Dr. Genner’s testimony did not constitute reversible error.
Finally, defendant maintains that plaintiffs’ counsel should not have been permitted to question him regarding his failure to pass certification examinations administered by the American Board of Orthopedic Surgeons. Defendant made a motion in limine to prevent such reference. The court agreed that the evidence would not be relevant to the question of negligence, but that it would be allowed should defendant render expert testimony.
Plaintiffs called defendant as an adverse witness. While being questioned concerning his failure to consult a vascular surgeon, defendant gratuitously offered that as a trained orthopedic surgeon, he had become knowledgeable about circulatory problems as well. Plaintiffs’ counsel then questioned defendant about his three unsuccessful attempts to become board certified in his medical specialty. Defendant did not object to this questioning.
A defendant physician may be called as an adverse witness, and may even be employed to supply expert testimony to establish a plaintiff’s case. Rice v Jaskolski, 412 Mich 206; 313 NW2d 893 (1981). While it may be questionable practice to call a defendant as an expert and then impugn his credentials by eliciting information that could be prejudicial, we decline to find reversible error under the circumstances of this case. Initially, our review of the extensive examination of this wit ness convinces us that plaintiffs’ counsel did not call defendant merely to discredit him. Moreover, counsel’s treatment of the subject was very brief and undertaken only after defendant had rendered nonresponsive testimony that he knew about circulatory problems as an adjunct to his training and education in orthopedics. Thirdly, defendant was, at the time of the motion in limine, offered a limiting instruction contingent upon this evidence being received. Finally, defendant has not convinced us that the trial court’s ruling on the motion in limine was erroneous. See generally Phardel v State of Michigan, 120 Mich App 806; 328 NW2d 108 (1982), lv den 417 Mich 1015 (1983).
Affirmed.
Fascia: tough connective tissue that separates muscle compartments and muscle from subcutaneous tissue and bone.
Plaintiffs’ counsel had earlier elicited testimony from defendant concerning his initial failure to pass the state licensing examination for physicians. Defendant passed on his second effort. This material was not the subject of a limiting motion or objection below, hence defendant may not now claim error in this questioning. | [
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Michael J. Kelly, P. J.
Defendant pleaded guilty of embezzlement over $100, MCL 750.174; MSA 28.371. The trial court sentenced him to five years’ probation with the first year in jail. Defendant was awarded sixty days of good-time credit by the sheriff under MCL 51.282(2); MSA 5.883(2)(2). Soon after his release from jail, defendant was found guilty of violating the terms of his probation and was sentenced to five to ten years’ imprisonment. The trial court allowed defendant credit only for the time he actually had actually served in jail on the embezzlement charge. In this appeal of right, defendant argues that he was entitled to credit for the sixty days of good time granted by the sheriff. We agree.
Defendant bases his argument on double jeopardy grounds. The Double Jeopardy Clauses of the United States and Michigan Constitutions guarantee against multiple punishments for the same offense. This guarantee "absolutely requires that punishment already exacted must be fully 'credited* in imposing sentence upon a new conviction for the same • offense.” North Carolina v Pearce, 395 US 711, 718-719; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
In People v Whiteside, 437 Mich 188; 468 NW2d 504 (1991), our Supreme Court summarized the current view of double jeopardy. There, the Court held that the prohibition on double jeopardy is not a check on the Legislature’s power to define crime and fix punishment. Id. at 200-201. The Legislature may provide for the revocation of good-time credit without fear that its act would offend double jeopardy guarantees. See id. at 199, n 17, quoting United States v DiFrancesco, 449 US 117, 137; 101 S Ct 426; 66 L Ed 2d 328 (1980). Our Legislature has already done so in the parole context. Under MCL 791.238(6); MSA 28.2308(6), a paroled prisoner is considered to be serving out the sentence imposed by the court and may be awarded good time, just as if the parolee had been confined in the institution. However, if the prisoner violates parole, the parole board may cause the forfeiture of all good time accumulated up to the date of the violation. MCL 791.238(4); MSA 28.2308(4).
While the Double Jeopardy Clause does not prohibit revocation of good-time credit per se, it does restrict a court’s authority to impose punishment in excess of the intent of the Legislature. The basic inquiry is whether the total punishment imposed exceeds that authorized by the Legisla ture. Whiteside, supra at 201. In this case, the Legislature has not provided for the revocation of good-time credit in the context of conditional probation, as it has done in the parole context. There is no statutory provision evidencing a legislative intent to allow such revocation. The trial court therefore exceeded its authority under the Double Jeopardy Clause to take away what was already given to defendant. Defendant is entitled to keep what he has earned.
We reject the prosecution’s suggestion that defendant has not even "earned” anything that is protected by the Double Jeopardy Clause. There are numerous Michigan cases addressing credit for time spent "in jail” or "in confinement” under a variety of circumstances. See, e.g., Whiteside, supra at 202 (not allowing probationer credit for time spent in a substance abuse program); People v Wagner, 193 Mich App 679, 682; 485 NW2d 133 (1992) (not allowing probationer credit for time spent in a boot camp). See also People v Sturdivant, 412 Mich 92, 96-97; 312 NW2d 622 (1981); People v Smith, 143 Mich App 782, 787; 372 NW2d 660 (1985); People v Shipp, 141 Mich App 610, 614; 367 NW2d 430 (1985); People v Stange, 91 Mich App 596, 599; 283 NW2d 806 (1979); People v Gravlin, 52 Mich App 467, 469; 217 NW2d 404 (1974). While the lead cases held that boot camp and rehabilitation programs do not constitute "time served in jail” for purposes of double jeopardy, they do not address the status of good-time credit. We believe that good-time credit can fall within the ambit of the Double Jeopardy Clause. Unlike boot camps and rehabilitation programs, which are alternatives to incarceration that are available to the sentencing court, good-time credit effectively takes the place of jail time already imposed as part of a sentence. We also reject the prosecution’s reading of the Sturdivant and White-side opinions as affording double jeopardy protection only to time actually served in jail. Nowhere in those opinions does the term "actually” modify "time served.” Nor do the opinions make any such suggestion.
Our holding is bolstered by the United States Supreme Court’s opinion in Pearce, supra at 718-719. There, the Court held "that the constitutional guarantee against multiple punishments for the same offense absolutely requires that punishment already exacted must be fully 'credited’ in imposing sentence upon a new conviction for the same offense.” Id. In dicta, the Court added that credit for punishment already exacted "must, of course, include the time credited during service of the first prison sentence for good behavior, etc.” Id. at 719, n 13. Though not reaching the precise issue presented in this case, our Supreme Court held in Sturdivant, supra at 97, that the principles set forth in Pearce apply to the situation in which the initial period of incarceration is a condition of probation.
In short, we hold that the constitutional guarantee against multiple punishments contemplates protection for good-time credit, but that the ultimate decision of whether such protection applies— that is, whether the good-time credit may be revoked — lies in the discretion of the Legislature. Absent legislative authority, a sentencing court may not revoke good-time credit that a defendant already has earned while serving a jail sentence as a condition of probation.
Because the amount of good-time credit received by defendant is undisputed, we order that his sentence be amended to reflect an additional credit of sixty days against his sentence for probation violation. MCR 7.216(A)(1) and (7); Brinson v Gene- see Circuit Judge, 403 Mich 676, 687; 272 NW2d 513 (1978).
Affirmed as modified.
Fitzgerald, J., concurred.
US Const, Am V, provides, in pertinent part: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . .” Const 1963, art 1, § 15, provides, in pertinent part: "No person shall be subject for the same offense to be twice put in jeopardy.” | [
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M. J. Kelly, P.J.
Plaintiff appeals from an order of the Workers’ Compensation Appeal Board (WCAB) affirming a hearing referee’s denial of plaintiff’s claim for benefits. While this Court initially denied leave to appeal, the Supreme Court, in lieu of granting leave, issued an order remanding the case to this Court for consideration as on leave granted. 417 Mich 926 (1983).
Plaintiff’s husband, Richard Achtenberg, was employed as a firefighter with the City of East Lansing for 23 years. During his last seven years of service he held the rank of lieutenant. Achtenberg worked a full 24-hour shift on February 27 and 28, 1976, and returned home at 7:30 a.m. on February 28. On the following morning he suffered a fatal heart attack while home in bed.
On May 18, 1976, plaintiff filed a workers’ compensation claim on behalf of herself and her three minor children, alleging that the death of her husband was due to his employment as a firefighter. Plaintiff had earlier been notified of her eligibility to receive pension benefits from the Municipal Employees Retirement System (MERS). This system provides for nonduty death benefits and duty death benefits; the latter are preferable. Plaintiff applied for and began receiving nonduty benefits. She was informed that, because duty death benefits would be offset by any workers’ compensation benefits for which she might qualify, her application for duty death benefits could not be processed until her workers’ compensation claim was completed. Her claim for duty death benefits is still pending.
Denial of workers’ compensation benefits below was predicated upon plaintiff’s failure to prove that her decedent’s death was causally related to his employment. On appeal, plaintiff claims that the WCAB erred in failing to apply the work-related disability presumption contained in MCL 418.405; MSA 17.237(405). That section provides in part:
"Sec. 405. (1) In the case of a member * * * of a full paid fire * * * department of a city * * * employed and compensated upon a full-time basis, * * * 'personal injury’ shall be construed to include respiratory and heart diseases or illnesses resulting therefrom which develop or manifest themselves during a period while the member of the department is in the active service of the department and result from the performance of duties for the department.
"(2) Such respiratory and heart diseases or illnesses resulting therefrom are deemed to arise out of and in the course of employment in the absence of evidence to the contrary.
"(3) As a condition precedent to filing an application for benefits, the claimant, if he or she is one of those enumerated in subsection (1), shall first make application for, and do all things necessary to qualify for any pension benefits which he or she, or his or her decedent, may be entitled to. If a final determination is made that pension benefits shall not be awarded, then the presumption of 'personal injury’ as provided in this section shall apply. * * *”
The WCAB refused to apply the § 405(2) presumption because plaintiff had applied for and received pension benefits from her husband’s employer. At issue in this appeal is whether the phrase "any pension benefits” as used in §405(3) was intended to include dissimilar benefits for the same injury, such as the nonduty pension benefits received by plaintiff in this case.
This precise question has recently been decided by another panel of this Court in Spears v City of Hazel Park, 131 Mich App 457; 346 NW2d 340 (1984), which was also remanded to this Court from the Supreme Court for consideration as on leave granted. See 417 Mich 940 (1983). The Spears panel held that the term "any pension benefits” in § 405 of the Worker’s Disability Compensation Act is to be construed together with § 161, which requires city firefighters to elect between workers’ compensation benefits and "like benefits” provided under their local charter. MCL 418.161; MSA 17.237(161). The Court in Spears then concluded that the Legislature intended "any pension benefits” to include only "like benefits” provided for the same injury. Since plaintiff in Spears received nonduty benefits, this Court remanded the case for a new hearing at which the MCL 418.405; MSA 17.237(405) presumption will be applied.
We do not agree with the result reached in Spears and believe that the panel in Spears read an implication into the Supreme Court’s remand orders that we do not. By the Court of Appeals denials of leave in both cases we showed our agreement with the Workers’ Compensation Appeal Board’s decisions that a claimant who was the recipient of any pension benefits is not entitled to the presumption of work relationship provided in MCL 418.405(2); MSA 17.237(405X2). In other words, the Legislature meant what it said when it applied the presumption only to those who had been rejected by their employing unit for pension benefits.
Nothing has been presented in this appeal which casts any light upon a legislative intent to make a distinction between duty pension benefits and non-duty pension benefits. We surmise that this distinction was not involved in the lobbying effort or the subcommittee activity which preceded the passage of the legislation under scrutiny.
What is involved here is money. Mrs. Achtenberg was advised by the MERS, which administered her husband’s pension benefits, to apply for both nonduty and duty death benefits. Her non-duty death benefits were estimated at approximately $4,000 a year and when added to Social Security benefits her total would rise to about $8,000. If she qualified for duty death benefits the mix from the three sources, pension, Social Security, and workers’ compensation would add another $4,500 for a total of around $12,500. Obviously she did what any reasonable person would do, she applied for both and then became caught in the conundrum.
The workers’ compensation carrier took the position that she had not been denied pension benefits and therefore was not entitled to the presumption. MERS took the position that its retirement board would not act on her application for duty death benefits until her workers’ compensation claim had been finally decided, by which time her children were probably grown and gone. Her husband died in . February of 1976, eight years have passed, and the Spears position would now have us in the process of remanding for another round. What is wanted here is a legislative solution.
It seems eminently reasonable to us that the police and firefighters lobby obtained passage of the § 405 presumption because their members were particulary vulnerable to respiratory and heart ailments which were not readily susceptible to etiological diagnosis. See Schave v Dep’t of State Police, 58 Mich App 178; 227 NW2d 278 (1975), lv den 394 Mich 765 (1975). Mr. Achtenberg’s fatal heart attack occurred after 23 years in the profession. He had been treating for a heart condition. He had previously suffered a silent heart attack. He was only 19 hours off the job. It seems to us that he comes squarely within the class of persons intended to be benefited by the statute and he ought logically to have been afforded the presumption if he qualified for less than a full measure of pension benefits.
On the other hand, it is also clear that a literal reading of § 405 excludes him from the presumption because he, or rather his widow, qualified for and is receiving some pension benefits. The Legislature ought to address the question of whether the provisions of § 161(l)(a) which deals with the duplication of benefits should be read into § 405, the presumption section.
If this analysis demonstrates that one guess is as good as another, doesn’t that a fortiori indicate that a legislative solution is mandated?
At this writing there is before the Legislature House Bill No. 4630, a bill to amend § 405 of the act, being MCL 418.405; MSA 17.237(405), but it really does nothing except eliminate the words "in the absence of evidence to the contrary”. The present reading is:
"(2) Such respiratory and heart diseases or illnesses resulting therefrom are deemed to arise out of and in the course of employment in the absence of evidence to the contrary.”
The proposed amendment reads:
"Such respiratory and heart diseases or illnesses resulting therefrom are presumed to arise out of and in the course of employment.”
While the Legislature is considering this section, it should solve the conflict between partial benefit cases versus like benefits cases presently developing in this Court. In the meantime we will read and apply § 405 as the Legislature wrote it.
Affirmed.
J. C. Kingsley, J., concurred. | [
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Per Curiam.
Following a joint trial before a jury, defendants Carnell Humphrey and Lester Simmons were convicted of voluntary manslaughter, MCL 750.321; MSA 28.553. Defendant Simmons was also convicted of one count of felony-firearm, MCL 750.227b; MSA 28.424(2). Defendant Simmons was sentenced to a term of 10 to 15 years imprisonment on the manslaughter charge plus a consecutive term of two years on the felony-firearm charge. Defendant Humphrey was sentenced to a term of 7-1/2 to 15 years imprisonment. Defendants appeal as of right. Their appeals have been consolidated.
Defendant Simmons first argues that he was improperly arrested for "investigation of murder” and that the information should have been quashed and his case dismissed. Specifically, defendant Simmons argues that the testimony of Lt. Lordon to the effect that defendant was arrested for investigation of murder establishes that his arrest was illegal. Lt. Lordon was not the arresting officer, nor was he involved in giving information to the arresting officer. Mr. Simmons made a statement to Lt. Lordon after he was arrested.
Defendant relies on People v Martin, 94 Mich App 649; 290 NW2d 48 (1980), for the proposition that an arrest for "investigation of murder” is per se unlawful since there is no such crime. Defendant Simmons’s claim is without merit for four reasons. First, Lt. Lordon was not the arresting officer and his personal opinion is not determinative. Second, the arresting officer had probable cause to arrest defendant Simmons since Simmons admitted that he shot the victim. This distinguishes each case cited by defendant. In the cases cited by defendant, the arrests were all based on a tip from a third party or a report of the crime by the defendant without any admission of participation. Third, the arresting officer informed defendants they were being arrested for "assault with intent to commit murder”. The arresting officer had probable cause to believe that the shooting was not in self-defense since there was evidence that defendant Simmons fired numerous shots at the victim. Finally, the terminology used in effectuating the arrest is not determinative. As noted by this Court in People v Hamoud, 112 Mich App 348, 351-352; 315 NW2d 866 (1981), the use of the word investigation does not per se make the arrest illegal and the Court should look to see if the arrest was supported by probable cause. We conclude that defendant Simmons’s arrest was valid.
Defendant Humphrey contends that the trial court, in sentencing him, improperly considered a prior misdemeanor conviction for which he was not represented by counsel. This Court previously remanded Humphrey’s case for a Tucker hearing to determine if the trial court improperly considered defendant’s prior misdemeanor conviction. On remand, the trial court stated:
"This matter was remanded to this particular court, I believe, for the purpose of acting upon a Tucker hearing. In the essence of that is at the time of the sentence, the court was presented with a pre-sentence report, the probation report, and all other papers. And the court had full knowledge of the previous several minor misdemeanor convictions of this particular defen dant, Carnell Humphrey. And the court, in determining the sentence pointed out to Mr. Humphrey the fact that there were these other matters pending against him, did not make any difference. Rather, it would not have made any difference whatsoever. And the court had full knowledge of it. But because of the seriousness of the crime, the matter — the manner of the crime, and the hainnes [sic, heinousness] of his crime. The court did give what it though[t] was the appropriate sentence at that time.
"So when the Court of Appeals sent this case back here, I’d like the Court of Appeals to know, of course, that the fact that the Court had full knowledge of that, but did not interfere with the sentence whatsoever that was given by this court given to defendant.”
Since the trial court did not consider defendant’s misdemeanor convictions, the rule stated in Tucker was not violated. People v Watroba, 89 Mich App 718; 282 NW2d 196 (1979).
We next consider the issues argued by both defendants. Both defendants argue that there was insufficient evidence to convict them. Defense counsel moved for a directed verdict at the close of the people’s proofs and again renewed the motion at the end of the trial, arguing that the evidence was not sufficient to send the case to the jury. When reviewing the denial of defendants’ motion for a directed verdict, this Court views the evidence presented at the time of the motion in a light most favorable to the prosecution and determines whether a rational trier of fact could have found each of the essential elements of the crime beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979).
It is clear that the corpus delicti of any offense is not established until evidence is presented from which a rational trier of fact could reasonably conclude that all the essential elements of the offense have been committed and that a criminal act was responsible therefor. People v Allen, 390 Mich 383; 212 NW2d 21 (1973). In this regard, a conviction of second-degree murder requires a showing of the killing of a person by another with malice and without justification or excuse. People v Hawkins, 80 Mich App 481, 486; 264 NW2d 33 (1978). The corpus delicti of a crime may be established by circumstantial evidence and reasonable inferences therefrom, and the identity of the perpetrator is not an element of the corpus delicti. People v Harris, 64 Mich App 503, 507; 236 NW2d 118 (1975).
In the instant case, these elements were reasonably established. Doreen Tyus, the deceased’s niece, testified that she identified the body of McCarroll Tyus on November 25, 1981, at the Wayne County morgue. This testimony established that there was a death. The medical examiner’s testimony, which established that Tyus was shot six times, with four of the shots entering Tyus’s body from the rear, is in itself sufficient to allow a jury to infer malice as well as lack of justification or excuse. There was also some evidence that Tyus was not carrying a weapon on that particular day and that he had a reputation for being a peaceful person, which further supports the inference that the killing was without justification. Accordingly, there was sufficient evidence to support the charge of second-degree murder to present the issue to the jury. The trial court did not err in denying defendants’ motion for directed verdict.
Defendant Humphrey was convicted of being an aider and abettor, MCL 767.39; MSA 28.979. To be convicted as an aider and abettor, a defendant must either possess the requisite intent to commit the principal offense or participate while knowing that his codefendant possessed the requisite intent. Such intent or knowledge may be inferred from circumstantial evidence, although a defendant’s mere presence at the scene of the crime, in and of itself, is insufficient to make him an aider and abettor. People v Karst, 118 Mich App 34, 39; 324 NW2d 526 (1982).
Upon reviewing the facts, we find that there was sufficient evidence to permit the jury to infer that defendant Humphrey had knowledge of Simmons’s intent. The facts show that both defendants went to a pawnshop prior to the incident in order to redeem a rifle. The facts also tended to show that Humphrey drove Simmons around trying to find the victim. When they found the victim, Humphry waited in his car while Simmons went to get the rifle in the trunk to shoot the victim. After Simmons shot the victim, Humphrey drove him away from the scene of the crime. This evidence is sufficient to establish that Humphrey either assisted, supported, encouraged, or incited the commission of the crime. People v Palmer, 392 Mich 370, 378; 220 NW2d 393 (1974).
Defendants also argue that the trial court gave inadequate instructions regarding self-defense. Specifically, defendants argue that it was their theory that Simmons was acting in defense of Humphrey and, therefore, CJI 7:9:07, which instructs on defense of others, should have been given sua sponte by the trial court. In People v Ora Jones, 395 Mich 379, 393; 236 NW2d 461 (1975), the Supreme Court held that "it was reversible error to give a misleading instruction which recognized only the prosecution’s theory but not the defendant’s”. In the instant case, the prosecution’s theory was that defendant Simmons shot and killed the victim with malice and without justification or excuse and that defendant Humphrey aided and abetted Simmons. Defendants’ theory was that the victim had threatened them on several prior occasions and that they acted in self-defense. The trial court gave a general instruction on the theory of self-defense which was consistent and adequately represented defendants’ theory. While Simmons in his statement to the police indicated that he was acting in defense of Humphrey, most of the evidence introduced at trial indicated that Simmons, himself, was in fear of the assault since the victim had threatened him on several prior occasions. Defendants produced witnesses to show that the victim assaulted Simmons in the parking lot of a grocery store. There was further evidence that the victim threatened to kill Simmons in August, 1981, and that the victim was the father of Simmons’s wife’s first child. There was also evidence that shortly before Simmons shot the victim, the victim threatened that he would get Simmons. Since defendants introduced this evidence, the trial court properly gave a general instruction on the theory of self-defense. The fact that defense counsel did not object to the trial court’s instruction indicates that it was defendants’ theory that they acted together in self-defense.
We finally consider defendants’ argument that they were denied the effective assistance of counsel since they were both represented by the same attorney. The United States Supreme Court in Cuyler v Sullivan, 446 US 335, 346; 100 S Ct 1708; 64 L Ed 2d 333 (1980), stated that there is no affirmative duty upon state courts under the Sixth Amendment to initiate inquiries into the propriety of joint representation. The Court in Cuyler further stated:
"In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.
"[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. * * * But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffefective assistance.” 446 US 348, 349-350. See also People v Gamble, 124 Mich App 606, 609; 335 NW2d 101 (1983).
Upon reviewing the record, the only actual conflict arose at defendant Humphrey’s sentencing. Defense counsel made the following statement by way of allocution:
"Mr. Mitchell [defense counsel]: Your Honor, as to Carnell Humphrey, the very same allocution applies to him.
"He has had — he too stands before the court without a felony record. He, too, is a good chap just like Mr. Simmons.
"He did not fire the gun for whatever that means. But I will certainly ask the court to be lenient in its imposition of sentence on Mr. Humphrey.
"We have read the report, the presentence report, furnished to us. We don’t find anything seriously, factually incorrect about it.”
This presents an actual conflict since a stronger more forceful argument could have been made on behalf of defendant Humphrey. A stronger argument in favor of Humphrey presents a conflict since by negative implication it would have been detrimental to defendant Simmons by emphasizing Simmons’s greater degree of culpability. In Holloway v Arkansas, 435 US 475, 490; 98 S Ct 1173; 55 L Ed 426 (1978), the Supreme Court stated, "Generally speaking, a conflict may also prevent an attorney * * * from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another”.
The instant case presents a situation envisioned by Holloway as presenting an actual conflict in the representation of two clients. Because defendant Humphrey was denied effective assistance of counsel because of the actual conflict at sentencing, we remand for his resentencing. In all other respects, the trial court is affirmed.
Affirmed in part and remanded.
United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972).
Defendants were charged with second-degree murder.
Defendant Simmons claims that the failure to move to suppress the fruits of his unlawful arrest also constituted the ineffective assistance of counsel. This claim is totally without merit since, as we previously noted, Simmons was properly arrested. | [
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Per Curiam.
Defendant appeals by leave granted from the October 14, 1982, decision of the Workers’ Compensation Appeal Board (WCAB). The WCAB reversed the hearing officer’s finding that his decision of December 7, 1972, was a "closed” award.
Plaintiff originally filed a petition for hearing dated March 23, 1971, alleging disability due to a slip and fall which occurred on August 18, 1970. After a hearing on the matter, the hearing officer ordered compensation benefits payable for a period beginning January 18, 1971, and ending August 20, 1972. However, the hearing officer attached an addendum to the "green sheet” which contained ambiguous findings and which at times contradicted his order. For example, the addendum contained the recommendation that defendant voluntarily continue paying benefits beyond the period required under the order until such time as "there would be a basis to show * * * that weekly benefits have been or should, in good faith, be terminated”. Neither party appealed from this decision.
On March 4, 1981, a Rule V hearing was held before the original hearing officer for the purpose of interpreting his decision of December 7, 1972, i.e., to determine whether it provided for an open or closed award. At the conclusion of this hearing the hearing officer found that benefits paid by defendant subsequent to August 21, 1972, were voluntary in nature and that defendant had fully complied with his earlier order. Plaintiff appealed to the WCAB, which reversed the hearing officer. The WCAB construed the findings contained in the addendum to the 1972 decision as establishing a continuing compensable disability, thus requiring, as a matter of law, an open award.
The first issue presented is whether this Court has jurisdiction to consider defendant’s appeal. Plaintiff contends that the decision of the WCAB interpreting the 1972 decision of the hearing officer is not a final order but an interlocutory order. It is apparent that the decision of the WCAB on this matter is, contrary to plaintiff’s assertions, a final order. See MCL 418.861; MSA 17.237(861); Ritzer v Ritzer, 243 Mich 406, 412; 220 NW 812 (1928); Wurzer v Geraldine, 268 Mich 286, 289-290; 256 NW 439 (1934).
The second issue presented is whether the WCAB erred in reversing the hearing officer’s finding that his decision of December 7, 1972, was a "closed” award.
The question to be resolved is just what constituted the "order” of the hearing officer. Plaintiff contends that the green sheet plus the two-page addendum must be read together. However, a careful review of the hearing officer’s decision compels the conclusion that his order was contained on the green sheet, in the sections specifically set aside for the announcement of his order. The green sheet provides separate sections for announcing open and closed awards; the hearing officer utilized § 1, and thus his intent to render a closed award cannot reasonably be disputed. The addendum, on the other hand, can accurately be described as the hearing officer’s opinion, in that it contains his thoughts and doubts about the case. The hearing officer indicates the evidence which he relied upon when making his findings of fact and how he resolved issues such as the credibility of the witness. An order typically contains conclusions; an opinion describes how and why the writer came to such conclusions. Thus, it is clear that the addendum is merely an opinion written by the hearing officer which was in no way intended to modify the clear and unambiguous order, contained on the green sheet, of a closed award.
Since the two-page addendum was the hearing officer’s opinion, and not a part of the order, anything stated in the opinion which tends to contradict the order should have been ignored. "A court speaks by its orders, not its opinions.” In re Spalter, 31 Mich App 458, 464; 188 NW2d 67 (1971); Joslin v 14th Dist Judge, 76 Mich App 90, 96; 255 NW2d 782 (1977), lv den 402 Mich 833 (1977); Nemes v Smith, 37 Mich App 124, 126; 194 NW2d 440 (1971). The parties are not bound by opinions or statements of the court seeking to define the extent of the court’s judgment. Nott v Gundick, 216 Mich 217, 222; 184 NW 864 (1921). By holding that the hearing officer’s reference in his opinion to a "continuing disability” on plaintiffs part requires, as a matter of law, that his order be ignored, the WCAB violated the well-established rules cited above.
The only issue before the board was the interpretation of the hearing officer’s 1972 order. Thus, the WCAB was not entitled to ignore the unambiguous order in favor of implementing an ambiguous and contradictory opinion.
This result is not unfair to plaintiff. If he disagreed with the hearing officer’s decision to grant benefits for the period from January 18, 1971, to August 20, 1972, plaintiff should have filed a claim for review back in 1972 in order to reargue the facts before the WCAB. Having failed to do so, he should not now be allowed to attack the order more than ten years later.
Reversed. | [
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Per Curiam.
Plaintiffs brought suit in circuit court in their individual capacities and as a class action on behalf of all parties paying property taxes in Macomb County. They appeal as of right from an order granting accelerated judgment in favor of all of the defendants.
Plaintiffs’ complaint sets forth the following allegations: that defendants proposed to equalize 1982 tax assessments upon residential property by using a "sales ratio study” that contained raw data with little verification of its accuracy; that utilization of this method will result in a substantial number of plaintiffs’ properties being assessed at greater than 50% of the true cash value, contrary to Const 1963, art 9, § 3; that such "method” includes duplicated sales, sales which did not occur, sales of new construction assessed as vacant land, mortgage foreclosure, and other forced sales, and other unreliable sales; that such method includes costs attributable to amounts expended by owners of residential real property for normal repairs and other improperly considered expenditures in reaching true cash value, contrary to MCL 211.27; MSA 7.27; that the method used was statistically improper and yielded an inaccurate study; that defendants have failed and refused to enforce applicable statutory and constitutional provisions; and that there exists no statutory appeal available to plaintiffs from unconstitutional equalization of their real property. Plaintiffs requested that these actions, as well as the method used in calculating the equalization factor, be declared illegal. They further sought a writ of mandamus to compel defendants to properly calculate the equalization factor and a preliminary injunction to prevent defendants from increasing local tax assessments during the pendency of this action.
After hearing and rehearing on defendants’ motions for accelerated judgment, the court concluded that all of plaintiffs’ claims were either within the exclusive jurisdiction of the Michigan Tax Tribunal or were claims which plaintiffs lacked standing to assert. We affirm the trial court’s grant of accelerated judgment.
To the extent that plaintiffs’ complaint can be read to assert a dispute as to their individual property tax assessments, including the effect thereon of the equalization process, the circuit court is without jurisdiction. The Michigan Tax Tribunal has exclusive and original jurisdiction to review final decisions or determinations concerning assessments or equalization under the property tax laws. MCL 205.731; MSA 7.650(31). A party who was previously entitled to proceed before the State Tax Commission or circuit court for review of such determinations or decisions may now proceed only before the Tax Tribunal, MCL 205.741; MSA 7.650(41), which is empowered to issue such "writs, orders, or directives which it deems necessary * * MCL 205.732; MSA 7.650(32).
Plaintiffs claim that the circuit court nevertheless has jurisdiction over this controversy because of the constitutional issues they assert and the equitable relief they seek. We conclude Wikman v Novi, 413 Mich 617; 322 NW2d 103 (1982), is dispositive of this issue. Plaintiffs in that action claimed that the circuit court had jurisdiction for reasons similar to those asserted by plaintiffs herein. The Supreme Court held that although the Tax Tribunal did not have jurisdiction to undertake the determination of constitutional questions or possess power to hold statutes unconstitutional, it did have jurisdiction to resolve assertions, couched in constitutional terms, that an assessment was arbitrary and without foundation. Similarly, plaintiffs in this action claim that the use of improper data by defendants produced a result that contravened constitutional provisions, i.e., assessment of their property at greater than 50% of the true cash value. Resolution of this issue requires not a determination of constitutional issues, but rather an inquiry as to the validity of the "sales ratio study”, a factual determination particularly within the expertise of the Tax Tribunal. And upon resolving this issue, the Tax Tribunal is empowered to issue such "writs, orders, or directives which it deems necessary”. MCL 205.732; MSA 7.650(32). Plaintiffs could then, if necessary, seek equitable relief to enforce the Tax Tribunal decision, see Edros Corp v Port Huron, 78 Mich App 273; 259 NW2d 456 (1977). The fact that plaintiffs have entitled this action a "class action” does not divest the Tax Tribunal of exclusive jurisdiction. Wikman v Novi, supra, p 649.
Plaintiffs’ claim that they are denied due process of law because they are required to rely on their elected county representatives to represent them at state equalization hearings is also without merit. Henshaw v State Tax Comm (On Remand), 126 Mich App 806; 338 NW2d 224 (1983).
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Per Curiam.
Plaintiffs appeal as of right from an order granting defendant’s motion for summary judgment.
Plaintiffs were the owners of two parcels of lakefront property located in Antrim County on the east and west sides of West Torch Lake Drive. In 1973, plaintiffs contemplated developing the east parcel of property and contacted the local health department for a land evaluation concerning the installation of septic tanks on the property. Pursuant to plaintiffs’ request, Walter Franczek of the Department of Health examined the east parcel and concluded that, due to the composition of the soil, serious problems existed for residential development of the property at least with regard to on-site sewage disposal systems. In 1978, plaintiffs received a letter from Franczek in which he stated that any application to install on-site sewage disposal systems on the east parcel would be denied.
In the summer of 1979, plaintiffs commissioned a second set of tests to be done. The tests resulted in a similar conclusion that the east parcel site would not permit on-site sewage disposal. In 1978, plaintiffs hired Art Lennox of Lennox Engineering to inspect the west parcel for an opinion on its suitability for on-site sewage disposal. After examining the parcel, Lennox advised plaintiffs that the west parcel was suitable for an on-site sewage disposal permit. Lennox also informed plaintiffs that the only practical method of providing sewage disposal for the east parcel would be to install an expensive pump disposal system to pump sewage from the east parcel to a drain field on the west parcel.
On April 22, 1980, plaintiffs listed the property with Schmidt Real Estate, Inc. The listing agreement stated:
Prime Torch Lake frontage. However, Antrim County Health Department will not issue septic permit due to heavy clay soils. Development may be possible with drain field constructed on property located to west of road or with central sewer system.
In the summer of 1980, defendant received a brochure from Schmidt Realty describing the property as follows:
34. 600 feet on torch lake: 600' on lake and over 1200' deep. Located along West Torch Lake Drive. Heavy soils will not permit septic permits except possible drain field located on west side of road. $75,000.00.
On August 9, 1980, plaintiffs and defendant executed a land contract for the purchase of the property for $75,000.
In the summer of 1983, defendant commenced construction of a home on the east parcel with the intent of installing a disposal system on the property which would pump the sewage to a drain field on the west parcel. While transporting trees on the east parcel in July, 1983, defendant found an area of sand and gravel that he thought might be appropriate for an on-site septic system. He immediately applied for and was granted a permit for an on-site sewage disposal system on the east parcel. The permit was issued on August 1, 1983.
After learning of the issuance of the permit for the east parcel, plaintiffs commenced the instant action, seeking reformation or rescission of the land contract on the ground that there had been a mutual mistake in the formation of the contract. At a hearing held on August 20, 1984, and in a corresponding order dated October 15, 1984, the trial court granted defendant’s motion for summary judgment.
Defendant’s motion for summary judgment was based on GCR 1963, 117.2(3), now MCR 2.116(0(10). A motion for summary judgment on the ground that there is no genuine issue as to any material fact tests whether there is factual support for a 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. Long ley v Blue Cross & Blue Shield of Michigan, 136 Mich App 336; 356 NW2d 20 (1984).
Plaintiffs argue that there are two mutual mistakes of fact: (1) that the soil characteristics of the east parcel precluded an on-site sewage system, and (2) that the Antrim County Department of Health would never issue a sewage permit. Based upon these alleged mutual mistakes, plaintiffs seek rescission of the contract or, in the alternative, reformation of the land contract to reflect the fair market value of the property.
A contract may be rescinded because of a mutual mistake of the parties, however, this equitable remedy is granted only in the sound discretion of the trial court. Lenawee Co Bd of Health v Messerly, 417 Mich 17, 26; 331 NW2d 203 (1982). Harris v Axline, 323 Mich 585; 36 NW2d 154 (1949). The determination of whether plaintiffs are entitled to rescission involves a bifurcated inquiry: (1) was there a mistaken belief entertained by one or both of the parties to a contract? and (2) if so, what is the legal significance of the mistaken belief?
A contractual mistake "is a belief that is not in accord with the facts.” 1 Restatement Contracts, 2d, § 151, p 383. The erroneous belief of one or both of the parties must relate to a fact in existence at the time the contract is executed. That is to say, the belief which is found to be in error may not be, in substance, a prediction as to a future occurrence or non-occurrence. [Lenawee Co, supra, p 24. Citations omitted.]
At the time the parties executed the land contract, they believed that the health department would not issue a permit for an on-site septic tank because of the heavy clay composition of the soil on the east parcel. This belief proved to be errone ous because, after purchasing the property, defendant discovered a sand and gravel area on the east parcel which proved suitable for an on-site septic tank. As a result, he was issued the permit which plaintiffs unsuccessfully sought. Contrary to the parties’ belief, the east parcel was perkable. Thus, when the parties entered into the land contract they were laboring under a mutual mistake of fact, and we must determine the legal significance of that mistaken belief.
In Lenawee Co, supra, pp 26-28, the Supreme Court criticized its prior decisions which distinguished mistakes affecting the essence of consideration from those which go to the quality or the nature of the thing bargained for. Noting that such distinctions do not provide a satisfactory analysis of the nature of the mistake sufficient to invalidate a contract, the Supreme Court held that a case-by-case analysis is the better approach. Lenawee Co, supra, p 29. Under this approach, rescission is appropriate where "the mistaken belief relates to a basic assumption of the parties upon which the contract is made, and which materially affects the agreed performances of the parties.” Id. Rescission is not available, however, to relieve a party who has assumed the risk of loss in connection with the mistake. Lenawee Co, supra, p 30.
In this case, the parties erroneously assumed that the east parcel was not suitable for on-site sewage disposal. Unlike Lenawee Co, however, the erroneous assumption does not materially affect the agreed performances of the parties. In Lenawee Co, the parties to the land contract believed the land was suitable for human habitation and could be utilized to generate rental income. Their erroneous assumptions precluded the vendees’ intended use of the land. In this case, defendant bought the land with the intent of building a home on the east parcel even though he would have to bear the cost of installing an expensive system to pump the sewage to the west parcel.
Even if we were to determine that the mutual mistake related to a basic assumption and materially affected the agreed performance of the parties, we do not believe rescission of the contract would be appropriate. In cases of mistake by two equally innocent parties, this Court, in the exercise of its equitable powers, must determine which blameless party should assume the loss resulting from the misapprehension they shared. Lenawee Co, supra, p 31. We do so by examining our notions of what is reasonable and just under all the circumstances.
In this case, equity suggests that the sellers should assume the loss of the mistake. Guided by the standard announced in 1 Restatement Contracts, 2d, § 154, pp 402-406, we look to whether the parties have agreed to the allocation of the risk between themselves. The "as is” clause incor porated into the contract is a persuasive indication that the parties intended that defendant would bear both the risks and the benefits of the present condition of the property.
Plaintiffs alternatively sought reformation of the land contract. The burden of proof is upon the party seeking reformation to present clear and convincing evidence that the contract should be reformed in order to carry out the true agreement of the parties. E R Brenner Co v Brooker Engineering Co, 301 Mich 719, 724; 4 NW2d 71 (1942). In order to decree the reformation of a written instrument on the ground of mistake, the mistake must be mutual and common to both parties to the instrument. Stevenson v Aalto, 333 Mich 582, 589; 53 NW2d 382 (1952). If the asserted mutual mistake is with respect to an extrinsic fact, reformation is not allowed, even though the fact is one which would have caused the parties to make a different contract, because courts cannot make a new contract for the parties. Brenner, supra, p 724; Marshall v Marshall, 135 Mich App 702, 710-711, n 3; 355 NW2d 661 (1984).
In this case, there was no mistake as to the instrument actually entered into. The mutual mistake is not of an intrinsic fact. The land contract reflects the agreement of the parties and, thus, is incapable of reformation.
Finally, plaintiffs argue that summary judgment should not have been granted prior to the close of discovery. It is well established that summary judgment is premature if it is granted before discovery on the disputed issues is complete. Kortas v Thunderbowl & Lounge, 120 Mich App 84, 87; 327 NW2d 401 (1982). From our careful review of the record, we conclude that there were no material issues of fact to be resolved, and therefore, summary judgment was not prematurely granted.
Affirmed.
A & M Land Development Co v Miller, 354 Mich 681; 94 NW2d 197 (1959).
Sherwood v Walker, 66 Mich 568; 33 NW 919 (1887).
Plaintiffs argue that they never would have sold the land had the east parcel been "capable of any sewage system or supporting a residence.” We find this argument without merit as it is clear from the record that plaintiffs could have built a home on the east parcel and pumped the sewage to the west parcel, albeit at some expense.
Section 154, which was cited with approval in Lenawee Co, supra, p 30, n 12, reads as follows:
§ 154. When a Party Bears the Risk of a Mistake
A party bears the risk of a mistake when
(a) the risk is allocated to him by agreement of the parties, or
(b) he is aware, at the time the contract is made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient, or
(c) the risk is allocated to him by the court on the ground that it is reasonable in the circumstances to do so.
The land contract contained the following provision:
(m) Purchaser accepts the property as is, and with knowledge that Seller has been informed by District Health Department No. 3 that the soil character is such that any applications to install an on-site sewage disposal system will be denied. | [
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Shepherd, J.
Defendant was convicted by a jury of criminal sexual conduct in the fourth degree, MCL 750.520e(l)(a); MSA 28.788(5)(l)(a). He then received a bench trial on the supplemental information charging him as a habitual offender, MCL 769.10; MSA 28.1082. Following his conviction on that charge, defendant was sentenced on March 5, 1982, to a term of from 24 to 36 months imprisonment. He appeals as of right.
Facts
The complainant, a 13-year-old ninth-grader who had twice cared for defendant’s children prior to July 18, 1981, testified at trial as follows.
Defendant’s girlfriend came to her house and asked her to babysit for defendant’s children during the evening of July 18, 1981. She and defendant’s girlfriend got into defendant’s car. Defendant told the complainant that they had to go to his cousin’s house to pick up the children, but instead he drove to Sterling State Park. Once in the parking lot at the park, defendant told his girlfriend to look for the children. When she had left, defendant told the complainant to get into the front seat so he would not have to turn around to talk to her.
After the complainant moved to the front seat, defendant began talking to her about modeling. He indicated to her that he was an agent of some sort and that he would fly her in his private plane to a one-hundred-thousand dollar home he had for her in Arizona. He told her that he would take her to Ann Arbor one weekend so his friend could take pictures of her so that she could become a model.
The defendant then began touching her in various places. Defendant twice put his hand on her leg and each time he complied when complainant told him to remove it. Defendant then put his hand inside the complainant’s underpants; when she told him to remove it, he told her he was checking to see if she had an appendectomy scar. He subsequently removed his hand upon her demand but began telling her how he had been in jail in Arizona. At that point, defendant put his hand up the back of her shirt. He then placed his hand on her breast underneath her underclothes. When the complainant told him to remove his hand, defendant did so; he then shook her hand and told her he was glad to be her agent.
The complainant testified that at this point she still thought that defendant was an agent of some type but that she was frightened. They were about 40 to 45 minutes from her home and she knew no one who lived in the Sterling State Park area. Defendant’s girlfriend eventually returned to the car after about one-half hour. Defendant then drove the complainant home where he paid her three dollars and allowed her to go into her house.
Defendant testified at trial that he never touched the complainant.
On appeal, defendant raises four issues, none of which requires reversal.
I
Defendant first argues that the prosecutor failed to file the supplemental information in a timely manner and defendant’s habitual offender conviction must therefore be vacated. Defendant’s argument is patently meritless.
The original information charging defendant with criminal sexual conduct in the fourth degree was filed in the circuit court on September 16, 1981. The supplemental information was filed on September 18, 1981, two days later, and the day on which defendant was arraigned. We find a two-day delay between the filing of informations to fall within the requirements for prompt filing of a supplemental information. See People v Fountain, 407 Mich 96; 282 NW2d 168 (1979). Although People v Shelton, 412 Mich 565; 315 NW2d 537 (1982), which defines "promptly” to mean generally not more than 14 days after a defendant’s arraignment in circuit court on the underlying felony, had not been decided at the time of defendant’s arraignment or trial, we find its logic persuasive. At any rate, we do not believe that the prosecutor was required to file the supplemental information simultaneously with the information on the most recent felony. See People v Martin, 100 Mich App 447; 298 NW2d 900 (1980); People v Mohead, 98 Mich App 612; 295 NW2d 910 (1980). The two-day delay did not render the filing tardy.
II
The second issue raised by defendant is somewhat more substantial. Defendant argues that no evidence was presented at trial to show that defendant used force or coercion to effectuate the sexual contact complained of here. Since force or coercion is an element of criminal sexual conduct in the fourth degree, defendant argues that his conviction must be reversed.
The trial court instructed the jury on the element of force or coercion as follows:
"Further, that the defendant used force, this is the third element, that the defendant used force or coercion to commit the sexual act. The term force or coercion— the term force or coercion means the use of actual physical force by the defendant, or any actions sufficient to create a reasonable fear of dangerous consequences. It is sufficient force if the defendant overcame the complainant through actual application of physical force or physical violence. It is sufficient force if the defendant made the complainant submit by threatening to use force or violence on the complainant, and the complainant believed that the defendant had the present ability to carry out these threats.”
That instruction is in accordance with CJI 20:5:3, which defines use of force or coercion as "the use of actual physical force by the defendant, or any actions sufficient to create a reasonable fear of dangerous consequences”.
The statute governing criminal sexual conduct in the fourth degree reads in pertinent part:
"(1) A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if either of the following circumstances exists:
"(a) Force or coercion is used to accomplish the sexual contact. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(l)(f)(i) to (iv).” MCL 750.520e(l)(a); MSA 28.788(5)(l)(a).
Section 520b(l)(f), MCL 750.520b(l)(f); MSA 28.788(2)(l)(f), provides:
"(f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. Force or coercion includes but is not limited to any of the following circumstances:
"(i) When the actor overcomes the victim through the actual application of physical force or physical violence.
"(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.
"(iii) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, 'to retaliate’ includes threats of physical punishment, kidnapping, or extortion.
"(iv) When the actor engages in the medical treatment or examination of the victim in a manner of for purposes which are medically recognized as unethical or unacceptable.” (Emphasis supplied.)
It is clear that the facts in this case do not indicate force or coercion as specifically described in the circumstances listed in § 520b(l)(f), subds (i)(iv). However, force or coercion is not specifically limited by statute to those examples. MCL 750.520e(l)(a). Therefore, if the facts in this case could reasonably be construed to indicate the presence of force or coercion, defendant’s argument on this issue would lack merit.
We conclude that, on the facts of this case, defendant’s actions were "sufficient to create a reasonable fear of dangerous consequences”, CJI 20:5:3, and, in light of the totality of the circumstances, were such that they could have been found by the jury to constitute coercion.
Little case law exists in Michigan defining the terms "force” or "coercion” in the context presented here. The only case offered by defendant, Moran v People, 25 Mich 356 (1872), is distinguishable on both its facts and law. The defendant there was charged with having raped a 16-year-old girl who had been left with him by her father for treatment of consumption. The jury was charged that, if it found that defendant’s representations were false and fraudulent, that the complaining witness believed them and therefore consented to the defendant’s solicitations, and that she would not otherwise have yielded, they should find defendant guilty of rape. On appeal, the Supreme Court reversed, noting that the jury instruction left out all idea of force as a necessary element of the crime charged. The jury was told, in effect, that the defendant might be found guilty of rape though he neither used nor threatened to use any force whatever in case of the complaining witness’s refusal. The Court stated:
"If the statute, or the definition of rape, did not contain the words 'by force’ or 'forcibly,’ doubtless a consent procured by such fraud as that referred to, might be treated as no consent; but the idea of force can not thus be left out and ignored, nor can such fraud be allowed to supply its place, though it would doubtless supply, and satisfy, all other terms of the definition.
"In fact, we think the terms of the statute in reference to force, are satisfied by any sexual intercourse to which the woman may have been induced to yield, only through the constraint produced by the fear of great bodily harm, or danger to life or limb, which the prisoner has, for the purpose of overcoming her will, caused her to apprehend as the consequence of her refusal, and without which she would not have yielded.” Moran, supra, pp 364-366.
In the instant case, however, there was no consent or yielding to the touching by the complainant such as was induced by fraud in Moran. Further, the statute in question in the instant case does not require that there be actual force — it may also be satisfied by a finding of coercion or, according to the Criminal Jury Instructions and as intimated in Moran, even a finding of a reasonable fear of dangerous consequences. Finally, the specific means of making sexual contact in Moran, via medical treatment, is now defined as force or coercion by statute. MCL 750.520b(l)(f)(iv); MSA 28.788(2)(l)(f)(iv).
In the instant case, while defendant did not use actual violence or verbally threaten the complainant with violence, we believe that there was sufficient evidence of coercion to enable the jury to convict defendant of criminal sexual conduct in the fourth degree. While we agree with defendant that his promises of a house, trips, and a modeling career came closer to being fraud or trickery than force or coercion, defendant did not stop with promises. He repeatedly and intimately touched the complainant despite her continued requests and orders to defendant to remove his hands from her. The complainant was only 13 years old. Defendant was an older and presumably stronger man. Defendant took the complainant to a state park far from her home. Complainant knew no one who lived nearby and testified that she was frightened. Given the totality of these circumstances, it could certainly be inferred that a coercive atmosphere existed and that defendant knew, or should have known, that his actions were coercive to a child.
Furthermore, given the above facts, the jury could have concluded that the complainant possessed a reasonable fear of dangerous consequences. As has been noted, the complainant testified that she was afraid. We believe her fear to have been reasonable given the vulnerable position of a young girl taken to an isolated and distant location by an older and stronger adult male.
We do not hold here that the type of actual conduct described in the instant case will always satisfy the "force or coercion” element. Were the victim older or had the undesired touching occurred in a place from which the victim could easily leave or from which she could summon help, a fear of dangerous consequences might not be deemed reasonable and an atmosphere of coercion might not exist. Each case must be examined on its own facts to determine whether force or coercion is indeed present. As the Court of Appeals of Maryland said in State v Rusk, 289 Md 230, 246; 424 A2d 720 (1981):
"Just where persuasion ends and force begins in cases like the present is essentially a factual issue, to be resolved in light of the controlling legal precepts. That threats of force need not be made in any particular manner in order to put a person in fear of bodily harm is well established. Hazel [v State, 221 Md 464; 157 A2d 922 (1960)]; Dumer v State, 64 Wis 2d 590; 219 NW2d 592 (1974). Indeed, conduct, rather than words, may convey the threat. See People v Benavidez, 255 Cal App 2d 563; 63 Cal Rptr 357 (1967); State v Douglas, 256 La 572; 237 So 2d 382, death sentence vacated 408 US 937; 92 S Ct 2864; 33 L Ed 2d 756 (1970); State v Bouldin, 153 Mont 276; 456 P 2d 830 (1969); Blotkamp v State, 45 Md App 64; 411 A 2d 1068 (1980).”
Similarly, in discussing whether consent obtained through fear is a valid consent, it has been said:
" 'Consent of the woman from fear of personal violence is void. Even though a man lays no hands on a woman, yet if by an array of physical force he so overpowers her mind that she dares not resist, or she ceases resistance through fear of great harm, the consummation of unlawful intercourse by the man is rape. The age of the prosecutrix is always important to be considered in such cases.’ ” State v Carter, 265 NC 626, 630; 144 SE2d 826 (1965), quoting 44 Am Jur, Rape, § 13, p 910.
Citing Carter, supra, the Court of Appeals of North Carolina stated that "the age of the woman is an important consideration in determining what situations would reasonably induce submission due to fear or coercion”. State v Ricks, 34 NC App 734, 735; 239 SE2d 602 (1977). While, like Carter, Ricks was a rape case and involved the question of whether consent had been obtained, we believe that the age of the victim is also an important consideration in determining which situations would inspire a reasonable fear of dangerous consequences or would be coercive to a particular victim. We therefore conclude that sufficient evidence existed from which a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, i.e., that force or coercion were present in the instant case.
Ill
Defendant next argues that his habitual offender conviction must be reversed because the information charged him with having been convicted of three prior felonies, MCL 769.12; MSA 28.1084, when defendant had in fact only been convicted of one prior felony and the appropriate habitual offender statute would have been MCL 769.10; MSA 28.1082. The proofs at trial showed, and the trial court found, that defendant had had only one prior felony conviction. Defendant was sentenced appropriately, according to the sentencing terms of MCL 769.10(l)(a); MSA 28.1082(l)(a), and was given a sentence the maximum of which was 1-1/2 times the maximum term possible for the underlying felony. It is clear from the record that, although the statute was incorrectly cited in the information, defendant was convicted on the proper charge.
The mere erroneous citation of a staute in an information does not mandate reversal, particularly in the instant case. See People v Hopper, 274 Mich 418, 421; 264 NW 849 (1936); People v Dayton, 18 Mich App 313, 316; 171 NW2d 57 (1969). Furthermore, since defendant failed to object to the error at trial, there is no issue for review on appeal. People v Hernandez, 80 Mich App 465, 468; 264 NW2d 343 (1978), lv den 406 Mich 938 (1979); People v Fuzi, 46 Mich App 204, 209-210; 208 NW2d 47 (1973). The defect could easily have been cured at trial had a timely objection been made. People v Willett, 110 Mich App 337, 343; 313 NW2d 117 (1981); People v Mahone, 97 Mich App 192, 195; 293 NW2d 618 (1980).
IV
Finally, defendant argues that fourth-degree criminal sexual conduct is not a felony for purposes of the habitual offender statute since it is designated a misdemeanor by its own terms. We disagree. Although the conduct punished in the statute is termed a misdemeanor, it is punishable by up to two years imprisonment. The Code of Criminal Procedure defines felony as:
"[A] violation of a penal law of this state for which the offender, upon conviction, may be punished by death or imprisonment for more than one year, or an offense expressly designated by law to be a felonly.” MCL 761.1(g); MSA 28.843(g). .
See People v Rosecrants, 88 Mich App 667; 278 NW2d 713 (1979), wherein it was held that resisting a police officer, a misdemeanor under the Penal Code, was a felony for the purposes of charging the defendant as a second felony of fender. See, also, People v Reuther, 107 Mich App 349; 309 NW2d 256 (1981); People v Stiles, 99 Mich App 116; 297 NW2d 631 (1980), lv den 410 Mich 891 (1981); People v Davis, 89 Mich App 588, 595-597; 280 NW2d 604 (1979). We conclude, therefore, that the offense of criminal sexual conduct in the fourth degree is a felony for the purposes of the habitual offender statutes despite its express designation as a misdemeanor.
Conclusion
Defendant has failed to convince this Court that there exists any error sufficient to justify the reversal of his conviction.
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Per Curiam.
Auto Club Insurance Association and State Farm Fire and Casualty Insurance Company filed cross claims against appellant Liberty Mutual Insurance Company for contribution of no-fault benefits they paid to plaintiff as the result of injuries sustained in an automobile-pedestrian accident. The trial court granted summary judgment and entered a judgment in favor of Auto Club and State Farm. Liberty appeals as of right. We reverse.
The accident in question occurred at the intersection of Woodward and Alexandrine in Detroit. Albert Philpotts, who was insured by Auto Club, was driving south on Woodward and entered the intersection at Alexandrine. A vehicle driven by Maureen Daly and insured by State Farm struck Philpotts’s vehicle as Daly entered the intersection while driving westbound on Alexandrine. After the collision, Philpotts’s vehicle veered in a westerly direction and struck plaintiff, who was walking on a sidewalk. Daly’s vehicle veered south and struck a vehicle driven by Eugene Ellis, which was facing northbound on Woodward and was stopped for the traffic signal at Alexandrine. Ellis’s vehicle was insured by Liberty.
Auto Club and State Farm filed cross claims against Liberty for contribution of no-fault benefits pursuant to MCL 500.3115(1); MSA 24.13115(1), which addresses claims by persons accidentally injured while not occupying a vehicle against insurers of owners and operators of "motor vehicles involved in the accident.” The trial court ruled that Ellis’s vehicle was "involved in the accident” for purposes of § 3115 and accordingly ordered Liberty to pay a pro rata share of the no-fault benefits paid to plaintiff. On appeal, Liberty contends that this ruling was erroneous. We agree.
This Court has on two occasions held on facts akin to the circumstances of this case that in order for a vehicle to be "involved in the accident” within the meaning of MCL 500.3115(1); MSA 24.13115(1), there must be some activity, with respect to the vehicle, which somehow contributes to the happening of the accident. See Stonewall Ins Group v Farmers Ins Group, 128 Mich App 307; 340 NW2d 71 (1983), and Bachman v Progressive Casualty Ins Co, 135 Mich App 641; 354 NW2d 292 (1984).
In the instant case, Ellis’s vehicle clearly was not involved in the activity contributing to the happening of the accident. Ellis was merely stopped at the red light when one of the vehicles involved in the original collision veered and struck his vehicle. Thus, under the holdings of Stonewall and Bachman, the trial court’s conclusion of law that Ellis was involved in the accident within the meaning of § 3115 is erroneous. The order and judgment are set aside and the case is remanded for entry of an Order of summary judgment in favor of Liberty.
Reversed and remanded. | [
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Per Curiam.
Defendant Commissioner of Insurance appeals as of right from circuit court orders directing disclosure of plaintiffs Health Maintenance Organizations’ employees’ salaries only in the aggregate and denying the commissioner’s motion for reconsideration and reversal of summary judgment on behalf of plaintiffs. The trial court’s decision prohibits defendant from disclosing individual salary information under the Freedom of Information Act (fqia), MCL 15.231 et seq.; MSA 4.1801(1) et seq. The hmos sued for declaratory and injunctive relief alleging that each plaintiff was an hmo subject to an order of the commissioner requiring hmos to file with the Michigan Insurance Bureau an annual report supplemental schedule containing salary information on individ ual hmo employees. The complaint alleged tht the commissioner’s order was without statutory authority or, if it did have statutory authority, the information should be kept confidential under the foia as an unwarranted invasion of individual privacy. The complaint further alleged that public disclosure of the information made it difficult for hmos to obtain qualified administrative and medical personnel.
An ex parte temporary order was issued enjoining the commissioner from requiring the filing of the salary information and from releasing such information to the public. A show-cause hearing on the temporary restraining order was held, at which time Health Central abandoned its claim that the commissioner could not obtain the salary information. Ingham Circuit Judge James T. Kali-man ruled that the temporary restraining order would remain in effect and issued a written opinion and order in which he found that:
[M]aking this information available to the public is an invasion of privacy. This Court is satisfied that this serves no public purpose. There is no harm to the public since the actual salaries, benefits, etc., are scrutinized by the Insurance Commissioner. Any improper handling or misuse of funds can be corrected by the appropriate action of the Insurance Commissioner.
This Court has weighed the potential benefit and potential harm and finds that public disclosure of this information could cause a problem in recruiting qualified staff. It is in the public interest for hmos to have the finest medical staff available. Medical doctors have ample opportunities to make good salaries and working for an hmo should not expose them to possible harrassment [sic]. This Court is satisfied that the public is protected by the Insurance Commissioner [sic] having this detailed information.
Judge Kallman then ordered that the commissioner could continue to require hmos to provide salary information, but that the information was to be kept from public disclosure.
The case was subsequently reassigned to Judge James R. Giddings, who granted plaintiffs’ subsequent summary judgment motion for the reasons which Judge Kallman had set forth in his opinion. When the commissioner moved for reconsideration, Judge Giddings heard arguments and denied the motion. He discounted the commissioner’s argument that Health Central had failed to allege an independent right of privacy outside of the foia as required by Supreme Court interpretations in reverse foia litigation. Instead, Judge Giddings assumed that the proper allegation existed rather than having Health Central amend its complaint and then rehear the matter. He then found a common-law right of privacy in the hmo employees’ salaries and affirmed his judgment.
On October 24, 1984, the parties appeared before Judge Giddings with a proposal that the commissioner be allowed to disclose aggregate salary information to the public. Judge Giddings concluded that the aggregate information (containing no names of individual administrative employees) would serve the public interest of containing health care costs without undue infringement upon employees’ privacy, and he granted an order in conformity with the proposal.
The commissioner now seeks reversal of Judge Giddings’ orders and asks this Court to hold that the salary information of individual hmo employees constitutes a public record available for public inspection.
This is a "reverse foia” case, where the plaintiff seeks to prevent disclosure, rather than compel disclosure, of information contained in a govern ment agency file. The foia requires disclosure of all public records and only authorizes nondisclosure, at the agency’s discretion, under certain enumerated exceptions. Thus, the foia did not create any right to prevent disclosure, and "[a]ny asserted right by third parties to prohibit disclosure must have a basis independent of the foia.” Tobin v Civil Service Comm, 416 Mich 661, 668-669; 331 NW2d 184 (1982). "In effect, a reverse foia suit to prevent disclosure of information within an foia exemption must be evaluated as if the foia did not exist.” 416 Mich 670.
In their complaint, the plaintiffs failed to recognize and allege an independent common-law basis for their claim that employee salary information cannot be disclosed by the commissioner. Instead, plaintiffs relied upon § 13(1)(a) of the foia. However, Judge Giddings judicially "inserted” into plaintiffs’ complaint an allegation of the common-law right of privacy and rendered judgment based upon the common-law right. The procedure, though curious, apparently did not offend the defendant who did not challenge the procedure either below or on appeal. Since, as the trial court observed, the plaintiffs could have easily corrected the defective pleading by amendment (GCR 1963, 118, now MCR 2.118), we consider the judgment on an unpled theory to be harmless error.
More troubling, however, is the plaintiffs’ apparent failure, prior to commencing suit in the circuit court, to seek and obtain a declaratory ruling from the commissioner under provisions of the Administrative Procedures Act (apa) MCL 24.201 et seq.; MSA 3.560(101) et seq. MCL 24.263; MSA 3.560(163) provides in relevant part:
On request of an interested person, an agency may issue a declaratory ruling as to the applicabil ity to an actual state of facts of a statute administered by the agency or of a rule or order of the agency. ... A declaratory ruling is subject to judicial review in the same manner as an agency final decision or order in a contested case.
MCL 24.264; MSA 3.560(164) further provides:
Unless an exclusive procedure or remedy is provided by a statute governing the agency, the validity or applicability of a rule may be determined in an action for declaratory judgment when the court finds that the rule or its threatened application interferes with or impairs, or imminently threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The action shall be filed in the circuit court of the county where the plaintiff resides or has his principal place of business in this state or in the circuit court for Ingham county. The agency shall be made a party to the action. An action for declaratory judgment may not be commenced under this section unless the plaintiff has ñrst requested the agency for a declaratory ruling and the agency has denied the request or failed to act upon it expeditiously. This section shall not be construed to prohibit the determination of the validity or applicability of the rule in any other action or proceeding in which its invalidity or inapplicability is asserted. [Emphasis added.]
Finally, MCL 24.301; MSA 3.560(201) provides for judicial review, only after all administrative remedies available within an agency have been exhausted, unless the court determines that immediate review of a preliminary, procedural or intermediate agency action or ruling is required to provide an adequate remedy.
Thus, under these provisions, a plaintiff seeking to prevent foia disclosure may obtain judicial review of an agency’s decision to disclose informa tion, but only after an agency declaratory ruling has been properly requested. Following the procedural rules is imperative to later obtaining judicial review:
Declaratory rulings under § 63 of the apa serve two distinct purposes. They allow a party to obtain a binding determination of rights from an agency in the nature of a declaratory judgment. This creates greater flexibility for the agency and for those dealing with it. 1 Cooper, State Administrative Law (1965), p 240. The section also allows judicial review of such a declaratory determination. This provides an unparalleled opportunity for judicial review of an agency action without the need to exhaust other administrative remedies. Lebenbom, Sections 63 & 64: Declaratory Rulings, 58 MSBJ 398 (1979). A refusal to issue a declaratory ruling upon a proper request is also subject to judicial review. Human Rights Party v Michigan Corrections Comm, 76 Mich App 204; 256 NW2d 439 (1977).
Neither purpose served by § 63 of the apa would be promoted by allowing the petitioner to circumvent the procedures for obtaining a declaratory ruling. The formality imposed by the department’s rules for declaratory rulings, when followed, ensures that the department will treat requests for binding rulings with adequate care and deliberation.
Circumventing the rules promulgated for declaratory rulings also hinders effective judicial review. Declaratory rulings are subject to judicial review in the same manner as agency final decisions or orders in contested cases. MCL 24.263; MSA 3.560(163). Judicial review of a final agency determination under the apa is limited to the record; the final decisions of an agency must include findings of fact and conclusions of law. Human Rights Party, supra. [Greenbriar Convalescent Center, Inc v Dep’t of Public Health, 108 Mich App 553, 561-562; 310 NW2d 812 (1981), lv gtd 412 Mich 870 (1981).]
Under the apa, a reverse foia request must follow the established procedures. That is, first there must be a request for a declaratory ruling from the relevant agency and, second, there must be a petition for judicial review of the declaratory ruling if the ruling is unsatisfactory. Only then can a court examine the foia determination and, even then, only under the apa standards. Most likely, a petition for review in a reverse foia case will assert a constitutional, statutory or common-law right of privacy reviewable under MCL 24.306(1)(a) or (e); MSA 3.560(206)(1)(a) or (e) as arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion. In the instant case, however, the required procedures were not followed. Plaintiffs’ pleadings and the circuit court file disclosed nothing to suggest that the hmos ever requested or received a declaratory ruling from the insurance commissioner predicated upon which they could properly seek judicial review. The circuit court complaint simply avers that "plaintiffs have made numerous attempts to reach an agreement with the Commissioner of Insurance on this matter to no avail.” This failure of the plaintiffs to follow the procedures for administrative review as set forth in the apa raises serious jurisdictional problems.
However, the most egregious jurisdictional problem, and the one upon which we ultimately base our decision to reverse, is the question of standing of the plaintiffs to bring this suit. The plaintiff hmos maintain that the disclosure of their employees’ salaries would constitute a common-law invasion of privacy by the "public disclosure of embarrassing private facts.” Tobin v Civil Service Comm, supra, p 672. Following the abandonment at the show-cause hearing of the claim that the commissioner could not obtain the salary information, the focus of both the plaintiffs and the trial court was upon the privacy interest of hmo employees, rather than upon the privacy interests of the named plaintiffs. Nonetheless, the commissioner did not challenge the standing of the hmos to assert their employees’ rights of privacy either below or in this appeal.
The right of privacy is a personal right and cannot ordinarily be asserted by anyone other than the person whose privacy has been invaded. Fry v Ionia Sentinel-Standard, 101 Mich App 724, 730; 300 NW2d 687 (1980); 3 Restatement Torts 2d, § 652I, p 403; 18 ALR3d 873. Plaintiffs’ complaint objected to disclosure of individual salaries, alleging that, as shown by affidavits attached to the complaint, "the filing of this salary and fringe benefit information with the Insurance Bureau has a severe chilling effect on the operations of Plaintiffs and other health maintenance organizations in the State of Michigan and on the ability of Plaintiffs and other hmos to attract and maintain competent and qualified administrative and medical personnel at rates which are competitive with those organizations that do not have to publicly disclose the salaries and other compensations of their employees.”
As previously noted, at the show-cause hearing, the hmos abandoned their claim that the commissioner could not obtain the salary information and the court based its ruling upon the common-law privacy right to exempt individual employees’ salaries from public disclosure. However, none of the individual employees whose rights served as the basis for the trial court’s ruling are parties to this case. Nor do the hmos have a privacy right of their own to assert. Although the focus of proceedings below was the individual employees’ rights to privacy, plaintiffs’ complaint also alleged that the plaintiffs were damaged by difficulty in obtaining employees due to possible disclosure of salaries. Read broadly, the trial court could have determined that the allegation pled a threat to the plaintiff organizations’ privacy. However, the right of privacy is primarily designed to protect the feelings and sensibilities of human beings and does not protect artificial entities. Clinton Community Hospital Corp v Southern Maryland Medical Center, 374 F Supp 450, 456 (D Md, 1974), aff'd 510 F2d 1037 (CA 4, 1975), cert den 422 US 1048; 95 S Ct 2666; 45 L Ed 2d 700 (1975). In Clinton Community Hospital Corp, the court said:
It is clear that corporations do not enjoy a right to privacy. In United States v Morton Salt Co, 338 US 632, 652; 70 S Ct 357, 368; 94 L Ed 401 (1950), the Supreme Court ruled that corporations could not resist an ftc subpoena on invasion of privacy grounds, saying,
[C]orporations can claim no equality with individuals in the enjoyment of a right to privacy. [Citation omitted.] They are endowed with public attributes. They have a collective impact upon society from which they derive the privilege of acting as artificial entities.
In Hale v Henkel, 201 US 43, 78; 26 S Ct 370, 380; 50 L Ed 652 (1906), Justice Harlan concurring, said,
In my opinion, a corporation — "an artificial being, invisible, intangible, and existing only in contemplation of law” — cannot claim the immunity given by the 4th Amendment; for it is not of the "people” within the meaning of that Amendment. Again, 62 Am Jur 2d, Privacy, § 11, p 692 reads,
Since the right of privacy is primarily designed to protect the feelings and sensibilities of human beings rather than to safeguard property, business, or other pecuniary interests, the courts have denied this right to corporations and other institutions.
In CNA Financial Corp v Local 743 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 515 F Supp 942 (ND Ill, 1981), the plaintiff sought an injunction against union campaigning in part based upon invasion of privacy. Cna Financial Corp alleged a breach of privacy in the union’s appropriation of a list of employee names and addresses. The trial court’s dismissal of the privacy claim was affirmed:
The right of privacy is a personal right designed to protect persons from unwanted disclosure of personal information. It does not extend to protect corporations from disclosure of information acquired or maintained in the regular course of business. . . . Neither may cna assert the privacy rights of its employees under well-settled principles governing standing. Warth v Seldin, 442 US 490, 95 S Ct 2197, 45 L Ed 2d 343 (1979); Sierra Club v Morton, 405 US 727, 92 S Ct 1361, 31 L Ed 2d 636 (1971). Accordingly, defendants’ motion to dismiss Count viii of the complaint will be granted. [515 F Supp 946-947.]
A suit for declaratory judgment is a judicial procedure whereby a court renders an opinion on a question of law. A court may not decide hypothetical issues, and where no case of actual controversy exists, the circuit court lacks subject-matter jurisdiction to enter a declaratory judgment. Shavers v Attorney General, 402 Mich 554, 588; 267 NW2d 72 (1978), cert den sub nom Allstate Ins Co v Attorney General, 442 US 934; 99 S Ct 2869; 61 L Ed 2d 303 (1979); Recall Blanchard Committee v Secretary of State, 146 Mich App 117, 121; 380 NW2d 71 (1985). To have standing, a party must show a direct effect to his legal interest. Human Rights Party v Michigan Corrections Comm, 76 Mich App 204, 213; 256 NW2d 439 (1977), lv den 402 Mich 906 (1978). A wrong to one gives no right of action to another whom it incidentally injures, S C Hall Lumber Co v Gustin, 54 Mich 624, 632; 20 NW 616 (1884), and the incidentally injured one cannot sue on behalf of those whose rights they assert. Mercer v Michigan State Bd of Ed, 379 F Supp 580, 584 (ED Mich, 1974), aff'd 419 US 1081; 95 S Ct 673; 42 L Ed 2d 678 (1974).
In Human Rights Party, supra, pp 211-212, this Court considered whether the plaintiff political party had standing to assert violations of constitutional rights of state prison inmates. The Court, considering declaratory judgments under the apa, concluded that unless aggrieved prisoners were added to the suit by joinder, the plaintiff would be without standing to pursue the suit. In doing so, the Court cited Wisconsin’s Environmental Decade, Inc v Public Service Comm of Wisconsin, 69 Wis 2d 1, 9-10; 230 NW2d 243, 247-248 (1975), which considered the meaning of the terms "aggrieved” person, "directly affected” by the agency decision, and that the decision "directly affect the legal rights, duties or privileges” of the person seeking review. The Wisconsin Supreme Court, in turn, likened its own analysis to the two-pronged standing analysis outlined by the United States Supreme Court in Ass’n of Data Processing Service Organizations v Camp, 397 US 150, 153, n 7; 90 S Ct 827; 25 L Ed 2d 184 (1970), and Barlow v Collins, 397 US 159; 90 S Ct 832; 25 L Ed 2d 192 (1970).
That analysis asks: (1) Does the challenged action cause the petitioner injury in fact? and (2) is the interest allegedly injured arguably within the zone of interests to be protected by the statute or constitutional guarantee in question? Justice Brennan, concurring in Barlow, supra, 397 US 172-173, stated that the purpose of the injury in fact re quirement is to bring concreteness and adverseness to a case. An interest meeting the second prong of the test could represent aesthetic, conservational, spiritual, recreational or economic values. The Michigan court rule for declaratory judgments, GCR 1963, 521, now MCR 2.605, is sufficiently similar to the "case” or "controversy” requirement of Article III of the United States Constitution to support our adoption of the federal test.
Accordingly, we find that plaintiff hmos have failed to allege injuries that are more than merely conjectural. The line of causation between the commissioner’s disclosure of individual hmo employee salaries and the alleged "severe chilling effect” on the operations of the hmos is not readily apparent on the record presented. Most importantly, the hmos raise only the putative right of privacy of their employees and fail to show the existence of any injury to themselves of sufficient immediacy and ripeness to warrant judicial intervention. See Warth v Seldin, supra.
As we recently reiterated in J F Cavanaugh & Co v Detroit, 126 Mich App 627, 632; 337 NW2d 605 (1983):
By deciding issues absent an actual controversy, this Court could impede the progress of future litigants who may be involved in a real factual controversy. Stockler v Treasury Dep’t, 75 Mich App 640, 645; 255 NW2d 718 (1977), app dis 435 US 963; 98 S Ct 1598; 56 L Ed 2d 54 (1978).
We therefore conclude that the circuit court was without subject-matter jurisdiction to determine the question before it. The decision of the circuit court is reversed and remanded for further proceedings not inconsistent with this opinion. | [
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O’Connell, J.
In these consolidated appeals, plaintiff challenges an order denying reconsideration of the involuntary dismissal of its complaint and a subsequent order granting defendants an award of their costs and attorney fees. We affirm.
Defendants owned two parcels of heavily wooded land that plaintiff agreed to purchase by land contract. Under the terms of the purchase agreements, plaintiff was authorized to develop the properties for recreational and residential use during the term of the contracts, but was prohibited from removing timber for commercial purposes beyond the extent necessary for authorized development.
Before closing on the properties, plaintiff attempted to negotiate new sales agreements. Rather than purchasing the properties by land contract, plaintiff offered a substantial down payment, with defendants to hold a mortgage note for the balance. Under such an arrangement, legal title would have passed to plaintiff immediately, thereby circumventing the timber removal restriction. This second offer, which would have superseded the parties’ original agreements, was not accepted, although it is not clear whether it was definitively rejected.
Unbeknownst to defendants, plaintiff had contracted with a timber harvester two weeks after the purchase agreements were executed to remove all trees on the properties that were over a certain diameter. Defendants learned of this when they discovered an employee of the timber harvester marking trees on the properties. Defendants refused to close on the properties, and plaintiff brought suit, seeking specific performance. After plaintiff presented its evidence to the bench, defendants moved for a "directed verdict,” which the court granted on the basis of plaintiff’s fraud in misrepresenting its intention to harvest, the timber. The court then denied plaintiff’s motion for reconsideration.
Defendants later moved for an award of costs and attorney fees. The purchase agreements contained provisions to the effect that the prevailing party in any action to enforce the agreements would be entitled to such expenses. The court granted this motion on the basis of the contractual provisions, awarding defendant approximately $34,000 in costs and fees.
We treat defendants’ motion for a "directed verdict” as a motion for an involuntary dismissal pursuant to MCR 2.504(B)(2). Armoudlian v Zadeh, 116 Mich App 659, 671; 323 NW2d 502 (1982); Angelo Iafrate Co v M .& K Development Co, 80 Mich App 508, 512-513; 264 NW2d 45 (1978). The involuntary dismissal of an action is appropriate where the trial court, when sitting as the finder of fact, is satisfied at the close of the plaintiffs evidence that "on the facts and the law the plaintiff has shown no right to relief.” MCR 2.504(B)(2). Therefore, plaintiff’s suit for specific performance being an equitable action, Godwin v Lindbert, 101 Mich App 754, 757; 300 NW2d 514 (1980), we review the ultimate determination de novo and review for clear error the findings of fact supporting that determination. Webb v Smith (After Remand), 204 Mich App 564, 568; 516 NW2d 124 (1994). A trial court’s findings are clearly erroneous only where "we are left with a definite and firm conviction that a mistake has been made.” Id.
Plaintiff argues that the court erred in finding a fraud to have been perpetratéd where any misrepresentations allegedly made pertained solely to future actions, that is, to the future removal of trees in violation of the purchase agreements. While plaintiff is correct in asserting that, in general, actionable fraud must be predicated on a statement relating to a past or an existing fact, see, e.g., Scott v Harper Recreation, Inc, 444 Mich 441, 446, n 3; 506 NW2d 857 (1993), Michigan also recognizes fraud in the inducement. Fraud in the inducement occurs where a party materially misrepresents future conduct under circumstances in which the assertions may reasonably be expected to be relied upon and are relied upon. Kefuss v Whitley, 220 Mich 67, 82-83; 189 NW 76 (1922); see also Adams v Gillig, 199 NY 314; 92 NE 670 (1910), cited with approval in Kefuss, supra, p 86; Judd v Judd (On Rehearing), 192 Mich 207, 208; 160 NW 548 (1916). Fraud in the inducement to enter a contract renders the contract voidable at the option of the defrauded party. Whitcraft v Wolfe, 148 Mich App 40, 52; 384 NW2d 400 (1985).
In the present case, the trial court made detailed findings of fact on the record and concluded that plaintiif had perpetrated a fraud in inducing defendants to enter into the purchase agreements where plaintiff had no intention of abiding by their terms..The evidence clearly supports such a finding; and the evidence suggesting otherwise is minimal. Therefore, defendants were entitled to rescind the agreements and effected a rescission by refusing to proceed to closing. To the extent that the trial court’s application of Michigan law may be construed to be inconsistent with the discussion above, we decline to reverse where the right result was reached for the wrong reason. Gray v Pann, 203 Mich App 461, 464; 513 NW2d 154 (1994).
Despite our conclusion that the purchase agreements were rescinded, we hold that the contractual attorney fee provisions survive such rescission. The purchase agreements provided that "[i]n the event either party shall prevail in any legal action commenced to enforce this agreement, he shall be entitled to all costs incurred in such action including legal fees.” While the elements of this provision were satisfied, enforcement of this provision meets with one apparent difficulty — the contract was rescinded.
In general, rescission abrogates a contract completely. Livingston v Krown Chemical Mfg, Inc, 394 Mich 144, 152; 229 NW2d 793 (1975). All former contract rights are annulled; it is as if no contract had been made. Cushman v Avis, 28 Mich App 370, 372; 184 NW2d 294 (1970).
However, in the present case, the attorney fee provisions were severable from the purchase agreements proper. A general rule of contract law is that the failure of a distinct part of a contract does not void valid, severable provisions. Robinson v A Z Shmina & Sons Co, 96 Mich App 644, 649; 293 NW2d 661 (1980); see also 17A CJS, Contracts, § 331, p 308. While our review of Michigan case law has uncovered no pertinent discussion of the appropriate factors to consider when determining whether a contractual provision is severable, it is clear that the primary consideration is the intention of the parties. Robinson, supra, p 650; see also 17A CJS, Contracts, §332, pp 309-310; 17A Am Jur 2d, Contracts, § 415, pp 441-442.
In concluding that the parties intended, the attorney fee provisions to be severable, this Court is guided by the remarkably similar case of Reistroffer v Person, 247 Va 45; 439 SE2d 376 (1994). In Reistroffer, the Virginia Supreme Court was faced with a situation in which a party to a canceled real estate sales contract attempted to enforce a contractual provision entitling the prevailing party in a suit regarding the contract to attorney fees. The opposing party argued that one "cannot . . . repudiate the obligation of the contract yet seek a remedy arising from that same contract.” Id., p 49. The court ruled that "[c]learly, the parties intended that the provision regarding attorney’s fees would be severable and would remain in effect .... Therefore, we hold that the attorney’s fees provision is severable.” Id., p 50.
The facts of Reistroffer are directly analogous to the present situation. Here, defendants rescinded the purchase agreements, yet seek to enforce the attorney fee provisions contained in those same purchase agreements. As in Reistroffer, it was the intent of the present parties that if litigation should arise, the loser of that litigation was to reimburse the prevailing party. Quite simply, the parties intended to deter litigation with regard to the contract. Therefore, in keeping with the intent of the parties, we hold that the attorney fee provisions were sevérable from the purchase agreements proper and survive the rescission of the purchase agreements. The trial court acted properly in enforcing them.
We have reviewed plaintiffs remaining arguments and find them unpersuasive. Plaintiff claims that the trial court abused its discretion, Cleary v Turning Point, 203 Mich App 208, 210; 512 NW2d 9 (1994), in admitting certain documents into evidence. However, by failing to object with respect to three of the four documents, plaintiff has failed to preserve for review the issue of their admission. MRE 103(a)(1). With respect to the final document, defendant did object, but only on the ground of relevancy. Only the issue of the relevancy of the document is preserved, Williams v Coleman, 194 Mich App 606, 620; 488 NW2d 464 (1992), an issue that plaintiff does not address on appeal. Therefore, neither do we. Froling v Carpenter, 203 Mich App 368, 373; 512 NW2d 6 (1994). Finally, under the facts of the present case and in light of the testimony ultimately presented, the trial court did not err in allowing an attorney who was a member of defense counsel’s firm to testify, nor did it err in refusing to disqualify the firm.
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Per Curiam;.
In this action brought pursuant to the Michigan Handicappers’ Civil Rights Act (hcra), MCL 37.1101 et seq.; MSA 3.550(101) et seq., plaintiff appeals as of right the trial court’s' grant of summary disposition for defendant pursuant to MCR 2.116(C)(10) (no genuine issue of material fact), and defendant cross appeals as of right from the trial court’s refusal to grant summary disposition for defendant pursuant to MCR 2.116(C)(7) (claim barred by statute of limitations). We affirm.
From 1983 to 1991, plaintiff, who was diagnosed with asthma when she was four years old, worked for defendant hospital in various capacities. In early 1991, plaintiff began working as a mental health worker in defendant’s Northwood Center, an approximately forty-eight-bed psychiatric unit located in a separate building adjacent to the hospital. Plaintiff’s duties at the center included interacting with, checking on, and helping patients throughout the day.
Defendant’s smoking policy states that "[s]moking is prohibited in all areas of the hospital with the exception of one designated area for patients in Northwood Center.” At one time patients were apparently permitted to smoke throughout the center. However, in response to a grievance filed by the center’s mental health workers regarding the dangers of secondhand smoke, defendant designated two ventilated smoking rooms at the center and required patients to smoke only in those rooms. (Contrary to defendant’s stated smoking policy, there are actually two, not one, designated smoking areas.) One of the smoking rooms is for the general patient population and visitors and one is for psychiatric intensive care patients. The smoking room designated for the general patient population and visitors has a cigarette lighter on thé wall, but for safety reasons the smoking room designated for intensive care patients does not have such a lighter. Intensive care patients are required to have their cigarettes lighted by a nurse or mental health worker at an office located about twenty feet from the smoking room and walk to the smoking room to smoke the cigarette.
Defendant’s rationale for permitting patients to smoke at the center is explained in the affidavit of the center’s medical director, Augustus F. Kinzel, M.D. The center’s patients typically have acute psychotic illnesses and are locked inside the center during their stay. They generally remain at the center for about nine days. Many of the patients are addicted to tobacco. They often have a very intense craving to smoke, and denying them cigarettes can lead to increased assaultive behavior, acute withdrawal, or profound depression resulting in further mental and physical deterioration. The decision to permit the patients to smoke reflects the center’s desire to first control the patient’s psychotic episode before addressing the patient’s tobacco addiction.
Plaintiff was required to go into most of the rooms at the center, including both smoking rooms, as part of her duties. Although the air in the smoking rooms was recycled, cigarette smoke continued to permeate the center. Because of sinus and asthma problems, plaintiff left work on February 20, 1992, and sought medical treatment. Plaintiff’s doctor determined that she was the type of asthmatic who was sensitive to airborne irritants, such as tobacco smoke. Her doctor permitted her to return to work on February 29, 1992, but instructed her not to expose herself to tobacco smoke and not to work in a smoke-filled environment.
On February 27, 1992, plaintiff went to defendant’s nursing office and informed defendant that she could not work in a smoke-filled environment. Defendant approved a medical leave of absence for plaintiff effective February 28, 1992. On March 18, Thomas Flack, defendant’s associate relations manager, met with plaintiffs supervisor, Mary Ehresman, and human resources employee Melanie Towne to determine if there was any way that plaintiff could continue to work at the center. They determined that, because plaintiff could not be exposed to smoke and the center permitted smoking, she could not continue to work at the center. Flack and Towne met with plaintiff on March 30, 1992, to discuss plaintiffs leave status and to determine whether she was permanently or temporarily banned from exposure to smoke. In June 1992, defendant offered plaintiff alternative employment as an environmental services aide, or janitor. However, plaintiff did not accept the position because she feared that airborne irritants associated with the work, such as dust and cleaning solvents, would aggravate her asthma and because the job was inappropriate for her skill level. On September 22, 1992, plaintiff wrote a letter to defendant asking defendant to attempt to reasonably accommodate her handicap. Flack met with plaintiff in October 1992 to discuss plaintiff’s request, but the substance or result of this discussion is not apparent from the record.
On January 5, 1993, plaintiff filed suit pursuant to the hcra, MCL 37.1101 et seq.; MSA 3.550(101) et seq., alleging that defendant failed to accommodate her asthma as required by MCL 37.1102(2); MSA 3.550(102)(2). Defendant moved for summary disposition pursuant to MCR 2.116(C)(7) and MCR 2.116(0(10). The trial court granted defendant’s motion pursuant to MCR 2.116(0(10), but denied defendant’s motion pursuant to MCR 2.116(C)(7). Because we find that the trial court properly granted defendant’s motion for summary disposition pursuant to MCR 2.116(0(10), we need not address defendant’s argument that the trial court improperly denied its motion for summary disposition pursuant to MCR 2.116(C)(7).
On appeal, our review of a motion for summary disposition pursuant to MCR 2.116(0(10) is de novo. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992); Coleman-Nichols v Tixon Corp, 203 Mich App 645, 650; 513 NW2d 441 (1994). A motion for summary disposition under MCR 2.116(0(10) tests the factual sufficiency of a claim. Lichon v American Universal Ins Co, 435 Mich 408, 414; 459 NW2d 288 (1990). MCR 2.116(C) (10) permits summary disposition when, except with regard to the amount of damages, there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. In reviewing such a motion, this Court considers the pleadings, affidavits, depositions, admissions, and documentary evidence and grants the benefit of any reasonable doubt to the nonmoving party. Skinner v Square D Co, 445 Mich 153, 161-162; 516 NW2d 475 (1994).
To recover under the hcra, a plaintiff must allege and prove that (1) the plaintiff is "handicapped” as defined by the hcra,* (2) the handicap is unrelated to the plaintiffs ability to perform the duties of a particular job, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute. Merillat v Michigan State Univ, 207 Mich App 240, 245; 523 NW2d 802 (1994); Ashworth v Jefferson Screw Products, Inc, 176 Mich App 737, 743; 440 NW2d 101 (1989). Because we find that plaintiff failed to establish a genuine issue of material fact regarding whether she has been discriminated against in one of the ways set forth in the hcra, specifically whether defendant failed to accommodate plaintiff as required by MCL 37.1102(2); MSA 3.550(102X2), we will assume, without deciding, that plaintiff established a genuine issue of material fact regarding the first two elements of her prima facie case.
Plaintiff argues that defendant failed to satisfy its duty to accommodate as set forth in MCL 37.1102(2); MSA 3.550(102X2). MCL 37.1102(2); MSA 3.550(102)(2) provides:
Except as otherwise provided in article 2, a person shall accommodate a handicapper for purposes of employment, public accommodation, public service, education, or housing unless the person demonstrates that the accommodation would impose an undue hardship.
The hcra places the burden of proof on the handicapper to show that the defendant failed to accommodate the handicap. MCL 37.1210(1); MSA 3.550(210)(1). If the handicapper proves a prima facie case, the defendant bears the burden of producing evidence that an accommodation would impose an undue hardship. Id. If the defendant produces evidence that an accommodation would impose an undue hardship, the handicapper bears the burden of proving by a preponderance of the evidence that an accommodation would not impose an undue hardship. Id.
Plaintiff argues that defendant reasonably could have done two things to accommodate her asthma. First, plaintiff argues that defendant could have banned smoking in the center. Second, plaintiff argues that defendant could have offered her another position in the hospital that did not involve exposure to cigarette smoke or other airborne irritants. We find that plaintiff did not establish a genuine issue of material fact regarding whether defendant reasonably satisfied its duty to accommodate plaintiff. Therefore, we conclude that summary disposition as a matter of law was appropriate.
Defendant’s duty to accommodate plaintiff did not require defendant to ban smoking at the center. As the party opposing the motion for summary disposition, it was plaintiff’s burden to show that a genuine issue of material fact existed regarding whether defendant was required to ban smoking at the center to satisfy its duty to accommodate plaintiff. Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). Plaintiff was required, by affidavits or documentary evidence, to set forth specific facts establishing that there was a genuine issue for trial. MCR 2.116(G)(4). We find that plaintiff failed to satisfy her burden of making such a showing. Plaintiff submitted no affidavits and the documentary evidence she submitted does not establish that a genuine issue of material fact existed regarding whether defendant was re quired to ban smoking to satisfy its duty to accommodate.
Furthermore, even if plaintiff had established a prima facie case that defendant failed to satisfy its duty to accommodate plaintiff by not banning smoking at the center, defendant met its burden of producing evidence that completely banning its patients from smoking at the center would impose an undue hardship, and plaintiif failed to prove by a preponderance of the evidence that banning smoking at the center would not impose an undue hardship. MCL 37.1210(1); MSA 3.550(210X1). The affidavit of Augustus F. Kinzel, M.D., constituted evidence that there was a sound medical reason for the center’s decision to permit patients to smoke cigarettes and that to require a complete ban on cigarette smoking at the center would impose an undue hardship on defendant because such a ban would threaten the mental and physical health of its patients. We do not believe that the scope of defendant’s duty to accommodate plaintiffs asthma requires defendant to ban smoking at the center when there is a sound medical basis for permitting the patients to smoke, the center has attempted to limit human exposure to secondhand smoke by confining smoking to two ventilated rooms in the facility, and plaintiff failed to meet her burden of proving by a preponderance of the evidence that banning smoking would not impose an undue hardship on defendant.
We caution that our decision that defendant is not required to ban smoking at the center to satisfy its duty to accommodate plaintiffs asthma should not be read as a general rule that an employer never has a duty to ban or restrict smoking to accommodate an established handicap. Our holding is narrow and turns on the specific facts of this case. The instant case is unique be cause of the special needs of the psychiatric patients at the center. Because of the patients’ acute psychotic illnesses, there are sound medical reasons for permitting the patients to smoke in designated areas. Balancing plaintiffs interest in imposing a complete ban on smoking against the patients’ interest in permitting smoking in limited areas, we conclude that the interests of the patients, on balance, must prevail. Although we can think of few, if any, other cases where such strong factors favor allowing patients to smoke, in this case, the patients’ medical needs are paramount. Therefore, we conclude that on the facts of this case, defendant was not required to ban smoking at the center to accommodate plaintiffs asthma.
We also hold that defendant’s duty to accommodate plaintiff did not require defendant to place plaintiff in another job in the hospital because "[t]he duty to accommodate imposed under the handicappers’ act does not extend to new job placement.” Rancour v Detroit Edison Co, 150 Mich App 276, 279; 388 NW2d 336 (1986); see also Ashworth, supra, 744. Despite our holding, we recognize as we did in Rancour that there are legitimate public policy arguments that favor requiring an employer to place a handicapped employee in a new job, and we are mindful that the hcra is a remedial statute and that the duty to accommodate therefore should be liberally construed. Rancour, 284-285. However, we agree with our previous conclusion that the extent of the burden to be placed on employers to provide new jobs for employees with established handicaps "is a problem to be solved by the Legislature, not the judiciary.” Id., 286.
Plaintiff contends that Rancour is inapplicable to the instant case because it was decided before the 1990 amendments of the hcra, 1990 PA 121. We disagree with plaintiffs position. After the 1990 amendments, the hcra specifically recognized the following types of accommodation: (1) purchasing equipment and devices; (2) hiring readers or interpreters; (3) restructuring jobs and altering schedules for minor or infrequent duties. MCL 37.1210(2X5), (8X11), and (14X15); MSA 3.550(210) (2X5), (8)-(ll), and (14)-(15). The 1990 amendments did not include a provision specifically requiring employers to reassign handicapped persons to new jobs to satisfy their duty to accommodate. In contrast, the Americans with Disabilities Act, 42 USC 12101 et seq., contains an explicit provision requiring employers to reassign handicapped persons to a vacant position to accommodate the person’s handicap. 42 USC 12111(9)(B). When it enacted the 1990 amendments, the Legislature could have enacted such a provision, but did not. Because the Legislature did not specifically establish a requirement that an employer must place a handicapped person in a new job to satisfy its duty to accommodate, we decline to read such a requirement into the hcra. See Michigan Residential Care Ass’n v DSS, 207 Mich App 373, 376; 526 NW2d 9 (1994).
Furthermore, the Legislature is presumed to act with knowledge of appellate court statutory interpretations. Gordon. Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505-506; 475 NW2d 704 (1991). This Court decided Rancour in 1986. Four years later, in 1990, the Legislature amended the hcra, but did not address whether an employer’s duty to accommodate required the employer to place a handicapped employee in a new job. In light of the presumption that the Legislature acted with knowledge of this Court’s interpretation of the hcra in Rancour, we believe that if the Legislature had intended for the employer’s duty to ac commodate to require the employer to place a handicapped employee in a new job, it would have adopted specific language clarifying that intent when it amended the hcra in 1990. Gordon, supra, 506. This Court is precluded from reading into the hcra something not otherwise clearly therein. Jefferson Schools v Detroit Edison Co, 154 Mich App 390, 393; 397 NW2d 320 (1986). Therefore, we conclude that contrary to plaintiff’s argument, Rancour is applicable to the instant case, and defendant was not required to place plaintiff in a new job to satisfy its duty to accommodate.
In sum, we conclude that the trial court properly granted defendant’s motion for summary disposition pursuant to MCR 2.116(0(10). Plaintiff failed to establish a genuine issue of material fact regarding her claim that defendant failed to accommodate her handicap because defendant was under no duty to provide the type of accommodation sought by plaintiff. Thus, the trial court properly granted summary disposition as a matter of law.
Affirmed.
A "handicapper” is "an individual who has a handicap.” MCL 37.1103(g); MSA 3.550(103)(g). "Handicap” is defined in relevant part in MCL 37.1103(e); MSA 3.550(103)(e) as:
(i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic:
(A) For purposes of article 2, substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s ability to perform the duties of a particular job or position or substantially limits 1 or more of the major life activities of that individual and is unrelated to the individual’s qualifications for employment or promotion.
" 'Unrelated to the individual’s ability’ means, with or without accommodation, an individual’s handicap does not prevent the individual from . . . performing the duties of a particular job or position.” MCL 37.1103(l)(i); MSA 3.550(103)®®.
In Sherman v Optical Imaging Systems, Inc, 843 F Supp 1168, 1177 (ED Mich, 1994), the court summarized the first two elements of a plaintiffs prima facie hcea claim as requiring the plaintiff to establish that the plaintiff had a handicap that either did not interfere with the job or would not interfere with the job if reasonably accommodated. | [
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Per Curiam.
Defendant appeals as of right his conviction by a jury of first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a). We affirm.
Having received alternate weekend and holiday custody of his children after his divorce from their mother, defendant took his six-year-old son and nine-year-old daughter, the complainant, on a weekend trip in December 1991. After a day of swimming, during which defendant apparently be came intoxicated in the presence of his children and was physically escorted from their hotel swimming pool, the three retired to their hotel room.
Defendant originally shared a bed with his son. However, defendant soon joined his daughter in her bed, ostensibly to have her rub hand lotion on his back, which she did. He then returned to his son’s bed. A short time later, he again returned to his daughter’s bed. When his daughter was beginning to doze off, he lifted her nightgown, and, without removing her underwear, forced at least one finger, possibly more, into her genital opening. The finger or fingers were, in effect, sheathed by the girl’s underwear. The complainant shouted, "Daddy, daddy, don’t,” to which defendant responded, "Well, you don’t have to if you don’t want to.” The complainant told her mother of these events a few days after returning from the vacation. Defendant was subsequently convicted of first-degree criminal sexual conduct.
Defendant first argues that the trial court erred in denying his motion for a directed verdict because defendant’s acts were insufficient, as á matter of law, to constitute "sexual penetration,” an essential element of first-degree criminal sexual conduct. We review the record de novo. People v Morris, 202 Mich App 620, 621; 509 NW2d 865 (1993). Considering all the evidence presented by the prosecution in the light most favorable to the prosecution, a directed verdict is inappropriate where a rational trier of fact could find that the essential elements of the crime charged were proven beyond a reasonable doubt. People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993).
Defendant contends, in essence, that the facts adduced simply do not constitute first-degree criminal sexual conduct as defined by the statute, and, because of this, the trial court erred in denying his motion. Statutory interpretation is a question of law that we review de novo. People v Young, 206 Mich App 144, 146; 521 NW2d 340 (1994). In the present case, we need go no further than the plain language of the statute and its accompanying glossary. People v Hawkins, 181 Mich App 393, 396; 448 NW2d 858 (1989). Defendant was charged with violating MCL 750.520b(l)(a); MSA 28.788(2)(l)(a), which provides as follows:
(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if. . .
(a) That other person is under 13 years of age.
"Sexual penetration” is defined in MCL 750.520a(l); MSA 28.788(1)(1), to mean, in relevant part, "any . . . intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body.” Defendant contends that "there is no intrusion 'into’ the genital opening where that opening is covered by the victim’s clothing.” We find defendant’s contention meritless. The complainant’s unrefuted testimony established that defendant committed an act of sufficient physical invasiveness to constitute "sexual penetration.” While defendant argues that the complainant’s underwear "covered” her vagina, implying that the underwear was some type of impregnable barrier precluding penetration, the testimony clearly demonstrated that the underwear was forced inward by defendant’s finger. Defendant’s finger, a part of his body, sexually penetrated the complainant’s genital opening; we need not consider whether the underwear being discussed may be considered an "object” within the meaning of the statute. The elements of the statute were clearly satisfied and the trial court acted properly in denying defendant’s motion for a directed verdict.
Defendant next contends that the trial court abused its discretion, People v McAlister, 203 Mich App 495, 505; 513 NW2d 431 (1994), in allowing the complainant’s mother to testify regarding the complainant’s statement to her mother concerning the events. While such testimony would otherwise be inadmissible hearsay, MRE 801, Michigan provides a "tender years” exception to this general rule of exclusion. MRE 803A. Although the complainant did not relate the events that transpired to her mother for several days, we find that the delay was "excusable,” MRE 803A(3), because of the nine-year-old complainant’s fear of reprisal against her father, the defendant. Further, even were we to find that the court abused its discretion, admission of the testimony in the present case would have constituted harmless error. People v Spinks, 206 Mich App 488, 493; 522 NW2d 875 (1994). Therefore, we decline to hold that the trial court abused its discretion.
Finally, defendant challenges the trial court’s admission of testimony concerning the involvement of the Department of Social Services. We find no abuse of discretion. McAlister, supra. The testimony was relevant and admissible because defendant had attacked the credibility of the complainant’s mother, the testimony was introduced with limiting instructions, and it served to demonstrate that the mother had acted appropriately.
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Per Curiam.
The Telephone Association of Michigan (tam) appeals as of right the December 22, 1992, and March 31, 1993, orders of the Public Service Commission, requiring the tam’s members to report certain disputed information annually.
i
The Michigan Telecommunications Act, 1991 PA 179, MCL 484.2101 et seq.; MSA 22.1469(101) et seq., repealed and replaced public acts of 1883 and 1913 regulating telephone service. The present act replaces regulation of entities with regulation of telecommunication services. According to a conference committee report on the Senate bill, which eventually became the act, this was done in an effort to provide an environment of structured competition for the provision of telecommunication services.
Section 201 of the act, MCL 484.2201; MSA 22.1469(201), provides:
(1) The Michigan public service commission shall have the jurisdiction and authority to administer this act.
(2) In administering this act, the commission shall be limited to the powers and duties prescribed by this act.
Section 202, MCL 484.2202; MSA 22.1469(202), provides in part:
In addition to the other powers and duties prescribed by this act, the commission shall do all of the following:
(a) Establish a program to monitor the level of telecommunications subscriber connection within each exchange in the state, and report to the legislature the results of its monitoring and any actions it has taken or recommends be taken to maintain and increase subscriber connections. The report made pursuant to this subdivision shall be included in the commission’s report required under subdivision (f).
Subdivision f, MCL 484.2202(f); MSA 22.1469(202) (f), requires the psc to issue a report to the Legislature and Governor on or before January 1, 1994, recommending legislation, providing information regarding the data it has collected, and otherwise advising the Legislature and Governor regarding certain enumerated aspects of the telecommunication industry.
On September 11, 1992, the psc issued an order and notice of opportunity to comment, requesting interested parties to file comments to a proposal of the psc staff that would require providers of tele communication services to file with the psc some 151 items of data. The staff proposed that providers be required to compile and report the requested information twice a year in both electronic and paper form for each "nnx group,” which includes all local telephone numbers having the same first three digits.
On October 2, 1992, the tam filed comments to the staff’s proposed requirements. The tam is an association of thirty-seven telephone companies providing basic local exchange service in Michigan. The tam objected to most of the 151 separate data requests in the proposed survey. The tam argued that the information sought was not relevant to the psc’s duty under § 202(a) "to monitor the level of telecommunications subscriber connection within each exchange.” The tam contended that the proposed reporting requirement unreasonably mandated the filing of data concerning virtually every aspect of thé telecommunication services that the tam members provided, that the proposed report was burdensome to produce, and that it went beyond the statutory mandate by requiring data to be compiled by nnx group and not within each exchange. The tam noted that its largest member, Michigan Bell, has 1007 nnx groups. If Michigan Bell were required to supply 151 items of data for each of these groups, it would be required to answer 16,157 individual data requests every six months under the staff’s proposal. The tam suggested in the alternative that its members would voluntarily file on an annual basis twenty-nine items of data on an exchange basis, as opposed to an nnx group basis. The tam argued that the term "subscriber connection” is commonly used in the industry to describe basic residential and business loop connections. The tam argued that the statute should be interpreted in conform ity with this usage and that reporting requirements be limited to information relevant to the number of individuals, and perhaps businesses, who have access to basic local exchange service.
On December 22, 1992, the psc issued its order establishing the monitoring program required by the statute. Although the psc agreed with the tam that annual reports would be sufficient, the psc agreed with its staff that the statute authorizes the collection of data on a variety of telecommunication services and issues, and that the psc is not limited to monitoring the level of individual access to basic local service. The psc found that much of the information described by the tam as being burdensome and unnecessary already was compiled by the tam members for purposes of billing customers or to satisfy other reporting requirements, such as those imposed by the Federal Communications Commission. However, to the extent that a company did not collect or use the requested information for any other purpose, the psc created a procedure by which a company can claim exemption from the reporting requirement. The psc cautioned that if the requested data is collected or used by the company for any purpose, it must be reported. The psc held that data should be reported if available on an nnx group basis because exchange data may be too broad and distort the actual availability of various services or features.
The tam filed a petition for rehearing, which was denied on March 31, 1993. The psc rejected the tam’s argument that the monitoring survey was unduly burdensome, and also rejected the tam’s arguments regarding the scope of the psc’s authority under § 202(a) as follows:
The Commission finds that tam’s petition for rehearing should be rejected. Contrary to tam’s allegations, Section 202(a) provides simple authority for the Commission to institute a broad monitoring program that reviews all aspects of telecommunications subscriber connection in the state. In passing Act 179, the Legislature was careful to distinguish between regulated and unregulated telecommunications services. . . . [MCL 484.2102(t); MSA 22.1469(102)(t).] While the Legislature did not specifically define "telecommunications subscriber connection” in Section 202(a), nothing in that section restricts the monitoring program to regulated telecommunications services. Indeed, because the Legislature restricted the Commission’s authority in Sections 202(b), 202(c) and 202(d) [MCL 484.2202(b), (c), (d); MSA 22.1469(202)(b), (c), (d)] to matters related to regulated telecommunications services, it is entirely reasonable to conclude that the Legislature specifically decided not to limit the Commission’s monitoring program to regulated telecommunications services. As further support, the Commission notes that the report required by Section 202(a) is to be included in the Commission’s 1994 report to the Legislature required by Section 202(f), which covers a multitude of issues involving both regulated and unregulated telecommunications services.
Regarding tam’s argument that Section 202(a) precludes the Commission from seeking responses to data requests on an nnx basis, the Commission observes that the monitoring program should examine the level of telecommunications subscriber connection "within” each exchange in the state. By using the word "within” in Section 202(a), the Commission finds that the Legislature did not preclude a monitoring program that requires providers to report data on an nnx basis. Rather, the Legislature directed the Commission to carefully examine the level of telecommunications subscriber connection "within” each exchange, not to simply accumulate and report data on an exchange by exchange basis as tam insists. Moreover, the Commission remains convinced that data accumulated on an exchange basis may be too broad and may misrepresent the status of infrastructure investment in some areas of the state.
II
The psc argues that there is no need for this Court to reach the merits, because the tam does not have standing to bring this appeal. The psc contends that the tam itself has not been affected adversely by any of its decisions and notes that no individual telecommunication provider has filed an appeal. We disagree. If the tam’s claims of error are correct, then its members have been burdened or harmed in a manner different from the citizenry at large and the tam should therefore have standing to contest the psc’s orders. Speaker v State Administrative Bd, 441 Mich 547, 554; 495 NW2d 539 (1993).
The tam contends that we need not reach the merits, because we should hold that the monitoring required by § 202(a) is tied to the report the psc was required to submit pursuant to § 202(f). Because the tam members supplied the data necessary for the psc to finish that report, which has already been presented to the Legislature and Governor, questions regarding data before January 1, 1994, are moot. If the psc has no authority to demand future data now that the report has been submitted, then theré is no need for this Court to proceed further. However, the tam has pointed to nothing in the text of § 202(a) or legislative history indicating that the monitoring program is limited to the gathering of data necessary to create and submit the report required by § 202(f). The tam’s members therefore remain obligated to supply the data demanded by the psc for 1994 and 1995 and perhaps beyond, if the act’s self-contained repeal of January 1,1996, is itself repealed.
The tam contends that the psc’s interpretation of the reporting requirement is nothing more than a self-serving expansion of its regulatory powers contrary to the legislative intent to reduce the psc’s regulatory powers. In particular, tam argues that pursuant to § 202(a) the psc is required to establish a program to monitor the level of "tele-, communications subscriber connection” and that this phrase has a well-defined meaning in the telecommunication industry. The tam represents that "subscriber” is understood to mean a purchaser or contractor of telecommunication services, and "connection” is understood to mean access to the local exchange network, from which the subscriber can obtain access to other telecommunication services. The tam contends that the psc’s expansive understanding of its monitoring authority effectively replaces the phrase "telecommunication subscriber connection” in § 202(a) with "telecommunications services.” The tam argues that this is error, inasmuch as the act explicitly defines "telecommunication services” in § 102(t), but does not define "telecommunications subscriber connection.” The tam contends that this phrase is not defined because the Legislature understood it to be a term of art in the telecommunication industry.
The psc responds that the terms "subscriber” and "connection” do not have the unambiguous téchnical meanings that the tam contends they have. The psc argues that "subscriber connection” could not possibly be limited to access to the local exchange, inasmuch as § 102(b); MCL 484.2102(b); MSA 22.1469(102)(b), explicitly defines the phrase "basic local exchange service.” If the Legislature meant the monitoring program to be limited as the tam suggests, then the Legislature presumably would have directed the psc to monitor access to the "basic local exchange.” Instead, the Legislature directed the psc to monitor the level of subscriber connection with various telecommunication services, and left it to the psc to determine just which connections or services should be monitored.
In resolving this controversy, we are guided by the standard of review applicable to psc decisions. The psc is a creature of statute and possesses no common-law powers. A statute that grants power to an administrative agency is to be construed strictly. Administrative authority must be granted affirmatively or plainly, for doubtful power does not exist. Consumers Power Co v Public Service Comm, 189 Mich App 151, 176; 472 NW2d 77 (1991). However, a party dissatisfied with a psc order has the burden of proving by clear and satisfactory evidence that the order is unlawful or unreasonable. The party must show that the order was arbitrary, capricious, an abuse of discretion, or not supported by the record. Michigan IntraState Motor Tariff Bureau v Public Service Comm, 200 Mich App 381, 387-388; 504 NW2d 677 (1993).
Great deference is due the construction of a statute by the agency legislatively chosen to enforce it, which ought not to be overruled without cogent reasons. Breuhan v Plymouth-Canton Community Schools, 425 Mich 278, 282-283; 389 NW2d 85 (1986). Contrary to the tam’s assertions, this principle applies to interpretations involving the scope of the agency’s power. Mississippi Power & Light v Mississippi ex rel Moore, 487 US 354, 381; 108 S Ct 2428; 101 L Ed 2d 322 (1988). Although deference generally is given only to longstanding interpretations, not at issue here, due regard must be given the legislative intent to repose in an administrative agency authority to enforce a stat ute. In re Quality of Service Standards for Regulated Telecommunication Services, 204 Mich App 607, 612-613; 516 NW2d 142 (1994).
The tam contends that "telecommunications subscriber connection” cannot be understood being as broad as the psc would like, because such a broad interpretation essentially, converts the phrase into "telecommunication services,” which the Legislature explicitly defined and which the Legislature could have used had it chosen to do so. The psc counters that "telecommunications subscriber connection” cannot be as limited as the tam would like, because it would then be equivalent to basic local exchange service, which is explicitly defined in the act but was not used by the Legislature in § 202(a). We hold that both parties are right and both parties are wrong. If the Legislature had used either of the defined phrases, then the meaning of § 202(a) would be clear. However, the fact that the Legislature did not use one of the defined phrases does not mean that the phrase it did use, "telecommunications subscriber connection,” cannot be understood as being as broad as telecommunication services or as narrow as basic local exchange service. By failing to define the term specifically, the Legislature left it to the psc to fill in this legislative gap. When the psc is engaged in such a legislative or policymaking action, it is entitled to the greatest deference from this Court. Michigan Intra-State Motor, supra at 388.
The tam contends that the psc’s decisions in this case are internally inconsistent and are also inconsistent with one or more decisions reached in other cases. In its March 31, 1993, order in this case, the psc noted that subsections b, c and d of § 502 explicitly restrict the psc’s authority to regulate telecommunication services, whereas subsection a does not. The psc reasoned that the Legislature must have intended that subsection a be applied to all telecommunication services, both regulated and unregulated. The tam argues that this is inconsistent with a psc order in another case in which it held that although § 202(b) by its terms allows the psc to set rules and regulations for the keeping of accounts and books by providers of regulated services, the statute does not prevent the psc from setting rules and regulations for the keeping of accounts and books regarding unregulated activities by providers of regulated services. The tam contends that these inconsistent results demonstrate the arbitrary and capricious nature of the psc’s interpretation of the statute. In addition, in its December 22, 1992, order in this case, the psc held that it does not have jurisdiction to require reports from providers of only unregulated services. Nevertheless, in its March 31, 1993, order denying rehearing, the psc held that nothing in § 202(a) restricts the monitoring program to regulated services only. Once again, the taM contends that these decisions are indicative of a lawless psc.
The tam’s arguments are not persuasive. There is nothing inconsistent in the psc’s holding in this case that § 202(a) covers both regulated and unregulated services and its holding in another case that even though § 202(b) applies only to providers of regulated services, it applies to all services of such providers, whether regulated or unregulated. Similarly, there is nothing inconsistent in the psc holding in its December 22, 1992, decision in this case that- it has no jurisdiction to require reports from providers that render no regulated services and holding in its decision on rehearing that it may require reports from providers of regulated services that cover both regu lated and unregulated services. In each case, the psc merely has held that the provision of a regulated service brings the provider under the psc’s jurisdiction. Once the provider is under its jurisdiction, the psc may monitor or otherwise affect both regulated and unregulated services.
Because the tam has failed to prove by clear and satisfactory evidence that the psc’s decisions in this case are unlawful or unreasonable, we affirm! | [
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Per Curiam.
Plaintiff* filed suit against defendants alleging age discrimination in violation of the Civil Rights Act, MCL 37.2202(l)(a); MSA 3.548(202)(l)(a). Plaintiff appeals as of right the trial court’s order granting defendants’ motion for summary disposition and denying plaintiff’s motion for summary disposition, both pursuant to MCR 2.116(0(10). We affirm.
St. Raymond Church is a Roman Catholic parish located in the City of Detroit. The parish is under the jurisdiction of the Archdiocese of Detroit.
In August 1991, the Reverend Ralph L. Quane became the pastor of St. Raymond. At that time, the parish was experiencing financial difficulties. The parish relies heavily on Sunday collections to cover its operating expenses. Between August 1991 and January 1992 the number of families in the parish declined from approximately 1,500 to approximately 1,250._
In December 1991, the archdiocese completed an audit of the parish. A separate financial study and organizational analysis was completed by the Plante & Moran accounting firm in January 1992. These audits revealed that the parish’s debts exceeded $200,000. Plante & Moran recommended that the parish reorganize its staff and consolidate responsibilities.
At the beginning of 1992, the parish employed three maintenance workers: plaintiff, age sixty-two; Dennis Quigley, age thirty-three; and Frank Pfeiffer, age sixty-three. Plaintiff had worked at St. Raymond since 1969. Quigley was hired in 1978 and Pfeiffer was hired in 1985.
Among other changes, Father Quane decided to consolidate the parish’s maintenance duties into two positions. On May 15, 1992, Father Quane notified plaintiff and four other employees that their positions were being eliminated.
On July 24, 1992, plaintiff filed a complaint alleging age discrimination against St. Raymond Church, the Archdiocese of Detroit, and Father Quane. Both parties subsequently sought summary disposition pursuant to MCR 2.116(0(10).
The trial court determined that plaintiff has failed to establish a prima facie case of age discrimination and that, even if plaintiff had established a prima facie case, defendants had articulated legitimate, nondiscriminatory reasons for discharging plaintiff. Therefore, on June 7, 1993, the trial court denied plaintiff’s motion for summary disposition and granted defendants’ motion for summary disposition._
Plaintiff appealed. On appeal, plaintiff argues that the trial court erred in denying his motion for summary disposition and in granting defendants’ motion.
On appeal, an order granting or denying summary disposition is reviewed de novo. A motion for summary disposition may be granted pursuant to MCR 2.116(0(10) when, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Giving the benefit of reasonable doubt to the nonmovant, the trial court must determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Michigan Mutual Ins Co v Dowell, 204 Mich App 81, 85-86; 514 NW2d 185 (1994).
Plaintiff’s claim of age discrimination is based upon the Civil Rights Act, which provides in relevant part:
(1) An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of ... age. [MCL 37.2202; MSA 3.548(202).]
The burden of proof in an age discrimination case is allocated as follows: (1) the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence; (2) if the plaintiff is successful in proving a prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions; and (3) the plaintiff then has the burden of proving by a preponderance of the evidence that the legitimate reason offered by the defendant was merely a pretext. Barnell v Taubman Co, Inc, 203 Mich App 110, 120; 512 NW2d 13 (1993).
To establish a prima facie case of age discrimination under the disparate treatment theory, plaintiff must show that he was a member of a protected class and that he was treated differently than persons of a different class for the same or similar conduct. Id. at 120-121.
Age need not be the only reason or main reason for the discharge, but it must be one of the reasons that made a difference in determining whether to discharge a person. Id. at 121. Therefore, the question is whether age was a determining factor in plaintiff’s discharge.
Plaintiff contends that the trial court failed to give proper weight to Father Quane’s deposition testimony. During his deposition, Father Quane stated that before terminating any employees, he had looked into the employees’ benefits and found that, unlike Quigley and Pfeiffer, plaintiff would be able to retain his pension and medical benefits. At one point, Father Quane stated that he partly based his decision on the fact that plaintiff would continue to receive benefits and the other two maintenance workers would not.
For purposes of this appeal, we will take the facts in the light most favorable to plaintiff and assume that plaintiff’s eligibility for a pension and medical benefits did influence Father Quane’s choice of which employee to lay off. Therefore, the issue presented is whether consideration of an employee’s eligibility for benefits automatically constitutes an improper consideration of age. We conclude that it does not.
Michigan courts have considered federal law when reviewing claims of age discrimination based on state law. Featherly v Teledyne, Industries, Inc, 194 Mich App 352, 357-358; 486 NW2d 361 (1992). The United States Supreme Court has held that an employer does not violate the Age Discrimination in Employment Act of 1967 (adea), 29 USC 621 et seq., by acting on the basis of a factor, such as the employee’s pension status or seniority, that is empirically correlated with age. Hazen Paper Co v Biggins, 507 US —; 113 S Ct 1701; 123 L Ed 2d 338, 345-346 (1993).
In Hazen, the employee charged that the employer had deliberately fired him a few weeks before his pension benefits vested. The Court concluded that there is no disparate treatment under the adea when the factor motivating the employer is something other than the employee’s age. 123 L Ed 2d 345, 346. The Court explained:
It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. . . .
When the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is. [123 L Ed 2d 347. Emphasis in original.]
As with the adea, the Civil Rights Act is aimed at the prejudices and biases borne against persons because of their membership in a certain class. The act seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases. Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993).
Plaintiff has presented no evidence that Father Quane supposed a correlation between plaintiff’s age and pension status and acted accordingly. See Hazen, supra, 123 L Ed 2d 348. The mere fact that plaintiff was eligible for a pension is not enough for this Court to infer age discrimination. See Gaworski v ITT Commercial Finance Corp, 17 F3d 1104, 1120 (CA 8), cert den — US —; 115 S Ct 355; 130 L Ed 2d 310 (1994).
Even if our analysis regarding age discrimination and pension status had reached a different result, plaintiff still would not have met his burden of proof. Plaintiff does not challenge defendants’ assertion that the parish’s financial condition was the impetus for the layoffs. When an employer lays off employees for economic reasons, the employee bears a greater burden of proof in establishing discrimination. In such a case, the employee must present evidence that age was a determining factor in the decision to discharge him. Matras v Amoco Oil Co, 424 Mich 675, 684; 385 NW2d 586 (1986); Reisman v Regents of Wayne State Univ, 188 Mich App 526, 540; 470 NW2d 678 (1991). At best, plaintiff has offered evidence that his pension eligibility played some part in Father Quane’s decision to terminate him rather than the other two maintenance workers. Plaintiff has made no showing that his pension eligibility — and therefore, in plaintiff’s argument, his age — was a determining factor in that decision.
We conclude that plaintiff has not met his burden of proving a prima facie case of age discrimination by" a preponderance of the evidence. There fore, the trial court did not err in denying plaintiffs motion for summary disposition and in granting defendants’ motion for summary disposition.
Affirmed.
Margaret Plieth, Frederick Plieth’s wife, joins him as plaintiff. Because her loss of consortium claim is derivative and dependent on Mr. Plieth’s claim, and to avoid confusion, we will refer only to plaintiff Frederick Plieth.
The other four employees were Camille J. Biernacki, religious education secretary, age forty; Catherine N. Fisette, director of religious education, age thirty-one; Catherine R. Garofalo, school librarian, age sixty-three; and Dorcas Kolodziej, school secretary, age sixty-eight.
Plaintiff’s eligibility for a pension was based on his having worked a sufficient number of years at a sufficient number of hours per week and on his having reached retirement age.
Father Quane maintains that two factors also mentioned during the deposition controlled his decision. First, he wished to retain employees who worked mainly in the school over other employees. Although there was some overlap, Quigley and Pfeiffer worked primarily in the school and plaintiff worked primarily in the church and rectory. Second, Father Quane believed that, compared to Quigley and Pfeiffer, plaintiff was an inferior worker. | [
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Saad, J.
The trial court granted summary disposition to defendants — a doctor and a hospital — because it held that, absent negligence, these health care providers should not be legally responsible, on strict liability theories, for an admittedly defective implant placed in Samira Ayyash (hereinafter plaintiff) by defendant physician at defendant hospital. For reasons articulated below, we agree with and affirm the trial court’s ruling.
I. FACTS
Plaintiff fell down a flight of stairs at her home and broke her lower jaw, which was repaired surgically at Henry Ford Hospital. Thereafter, Dr. Wolford, who was at the time head of oral surgery at defendant hospital, treated plaintiff.
After the initial surgery, plaintiff continued to complain of pain and discomfort in her jaw, and Dr. Wolford treated plaintiff for approximately one year. In November 1983, Dr. Wolford surgically implanted into plaintiff’s temporomandibular joint a medical device known as a Vitek Proplast Silas-tic. It is this surgery that gave rise to this suit. After the implant surgery, plaintiff continued treating with Dr. Wolford until April 1986.
The Vitek implants were approved by the Food and Drug Administration in 1983. In June 1990, Vitek, Inc., filed for Chapter 7 bankruptcy, and, in September 1991, plaintiff received a letter from a bankruptcy court in Texas that said that Vitek had gone into bankruptcy and that she was entitled to make a claim against the bankruptcy estate. The implants were recalled in 1992 because many patients were experiencing a breakdown in the implants. In May 1993, plaintiffs implant was removed surgically.
Plaintiffs’ suit raises various products liability theories against defendants, including breach of express warranty, breach of implied warranty, and negligence. In their motion for summary disposition, defendants argued that plaintiffs’ products liability claims must fail because the implantation of the medical device during surgery was not the sale of a product, but rather the provision of a medical service. The trial court agreed and granted summary disposition, reasoning that "the essence of the relationship” between the hospital and the patient and the physician and the patient is the provision of a service, not the sale of a product, and, therefore, products liability theories were inapplicable. The trial court accordingly entered its order that dismissed plaintiffs’ cause of action on May 3, 1993.
II. STRICT LIABILITY OR NEGLIGENCE
During this century, scholars advocated and many courts adopted tort theories of products or strict liability (liability without fault) to hold makers and sellers of products liable for injuries to consumers caused by defective products. Using various rationales, which include spreading of the risk, redistribution of wealth, and problems of proof and deterrence, courts developed several theories to impose liability without fault. These include strict liability in warranty and tort. With out commenting on the wisdom of imposing liability without fault on those who make or sell products, this Court must now decide whether to extend these theories of products or strict liability to doctors and hospitals, whose primary function is to render service, not to sell products. Therefore, the legal issue, of first impression, before this Court is whether a plaintiff, injured by an admittedly defective medical implant placed in her body during surgery by her physician (at a hospital) may maintain a strict liability claim against her doctor and the hospital for the injuries caused by the defective implant.
Inasmuch as our appellate courts have not ruled with respect to this significant question of law, we look to other states for guidance. Faced with this precise issue, other jurisdictions have used the "essence of the transaction” test to determine whether the appropriate theory of recovery is strict liability or negligence. Hector v Cedars-Sinai Medical Center, 180 Cal App 3d 493, 505; 225 Cal Rptr 595 (1986); Silverhart v Mount Zion Hosp, 20 Cal App 3d 1022, 1027; 98 Cal Rptr 187 (1971); Hoff v Zimmer, Inc, 746 F Supp 872, 875 (WD Wis, 1990). In other words, appellate courts have imposed strict liability upon sellers of defective products, but not upon providers of services. Hector, supra at 505; Goldfarb v Teitelbaum, 149 AD2d 566; 540 NYS2d 263 (1989). Where, as here, the putative defendant uses a defective product in the course of providing a service, the courts must decide whether the "transaction” is primarily a sale or a service. If the relationship of defendant to plaintiff is seller to buyer, then products liabil ity theories will apply. On the other hand, if the relationship of defendant to plaintiff is service provider to one served, then negligence theories will apply.
In the case of a physician or hospital rendering medical care, as here, courts typically have characterized the "transaction” as a service and, accordingly, used negligence rather than strict liability theories of recovery. Hector, supra at 505; Goldfarb, supra at 566; Hoff, supra at 875. We agree with this approach and adopt it here, because there are good reasons to do so.
Because the primary function of physicians and hospitals is to provide care, not to manufacture or distribute products, those economic theories that underlie the imposition of strict liability upon makers and sellers of products do not justify the extension of strict liability to those who provide medical services. It is reasonable to conclude that the vast majority of patients would bear the increased costs associated with such an impractical imposition of liability upon the medical profession for the benefit of a few who for some reason (here bankruptcy) may not be able to obtain recovery from the manufacturer of the defective product. This Court would be remiss if it failed to express its compassion for plaintiff, and others like her, who may be left without a remedy for injuries caused by a defective medical implant. However, this Court should not and will not let its compassion in this case persuade it to adopt a rule of law that would likely cause greater long-term harm, to more patients and the medical profession by an ill-advised adoption of strict liability against health care providers._
Further, whereas imposing strict liability on manufacturers arguably may promote greater care in manufacturing safer products, imposing strict liability on hospitals and physicians would not. Rather, to do so would place an unrealistic burden on the physicians and hospitals of this state to test or guarantee the tens of thousands of products used in hospitals by doctors.
Because imposing liability without fault in such cases would ultimately hurt rather than help patients and their doctors, we affirm the lower court’s grant of summary disposition.
A count in the amended complaint for medical malpractice was dismissed by stipulation of the parties.
In a similar manner, our Supreme Court in Neibarger v Universal Cooperatives, Inc, 439 Mich 512, 533-537; 486 NW2d 612 (1992), drew a distinction between sales of products and the provision of services when discussing the applicability of the Uniform Commercial Code, MCL 440.1101 et seq.; MSA 19.1101 et seq.
Where a doctor provides a service, a medical malpractice theory-may apply. See MCL 600.2912a; MSA 27A.2912(1). However, in this case, the parties stipulated the dismissal of plaintiffs’ medical malpractice claim. | [
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E. E. Borradaile, J.
Plaintiff appeals as of right from an order entered by the trial judge granting defendants’ motion for summary disposition pursuant to MCR 2.116(0(10), the court finding no genuine issue of material fact.
It appears that the defendants Dasher and Mate owned the premises in fee simple at 1374 Cleveland in Lincoln Park, Michigan, and on December 22, 1980, sold the property to plaintiff, Travis Tidwell, and defendant Marie Tidwell, who at that time were husband and wife, for the sum of $42,-500 with a $7,500 cash down payment and the balance to be paid on land contract at $350 per month, including ten percent interest.
On October 9, 1981, plaintiff secured a judgment of divorce from defendant Marie Tidwell, who has failed to enter an appearance or file a brief in this matter on appeal. In the judgment of divorce, she was given the real estate free and clear of any claim on the part of the plaintiff, subject to the land contract encumbrance and any home improvement loan or loans thereon which she was to assume and agree to pay and hold the plaintiff harmless therefrom. Then the judgment provided: "It is further ordered and adjudged that the above described property should be subject to a lien in the sum of seven thousand ($7,000) dollars in favor of the plaintiff, Travis Tidwell and said lien shall be payable when the marital home is sold or within the period of ten (10) years, whichever event occurs first.” According to plaintiffs brief, the divorce judgment was recorded in the Wayne County Register of Deeds office on November 26, 1981, in Liber G62321268, p 749692. Defendant Tidwell, as vendee, defaulted on the land contract and also failed to pay taxes and water bills. On November 12, 1982, she filed for bankruptcy and listed the plaintiff as a creditor in her bankruptcy schedule for the $7,000 on the property settlement, and also listed as creditors the vendors for the debt owed under the land contract. Counsel stated at oral argument and alleged in the briefs filed that the trustee of the bankruptcy estate abandoned any interest in the land contract as having an inconsequential value. On March 17, 1983, defendant Tidwell, as vendee, was discharged in bankruptcy of her debts.
On February 5, 1983, the vendee executed a quitclaim deed in lieu of foreclosure to the vendors to clear the title. Plaintiff filed the complaint which is the subject of this case to foreclose his divorce judgment lien on October 4, 1983, naming the vendors and the vendee as defendants, and the vendors filed a countercomplaint against the plaintiff for a bill to clear the cloud on the title. In February, 1985, the parties agreed that plaintiff would discharge his lien claim on the real estate so that the property could be sold, and the property was subsequently sold to a third party for $39,000 with the sum of $8,000 placed in an escrow account pending judicial determination of the rights of the parties.
After hearing oral argument on April 5, 1985, the circuit judge denied plaintiffs motion for summary disposition and granted the vendor defendants’ motion for summary disposition based on no disputed issue of material fact, and also ordered that the plaintiffs complaint be dismissed.
Plaintiff on appeal alleges that the quitclaim deed from the vendee to the vendors in lieu of foreclosure does not extinguish his recorded junior judgment lien, and also alleges that her discharge in bankruptcy does not discharge the interests of the judgment lien recorded prior to the filing of the bankruptcy petition.
The defendant vendors in this case allege that the lien imposed by the divorce judgment is not enforceable against them because they were not parties to the divorce and the lien attached only to the defendant wife’s equity interest in the real estate and, because her equity is zero, there is no interest to be attached by plaintiffs lien.
Summary disposition under MCR 2.116(0(10) should not be granted if a genuine issue exists as to any material fact. The test as stated in Rizzo v Kretschmer, 389 Mich 363, 371-373; 207 NW2d 316 (1973), is whether the record which might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ. To grant summary disposition the court must be satisfied that it would be impossible for the claim to be supported at trial because of some deficiency which cannot be overcome. See GCR 1963, 117.2(3); Jackson Dist Library v Jackson Co #1, 146 Mich App 392, 400; 380 NW2d 112 (1985).
Though the former wife of plaintiff had been discharged in bankruptcy, the law seems quite clear that a discharge in bankruptcy does not affect a lien of a mortgage, as a discharge is no bar to a subsequent foreclosure but only relieves the discharged bankrupt from personal liability on the obligation. See First State Bank v Zoss, 312 NW2d 127 (SD, 1981). Congress has recently amended the bankruptcy code effective October 8, 1984, to provide that a discharge no longer operates as an injunction against an act to collect, recover or offset any discharged debt from property of the debtor, whether or not the discharge is waived. A discharge therefore no longer operates to prohibit the enforcement of a lien upon property of the debtor that has not otherwise been avoided. See 9A Am Jur 2d (1985 Cum Supp), Bankruptcy, § 779, p 166. 11 USC 524(a)(2) was amended in 1984 by Pub L 98-353, effective October 8, 1984.
Just as the vendors’ interest was not discharged by bankruptcy proceedings, neither can it be found on the state of facts as existed when the matter was argued before the trial court that the lien provided in the judgment of divorce was discharged as it affected the property. See also Mary v Lewis, 399 Mich 401, 410-412; 249 NW2d 102 (1976).
A question is also raised in this case as to whether the defendant vendors are on notice of the lien created by the divorce judgment. There is no question but what the vendors were aware of the plaintiff’s having an interest in the premises because he was an original signatory with them and with his ex-wife to the land contract which is the subject matter of this case. Michigan law is quite clear that, when property is sold on a land contract, legal title is retained by the vendor and an equitable title or interest is obtained by the vendee. See General Electric Co v Levine, 50 Mich App 733, 736; 213 NW2d 811 (1976). Whether the vendors’ accepting a quitclaim deed solely from the ex-wife in order to avoid having to foreclose on the land contract is an indication of notice is a question of fact which has not been resolved in this case. An additional question exists as to whether the vendors are on notice of any recordings in the Register of Deeds, registration of the divorce judgment having come after the signing of the land contract, and there is a question also as to whether the vendors searched the records to determine that only defendant Marie Tidwell needed to sign the quitclaim deed conveying the interest of the parties back to the vendors.
The principal issue in this case, which is not adequately dealt with by either side in the briefs, is the question as to whether there was a merger of the vendor’s lien upon the quitclaim deed’s being given by Marie Tidwell to the vendors and, thus, how the intervening liens are affected. The question of intention of a mortgagee or vendor is a question of fact which must be developed from evidence produced to show what that intention was at the time the acts were done, and is not something that can be summarily dealt with as was done in this case.
In land contract law, the Legislature and the court cases have provided a number of remedies for vendors. It has been said that nearly a dozen remedies traditionally have been available to foreclose on land contracts. See Gruskin v Fisher, 70 Mich App 117, 125; 245 NW2d 427 (1976), rev’d on other grounds 405 Mich 51 (1979). As a competing consideration, the plaintiff in this case as the plaintiff in the divorce action could have had a clause placed in the contract allowing him to redeem or to step into the shoes of the ex-wife vendee upon her failure to comply with terms and conditions of the land contract. We are merely suggesting that there are a number of considerations which raise questions of fact which should not have been dealt with by a summary disposition in this matter.
The vendors in this case also argue that the plaintiff’s lien attached only to the vendee’s equity interest in the real estate and, since there was no equity interest in the land contract in the ex-wife, there was nothing for the lien to attach to at the time of its imposition. The Michigan Supreme Court in Hooper v Van Husan, 105 Mich 592, 597; 63 NW 522 (1895), indicated that the legal title remains in the vendor but is held as security for the payment of the purchase price and the vendee upon payment in full of the purchase price has a right to have a conveyance of the legal title.
Equitable title generally gives the right of possession, and thus a vendee in a land contract has more than merely an equitable title. It is accurate that a vendee can give a lien on his property only to the extent of the interest the vendee holds. See 53 CJS, Liens, § 7, p 852. In this case, the fact that a vendee may or may not have had an equity in the property at the time it was sold by the vendors after the vendee’s default is of no consequence, because the vendors took a reassignment of the vendee’s interest and did not pursue a foreclosure action.
Reversed and remanded for trial of the fact issues.
See Anno: Deed from mortgagor to mortgagee or from purchaser to vendor as merger of mortgage or of vendor’s lien as regards intervening liens, 148 ALR 816. The Michigan cases cited in the annotation generally refer to proceedings on foreclosure of mortgage or accepting of a mortgagor’s interest by the mortgagee. See French v De Bow, 38 Mich 708 (1878); Titus v Cavalier, 276 Mich 117; 267 NW 799 (1936); Bugden v Bailey, 279 Mich 12; 271 NW 534 (1937). The Revised Judicature Act, 1961 PA 236, effective January 1, 1963, relating to foreclosure of mortgages and land contracts, MCL 600.3101 et seq.; MSA 27A.3101 et seq., deals equally with the authority to foreclose mortgages on real estate and land contracts. | [
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Griffin, J.
Plaintiff appeals by leave granted an order and opinion of the Worker’s Compensation Appellate Commission reversing a magistrate’s award of benefits to plaintiff. We reverse and reinstate the award.
The relevant facts, essentially, are undisputed. Plaintiff’s brief sets forth these facts as follows:
On July 8, 1990, at approximately 6:30 A.M., Robert Botke was en route from the County Jail in Sault Ste. Marie, Michigan, to his residence on Drummond Island, Michigan, a distance of some seventy miles. As Mr. Botke was traveling southeast on M-48 that morning, he was dressed in his Chippewa County Sheriffs Department uniform, in radio contact with the Chippewa County Sheriffs Department, and driving a marked, fully equipped, Chippewa County Sheriff’s Department patrol car, which was the only active patrol car in Chippewa County at that early morning hour. Tragically, before he arrived home, Robert Botke fell asleep at the steering wheel and lost control of the county’s patrol car, leaving the roadway and striking an embankment. As a consequence, Mr. Botke suffered severe personal injuries, including injuries to his head, neck, shoulder, and back.
At the time of his accident, Mr. Botke was a deputy sheriff for Chippewa County, a position he held for fourteen years prior to his accident. However, Mr. Botke’s primary employment duties with Chippewa County were as the Resident Deputy for Drummond Island, meaning that he was on call twenty-four hours a day and responding, on behalf of the Chippewa County Sheriff’s Department, from his home to any matter necessitating law enforcement intervention.
While Mr. Botke generally only worked one day every two weeks at the Chippewa County Jail, on those days when he was commuting between his home and Sault Ste. Marie in the county’s patrol car, he was expected, as acknowledged by both the Chippewa County Sheriff and Undersheriff, to respond to police matters if he observed a need for law enforcement or if requested to do so by radio dispatch.
On May 8, 1992, this matter was tried before Worker’s Compensation Magistrate Michael D. Wagner. In his findings of fact and conclusions of law, Magistrate Wagner concluded that the accident "arose out of and in the course of’ plaintiffs employment. Magistrate Wagner reasoned as follows:
The first issue is whether the July 8, 1990 auto accident arose out of and in the course of his employment. I find that it did since the testimony at trial established that plaintiff was an "on-call” deputy on Drummond Island driving a county police car to and from his shift at the county jail, which would take this case out of the general rule that an employee driving to and from work is not in the course of his employment. I also find that a marked police car on the road would benefit the employer by providing a deterrent to other motorists violating the law. Chambo v City of Detroit, 83 Mich App 623 [269 NW2d 243 (1978)]; Slaughter v City of Detroit, MIWCLR 3117 (1990).
The wcac reversed, holding that "plaintiffs on-call status applied only to his position as resident deputy on Drummond Island. . . . Plaintiff was not responding to an on-call situation or returning from responding to an on-call situation at the time of the accident.” The wcac did not address the magistrate’s finding that plaintiff’s operation of the marked police car provided a benefit to defendant, Chippewa County.
Both parties agree that as a general rule employees going to or from work are not covered by the worker’s compensation act. In Burchett v Del-ton-Kellogg School, 378 Mich 231; 144 NW2d 337 (1966), the Supreme Court established an exception to this general principle known as the dual-purpose rule. Under the dual-purpose exception, travel to and from work may be covered by the worker’s compensation act if at the time of the trip "the employer derived a special benefit from the employee’s activities at the time of the injury.” Chambo v Detroit, 83 Mich App 623, 627; 269 NW2d 243 (1978), quoting Stark v L E Myers Co, 58 Mich App 439, 443; 228 NW2d 411 (1975).
In Chambo, supra, this Court found that under "the narrow facts” of the case that the dual-purpose exception did not apply because the travels by the plaintiff police officer outside his jurisdiction did not benefit his employer. The facts of the present case support the contrary conclusion. At the time of this accident, defendant Chippewa County clearly received a benefit from plaintiff’s operation of the county’s only active on-road patrol vehicle. Although the road traveled by plaintiff was mostly rural in character, the county received the benefit of deterrence of traffic violations by virtue of the presence of the marked patrol vehicle. Furthermore, although plaintiff was officially off duty, he was expected to respond to any inci dents observed by him that necessitated law enforcement intervention. He remained in radio contact with defendant and was subject to immediate dispatch. Under these facts, we hold that the dual-purpose rule applies and that the wcac erred as a matter of law in ruling otherwise.
Reversed. | [
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Per Curiam.
Plaintiff appeals as of right from a judgment entered on November 17, 1982, following a jury verdict of no cause of action in favor of defendant Donald T. Friend and from an order entered November 17, 1982, granting a directed verdict in favor of Donald J. Friend and Patsy Friend. Plaintiff does not challenge the jury’s verdict of no cause of action.
On September 25, 1981, plaintiff filed a complaint against Donald T. Friend, Donald J. Friend, Patsy Friend, and North Central Michigan College, jointly and severally. Plaintiff alleged that on August 18, 1979, Donald T. Friend, then a minor, negligently operated a motorcycle upon real property owned, operated, and controlled by North Central Michigan College and collided with the motorcycle driven by plaintiff causing plaintiff severe injuries. Plaintiff alleged that Donald J. Friend and Patsy Friend, as the parents of Donald T. Friend, were "responsible for the activities of said minor”. In an order entered on November 8, 1982, the parties stipulated to the dismissal of North Central Michigan College as a defendant. On November 9, 1982, the first day of trial, the trial court allowed plaintiff to amend his complaint and proceed on two separate theories of recovery. Plaintiff alleged that defendants Patsy and Donald J. Friend were negligent in supervising their son in the operation of a motorcycle and were negligent in entrusting him with a motorcycle.
On January 8, 1982, plaintiff filed and served supplemental interrogatories on defendants Friend. Following a hearing on plaintiff’s motion to compel answers, on February 1,1982, an order was entered requiring defendants Friend to answer plaintiff’s supplemental interrogatories within ten days or suffer a default judgment against them. The same day, plaintiff was given an unsigned copy of defendants’ answers to the supplemental interrogatories. On February 16, 1982, a default judgment was entered against defendants Friend for failure to comply with the trial court’s order to answer plaintiff’s supplemental interrogatories. On March 26, 1982, an order was entered granting defendants’ motion to set aside the default judgment. This Court denied plaintiff’s application for leave to appeal in an order dated July 1, 1982.
Plaintiff’s first claim is that the trial court abused its discretion in granting defendant Donald T. Friend’s motion in limine to exclude evidence of his failure to procure a valid motorcycle endorsement on his driver’s license.
Prior to the selection of the jury, defendants moved to exclude this evidence arguing that evidence of the existence or nonexistence of a motor cycle endorsement was irrelevant and would be prejudicial because the collision did not occur on a public street or public highway. Plaintiffs counsel argued that although the evidence "wouldn’t pertain to the liability of the defendant Donald T. Friend,” it would be relevant to the issue of his parents’ negligence in supervising and entrusting him with a motorcycle. The trial court granted defendant Donald T. Friend’s motion to exclude the evidence on the grounds that it was not relevant and that its admission would likely result in considerable prejudice. The trial court stated that plaintiff could show that defendant Donald T. Friend lacked competency by cross-examining him about his experience as a motorcycle driver. Finally, the trial court noted that plaintiff had failed to plead the statute upon which he sought to rely.
The trial court’s decision to admit or exclude evidence will not be reversed on appeal absent a clear abuse of discretion. People v O’Brien, 113 Mich App 183, 203; 317 NW2d 570 (1982). Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence * * * more probable or less probable than it would be without the evidence”. MRE 401.
MCL 257.312a; MSA 9.2012(1) requires the procurement of a motorcycle endorsement on an operator’s or chauffeur’s license before a person may operate a motorcycle "upon a public street or highway”. Before a person may be issued a motorcycle endorsement, the person must pass a written examination and a driving test "designed to test the competency of the applicant for the first motorcycle indorsement * * * upon the highways of this state with safety to himself or herself and other persons and property”. MCL 257.312b; MSA 9.2012(2).
When a penal statute is adopted by a court as the standard of care in a negligence action, proof of violation of that statute gives rise to a rebuttable presumption of negligence. Zeni v Anderson, 397 Mich 117, 143; 243 NW2d 270 (1976).
In the present case, the collision between plaintiffs motorcycle and that of defendant Donald T. Friend did not occur "upon a public street or highway”.
Since no presumption of negligence arises from the riding of a motorcycle off a public highway without a motorcycle endorsement, the fact that Donald T. Friend had failed to procure a motorcycle endorsement was indeed irrelevant. Plaintiff only sought to show with the evidence that defendants Donald J. and Patsy Friend were negligent in entrusting and failing to supervise their son in the operation of a motorcycle. In our opinion, the fact that defendants knew that their son did not have a valid motorcycle endorsement required for operating a motorcycle upon a public street or highway does not have any tendency to make the existence of their negligence more probable than it would be without the evidence. There was no abuse of discretion.
Plaintiffs second claim is that the trial court erred in granting defendants Patsy and Donald J. Friend’s motion for a directed verdict because sufficient evidence to establish a prima facie case of negligent entrustment and negligent supervision was introduced. We disagree.
At the close of plaintiffs proofs, defendants Patsy and Donald J. Friend moved for a directed verdict. In granting defendant parents’ motion for a directed verdict, the trial court concluded that there had been no evidence presented to show that the parents had noticed that their son was an unsafe operator of a motorcycle.
An injured party has a cause of action against the parent of a child where the person is injured by the negligent act of the child which proximately results from negligent parental supervision over the child. American States Ins Co v Albin, 118 Mich App 201, 208; 324 NW2d 574 (1982), lv den 417 Mich 955 (1983). Similarly, an owner or lender who entrusts a person with a dangerous instrumentality may be held liable to a third party who is injured by the negligent act of the entrustee, where the owner or lender knew, or could have reasonably been expected to know, that the person entrusted was incompetent. Perin v Peuler (On Rehearing), 373 Mich 531, 536-537; 130 NW2d 4 (1964). It is clear, however, that under both theories of liability alleged by plaintiff the parent or entrusting person cannot be held liable for the tort of the child or entrustee if the child or entrustee was not negligent in the operation of the entrusted dangerous instrumentality because no cause of action against either the entrustee or entrustor will arise. Perin, supra, p 539; Dortman v Lester, 380 Mich 80, 84; 155 NW2d 846 (1968).
In light of plaintiff’s failure to challenge the jury verdict of no cause of action against Donald T. Friend, the son and alleged tortfeasor, we conclude that plaintiff is precluded from challenging the propriety of the trial court order directing a verdict for Patsy and Donald J. Friend, the parents.
Our review of the record reveals that the evidence presented by plaintiff failed to establish a prima facie case of either negligent parental supervision or negligent entrustment. The trial court did not err in granting defendant parents’ motion for directed verdict.
Plaintiff’s third claim is that the trial court abused its discretion in setting aside the default judgment against defendants.
The trial court’s ruling on a motion to set aside a default judgment will not be reversed on appeal absent a clear abuse of discretion. Glasner v Griffin, 102 Mich App 445, 448; 301 NW2d 889 (1980). A default judgment may be set aside by a trial court "if good cause is shown and an affidavit of facts showing a meritorious defense is filed”. GCR 1963, 520.4. "Good cause” may be established by a showing of "(1) mistake, inadvertence, surprise, or excusable neglect; * * * or (6) any other reason justifying relief from the operation of the judgment”. GCR 1963, 528.3; Glasner, supra, p 448.
In its order entered on March 26, 1982, the trial court granted defendants’ motion to set aside the judgment of default. The court concluded that "there does exist excusable neglect justifying granting these defendants’ motion”, a meritorious defense to the claims made against defendants existed, plaintiff would not be substantially prejudiced by setting aside the default, and the interest of justice would be served by permitting defendants to have their day in court.
The trial court did not abuse its discretion.
Affirmed.
The motorcycle was not owned by the defendants. It was owned by a third person, not a defendant herein. | [
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Whitbeck, J.
Defendant State Farm Insurance Company appeals by leave granted the trial court’s denial of its motion for summary disposition pursuant to MCR 2.116(C)(10) in this suit brought by plaintiffs William Thomson and Susan Thomson. We reverse and remand for dismissal of this case without prejudice.
1. factual background and procedural history
State Farm and the Thomsons were parties to a homeowner’s insurance policy. In February 1996, the Thomsons submitted a claim to State Farm seeking coverage for household goods with a value of about $25,000 that were allegedly stolen from a commercial storage facility in Ohio on November 25, 1995, or thereabout. The Thomsons eventually provided recorded statements, as well as other information, to State Farm. A representative of State Farm conducted a tape-recorded interview of William Thomson at his apartment in Grandville on December 4, 1995, which resulted in a quite lengthy transcript that is included in the record. State Farm acknowledged that it took recorded statements from both of the Thomsons.
The insurance policy issued by State Farm to the Thomsons included the following provisions: State Farm made multiple requests for the Thomsons to appear for examinations under oath (euos). In a letter dated May 14, 1996, the Thomsons’ counsel stated that he thought requiring the Thomsons to participate in EUOs would be unreasonable because an adjuster had taken a statement from William Thomson in December 1995, and State Farm had not indicated what areas needed clarification.
2. Your Duties After Loss. After a loss to which this insurance may apply, you shall see that the following duties are performed:
d. as often as we reasonably require:
* * *
(3) submit to and subscribe, while not in the presence of any other insured:
(a) statements; and
(b) examinations under oath; and
* * *
8. Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions. The action must be started within one year after the date of loss or damage. [Emphases omitted.]
State Farm moved for summary disposition in this case on the basis of the Thomsons’ failure to submit to euos. On September 25, 1996, the trial court issued an order denying State Farm’s motion for summary disposition. On October 4, 1996, this Court decided Yeo v State Farm Ins Co, 219 Mich App 254; 555 NW2d 893 (1996), a case that we address at length below. Thereafter, State Farm moved for reconsideration of the trial court’s denial of its motion for summary disposition. In a letter dated October 31, 1996, counsel for the Thomsons essentially advised counsel for State Farm that the Thomsons were willing to appear for an euo. In a December 6, 1996, order, the trial court (1) ordered the Thomsons to submit to an euo within fourteen days from November 21, 1996, and (2) denied State Farm’s motion for reconsideration of the trial court’s denial of its motion for summary disposition. Thereafter, this Court granted State Farm’s application for leave to appeal. There is no indication from the record that State Farm has ever conducted an euo with either of the Thomsons.
H. STANDARD OF REVIEW
We review the trial court’s denial of summary disposition de novo. Pinckney Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995). A trial court may properly grant a motion for summary disposition under MCR 2.116(C)(10) if, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a mat ter of law. Pinckney Community Schools, supra at 525.
m. YEO
In Yeo, supra at 255, the plaintiff alleged that her home, insured by State Farm (which was also the defendant insurer in that case), had been burglarized on July 22, 1994. In a September 27, 1994, letter, State Farm requested an euo of the plaintiff on October 25, 1994. Id. On October 5, 1994, the plaintiff provided State Farm with a detailed, taped statement, but she did not appear for the EUO on October 25, 1994. In a letter dated October 31, 1994, State Farm rescheduled the EUO for November 21, 1994. However, the plaintiff filed the lawsuit in Yeo on November 2, 1994. Id. The pertinent provisions of the insurance policy in Yeo regarding EUOs contained language identical to the pertinent language of the policy in this case. Id. at 256-257. State Farm moved for summary disposition on the basis of the failure of the plaintiff in Yeo to submit to a requested EUO before filing suit, “arguing that because plaintiff failed to satisfy the condition of being examined under oath, recovery under the policy was barred.” Id. at 256. The trial court dismissed the case without prejudice and with “ ‘hope that the parties can proceed with the examination under oath and refile [sic] this case.’ ” Id. State Farm appealed, arguing that the case should have been dismissed with prejudice, but this Court affirmed. Id. at 255.
In Yeo, this Court made clear that the EUO requirement contained in policies like the one at issue there, and here, is generally enforceable:
In this case, the policy language clearly establishes that, when requested, an examination under oath is a condition that must be satisfied before an insured has the right to bring an action against defendant. Such a condition “is a valid one and as a general rule enforceable, and one who without cause refuses to submit to examination should be precluded from maintaining an action on the policy.” Gordon v St Paul Fire & Marine Ins Co, 197 Mich 226, 230; 163 NW 956 (1917). [Yeo, supra at 257.]
In our view, consistent with that of the Yeo panel, the policy provisions in question regarding EUOs necessarily allow State Farm to require an insured to appear for at least one euo and, if the insured fails or refuses to submit to an euo, the insured is precluded from maintaining an action on the policy. Here, the insureds failed or refused to submit to the EUO. Under Yeo, therefore, the Thomsons’ action must be dismissed.
IV. WILFUL NONCOMPLIANCE
Yeo left open the question whether dismissal should be with or without prejudice:
Defendant argues that because plaintiff wilfully violated the condition of being examined under oath, the dismissal should be with prejudice. However, we find nothing on the record to indicate that plaintiffs failure to submit to the examination on October 25, 1994, was the result of a flat refusal to submit to such an examination. Therefore, we need not address the effect of wilful noncompliance on the general rule stated here. [Id. at 259.]
We believe it to be clear that, within the general framework of Yeo, if the noncompliance is wilful, the dismissal is to be with prejudice. On the other hand, if the noncompliance is not wilful, the implication is that the dismissal is to be wdthout prejudice.
Yeo did not provide a definition of “wilful noncompliance.” However, Yeo’s conclusion that the facts of that case did not involve wilful noncompliance is instructive. As noted above, the plaintiff in Yeo provided “a detailed, taped statement” after being requested to appear for an EUO and thereafter failed to appear for a scheduled euo. Id. at 255. After failing to appear for the EUO and after a letter in which the defendant insurer rescheduled the EUO, the plaintiff in Yeo filed suit. Id. Accordingly, it is evident that the plaintiff in Yeo knowingly declined to appear for an EUO before filing suit. Nevertheless, this Court in Yeo did not regard this as wilful noncompliance. It follows that wilful noncompliance in this context involves something more than merely knowingly failing to appear for an euo.
Therefore, the central issue confronting us here is the one that the Yeo panel declined to address: the proper definition of wilful noncompliance. Because this is a case of first impression in Michigan, we look for guidance to pertinent cases from other jurisdictions.
In Taylor v Fireman’s Fund Ins Co, 306 So 2d 638, 639 (Miss, 1974), the plaintiff brought suit against the defendant insurer for a claim related to a house that had burned. The insurance policy in that case included a provision that “[t]he insured, as often as may be reasonably required, shall. . . submit to examinations under oath by any person named by this Company . . . .” Id. at 639 (emphasis omitted). The transcript of the EUO reflects that the plaintiff in Tay lor, in accordance with the advice of counsel, refused to answer several questions during the EUO including questions related to his financial status at the time of the fire. Id. at 640-644. The Mississippi Supreme Court concluded that the trial court properly directed a verdict for the defendant insurer, stating, id. at 644-645:
The insured was required to answer these questions fully and completely, to give the best information he had about these matters.
In Southern Guaranty Insurance Co v Dean, 252 Miss 69, 172 So 2d 553 (1965), the insurance policy involved contained the exact same provisions for a sworn examination of the insured before trial. In Southern, the trial court held that the policy had not been voided by the actions of the insured. This Court, in reversing, said:
“We hold that insured faded and refused to answer questions in the examination under oath on matters which were material and relevant to the insurance and the loss, and failed and refused to produce for examination written documents which were pertinent and material to the insurance and loss. Failure of insured to comply in material respects with these contractual clauses bars her recovery under the policies. . . .”
In Boston Insurance Co v Mars, 246 Miss 36, 148 So 2d 718 (1963), we closed our opinion with these words:
“We think that the refusal of the insureds to submit to the examination under oath was a violation of the express provisions of the insurance policy, and resulted in a forfeiture of their right to recover under the policy; and that, therefore, the appellant was entitled to the requested peremptory instruction in its favor.” 246 Miss at 43, 148 So 2d at 720.
The circuit court was correct in peremptorily instructing the jury to find for the defendant.
Also instructive is C-Suzanne Beauty Salon, Ltd v General Ins Co of America, 574 F2d 106, 110-111 (CA 2, 1978), in which the Second Circuit Court of Appeals, applying New York law, stated:
Although it is trae, as we noted in Hudson Tire [Mart, Inc v Aetna Casualty & Surety Co, 518 F2d 671, 674 (CA 2, 1975)], that a refusal to appear for an examination under oath constitutes a material breach of the contract of insurance, it is also true, as a general principle of New York law, that “equity will not enforce forfeitures.” Hal Roach Studios, Inc v Film Classics, Inc, 156 F2d 596, 599 (2d Cir 1946). Thus, in construing the cooperation clause, the New York Court of Appeals has held that “a breach which will defeat a recovery cannot be based upon technical or unimportant omissions or defects in the performance by either party.” Porter v Traders’ Ins Co, 164 NY 504, 509, 58 NE 641, 642-43 (1900). Rather, a “willful and fraudulent withholding of information” must be shown. Happy Hank Auction Co v American Eagle Fire Ins Co, 1 NY2d 534, 539, 154 NYS2d 870, 873, 136 NE2d 842, 844 (1956). In Happy Hank, the Appellate Division unanimously agreed that “it is clear that plaintiff has willfully and designedly refused to answer questions and produce documents that are indisputably material to its claim,” 286 AD 505, 510, 145 NYS2d 206, 211-12 (1st Dep’t 1955), and it granted summary judgment and ordered dismissal of the complaint. The Court of Appeals modified this order so as to reinstate the complaint, explaining that willfulness and fraud present “the kind of question of fact that cannot, except in the most extreme of cases, be resolved through the study of affidavits.” 1 NY2d at 539, 154 NYS2d at 873, 136 NE2d at 844. [Emphasis supplied.]
Marmorato v Allstate Ins Co, 226 AD2d 156; 640 NYS2d 97 (1996), is similarly instructive. There the court held:
While it is clear that plaintiff’s refusal, upon advice of counsel, to answer certain of the questions put to him at the examination under oath was a breach of his contractual obligation to cooperate with defendant’s investigation (see, Evans v International Ins Co, 168 AD2d 374 [562 NYS2d 692 (1990)]), and that circumstances of the claim appear suspicious, we agree with the [lower] Court that the noncompliance was not so willful or extreme as to warrant dismissal of the action without giving plaintiff one last chance to answer the questions (see, Yerushalmi v Hartford Acc & Indem Co, 158 AD2d 407 [551 NYS2d 242 (1990)]). [Id. (emphasis supplied).]
Also, in Averbuch v Home Ins Co, 114 AD2d 827; 494 NYS2d 738 (1985), the plaintiff insured brought suit against the defendant insurer to recover under a fire insurance policy covering premises that were damaged by two separate fires. Id. at 827. The insurance policy in that case included a provision requiring the insured to “as often as we reasonably require . . . submit to examination under oath and subscribe the same.” Id. at 828. The Averbuch court provided the following factual background:
After a preliminary investigation by the defendant insurer disclosed that the fires in June 1983 were incendiary in nature, plaintiff appeared for an examination under oath conducted by the defendant on November 22, 1983. Despite being warned by defendant’s attorney that a refusal to answer material and relevant questions might lead to a disclaimer under the policy by the defendant, plaintiff refused to answer several patently material questions posed by defendant’s counsel, including, inter alia, questions relating to the condition of the premises prior to the fires and plain tiff’s financial status at that time. Despite two subsequent warning letters sent by defendant’s counsel to plaintiff’s counsel in December 1983 and January 1984, plaintiff (1) continued in his refusal to supply the answers to these material questions and (2) also failed to supply, in contrast to his promises at the examination under oath, an itemized list of expenditures alleged to have been made on the premises, along with any available documentation thereof. [Id.]
The defendant insurer moved for summary judgment on the basis of the plaintiff’s failure to answer material questions during the euo and failure to supply material information and documentation to the defendant. Id. The trial court ruled that it granted the motion unless the plaintiff supplied the defendant with certain documents. Id. However, the appellate court in Averbuch concluded that the defendant’s motion for summary disposition should have been granted unconditionally. Id. at 829. The Averbuch court stated:
The record herein demonstrates & pattern of noneooperation with the insurer for which no reasonable excuse was proffered. Under these circumstances, the plaintiff’s willful refusal to answer material and relevant questions on his examination under oath by defendant and to supply material and relevant documentation constituted a breach of substantial conditions of the policy].] [Id. (emphasis supplied).]
Informed by the above authority, we conclude that “wilful noncompliance” in the context at hand refers to a failure or refusal to submit to an euo or otherwise cooperate with an insurer in regard to contractual provisions allowing an insurer to investigate a claim that is part of a deliberate effort to withhold material information or a pattern of noncooperation with the insurer.
In the case before us, the Thomsons voluntarily provided recorded statements to State Farm. We regard this as at least a minimal showing that the Thomsons were not deliberately intending to withhold material information from State Farm. However, we emphasize that in future cases it will not be sufficient to volunteer, or even to participate in giving, unsworn statements to the insurer. As a practical matter, we recognize that virtually the only way by which an insurer can demonstrate that an insured has deliberately withheld material information is through the process of taking an EUO. Therefore, the burden henceforth is on the insured to demonstrate that the insured has not deliberately withheld material information. This burden will be an extraordinarily difficult one to meet.
With respect to the second prong of the test we adopt today, we recognize that State Farm made repeated efforts to arrange the euos and that these efforts were either ignored or rebuffed by the Thomsons’ counsel. Standing alone, these actions would be sufficient to find a pattern of noncooperation with the insurer. However, we note that the actions and nonactions of the Thomsons’ counsel were taken before the decision in Yeo, when the extent of the obligation of an insured under an insurance policy with provisions substantially similar to those at issue in this case was perhaps questionable. Once again, we emphasize that the burden henceforth is on the insured to demonstrate that the insured has not engaged in a pattern of noncooperation and that this will also be an extraordinarily difficult burden to meet. It will certainly not be sufficient, for example, for an insured to seek “clarification” regarding the information that will be discovered in an EUO or to simply claim that the insureds “do not believe it to be reasonable” to submit to an EUO. Following our decision in this matter, it will be the rare case indeed in which a claim by an insured that its refusal to submit to an EUO did not amount to wilful noncompliance is upheld. Insureds, and the insureds’ counsel, will be ill-advised to interpret our decision as anything approaching a license to disregard clearly binding contractual obligations.
V. YEO AS BINDING PRECEDENT
We are, of course, bound to follow the holdings in Yeo, as a published decision of this Court issued on or after November 1, 1990, under MCR 7.215(H)(1). State Farm has not expressly asked us in its brief to issue a “conflicting opinion” under MCR 7.215(H)(2), following Yeo only because we are bound to do so. However, apparently as a criticism of Yeo, State Farm states:
Inexplicably, however, the Court of Appeals, and the Trial Court, apparently had no difficulty in allowing a plaintiff to choose when the examination under oath will be taken, because “the defendant will still have the opportunity to examine the plaintiff, under oath.” This cannot be termed “compliance.” [Emphasis supplied.]
To prevent any doubt, we agree with the holding of Yeo that, as a general rule, a failure to comply with a requirement to submit to an euo is not a complete bar to recovery, at least in the absence of wilful noncompliance. The holding in Yeo is far from being “inexplicable.” Rather, it is eminently sensible as a particular application of the concept that the appropriate remedy for a minor breach of contract should be less extreme than the penalty for a substantial breach of contract. Again, we emphasize that in Yeo the insured knowingly failed to appear for an EUO. Nevertheless, the dismissal in Yeo was without prejudice. Clearly, then, a knowing failure to submit to an EUO, without more, does not rise to the level of wilful noncompliance. Equally clearly, however, in future cases the burden will be on the insured to show that the noncompliance was not wilful under the two-part test that we have outlined above.
We also find noteworthy the following observations in Thompson v West Virginia Essential Property Ins Ass’n, 186 W Va 84, 88; 411 SE2d 27 (1991) regarding a similar requirement to submit to an EUO in a fire insurance contract:
The purpose of an oral examination under oath is to enable the insurer to obtain necessary and relevant information from the insured about the circumstances surrounding the fire loss and the value of the property destroyed. It also enables the insurer to determine rationally whether the insured is submitting a false or fraudulent claim.
When this language was placed in the standard fire policy, the insurer was unable to obtain any discovery before or after a lawsuit was filed. This limitation substantially handicapped the insurer’s defense against false or fraudulent fire loss suits. Today, much of this handicap has been removed because after suit is filed the insured’s deposition can be taken, and he can be required to furnish relevant documents at that time.[ ]
A number of jurisdictions treat a knowing failure to appear for an euo as a material breach of policy language substantially the same as the policy language at issue in this case and as absolutely barring any right to recovery. See, e.g., Watson v Nat’l Surety Corp of Chicago, Illinois, 468 NW2d 448, 450-451 (Iowa, 1991); Downie v State Farm Fire & Casualty Co, 84 Wash App 577, 580-586; 929 P2d 484 (1997); Goldman v State Farm Fire General Ins Co, 660 So 2d 300 (Fla App, 1995). However, a number of other jurisdictions decline to require an absolute rule of complete forfeiture of an insured’s right to recovery based on a knowing failure to appear for an euo. See, e.g., Thompson, supra; Abraham v Farmers Home Mut Ins Co, 439 NW2d 48, 49-50 (Minn App, 1989); Farm Bureau Town & Country Ins Co of Missouri v Crain, 731 SW2d 866, 871 (Mo App, 1987). Here, we con- elude that Yeo reached the correct result and apply it to the circumstances of this case. In so doing, we hold that if the noncompliance is wilful, the dismissal must be with prejudice; if the noncompliance is not wilful, the dismissal must be without prejudice. We further hold that henceforth, the insured must show that there was not a deliberate effort to withhold material information (as opposed to a knowing failure to submit to an EUO) or a pattern of noncooperation with the insurer.
VI. CONCLUSION
We reverse the order of the trial court and remand to the trial court for entry of an order dismissing this case without prejudice in light of the fact that Yeo had not been decided when the Thomsons failed to comply with State Farm’s legitimate request for EUOs. We do not retain jurisdiction. No costs, neither party having prevailed in full.
Reversed and remanded.
Hoekstra, J., concurred.
Evidently, State Farm referred this case to an internal “Special Investigation Unit” because of the size of the claim and the apparent lack of any sign of forced entry into the storage facility.
State Farm stated in its brief in support of its motion for summary disposition that it “took the recorded statements of the plaintiffs .. . . ”
These requests included (1) an April 4, 1996, letter from State Farm’s counsel stating that such counsel had attempted to contact the Thomsons’ counsel at least six times to schedule euos, (2) a May 8, 1996, letter from State Farm’s counsel advising that the file would be closed if the Thomsons’ counsel did not contact State Farm’s counsel within seven days to arrange for the euos, (3) following the letter of the Thomsons’ counsel of May 14, 1996, a May 17, 1996, letter from State Farm’s counsel again requesting euos and asking whether the Thomsons still refused to cooperate, (4) a June 14, 1996, letter from State Farm directly to the Thomsons requesting that they contact State Farm to arrange for the euos, and (5) the July 22, 1996, denial of claim on the basis of the Thomsons’ failure to submit to the euos.
The body of this letter read:
I understand your request for an examination under oath; what I do not understand is what purpose it will serve at this point. You have already had the locks tested, and your expert has concluded that they were not picked. Your adjuster has already taken Mr. Thomson’s statement which runs for approximately 26 pages. Your adjuster did not apparently believe my client, and I have little cause to believe that any examination under oath will suddenly convince your adjuster as to the veracity of my clients’ claims.
I do not believe that it is reasonable for my clients to submit to depositions [sic] unless there is additional information that you need. Some months ago I asked you what areas needed clarification. You never responded. I simply do not believe it is reasonable to have my clients make additional statements at this time.
The body of the letter stated:
Because of the recent case of Yeo v State Farm, we are now willing to allow State Farm to perform an examination under oath or, in the alternative, taking a Deposition [sic] in the above-referenced case. Since we are within the one-year provision for the “euo” I believe that it would be foolish not to proceed with the present case, and to get it resolved.
If you have any questions, please do not hesitate to contact me.
C-Suzanne involved an action removed from a New York state court to federal court on the basis of diversity of citizenship. C-Suzanne, supra at 109.
We note that State Farm cites Goldman v State Farm Fire General Ins Co, 660 So 2d 300 (Fla App, 1995), in support of its position that the Thomsons’ claims should be dismissed with prejudice. In Goldman, the court flatly stated, “[a]n insured’s refusal to comply with a demand for an examination under oath is a willful and material breach of an insurance contract which precludes the insured from recovery under the policy.” Id. at 303. This blanket statement is, at least with respect to the issue of dismissal with versus dismissal without prejudice, inconsistent with Yeo.
We note that the clarity of controlling case law is relevant to the determination whether an insured has engaged in a pattern of noncooperation with an insurer. In this case, before the release of the Yeo opinion, the insureds would not submit to an euo, but agreed to do so after their legal obligation in that regard was made clear by Yeo. We find it entirely appropriate to note that application of the same legal principle regarding a pattern of noncooperation will differ in any possible future cases in which an insured refuses to submit to an euo despite the opinion in Yeo (and in this case). We are therefore somewhat puzzled by the dissenting opinion’s assertion that we are “trying to engage in rule making for which [this Court] has no authority.” Post at 56. We recognize that in People v Sallee, 63 Mich App 146, 149; 234 NW2d 180 (1975), this Court stated that this Court “has no inherent rule-making power. What limited authority it has is by grace of the Supreme Court.” However, we do not purport to adopt a rule, but, rather, to enunciate with some clarity the legal principles inherent in our holding in this case. We also do not see the pertinence of Const 1963, art 3, § 8, which provides a procedure in certain circumstances for either house of the Legislature or the Governor to request an advisory opinion from the Michigan Supreme Court regarding the constitutionality of legislation.
While we recognize in our holding the right of an insurer to conduct an euo of an insured, we also recognize the limited, although certainly not inconsequential, importance of this right in light of the liberal discovery procedures available under the Michigan Rules of Evidence.
There is reference to a differing view of the importance of an euo, expressed in Goldman, n 7, supra at 305:
The policy does not provide that depositions may be substituted for examinations under oath as appellants suggest. Rather, depositions and examinations under oath serve vastly different purposes. First, the obligation to sit for an examination under oath is contractual rather than arising out of the rules of civil procedure. Second, an insured’s counsel plays a different role during examinations under oath than during depositions. Third, examinations under oath are taken before litigation to augment the insurer’s investigation of the claim while a deposition is not part of the claim investigation process. Fourth, an insured has a duty to volunteer information related to the claim during an examination under oath in accordance with the policy while he would have no such obligation in a deposition. Finally, the insurer has the right to examine [the] insured independently in sworn examinations while it would have no parallel right to do so under the Florida Rules of Civil Procedure.
In this regard, one pertinent difference between an euo and a deposition under the Michigan Court Rules in this case is that State Farm would be able to question William Thomson and Susan Thomson outside the other’s presence at separate euos. In contrast, at a deposition, MCR 2.306 contemplates that all parties to the action would have a right to attend the deposition so that, as parties to this action, William Thomson and Susan Thomson could not be excluded from each other’s depositions. MCR 2.306(B)(1) provides that “[a] party desiring to take the deposition of a person on oral examination must give reasonable notice in writing to every other party to the action.” MCR 2.306(C)(1) provides that “[e]xamination and cross-examination of the witness [at the deposition] shall proceed as permitted at a trial under the Michigan Rules of Evidence.” In order to be able to effectively conduct such cross-examination, a party would, of course, have to be allowed to be present throughout the deposition. While we do not find the Thomsons’ breach of their obligation to submit to euos necessarily constitutes a substantial breach of contract, it was clearly at least a minor breach. As indicated above, to remedy that breach, William Thomson and Susan Thomson must individually make themselves available to State Farm for euos forthwith after the dismissal of this case as a precondition to the Thomsons’ refiling this action. | [
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Boyle, J.
i
In this case we consider whether provisions of the Federal Boat Safety Act (fbsa), 46 USC 4301-4311, preclude claims of negligence arising from the failure to design, manufacture, or equip a recreational motorboat with a propeller guard and the failure to warn others of the dangers associated with the unguarded propeller. We hold that plaintiffs claims are preempted by the actions of the National Boating Safety Advisory Council and the concomitant acceptance by the United States Coast Guard of the recommendation that it “should take no regulatory action to require propeller guards” that were made under the authority of the Federal Boat Safety Act.
n
Plaintiff-appellant’s husband, Stephen J. Ryan, died on September 23, 1989, from injuries he received when he was struck by the propeller of a motorboat while he was swimming. Plaintiff brought this wrongful death action against Bayliner Marine Corporation, Mercury Marine, Division of Brunswick Corporation, Brunswick Corporation, Carl Stims Marine, and Blue Fin Marina. Motions for partial summary disposition were granted pursuant to MCR 2.116(C)(4) and 2.116(C)(8) on behalf of defendants Bayliner Marine Corporation, Mercury Marine, Brunswick Corporation, and Blue Fin Marina.
Following the grant of the motions for partial summary disposition, a stipulation by the parties and an order of dismissal with prejudice of all claims not covered by the court’s order was entered. The Court of Appeals affirmed the grant of partial summary disposition, agreeing that the claims were preempted. Because neither Blue Fin Marina nor Carl Stims Marine have participated in the appellate proceedings, the primary defendant in this appeal is Brunswick Corporation.
ni
The purpose of the fbsa is to promote boating safety. To this end, the act provides a coordinated national boating safety program that unites the federal government and states in an effort to compel manufacturers to provide safer boats and boating equipment to the public. Achievement of this objective is encouraged by requiring that manufacturers comply with safety standards promulgated by the Secretary of Transportation. S Rep No 92-248, 1971 US Code Cong & Admin News (85 Stat 213) 1333. Incentives to state participation are provided through federal grant-in-aid payments to states that have, or that develop, an accepted boat safety program.
Congress grants the Secretary of Transportation exclusive authority to establish national safety standards for recreational vessels and associated equipment. 46 USC 4302(a)(1). To facilitate this duty, the secretary has the option to delegate regulatory functions to a designated agency that then operates under its supervision. 46 USC 4303(a). The United States Coast Guard has been designated as that agency. Carstensen v Brunswick Corp, 49 F3d 430, 431 (CA 8, 1995), cert den 516 US 866; 116 S Ct 182; 133 L Ed 2d 120 (1995).
Pursuant to the act, the secretary must consult with the National Boating Safety Advisory Council (nbsac) concerning the need for regulation in a given area and the extent to which proposed regulations will contribute to recreational boating safety. 46 USC 4302(c)(4). In accordance with the act, nbsac was consulted, and, in 1988, at the request of the Coast Guard, a subcommittee was appointed for the purpose of reviewing and analyzing data involving recreational boating accidents where persons in the water were struck by boat propellers. The subcommittee was commissioned to consider the feasibility of mechanical guards in preventing boat propeller injuries.
After a year-long study and public hearings, the subcommittee reached the unanimous conclusion that the “U.S. Coast Guard should take no regulatory action to require propeller guards.” Report of the Propeller Guard Subcommittee at 24 (November 7, 1989). The subcommittee resolved that “[t]he development and use of devices such as ‘propeller guards’ can ... be counter-productive and can create new hazards of equal or greater consequence.” Id. at 23. Of the possible negative effects, propeller guards were found to have the potential to “decrease an operator’s ability to maintain control over the boat at ‘normal’ speeds, increase the probability of striking a body in the water, and create a possibility of causing greater injury to those struck.” Mowery v Mercury Marine, Div of Brunswick Corp, 773 F Supp 1012, 1016 (ND Ohio, 1991) (emphasis in the original). The subcommittee’s recommendation that regulatory action to require propeller guards not be taken was accepted by both the NBSAC and the United States Coast Guard.
IV
In this case we are faced with the issue of determining whether plaintiff’s common-law products lia bility claims axe preempted under the Federal Boat Safety Act. We hold that they are.
The doctrine of federal preemption has its origin in the Supremacy Clause of article VI, cl 2, of the United States Constitution, which declares that the laws of the United States “shall be the supreme Law of the Land . . . .” Where the principles of federal preemption apply, state courts are deprived of subject matter jurisdiction. Congressional intent is the cornerstone of preemption analysis. People v Hegedus, 432 Mich 598, 607; 443 NW2d 127 (1989).
Federal provisions that invalidate state law must be narrowly tailored to support a presumption against preemption of state law. Medtronic, Inc v Lohr, 518 US 470, _; 116 S Ct 2240, 2250; 135 L Ed 2d 700 (1996). State police powers are not to be superseded unless that is the clear and unequivocal intent of Congress. Cipollone v Liggett Group, Inc, 505 US 504, 516; 112 S Ct 2608; 120 L Ed 2d 407 (1992). This is especially true where state regulation of matters relating to health and safety are involved. Hillsborough Co v Automated Medical Labs Inc, 471 US 707, 715; 105 S Ct 2371; 85 L Ed 2d 714 (1985).
Of fundamental importance to the resolution of this issue is the premise that the plain meaning of a statute must be given effect unless there is reason to believe that Congress intended a more restrictive reading. CSX Transportation Inc v Easterwood, 507 US 658; 113 S Ct 1732; 123 L Ed 2d 387 (1993). The viewing court seeks the intent of Congress from text and the “ ‘structure and purpose of the statute as a whole’ . . . [including] the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.” Medtronic, 116 S Ct 2251.
Federal preemption is either express or implied. If express, the intent of Congress to preempt state law must be clearly stated in the statute’s language or impliedly contained in the statute’s structure and purpose. Cipollone, supra at 516. In the absence of express preemption, implied preemption may exist in the form of conflict or field preemption. Conflict preemption acts to preempt state law to the extent that it is in direct conflict with federal law or with the purposes and objectives of Congress. Field preemption acts to preempt state law where federal law so thoroughly occupies a legislative field that it is reasonable to infer that Congress did not intend for states to supplement it. Cipollone, supra at 516. However, as seven members of the Cipollone Court agreed, when “Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a ‘reliable indicium of congressional intent with respect to state authority’ . . . ‘there is no need to infer congressional intent to pre-empt state laws from the substantive provisions’ of the legislation.” Id. at 517, quoting California Federal Savings & Loan Ass’n v Guerra, 479 US 272, 282; 107 S Ct 683; 93 L Ed 2d 613 (1987).
v
To resolve the issue of federal preemption before us we examine two provisions of the Federal Boat Safety Act, the federal preemption provision of § 4306, and the saving clause provision of subsection 4311(g). The federal preemption provision reads in relevant part:
[A] State . . . may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment . . . that is not identical to a regulation prescribed under section 4302 of this title. [46 USC 4306.]
The saving clause provides:
Compliance with this chapter or standards, regulations, or orders prescribed under this chapter does not relieve a person from liability at common law or under State law. [46 USC 4311(g).]
Plaintiff submits that the use of the term “law or regulation” in § 4306 of the statute is ambiguous and therefore incapable of preempting state common-law causes of action. We disagree, noting that “ ‘[t]he obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.’ ” Cipollone, supra at 521, citing San Diego Bldg Trades Council v Garmon, 359 US 236, 247; 79 S Ct 773; 3 L Ed 2d 775 (1959). “ ‘[State] regulation can be as effectively exerted through an award of damages as through some form of preventive relief.’ ” Id.
While common-law damages actions may constitute a form of state regulation, the issue before us is not whether the act preempts common-law remedies for claims supplementary to, but not inconsistent with, federal regulations. The threshold question is, rather, whether Congress intended that common-law causes of action such as those before this Court be considered a “law or regulation” under the act. We find that it did.
In Cipollone, supra, the United States Supreme Court was faced with the issue whether preemptive provisions of the Federal Cigarette Labeling and Advertising Act displaced the plaintiff’s common-law tort claims. At issue were two statutory provisions of the act, the first enacted in 1965 and the second in 1969. The 1965 provision was narrowly drafted and was found only to preempt cautionary statements. The 1969 version, however, was held to have expanded the act’s scope of preemption by mandating that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law . . . .” Cipollone, supra at 515. Interpreting the 1969 act to preempt common-law regulations, the Court wrote that “[t]he phrase ‘[n]o requirement or prohibition’ sweeps broadly and suggests no distinction between positive enactments and common law; to the contrary, those words easily encompass obligations that take the form of common-law rules.” Id. at 521.
Comparing the language in the 1969 preemption clause in Cipollone to the language used by Congress in the preemptive clause of the fbsa, we conclude that Congress intended the preemptive clause of the FBSA to reach claims that the product is defective for failure to have a propeller guard or to warn of the dangers of not having such a guard. In Cipollone, supra, the statute read “[n]o requirement or prohibition . . . shall be imposed under state law . . . .” The fbsa, on the other hand, declares that a state may not “enforce a law or regulation . . . imposing a requirement for associated equipment . . . .”46 USC 4306. Noting that Cipollone has defined state regulation as encompassing common-law damages actions, we find the difference in the language of the preemption provisions for the purposes of federal preemption to be insignificant.
In so finding, we are cognizant, however, of the Texas Supreme Court decision in Moore v Brunswick Bowling & Billiards Corp, 889 SW2d 246 (Tex, 1994), in which the court found, in an identical context, that the plaintiff’s products liability claims were not preempted by the FBSA. The learned panel of the Texas Supreme Court wrote:
We recognize that the term “law” can include both common law and statutory law. However, in Cipollone, the Supreme Court stated generally that “the presumption against pre-emption might give good reason to construe the phrase ‘state law’ in a pre-emption provision more narrowly than an identical phrase in another context.” [Id. at 249, quoting Cipollone, supra at 522. ][ ]
However, the Moore court, while perceiving “no basis in the language of the statute or legislative history” to find preemption, failed to address the “long history of preemption in maritime safety matters” that is premised on the need for uniformity and that “assures that manufacture for the domestic trade will not involve compliance with widely varying local regulations.” Nor did Moore acknowledge that a majority of the Cipollone Court, on which Moore relied, declined to adopt a narrow interpretation of the term “state law,” or that, because of the inherent conflict between state and federal law, the Cipollone Court preempted the plaintiffs claims that relied on a “state law ‘requirement or prohibition . . . with respect to . . . advertising or promotion.’ ”
While we agree that a preemption clause must be narrowly construed, having concluded that state law includes common-law actions, we cannot conclude other than that a state claim based on the absence of propeller guards is preempted by the federal decision that propeller guards should not be required. In so holding, we join numerous other courts that have held that “[cjommon law causes of action may constitute state regulation and ‘impose a requirement’ on manufacturers to have propeller guards through an award of damages.” Lewis v Brunswick Corp, 922 F Supp 613, 615 (SD Ga, 1996).
VI
Plaintiff also contends that the action taken by the Coast Guard was an informal decision rather than a formal regulation as required by the act. Section 4306 of the FBSA mandates that a state law or regulation shall be preempted if it is not identical to a regulation promulgated under the act. There is no dispute that the action taken by the Coast Guard was a determination not to regulate; propeller guard installation and use were not expressly prohibited by the Coast Guard. The Coast Guard did decide, however, that propeller guards should not be required on recreational watercraft.
A decision not to regulate does not automatically invoke preemption, but may carry the force of a positive enactment. Arkansas Electric Cooperative v Arkansas Public Service Comm, 461 US 375, 384; 103 S Ct 1905; 76 L Ed 2d 1 (1983). Nevertheless, when a federal agency has actively analyzed the proposed area of regulation and has deliberately concluded that regulation is not appropriate in a given area, federal inaction will preempt state law not identical to it. This is not to say that inaction indicated preemption, but rather that “ ‘[w]here a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the preemptive inference can be drawn — not from federal inaction alone, but from inaction joined with action.’ ” Toy Mfrs of America, Inc v Blumenthal, 986 F2d 615, 622 (CA 2, 1992), quoting Puerto Rico Dep’t of Consumer Affairs v Isla Petroleum Corp, 485 US 495, 503; 108 S Ct 1350; 99 L Ed 2d 582 (1988).
The Coast Guard’s decision not to require propeller guards on recreational vessels granted manufacturers the opportunity to choose whether or not they felt it wise to install propeller guards on recreational boats. Moss v Outboard Marine Corp, 915 F Supp 183, 186 (ED Cal, 1996); Mowery, supra at 1016. Holding defendants liable under state tort laws for failing to install a propeller guard would effectively eliminate that choice. Davis v Brunswick, 854 F Supp 1574, 1582 (ND Ga, 1993). More precisely, “it would allow juries to do what state legislatures cannot.” Id,. Accordingly, we find that the Coast Guard’s decision not to require propeller guards was an intentional and reasoned determination not to regulate in a given area and “[a]ny state law or regulation requiring manufacturers to install propeller guards would not be identical to the Coast Guard regulatory position.” Carstensen, 49 F3d 431.
vn
Plaintiff contends that the saving clause provision of subsection 4311(g), read in conjunction with the federal preemption provision of § 4306, provides a clear indication of the legislative intent not to preempt state common-law causes of action such as those involved here. We disagree.
As evidenced above, the plain meaning of the statute expresses the intent of Congress to preempt state law causes of action such as those brought by plaintiff. The legislative history surrounding the enactment of the fbsa also bears witness to that intent. Davis, supra at 1580.
In enacting the fbsa, Congress wrote that “the annual loss of life is of [a] sufficiently alarming proportion that the Federal Government should require products involved to be built to standards of safety commensurate with the risks associated with their use.” S Rep No 92-248, 1971 US Code Cong & Admin News (85 Stat 213) 1334 (emphasis added). States were encouraged to participate in this plan by implementing state boating safety programs. Id. at 1333. State participation was also to be encouraged in the enforcement of established regulations. Id. at 1334.
Delineating governmental responsibility in this manner was wholly consistent with the underlying goal of the act — to provide uniformity to the recreational boating industry. According to Congress, the “need for uniformity in standards if interstate commerce is not to be unduly impeded supports the establishment of uniform construction and equipment standards at the Federal level.” Id. at 1335 (emphasis added). At the same time, states are left free, and are encouraged, to regulate the operation and use of recreational vessels.
What was taken away by the federal preemption provision was in part restored by the saving clause provision of subsection 4311(g). The legislative history surrounding the enactment of the saving clause provision provides:
This section ... is intended to clarify that compliance with the Act or standards, regulations, or orders promulgated thereunder, does not relieve any person from liability at common law or under State law. The purpose of the section is to assure that in a product liability suit mere compliance by a manufacturer with the minimum standards promulgated under the Act will not be a complete defense to liability. [Id. at 1352 (emphasis added).]
We find that it would be inconsistent with the language of the statute and with the legislative intent to hold that the saving clause provision preserves plaintiffs claims from the reach of federal preemption. Thus, we join a long line of cases that have similarly held that common-law products liability actions alleging liability for failing to incorporate a propeller guard on a recreational vessel are expressly preempted under the fbsa. We find the analysis in these cases more persuasive than that of the sole case holding to the contrary.
Plaintiff contends that the defendant had a duty to design and manufacture a motor with a propeller guard. Because state regulations requiring propeller guards are preempted by the FBSA, and because the federal government currently does not require that motors be manufactured with propeller guards, we conclude that the grant of summary disposition pursuant to MCR 2.116(C)(4) and (C)(8) was proper.
vm
Plaintiffs common-law tort claims are preempted by the Federal Boat Safety Act. For these reasons, we affirm the Court of Appeals decision.
Mallett, C.J., and Brickley, Cavanagh, Riley, and Weaver, JJ., concurred with Boyle, J.
Kelly, J., took no part in the decision of this case.
Report of the Propeller Guard Subcommittee at 24 (November 7, 1989).
The complaint alleged that Mercury Marine was negligent in the design and manufacture of its inboard motor, propeller assembly, and replacement propeller system, and in failing to equip the propeller with a guard or protective device to prevent invasive cutting iiquries. Similar allegations were brought against the Bayliner and Brunswick Corporations.
Plaintiff contends that Blue Fin Marina was negligent in selling, retailing, distributing, and installing the unguarded replacement propeller, that Carl Stims Marine was negligent in retailing a defective boat and propeller assembly system, and that the defendants were negligent in failing to warn of the dangers associated with the unguarded motor and propeller system.
Because the plaintiff has not argued that the failure to warn claims should be severed from the claims of negligence for failure to install a propeller guard, we have not analyzed these claims separately.
Arguments on the motions were heard before Judge Michael E. Dodge in the Cass Circuit Court, and an order was entered on March 17, 1993, granting defendants’ motions and dismissing plaintiff’s propeller guard and duty to warn claims.
The trial court stated:
The Court: Based upon the briefs that have been filed and the argument that I have heard I am satisfied that the proper result here is partial summary disposition; that that is dictated by the federal doctrine of preemption; and that the cases which have been cited to me by defendants] in their briefs are applicable.
As both Judge Morris in Washtenaw County and Judge Giovan in Wayne County have indicated, it is clear to this Court that the statutory scheme set forth by the Federal Boat Safety Act does constitute preemption in this area; the Court finds that the goal of the act is to provide uniform regulations, and that a jury award would conflict with the objective of that act.
Federal law in my opinion has regulated this area, including common law tort claims, by deciding not to require propeller guards; therefore, plaintiffs tort claim for the absence of such a guard is expressly preempted by the act. Because this Court finds that federal law does preempt state law in this area, the Court necessarily lacks jurisdiction to hear this matter and, accordingly, partial summary disposition is appropriate under (C)(4) for the lack of subject matter jurisdiction, and also as I think correctly argued by the defendant, it fails to state a claim upon which relief can be granted because the failure to equip its product with a propeller guard or to warn of its absence is something that the manufacturer of an outboard or inboard outdrive boat propulsion unit cannot be held liable for. Since that is the case, I grant the defendant’s motion for partial summary disposition under both (C)(4) and (C)(8) for those reasons I’ve indicated.
This order was entered on March 26, 1993. The parties to the stipulation were defendants Mercury Marine, Brunswick Corporation, Bayliner Marine Corporation, Blue Fin Marina, and Carl Stims Marine.
209 Mich App 519, 526; 531 NW2d 793 (1995) (one member of the panel dissented, finding persuasive the reasoning of Moore v Brunswick Bowling & Billiards Corp, 889 SW2d 246 [Tex, 1994]).
The NBSAC is a twenty-one-member council, comprised of three groups of seven members. Each member of the council is appointed by the Secretary of Transportation and is considered to have particular “expertise, knowledge, and experience in recreational boating safety.” 46 USC 13110. The council is made up as follows:
(b)(1) The membership of the Council shall consist of—
(A) 7 representatives of State officials responsible for State boating safety programs;
(B) 7 representatives of recreational vessel manufacturers and associated equipment manufacturers; and
(C) 7 representatives of national recreational boating organizations and from the general public, at least 5 of whom shall be representatives of national recreational boating organizations. [46 USC 13110.]
The charge to the subcommittee was as follows:
* Review the available data on the prevention of propeller-strike accidents and Coast Guard study of various methods of shrouding propellers to prevent contact [with a] person in the water.
* Assess the arguments for and against some form of mechanical guard to protect against propeller strikes reflecting the positions of state boating law administrators, the recreational boating industry, and the boating public.
* Among points to be considered:
a. what is the incidence of such accidents?
b. is there a trend toward more or fewer such accidents?
c. what are the possible solutions and their advantages/disadvantages?
d. how is this problem being addressed in other nations?
e. what would be the direct costs and indirect costs (fuel economy, maintenance, etc.) of mechanical solutions?
f. can the risks be addressed adequately by education?
g. should the Coast Guard move towards a federal requirement for some [sic, kind?] of propeller guard?
h. assess the potential for propeller equipped with each of several propeller guard designs to cause injury. How much has the propeUer guard reduced the injury potential compared to the injury potential of the same propeller operating in an unguarded manner?
i. should only new boats and motors be equipped with propeller guards, or should all boats eventually be equipped with a guard?
j. what is the practical boat length limit beyond which propeller guards would not be required? are there other parameters which would dictate upper limits for guard installation? [Report of the Propeller Guard Subcommittee at 1 (November 7, 1989).]
Products liability claims in Michigan are based on a single statute, MCL 600.2946; MSA 27A.2946, and are fault based. Prentis v Yale Mfg Co, 421 Mich 670; 365 NW2d 176 (1984).
See also Cipollone v Liggett Group, Inc, 505 US 504, 516; 112 S Ct 2608; 120 L Ed 2d 407 (1992) (“ ‘[t]he purpose of Congress is the ultimate touchstone’ ” of preemption analysis, citing Malone v White Motor Corp, 435 US 497, 504; 98 S Ct 1185; 55 L Ed 2d 443 [1978], quoting Retail Clerks Int’l Ass’n v Schermerhorn, 375 US 96, 103; 84 S Ct 219; 11 L Ed 2d 179 [1963]); Mowery v Mercury Marine, Div of Brunswick Corp, supra at 1014 (“To determine whether a claim is preempted, a court must examine Congressional intent,” citing Schneidewind v ANR Pipeline Co, 485 US 293, 299-300; 108 S Ct 1145; 99 L Ed 2d 316 [1988]).
See Teper v Park West Galleries, 431 Mich 202, 208; 427 NW2d 535 (1988).
The Cipollone Court further noted:
We resort to principles of implied pre-emption — that is, inquiring whether Congress has occupied a particular field with the intent to supplant state law or whether state law actually conflicts with federal law . . . only when Congress has been silent with respect to pre-emption. [Id. at 532 (Blackmun, J., concurring in part and dissenting in part).]
But see Freightliner Corp v Myrick, 514 US 280, 289; 115 S Ct 1483; 131 L Ed 2d 385 (1995) (“At best, Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption; it does not establish a rule”).
The defendant contends both that a state may only regulate identically to federal regulation and, alternatively, that the language of the saving clause establishes a federal floor that the state may supplement. While we are inclined to believe that the latter is the more plausible view, because the former would make the saving clause a nullity, we need not resolve this question given our conclusion that a requirement for a propeller guard conflicts with the federal determination that propeller guards are not required.
505 US 519-520.
The 1965 version of the statute provided:
No statement relating to smoking and health, other than the [§ 4] statement . . . shall be required on any cigarette package. [Id. at 514.]
Goodwin v Bacon, 127 Wash 2d 50, 61; 896 P2d 673 (1995) (“The relevance of Cipollone is its definition of state regulation”).
See also Gorton v American Cyanamid Co, 194 Wis 2d 203, 215; 533 NW2d 746 (1995) (“[I]t is apparent that state constitutions, state statutes, and state regulations will all be encompassed within the definition of ‘state law.’ Also falling within the heading of state law [for federal preemption purposes], is the concept of state common law tort actions.”); Cortez v MTD Products, Inc, 927 F Supp 386, 390 (ND Cal, 1996) (“there is no apparent difference, for purposes of measuring preemptive reach, between a ‘requirement or prohibition . . . based on State law,’ on the one hand, and ... a ‘standard or regulation’ established by a State”); Edwards v Murray Chris-Craft Sportboats, Inc, 873 F Supp 618, 621 (MD Fla, 1994) (“The phrase ‘law or regulation’ in the subject preemption provision clearly encompasses common law actions”).
The Moore court also based its holding on the fact that Congress has, in various other statutes, directly referred to state common-law causes of action when it intended that those actions be preempted. The court noted that the existence of a saving clause, as well as the “significant state interest at issue,” provided grounds for its conclusion that common-law claims were not preempted by the FBSA. Id. at 251.
Id. at 250.
S Rep No 92-248, 1971 US Code Cong & Admin News (85 Stat 213) 1341.
Id.
Justice Stevens, joined by Chief Justice Rehnquist and Justices White and O’Connor, concluded that the term “state law” reached beyond “positive enactments” to include some common-law damages actions. Id. at 521. Justice Scalia, joined by Justice Thomas, concluded that all the plaintiffs common-law claims were preempted. Id. at 548. Only Justice Black-mun, joined by Justices Kennedy and Souter, so narrowly interpreted the statute as to conclude that the plaintiffs common-law actions were not preempted. Id. at 531-544.
The federal provision read in part, “[n]o requirement or prohibition . . . shall be imposed . . . with respect to advertising or promotion ....’’ Id. at 515.
Id. at 524.
Moore contends that the fact that the Cipollone statute did not contain a saving clause supported its conclusion that there was “no ‘good reason to believe’ that Congress meant less than it said.” Moore, 889 SW2d 250, n 7, quoting Cipollone, supra at 522. While a saving clause is an indication of Congressional intent, given the Court’s presumption against preemption in Cipollone and the narrow application by the plurality to the various claims at issue in the case, we are unable to conclude that the absence of the clause in that case is a distinction with a difference for this case.
See Moss v Outboard Marine Corp, 915 F Supp 183 (ED Cal, 1996); Carstensen v Brunswick Corp, supra; Davis v Brunswick Corp, 854 F Supp 1574 (ND Ga, 1993); Shield v Bayliner Marine Corp, 822 F Supp 81 (D Conn, 1993); Farner v Brunswick Corp, 239 Ill App 3d 885; 607 NE2d 562 (1992); Mowery v Mercury Marine, Div of Brunswick Corp, supra; Shields v Outboard Marine Corp, 776 F Supp 1579 (MD Ga, 1991); Denison v Brunswick Corp, Washtenaw Circuit Court (Docket No. 91-041618-CZ, July 10, 1992).
Plaintiff argues that the Federal Administrative Procedures Act, 5 USC 552-553, mandates that formal procedures of notice and publication be followed by an agency that seeks to promulgate rules. Because these formal procedures were not followed by the United States Coast Guard in the instant case, plaintiff contends that the decision not to require regulation in the area of propeller guards is not a formal regulation.
The defendant contends that the United States Coast Guard does not, and never has, provided notification of its intent not to regulate in a given area. As defendant argued, “[w]hy would you cut down trees to print raft after raft after raft of regulation that says ‘We’re not going to require this. We’re not going to require that. We’re not going to require this. We’re not going to require that’ ”? We agree with the defendant that it is nonsensical to require the United States Coast Guard to comply with notice provisions in a situation where the Coast Guard makes a reasoned determination not to regulate.
Freightliner v Myrick, n 11 supra at 286; see also Toy Mfrs of America, Inc v Blumenthal, 986 F2d 615, 622 (CA 2, 1992) (a federal decision not to regulate does not automatically invoke preemption of state law: “ ‘That was obviously not meant in an unqualified sense; otherwise, deliberate federal inaction could always imply pre-emption which cannot be,’ ” quoting Puerto Rico Dep’t of Consumer Affairs v Isla Petroleum Corp, 485 US 495, 503; 108 S Ct 1350; 99 L Ed 2d 582 [1988]).
“[A] federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left imregulated, and in that event would have as much pre-emptive force as a decision to regulate.” Id. at 384 (emphasis in the original).
See also Moss v Outboard Marine Corp, n 24 supra at 186; Carstensen v Brunswick Corp, supra at 431; Davis v Brunswick Corp, n 24 supra at 1582; Farner v Brunswick Corp, n 24 supra; Mowery v Mercury Marine Div of Brunswick Corp, supra at 1016; Shields v Outboard Marine Corp, n 24 supra at 1581.
See also Freightliner v Myrick, n 11 supra at 284-285; Stanley v Bertram-Trojan, Inc, 855 F Supp 657, 658 (SD NY, 1994) (“The critical difference between those cases and this is that propeller guards specifically were considered by the Coast Guard as a subject of regulation and were found not feasible because they may increase danger rather than reduce it. . . . There is no evidence here that the Coast Guard ever considered adopting regulations concerning safety standards for hatches”); Cortez v MTD Products, Inc, n 15 supra at 392-393; Riley v Becton Dickinson Vascular Access, Inc, 913 F Supp 879, 893-894 (ED Pa, 1995); Baltimore & Ohio R Co v Oberly, 837 F2d 108, 115 (CA 3, 1988) (the EPA’s simple statement that it was “ ‘unnecessary for EPA to establish further property line facility emission standards’ ” did not meet the level of specificity required to show that the agency intended to preempt state law).
As opposed to a hypothetical state regulation that required more flotation devices than those required by federal regulation, a determination in a given state that a product is defective for failure to have a propeller guard is a condemnation of the product line in the given state, a conclusion that directly implicates the statutory goal of uniformity. Prentis v Yale Mfg Co, n 8 supra at 689 (the whole product line is “at risk” in a design defect case).
See also Mowery v Mercury Marine Div of Brunswick Corp, supra at 1017; Shields v Outboard Marine Corp, n 24 supra at 1581 (“To allow a jury to decide the plaintiffs’ claim would set a precedent for allowing other juries nationwide to decide questions of boat safety, which would result in a patchwork of regulations clearly inconsistent with the purpose of the Act”).
See Medtronic, Inc v Lohr, supra, 116 S Ct 2258, in which the Court, in noting the general applicability of the federal regulations before it, wrote:
[T]his [is] quite unlike a case in which the Federal Government has weighed the competing interests relevant to the particular requirement in question, reached an unambiguous conclusion about how those competing considerations should be resolved in a particular case or set of cases, and implemented that conclusion via a specific mandate on manufacturers or producers.
The federal preemption provision provides:
This section provides for federal preemption in the issuance of boat and equipment safety standards. This conforms to the long history of preemption in maritime safety matters and is founded on the need for uniformity applicable to vessels moving in interstate commerce. In this case it also assures that manufacture for the domestic trade will not involve compliance with widely varying local requirements. At the same time, it was recognized that there may be serious hazards which are unique to a particular locale and which would justify variances at least with regard to the carriage or use of marine safety articles on boats. Therefore, the section does permit individual States to impose requirements with respect to carrying or using marine safety articles which go beyond the federal requirements when necessary to meet uniquely hazardous local conditions or circumstances. A right of disapproval, however, is reserved to the Secretary to insure that indiscriminate use of state authority does not seriously impinge on the basic need for uniformity.
The section does not preempt state law or regulation directed at safe boat operation and use, which was felt to be appropriately within the purview of state or local concern. [Id. at 1341 (emphasis added).]
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Sharpe, J.
In the summer of 1919 the plaintiff and one Harry Garson were engaged in conducting a motion picture theater in the city of Detroit, known as the Broadway Strand. The Famous Players-Lasky Corporation (a New York corporation, hereafter called the defendant) was then engaged in producing and distributing high grade films for such pictures. It desired to arrange for the exclusive exhibit of its pictures in one of the Detroit theaters for a term of years, and to that end entered into negotiations with plaintiff and Garson. Garson was unwilling to enter into such a contract, and an arrangement was made by which plaintiff purchased the interest of Garson in the leasehold and theater for the sum of $12,000. This money was loaned by defendant to plaintiff, a demand note being given therefor. A contract was then executed between plaintiff and defendant (Exhibit A) providing for the exhibition of such pictures for the term of five years on terms and conditions to be stated in what is called a “booking contract,” to be entered into each year, the first of which (Exhibit B) was executed on the same day, to be effective from September 28, 1919, to September 28, 1920. Booking contracts', having the same purpose in view but differing in their terms, were entered into at the expiration of the first and second years thereafter (Exhibits C and D). The parties could not agree on the terms of a contract for the following year. Defendant was insistent that a sum then due it for film rentals should be at once paid. Apprehending, as plaintiff claims, that defendant did not intend to enter into a new booking contract for the following year, he sought to make payment conditional thereon. Negotiations were kept up for some time, but were ended on July 19, 1922, by a letter written by defendant, in which it stated, “We consider our business relations at an end.” Two days later, plaintiff filed his bill of complaint herein. In it he avers that the contracts “Exhibit A” and “Exhibit D” are still in force and 'his readiness to perform the same. The relief prayed for in the bill as filed was for an order restraining the defendant “from entering into any contract or carrying out any agreement or exhibiting or attempting to exhibit or advertise the exhibition of any photo plays, films, or motion pictures in any theater in the city of Detroit, other than the Broadway Strand Theatre,” in violation of said contracts. At the opening of the trial, nearly four years thereafter, he asked and obtained leave to amend the prayer of the bill! to pray for an accounting. On the filing of the bill a temporary restraining order was issued, but later, on defendant’s motion, was dissolved. An application to this court to reinstate it was denied. Gleichman v. Wayne Circuit Judge, 221 Mich. 355. After a hearing on the merits, the trial court entered a decree dismissing the bill of ' complaint. Plaintiff appeals.
The rights and obligations of these parties must be determined from a consideration of the contract first entered into (Exhibit A) and that last entered into (Exhibit D). There had been full performance under Exhibits B and C. In Exhibit A the plaintiff agreed:
(1) To repay to defendant in stated installments the money loaned him.
(2) To contract with defendant for and to ex clusively exhibit its motion picture productions in the Broadway Strand Theatre for the period of five years, on terms to be agreed upon in booking contracts to be entered into each year.
The defendant agreed:
(1) To accept the payments in installments provided plaintiff kept his agreement. In case of default, it might declare the entire sum due and payable.
(2) To contract with plaintiff for the exhibition of such productions as above stated and to fill the entire time of the theater therewith.
In Exhibit D the plaintiff agreed:
(1) To exhibit the productions designated by and furnished him by the defendant as stated therein.
(2) To pay as a license fee for the right to exhibit such pictures a guaranteed minimum of $1,500 per week and in addition thereto a sum equal to 50 per cent, of the amount of the gross admission receipts after deducting therefrom the actual operating expenses (not including the guaranteed license fee), plus $2,100 for the first two weeks of such exhibition and 50 per cent, of the weekly receipts after deducting the actual operating expenses for each week thereafter.
(3) To pay the $1,500 minimum license fee 7 days prior to the week for which the production was licensed and the balance thereof on or before Tuesday of the week following the production.
(4) To exhibit such productions only at the Broadway Strand Theatre and on the days designated by the distributor.
(5) To charge a minimum admission fee of 20 cents.
(6) To use only the advertising matter furnished by the defendant and to return the same and all reels, containers, etc., in good condition, paying for any damage thereto at a price agreed upon.
(7) Not to assign or transfer the license granted.
(8) To serve written notice on defendant of any claim for damages for nonperformance, and not to begin action therefor within 60 days from the date of the act complained of, and that no action should be maintained unless commenced within 60 days thereafter.
The defendant agreed:
(1) To grant a license to plaintiff to exhibit its productions.
(2) To give plaintiff at least 10 days’ notice of the dates when each of such productions would be furnished to him for exhibition.
(3) To pay to the plaintiff a stipulated sum on failure to deliver a production as provided for therein.
It is plaintiff’s claim that he and the defendant were engaged in a joint adventure, and that, although he would now gain nothing by a decree granting injunctive relief, he is entitled to an accounting. It is defendant’s claim that their relationship was that of licensor and licensee.
As the rights of third persons are not here involved, “the intention of the parties is of prime importance.” Morrison v. Meister, 212 Mich. 516, 619.
' “The usual test of a partnership as between the ■ parties to a joint adventure is their intent to become partners.” 15 R. C. L. p. 501.
This intent must be gathered from the four corners of the instruments executed by them and the manner in which they conducted the business under them. A joint adventure has been defined by this court to be “an association of two or more persons to carry out a single business enterprise for profit.” Fletcher v. Fletcher, 206 Mich. 153, 167. It was further said in that case: “It is true that there are some exceptions to this statement, but in the main it will be found to be true.” In Keiswetter v. Rubenstein, 235 Mich. 36, 45, it is said:
“While, under the present state of the law, courts do not treat a joint adventure as in all respects identical with a partnership, the contractual relations of the parties and nature of their association are so similar and closely akin to a partnership that it is commonly held their rights and liabilities are to be tested by the same rules that govern partnerships.”
Some of the provisions of our uniform partnership 'act (Act No. 72, Pub. Acts 1917 [Comp. Laws Supp. 1922, § 7966]) may well be considered:
“A partnership is an association of two or more persons to carry on as co-owners a business for profit.” § 6, subd. 1.
“The sharing of gross returns does not of itself establish a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived.” § 7, subd. 3.
“Where, by any wrongful act or omission of any partner acting in the ordinary course of the business or the partnership, or with the authority of ‘his co-partners, loss or injury is caused .to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.” § 13,
“All partners have equal rights in the management and conduct of the partnership business.” . § 18, subd. e.
“A partner is .co-owner with his partners of specific partnership property holding as a tenant in partnership.” § 25, subd. 1.
If we apply the law as thus stated, the absence of the indicia of partnerships is apparent. As was said by Mr. Justice Fellows in Morrison v. Meister, supra:
“There was no firm name, no firm funds, no firm accounts, no firm letterheads, no firm bank account, no commingling of funds or property, no certificate of partnership filed, no agreement as- to losses.”
It is urged that, notwithstanding the lack of these, the relation of joint adventurers may exist. This relation is a creature of the law. It is not referred to .in any statute. We have not been-able to find any definition of it or state of facts in any reported case which may be said to apply to those here presented. Counsel stress the fact that the .earnings were to be divided. In Beecher v. Bush, 45 Mich. 188 (40 Am. Rep. 465), it was held (syllabus) :
“An arrangement by which one man ‘hires the use’ of another’s building from day to day and opens and keeps it as a hotel, paying the owner daily a sum ‘equal to one-third of the gross receipts and gross earnings,’ does not of itself constitute them partners.”
The effect of an agreement whereby the profits of a business are to 'be divided in its relation to the rights and obligations of the parties is discussed at length in this case by Mr. Justice Cooley, and may be read with profit. We quote therefrom:
“Except when one allows the public or individual dealers to be deceived by the appearances of partnership when none exists, he is never to be charged as a partner unless by contract and with intent he had formed a relation in which the elements of partnership are to be found. And what are these? At the very least the following: Community of interest in some lawful commerce or business, for the conduct of which the parties are mutually principals of and agents for each other, with general powers within the scope of the business, which powers however by agreement between the parties themselves may be restricted at option, to the extent even of making one the sole agent of the others and of the business. * * *
“Beecher furnished the use of the hotel and a clerk to supervise the accounts, and received for so doing one-third the gross returns. It was not understood that he was to intermeddle in any way with the conduct of the business so long as Williams adhered to the terms of his contract. If the business was managed badly Beecher might be a loser, but how could he help himself? He, had reserved no right to correct the mistakes of Williams, supply his deficiencies or overrule his judgments. * * *
“We have not overlooked any one of the circumstances which on the argument were pointed out as peculiar to this case. None of them is inconsistent with the intent that Beecher was to be paid for the use of his building and furniture merely.”
In Thayer v. Augustine, 55 Mich. 187 (54 Am. Rep. 381), the plaintiff rented a building to defendant for a saloon, the rent to be one-half of the profits of the business, payable weekly. He brought suit therefor. Defendant claimed they were partners. This court said:
“The parties had no mutual interest in the capital invested, — the capital belonged exclusively to the defendant, and there was no stipulation for mutual loss. It is true the profits, if any, were to be divided; not however as proceeds of a joint venture by the parties, but to ascertain what amount of the proceeds of the individual enterprise carried on by the defendant would indicate the rent to be paid for the use of the building. There is nothing in the contract tending to show the parties understood it as constituting a partnership between them, and this is an action between, the parties, — one in which their intention, when ascertained, should prevail.”
The provision in the contract und'er which defendant was to receive a percentage of the profits was not inserted to secure to him a share of the profits as such. It is apparent that there was uncertainty as to the income which plaintiff would derive from the operation of his theater when restricting the exhibition of pictures therein to those produced by and furnished to bim by defendant. Defendant was willing that the sums to be paid to it for the use of the films and advertising matter, whether called license fees or rental, should be made somewhat dependent upon plaintiff’s receipts. To this end the provision relating thereto was inserted. The percentage to be paid, over1 and above the minimum agreed upon, was not as a share of the profits as profits. It was the yardstick by which to determine the total sum defendant should receive for the use of the films and advertising. • If the .receipts amounted to but the amount of the min irrmm and the operating expenses, it would get no more.
In Morrison v. Meister, supra, it was said:
“Sharing in profits may 'be evidence to be considered where the question of a partnership is involved, but it is not conclusive.”
In that case, the defendant, owner of a lot in Detroit, agreed with plaintiff that if he would erect a dwelling house thereon, when sold the plaintiff should have his money first, then defendant his money, and that the profits should be equally divided. It was held that no partnership relation existed.
“Persons cannot be made to assume the relation of partners, as between themselves, when their purpose is that no partnership shall exist. There is no reason why they may not enter into an agreement whereby one. of them shall participate in the profits arising from the management of particular property without 'his becoming a partner with the others, or without his acquiring an interest in the property itself, so as to effect a change of title.” London Assurance Co. v. Drennen, 116 U. S. 461, 472 (6 Sup. Ct. 442).
In Meehan v. Valentine, 145 U. S. 611, 625 (12 Sup. Ct. 972), the tests applied were: “Actual participar tion in the profits as principal,” or “that he authorized the business to be carried on in part for him or on his behalf.” In National Surety Co. v. Winslow, 143 Minn. 66 (173 N. W. 181), it was held that “a stipulated share of the net profits” in itself “does not create a partnership or joint adventure.” Another test which may well be applied is stated in Keiswetter v. Rubenstein, supra, in a quotation from Kokesh v. Price, 136 Minn. 304 (161 N. W. 715, 23 A. L. R. 643), as follows:
“When two persons are engaged in the prosecution of a joint enterprise, each has authority to act for both in respect to the means or agencies employed to execute the common purpose, and the negligence of one in the management thereof will be imputed to both.”
If plaintiff had at some time forcibly ejected a patron of the theater without cause, or had unlawfully refused admission to one entitled thereto, could it be claimed under these contracts that defendant was jointly liable with him therefor? A comprehensive note reviewing the decisions of the State and Federal courts on this question will be found in 18 L. R. A. (N. S.) at page 998 et seq. The weight of authority is in accord with the somewhat early New York case of Richardson v. Hughitt, 76 N. Y. 55 (32 Am. Rep. 267), wherein it was said:
“Where, then, one is only interested in the profits of a business as a means of compensation for services rendered, he is not a partner.”
That there was to be no division of the profits as such is apparent from the results of the operation during the last two months. The receipts were such that defendant under the contract was entitled to $5,393.63, while plaintiff’s loss was $7,208.65.
The advancement made by defendant was but a loan to plaintiff. While it would not have been made had not the contract (Exhibit A) been entered into, the obligation to pay the note was in no way dependent upon the success or failure of the theater as a business enterprise.
In the allowance for expenses there was included a sum which plaintiff testified was a salary paid to him. It cannot be said from this provision that defendant was paying plaintiff a salary to run the theater. It simply agreed that, after its minimum license fee or rental was paid, plaintiff should retain as a part of the operating expense a stated sum to compensate him in part for his personal services before the balance was divided.
Under the contracts defendant had no voice in the manner in which the business should be conducted by plaintiff except its insistence that the advertising it prepared should be used and a minimum admission fee be charged, and these solely for the purpose of increasing its license or rental charge. It incurred no liability to any person other than the plaintiff. The parties had no joint investment in property. The contracts fixed their rights and liabilities in every respect. On a breach by either, the other might declare the contract at an end and have an action for damages sustained thereby. The time within which plaintiff might bring such action was fixed in the contract. As was said by the trial court:
. “Except as fixed and determined by the contract itself, neither party had or was to exercise any proprietary interest or control over that which the other had and exclusively controlled. There.was no common property interest in what either party contributed to the business. There was no fixed scale providing for the ups and downs of the business to be applied alike to both parties at all times. One party took all the risk and shouldered all the loss all the time.”
Plaintiff makes no claim that the defendant has in its hands or under its control any money or property belonging to him, or to him and the defendant jointly. Should an accounting be ordered, the' only claim which plaintiff could present for allowance would be one for damages for defendant’s breach of the contract. For such a claim the courts of law are at all times open.
■ Under the provisions of these contracts, both the plaintiff and the defendant incurred certain obligations personal to each. There was no joint obligation. There was no service to be rendered by them jointly. There could be no indebtedness incurred for which they were jointly liable. There was no sharing of losses. While they were both interested in the success of the venture, such success, even if both of the parties fully performed, was dependent upon the patronage of the public, over which, except by the class of pictures exhibited, the advertising, and the conduct of the theater by plaintiff, they had no control. Suppose plaintiff had refused to accept the films from defendant and exhibit them as agreed. Would it be contended that defendant might then have taken possession of the theater and exhibited them itself? Clearly, its only relief would have been an action for damages for breach.
It is urged that “the law of the case has been already laid down” in our opinion in 221 Mich. 355, above referred to. The only question there considered was the action of the circuit court, in chancery, in dissolving the temporary injunction. It was there said:
“If this court were to reinstate the status quo we would be obliged to exercise our discretion on the questions of fact involved in the uncertain element of the contract.”
The legal effect of the contracts entered into, whether they constituted a joint adventure, was not decided. In fact, the opinion proceeds on the theory that plaintiff was seeking to enjoin the defendant from “attempting to avoid its contract with him.” In our opinion, the contracts did not constitute the parties joint adventurers.
The decree dismissing the bill is affirmed, with costs to appellees.
■ Flannigan, C. J., and Fellows, Wiest, Clark, McDonald, and Bird, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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On Rehearing.
WlEST, J.
In Wagner v. Wagner, 237 Mich. 371, we increased the award to defendant from $12,500 to $17,500. The record then before us showed the following testimony given by defendant:
“It'is not true that I have got $1,500 on a mortgage in Hamtramck; Tain’t got no money; nobody owes me money on mortgages, just the rent. * * * Nobody owes me money on notes.” _
June 2, 1927, plaintiff moved this court for leave to apply to the circuit court for a rehearing on the ground, that, at the time of the hearing in the circuit, defendant had on deposit in various banks in Detroit $11,290.15, and had $2,500 in United States savings certificates, as disclosed by the account of the special administrator of Mrs. Wagner’s estate, filed April 21, 1927. June 18, 1927, on our own motion, we ordered a rehearing in this court on briefs. April 12, 1927, defendant’s death was suggested of record and an exemplification of the probate record filed showing the appointment of the United States Trust Company as administrator.
We were misled by the testimony of Mrs. Wagner, and now exercise the remedial power at our command by modifying our decree to accord with the decree in the circuit. This reduces the award from $17,500 to $12,500. Under our decree an execution issued, a levy was made upon bank stock of plaintiff with sale thereunder to Wm. C. Roney & Company. Wm. C. Roney & Company, by petition, asks leave to intervene to protect rights as such purchaser. , The United States Trust Company, administrator of the estate of Suzanna Wagner, deceased, moves to strike the brief of plaintiff from the case, because it is entitled John Wagner v. Suzanna Wagner and not John Wagner v. United States Trust Company, administrator. We directed briefs to be filed, and will not strike from the case the brief filed by plaintiff for the technical reason alleged.
We did not stay the operation of our decree and the sale of the bank stock ought not to be set aside. If the- $17,500 has been collected from the plaintiff, the estate of Suzanna Wagner, deceased, must refund the sum of $5,000. If plaintiff has been made to pay any amount above $12,500 the estate of Suzanna Wagner, deceased, must make refund. This dis position renders it unnecessary to grant the execution purchaser leave to intervene.
The decree in this court will be modified to accord with this opinion, but without costs to either party.
Sharpe, C. J., and Bird, Fellows, Clark, and ■ McDonald, JJ., concurred.
The late Justice Snow and Justice Steere took no part in this decision. | [
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Flannigan, J.
This is an appeal from a decree dismissing the bill of complaint as to defendants Psiharis and Emma L. Magoon on their motion founded on the ground that plaintiffs were not entitled to any relief in- a court of equity on the case made or stated therein. The bill was dismissed as to defendant Edward D. Magoon by consent.
The material facts alleged in the bill and which, on this appeal, must be taken as true, are that plaintiffs and defendant Psiharis are copartners engaged in a restaurant business at 252 W. Western avenue, Muskegon. Defendant Emma L. Magoon is the owner of the premises. She leased for a term of five years from February 1, 1924, to a tenant who, with her written consent, assigned to the copartnership October 17, 1925. The restaurant proved a success financially and the partners, including Psiharis, determined to apply for a renewal lease. So confident were they a renewal lease could be negotiated that in anticipation thereof they improved the'building and equipment at a cost of several thousand dollars. With the-object of profiting personally, Psiharis, without the knowledge or consent of his copartners, secretly applied for and obtained from Mrs. Magoon a lease of the premises running to himself for a term of three years beginning at the expiration of the lease under which the copartnership is in occupancy. The rent reserved was $200 a month plus, as he claims, $600 cash in advance. Upon learning of the execution of the lease to Psiharis, plaintiffs requested an assignment to the copartnership, offering to pay him their proportion of the $600, and to perform in all respects the terms and conditions of the renewal lease. Psiharis would not listen, insisting the lease was his property and that his partners had no interest in it. Plaintiffs endeavored to obtain a copy of the lease to Psiharis but failed. That it contains a clause prohibiting assignment without consent of the lessor may be inferred from the briefs of counsel. When the bill was filed the lease under which the copartnership went into possession had nearly two years to run. The bill prayed for a decree ordering an assignment by Psiharis to the copartnership, re quiring consent to such assignment by Mrs. Magoon and for general relief.
. From the opinion of the learned circuit judge it. appears he did not conclude a case entitling plaintiffs to relief was not stated but that the bill was prematurely filed because the copartners were in quiet possession under a lease having at the date of hearing over a year to run “with no indication they will be ousted until the expiration of their present lease, at least, and possibly not then.” For that reason the bill was dismissed as to Psiharis and as to Mrs. Magoon for that and the further reason she was not a necessary or proper party.
Counsel for Mrs. Magoon, in their brief, consent, as far as she is concerned, to a decree holding Psiharis trustee of the renewal lease for his firm, but insist she is not interested and neither a necessary nor proper party and should not be put to the annoyance and expense of defending. We are not favored with a brief on behalf of Psiharis.
If plaintiffs are successful in proving the case stated in the bill, a decree declaring Psiharis a trustee of the renewal lease for the benefit of the firm should follow. It is generally held that where a copartnership is the holder of a lease and a member secretly takes a renewal lease in his own name and for his own benefit without the assent of his copartners, it will inure to the benefit of the firm, and he is to be treated as a trustee thereof for the firm. Mitchell v. Reed, 61 N. Y. 123 (19 Am. Rep. 252); Featherstonhaugh v. Fenwick, 17 Ves. Jr. 298; Knapp v. Reed, 88 Neb. 754 (130 N. W. 430, Ann. Cas. 1912B, 1095), and cases in annotations thereto in 32 L. R. A. (N. S.) 869. In Chittenden v. Witbeck, 50 Mich. 401, the doctrine was approved but held not applicable under the facts there presented. Justice Cooley, who wrote the opinion in that case, said:
“If these (Featherstonhaugh v. Fenwick, and Mit chell v. Reed) and similar cases are applicable to the facts now under investigation, we should not hesitate to apply them; for the general principle they declare is not only one‘of law but of common honesty.”
Where the rule' is otherwise applicable, it matters not that the new lease is upon different terms from the old one, or for a larger rent, or that it contains a covenant against assignment without the landlord’s consent, or that he would not have leased to the firm. Mitchell v. Reed, supra; Featherstonhaugh v. Fenwick, supra. See, also, Miller v. Pond, 214 Mich. 186 (17 A. L. R. 179), where it is held a covenant forbidding assignment of a lease to a copartnership without the consent of the lessor is not violated by the action of the lessees in taking in another partner.
A demurrer or motion to dismiss will lie to a bill on the ground it was prematurely filed only where it appears on its face it was filed before the plaintiff .became entitled to enforce his right. 21 C. J. p. 437. The bill in this case was not prematurely filed. It was not filed until after Psiharis obtained the renewal lease. The instant he obtained it, assuming he did so in the manner alleged in the bill, the copartnership became the equitable owner of it and plaintiffs became entitled to have it so decreed and to proceed at once for the enforcement of their right in that regard.
A lessor must bow to the occupancy of his premises by persons not of his choosing only where the facts bring the case within the operation of the rule referred to. He is entitled to his day in court to litigate the question whether the facts justify application of the rule. To that end, he may come in as plaintiff if he is not brought in as a defendant. An adjudication in a case against Psiharis would not foreclose Mrs. Magoon. She is entitled to contest on her own account the question Whether the renewal lease was taken by him surreptitiously and without the consent of his copartners. Her presence before the court is, therefore, essential to a full and final adjudication of the rights of all parties. The fundamental rule as to parties to suits in equity is that, however numerous they may be, all persons interested in the subject-matter of the suit and its results should be made parties. The reason for the rule is the aim of the court of equity to do complete justice by embracing the whole subject, deciding upon and settling the rights of all persons interested in the subject-matter, to make the performance of the orders perfectly safe to those who have to obey it, and to prevent further litigation. 21 C. J. p. 258.
The decree dismissing the bill as to defendants Emma L. Magoon and Psiharis is reversed and the case .remanded for further proceedings not inconsistent with this opinion. Plaintiffs will recover costs of both courts from defendant Psiharis.
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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Talbot, J.
Defendant appeals by leave granted from an interlocutory order denying his motion for summary disposition. We reverse and remand.
On November 3, 1995, plaintiffs filed a medical malpractice action against the physical therapy center of Weisman, Gitlin & Herkowitz, P.C., and against a “John Doe,” who was described as “one of defendant’s therapists.” On the same day, plaintiffs mailed written notice of their intent to sue to the offices of Weisman, Gitlin & Herkowitz, P.C. Their notice of intent to sue provided, in pertinent part:
This Notice is intended to apply to the following health care professionals, entities, and/or facilities as well as their employees or agents, actual or ostensible, thereof who were involved in the treatment of the patient, Steven Rheaume:
Weismann, Gitlin & Herkowitz, P.C. 3535 W. 13 Mile Road, Ste. 605, Royal Oak, Michigan, 48073 and all agents, physicians, physical therapists, and/or employees, actual or ostensible, thereof.
1. FACTUAL BASIS FOR CLAIM
On November 5, 1993, Steven Rheaume received physical therapy from Weisman, Gitlin & Herkowitz, P.C. Mr. Rheaume was instructed to leg press 300 pounds. During the exercise, his therapist adjusted the position of the leg machine so that he could not fully extend the weight. Immediately following the exercise, Mr. Rheaume noticed lower extremity pain that was later diagnosed as a herniated disc.
* * *
6. NAMES OF HEALTH PROFESSIONALS, ENTITIES, AND FACILITIES NOTIFIED
Weismann, Gitlin & Herkowitz, P.C. 3535 W. 13 Mile Road, Ste. 605, Royal Oak, Michigan, 48073 and all agents, physicians, physical therapists, and/or employees, actual or ostensible, thereof.
7. TO THOSE RECEIVING NOTICE: YOU SHOULD FURNISH THIS NOTICE TO ANY PERSON, ENTITY OR FACILITY, NOT SPECIFICALLY NAMED HEREIN, THAT YOU REASONABLY BELIEVE MIGHT BE ENCOMPASSED IN THIS CLAIM.
The statutory period of limitation applicable to plaintiffs’ medical malpractice claim was to expire on November 6, 1995; this fact is not disputed on appeal.
When plaintiffs filed their original complaint and mailed their notice of intent to sue, they did not know the name of the treating physical therapist. Plaintiffs had requested medical records from defendant, including those for the day in question, but no name was included in the records. In December 1995, plain tiffs learned that defendant Steven Vandenberg was the treating physical therapist when defendant’s attorney requested authorizations for the release of plaintiffs’ medical and employment records. Thereafter, on January 10, 1996, plaintiffs filed an amended complaint in which they replaced the “John Doe” defendant with Vandenberg’s name.
Defendant then moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that the period of limitation had expired. Defendant asserted that, because plaintiffs’ notice of intent to sue did not include his name, it did not operate to toll the period of limitation during the period before plaintiffs’ complaint was amended to include his name. The trial court denied defendant’s motion for summary disposition, explaining that it was satisfied that plaintiffs had made diligent efforts to ascertain defendant’s name and that plaintiffs’ notice of intent to sue was adequate. However, the trial court dismissed plaintiffs’ complaint without prejudice on the alternative ground that plaintiffs had failed to observe the 182-day presuit notice period mandated by subsection 2912b(l) of the Revised Judicature Act, MCL 600.2912b(l); MSA 27A.2912(2)(1). The trial court then extended the notice period until August 7, 1996, during which time the period of limitation would continue to be tolled. On August 7, 1996, plaintiffs again filed suit, this time against defendant only. Defendant again moved for summary disposition pursuant to MCR 2.116(C)(7), based on the statute of limitations defense, and the trial court again rejected defendant’s argument, indicating that its opinion had not changed.
On appeal, defendant argues that the trial court erred in denying his second motion for summary disposition. We agree. This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Guerra v Garratt, 222 Mich App 285, 288; 564 NW2d 121 (1997). When reviewing a motion granted pursuant to MCR 2.116(C)(7), we consider all affidavits, pleadings, and other documentary evidence submitted by the parties and, where appropriate, construe the pleadings in favor of the plaintiff. Smith v YMCA of Benton Harbor/St Joseph, 216 Mich App 552, 554; 550 NW2d 262 (1996).
Section 2912b of the Revised Judicature Act provides that “a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.” MCL 600.2912b(l); MSA 27A.2912(2)(1); see also Neal v Oakwood Hosp Corp, 226 Mich App 701, 704; 575 NW2d 68 (1997). With respect to the specific requirements of the notice, the section provides as follows:
The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the claimant.
(c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility.
(d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care.
(e) The manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice.
(f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim. [MCL 600.2912b(4); MSA 27A.2912(2) (4) (emphasis added).]
The period of limitation for malpractice claims is two years. MCL 600.5805(4); MSA 27A.5805(4). However, pursuant to MCL 600.5856(d); MSA 27A.5856(d), if notice is given in compliance with the requirements of § 2912b, the statute of limitations is tolled during the notice period mandated by § 2912b. Morrison v Dickinson, 217 Mich App 308, 313; 551 NW2d 449 (1996).
Plaintiffs contend that substantial compliance with the requirements of § 2912b resulting in actual notice to the defendant, is sufficient to toll the statute of limitations under MCL 600.5856(d); MSA 27A.5856(d). Resolution of this case turns on issues of statutory interpretation. The goal of statutory interpretation is to identify and to give effect to the intent of the Legislature. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995); Farrington v Total Petroleum, Inc, 442 Mich 201, 212; 501 NW2d 76 (1993). The first step in ascertaining such intent is to focus on the specific language of the statute. Turner, supra at 27. The Legislature is presumed to have intended the meaning it plainly expressed. McFarlane v McFarlane, 223 Mich App 119, 123; 566 NW2d 297 (1997). Accordingly, if the plain language of the statute is clear and unambiguous, further judicial construction is not permitted, and the statute must be applied as written. Turner, supra at 27; Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992).
The language of MCL 600.5856(d); MSA 27A.5856(d) clearly provides that the statute of limitations is tolled if the notice of intent to sue is given “in compliance with section 2912b.” (Emphasis added.) The negative implication of this section is that the statute of limitations is not tolled if the notice of intent to sue does not comply with § 2912b. The Legislature’s use of the word “shall” in subsection 4 of § 2912b makes mandatory the inclusion of the “names of all health professionals” notified of an intention to sue. See, e.g., In re Hall-Smith, 222 Mich App 470, 472; 564 NW2d 156 (1997) (explaining that use of the word “shall” indicates a mandatory, rather than a discretionary, provision). When understood in its plain and ordinary sense, the word “name” does not encompass the broad description of defendant Vandenberg that was included in the sixth paragraph of plaintiffs’ notice of intent to sue. This is so even when that broad description is considered in conjunction with the more specific factual description included in paragraph one of the notice. Simply put, a description is not a name. Because the specific statutory language of § 2912b is clear and unambiguous, we are bound to apply it as written. By failing to include defendant Vandenberg’s “name” in their notice of intent to sue, plaintiffs failed to comply with a specific mandatory requirement of § 2912b(4). Therefore, the statute of limitations was not tolled pursuant to MCL 600.5856(d); MSA 27A.5856(d), and plaintiffs’ complaint naming Vandenberg as a defendant was not timely filed. While there may be strong policy arguments to be made against the “name” requirement of subsection 2912b(4)(f), this Court is not the proper forum for those arguments. See Jennings v Southwood, 446 Mich 125, 142; 521 NW2d 230 (1994); Allstate Ins Co v Dep’t of Ins, 195 Mich App 538, 547; 491 NW2d 616 (1992).
Finally, plaintiffs have suggested two alternative grounds on which we might affirm the decision of the trial court. We are not persuaded by these arguments. Plaintiffs’ argument that the amended complaint specifically naming Vandenberg as a defendant related back to the timely filed “John Doe” complaint is without merit. The filing of a “John Doe” complaint does not toll the statute of limitation with respect to parties not yet specifically named. See, e.g., Thomas v Process Equipment Corp, 154 Mich App 78, 84; 397 NW2d 224 (1986). Moreover, plaintiffs’ arguments contesting the constitutionality of § 2912b axe also unconvincing, given this Court’s recent decision in Neal, supra at 716-723. For the reasons stated, we hold that the trial court should have granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7).
Reversed and remanded to the trial court with directions that an order of summary disposition be entered in favor of defendant. We do not retain jurisdiction.
In order to resolve this case on legal grounds, we will assume that defendant received actual notice of plaintiffs’ intent to sue within the limitations period. See Smith, supra at E[54.
In their brief on appeal, plaintiffs analogize the facts of this case to those of Wells v Detroit News, Inc, 360 Mich 634; 104 NW2d 767 (1960), a case in which the Michigan Supreme Court held that a plaintiff could amend his complaint after the statute of limitations had run in order to correct a “misnomer” in the naming of a corporate defendant. Because plaintiffs’ original notice of intent to sue did not contain any name for defendant Vandenberg, this case is distinguishable from the “misnomer” situation in Wells, supra. The result in this case may have been different if plaintiffs had included, but merely misspelled, defendant Vandenberg’s name in their notice of intent to sue. | [
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Sharpe, J.
The trial court made findings of fact and stated his conclusions of law applicable thereto. They so fully accord with our views that we adopt them as our own.
“Nelson W. Thompson died testate in Allen county, Indiana, February 22,. 1903, leaving a widow, Nancy Thompson, and no issue. His will provides:
‘“First: I give, devise and bequeath to my wife, Nancy Thompson, and her heirs, one-half of all my real and personal property wherever situated to have and to hold the same for her own proper use and' benefit. I also give and bequeath to my said wife the use and income from the other half of all my personal and real property so long as she. may live. I also will and direct that if it becomes necessary to use any of the principal for her comfort and support that shall be done so that she may not want for the comforts of this life.’
“The remainder of his estate is bequeathed to his brothers and sisters and children of a deceased sister. This will was duly admitted to probate at Fort Wayne in Allen county, Indiana, the domicile of deceased, on March 5, 1903, and George W. Thompson, of Grand Rapids, Michigan, was appointed administrator with the will annexed and duly qualified as such. After-wards, and upon March 24, 1903, a petition was filed in the probate court of Hillsdale county, Michigan, for an ancillary probate in said court of said will, as a foreign will, and upon April 20, 1903, the will was duly admitted to probate, and George W. Thompson was appointed administrator with the will annexed and duly qualified as such. The administrator made and filed an inventory of the property of said estate situated in Hillsdale county, Michigan, as follows: A farm of 184 acres, appraised at $7,440. House and lot in the village of Osseo, appraised at $300. Personal property, appraised at $987.55. There isn’t any evidence on this hearing that any bills or claims owing by Nelson W. Thompson were presented or allowed in the probate proceedings in Indiana.
“The evidence shows that an order was entered in the probate court for Hillsdale county on October 20, 1903, as follows:
“ ‘This being the day assigned by the court for hearing claims against said estate (Nelson W. Thompson estate) and it appearing from due proof on file that due notice of the hearing of claims by said court has been given as directed by the court, and no claims having been presented for examination and allowance:
“ ‘It is ordered that the time for presenting claims against said estate be and the same is hereby closed.’
“This order has never been modified nor set aside, and the estate has never been reopened for filing claims against it. The evidence shows that soon after the death of Nelson W. Thompson, and with the consent of the administrator, Nancy Thompson took possession of the house and lot and made extensive improvements by rebuilding the house, which was paid for out of life insurance money received on the death of Nelson W. Thompson. The proofs do not show whether this money belonged to Nancy Thompson or to- the estate. In this connection, she took possession of and exercised a supervision and control, by the consent of the administrator, over the farm, as is evidenced by the fact that the leases were approved by her before they became effective, and also by the fact that since Nancy Thompson’s death both administrators have handled the property jointly. True, George W. Thompson assisted her and signed the leases as administrator of Nelson W. Thompson’s estate, and assisted her in settling with the tenants and seeing to it that all income from the farm was given her. I think the evidence fairly shows that Nancy Thompson had possession and control of the farm as well as of the house and lot.
“George W. Thompson died in February, 1920, and on March 25, 1921, John R. Thompson, son of George W. Thompson, was duly appointed administrator de bonis non with will annexed, and qualified as such, and continued to handle the property for Nancy as had been done by his father. Nancy Thompson died testate at Osseo, Hillsdale county, Michigan, October 17, 1922, and had occupied the house and lot substantially all the time since her husband’s, death. Aaron Perrin was appointed and qualified as administrator with the will annexed of the estate of Nancy Thompson. After the death of Nancy Thompson, the property was handled jointly by the two administrators, and the proceeds divided equally between them, including the personal property on the farm. The amount or amounts are not stated.
“That about September 27, 1922, John R. Thompson, administrator of the estate of Nelson W. Thompson, petitioned said probate court for an order granting the right to sell the real estate belonging to the estate of Nelson W. Thompson. At the same time the administrator of Nancy Thompson’s estate petitioned said court for an order granting the right to sell the real estate belonging to Nancy Thompson, and described the property as an undivided one-half interest in the lands listed in the appraisal. Upon a hearing, the probate court licensed each of said administrators to sell an undivided half interest therein or sell it as a whole and divide the net proceeds of the sale equally between the estates.
“Pursuant to such order, a sale was made of the house and lot and the farm, and in due time the purchase price paid and deeds delivered. After paying costs of abstract, expenses of sale and back taxes of $1,140.98, etc., the balance was divided in equal parts, the administrator of the Nelson W. Thompson estate receiving. $3,650 and the administrator of the Nancy Thompson estate receiving $3,650. The evidence is not clear as to how this amount was arrived at, nor just what the taxes were, but each estate received net $8,650, and each estate paid half of the taxes. This division was by order of the probate court of Hillsdale county. After the above order and division of the proceeds of sale, John R. Thompson, administrator de bonis non of the estate of Nelson W. Thompson, filed a petition in said court in the nature of an appeal from the order of the probate court, setting up in a general way certain claimed proceedings had in; said estate, and therein charges that said ‘Estate and the will was duly probated and closed in the State of Indiana.’ Appellant claims that the order dividing the moneys received from such sale is without warrant or authority of law, and prays for an order requiring Aaron Perrin, administrator of the estate of Nancy Thompson with the will annexed, to turn over to the administrator of the Nelson W. Thompson estate all the proceeds in his hands received from such sale by the order of the probate court. Appellant does not ask that the sale be set aside. Appellant insists that all the moneys derived from the sale of the real estate should come into his hands, and all the debts of and claims against Nelson W. Thompson and the costs of administration be first paid, and then the proceeds divided, and that from the share, if any, belonging to the estate of Nancy Thompson all the taxes should be paid out of Nancy Thompson’s share except one-half the taxes after Nancy Thompson’s death.
“As I understand appellant’s contention, he is raising three questions only on the order of the probate court, namely:
“First: That he and the administrator preceding him have had actual possession of all the real and personal estate from the death of Nelson W. Thompson, deceased, till the time the order was made by the probate court.
“Second: That the taxes on the life estate should be paid by the life tenant and not out of the corpus'of the estate in remainder as was required by the probate order.
“Third: That he is entitled to the estate to pay debts and administration expenses.
“The will gave to Nancy Thompson one-half of the real and personal property in fee, and the life use of the other half. It also provides that if it becomes necessary to use any of the principal for her comfort and support that shall be done. The evidence does not bear out the contention of appellant that the administrators took, had, and retained possession of the real and all the personal estate. It shows that Nancy had the possession of both real and personal estate and the control of the same, and this by the consent of the administrators.
“Section 13850, 3 Comp. Laws 1915, provides that:
“ ‘The executor or administrator shall have a right to the possession of all the real as well as personal estate of the deceased * * * until the estate shall have been settled, or until delivered over by order of the probate court. * * * Provided, That whenever, on application of the heirs, or devisees, or any of them, it shall be made to appear to the said probate court that there are no debts or liabilities outstanding and unpaid against said estate, or that the personal estate of said deceased is amply sufficient for the payment of all claims or liabilities outstanding or allowed against the said estate, the said probate court shall thereupon, by order, deliver over the said real estate.’ * *
“The administrator now has one-half of this estate, including the personal property, and asks for an order for the other. The evidence shows there was and is personal property in this estate, and does not disclose any debts against Nelson W. Thompson estate. It may be that some expenses of administrator were incurred before the estate was turned over-to Nancy, but whether they were paid or not does not appear. Appellant insists that the costs and expenses for administering this estate from the time the administrator was appointed until he, as administrator, may close it, may amount to a large sum, and that the one-half given to Nancy and possessed and enjoyed by her should now be turned over to him to bear a share of such expenses.
“In the 199 Mich., at page 572 et seq. (Howes v. Barney), our Supreme Court said, in construing said section 13850:
“ ‘This statute has been construed by this court on numerous occasions. O’Connor v. Boylan, 49 Mich. 209; Kellogg v. Beeson, 58 Mich. 340; Rough v. Womer, 76 Mich. 375, citing the earlier cases; Pratt v. Millard, 154 Mich. 114. See Union Trust Co. v. Kirchberg, 174 Mich. 161. The substance of these constructions is that an administrator has no interest in the real estate and no right to the possession thereof except when there is insufficient personal property to pay the debts and expenses of administration. In commenting upon the statute it was said in Rough v. Womer, supra, that:
“ ‘ “It will be noticed that, while the executor has the right to the possession, that right is given in contemplation that it may become necessary to exercise it in the settlement of the estate for the purpose of the payment of claims against the estate. Hence it is that the duty of the executor is not made imperative to exercise the right in all cases, but is only permissible when the necessity arises for its exercise, and until such occasion does arise the heir or devisee, who has entered upon the enjoyment of his property and estate, ought not to be and cannot be lawfully disturbed. In other words, the right is given to the executor, and only accompanies the necessity for its exercise.”
“ ‘The holding in Pratt v. Millard, supra, is that:
“ ‘ “An administrator, either general or special, has no interest in the real estate, and no right to the possession thereof, except when there is insufficient personal property to pay the debts and expenses of administration.”
“ ‘The conditions present in the estate we are considering must be tested by this rule. The evidence discloses neither personal property nor debts. It did appear that some expenses had been incurred in administering the estate, but counsel for defendant meets this claim by pointing out that if there were expenses incurred in administering the estate, they had neither been passed upon nor allowed by the probate court, and until they were so passed upon they were not a liability against the estate — citing O’Connor v. Boylan, supra, and Kellogg v. Beeson, supra. We think these authorities sustain the claim made for them. We, therefore, have an estate in which there is a farm, a sole heir in possession, but neither personal property nor debts, and no expenses of administration, which have reached the stage where they are a liability against the estate. These circumstances bring the case within the contention of appellant that the plaintiff has no such interest as entitles him to the possession of the real estate in question.’
“Section 13799, 3 Comp. Laws 1915, provides that if possession be taken by devisees and legatees by con sent of the executor, the holding by them is subject to liability to the executor to make contribution for any deficiency in the personalty necessary for the payment of the debts or to make up the share of a child born after the making of the will, or of a child or the issue of a child omitted in the will.
“Our court, in construing sections 13799 and 13850, in 229 Mich., at page 522 (Chapin v. Chapin), says:
“ ‘These provisions have been construed in many cases. They are collected and discussed in Howes v. Barney, 199 Mich. 569, and Sylvester v. Button, 207 Mich. 24. The holding has been that where an heir or devisee enters into possession with the consent of the executor under section 13799 his possession may not be disturbed unless it appears that the real estate must be used for the payment of debts.’
“True, the administrator or executor cannot give legal or effective construction to the will; that is for the court. The case of Brown v. Forsche, 43 Mich. 492, is illustrative of the proceedings herein considered. See, also, In re Chipman’s Estate, 235 Mich. 130.
“Second. It was the duty of the life tenant in possession to pay the taxes on the property held by her as life tenant as well as the part held by her in fee, the life estate being producing property. Jenks v. Horton, 96 Mich. 13; Watkins v. Green, 101 Mich. 493; Poole v. Union Trust Co., 191 Mich. 162 (Ann. Cas. 1918E, 622).
“Third. Nancy Thompson in her lifetime, being in possession of the one-half of the estate given her in fee, as well as the one:half given her for life, and the one-half of the estate given her for life having after her decease been turned over to and being how in the possession of the administrator of the Nelson W. Thompson estate, and there being no debts and no expenses of administration established as a liability of the estate of Nelson W. Thompson, I am not persuaded that the moneys received from the sale of Nancy’s one-half interest in the real estate should be turned over to the administrator of Nelson W. Thompson’s estate.
“It follows that the order of the probate court should be modified by requiring the estate of Nancy Thompson to pay all the taxes on the life estate until the time of her death. In all other particulars the order to stand as made by the probate court.”
The order made pursuant thereto is affirmed.
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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Wiest, J.
In speaking of defendants we omit Louise Snyder for the reason later mentioned. Defendants appealed from a decree granting specific performance of a written contract between the parties to exchange properties. Plaintiff had an equity in a new apartment and store building in the city of Chicago, defendant Hazel Bredfeld owned property in South Haven, this State, and an exchange was contracted. The contract between the parties is too long to be set forth. Defendants claim they are released from the contract by reason of an alteration therein, not consented to by defendant Arthur L. Bredfeld. After the contract was executed plaintiff was notified, by the holder of an incumbrance on the Chicago property, that monthly deposits of $243.75 would have to be made to provide for- interest. The contract specifically mentioned the incumbrance and the alteration only called for monthly deposits to take care of interest defendants were to pay. Plaintiff took the matter up' with Hazel Bredfeid and Mrs. Bredfeid, after consulting her Chicago attorney, consented, in writing, to" adding of the following words to the contract: “Monthly deposit of $243.75 must be made to provide for interest.”
Hazel Bredfeid cannot press the point of an altera: tion of the contract, for she is bound by her consent to the added clause. Inasmuch as Mrs. Bredfeid owned the South Haven property, we fail to see any hurt occasioned her husband by her act. It is true that Mr. Bredfeid joined with his wife in executing the contract and agreed to become obligated with her on a note and is to take title to the Chicago property along with his wife, but, inasmuch as the agreement of the wife did not increase the indebtedness on the Chicago property to be assumed in accordance with the contract, we think the added clause did not void the contract. The contract was prepared in Illinois, and in that State it is said to be necessary, in order, for a married woman to convey perfect title, to have her husband join in- the conveyance. This explains to some extent the reason for Mr. Bredfeid being included as a party to the contract.
Plaintiff’s husband did not sign the copy of the contract given defendants, not being present when the others signed, but did sign the copy kept by plaintiff. We find nothing in this to excuse defendants from performance. See Goldstein v. Applebaum, 214 Mich. 538.
Defendants claim the abstract of the Chicago property shows mechanics’ liens and records in Chicago show suits pending there on such liens.
In the agreement the parties provided:
“It is mutually agreed, that each party is to furnish the other within a reasonable time from the date hereof, a complete merchantable abstract of title, or merchantable copy thereof, brought down to cover this date, or merchantable title guaranty policy made by Chicago Title & Trust Company showing good and sufficient title at date of this contract in the respective parties hereto to'the property■ hereby agreed to be conveyed by them.
. “It is further mutually agreed, that in case an abstract or copy be furnished, the party so receiving same shall within ten days after receiving such abstract or copy deliver to the other party or his agent (together with the abstract) a note or memorandum in writing, signed by him or his attorney, specifying in detail the objections he makes to the title, if any; or if none, then stating in substance that the same is satisfactory.
“In case material defects be found in said title, and so reported, then if such defects be not cured within sixty days after such notice thereof, this contract shall at the option of the party delivering such objections become absolutely null and void; notice of such election to be given to the other party; but the party delivering such objections may nevertheless elect to take such title'as it then is, and in such case the other party shall convey as above agreed; provided, however, that 'such party delivering such objections shall have first given a written notice of such election, within ten days after the expiration of the said sixty days and tendered performance hereof on his part. In default of such notice of election to receive such title and accompanying tender within the time so limited, the party delivering such objections shall, without further action by either party, be deemed to have abandoned his claim upon said premises and thereupon this contract shall cease to'have any force or effect as against said premises, or the title thereto, or any right or interest therein, but not otherwise.”
This covers the subject, and the course agreed upon must be pursued.
The contract provided that in the event it was recorded it should be void. When defendants con- eluded not to perform they placed the contract of record in Chicago, and now assert that such recording rendered the contract void. Why this provision was placed in the contract is not manifest, but it is certain that it was not intended, and should not be permitted, to serve the purpose attempted by defendants. Defendants are entitled to have what the contract calls for and plaintiff has the same right.
After the contract was signed defendants Bredfeld conveyed the South Haven property to defendant Louise Snyder. It is admitted that Louise Snyder has no rights as against plaintiff.
The decree in the circuit is affirmed, with costs to plaintiff.
Sharpe, C. J., and Bird, North, Flannigan, Fellows, Clark, and McDonald, JJ., concurred. | [
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McDonald, J.
The plaintiff is a corporation engaged in buying and selling dairy products at Saranac, Michigan. In December, 1910, William H. Proctor, William Gunn, and Frank J. Gifford were copartners engaged in the banking business at Saranac, Michigan, under the assumed name of the Farmers & Merchants Bank. The plaintiff opened an account with this bank, but, before doing so, required a bond in the penal sum of $3,000 to secure it from loss by reason of the money which 'it might deposit “from time to time.” Such a bond was furnished April 23, 1917, by the bank, with Albert C. Reed and Norman J. Ogilvie as sureties. The bank failed on April 13, 1923, at which time it owed the plaintiff on account of deposits the sum of $4,049. Mr. Reed died in January, 1925. This suit is an action on the bond against his estate and Norman J. Ogilvie as sureties. Findings of fact and law were filed and judgment was entered for the plaintiff in the sum of $3,000. The defendants have brought error.
They urge two defenses to the action. It is first contended that the bond on which the suit is based is not a continuing bond; that it was not intended to remain effective for a longer period than six months; and that, as the loss sustained by the plaintiff was on deposits made after that time, there is no liability on the part of the sureties.
The bond which is in the penal sum of $3,000 contains the following applicable recitals:
“Whereas, the said principal, the said Farmers & Merchants Bank, of Saranac, Michigan, is engaged in a general banking business in the village of Saranac aforesaid and as such receive from time to time for deposit in said bank moneys belonging to said Farmers Co-operative Creamery; and
“Whereas, it is the desire of the said principal to fully protect the said Farmers Co-operative Creamery against any loss which it might sustain by reason of the deposit of said moneys in said bank as aforesaid;
“Therefore, the condition of this obligation is such that if the said principal, the said Farmers & Merchants Bank shall at all times faithfully and truly account to the said Farmers Co-operative Creamery for any and all moneys which the said creamery may from time to time deposit in said bank and shall at all times save the said Farmers Cooperative Creamery harmless by reason of the depositing of the said moneys with said principal as aforesaid, then this obligation is to be void and of no effect; otherwise to remain in full force and effect.”
The language of the bond is plain and unambiguous. It is not necessary to go beyond it to ascertain the intention of the parties. It recites that the principal, the Farmers & Merchants Bank of Saranac, receives deposits of money “from time to time” from the plaintiff and that its purpose in giving the bond is to secure the plaintiff to1 the extent of $3,000 from loss by reason of such deposits which it may make “from time to time.” The words “from time to time” clearly indicate a continuing güaranty. They have been so construed. In 28 C. J. p. 962, it is said:
“Thus, where the instrument of guaranty states that the guaranty is for goods to be furnished or advances to be made from ‘time to time,’ the guaranty will be construed to be a continuing one.”
In support of this text, many cases are cited, including Crittenden v. Fiske, 46 Mich. 70 (41 Am. Rep. 146). It will be observed that in the bond in question the amount of the guaranty is limited to $3,000, but the specific time during which it shall continue is not stated. In Mathews v. Phelps, 61 Mich. 327, 332 (1 Am. St. Rep. 581), this court says:
“The general rule arising from the implication of the language used is that. when the amount of the liability is limited, and the time is not, the contract should be construed as a continuing guaranty.”
On the trial in the court below, the defendants undertook to show by extrinsic evidence that the parties intended to limit the time of liability to six months. This testimony was not competent' and the court properly refused to consider it. The intention of the parties is easily ascertainable from the language of the instrument. Parol proof was not admissible to show a different intention from that which the language used clearly imports. If it were the intention of the defendants to limit the time of the guaranty to six months, they should have seen to it that such a limitation was put in their contract. It is our conclusion on this question that the guaranty was a continuing one and covers all of the deposits made by the plaintiff to the extent of $3,000.'
As a second defense to the action, it is urged that, after the bond in suit was executed, on April 23, 1917, there was a change in the partnership .of the principal obligor, the legal effect of which was to discharge the sureties from further liability. Originally the partnership was composed of William H. Proctor, William Gunn, and Frank J. Gifford. Mr. Proctor died in January, 1917. The partnership was continued by the surviving parties. So that when the bond in question was given; on April 23, 1917, the partnership consisted of William Gunn and Frank J. Gifford. A few weeks after this, the exact date is uncertain, Mr. Gunn, who had bought the interest of Mr. Proctor from the estate, sold a one-sixth interest to Belle Gifford, wife of the other partner, Frank J. Gifford. On the' 19th of May, 1917, a certificate of copartnership was filed with the county clerk in which she was named as one of the partners. It is the claim of the defendants that this change in the personnel of the partnership releases the sureties. The general rule is well settled that, after the bond is given, any change in the personnel of the obligor’s partnership releases the sureties. White Sewing Machine Co. v. Hines, 61 Mich. 428; Mathews v. Garman, 110 Mich. 559.
On this question of the effect of adding Mrs. Gifford to the partnership, the trial court found, as a conclusion of law:
“That on May 8, 1917, when it is claimed Belle Gifford became a partner with William Gunn and Frank J. Gifford in the Farmers and Merchants Bank of Saranac, that Belle Gifford was the wife of Frank J. Gifford, and any so-called claimed partnership in which she assumed to become a member of the firm with her husband was null and void; that she could not become a partner with him or in a firm of which he was a member, and that, therefore, there was no change in the partnership; that it continued as it was on the date of giving the bond.”
Whether the addition of another partner to the principal obligor’s firm was beneficial or prejudicial to the sureties is not important. Their release, if they are released because of such fact, is on the theory that the change in the obligation by the substitution of new names has the effect of making a different contract on which they never intended to become liable. It has been held, however, that to operate as a release of the sureties, the change must be a valid one. In 28 C. J. p. 996, under the heading “Invalid Change,” it is said:
“The general rule stated presupposes that the change or alteration in the principal contract is a valid one, for if for any reason it is void and inoperative, the guarantor will not be released.”
The rule that the change must be valid in order to effect a release of the sureties is well illustrated in those cases involving an extension of time for performance by agreement of the original parties. It is held that an extension of the time, though it is a material, change in the contract and in many cases increases the guarantor’s risk, does not release him unless the agreement for extension is valid and binding. In order to be valid, it must be based on a consideration and be for a definite period. On this question there is no conflict in the authorities.
In the instant case, the change made by adding Mrs. Gifford to the partnership was invalid. The doctrine of the common law as to the disability of married women precludes a partnership between husband and wife.
“The important and sacred relations between husband and wife, which lie at the very foundation of civilized society, are not to be disturbed' and destroyed by contentions which may arise from such a community of property and a joint power of disposal and a mutual liability for the contracts and obligations of each other.” Artman v. Ferguson, 73 Mich. 146 (2 L. R. A. 343, 16 Am. St. Rep. 572).
In view of the fact that an attempt to add another partner to the principal obligor’s firm was invalid, the sureties on the bond were not released.
The judgment is affirmed, with costs to the plaintiff.
Sharpe, C. J., and Bird, Flannigan, Fellows', and Clark, JJ., concurred. Wiest, J., concurred in the result.
The late Justice Snow took no part in this decision. | [
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Fellows, J.
• A careful reading of this record satisfies us that the decree from which plaintiffs have appealed was more considerate of them than the record justifies. As defendants have not appealed, it can not be modified in their favor. The parties are all Polish people. Plaintiffs are husband and wife, and likewise are defendants. Plaintiffs had an equity in their home in Hamtramck. Defendants had practically completed a new house on Conley in what is spoken of as North Detroit. Plaintiffs desired a larger house and employed a Polish real estate agent to assist them. With their agent they visited the house and on two occasions inspected it from basement to attic. Both plaintiffs testify that certain representations were made by defendants, while both defendants deny that any representations were made by them. Plaintiffs did not call their agent or make any effort to secure his attendance as a witness. Their equity was turned in at $2,100 in the trade, and defendants’ new home at $8,000. The deal was closed May 20, 1924, and plaintiffs moved in shortly afterwards. Plaintiffs’ own testimony establishes that they learned within a month after they moved in that the house was not as they claim it was represented to be. Their principal complaint is that it was represented to be of good workmanship and material which they claim it was not. Plaintiffs made some monthly payments, and one of $900 required by the terms of the contract after they claim to have learned that they had been defrauded. Mr. Ponke was for a time out of work and defendants did not crowd for payments. After he had gone to work again, and being in arrears some eight months and still neglecting to make payments, they instituted summary proceedings before a circuit court commissioner and obtained a judgment for restitution, with the amount due under the terms of the contract fixed. This amount plaintiffs paid and instituted an action at law to recover their claimed damages and in affirmance of the contract. From the time of the instituting of the summary proceedings plaintiffs had the benefit of counsel. Again they were in default in their payments and again summary proceedings were instituted and carried into judgment with the amount due under the contract again fixed. They did not pay this amount, and were not evicted although their time for payment had expired. They, however, discontinued their action at law and filed the original bill in this case, seeking to restrain the enforcement of the judgment for restitution and asking that their damages be found. The bill was likewise in affirmance of the contract. An amended bill of like purport was filed. Nearly two years after the deal was closed plaintiffs filed another amended bill. In this amended bill they for the first time sought rescission of the contract.
We do not feel called upon to determine the question of whether the representations .were made or not. In the main they refer to the material used and the workmanship employed in building the house. Wfe are satisfied that defendants have established by a clear preponderance of the disinterested testimony that both the material used and the workmanship were good. They called the contractor, the materialman, the workmen on the job, all disinterested in the outcome of the case, and their testimony satisfies us that both material and workmanship were good. The learned trial judge found that the representations were made, and that some little things were needed to make the house a good job, and allowed plaintiffs $250 damages, but refused rescission. He set aside the judgment of the commissioner and allowed plaintiffs’ damages to be indorsed on the contract which he reinstated. If any one has cause for complaint, it is not the plaintiffs.
The decree will be affirmed, with costs of this court.
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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Sharpe, J.
On July 11, 1927, plaintiffs brought this action to recover the rental due from defendant under a 99-year lease of certain premises in the city of Detroit, entered into on December 29, 1922. A copy of the lease was annexed to the declaration. The bill of particulars stated the specific installments claimed to be .due. Defendant pleaded the general issue. On September 12th, plaintiffs moved for summary judgment. The motion was supported by the affidavit of Henry C. Smith, and was full and complete in every respect. On behalf of defendant an affidavit of merits, made by his son, Harry R. Applebaum, was filed, which, omitting the formal parts, reads as follows:
“That the cause of action arises upon a written lease, dated the 29th day of December, 1922, between the plaintiffs and the defendant; that the action is brought for installments due upon said lease which it is claimed the defendant has failed to pay; that the defendant is not indebted for said installments t.o said plaintiffs; that upon the 30th day of July, 1925, a corporation was formed under the laws of the State of Michigan, known as the Applebaum Realty Company, unto which corporation said defendant, Isaac Applebaum, conveyed certain property located within the State of Michigan which property was of the value of one hundred and seventy-one thousand and ten dollars ($171,010); that the stock in said company with the exception of one share was issued to the children of said defendant, Isaac Applebaum, or for their benefit; that among the property so transferred was the leasehold interest for payments under which this suit is brought; that deponent personally advised plaintiffs of said assignment and stated to plaintiffs that if said assignment was not accepted by them, and the defendant, Isaac Applebaum, released from the obligations of said lease, said corporation would not accept the leasehold or pay rental thereunder; that deponent was advised by the plaintiff, Henry C. Smith, that he, the said plaintiff, would subsequently advise deponent whether the plaintiffs would agree to the assignment of said lease to said Applebaum Realty Company, and to the release of Isaac Applebaum from the obligations thereof; that this conversation took place just prior to the incorporation of said company and that subsequently said company paid to plaintiffs, relying upon said proposal, the rental of said premises by the check of said Applebaum Realty Company as follows: July 21, 1925; October 19, 1925; January 25, 1926; April 27, 1926; August 17, 1926; December 15, 1926; March 11, 1927; all of which checks being for two thousand two hundred and fifty dollars ($2,250.00), and each of them bearing the indorsement of H. C. Smith or Henry C. Smith, the plaintiff in this action.
“That because of the foregoing, the said lease has been considered and is the property of the Applebaum Realty Company, said corporation, with the consent of the plaintiffs, and the defendant, Isaac Applebaum, has been relieved from the obligations under said lease, a.nd the defendant, Isaac Applebaum, is not indebted to the plaintiffs under said declaration.”
The trial court held this affidavit insufficient, and, after the plaintiff Henry C. Smith had testified to the amount due under the lease and the interest thereon, entered a judgment for the plaintiffs for $4,577.48, of which defendant seeks review by writ of error.
Under the statute (3 Comp. Laws 1915, § 12581), the plaintiffs were entitled to a summary judgment unless defendant filed an affidavit of merits. The requirements of such an affidavit under Circuit Court Rule No. 34, as amended (233 Mich, xxxiii), were discussed at some length by Mr. Justice McDonald in the recent case of Warren Webster & Co. v. Pelavin, ante, 19, 20. It was there said:
“It was intended by the amendment that the facts should be stated with such particularity that the court could determine if there was a good and substantial defense. * * * Since the amendment, it is the duty of the court to determine if there is a real defense to the action.”
The 19th paragraph of the lease reads, in part, as follows:
“The said lessee further agrees) that he may not sell or assign this lease and be released from liability thereon until he has given, or caused to be given, a good and sufficient surety bond in the sum of fifty thousand ($50,000) dollars, conditioned upon and guaranteeing the performance of all of the terms, conditions and covenants of this lease.”
The statements in the affidavit of merits, if proven on the trial, would not establish the fact that the realty company had been substituted as lessee in the place of the defendant. That affiant sought the consent of Henry C. Smith to a transfer of the lease from the defendant to the company, and that Smith informed him that he would later advise him if such consent would be given, in no way changed the relation of the parties. It is not claimed that such consent was given. The acceptance of the checks of the corporation for rent subsequently falling due cannot be construed into such a consent or into a waiver of the provision in the lease above quoted. The checks were not tendered conditionally. The rent might have been paid by the check of any person if accepted by plaintiff and payment thereon had. It is conceded that the rent was due and unpaid. A judgment was properly entered therefor.
It is affirmed, with costs to appellees.
North, Fellows, Wiest, Clark, McDonald, and Bird, JJ., concurred. Flannigan, C. J., did not sit. | [
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Sharpe, C. J.
This case was tried by the court without a jury. No findings were requested, made, or filed. We are therefore not informed as to the facts on which the trial court concluded as a matter of law that plaintiff could not recover on his claim nor defendant on his set-off. The statute and rule requiring findings of fact and conclusions of law in cases tried by the court without a jury have been of such long standing, and this court has so-many times declined to decide cases on records such as the one before us, that it seems unnecessary to indulge in further discussion or statement. See Alexander Co. v. Griggs, 240 Mich. 71.
The judgment is affirmed.
Bird, Flannigan, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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Wiest, J.
Plaintiff, beneficiary under a policy of life insurance issued by defendant to John Krajewski (her then husband) in May, 1923, had judgment in the circuit and defendant reviews by writ of error.
Defendant pleaded lapse of the policy for nonpay ment of premium and fraud perpetrated by a false representation in its procurement. The jury found the premium was paid, and we cannot hold the verdict on that question against the weight of evidence.
In the application for the policy Krajewski stated that he had not at any time used stimulants to excess. This representation, it was claimed by defendant, was material and false. Plaintiff claimed it was true. The policy was dated May 16, 1923. The insured died December 13, 1923; cause of death given in the coroner’s certificate, “acute dilatation of the heart.” There was no autopsy. As evidence that the insured used stimulants to excess, there was introduced at the trial a sworn bill for divorce, filed by plaintiff against the insured 21 days after the policy was issued. In that bill plaintiff alleged that:
* * * “He also during the greater portion of the married life of the parties hereto having indulged in intoxicating liquors to excess, your plaintiff showing that hardly a week has past (passed) during the past five years or more of her life with said defendant herein, that he has not become grossly intoxicated, ••s * *
“New Year’s Eve, 1923, the said defendant returned to his home in a drunken and stupified condition, together with a police officer, * * *.
“Your plaintiff further shows that said defendant herein at the date hereof and for some time in the past has been engaged in an employment at the Ford Motor Company, he for considerable time past and regularly pay days taking his money and visiting saloons and cafes with his boon companions, * * * he almost regularly on each pay day returning to his home at the hour of midnight or early hours of the morning in a drunken and intoxicated condition, and with funds almost exhausted.”
June 13, 1923, in the divorce case, plaintiff filed a verified petition for temporary alimony in which she stated:
“Deponent further says that since service of said summons and injunction as aforesaid, said defendant herein has continued in an intoxicated condition.”
Plaintiff testified at the trial that her husband was not a drunkard and did not use intoxicating liquors to excess, and claimed she gave the facts in her action for divorce to her attorney through an interpreter and made no claim that her husband was “a user of intoxicating liquor.” The interpreter mentioned died' before the trial. The bill for divorce also alleged, extreme and repeated cruelty, and the decree was granted on that ground. The allegations of plaintiff in the divorce case were admissible against her in this suit upon the policy. In a suit on an insurance policy by the beneficiary the falsity of a representation made by the insured in procuring the policy may be shown by admissions of the beneficiary.
As stated in Pope v. Allis, 115 U. S. 363, 370 (6 Sup. Ct. 69) :
“When a bill or answer in equity or a pleading in an action at law is sworn to by the party, it is competent evidence against him in another suit as a solemn admission by him of the truth of the facts stated. Studdy v. Sanders, 2 D. & R. 347; De Whelpdale v. Milburn, 5 Price, 485; Central Bridge v. Lowell, 15 Gray (Mass.), 106; Bliss v. Nichols, 12 Allen (Mass.), 443; Elliott v. Hayden, 104 Mass. 180; Cook v. Barr, 44 N. Y. 156; Taylor on Evidence (7th Ed.), § 1753; Greenleaf, Evidence, §§ 552) 555.”
See, also, Behr v. Insurance Co., 4 Fed. 357, a case very much like the one at bar.
Such admissions “are received in evidence because of the great probability that a party would not admit or state anything against himself or his own interest unless it were true.” Cook v. Barr, 44 N. Y. 156.
Plaintiff had a right to explain her claimed a(F\ missions, but when she placed the blame on an interpreter of her selection, and now dead, she en countered the salutary rule stated as follows in 10 R. C. L. p. 930:
“When two persons who speak different languages, and who cannot understand each other, converse through an interpreter, they adopt a mode of communication in which they assume that the interpreter is trustworthy, and each makes his language presumptively their own. Each acts upon the theory that the interpretation is correct. Each impliedly agrees that his language may be received through the interpreter. If nothing appears to show that their respective relations to the interpreter differ, they may be said to constitute him their joint agent to do for both that in which they have a joint interest. They wish to communicate with each other, they choose a mode of communication, they enter into conversation, and the words of the interpreter, which are their necessary medium of communication, are adopted by both, and made a part of their conversation as much as those which fall from their own lips. They cannot complain if the language of the interpreter is taken as their own by any one who is interested in the conversation.”
The attorney, in preparing the bill for divorce, had a right to rely upon the words of the interpreter and it is inconceivable that the allegations in the bill, with their particularity of dates and circumstances, could have found their way therein without information furnished by plaintiff. We have given attention to' the question of whether the allegations in the bill for divorce were in the nature of substantive evidence, because if not such there was no defense. The representation mentioned was material to the acceptance of the risk and the hazard assumed, and, if false, voided the policy. Whether false was a question of fact for the jury. If false the materiality thereof was a question of law for the court under the contract. The court refused the following instruction:
“I instruct you that if you believe from a pre ponderance of the evidence that at the time the policy in suit was issued, the insured, John Krajewski, was addicted to the use of stimulants to excess, then your verdict must be for the defendant, no cause of action.”
The court instructed the jury:
“If you find that the answer of John Krajewski to that question, that is, the question that I have read to you, ‘Have you at any time used stimulants to excess?’ If you find that the answer of John Krajewski to that question was false and you further find from the evidence that it was made with actual intent to deceive or if you find that it was false and that it materially affected either the acceptance of the risk or the hazard assumed by the company, then your verdict will be for the defendant, no cause of action. On the other hand, if you are not convinced by a preponderance of the evidence that the answer to that question was false or if you are convinced that it was false, but that it was not made with the actual intent to deceive, or being false, that it was not material to the acceptance of the risk or the hazard assumed by the company, then your verdict will be for the plaintiff.”
The court was in error in refusing the requested instruction and also in the instruction given.
Counsel for plaintiff thinks the instruction to the jury in accord with section 17, subdivision 4, chap. 2, pt. 3, Act No. 256, Pub. Acts 1917 (Comp. Laws Supp. 1922, § 9100 [161]). That statute provides:
“The falsity of any statement in the application for any policy covered by this chapter 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.”
It will be noted that this statute permits voidance of a policy, in case of a false statement, for any one of three reasons: (1) If made with actual intent to deceive; '(2) if it materially affected the acceptance of the risk; (3) iff it materially affected the hazard assumed by the insurer. The statute does not bar right to contract that a representation shall guide acceptance and assumption of the risk.
In Leach v. Insurance Co., 239 Mich. 10, we held that an insurance company could, of right, make such statements material in its contract, and quoted with approval the following from Bonewell v. Insurance Co., 160 Mich. 137:
“These questions may or may not be of importance to insurance companies. They certainly have the right to make them material. In all. lines of insurance the moral risk involved is regarded as of very great importance, and it cannot be said that an insurance company has not the right by its contract to make the questions which are here adverted to essential.”
If the statement was false the applicant for the insurance was well aware of its falsity, and if he stated the opposite of the truth there was an actual intent to deceive. The insurer had a right to know, upon the question of acceptance of the risk, whether the applicant was addicted to the excessive use of •intoxicating liquors. If the insured was an habitual drunkard or addicted to the use of intoxicating liquors to excess his habit materially affected the hazard assumed by the insurer. The statute invoked by plaintiff condones no fraud perpetrated by an applicant in obtaining insurance and whitens no lies inducing acceptance of the risk. The statute does save policies of insurance from voidance for inadvertent mistakes and mere errors not materially affecting acceptance of the risk or hazard assumed by the insurer.
For the error pointed out the judgment is reversed and a new trial granted, with costs to defendant.
Flannigan, C. J., and Fellows, Clark, McDonald, Bird, and Sharpe, JJ., concurred.
The late Justice SNOW took no part in this decision. | [
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Wiest, J.
In June, 1924, plaintiff filed a bill for divorce against defendant in the Washtenaw circuit. Defendant- appeared. February 11, 1925, the parties entered into a property settlement, in which plaintiff agreed to accept the sum of $1,250 and forever release defendant “from any and all claims of support and maintenance of myself and my minor child, Joseph West.” February 19, 1925, plaintiff was granted a divorce from the bonds of matrimony, awarded the care, custody, and maintenance of the child and granted the sum of $1 in lieu of dower. At the foot of the decree the circuit judge wrote: “The question of support for the minor child has not come before the court as yet.” Defendant borrowed the $1,250 and paid his wife in accordance with the agreement of February 11, 1925, and, believing himself free from all marital and paternal obligations, contracted another marriage a few weeks after the divorce decree. At the time of the decree the child was about seven years of age and since that time he has been with and supported by plaintiff. Plaintiff also had the household furniture, some of which she has sold.
October 26, 1926, plaintiff filed a petition' asking the court to require defendant to maintain the child, claiming that, on account of her ill health, the expense of operations and inability to work and earn money and the expense of maintaining the child, she had expended nearly all the money received from defendant and the sale of furniture. Defendant was notified, and, under special appearance, moved dismissal of the petition for want of jurisdiction of the subject-matter. This motion was denied. Defendant then answered and averred that he had been unable to repay the $1,250 he had borrowed and paid to plaintiff; that he had remarried and had to purchase new furniture and all he then had was an equity of $100 in a home he was purchasing on contract; that he was earning $40 per week as a tool maker and offered to take the child. At the hearing the needs of the child were made to appear and the pregnancy of defendant’s second wife disclosed. The court, by decree, required defendant to pay $10 per week for the maintenance of his child.
Defendant appealed and claims:
“(1) The circuit court was without jurisdiction to modify the decree so as to provide for alimony since the original decree of divorce did not provide for the payment of alimony.
“(2) That the plaintiff made no showing of such change of circumstances as to justify a modification of the original decree.
“(3) The custody of the minor child should have been granted to the defendant as prayed for in his answer to the petition.
“(4) The alimony granted in the modified decree for the support of the minor child is unreasonable and improper in amount.”
Defendant also relies upon the reasons alleged in his motion to dismiss.
If maintenance of a minor child is alimony then there is.some force in the second point. But if alimony is one thing and maintenance of a minor child distinctly another there is no merit in points 1 and 2. There is to be found in some opinions and statutes rather loose expressions upon the meaning of alimony, and we take this occasion, under call to do so, to point out the distinction between alimony and maintenance of a minor child.
In this State, husband and wife, during the pendency of a suit for divorce, may agree upon a property settlement, and, in the absence of fraud, duress, or mutual mistake, be bound thereby. But as parents of a minor child requiring maintenance, husband and wife cannot, by any agreement, take from the court the power, in case of divorce, to decree maintenance of the child. Divorce in this jurisdiction rests upon statutory provisions, and the statute allows the awarding of alimony to the wife upon dissolution of the marriage. The awarding of alimony is a statutory power; the maintenance of a child is a common-law obligation resting upon the father and enforced, in a divorce decree, under power conferred by statute. Alimony is the substitute for the common-law right of marital support. Care and maintenance for the minor child is not a substitute for the common-law obligation of the father to support .his child but an enforcement thereof in case of divorce. Defendant, as father of the child, is under common-law obligation to support his child. The divorce statute relative to the custody and maintenance of children of the parties is in recognition of the common-law obligation resting upon the father and leaves it to the court to prescribe the amount to 'be paid by the father for such purpose. Thel purpose is to assure support of the child, and, as long as the need exists, the obligation and power remain. Maintenance of a child is in no sense alimony, for alimony is a matter between husband and wife, while maintenance of a child rests upon the paternal relation. So solicitous is the law for the welfare of the child that the decree for such support survives the death of the father and may be amended to give the provision for the child’s maintenance the effect of a lien upon the estate with priority over rights of the widow and heirs. Creyts v. Creyts, 143 Mich. 375 (114 Am. St. Rep. 656). Alimony proceeds from the husband to the wife; maintenance allowance for a minor child proceeds from the father for the use and benefit of the child.
In Spain v. Spain, 177 Iowa, 249 (158 N. W. 529, L. R. A. 1917D, 319, Ann. Cas. 1918E, 1225), a divorce was granted the wife and she was given the custody of the child and nothing said in the decree about alimony or maintenance of the child. After the husband remarried the divorced wife asked to have the decree modified so as to award her alimony and maintenance money for the child. The court held there was n<3< jurisdiction to award her alimony, because the decree* in not giving her alimony, was to be taken as;, a denial of alimony, and, therefore, there was nothing to modify in that respect, but pointed out the distinction between alimony and maintenance of a child and held that the divorce did not relieve the father from supporting his child, and, though no provision for such support was in the decree, a subsequent application by the mother to modify the decree would be entertained, and decreed maintenance of the child.
The statute (3 Comp. Laws 1915, § 11407) provides :
“Upon pronouncing a sentence or decree of nullity of' a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court may make such further decree as it shall deem just and proper, concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of the parents the children, or any of them, shall remain.”
Here is a clear recognition of maintenance of minor children wholly apart from alimony. Alimony cannot be decreed unless prayed for and notice of such prayer given in an underwriting on the summons. Circuit Court Rule No. 19. The rule also requires the underwriting to state whether custody of children is. prayed, and, while this should be done,'we have held that failure to do so does not deprive the court of power to decree maintenance of minor children. This is because the statute constitutes such children special wards of the court and makes it thé duty of the court to safeguard their interests. In re Austin’s Estate, 173 Mich. 47 (Ann. Cas. 1914D, 749); Herman v. Wayne Circuit Judge, 236 Mich. 604; Johnson v. Johnson, 237 Mich. 563.
In the Austin Case, supra, we said:
“It is also well to bear in mind that distinction has been made by this court between alimony, strictly so called, and allowances for the maintenance of minor children;” citing Brown v. Brown, 135 Mich. 141; Pingree v. Pingree, 170 Mich. 36.
Failure to provide in the decree for maintenance of a minor child does not prevent the court from after-wards, on the petition, of one of the parents, making the proper provision. 3 Comp. Laws 1915, § 11408, gives continuing supervision over the subject of maintenance of minor children. It reads:
“The_ court may, from time to time afterwards, on the petition of either of the parents, revise and alter such decree concerning the care, custody and maintenance of the children, or any of them, and make a new decree concerning the same, as the circumstances of the parents, and the benefit of the children, shall require.”
This means that children must be cared for, and the court, in a decree for divorce or upon the foot of such decree, when moved by either parent to do so, may reform the decree to accord with the welfare of the child within the means and ability of the father. When the decree for divorce omits to provide maintenance for a minor child, the power to so provide is not lost but only in abeyance, and, when the power in such case is invoked, its exercise does not depend upon the change of circumstances following the decree, but upon the circumstances of the parents and the welfare of the child.
A casual reading of 3 Comp. Laws 1915, § 11414, might lead to the impression that the legislature recog nized no distinction between alimony and a provision for the maintenance of minor children, but such impression departs upon consideration of other provisions with reference to alimony and maintenance of minor children, for therein the legislature has clearly recognized the distinction.
The court had jurisdiction to make the decree appealed from. We think, however, from a consideration of all of the circumstances, inclusive of the earning power of defendant, his obligations and needs and ability to pay, that the maintenance order should be reduced to $5 per week.
So modified, the decree in the circuit is affirmed, but without costs to either party.
North, Fellows, Clark, McDonald, and Sharpe, J J., concurred.
Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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Bird, J.
The plaintiff recovered a judgment for $8,606.50 against defendant Homer E. Bailey on his promissory note given as part payment of the purchase price of a farm in Chippewa county. The purchase price of the farm was $48,000. An execution was levied on the land, and this bill was filed in aid of 'execution. The defendant Wiger answered and claimed affirmative relief. The Farmers & Merchants State Bank was permitted to intervene as a party defendant on its petition. It appears that plaintiff, for some time, has had the title to the farm. He conveyed it to his' brother, Albert A. Stegeman, in pursuance of a contract. Albert A. Stegeman then sold it to Homer E. Bailey in exchange for an interest in an apartment house in Minneapolis, $10,000 in cash, and a promissory note for $8,000, and conveyed the title to defendant Wiger at Bailey’s request, to secure the repajanent of the $10,000 loan which he had made to Bailey. Albert A. Stegeman transferred the $8,000 note he received from Bailey to plaintiff to cancel his indebtedness for the farm. The defendant bank claims that Bailey was indebted to it in a considerable amount for loans when Wiger loaned him the $10,000, and that it was agreed between Wiger, Bailey, and White, the bank’s president, that Wiger should hold the title to secure the bank loans as well as his own. Out of these facts the question of priorities arose. Plaintiff claims, as holder of the. note for purchase price, he is entitled to a vendor’s lien. Wiger claims a first lien for his loan, and the bank claims its loans to Bailey should be equally protected with Wiger’s loan. The trial court was of the opinion that the Wiger lien and the bank lien should take precedence over plaintiff’s vendor’s lien. The plaintiff has appealed from that holding.
This State has recognized vendors’ liens for purchase price of real estate from a very early date. In Michigan State Bank v. Hastings, 1 Doug. 225, 258 (41 Am. Dec. 549), it makes use of the following language:
“Such liens exist independently of any express agreement, and courts of equity enforce them, on the principle that a person having gotten the estate of another, ought not in conscience, as between them, to be allowed to keep it, and not pay the consideration money.”
It was observed in Dunton v. Outhouse, 64 Mich. 419, 425, that:
“The vendor’s lien upon sale of real estate has always been recognized in this State; the earliest reported case being that o f Carroll v. Van Rensselaer, Har. Ch. 225. The doctrine, generally stated, is that the vendor of land who has taken no security, although he has made an absolute deed and acknowledged the receipt of the purchase price, yet retains an equitable lien for the purchase money, unless there be an express or implied waiver and discharge of it, which will be enforced in equity against the vendee, volunteers, and all others claiming under him with notice; that is, against all persons except bona fide purchasers without notice.
“The equity arises independent of contract, and it is therefore immaterial that the seller had no intention to reserve such a lien. 2 Sugd. Vend. & P. 675. And if the purchaser alleges that the lien does not exist, for any reason, in a particular case, the burden is on him to show the circumstances which repel the presumption of its existence or rebut the equity.”
See, also, Biddle v. Biddle, 202 Mich. 160, 165; Lavin v. Lynch, 203 Mich. 143 (2 A. L. R. 804) ; 2 Jones on Liens (3d Ed.), § 1094.
There is little doubt that Albert A. Stegeman had a vendor’s lien on the land for the amount of his promissory note which he took as part payment of the farm. The question then is whether plaintiff to whom the note was assigned may enforce the lien. The authorities are not in harmony as to his right, but the great weight of authority is that the lien follows the note. Assignment of note given to- secure purchase money of land carries with it the vendor’s lien on the property. Kern v. Hazlerig, 11 Ind. 443 (71 Am. Dec. 360) ; Griffin v. Camack, 36 Ala. 695 (76 Am. Dec. 344) ; Hassell v. Hassell, 129 Ala. 326 (29 South. 695) ; Upland Land Co. v. Ginn, 144 Ind. 434 (43 N. E. 443, 55 Am. St. Rep. 181) ; State Bank of Iowa Falls v. Brown, 142 Iowa, 190 (119 N. W. 81); Honore’s Ex’r v. Bakewell, 6 B. Mon. (Ky.) 67 (36 Am. Rep. 493) ; Sloan v. Campbell, 71 Mo. 387; 39 Cyc. p. 1808; 27 R. C. L. p. 584. We are of the opinion that under these authorities the vendor’s lien followed the note and was enforceable in the hands of plaintiff, if no other equitable rights intervened.
The Bank’s Claim. There seems to be more than one reason why the contention of the bank cannot be sustained. (a) It does not appear by the proofs that any consideration was passed to Bailey for the security. If there was no consideration for tacking the bank’s loans on to the Wiger loan, the bank’s loans would certainly not be held to take precedence over plaintiff’s vendor’s lien. (6) It appears also that the loans to Bailey from the bank were antecedent debts. They were all owing at the time this deal was entered into, and this class of debts is not superior to a vendor’s lien, especially when the bank officers knew, as they did in this case, of the note which Bailey had given to Stegeman. Dunlap v. Burnett, 5 Smedes & M. (Miss.) 702; Shirley v. Sugar Refinery, 2 Edw. Ch. (N. Y.) 505, 512. Plaintiff had no notice of this arrangement between Wiger, White, and Bailey. Neither had the brother, Albert A. We are of the opinion that the defendant bank has no rights that are superior to plaintiff’s vendor’s lien.
Wiger’s Claim. Wiger is, undoubtedly, a mortgagee to the extent of his loan. He loaned this money to Bailey to pay on the farm. Had he been a bona fide mortgagee without notice of plaintiff’s vendor’s lien, his claim under the authorities would take precedence of the vendor’s lien, but he was not such mortgagee. He knew Bailey was purchasing the farm and giving Stegeman a promissory note for $8,000 in part payment on the purchase price. He knew the note was not secured, and he must be presumed to have known that Stegeman would have a vendor’s lien for the unsecured note of $8,000. But defendants say Albert A. Stegeman had notice that the conveyance to Wiger was to secure the Bailey loan for $10,000. He perhaps did, but knowledge as to how Bailey got the monejr with which to purchase the farm in part would not estop him from insisting on his vendor’s lien. The vendor would waive nothing by such knowledge. The important question is, What notice did the mortgagee have? In this case it is conceded that the mortgagee knew of the $8,000 unsecured note. The rule of priority in such cases is:
“As a general rule, whether or not a vendor’s lien takes precedence over a mortgage, deed of trust, or other conveyance given by the purchaser by way of security, depends upon whether the grantee takes such mortgage or other conveyance in good faith without notice of the existence of such lien, and for a valuable consideration.” 39 Cyc. p. 1817, and authorities cited.
Equitable Features. Wiger was assisting Bailey to buy this valuable farm. He took a deed of the farm to secure his loan of $10,000. He knew of the unsecured note given to Stegeman before he made his loan. His security is ample even if plaintiff’s vendor’s lien is declared superior to his. If plaintiff’s lien is declared to be inferior to Wiger’s it leaves him without any security and forces him to take care of secured creditors in a large amount of indebtedness in order to make his own claim. This does not appear to us quite equitable.
W¿ think the rights of the plaintiff are superior to those of the defendants, and the title from Stegeman to Wiger should be set aside to the extent of satisfying Stegeman’s execution. Defendants should have 30 days from the filing of this opinion in which to make payment of Stegeman’s claim, in default of which Stegeman should proceed with his execution and sell the farm or such part of it as is necessary to satisfy his claim. The plaintiff should be entitled to his costs.
Flannigan, C. J., and Wiest, J., concurred with Bird, J.
Sharpe, J.
The record consists largely of concessions made by the counsel for the respective parties and statements made by them as to what certain witnesses, if present, would testify to. A proper understanding of the issues presented seems to necessitate a more extended statement of the undisputed facts. The plaintiff held title • to a. part or ail of the lands described in the bill of complaint as security for money loaned by him to his brother Albert. ' Negotiations were had looking to the exchange of these lands by Albert with defendant Bailey for his equity’ in an apartment house in Minneapolis. Some preliminary contracts were entered into. The difference in values was $18,000. Bailey agreed to pay $10,000 of this in cash, and to turn over to Albert certain cattle notes for the balance. He sought to make a loan of $10,000 from the defendant bank. He was at that time indebted to it in about $19,000. It declined to make the loan. He then sought to obtain it from the defendant Wiger, the cashier of the bank. The negotiations resulted in the visit of Wiger and Mr. White, the president of the bank, to Sault Ste. Marie, where the details were finally agreed upon in the office of plaintiff’s attorney. Albert A. Stegeman was then present. Wiger there agreed to make the loan on condition that $15,000 of Bailey’s indebtedness to the bank should also be secured, and to this Bailey assented. Discussion was had as to the way in which it should be arranged, and it was finally decided to’ have Stegeman deed directly to Wiger. It was understood, however, that later Wiger should deed to Bailey, who would then give a mortgage to secure the $25,000. On the return of Wiger and White to; River Falls, Wisconsin, where they lived, Wiger sent a draft for $10,000 to a bank at Sault Ste. Marie, to be turned over
“upon receipt of a deed running to Mr. Wiger, on the lands and premises described in the bill of complaint filed in this cause, and an abstract showing good title, and a letter from Mr. Larmonth so stating.”
Stegeman thereupon secured a deed from the plaintiff. The $10,000 was turned over by the bank and the deeds and abstracts sent to Wiger. Bailey gave Albert’ A. Stegeman his note for $8,000. In satis fying his indebtedness to the plaintiff, Albert indorsed to him this $8,000 note. Plaintiff brought action thereon, and obtained a judgment, on which execution was issued and levy made on the lands, to enforce collection of which this bill was filed.
The record largely consists of the statements of counsel, agreed upon as a statement of facts. Among them is the following:
“Albert A. Stegeman, the owner of the property, who made the conveyance, had knowledge of the conditions existing between the parties, and of the indebtedness of the defendant Bailey to the Farmers & Merchants Bank. The details between these parties were fully gone over between Albert A. Stegeman and the defendants Bailey and Wiger.”
Mr. White, whose deposition was taken, testified:
“I had a conversation at the hotel with Mr. Albert Stegeman the afternoon before we left the Soo and he was telling me about this piece of land and how well located it was and that it was good security for anything that Mr. Wiger and the bank had coming from Mr. Bailey.”
In view of this evidence, I do not think that the statement of Mr. Justice Bied that “Plaintiff had no notice of this arrangement between Wiger, White, and Bailey. Neither had the 'brother, Albert A.,” is warranted. Albert certainly was familiar with all the details of the deal.
That a vendor’s lien may exist and be enforced in courts of equity in this State admits of no doubt. The right thus conferred is a creature of equity, founded upon the doctrine that a vendee should not be permitted to retain that which he has purchased from another without paying for it. It is implied as an incident of the purchase and sale. The right thereto may, however, be waived, and enforcement of it may be refused when any other equity is presented stronger than the vendor’s right thereto. This, exception to the right of enforcement runs through nearly all of the cases in which such a lien was considered. In Palmer v. Sterling, 41 Mich. 218, 220, a lien was said to exist “where nothing is done to waive or lose it;” in Hiscock v. Norton, 42 Mich. 320, 325, “unless circumstances are found which repel the presumption,” and among such circumstances are said to be “the formation of arrangements between the parties, which .suffice to make out that reliance was not placed on .•any unwritten claim against the land;” in Dunton v. Outhouse, 64 Mich. 419, 425, “unless there be ah express or implied waiver and discharge of it.”
In Lyon v. Clark, 132 Mich. 521, 524, after stating its right of priority, it was said:
“The only limitation on this rule is that, if the circumstances would indicate a purpose on the part of the vendor to waive his lien, it will not thereafter be enforced.”
In Fisher v. Shropshire, 147 U. S. 133, 143 (13 Sup. Ct. 201), the court said:
“Undoubtedly, a lien of the character we are considering may be defeated if the grantor or vendor do any act manifesting an intention not to rely on the land for security; but this must be an act substantially inconsistent with the continued existence of the lien, and cannot be inferred from the mere fact that the parties may not have contemplated the assertion of the lien in the first instance.”
In Re Oswegatchie Chemical Products Corp., 279 Fed. 547, 549 (22 A. L. R. 1334), the court said:
“From the authorities cited, and many others, there may be drawn the doctrine that the implied equitable right of the vendor to look for security in respect of his purchase price to the very land he conveyed is purely a creature of equity, being the equitable right or capacity to assert a lien, which is only useful when It has been judicially ascertained and declared. It follows that, whenever any other equity arises stronger than the vendor’s equity, the latter must yield. When it comes to ascertaining the lien as here, the question always is (broadly stated) whether one set of equities outweighs the other.”
In 39 Cyc. pp. 1826, 1827, it is said:
“The right of a vendor to a lien for purchase-money may be waived by him, without consideration, and without writing. A waiver of such lien may result not only from the provisions of the agreement of the parties as to the transaction, but from their acts, conduct, or declarations inconsistent with its'retention and from which an intention to waive the lien may be implied.”
And in 27 R. C. L. p. 586:
“Courts will not enforce it (a vendor’s lien) to the extent of doing inequity to others, nor in cases where the conduct of the vendor has been such as to lead others to adopt a position upon the assumed absence of any such right so that they will suffer if it is asserted and sustained.”
The reasoning of the foregoing leads me to conclude that, if Albert A. Stegeman were here claiming: a lien, his right thereto would be denied. He well' knew that Wiger hesitated before making the loan of $10,000, the proceeds of which he (Stegeman) received, and that such hesitation was because Bailey had not promptly paid the loans made to him by the bank of which Wiger was cashier, and the lands were in a State other than that in which he lived. Mr. White, the president of the bank, was assured by Stegeman that the land was “good security” for any loan that Wiger or the bank might make to Bailey. Had ■ it been intimated by him that such loan would be subject to a lien he might claim for the $8,000, it is clear that it would not have been made. He was present at the conference, and it was at his suggestion that the deed, instead of a mortgage, was executed. In my opinion, the equities are all on the side of the de fendants and a waiver on the part of Albert A. Stegeman is established.
If Albert A. Stegeman had no right to a lien at the time the note was given, I do not think that a right thereto passed to plaintiff on its indorsement and delivery to him. A copy of the note does not appear in the record. His counsel, in stating the conceded facts, said that the note provided “that it should be paid for in cattle notes before a certain date.” Such notes were not delivered. The extent to which this provision destroyed its negotiability (see 2 Comp. Laws 1915, § 6042) was not discussed by counsel, and I do not rest decision upon it. It does appear that plaintiff accepted this note in part payment of the indebtedness of his brother to him. While his counsel stated as a fact that he had no knowledge of the nature of his brother’s deal with the defendants, I am impressed that this could not have been a fact. He is here represented by the same attorney in whose office the deal was consummated, and it is significant that the first proceeding taken was an action against Bailey on the note on which judgment was recovered.
The suit here brought is clearly one in the nature of a judgment creditor’s bill. While in one of the paragraphs it is said “that the debt upon which this judgment was secured was for a portion of the purchase price of said land,” there is no allegation that he thereby secured a lien thereon. The prayer for relief reads:
“1. That the said H. E. Bailey, C. N. Wiger and Albert A. Stegeman who are made party defendants to this bill may be required to make full and direct answer to the same.
“2. That the said lands may be determined to be and belong to H. E. Bailey and pretended claim title of C. N. Wiger may be set aside and held for naught.
“3. That the sheriff of the county of Chippewa be authorized to sell said lands under the execution heretofore issued in the case in which John W. Stegeman is plaintiff and H. E. Bailey defendant and give a deed for the same free and clear of any and all claims of H. E. Bailey, C. N. Wiger or Albert A. Stegeman.”
It is clear that no such claim was made upon the hearing. The trial court in his opinion said:
“In his brief, plaintiff says: ‘The only real issue in the case is, Can the Farmers & Merchants State bank of River Falls, by virtue of a parol agreement between the bank, Wiger and Bailey, have a lien upon this land against the rights of an attaching creditor who had no notice whatever of the agreement.’ ”
Later, in the opinion the court said:
“In connection with the argument, plaintiff urges that his claim is for part of the purchase price of the premises, that he had no notice of the bank lien and that the bank gave no consideration for the creation of a lien in its favor. He does not point out in what manner these facts affect the legal phases and it is evident that they do not.”
In his opening statement to the trial court, his counsel said:
“Plaintiff claims the right to sell this land, either subject to the Wiger mortgage of $10,000 with interest and other expenses added; or that the land be sold and he be considered as having an equal lien upon it by virtue of the fact that this was for the part of the purchase price of the land' paid by Bailey, and, if there is any loss, that the loss be shared jointly by himself and Wiger.”
In preparing the record for appeal to' this court, his counsel has included therein “assignments of error.” There is no provision therefor in either the statutes or rules. It is significant, however, ■ that the words “vendor’s lien” are not mentioned therein, nor do they contain any suggestion that the court erred in denying plaintiff the right to such a lien.
The trial court held that on foreclosure of the deed to Wiger, when treated as a mortgage, his $10,000 claim should be first paid; that the claim of the bank should be next paid, and that plaintiff should have a lien upon the balance. It is insisted that plaintiff’s claim should take precedence over that of the bank. With this I cannot agree. Plaintiff held title to a part of these lands to secure an indebtedness owing to him by his brother Albert. He deeded the land to Albert in order to perfect his title and permit him to consummate his deal with Bailey. On the record as it then appeared, plaintiff had no lien on any of the lands included in the deed from Albert to Wiger. Albert indorsed to him the note he had received from Bailey in closing the deal. It mattered not to plaintiff whether Albert A. Stegeman deeded to Bailey and Bailey mortgaged to Wiger and. the bank, or whether the plan pursued at Albert’s suggestion (the giving of a deed from him to Wiger) was followed. Wiger would not have advanced the $10,000 which Bailey needed to complete the deal had not the bank’s claim been secured as well as his own. In view of these facts, I cannot see any equitable reason for giving the plaintiff’s claim priority over that of the bank. Plaintiff could have insisted on security from Albert when he released that which he held. He executed his deed without doing so. He thus permitted Albert to dispose of the land free and clear therefrom. The deed from Albert to Wiger passed all his title to the land. It is only as to Bailey and his 'creditors that it is treated as a mortgage. The acceptance of this security by the bank doubtless influenced it in not making any effort to enforce its claim. Plaintiff did not accept Bailey’s note in reliance on the fact that he owned the property free and clear of incumbrance. An examination of the title would have disclosed that Bailey had no record title. Investigation would have revealed the fact that Wiger’s title was in the nature of a mortgage to secure his claim and that of the bank, and that any interest Bailey then had was subject thereto. That the deed was- not recorded as a mortgage in no way affected plaintiff’s rights. Even if plaintiff was without knowledge of the particulars of the deal, he certainly knew that one was being consummated. Else why did he release the security he had and accept Bailey’s note from his brother in lieu of such security? He certainly knew that his brother was disposing of his real estate, and that he had accepted a note from Bailey in part pay'ment thereof.
The decree is affirmed, with costs to appellees.
Fellows, Clark, and McDonald, JJ., concurred with Sharpe, J.
North, J.
While I do not agree with Justice Bird that the plaintiff is entitled to recover as the holder of a vendor’s lien, I concur with him in the result because the claims of Wiger and Stegeman are placed prior to the claim of the bank. The equities of the case require this; and since there is- ample property to satisfy the claims of both Wiger and Stegeman, it is of no practical importance which of these two has priority | [
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Wiest, J.
Does the following provision in a will constitute Grace Y. Johnson a legatee?
“First. I hereby order and direct my executrix hereinafter named and appointed, to pay all my just debts and funeral expenses so soon after my decease as the nature of my estate will permit, not overlooking or omitting the payment of the indebtedness of three thousand dollars to my daughter, Grace Y. Johnson (the same being the amount of a legacy left to her by her father’s will) and for which amount Grace’s guardian now holds my obligation.”
In the probate court it was held a legacy, and in the circuit a mere recognition of an obligation. We think it a direction to the executrix to pay the daughter $3,000 out of the estate and was a legacy in satisfaction of an obligation and not a mere acknowledgment of a debt.
The mother did not leave it to the daughter to prove the claim against the estate, but directed payment. If not intended as a legacy, the mother went to considerable unnecessary pains. If the daughter held the mother’s obligation to pay $3,000, it was wholly unnecessary to provide proof thereof by will, for the daughter could prove her claim by the obligation mentioned in the will. The mother was intent upon something more than merely stating a fact to be employed as evidence; she willed the daughter $3,000, and gave her reason for doing so. The fact that her reason was an indebtedness owing the daughter does not render her purpose futile. The mother exercised her right of bounty in constituting the daughter a legatee, thereby saving the daughter the trouble of proving the claim and giving herself the satisfaction of having done the right thing.
The will also provided:
“Second. I give,, bequeath and devise unto my daughter, Grace Y. Johnson, the use, rents, issues, profits, possession, enjoyment and income of all my property, real and personal, so long as she'remains unmarried.”
In the probate court a trustee was appointed to manage the property, and this was affirmed in the circuit. Petitioner claims right to use and possession without the intervention of a trustee. But it is said, against this contention, that the appeal from the probate court did not attack the appointment of a trustee, and, as petitioner did not take an appeal to the circuit, the judgment in the circuit, affirming the appointment of a trustee, was a matter of course and the validity thereof cannot be questioned in this review. The scope of the review in the circuit depended upon reasons stated iir the appeal from the probate court. 3 Comp. Laws 1915, § 14145; In re Beers, 148 Mich. 300; In re Ward’s Estate, 152 Mich. 218, 239; In re Broffee’s Estate, 206 Mich. 107; In re Murray’s Estate, 219 Mich. 70.
The record' before us does not disclose the reasons stated in the appeal from the probate order. Petitioner took no appeal from the probate order appointing a trustee. Unless there was an appeal to the circuit from that part of the order appointing a trustee, the validity of the appointment is not before us. Jurisdiction here, to adjudge, rests upon a record disclosing affirmatively that the point is before us for decision. This the record fails to show, and we must decline to pass on the question. Our construction of the will involves no question of fact and, we think, the exception by petitioner to the conclusion of law stated by the circuit judge brings the question of whether petitioner was given a legacy before us.
The order in the circuit is reversed, and the order' in the probate court affirmed, with costs against Ella Bullard.
Sharpe, C. J., and Bird, North, Flannigan, Fellows, Clark, and McDonald, JJ., concurred. | [
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