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Sharpe, J.
Plaintiff reviews by writ of error an order dismissing the case as to the defendants Jacobson and Sempliner, for the reason that at the time this suit was begun there was pending in the circuit court for the county of Kent an action brought by plaintiff against these defendants in which the same charges of fraud are alleged as are set up in the declaration herein.
The declarations in both of these cases are similar in all material respects, except the name of the plain tiff, to those considered in Chapple v. National Hardwood Co., ante, 296. The opinion in that case is decisive of this.
The judgment is affirmed, with costs to appellees.
Bird, C. J., and Snow, Fellows; Wiest, Clark, and McDonald, JJ., concurred. Steere, J., did not sit. | [
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Snow, J.
The defendant was charged with having in his possession, contrary to law, two gallons of moonshine whisky. He was convicted and the case is here for review on exceptions before sentence. A warrant to search defendant’s dwelling was issued by a justice of the peace of the city of Muskegon Heights, February 28, 1925. It was based upon an affidavit alleging as reasons for believing that liquor was possessed by defendant at his home, the following:
“Deponent has seen several persons visit the premises carrying away packages. ’ That deponent has seen intoxicated persons on the premises, that deponent has seen several machines visit the premises. February 27th, 1925.”
But two questions are raised, Was the motion made by defendant to suppress evidence obtained on the search made timely? and, Was the affidavit for the search warrant insufficient?
When the case was called for trial, Mr. Wetmore, attorney for defendant, said:
“There is a motion pending in this case to suppress all the evidence for the reasons stated in the motion and I desire a decision on it before we .proceed to the trial of the case.”
The motion was thereupon read to the court.
“The Court: Well, I think those are important matters and I think they should be called to the attention of the court before the case is tried. This case has never been called to my attention, motion never made before, motion will be denied. Call a jury.
“Mr. Wetmore: I might say the reason it wasn’t called before was that the court couldn’t hear it at a day I was here and at a day Mr. Dunn could be here.
“The Court: They certainly shouldn’t be brought on Monday. The jury is called and I am going to refuse to hear motions that way. Call a jury.”
A motion to suppress had been seasonably made, and it had been noticed for hearing for a certain day. On that day it was continued by consent. On the adjourned day it was not brought up by counsel for defendant nor by the prosecuting attorney, and nothing further was done in regard to it until the beginning of the trial. After the court had refused to hear the motion defendant’s counsel objected to the introduction of testimony on the ground “the officers had no valid search warrant and were trespassers there upon those premises.” This objection was overruled and the case proceeded to trial. The evidence taken upon the search was offered and received against defendant’s objection.
The motion to suppress was made several weeks before the trial, and the fact it was not argued and disposed of before the day of the trial cannot be said to be entirely the fault of defendant’s counsel. It is a matter of the most common practice among attorneys to hold in abeyance and postpone preliminary motions of this character, and the fact it was brought to the attention of the court before the trial actually commenced was sufficient, and it should have been entertained. However, the ruling of the court in regard to the motion amounted in effect to its denial, and defendant was entitled to urge the insufficiency of the affidavit both in the trial court and here.
Is the affidavit, then, sufficient? It is obvious that the affidavit could have been made much plainer and its contents more readily understood and construed if a little more care had been used in its preparation, and either punctuated correctly or not at all. It is not expected that those who prepare affidavits of this character should be masters of rhetoric and composition, or that they should understand the art of punctuation thoroughly, still when constitutional and legislative rights of citizens are at stake, it is insisted that these affidavits for the search of dwelling houses must understanding^ contain the necessary averments to give the magistrate the right to proceed. In this affidavit the date “February 27th, 1925” must b¿ considered as part of the affidavit and given some construction. We arrive at the only possible conclusion, therefore, that it had reference to the time of the happening of the events narrated immediately preceding it.
The affidavit is not, therefore, fatal because it fails to allege the time, as was the situation in the case of People v. Musk, 231 Mich. 187, relied upon by appellant.
There being no other error claimed, the conviction will stand affirmed, and the court is advised to proceed to judgment.
Bird, C. J., and Sharpe, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Sharpe, J.
This is an action instituted by Lewis Anderson, administrator of the estate of Donald Anderson, deceased, against James Kearly, administrator of the estate of Arnold R. Miller, deceased, to recover damages arising out of the death of Donald Anderson.
At about the hour of 9:15 a.m., on February 22, 1942, plaintiff’s decedent, Donald Anderson, was a passenger in a Ford car driven by Roland Whipple in an easterly direction on highway US-23 at a point approximately three miles north of the village of Au Gres, Michigan. The highway consists of a concrete slab 20 feet wide which is divided by a center line. At that time, it was dry and clear of snow. The day was fair. There were four people in the Ford car, namely, Roland Whipple and three Anderson boys. At approximately the same time, a Buick car was approaching from the east. This car was being driven by Arnold R. Miller and contained two other passengers, namely, Maude Miller, wife of Arnold R. Miller, who was riding in the front seat beside the driver, and Mrs. Gilpin who was riding in the back seat.
The cars collided and after they ceased moving, the Ford car was on the south half of the highway, but facing in a westerly direction. The Buick car was on the south side of the highway at a distance of about 10 feet east of the Ford car, with its front end out on the south shoulder and pointing in a southerly direction, and with its hind wheels resting near the southerly edge of the pavement. Both cars were badly damaged and as a result of the collision Dr. Miller, Donald Anderson, and Howard Anderson were hilled. All of the debris, consisting of radiator fluid, oil and broken glass,'was on the south side of the highway.
Plaintiff’s decedent, Donald Anderson, was a minor of the age of 17 years. He lived and worked on a 178-acre farm leased and operated by his father, Lewis Anderson.
The cause .came on for trial and at the close of plaintiff’s proofs, defendant'moved for a directed verdict on the ground that there was no showing of negligence of defendant’s decedent. The motion was taken under advisement under the Empson act. Defendant then proceeded with his proofs at the close of which he renewed his motion for a directed verdict, which was again taken under advisement. The cause was submitted to the jury which returned a verdict for plaintiff of. $3,000. Defendant made a motion for judgment notwithstanding the verdict which was denied and judgment entered. Subsequently,- defendant made a motion for a new trial. This, also, was denied.
Defendant appeals and urges that plaintiff failed to show that defendant committed any acts of negligence ; that the court erred in instructing the jury ; and that there was not sufficient proof of plaintiff’s damages.
The principal issue in this case is whether the motion for a directed verdict should have been granted. Plaintiff produced testimony showing the position of the cars after the collision and the debris, all of which was located on the south side of the'highway, and that the right front of the Buick was damaged while the left front of the Ford car in which plaintiff’s decedent was riding was damaged. Defendant urges that the physical facts do not explain where the collision took place, and, therefore, plaintiff did not establish a prima facie case, thus resulting in the trial court committing error in its failure to grant defendant’s motion for a directed verdict made at the close of plaintiff’s case. We are not in accord with this theory.
In Brown v. Arnold, 303 Mich. 616, 623, we said:
“The facts we have recited were established by the testimony, and we have repeatedly held that a jury may draw reasonable and legitimate inferences from established facts. Negligence may be inferred from the facts and circumstances. Physical facts may justify a jury finding that defendant is guilty of negligence. Faustman v. Hewitt, 274 Mich. 458; Trent v. Pontiac Transportation Co., Inc., 281 Mich. 586. Negligence may be inferred from circumstances which place the case within the field of legitimate inferences from established facts. Fish v. Railway, 275 Mich. 718.”
Having in mind that upon a motion to direct a verdict against plaintiff, the testimony and all legitimate inferences which may be drawn from it most favorable to plaintiff must be accepted, we are of the-opinion that plaintiff established a prima facie case.
Defendant also urges that the only eyewitness to the collision was one Richard Tremble who testified that the collision took place on the north side of the highway and that such testimony rebutted the prima facie showing that the collision took place on the south side of the highway. We have in mind that the testimony of this witness was impeached by a showing that he stated upon three different occasions that he was not present when the collision occurred. In Buttermore v. Faleris, 304 Mich. 294, 302, we said: ‘£ The credibility of a witness is the sole province of a jury.” In the case at bar, the jury by returning a verdict in favor of plaintiff must necessarily have given no credit to the testimony of this witness. The jury had a right to disbelieve his testimony. The physical facts as controverted by the testimony of this witness presented a question of fact for the jury and we cannot say that their verdict was against the great weight of the evidence.
It is urged that the trial court was in error in instructing the jury as follows:
“I charge you that under the law of this State, drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving, to the other at least one-half of the main-traveled portion of, the roadway, as near as possible. Now, if you find from the testimony that the defendant’s vehicle, that is the Buick, was driven on the wrong side of the highway and into a collision with the vehicle in which plaintiff’s decedent, that is, Donald Anderson, was riding, and the plaintiff’s vehicle was on its own side of the road, the defendant’s decedent, that is Dr. Miller, would be guilty of negligence, and if you find that this negligence was the proximate cause of the accident, then the plaintiff is entitled to recover in this action. * * #
“Now, I charge you that if you find that Dr. Miller was guilty of negligence by driving on the wrong side of the road, which was the proximate cause of the accident, and subject to the qualification which I gave you earlier about the justifications of an emergency, and if you also find that the driver of the cartin which Donald Anderson was riding was guilty of negligence, such as driving partly on his wrong side of the highway, then and in that event you would still find for the plaintiff, because the neg ligence of Ms driver was not imputed to Donald Anderson, because be was under the age of 21 years. ’ ’ '
The objection to the instructions is that the jury was impressed with the thought that if the collision ocurred on the north side of the road, defendant would be liable for damages because plaintiff’s decedent was less than 21 years of age. It is to be noted that the trial court also gave the following instruction :
“Now, in the case here under consideration, the negligence which is claimed is the violation of a statute that is a State law, which is on the books of this State and reads as follows: (I am reading not all of the law but the relevant portion of it, that part which concerns you and by which you will be guided) ‘Upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive the same upon the right half of the highway, unless it is impracticable to travel upon such side of the highway, and except when overtaking and passing another vehicle.’ Now, if either of the parties violated this by crossing the center line of the highway, such party was guilty of negligence, unless you find that the crossing was performed in an effort to avoid a collision which was made imminent by the other party’s first crossing the highway onto the wrong side thereof. I charge you, therefore, that if the defendant, Arnold R. Miller, crossed the center line of the highway with any part of this automobile, into the path of the oncoming car wMch was driven by Roland Whipple and in which the deceased was an occupant, then Arnold Miller was guilty of negligence unless his crossing was caused by Whipple’s car first crossing the center line to the northerly side of the pavement, thereby creating a condition of peril from which Dr. Miller may have been attempting to escape.”
The record shows that no requests to charge were given by defendant’s counsel. We call attention to the following which occurred at the close of the court’s instructions to the jury. By the court: “Does either counsel have anything to suggest with reference to any charge which I may have omitted, or enlargement upon any charge which I have given? If so, you can come up here and advise me about it.” Mr. Otto, attorney for defendant, replied: “We have none, your Honor. ’ ’
In Ogland v. Detroit Edison Co., 261 Mich. 583, we said:
“Defendant complains because the court instructed the, jury that the question of contributory negligence was not in the case, as there was no evidence of contributory negligence. At no time during •the trial did defendant claim there was a question of fact on the subject. Its only claim was that plaintiff was guilty of contributory negligence as a matter of law. It presented no request to charge. When the court had completed his charge, he asked whether there were further requests; defendant suggested one, which was given, and no intimation was made that contributory negligence was an issue for the jury. Under familiar rules, as defendant did not request a charge, there was no error in this respect.”
We have examined the entire charge of the court and we are of the opinion that the court fully instructed the jury that if the collision occurred on the north side of the highway, plaintiff’s decedent could not recover, or if the collision occurred due to the negligence of each driver, then there could be a recovery. The issue involved centered around the place where the collision occurred.
It is also urged that the trial court was in error in permitting the jury to speculate upon the damages suffered by plaintiff. It is undisputed that the funeral expense of Donald Anderson was $232.50, thus leaving a balance of $2,767.50 for loss of services from tbe date of Ms death until his twenty-first birthday, a period of 3 years, 2 months and 10 days.
The record shows that deceased was healthy, was 5 .feet 11 inches in height, and weighed 197 pounds.. His father was employed at the Defoe ship building company at Bay City, but leased a 178-acre farm near Millington. Deceased worked on the farm and after his death, the father found it necessary to quit his job at the shipyard and return home to work on the farm. Wages in that vicinity for farm help during the harvest season were $3.50 per day and during the balance of the year varied from $2 to $2.50 per day. It is also shown that deceased spent most of his time working on the farm operated by his father.
The statute under which the present action was brought (Act No. 38, Pub. Acts 1848 [3 Comp. Laws 1929, § 14061 et seq.], as amended by Act No. 297, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 14061 et seq., Stat. Ann. 1944 Cum. Supp. § 27.711 et seq.]) provides in part:
“In every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, with reference to the pecuniary injury resulting from such death.”
The rule which we have followed is stated in Rufner v. City of Traverse City, 296 Mich. 204, as follows:
“It is next urged that the verdict as remitted is grossly excessive. The resulting damages in this case are prospective and difficult of exact ascertainment. Oakes v. Van Zomeren, 255 Mich. 372. The determination of such damages will not be disturbed on appeal if reasonably within the range of the testimony. Kinsler v. Simpson, 257 Mich. 7. In the case at bar the testimony is conflicting as to the prospective earning power of the deceased, but the amount of damages allowed is not outside of the rarige of the testimony and should not be disturbed. ’ ’
In our opinion the damages allowed were well within the range of the testimony.
The judgment is affirmed, with costs to plaintiff.'
Starr, C. J., and North;, Carr, Btttzel, Btjshnell, Boyles, and Reid, JJ., concurred.
See 3 Comp. Laws 1929, § 14531" et seq., as amended by Act No. 44, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 14531, Stat. Ann. and Stat. Ann. 1944 Cum. Supp. § 27.1461 et seq.).—Reporter. | [
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Donofrio, J.
In Kent Circuit Court Docket No. 05-010285-FH, defendant pleaded no contest to a charge of breaking and entering a building with intent to commit a felony or larceny, MCL 750.110. The trial court sentenced defendant as an habitual offender, second offense, to a prison term of 2 to 15 years. In Kent Circuit Court Docket No. 05-011628-FH, defendant pleaded no contest to a charge of larceny in a building, MCL 750.360, and the trial court sentenced him to a concurrent prison term of IV2 to 4 years. Defendant now appeals by delayed leave granted, challenging only the trial court’s refusal to award him sentence credit for the time he served in the county jail while he was awaiting sentencing. Because defendant was on parole at the time he committed the current offenses, he was not entitled to sentence credit against the sentence for the new offenses. Rather, defendant was entitled to credit against only the prior sentence on the offense for which he enjoyed parole. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
I. BASIC FACTS AND PROCEDURAL HISTORY
In 1997, defendant was convicted of larceny from the person, MCL 750.357, and sentenced on December 3, 1997, to 5 to 10 years’ imprisonment. After serving a portion of his sentence, he was granted parole. While still on parole, on September 28,2005, defendant was arrested and charged with breaking and entering a building with intent to commit a felony or larceny, MCL 750.110. Defendant was additionally charged on an earlier offense of larceny in a building, MCL 750.360. After his arrest on the instant offenses, defendant was lodged in the county jail and not granted bail because of a parole detainer.
Defendant ultimately pleaded no contest to the instant charges and remained in jail awaiting sentencing. Defendant served 293 days in the county jail awaiting sentencing. At sentencing, because defendant was on parole for his prior conviction at the time he committed the instant offenses, the trial court declined to grant defendant sentence credit against the sentences for the instant convictions for the time he served in the county jail. Parole was revoked on the 1997 conviction, credit of 293 days was applied against the sentence on the conviction for which parole was revoked, and defendant has now served his maximum sentence on that conviction. Defendant now challenges the trial court’s refusal to grant jail credit of 293 days served in the county jail against the sentences for the instant convictions. He essentially challenges the concept of “dead time,” i.e., time not credited to his current prison sentences.
II. PAROLE DETAINEE’S ENTITLEMENT TO JAIL CREDIT
A. STANDARD OF REVIEW
The question before us is whether the trial court erred as a matter of law by denying defendant, a parole detainee, 293 days of jail credit against the instant sentences. We review de novo questions of law concerning statutory interpretation. People v Seiders, 262 Mich App 702, 705; 686 NW2d 821 (2004).
B. ANALYSIS
Defendant contends that he is entitled to sentence credit against the sentences for the instant offenses pursuant to MCL 769.11b, which provides:
Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.
The primary goal in construing a statute is “to ascertain and give effect to the intent of the Legislature.” People v Pasha, 466 Mich 378, 382; 645 NW2d 275 (2002). To achieve this goal, the Court must begin by examining the plain language of the statute. Id. If the language of the statute is clear and unambiguous, it is assumed that the Legislature intended its plain meaning and the statute is enforced as written. People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001). In discerning legislative intent, this Court gives effect to every word, phrase, and clause in the statute. People v Hill, 269 Mich App 505, 515; 715 NW2d 301 (2006). The Court must avoid construing a statute in a manner that renders statutory language nugatory or surplusage. Id. “ ‘We construe an act as a whole to harmonize its provisions and carry out the purpose of the Legislature.’ ” Id., quoting Macomb Co Prosecutor v Murphy, 464 Mich 149, 159-160; 627 NW2d 247 (2001).
Here, defendant was on parole at the time he committed the instant offenses. In Seiders, this Court held that when a parolee commits a new offense while on parole, credit for time served in jail before sentencing on the new offense is not available. The Court explained that credit is available only when the defendant is “denied or unable to furnish bond” and that when a defendant is held in jail on a parole detainer, bond is neither set nor denied. Seiders, supra at 707 (emphasis in original). Furthermore, this Court in People v Filip, 278 Mich App 635, 640; 754 NW2d 660 (2008), quoting People v Stead, 270 Mich App 550, 551-552; 716 NW2d 324 (2006), held:
“ ‘When a parolee is arrested for a new criminal offense, he is held on a parole detainer until he is convicted of that offense, and he is not entitled to credit for time served in jail on the sentence for the new offense.’ [Seiders, supra at 705, citing MCL 791.238(2).] Instead, a parole detainee convicted of a new offense is entitled to have jail credit applied exclusively to the sentence from which parole was granted. Id. Credit is not available to a parole detainee for time spent in jail attendant to a new offense ‘because bond is neither set nor denied when a defendant is held in jail on a parole detainer.’ Id. at 707.”
Defendant argues that Seiders is distinguishable because bond was set in these cases, but not posted. He relies on the reasoning of the Genesee Circuit Court in Filip in which the trial court granted credit. However, this Court rejected that reasoning and reversed the circuit court in Filip, supra at 643. As explained in Filip, MCL 791.238(1) provides that parole violators are not eligible for bond pending resolution of parole violation proceedings. Time served pending resolution of the parole proceedings is part of the sentence for the paroled offense and is to be credited against that sentence. Where, as here and in Filip, the trial court errs by setting bond, “the erroneously granted possibility of posting bond did not secure [defendant] any rights under MCL 769.11b.” Id. at 642. Under those circumstances, a defendant awaiting trial or sentencing “shall remain incarcerated.” MCL 769.11b.
C. RELATIONSHIP BETWEEN MCL 768.7a(2) AND MCL 791.238(1), (2), AND (6)
Despite the foregoing, defendant argues that the manner in which the trial court credited the time he served awaiting sentencing resulted in “dead time.” Defendant, as well as other parolees, continues to argue that when parole is revoked or not revoked, parolees fail to receive jail credit for time served while in custody in jail awaiting sentence, a parole detainer notwithstanding. Here, defendant, like the defendant in Filip, claims that he is entitled to 293 days jail credit against the instant sentences by virtue of MCL 769.11b. In other words, defendant contends that failure to credit this jail time against the 2005 sentences at issue, rather than the previous 1997 sentence for which he was on parole, results in “dead time.” The concept of “dead time,” however, is a misnomer because defendant properly received credit against the sentence on which parole was granted and, as such, there is no “dead time.” The interplay of MCL 768.7a(2) and MCL 791.238(1), (2), and (6) fully explains that the jail time is credited for defendant and is neither forfeited nor “dead” as he suggests.
MCL 768.7a(2) provides:
If a person is convicted and sentenced to a term of imprisonment for a felony committed while the person was on parole from a sentence for a previous offense, the term of imprisonment imposed for the later offense shall begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense.
The relevant portions of MCL 791.238 provide in pertinent part:
(1) Each prisoner on parole shall remain in the legal custody and under the control of the department. The deputy director of the bureau of field services, upon a showing of probable violation of parole, may issue a warrant for the return of any paroled prisoner. Pending a hearing upon any charge of parole violation, the prisoner shall remain incarcerated.
(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 and is liable, when arrested, to serve out the unexpired portion of his or her maximum imprisonment. The time from the date of the declared violation to the date of the prisoner’s availability for return to an institution shall not be counted as time served. The warrant of the deputy director of the bureau of field services is a sufficient warrant authorizing all officers named in the warrant to detain the paroled prisoner in any jail of the state until his or her return to the state penal institution.
(6) A parole shall be construed as a permit to the prisoner to leave the prison, and not as a release. While at large, the paroled prisoner shall be considered to be serving out the sentence imposed by the court and, if he or she is eligible for good time, shall be entitled to good time the same as if confined in a state correctional facility.
A defendant on parole, while physically released from the confines of prison, remains in the legal custody of the Department of Corrections. He or she continues to serve out the sentence as originally imposed by the sentencing court. And, if eligible for good time, he or she is entitled to continue to accrue such time as if confined to prison. When a person on parole commits another felony and is arrested and detained, the time of detention continues to accrue toward the fulfillment of the originally imposed sentence because at no time has the convict been released. MCL 791.238(1), (2), and (6).
A defendant convicted of a felony while on parole shall have the sentence for the later conviction commence upon the expiration of the remaining portion of the former paroled offense. MCL 768.7a(2). This section does not implicate the imposition of the original maximum sentence. However, should the deputy director of the Bureau of Field Services seek a defendant’s return by issuing a warrant for the defendant’s return to prison and a hearing on a charge of parole violation, the defendant shall be treated as an escaped prisoner and is liable, when arrested, to serve out the unexpired portion of his or her maximum sentence. MCL 791.238(2). The liability for the maximum term of imprisonment is made manifest by revocation of parole. Revocation of parole, except for certain enumerated crimes, is discretionary. MCL 791.240a(l). If parole is not revoked, the defendant continues to accrue time toward his or her ultimate discharge for the conviction upon which the defendant enjoys parole. MCL 791.238(6). If parole is revoked, the defendant is obligated to serve out the balance of the maximum sentence for the conviction that formed the basis for parole. MCL 791.238(5) and MCL 791.234.
The only time a defendant stops accruing time toward his or her ultimate discharge from the Department of Corrections is when a parolee has a warrant issued for a parole violation and the parolee remains at large. After a warrant is issued, “[t]he time from the date of the declared violation to the date of the prisoner’s availability for return to an institution shall not be counted as time served.” MCL 791.238(2).
In the case at bar, defendant was convicted of two felonies while on parole. Concomitantly with conviction and sentencing for the current offenses on July 18, 2006, parole was revoked, and the 293 days defendant served in the county jail awaiting disposition of his new felony charges was credited against the sentence for which he had enjoyed parole. Defendant then commenced serving his sentences consecutively on the 1997 conviction as well as the instant felony convictions. At the time of the instant convictions, defendant expected to be discharged from parole on September 29, 2006. Defendant remains in prison and has now completed the maximum of his sentence for his 1997 crime. Because defendant’s maximum sentence for his conviction of breaking and entering a building with intent to commit a felony or larceny is 15 years, his maximum discharge date extends to October 26, 2021.
In Filip, the defendant was also convicted of a felony while on parole. But his parole was not revoked. The jail credit there was the same as in this case because the jail time the defendant served awaiting disposition of the subsequent offense was not credited toward his later conviction, but credited against the conviction for which he was on parole. Upon sentencing for the subsequent conviction, the defendant started accruing time immediately. Serving time for the prior conviction and subsequent conviction ran concurrently from the date of sentence. And the Offender Tracking and Information System reveals that the defendant was discharged from the Department of Corrections before serving any maximum sentence.
Thus, regardless of whether parole was revoked, in neither case is the time served awaiting a subsequent conviction not credited. Hence, there is no “dead time.”
III. CONCLUSION
Because defendant suffered a revocation of parole, defendant has not established error with regard to the trial court’s failure to award jail credit against his current sentences.
We affirm.
In Filip, our Supreme Court denied leave to appeal as moot because the defendant had been discharged from parole. People v Filip, 482 Mich 1118 (2008).
See MCL 791.240a(2) for enumerated drug crimes and violent felonies, as defined in MCL 791.240a(12) incorporating MCL 791.236. MCL 791.236(10) enumerates drug offenses, and MCL 791.236(19) enumerates violent felonies.
However, defendant’s earliest release date according to the Offender Tracking and Information System, was July 17, 2008, the anniversary of the two-year minimum that defendant served on the instant offenses.
Recidivist parolees assert support for their arguments regarding “dead time” from two dissents, People v Wright, 474 Mich 1138 (2006), and People v Conway, 474 Mich 1140 (2006). The argument articulated is that the method used by the Department of Corrections for applying sentence credit may be arbitrary or result in a denial of equal protection. In Wright, the facts suggest that parole was not revoked. In Conway, it is impossible to determine if parole was revoked. Clearly, in the situation where parole is revoked, there can be no issue on credit because of consecutive sentencing following the statutory imposition of the maximum sentence. Also, the application of credit is neither arbitrary nor unequal for defendants similarly situated. For all defendants experiencing revocation of parole, all time served awaiting disposition is credited against the maximum sentence on the conviction for which parole was revoked. If the maximum term of sentence is extinguished with jail credit remaining, the remaining credit will apply to the later sentence. A sentence so served is served strictly in conformity with the statutory mandate and is fixed with certainty. Such a crediting scheme is therefore neither arbitrary nor unequal for all defendants so affected. | [
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Snow, J.
Aline Eugenia Moxon died on the 20th day of April, 1924, at her home in the city of Detroit. April 12, 1924 (eight days before her death), she signed what purports to be her last will and testament. By its terms Fred J. Renaud, a cousin of the testatrix, who also lived in Detroit, was devised certain valuable real estate, and was also bequeathed personal property. Mr. Renaud offered the will for probate, and objections were made to it by Harvey Moxon, husband of testatrix, on the grounds of mental incompetency and undue influence. It was disallowed by the probate court, an appeal taken to the circuit court, and after a trial by jury again disallowed, the jury finding by its verdict in terms “that the deceased Aline Eugenia Moxon was not competent to make a will at the time the will in question was executed.” Such other facts as may be necessary to state in determining the questions raised upon the appeal to this court by proponent will be noted as we proceed. The question of undue influence was withdrawn from the jury by the trial judge, the only thing submitted being as to whether or not the testatrix was of sufficiently sound mind to execute the proffered will.
Proponent first complains that the court permitted to be answered questions as to whether or not, in the opinion of the witness, testatrix was competent to transact business on the day of the. execution of the will. While this is not the test of one’s mental capacity to make a will, there was no harm in giving an opinion as to her competency to transact business, when the correct test was given to the jury in the instructions of the trial judge.
The jury was instructed:
“It is not necessary that a person must have the same perfect and complete understanding as a person in sound and vigorous health of body and mind would have, and thus be required to know the precise legal effect of every provision contained in her will; but it must appear, in order to validate the will, that Mrs. Moxon understood essentially the nature of the act she was doing, that she understood and comprehended the extent of her property, her relations to others who may or naturally would be the object of her bounty, the scope and the bearing of the provisions of her will; and she must have had sufficient active memory to collect, to assemble in her mind, without prompting, the elements of the business to be transacted, and to hold them in her mind a sufficient length of time to perceive, at least, their obvious relations to each other and be able to form some rational judgment in reference to them.”
The jury was further instructed in regard to being mentally competent to transact business as follows:
“You are not to determine whether upon April 12th, last, Mrs. Moxon was mentally competent to engage in any business, or to comprehend the elements of a. business transaction, or to understand the meaning of.' a legal document, except as these facts may have a. bearing upon the only question of fact you are to decide, namely, was she, on April 12th, last, of sufficiently sound mind to validate this instrument.”
The jury was in no way misled, but, from the plain instruction given by the court, must have fully understood the test to be applied in determining one’s mental competency to execute a will.
Proponent takes exception to the court permitting lay witnesses to express opinions as to the mental incompetency of the testatrix. We find nowhere in the record that this was done excepting where the witness first testified to facts inconsistent with sanity and based the opinion on those facts. Then, too, this was fully explained to the jury by the charge of the trial judge in his instructions, as follows:
_ “Nov/ the law does not place any limit upon the kind of witnesses, who may thus be called for your enlightenment; it does not require that medical witnesses, or expert witnesses may not necessarily be called; it does not require that only expert witnesses or medical witnesses may be called; no; 'but in its wisdom, the law provides that any witness, lay or expert, medical or nonmedical, who has any knowledge which might throw enlightenment upon the present issue here, namely, upon the 12th of last April, did Mrs. Moxon have the necessary soundness of mind to make this instrument — any witness who can throw light upon that question may be received and heard; that is to say, persons who had the opportunity to observe and to talk to her may announce for your benefit the results and the impressions formed, they may testify to occurrences had with her; persons designated in the law as nonexpert witnesses can and have here testified to the observations, to conversations with her, and basing their conclusions upon such observations and on such conversations, they have been permitted to give you their opinion, whether or not she possessed at the time in issue, the necessary testamentary ability to execute Exhibit 2.”
This instruction is also complained of, but we find nothing erroneous therein.
The next assignment of error of proponent relates to the instructions of the court as to the law governing the execution of a will. There was a dispute in the testimony as to whether or not both witnesses signed in the presence of the testatrix, and in the presence of each other, the contestant claiming one of the witnesses failed to do this. That portion of the charge complained of is as follows:
“So, if one desires to make a will, he must sign the instrument himself, he must do it in the presence of two witnesses who are to act as subscribing witnesses, and then the testator, having signed the will, these two attesting witnesses must likewise sign it in the presence of each other, and also in the presence of the testator.”
The question of fact in dispute was not whether the testatrix signed in the presence of the subscribing witnesses, but whether they signed in her presence, and in the presence of each other. On this question the court properly instructed the jury as follows:
“It is the claim of contestants that at least one of these subscribing witnesses did not conform to these statutory requirements, and the claim is made that at least one of these subscribers — as witnesses — did not sign either in the presence of the testatrix, or did not sign in the presence of the other subscribing witness.
“Now, as to this phase of the case, members of the jury, those who offer the will, namely, the proponents, must establish to your satisfaction by a fair preponderance of the evidence, that Exhibit 2 was executed in the exact manner required by the statute, namely, that Mrs. Moxon signed the instrument herself, that thereafter it was signed by the subscribing witnesses, Mrs. Fraleigh and Mr. Flowerday, and that these two subscribing witnesses attached their names in the presence of each other and in the presence of Mrs. Moxon. If the proponents have satisfied you of those facts, by a fair preponderance of the evidence, then Exhibit 2 was validly executed. If they have failed in this respect so as to satisfy you, then the will was not validly executed and is invalid and should be disallowed. So that logically, then, your first inquiry should be devoted to ascertaining, under the rules I have just stated, whether or not the requirements of the law were observed in the execution of the instrument itself. If they were not then that would end the controversy and you should find against the allowance of the will. If it was validly executed, then there remains the next phase of this case for your consideration and decision.”
See Cook v. Winchester, 81 Mich. 581 (8 L. R. A. 822), and In re Dougherty’s Estate, 168 Mich. 281 (38 L. R. A. [N. S.] 161, Ann. Cas. 1913B, 1300).
The deputy clerk, receiving the verdict of the jury, testified upon the hearing of the motion for a new trial that the verdict was as follows:
“That the jury, after careful deliberation find that the deceased, Aline Eugenia Moxon, was not competent to make a will at the time the will in question was executed.”
Whether this technically may or may not be considered as a special verdict, it shows that the case was not disposed of by the jury on the question of the legal execution of the will.
Proponent assigns error upon the instructions of the court in calling special attention to the deposition of one of the witnesses, Mrs. Ella Zimmerman. That portion of the charge complained of is as follows:
“Now the proponents took the deposition of Mrs. Ella Zimmerman, one of the rules of law applicable to the calling of witnesses in every case is this: As laymen you are probably not familiar with because it is not called to the attention of laymen. The party in a litigation who calls a witness thereby vouches for the witnesses, that is to say, I am suing one of you, and I call a witness to the witness box, and I thereby vouch for the credibility of that witness; I offer him for consideration, at the hands of a jury, and thereby impliedly say, this is my witness, he is worthy of your credence.
“That rule applies to the witnesses that each of the parties in this case have called for his own purposes, and therefore applies to Mrs. Zimmerman. However, it does not necessarily follow that the party calling the witness is thereby bound by all the witness may say; because a witness may be mistaken, a witness may forget; and consequently, while generally speaking the proponents in this case, in taking the deposition .of Mrs. Zimmerman, thereby vouch for her and in general terms are bound by her testimony, if they found in any respect that she was mistaken in what she said, they had the privilege of introducing other witnesses to contradict her. What she said should receive your careful- consideration, to the same extent, the same measure, that you would give to all these other witnesses in the case, keeping in mind of course that Mrs. Zimmerman was the proponent’s witness, and though what she said was, generally speaking, binding upon the proponent, nevertheless it was permissible and proper- for them to introduce other testimony tending to contradict her, if in any respect the proponent thought she was mistaken in what she said.”
We find no error in this instruction. It is a correct statement of the law.
The appellant contends that the verdict was against the great weight of the evidence. Many witnesses testified on each side of the case. The testimony received was competent, and a fair issue was made as to the mental capacity of the testatrix at the time the will was signed. This issue was fully and fairly, and in a most able and understandable manner, submitted to the jury by the trial judge, and there is no basis for holding as a matter of law that the verdict is against the weight of the evidence. With this view of the case, after a careful reading of the entire record, it would be of no profit to any one to recite the evidence which leads us to this conclusion.
In the argument of counsel for proponent, Frank T. Lodge, to the jury, he made reference to the question of the drinking of Mr. Harvey Moxon, husband of the testatrix. Upon objection by opposing counsel the court in the absence of the stenographer and according to the recollection of those present said:
“Yes, that is right. That-remark was highly improper. There is no testimony whatever in the case to warrant it and you will entirely disregard it, and you will entirely disregard that remark.”
The language of Mr. Lodge which is claimed to have been objectionable was, according to his affidavit upon the motion for a new trial, “Then comes the drinking part, which I will not read.” The statement of the court is somewhat justified by the fact that very little, if any, testimony was given upon the trial relative to the drinking of Mr. Moxon. The court’s criticism of Mr. Lodge, however, for his reference to this subject, was unnecessary and too' positive in character, but we cannot say that it had any controlling influence upon the jury.
We have examined and discussed all the assignments of error. The verdict of the jury, rendered after very able and complete instructions as to the law governing the case, ought not to be disturbed.
Judgment affirmed, with costs to the appellee.
Bird, C. J., and Sharpe, Steere, and Fellows, JJ., concurred. Wiest, Clark, and McDonald, JJ., concurred in the result. | [
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Butzel, J.
(concurring). Arthur H. Geistert brought suit against Raymond J. Scheffler, doing business as the Expert Die & Stamping Company. In his declaration he alleged' that in May, 1941, Scheffler asked him on numerous occasions to assist in production, financing and securing of orders in his business; that on or about June 1,1941, plaintiff entered into defendant’s employment on the following terms: Plaintiff to be entitled to a 5 per cent, commission on all business received by defendant, plaintiff to have a drawing account of $75 per week, which was to be charged against his commissions;, that after the business had been thoroughly established, plaintiff was to have a one-fourth interest in it; that plaintiff subsequently agreed to leave part of the money in the business as working capital; that he relied upon defendant’s repeated assurances and statements that he would give plaintiff an interest in the business. During the year 1941, the average weekly withdrawals of plaintiff were $20, in 1942, $40, and in 1943 not to exceed $5Q, and in 1944 until October $75, so that during-the entire period, plaintiff’s total withdrawals did not exceed $8,500. During this time the business expanded so rapidly that it required many additions so that defendant now had five plants. Plaintiff claims he was also active in securing such' additional space and the necessary financing required by a business of this size. He alleged that during the period he was with defendant, $5,000,000 of business was done, and that of this amount, he had personal knowledge of $4,750,000 business actually done, and “there are many other items on the books which he does not recall but which can be definitely established by reference thereto; that there are also on hand at the present time accepted bona fide orders upon which no work has as yet been done, totaling «several hundred thousand dollars;” that 5 per cent., of the business was a very reasonable commission; and that computed on the business done, his unpaid commissions total upwards of $250,000, less $8,500 paid. Plaintiff claims judgment in the amount of $250,000 with interest thereon.
Six days after suit was started, plaintiff swore out a writ of attachment and the writ was issued. Evidently it was never executed. The following day plaintiff swore out a writ of garnishment, but evidently very little was reached by it. Several days later, however, plaintiff swore out an additional writ of garnishment naming the Western Electric Corporation, a foreign corporation, as garnishee defendant. Shortly thereafter defendant filed a motion to quash and dismiss this garnishment suit. Motion was granted on the basis of the affidavit and testimony taken in open court in the presence of plaintiff’s attorney, who stated at the time of the hearing of the motion that he was not prepared to try out any issues of fact and protested against the hearing on the motion. The court stated that tying up the company’s money was a very serious matter and he would proceed. Plaintiff appeals.
Defendant made a motion to dismiss the appeal to this court on the ground that plaintiff, as appellant, did not first obtain leave to appeal and that without such leave, an appeal could not be taken. Pursuant to Court Rule No. 60, both as it stood prior to January 1, 1945, and also in its amended form after that date, leave to appeal the instant case was not necessary when the amount involved was over $500. Any judgment or final order in a suit of garnishment may be set aside or removed to the Supreme Court in like manner and with the same effect as other personal actions. *3 Comp. Laws 1929, §14898 (Stat. Ann. §27.1896). An order quashing a writ of garnishment and releasing a garnishee is in effect a final judgment, which plaintiff can have reviewed upon writ of error. Recor v. St. Clair Circuit Judge, 139 Mich. 156.
The trial court dismissed the garnishment for two reasons. He held that the “amount sued for is not a given amount within the meaning of the statute.” Inasmuch as the amount of the damage claimed by plaintiff was susceptible of definite ascertainment from the books of the company and oral testimony, the writ should not have been quashed on that ground. Talbert v. Solventol Chemical Products, Inc., 304 Mich. 557.
The court, however, also quashed the writ of garnishment because it was an abuse of process as shown by the affidavit in support of the motion to quash and the testimony taken. • The principal defendant not only denied the alleged contract as set forth in plaintiff’s declaration, but he also produced a letter written by plaintiff many months after the alleged oral contract for commissions was claimed to have been entered into. The letter was in reply to one from auditors who wished to ascertain all actual and contingent indebtedness of the defendant to the plaintiff. The letter reads as follows:
“At October 31,1941, the Expert Die & Stamping Company was not indebted to me for any salary or commission with the possible exception of my regular weekly salary which was not payable until the following week. Ai that time there was no contract or agreement of any kind with the proprietor of the company relative to the payment of any commission on orders which I may have been instrumental in obtaining for that company. Signed: Arthur H. Geistert, Dated December 16, 1941.”
Defendant further showed that plaintiff threatened to ruin defendant’s business and drive him into bankruptcy. The obtaining of a writ of at tachment even though not executed would indicate that plaintiff was trying to carry out such alleged purpose. It certainly would affect defendant’s credit. Following this up with first one writ of garnishment, and then with a second one which the judge quashed in the instant case, shows under the facts as disclosed that the process of court was being used to force payment or settlement of plaintiff’s demands, which the letter above quoted and the testimony and affidavit indicate were without basis. There was no countershowing of any kind by plaintiff to rebut the import of the letter or the other facts set forth in defendant’s affidavit and testimony. Defendant showed that he was engaged in war work.that was difficult to finance, and that the tying up of $100,000- through garnishment would have a disastrous effect thereon. This, of itself, would not be sufficient to quash the garnishment. We do consider it in connection with the other facts disclosed by the affidavit and the testimony showing the threat and the attempted duress On defendant. In order to release the garnishment, defendant would have been obliged to file a bond with two sureties in the sum of $500,000, twice the amount claimed by plaintiff. 3 Comp. Laws 1929, §14900 (Stat. Ann. §27.1898). Garnishment is a harsh remedy, and if there is an abuse of process, the court has a right to quash it. Buckenhizer v. Times Publishing Co., 267 Mich. 393; Erb-Kidder Co. v. Levy, 262 Mich. 62; Tsingos v. Michigan Packing Co., 272 Mich. 7. In the instant case, the writ of attachment was never levied and evidently was abandoned. The attack'is solely made on the main suit. It was said in Buckenhizer v. Times Publishing Co., supra:
“The garnishment law provides no-procedure for attacking the truth of the allegations of the affi davit, on motion to quasi or dismiss. As tie proceedings at bar were regular on tieir face and in conformity witi tie statute, tie power to quasi exists only in tie autiority of tie court to correct abuse of its process.”
Tie right of plaintiff’s assignor therein “to a speedy and final determination of the account between him and defendant could have been conserved by direct action. ’ ’ Tie writ of garnishment therein was used by tie debtor “to enable’him to retain possession of money admittedly owing to another.”
As a rule, when tie principal case is brought by a proper party and tie declaration shows no inherent defects and tie affidavit for garnishment and writ or writs issued thereunder are regular in form, there is no statutory autiority to quasi the writ notwithstanding tie fact that an affidavit is filed in support of a motion to quasi or dismiss and it is based solely on tie ground that plaintiff’s claims in tie declaration are without merit. Plaintiff,'as a rule, may not be deprived of his right to have tie main issue tried out in tie manner provided by law witi or without a jury. Defendant on proper showing is entitled to a speedy trial and final determination of tie issues in tie principal case.
The order of tie trial court quashing tie writ of garnishment is reversed, witi costs to plaintiff.
Bushnell, J., concurred witi Butzel, J. | [
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Bird, C. J.
Defendant was convicted of embezzlement in the Kalamazoo circuit court and he was permitted to review his conviction by exceptions! before sentence.
The record discloses that J. C. Hatfield organized a small company with a capital of $3,000 in 1914, in the city of Kalamazoo, to do an insurance business. This business was prosperous and soon demanded more capital. In 1917 he increased the capital stock to $10,000, and sold a considerable portion of the stock in his home city. The company was called the “J. C. Hatfield Company," and Mr. Hatfield was the presi dent and treasurer of the company. At the time of increasing the capital stock he made a written contract with the stockholders as to what he should receive for his services in managing the company and when he should receive it. The contract provided that the earnings should first go to liquidate any indebtedness. After that a 15 per cent, annual dividend should be paid to the stockholders, and what was left after taking care of these two items he should be entitled to receive for his compensation for carrying on the business of the corporation. The company represented several foreign insurance companies in the city of Kalamazoo. The books show that for two or three years the company was prosperous. It then began to fall behind. The dividends were omitted and it contracted many debts, and the insurance companies were unable to get premiums which were owing to them. Being unable to get the premiums which had been paid to the J. C. Hatfield Company, the companies finally sent a Mr. Fowler, a lawyer and expert accountant, to Kalamazoo to examine the financial condition of the company. He made an examination and investigation of the books and papers of the concern, and made an audit of its financial affairs. The audit showed that defendant had appropriated to his own use nearly $44,000 of the moneys which the company had received. Mr. Fowler made a demand upon defendant to return the same to the company. This demand not being complied with, a petition was filed in court, and the company was placed in the hands of Mr. Fowler as receiver. Subsequently, Mr. Fowler caused a complaint to be made against defendant for embezzlement in the sum of $7,258.68. Defendant was arrested and tried upon an information containing four counts. Counts 1, 2 and 4 charge embezzlement. Count 3 charges larceny. Subsequently the third count, charging larceny, was abandoned.
The defendant pleaded “not guilty” and demanded a bill of particulars of the items which it was claimed had been embezzled. These items were furnished by the prosecutor. Counsel for defendant then moved the court to compel the prosecutor to elect under which count or counts he would go to trial. The court refused to do this, and his refusal is assigned as error.
1. The three counts which the prosecutor stood upon were charged under 3 Comp. Laws 1915, §§ 15310, 15336. The only difference in these statutes is, that in 15336 the legislature provided that when the money or property embezzled belonged in part to the agent or clerk he should not have a right to retain it and that it should not be a defense that he was entitled to a portion of it as his compensation. We see no error in this holding of the court. Counsel’s contention in this regard is fully answered by what we said in People v. Warner, 201 Mich. 547:
“The joinder in one information, in separate counts, of two or more offenses, which, though distinct in point of law, yet spring out of the same transaction, and are covered by the same testimony, cannot operate to the legal prejudice of the accused, and is permissible, and when distinct offenses are so committed and so charged, the people are not obliged to elect. People v. Sweeney, 55 Mich. 586; People v. McDowell, 63 Mich. 229; VanSickle v. People, 29 Mich. 61; People v. Sessions, 58 Mich. 594, 597; People v. Summers, 115 Mich. 537, 543. See, also, People v. Prague, 72 Mich. 178; People v. Durham, 170 Mich. 598, 604.”
2. Another assignment may be considered in this connection. Notwithstanding the fact that the third count had been eliminated the trial court in his charge made reference to it as though it were still in the case. The third count charged larceny. It would have been permissible to allow this count to stand with the others, as the larceny was shown by the same proofs. We think the inadvertence is of no importance.
3. Over the objection of defendant the witness, Fowler, was permitted to testify as to what the books and papers showed. Counsel say this was error because they were conclusions of the witness. Mr. Fowler was shown to be an attorney and an expert accountant, and he was trustee for the purpose of straightening out the affairs of the company. We think, under these circumstances, there was no error for him to testify what his weeks and months of examination showed was the condition of the company. When books and papers are voluminous and cannot be conveniently examined during the course of trial the law relaxes the rule and permits experts to testify as to what their conclusions are.
Jones on Evidence makes a good statement of the exception to the rule:
“Another relaxation of the rule based on the necessity of the case may be thus stated: Where the original consists of numerous documents which cannot be conveniently examined in court, and the fact to be proved is the general result of an examination of the whole collection, evidence may be given of such result by any person who has examined the documents, and who is skilled in such matters, provided the result is capable of being ascertained by calculation. This has been permitted when another course would cause great loss of time and tend to confuse the jury, and competent witnesses have been allowed to summarize the account and to state conclusions as to sales, solvency or insolvency and the like. Of course, the court may require the production of the original, if this is deemed necessary.” Jones on Evidence (2d Ed.), p. 254.
We think this assignment is without merit.
4. Counsel contend that defendant could not be guilty of embezzlement from the Hatfield Company because the company did not own the money, but it was owned by the insurance companies. To this contention the trial court stated the rule:
“The general property in and to those moneys, quite clearly, rested in the insurance companies whom this corporation, the Hatfield Company, represented. However, the Hatfield Company had a special interest or a special property right in and to those moneys, and it had it to such an extent that for the purpose of this case you are to take those moneys so received by the J. C. Hatfield Company as the property of that company, as belonging to the J. C. Hatfield Company.”
We think the court stated the rule correctly as applied to this case. It is certain from the record that the Hatfield Company was the rightful custodian of the money. It had the right to the possession of it, and as such custodian it was rightly charged in this action that it was the funds of the J. C. Hatfield Company. But counsel say that a part of the premium money paid for insurance belongs to the agent and, therefore, it was joint property. We do not think that is the right conclusion. The premium money belonged to the insurance companies and they were indebted to defendant for a certain percentage thereof as his commission. The statute 15336 seeks to, and does, take care of just such a claim aS this when embezzlement is charged.
5. The trial court refused to allow defendant to show: (1) That he had taken out a life insurance policy payable to the stockholders of the J. C. Hatfield Company. (2) Refused to allow him to testify as to the renewal value of the insurance business. (3) And refused to allow him to testify when he was arraigned.
The exclusion of these items of testimony is complained of as error. The court excluded them on the ground that they were immaterial. The rulings were proper. Had these facts been shown they would have been no help to the jury in determining the guilt of the defendant.
There is very little profit in considering further the assignments. We are of the opinion that there is no assignment which merits a reversal of the case. We are impressed that the trial court conducted the trial with care and in a very fair manner, and gave the jury a very excellent charge. The defendant has no cause to complain of the treatment accorded him on the trial.
The exceptions are overruled and the trial court will proceed to sentence.
Sharpe, J., concurred with Bird, C. J. Steere, Clark, and McDonald, JJ., concurred in the result. | [
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Per Curiam.
Defendant appeals as of right his jury trial convictions of possession of counterfeit bank bills, MCL 750.254, possession of counterfeiting tools, MCL 750.255, and two counts of using a computer to commit a crime, MCL 752.796, MCL 752.797(3)(d), and MCL 752.797(3)(e). Our disposition of this matter requires us to determine whether the language of MCL 750.255, which prohibits a person from adapting a “tool” to make counterfeit bills, includes within its meaning the use of computers to make forged bills. We hold that it does, and we affirm.
I. BASIC FACTS
In October 2005, Brian Keiser was driving his coworker, Andrew Gerrity, home from work. Keiser asked for money to pay for gas and Gerrity gave him a $100 bill. Keiser then stopped for fuel, but when he produced the $100 bill the cashier determined that the bill was counterfeit. The manager of the store called the police. When a police officer arrived at the scene, Gerrity identified defendant as the source of the bill. Gerrity stated that he took the $100 bill from defendant’s wallet the previous evening because he thought defendant owed him money. The police confirmed that the bill was counterfeit because it did not have a security strip, imbedded fibers, or a watermark.
Gerrity agreed to cooperate with the police in the ensuing investigation. In a recorded telephone conversation between Gerrity and defendant, defendant indicated that he was capable of making counterfeit money and described the process he used to make the bills. Defendant referred to a previous incident when defendant had given Gerrity a fake bill to pay for gas and the store clerk had accepted it. Defendant also spoke of printing $6,000 to $7,000 in counterfeit bills over the ensuing weekend to use at a casino. Subsequently, defendant admitted in a police interview that he had printed $20 and $100 bills, but had only kept one of the $100 bills as “bait money” to catch someone he thought was stealing from him.
Defendant was charged and the matter went to trial. Gerrity’s mother testified that defendant had told her that he only needed a computer to make the fake money and that he had done it before. Defendant’s previous roommate, Mike Hyde, testified that defendant told him that he had made the money on the computer and had admitted making some $20 and $100 bills, because he had debt and a gambling addiction. Defendant’s friend, Nicole Hatton, had seen in defendant’s bedroom a printer that was producing what looked like sheets of money. A police detective testified that digital images of $5, $20, and $100 bills were found on defendant’s seized computer and that they were last accessed three times in October 2005. In addition, eight torn-up counterfeit $20 bills recovered from defendant’s wastebasket were admitted into evidence.
Defendant also testified at trial. He admitted making counterfeit bills at his home, using resume paper, a scanner, a computer, and a printer to create the bills. Defendant testified that he had made these bills “to catch” a thief who had taken things from his home. Previously, defendant’s wallet and “hundreds” of pain pills had allegedly disappeared from defendant’s home in the summer of 2005. According to defendant, he planned to identify the thief by luring him with the fake bill and, then, the thief would get caught using the bill at a store. At the close of trial, the jury convicted defendant of all four counts.
II. STANDARDS OF REVIEW
The thrust of defendant’s argument is that the evidence did not sufficiently support his convictions. We review claims of insufficient evidence de novo. People v Cline, 276 Mich App 634, 642; 741 NW2d 563 (2007). In doing so, we must view all the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crimes were proven beyond a reasonable doubt. People v Schumacher, 276 Mich App 165, 167; 740 NW2d 534 (2007). The credibility of witnesses and the weight accorded to evidence are questions for the jury, and any conflict in the evidence must be resolved in the prosecutor’s favor. People v McGhee, 268 Mich App 600, 624; 709 NW2d 595 (2005). Circumstantial evidence and reasonable inferences arising therefrom may be sufficient to prove all the elements of an offense beyond a reasonable doubt. Schumacher, supra at 167.
We also review de novo matters of statutory construction. People v Holley, 480 Mich 222, 226; 747 NW2d 856 (2008). In doing so, our primary goal is to discern and give effect to the intent of the Legislature. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). The first step in determining legislative intent is to examine the specific language of the statute. People v Lively, 470 Mich 248, 253; 680 NW2d 878 (2004). The meaning plainly expressed is presumed to be the intent of the Legislature. Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d 41 (2007). Judicial construction is only appropriate if the statute is ambiguous. People v Warren, 462 Mich 415, 427; 615 NW2d 691 (2000).
III. ANALYSIS
Due process requires that the prosecutor prove all the elements of the crimes charged beyond a reasonable doubt. People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005) (opinion by Kelly, J). Defendant’s contention is that the prosecutor failed to do so in his case because there was insufficient evidence of intent and because MCL 750.255 does not contemplate the use of a computer. We disagree.
A. MCL 750.255
Before considering defendant’s argument regarding intent, we first consider the meaning of the language in MCL 750.255 and whether it applies to defendant. Defendant asserts that the evidence was insufficient to support his conviction under this provision, and his derivative conviction under MCL 752.796(1), because the language of the statute does not contemplate the use of a computer to make a counterfeit bill. Defendant contends that the statute prohibits a person from making a tool specifically designed for producing counterfeit money. Because his computer was not specifically designed to make counterfeit money, it follows that the statute does not contemplate it. We disagree with defendant’s interpretation.
We note that the statute at issue was enacted early in Michigan’s statehood. 1846 RS, ch 155, § 9. As defendant notes, the statute has not been substantially altered since that time and now reads, in pertinent part:
Any person who shall engrave, make or mend, or begin to engrave, make or mend, any plate, block, press or other tool, instrument or implement, or shall make or provide any paper or other material, adapted or designed for the forging and making any false or counterfeit note, certificate or other bill of credit... issued by lawful authority ... and any person who shall have in his possession any such plate or block, engraved in whole or in part, or any press or other tool, instrument or implement, or any paper or other material, adapted and designed as aforesaid, with intent to use the same, or to cause or permit the same to be used in forging or making any such false or counterfeit certificates, bills or notes, shall be guilty of a felony.... [MCL 750.255.]
Thus, to sustain a conviction under this provision, the prosecutor must show that defendant has “ engrave [d], ma[de] or mend[ed]” a tool, or made or provided paper, or has in his possession such a tool that is “adapted or designed for the forging and making [of]... counterfeit note[s,]... with [the] intent to use the same ... in forging ... counterfeit certificates____” While it is clear to us that the intent of this language is to criminalize the production of a copy or imitation of official, negotiable currency, it is also obvious that the Legislature that drafted the bill could not have anticipated the development of computer technology, let alone how it could be adapted to produce counterfeit currency. It is also true that the named tools in the statute are all things that are physically manipulated in the process of producing an image. Nonetheless, as originally drafted — and still to the present day — the statute speaks broadly of tools, instruments, or implements used to counterfeit currency. And, a computer, scanner, and printer, which defendant used in this case, are each a “tool” because they are “used as a means of accomplishing a task....” Random House Webster’s College Dictionary (1997). Accordingly, we hold that the phrase “other tool,” as used within MCL 750.255, plainly encompasses defendant’s use of his computer, scanner, printer, and resume paper as tools, instruments, other implements, and paper adapted for counterfeiting.
In rejecting defendant’s argument, we note that his position focuses on implements designed for such a purpose and ignores instruments adapted for such a purpose. The verb “adapt” means, in part, to “adjust or modify fittingly.” Random House Webster’s College Dictionary (1997). Using an existing computer, scanner, and printer to counterfeit money involves modifying the normal intended uses of these tools to achieve the goal of creating counterfeit currency.
Further, the evidence presented was sufficient to support defendant’s conviction under this provision. Defendant admitted using his computer, scanner, and printer to produce false bills. Defendant said that he scanned images of authentic currency with his scanner, and a detective found images of authentic currency on defendant’s computer hard drive. Defendant then adapted the printer and paper to produce counterfeit bills by printing the images on the resume paper. It is plain under these facts that defendant adapted tools that he intended to use, and did use, for forging counterfeit bills.
B. MCL 750.254
Defendant’s argument that the evidence was insufficient to support his conviction under MCL 750.254 because he did not intend to pass the bills as legal tender also fails. MCL 750.254, which requires that the prosecutor prove intent beyond a reasonable doubt, provides, in relevant part:
Any person who shall bring into this state, or shall have in his possession, any false, altered, forged or counterfeit bill or note in the similitude of the bills or notes payable to the bearer thereof,... with intent to utter or pass the same, or to render the same current as true, knowing the same to be false, forged or counterfeit, shall be guilty of a felony....
Thus, the prosecutor must show that defendant had in his possession a counterfeit bill or bills, and that he intended to “utter” or “pass” or “render” those bills as true, while knowing that those bills are counterfeit. MCL 750.254. “To utter means to put something into circulation. To utter and publish means to offer something as if it is real, whether or not anyone accepts it as real.” CJI2d 22.22. To “render” is “[t]o transmit or deliver.” Black’s Law Dictionary (8th ed).
Contrary to defendant’s position, the evidence and reasonable inferences arising therefrom support the conclusion that defendant possessed counterfeit bills with the “intent to utter or pass the same, or to render the same current as true,” MCL 750.254. Defendant recounted in the recorded telephone call with Gerrity the process that he used to make counterfeit bills, implying more than a one-time interest in the subject. Gerrity’s mother testified that defendant had said that he had counterfeited money in the past, and defendant’s friend testified that she once saw defendant printing out what looked like sheets of money. Defendant’s computer revealed that he accessed images of the bills at least three times in October 2005. On the tape, defendant and Gerrity also talked of making money to pass at a casino, with defendant asserting that he could produce $6,000 to $7,000 over the weekend. Defendant also recalled how Gerrity had successfully passed a different counterfeit $100 bill that defendant had given Gerrity to pay for gas. Additionally, defendant’s past roommate stated that defendant admitted counterfeiting money because of debts resulting from a gambling addiction and overspending. A trier of fact can infer a defendant’s intent from his words, acts, means, or the manner used to commit the offense. People v Hawkins, 245 Mich App 439, 458; 628 NW2d 105 (2001). All this evidence sufficiently shows defendant’s intent to pass the counterfeit money as legal tender.
While defendant did provide an alternative explanation for his actions, i.e., he created the forged bills to trap an alleged thief, it is for the trier of fact to assess the credibility of witnesses and the weight to be given the evidence. People v Passage, 277 Mich App 175, 177; 743 NW2d 746 (2007). We note that even if the jury had believed defendant’s testimony, the evidence would still be sufficient to support his convictions. This is because his testimony revealed his intent to introduce the counterfeit bills into the stream of commerce and to use his computer, printer, and scanner to make the forged bills. Defendant elaborated that his plan was for the person who was stealing from him to take the false bill that he planted, use it, and get caught. The plan was to first pass the bill from himself to the targeted thief. Secondly, the thief was then expected to inject it into the stream of commerce. While defendant hoped that the thief would be stopped and caught, he had no plan that would aid or assure bringing about that outcome. Regardless of whether the supposed thief were caught, it was defendant’s intent that the bill be passed and uttered twice. Thus, viewing the evidence in the light most favorable to the prosecution, it is clear that a rational trier of fact could find that the essential elements of the crimes were proven beyond a reasonable doubt, and we decline to grant the relief requested.
Affirmed.
MCL 750.255 served as the predicate offense for one of defendant’s convictions under MCL 752.796, while defendant’s conviction under MCL 750.254 served as the predicate offense for defendant’s second conviction under MCL 752.796. MCL 752.796(1) provides:
A person shall not use a computer program, computer, computer system, or computer network to commit, attempt to commit, conspire to commit, or solicit another person to commit a crime. [Emphasis added.]
MCL 752.797(3) provides the terms of imprisonment for a person guilty of violating MCL 752.796 depending on the punishable term of the underlying offense.
Defendant’s argument with respect to intent is only directed toward his conviction under MCL 750.254. | [
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Per Curiam.
Following a jury trial, defendant was convicted of fourth-degree fleeing or eluding a police officer, MCL 257.602a(2), for which he was sentenced to three years’ probation. He appeals as of right. We affirm.
i
Defendant drove a pickup truck over a fire hose that firefighters were using to extinguish a fire at a thrift shop. Flat Rock Police Officer Glen Hoffman activated the overhead flashers of his patrol vehicle and stopped defendant’s truck. Officer Hoffman recognized the driver as defendant, but asked for his driver’s license, proof of insurance, and vehicle registration, because he intended to cite defendant for driving over the fire hose. According to Officer Hoffman, defendant was upset and said that he was in a hurry to take his son to his mother’s home. After Officer Hoffman requested defendant’s driver’s license three or four times, defendant threw it to the officer through a partially opened window and said something like, “Here you go, bozo.” Defendant told Officer Hoffman that he was going to leave and would be back later for the ticket. Defendant drove a few feet, Officer Hoffman ordered him to stop, and defendant did stop but continued to say that he was going to leave. Officer Hoffman then ordered defendant to step out of the vehicle and told him he would be arrested if he continued to leave. Defendant refused Officer Hoffman’s demands to get out of the truck. Officer Hoffman testified that it was his intention to arrest defendant for hindering or obstructing an officer, if he did not comply with his order to get out of the vehicle. Officer Hoffman warned defendant that he had a Taser, and he stood on the truck’s running board while attempting to shoot the Taser at defendant’s chest. Officer Hoffman jumped off the running board as defendant drove off. Defendant testified that he drove off only after Officer Hoffman “went berserk” and shot something at him.
Following defendant’s conviction, he moved for a new trial, asserting ineffective assistance of counsel, or, alternatively, for a directed verdict of acquittal, claiming that there was insufficient evidence to establish that Officer Hoffman was lawfully performing his duties before defendant’s flight. The trial court denied the motion.
ii
Defendant argues that the evidence was insufficient to establish the lawful performance element of the offense of fleeing or eluding a police officer. In connection with this issue, defendant argues that he was denied “procedural due process” because, in response to his posttrial motion, the prosecution responded that it was proceeding under a theory that this element could be proven by evidence that there was probable cause to arrest defendant for obstruction under MCL 750.81d. We find no basis for relief.
We review de novo defendant’s challenge to the sufficiency of the evidence. People v Cline, 276 Mich App 634, 642; 741 NW2d 563 (2007). “Taking the evidence in the light most favorable to the prosecution, the question on appeal is whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” People v Hardiman, 466 Mich 417, 421; 646 NW2d 158 (2002). The prosecution need not negate every theory consistent with innocence, but is obligated to prove its own theory beyond a reasonable doubt, in the face of whatever contradictory evidence the defendant may provide. Id. at 423-424. Due process commands a directed verdict of acquittal where the evidence is insufficient. People v Lemmon, 456 Mich 625, 633-634; 576 NW2d 129 (1998).
Defendant’s claim that he was denied notice of the prosecution’s theory was not raised below and, therefore, is unpreserved. Accordingly, we review the issue for plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
The Due Process Clause of the Fourteenth Amendment mandates that a state’s method for charging a crime give a defendant fair notice of the charge against the defendant, to permit the defendant to adequately prepare a defense. Koontz v Glossa, 731 F2d 365, 369 (CA 6, 1984). “[I]t is a practical requirement that gives effect to a defendant’s right to know and respond to the charges against him.” People v Darden, 230 Mich App 597, 601; 585 NW2d 27 (1998). Prejudice is essential to any claim of inadequate notice. Id. at 602 n 6.
The information in this case gave defendant notice that the charge under MCL 257.602a(2) was predicated on his failure to comply with Officer Hoffman’s order to stop his vehicle, while Officer Hoffman was acting in the lawful performance of his duties, on December 1, 2006. This case is distinguishable from Olsen v McFaul, 843 F2d 918, 931 (CA 6, 1988), in which a theft indictment was so indefinite that it provided no assistance to the defendant in determining what property he was charged with stealing and how the theft was committed. The information in this case provided fair notice that the charge against defendant was based on a particular event on December 1, 2006.
Further, defendant has not shown that he was prejudiced by the fact that the information did not state his alleged offense with greater specificity. It is apparent from the trial record that defendant clearly knew the acts for which he was being tried. Before jury selection, defense counsel used the police report to argue an evidentiary matter, and counsel explained to the trial court that there would be a divergence between the parties’ evidence regarding what happened after defendant produced his driver’s license. Consistent with Officer Hoffman’s trial testimony, the police report indicates that Officer Hoffman decided that he could arrest defendant for hindering or obstructing a police officer during the traffic stop. Further, trial counsel expressed no surprise when the prosecutor argued to the jury, during closing argument, that the element of lawful performance was established, by evidence that defendant was stopped for the civil infraction of driving over the fire hose, and that the traffic stop had not concluded when defendant drove off. Consistent with his earlier remarks, defense counsel instead argued to the jury that defendant’s testimony established that Officer Hoffman overreacted and that defendant drove off because of the Taser.
We find no basis in the record for concluding that defendant did not have adequate notice of the charge against him. We also find no support for defendant’s claim that the prosecution attempted to change its theory, for purposes of opposing defendant’s posttrial motion for a directed verdict. At best, the record indicates that the prosecution responded to defendant’s own attempt to recast his actions as an escape from an attempted arrest rather than an avoidance of a lawful traffic stop. The prosecution’s response did not create any procedural due process concerns.
We also reject defendant’s argument that the evidence was insufficient to establish that Officer Hoffman was lawfully performing his duties when defendant fled. MCL 257.602a(l) provides, in part:
A driver of a motor vehicle who is given by hand, voice, emergency light, or siren a visual or audible signal by a police or conservation officer, acting in the lawful performance of his or her duty, directing the driver to bring his or her motor vehicle to a stop shall not willfully fail to obey that direction by increasing the speed of the motor vehicle, extinguishing the lights of the motor vehicle, or otherwise attempting to flee or elude the officer. [Emphasis added.]
Viewed in a light most favorable to the prosecution, the evidence that Officer Hoffman was attempting to detain defendant for the purpose of issuing a citation for driving over the fire hose was sufficient to enable the jury to find, beyond a reasonable doubt, that Officer Hoffman was acting in the lawful performance of his duties. Driving over an active fire hose, without the consent of the fire department, is a civil infraction. MCL 257.680. A police officer who witnesses a civil infraction may stop and temporarily detain the offender for the purpose of issuing a written citation. MCL 257.742(1). Because the traffic stop was incomplete when defendant fled, the evidence was sufficient to sustain the conviction, regardless of whether Officer Hoffman also had probable cause to arrest defendant for obstruction. See People v Laube, 154 Mich App 400, 407; 397 NW2d 325 (1986) (whether reasons other than a civil infraction justify the police action is irrelevant).
We also reject defendant’s claim that Officer Hoffman’s testimony established that he lacked probable cause to arrest defendant for obstruction. A police officer may make an arrest without a warrant if there is probable cause to believe that a felony was committed by the defendant, or probable cause to believe that the defendant committed a misdemeanor in the officer’s presence. MCL 764.15; People v Dunbar, 264 Mich App 240, 250; 690 NW2d 476 (2004). “Probable cause is found when the facts and circumstances within an officer’s knowledge are sufficient to warrant a reasonable person to believe that an offense had been or is being committed.” Id. The standard is an objective one, applied without regard to the intent or motive of the police officer. People v Holbrook, 154 Mich App 508, 511; 397 NW2d 832 (1986).
Here, in denying defendant’s posttrial motion, the trial court determined that Officer Hoffman could have arrested defendant for obstruction, under a city ordinance, MCL 750.81d, or MCL 750.479. On appeal, defendant focuses his argument on MCL 750.81d. Defendant’s failure to challenge the other two bases of the trial court’s decision constitutes a waiver that precludes appellate relief. See Roberts & Son Contracting, Inc v North Oakland Dev Corp, 163 Mich App 109, 113; 413 NW2d 744 (1987) (failure to brief a necessary issue precludes appellate relief). Nonetheless, even limiting our consideration to MCL 750.81d(l), it is clear that there was evidence to support a finding of probable cause.
Under MCL 750.81d(l), an individual who obstructs a person who the individual knows or has reason to know is performing his or her duties, is guilty of a felony. “Obstruct” includes “a knowing failure to comply with a lawful command.” MCL 750.81d(7)(a). As defendant concedes on appeal, Officer Hoffman testified that defendant refused to comply with an order to get out of the vehicle:
He continued to say he was going to leave the scene before his violation. And I kept telling him no. He wanted to argue with me. I told him at that point to exit the vehicle, that I was going to place him under arrest if he was going to continue to leave.
I continue to ask him to exit the vehicle. He’s refusing to. He had his juvenile son in the vehicle with him hollering at him, stop dad, listen to him.
A police officer may order occupants to get out of a vehicle, pending the completion of a traffic stop, without violating the Fourth Amendment’s proscription against unreasonable searches and seizures. Pennsylvania v Mimms, 434 US 106, 111; 98 S Ct 330; 54 L Ed 2d 331 (1977); Maryland v Wilson, 519 US 408, 414-415; 117 S Ct 882; 137 L Ed 2d 41 (1997). Therefore, considering the evidence that defendant refused to obey Officer Hoffman’s lawful commands, we agree with the trial court’s posttrial ruling that probable cause for an arrest without a warrant developed during the course of the traffic stop. Accordingly, while we conclude that the evidence was sufficient to sustain defendant’s conviction, regardless of whether Officer Hoffman acquired probable cause to make a felony arrest during the traffic stop, we nonetheless reject defendant’s argument that Officer Hoffman was acting unlawfully when he informed defendant of his intention to arrest him.
hi
Next, defendant argues that he was denied the effective assistance of counsel. The trial court rejected this same argument without conducting a Ginther hearing, and this Court previously denied defendant’s motion to remand for a Ginther hearing. Further, we are not persuaded that defendant has demonstrated any issue for which further factual development would advance his claim. See MCR 7.211(C)(1)(a); People v Williams, 275 Mich App 194, 200; 737 NW2d 797 (2007). Accordingly, we limit our review to the record. People v Wilson, 242 Mich App 350, 352; 619 NW2d 413 (2000).
A defendant seeking a new trial with a claim of ineffective assistance of trial counsel has a heavy burden of proof. People v Carbin, 463 Mich 590, 599; 623 NW2d 884 (2001). The defendant must show that trial counsel’s representation fell below an objective standard of reasonableness and must also show resulting prejudice. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). “To demonstrate prejudice, the defendant must show the existence of a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different.” Carbin, supra at 600.
Defendant argues that even if a directed verdict was not warranted, trial counsel was ineffective because counsel failed at trial to challenge the lawfulness of Officer Hoffman’s conduct and, in fact, agreed during closing argument that Officer Hoffman was lawfully performing his duties. Defendant contends that trial counsel should have developed an argument predicated on the lack of probable cause to make an arrest for obstruction. He also argues that trial counsel should have requested an instruction requiring the jury to decide if there was probable cause for an arrest. As we have already determined, however, the fleeing or eluding charge did not require proof that Officer Hoffman had probable cause to arrest defendant. “Trial counsel is not required to advocate a meritless position.” See People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). Moreover, we will not second-guess trial counsel’s strategy of conceding certain elements of the charge at trial. People v Emerson (After Remand), 203 Mich App 345, 349; 512 NW2d 3 (1994). Therefore, defendant has not demonstrated deficient performance or prejudice.
Defendant also argues that trial counsel was ineffective for not objecting to the prosecutor’s remarks during closing argument. After reciting the elements of the offense and commenting on defendant’s testimony that he drove off because he was afraid, the prosecutor remarked, “[TJhere’s nothing in this instruction that gives you that exception. There’s no exception that says, guilty unless you get tasered and you drive away.” Defendant asserts that the prosecutor impermissibly suggested that Officer Hoffman’s deployment of the Taser was not relevant.
A prosecutor’s remarks are examined in context and evaluated in light of defense arguments and their relation to the trial evidence. People v Brown, 267 Mich App 141, 152; 703 NW2d 230 (2005). The thrust of the challenged remarks was that the evidence did not show anything to excuse defendant’s criminal behavior. The prosecutor is “free to argue the evidence and all reasonable inferences arising from it as they relate to the theory of the case.” People v Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000), abrogated in part on other grounds by Crawford v Washington, 541 US 36 (2004). Therefore, trial counsel was not ineffective for failing to object to the prosecutor’s characterization of the Taser evidence. To the extent that the prosecutor stated her position as an expression of law, any prejudice was cured when the trial court instructed the jury to follow the law according to the trial court’s instruction. “Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors.” People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003).
Furthermore, we note that trial counsel responded to the prosecutor’s closing argument by challenging Of ficer Hoffman’s credibility and arguing that it was appropriate for defendant to leave under the circumstances explained in defendant’s testimony. Trial counsel argued that defendant complied with each order to stop known to him and that defendant exercised common sense when he fled the scene to avoid being tasered. The particular elements of the charge challenged by trial counsel, as set forth in the trial court’s jury instructions, required proof of a known order to stop the vehicle and defendant’s refusal to obey it by trying to flee or avoid being caught.
We also reject defendant’s argument on appeal that trial counsel was ineffective for not developing and requesting jury instructions for a duress defense. Trial counsel is responsible for preparing, investigating, and presenting all substantial defenses. People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990). “A substantial defense is one that might have made a difference in the outcome of the trial.” Id. A duress defense requires some evidence from which the jury could find the following elements:
■ “A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
“B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
“Q The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
“D) The defendant committed the act to avoid the threatened harm.” [People v Lemons, 454 Mich 234, 247; 562 NW2d 447 (1997), quoting People v Luther, 394 Mich 619, 623; 232 NW2d 184 (1975).]
Further, the threatening conduct or compulsive act must be present, imminent, and impending. Lemons, supra at 247. It must arise without the negligence or fault of the person claiming the defense. Id. The defense reflects a social policy that it is better for a person to chose to commit a crime than to face a greater evil threatened by another person. Id. at 246.
Defendant’s testimony did not support a duress defense. The circumstances of this case involved a traffic stop, in which Officer Hoffman could lawfully order defendant to get out of his truck. Defendant acknowledged in his own testimony that he was asked five or six times to get out of his truck by Officer Hoffman and that, nevertheless, he attempted to leave the scene before Officer Hoffman attempted to fire the Taser at him.
Because defendant’s own testimony established that he could have prevented Officer Hoffman’s deployment of the Taser by complying with the officer’s lawfiil demand to get out of the truck, we agree with the trial court that trial counsel was not ineffective for failing to pursue a duress defense. We find no basis for concluding that a claim of duress would have provided a substantial defense to the charge of fleeing or eluding a police officer. If anything, it might have emphasized the weakness of trial counsel’s argument that the deployment of the Taser justified defendant’s flight. Counsel’s choice between weak defenses does not suggest deficient performance or prejudice. People v LaVearn, 448 Mich 207, 216; 528 NW2d 721 (1995).
TV
Defendant next argues that the trial court’s failure to instruct the jury regarding duress, or to provide additional instructions concerning whether Officer Hoffman lawfully performed his duties, constituted plain error. After the trial court instructed the jury, defense counsel indicated that the defense was “satisfied” with the instructions. Counsel’s affirmative expression of satisfaction with the trial court’s jury instruction waived any error. People v Lueth, 253 Mich App 670, 688; 660 NW2d 322 (2002).
Defendant also argues that the trial court erred by giving a pretrial instruction advising the jury that appellate courts “will review everything on the record to see if I’m making any mistakes.” Having reviewed defendant’s unpreserved claim under the plain error rule of Carines, we find no basis for relief.
We agree with defendant that it is improper for a trial court to comment to the jury on matters of appeal. People v Fiorini, 85 Mich App 226, 234; 271 NW2d 180 (1978). However, unlike Caldwell v Mississippi, 472 US 320; 105 S Ct 2633; 86 L Ed 2d 231 (1985), this case does not involve any prosecutorial argument or a sentencing matter; rather, it involves the trial court’s instructions before testimony began. The trial court had authority to give appropriate pretrial instructions. MCR 6.414(A). “We review jury instructions in their entirety to determine if error requiring reversal occurred.” People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). Even if instructions are imperfect, reversal is not required if they fairly present the issues to be tried and sufficiently protect the defendant’s rights. Id.
The trial court’s brief remark regarding appellate review of its mistakes did not suggest any diminished responsibility on the part of the jury in reaching a verdict. To the contrary, the trial court properly instructed the jury on the importance of its role before it heard the testimony, and the trial court reiterated the jury’s role in the final instructions before deliberations. Considering the trial court’s instructions in their entirety, the trial court’s brief reference to appellate review did not affect defendant’s substantial rights.
Affirmed.
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). | [
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Nelson Sharpe, C. J.
The plaintiff and his wife lived on a 40-acre farm in the county of Lapeer for many years. She passed away in 1927, and he went to live in the home of his niece, Theresa Bruman, and her husband in the village of Memphis. He was then, and had for many years been, totally blind. Mr. Bruman was at that time in the employ of the defendant Shanahan, who was engaged in the gravel business. Bruman and his wife knew that there was a gravel pit on plaintiff’s farm, from which gravel had been sold, and called Shanahan’s attention to it. Litigation was at that time pending over plaintiff’s title to the farm. It was finally conveyed by plaintiff to Shanahan, and this suit was brought against him and Mrs. Brnman for an accounting of the moneys due him on the purchase price thereof.
The plaintiff testified that Shanahan, in the presence of Mr. and Mrs. Brnman, expressed a desire to purchase his farm, and that he said to him, “now you are in such a fix * * * How much would you take for the place now?” that he first asked $15,000, but Shanahan said it was too much, and offered him $4,000, and he finally agreed to take it; that he was taken to Port Huron and a contract was prepared and read to him, under which he was to receive the $4,000 for the farm, and that, as he understood it, the contract was delivered to Mrs. Bruman for him. He also testified that some time later Henry Brown, the then cashier of a bank in Lapeer, who was deceased at the time of the trial, brought a deed to his niece’s home, and that he signed it on the assurance that he would get the $4,000.
The defendant Shanahan testified that, after talking with the plaintiff and Mr. and Mrs. Bruman about purchasing the farm, he said to them that he would have to consult with his attorneys about it; that his attorneys advised him that he must have “some sort of a tentative agreement” as he would be required to pay out money to clear up the title; that such an agreement was prepared and executed, in which he agreed to pay plaintiff the sum of $1,200 for a quitclaim deed. On being asked, “Any $4,000 connected with it?” he answered:
“There was. There was a 4,000, something about $4,000 in this tentative agreement, with a great many reservations in connection that he must do so and thus in furnishing the title, and the property must be as valuable, must be as valuable as supposed.”
William W. Reynolds, who was later acting for Mr. Shanahan in the procuring of the quitclaim deed, also testified that he knew the preliminary agreement called for the payment of $4,000 for the farm. Shanahan was several times asked to produce this agreement. He at one time said he did not know where it was, and later that he thought he destroyed it himself.
After this agreement was executed, Shanahan took charge of the litigation relative to the title, and plaintiff’s rights therein were established. There is evidence that the plaintiff understood he was to get but $1,200 for the farm at the time he signed the deed. A writing was then signed by Mrs. Bruman and Shanahan and left with the bank, stating- that Shanahan had issued two checks for $600; the one to be delivered to Mrs. Bruman for services rendered to the plaintiff, and the other to be deposited to plaintiff’s credit in the bank “for the purpose of his future maintenance and no disbursements of this fund can be made for a period say of 60 days or until some satisfactory arrangements may be made for his future welfare.” It is significant that on the face of the two checks drawn in payment of the $1,200 appear the words, “forty acres part payment. ’ ’
Soon thereafter plaintiff was taken by Mrs. Bruman to the “Little Sisters of the Poor”'at Detroit, where he stayed for more than two years, and he then was taken to the Wayne County Infirmary at Eloise, and remained there until the time of the trial.
Mrs. Braman, called as a witness for the defendant, testified that she was present when the plaintiff executed the quitclaim deed by putting his mark thereon. She was then asked:
“Do you remember at the time that you and Mr. Reynolds and your husband were in Shanahan’s office that there was an offer made of $1,200 on this property?” and answered: “I think so. I think so, yes. I remember just about the $1,200, ’ ’ and that she talked it over with plaintiff and he expressed his willingness to accept it. She further testified:
“Q. Now, Mrs. Braman, how much money in cash that you know of has Anthony Summer received from the farm?
“ A. Well, there was the $600 in the bank.
“Q. How much has he received in cash that he could call his own, that wasn’t tied up?
“A. Why, none that I know of.”
The trial court found that an agreement was made under which plaintiff was to receive $4,000 for the land. He deducted therefrom the amount of the cheeks, the amount of the mortgage on the land, and the expenses of the litigation paid by the defendant Shanahan, amounting in all to $2,400, and entered a decree in plaintiff’s favor against him for $1,600, from which he has appealed. The bill was dismissed as to Mrs. Braman.
We have here a man totally blind and living with his niece, whose husband was in the employ of the defendant Shanahan. The evidence justified the finding of the trial court that in the agreement first made the plaintiff was to receive $4,000 for his farm, less the amount of the mortgage and the sums expended to perfect his title thereto. He executed a quitclaim deed therefor, for which he has received no money and no benefit except some clothing given him by his niece.
Ordinary prudence on the part of Mr. Shanahan in dealing with this man should have suggested that his interests should be properly protected. Had the agreement first entered into been produced, the rights of the parties would doubtless have been determined thereby. Under the facts here presented, the trial court was warranted in finding that the purchase price was agreed upon therein at $1,000, less the sums disbursed by Shanahan in quieting the title and the amount of the mortgage, and we agree with him that the after proceedings, under the circumstances, should not be held to relieve him from making payment of the balance due the plaintiff thereon.
The decree is affirmed, with costs to plaintiff.
Potter, North, Fead, Wiest, Btjtzel, and Edward M. Sharpe, JJ., concurred. Bttshnell, J., did not sit. | [
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Bird, C. J.
Defendant was charged in the Lapeer circuit court with having furnished one Guy Morse two drinks of moonshine whisky, 'on the 21st day of August, 1925. The defense was an alibi. The question of fact was tried out and the jury convicted him. He applied for a new trial on the ground that the verdict was against the great weight of the evidence. This motion being denied, defendant appeals and raises two questions:
(1) The verdict was against the great weight of the evidence.
(2) Error is charged in the instructions of the court.
It appears that Guy Morse was arrested the day previous for being intoxicated. He spent the night in jail, and, when before the justice the following morning, he disclosed where he obtained his whisky and stated that he could get more. The officers arranged for him and his brother-to go to Hayden’s and obtain more. They testified they were at defendant’s house about noon and obtained two drinks of whisky. Defendant testified that he was not at home at that hour, that he was in the city of Lapeer on business. There is some corroboration in the testimony of the people’s case, and also of defendant Hayden’s testimony. The question was one of fact. There were many elements in connection with the testimony of both sides' for the consideration of the jury. It was a question, which, had it been decided either way, would not have merited a criticism of the jury. This assignment is without merit.
The trial court instructed the jury that:
“Now, gentlemen of the jury, the real controlling question in this case grows out of whether or not Mr. Hayden was at his farm home in the forenoon of the 21st of August, or whether he was here in Lapeer at that time. That is what is known as an alibi, and grows out of the fact that a man cannot be in two places at the same time, and if he claims that he was at two •places at different times, which appears to be different times from the testimony in the case, then, of course, his defense fails, but it is a question which is entitled to your careful consideration.”
The court did not make his meaning as plain as he might have done, but we think there was no error in the instruction. He explained to them what an alibi was, and after doing so he stated that if defendant claimed he was in two places at different times and those times were different than those shown by the people’s testimony, his claim of alibi failed. This did not eliminate the question of fact as to which was telling the truth about the matter. The charge as a whole made it very plain to the jury that the controlling question of fact was whether defendant was at his home about noon or in the city of Lapeer. We are not persuaded that the jury were misled by the instruction.
The judgment of conviction is affirmed.
Sharpe, Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Sharpe, J.
Petitioner, Charles Gray, is confined in the State prison at Jackson, and seeks release by habeas corpus upon the theory that he was found guilty of “attempted robbery armed,” which crime is punishable by imprisonment in the State prison “not more than five years, or in the county jail not more than one year,” as was provided by 3 Comp. Laws 1929, § 17342; that he was illegally sentenced to serve a term of not less than 20 years, nor more than 35 years; and that the sentence which could have been legally imposed expired on November 21, 1935.
We issued the writ to inquire into the matter, and also an ancillary writ of certiorari to bring before us the record of his conviction and sentence in the circuit court.
The information in the circuit court charged petitioner and one Guy Dennis, “on or about the 29th day of September, 1930, at the city of Flint, in said Genesee county, being then and there armed with a certain dangerous weapon, to wit: a revolver, in and upon one Joseph Henderson, in the peace of the people of the State of Michigan, then and there being, feloniously did make an assault, with intent the 'moneys, goods and chattels of the said Joseph Henderson, from the person and against the will of the said Joseph Henderson, then and there feloniously and violently to rob, steal, take and carry away.”
On November 3, 1930, petitioner and Guy Dennis pleaded not guilty to the information. The cause came on for trial and1 at the completion of all testimony the trial court charged the jury as follows:
‘ ‘ Charles Gray, the defendant here, is charged as follows: On or about the 29th day of September, in the year 1930, at the city of Flint, in said Genesee county, being then and there armed with a certain dangerous weapon, to wit a revolver, in and upon one Joseph Henderson, in the peace of the people of the State of Michigan, then and there being, feloniously did make an assault with intent the moneys, goods and chattels of the said Joseph Henderson, from the person and against the will of the said Joseph Henderson, then and there feloniously and violently to rob, steal, take and carry away. ’ ’
The jury returned a verdict of guilty as charged in the information, and on November 21, 1930, the trial judge pronounced sentence of 20 to 35 years, without recommendation. However, the journal entry of judgment or sentence and the warrant for removal of the petitioner to State prison recite that Charles Gray, impleaded with Guy Dennis, has lately been “duly convicted of the crime of attempted robbery armed.”
The record does not sustain the claim of petitioner that he was found guilty of “attempted robbery armed.” The information, charge of the court, and verdict of the jury clearly show that petitioner was convicted of the offense of “assault with intent to commit robbery while armed with a dangerous weapon.” At the time petitioner was sentenced he could have been punished by imprisonment in the State prison for life or any number of years, by virtue of 3 Comp. Laws 1929, § 16723.
In Re Rogers, 308 Mich. 392, defendant pleaded guilty to the charge of breaking and entering in the nighttime designated premises, and stealing personal property. The journal entry of the court recorded hini guilty of “grand larceny,” but sentence was pronounced upon the charge laid, in the information. We there said:
“The writ of certiorari has brought before us the proceedings in the circuit court and under our constitutional power, it being apparent that the errors in the court journal and the commitment of sentence are ministerial, the record is remanded to the circuit court with direction to make the same, nunc pro tunc, speak the judicial determination relative to the conviction and the grounds for the sentence imposed and a supplemental commitment issued and forwarded to the warden of the State prison at Jackson.”
In the case at bar the entry in the court journal and the commitment do not conform to the true facts, and under the authority of In re Rogers, supra, the record is remanded to the circuit court for proper correction of the journal. A supplemental commitment should he issued and forwarded to the warden of the State prison at Jackson.
Petitioner’s application for release is denied.
North, C. J., and Starr, Wiest, Butzel, Bushnell, Boyles, and'Reid, JJ., concurred. | [
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Boyles, J.
This is a bill in chancery filed by tbe township of Royal Oak against the city of Berkley for an accounting of their respective personal property rights arising from the incorporation of the city of Berkley out of an unincorporated part of the township. The city by answer denies any indebtedness and by cross bill also asks for an accounting. The case was heard on proofs regarding certain disputed issues, the facts being stipulated as to other issues, and decree was entered for a substantial amount in favor of the city. The city appeals, claiming the court erred as a matter of law in some of its computations and conclusions. After issue was joined most of the matters in controversy were settled by stipulation filed in the case as follows:
“It is hereby stipulated and agreed that on April 4, 1932, defendant, city of Berkley, was incorporated from a portion of the territory formerly included within plaintiff township, at which time the assessed valuation of the territory detached represented 17.72856 per cent, of the total assessed valuation of plaintiff township.
“It is further stipulated and agreed that the following statement of assets and liabilities of plaintiff township, prepared by defendant, sets forth the book value of the assets and liabilities of plaintiff township and is accepted by the parties hereto as the basis for a division of the assets and liabilities of plaintiff township, subject to such modifications as may be made thereto when the legal question hereinafter set forth shall have been decided by the court:
“Assets
“Cash on hand......................................$ 80,178.61
“Collections S. A. Rolls 1 to 3 inclusive and 21 ...... 826.96
“Accounts receivable county treasurer ................ 38,366.97
“Tax collections (general fund) .................... 156,150.26
“Accounts receivable—Ferndale ..................... 112,678.81
“Accounts receivable—Royal Oak .................... 20,122.64
“Accounts receivable—Pleasant Ridge ................ 9,138.44
“Physical assets .................................... 4,443.68
“Total assets ..................................$421,906,37
“Liabilities
“Dog license account ................................$ 1,115.15
“Sehool taxes collected by township .................. 11,989.05
“State and county taxes ............................. 12,324.67
“ Advances by county
treasurer.............$20,000.00
‘ ‘ (All types of taxes)
“Temporary loans .......140,000.00
‘ ‘ (Pledging all types of taxes and used in all different funds)
“Total ...........................$160,000.00
‘ ‘ Cash expenditures over cash receipts special assessment districts ... 33,552.87
‘ ‘ Cash expenditures over cash receipts fire and road district funds .... 94,312.58
“Total.................77777777.. 127,865.45
“Net liability general fund only .................... 32,134.55
“Total liabilities ..................................$57,563.42
“Total assets ....................$421,906.37
“Total liabilities ................. 57,563.42
“Net..............'...........$364,342.95
“17.72856% of net—$64,592.75
“The parties hereto are not in agreement as to that portion of the foregoing statement as to ‘liabilities,’ included within the lines as above set forth, and it is mutually agreed that testimony thereon shall be presented by the respective parties and the court shall determine the questions presented as a matter of law.
"It is stipulated and agreed that testimony will be submitted by the respective parties concerning Berkley’s right to participate in certain uncollected taxes and money received from the 'so-called’ scavenger sales, together with testimony concerning the right of Berkley to receive interest on any amount which may be found to be owing to it.
"It is further stipulated and agreed that all questions concerning the liability of defendant, city of Berkley, on special assessment bonds issued by plaintiff township prior to the date of incorporation of said city, shall be reserved for further consideration of the court in another cause now pending, and, the decree to be entered herein shall provide that, if necessary, a supplemental decree shall be entered herein after the decision of said question.”
The township produced testimony by a certified public accountant employed as its auditor continuously since 1935. The defendant produced the testimony of'the accountant who had audited its books since 1932. Comprehensive audits were received as exhibits. Nothing of interest would be accomplished by including in this opinion the details of the extensive computations which appear in the record. The accounting was heard by the circuit judge on the proofs as narrowed down by the stipulation. The questions before us for decision concern the four items totaling $127,865.45 in that portion of the stipulation hereinbefore quoted appearing between the heavy lines. The accuracy of the other figures adduced is not in issue.
No serious question arises over the first two items in the disputed area of the stipulation. They represent money borrowed by the township and are a liability of the township for which the city must stand its proportionate share. The applicable part of the statute governing these items provides:
“The indebtedness and liabilities of every city, village and township, a part of which shall be annexed to a city shall be assumed by the city to which the same is annexed in the same proportion which the assessed valuation of the taxable property in the territory annexed bears to the assessed valuation of the taxable property in the entire city, village or township* from which ■ such territory is taken. ’ ’ 1 Comp. Laws 1929, § 2250, as amended by Act No. 233, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 2250, Stat. Ann. § 5.2093),
The chief dispute arises over the last two items between the heavy lines of the stipulation covering claimed cash expenditures by the township over cash receipts from certain special assessment district funds. The computations in the stipulation were made by the city, and these two disputed items as they appear in the stipulation include money due to the township from the special assessment districts but which has never been received by the township because of the noncollection of special assessment taxes. The city’s computation of these disputed items also includes money in bank in special assessment district accounts which has not been turned over to the township. The township claims that these items should not háve been included in figuring the township property on hand, that they should not be included in computing the township’s liability to the city unless and until they are collected. The court held with the township, that these moneys could not be charged against the township as cash on hand at the time the city was incorporated, because the township had not yet received them. The court further held—and the decree so provides'—that the city should be entitled to its share of these moneys only if and when they were collected by the township. The city argues for reversal of this ruling.
"While it is plain that these claims of the township against the special assessment districts are in a sense personal property of the township, the critical issue is whether the township must at this time be held to account for these items as cash, or may the settlement be deferred until these items become cash instead of “accounts receivable.” This involves a construction of the applicable part of the statute governing the question. It provides:
“Whenever a new city shall be incorporated, the personal property of the township from which it is taken shall be divided and its liabilities assumed between such city and the portion of the township remaining after such incorporation, in the same ratio as herein provided in case of the annexation of a part of a township to a city.” 1 Comp. Laws 1929, § 2250, as amended by Act No. 233, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 2250, Stat. Ann. §5.2093).
Prior to this 1931 amendment the statute provided only for a division of the real estate. Township of Springwells v. Wayne County Treasurer, 58 Mich. 240; City of Detroit v. Township of Bedford, 253 Mich. 453; City of New Baltimore v. Chesterfield Township, 292 Mich. 522. Berkley having been incorporated as a city in 1932, the above amendment applies and the city is entitled to a division of the personal property of the township in accord therewith. “Personal property” connotes intangible as well as tangible personal property and must include choses in action. The debts which the special assessment districts owed to the township in 1932 were intangible personal property of the township at the time of the Berkley incorporation. These “accounts receivable” by the township must be included in the division with the city. The critical question is whether these items must be accounted for as cash, or merely as accounts receivable, the accounting to be deferred until collected. Defendant city claims they should be figured in as cash belonging to the township, in 1932, mainly on the contention that the township has had plenty of time since then to compel a reassessment of the special assessment district taxes. The circuit judge held that these “accounts receivable” were chargeable against the township only when and if collected, at which time the township would he held to account for a division with the city.
It is conceded that the township had advanced funds to both the road repair and fire department special assessment districts before defendant city was incorporated. The city claims that the township was “obligated” to reassess this deficiency in the special assessment districts and to “apply the next money collected” to the repayment of the moneys thus advanced. As to that, the question of the duty to reassess is not an issue in this case. In fact, counsel for the township concede that the city would “undoubtedly * * * have a right to mandamus or any other available remedy to compel the township to act.” Counsel for the city contend: “that the deficiency caused by the advancements of township general funds to road repair local improvement districts was required by law to he reassessed subsequent to 1932, and that therefore Berkley is entitled to insist on such reassessment and to be reimbursed out of such collections, or to be paid in full therefor if the township neglects to reassess.”
It is conceded that the city is entitled to insist on such reassessment, and we concur with the holding of the lower court that the city is entitled to its pro rata share of the money when and as collected. We do not agree that the city is now entitled “to he paid in full * * * if. the township neglects to reassess.”
According to the record, some of these special assessment districts are no longer in existence, and a portion of the taxable property in other such districts has become the property of the State for non payment of taxes. Any money to be derived from a reassessment of these delinquent special assessments cannot at the present time b¿ classed as cash of the township on hand for pro rata accounting to the city. To the extent that these items are “bad debts,” perhaps worthless items owing to the township, the township cannot be required to include the same in its present accounting. We agree with the trial court that the city is entitled to its share only if and when the same are collected by the township.
The appellant city claims, it is entitled to interest on general tax collections, and on interest-bearing funds collectible by the township since the date of the city’s incorporation. As we have said, the city is entitled to share pro rata in the collections, made by the township since the date of incorporation, from accounts receivable against the special assessment districts in the disputed area of the stipulation. Included in such money received by the township there doubtless will be interest or penalties collected by the assessment district from the taxpayers. This may be included as a part of the money received by the township as payment on its “account receivable,” although collected by the district as interest. The township must be held to account to the city for its pro rata share of all the money received from special assessments or reassessments if and when collected until its account is paid in full. The right of the city to participate in the same, if and when collected, is not foreclosed by the stipulation. But this does not mean that the township receives interest on its accounts receivable. Nor does it mean that the township must account to the city for interest on its accounts receivable. If it receives none, it cannot be required to account for it. The city claims it is entitled to interest on accounts receivable by the township from delinquent general taxes, and from “ac counts receivable” from Ferndale, Royal Oak and Pleasant Ridge. But these taxes and “accounts receivable” were listed in the stipulation and charged against the township for pro rata division, as assets, property on hand, in 1932. They are not charged as deferred accounts receivable and for that reason the city is not entitled to claim interest received by the township subsequent to 1932 on these items which are outside of the disputed area in the stipulation.
The stipulation reserves to the city the right to claim participation in certain uncollected taxes, money received from scavenger sales of real estate, and “interest on any amount which may be found to be owing to it, ’ ’ as stated, above. The right of the city to participate in uncollected taxes from special assessments or reassessments covered in the disputed area of the stipulation, but only if and when collected, is upheld. The right as to other taxes is foreclosed by the stipulation. The lower court held that the city could participate in moneys received by the township from scavenger sales for taxes due prior to its incorporation, and this should have been specifically provided for in the decree.
The city asks for interest on any amount which may be found to be owing to it. The statute referred to, supra, governing the rights of these parties as to division of property and assumption of liabilities, does not support the city’s claim of interest on the amount found owing. With certain exceptions (see Mitchell v. Reolds Farms Co., 268 Mich. 301) and in the absence of contract express or implied, the right to interest in this State is statutory. Tousey v. Moore, 79 Mich. 564. The equities of the case do not require that the city be allowed interest from the date of its incorporation on the amount found owing to it by the decree. Both parties may have been remiss in that they failed to bring these matters to an earlier conclusion but the fact remains that the city’s claim is unliquidated and unsettled until final decree. In the absence of agreement and except by way of damages for money withheld, interest does not run on an unliquidated claim. Sweeney v. Neely, 53 Mich. 421. The city is not entitled to interest from the date of its incorporation on the amount found due, either under the stipulation or by contract express or implied. The city is entitled to interest on the amount found due it by the decree, but only from the date of final adjudication of the amount and final entry of decree.
About seven months after decree was entered in the court below, and while the appeal was pending in this court, appellant filed a motion here to remand for further testimony. This motion was denied without prejudice to our ordering a remand for further testimony if we found the need to appear. This motion is how renewed in the record before us. The effect of ordering a remand for the taking of such testimony would in large part be to set aside the stipulation on which the case was heard and decree entered, and to inject new issues into the case. We see no need for further testimony on the issues in’ the case, or to change the issues which have been settled between the parties by the stipulation filed.
The decree is modified to incorporate a provision as to division of receipts from scavenger sales in accordance herewith; otherwise it is affirmed. No costs are awarded, the questions involved being of a public nature.
North, 0. J., and Starr, Wiest, Butzel, Bushnell, Sharpe, and Reid, JJ., concurred.
See 2 Comp. Laws 1929, § 9238 et seq. (Stat. Ann. § 19.4 et seq.).—Reporter. | [
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Sharpe, J.
Plaintiff delivered to E. D. Chapin, of Detroit, one of its cash registers, taking from him a written instrument, which appears in the margin. It was not recorded. Chapin sold the register to defendant, and plaintiff brought replevin.
The claim of the defendant is thus stated:
“It is the claim of the defendant, first, that the contract, upon which this suit is based, while in the form of a lease, is in actuality a conditional sale, and further, that it is not a pure conditional sale, but rather in effect a chattel mortgage, which would have •to be recorded in order to create a lien, valid as to purchasers for value without actual notice.”
Applying the tests stated in our recent decisions (Burroughs Adding Machine Co. v. Wieselberg, 230 Mich. 15, and Nelson v. Viergiver, 230 Mich. 38, and those therein referred to) to the instrument in question, we are satisfied that, if it be construed as a contract of sale, it is a conditional one, and did not need to be recorded to protect the rights of the vendor therein; and, if a bailment, no record was necessary.
The judgment for plaintiff, entered by the trial court, is affirmed.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
The National Cash Register Company, Dayton, Ohio, Dated February 5, 1923.
Please ship freight prepaid to 8748 Linwood St., Detroit, Wayne county, Michigan, or to the nearest railroad station one of your No. 756, registers MAH finish, denomination of keys standard, for use in Real Estate business, which undersigned hereby agrees to lease from you for a term of 8 months from the arrival thereof and to pay you as rental therefor $190.00 in 8 payments of $20.00 and 1 of $30.
Undersigned further agrees to pay you $30 forthwith and $30 upon arrival of said register as a deposit to partially secure fulfillment of this agreement on the part of the undersigned.
At the expiration of the rental term above specified undersigned agrees to surrender said cash register to you in as good condition as when delivered, excepting damage caused by reasonable wear, whereupon you are to return the amount paid to you as a deposit, provided all terms of this lease have been complied with; undersigned to have the option, after surrendering said register to purchase same upon payment to you of the amount to be deposited as partial security.
It is agreed that upon failure of undersigned to make any payment of rental, or upon the issuance of any attachment, execution, or like process against undersigned, or in the event of undersigned becoming insolvent, or the filing of a petition in bankruptcy by or against him, you may take possession •immediately of said register.
In the event undersigned should refuse to accept said register, or fail to pay any installment of rental promptly when due, undersigned hereby authorizes and empowers any attorney of any court of record in this State or elsewhere to appear for and enter judgment with or without declaration against undersigned and assess damages as follows: In the event of refusal to accept register in an amount equal to twenty-five per cent, of the rental for the full term as herein expressed, which amount is hereby considered and agreed upon by both parties hereto as proper liquidated damages for such refusal.
Should said register get out of order from ordinary use within one year from shipment, you will repair it free of charge provided undersigned pays the transportation charges on it, to and from your factory or nearest agency capable of making the repairs, or traveling expenses of repairman. Undersigned to pay for any repairs made without your authorization.
Should the register be lost or stolen, destroyed, injured or damaged by fire or otherwise, before the rental has been fully paid, undersigned agrees to complete payment of rental, notwithstanding such loss, destruction, injury or damage. Undersigned agrees not to remove the register from present location without your consent in writing.
This lease covers all agreements between the parties and shall not be countermanded.
E. D: Chapin. | [
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Sharpe, J.
(dissenting in part). At the hour of about 4:30 p. m., on October 14, 1941, John B. Olney, a resident of Grand Rapids, was driving his automobile in a northerly direction on US-23 near Alpena. His wife was riding with him. At the same time, Edwin E. Bennett was driving his automobile on the same highway in a southerly direction. His wife was riding in the front seat with him and one Eunice Hawldns was riding in the back seat. The highway where the automobiles collided is of concrete structure and 22 feet wide. The two automobiles collided near the center of the highway and as a result of the collision, Mr. and Mrs. Olney were severely injured and Mr. Oliley died within 24 hours after the collision. Mrs. Bennett was also severely injured and died six days after the accident.
Plaintiff, Edwin E. Bennett, filed a claim in the probate court of Kent county for the following damages and expenses:
“Alpena General Hospital for Margaret
B. Bennett $ 82.71
Spens Pharmacy, gangrene serum 3.97
Funeral expenses of Margaret B. Bennett 433.00
Alma Kunz, R.N. for Margaret B. and Edwin E. Bennett 40.00
H. G. Purdy, R.N. for Margaret B. and Edwin E. Bennett 40.00
Madeline B. Martinson, R.N. for Margaret B. and Edwin E. Bennett 41.00
Alpena General Hospital for Edwin E. Bennett 103.35
¥m. F. Carle, ambulance to Alpena 15.00
Frank Doane, wrecker service 12.00
Loss of 1938 4-door Oldsmobile Sedan 600.00
Loss of use of sucb automobile 100.00
Personal injuries, pain and suffering, disfigurement, permanent injuries, loss of time from business and earning ability of Edwin E. Bennett 5,000.00
Total'................................$6,471.03”
Plaintiff, Edwin E. Bennett as administrator of tbe estate of Margaret B. Bennett, filed a claim in tbe probate court of Kent county for $5,000 for loss of prospective earnings and $5,000 for pain and suffering.
Defendant, administratrix of tbe estate of John B. Olney, deceased, filed an answer and cross action.
Tbe probate court allowed tbe claims of plaintiff. Defendant appealed to tbe circuit court of Kent county. Tbe cases were tried without a jury and a judgment was rendered for plaintiff Edwin E. Bennett, individually, in tbe amount of $2,540.03 and for plaintiff Edwin E. Bennett, as administrator of bis deceased wife’s estate, in tbe amount of $5,000.
Motion for a new trial was denied and defendant appeals. Defendant contends tbat plaintiff was guilty of contributory negligence as a matter of law; tbat tbe judgments are contrary to tbe great weight of tbe evidence and are excessive; tbat tbe court erred in failing to grant tbe estate of John B. Olney a judgment on its cross declaration against Edwin E. Bennett; and tbat under tbe present death act, tbe estate of Margaret B. Bennett, deceased, plaintiff, is not entitled to a judgment.
In considering this appeal, we shall first direct onr attention to plaintiff’s individual claim. The trial court found:
“The evidence conclusively establishes that the accident occurred on the west side of the highway; that claimant, Bennett, was driving on his right (west) side of the road; that the decedent Olney had been previously driving upon his right (east) side of the road .and when about 35 feet from the point of impact had commenced to veer to the left, that when about 17 feet from the point of impact the left side of the Olney car crossed the center line of the highway and continued upon that side (the west side) of the road until the collision took place. * * #
“There is no evidence which explains or excuses the violation of the law and the rules of the road by Mr. Olney. The accident was the result of his driving upon his left side, the wrong side, of the highway. * * *
“The claimant, Mr. Bennett, was free from contributory negligence. He was driving upon his own right side of the road where he had the right and duty to be. ’ ’
In determining the amount of damages to be allowed upon the claim of Edwin E. Bennett, individually, the trial court said:
“(1) Edwin E. Bennett, claimant as an individual, suffered a concussion, contusions on the head and shoulders, lacerations, was in the hospital approximately three weeks and suffered considerable pain during that period and for sometime thereafter and his injuries resulted in a double vision for a period of some two months.
“His hills for doctors, nurses and hospital for himself were $213.32. The hills for doctors, hospital, nurses and funeral expenses for Mrs. Bennett were $721.71. The damage to Mr. Bennett’s car was $4Q,5, making a total financial loss to Mr. • Bennett of $1,340.03.
“The law affords no rule by which damages for pain and suffering may be computed. The determination is not based, upon how some person other than the injured person would feel or would suffer. It is determined by the extent of the suffering of the injured person, and where death occurs the injured person is not a witness. A nervous, unduly imaginative, despondent person may suffer more from a slight injury than would1 a composed, sensible person suffer who has serious injury, is not unduly apprehensive, and who commands a hopeful outlook. Without minimizing the fact of suffering, and having in mind the outcome of certain adjudicated cases, it would appear that the allowance of the sum of $1,200 would be a reasonable sum to be awarded to Mr. Bennett for his item of pain and suffering. This added to $1,340.03, his financial damages, would be $2,540.03, the total amount to be recovered1 by Mr. Bennett, individually. ”
A recital of the claims of the parties as to how the collision occurred would add nothing to the value of this opinion nor be of any particular interest to the profession. We have examined the record and in our opinion there is competent evidence to sustain the finding of fact by the trial judge that: “Mr. Olney must be held to have been guilty of negligence which was the proximate cause of the accident.” Nor do we find any error in awarding plaintiff a judgment of $2,540.03 for his individual claim and the same is affirmed.
We now consider the issues involved in the claim of the estate of Mrs. Bennett. Decedent Olney died about 12 hours after the accident, while Mrs. Bennett died some five days later.
Defendant contends that under the present death act, so-called (Act No. 38, Pub. Acts 1848, as amended by Act No. 297, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 14061 et seq., Stat. Aim 1943 Cum. Supp. § 27.711 et seg.]), the alleged tortfeasor Olney having predeceased Margaret B. Bennett, no cause of action for her death existed against any “person” at the time of her death; that there can be no cause of action against a corpse; and' that no cause of action having existed, none could survive.
Plaintiff contends that a cause of action “for injuries resulting in death” to Mrs. Bennett exists against the estate, of the wrongdoer Olney; that under the law of Michigan prior to the 1939 amendment to the death act, a cause of action existed for damages occasioned by a death caused by the wrongdoing of another against the estate of the wrongdoer; that it was not the intent of the legislature by amending the death act to take from families of persons killed by wrongful act of another a cause of action against the estate of the wrongdoer; that the purpose of the amendment was to abolish the distinction between instantaneous death and death following injury; and that there was no intent to change the liability of the tortfeasor.
At common law there was no civil cause of action for the death of a human being caused by the wrongful act or negligence of another, or for damages suffered by a,ny person in consequence of such death. Hyatt v. Adams, 16 Mich. 180. Nor did the common law permit the survival of actions for personal injuries. Dolson v. Railway Co., 128 Mich. 444.
As early as 1838, the legislature provided that in addition to actions which survive by common law, certain others shall also survive. Rev. Stat. 1838, p. 428, pt. 3, title 2, chap. 3, § 7. By Act No. 113, Pub. Acts 1885, an action for “negligent injuries to the person” was included' among those actions expressly surviving. This provision now exists in 3 Comp. Laws 1929, § 14040 (Stat. Ann. §27.684).
In 1848, the “death act,” a typical “Lord Campbell’s Act” (Act No. 38, Pub. Acts 1848), was passed and has remained unchanged until amended in 1939. Prior to this amendment, section 1 thereof (3 Comp. Laws 1929, §14061) provided:
“Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured. ’ ’
The interpretation of these acts became well established and is summarized in Ford v. Maney’s Estate, 251 Mich. 461 (70 A. L. R. 1315), where the court said:
‘ ‘ Our survival statute, 3 Comp. Laws 1915, § 12383 (3 Comp. Laws 1929, § 14040), reads in part:
“ ‘In addition to the actions which survive by the common law the following shall also survive, that is to say, actions # * * for negligent injuries to persons.’
“The survival is not confined to actions commenced, but applies as well to rights and causes of action. A cause of action for negligent injuries, which accrues in the lifetime of a party, whether person injured or tortfeasor, survives his death.' Rogers v. Windoes, 48 Mich. 628; Norris v. Kent Circuit Judge, 100 Mich. 256; Love v. Railroad Co., 170 Mich. 1.
“ ‘When the law declares that a cause of action shall survive, it is equivalent to saying an executor may sue upon it.’ Rogers v. Windoes, supra.
“ It is also equivalent to saying that the estate of the deceased tortfeasor may be. sued upon it.
“The courts are in conflict upon the respective scope and operation of the death act and survival statute. L. R. A. 1915E, 1119, note; L. R. A. 1916C, 973, note. In this State it is held that the death act created a cause of action unknown to the common law, not by way of survival of a right accruing to the deceased which before had abated at this [his?] death, but as a new and special remedy accruing to those who suffered loss by the death; and that the legislature did not intend to give two remedies for death by negligent act, but that the death act and the survival act is each exclusive within its sphere. The line of cleavage between them is whether the death is instantaneous. The legal test of instantaneous death was devised in order to afford a practical working of the statutes, death being seldom instantaneous in fact. The test was established, not in an attempt to bring- the acts into harmony with common-law principles but by way of judicial interpretation of legislative intention in the construction of statutes which change the common law and have points of conflict. Sweetland v. Railway Co., 117 Mich. 329 (43 L. R. A. 568); Dolson v. Railway Co., 128 Mich. 444; Lincoln v. Railway Co., 179 Mich. 189 (51 L. R. A., [N. S.] 710); Paperno v. Michigan Railway Engineering Co., 202 Mich. 257.”
See, also, In re Beiersdorfer’s Estate, 297 Mich. 592.
In 1939, the legislature passed Act No. 297, Pub. Acts 1939, which amended Act No. 38, Pub. Acts 1848, being 3 Comp. Laws 1929, §§ 14061, 14062 (Comp. Laws Supp. 1940, §§ 14061, 14062, 14062-1, Stat. Ann. 1943 Cum. Supp. §§27.711-27.713), which reads as follows:
“Section 1. * * * Whenever the death of a person or injuries resulting-in death, shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall hereafter be brought only under this act.
“Sec. 2. Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered and also damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period-intervening between the time of the inflicting of such injuries and his death: * * *
“Sec. 3. Insofar as the provisions thereof are inconsistent with the provisions of act number 38 of the public acts of 1848 as amended by this act, section 32 of chapter 12 of act number 314 of the public acts of 1915, being section 14040 of the compiled laws of 1929 is hereby repealed.”
There is no doubt that prior to this amendment plaintiff in the case at bar would have had a cause of action against defendant estate. However, it would have been the cause of action which vested in Mrs. Bennett during her lifetime and prior to the death of Olney and which under the survival act would have survived in her personal representative and against the personal representative of Olney.
The facts in the case at bar necessitate a determination of the nature of the cause'of action created by the amended act; and whether, under the present statute, it ever vested in plaintiff.
In construing the qct before us it must he presumed that the legislature knew the construction which this court had given to both the death and survival acts; that the death act, prior to amendment, created a cause of action unknown to the common law in certain beneficiaries and was premised upon the wrongful act and death; and that this cause of action for death was different in kind from that which was permitted to survive under the survival act.
The amended act expressly provides that “all actions for such death or injuries resulting in death, shall hereafter he brought only under this act.” An examination of the amended act in the light of the former law clearly reveals that the legislature intended to wipe out the fiction of instantaneous death and create one cause of action where death results, either “instantaneously” or from injuries wrongfully inflicted; and that this cause of action is a new statutory action. This intent is found not only in section 1 of the amendment, hut also in the title which reads in part, “An act requiring compensation for causing death and injuries resulting in death by wrongful act;” and from an examination of the liability created as indicated by a comparison of the damages recoverable under the death and survival acts prior to this amendment and under section 2 of the amendment.
The situation prior to the 1939 amendment was that where the action was brought under the death act, recovery was limited by the act to'actual pecuniary loss suffered by one entitled to or receiving support from the deceased (see In re Venneman’s Estate, 286 Mich. 368) and funeral expenses (Edgerton v. Lynch, 255 Mich. 456). And where action was brought under the survival act (where the injured party survived even though only a short time), recovery was permitted of such damages as the deceased1 could have recovered had he lived to bring an action, such as conscious pain and suffering, loss of earnings sustained by deceased from the time of the accident until death and prospective loss from the date of death throughout the life expectancy of the deceased. See 18 Michigan State Bar Journal, p. 116.
The amendment makes no provision for recovery of the loss of eárnings of the deceased either prior to his death or afterwards. It does provide for the “reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death.” It also provides damages with reference to the pecuniary injury resulting from such death to those persons who may be entitled to such damages.
As further indication of its intent to create a new statutory cause of action in cases of death from injuries, the legislature provided1 in-section 3 that insofar as the provisions of the survival act (3 Comp. Laws 1929, § 14040) are inconsistent with the provisions of the amended act, they are repealed.
We conclude that the amendment to the death act excludes the cause of action for injuries which the deceased party had during his lifetime from the operation of the survival act, when the injured party dies prior to. the bringing of an action; that the amendment does not join in a single cause of action two separate causes of action for injuries and death (see Beauvais v. Springfield Institute for Savings, 303 Mass. 136 [20 N. E. (2d) 957, 124 A. L. R. 611 and annotation]) but creates an entirely new statutory cause of action applicable to all cases where death results from wrongful act, whether occurring “instantaneously” or as the result of injuries. The legislature has 'made not only the wrongful act, neglect or default of the wrongdoer a necessary element in the cause of action, but also the death of the injured party is a necessary fact to the right of his representative to maintain an action under this amendment. Death is a part of the substance or essence of the right.
It inevitably follows that the cause of action for injuries resulting in death created by this statute does not arise or come into being until the death occurs. The cause of action which the injured party has for his injuries now abates upon his death, at which time the new cause of action in his personal representative created by the statute arises. The legislature has given a new right of recovery in substitution for the right which the injured party had during his lifetime, the basis of which is the same wrongful act, but which does not come into being until his death.
"Was this action lost because tortfeasor Olney predeceased Mrs. Bennett ? The statute provides that “the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.”
Plaintiff argues that the legislature did1 not repeal the survival act insofar as it permitted recovery against the estate of a tortfeasor; and that the legislature did not provide that an action for injuries resulting in death could not be brought against'the estate of the wrongdoer. Defendant contends that no canse of action existed against any person at the time of Mrs. Bennett’s death; and that there can be no cause of action against a corpse.
The question is not whether an accrued cause of action abates because of the death of tortfeasor before an action is brought, as referred to' in the dissenting opinion in Re Mueller’s Estate, 280 Mich. 203, or whether it survives, but whether the statute imposes liability directly upon the administrator of the tortfeasor’s estate.
In Martinelli v. Burke, 298 Mass. 390 (10 N. E. [2d] 113, 112 A. L. R. 341), defendant died before plaintiffs. The court had before it for construction a statute containing language similar to our own. It said:
‘ ‘ The wording of the statute is, ‘ a person who by his negligence or by his wilful, wanton or reckless act * * * causes the death of a person * * * shall be liable.’ It has been stated repeatedly that no cause of action arises' until the actual occurrence of the death for which recovery is sought. * # * When that event took place in each of the cases at bar the ‘person’ who, in the language of the statute, would ‘be liable’ was himself dead. -It is axiomatic that a corpse is not a person.’ Brooks v. Railway Co., 211 Mass. 277, 278 (97 N. E. 760). A dead person cannot ‘be liable,’ nor can a cause of action arise against a person who does not exist. * * * There are no words in the statute which can be construed as creating a new cause of action against the administrator of the wrongdoer after his appointment. The actor himself and not his administrator is named as the ‘person’ who is to ‘be liable.’ The administrator of the person killed is in a different position. The statute is explicit in granting him the right to prosecute in behalf of the specified beneficiaries the cause of action which arose upon the death of his intestate. * * *
“The conclusion is inescapable that none- of the actions can be maintained. That result has been reached in the only cases which we have seen dealing with the precise question and is supported by the reasoning in cognate cases. Beavers’ Administratrix v. Putnam’s Curator, 110 Va. 713 (67 S. E. 353); Hegel v. George, 218 Wis. 327 (259 N. W. 862, 261 N. W. 14): Willard v. Mohn, 24 N. D. 390 (139 N. W. 979); Clark v. Goodwin, 170 Cal. 527 (150 Pac. 357, L. R. A. 1916A, 1142): Hamilton v. Jones, 125 Ind. 176 (25 N. E. 192); Bates v. Sylvester, 205 Mo. 493 (104 S. W. 73, 11 L. R. A. [N. S.] 1157, 120 Am. St. Rep. 761, 12 Ann. Cas. 457); Moe v. Smiley, 125 Pa. 136 (17 Atl; 228, 3 L. R. A. 341); Carrigan v. Cole, 35 R. I. 162 (85 Atl. 934); Johnson v. Farmer, 89 Tex. 610 (35 S. W. 1062).”
For the reasons given in Martinelli v. Burke, supra, the amended death act does not impose liability upon the administrator of the tortfeasor’s estate.
The claim of plaintiff Edwin E. Bennett as administrator of the estate of Margaret B. Bennett should be reversed, without a new trial and without costs as to either party. | [
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Wiest, J.
January 21, 1925, while in the employ of iEtna Portland Cement Company, plaintiff received an injury to his right eye. An agreement was made to pay him compensation during disability and approved by the department of labor and industry. February 21, 1925, plaintiff returned to his former employment and is earning the same wages as before the accident. Defendant cement company asked that compensation be stopped and plaintiff asked to be awarded compensation for loss of his eye. A deputy commissioner awarded plaintiff $14 per week for 100 weeks for loss of eye. An appeal was taken and the department set the award aside and stopped payment under the agreement. By certiorari this order is here reviewed.
The evidence supports the finding of the department. Plaintiff has not lost an eye within the meaning of the workmen’s compensation law. He has an injured eye, the efficiency of which has been materially lessened, but it is still of beneficial service. The evidence shows that he reads letters at 20 feet he should be able to read at 150 feet; he can see figures on a calendar but cannot tell what they are; on fine work he cannot see; that he could not perform certain duties in the blacksmith shop, such as the use of the shaper, but he could thread a bolt; that he could read large figures and had tested himself by closing his good eye in the shop and he could see machinery sitting there; in looking out of a window about six feet away from him he could see buildings but could not see any printing on them; in looking at a sign across the street he could see a white streak, but could not tell what the letters were; in looking at the people on the street from the inside of a building he said they looked like black things, and he could distinguish the color of a building viewed from a window. The evidence also shows the sight of the eye is about 87 per cent, destroyed, but the remaining 13 per cent, is of service in his occupation and outside thereof.
We need spend no time in reviewing the many decisions bearing on- the subject, for we have a concrete example before us, in another case, showing how fallacious it would be to hold that plaintiff has lost an eye. Suppose plaintiff receives another injury to that eye, destroying its remaining sight, could it then be said he had nothing to lose because 13 per cent, vision is useless? That, in substance, is the question decided in the negative in Hayes v. Motor Wheel Corporation, 233 Mich. 538, and disposes of this case. Plaintiff’s eye still renders him service and he still has vision to lose before it can be said he has lost his eye.
The finding of the board is affirmed, with costs against plaintiff.
Bird, C. J., and Sharpe, Snow, Steere, Fellows, Clark, and McDonald, JJ., concurred. . | [
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Btjtzel, J.
Caroline Reiher, and 72 other petitioners, were stockholders of the Peoples State Trust & Savings Bank, a Michigan corporation, of Pontiac, Michigan. Owing to a shrinkage in value of the bank’s assets and the consequent impairment of its capital, the directors of the bank, on March -10, 1930, upon the order of the State banking commissioner, levied a 50 per cent, assessment on its stock. The proceedings were in accordance with 3 Comp. Laws 1929, § 11941. Petitioners paid the assessment, in the belief that the bank would thereby be enabled to continue. The bank, with its capital thus partially renewed, did continue in business for approximately one year. However, on March 17,1931, immediately following a large bank failure in the city of Detroit, it was forced to suspend, and, in a suit brought by the banking commissioner, a receiver was appointed. On September 16, 1932, in accordance with the petition theretofore filed, the receiver was authorized and directed to levy an assessment against each stockholder of 100 per cent, of the par value of the stock held by each.
Plaintiffs have filed a petition asking that they be credited with the 50 per cent, paid by them under the assessment levied by the board of directors in March, 1930, so that their stockholders’ liability may be reduced 50 per cent. They claim that they were misled into paying the first assessment under the mistaken belief that it would produce a solvent bank; that actually the bank was in such dire distress at that time that the payment thus exacted could not have saved it from failure; that after payment of this assessment, a very large amount of the assets of the bank had to be written off at the demand of the banking commissioner; and that under all these circumstances, equity and good conscience should prompt the court to come to their rescue.
We need not recite further details. We are not at all unmoved by the plight of petitioners, but this court has no right to abrogate the statutes relative to banking in the State of Michigan. The 50 per cent, assessment was levied in order to save petitioners’ investment. It is somewhat in the nature of an assessment in rem, and had petitioners declined to pay it, their stock might have been sold, under the law, and they would then have lost a chance to save their entire investment. See 3 Comp. Laws 1929, § 11941. Petitioners,, however, chose to pay the assessment. Unfortunately, instead of improving, conditions became worse, and the bank could not be saved. The fact that attorneys for receivers of two other banks in Pontiac, Michigan, appear in opposition to this petition is significant of the condition of the banks of that city. Irrespective of any equitable consideration shown by petitioners, the question has frequently arisen in other States and it has been universally held that an assessment levied to keep a bank a going concern has no effect to discharge any part of the statutory double liability of stockholders. Andrews v. Farmers’ Trust & Savings Bank of Charles City, 204 Iowa, 243 (213 N. W. 925, 56 A. L. R. 521, and note); Citizens’ Bank of Lane v. Needham, 120 Kan. 523 (244 Pac. 7, 45 A. L. R. 1202, and note); Andrews v. State, ex rel. Blair, Supt. of Banks, 124 Ohio St. 348 (178 N. E. 581, 83 A. L. R. 141, and note); Duke, Supervisor of Banking, v. Force, 120 Wash. 599 (208 Pac. 67, 23 A. L. R. 1354, and note); Bates v. Clarion Savings Bank, 217 Iowa, 741 (252 N. W. 138).
The order of the lower court is affirmed, but without costs.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Btjshnell, and Edward M. Sharpe, JJ., concurred.' | [
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"North, J.
This is an appeal from a decree in the Jackson county circuit court in chancery dismissing plaintiff’s bill of complaint, wherein injunctive relief, accounting and refunds are sought as to the alleged illegal charge for gas furnished by defendant. Consumers Power Company, a Maine corporation, is the successor to rights of several predecessor holders of the franchise in suit, each of which, except as otherwise indicated, is hereinafter designated as the “company.” March 28, 1887, Jackson common council adopted a franchise ordinance granting to the original company the right to use city streets for gas mains, to furnish gas, and in that field to operate in Jackson in a public service capacity. This franchise, known as Ordinance No. 64, was without limit as to time or date of expiration, and is therefore conceded by the litigants to be perpetual.
The provisions of the franchise particularly pertinent to decision in the instant case are sections 5 and 6.
“Sec. 5. Gas manufactured * * * shall be furnished * * * at the price of not to exceed $2 per thousand cubic feet, and shall be furnished to said city of Jackson for public lighting and for all purposes for which it may desire to use the same at not to exceed $1.50 per thousand cubic feet.
‘ ‘ Sec. 6. There is hereby reserved to the common council of the city of Jackson the right to alter or amend this ordinance and to make such further rules, orders and regulations as may from time to time be deemed necessary to protect the interest, safety or welfare of the public, or the rights of property of said city of Jackson.”
Section 5 was amended July 2, 1906, changing the rates to be charged, and amended again as to rates August 5,1918 and November 19,1918. All of these amendments were accepted by the company. During the years 1918 to 1920 the rate was modified on three occasions as a result of an express agreement between the parties. October 19, 1943, Ordinance No. 189 was passed by the city, amending Ordinance No. 64. It reduced the gas rate about 20 per cent. This ordinance was not accepted by the company. Instead it continued its then current rate, with the result that the city brought the instant suit to enforce the 1943 Ordinance No. 189; and this appeal followed dismissal of the suit, such dismissal being primarily on the ground that Ordinance No. 189 was void.
Prior to 1943 manufactured gas had been supplied in the city of Jackson from a local gas works. During 1941 and 1942 a natural gas distribution system was worked out by the company and interconnected with the company’s distribution system , which served Jackson and various other cities, thus constituting a single utility system. While the company was making these arrangements,- it applied in May, 1941, to the Michigan public service commission for authority to connect the various systems and to change over from manufactured to natural gas. It also petitioned the commission to fix rates to be charged. By its order dated June 23, 1941, the commission gave approval to the plan and also approved a uniform rate schedule for the utility area, but refrained from making its rate applicable in the city of Jackson. The reason for the nonaction of the commission was stated1 by it as follows: “The commission’s records show that the rates in all of the communities affected by this change from manufactured to natural gas are under the jurisdiction of the commission with the exception of the cities of Jackson (and other municipalities not here involved), in which cases the rates are regulated by franchise.” The company, believing it had the right, in January, 1943, promulgated identical rates for the city of Jackson as had been approved by the Michigan public service commission for the other cities receiving the same gas service and constituting a part of the same distribution system.
-The city claims that, because of the power reserved to it in section 6 of the franchise ordinance above quoted, it lias the right, without consent on the part of defendant, to fix the rate which the latter may charge for furnishing gas to the Jackson consumers. Defendant' denies that the city had or has the asserted power; and contends that under the terms of the franchise ordinance the rate could be-fixed (and at all times prior to 1937 was fixed) by agreement of the parties; and that since subsequent to 1937 the rate was not so fixed in Jackson, defendant itself had the power to fix the rate to be charged for its service, subject to the control of the Michigan public service commission.
The primary question is whether Ordinance No. 64,'by which the Jackson city council in 1887 granted the franchise, by reservation therein gave the city council the power to fix' from time to time the rate which the company could charge for its service. It is not claimed, nor could it be, that such a reservation of power is set forth in express words in the franchise ordinance. Instead, after providing in section 5 a maximum rate, the reservation in section 6 is: “the right to alter or amend this ordinance and to make such further rules, orders and regulations as may from time to time be deemed necessary to protect the interest, safety or welfare of the public, or the rights of property of said City of Jackson. ’ ’
In Detroit v. Railway Co., 184 U. S. 368 (22 Sup. Ct. 410, 46 L. Ed. 592), reservations of like import in franchise ordinances were held not to vest in the city power to fix a reduced fare without the consent of the street railway company. The similarity of the reserved powers considered in the Detroit Case to those in the instant case appears from one of the charter provisions there involved. It reads:
“It is hereby reserved to the common council of the city of Detroit the right to make such further rules, orders or regulations as may from time to time be deemed necessary to protect the interest, welfare or accommodation of the public in relation to said railways.”
Elsewhere in the Detroit franchise ordinance it was provided: “that the rate of fare for a single trip shall not exceed five cents.” While there are some varying circumstances in consequence of which appellant herein seeks to distinguish the Detroit Case from the instant case, still we think it is an authority in the light of which the reservation in the Jackson franchise ordinance should be construed. In the Detroit Case it appears that the city council sought by an amendment to the ordinance which granted the franchise to fix the fare at less than five cents. In the opinion rendered by the supreme court of the United States, as appears from the syllabi which we quote, it held:
“That the rate of fare having been fixed by positive agreement, under express legislative authority, the subject was not open to alteration thereafter by the common council alone, under the right to prescribe from time to time the rules and regulations for the running and operation of the road.
“That the language of the ordinance which provides that the rate of fare for one passenger shall not be more than five cents does not give any right to the city to reduce it below the rate of five cents established by the company. * * *
“That the fixing of rates, being among the vital portions of the agreement (franchise) between the parties, it cannot be supposed that there was any intention to permit the common council, in its discretion, to make an alteration which might be fatal to the pecuniary success of the company.”
In passing upon the construction to be given to the above-quoted reservation of power in the Detroit franchise ordinance, the court said (p. 384):
“It would rather seem that the language above used did not and was not intended to give the right to the common council to change at its pleasure from time to time those important and fundamental rights affecting the very existence and financial success of the company in the operation of its road, but that by the use of such language there was simply reserved to the city council the right from time to time to add to or alter those general regulations or rules for the proper, safe and efficient running of the cars, the character of service, the speed and number of cars and their hours of operation and matters of a like nature. * * * Such would seem to be a reasonable construction of the language.”
In Owensboro v. Cumberland Telephone & Telegraph Co., 230 U. S. 58 (33 Sup. Ct. 988, 57 L. Ed. 1389), the court had before it the construction of a provision in a franchise ordinance which read: “Sec. 6. This ordinance may be altered or amended as the necessities of the city may demand.” Some years after defendant had been operating under the franchise the city attempted to condition future operations of the company in the city streets upon the payment periodically of certain amounts to the city. In "holding that, notwithstanding the above quoted reservation of power, the attempted action of the city was illegal, the court said (p. 72):
“The sixth section of the granting ordinance provides that, ‘ This ordinance may be altered or amended as the necessities of the city may demand. ’ This is no more than a reservation of the police control of the streets, and of the mode and manner of placing and maintaining the poles and wires incident to the unabridgeable police power of the city. (Citing cases). It does not reserve any right to revoke or repeal the ordinance, or to affect the rights therein granted.”
In accord1 with the foregoing authorities, and others of like purport which we deem it unnecessary to discuss, we hold that the reservation quoted from the 1887 franchise ordinance did not vest in the Jackson city council power to fix ex parte the rate at which gas should be furnished to consumers in that city. And it may be noted that our holding in this respect is in accord with the construction which was from time to time placed upon the franchise by the city and the company. Between 1887 and 1936 numerous changes in the rate were made, but in each instance such change became effective only upon the approval and acceptance by the company.
Plaintiff and defendant disagree as to which of them had the right to initiate a rate after the rate which had been fixed by mutual agreement expired August 14, 1937. On the one hand plaintiff asserts it had the right to fix the rate, and on the other hand defendant asserts that it had the right to fix the rate, provided such rate was just and reasonable. In this connection it should be noted that the parties to this appeal have stipulated:
“1. There was no rate fixed by franchise ordinance or agreement effective after August 14, 1937.
“2. The rate fixed by section 5 of the original franchise ordinance did not. become reinstated after January 1, 1936.”
Thus the question for determination in this particular is: Did defendant have the right to initiate a rate for gas service as it did after the last of the former rates agreed upon by the parties expired. Defendant company in January, 1943, promulgated rates. These rates were the same as the rates authorized by the Michigan public service commission in June, 1941, for other areas named in its order and receiving like service. If the rates promulgated by defendant in January, 1943, were unjust or unreasonable, the city’s remedy at the time it sought to fix the rate by ordinance in October, 1943, was recourse to the Michigan public service commission. Act No. 3, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 11017-1 et seq., Stat. Ann. 1944 Cum. Supp. § 22.13 [1] et seq.), vested in the Michigan public service commission powers and jurisdiction of the type here involved which theretofore were vested in the Michigan utilities commission. Section 6 of the 1939 act provides:
“The Michigan public service commission is hereby vested with complete power and jurisdiction to regulate all public utilities in the State except any municipally owned utility and except as otherwise restricted by law. It is hereby vested with power and jurisdiction to regulate all rates, fares, fees, charges, services, rules, conditions of service and all other matters pertaining to the formation, operation, or direction of such public utilities. *. * *
‘ ‘ Sec. 8. All acts or parts of acts in any way contravening the provisions of this act shall be deemed to be superseded and repealed hereby. ’ ’
Under our former holdings it seems clear that the defendant company had the right to promulgate rates, subject, however, to the control of the Michigan public service commission. See Walker Brothers Catering Co. v. Detroit City Gas Co., 230 Mich. 564 (P. U. R. 1925 D, 366); City of Detroit v. Michigan Public Utilities Commission, 288 Mich. 267 (29 P. U. R. [N. S.] 203); and City of Dearborn v. Michigan Consolidated Gas Co., 297 Mich. 388 (39 P. U. R. [N. S.] 31).
In the first of the above-cited cases the gas company’s franchise had expired; but in the instant case the period during which these litigants had fixed the rate by agreement had expired. Hence the following quotation from the syllabus in the first cited case seems applicable to the instant case:
“The rate fixed in a gas company’s franchise is not binding after the franchise has expired, and where it continues the service it has the right to fix a reasonable charge therefor, which will not fail because not acted upon by the public utilities commission under Act No. 419, Pub. Acts 1919.”
A syllabus in the cited Detroit v. Michigan Public Utilities Commission case reads:
“The reserved constitutional power in a city to the control of its streets (Const. 1908, art. 8, § 28) empowers it to contract, not to legislate, for public utility rates; the power to legislate with reference thereto having been lodged by the legislature in the public utilities commission.”
And in the cited Dearborn Case we said:
“With reference to the promulgation of rates by the company after the expiration of rates in the schedule included in the franchise, it must be held that such action of the company was not unlawful. ’ ’
We conclude that, under the circumstances disclosed by this record, defendant had the right to ■promulgate the gas rate in Jackson as it did in January, 1943. As hereinbefore indicated, the city of Jackson under the franchise ordinance did not have the power to fix ex parte the gas rate; and it follows that its attempt to do so in Ordinance No. 189 which it passed in October, 1943, was ineffective ; and since the relief sought in the instant case is predicated upon the enforcement of the 1943 ordinance, plaintiff obviously was not entitled to such relief. Instead, as above stated, its remedy was by proper proceedings before the Michigan public service commission. It is so provided in Act No. 3, Pub. Acts 1939, hereinbefore quoted.
In support of its contention that the Jackson city council had the power to fix ex parte gas rates in Jackson, plaintiff to some extent relies upon the fact that in 1914 Jackson adopted a home-rule city charter, and that charter contained the following provision:
“Sec. 5. Subject to the limitations of the charter and of the general laws, the city commission shall have power: * * * To regulate the prices to be charged for gas, heat or electricity, by all persons owning or operating in the streets and public places of the city, wires, pipes and conduits.”
Plaintiff’s contention is not tenable. By the express terms of the charter the quoted provision is “Subject to the limitations * * * of the general laws” of the State. As hereinbefore noted, in 1939 the legislature passed a general law (Agí No. 3, Pub. Acts 1939) by which it is provided:
“Sec. 6. The Michigan public service commission is hereby vested with complete power and jurisdiction to regulate all public utilities in the State except any municipally owned utility and except as otherwise restricted by law. It is hereby vested with power and jurisdiction to regulate all rates, fares, fees, charges,” et cetera'
This provision in the general laws of the State, to which Jackson’s home rule charter was subject, supplanted any contravening charter provision. City Commission of the City of Jackson v. Vedder, 209 Mich. 291; Harsha v. City of Detroit, 261 Mich. 586 (90 A. L. R. 853); and Simonton v. City of Pontiac, 268 Mich. 11. In the latter case it is said:
“In Harsha v. City of Detroit, 261 Mich. 586 (90 A. L. R. 853), we held that the legislature might modify the charters of municipal corporations at will and that the State still retained authority to amend charters and enlarge and diminish their powers.”
We quote the following from the syllabi in the Harsha Case.
“Rule that corporate charters in which no power of amendment or repeal is retained, when accepted, constitute contracts between State and corporation, applies to private corporations only.
“Municipal corporations are State agencies, and, subject to constitutional restrictions, legislature may modify corporate chartérs of municipal corporations at will.
“Powers are granted to municipal corporations as State agencies to carry on local government, and State has authority to amend their charters and enlarge or diminish their powers.”
Since, as we hold, there was not reserved to the Jackson common council in the 1887 franchise contract either expressly or by necessary implication the right to fix ex parte gas rates in Jackson, the power to finally regulate such rates is now by Act No. 3, Pub. Acts 1939, vested in the Michigan public service commission. This is true notwithstanding the quoted provision in the Jackson home rule charter.
As herein before noted, the public service commission recited in its opinion that its “records” disclose that the gas rates in Jackson “are regu lated by franchise.” We are not in accord with plaintiff’s contention that the foregoing is res judicata and estops defendant from making a contrary contention in the instant case. The foregoing statement by the commission appears only in the prelim-' inary part of its opinion. It is not embodied in the findings or holdings of the commission nor in the • order made by the commission. The trial judge in holding against plaintiff’s contention stated: “No issue was framed on the subject, and it is not even apparent from what source this finding came, or upon what it is based.” Since the portion of the commission’s opinion upon which plaintiff relies in this particular does not constitute a part of its determination, its findings or its ultimate holding or order, it cannot be held to be res judicata and binding as such upon defendant, notwithstanding no appeal was taken.
“We recognize the rule that it is the judgment entered upon such appeal which concludes the parties, and that the parties are not bound by opinions or statements of the court seeking to define the extent to which such judgment shall prejudice the rights of the parties in other actions (23 Cyc. p. 1218).” Nott v. Gundick, 216 Mich. 217, 222.
Other reasons or grounds in support of the conclusion that the mere recital by the public service commission was not res judicata, will be found in Stratton v. California Railroad Commission, 186 Cal. 119 (198 Pac. 1051).
The decree entered in the circuit court dismissing plaintiff’s 'hill of complaint is affirmed, with costs to defendant.
Starr, 0. J., and Butzel, Btjshnell, Sharpe, Bowles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this ease. | [
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Boyles, J.
This is an appeal in the nature of certiorari from denial of appellant’s petition in the recorder’s court of Detroit in Wayne county seeking his release from the Ionia State Hospital by the writ of habeas corpus. By appropriate proceedings in Wayne county probate court in February, 1943, Milton Backhaut was adjudicated to be an insane person and admitted to the Wayne county hospital at Eloise as an insane person. No question is raised as to the legality of those proceedings. Appellant, having shown signs of improvement after about six months in said hospital, was placed on parole, and permitted to take week-end leaves with his parents. On December 25, 1943, while on such a leave he was apprehended and charged with the felony of breaking and entering a dwelling house in the nighttime, in • Detroit. He first pleaded guilty to this charge, which plea was later set aside on motion and a petition was filed in recorder’s court of Detroit by the prosecuting attorney to determine his sanity, under the provisions of 3 Comp. Laws 1929, § 17241, as amended by Act No. 317, Pub. Acts 1931 (Comp. Laws Supp. 1940, §17241, Stat. Ann. §28.-967). Judge Maher of the recorder’s court appointed a sanity commission of three doctors under the provisions of said act and after the report of this commission was filed and a hearing held the court entered an order finding that Backhaut was insane, not a proper person to be tried at that time on said charge, and that he would be unable to undertake'his defense if put to trial. Thereupon the court committed him to the Ionia State Hospital until cured or otherwise discharged, to be remanded to Wayne county for resumption of the criminal proceedings if restored to sanity. Detention in Ionia State Hospital followed.
In November, 1944, the mother of said Milton Backhaut filed a petition in the recorder’s court of Detroit for the writ of habeas corpus to inquire into the legality of his detention, alleging in effect that because he had been previously adjudged insane by the probate court for Wayne county Backhaut could not be charged with the crime of breaking and entering, and challenging the jurisdiction of the recorder’s court and the validity of its order committing him to the Ionia State Hospital. The court issued the writ, and after hearing dismissed the same. Backhaut appeals.from the order dismissing the writ, and raises the same questions- here, for reversal.
It is agreed that Milton Backhaut is an insane person, that the proceedings in probate court for his admission to the Wayne county hospital at Eloise were regular and withih the jurisdiction of that court, that the recorder’s court had jurisdiction to hear and determine the proceedings for the writ of habeas corpus, that-Backhaut was in the legal (although not actual) custody of the superintendent of the Wayne county hospital when he was apprehended in Detroit charged with a felony, that the constitutionality of 3 Comp. Laws 1929, § 17241, as amended by Act No. 317, Pub. Acts 1931 (Comp. Laws Supp. 1940, §17241, Stat. Ann. §28.967), is not questioned, that tbe recorder’s court for Detroit has jurisdiction to commit a defendant in a criminal case to the Ionia State Hospital' provided such person is not already under commitment by virtue of a probate court order, and that Backhaut is either to be returned to the Wayne county hospital or his detention in the Ionia State Hospital continued, depending on the conclusions reached by this eourt.
Appellant was committed to the Ionia State Hospital by the recorder’s court by authority of the provisions of Act No. 175, chap. 7, §27, Pub. Acts 1927 (the code of criminal procedure) (3 Comp. Laws 1929, § 17241, as amended by Act No. 317, Pub. Acts 1931 [Comp. Laws Supp. 1940, § 17241, Stat. Ann. §28.967]). While this act became effective subsequent to the act conferring jurisdiction over insane persons upon the probate courts-(Act No. 151, Pub. Acts 1923, as amended [2 Comp. Laws 1929, §6878 et seq. (Comp. Laws Supp. 1940,1943, § 6878 et seq., Stat. Ann. and Stat. Ann. 1944 Cum. Supp. § 14.801 et seq.)]), we do not consider that the two acts are necessarily antagonistic. The provisions of the earlier act were not repealed by implication as claimed by appellant. The probate court still has jurisdiction to admit insane persons to State hospitals, and courts of criminal jurisdiction have jurisdiction over criminal insane who are charged with crime within the jurisdiction of such courts.
“Sanity proceeding provided by statute in case one accused of a felony appears to be insane is an inquiry in the nature of an inquest to safeguard rights of an accused mentally incapable of advising with counsel and conducting his defense, not a trial placing defendant in jeopardy but a collateral in quiry to preserve him from the jeopardy of a trial while insane (3 Comp. Laws 1929, § 17241, as amended by Act No. 317, Pub. Acts 1931).
‘‘ Since the ascertainment of the fact of sanity or insanity of an accused at any stage of a criminal proceeding is purely a matter of legislative regulation, enactment placing venue of such an inquiry in the very court in which the accused awaits trial was properly made a part of the criminal procedure where it may be invoked either by the prosecution or defense (3 Comp. Laws 1929, § 17241, as amended by Act No. 317, Pub. Acts 1931).” People v. Janek (syllabi), 287 Mich. 563.
In the recent case of In re Tworek, 311 Mich. 59, the petitioner sought release in habeas corpus proceedings claiming that his subsequent petition filed in probate court to have him adjudged insane had ousted the recorder’s court of Detroit from jurisdiction to determine his sanity while a felony charge was pending against him in that court, and after a commission had been appointed in the recorder’s court to examine into the question of his sanity. We held that the recorder’s court had jurisdiction to enter afi order committing Tworek to the Ionia State Hospital. As to the petitioner’s claim in that case, the court said (p. 62):
“But, as above noted, the claim of petitioner herein is that the recorder’s court was without jurisdiction. In part this claim is bottomed on the contention that the sole jurisdiction in the insanity proceedings was in the Wayne county probate court. We cannot so hold.”
The conclusions reached by the court in the Tworek Case, supra, are correctly stated in the headnotes as follows:
“In prosecution for felonious assault in recorder’s court of Detroit, that court had jurisdiction to commit defendant as an insane person where pro ceedings to such end were instituted while the prosecution was pending by his then attorney prior to filing of wife’s petition in probate court to have a determination made as to his sanity (3 Comp. Laws 1929, § 17241, as amended by Act No. 317, Pub. Acts 1931).
“The filing of a petition in the probate court of Wayne county to have an individual declared insane would not oust recorder’s court of jurisdiction to make such determination on petition theretofore filed in criminal prosecution of such person (3 Comp. Laws 1929, § 17241, as amended by Act No. 317, Pub. Acts 1931).”
In the case at bar the previous finding of insanity and the order of the probate court admitting this patient to the Wayne county hospital at Eloise did not prevent the recorder’s court from having jurisdiction to commit Backhaut to the Ionia State Hospital as a criminal insane. The probate court does not have jurisdiction over the commitment of a criminal insane person to a State hospital, to the exclusion of the court of criminal jurisdiction wherein the charge of crime is pending. The jurisdiction conferred on probate courts over insane, feeble-minded, epileptic and mentally diseased persons by Act No. 151, Pub. Acts 1923, as amended (see 2 Comp. Laws 1929, § 6878 et seq. [Comp. Laws Supp. 1940, 1943, § 6878 et seq., Stat. Ann. and Stat. Ann. 1944 Cum. Supp. § 14.801 et seq.]), does not place in the probate courts the power to commit a criminal insane to the Ionia State Hospital; nor does Act No. 175, Pub. Acts 1927, as amended (see 3 Comp. Laws 1929, § 17116 et seq. [Comp. Laws Supp. 1940, 1943, § 17121 et seq., Stat. Ann. and Stat. Ann. 1944 Cum. Supp. §28.841 et seq.]) (code of criminal procedure), confer upon courts of criminal jurisdiction any power to commit a criminal insane person to any State hospital except the Ionia State Hospital. The power conferred on courts of criminal jurisdiction to commit a criminal insane charged with crime is exclusive, except under the conditions referred to in section 55 of Act No. 151, Pub. Acts 1923, as amended (2 Comp. Laws 1929, § 6931 [Stat. Ann. § 14.853]), and sections 58-61, inclusive, of said Act No. 151, Pub. Acts 1923, as amended (2 Comp. Laws 1929, §§ 693A-6937, as amended by Act No. 104, Pub. Acts 1937 [Comp. Laws Supp. 1940, §§6934-6937, Stat. Ann. and Stat. Ann. 1944 Cum. Supp. §§ 14.856-14.859]). These exceptions do not apply to the case at bar.
We do not overlook the fact that this petition for the writ of habeas corpus was filed in Wayne county, instead of in Ionia county where the person was detained (see 3 Comp. Laws 1929, §15208 [Stat. Ann. § 27.2252]; 3 Comp. Laws 1929, § 17241, as amended by Act No. 317, Pub. Acts 1931 [Comp. Laws Supp. 1940, § 17241, Stat. Ann. § 28.967]); nor need we consider whether petitioner’s remedy should have been by appeal’from the order of the recorder’s court committing appellant to the Ionia State Hospital. See In re Roberts, 310 Mich. 372. These questions have not been raised. The importance of the question raised, as to the jurisdiction of the courts, merits decision.
The order dismissing the writ is affirmed, without costs.
Starr, C. J., and North, Carr, Butzel, Bushnell, Sharpe, and Reid, JJ., concurred. | [
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'Sharpe, J.
Defendant appeals from a decree 'setting aside a default judgment recovered by it against plaintiff in justice’s court in the city of Flint. Plaintiff also appeals from the denial of costs. The bill alleges that the judgment was void because plaintiff had not been personally served with process. The return of the deputy sheriff indorsed on the summons •showed that such service had been made.
The English courts have consistently held that the return of an officer is conclusive as between the parties and that the remedy of a party injured by a false return is by action against the officer on his official bond, unless the false return was procured by the plaintiff with knowledge of its falsity. This rule has been followed in the Federal courts (Knox County v. Harshman, 133 U. S. 152 [10 Sup. Ct. 257]), and in many of the State courts. 32 Cyc. p. 514; 21 R. C. L. p. 1321. While this court has many times held that when a judgment is regular upon its face it may not be impeached in a collateral proceeding by showing a lack of service (Michels v. Stork, 52 Mich. 260; Johnson v. Mead, 73 Mich. 326; Allured v. Voller, 112 Mich. 357; Miller v. Smith, 115 Mich. 427 [69 Am. St. Rep. 583]), it is the rule in this State, and we think the better one, that a court of equity has the power to relieve against a judgment so obtained in a suit brought for that purpose. Wilcke v. Duross, 144 Mich. 243 (115 Am. St. Rep. 394); Gregor v. Olde, 209 Mich. 43; Petersen v. Phelps, 222 Mich. 236; Clabaugh v. Wayne Circuit Judge, 228 Mich. 207. A judgment rendered by a justice of the peace may be so attacked. Miller v. Smith, supra.
The more serious question is whether the proof submitted justified the decree. The plaintiff herein, as a witness, denied that service had been made upon him. The return shows that he was served. No other proof was offered. Both the officer who made return and the justice who rendered judgment were dead at the time of the hearing; Plaintiff admitted that he was well acquainted with the officer, so no question of mistaken identity is presented.
The charge is, in effect, that the judgment was procured by fraud. While it may be said that a preponderance of the proof is all that is required in civil cases, yet this court has repeatedly held that, to impeach the verity of a written instrument on the ground of fraud, more convincing proof must be submitted to create a preponderance than where the contract rests in parol. Brooks v. Culver, 168 Mich. 436; Schiessler v. Pierce, 225 Mich. 91; Brucker v. Welch, 226 Mich. 535. No less burden rests upon one who attacks the validity of a judgment by impeaching the officer’s return of service. Clabaugh v. Wayne Circuit Judge, supra. In 3 Freeman on Judgments (5th Ed.), 2560, it is said:
“But even though a return of service may be contradicted, it is presumptively correct and can only be overcome by a clear and unequivocal showing; and in some States requires the testimony of more than one witness. It would work the greatest mischief if after a judgment is taken it could be set aside upon the slippery memory of the defendant, perhaps years thereafter, that he had not been served.”
The rule thus stated has, we think, been followed in all the reported cases. We quote from but one. In Oertel v. Pierce, 116 Minn. 266 (133 N. W. 797, Ann. Cas. 1913A, 854), it is said—
“that courts should proceed with caution in overturning the certificate of an officer charged with the duty of serving process, and should require unequivocal, clear, and convincing evidence of the falsity of the returns attacked before doing so.”
Giving due weight to the denial of the plaintiff, we are impressed that it does not preponderate over the weight as evidence which should be given to the officer's return. In our opinion, the return has greater weight than the uncorroborated testimony of the plaintiff. It is made by an officer under the sanctity of his official oath and under bond for the faithful performance of his duties.
The English, Federal, and State authorities above referred to, which hold that an official return of service may not be impeached, all seem to agree that, if proof of service be made by affidavit, it may be attacked. 3 Freeman on Judgments (5th Ed.), 2557.
If we should hold on this record that the testimony of the plaintiff is sufficient to establish the falsity of the return, many judgments, taken by default after due return of personal service, could be set aside, although the time for bringing suit might be barred by the statute of limitations.
The conclusion we have reached, while it may seem unjust to the plaintiff, is, we believe, the only safe one to adopt in view of the many interests that may be affected thereby.
The decree rendered in the circuit court is reversed, and one may be entered here dismissing plaintiff’s bill of complaint, with costs of both courts to defendant.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Cavanagh, P.J.
Defendant appeals as of right a judgment in plaintiffs favor following a jury trial in this medical malpractice action. We affirm.
This action arises from defendant’s alleged failure to timely and properly diagnose and treat the acute vascular insufficiency condition that plaintiff presented with on February 1, 2000, which resulted in her left leg being amputated below the knee on February 13, 2000.
On appeal, defendant first argues that he was entitled to a judgment notwithstanding the verdict (JNOV) because plaintiff did not establish proximate cause in this purported “lost opportunity” medical malpractice action. After a review de novo of the trial court’s decision, and viewing the evidence and all legitimate inferences in the light most favorable to plaintiff, we disagree with defendant. Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003).
To establish medical malpractice, a plaintiff must prove the following elements: (1) the applicable standard of care, (2) breach of that standard, (3) injury, and (4) proximate causation between the alleged breach and the injury. Weymers v Khera, 454 Mich 639, 655; 563 NW2d 647 (1997). Thus, plaintiff must prove that defendant’s negligence proximately caused her injuries. Id. at 647. To establish proximate cause, plaintiff must prove the existence of both cause in fact and legal cause. Id., citing Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). To prove cause in fact, “ ‘the plaintiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defendant’s conduct, the plaintiffs injuries would not have occurred.’ ” Weymers, supra at 647-648, quoting Skinner, supra at 164-165. To prove legal cause, “the plaintiff must show that it was foreseeable that the defendant’s conduct ‘may create a risk of harm to the victim, and ... [that] the result of that conduct and intervening causes were foreseeable.’ ” Weymers, supra at 648, quoting Moning v Alfono, 400 Mich 425, 439; 254 NW2d 759 (1977).
Defendant argues that “Fulton v [William] Beaumont Hosp, 253 Mich App 70 [655 NW2d 569] (2002) requires plaintiffs to prove a loss of opportunity of greater than 50 percentage points to establish causation in medical malpractice cases like this one alleging damages caused by a delay in treatment. Plaintiff failed to do so here.” But, as in Stone v Williamson, 482 Mich 144; 753 NW2d 106 (2008), this plaintiff did not plead a loss of opportunity claim. Plaintiff sued defendant, alleging that his negligence resulted in an actual, physical injury — the loss of her left leg below the knee. Accordingly, the “lost opportunity doctrine” is not applicable to plaintiffs claim.
A “lost opportunity” cause of action was first recognized in Falcon v Mem Hosp, 436 Mich 443; 462 NW2d 44 (1990), a wrongful death case in which the decedent, after giving birth, suffered from an amniotic fluid embolism that caused her death. The subsequent medical malpractice case was premised on the fact that, although this complication was unpreventable, the defendants’ failure to start an intravenous line to the decedent before the event occurred deprived the decedent of a 37.5 percent chance of surviving the complication. Thus, although the defendants caused the decedent some harm, more probably than not they did not cause her death. She only had a 37.5 percent chance of surviving even if the intravenous line had been placed, i.e., even if the alleged negligence had not occurred. Nevertheless, the Falcon Court noted, the plaintiff was deprived of that opportunity, and the Court held: “We thus see the injury resulting from medical malpractice as not only, or necessarily, physical harm, but also as including the loss of opportunity of avoiding physical harm.” Id. at 461 (opinion by LEVIN, J.). The Falcon Court continued:
A number of courts have recognized, as we would, loss of an opportunity for a more favorable result, as distinguished from the unfavorable result, as compensable in medical malpractice actions. Under this approach, damages are recoverable for the loss of opportunity although the opportunity lost was less than even, and thus it is not more probable than not that the unfavorable result would or could have been avoided.
Under this approach, the plaintiff must establish more-probable-than-not causation. He must prove, more probably than not, that the defendant reduced the opportunity of avoiding harm. [Id. at 461-462.]
Accordingly, the Falcon Court recognized that the loss of a substantial opportunity of avoiding physical harm was actionable and that the loss in that case, of a 37.5 percent opportunity of living, was actionable. Id. at 469-470.
The Stone Court, in particular Chief Justice TAYLOR, whose opinion was joined by Justices CORRIGAN and YOUNG, further explained the Falcon decision:
Under this [loss-of-opportunity] theory, a plaintiff would have a cause of action independent of that for the physical injury and could recover for the malpractice that caused the plaintiff to go from a class of patients having a “good chance” to one having a “bad chance.” Without this analysis, the plaintiff in Falcon would not have had a viable claim because it could not have been shown that the defendant more probably than not caused the physical injury. Until Falcon, medical-malpractice plaintiffs alleging that the defendant’s act or omission hastened or worsened the injury (such as by failing to diagnose a condition) had to prove that the defendant’s malpractice more probably than not was the proximate cause of the injury. [Stone, supra at 154-155 (emphasis supplied).]
Justice CAVANAGH, whose opinion in Stone was joined by Justices WEAVER and Kelly, similarly explained the holding in Falcon:
In sum, when Falcon adopted the loss-of-opportunity doctrine, it recognized that the injury of loss of an oppor tunity was distinct from the injury of suffering the associated physical harm — which, in that case, was death. [Id. at 168.]
In response to the Falcon decision, Weymers, supra at 649, the Legislature amended MCL 600.2912a by adding subsection 2912a(2), which provides:
In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.
As our Supreme Court recognized in Stone, the proper interpretation of this statutory language is subject to considerable debate. Chief Justice TAYLOR, joined by Justices CORRIGAN and Young, would hold: “the first sentence of subsection 2 requires plaintiffs in evexy medical-malpractice case to show the defendant’s malpractice proximately caused the injury while, at the same time, the second sentence refers to cases in which such proof not only is unnecessary, but is impossible.” Stone, supra at 157. On the ground that the two sentences created an incomprehensible paradox, Stone, supra at 157-159, these justices would hold that the statute was unenforceable as written. Justice CAVANAGH, joined by Justices WEAVER and KELLY, disagreeing with that interpretation of the second sentence, would hold that the statute was enforceable and “merely sets the threshold for invoking the loss-of-opportunity doctrine” that Falcon adopted. Id. at 172. That is, “[i]t requires that a plaintiffs premalpractice opportunity to survive or achieve a better result was greater than 50 percent.” Id. Thus, the plaintiff in Falcon would not have met the threshold because his decedent only had a 37.5 percent chance of surviving the complica tion even if the defendants had not been negligent. Justices Cavanagh, Weaver, Kelly, and Markman in Stone “would hold that loss of the opportunity is, by itself, a compensable injury, although the opportunity must be ‘lost’ — that is, the bad result must occur — in order for a claim to accrue.” Id. at 164 (opinion by TAYLOR, C.J.).
Here, defendant relies on the case of Fulton v William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002), for his argument that plaintiff was required, and failed, to prove a loss of opportunity claim. We note the statement in Stone, that “[a]ll seven justices believe that Fulton’s analysis is incorrect or should be found to no longer be good law, though their reasons for doing so vary.” Stone, supra at 164 (opinion by TAYLOR, C.J.). But because a majority of the Stone Court held that the Stone case was not a lost-opportunity case, the correctness of Fulton could not be reached and it remains undisturbed. Id. Thus, we turn to Fulton.
In Fulton, the medical malpractice claim was premised on the theory that the defendants’ failure to properly diagnose and treat the decedent’s cervical cancer resulted in a loss of her opportunity to survive. Fulton, supra at 73. Thus, like in Falcon, the claimed injury specifically pleaded was the loss of opportunity to survive, not a physical injury like the decedent’s death. A medical malpractice plaintiff “ ‘has the burden of proving that he or she suffered an injury ....’” Wickens v Oakland Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001), quoting MCL 600.2912a(2). The issue, then, was the burden of proof with regard to causation; specifically, the proofs that were required to show that it was more probable than not that the defendants deprived the decedent of an opportunity to survive. The Fulton Court noted that it had to decide whether the second sentence of MCL 600.2912a(2) required the plaintiff to show that the decedent’s initial opportunity to survive before the alleged malpractice was greater than 50 percent, or that the opportunity was reduced by greater than 50 percent after the alleged malpractice. Fulton, supra at 77-78. The Fulton Court concluded that it was the magnitude of the lost opportunity that was the proper consideration; thus, the opportunity lost because of the defendants’ negligence had to be greater than 50 percent. Id. at 83.
The case before us is factually distinguishable from Fulton and Falcon. The claimed injury here is a physical injury — the loss of plaintiffs leg below the knee. This was not a case in which plaintiff was claiming a loss of opportunity of any kind; she claimed that defendant’s negligence more probably than not directly caused her to lose her leg below the knee. In other words, this is a traditional case of malpractice. In Falcon, the decedent’s estate could not bring a traditional medical malpractice case because it could not be established that the defendants’ negligence more probably than not caused the decedent’s death. In Fulton, it appears that, because the theory specifically pleaded by the plaintiff was a loss of the opportunity to survive, Fulton, supra at 73, the Fulton Court did not consider whether the case could have been treated as one of ordinary medical malpractice, as Chief Justice TAYLOR in Stone, supra at 164 n 14, opined. Again, the issue before the Fulton Court was how to analyze the causation element when the claimed injury is a loss of opportunity. Thus, the holding in Fulton does not support defendant’s claim that plaintiff in this case was required to prove a loss of opportunity claim. See MCR 2.111(B)(1); Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278, 284; 602 NW2d 854 (1999).
Defendant refers us to the case of Klein v Kik, 264 Mich App 682; 692 NW2d 854 (2005), in support of his argument that plaintiffs cause of action was a loss of opportunity case. In that wrongful death case, the decedent’s estate brought an action premised on the theory that the defendants’ failure to properly diagnose the decedent’s lung cancer caused the decedent’s death. This Court recognized, however, as in the cases of Falcon and Fulton, that the injury caused by the defendants’ alleged malpractice was the loss of an opportunity to survive. Id. at 686. Again, Klein is factually distinguishable from the case before us; in our case plaintiff suffered a physical injury, the loss of her leg, because of defendant’s alleged negligence.
Defendant also refers us to Ensink v Mecosta Co Gen Hosp, 262 Mich App 518; 687 NW2d 143 (2004), in support of his position. In that case, the plaintiff suffered a stroke and brought his malpractice action (the plaintiffs wife also brought a claim for loss of consortium) premised on the theory that, if he had been administered a particular drug within a certain time, he would not have suffered paralysis. Id. at 521-522. The defendants claimed that the plaintiff could not establish that the failure to administer the drug more probably than not caused the loss of an opportunity to achieve a better result. Id. at 522. This Court agreed. The plaintiffs expert’s testimony was extremely equivocal. Id. at 533-537. He testified that, if the medication had been given, more likely than not it would have had some effect on the plaintiffs condition, but he could not estimate the extent of that effect. Id. at 522. He also testified that, without the medication, only 20 percent of stroke victims achieve a full cure. Id. at 533. But, when the medication was administered, the cure rate was between 31 percent and, perhaps, as high as 50 percent. Id. at 533, 537. This Court concluded that the plaintiff failed to establish that it was more probable than not that the defendants’ alleged malpractice deprived the plaintiff of an opportunity to achieve a better result. Id. at 539. The plaintiff only had, possibly, a 31 to 50 percent chance of a better result, even if there had been no negligence. Again, Ensink was not a traditional medical malpractice case.
The case before us is more like Stone than like the cases relied on by defendant. In Stone, the plaintiffs claimed that, if the defendants had properly diagnosed Carl Stone’s condition — an abdominal aortic aneurysm, he would not have had to undergo emergency surgery for its rupture, would not have had to have both legs amputated, and would not have suffered additional medical complications. Stone, supra at 148 (opinion by TAYLOR, C.J.). Six of the justices held that, despite the defendants’ arguments to the contrary, Stone was not a lost-opportunity case; rather, it was a claim of “ordinary” or “traditional” medical malpractice. Id. at 164-165 (opinion by TAYLOR, C.J.), 185 (opinion of MARKMAN, J., dissenting).
In particular, Chief Justice TAYLOR, whose opinion was joined by Justices CORRIGAN and YOUNG, agreed with the plaintiffs’ characterization of the case as “a simple case of physical injury directly caused by negligence.” Id. at 151. Chief Justice TAYLOR also agreed with the plaintiffs’ definition of a loss of opportunity case, which was a case “ ‘where a plaintiff cannot prove that the defendant’s acts or omissions proximately caused his injuries, but can prove that the defendant’s acts or omissions deprived him of some chance to avoid those injuries.’ ” Id. at 151. The elements of an “ordinary” or “traditional” medical malpractice claim require the plaintiff to establish that the “defendants’ negligence more probably than not caused plaintiffs injuries.” Id. at 163. Justice CAVANAGH’s opinion, joined by Justices WEAVER and Kelly, began: “I agree with Chief Justice TAYLOR that the evidence presented in this case supports a traditional medical-malpractice claim; thus, I concur that the jury’s verdict should be upheld.” Id. at 165. The primary disagreement between Chief Justice Taylor’s and Justice CAVANAGH’s opinions concerned whether the second sentence of MCL 600.2912a(2) was “incomprehensible and unenforceable.” Six justices agreed that the Stone case was not a “lost-opportunity” case, and only Justice MARKMAN disagreed with that conclusion.
As in Stone, plaintiffs injury in this case was not the loss of an opportunity to avoid physical harm or the loss of an opportunity for a more favorable result; instead, plaintiff suffered the physical harm, the unfavorable result. See Stone, supra at 148 (opinion by TAYLOR, C.J.); Falcon, supra at 461 (opinion by LEVIN, J.). And plaintiff established, as she was required to, the traditional elements of a medical malpractice claim — defendant’s negligence more probably than not caused her left leg below the knee to be amputated. Plaintiffs expert, Dr. Wayne Gradman, testified that when defendant first saw plaintiff at 9:00 a.m. on February 1,2000, there was a 70 to 80 percent chance of saving her leg. In light of plaintiffs condition, surgery should have been performed by noon that day. Instead of performing emergency surgery to remove blood clots as the standard of care directed, defendant did nothing for 36 hours before performing surgery on February 2, 2000, at about 11:00 p.m. Dr. Gradman testified that there was no explanation regarding why defendant would wait so long to do the necessary surgery. Dr. Gradman further opined that, if defendant had complied with the standard of care, plaintiff would not have lost her leg. This evidence was sufficient for the jury to conclude that the causation and injury elements were met.
In summary, defendant was not entitled to JNOV on the ground that plaintiff did not sufficiently establish proximate causation. This was not a “lost opportunity” medical malpractice action; thus, Fulton and its progeny are not applicable to this case. The burden of proof set forth in the second sentence of MCL 600.2912a(2), as analyzed by Fulton, does not apply here. In light of the evidence presented, the jury could have concluded that plaintiff suffered a physical “injury that more probably than not was proximately caused by the negligence of the defendant,” and would not have occurred absent that negligence. MCL 600.2912a(2); Stone, supra at 163 (opinion by TAYLOR, C.J.). Thus, this issue is without merit.
Next, defendant argues that he was entitled to either JNOV or a new trial because the version of M Civ JI 30.20, the “loss of opportunity” jury instruction, read to the jury was the version that predated the Fulton decision and did not indicate that plaintiff had to establish that her chance of receiving a better result fell more than 50 percentage points. However, because we have concluded that this is not a “loss of opportunity” medical malpractice case, this jury instruction was not applicable. See MCR 2.516(D)(2); Chastain v Gen Motors Corp (On Remand), 254 Mich App 576, 590; 657 NW2d 804 (2002). We note, though, that defendant did not object to the instruction as read by the trial court and, thus, failed to preserve the issue for appeal. See MCR 2.516(C); Ward v Consolidated Rail Corp, 472 Mich 77, 86 n 8; 693 NW2d 366 (2005). Further, the special jury verdict form actually did state, as question three: “[D]id the plaintiff lose an opportunity to achieve a better result of greater than 50 percent as a result of [defendant’s] professional negligence?” And the jury responded in the affirmative. In any case, appellate relief is not warranted. See MCR 2.613(A).
Next, defendant argues that his motion for summary disposition should have been granted because plaintiffs notice of intent to file a claim lacked the specificity required by MCL 600.2912b. We review de novo a trial court’s decision on a motion for summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
In his argument on appeal, defendant does not even address the trial court’s reason for denying his motion for summary disposition — it was untimely and in violation of the trial court’s pretrial scheduling order. Plaintiffs notice of intent was filed on March 16, 2001, when she brought a lawsuit against this defendant, Detroit Receiving Hospital, Harper Hospital, and Dr. Lawrence Schwartz. Subsequently, the parties, except for this defendant, reached a settlement agreement. Thereafter, the trial court entered a stipulated order to dismiss that previous case without prejudice, stating that plaintiff could refile her lawsuit against this defendant and discovery would carry over and could continue.
On January 26, 2004, plaintiff did file this case against defendant only. A pretrial order entered by the trial court on June 27, 2005, stated: “All dispositive dispositions and motions in limine are due by 10/01/05. Motions filed after that date will not be considered.” On October 11, 2006 — over a year after all dispositive motions were due — defendant filed his motion for summary disposition challenging, for the first time, the sufficiency of plaintiffs notice of intent that had been filed five years and seven months earlier. Noting the lengthy history of this case, as well as the deadline for motions set by a pretrial order, the trial court refused to hear the motion. Defendant does not address in what manner this decision allegedly constituted an abuse of discretion. See Kemerko Clawson, LLC v RxIV Inc, 269 Mich App 347, 349; 711 NW2d 801 (2005). Under MCR 2.401(B)(2), a trial court has the authority to set deadlines for the filing of motions. The trial court also has the discretion to decline to consider motions filed after the deadline. Kemerko, supra. Defendant has not addressed and, thus has not established, grounds for reversal of the trial court’s discretionary decision to decline to consider his very tardy motion for summary disposition. Thus, this issue is without merit.
Next, defendant argues that the trial court erred in its application of the common-law setoff rule because it subtracted the amount of the previous settlement from the jury verdict, instead of from the amount of the final judgment after the statutory cap had been applied. We disagree. Issues concerning setoff are reviewed de novo. Markley v Oak Health Care Investors of Coldwater, Inc, 255 Mich App 245, 249; 660 NW2d 344 (2003).
It is undisputed that joint and several liability still exists in medical malpractice cases where the plaintiff is without fault, as in this case. MCL 600.6304(6)(a); Markley, supra at 251-252. Thus, “where the negligence of two or more persons produce a single, indivisible injury, the tortfeasors are jointly and severally liable . ...” Id. at 252. That is, each tortfeasor is potentially liable for the full amount of a plaintiffs damages, regardless of a particular tortfeasor’s degree of fault. Id. at 253; see, also, Maddux v Donaldson, 362 Mich 425, 433-434; 108 NW2d 33 (1961). The underlying purpose of joint and several liability “is to place the burden of injustice, if injustice is inevitable, on the wrongdoer instead of on the innocent plaintiff.” Bell v Ren-Pharm, Inc, 269 Mich App 464, 471; 713 NW2d 285 (2006). Thus, a defendant is jointly and severally liable even for damages caused by the fault of a person not a party to an action. Id. at 470-472.
Under MCL 600.2925d(b), before the tort reform legislation, prior settlements reached by joint tortfeasors before a verdict was reached were credited — or set off — against the jury verdict, reducing the verdict by the settlement amounts. Rittenhouse v Erhart, 424 Mich 166, 181-183; 380 NW2d 440 (1985). “Accordingly, by the time of trial, the ‘claim’ of each plaintiff against the nonsettling tortfeasors was an amount equal to the total damages minus the settlements.” Id. at 182, citing Mayhew v Berrien Co Rd Comm, 414 Mich 399, 410; 326 NW2d 366 (1982). This conclusion made logical sense because, after a settlement agreement is reached with a joint tortfeasor, only part of a plaintiffs “claim” remained — the unsettled part of the claim. In Kaminski v Newton, 176 Mich App 326; 438 NW2d 915 (1989), this Court explained that, in cases of joint and several liability where the tortfeasors are liable for a single indivisible injury,
“[t]he adjudication of the amount of the loss . .. has the effect of establishing the limit of the injured party’s entitlement to redress, whoever the obligor may be. This is because the determination of the amount of the loss resulting from actual litigation of the issue of damages results in the injured person’s being precluded from relitigating the damages question.” [Id. at 331, quoting Restatement Judgments, 2d, § 50,comment d, p 43.]
So, to arrive at the value of the unsettled, adjudicated part of the plaintiffs claim, the amount of a previous settlement had to be subtracted from the plaintiffs total amount of loss as determined by the finder of fact.
The effect of the setoff was to eliminate a recovery by a plaintiff that was in excess of the actual loss sustained as determined by the finder of fact. For example, if the loss sustained by a plaintiff was determined to be $100, and the plaintiff had already settled part of his or her claim with a joint tortfeasor for $90, the remaining defendant who had not settled would only be potentially liable for $10. But, if the loss sustained was valued at $100, and the plaintiff had settled part of his or her claim with a joint tortfeasor for $10, the remaining defendant who had not settled would be potentially liable for $90. This reduction of the jury award, like the application of the collateral source rule, MCL 600.6303, recognized that a plaintiff was already compensated, in part, for his or her damages. See Heinz v Chicago Rd Investment Co, 216 Mich App 289, 299-300; 549 NW2d 47 (1996). That is, although the plaintiff was entitled to the full amount of the damages the jury determined proper, the source of payment could be split between the defendant and another. Id.
The former language of MCL 600.2925d(b) was eliminated by amendment and, with it, the statutory right to set off the amount paid to the plaintiff for the same injury by a settling tortfeasor. However, this Court in Markley, supra at 256-257, held that the common-law setoff rule applies in medical malpractice cases where joint and several liability is imposed. In concluding that the common-law setoff rule applies in medical malpractice cases, the Markley Court explained:
With tort reform and the switch to several liability, it is logical to conclude that common-law setoff in joint and several liability cases remained the law, where the new legislation was silent, where application of the common-law rule does not conflict with any current statutes concerning tort law, and where a plaintiff is conceivably overcompensated for its injury should the rule not be applied. Considering the general nature and tone of tort reform legislation, we conclude that the Legislature did not intend to allow recovery greater than the actual loss in joint and several liability cases when it deleted the relevant portion of § 2925d, but instead intended that common-law principles limiting a recovery to the actual loss would remain intact.
Here, a jury determined that plaintiff was entitled to $300,000 in total damages for wrongful death; however, plaintiff already received $220,000 for wrongful death. Without reduction of the jury verdict, plaintiff receives $520,000 in compensation for a $300,000 harm. If we were to allow such a recovery, we would defeat the principle underlying common-law setoff, that being that a plaintiff can have but one recovery for an injury. [Id. at 256-257.]
The issue in this case is whether the settlement amount that plaintiff received from the settling tortfeasors should be set off against the jury verdict, as the trial court decided, or the final judgment after the noneconomic cap is applied, as defendant argues. We agree with the trial court and conclude that the setoff was properly applied to the jury verdict.
We can discern no reason why the same principles that applied to the statutory right to setoffs should not apply to the common-law right to setoffs when joint and several liability is imposed for a single indivisible injury Here, the jury determined that plaintiffs actual loss for her injury totaled $1,524,831.86. See MCL 600.6304(l)(a). Defendant and the settling tortfeasors were jointly and severally liable for that single indivisible injury. Because a portion of that actual loss was previously paid by the joint tortfeasors through a settlement agreement, plaintiff remains entitled to a potential recovery from this defendant for the remainder of that loss — $1,329,831.86. Under principles of joint and several liability — whose purpose, as stated in Bell, supra at 471 is “to place the burden of injustice... on the wrongdoer instead of on the innocent plaintiff”— defendant would be liable for the remainder of the dam ages but for the application of the collateral source rules and the statutory cap on noneconomic damages. This result is consistent with the purpose underlying common-law setoff — plaintiff is not overcompensated for her injury in that her potential recovery is not greater than her actual loss and she would only be entitled to one recovery for her single injury.
Defendant is correct, though, that the determination of the amount of loss a plaintiff sustained is distinguishable from the amount of loss that is recoverable by force of a final judgment. However, we conclude that the application of the setoff rule to the jury verdict, rather than the final judgment, is proper. When a matter is adjudicated, the plaintiff is exercising his or her constitutional right to have a trier of fact decide the case, including the matter of damages. See Zdrojewski v Murphy, 254 Mich App 50, 75-76; 657 NW2d 721 (2002). In cases where joint and several liability is imposed, the trier of fact’s determination of damages sets the limit regarding the amount a plaintiff can recover for his or her loss. The common-law rule of setoff is applied to protect and enforce the trier of fact’s decision — that is its ultimate purpose. By its application, a plaintiff is entitled to recover only that amount, in total, and not more; but not less either, at least not by operation of this rule of setoff. Again, the purpose of the setoff rule is to ensure that a plaintiff is not overcompensated for his or her actual loss as determined by the trier of fact. A single indivisible injury can lead to only a single recovery, even when joint tortfeasors combine to cause that injury and even though each tortfeasor is potentially liable for the entire amount of a plaintiffs damages. Thus the setoff rule applies to the trier of fact’s determination of damages, and does not apply to, and directly reduce, the amount of the final judgment.
Here, the jury determined that plaintiffs actual loss totaled $1,524,831.86. To ensure that plaintiff is not overcompensated for her injury, as determined by the jury, the setoff rule applies and the partial payment of $195,000 is subtracted from the jury verdict. In accordance with the imposition of joint and several liability, defendant remained potentially liable to plaintiff for $1,329,831.86, an amount that is not in excess of her actual loss. Defendant’s argument that he did not receive a “benefit” from the application of the setoff amount is unavailing. And characterizing this plaintiffs actual recovery of $394,200 — as opposed to the jury’s award of $1,524,831.86 — as a “windfall” is outlandish. Unlike in Markley, the jury in this case found that plaintiff suffered actual harm that far exceeded the previously negotiated settlement amount paid by the joint tortfeasors. Because defendant is jointly and severally liable for those damages, he is potentially liable for that remaining amount of the loss. Therefore, the trial court’s application of the common-law setoff rule was proper.
Next, defendant argues that the amount of the non-economic cap in effect at the time plaintiff filed her complaint should have been applied to the final judgment, rather than the cap in effect at the time the judgment was entered. After review de novo of this issue of law, we disagree. See Robertson v Daimler-Chrysler Corp, 465 Mich 732, 739; 641 NW2d 567 (2002).
Several statutes contain provisions regarding the application of the statutory cap on awards of noneconomic damages in medical malpractice actions. MCL 600.1483 provides, in relevant part:
(1) In an action for damages alleging medical malpractice by or against a person or party, the total amount of damages for noneconomic loss recoverable by all plaintiffs, resulting from the negligence of all defendants, shall not exceed $280,000.00 unless, as the result of the negligence of 1 or more of the defendants, 1 or more of the following exceptions apply as determined by the court pursuant to section 6304, in which case damages for noneconomic loss shall not exceed $500,000:
(2) In awarding damages in an action alleging medical malpractice, the trier of fact shall itemize damages into damages for economic loss and damages for noneconomic loss.
(3) As used in this section, “noneconomic loss” means damages or loss due to pain, suffering, inconvenience, physical impairment, physical disfigurement, or other non-economic loss.
(4) The state treasurer shall adjust the limitation on damages for noneconomic loss set forth in subsection (1) by an amount determined by the state treasurer at the end of each calendar year to reflect the cumulative annual percentage change in the consumer price index.
MCL 600.6304 provides, in relevant part:
(1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death involving fault of more than 1 person, including third-party defendants and nonparties, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following:
(a) The total amount of each plaintiffs damages.
(3) The court shall determine the award of damages to each plaintiff in accordance with the findings under subsection (1), subject to any reduction under subsection (5) or section 2955a [impairment defense] or 6303 [collateral source benefits], and shall enter judgment against each party, including a third-party defendant, except that judgment shall not be entered against a person who has been released from liability as provided in section 2925d.
(5) In an action alleging medical malpractice, the court shall reduce an award of damages in excess of 1 of the limitations set forth in section 1483 to the amount of the appropriate limitation set forth in section 1483. The jury shall not be advised by the court or by counsel for either party of the limitations set forth in section 1483 or any other provision of section 1483.
And MCL 600.6098(1) provides:
A judge presiding over an action alleging medical malpractice shall review each verdict to determine if the limitation on noneconomic damages provided for in section 1483 applies. If the limitation applies, the court shall set aside any amount of noneconomic damages in excess of the amount specified in section 1483.
Our primary goal in interpreting statutes is to ascertain and give effect to the intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). We first turn to the language of the statute. Halloran v Bhan, 470 Mich 572, 577; 683 NW2d 129 (2004). The fair and natural import of the terms employed, in view of the subject matter of the law, governs. In re Wirsing, 456 Mich 467, 474; 573 NW2d 51 (1998). If the plain and ordinary meaning of the language is clear, judicial construction is not permitted. Nastal v Henderson & Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005).
To the extent that the applicable statutes relate to the same subject matter or share a common purpose, they are in pari materia and are read together as one law. See Sinicropi v Mazurek, 273 Mich App 149, 157; 729 NW2d 256 (2006). Read together, the statutes clearly provide that the cap on noneconomic damages applies to an award of noneconomic damages. MCL 600.6304(5). An award of noneconomic damages does not exist until the finder of fact renders such a verdict. MCL 600.1483(2), 600.6304(l)(a); see, also, Jenkins v Patel, 471 Mich 158, 172; 684 NW2d 346 (2004); Zdrojewski, supra at 76-77. A plaintiff awarded damages by the finder of fact has no right to enforce the award until a judgment is entered. See MCR 2.601, 2.602; see, also, Heinz, supra at 298. A trial court cannot enter a judgment on the award until the statutory cap on noneconomic damages is applied, if necessary. MCL 600.1483(1), 600.6304(5), 600.6098(1). The statutory cap is applied, if at all, at the time the judgment is entered, and not when the complaint is filed. Thus, the amount of the statutory cap in effect at the time the judgment is entered is the cap that applies to an award of noneconomic damages. Until that time, a plaintiff has no right to enforce a verdict awarding noneconomic damages. See Wessels v Garden Way, Inc, 263 Mich App 642, 653; 689 NW2d 526 (2004). Therefore, in this case, the trial court properly applied the noneconomic damages cap in effect at the time the judgment was entered.
Next, defendant argues that the trial court erred in its calculation of prejudgment interest because the court awarded prejudgment interest on the entire award of past noneconomic damages, and not on an apportioned ratio consistent with the past and future noneconomic damages awarded by the jury. After a review de novo of this issue of statutory interpretation, we disagree with defendant. See Jenkins, supra at 162.
MCL 600.6013(1) provides that the payment of interest is allowed on a money judgment recovered in a civil action, but not on future damages. Here, the jury awarded plaintiff $480,000 in past noneconomic damages and $920,000 in future noneconomic damages for the years 2007 through 2029. The juiy also awarded plaintiff $28,880 in past economic damages and $95,951.86 for future economic damages. In entering its judgment on the verdict, the trial court adjusted the total verdict by the prior settlement award, then reduced the entire economic damages award to zero because of the collateral source rule, MCL 600.6303, and finally reduced the noneconomic damages award to $394,200 because of the noneconomic damages cap, MCL 600.1483.
On appeal, defendant argues that the reduced award of noneconomic damages must be considered and treated, for purposes of a prejudgment interest calculation, as a ratio of both past and future noneconomic damages because the jury awarded both types of damages. Defendant claims that “[ignoring the jury’s decision to assign noneconomic damages to both past and future damages would improperly inflate the prejudgment interest award.” Defendant’s argument is unpersuasive. For the same reason that applying the noneconomic damages cap to reduce the jury’s award from $1,400,000 to $394,200 is not considered “ignoring” the jury’s decision, applying the cap to only the award of past noneconomic damages is not considered “ignoring” the jury’s decision; it is merely the application of the law.
As discussed earlier, a trial court cannot enter a judgment on a verdict until the statutory cap on noneconomic damages is applied, if necessary. MCL 600.1483(1), 600.6304(5), 600.6098(1). The statutory cap is applied, if at all, at the time the judgment is entered. The entry of such a judgment is governed by MCL 600.6306, which provides, in relevant part:
(1) After a verdict rendered by a trier of fact in favor of a plaintiff, an order of judgment shall be entered by the court. Subject to section 2959, the order of judgment shall be entered against each defendant, including a third-party defendant, in the following order and in the following judgment amounts:
(a) All past economic damages, less collateral source payments as provided for in section 6303.
(b) All past noneconomic damages.
(c) All future economic damages ....
(d) All future medical and other health care costs ....
(e) All future noneconomic damages ....
(f) All taxable and allowable costs ....
Thus, according to the plain language of the statute, the trial court was required to enter a judgment on all past noneconomic damages before it entered a judgment on all future noneconomic damages. Here, the jury awarded plaintiff $480,000 in past noneconomic damages and that award was required to be reduced to a judgment before the entry of a judgment on the jury’s award of $920,000 in future noneconomic damages.
However, MCL 600.6098(1), as set forth above, requires the trial court, in actions alleging medical malpractice, to apply the limitation on noneconomic damages as provided in MCL 600.1483, if necessary, so as to “set aside any amount of noneconomic damages in excess of the amount specified.. . .” (Emphasis supplied.) Because, under MCL 600.6306, past noneconomic damages are considered first and the award of $480,000 in past noneconomic damages exceeds the statutory cap of $394,200 in effect at the time of the judgment, the amount of past noneconomic damages set aside is $85,800. The award of $920,000 in future noneconomic damages is also set aside. Because the award of future noneconomic damages was set aside, the trial court’s award of prejudgment interest was not erroneous.
Finally, defendant argues that the trial court improperly awarded plaintiff case evaluation sanctions under MCR 2.403(0) because, purportedly, there was no case evaluation award rendered in this case. As the trial court held, this argument is wholly without merit because a case evaluation did occur and defendant rejected the award.
Plaintiff originally brought a lawsuit in 2001 against this defendant, Detroit Receiving Hospital, Harper Hospital, and Dr. Lawrence Schwartz. A case evaluation was conducted, and defendant rejected the award. Following case evaluation, a settlement agreement was reached with all others, except this defendant. Thereafter, a stipulation and order to dismiss that case without prejudice was entered, which stated that plaintiff could refile her lawsuit against this defendant and discovery would carry over and could continue. After this action was filed, it was scheduled for case evaluation. Defendant responded by filing a motion, arguing that, although case evaluation is mandatory, there was good cause to make an exception under MCR 2.403(A)(2) because “the parties have already gone through case evaluation in the 2001 filing, and submitting the matter for a second case evaluation would only result in undue burden and expense upon the parties.” At the hearing on the motion, defense counsel appeared and stated on the record: “This case has previously been filed and it’s [sic] previously been case evaluated.” The motion was granted.
After the jury rendered a verdict in plaintiffs favor, plaintiff sought case evaluation sanctions. Defendant objected. At the hearing on the objection, the trial court, which presided over the previous case before it was dismissed by stipulation, indicated that the parties had agreed that another case evaluation did not have to be conducted. Accordingly, the trial court ruled that, when defendant requested that this case be excepted from another case evaluation, it was with the understanding that the previous case evaluation would “apply for whatever purpose a case evaluation would be beneficial.” Thus, defendant’s objection to the imposition of case evaluation sanctions was denied. In light of the record evidence, including defendant’s actions, and the mandatory nature of MCR 2.403(A)(2), as well as the trial court’s unique perspective with regard to the pretrial proceedings, we agree with the trial court’s decision. See In re Gazella, 264 Mich App 668, 679; 692 NW2d 708 (2005).
Affirmed. Costs to plaintiff as the prevailing party. MCR 7.219(A). | [
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Snow, J.
Martha Piggott was granted, by order of the department of labor and industry, compensation for the death of her husband, John Piggott, who was in the employ of the defendant Ross & Wentworth; the department holding that the deceased sustained an accidental injury arising out of and in the course of his employment, and that such accident was the proximate cause of his death. Defendants contend that the deceased did not sustain an accidental injury, and that the occurrence, which is claimed to be such, was not the proximate cause of the death. Such facts as are necessary for an understanding and determination of the issue thus presented follow:
The decedent had been in the employ of Ross & Wentworth for about 20 years, and had always been considered by those who knew him as one enjoying good health. It was the custom of the defendant to clean, oil, and have repairs made to machinery on Sundays, requiring certain of the older employees to do the work. On Sunday, October 12, 1924, a gear on the engine being broken necessitated the moving of the shaft of a large, heavy fly wheel, 9 feet in diameter, 24 inches across its face, and weighing about 6,000 pounds. Decedent and another were ordered by defendant’s foreman to move the fly wheel off the center. To do this it was necessary to insert a pry in the wheel, and the men had to reach about a foot above their heads, put both hands around the pry, and “pull down quick and hard,” using all their strength. This they did, and, about four or five minutes thereafter, the decedent exclaimed something was the matter with him, and fell over dead.
No question is made but that if decedent suffered an injury in moving this heavy wheel, that it was in the course of and arose out of his employment, but it is urged by the defendants that decedent sustained no injury, and that his death was due to heart trouble and other complications. The medical experts who gave testimony were to some extent uncertain as to the cause of death. However, competent and credible testimony was given to sustain both sides of the question. But that there was positive testimony, most worthy of belief, that the strain in pulling on the ■pry was thrown on the heart, thus causing death, clearly appears, and may not be denied.
Dr. O. W. Lohr, a pathologist, head of the Central Laboratories at Saginaw, who examined decedent’s organs microscopically testified:
“Q. If I understand you right, your opinion is based on the probability of the injury with the possible result of the strain on the heart as of Sunday on which he died?
“A. Yes. I think it was the strain thrown on the heart.”
A fair question of fact was raised by the testimony of the medical experts, which was resolved by the commissioners in favor of the plaintiff. The finding is clearly supported by the evidence, and this court can not disturb it. Waite v. Fisher Body Corp., 225 Mich. 161; Holden v. Gifford Lumber Co., 231 Mich. 532; Riley v. Mason Motor Co., 199 Mich. 236; Cosendai v. Piggott Bros., 231 Mich. 544.
Liability in similar cases has been frequently recognized. Schroetke v. Jackson-Church Co., 193 Mich. 616 (L. R. A.1917D, 64); Shaw v. Packard Motor Car Co., 214 Mich. 660; LaVeck v. Parke, Davis & Co., 190 Mich. 604 (L. R. A. 1916D, 1277); Lindsteadt v. Louis Sands Salt & Lumber Co., 190 Mich. 451; Helder v. Luce Furniture Co., 217 Mich. 496; St. Clair v. Meyer Music House, 211 Mich. 285, and in many-other cases.
The award of the department of labor and industry is affirmed, with costs to appellee.
Bird, C. J., and Sharpe, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Sharpe, J.
Defendant reviews his conviction on a charge of larceny from a store in the daytime by writ of error. The information also contained a count charging larceny of property of the value of more than $25. As this count was withdrawn from the consideration of the jury, the errors assigned which relate to it need not be considered.
It is urged that the verdict is against the great weight of the evidence, and that defendant’s motion for a new trial should have been granted. The owner of the store testified that clothing of the value of more than $100 was stolen from it on the day in question. Two young boys, Leo Morrison and Vance Rittenhouse testified, when examined as witnesses, that the goods were stolen by them. The defendant had a paint shop near by. Both boys testified that the defendant, on being informed of their purpose, at first said he would have nothing to do with it, but finally agreed that he would keep watch for them and “if any cops came would call us back.” Rittenhouse testified that it was agreed that ' defendant should have one of the stolen suits, and that defendant “wrote on a piece of paper the size he wanted,” and that the goods, after they were taken, were placed in the cellar of defendant’s place of business and one of the suits left there for him. There was also proof of an admission made by-the defendant to one of the officers of his complicity in the affair. While defendant denied that he had anything to do with it, he admitted that he got the suit left in his basement. We cannot s-ay that the verdict was against the great weight of the evidence.
Defendant’s counsel objected to the testimony of the two boys as to the arrangements made- with him concerning the larceny. Under our statute (3 Comp. Laws 1915, § 15757), any person who aids and abets in the commission of a felony, though not present, may be complained against as a principal. People v. Holdich, 224 Mich. 72; People v. Wycoff, 150 Mich. 449. An accomplice is a competent witness on behalf of the prosecution. People v. Wright, 38 Mich. 744 (31 Am. Rep. 331). Conviction may be had on his testimony, even though uncorroborated. People v. O’Brien, 60 Mich. 8; Tiffany’s Criminal Law (4th Ed.), 587. The boys had made sworn confessions which implicated defendant. A witness for the prosecution testified that he showed these confessions to the defendant, and that he said the statements contained in them were true. They were clearly admissible for the purpose of showing the character of the admissions made to the witness by the defendant.
The defendant was cross-examined as to where he obtained the suit which he admitted to the officer he had not purchased. Counsel insist that he was thus compelled to incriminate himself of another charge — that of receiving stolen property. The boys testified that under the arrangement he was to receive a suit of clothes, and we think it was proper cross-examination to show that he found it in the basement of his place of business, where they testified they had left it.
Error is assigned on the charge as given and the refusal to give some of defendant’s requests. We have read it with care, and are satisfied that the rights of the defendant were fully protected therein.
The sufficiency of the return of the police judge is assailed in defendant’s brief. This question was not raised by motion or on the trial. Neither isi there any assignment of error relating to it.
We are impressed that the defendant had a fair and impartial trial, and that the verdict of the jury, was fully justified by the proof.
The judgment is affirmed.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Clark, J.
Plaintiffs, vendors in an executory land contract, served notice of forfeiture on defendants, the purchasers, brought ejectment, and had verdict, but on a motion for judgment non obstante defendants had judgment. Plaintiffs bring error. The contract'was made in 1917. Two thousand dollars was paid down. Defendants promised and agreed to pay thereafter $125 or more on the 10th day of each month. The contract states that “time shall be of the essence of this contract.” Defendants did not pay promptly. They were tardy, grievously and persistently. On three different occasions plaintiff instituted summary proceedings, resulting each time in the payment of installments due and past due with costs, to be followed again by further delinquency. All or nearly all installments paid were paid after due. Defendants did not pay installments due May 10th, June 10th and July 10,1921. Notice of forfeiture in usual form was served on defendants on July 14, 1921. No other notice or demand was served on them. This suit followed.
In ordering judgment for defendants the trial judge said:
“In this case the testimony bears out the fact that payments never were made regularly, but rather were of an irregular nature, and that no matter when made or how made, the plaintiffs accepted them. I believe the conduct of the plaintiffs in accepting payments in the manner that this record bears out, they waived the question of the provision having to do with making time of the essence of performance in the contract, and under the authorities they are precluded from forfeiting a land contract until they properly notify the defendants of their intention to do so, and to make a proper demand for the overdue payment;” citing Zadigian v. Gard, 223 Mich. 147.
In Corning v. Loomis, 111 Mich. 23, also cited by the trial judge, it was held:
“If the defendants had the right of possession by the terms of the contract, the mere failure to make payments as by the contract agreed would not, of itself, give the plaintiff the right of immediate possession. He must terminate the contract relations by notice of forfeiture or demand of possession.”
The rule of the Zadigian Case, also followed in Waller v. Lieberman, 214 Mich. 428; Fry v. Miller, 220 Mich. 463; Letinsky v. Smith, 220 Mich. 465; and Malys v. W. C. Hood Realty Corp., 229 Mich. 110, is thus stated in 39 Cyc. p. 1384:
“Where Strict Compliance With Contract Has Been Waived. Whether time is or is not of the essence of the contract, if the vendor has waived strict compliance with its terms, as regards time of payment, he cannot thereafter rescind or forfeit the contract, without notifying the purchaser of his intention to do so unless payment is made, and allowing him a reasonable time for performance, and it has been held immaterial whether the extension of time was upon a valuable consideration or not. After forfeiture for default has been waived time becomes essential thereafter only where the vendor makes it so by proper notice and demand. The decisions proceed upon the theory that the vendor ‘cannot use his own indulgence as a trap in which to catch the purchaser.’ ”
Appellants say that this rule is not applicable because of the facts. We think that the statement of fact by the trial court quoted above is established beyond dispute. The proofs require the application of the rule in this case. Plaintiffs, before giving notice of forfeiture, ought to have given notice stating the amount due and the “intention to declare a forfeiture if it be not paid within a stated time, which must of course be reasonable.” Fry v. Miller, supra. And the rule is applicable in actions at law as well as in equity. The cases last above cited are equity cases, but this court has applied the rule in an action of. ejectment, Treat v. Railway, 157 Mich. 320 (133 Am. St. Rep. 347), and it was proper so to apply it. We quote from the opinion:
“We are of opinion that, before a forfeiture could be declared by plaintiff, he was bound to give notice of his intention to claim a forfeiture, coupled with a notice to' defendant of the particular default of defendant relied upon by him. After such notice the defendant should have reasonable time in which to comply, and thus avoid forfeiture.”
The principle involved in the rule is waiver, which is commonly employed both at law and in equity. Of course waiver has equitable elements, as the rule above quoted from Cyc. suggests, but it is not on that account to be employed solely in equity. Instances of its use in actions at law are waiver of proof of loss, or of appraisal, in suits on insurance policies. Other instances might be suggested.
If a vendor accepts a payment on the purchase price after it is due, he thereby waives his then existing right to declare a forfeiture because of the failure to make the payment on time. If such vendor should, after accepting the payment, declare a forfeiture because of the failure to make such payment on time and should institute an action of ejectment, the pur chaser might use such waiver in his defense. Surely the purchaser to have benefit of such waiver need not file a bill in equity to be relieved of the forfeiture and to restrain such action at law.
If a vendor repeatedly accepts payments after due from the purchaser, habitually indulges 'him in delinquency, he thereby waives, as to future payments, strict compliance with the terms of the contract as regards time of payment, „ and he must give the said preliminary notice or demand before he can declare a forfeiture, and if forfeiture be declared without the preliminary notice, and ejectment instituted, the waiver may be used in defense of the action.
It might be well to add that reform respecting such delinquency may be accomplished by the vendor’s giv.ing to the purchaser* notice of his intention to require ;prompt payment in the future. In addition to the ^treatment given by Cyc., from which we have quoted, ¿these matters are also fully considered, with ample citation of authority in a note, 9 A. L. R. 996, 1002, from which we quote:
“The vendor in a contract for the sale of real estate, by accepting a payment on the purchase price after the time specified in the agreement, waives as to that payment a provision that time is of the essence of the contract, and cannot thereafter declare a forfeiture of the vendee’s rights under the contract because of the failure to make it on time.
“If the vendor in a contract for the sale of land, whereby time is made of the essence, repeatedly receives payments after the date when they are due, and thereby establishes a course of dealing inconsistent with insistence on the strict performance of the contract he cannot thereafter declare a forfeiture for a failure to make a payment promptly, unless he has given notice to the vendee of his intention to require prompt payment in the future.”
And of a kindred doctrine of equitable estoppel, we quote from 24 Mich. Law Rev. 289:
“For a long time this doctrine was resisted in the law courts because of its equitable origin, but finally in all cases except those involving the transfer of title to land, estoppels in pais or equitable estoppels were as readily enforced in law as in equity. * * * Lang v. Lundy, 185 Mich. 390. As said a Michigan case:
“ ‘Estoppels in pais are called equitable estoppels, not because tbeir recognition is peculiar to equitable tribunals but because they arise upon facts -which: render their application in the protection of rights equitable and just. Courts of equity recognize them in cases of equitable cognizance; but the courts of common law just as readily and freely.’ Barnard v. German-American Seminary, 49 Mich. 444.”
The judgment was ordered rightly.
It is said that the court lost jurisdiction to order judgment for defendants because the reserved decision on the motion to direct verdict was not made until after the time, limited by Circuit Court Rule No. 44, had expired. This is answered by Stepanian v. Moskovitz, 232 Mich. 630.
Appellants also urge that there was no basis for motion for judgment non obstante, because it does not appear that a motion to direct a verdict was made at the close of the testimony, as provided by section 14568, 3 Comp. Laws 1915, and, hence, no decision could be reserved.
The trial judge stated in the record, “which motion to direct a verdict in favor of defendants and against plaintiffs was reserved by the court under the act.” This is not denied by the record itself. Too, it does not appear that this question was raised in the trial court. Therefore it will be passed.
Judgment affirmed.
Bird, C. J., and Sharpe, Steere, Wiest, and McDonald, JJ., concurred.
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Clark, J.
Plaintiff, while a passenger in a motor vehicle, was injured in a collision between the vehicle and one of defendant’s street cars at the intersection of National avenue and Myrtle street in Detroit. He sued defendant. We quote from the declaration:
“Plaintiff further states that on the 14th day of July, 1919, he was a soldier in the army of the United States and as such was an inmate and patient at United States Army Base Hospital No. 36, in the city of Detroit, where he and numerous other soldiers were being treated for injuries and ailments consequent upon their service in the military forces of the United States. That on the date aforesaid plaintiff and a large number of other patients of said base hospital had been guests at the ball park of the Detroit Base Ball Club where they had been required to attend a ball game in accordance with the policy of treatment of said base hospital which provided for the amuses ment and entertainment of such of the patients as were able to be up and about; and that said tóase hospital had made an arrangement with the National League for Women’s Service for furnishing the motor vehicle or truck in question for the purpose of transporting the plaintiff and other patients of said hospital to and from said ball park. That at about the hour of 4:35 p. m. on said date plaintiff, in company with 12 or 14 other patients of said hospital, was a passenger in said motor vehicle or truck so furnished by said National League for Women’s Service,” etc.
Defendant pleaded the general issue. Plaintiff had judgment. Defendant brings error.
Late in the trial, and after defendant had called six of its eight witnesses, John P. Brambell, of Washington, D. C., of the department of justice and the veteran’s bureau, was sworn for defendant, and by him defendant sought to show that by reason of section 313 of the war risk insurance act (1 U. S. Comp. Stat. 1919 Supp., chap. 11B, § 514 [40 U. S. Stat. pp. 408, 613]), plaintiff was not the real party in interest. Objection being made, the matter was excluded, the court holding that it was a special defense which had not been pleaded. Defendant then offered to show by examination of Brambell as a witness and by cross-examination of plaintiff that plaintiff in fact was not the real party in interest, but the court adhered to his ruling.
Under the war risk insurance act plaintiff might bring his own suit, unless an assignment to the United States of his right of action had been required of him. There is some evidence that this was his own suit, but what the proposed inquiry would have developed we do not know.
The question is, Was the court right in excluding the evidence for the reason stated? There are authorities to sustain the ruling of the trial judge, of which we cite but two: 31 Cyc. p. 219, and 21 R. C. L. p. 568.
But the language of section 12353, 3 Comp. Laws 1915, “Every action shall be prosecuted in the name of the real party in interest” has been held to be mandatory. Michigan Employers Casualty Co. v. Doucette, 218 Mich. 363; People, for use of Herbert, v. McKinley, 220 Mich. 112; Marshall & Ilsley Bank v. Mooney, 205 Mich. 513; Waters, for use of Insurance Co., v. Schultz, 233 Mich. 143.
In the Doucette Case and in Mueller v. Telephone Co., 230 Mich. 173, the plea was the general issue. But the said defense was made. And under the rule of those cases, the court in the case at bar was in error in excluding the evidence offered. It seems that the rule should have been followed and defendant permitted, without notice under its plea, to show, if it could, that plaintiff was not the real party in interest.
Judgment reversed. New trial granted. Costs to abide the result.
Bird, C. J., and Sharpe, Snow, Steere, Fellows, Wiest, and McDonald, JJ., concurred. | [
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Bird, C. J.
Plaintiff had judgment against defendant in the Wayne circuit court for $4,000 in a personal injury case. Defendant assigns several reasons why the judgment should be vacated. Plaintiff is a little miss, four years of age. On the morning of the accident she was playing in the driveway leading from the street to the rear of the house. At the same time defendant’s delivery wagon was on the opposite side of the street in charge of a servant. The driver desired to turn around, so he backed up into the driveway where plaintiff was playing. In so doing, he ran against plaintiff and over her left leg and broke it.
Defendant insisted, after plaintiff’s case was submitted, that he was entitled to a directed verdict, because no negligence of defendant had been shown. The proofs disclose that just prior to the accident the mother saw the child in the driveway going toward the highway, and very soon thereafter she heard her scream. She at once started to learn the cause when she met the driver bringing plaintiff into the house in his arms. No one appears to have seen the accident just at the moment it happened, but plaintiff surrounds it with circumstances which persuasively point in one direction. The driver denied that his car was in the driveway. A neighbor who was on her front porch saw the rear wheels of the car in the driveway immediately following the accident, but did not see the accident. Another witness who was in the Roach dwelling corroborated this testimony. It was also in proof that the driver came back into the-driveway very fast, 15 or 20 miles an hour. These and other circumstances shown were ample,. if believed by the jury, to authorize them to conclude that plaintiff was. injured by reason of the careless operation of the car by the driver.
There was little trouble in reducing the fracture, but the portions of the bone of the leg which were affected would not stay in position. The limb was set three times. Finally it was kept in position by means of a silver plate and a weight, which kept plaintiff’s leg suspended for some time while she was in bed. She was in the hospital for several weeks, and it is claimed that the result of this treatment left her leg bowed. Her counsel asked permission to exhibit the injured leg to the jury, and it was granted. Defendant’s counsel contend this was error. It was a matter which was within the discretion of the trial ‘court, and we can see no abuse of that discretion. Langworthy v. Township of Green, 95 Mich. 93; Barfoot v. White Star Line, 170 Mich. 349.
X-ray pictures of the fracture were taken by a photographer and were admitted in evidence, but counsel argue that this was error because the plates were not properly identified. The name “Roach” was written on the plates. The testimony of the operator who took them, and of the father who retained them, clearly put this question beyond the domain of doubt.
The verdict of the jury was in the sum of $5,000. Upon motion for a new trial the court reduced it to $4,000. ' Counsel complain that it is still excessive. We do not feel that we should interfere with the verdict as reduced by the trial court, on the ground that it is excessive. The proofs show that the child suffered much on account of the injury, and the doctor testified the present deformity would be permanent.
We think none of the remaining assignments merit a discussion.
The judgment is affirmed.
Sharpe, Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Fellows, J.
Defendants were agents of the plaintiff at Grand Rapids. This action on the case is brought to recover for the conversion of $848.41, being the amount collected by them as premiums above their commissions, and the only question involved is whether this form of action is maintainable. The record discloses and practically without dispute that defendants were to issue policies in plaintiff company in the usual way, collect the premiums, make their reports, and remit the amount collected less their commissions on the 15th day of each month and within 45 days after their report was sent in, but they were not required or expected to send to plaintiff the identical money or checks collected by them as premiums. Plaintiff im- sists upon the right to recover in this form of action both at common law and under Act No. 256, Pub. Acts 1917, pt. 2, chap. 4, § 10. (Comp. Laws Supp. 1922, § 9100 [118]), and its contention was sustained by the trial court.
The action of trover was abolished by the judicature act (3 Comp. Laws 1915, § 12350) but where it was formerly maintainable an action on the case for conversion or one in assumpsit may be brought. So if an action of trover would have been permissible before the judicature act, an action either in case for the ’conversion, or an action in assumpsit for money had and received may now be maintained at the election of the plaintiff. Both counsel have been most diligent ;and have brought to our attention a wealth of authoriities and we have examined many others. At least ■& hundred authorities have been examined but after going over them all, we come back face to face with the proposition that one of our cases is controlling of the case now in hand and can not be distinguished from it, and that we are in duty bound to follow it rather than the holdings in other States. We have pointed out that the defendants here were not required by their arrangement with the company to turn over to it the identical money or checks received in payment for premiums, their arrangements contemplated the sending of their check for the amount due on the 15th of each month; we have also pointed out that trespass on the case for conversion is maintainable for money when trover would lie under the former practice. . In Alfred Shrimpton & Sons v. Culver, 109 Mich. 577, it was held:
“Trover is not maintainable for money unless there be an obligation on the part of the defendant to return the specific money intrusted to his care.”
This case was followed in Lytle v. Peters, 167 Mich. 345, and was cited by Mr. Justice Ostrander in Hogue v. Wells, 180 Mich. 19. But in the last cited case the court was equally divided and no law save the law of the case was made; however, in this case, under the arrangement, the plaintiff was entitled to have the specific money deposited in the bank and no doubt trover would lie for its conversion, and the language of both Chief Justice McAlvay and Justice OSTRANDER had reference to the case before the court. The action of trover (now trespass on the case for conversion) could be maintained where the plaintiff was lawfully entitled to the possession of the specific thing converted. The rights of the parties might or might not be evidenced 'by a contract; but if evidenced by a contract, the contract must establish the right of the plaintiff to the possession of the specific thing converted in order to maintain the action. Here the agreement between the parties, it is conceded, did not provide and did not contemplate that plaintiff was entitled to the specific money or checks which came to defendants’ possession in payment for premiums; it contemplated the payment by check of the balance due and payable by defendants on the 15th of each month. At common law plaintiff could not maintain trover on the undisputed facts appearing in this record, and could not maintain case for conversion.
But it is insisted that if such is the common-law rule the act of 1917, above cited, so modifies the rule as to permit recovery here. Plaintiff’s counsel frankly concede, and quite properly so, that the contract which fixes the status of the parties can not be changed by legislative fiat. But they insist that the legislature may prescribe a rule of evidence, and that the section cited declaring that the agent receives the money in a fiduciary capacity and making him guilty of larceny by embezzlement for embezzling, converting, appropriating, etc., the premiums is within the power of the legislature and should be held to prescribe a rule of evidence and fix the elements of a prima facie case. All this may be admitted and it may further be admitted that if this were a criminal case a prima facie case under the statute was made out, and we may even go further and admit that the statutory offense of larceny by embezzlement has been established on the record; we may admit all this but we must still hark back to the fact that this is an action for conversion (substitute for trover) and that in such action the plaintiff may not recover where the undisputed evidence establishes that he is- not in fact entitled to the possession, and never was entitled to the possession of the specific thing claimed to have been converted. This is so and must be so even though the failure to remit in accordance with the contract involves moral turpitude or the commission of a statutory crime unless we overlook the necessary ingredients to make a case of trover (now trespass on the case for conversion). This court must administer the law as it is, and without unsettling it we can not sustain the right of the plaintiff to recover in this form of action.
The judgment is reversed and the case remanded for such further proceedings as may be had not inconsistent- with this opinion. Defendants will recover costs of this court.
Bied, C. J., and Shaepe, Snow, Steeee, Wiest, Claek, and McDonald, JJ., concurred. | [
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Souris, J.
This is an appeal from a directed yerdict of no cause of action in an automobile negligence case. The Court of Appeals, by divided vote, affirmed. 1 Mich App 362.
Action was brought to recover damages arising from the defendant’s alleged negligence in causing his automobile to strike his two-year-old granddaughter as he hacked it out of its garage. The evidence, on view favorable to plaintiff, discloses that defendant, 76 years of age, while in the farmhouse he shared with his daughter and her family, told his daughter to dress and to put outdoor clothes on his granddaughter and his four-year-old grandson and that she proceeded immediately to do so; that all planned to drive to town with him in his car; that he walked about 50 feet from the house to the garage inside which his car was parked, its engine having been started earlier to warm up; that he entered the car, looked in the rear-view and side-view mirrors, immediately put the car into backward motion and, after traveling no more than 3 or 4 feet, struck his granddaughter, causing the injuries for which damages are sought in this action.
In directing the verdict of no cause, the circuit judge stated that “the defendant was not put on notice that there were any children there [in back of the car parked in the garage] at all.” We may presume therefrom that the circuit judge had in mind such cases as Kinsler v. Simpson (1932), 257 Mich 7, and Hopkins v. Lake (1957), 348 Mich 382, in which the pertinent law of Michigan was stated in the latter case to he that:
“Common-law standards of care require reasonable observation by a person baching a motor vehicle, and this is especially true where the person knows, or should know, that children are likely to be affected by such backing.” 348 Mich 382, 389, 398.
As we read the circuit judge’s opinion granting defendant’s motion for a directed verdict, he held as a matter of law that the proofs were insufficient to establish that defendant owed any duty of due care to the infant granddaughter his car injured and that his- reason for so holding was that the evidence failed to disclose that defendant knew, or should have foreseen, that the children were, or would be, within the zone of danger.
"We are not prepared to conclude as a matter of law, as did the circuit judge, that the jury could not properly have found that the defendant knew, or should have foreseen, that the children were likely to be in the zone of danger created by his act of backing the car out of its garage.
Defendant testified that when he left the house to back the ear out of its garage, the children were still in the house and their mother had not yet put their outdoor garments on them. He also testified that it usually took him only one minute or, if he walked slowly, two minutes, to walk the 50 feet from, the house to the garage and that, on the day of the accident, he started backing the car as soon as he entered it and had looked in the rear-view and side-view mirrors, the car’s engine having been started and the garage door behind the car having been opened earlier in the morning. Prom this testimony the jury would have been justified in finding that defendant did not know, and should not be held to have foreseen? that the children would be behind his car so soon after his having left them in the house. On the other hand, it would have been equally within the jury’s province to have found that defendant should have known that the children could have been dressed and could have run out of the house and into the zone of danger behind the car during the two minutes it usually took the aged defendant to cover the same distance walking slowly and the additional time it must have taken him to enter the car, make his ineffectual observations through his rear- and side-view mirrors, and put the car in backward motion.
The jury should have been allowed to decide that fact issue of foreseeability of harm to the children, Palsgraf v. Long Island R. Co. (1928), 248 NY 339, 345 (162 NE 99, 59 ALR 1253), and it should have been instructed that, if it found that defendant had or should have had such knowledge, the law imposes upon the defendant a duty owed to the children to exercise such care and diligence as a reasonably prudent person in similar circumstances would consider reasonably necessary for the safety of the children. What we say here is nothing more than that it was for the circuit judge to say that, if the jury found that as a matter of fact a reasonably prudent person should have foreseen the presence of the children in the zone of danger, then, as a matter of law the defendant owed to the injured child a duty of due care. If such duty arose, it then would become the jury’s task to determine, as a matter of fact, whether the defendant’s conduct measured up to the duty of care imposed upon him by the law. Usually, in negligence cases, whether a duty is owed by the defendant to the plaintiff does not require resolution of fact issues. However, in some cases, as in this one, fact issues arise, When they do, they must be submitted to the jury, our traditional finders of fact, for ultimate resolution and they must he accompanied by an appropriate conditional instruction regarding defendant’s duty, conditioned upon the jury’s resolution of the fact dispute.
Instead of submitting the foreseeability of risk of harm issue of fact for jury determination, the cir cilit judge himself determined that “the defendant was not put on notice that there were any children there at all” and, consequently, he concluded that defendant owed no duty to the children for breach of which he could be held liable in this case of Bonin to the plaintiff.
Had the circuit judge defined for the jury defendant’s legal duty of due care, dependent upon the jury’s finding on the fact issue of defendant’s knowledge of the foreseeable risk of harm to others, there was sufficient evidence in this record to require submission to the jury of the additional fact issue of defendant’s breach of such duty.
Defendant’s view of the area behind his car was narrowly limited, yet he proceeded to back the car out of the garage without sounding his horn or giving other, oral, for example, warning of his intended action. Furthermore, the garage was a two-car garage and the defendant’s car was in the stall farthest from the house. The stall nearest the house was empty and its overhead door was closed. Had defendant opened that door, his view from his-seat in the car of the area from the house to the garage would have been enlarged substantially. The jury would have been entitled to find, although certainly not required to do so, that due care required defendant to take any or all of such cautionary measures before backing his car out of the garage and that his failure to do so constituted actionable negligence.
Reversed and remanded for new trial.. Costs to plaintiff. _
T. M. Kavanagh, C. J., and Dethmers and Adams, JJ. concurred with Souris, J.
Black, J., concurred in result.
Harper and James discuss the functions of judge and jury in such cases this way:
“The jury usually decides what conduct reasonable care would call for in the case before them, and also what was the conduct of the parties. But it is often said that the court decides whether the defendant owed to plaintiff any duty to use due care at all, and in one sense this is true. The court decides whether a manufacturer’s liability is to be limited by privity of contract or extended to the full range of what may be foreseen; or whether likelihood of trespassing raises a duty of care towards the trespasser; or whether the duty to take a specific precaution is eireumseribed by the specific dangers that called for the precaution, or extends to unforeseeable hazards. Yet the general rule has too often been stated without enough critical appraisal. The duty issue, like any other, can be broken down into (a) rules and (b) the application of those rules to the concrete faets of a given case. Here as elsewhere the court lays down the rules. But the application of those rules to particular faets should be, and in fact usually is, committed to the jury on the duty issue as upon any other.
“The duty issue frequently poses questions of the kind usually given to the jury. Under the prevailing rule duty to use due care is bounded by the foreseeable range of danger. Seasonable foreseeability of harm is the very prototype of the question a jury must pass upon in particularizing the standard of conduct in the case before it. It is no harder and not very different to fix upon the foreseeable range of that harm, or to determine whether a given hazard was foreseeably great enough to make particular conduct negligent. If the ease is very clear, of course, a jury verdict may be directed here as upon any other question (as was true in Mrs. Balsgraf’s ease). But here as elsewhere, ‘In doubtful situations a jury must say where the line is to be drawn.’ [Quoting from Cardozo, J., in Bird v. St. Paul F. & M. Ins. Co. (1918), 224 NY 47, 54 (120 NE 86, 88)].” Harper and James, Torts, § 18.8, pp 1058, 1059.
Prosser puts the matter this way:
“The determination of any question of duty — that is, whether the defendant stands in such a relation to the plaintiff that the law will impose upon him any obligation of reasonable conduct for the benefit of the plaintiff [is for the court]. This issue is one of law, and is never for the jury. * * *
“In any case where there might be reasonable difference of opinion as to the foreseeability of a particular risk, the reasonableness of the defendant’s conduct with respect to it, or the normal character of an intervening eause, the question is for the jury, subject of course to suitable instructions from the court as to the legal conclusion to be drawn as the issue is determined either way.” Prosser, Torts (3d ed), § 52, pp 329, 330. | [
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Per Curiam.
Defendant appeals by right his convictions, following a jury trial, of eight counts of first- degree criminal sexual conduct, MCL 750.520b(l)(a), and six counts of second-degree criminal sexual conduct, MCL 750.520c(l)(a), all for sexual activity with minors under 13 years of age. Defendant also challenges his sentences. We affirm.
The crimes involved three grandchildren of the woman whom defendant alternately described as his common-law wife and his girlfriend. Defendant described himself as the girls’ adopted grandfather.
Before trial, the prosecution filed a motion in limine to exclude the testimony of a defense expert, Dr. Andrew Barclay, who would have testified that he tested defendant and that defendant did not fit the profile, or display the characteristics, of having a personality consistent with pedophilia or being a sexual predator. The prosecution argued that the testimony was inadmissible character evidence. The trial court agreed and granted the motion.
Also before trial, the prosecution filed a notice of intent under MRE 404(b) to present against defendant other acts testimony by the victims’ mother and the victims’ aunt, as well as evidence of uncharged acts by defendant against the victims. The prosecution argued that these other acts were similar to the charged assaults and that all the other acts were admissible to show defendant’s common scheme, intent, and motive. Defendant objected on the ground that the other incidents were not similar. The trial court ruled that some of the proposed other acts evidence was inadmissible, but touching incidents involving the victims’ mother and aunt were admissible to show a common plan or scheme.
Five days before trial, defendant filed a motion to adjourn trial because the prosecutor, in the previous week, had disclosed that she no longer intended to call the victims’ grandmother as a witness. Defense counsel argued that he had then hired a process server, but the process server was unable to locate the grandmother. The trial court denied the motion.
At trial, the prosecution presented the testimony of the three victims, who all testified that while they were under 13 years of age, defendant committed multiple acts of sexual conduct against them. Some of the acts related by the victims, and objected to by defendant, had not been charged.
Consistently with the trial court’s prior ruling, the victims’ aunt and their mother testified about “other acts” committed by defendant. The victims’ aunt testified that when she was about 18, defendant came into her bathroom and put his hand up the back of her shirt and down her pants and that four years before, defendant had taken her bathing suit top and squeezed water out of it while she was wearing it. The aunt also recalled another incident when she and defendant were riding a dirt bike and he had his hands on her thighs, very near her genitalia. The victims’ mother testified that in 2002, when she was sick with influenza, defendant sat on the couch with her, rubbed her arms and legs, and tried to put his hands up her shirt.
On cross-examination, the defense asked the victims’ mother if she had ever expressed concern to defendant’s sister that defendant was only after the grandmother for her money. The victims’ mother denied having said that, but explained conversations she had had with the sister concerning what part money played in the relationship between defendant and the grandmother. The defense also cross-examined the victims’ mother about how much money the grandmother had spent on defendant.
The victims’ father testified that the grandmother had inherited $500,000, that she had loaned defendant a great deal of money, and that she had spent about $30,000 making improvements to his property. Defendant cross-examined the victims’ father regarding the inheritance, the grandmother’s gifts to the victims’ family, and the grandmother’s gifts to defendant.
In his case-in-chief, defendant presented witnesses attesting to his allegedly good character. In rebuttal, the prosecutor offered testimony from the victims’ mother that defendant, when living in his previous city of residence, had gained a reputation in his church for inappropriate contact with young girls in the congregation and that the victims’ mother and her sisters considered him a sexual deviant. The trial court overruled defendant’s objections to this testimony.
The jury returned guilty verdicts on all 14 counts. At sentencing, the trial court overruled defense objections to the scoring of three offense variables and sentenced defendant to multiple terms of 18 years and 9 months to 50 years of imprisonment for the first-degree criminal sexual conduct crimes and terms of 10 to 15 years for the second-degree criminal sexual conduct crimes.
We first consider whether the admission of prior acts evidence denied defendant a fair trial and find no error. This Court reviews for an abuse of discretion a trial court’s decision to admit or exclude evidence. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). The abuse of discretion standard of review applies to decisions regarding admission of similar acts evidence. People v McMillan, 213 Mich App 134, 137; 539 NW2d 553 (1995). Questions of law are reviewed de novo. People v Swafford, 483 Mich 1, 7; 762 NW2d 902 (2009). Questions whether a defendant was denied a fair trial, or deprived of his liberty without due process of law, are reviewed de novo. See People v Schumacher, 276 Mich App 165, 176; 740 NW2d 534 (2007).
MRE 404(b)(1) provides, in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case. [Emphasis added.]
For evidence of other crimes, wrongs, or acts to be admissible under MRE 404(b)(1), the proponent of the evidence must show three things: (1) that the other acts evidence is for a proper purpose (other than to show character and action in conformity therewith), (2) that the evidence is relevant to an issue of fact that is of consequence at trial, and (3) that, under MRE 403, the danger of unfair prejudice does not substantially outweigh the probative value of the evidence. People v Sabin (After Remand), 463 Mich 43, 55-56; 614 NW2d 888 (2000).
In Sabin, our Supreme Court held that “evidence of similar misconduct is logically relevant to show that the charged act occurred where the uncharged misconduct and the charged offense are sufficiently similar to support an inference that they are manifestations of a common plan, scheme, or system.” Id. at 63. There must be such a concurrence of common features that the charged acts and the other acts are logically seen as part of a general plan, scheme, or design. Id. at 63-64. The evidence of uncharged acts “needs only to support the inference that the defendant employed the common plan in committing the charged offense.” People v Hine, 467 Mich 242, 253; 650 NW2d 659 (2002). “[Distinctive and unusual features are not required to establish the existence of a common design or plan.” Id. at 252-253.
Here the other acts evidence had a concurrence of common features so that the charged acts and the other acts are logically seen as part of a general plan, scheme, or design. One aspect of defendant’s scheme, plan, or system was to engage in touching women and girls, usually less extensive forms of sexual touching, even when in public areas where it might be seen. Some of the other acts evidence consisted of other sexual acts in these kinds of public areas, including in the living room, the bathroom, or the bedroom, where there were spaces in the door through which others might see. While there were some dissimilarities between the charged acts and the other bad acts, a high degree of similarity is not required, nor are distinctive or unusual features required to be present in both the charged and the uncharged acts. Id. at 252-253. Accordingly, the trial court did not abuse its discretion in admitting the evidence under MRE 404(b).
Defendant also contends that he was denied his constitutional right to present a defense when the trial court excluded his defense expert. We find no error.
This Court reviews for an abuse of discretion a trial court’s decision to admit or exclude expert witness testimony. People v Matuszak, 263 Mich App 42, 47; 687 NW2d 342 (2004). This Court also reviews for an abuse of discretion a trial court’s decision on an expert’s qualifications. See Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006); People v Peterson, 450 Mich 349, 363 n 8, 379; 537 NW2d 857 (1995). This Court reviews de novo whether defendant suffered a deprivation of his constitutional right to present a defense. See People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002).
MRE 702 governs the admissibility of expert testimony and 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.
Under MRE 702, a trial court must ensure that all expert opinion testimony, regardless of whether it is based on novel science, is reliable. Gilbert v Daimler-Chrysler Corp, 470 Mich 749, 781; 685 NW2d 391 (2004). “MRE 702 requires the trial court to ensure that each aspect of an expert witness’s proffered testimony —including the data underlying the expert’s theories and the methodology by which the expert draws conclusions from that data — is reliable.” Id. at 779 (emphasis added). “[Reference in MRE 702 to ‘scientific’ evidence ‘implies a grounding in the methods and procedures of science,’ and the rules’s reference to ‘knowledge’ ‘connotes more than subjective belief or unsupported speculation.’ ” Id. at 781 (citations omitted).
This Court addressed this same issue, also involving Dr. Barclay, and essentially the same criminal charges in People v Dobek, 274 Mich App 58; 732 NW2d 546 (2007). In that case, the trial court excluded Dr. Barclay’s testimony “because it found a lack of scientific reliability in the process of identifying sex offenders through psychological testing and because the testimony would not assist the jury in its function of deliberating on the issue of guilt. ...” Id. at 93. This Court also concluded that Dr. Barclay’s proposed testimony regarding the defendant’s sex-offender profile, as developed from psychological testing, was neither sufficiently scientifically reliable nor supported by sufficient scientific data. Id. at 94-95. Further, the panel concluded that Dr. Barclay’s proposed testimony would not have assisted the trier of fact to understand the evidence or to determine a fact in issue. Id. at 95. “[RJather, any arguable probative value ... would be substantially outweighed by the danger of unfair prejudice to the prosecution, confusion of the issues, or misleading the jury.” Id. at 95. After extensive and detailed analysis, Dobek concluded that the trial court did not err by granting the prosecution’s motion to exclude Dr. Barclay’s proposed testimony. Id. at 92-104.
By the same token, the prosecution here filed a pretrial motion in limine to exclude the similar testimony of Dr. Barclay, who would have testified about the same things: that he tested defendant and that defendant did not fit the profile, or display the characteristics, of having a personality consistent with pedophilia or being a sexual predator. Although Dobek had not yet been decided when the trial court made its ruling in this case, the trial court was prescient, and reached the same conclusion. Dobek is on point and indistinguishable. We find no abuse of discretion.
Defendant asserts that he was denied a fair trial when the trial court permitted the prosecution to delete the victims’ grandmother from its witness list. We disagree. This argument is unpreserved because defendant did not object on the record to the prosecution’s deletion, nor did he bring a motion for a posttrial evidentiary hearing or for a new trial. People v Dixon, 217 Mich App 400, 409; 552 NW2d 663 (1996).
Statutory construction presents an issue of law that this Court reviews de novo. People v Keller, 479 Mich 467, 473-474; 739 NW2d 505 (2007). A trial court’s decision to permit the prosecution to delete a witness from its endorsed witness list is reviewed for an abuse of discretion. People v Burwick, 450 Mich 281, 291; 537 NW2d 813 (1995). Finally, “an unpreserved claim of constitutional error is reviewed for plain error affecting substantial rights.” People v Pipes, 475 Mich 267, 274; 715 NW2d 290 (2006).
Michigan law requires the prosecution to attach a witness list to the information and to include in it the names of known witnesses who might be called at trial and all res gestae witnesses known to the prosecution or to investigating law enforcement officers. MCL 767.40a(l). The prosecution may add a person to, or delete a person from, that witness list at any time “upon leave of the court and for good cause shown or by stipulation ....” MCL 767.40a(4) (emphasis added).
The prosecution was granted permission by the trial court, in chambers, to remove the witness from its witness list at the pretrial conference on April 25, 2007. The permission to remove the witness from its list constitutes the “leave of the court” required by MCL 767.40a(4). Moreover, defendant makes the conclusory argument that the prosecution did not show good cause in support of its request to remove the witness from its list and fails to present proof that good cause was lacking. Therefore, we reject defendant’s argument that the trial court abused its discretion by permitting the witness to be deleted from the prosecution’s witness list. In addition, because there was no error, there was also no plain error affecting defendant’s substantial rights. Pipes, 475 Mich at 274.
Defendant next argues that he was denied a fair trial when the trial court failed to require the prosecution to assist the defense in locating the victims’ grandmother so that the defense could subpoena her to testify as a witness in the case. We disagree.
The “prosecuting attorney or investigative law enforcement agency shall provide to the defendant, or defense counsel, upon request, reasonable assistance, including investigative assistance, as may be necessary to locate and serve process upon a witness.” MCL 767.40a(5). However, the “request for assistance shall be made in writing by defendant or defense counsel not less than 10 days before the trial of the case or at such other time as the court directs.” Id. (emphasis added).
Defendant did not request assistance from the prosecution in locating the witness until May 5, 2007, four days before trial. While defendant was not advised until April 25, 2007, that the prosecution would not be calling the witness in its case-in-chief, this advice constituted notice 14 days in advance of trial. Rather than request the assistance of the prosecution at that time, defendant instead expressed his intention to secure his own process server to subpoena the witness for trial. Accordingly, the trial court did not abuse its discretion when it declined to direct the prosecution to assist the defendant in locating the witness, given that the request for this assistance was made only four days before trial.
Defendant next contends that he was denied a fair trial when the trial court denied his motion to adjourn trial to allow him additional time to locate the victims’ grandmother and subpoena her to testify at trial. We disagree. A trial court’s rulings on motions for a continuance are reviewed for an abuse of discretion. People v Echavarria, 233 Mich App 356, 368; 592 NW2d 737 (1999).
Defense counsel admitted to the trial court that he had unsuccessfully attempted to locate the witness months before requesting the adjournment. Defendant fails to show how an adjournment of trial would have assisted him in finding a witness whom he had previously had no success in locating. Accordingly, we find that the trial court did not abuse its discretion by denying the motion to adjourn, and further find that defendant has failed to show plain error affecting his substantial rights. Pipes, 475 Mich at 274.
Even if the trial court abused its discretion in denying the motion to adjourn, the evidence in support of defendant’s guilt was very strong. The testimony of the victims, in particular, was specific and powerful. And defendant’s proposed defense, that the victims’ mother influenced her children to make false accusations of abuse in order that the grandmother would not spend more of her inheritance on defendant, is so implausible that no reasonable jury would have accepted it in the face of the convincing testimony of the victims. Accordingly, any such error was harmless and not error affecting defendant’s substantial rights.
Defendant also argues that he was denied a fair trial when the trial court denied his request for the missing witness instruction, CJI2d 5.12. We disagree. This Court reviews for an abuse of discretion a trial court’s determination whether the missing witness instruction is appropriate. People v Eccles, 260 Mich App 379, 389; 677 NW2d 76 (2004).
The missing witness instruction may be given “if a prosecutor fails to secure the presence at trial of a listed witness who has not been properly excused.” People v Perez, 469 Mich 415, 420; 670 NW2d 655 (2003). Since we have concluded that there was no error when the trial court permitted the prosecution to strike the witness from its list, we also conclude that there was no error when the trial court declined to give the missing witness instruction.
Next, defendant claims that the admission of “surprise” rebuttal evidence regarding defendant’s character deprived defendant of a fair trial. We find no error.
We do not disturb a trial court’s decision regarding the admission of rebuttal testimony absent an abuse of discretion. People v Humphreys, 221 Mich App 443, 446; 561 NW2d 868 (1997). We review questions of law, and constitutional questions, de novo. Swafford, 483 Mich at 7; People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). We also review de novo questions whether a defendant was denied a fair trial or deprived of liberty without due process of law. See Schumacher, 276 Mich App at 176 (due process claim).
MRE 803(21) is a hearsay exception that allows admission of evidence of a person’s reputation regarding character among associates or in the community. Accordingly, there is no hearsay basis for reversing the trial court’s admission of the testimony in question.
Further, once the defendant presents testimony or other evidence that he or she has a good character trait, the defendant has opened the door; the prosecutor may then walk through it, armed with contrary evidence, on rebuttal, and the fact that the contrary evidence is damaging to the defense does not equate with error. Lukity, 460 Mich at 498-499. A prosecutor is fully entitled to challenge a defendant’s evidence of good character, either on cross-examination or through extrinsic evidence in rebuttal. People v Bouchee, 400 Mich 253, 262; 253 NW2d 626 (1977). Here defendant opened the door. Accordingly, the trial court did not abuse its discretion by allowing the rebuttal testimony.
Defendant’s argument that the prosecution should have presented the testimony regarding his bad reputation in his former church community in its case-in-chief lacks merit. Defendant had not yet opened the door on that issue. And that evidence was not specific and definite enough for the prosecution to have admitted it as evidence of other crimes, wrongs, or acts under MRE 404(b).
Finally, regarding this issue, defendant argues that the prosecution should have disclosed the highly in flammatory reputation evidence before the last day of trial. This argument lacks merit. Defendant cannot have been oblivious to the fact that if he introduced evidence of good character, the prosecutor might rebut it. Given this knowledge, defendant could have brought a motion in limine, before trial, to test the admissibility of any contrary evidence to rebut his character evidence, and by failing to do so, ran the risk of such introduction. For these reasons, the trial court did not abuse its discretion by admitting the rebuttal evidence of defendant’s reputation or bad character.
Defendant also challenges the trial court’s refusal to allow defendant to use extrinsic evidence (testimony by his sister) to impeach a prior witness (the victims’ mother) and claims that this refusal deprived him of a fair trial. We disagree.
Evidentiaiy decisions are reviewed for an abuse of discretion. Lukity, 460 Mich at 488. Constitutional questions are reviewed de novo. LeBlanc, 465 Mich at 579.
The prosecution concedes that because prior inconsistent statements are not used to prove their truth (that is, are not used for a substantive purpose), but are used to impeach the credibility of the witness, they are not hearsay and are therefore admissible. But the prosecution argues that even if the testimony of defendant’s sister regarding alleged statements by the victims’ mother evidenced a prior inconsistent statement, to be used for a nonsubstantive purpose (to prove lack of credibility of the mother), the sister’s testimony is still inadmissible because it involved a collateral matter, citing People v Rosen, 136 Mich App 745, 758; 358 NW2d 584 (1984). This argument by the prosecution lacks merit.
Michigan common law does not define the scope of “collateral matters,” nor do our rules of evidence. Therefore, we repair to a dictionary definition. Because “collateral matter” is a legal term of art, we use a legal dictionary. Black’s Law Dictionary (8th ed) defines collateral matter as “[a]ny matter on which evidence could not have been introduced for a relevant purpose.” Under this definition, the proposed impeachment of the victims’ mother, by the later testimony of defendant’s sister, was not on a collateral matter because it was an issue in the case whether the victims’ mother had induced her daughters to perjure themselves by falsely accusing defendant.
A criminal defendant has both state and federal constitutional rights to present a defense, which rights include the right to call witnesses. Washington v Texas, 388 US 14, 19; 87 S Ct 1920; 18 L Ed 2d 1019 (1967); People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008), citing US Const, Am VI and Const 1963, art 1, § 20. The extrinsic evidence in question was testimony by defendant’s sister that the victims’ mother and father had expressed concern that the victims’ grandmother was spending her (the grandmother’s) inheritance on defendant. This evidence would have tended to support one of defendant’s defenses, namely, that the victims’ mother put her children up to falsely accusing defendant of statutory rape so that defendant would no longer be able to receive the largess of the grandmother. While implausible, this was one of defendant’s defenses, and he had a right to try to prove it. Yost, 278 Mich App at 379. Extrinsic evidence tending to prove his theory is not evidence on a collateral matter. Accordingly, this extrinsic evidence was admissible as a matter of law, and the trial court abused its discretion by excluding it.
The next question is whether the error was constitutional error or merely evidentiary error. We hold that the error was merely evidentiary error that did not rise to the level of a constitutional deprivation. Defendant was able to present the defense in question by cross-examining the victims’ mother and father. Defendant was not totally precluded from presenting this defense because there was testimony showing, first, that the grandmother had inherited $500,000 and, second, that she was spending substantial sums on defendant. Accordingly, defendant was free to argue to the jury that he was falsely accused, at the behest of the victims’ mother, out of financial motives. The exclusion of the extrinsic impeachment evidence was merely evidentiary error. The evidentiary error of excluding the extrinsic evidence was harmless in light of the strong evidence that defendant did repeatedly rape his victims.
Finally, defendant asserts that he suffered a deprivation of his liberty without due process of law under the state and federal constitutions because three offense variables were misscored and therefore he was sentenced on the basis of inaccurate information. We disagree.
Constitutional questions are reviewed de novo. LeBlanc, 465 Mich at 579. Questions whether a defendant was deprived of liberty without due process of law are reviewed de novo. See Schumacher, 276 Mich App at 176. This Court reviews a trial court’s scoring decision under the sentencing guidelines “ ‘to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.’ ” People v Wilson, 265 Mich App 386, 397; 695 NW2d 351 (2005) (citation omitted). A trial court’s scoring decision “for which there is any evidence in support will be upheld.” People v Endres, 269 Mich App 414, 417; 711 NW2d 398 (2006). This Court reviews “de novo as a question of law the interpretation of the statutory sentencing guidelines.” Id. An appellate court must affirm minimum sentences that are within the recommended guidelines range, except when there is an error in scoring the sentencing guidelines or inaccurate information was relied on in determining the sentence. MCL 769.34(10); People v Kimble, 470 Mich 305, 310-311; 684 NW2d 669 (2004).
For offense variable (OV) 8, if a victim was asported to another place, or situation, of greater danger, the sentencing court assigns 15 points. MCL 777.38(l)(a). “Asportation” is not defined in the sentencing guidelines statutes. People v Spanke, 254 Mich App 642, 647; 658 NW2d 504 (2003). But it does not require the use of force. Id.
Defendant took one of his victims to a trailer on his property, where he raped her. Defendant also took one of his victims onto a tree stand, where he sexually assaulted her. Finally, defendant took one of his victims riding on a dirt bike, far away from the house, where he again assaulted her.
The trailer, the tree stand, and the dirt-bike destination are all places or situations of greater danger because they are places where others were less likely to see defendant committing crimes. Given this evidence, the trial court’s scoring decision on OV 8 is upheld. Id. at 647-648.
Next, OV 10 was assessed at 15 points for exploitation of a victim’s vulnerability because defendant groomed his victims. MCL 777.40(l)(a) requires assessment of 15 points if “[p]redatory conduct was involved.” The statute defines “predatory conduct” to mean “preoffense conduct directed at a victim for the primary purpose of victimization.” MCL 777.40(3)(a).
People v Cannon, 481 Mich 152, 161-162; 749 NW2d 257 (2008), provided a three-part test for predatory conduct:
(1) Did the offender engage in conduct before the commission of the offense?
(2) Was this conduct directed at one or more specific victims who suffered from a readily apparent susceptibility to injury, physical restraint, persuasion, or temptation?
(3) Was the victimization the offender’s primary purpose for engaging in the preoffense conduct?
If the court can answer all these questions affirmatively, then it may properly assess 15 points for OV 10 because the offender engaged in predatory conduct.
Here the victims testified about numerous sexual assaults going on for a very long time before disclosure. Accordingly, there was evidence that defendant engaged in preoffense conduct.
Second, defendant engaged in “grooming.” Grooming refers to less intrusive and less highly sexualized forms of sexual touching, done for the purpose of desensitizing the victim to future sexual contact. Defendant’s grooming was directed at his victims and not at anyone else. Moreover, defendant’s victims, his adoptive grandchildren, suffered from a readily apparent susceptibility to injury and persuasion because of their tender age and his authority over them as a grandparent.
Third, the grooming behavior by defendant was, as the trial court found, for victimization. There was evidence that the purpose of grooming was to desensitize the victims to the impropriety of the sexual contact, in order to escalate it over time. By beginning with milder forms of sexual contact, and then progressing to more intense sexual contact and penetration, defendant demonstrated that his intent and purpose were to victimize the complainants. Thus, there was, at the least, some evidence to support the trial court’s scoring decision. Therefore, the trial court’s scoring decision on OV 10 is affirmed. See Endres, 269 Mich App at 417.
Finally, defendant argues that the trial court incorrectly assessed 10 points for OV 19 (covering, in part, interference with the administration of justice). This score was given because defendant told his victims not to disclose his acts or he would go to jail. Defendant does not deny the statements. Rather, he argues that he stated “an obvious fact” and the statements were “not even a threat.” Defendant’s arguments lack merit.
MCL 777.49 governs OV 19 and allows for 10 points to be assessed when the “offender otherwise interfered with or attempted to interfere with the administration of justice.” The phrase “interfered with or attempted to interfere with the administration of justice” is broad. People v Barbee, 470 Mich 283, 286; 681 NW2d 348 (2004). It includes acts constituting obstruction of justice, but is not limited to those acts. Id.
Defendant’s argument that he did not threaten the victims is, even if it were true, beside the point. A threat is not required. MCL 777.49. And defendant’s argument that he was merely stating a fact to his victims rings hollow. Defendant’s unrebutted statements to his victims have an unmistakable meaning: Do not tell anyone. Defendant’s admonitions to his victims were a clear and obvious attempt by him to diminish his victims’ willingness and ability to obtain justice.
In conclusion, (1) the admission of prior acts evidence did not deny defendant a fair trial, (2) the exclusion of a defense expert did not deny defendant his right to present a defense, (3) defendant was not deprived of a fair trial when the prosecution was permitted to delete a witness from its witness list before trial and was not required to lend assistance to the defendant in locating that witness, (4) defendant was not deprived of a fair trial when the trial court denied his motion to adjourn the trial, (5) defendant was not deprived of a fair trial when the trial court denied his request for the missing witness instruction, (6) the admission of rebuttal evidence regarding defendant’s character did not deprive defendant of a fair trial, (7) while the trial court erred by denying defendant the opportunity to impeach a witness with extrinsic evidence that was not on a collateral matter, the error was evidentiary only and was harmless, and (8) defendant’s due process rights were not violated by the trial court’s scoring of offense variables for purposes of sentencing because there was evidence supporting the scores.
Affirmed.
Compare People v Althoff, 280 Mich App 524, 535; 760 NW2d 764 (2008) (“Eveiy word or phrase of a statute should be accorded its plain and ordinary meaning, but, if the legislative intent cannot be determined from the statute itself, dictionary definitions may be consulted.”).
When considering “a legal term of art, resort to a legal dictionary to determine its meaning is appropriate.” People v Jones, 467 Mich 301, 304-305; 651 NW2d 906 (2002).
Even if the error had been constitutional error, it would have been nonstructural. A structural error is a fundamental constitutional error that defies analysis by harmless error standards. People v Miller, 482 Mich 540, 556; 759 NW2d 850 (2008), quoting Neder v United States, 527 US 1, 7; 119 S Ct 1827; 144 L Ed 2d 35 (1999). For nonstructural constitutional error, the standard for determining whether reversal is required is whether the error was harmless beyond a reasonable doubt. People v Cannes, 460 Mich 750, 774; 597 NW2d 130 (1999). Here, any constitutional error was harmless beyond a reasonable doubt. The defense in question was so implausible that no reasonable jury would have found it persuasive. Any doubt resulting from this particular defense would have been unreasonable (and thus not an adequate basis for an acquittal). What is more, the evidence presented by the prosecution was very strong. The three complainants testified specifically and convincingly about being repeatedly subjected to statutory rape by defendant. Thus, any constitutional error resulting from excluding the proposed extrinsic impeachment evidence was harmless beyond a reasonable doubt. | [
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North, J.
In the recorder’s court of Detroit defendant was charged with being guilty of an act of gross indecency with one Harry Victor. Defendant pleaded not guilty, and upon trial by the court without a jury was convicted and sentenced. Leave having been granted, he has appealed.
Defendant demanded a trial by jury. As this case was about to be reached for trial in the recorder’s court, there was some discussion about the case between defendant’s counsel ■ and the assistant prosecuting attorney together with the police officer who had worked in connection with the case. The result seems to have been that they concluded that the charge .against defendant might well be reduced to one of assault and battery and disposed of accordingly. There was no promise of leniency, but the prosecutor seemingly indicated that he would suggest to the trial court that the charge against defendant be so reduced. Thereupon defendant, in writing signed by Mm and filed in the cause, waived trial by jury; and the trial proceeded before the court without a jury. The complaining witness, Harry Victor, testified in support of the charge made against defendant; and defendant’s counsel began cross-examination of the complaining witness. At this point the following occurred. Prosecuting Attorney: “After hearing the testimony, I want to make a recommendation here in court that an included offense be taken into consideration, assault and battery, in this case.” (Addressing Mr.Curran, defendant’s counsel) “What do you say to that?” Mr. Curran: “I will waive all the other testimony, your Honor,” and thereupon Curran inquired of the prosecutor whether he would rest the case. The reply was: “I can’t rest until there is some reason for it.” Defendant’s counsel then said: “Well, I just want to put in the defendant’s story. ’ ’
Thereupon defendant as a witness in his own behalf gave his version of his associations with the complaining witness, and disavowed having committed the offense charged. After hearing the testimony offered, the trial court, notwithstanding the recommendation made by the prosecutor, found defendant guilty of the offense charged.
Under the first question presented by appellant on this appeal he states: “Defendant contends that the verdict was against the law and the evidence because the prosecution did not sustain the burden of proof beyond a reasonable doubt.” As bearing upon this phase of the appeal, the record before us contains only an agreed statement as to the substance of the testimony of the complaining witness wMch, if true, rendered defendant guilty; and also on the other hand the substance of the testimony of the defendant wherein he disavowed guilt. There is nothing in this record which would justify our holding that the trial judge was in error in finding defendant guilty under the testimony. The witnesses testified in the presence of the trial judge whose duty it was to pass upon the credibility of each of these two witnesses whose testimony was in conflict. The record contains nothing which would constitute a justification for holding that the trial judge in his decision was in error as a matter of fact or a matter of law.
We are mindful it is urged in behalf of defendant that in view of the manner in which the case was submitted to the trial judge defendant did not fully and exhaustively cross-examine the complaining witness. However, defendant’s counsel acquiesced in the interruption of his cross-examination of the complaining witness, and made no claim to the trial court, as he now asserts, that if he had cross-examined more fully he could have developed facts and circumstances which would have tended to impair the credibility of the complaining witness. Since defendant’s counsel failed to ask in the trial court to be permitted to further cross-examine, he may not in that respect now be heard to complain. Defendant was not wrongfully deprived of the benefit of cross-examination.
Notwithstanding defendant’s intimation to the contrary, he was not wrongfully deprived of a trial by jury. With his counsel in court, defendant in writing waived trial by jury. While it is true this waiver followed the conference or conversation with the prosecutor in which the prosecutor stated or at least intimated he would recommend to the court that the case be considered as one charging assault and battery, no fraud, deception, or trick was perpetrated in that particular. Instead the prosecutor did say to the court: “I want to make a recommendation here in court that an included offense be taken into consideration, assault and battery, in this case.” The trial judge did not know nor was he advised by either the prosecutor or defendant’s counsel of the previous conference or conversation between counsel and the officer; and, evidently, after having heard the testimony, the court did not see fit to follow the suggestion of the prosecutor. It is stipulated that no promise of leniency was made. The only fair construction to be drawn from the record is that defendant and his counsel concluded they would submit the matter to the court without a jury. The result was not what they had hoped, but that alone is not a ground for reversal.
From our review of the record it does not appear that there was any prejudicial error in the trial of the case or a miscarriage of justice, nor was there error in the denial of defendant’s motion for a new trial based upon the matters hereinbefore considered. The case is affirmed and remanded for execution of sentence.
Starr, C. J., and Butjzel, Sharpe, Boyles, and Reid, JJ., concurred. Bushnell, J., did not sit. The late Justice Wiest took no part in the decision of this case.
See Act No. 328, § 338, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-338, Stat. Ann. §28.570).—Reporter.
See 3 Comp. Laws 1929, § 17354 (Stat. Ann. § 28.1096).—Re-PORTER. | [
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Steere, J.
Plaintiff herein, hereafter called relator, seeks by mandamus an order requiring defendant to vacate his order refusing extension of time in which to perfect an appeal in a chancery suit entitled Bert G. Atherton v. Colin A. McDonald, Michigan Guaranty Corporation et al., begun and heard in the circuit court of Saginaw county. Decision in that suit was adverse to the defense, and, considering itself aggrieved, relator proposed to appeal. Its headquarters and principal office were in Grand Rapids, where its attorneys were located, while plaintiff’s attorneys were in Saginaw. A final decree in harmony with the announced decision was settled in form by agreement of counsel, signed by the court and filed on or about July 13,1925. A reply, dated July 22, 1925, by plaintiff’s counsel at Saginaw to a letter from petitioner’s counsel in Grand Rapids, received by the latter July 23, 1925, contained the following:
“Yours of the 21st instant received and I have filed the decree filed (signed?) by Judge S— today. I take it that you contemplate going higher, and if so, if you want more time, send me stipulation and I will sign and return, although I think you have no show for success should you appeal. You are far from home, and if there are any courtesies that you desire, let me know.”
After learning the decree had been filed, petitioner’s counsel seasonably, and within the 20-day period, filed its claim of appeal, paid the statutory appeal fee to the clerk of the court, ordered a transcript of the testimony from the court stenographer, secured and filed his certificate and obtained an order from the judge who heard the suit, the record of which reads as follows:
“It appearing in said cause that a claim of appeal in writing has been filed by the defendant, Michigan Guaranty Corporation, the proper fee paid to the clerk and the certificate of the stenographer, stating that a transcript of the testimony has been ordered and that the same will be furnished as soon as possible, has been filed and the court being fully advised in the premises:
“It is ordered, adjudged and decreed that the time within which to settle a case, perfect an appeal, etc., in this cause be and is hereby extended sixty (60) days from and after August 1, 1925.”
This extension of time expired October 1, 1925, and, failing to timely receive the ordered transcript of testimony, relator’s counsel wrote the stenographer on September 25, 1925, asking about it, but receiving no reply again wrote him on October 6th making like inquiry to which the stenographer replied on October 9th that it would be impossible to furnish the same for a week or ten days thereafter. He did not, however, furnish it until October 28, 1925, when petitioner’s counsel promptly proceeded to prepare the case for settlement, but did not apply for a second order extending the' time, relying, as he claimed, on the written assurance of plaintiff’s counsel that the same would be stipulated when he had ready his draft of the case for settlement. On November 12, 1925, he received a letter from plaintiff’s counsel demanding payment of the amount decreed, and on the 13th replied explaining the situation, advising he would soon have his proposed case ready to settle, called attention to the letter of July 22d offering to stipulate for additional time if wanted, and inclosed a prepared stipu lation which he asked plaintiff’s counsel to sign. To this he received a reply expressing a willingness of plaintiff’s counsel to accommodate in matters' not detrimental to the substantial rights of his client, but claiming the court’s jurisdiction to settle the case was lost and a consequent unwillingness to then stipulate away a substantial right of his client. Some correspondence between counsel followed resulting in refusal of plaintiff’s counsel to consent to any extension of time and a further demand for payment of the amount decreed.
Defendant thereupon furnished an appeal bond in the penal sum of $5,000 and made a motion for its approval with extension of time in which to perfect its appeal, which was noticed for hearing on December 21, 1925. It was on that date called up and argued before the judge who had presided at the hearing, who orally announced a denial of the motion but no order of denial by him was ever recorded. -A further motion was thereupon prepared by relator’s counsel asking for a change in such ruling based on his affidavit and the files and records of the case. The holiday season, followed by resignation on January 1, 1926, of the judge who heard the suit, prevented the motion being heard by him. Eelator’s counsel then made a motion of similar import and noticed it for hearing on January 18, 1926, before defendant herein, who had succeeded to the position of the retiring judge. After hearing counsel defendant entered two orders, the first denying the original motion brought before his predecessor on December 21, 1925, by an order nunc pro tunc as of that date, and the second denying the later motion for approval of the appeal bond and extension of time, noticed for hearing before him on January 18, 1926.
His reasons for denying an extension of time to settle the case, as we gather from defendant’s return, are, briefly stated, inexcusable delay on the part of relator’s counsel in preparing and presenting his proposed case for settlement and—
“the time expiring October 1st, relator should have made a motion asking for an order extending the time or obtained a stipulation to that end before October 1st, but doing nothing save write the stenographer, asking when the transcript would be furnished, its right of appeal was lost.”
There certainly was no delay due to neglect of relator’s counsel up to October 1, 1925. He had within the 20-day period taken every prescribed step in the process of appeal essential to preserve his right thereto, including extension of time to that date based on certificate of the court’s stenographer. The court’s jurisdiction to further extend the time was thereby continued in full force, whether application was made therefor before or after October 1st. While relator was entitled as a matter of right on ex parte application to the first and only extension of time granted, the case thereafter stood in process of appeal with jurisdiction in the circuit judge to, in his discretion, allow further time within statutory limitations on good cause shown after notice to the adverse party, or by written stipulation of counsel. Those requisites alike apply to obtaining a second order of extension whether application be made therefor before or after the preceding extension has expired.
In apparent justification of his theory of culpable delay on the part of relator’s counsel, defendant adverts to lack of merit in the defense, and the fact that “all the testimony given did not consume but part of one day.” The merits of the case are foreign to this proceeding. No question was raised as to amount or sufficiency of the appeal bond tendered, which would secure payment of plaintiff’s decree with interest and costs if relator’s! appeal proved to be without merit. The belated transcript of testimony finally furnished by the stenographer on October 28, 1925, contained 81 typewritten pages. The stenographer was an officer of the court and had certified officially within the 20-day period following the decree that relator had ordered a transcript of the testimony and it would “be furnished as soon as possible.” Relator’s counsel could not proceed with preparation of the case for settlement without it, and if there was any unnecessary delay prior to October 28th it was imputable to an officer of the court, over whom relator had no control. We are not advised, however, what orders had been given for transcripts of testimony in cases preceding this, nor to what extent that officer’s time was demanded for his daily court duties in the Saginaw circuit court, but he had officially certified that this testimony would be furnished as soon as possible, and presumptively it was.
Relator’s attorney showed that, on receipt of the transcript, he at once proceeded to prepare the case for settlement without applying to the court for further extension of time, in reliance on the written assurance of opposing counsel that if he wanted more time a stipulation would be signed when sent to him. Time taken in good faith to communicate with opposing counsel on the subject, and send him a stipulation for signature as the latter had suggested, was not under the circumstances an unreasonable delay. When finally fully disillusioned relator’s counsel applied to the court for relief with reasonable dispatch. While neither an oral agreement or written offer to stipulate for extension, standing alone, can technically be taken by the court as legal ground for extending time, it may, if relied upon in good faith by counsel not otherwise delinquent, be a moving consideration for the court to give opportunity to present a case for settlement beyond the first extension of time, when delay beyond the time first granted is primarily imputable to an officer of the court.
Under the circumstances disclosed here, we cannot agree with defendant’s conclusion that “the delay and laches of relator in not obtaining an order for extension of time between October 1st and November 13, 1925, is not explained or accounted for.” The “some two months delay,” upon which defendant dwells as unreasonable, was exceeded by nearly seven months in Walker v. Wayne Circuit Judge, 226 Mich. 393, where a decree dismissing the case was entered October 31, 1922. Within the 20-day period time for settlement of the case was extended for 60 days and no application was made to the court for further time until September 25, 1923, the main excuse for such delay being reliance on an oral stipulation with opposing counsel for extension of time, which the court there not only properly refused to recognize as valid for maintenance of any legal right, but refused to consider it as a mitigating circumstance in the exercise of a reasonable discretion. This was held an abuse of discretion.
Here relator’s first motion for extension of time was apparently noticed on opposing counsel about December 14, 1925, and the subject was diligently pursued by subsequent proceedings before the out-going and in-coming judges. Under the attending circumstances, no laches can be attributed to relator while those proceedings were pending. When and before it reached defendant relator’s proposed case for settlement was all ready, with exception of a few exhibits in possession' of opposing counsel.
We find no occasion to countenance any imputations of unfairness or lack of honest purpose on the part of counsel for either side. The differences between them in this case may well be attributed to an honest misunderstanding. We are impressed, however, that the court and plaintiff’s counsel inclined to unduly stress the significance of the expiration of time at the end of the 80-day extension before ah application for further time was made. Both emphasize the fact that relator’s right of appeal was absolutely lost and seem to entertain the view that further extension of time would deprive plaintiff in that case of a substantial right which previously existed. • In his argument along that line defendant’s counsel (here) cites Hannaford v. Hannaford, 227 Mich. 410; Bilakos v. Robbins-Grayer, 228 Mich. 655; Safety Tag Patents Co. v. Michigan Tag Co., 230 Mich. 84; City of Lansing v. Eaton Circuit Judge, 232 Mich. 690; all of which simply sustain the well-settled proposition that unless extension of time is first asked within the 20-day period"* jurisdiction of the court to settle the case is lost. The Lansing Case also holds that where conflicting testimony leaves an element of doubt as to whether an order extending the time was asked for and orally granted within the 20-day limit, that question should be resolved in favor of the appellant.
If a stipulation for extension of time made after expiration of 20-day limit in which there had been no extension was valid, it would of course stipulate away a substantial right of the appellee; but when the court’s jurisdiction is once lost it cannot be restored by stipulation of counsel or even an order of the court.
We are of opinion this case is analogous in controlling features to and governed by Walker v. Wayne Circuit Judge, supra.
The writ prayed for will issue, with costs to relator.
Bird, C. J., and Sharpe, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Snow, J., did not sit. | [
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Sharpe, J.
An automobile driven by plaintiff’s husband, and in which she was riding, and one driven by the defendant came into collision at the intersection of Logan street and Giddings avenue in the city of Grand Rapids. Plaintiff was injured. Alleging that the collision was caused by defendant’s negligence, she brings this action to recover damages therefor, and. also for damage done to the car in which she was riding, the claim for which had been assigned to her by her husband. The issue as to the defendant’s negligence and that of her husband in driving his car was submitted to the jury. Defendant had verdict. Plaintiff reviews the judgment entered thereon by writ of error.
The assignments relate to the charge of the court, refusal to give requests preferred by plaintiff’s counsel, and the denial of plaintiff’s motion for a new trial based on such errors, and the claim that the verdict was against the great weight of the evidence.
Plaintiff’s husband testified that he first saw defendant’s car when “not over 20 feet; possibly less” from it. Defendant testified that he first saw the other car when “not over 10 or 12 feet away.” Plaintiff’s husband claims that he reached the intersection first, while defendant insists the two cars reached the intersection at “substantially the same time.” Defendant’s car was on plaintiff’s right, and had the right of way at the intersection.
The relative duties of the drivers of motor vehicles when approaching an intersection of streets under section 4817, 1 Comp. Laws 1915, as amended by Act No. 368, Pub. Acts 1921 (Comp. Laws Supp'. 1922, § 4817), and under Act No. 96, Pub. Acts 1923 (in which the one approaching on the driver’s right is given the right of way), were plainly pointed out by Mr. Justice Clark in Pline v. Parsons, 231 Mich. 466, cited with approval in Arvo v. Delta Hardware Co., 231 Mich. 488. We have read the charge in this case with care. In our opinion it very clearly defined the duties of both drivers and properly submitted to the jury the question of their respective acts of negligence.
Counsel have the right to prefer requests to charge, and, when they state rules of law applicable to the facts presented by the proofs, they are indeed helpful to the trial court and should be given, or the substance of them included in the charge as given. It will, we think, be admitted that the instructions of the court, following each other in an orderly way and with, perhaps, some reference to the facts to which each particular instruction may apply, are much more helpful to the jury than if requests, stating rules of abstract law, sound in principle and having some application to the facts, be read to them. If the trial court fairly embodies the requests preferred in his instructions, error will not' lie upon the refusal to give the requests. In re Hewitt’s Estate, 199 Mich. 240.
Plaintiff’s third request reads as follows:
“It is the duty of the driver of an automobile on approaching a street intersection to bring his car under control and by that it is meant to bring it to such a rate of speed and under such management that he will be able to avoid endangering the safety of others, who may be lawfully upon such intersection, or who may reasonably be expected to be upon such intersection, and if the defendant failed to bring his car under control upon approaching the intersection in question, he is guilty of negligence.”
The court charged:
“It is the duty of the driver of an automobile on approaching a street intersection to have his car under control as well as every other place upon the highway; and by that is meant to have the automobile under such management and control that the driver will be able to avoid endangering his own safety or the safety of others who may be lawfully upon the public highway; and if either of the parties to this suit, or the drivers of the cars involved - in this collision, failed to have their cars or automobiles under such control upon approaching and crossing or entering into the intersection in question here, he will be guilty of negligence. If the defendant had reasonable opportunity to see that plaintiff was crossing the intersection in question' or was about to cross the intersection, and see that a collision might be expected, then he would not be justified in proceeding to cross merely because he was coming from the right and had the right of way; he would have no right to persist in exercising his statutory privilege if by so doing he was negligently endangering the safety or property of the plaintiff.”
The court was here defining the duty of both drivers on approaching the intersection. The use of the words “as well as every other place upon the highway” was unfortunate. The control under which a car should be kept is dependent, somewhat, if not altogether, upon the surroundings, and greater care should be exercised at an intersection where other cars may be met than on some other parts of the highway. Plaintiff’s counsel insist that attention was called to this by the use of the words, “or who may reasonably be expected to be upon such intersection,” in his request. Later in the charge the court said:
“The law also provides, in traversing intersections, that the person operating a motor vehicle shall have it under control and operate it at such a speed as is reasonable and proper, having regard to the traffic on such highways and the safety of the public. * * * These parties in this case are both held to the same rule on reasonable and proper care and control of their automobiles, considering the traffic and character of the corner and the safety to themselves and the safety to others, with the exception that the man on the right has the legal right of way, as I have explained; but that does not militate or mitigate against the necessity of exercising reasonable and proper care and having the automobile under proper control.”
We are impressed that the relative rights and duties of the parties were presented to the jury in a manner they could not but well understand.
The other assignments relating to the requests and the charge as given have received careful consideration. It will serve no useful purpose to quote from them. In our opinion all applicable requests were fairly covered by the charge a's given.
The trial court concluded, when denying the motion for a new trial, that the verdict was not against the great weight of the evidence. We are' so impressed. It is apparent that the jury found that the collision was due to the negligent manner in which both cars were driven at the time they reached the intersection. There was evidence to support such a finding, and we do not feel justified in disturbing it.
The judgment is affirmed.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Smith, J.
Leave was granted from a decision of the Court of Appeals which affirmed the trial-court conviction of defendant. The issues in this Court are two: (1) Did the trial court commit reversible error when it consolidated for trial two separate informations charging joint violators with the same crime, where each was arrested, arraigned, examined, and informed against at different times; and- (2) Did the trial court abuse its discretion in denying a motion for mistrial when it learned that an -assistant prosecuting attorney had engaged in. a brief conversation with two jurors who asked on what day the trial might be concluded?
- As appears from the Court of Appeals opinion, People v. Schram, 1 Mich App 279, a certain tavern was robbed on September 26, 1958. Defendant’s codefendant in trial proceedings, Mark Brock, was implicated and complaint issued January 13, 1959. He was arrested January 20th, examined on January 27th, and the information filed against him February 19, 1959. Both Brock and Schram were charged with the crime of assault with intent to rob while armed.
Defendant-appellant Schram-, whos.e involvement-in the crime either was not known or fully understood until after Brock had become implicated, had a complaint issued against Mm January 27th, was arrested on a separate warrant January 30th, examined February 18th, and informed on separate information also filed February 19, 1959. On the day of trial, the assistant prosecutor moved .to consolidate the cases for trial and over objections the motion was granted.
Objection was made by codefendant .Brock’s attorney and concurred in by defendant Schram’s attorney., . There was no claim by either defense attorney'that prejudice would result from the consolidation. It was not claimed either that the prosecution’s motion to consolidate came as* a surprise, hence both counsel declined the trial court’s offer of adjournment. The defendant’s motion was based on the contention that the trial court had no authority, either under statutory or common law, to consolidate the cases “even though it may be claimed both defendants were involved in this same transaction.” In ruling on the motion, the trial judge observed that the. witnesses in each case were identical.
As to the other issue in the case, that of the conversation between the assistant prosecutor and two jurors about when the case might end, the following account of what took place is quoted from the record. It should be pointed out, for purposes of identification, that in the following colloquy Mr. Taylor was defendant Schram’s attorney, Mr. Kent the assistant prosecuting attorney, and Mr. Montante the attorney for defendant Brock.
“Mr. Taylor: If it please the court, this is a little difficult to put. I am trying to be as much a gentleman as possible. There is no intimation or inference of maliciousness in this or any other aspect, but I must make this statement. T left the courtroom at noon. Í believe two' of the jurors were sitting out in the hallway having a conversation with Mr. Kent. I don’t know what the. conversation was. I didn’t overhear any part of it except for' two words, and one was the name mentioned by Mr. Kent of the witness on the stand at the time of adjournment and the other name was the name of my client.
“I don’t know what was said or any of the context of the conversation. I-will profess to knowing nothing.
“I am merely pointing out this is. improper procedure to engage in discussions—
“The Court: Were they two jurors sitting on.this case! Were they two jurors sitting on this case!”
Hereinafter, the assistant prosecutor, Mr. Kent, reported the conversation with the jurors as follows:
• “Mr. Kent: Of course, that calls for an explana-:, tion. I do not disagree with Mr. Taylor except with his use of the word ‘improper’. I think, of course, a court would be entitled to' an explanation and Mr. Taylor and Mr. Montante.
“After the adjournment, I walked out the side door which leads' into the hallway from the jury room which is directly adjoining this courtroom. . As I walked out, I believe one of the jurors whose'name is Mr. Schultz and I don’t recall the name of the other juror — I think it was Juror No; 6 — it is-No. 1, Maude Vickroy. -
“Mr. Schultz said, as he pointed to me, as' we were all walking out with our hats and coats heading down the hall, he said, ‘It is all’ your fault that we áre being -kept over.’ ' •
“I believe he said it in a joking manner. I said, ‘Well, what do you mean!’ ■
“He said, ‘Well, you know that we will have to' probably stay over our term.’
“I said, ‘Yes; I am very sorry. I know the judge explained to you perhaps you might have to.' He explained it on the voir dire and asked if there were any jurors whose terms would expire Friday, whether or not they were willing to sit before the jury was empaneled.’
“He said, ‘Do you think it will be over Monday or will it run into Tuesday?’
“I said, ‘We, frankly, are through. We have Mr. Seevers here and we are going to ask a few more, questions. Then somebody would be testifying about Schram and then we will have arguments. I think that we will be able to complete the case by Monday.’ * * *
“That was the complete sum total of our conversation.” (Emphasis supplied.)
After Mr. Kent’s report, the following colloquy and questioning of jurors toolc place:
“The Court: Do you think the statements were prejudicial to your client?
“Mr. Taylor: I think any conversation, any discussion in the case including mentioning the facts what they are going to bring or prove—
“The Court: I want to interrogate the jurors.
“Mr. Taylor: It may be prejudicial.
“The Court: If a juror spoke to you, why didn’t you walk away?
“I don’t think the statement, to me, is anything that is prejudicial or detrimental, just a question about the time. There wasn’t anything about the case.
“I want to question the jurors. I would rather it be done, as far as I am concerned.
“Mr. Taylor: I make a motion for a mistrial on what happened.
“Mr. Kent: You are placing the court in a position of making a mistrial.
“The Court: Well, you have made a motion for a mistrial. I will interrogate the jurors.
“Mr. Taylor: I make a motion for a mistrial.
“Mr. Kent: I think it is juror Nos. 1 and 5 — I think you ought to interrogate just the two of them. .
■' ‘‘The Court: Wait a minute. Just .step back and let me question the two juror's. I tbink it is juror No. 1 and No. 5.
“(Thereupon, the jurors were called into the chambers in the presence of counsel and defendants. )
“The Court: We understand both of you jurors had a conversation with Mr. Kent this noon? .
“Mr. Schultz: Yes.
“The Court: And you are Mr. Schultz, is that your name?
“Mr. Schultz: Yes.
“The Court: Did you have a conversation with Mr. Kent whether or not you would have to stay over a day?
“Mr. Schultz: Yes.
“The Court: And was that the only question?
“Mr. Schultz: The time, sir.
“The Court: Was there anything that transpired between you and Mr. Kent which was either prejudicial to the prosecution or prejudicial to the defense?
“Mr. Schultz: Nothing as to the case. We were remarking about the time, sir.
“The Court: Worrying about the time?
“Mr. Schultz: Yes.
“The Court: You feel that notwithstanding your conversation, you could give these defendants a fair and just and impartial trial?
“Mr. Schultz: Yes.
“The Court: Is it likewise true of you?
“Mrs. Vickroy: Yes.
“The Court: Was there anything that transpired during your lunch that would sway you one way or the other?
“Maude Vickroy: No.
“The Court: Are you sure?
“Maude Vickroy: Yes.
“The Court: And you, ma’am—
“Maude Vickroy: There was nothing pertaining to the case.
“The Court: Nothing in the lawsuit, only as far as the time because your term was ending!
“Maude Vickroy: Right.
“The Court: You are positive anything that transpired between you and Mr. Kent will not affect the defense or the prosecution!
“Maude Vickroy: No.
“Mr. Schultz: No.
“The Court: Are you sure of that!
“Mr. Schultz: Yes.
“Maude Vickroy: Yes.
“The Court: All right, call the balance of the jury hack. The motion is denied.” (Emphasis supplied. )
First, we take up defendant’s argument that the consolidation or joinder of his case with that of Brock was without legal authority. “If,” he says, “it [the court] acted without any authority, then its actions are beyond the jurisdiction of the court and therefore void.” Defendant cites that statute providing for separation of trials when defendants are jointly indicted: “When 2 or more defendants shall be jointly indicted for any criminal offense, they shall he tried separately or jointly, in the discretion of the court.” CL 1948, § 768.5 (Stat Ann 1954 Rev § 28.1028). Defendant argues that because the cited statute contemplates only a situation where two or more defendants are jointly indicted, then joinder or consolidation where two or more defendants are separately indicted is forbidden, in the absence of express statutory authority.
Defendant’s contention that joinder, under the circumstances, is a jurisdictional matter cannot he sustained. In People v. Foster, 261 Mich 247, where one of the questions was whether, after the statute cited above was amended to its present form, a previous order of separation could be set aside and defendants tried jointly, this Court held that such was a statutory procedural right which the legislature could abrogate. We think the point should be well taken that under circumstances herein presented the matter is not one of jurisdiction but of procedure. There is nothing in the record to suggest that, as to place of crime, type of crime, age of parties, and other ingredients of jurisdiction required in such proceeding, the court did not have the power to try the cases. See People v. Aguinaldo, 3 Cal App 2d 254 (39 P2d 505), and People v. Van Bibber, 96 Cal App 2d 273 (215 P2d 106). The California courts have also held that such consolidations, not being jurisdictional, must be shown to prejudice substantial rights of a defendant before reversal can be obtained. People v. Shepherd, 14 Cal App 2d 513 (58 P2d 970); People v. Johns, 69 Cal App 2d 737 (160 P2d 102); and People v. Hidalgo, 195 Cal App 2d 843 (16 Cal Rptr 312).
A similar, though not exact, situation occurred in Stuart v. People (1879), 42 Mich 255, which was cited in the Court of Appeals decision. In Stuart, at page 258, the essential facts and relevant decisional point appear as follows:
“It appeared that the complaint and warrant under which the respondent was arrested and bound over charged him alone with the commission of the offense. Three others had been complained of, examined, and held for the same offense. The information filed charged the four jointly. Error is alleged that respondent having been arrested and held for trial on a separate complaint and warrant, he could not be charged jointly with others in the information.
“Where parties have been arrested upon separate complaints and warrants, and held for trial for a joint offense, we are of opinion that they may be jointly charged in' the information, and so tried, unless they claim separate trials under the statute.” (Emphasis supplied.)
The statute referred to in the Stuart Case provided that a person jointly charged with a felony had an absolute right to a separate trial if he so demanded it. The statute was amended many years ago to its present form as quoted above and provides that the trial court has discretion as to whether or not persons jointly indicted may be tried separately or jointly. The point is that in the Stuart Case the question of whether the defendant could be charged with others in the information and tried was clearly treated as a procedural matter. Similar to the Court’s later treatment of the matter is People v. Foster, cited above.
In holding that the rights of the accused are fully protected, this Court said in Stuart v. People, supra, (pp 259, 260) that:
“He,is not put upon trial for another or different offense- than the one upon which he was arrested and examined, or waived examination. He is put upon trial for the same offense, with others who, in like manner, it has been determined, jointly participated with him in the commission of the offense, and if the evidence introduced on the trial, shows they acted together, they have been deprived of no legal right, and have therefore no just cause of complaint.”
We would reiterate that principle here.
We would add to this holding that, in the absence of a showing of prejudice to substantial rights of the accused, reversal is not indicated. This is the import of the discussion in the Stuart Case quoted immediately above, and is also consonant with People v. Shepherd, supra, and other California cases cited therewith. We need only point out, therefore, that in the instant case there was no claim of' prejudice to substantial rights of the defendant, and we find none, hence, we conclude as to this point, the Court of Appeals decision was correct.
Secondly, we consider defendant’s contention that the trial court abused its discretion in denying the motion for mistrial when it learned that an assistant prosecuting attorney had engaged in a brief conversation with two jurors who asked on what day the trial might be concluded. Defendant’s major contention is that People v. Kangas, 366 Mich 201, is applicable in the instant factual situation. In Kangas, after the jury had retired to deliberate, the sheriff responded to a knock on the jury room door, there was a conversation, and the sheriff went to see the trial judge in private. The judge then (p 205), “instructed the sheriff to return to the jury room, where he talked with the jurors. Shortly thereafter, the judge called the jurors into open court and instructed the jury. In his instructions, the judge acknowledged that he had given them instructions through the sheriff and stated he wanted to clear up any points concerning instructions. He did not advise the jury to disregard the instructions given them by the sheriff. The jury left the courtroom for further deliberations and subsequently came back with a manslaughter verdict.” On appeal, this Court held that the communication constituted grounds for a new trial, regardless of prejudice.
Kangas is clearly distinguishable from the instant case. In Kangas, the jury had retired for deliberation; the sheriff was present in the jury room after deliberation had begun; and the judge, through the sheriff, and out of the presence of the parties gave instructions to the jury. It is clear from the facts in' the Kangas Case and the authorities cited therein that the basic error which this Court sought to correct was the improper communication with the jury after it had retired for deliberations. The impropriety was in that the communication was an instruction made by the sheriff in the privacy of the jury room, off the record and outside the hearing of counsel. Where ■ the communication was made in the sanctum itself, under such circumstances, the Court would not and did not stop to inquire if prejudice had resulted. For as this Court, in Kangas (p 207), quoted with special emphasis from People v. Knapp, 42 Mich 267 (36 Am Rep 438),
“ ‘The presence of a single other person in the room is an intrusion upon this privacy and confidence [of the jury], and tends to defeat the purpose for tohich they are sent out.’ ”
Added to the special emphasis of the quote from the Knapp Case was the double emphasis given this feature of the case by the presence in Kangas of this language from People v. Chambers, 279 Mich 73, 80:
“ ‘It may be the acts or conduct of the officer had nothing to do with the deliberations of the jury or the conclusions which they arrived at. He (the court officer) had no business in the jury room. If it was necessary to furnish water to the jurors, it could have been furnished and he could have remained outside. * * * It is important .that the officer be not guilty of any misconduct'that could have influenced the jury, and that his conduct not furnish any ground for suspicion the jury was being tampered with or might be tampered with or was deliberating in his presence.’ ” (Emphasis supplied.)
Kangas, then presented a different aspect of this vexing problem. .....
What we have in this Schram case is not an instruction, the contents of which was never fully-reported, delivered by a court officer to the jury in the jury room while the jury was deliberating (as in Kangas), but a brief conversation, fully reported, about when the proofs in the case might be concluded. Under such circumstances as herein presented we do not reverse unless there is a showing of prejudice.
This case is comparable to People v. Nick, 360 Mich 219, and cases cited therein. In the Nick Case, a prosecution for statutory rape, defendant moved for mistrial on the grounds that the jury was allowed to separate, presenting opportunities for contact with persons other than jurors, and the two women jurors were present in the corridor during recess when an unidentified woman made a remark concerning the guilt of the defendant. The Court held (p 227):
“In a case of this nature it has been repeatedly recognized by this Court that to justify the granting of a new trial ‘error must appear affirmatively.’ People v. Whittemore, 230 Mich 435. Prejudice must be shown, or facts clearly establishing the inference that it occurred from what was said or done. A mere possibility is not sufficient.”
The Court further stated (pp 227, 228):
“In People v. Pizzino, 313 Mich 97, defendant Pizzino was convicted of second-degree murder. •His motion for a new trial was denied, and he appealed. Among other issues raised was the claim, set forth in an affidavit filed in support of the motion for a new trial, that the deputy sheriff in charge .of the jury had said in a voice loud enough to be heard by several of the jurors that if he ‘were on .the jury it would only take him 5 minutes to convict the defendants.’ Commenting thereon -it was said by Chief Justice Starr, who wrote the unanimous opinion of the Court affirming the conviction, that (p 108):
“ ‘Defendant Pizzino claims that this remark by the officer constituted reversible error, but there is no claim or showing that it influenced any member of the jury who heard it. The remark was highly improper, but in the absence of a showing that defendant was prejudiced thereby, it did not constitute sufficient ground for granting a new trial.’ ”
We apply the rule set forth in the Nich Case that prejudice must be shown, or facts clearly establishing the inference that it occurred from what was said or done, before we will reverse. What does the record show? First, that the conversation was brief; that it occurred before deliberations; that it took place not covertly but in the public corridor; that it had nothing to do with the proofs in the case but was about when the case might come to an end; that the conversation was initiated by one of the jurors asking the assistant prosecutor when the case might end; that upon careful questioning of the jurors by the trial judge the elements of the. conversation as reported by the assistant prosecutor were confirmed and the jurors required to answer to the question of whether or not they had been prejudiced by the brief though improper encounter.
There is one other element of the conversation about which there has been some question. This element has to do with that part of the conversation in which the assistant prosecutor explained to the juror when he would finish his part of the case and about when the whole case might be completed (all of which appears fully above). We do not believe that in the report of the assistant prosecutor’s brief response there is any showing of prejudice or facts clearly establishing an inference of prej udice. In addition, what affirmatively appears are emphatic disclaimers of prejudice by the 2 jurors. Although we reassert that there was impropriety on the part of the assistant prosecutor in making what brief reply that he did, we, for the reasons given, find no cause for reversal.
The decision of the Court of Appeals is affirmed.
O’Hara and Adams, JJ., concurred with Smith, J.
Kelly, J.
I am in complete agreement with Justice Smith’s opinion hut disagree with statements in the dissenting opinion that:
(1) Accuse the trial judge of improper conduct in questioning the jury, and
(2) “Three conclusions are possible. 1. The jurors did not understand the trial judge’s inquiry. 2. The jurors were lying about what transpired between them and the prosecutor. 3. The prosecutor was lying. Whichever conclusion one chooses, a mistrial should have been granted.”
For a long time prior to our 1965 opinion in Bunda v. Hardwick, 376 Mich 640, and the 1966 case of DeCorte v. New York Central Railroad Co., 377 Mich 317, this Court has been on guard against prejudice caused by incidents occurring during trial and has reversed convictions upon a showing of prejudice. See cases listed in People v. Schram, 1 Mich App 279, 285.
In 1919 this Court stated: “ ‘Much must he left to the sound sense and good judgment of the trial judge in such a case.’ ” And in 1960 we re-emphasized the important role of the trial court by stating:
“The judge presiding throughout the trial and observing the occurrences in the courtroom and elsewhere was in a better position to determine the probability of any conduct on the part of jurors or others prejudicial to the rights of the defendant than is this Court. Generally speaking, the granting or denying of a new trial in any case is a matter within the discretion of the trial court, and the action taken in that respect should not be disturbed on appeal unless it appears that such discretion has been improperly exercised.”
Nothing in this record calls for us to doubt the ability or integrity of the trial judge, or the intelligence or integrity of the jury, or to conclude that the prosecutor lied to the court.
I agree with the concluding sentences in the unanimous opinion of the appellate court that:
“There is nothing in the record to show an abuse of discretion in denying the motion for a mistrial.
“There being no reversible error the decision is affirmed.”
Dethmers, J., concurred with Kelly, J.
People v. Levey, 206 Mich 129, 131.
People v. Nick, 360 Mich 219, 224. | [
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Sharpe, J.
Emma C. Clark, long a resident of Adrian, died on June 27, 1923. She left a will, executed on May 7th of that year. After its probate, Hattie E. Lambie presented a claim against the estate for personal services rendered by her to the deceased during the last 13 years of her life. The record does not disclose the result in probate court. On appeal to the circuit, the claim was allowed by the jury at $6,600, to which $440 interest was added. Judgment was entered thereon. A motion for a new trial was denied. The case is here for review on writ of error.
Plaintiff’s right to recover. The record discloses that in 1910 three sisters, Mrs. Knapp, Mrs. Stowell, and Mrs. Clark, were the owners by inheritance of certain property in the city of Adrian, known as the “Colonial Home.” It consisted of a large rooming and boarding house and the grounds pertaining thereto. They were then living in it. Mrs. Knapp’s husband lived there also. The other sisters were widows. Mrs. Knapp was at that time 72 years of age, Mrs. Clark 63, and Mrs. Stowell between these ages. The claimant is the daughter of Mr. Knapp by a former wife. Her husband died in 1894. For several years prior to 1910 she had been employed as manager in one of the cottages of the Industrial Home for Girls in that city. In 1910 she left this employment and entered upon service at the Colonial Home, which continued uninterruptedly until Mrs. Clark’s death in 1923. It appears that she at first had charge of the home under Mrs. Knapp’s management, and later had full supervision herself. It is her claim that she entered upon such service on the understanding or agreement with the three sisters that, for the service to be rendered in managing the home, and for the personal attention she should give to these elderly ladies, she should receive this property on the death of the survivor of them.
Mrs. Stowell died in 1912. Before her death, she conveyed her interest in the home property to Mrs. Clark. Mrs. Knapp died in 1923, a few months before Mrs. Clark. Her husband had passed away several years earlier. She left a will, in which she bequeathed her interest in the home property to Mrs. Clark for life, then to claimant for her life, with power of sale and certain provisions not here important.
The claim herein is founded on the contract, performance by claimant, failure of Mrs. Clark to comply with its terms, reliance thereon by claimant, and inability to secure specific performance, thus permitting her recovery against the estate for the reasonable value of the services rendered the deceased.
Counsel for the estate insist that there was no sufficient proof that such a contract was made to justify the submission of the question to the jury. Claimant’s brother, Frank L. Knapp, who lived in Denver, testified that he visited his relatives in Adrian “on an average of twice a year;” that on one occasion he complimented his stepmother and Mrs. Clark on the manner in which the home was being conducted, and that the former said “that it was all to be Hattie’s” (referring to claimant) When they were gone, that she was to have it “for compensation for the work and the care and attention and general supervision that my sister did,” and that Mrs. Clark acquiesced in what was said. He testified to other conversations of like import.
Edmund Childs, long a resident of Adrian, testified that “about twelve years ago,” and while he and his wife were living at the Colonial Home, Mrs. Clark said to him “that she and Mrs. Knapp had induced Hattie, Mrs. Lambie, to leave her position and come there, for which she was to have a moderate weekly stipend, and when the ladies died, she was to have the Colonial Home. That was to pay for her services.” On cross-examination, when asked as to whether it was not said that claimant was receiving a weekly salary, he testified:
“I wouldn’t say a weekly salary, a weekly allowance; that and the Colonial Home, when the old ladies were through with it, was to be her compensation, so Mrs. Clark and Mrs. Knapp told me.”
There was other testimony of like import. Counsel for the estate concede that the relations of the parties were not such as to raise any presumption that the services rendered were gratuitous. The proof submitted was sufficient in our opinion to carry the question to the jury as to whether it was performed under a contract as claimed. Van Fleet v. Van Fleet, 50 Mich. 1; Dickerson v. Dickerson, 50 Mich. 37; In re Williams’ Estate, 106 Mich. 490; Sammon v. Wood, 107 Mich. 506; Shane v. Shearsmith’s Estate, 137 Mich. 32; Luizzi v. Brady’s Estate, 140 Mich. 73; In re Knox’s Estate, 220 Mich. 469; Kaufman v. Kauf man’s Estate, 230 Mich. 388; Riggs v. Riggs’ Estate, 232 Mich. 579.
That claimant performed services for deceased, relying thereon, is fairly established. That deceased failed to perform, and that claimant may not have specific performance, by reason of the statute, is not questioned. It follows that she is entitled to recover the reasonable value of the service rendered the deceased.
Value of services. It is insisted that there was no sufficient proof of the value of the service rendered to carry the question to'the jury. Anna Schwartz, who worked at the home most of the time from March, 1919, until Mrs. Clark’s death, testified as to the character of the personal service rendered deceased by claimant. On being asked what it was worth, she answered: “Well, I should think about $10 a week, during all the time I was there.” Cornelia Holmes, a practical nurse, who attended Mrs. Knapp in her last illness, testified also as to the character of the service rendered by claimant, and, on being asked “what it was reasonably worth a week,” answered: “Well, I should think, it would be reasonably worth from five to twenty dollars.” Clearly, there was sufficient proof to warrant the submission of this question to the jury.
Excessive verdict. The claim that the verdict is excessive received careful consideration by the trial court in denying the motion for a new trial. He reviewed the evidence relating thereto at some length, and concluded that the verdict was not so clearly excessive as would justify him in setting it aside. We are likewise so impressed. We are at all times loath to interfere with the determination reached by a jury in its award of damages, and do so only when satisfied from the amount allowed that the jury either did not follow the instructions of the court or were influenced by some consideration other than the evidence submitted to them.
Claimant received but a small weekly allowance during the 13 years she was at the home. Mrs. Clark, just prior to her coining, had suffered from a stroke of paralysis, and was somewhat crippled thereafter. Dr. Emily Stark, who boarded at the home and attended Mrs. Clark professionally, testified at length as to her physical condition and the necessity of some one giving her personal attention. She stated that, while Mrs. Clark did not need nursing all the time, “it was necessary for some one to be with her in the way of doing the labor for her.”
May McElroy, who lived at the home from 1908 until May, 1922, also testified at length as to the character of the service rendered by claimant. She said:
“Mrs. Clark was frail at the time I went there, and this frailty grew, and especially during the later years of my being there this frailty and this inability to care for herself grew very rapidly. In other words, she failed rapidly, both mentally and physically. * * * It is my impression that during all the time I was there, she demanded a good deal of attention, and as years went on she grew feebler and feebler bodily, and grew more and more dependent and more and more exacting.”
The care given her by claimant was thus summed up by the witness:
“She gave her the attention that a good daughter would give to an old and feeble mother.”
There was proof of service rendered, due to the weakness of Mrs. Clark, which an ordinary employee would have been likely to have refused to perform. The value of such services is difficult to estimate. Several witnesses, conversant with the condition of Mrs. Clark and the attention given her by claimant, expressed an opinion of what they were reasonably worth. The verdict of the jury is within the limits of such estimates, and we cannot say, as a matter of law, that it is so grossly excessive that we should set it aside.
Value of the property. Error is assigned upon the admission of proof of the value of the Colonial Home and the instruction of the court that the jury might consider it in determining the value of the service rendered. The instruction carefully limited consideration of this proof to the value of Mrs. Clark’s intérest in the property, and permitted its consideration only in case the jury should find that the services were rendered under the contract. There was no error in the admission of this evidence or in the instruction as given. Riggs v. Riggs’ Estate, supra, and cases cited.
Kutzner v. Stuart, 215 Mich. 270, relied on by defendant, is easily distinguished. In that case the personal property, the value of which plaintiff sought to have considered as fixing a basis of recovery, was to pass to plaintiff only in the event that the defendant disposed of the farm during the period for which plaintiff had the right to operate it, and no such disposition of it had been made. In the case before us, under the contract the interest of Mrs. Clark was to pass to plaintiff upon her death, an event which had arrived, before the claim in this case was filed. In that case it was said that if plaintiff had been seeking to recover under a quantum, meruit the contract would have been admissible if it was helpful in estimating the damages.
The other assignments have been examined, but do not seem to merit discussion.
The judgment is affirmed.
Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Bird, C. J., did not sit. | [
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Riley, C.J.
We granted leave to appeal in these two cases, consolidated for purposes of this appeal, to decide whether the highway exception to governmental immunity imposes upon the state or the counties the duty to: (1) install street lighting, and (2) remove, or cause to be removed, vegetation growing on private property which obstructs the view of motorists approaching an intersection.
With regard to the state and the counties, the liability created by the highway exception statute extends "only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of [sic] the improved portion of the highway designed for vehicular travel.” MCL 691.1402; MSA 3.996(102). We conclude that the above quoted language refers only to the traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel. We conclude, further, that neither street lighting nor vegetation growing on private property adjacent to a road can be classified as being part of the improved portion of the highway designed for vehicular travel. Therefore, we hold that § 2 is inapplicable to the Department of Transportation and the Wayne County Road Commission. Accordingly, we reverse the decision of the Court of Appeals in Scheurman and affirm the decision of the Court of Appeals in Prokop.
I. FACTS AND PROCEEDINGS
A. SCHEURMAN v DEPARTMENT OF TRANSPORTATION
On May 15, 1983, at approximately 10:15 p.m., the plaintiff’s decedent, Geraldine Rogocki, was killed when she was struck by a car as she at tempted to cross Eight Mile Road. While most of Eight Mile Road has streetlights, that part of the highway where the accident occurred is not illuminated. At the accident scene, Eight Mile Road is a state trunk line, M-102, located in the City of Detroit.
Although M-102 is a state trunk line, the City of Detroit has installed all of the street lighting along that part of the highway within its city limits. Furthermore, Detroit owns all the streetlights and poles along M-102 and pays for the electricity used by the lights. However, the city must get approval from the Department of Transportation before it can install streetlights along state trunk lines.
The plaintiff sued in the Court of Claims, complaining that the lack of adequate street lighting along Eight Mile Road constituted a defect in the road for which the Department of Transportation should be held liable.
After extended discovery, on May 1, 1986, the court held an evidentiary hearing, and on June 20, 1986, granted summary disposition in favor of the defendant. On appeal, the Court of Appeals re versed the decision of the Court of Claims, holding that street lighting "would be an integral part of the improved portion of the highway . . . .” The defendant sought leave to appeal, which we granted on April 7, 1989.
B. PROKOP v WAYNE COUNTY ROAD COMMISSION
On July 14, 1982, plaintiff Lisa Marie Prokop was riding her bicycle in a westerly direction on the sidewalk along Schoolcraft Road, a state trunk line. Schoolcraft comes to a "T-type” intersection with Columbia Street, a county road. At the southeast corner of the intersection, there was a six-foot hedge growing on private property. As the plaintiff approached the Columbia Street intersection, the traffic light displayed green, and she proceeded into the intersection.
At the same time, a van traveling northbound on Columbia Street approached the Schoolcraft intersection. As the plaintiff was crossing Columbia Street, the van began to turn east onto School-craft and struck the plaintiff, causing her injury. The visibility of both the plaintiff and the driver of the van was obstructed by the hedge to the extent that neither one saw the other until it was too late to avoid the collision.
The plaintiff sued the Wayne County Road Commission, alleging that it failed to keep Columbia Street in a condition reasonably safe for travel by allowing the hedge to exist, thus obscuring the vision of traffic approaching the intersection. On July 30, 1986, the circuit court granted the defendant’s motion for summary disposition. The Court of Appeals agreed that the road commission had no duty to trim, or cause the property owner to trim, the hedge. Accordingly, it affirmed the decision of the circuit court. The plaintiff sought leave to appeal, which we granted on April 7, 1989.
II. ANALYSIS
A
We begin our analysis by revisiting over two decades of Michigan case law and legislative history on the matter of governmental immunity. In Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), this Court abolished common-law governmental immunity. Responding to the Williams decision, the Legislature enacted the governmental immunity negligence act in 1964. However, § 7 was found to exceed the scope of the title of the act and was declared an unconstitutionally en acted provision. Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971). This infirmity was corrected by the Legislature when it enacted 1970 PA 155, § 7(1), which granted immunity from tort liability to all governmental agencies when engaged in governmental functions. With the legislative decree of immunity on the books, this Court abrogated common-law sovereign immunity in Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976). Finally, in McCummings v Hurley Medical Ctr, 433 Mich 404, 411; 446 NW2d 114 (1989), we observed that the current statute grants immunity only under circumstances defined by the Legislature, and that sovereign or governmental immunity is not a " 'characteristic of government.’ ”
In recent years, this Court has sought to interpret the current immunity statute and its exceptions in a manner consistent with the intent of the Legislature. In doing so, we have consistently held that the immunity conferred upon governmental agencies is a " 'broad grant of immunity’ with 'four narrowly drawn statutory exceptions.’ ” Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 618; 363 NW2d 641 (1984) (Brickley, J., participating). The above quoted language is cited with approval in Reardon v Dep’t of Mental Health, 430 Mich 398, 411; 424 NW2d 248 (1988) (Brickley, J., participating), and also in Hadfield v Oakland Co Drain Comm’r, 430 Mich 139, 146; 422 NW2d 205 (1988).
Thus, we again apply the rule of strict statutory construction when interpreting an exception to the immunity act. Reardon, Hadfield, and Ross, supra. See also 3 Sands, Sutherland Statutory Construction (4th ed), § 62.01, p 113. It is against this backdrop that we turn to the statutory exception in question.
B
The cases before us today center on the highway exception statute, MCL 691.1402; MSA 3.996(102). The origin of the statute is the enactment of 1879 PA 244; 1 How Stat 1442, which imposed liability upon municipalities "in favor of any person 'sustaining bodily injury upon any of the public highways or streets in the state, by reason of neglect to keep such public highways or streets, and all bridges, cross-walks. and culverts on the same in good repair, and in a condition reasonably safe and fit for travel ....’” Roy v Dep’t of Transportation, 428 Mich 330, 336-337; 408 NW2d 783 (1987). With the passage of 1887 PA 264; 3 How Stat 1446c, the Legislature amended the statute and expanded its scope of liability to include sidewalks. Id. at 337.
However, when the Legislature codified governmental immunity in 1964, it speciñcally reduced the purview of the highway exception statute. Section 2 of the governmental immunity act expressly excludes the state and the counties from liability for "sidewalks, crosswalks or any other installation outside of [sic] the improved portion of the highway designed for vehicular travel.” MCL 691.1402; MSA 3.996(102). Furthermore, the duty of the state and the counties created under § 2, "shall extend only to the improved portion of the highway designed for vehicular travel . . . .”
The relevant portion of § 2 provides:_
Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. . . . The duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.
The highway exception waives the absolute immunity of governmental units with regard to defective highways under their jurisdiction. As discussed above in part ii(a), we regard §2 as a narrowly drawn exception to a broad grant of immunity. As such, there must be strict compliance with the conditions and restrictions of the statute. 39 Am Jur 2d, Highways, Streets, and Bridges, §§ 343-344, pp 725-726. No action may be maintained under the highway exception unless it is clearly within the scope and meaning of the statute. Id. at § 346, p 729.
As noted, the duty imposed by the statute upon the state and county road commissions is restricted to the "improved portion of the highway designed for vehicular travel . . . .” In Roy, supra at 339, we observed that the limited scope of the term "highway” found in § 2 parallels the common understanding of the word. We are in accord with the conclusion reached in Roy. Therefore, we hold today that the phrase "improved portion of the highway designed for vehicular travel” refers only to the traveled portion, paved or unpaved, of the roadbed actually designed for public vehicular travel. Roy, supra.
The purpose of the highway exception is not to place upon the state or the counties an unrealistic duty to ensure that travel upon the highways will always be safe. Looking to the language of the statute, we discern that the true intent of the Legislature is to impose a duty to keep the physical portion of the traveled roadbed in reasonable repair.
We now turn our attention to the present actions to determine whether the failure of the state to install lighting or the failure of Wayne County to remove the obstruction complained of fall within the purview of § 2.
1. SCHEURMAN v DEPARTMENT OF TRANSPORTATION
The plaintiff argues that liability arises under the highway exception statute because the failure to provide street lighting along that part of Eight Mile Road where the accident occurred constitutes a breach of the duty to maintain the highway in a reasonably safe manner for public travel. The defendant counters with the argument that street lighting falls outside the "improved portion of the highway designed for vehicular travel,” and that MCL 247.651b; MSA 9.1097(lb) excludes the state from the duty to provide street lighting along roads that are not freeways. While, as defendant argues, the fact that the Legislature, in §651b, specifically exempted the state from having to provide lighting along state trunk lines is perhaps some evidence that street lighting is not required in order to make a highway "reasonably safe and convenient for public travel,” we do not believe this to be dispositive of the question. Nor do we believe that it is the issue here. We are persuaded that in this case the issue is whether § 2 is inapplicable because the duty it creates to make roads safe, and the liability for the failure to do so, extends only to the improved portion of the highway designed for vehicular travel.
Here, the plaintiff concedes that streetlights are not a part of the improved portion of a highway per se. However, the duty of the state imposed under § 2 extends only to the "improved portion of the highway designed for vehicular travel” as defined above. Consequently, compliance with the conditions and restrictions of the highway exception statute negates the inclusion of street lighting within the duty of the state because the physical structure of the lights falls outside the traveled or paved portion of the roadbed actually designed for public vehicular travel. See Alpert v Ann Arbor, 172 Mich App 223; 431 NW2d 467 (1988); Zyskowski v Habelmann (On Remand), 169 Mich App 98; 425 NW2d 711 (1988).
For the above reasons, we hold that the duties of the state and the counties under § 2 do not include the installation and maintenance of street lighting. Thus, the defendant is not subject to liability for the alleged lack of adequate street lighting along Eight Mile Road.
2. PROKOP v WAYNE COUNTY ROAD COMMISSION
In Prokop, the plaintiff argues that by not removing a six-foot hedge, located on private property, that obstructed the view of travelers, the county failed to maintain the intersection in a condition "reasonably safe and fit for public travel . . . .” We disagree. While plaintiff relies on Cryderman v Soo Line R Co, 78 Mich App 465; 260 NW2d 135 (1977), lv den 402 Mich 867 (1978), we are persuaded that the Cryderman Court’s affirmance of the liability of the road commission pursuant to § 2 was erroneous.
Cryderman involved a wrongful death action arising out of a car/train accident. The Court upheld an instruction that the jury could consider the failure of the Chippewa County Road Commis sion to enter into a "clear vision area” agreement with the railroad as constituting a breach of duty owed to the plaintiffs. The Court opined that the duty imposed under § 2 extended "to clear vision areas which lie beyond the improved portions of the highway proper.” Cryderman at 476.
This broad view of the highway exception statute is contrary to our decision today, as well as to our decision in Roy, supra. Therefore, we modify the decision of the Court of Appeals in Cryderman to the extent that the duty of the county road commission imposed under § 2 extends only to the traveled portion of the roadbed actually designed for public vehicular travel. Thus, the argument that Cryderman calls for the imposition of liability upon the Wayne County Road Commission is without merit.
Plaintiff also alleges that the county has a duty to enforce MCL 239.5; MSA 9.525, which provides in part:
It shall be the duty of every owner, occupant or person having charge of lands in this state, to cut or trim, or cause to be cut or trimmed, to a height not exceeding four and one-half feet and a width not exceeding three feet, all hedges or hedge rows along or on the public highway or adjacent thereto in each and every year ....
Again, we disagree. Clearly, the statutory duty to trim hedges is imposed upon the person owning or occupying the property, not upon the county. Similarly, we reject the claim that the county has a duty to enforce a comparable Redford Township ordinance. We agree with the general rule that governmental agencies are not liable for the failure to investigate or enforce an ordinance violation. Randall v Delta Charter Twp, 121 Mich App 26, 31; 328 NW2d 562 (1982). See also 57 Am Jur 2d, Municipal, County, School, and State Tort Liability, § 211, p 223; anno: Liability of municipality or other governmental unit for failure to provide police protection, 46 ALR3d 1084.
In sum, the indisputable fact is that the hedge in question was on private property and had no connection with the roadbed or public travel thereon. While the hedge may have interfered with compass-range vision within the intersection, it cannot be categorized as a defective condition upon "the improved portion of the highway designed for vehicular travel . . . .” See anno: Governmental liability for failure to reduce vegetation obscuring view at railroad crossing or at street or highway intersection, 22 ALR4th 624, § 7, pp 643-647. Therefore, as with our decision today in Scheurman, supra, strict compliance with the conditions and restrictions of the statute precludes the inclusion of the obstruction complained of within the § 2 duty of Wayne County. Thus, liability may not be imposed upon the defendant for a hedge, located on private property, which obstructed the view of travelers.
III. CONCLUSION
The duty imposed upon the state and the counties by the Legislature pursuant to § 2 of the governmental immunity act extends "only to the improved portion of the highway designed for vehicular travel . . . Here, the respective defendants are the Michigan Department of Transportation and the Wayne County Board of Road Commissioners. In both cases, the installations complained of cannot be regarded as being part of the improved portion of the highway designed for vehicular travel. Neither the alleged lack of adequate street lighting nor vegetation growing on private property has any connection to the traveled portion of the roadbed designed for public vehicular traffic. Therefore, we conclude that the highway exception statute is inapplicable to the defendants in the matters before us today.
Accordingly, we reverse the decision of the Court of Appeals in Scheurman, and we affirm the decision of the Court of Appeals in Prokop.
Cavanagh and Griffin, JJ., concurred with Riley, C.J.
MCL 691.1402; MSA 3.996(102).
MCL 691.1401 et seq.; MSA 3.996(101) et seq.
The affidavit of Toufic N. Jildeh, an Electrical Utilities Unit Leader for the Michigan Department of Transportation, states "[t]hat the State of Michigan does not initiate the location of street lights on Eastbound Eight Mile Road between Van Dyke and Groesbeck [the site of the accident], but instead such initiation is within the control of the local municipality [Detroit].”
Again, the affidavit of Mr. Jildeh states "[t]hat the installation of street lighting, the maintenance of street lighting, and the payment of same, for Eastbound Eight Mile Road between Van Dyke and Groesbeck is the responsibility of the local municipality and such local municipality pays for the installation of lightpoles, light fixtures and for the electricity used.”
At the evidentiary hearing, Mr. James Tripp, a Detroit Public Lighting Department supervising inspector of overhead lines and safety, testified that to his knowledge, the Department of Transportation had never denied the City of Detroit a requested permit for street lighting.
Scheurman v Dep’t of Transportation, 162 Mich App 774, 779; 413 NW2d 496 (1987). However, the Court went on to state that its "holding does not address the merits of whether street lighting was actually required at the accident site.” Id. at 783.
432 Mich 890 (1989).
There is testimony that the traffic light was malfunctioning at the time of the accident. The driver of the vehicle that struck the plaintiff also claims that he had a green light.
Plaintiff also sued the Department of Transportation in the Court of Claims, which suit was consolidated with the present action before the circuit court and is still pending. Further, plaintiff sued Redford Township, where the accident occurred, in the Wayne Circuit Court. The court granted summary disposition, with prejudice, in favor of the township. Finally, plaintiff reached an out-of-court settlement with both the property owner and the driver of the van.
Prokop v Wayne Co Bd of Road Comm’rs, 168 Mich App 119; 424 NW2d 10 (1988).
432 Mich 890 (1989).
The decision of the Williams Court was limited to the abolition of governmental immunity for municipalities. It did not abolish the sovereign immunity of the state, counties, townships, or villages. See Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 604-605; 363 NW2d 641 (1984).
MCL 691.1401 et seq.; MSA 3.996(101) et seq., effective July 1, 1965. This act has been amended by 1970 PA 155, 1978 PA 141, and 1986 PA 175.
MCL 691.1407; MSA 3.996(107).
The four statutory exceptions are MCL 691.1402; MSA 3.996(102), MCL 691.1405; MSA 3.996(105), MCL 691.1406; MSA 3.996(106), MCL 691.1413; MSA 3.996(113).
In this opinion, we withhold comment on the subject of common-law exceptions to immunity.
In Hadfield, supra at 146, Justice Brickley quoted Ross, supra at 618, for the proposition that the immunity conferred upon governmental agencies is a " 'broad grant of immunity’ with 'four narrowly drawn exceptions.’ ”
However, today Justice Brickley apparently reverses his view regarding the interpretation of the statutory exceptions by writing "this Court should not employ a canon of strict construction to negate the fundamental legislative purpose underlying the highway exception to immunity.” Post, p 640.
The fact is that this Court’s uniform interpretation of the statutory exceptions reflects the Legislature’s desire to "make uniform the liability of ” and "to define and limit” governmental liability. (Emphasis added.) Preamble to the governmental immunity act, MCL 691.1401 et seq.; MSA 3.996(101) et seq. Thus, for us to hold otherwise would create uncertainty regarding the interpretation of the statutory exceptions to the act.
Finally, we reject the dissent’s interpretation of the "legislative purpose underlying the highway exception” statute. This point is addressed in part irb), p 631, and in n 22.
[T]he rule [of strict construction] has been most emphatically stated and regularly applied in cases where it is asserted that a statute makes the government amenable to suit. . . .
[T]he standard of liability is strictly construed even under statutes which expressly impose liability on the sovereign.
We acknowledge Endykiewicz v State Hwy Comm, 414 Mich 377; 324 NW2d 755 (1982), which states that the highway exception, § 2, need not be strictly construed as being in derogation of the common law after the state abrogated its common-law immunity. However, this case is distinguishable.
Endykiewicz interprets the damages sentence of the statute which provides, "[a]ny person sustaining bodily injury or damage to his property . . . may recover the damages suffered by him . . . .” The Court said that this sentence was ambiguous, therefore, it should not be interpreted to limit a plaintiff’s damages. Thus, the dispositive issue in the case centered on the amount of damages after liability had attached. It offers no insight as to the interpretation of the standard of liability imposed upon a governmental unit. Id. at 382.
Furthermore, "our purpose is to ascertain and effectuate the legislative intent at the time it passed the act.” Reardon, supra at 407. At the time the governmental immunity act became effective, the state was still shielded by sovereign immunity. Thus, the Court should have strictly construed the immunity act. To this limited extent, we modify Endykiewicz.
The dissent chooses to ignore this unequivocal limitation upon the liability of the state and the counties when it writes, "nothing in the wording of § 2 suggests an intent to limit the liability of governmental agencies to only certain factors that are necessary to safely maintain the improved portion of the highway.” Post, p 639.
The statute clearly indicates more than an intent to limit the liability of the state and the counties, it expressly provides that state and county liability "shall extend only to the improved portion of the highway designed for vehicular travel . . . .” (Emphasis added.)
Another seemingly obvious reason to construe the highway exception narrowly is the language of the specific § 2 phrase that we are interpreting today. The Legislature provided that the duty of the state and the counties "shall extend only to . . . .” (Emphasis added.) Common sense suggests that the "only” implies that the Legislature intended the duty to be strictly construed.
See also 40 CJS, Highways, § 249, p 279, “The liability of the state is limited by the terms of the statute under which it is assumed and by the conditions prescribed, the statutes being subject to strict construction.”
Here again, the dissent argues that our interpretation departs from the statutory language:
In a departure from the language of the statute, the majority apparently draws the line between the surface of the improved portion and, on the other hand, conditions affecting travel on the surface of the improved portion originating separately from the roadbed itself. The majority’s analysis immunizing state or county authorities from liability for any unsafe conditions, the source of which do not originate on the surface of the roadbed, contravenes the plain meaning of the statutory language of § 2 and its principal import. [Post, p 642.]
The fact is that it is the dissent that departs from the language of the statute. The dissent would have us believe that § 2 provides liability for any conditions affecting travel on the surface of the improved portion of the highway, regardless of whether those conditions originate on the surface of the roadbed or not. Such an -expansive interpretation of liability goes far beyond that which § 2 provides. The statute provides that liability "shall extend only to the improved portion of the highway,” it does not contemplate "conditions, the source of which do not originate on the surface of the roadbed . . . .”
MCL 247.651b; MSA 9.1097(lb) provides in part:
Maintaining 0f state trunk line highways shall include, by way of enumeration but not limitation, snow removal, street cleaning and drainage, seal coating, patching and ordinary repairs, erection and maintenance of traffic signs and markings, freeway lighting for traffic safety in cities and villages having a population of less than 30,000 and the trunk line share of the erection and maintenance of traffic signals, but shall not include street lighting, resurfacing, new curb and gutter structures for widening. On and after January 1, 1970, maintaining of state trunk line highways shall include all freeway lighting for traffic safety. [Emphasis added.]
The state still has a duty to maintain street lighting along freeways pursuant to MCL 247.651b; MSA 9.1097(lb).
See MCL 469.6; MSA 22.766.
The Court upheld the instruction notwithstanding its observation that ''[t]he procedure authorized by [MCL 469.6; MSA 22.766] does not impose a mandatory obligation on the part of railroad and public highway authorities to enter such agreements.” Cryderman at 475.
The Redford Township ordinance limits the height of shrubbery growth to two feet where it would constitute a hazard "to pedestrians, drivers of motor vehicles or other persons while engaged in the lawful use of the sidewalks, roads or streets . . .
Contrary to our decision today, the dissent would offer a greatly expanded interpretation of the highway exception statute. Furthermore, the dissent implies that any immunity currently enjoyed by the state and county highway authorities should be abolished and replaced with an ordinary negligence analysis by asserting "the law of negligence provides adequate safeguards against the imposition of unwarranted liability.” Post, p 650. This is an interpretation with which we cannot agree.
Section 2 is one of four statutory exceptions to the governmental immunity act. It is not a statute standing alone, but rather it is part of an entire legislative scheme that defines and limits the liability of our governmental agencies. As we said in Ross, supra at 618, this "evidences a clear legislative judgment that public and private tortfeasors should be treated differently.” The report of the California Law Commission illustrates this point:
"The problems involved in drawing standards for governmental liability and governmental immunity are of immense difficulty. Government cannot merely be liable as private persons are for public entities are fundamentally different from private persons. . . . Only public entities are required to build and maintain thousands of miles of streets, sidewalks and highways. Unlike many private persons, a public entity often cannot reduce its risk of potential liability by refusing to engage in a particular activity, for government must continue to govern and is required to furnish services that cannot be adequately provided by any other agency. ...” 4 California Law Revision Comm Reports, Recommendations & Studies, p 810 (1963). [Ross, supra at 618-619.]
It is for these reasons that we reject the notion that "the law of negligence provides adequate safeguards against the imposition of unwarranted liability.” In Michigan, the governmental immunity act is the vehicle that provides safeguards against unwarranted liability. Today, we again interpret § 2 in a manner consistent with the spirit of the act, and in a manner which adheres to the concerns addressed by the California Law Commission.
We acknowledge Tuttle v Dep’t of State Hwys, 397 Mich 44, 45-46; 243 NW2d 244 (1976), in which this Court found the defendant liable for a newly opened intersection that "was not 'reasonably safe and fit for travel’ by reason of inadequate signalization.” However, in concentrating solely on the specific facts of the case, the decision of the Court was predicated on the finding that the highway department failed to carry out its own work orders, which called for the installation of a traffic signal at the intersection, after it determined that the existing stop control was not sufficiently noticeable.
We note that the relevant part of the opinion only addresses the elements of duty, breach of duty, and proximate cause. Nowhere in the opinion does the Court interpret the highway exception statute. Nor does it discuss whether a traffic signal falls within the "improved portion of the highway designed for vehicular travel.”
Similarly, in Salvati v State Hwy Dep’t, 415 Mich 708; 330 NW2d 64 (1982), the plurality decision indicates a willingness by the Court to include the duty to post and maintain traffic signs within the highway exception statute. Again, however, neither of the two opinions, nor any of the cited cases within them, address the issue whether traffic signs fall within the "improved portion of the highway designed for vehicular travel.”
Notwithstanding our decision today, we feel it is inappropriate to express an opinion as to the validity of Tuttle or Salvati at this time. | [
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ORDER
We granted leave to appeal in this case on the question whether the usury statute, MCL 438.31; MSA 19.15(1), was applicable to the property settlement in the consent judgment of divorce entered in this case. We answer the question in the affirmative and order the interest rate on the unpaid principal in question in the instant case reduced to seven percent per annum.
The consent judgment of divorce entered in this case provided, inter alia, that the appellee would obtain sole possession of the marital home and that the appellant would have a lien interest of $28,700 in principal and nine percent simple interest that was due on the occurrence of one of three enumerated events:
a. Within three years from date of entry of Judgment.
b. Upon the death or remarriage of the [wife].
c. Upon the sale or refinancing of the home by the [wife].
The appellant subsequently brought a petition for enforcement of the judgment to recover the unpaid principal of $28,700 and interest due under the terms and conditions of the consent judgment of divorce. The trial court, premising its ruling on the Court of Appeals decision in the case of Farley v Fischer, 137 Mich App 668; 358 NW2d 34 (1984), found that the appellant could recover the amount of the principal, but no interest at all. In essence the trial court found that the consent judgment provided for a usurious rate of interest and, consistent with the Court of Appeals decision in Farley v Fischer, that MCL 438.32; MSA 19.15(2) barred the payment of any interest at all.
While we agree with the trial court that MCL 438.31; MSA 19.15(1) forbids the charging of the nine percent interest rate provided for in the consent judgment, we conclude that it is appropriate, in these circumstances, to amend the consent judgment to provide for the maximum amount of interest chargeable consistent with the usury law —seven percent per annum. The entry of a consent judgment which, in part, does violate the law must be corrected. Accordingly, pursuant to MCR 7.316(7), we order that the consent judgment be amended so as to reflect a rate of interest of seven percent per annum from the date of entry of the consent judgment, and we remand the case to the Macomb Circuit Court for further proceedings with regard to the calculation of the amount of money owed which is consistent with this order.
We do not retain jurisdiction. | [
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Brickley, J.
In this case we are asked once again to interpret and apply the notice provision of the workers’ compensation act, which tolls the statute of limitations pertaining to filing for bene fits, if the employer has received notice of injury, but has not reported the injury to the Bureau of Workers’ Compensation. MCL 418.381; MSA 17.237(381).
Facts
The facts giving rise to this action were aptly summarized by the wcab and are not in dispute:
Plaintiff was employed with defendant in the capacity of a janitor. During the winter months, this job required plaintiff to shovel coal for approximately two and one-half hours during each day for periods of 45 minutes to one hour at a time. Using an oversized shovel, plaintiff would shovel the coal from the coal bin into a wheelbarrow. Plaintiff testified that the wheelbarrow weighed approximately 500 pounds when full, and that he would push the wheelbarrow some 50 to 75 feet and dump the coal into two coal hoppers. The coal hoppers required between six and eight loads to fill. Plaintiff performed this activity just prior to leaving work each night at 1:00 a.m. during the winter months. The rest of plaintiff’s job duties were of the nature that required constant standing and walking.
Plaintiff testified that prior to January 1973 he had begun experiencing headaches on almost a daily basis and such was the case on January 8, 1973. In spite of the fact that plaintiff’s wife attempted to get plaintiff to stay home from work, plaintiff testified that he was not the type of person who complained and that he never missed any time from work. January 8, 1973 was no exception. Plaintiff testified that when he completed his shift at 1:00 a.m. on January 9, he "couldn’t hardly even get in the car to go home” and, upon arriving home, he "couldn’t hardly get in the house.” Plaintiff then went to bed and upon rising that morning at 8:00 a.m. experienced pains which he characterized as like a sledge hammer hitting him in the head. Plaintiff was subsequently hospitalized and underwent surgery. The diagnosis was a spontaneous subarachnoid hemorrhage.
The defendant employer was aware that plaintiff did not report for work on Januáry 9, 1973, because of the stroke. The employer did not report this fact to the Bureau of Workers’ Compensation. Plaintiff filed a petition for hearing with the bureau on July 11, 1978. The employer claims this was the first notice it had of the assertion that the stroke was work-related.
The hearing referee found that plaintiff suffered a personal injury which arose out of and in the course of his employment. With regard to whether plaintiff’s claim was barred under § 381, the referee found that this Court’s decision in Krol v Hamtramck, 398 Mich 341; 248 NW2d 195 (1976), was controlling. The employer’s failure to file a report of injury was held to have suspended the statutory limitation, and plaintiff thus was awarded benefits.
The wcab affirmed the decision, also relying on Krol. Defendants then filed an application for leave to appeal in the Court of Appeals which was denied for lack of merit on the grounds presented. Defendants next applied for leave to appeal to this Court, and we remanded the case to the Court of Appeals for consideration as on leave granted. 414 Mich 895 (1982).
On remand, the Court of Appeals reversed the judgment of the wcab in a two-to-one decision. 127 Mich App 551; 339 NW2d 482 (1983). The majority pointed to plaintiff’s testimony that shortly after the stroke occurred, while still in the hospital, the plaintiff believed his work may have partially caused the stroke. The majority ruled that plaintiff was not entitled to benefits because he failed to give notice to his employer of a work-related injury within ninety days after he was able to report the injury, thus the six-month statute of limitations pertaining to filing for benefits was not tolled. 127 Mich App 553.
In contrast to the majority, Judge Hood, in his dissent, focused on the conduct of the employer. He stated that an injury that is within the employer’s knowledge must be reported to the bureau if the employer wishes to retain the six-month statute of limitations defense. 127 Mich App 554-555. He stated further that the correct rule was that an employer need not have knowledge that the injury is work-related or compensable before it is required to report the injury. 127 Mich App 555. Judge Hood would have held that by failing to report plaintiffs injury to the bureau the defendants waived the statute of limitations defense. Id.
We subsequently granted plaintiff’s application for leave to appeal. 419 Mich 922 (1984).
Discussion
It has long been the rule in Michigan that in workers’ compensation cases the law in effect at the time of the relevant injury must be applied unless the Legislature clearly indicates a contrary intention. Wallin v General Motors Corp, 317 Mich 650; 27 NW2d 122 (1947). At the time of plaintiff’s injury, § 381 provided in 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. [1969 PA 317.]
The most frequently cited statement concerning § 381 is contained in Norris v Chrysler Corp, 391 Mich 469; 216 NW2d 783 (1974). There, Justice Coleman, writing for a unanimous court, began by noting that
[t]he purpose of the notice is to give the employer an opportunity to examine into the alleged accident and injury while the facts are accessible and also to employ skilled physicians or surgeons to care for the employee so as to speed his recovery and minimize the loss. [391 Mich 474, quoting from Littleton v Grand Trunk R Co, 276 Mich 41, 45; 267 NW 781 (1936).]
The Norris Court summarized the prior cases dealing with the sufficiency of notice from the employee to the employer:
[I]n Henderson v Consumers Power Co, 301 Mich 564; 4 NW2d 10 (1942)[,] the plaintiff was injured in 1930. While convalescing he was visited by company superintendents. As a result of his injuries, plaintiff went blind in one eye in 1937. He filed for compensation in 1940. This Court upheld the award. The Court held that precedent "recognized that knowledge of an accident is the equivalent of notice” .... The Court concluded that "defendant had the requisite 'notice or knowledge’ of plaintiff’s accident and injury within three months after the happening thereof.” Also see Gates v General Motors Corp, 349 Mich 286; 84 NW2d 482 (1957) where the Court agreed that "the limitation period of the act does not begin to run if the employer has knowledge of the accidental injury and fails to file a report.”
A statutorily sufficient notice was given in West v Northern Tree Co, [365 Mich 402; 112 NW2d 423 (1961)], where the employee told the foreman that his hands were cold and freezing. The notice was given on February 16, 1957, which was plaintiff’s last day as an employee. A finger was amputated in April 1958. Although the only notice given was the complaint to the foreman, the Court affirmed an award for the loss of the finger. Sufficient notice was also found in Meyers v Chris-Craft Corp, 379 Mich 552; 153 NW2d 657 (1967). The employee’s wife went to the personnel manager and said her husband had been injured at work. This Court reversed the Appeal Board’s reversal of an award and said the "requirement of proof of notice has been complied with.” The Court remanded for a decision "as to whether the record established causal relationship between work and the injury.” [391 Mich 478-479.]
In Norris, the claimant was injured on November 2, 1954, when he was struck by a car while en route from a parking lot to his workplace. The chief guard at the plant was told of the injury immediately, and the claimant’s foreman was informed of the injury the same day it occurred. The claimant had continuing medical problems and was never able to return to work. A petition for benefits was not filed until 1968. "Defendant argue[d] that under the state of the law at that time it did not receive notice of a compensable injury and therefore was not required to report.” 391 Mich 477. This Court rejected the employer’s contention and instead held that an injured employee has two separate obligations: (1) "the employee must first give notice of the accident”; (2) the employee has "a separate obligation” to show that the "injury is compensable” if the employer contests the employee’s claim. Id., p 478.
The Norris Court rejected the employer’s argument that it needed only to report compensable injuries in order to impose the statutory limitations. Under the view of the employer, it would have been chargeable with judging the merits of the case when that duty rests with the referee and the wcab.
The employer must report any injury of which it has notice if it is to have the advantage of the statutory limitations. Conversely, the employer need not report all or any injuries, but in failing to do so pays the price of the suspension of statutory limitations. [391 Mich 480.]
Also:
The notice given must be sufficient to make the employer aware that an injury has been sustained. If, after inquiry, the employer does not believe the injury to be compensable, it need not report the accident. However, in not reporting the accident, the employer assumes the risk that the injury will be found to be compensable. If such a determination occurs, the employer’s penalty is a suspension of statutory limitations. [391 Mich 477.]
The notice to the chief guard and foreman in Norris was sufficient to put the company on notice that the accident occurred while the claimant was reporting to work, and this was enough to toll the statute of limitations.
Since Norris, we have reaffirmed this interpretation of § 381. In Krol v Hamtramck, supra, p 344, the employer had notice that the employee’s cause of death was "[b]rain necrosis, [with] questionable etiology.” The employee had worked in the traffic control division of the police department, painting signs, curbs, and crosswalks and removing paint from signs. In the winter months, he worked primarily indoors and was exposed to paint, kerosene, and gas fumes. Despite having notice of the cause of death and knowledge of the employee’s working conditions, the employer did not notify the workers’ compensation bureau of the employee’s death. Thus, even though the employee’s wife did not file a petition for benefits until over two years after Krol’s death, we held that the claim was not barred because the statute of limitations was suspended when the employer did not notify the bureau of the death. 398 Mich 347-348. The question whether the employee had given timely notice to the employer was not the end of the inquiry because of that portion of § 381 which provided: "in all cases in which the employer has . . . notice ... or knowledge of the happening of [an] accident within 3 months of the happening of the same, and fails, neglects or refuses to report said inquiry to the compensation commission . . ., the statute of limitations shall not run against the claim of the injured employee or his dependents . . . until a report of said injury shall have been filed with the compensation commission.” Accordingly, Mrs. Krol’s claim was held not barred as the statute of limitations did not run against her because of the employer’s failure to file a report of the injury.
In Meads v General Motors Corp, 402 Mich 540; 266 NW2d 146 (1978), the claimant had worked over thirty years for the defendant, mostly on jobs involving grinding. For three months before his retirement, the claimant was placed on extended sick leave for which he received sick leave benefits. Company records indicated that the causes of his sick leave were pneumonitis, pulmonary emphysema, and bronchial asthma. The claimant did not file a petition for benefits until almost five years after his retirement because it was not until then that he suspected a connection between his employment and disability.
The issue was whether there was sufficient notice to the employer of the claimant’s occupational disease and disability so as to require the employer to file a report of injury with the bureau. We looked to the nature of the claimant’s employment conditions as well as the employer’s knowledge of his illness. The employer "had every opportunity to report the disablement and its nature to the bureau as required by statute [but it] did not do so.” The statutory time limits for the filing of notice and claim by the claimant were therefore suspended. 402 Mich 543-544.
In Smith v Kelsey-Hayes (After Remand), 404 Mich 70; 273 NW2d 1 (1978), reh den 406 Mich 1102 (1979), a different situation was presented. There the employee was involved in an accident at work in July of 1972 and suffered an injury. Smith v Kelsey-Hayes, 1975 WCABO 2369. He did not, however, notify his employer on the date of his injury. Nor did the employer have knowledge of the injury on August 3, 1972, when the employee went on strike. Until the strike, the employee had worked all his scheduled days and hours. During the strike the employee’s symptoms worsened, and he eventually had disc surgery in November of 1972. He did not return to work when the strike ended and applied for group insurance benefits disclaiming any cause related to work on the form filed. He did not file a petition for benefits until March of 1973.
The wcab in Smith found, as a matter of fact that the employer did not have notice of the injury until nine months after it occurred. This Court affirmed, because there was evidentiary support for the finding of fact that notice of the injury was not received by the employer until March of 1973. 404 Mich 73. The employee’s claim was barred by the statute of limitations because the employer did not have notice of the injury within three months of its happening. 404 Mich 75.
The most recent opinion of the Court in which § 381 was considered is Combs v Michigan Mobile Homes, 406 Mich 507; 280 NW2d 451 (1979). There the employee told his employer in April of 1975 that he was having chest pains at work, and he was allowed to leave work. The employee’s wife soon thereafter informed the employer that her husband was hospitalized. A representative of the employer talked twice with the employee about his medical condition and salary and about health insurance matters. The employee filed a claim for benefits in October of 1975.
In Combs, the wcab, by finding insufficient notice of injury, "implied that the plaintiff had to make the company aware of the connection between the plaintiffs work and the plaintiffs occupational disease; at least, aware enough to put the defendant 'upon inquiry and require the filing of a report.’ ” 406 Mich 508-509.
In light of Krol and Norris, we rejected this approach and reached a different conclusion:
As in Krol and Norris, the employer in this case knew of the employee’s health problem and ab sence from work. Both the employer and employee may have been unaware of a causal connection between the work and the disability, but this does not mean there has not been notice. See West v Northern Tree Co, [supra]; the notice, in this case, given by plaintiff to Jerry King, a manager, is the same kind of notice given by plaintiff West to his foreman. See 365 Mich 404. Accordingly, plaintiff Combs’s case is not to be rejected for want of notice. [406 Mich 509.]
The plaintiff finds this authority, particularly the pronouncements of Norris and the factual similarities of Krol, to be ample on its face to support a reversal of the judgment of the Court of Appeals, since the facts here support the conclusion that the employer had notice of plaintiff’s illness.
Defendants propose that the precedent which has developed in these cases is distinguishable from the facts of this case, in that in each of the prior cases the employers had facts within their knowledge which should have made them aware of the causal connection between work and the injury while in this case the employer knew of no facts which would indicate that the employment caused the stroke. We agree.
In Henderson, the claimant fell from a utility pole during work and suffered a brain injury. His vision became blurred in one eye and eventually worsened into blindness. Because the employer knew of the work-related injury and failed to file a proper report, it was denied the benefit of the statute of limitations. 301 Mich 578. The employee in Gates suffered a back injury while at work and also hurt his arm when a one-hundred-pound casting fell on it. Since the employer had knowledge of these injuries and failed to file a report, it could not receive the benefit of the statute of limitations defense. 349 Mich 290. In West, the employer’s foreman was told that the claimant’s hands were cold and freezing due to the outdoor work. This was the employee’s last day of work, and the notice given to the employer was held to be sufficient notice to toll the statute of limitations. 365 Mich 406. After being informed by the employee’s spouse that the her husband had been injured at work, the personnel manager in Meyers failed to file a report with the bureau. We held that this was sufficient notice of an injury to the employer. 379 Mich 557.
In Norris, there was an "accident” in every sense of the word, when the employee, on his way between a parking lot and the plant, was struck by a car. While it was arguable that his injuries were not compensable since he had not yet entered his work station, there was little doubt that his injury was work-connected in a general sense. The pronouncements from Norris, that "[t]he employer must report any injury of which it has notice” even if it may not be compensable, were certainly justified in the context of that case. Norris made it clear that the employer’s determination of whether or not to give notice of an injury was not the time or the place to determine its compensability. Employers were required to report injuries to the bureau, and thereafter the compensability of the claims could be determined.
In Krol, the employer not only knew of the employee’s death, but, in response to its request, received a report listing the cause of death as "[b]rain necrosis, questionable etiology.” That information, coupled with the employer’s knowledge that the deceased had worked in a confined area where he was "exposed to paint, kerosene and gas fumes,” certainly raised the possibility of an occu pational disease, which is a personal injury under the act. MCL 418.401(2)(b); MSA 17.237(401)(2)(b).
In Meads, as in Norris and Krol, there was no doubt of the employer’s knowledge of the employee’s disability, because of the employee’s illness just before his retirement. As in Krol, there was also reason to suspect an occupational disease, because of the employee’s tenure as a grinder and the fact that "pulmonary disability is a common result after many years of exposure as plaintiff experienced.”
Lastly, in Combs, while there was no accident or event as in Norris or suggestion of occupational disease as in Krol or Meads, there was an occurrence — chest pains — at work. The employer knew the claimant suffered chest pains at work and was forced to leave early. It also knew the claimant had a heart attack shortly thereafter. This was enough to put the employer on notice as to the possible compensability of the injury.
In each of these cases, we said that the central focus was the employer’s notice of the disability, even though in each case the employers also had information which put them on notice as to the possible work-relatedness of the injuries. Plaintiff urges that the rule to be extrapolated from these cases is that employers must, in order to preclude the tolling of the statute of limitations, report to the bureau any illness of any employee regardless of where it first manifests itself and regardless of an apparent unrelatedness to employment. The common trend running through the case law interpreting § 381 is that each employer had knowledge of facts which made them aware of a work-related injury. We do not believe the Legislature intended to burden employers and the bureau with a requirement that all injuries, from whatever cause, sustained by employees must be reported. In order to receive the benefit of the § 381 statute of limitations employers must report those injuries in which the circumstances indicate the possibility of a work-related cause. Where an injury is suffered outside the workplace and the employer does not have reason to suspect the employment caused or contributed to it, there is no obligation to give notice to the bureau to receive the benefit of the statute of limitations.
In this case, the employer, according to the plaintiff’s testimony, had no knowledge of any symptoms of injury or illness that occurred while he was at the site of employment. The employer had no knowledge of any event or accident at or near the employment site. There is nothing on the record suggesting that a spontaneous subarachnoid hemorrhage is a disease "characteristic of and peculiar to” (MCL 418.401[2][b]; MSA 17.237[401][2][b]) janitorial duties or heavy shoveling, in particular, or even the workplace generally. The employer in this case had notice — only—of the fact that one of its employees was unable to work because he had suffered a stroke at home.
This case presents for the first time an opportunity and a need to qualify the rule of Norris that "[t]he employer must report any injury of which it has notice if it is to have the advantage of the statutory limitations.” Certainly, in Norris, we did not intend to include under the term "injury” an illness that the employer had no reason to believe was work-connected.
Each of the prior cases finding sufficient notice under § 381 presented fact situations that made it possible for the employer to be on notice of the possibility of work-relatedness. This case did not, and it is thus distinguishable.
Affirmed. No costs, a public question.
Levin, Ryan, Cavanagh, Boyle, and Riley, JJ., concurred with Brickley, J.
The statute has since been amended to remove the tolling provision.
In Norris, we interpreted the predecessor to § 381, but, since the relevant portions of the statutes are identical, the reasoning of that case and the earlier cases applies here.
We note that this standard is substantially similar to that suggested by Professor Larson in Workmen’s Compensation Law:
"It is not enough, however that the employer, through his representatives, be aware that claimant [has suffered an illness or injury]. There must in addition be some knowledge of accompanying facts connecting the injury or illness with the employment, and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.” 3 Larson, Workmen’s Compensation Law, § 78.31(a), pp 15-100 to 15-109.
The treating physician, who testified for the defense, stated that he used the word "spontaneous subarachnoid hemorrhage” because it "refers to the onset of a hemorrhage without inciting cause, without an inciting, for example, trauma or tumor.” | [
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Per Curiam.
Plaintiff appeals as of right from the trial court’s December 2, 1982, order denying plaintiffs request for injunctive relief and granting defendants’ motion for accelerated judgment.
Plaintiff is a registered motor vehicle repair facility. In January, 1982, defendant Department of State filed an administrative complaint alleging that plaintiff had violated § 22(l)(d) of the Motor Vehicle Service and Repair Act, MCL 257.1322(l)(d); MSA 9.1720(22)(l)(d), by making unnecessary repairs. An administrative hearing was scheduled for October 5, 1982. On September 14, 1982, plaintiff filed a verified complaint for injunctive relief and motion for a preliminary injunction seeking to enjoin the administrative hearing. Plaintiff alleged that the term "unnecessary repairs” is so vague that it fails to provide adequate notice of the conduct proscribed and that defendants were required to promulgate rules defining the term "unnecessary repairs”. Following a hearing the trial court denied the request for injunctive relief and granted defendants’ motion for accelerated judgment.
MCL 257.1322(l)(d); MSA 9.1720(22)(l)(d), provides:
"(1) The administrator may deny, suspend, or revoke a registration, certificate, or mechanic trainee permit after notice and opportunity for a hearing where the administrator determines that the facility, mechanic, or trainee:
"(d) Made unnecessary repairs or repairs not authorized by the customer.”
The only issue we must address is whether the statute is so vague that enforcement would violate plaintiff’s right to due process of law. This issue was recently addressed in K mart Corp v Dep’t of State, 127 Mich App 390, 395; 339 NW2d 32 (1983), lv den 418 Mich 933 (1984), where the Court stated:
"When a statute allows an administrative agency to take action against a licensee for violation of statutory standards, substantive due process requires that the standards be reasonably precise in order to ensure that individuals are not held responsible by the state for conduct which they could not reasonably understand to be proscribed. State Bd of Dentistry v Blumer, 78 Mich App 679; 261 NW2d 186 (1977).
"Statutory language is construed 'according to the common and approved usage of the language’. MCL 8.3a; MSA 2.212(1), see People v Lee, 66 Mich App 5, 8; 238 NW2d 397 (1975). A resort to dictionary definitions is an appropriate method of achieving this result. Fenton Area Schools v Sorensen-Gross Construction Co, 124 Mich App 631; 335 NW2d 221 (1983); see State ex rel Wayne County Prosecutor v Levenburg, 406 Mich 455, 465; 280 NW2d 810 (1979).
"The Random House Dictionary of the English Language: The Unabridged Edition (1971 ed), p 1558, defines 'unnecessary’ as 'not necessary; needless; unessential’. We apprehend that reasonable minds could differ on whether various automotive repairs were either needed or needless. Notwithstanding such an inherent range of difference of opinion, reasonable minds should be able to agree on whether there is any need at all for a particular repair. We find that the term 'unnecessary’ is reasonably precise to ensure that individuals do understand that they should not recommend and undertake repairs for which there is no need at all.”
This Court fully agrees with the analysis in K mart, supra. We conclude that the standard "unnecessary repairs” is specific enough to provide adequate notice to a repair facility of the type of conduct which could lead to the suspension or revocation of its registration. The trial court’s order granting accelerated judgment to defendants was proper. This conclusion makes it unnecessary to consider whether plaintiff was required to exhaust its administrative remedies before bringing the present action.
Affirmed. | [
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Cavanagh, J.
The issue requiring our decision is whether the Tax Tribunal’s decision to deny plaintiffs claimed exemptions as an educational or charitable institution is supported by material, competent, and substantial evidence on the whole record. Const 1963, art 6, §28. We hold that the record supports the Tax Tribunal’s decision, and affirm the judgments rendered by the Tax Tribunal and the Court of Appeals. However, we modify a portion of the Court of Appeals opinion, since we believe that it used an improper analysis in upholding the Tax Tribunal’s decision.
I
This appeal involves claimed exemptions for the 1980 and 1981 tax years. Michigan United Conservation Clubs (mucc) filed its petition with the Tax Tribunal on May 9, 1980. At that time, the fourth paragraph of § 7 of the General Property Tax Act exempted the following property:
Such real estate as shall be owned and occupied by library, benevolent, charitable, educational or scientific institutions and memorial homes of world war veterans incorporated under the laws of this state with the buildings and other property thereon while occupied by them solely for the purposes for which they were incorporated. [1968 PA 342.]
1980 PA 142, effective June 2, 1980, eliminated the word "benevolent” and reorganized the applicable exemptions into distinct sections. From June 2, 1980, through the 1981 tax year, mucc claims exemptions under the following sections:
Real estate or personal property owned and occupied by nonprofit theater, library, educational, or scientific institutions incorporated under the laws of this state with the buildings and other property thereon while occupied by them solely for the purposes for which the institutions were incor porated is exempt from taxation under this act. [MCL 211.7n; MSA 7.7(4k).][ ]
Real estate or personal property owned and occupied by nonprofit charitable institutions incorporated under the laws of this state with the buildings and other property thereon while occupied by them solely for the purposes for which they were incorporated; and charitable homes of fraternal or secret societies and nonprofit corporations whose stock is wholly owned by religious or fraternal societies which own and operate facilities for the aged and chronically ill, in which the net income from the operation of the corporations does not inure to the benefit of any person other than the residents is exempt from taxation under this act. [MCL 211.7o; MSA 7.7(44).][ ]
Since the Legislature has not defined the terms "educational” or "charitable” institutions as they appear in these statutes, it is our primary duty to interpret these phrases and glean the Legislature’s intent. In general, tax exempt statutes must be strictly construed in favor of the taxing authority. However, this rule does not mean that we should give a strained construction which is adverse to the Legislature’s intent. See City of Ann Arbor v The University Cellar, Inc, 401 Mich 279, 288-289; 258 NW2d 1 (1977).
II
Mucc is a nonprofit organization composed of individuals and local affiliate clubs. Its headquarters is located on approximately five acres of land and includes an office building and small warehouse. The bylaws were introduced at the tribunal hearing and state:
The purpose of this Corporation shall be:
(A) To further and advance the cause of the environment and conservation in all its phases, and to perpetuate and conserve the fish, game, mineral, air, water, forest and land resources of the state, to so manage the use of all natural resources that this generation and posterity will receive the maximum benefit from the same.
(B) To promote and encourage the scientific management and intelligent sustained use of the above resources, recognizing as a valid management tool the harvest and use of surplus wildlife and other renewable resources.
(C) To promote conservation education programs designated to educate citizens in the cause of natural resource conservation and environmental protection and enhancement, creating in them an awareness and understanding of the importance of this aim, equipping them to work knowledgeably and effectively toward this achievement and through rational discussion to attempt resolution of all issues affecting our environment.
(D) To protect and defend the right of our citizens to own, keep and bear arms.
(E) To disseminate these purposes and objectives through an official publication known as Michigan Out-of-Doors, and through such other publications or media which may from time to time be desirable. [Emphasis supplied.]
Mucc’s Executive Director, Thomas L. Washington, testified that subsection (C) of the bylaws was the organization’s most critical goal. The various means used to achieve this goal, as well as other facts relevant to the claimed exemptions, are well-documented by the Court of Appeals:
Other activities sponsored by mucc include a natural resource leadership training course designed to develop citizen leaders in the conservation movement, a national hunting and fishing day, a hunter safety training course, a summer youth camp focusing on natural resource management, outdoor survival, water and hunting safety-courses, and the Detroit Outdoorama, an exposition of recreation and conservation education with workshops and demonstrations. While all these activities are available to the general public, most participants in the natural resource leadership training courses are mucc members.
Mucc maintains a small reference library in the Wood Street office building. The library, which contains reference volumes, pamphlets, films, and slides, is open to members of the public for research, but materials are not loaned to the public. Some films and filmstrips may be borrowed with a $3 charge for shipping and cleaning the films.
The Wood Street headquarters also house a full-time environmental education specialist who deals with career inquiries from the public, a staff ecologist who investigates natural resource management issues for both mucc and the public, and a full-time coordinator who trains lay teachers for the mucc Wildlife Discovery Program. This program is conducted in the public school systems in Detroit, Lansing, and Grand Rapids, although the lay teachers are not certified and are called Wildlife Discovery Guides by mucc. Short wildlife ecol ogy and fishery courses are presented to the public and are accepted for credit at Michigan State University. Mucc, however, does not grant any degrees, is not accredited by any educational accrediting institution, and receives no state money for any of its programs. When members of mucc give lectures and talks at schools or public gatherings, part of their purpose in speaking is to set forth thé" view and position of MUCC. Finally, a "Save Our Guns Fund” is operated from the Wood Street headquarters. Although the fund has "nothing to do with Michigan United Conservation Clubs” and is dormant because there is no current movement to alter the Michigan Constitution to prevent private ownership and use of firearms, mucc administers the fund, a role it accepted because one of mucc’s purposes is to protect and defend the rights of citizens to own, keep, and bear arms. This purpose is pursued as part of mucc’s work to advance the conservation of natural resources. [Michigan United Conservation Clubs v Lansing Twp, 129 Mich App 1, 6-7; 342 NW2d 290 (1983).]
Ill
The Tax Tribunal denied mucc’s request for an educational exemption. In affirming the decision, the Court of Appeals correctly noted our discussion of this exemption in Ladies Literary Club v Grand Rapids, 409 Mich 748, 755-756; 298 NW2d 422 (1980): _
Something more than serving the public interest is required to bring one claiming an exemption as an educational institution within the goals and policies affording a tax exemption.
In Detroit v Detroit Commercial College, [322 Mich 142; 33 NW2d 737 (1948)] our Court determined that an institution seeking an educational exemption must fit into the general scheme of education provided by the state and supported by public taxation. This proposition was refined in David Walcott Kendall Memorial School v Grand Rapids, 11 Mich App 231; 160 NW2d 778 (1968), which declared that an educational exemption may be available to an institution otherwise within the exemption definition, if the institution makes a substantial contribution to the relief of the burden of government.
It cannot be maintained that were it not for the Ladies Literary Club’s programs, which enhance educational and cultural interests, the burden on the state would be proportionately increased. The club’s programs do not sufficiently relieve the government’s educational burden to warrant the claimed educational institution exemption. See American Society of Agricultural Engineers v St Joseph Twp, 53 Mich App 45; 218 NW2d 685 (1974); American Concrete Institute v State Tax Comm, 12 Mich App 595; 163 NW2d 508 (1968).
Mucc argues that the state has a responsibility to educate the public on matters concerning conservation of the state’s natural resources based on Const 1963, art 4, § 52, which states:
The conservation and development of the natu ral resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.
The Court of Appeals summarized the evidence relating to the programs and materials supplied to the public schools. 129 Mich App 5-7. In addition to this evidence, mucc points to three specific activities which it claims lessens the government’s educational burden. First, it provides hunter safety classes for minors, who are required to be instructed in hunting safety procedures before receiving a license. Second, mucc publishes a booklet compiling the concealed weapons and firearm laws of this state. Third, it publishes an atlas of the county road system and fishing streams. Washington testified that responsibility for these publications was taken over from the State Police and the Department of Natural Resources after those entities experienced budgetary cutbacks.
Notwithstanding this evidence, we agree with the Court of Appeals analysis of the educational exemption issue. Const 1963, art 4, § 52 recognizes that conservation and the wise development of our natural resources are paramount concerns. However, conservation education per se is not mandated. Therefore, we fail to see how mucc’s public school programs "fit into the general scheme of education provided by the state.” Ladies Literary Club, supra, p 755. Similarly, there was no evidence presented to indicate that any state entity is required to publish atlases of county maps or summaries of the firearm laws.
Evidence established that mucc teaches minors about hunting safety. Although the applicable statutes were not specifically mentioned, we note that minors are generally required to pass a firearm safety competency examination prior to receiving a license. See MCL 316.303; MSA 13.1350(303). Furthermore, the Hunting and Fishing License Act requires the Department of Natural Resources to provide a course of instruction in the safe handling of firearms. MCL 316.327; MSA 13.1350(327). However, we do not believe that this program substantially reduces the government’s educational burden.
As is often true in similar cases, mucc’s purposes and programs are laudable. However, we cannot conclude that the Legislature intended to grant tax-exempt status on the basis of these activities. We accordingly affirm that portion of the Court of Appeals opinion which denied the educational tax exemption.
IV
Mucc also claims an exemption as a charitable institution. The tribunal concluded that the plaintiff failed to establish that it was entitled to the exemption. _
The Court of Appeals affirmed the tribunal’s decision. The court properly cited the following definition, which we reaffirm today to be the proper test:
"[C]harity . . . [is] a gift, to be applied consistently with existing laws, for the benefít of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government.” [See Retirement Homes of the Detroit Annual Conference of the United Methodist Church, Inc v Sylvan Twp, 416 Mich 340, 348-349; 330 NW2d 682 (1982), and cases cited therein. Emphasis in original.]
The Court of Appeals noted that mucc provided several services which could be considered charitable gifts. For example, mucc contributes various pamphlets and books on conservation and natural resource management. See 129 Mich App 5. Its members and staff frequently contribute their time free of charge toward similar ends. The hunter safety classes are provided to children in youth camps for a fee, but if a child cannot afford the program, affiliate members pay the fee. The Court of Appeals stated that if this was the limit of mucc’s activities, it would not hesitate to afford mucc the charitable exemption. The Court continued:
However, petitioner’s activities go far beyond those set forth above. Petitioner engages in a considerable amount of lobbying. Mucc’s bylaws include numerous references to its interest in promoting specific forms of conservation as opposed to other forms (i.e., petitioner was formed to "promote and encourage the scientific management and intelligent sustained use of the above resources, recognizing as a valid management tool the harvest and use of surplus wildlife and other renewable resources” and to "protect and defend the right of our citizens to own, keep and bear arms”). Petitioner also uses its speaking opportunities to further these messages, as opposed to restricting its teaching to the less partisan subject of conservation in general. While some effort to persuade must be allowed under any charitable system, petitioner clearly and forcefully advances a specific viewpoint. To promote its views, petitioner actively participates in the legislative process and disseminates its "message” through many of its publications. The testimony adduced before the tribunal established that a substantial part of petitioner’s activity includes attempting to influence legislation and other political activity. It can thus be seen that petitioner is, in a very real sense, both an educational and a political organizátion. Because this is true, we cannot say that the tribunal erred in denying to petitioner the charitable exemption sought. [129 Mich App 15.]
The Court of Appeals predominant focus on mucc’s "lobbying” efforts and other "political activities” was improper. A number of organizations and institutions which are legally entitled to tax-exempt status engage in activities similar to those noted by the Court of Appeals. However, the fact that an organization advances a particular point of view, advances a "message,” or seeks legislation consistent with its purposes should have a neutral effect on whether it is entitled to tax-exempt status. Here, the Court of Appeals used mucc’s political activity as the sole distinguishing factor in affirming the tribunal’s decision on this issue. This alone was not a valid reason for denial of the exemption.
Notwithstanding the Court of Appeals improper focus, we hold that the tribunal’s denial of the charitable exemption was supported by competent, material, and substantial evidence on the whole record.
The proper focus in this case is whether mucc’s activities, taken as a whole, constitute a charitable gift for the benefit of the general public without restriction or for the benefit of an indefinite number of persons. See Retirement Homes v Sylvan Twp, supra; Michigan Baptist Homes v Ann Arbor, 396 Mich 660, 670; 242 NW2d 749 (1976); Edsel & Eleanor Ford House v Grosse Pointe Shores, 134 Mich App 448, 458; 350 NW2d 894 (1984), lv den 419 Mich 961 (1984).
It is clear that the activities summarized by the Tax Tribunal and the Court of Appeals do not amount to gifts for the benefit of an indefinite amount of persons or the general public without restriction. Although members of the public may occasionally visit mucc’s office building and use its library, plaintiff’s answers to interrogatories indicated that use of the property generally is not available to non-MUCC members. Washington testi fied that the use of the library by a nonmember depended on the purpose for which it was to be used. For example, students or other persons who wanted to research a particular resource management problem were granted permission to use the facilities. We do not consider these responses to be indicative of a benefit to the general public without restriction.
A vast majority of mucc’s publications are available to the general public for a fee. Although these fees often only cover the costs of publication, we cannot characterize their dissemination as a gift. See Retirement Homes, supra, pp 349-350. On the contrary, mucc’s purposes and activities benefit its members and others with an active interest in the conservation of our natural resources. Therefore, we agree with the tribunal’s decision that the requisite charitable gift has not been conferred on the general public without restriction or on an indefinite number of people.
The Court of Appeals opinion is affirmed as modified herein. No costs, a public question being involved.
Williams, C.J., and Levin, Ryan, Brickley, Boyle, and Riley, JJ., concurred with Cavanagh, J.
This is the "educational” exemption statute. The statute was later amended by 1981 PA 212, which added the following sentence:
"In addition, real estate or personal property owned and occupied by a nonprofit organization organized under the laws of this state devoted exclusively to fostering the development of literature, music, painting, or sculpture which substantially enhances the cultural environment of a community as a whole, is available to the general public on a regular basis, and is occupied by it solely for the purposes for which the organization was incorporated is exempt from taxation under this act.”
We concern ourselves primarily with the first sentence of this section. The amendment was enacted in response to our opinion in Ladies Literary Club v Grand Rapids, 409 Mich 748; 298 NW2d 422 (1980). See n 3.
This is the "charitable” exemption statute. Mucc argued before the Court of Appeals that the Tax Tribunal erred in treating the terms "benevolent” and "charitable” synonymously. See MUCC v Lansing Twp, 129 Mich App 1, 16-17; 342 NW2d 290 (1983). However, plaintiff has not raised this issue here. It now only claims an exemption as an educational or charitable institution and asserts that the amendment of this statute has not altered the basis for either exemption.
Plaintiff attacks our analysis in Ladies Literary dub, saying that its application has led to unusually harsh and strict results. In that case, we denied tax exempt status sought pursuant to MCL 211.7; MSA 7.7 to an organization involved in various social and cultural activities. We noted that tax-exempt statutes must be strictly construed and should only be expanded by legislative enactment. Soon after the release of our opinion in that case, the Legislature added the second sentence to MCL 211.7n; MSA 7.7(4k). See 1981 PA 212. That amendment was in direct response to our opinion and granted tax-exempt status to organizations, like the Ladies Literary Club, which were devoted exclusively to fostering the development of literature, music, painting, or sculpture. See House Legislative Analysis to House Bill 4494. Nonetheless, we analyzed the activities of the club with regard to whether they fell within the institutional exemption categories found in the Property Tax Act. They did not. In response to this, the Legislature created a new exemption category based on cultural activities. Thus, although the amendment may have changed the result in Ladies Literary Club, the analysis employed to reach that result remains viable today. Accordingly, we decline mucc’s invitation to relegate that holding to the facts of the case.
The hearing officer’s proposed judgment, which was later adopted in full by the tribunal, concluded:
"In scrutinizing with care the instant claim of exemption, it becomes apparent that Petitioner is not uniquely situated, apart from any number of other organizations not specifically exempted under the general property tax act, as the champion of a valuable social purpose(s) or as a provider of non-profit services to the public at a reasonable cost. A thorough review of the proofs leads to the conclusion that, for the subject tax years, Petitioner was neither organized primarily to provide something to persons in need nor to provide for the advancement of education, religion or other traditional object intended, first and foremost, to benefit the community at large.
"In sum, Petitioner’s purposes are not the charitable business which, in the view of this Hearing Officer, the statutes have contemplated. Rather, it appears that Petitioner’s purposes, as administered from its Wood Street headquarters property, are primarily for the benefit and enlightenment of its members, sportsmen and others with an active, conservation-recreation minded interest in our natural resources. The organization’s David Street warehouse property, not unlike any other storage facility, serves no 'charitable’ purpose by whatever measure defined.”
Mucc strongly protests the Court of Appeals characterization of its activities as "lobbying” and "political,” since such characterization may jeopardize its tax-exempt status under IRC, § 501(c)(3). We decline to ascribe any special meaning to these terms today, and we decline to address the propriety of the Court of Appeals characterization, since this issue is not essential to our decision in this case.
This does not mean that evidence of lobbying or political activity can never be relevant. Evidence of political activity may or may not be relevant depending on the facts of the case and the type of exemption sought. Although the question is not before us today, we surmise that certain forms of lobbying may preclude a tax exemption. For example, we doubt that an organization whose sole purpose is lobbying would be entitled to an educational or charitable exemption. Thus, we cannot say that political activity has no relevance to a claimed tax exemption. | [
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Shepherd, J.
Defendant, plaintiff’s no-fault insurer, appeals a July 29, 1982, order granting summary judgment in favor of plaintiff on the question of whether a vehicle on which plaintiff was injured was a motor vehicle.
On appeal, plaintiff and defendant Hartford have stipulated to the following facts.
Robert Johnston was an employee of Detroit Crane on May 4, 1980. His job involved the operation of a mobile crane, a load-lifting device mounted on a truck chassis. The truck chassis had multiple wheels, was powered by an internal combustion engine, and was designed to be operated on the highway while in the "travel mode”. Approximately one and one-half weeks before he was injured, Mr. Johnston had driven the crane (while in the "travel mode”) from an out-state job site to Detroit. Once the crane arrived on the construction site, it was rigged to perform its function as a crane. It was driven to a convenient location on the job site. The gantry (the supporting framework for the boom), was hydraulically lifted to a point 24 feet above the ground. Outriggers were placed and hydraulically actuated to lift the back wheels of the crane off the ground. Forty-eight tons of counterweights were attached to the back of the crane and six tons of counterweights were attached to the front of the crane, the purpose of which was to lift structural steel and other objects onto the top of the construction project.
The rigging of the crane took three days to complete and, upon completion of the rigging, the crane could not have been driven. The crane had two different cabs, one holding the controls for operation of the lifting devices and the other containing the controls for driving the crane when it was in its driveable mode.
On the day of the accident, with the crane fully rigged, Mr. Johnston had lifted a steel beam onto the top of a building that was under construction. He received a signal from the workmen on top of the building to take a break while they positioned the beam. Leaving the steel beam suspended from the lifting cable, plaintiff got out of the cab used to operate the lifting functions of the crane and was proceeding across the top of the crane to the other cab so he could fill out his time tickets. In the process of climbing up into the "driving” cab to get his time tickets, he put his foot on the step of the cab and slipped, losing his balance. He caught himself before he actually fell to the ground, but in the process ruptured a disc in his back.
On May 8, 1981, Mr. Johnston initiated suit in the Circuit Court for the County of Cheboygan against defendant-appellant Hartford Insurance Company, the no-fault insurer for his own personal-use auto; Aetna Insurance Company, the no-fault fleet insurer for the Detroit Crane Company; Canadian Universal Insurance Company, Inc., the general liability carrier for Detroit Crane Company, and the Secretary of State, Assigned Claims Fund. In that suit, Mr. Johnston sought to recover the differential then permitted by the no-fault statute between what he had received under workers’ compensation and what he could receive under the Michigan no-fault automobile insurance act.
The trial court granted plaintiff-appellee’s motion for summary judgment on July 14, 1982. Judgment on the court’s verdict (ruling that the crane was a motor vehicle under the no-fault act) was entered on July 29, 1982.
The trial court found, as a matter of law, that the crane was a motor vehicle within the meaning of the no-fault act. The court also held that "use” of a motor vehicle was not a controlling factor where an object had the characteristics of a motor vehicle, and found that the accident met the criteria of the parked vehicle provisions of the no-fault act, MCL 500.3106; MSA 24.13106, and that there was a causal relationship between the crane and plaintiff’s injury. The court therefore granted plaintiff’s motion for summary judgment under GCR 1963, 117.2(3).
On appeal; defendant contends that the trial court erred in granting summary judgment in favor of plaintiff. We agree.
Under GCR 1963, 117.2(3), the trial judge could grant summary judgment when "there is no genuine issue as to any material fact, and the moving party is therefore entitled to judgment as a matter of law”. The facts were stipulated to by both parties and thus the court could grant summary jdugment under GCR 1963, 117.2(3). Summary judgment in favor of Johnston would only be error if the court’s rulings on the substantive legal issues were incorrect.
The first such ruling challenged by defendant is the trial court’s determination that the stationed crane was a motor vehicle as a matter, of law.
Michigan’s no-fault act contains the following definitions:
"(2) As used in this chapter: * * *
"(c) 'Motor vehicle’ means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels. Motor vehicle does not include a motorcycle or a moped, as defined in section 32b of Act No. 300 of the Public Acts of 1949.
"(d) 'Motor vehicle accident’ means a loss involving the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle regardless of whether the accident also involves the ownership, operation, maintenance, or use of a motorcycle as a motorcycle.” MCL 500.3101; MSA 24.13101.
Although there is no Michigan case law dealing with the classification of a crane in this situation, the trial court found that the crane was a motor vehicle under the statutory definition set forth above, relying on H R Weissberg Corp v New York Underwriters Ins Co, 260 Md 417; 272 A2d 366 (1971), which held that a crane did not lose its identification as a vehicle when it was immobilized by outriggers. The trial court also relied on another Cheboygan Circuit Court opinion which, in turn, had relied on Weissberg, supra, and Donahue Construction Co v Transport Indemnity Co, 7 Cal App 3d 291; 86 Cal Rptr 632 (1970).
In Donahue, a mobile truck crane was unloading pipe from a truck. A piece of pipe struck a worker. The crane was moved during the unloading process but was stopped at the time of the accident. The outriggers on the crane had not been extended to make the crane immobile. The court was faced with the question of whether an insurance policy on the crane would cover this situation. The court relied on California’s Vehicle Code in defining a vehicle under the insurance policy, regarding the code as applicable to every policy of liability insurance. The court found the crane to be a vehicle and a motor vehicle under the code, which defined a vehicle as "a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved by human power or used exclusively upon stationary rails or tracks”, and a motor vehicle as "a vehicle which is self-propelled”. 7 Cal App 3d 300; 86 Cal Rptr 638. The court found that the endorsement to the policy, which imposed liability for the use of motor vehicles and all vehicles operated by the insured, covered the crane. Donahue, however, is factually distinguishable from the instant case in that the crane in Donahue was not immobile. That crane was a dual-function piece of equipment, but was not restricted to one function, and was actually moved during the unloading process.
In Weissberg, supra, a hotel was struck by the boom of a moveable crane engaged in demolition work. The crane was immobilized at the time of the accident. The court, interpreting an extended coverage endorsement to a fire insurance policy covering "a direct loss by * * * vehicles”, found the crane to be a vehicle under existing case law but expressly distinguished cases construing automobile liability policies. 260 Md 423; 272 A2d 368-369.
In Smedley v Milwaukee Automobile Ins Co, 12 Wis 2d 460; 107 NW2d 625 (1961), the plaintiff sued for negligent operation of an outriggered, immobilized crane and sought to join the crane operator’s insurer under Wisconsin statute. The court held that the crane was not a motor vehicle for purposes of the lawsuit, but based its ruling on the use of the crane at the time of the accident. The court stated that "if the unit were being driven on a public street for the purposes of locomotion, it would be considered a motor vehicle”. 12 Wis 2d 466; 107 NW2d 628. (In contrast to Smedley, the trial court in the instant case held that the "use” was not a controlling factor once the crane was characterized as a motor vehicle.)
We find that the crane, while moving, met the statutory requirements for a "motor vehicle”. It was designed to be operated upon the public highway by other than muscular power and had more than two wheels. The dual purpose of the crane standing by itself is insufficient to remove it from "motor vehicle” status under MCL 500.3105(1); MSA 24.13105(1). The situation here may be analogized to that presented in Kelly v Inter-City Truck Lines, Inc, 121 Mich App 208, 210; 328 NW2d 406 (1982), where, in holding that a trailer which was unattached to a truck cab was still a motor vehicle under the no-fault act, this Court stated:
"We can conceive of situations in which the owner of a trailer might show that it is no longer 'designed for operation on a public highway’. * * * The present case is not, however, the close case in which a careful study of the question is warranted.”
Here, while the crane could not be driven on the highway at the time the accident occurred, it could have been converted to its mobile state and, in fact, once the job was completed, it would presumably have been altered and driven away. We therefore find that the vehicle, under these facts, remained a motor vehicle for purposes of the no-fault act even when being used as a crane.
It must then be determined whether defendant was liable for plaintiffs injuries under the parked vehicle provision of the no-fault act, which provides that:
"(1) Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle unless any of the following occur:
"(c) * * * the injury was sustained by a person while occupying, entering into, or alighting from the vehicle.” MCL 500.3106; MSA 24.13106.
Both MCL 500.3106; MSA 24.13106 and MCL 500.3105; MSA 24.13105 must be met in order for liability for injuries connected to a parked vehicle to arise.
. "In order to recover no-fault benefits for injuries sustained in connection with a parked vehicle, a claimant must establish both the applicability of one of the § 3106 categories and, in addition, that the injuries arose out of the ownership, operation, maintenance, or use of the parked vehicle. MCL 500.3105(1); MSA 24.13105(1); Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 17; 235 NW2d 42 (1975), lv den 395 Mich 787 (1975); Shinabarger v Citizens Mutual Ins Co, 90 Mich App 307; 282 NW2d 301 (1979); Dowdy v Motorland Ins Co, 97 Mich App 242; 293 NW2d 782 (1980); Block v Citizens Ins Co of America, 111 Mich App 106; 314 NW2d 536 (1981); Krueger v Lumbermen’s Mutual Casualty, 112 Mich App 511; 316 NW2d 474 (1982).” King v Aetna Casualty & Surety Co, 118 Mich App 648, 651; 325 NW2d 528 (1982).
In Kangas v Aetna Casualty & Surety Co, 64 Mich App 1, 13, 17; 235 NW2d 42 (1975), this Court defined "arising out of’ under MCL 500, 3105; MSA 24.13105:
" 'The words "arising out of’ have been viewed as words of much broader significance than "caused by”, and have been said to mean "originating from”, "having its origin in”, "growing out of’ or "flowing from”, or in short, "incident to” or "having connection with” the use of the car. Schmidt v Utilities Ins Co, 353 Mo 213; 182 SW2d 181 (1944); National Indemnity Co v Corbo, 248 So 2d 238 (Fla App, 1971).’ * * * In summary, we conclude that while the automobile need not be the proximate cause of the injury, there still must be a causal connection between the injury sustained and the ownership, maintenance or use of the automobile and which causal connection is more than incidental, fortuitous or but for. The injury must be foreseeably identifiable with the normal use, maintenance and ownership of the vehicle.”
Thus, the accident in the instant case must meet MCL 500.3106; MSA 24.13106 and MCL 500.3105(1); MSA 24.13105(1) criteria for insurer liability. The trial court held that both MCL 500.3106(c); MSA 24.13106(c) (person occupying a parked vehicle) and the causal connection between the accident and crane were satisfied. If the trial court incorrectly decided one of these issues, the order for summary judgment should be reversed. (See 15 ALR4th 10, annotating Shinabarger v Citizens Mutual Ins Co, supra, dealing with accidents "arising out of the use” of insured vehicles.)
Since we have determined that the crane was a motor vehicle, and it was clear that plaintiff was climbing from the "driving cab” of the vehicle when he fell, the requirement of the parked-vehicle statute, MCL 500.3106(c); MSA 24.13106(c) was satisfied.
The final and critical question becomes, then, whether plaintiff’s accident arose out of the use of a vehicle as a motor vehicle. Although the crane meets the statutory requirements to be a motor vehicle and satisfies the parked vehicle require ments, plaintiffs no-fault insurer will not be liable for plaintiff’s injuries unless the crane was being used as a motor vehicle at the time of the accident.
The trial court found that the accident arose out of the use of a motor vehicle since there was a sufficient causal connection between the accident and the crane. On the undisputed facts, the trial court correctly found that there was a causal connection between the use of the crane and the injury. The trial court, however, failed to address the question of whether the crane was being used as a motor vehicle at the time the accident occurred, a necessary finding in order to assess liability.
The motor vehicle accident definition and the statute imposing liability both require that the use of a motor vehicle be as a motor vehicle.
" 'Motor vehicle accident’ means a loss involving the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle regardless of whether the accident also involves the ownership, operation, maintenance, or use of a motorcycle as a motorcycle.” MCL 500.3101(2)(d); MSA 24.13101(2)(d).
"Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” MCL 500.3105(1); MSA 24.13105(1).
If the statutes merely required "use of a motor vehicle”, then once the crane was found to be a motor vehicle, a causal connection between the crane and the injury would satisfy the statutory requirement. However, the additional words in the statute, "use of a motor vehicle as a motor vehicle” show that the Legislature intended to impose an additional requirement. No phrase, clause, or word of a statute should be ignored in construing it; effect must be given to every part. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956). The statutory language requires that the function of the motor vehicle at the time of use be considered.
A too technical approach, i.e., one dictating that, once a dual-purpose vehicle has been ruled a motor vehicle, it is a motor vehicle at all times and for all purposes, would destroy the intent of the statute and create undesirable results. A common sense approach, however, dictates that the intention of the Legislature was to limit the act’s coverage here to motor vehicles whose function at the time of the accident was one compatible with that of a motor vehicle. The intent of the Legislature should not be defeated by a technical or forced interpretation of the statutory language. Grand Rapids Motor Coach Co v Public Service Comm, 323 Mich 624, 635; 36 NW2d 299 (1949).
Under this analysis, once a dual-function unit has been converted to a sole nonlocomotive function, it should fall outside the liability statute. Plaintiff’s argument that refusal to treat the crane as a motor vehicle would be inconsistent with the parked vehicle statute is not persuasive. A dual-function unit which has not been converted, e.g., one which is merely parked or stopped while functioning under its motor vehicle design, would still be a parked vehicle under MCL 500.3106; MSA 24.13106. Thus, interpreting the "as a motor vehicle” language to relate to the function of a vehicle at the time of an accident should impose liability with respect to a dual-function unit only when in use in its locomotive function. Converted solely to its other function, the unit would fall outside the statute. A dual unit operating as both would fall within the motor vehicle liability provision.
Wisconsin courts, in Smedley, supra, and later cases, have denied motor vehicle status to immobilized cranes. Although these courts denied such status by finding that the cranes could not be defined as motor vehicles or vehicles, their analysis concentrated on the use of the cranes and, although slightly out of context, is persuasive.
"The test under the statutes is whether at the time of the accident the unit is being used, managed, controlled or operated as a motor vehicle in the ordinary meaning of those words. At the time of the accident the unit was stationary, the crane was stabilized, supported, and rendered immobile by outriggers. The unit was not then used as a motor vehicle. Plaintiff was injured by the operation of the crane, not the operation of the truck. We do not believe such use of the unit is within the meaning of the negligent operation, management or control of a motor vehicle as used in sec. 260.11, Stats.” Smedley, 12 Wis 2d 467; 107 NW2d 628 (1961).
See, also, Neumann v Wisconsin Natural Gas Co, 27 Wis 2d 410; 134 NW2d 474 (1965); Schmidt v Luchterhand, 62 Wis 2d 125; 214 NW2d 393 (1974).
We conclude, therefore, that the language of the no-fault act requires not only that a vehicle be a motor vehicle but, in order to establish liability, it must also be used as a motor vehicle at the time of the accident. If the Legislature had intended coverage for any accident involving a motor vehicle, the additional requirement that the accident arise out of the use of a motor vehicle as a motor vehicle would be unnecessary surplusage. Since mere use of the vehicle, without discrimination as to the nature of that use, is not enough, we hold that the trial court erred in finding that plaintiffs accident satisfied the requirement of MCL 500.3105(1); MSA 24.13105(1). Summary judgment in favor of plaintiff-appellee should not have been granted. The motion for summary judgment filed by defendant-appellant should have been granted and the matter is reversed and remanded for entry of an order denying the motion for summary judgment filed by plaintiff-appellee and granting the motion for summary judgment filed by defendant-appellant.
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J. J. Kelley, J.
Douglas Meeboer was convicted in the juvenile division of probate court of two counts of second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3). Meeboer attempted to appeal his conviction to circuit court. The circuit court, on stipulation of the parties, dismissed the appeal on the basis that the circuit court lacked jurisdiction over such an appeal pursuant to MCL 600.863(1); MSA 27A.863G) because Meeboer’s conviction was appealable to the Court of Appeals pursuant to MCL 600.861(c)(i); MSA 27A.861(c)(i). This Court granted Meeboer’s application for a delayed appeal from the probate court decision, but ordered the parties to brief the jurisdictional issue.
Whether Meeboer has an appeal as of right to this Court rather than circuit court is important inasmuch as neither statute nor court rule gives this Court jurisdiction to grant leave to appeal prior to a resolution on the merits of an appeal to circuit court where such an appeal is mandated. See MCL 600.308; MSA 27A.308, and GCR 1963, 806.2; compare GCR 1963, 851(2) which allows the Supreme Court to grant leave to appeal in a case while there is pending an appeal of that case in the Court of Appeals. Therefore, this Court is without jurisdiction to entertain this appeal if it would have been without jurisdiction to entertain a timely appeal as of right by Meeboer.
As amended by 1982 PA 318, MCL 600.861(c)(i); MSA 27A.861(c)(i) provides an appeal as of right to the Court of Appeals from an order of the juvenile division of probate court which is "[a]n order of disposition placing a child under the supervision of the court or removing the child from his or her home”. "Order of disposition” is a term used in the statute governing the juvenile division of probate court; various possible orders of disposition are listed in MCL 712A.18; MSA 27.3178(598.18). The order of disposition in the present case committed the child to the supervision of the Department of Social Services pursuant to the Youth Rehabilitation Services Act, MCL 803.301 et seq.; MSA 25.399(51) et seq. Such an order of disposition is authorized by MCL 712A.18(l)(e); MSA 27.3178(598.18)(l)(e). The difficulty is that the Youth Rehabilitation Services Act does not provide for continuing supervision of the child by the probate court and permits, but does not require, removal of the child from his or her home. See MCL 803.303; MSA 25.399(53).
"When construing a statute, the Court must give effect to the legislative intent and read the language in the light of the general purpose sought to be accomplished.” Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 478; 208 NW2d 469 (1973).
"This Court has said that where 'language is of doubtful meaning, a reasonable construction must be given, looking to the purpose subserved thereby. Its occasion and necessity are matters of judicial concern, and its purpose should be effected if possible. Its spirit and purpose should prevail over its strict letter. Injustice in its application should be prevented, and absurd consequences avoided.’ ” People v McFarlin, 389 Mich 557, 563; 208 NW2d 504 (1973), citing Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948).
For the reason that the Department of Social Services could conceivably remove the child from the home years after the probate court’s order, it would be completely unworkable to have the determination of whether there exists an appeal as of right to the Court of Appeals of such an order controlled by the department’s subsequent decision as to placement. It is clear that orders entered pursuant to MCL 712A.18(1), subds (a), (f), and (g); MSA 27.3178(598.18)(1), subds (a), (f), and (g) must be appealed to circuit court and that all orders entered pursuant to MCL 712A.18(1), subds (b), (c), and (d); MSA 27.3178(598.18X1), subds (b), (c), and (d), and many entered pursuant to (e) are appeal-able as of right to the Court of Appeals. Orders like that at issue here are comparable in severity to the orders clearly appealable as of right to the Court of Appeals. We therefore conclude that the Legislature intended a probate court order giving an agency discretion to remove a child from his or her home to be appealable as of right to the Court of Appeals pursuant to MCL 600.861(c)(i); MSA 27A.861(c)(i).
Of the substantive issues raised by Meeboer, only one is worthy of discussion. Meeboer argues that the probate court erred by admitting evidence of a statement by the victim to her mother.
The first of the two incidents on which Meeboer’s convictions are based took place at approximately 6:30 in the evening in the victim’s home. The victim was a nine-year-old girl who had epilepsy, whose IQ was not more than 40, and who attended a special education program. She did not testify. A social worker testified that she would have great difficulty understanding questions in a court of law.
Following the first incident, which occurred in the basement of the victim’s home, Meeboer, an overnight guest, was heard to say that after the victim’s mother had gone to bed he would go into the victim’s room and have sexual relations with her.
The next morning the victim’s older sister awakened and found the victim in bed with her rather than in the victim’s own room. At 7:00 a.m., the victim’s mother went to awaken her for the purpose of giving the victim her seizure medication. The mother found the victim in the sister’s room. The victim went to the kitchen to take her medicine and spontaneously began telling her mother about Meeboer’s nighttime activity with her.
Meeboer’s counsel objected to the admission of the mother’s testimony concerning the victim’s statements on the basis that such testimony was hearsay. The court overruled the objection, stating that the tender years exception allowed it as part of the res gestae. Trial occurred eight weeks before the Supreme Court decision in People v Kreiner, 415 Mich 372; 329 NW2d 716 (1982), in which the Court determined that the tender years exception to the hearsay rule no longer exists under the Michigan Rules of Evidence.
On appeal, the prosecutor claims that the admission of the mother’s testimony was harmless error and that the testimony should be admitted under the excited utterance exception to the hearsay rule, MRE 803(2). Being the very root of one charge against the defendant, if the admission of this evidence was error, it cannot be said that it was merely harmless error. If the statements of the victim were excited utterances, there was no error in admitting the testimony of the victim’s mother.
The mother, who had not previously discussed sex with her daughter, related that her daughter told her that Meeboer came to her room, kissed her, and put his "worm” in her "butt”. When asked where or what her butt was, the victim pointed to her vagina. The mother testified that she had never heard the victim use the term "worm” before and that the daughter explained "worm” as being from where Meeboer peed. The mother further testified that her daughter had indicated that she did not cry out because Meeboer had covered her head with a blanket or quilt and that, when Meeboer let her go, she went into her sister’s bed because she was scared.
MRE 803(2) defines "excited utterance” as:
"A statement relating to a startling event or condition made while the declarant was under stress of excitement caused by the event or condition.”
To come within this exception, a statement must meet three criteria: (1) it must arise out of a startling occasion — startling enough to produce nervous excitement and to render the utterance spontaneous and unreflecting; (2) it must be made before there has been time to contrive and misrepresent; and (3) it must relate to the circumstances of the startling occasion. This rule would support the admission of a hearsay statement by a child of tender years in a sexual assault case if these foundation criteria are met. People v Kreiner, supra, p 379.
In Kreiner, the six-year-old victim told her mother during the noon hour that during the preceding night the mother’s boyfriend had come into her bedroom and sexually used her. Noting that the child had not told her mother at the first opportunity and that it was unclear how much time expired between the alleged assault and the child’s statement to her mother, the court remanded for a new trial at which the prosecutor could attempt to establish a foundation for admitting the mother’s testimony.
In People v Gee, 406 Mich 279; 278 NW2d 304 (1979), a girl who was old enough to date boys claimed that shortly after midnight she was raped by a friend who then drove her home. Either 12 or 20 hours later she went to her boyfriend’s apartment and over a 4-1/2 hour period told him about the alleged incident. The court held that the 12 to 20 hour lapse was enough time for consideration of self-interest and that there was no plausible explanation for the delay which would excuse the delay and permit an extension of the excited utterance exception to the hearsay rule to these facts.
In the case at bar, the victim’s statement arose out of a startling occasion during the night. It would be unreasonable to expect that a child of her age and mentality would or should have taken note of the time of the occurrence or would contrive or misrepresent as to sexual matters. Sometime during the night the victim went from her own room to sleep with her sister. Upon arising around 7 o’clock the next morning the victim told the first person she talked to — her mother — about the incident. There was a plausible explanation for the delay in relating what happened. The child used the term "worm” — a word she had not used before — in relating the happenings. Her story related to the circumstances of the occasion. All three criteria having been met, a proper foundation was laid for the mother’s testimony.
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Cavanagh, J.
i
This litigation arises out of a construction contract dispute between a property owner, plaintiff, and its general contractor’s surety, defendant. The plaintiff, Old Orchard by the Bay Associates, filed a complaint on February 10, 1978, in Oakland Circuit Court, alleging that defendant, Hamilton Mutual Insurance Company, was liable under a surety bond for latent defects relating to the construction of an apartment project which Old Orchard owns. The litigation was pending for three years, during which time the parties commenced discovery, and in 1980 the case was mediated.
By a stipulated order filed February 6, 1981, Old Orchard and Hamilton Mutual voluntarily submitted their entire dispute to statutory arbitration. The arbitration proceedings, including extensive evidentiary hearings, took place throughout 1985. On December 6, 1985, five years after the execution of the arbitration agreement, the Commercial Arbitration Tribunal entered an award of $300,000, plus statutory interest, in favor of plaintiff.
The arbitrator’s interest award to Old Orchard was computed from the date of the filing of the circuit court complaint at the statutory judgment rate, MCL 600.6013; MSA 27A.6013. Subsequently, defendant Hamilton Mutual filed several motions, including a claim that the arbitrators erred in awarding interest other than that allowable under the prejudgment interest statute, MCL 438.7; MSA 19.4, from the date of the arbitration award. The trial court confirmed the award in all respects on May 21, 1986, including confirmation of the award of interest at the statutory judgment rate.
Defendant Hamilton Mutual appealed on several issues. The Court of Appeals, in an unpublished opinion, affirmed on all issues, except as to the interest award. In a split decision, the Court of Appeals held that MCL 438.7; MSA 19.4 should have been applied, allowing for an award of five percent annual interest from the date of the 1985 arbitration award.
We granted the plaintiff’s application for leave to appeal, while denying the defendant’s application for leave to appeal as cross-appellant. 430 Mich 891 (1988). The defendant claims that the plaintiff is entitled to interest only from the date of the arbitration award at a five percent annual rate under MCL 438.7; MSA 19.4. We reject that argument and reverse the decision of the Court of Appeals on the interest issue and hold as follows: (1) where the parties to a contract dispute have no agreement to arbitrate, and (2) do not later stipulate to an interest entitlement or rate (assuming the original action is not dismissed), (3)(a) statutory interest is awardable on the judgment from the date of the filing of the complaint until the judgment is entered, and (b) such interest is also awardable thereafter until the judgment is paid, as provided in MCL 600.6013; MSA 27A.6013.
ii
Before discussing the merits, the relevant statu tory provisions are set forth briefly. Two statutes potentially govern the award of interest to the prevailing party in any contractual dispute. MCL 438.7; MSA 19.4 authorizes the award of interest where the parties fail to agree on the matter of entitlement to interest in an action. It applies to specified types of disputes founded on a contract that are resolved less formally "by verdict, report of referees, award of arbitrators, or by assessment made by the clerk of the court or by any other mode of assessment according to law . . . .” Statutory interest under MCL 438.7; MSA 19.4 accrues from the date of the award until payment or judgment is rendered thereupon.
MCL 600.6013; MSA 27A.6013 authorizes the payment of interest on all money judgments awarded in "civil actions.” The award of such statutory judgment interest under MCL 600.6013; MSA 27A.6013 is mandatory, although the parties may vary the applicable interest rate within certain parameters.
hi
The statutory interest provision that applies in a given action is a purely legal question to be resolved by means of statutory interpretation, except where the parties stipulate to an interest schedule or otherwise agree on the matter of interest as part of their arbitration agreement. The parties in the instant dispute, however, never agreed upon the matter of interest.
Plaintiff Old Orchard alleges that it was error for the Court of Appeals to state as a broad rule that "interest on an arbitration award in an action founded on a contract is governed by MCL 438.7; MSA 19.4.” We agree. This conclusion is based on a close examination of both the language and history of the two interest statutes at issue, as well as the purposes that the Legislature sought to accomplish in enacting these provisions.
IV
As this Court stated in White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979), and Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 478; 208 NW2d 469 (1973), the interpretative task at hand requires the Court to infer legislative intent from the language used in the statute, as well as to consider the statutory language in the context of the special subject matter which it addressed. The meaning of the statute must be viewed "in light of the general purpose sought to be accomplished or the evil sought to be remedied by the constitution or statute.” White, supra at 562.
The rationale for awarding statutory interest under MCL 600.6013; MSA 27A.6013 is primarily a compensatory one. The Revised Judicature Act interest statute serves the purpose of compensating the prevailing party for loss of the use of the funds awarded as a money judgment, as well as offsetting the costs of bringing a court action. In Denham v Bedford, 407 Mich 517, 534-536; 287 NW2d 168 (1980), this Court wrote:
The Michigan Legislature has dictated that interest should accrue from the date of filing the complaint. . . . [T]he legislative purpose was to compensate the prevailing party for the delay in payment of money damages and to cover the costs of litigation . . . .[ ]
The second purpose of awarding judgment inter est is to provide an incentive for prompt settlement. See Gage v Ford Motor Co, 423 Mich 250, 257; 377 NW2d 709 (1985). The award of statutory prejudgment interest under MCL 600.6013; MSA 27A.6013 in suits to collect on an insurance contract is a useful illustration; in this context, prejudgment interest serves a distinct deterrent function by both encouraging settlement at an earlier time and discouraging a defendant from, delaying litigation solely to make payment at a later time. See Matich v Modern Research Corp, 430 Mich 1, 12-15; 420 NW2d 67 (1988).
v
In this case, the plaintiff filed a complaint to resolve a contract dispute in the absence of any prior agreement to arbitrate or any agreement on the appropriate interest rate. Is this a "civil action” resulting in a judgment of recovery in the form of "money damages” and therefore governed by the prejudgment interest provisions of MCL 600.6013; MSA 27A.6013? Or, is the plaintiff’s recovery more properly considered a "liquidation” or "ascertainment” of debt pursuant to the "award of an arbitrator” and therefore governed by MCL 438.7; MSA 19.4?
Since 1965 there have been two prejudgment interest statutes in Michigan, rather than just one. Until recently, the statutory scheme was more orderly. By exploring the history of the two interest statutes, one can see that they share both common purposes as well as common origins.
A summary of the evolution of the two interest statutes which must be interpreted is summarized in the margin. The right to judgment interest originated in an 1827 Michigan territorial statute which created an entitlement to interest from the time a judgment was entered. See 2 Laws of Territory of Michigan, p 491 (1874). In an even earlier statute (an act of 1809), a conventional rate of interest was authorized (at the specific rate of six percent) under any contract — with only a few specified exceptions. (The 1809 act was copied from a Vermont statute, see 4 Laws of Territory of Michigan, pp 61-62 [1884].) Both statutes then appeared together in chapter 6 of the Revised Statutes of 1838.
The placement and language of these provisions indicate that they were intended to further a common purpose. Section 8 (now MCL 600.6013; MSA 27A.6013) applied to all actions resolved by means of formal dispute resolution, and § 9 (now MCL 438.7; MSA 19.4) applied to contract-based claims where the amount owed was to be determined by report of referees, award of arbitrators, or by any other mode of assessment according to law. Yet, the purpose of both provisions was the same as is evident from their language and function. The two statutes were coordinated to accomplish the same goal of compensating parties for the loss of the use of funds wrongfully detained for the period when they were due but unpaid.
The subsequent history of the two provisions, prior to 1965, does not alter this conclusion. While these statutory provisions have since been assigned to separate chapters in the Compiled Laws, their language was, until 1965, essentially the same as when originally enacted. MCL 438.7; MSA 19.4, formerly §9 of the 1838 Revised Statutes, has remained substantively unchanged. (The only minor amendments made to this provision, in 1846, were editorial in nature. See RS 1846, ch 34, §7.) MCL 600.6013; MSA 27A.6013 also did not undergo any major changes even as it was moved and edited.
Since its amendment in 1965, MCL 600.6013; MSA 27A.6013, however, entitles a prevailing party to prejudgment interest from the filing of the complaint to the entry of a judgment in any civil action. Moreover, the various provisions of MCL 600.6013; MSA 27A.6013 are clearly designed to encourage settlement and to compensate the prevailing party for the value of money wrongfully obtained. See, generally, Rittenhouse v Erhart, 424 Mich 166, 190-193; 380 NW2d 440 (1985) (discussion of how MCL 600.6013; MSA 27A.6013, in its present form, as of the 1980 amendments, clearly seeks to further both goals).
Both MCL 600.6013; MSA 27A.6013 and MCL 438.7; MSA 19.4 were enacted by the same Legislature. Given the manner of their enactment and the similar functions that the two statutes have performed for more than a century, the amendment of MCL 600.6013; MSA 27A.6013 in 1965 is highly problematic. The extension of that interest statute to prejudgment interest awards causes two formerly compatible statutes to be in irreconcilable conflict. Only by concluding that the §6013 interest provision has repealed MCL 438.7; MSA 19.4 by necessary implication, insofar as civil actions are concerned, can any sense be made of the two interest statutes.
While repeals by implication are not favored, it is a question of legislative intent whether or not there has been such a repeal of an earlier statute by a subsequently enacted one. See Attorney General ex rel Owen v Joyce, 233 Mich 619, 621; 207 NW 863 (1926); Yarger v City of Hastings, 375 Mich 413, 417; 134 NW2d 726 (1965). The latest legislative expression on the entitlement to prejudgment interest must control where two interest statutes specifically address the issue of entitlement and cannot be harmonized.
VI
Plaintiff maintains that the enactment of 1965 PA 240 repealed MCL 438.7; MSA 19.4 to the extent that it might apply to the award of arbitration under the unique circumstances in which arbitration was agreed to in this case. The 1965 amendment clearly broadened the entitlement to prejudgment interest under MCL 600.6013; MSA 27A.6013.
The defendant argues that the two interest statutes do not overlap, but this position is untenable given the plain language of the two statutes. First, the argument assumes that MCL 438.7; MSA 19.4 provides the exclusive entitlement to interest even after a court enters a money judgment conñrming an arbitration award. Yet, this cannot be reconciled with the language of MCL 600.6013; MSA 27A.6013 which requires that interest be awarded from the date of the filing of the complaint. Moreover, MCL 438.7; MSA 19.4 by its own terms, does not extend as far as the defendant contends; in fact, it authorizes the award of interest "only 'until judgment shall be . . . rendered’ upon the verdict, arbitration award, etc.”
The overlapping coverage of the two statutes creates a conflict regarding the entitlement to prejudgment interest that appears to be irreconcilable. The only way to harmoniously apply the two interest provisions would be to apply them both at the same time. Yet, such simultaneous application would yield a double recovery for the prevailing party from the date of the arbitration award to the date of judgment. This is surely inconsistent with any rational view of legislative intent. Since there appears to be no way to justify application of only one of the statutes over the other, we find that MCL 600.6013; MSA 27A.6013 and MCL 438.7; MSA 19.4 are in conflict, as applied to the facts of this case.
The defendant contends that the plaintiff’s entitlement to prejudgment interest is governed exclusively by MCL 438.7; MSA 19.4. This argument ignores the express terms of MCL 600.6013; MSA 27A.6013 which applies to a money judgment recovered in a civil action. Perhaps, defendant concludes that only MCL 438.7; MSA 19.4 applies here by reading that statute too narrowly. MCL 438.7; MSA 19.4 applies to arbitration awards, as well as to awards entered by verdict, report of referees, assessment made by the clerk of the court, or otherwise. Following the logic of defendant’s argument would result in awarding prejudgment interest on a jury verdict under MCL 438.7; MSA 19.4, exclusively, even though it precludes a judgment of money damages in a "civil action.” But this result would make MCL 600.6013; MSA 27A.6013 inoperative where it plainly applies.
Thus, we are constrained by the rules of statutory construction to award prejudgment interest in the instant dispute on the basis of MCL 600.6013; MSA 27A.6013 by resorting to rules of statutory interpretation. Normally, two statutes which share a common purpose or object are to be interpreted in pari materia. This is the appropriate rule to apply where two statutes are enacted by the same assembly with a common purpose. The rule requires that the two statutes be strictly construed so as to avoid interpreting one in a manner that defeats the main purpose of another on the same subject. Detroit v Michigan Bell Telephone Co, 374 Mich 543, 558, 561; 132 NW2d 660 (1965), cert den 382 US 107 (1965); Richardson v Jackson Co, 432 Mich 377, 384; 443 NW2d 105 (1989).
But where the two statutes cannot be reconciled, this rule of statutory construction does not apply. Specifically, the rule of in pari materia does not control here since it would likely result in upholding the policy embodied in MCL 438.7; MSA 19.4, the earlier statute, in a manner tending to contradict the plain language of the subsequent statute (i.e., MCL 600.6013; MSA 27A.6013). See People ex rel Pellow v Byrne, 272 Mich 284, 288; 261 NW 326 (1935), quoting Voorhies v Recorder’s Court Judge, 220 Mich 155, 157-158; 189 NW 1006 (1922).
Any judicial attempt to read a restriction into MCL 600.6013; MSA 27A.6013, however, is foreclosed. This Court cannot refuse to award prejudgment interest in a "civil action” (from the date of the filing of the complaint) in contravention of the plain language of MCL 600.6013; MSA 27A.6013. Were we to hold that MCL 438.7; MSA 19.4 applies and that plaintiff is not entitled to prejudgment interest from the date of the complaint, it would violate the rule of Voorhies, since the force of the two statutes could not thereby be preserved. See, generally, Rathbun v Michigan, 284 Mich 521, 544-545; 280 NW 35 (1938).
Our conclusion that MCL 600.6013; MSA 27A.6013 applies is supported by the rule that the Revised Judicature Act authorization for prejudgment interest is remedial in nature and so must be liberally construed. Denham, supra at 528-529, citing MCL 600.102; MSA 27A.102.
VII
Given the broad statutory definition of a "civil action” in Michigan, and given the parties stipulation to arbitrate made in the context of a properly filed lawsuit, we conclude that the judgment in favor of plaintiff was made pursuant to a "civil action.”
This Court has defined the term "civil action” broadly enough so that this suit satisfies the requirements of MCL 600.6013; MSA 27A.6013. The trial court’s order confirming the arbitration award was preceded by a complaint and ended in a money judgment. Furthermore, this is not a case where the money judgment rendered was not made by a "court” or lacked the procedural attributes of a civil action. Rather, a trial court entered the judgment in dispute here.
We distinguish this case from those actions which are brought for the sole purpose of obtaining a judgment confirming the award. In asking the court to apply MCL 438.7; MSA 19.4, the defendant relies upon cases interpreting the two interest statutes that are inapplicable to the instant suit. See Morgan v Kamil, 144 Mich App 171; 375 NW2d 378 (1985), lv den 422 Mich 970 (1985); Western Casualty & Surety Co v Garden City, 151 Mich App 83; 390 NW2d 687 (1986). The salient fact in this case is that the parties chose to arbitrate only after the filing of the complaint. By contrast, in Morgan, supra, the parties had agreed to arbitrate prior to the filing of the complaint; moreover, the circuit court dismissed the case after entering an order compelling arbitration. Western Casualty & Surety Co, supra, involved a preexisting arbitration agreement also.
In these two cases, as well as in Osinski v DAIIE, 69 Mich App 426; 245 NW2d 76 (1976), the Courts held that MCL 438.7; MSA 19.4 specifies the entitlement to interest on judgments entered merely to confirm the arbitrator’s award. Also, the arbitration proceedings in those cases were held prior to the bringing of the circuit court action. Thus, by applying MCL 438.7; MSA 19.4, in those cases, the Court of Appeals reached correct results.
MCL 600.6013; MSA 27A.6013 does not apply to money judgments which are ordered as the result of contractually agreed upon means of dispute resolution which a court lacks the power to alter. This rationale justifies the failure to apply MCL 600.6013; MSA 27A.6013 to the prejudgment phase of the litigation. But, even in the above cases, MCL 600.6013; MSA 27A.6013 might have authorjzed prejudgment interest if the party required to pay it had successfully moved to vacate the award on the ground (1) that there was no enforceable agreement to arbitrate, or (2) that the arbitrator’s decision must be set aside. See DAIIE v Gavin, 416 Mich 407, 440-441; 331 NW2d 418 (1982). In Morgan, supra at 173, MCL 600.6013; MSA 27A.6013 may have governed the award of prejudgment interest if the Court had not dismissed the complaint. In all the above cases, MCL 600.6013; MSA 27A.6013 governs the award of postjudgment interest, according to its plain language.
Defendant argues that "this case is not a civil action because an agreement to arbitrate, whether reached before or after the filing of a complaint, precludes a circuit court’s exercise of subject matter jurisdiction while the arbitration is pending.” The defendant relies incorrectly on the Morgan decision to support the view that the trial Court in this case lost subject matter jurisdiction over this lawsuit when the parties entered into their agreement to arbitrate.
When the instant complaint was filed, the trial court clearly had jurisdiction to decide the con tract claim presented to it. By stating in their stipulation that the court would "retain[ ] jurisdiction” over the dispute, the parties clearly consented to allow the court to enter the judgment confirming the arbitrator’s award. Given this stipulation, the court properly retained jurisdiction and entered a judgment conforming to the decision of the arbitrator.
The text and history of MCL 600.6013; MSA 27A.6013 and MCL 438.7; MSA 19.4 simply do not support the conclusion that a party who prevails in an arbitration proceeding is less entitled to prejudgment interest when the award is made in the context of a civil action.
VIII
The policy of encouraging arbitration is in no way frustrated by the award of a higher rate of interest at an earlier point in the litigation under MCL 600.6013; MSA 27A.6013. The parties have some flexibility in specifying the appropriate rate of prejudgment interest.
By drafting agreements that require the arbitration of any disputes as a condition precedent to bringing a court action, parties prevent an entitlement to prejudgment interest under MCL 600.6013; MSA 27A.6013 from ever arising prior to the filing of an action to confirm the arbitrator’s award. Thus, the result of this case will neither encourage nor discourage parties, who intend to prevent litigation, from engaging in arbitration. The demands of MCL 600.6013; MSA 27A.6013 must be satisfied, however, when a "civil action” has been filed and is not dismissed before a judgment is entered on the arbitration award._
IX
In sum, we hold that the 1965 amendment of MCL 600.6013; MSA 27A.6013 repeals MCL 438.7; MSA 19.4 by necessary implication to the extent that the two interest statutes are in conflict. MCL 600.6013; MSA 27A.6013 repeals that part of MCL 438.7; MSA 19.4 providing for prejudgment interest, in the interval between liquidation or ascertainment of the amount owed and either payment of or judgment on that amount in actions "founded on contracts” commenced by filing a complaint with a court, i.e., civil contract actions.
Thus, we reverse the decision of the Court of Appeals, and remand the case for entry of a judgment awarding prejudgment interest in conformity with this opinion.
Riley, C.J., and Brickley, Boyle, and Archer, JJ., concurred with Cavanagh, J.
The stipulation read in part as follows:
This matter is being submitted for resolution by arbitration in accordance with the Construction Industry Rules of the American Arbitration Association. . . . Any award entered into in the aforesaid arbitration may be entered as a judgment in this Court and this Court has retained jurisdiction for the purpose of enforcing any such award. .
The terms of this stipulation conform the arbitration agreement to the requirements of statutory arbitration set forth in MCR 3.602(A), citing MCL 600.5001-600.5040; MSA 27A.5001-27A.5040. Such an agreement to arbitrate, generally, is revocable only by the mutual consent of the parties. MCL 600.5011; MSA 27A.5011. Upon the making of this agreement, the trial court had jurisdiction to enforce its terms and to render judgment on the award thereunder. MCL 600.5025; MSA 27A.5025.
Defendant Hamilton Mutual filed a motion on January 30, 1985, for summary judgment and to dismiss the arbitration. The motion was denied by the lower court without prejudice, pending completion of arbitration, on March 18, 1985.
Several additional facts, though not directly relevant, must be stated to give a complete picture of the nature of the instant lawsuit.
F & T Contractors, the principal, filed suit against plaintiff on November 11, 1976, alleging that $639,949.43 was still owed on the construction contract. Later, f & t’s net claim was reduced to $331,-800. After being sued by f & t, plaintiff sued defendant for $390,000 in the instant suit which was filed after f & t’s claim against plaintiff.
Finally, under a consent judgment entered into between f & t and plaintiff, plaintiff became obligated to pursue arbitration with the instant defendant, Hamilton Mutual. According to that consent agreement, plaintiff must pay to f & t sixty percent of the remainder of any monetary recovery which might be obtained through the arbitration proceeding, less expenses not to exceed $30,000, as a full settlement of f & t’s claims against plaintiff.
Judge Mackenzie dissented and would have affirmed the trial court on all issues, including the interest award.
The plaintiff framed its application in terms of two distinct issues:
Issue I: Is the Court of Appeals clearly erroneous in holding that a plaintiff, having filed suit, forfeits its right to prejudgment interest under MCL 600.6013 [MSA 27A.6013] by later entering into a voluntary stipulation with the defendant to submit their entire dispute to arbitration?
Issue II: Will the Court of Appeals’ ruling cause material injustice if permitted to stand where it contravenes the legislative policies to encourage arbitration and to ensure fair compensation for prevailing plaintiffs?
See n 22.
MCL 438.7; MSA 19.4 provides:
In all actions founded on contracts express or implied, whenever in the execution thereof any amount in money shall be liquidated or ascertained in favor of either party, by verdict, report of referees, award of arbitrators, or by assessment made by the clerk of the court or by any other mode of assessment according to law, it shall be lawful, unless such verdict, report, award, or assessment shall be set aside, to allow and receive interest upon such amount so ascertained or liquidated, until payment thereof, or until judgment shall be thereupon rendered; and in making up and recording such judgment, the interest on such amount shall be added thereto, and included in the judgment.
MCL 600.6013; MSA 27A.6013 provides:
(1) Interest shall be allowed on a money judgment recovered in a civil action, as provided in this section ....
(2) For complaints filed before June 1, 1980, in an action involving other than a written instrument having a rate of interest exceeding 6% per year, the interest on the judgment shall be calculated from the date of filing the complaint to June 1, 1980, at the rate of 6% per year and on and after June 1, 1980, to the date of satisfaction of the judgment at the rate of 12% per year compounded annually.
For example, under MCL 600.6013(3); MSA 27A.6013(3), where a complaint is filed before June 1, 1980, judgment interest may vary between six and twelve percent annually until the date judgment is entered, depending on the parties’ agreement, if any. But, after the date of judgment, interest may not exceed seven percent (except for the period after judgment which elapses after May 31, 1980, in which case interest may not exceed thirteen percent annually).
See also MCL 600.6013(5); MSA 27A.6013(5), as amended by 1986 PA 178, § 1, effective October 1,1986.
Where there is a contractual agreement by the parties regarding the entitlement to interest, or the rate of interest to be awarded, in a dispute founded on a contract, the question of interest is one of the intent of the parties. Therefore, since arbitration is primarily a matter of contract, a stipulation entered by the parties, before or after the complaint is filed, specifying the applicable rate of prejudgment or postcomplaint interest, is normally binding.
Old Orchard by the Bay Associates v Hamilton Mutual Ins Co, unpublished opinion per curiam, decided January 11, 1988 (Docket No. 93161), slip op, p 8, citing Western Casualty & Surety Co v Garden City, 151 Mich App 83, 89; 390 NW2d 687 (1986).
See also id. at 532, citing Waldrop v Rodery, 34 Mich App 1, 4; 190 NW2d 691 (1971) (Levin, J.); Wood v DAIIE, 413 Mich 573, 589, n 17; 321 NW2d 653 (1982).
The historical evolution of these interest statutes, as described above, is discussed in Griffin, Prejudgment interest in contract actions, 67 Mich B J 250 (1988).
The plaintiff provides a very succinct summary of the history of the two statutes:
Chapter 6 contained nine sections, all addressing the topics of money and interest. Section 3, precursor of MCL 438.31 [MSA 19.15(1)], defined the legal rate of interest (7 percent annually or, if agreed otherwise in writing, up to 10 percent). Section 8, precursor to MCL 600.6013 [MSA 27A.6013], provided for interest on all money judgments or decrees.
Section 9, which has remained substantially unchanged and is now codified as MCL 438.7 [MSA 19.4], complemented section 8 by allowing interest "until judgment” as to debts based on contract. The interest under section 9 accrues from the date the amount of the debt becomes "liquidated or ascertained.” The statute recognizes any number of ways by which an amount can become liquidated or ascertained: "by verdict, report of referees, award of arbitrators, or by assessment made by the clerk of the court, or by any other mode of assessment according to law.” . . .
Sections 8 and 9 were never in conflict because the former section covered interest only after the judgment and the latter covered interest only until the judgment. This complementary relationship between the sections continued for more than a century, through several amendments to section 8 and various recodifications, until 1965 PA 240, sec. 1. By that enactment, the Legislature amended the accrual date in MCL 600.6013 [MSA 27A.6013] (the descendant of section 8) so that interest on a judgment would thereafter be "calculated from the date of filing the complaint.”
The two sections were published under the same heading — "Title VII, Chapter 6, Of Money of Account, and of the Interest of Money, and on Judgments, Verdicts, &c.” — and under the same subheading— "Interest on Judgments, Verdicts, &c.” The two statutes, as they appeared in 1838, read as follows:
Sec. 8 Interest may be allowed and received, upon all judgments at law, for the recovery of any sums of money, and upon all decrees in chancery, for the payment of any sums of money, whatever may be the form or cause of action or suit in which such judgment or decree shall be rendered or made; and such interest may be collected on execution. [The predecessor of MCL 600.6013; MSA 27A.6013.]
Sec. 9 In all actions founded on contracts express or implied, wherever in the prosecution thereof any amount in money shall be liquidated or ascertained in favor of either party, by verdict, report of referees, award of arbitrators, or by assessment made by the clerk of the court, or by any other mode of assessment according to law, it shall be lawful, unless such verdict, report, award, or assessment shall be set aside, to allow and receive interest on such account, so ascertained or liquidated, until payment thereof, or until judgment shall thereupon be rendered, and in making up and recording such judgment, the interest on such amount shall be added thereto, and included in the judgment.
The 1838 statute was reenacted in 1846, a statute which com bined together the prior sections that provide for "Interest of Money” (wherein a conventional legal rate of interest is specified) and for judgment and prejudgment interest (the former §§ 8 and 9 of the 1838 statute). The phrase "at the rate of seven per centum per annum” was added to the end of §6, but otherwise it was reenacted as it appeared in 1838. See 1846 RS, ch 34, § 6.
Section 8 of the 1838 Revised Statutes (predecessor of MCL 600.6013; MSA 27A.6013) was moved from its original location alongside the prejudgment interest provision. See 1915 PA 314, ch 22, § 20. The other change of some significance was the addition of language specifying that the judgment be "in a civil action.” This amendment came in 1961 when the Judicature Act of 1915 was recodified as the Revised Judicature Act, see 1961 PA 236, ch 60, §6013, where it remains today.
While such double recoveries of interest are permitted when a clear legislative purpose is served thereby, see Wood, n 12 supra, no such result can be justified under the statutes at issue here. A double award of prejudgment interest under both MCL 600.6013; MSA 27A.6013 and MCL 438.7; MSA 19.4 would overcompensate the prevailing party in contradiction of the purposes of the statute and would produce an absurd result. Thus, we assume that the Legislature did not intend to apply both statutes and thereby authorize two sources of recovery of prejudgment interest.
The two interest statutes simply do not contain any textual clues as to how one would decide which of the two provisions should be given priority in what circumstances.
A "civil action” is defined as an "action is commenced by filing a complaint with a court.” MCR 2.101(B) (formerly GCR 1963, 101). See also MCL 600.1901; MSA 27A.1901 (codifying court rule); Buscaino v Rhodes, 385 Mich 474, 481; 189 NW2d 202 (1971) (a civil action is commenced by the filing of a complaint in the context of the statutes of limitations, as well as every other context).
See Solakis v Roberts, 395 Mich 13, 21; 233 NW2d 1 (1975) (Workers’ Compensation Appeal Board is not a court and is not possessed of judicial power), and Detroit v Detroit Police Officers Ass’n, 408 Mich 410, 499-502; 294 NW2d 68 (1980).
Indeed, the trial court may dismiss a complaint after entering an order compelling arbitration, where the arbitration proceedings are not yet final and the parties do not dispute the existence or terms of the agreement to arbitrate.
In that situation, moreover, even if the civil action is stayed (pursuant to MCR 3.602[C]), the presence of a prior arbitration agreement means that MCL 438.7; MSA 19.4, rather than MCL 600.6013; MSA 27A.6013, governs the entitlement to prejudgment interest.
Under MCR 3.602(C), the court must issue a stay if an order for arbitration or an application for such an order has been made. The rule does not address whether the court having granted the stay (pending the outcome of arbitration) may or must dismiss the case for lack of jurisdiction.
We do not decide what is the applicable rate of interest since we are not required to settle the issue to decide this case. This Court in Solakis v Roberts, n 21 supra at 20, fixed the interest rate allowable under MCL 438.7; MSA 19.4 at five percent according to the terms of MCL 438.31; MSA 19,15(1), yet, held that MCL 438.7; MSA 19.4 determines a right to interest op workers’ compensation awards that is fixed by the five percent per annum rate specified in MCL 438.31; MSA 19.15(1).
The legislative history of MCL 438.7; MSA 19.4 casts doubt on this proposition and raises the possibility that the interest rate that this interest statute borrows shall be the one specified in ‘MCL 600.6013; MSA 27A.6013. See, e.g., Griffin, n 13 supra at 254 ("The Legislature intended that the prejudgment interest of the Revised Statutes, now MCL 438.7; MSA 19.4, should have the same rate as the judgment interest of the Revised Statutes, now MCL 600.6013 [MSA 27A.6013]”). Indeed, the specific language and history of MCL 438.7; MSA 19.4 suggests that it was intended to establish a "legal rate” of interest, rather than the rate of interest for money wrongfully detained. Its primary purpose was to establish limits on transactions insofar as the conventional rate of interest is concerned and to facilitate the enforcement of the prohibition on usury.
We also do not decide whether the allowance of interest on verdicts and judgments in Michigan is "purely statutory,” see Motyka v Detroit, G H & M R Co, 260 Mich 396, 398; 244 NW 897 (1932), or allowable even where no express statute could be invoked, Wilson v Doehler-Jarvis Div of Nat’l Lead Co, 358 Mich 510, 514-519; 100 NW2d 226 (1960).
Thus, the Court in Western Casualty & Surety Co, supra at 89, was incorrect when it stated that "nothing authorizes interest on an arbitration award (with the exception of the arbitration interest statute [MCL 438.7; MSA 19.4] to be discussed) whether awarded by the court or the arbitration panel.” MCL 438.7; MSA 19.4 may not properly be referred to as the "arbitration interest statute” since it authorizes the award of interest in a variety of other contexts and it is not the exclusive source of statutory entitlement to interest on an arbitration award.
The Morgan Court stated: “Since plaintiff was a party to the arbitration agreement, the circuit court lacked subject matter jurisdiction over the lawsuit.” Id. at 176, citing Bowes v Int'l Pharmakon Lab, Inc, 111 Mich App 410; 314 NW2d 642 (1981).
For the contrary view, namely, that the court does not lack subject matter jurisdiction to decide an arbitrable dispute under MCL 600.5001(2), 600.5025; MSA 27A.5001(2), 27A.5025, see DAIIE v Maurizio, 129 Mich App 166; 341 NW2d 262 (1983), Hendrickson v Moghissi, 158 Mich App 290, 295-296; 404 NW2d 728 (1987), and Campbell v St John Hosp, 170 Mich App 551, 558-559; 428 NW2d 711 (1988).
See MCL 600.5025; MSA 27A.5025 (the legal and equitable power of a court to enforce the parties’ arbitration agreement and to render judgment on any award thereunder). | [
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R. B. Burns, J.
Petitioner appeals from an order of the Michigan Tax Tribunal declaring that petitioner was not entitled to a personal property tax exemption. We reverse.
Petitioner is a nonprofit corporation which, according to its articles of incorporation, was organized to operate "a museum to preserve the legacy of World War II aviation * * * for the purpose of educating and enhancing the knowledge of the public” about such aviation. Petitioner is located in a building on Kalamazoo City Airport property, which property is leased from the respondent city. The museum building is divided into two sections: (1) the hangar area, which houses aircraft and aircraft engines; and (2) the exhibit area, which contains, among other things, World War II photographs, uniforms, paintings, plastic models of airplanes, aircraft equipment, maps, a library, newspaper front pages, and pilot-training devices. In addition to being displayed at the museum, the operational aircraft are exhibited and sometimes flown at air shows in this country and in Canada.
The museum is open Monday through Saturday from 10 a.m. to 5 p.m. and on Sundays from 1 p.m. to 5 p.m. Petitioner charges a $3 admission fee for adults and a $1 fee for senior citizens and children from ages 7-11. Special rates are available to families and school groups. The admission fees help defray operating costs, which greatly exceed petitioner’s income. In 1979, the petitioner had a total deficit of $536,270.76 and a $246,589.79 deficit in 1980.
Petitioner argued to the Tax Tribunal that it was entitled to be exempt from personal property taxes under MCL 211.9(a); MSA 7.9(a), which protects nonprofit charitable, educational, or scientific institutions. It should be noted that personal property tax exemptions are also provided for such institutions under MCL 211.7n; MSA 7.7(4k) and MCL 211.7o; MSA 7.7(41). Section 7n exempts personal property owned and occupied by a nonprofit theater, library, educational, or scientific institution, while personal property owned and occupied by charitable institutions is exempt under section 7o.
To qualify for exemption from property taxes, a claimant must satisfy the following requirements:
(1) the property must be owned and used or occupied by the exemption claimant;
(2) the exemption claimant must qualify as one of the institutions referred to in the above-quoted statutes;
(3) the claimant must be incorporated under Michigan law; and_
(4) the exemption can be applied only when the building and property thereon are occupied by the claimant solely for the purposes for which it was incorporated.
See Engineering Society of Detroit v Detroit, 308 Mich 539, 550; 14 NW2d 79 (1944); Michigan United Conservation Clubs v Lansing Twp, 129 Mich App 1; 342 NW2d 290 (1983); American Society of Agricultural Engineers v St Joseph Twp, 53 Mich App 45, 47; 218 NW2d 685 (1974).
The only dispute regarding this test in the present case is whether petitioner has carried its burden of proof as to the second criterion. The Tax Tribunal found that petitioner was not a charitable, educational, or scientific institution within the meaning of MCL 211.9; MSA 7.9. In reviewing a decision of the Tax Tribunal not related to valuation or allocation under property tax laws, this Court’s review is limited to determining whether such decision is authorized by law and whether it is supported by competent, substantial, and material evidence on the whole record. Const 1963, art 6, § 28. Terco, Inc v Dep’t of Treasury, 127 Mich App 220; 339 NW2d 17 (1983). Furthermore, exemption statutes are to be strictly construed in favor of the taxing unit. See Retirement Homes v Sylvan Twp, 416 Mich 340, 348-349; 330 NW2d 682 (1982); Michigan Baptist Homes & Development Co v Ann Arbor, 396 Mich 660; 242 NW2d 749 (1946).
We believe the tribunal properly concluded that petitioner was not entitled to personal property tax exemption as an educational or scientific institution. To qualify as a tax-exempt educational institution, the museum must fit into the general education scheme provided by the state and supported by taxation, so that it makes a substantial contribution to the relief of the burden of the government in educating the people. See Ladies Literary Club v Grand Rapids, 409 Mich 748, 755-756; 298 NW2d 422 (1980); Detroit v Detroit Commercial College, 322 Mich 142; 33 NW2d 737 (1948). Similarly, to qualify as a tax-exempt scientific institution, the claimant must show that it makes a substantial contribution to the relief of the government’s burden of producing "scientific” information. See American Society of Agricultural Engineers v St Joseph Twp, supra, pp 48-49; American Concrete Institute v State Tax Comm, 12 Mich App 595; 163 NW2d 508 (1968).
We do not believe that, were it not for the petitioner’s operation, the state’s educational and scientific burdens would be proportionately increased. While the petitioner’s activities enlighten the public, the government’s educational and scientific burdens are not sufficiently relieved by these activities so as to warrant personal property tax exemptions as an educational or scientific institution. Ladies Literary Club v Grand Rapids, supra, p 756, fn 3; American Concrete Institute, supra, pp 608-611 (Levin, J., concurring).
However, we do believe that petitioner is entitled to a tax exemption as a charitable institution. In Retirement Homes v Sylvan Twp, supra, pp 348-349, the Supreme Court set forth the following descriptions of charitable organizations entitled to tax exemption:
"In Michigan Baptist Homes, this Court declared that, to qualify for a charitable or benevolent tax exemption, property must be used in such a way that it 'benefit the general public without restriction’. Courts in other jurisdictions have expressed this concept in the following language:
" '[CJharity * * * [is] a gift to be applied consistently with existing laws, for the beneñt of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government.’ (Emphasis supplied.)” (Footnotes omitted.)
The tribunal ruled that petitioner was not a charitable organization because: (a) war is not charitable; (b) preservation of the memory of war is not a gift of benevolence; (c) granting the exemption would extend tax-free status to all publicly oriented entities, not just the "truly benevolent, gift-giving institutions of human kindness” which were intended to benefit from the tax exemption statutes.
The tribunal’s ruling constitutes a clear misapplication of the law governing the charitable institution exemption. Under the standards discussed in Retirement Homes, supra, it is immaterial that war is not charitable or that preserving the memory of war is not a benevolent gift. Nor is it true that gift-giving institutions of human kindness are the only nonprofit organizations entitled to property tax exemptions as charities. It is evident from the Supreme Court’s definition that, when used in reference to tax exemptions, the word "charitable” has a much broader meaning than that commonly associated with the word. For petitioner to qualify as a charitable institution it is sufficient that it establish that its property is used in such a way that there is a gift for the benefit of the general public without restriction or for the benefit of an indefinite number of persons by bringing their minds or hearts under the influence of education. We believe museums such as petitioner’s satisfy this standard.
Petitioner provides a place where members of the general public without restriction can learn about the aerial fighting in World War II. At the museum, visitors can view the aircraft used in the war and at airshows can see how they were operated. From the other exhibits, they can learn how the aviators were trained and uniformed and how important battles were fought. The museum also has a room which contains war mementos from local persons who served in the air corps. A portion of the museum houses books and manuals concerning World War II aviation which assist those persons doing research or aircraft restoration. The museum staff contributes its time and knowledge in responding to inquiries concerning aircraft.
Petitioner’s activities enhance the general public’s knowledge and understanding of a specific part of history. In this way, it brings an indefinite number of persons under the influence of education and thus qualifies for a charitable exemption under MCL 211.9; MSA 7.9. Support for this analysis is found in Michigan United Conservation Clubs v Lansing Twp, supra, and Kalamazoo Nature Center, Inc v Cooper Twp, 104 Mich App 657; 305 NW2d 283 (1981). In Michigan United Conservation Clubs the Court noted that the conservation clubs’ activities included the following: (1) contributing pamphlets and books which instruct on the values of conservation and development of natural resources; (2) contributing freely of its members’ time and staff for lectures and presentations on these subjects; and (3) conducting hunter-safety programs in youth camps. The Court stated that if such activities were the limit of the clubs’ purpose, the Court would not hesitate to conclude that the clubs were entitled to a charitable exemption. However, because the clubs’ activities included a considerable amount of legislative lobbying and public promotion to advance specific forms of conservation, the Court viewed the clubs as substantially political organizations and, therefore, not entitled to a charitable exemption.
In Kalamazoo Nature Center v Cooper Twp, supra, the claimant was organized "[t]o develop in people and especially children a better understanding and appreciation of our natural surroundings and of the problems of wise management of our nature resources”. 104 Mich App 659. The tribunal ruled that the claimant was a charitable association, but not an educational or scientific institution. This Court upheld the tribunal’s findings that the claimant was not an educational institution.
Michigan United Conservation Clubs and Kalamazoo Nature Center teach us that where a nonprofit institution educates the public so as to enhance its understanding of a worthwhile subject the institution can qualify as a tax-exempt charitable organization, assuming it meets the other requirements for tax exemption. If a nature center which seeks to impart a better understanding of natural resource management qualifies for a charitable exemption, or if a conservation club would qualify as a tax-exempt charity but for its political activities, we see no reason why tax-exempt status should not be accorded to a museum which preserves and informs the public about part of our history. We believe the interpretation of MCL 211.9; MSA 7.9 advanced by respondent is too restrictive and does not effectuate the Legislature’s intention, which we believe is to provide a tax exemption for organizations such as petitioner.
Reversed.
The aircraft exhibited are as follows: (1) B-25 "Mitchell” bomber; (2) F-84 Thunderstreak; (3) Grumman Bearcat; (4) Republic Thunderbolt; (5) Chance Vought Corsair; (6) Curtis Warhawk "Flying Tiger”; (7) North American Texan; (8) Grumman Wildcat; (9) Boeing Stearman; (10) Grumman Hellcat; and (11) Messerschmitt. The museum also contains a restoration area open to the public, where the airplanes are rebuilt.
The statute provides in pertinent part:
"The following personal property shall be exempt from taxation:
"(a) The personal property of charitable, educational, and scientific institutions, incorporated under the laws of this state. The exemptions shall not apply to secret or fraternal societies, but the personal property of all charitable homes of the societies and nonprofit corporations which own and operate facilities for the aged and chronically ill, in which the net income from the operation of the corporations does not inure to the benefit of a person other than the residents shall be exempt.”
Buildings located on leased lands are also included in the definition of personal property under the above-quoted section. MCL 211.8(d); MSA 7.8(d).
Petitioner is not disqualified from receiving a charitable exemption because it charges a fee which pays a fraction of its operating costs. Retirement Homes v Sylvan Twp, supra, p 350, fn 15. If petitioner refused to waive fees for persons who could not afford them, such policy would indicate that petitioner is not a charitable organization entitled to exemption from property taxes. However, there is no indication in the record as to petitioner’s policy regarding those who cannot pay the fee.
The Michigan United Conservation Clubs were formed to "promote and encourage the scientific management and intelligent sustained use of the above resources, recognizing as a valid management tool the harvest and use of surplus wildlife and other renewable resources” and to "protect and defend the right of our citizens to own, keep and hear arms”. Thus, the clubs forcefully advance a specific viewpoint rather than restricting their teaching to the less partisan subject of conservation in general. Michigan United Conservation Clubs, supra, p 4. | [
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Per Curiam.
Defendant appeals as of right from two separate orders entered in the Ingham County Circuit Court in this protracted action over plaintiffs appropriate civil service classification. In Docket No. 72185 defendant appeals from an order of the circuit court belatedly entered on June 7, 1983. This order denied defendant’s motion for a rehearing or to remand this case to the Michigan Civil Service Commission’s Employment Relations Board (ERB) for a decision on other issues raised before, but not resolved by, the ERB which might affect plaintiffs right to be reclassified. In Docket No. 70887, defendant appeals from an order of superintending control entered on April 14, 1983, which ordered plaintiffs immediate reclassification from Administrative Law Examiner V to Administrative Law Examiner VI, back pay with interest, and prohibited the ERB from "rehearing, reopening, and reconsidering” the classification matter. By order of this Court of November 30, 1983, the appeals in Docket Nos. 70887 and 72185 were consolidated.
The following factual statement gives the background pertinent to both appeals.
In April, 1981, plaintiff sought a hearing on whether he should be reclassified to a higher civil service ranking, i.e., from Administrative Law Examiner V to Administrative Law Examiner VI. This reclassification was sought in part because plaintiff allegedly had supervisory responsibilities over two other employees, Donald Kane and Lily Gee.
A hearing was conducted in July, 1981, before a civil service hearing officer. Defendant argued, inter alia, that even if plaintiff met the job specifications for reclassification to the next higher level, he could not be reclassified because this would put him at his supervisor’s civil service ranking. In August, 1981, the hearing officer ruled in plaintiffs favor. The hearing officer determined that plaintiff met the specifications for reclassification to the next higher level and that the "organizational blockage” issue raised by defendant was not a valid ground on which to deny the reclassification. The hearing officer ordered retroactive reinstatement of plaintiff to the next higher level.
Defendant took an appeal to the ERB in November, 1981. The ERB reversed the hearing officer, relying on the "organizational blockage” theory rejected by the hearing officer. On March 4, 1982, a final order was entered by the Michigan Department of Civil Service in accord with the ERB decision.
On April 28, 1982, plaintiff filed a petition for review in the circuit court pursuant to OCR 1963, 706.3, citing the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., as the authority permitting such review. On November 18, 1982, the circuit court reversed the ERB ruling and ordered plaintiffs retroactive reinstatement to the classification of Administrative Law Examiner VI.
On December 3, 1982, defendant filed a motion for rehearing and to remand the matter to the ERB. This motion alleged that the ERB had not yet reviewed whether plaintiff actually supervised Gee and Kane, that other issues independent of the "organizational blockage” controversy had not been resolved, and that one of these issues might preclude plaintiffs reclassification. This motion was orally denied on January 26, 1983. After the court orally denied the motion for rehearing, neither party took steps to prepare an order for execution by the circuit court judge. Defendant ultimately did prepare an order denying the motion for rehearing which was entered on June 7, 1983. The apparent reason defendant finally prepared an order was so that it could then claim an appeal from the results of the January hearing. This order is on appeal in Docket No. 72185.
Despite the fact that the circuit court had denied defendant’s request to reconsider its earlier ruling or to remand the matter to the ERB, on March 17, 1983, the Assistant Attorney General representing defendant asked the ERB to reopen this reclassification matter and, specifically, to consider whether plaintiff supervised Kane and Gee. The ERB, on March 22, 1983, ordered plaintiff to reply. This letter specifically asked plaintiff to address himself to the ERB’s jurisdiction to reopen the case. Apparently, plaintiff did not respond to the ERB’s request but, rather, instituted the action for superintending control on April 4, 1983. On April 14, 1983, the circuit court entered plaintiff’s proposed order of superintending control, and the appeal in Docket No. 70887 concerns this order.
At some point, defendant filed a motion to stay the order of superintending control in this Court. By order dated May 9, 1983, this Court granted the motion.
Because we reverse the circuit court’s order in Docket No. 72185 and remand to the ERB for the reasons set forth below, we do not address the various issues raised by defendant in Docket No. 70887 which concern the propriety of entering, and the validity of, the order of superintending control.
At the hearing before the circuit court on the motion to reconsider its earlier judgment or for remand to the ERB, defendant argued that the circuit court’s decision to reverse the ERB and the Michigan Civil Service Commission on the issue relied upon by these bodies to deny plaintiff his requested reclassification was not dispositive of the merits of the case as other issues affecting plaintiffs right to be reclassified had not yet been resolved. The court apparently took defendant’s motion as a request that it (the court) review other issues not reached by the ERB and refused to grant defendant any relief. When the attorney representing defendant attempted to explain that what he was asking for was a remand to the ERB, not review by the circuit court, the court displayed some irritation and refused to entertain further arguments.
On appeal, defendant argues that, on the facts of this case, the circuit court was obligated to remand for further proceedings as this was the only appropriate disposition of the case since issues raised before the ERB remained unresolved. Plain tiff responds that the lower court lost its power to remand after it entered its order of November 18, 1982, which reversed the decisions of the ERB and Civil Service Commission and ordered his reclassification, and, in any case, that the circuit court had authority to remand or not as it chose. The central issue and the attendant questions raised in this appeal have not heretofore been addressed by the Michigan appellate courts.
We first address whether, as plaintiff contends, the circuit court’s initial disposition of this case, reversal of the decisions of the ERB and Civil Service Commission and reinstatement of the hearing officer's determination that plaintiff be reclassified, divested the circuit court of authority to modify that judgment upon defendant’s motion. The General Court Rules contain no provision specifically providing for rehearings in cases in which the circuit court acts as a reviewing court. However, GCR 1963, 527.5 provides that a motion to alter or amend a judgment shall be served within 20 days after the entry of the judgment. This provision is broad enough to give a circuit court power to entertain rehearings of matters in which it has entered judgments as a court of review. To hold that a circuit court is completely without authority to reconsider judgments it rendered in an appellate capacity would result in cases where, in retrospect, the circuit court believed that its original judgment was wrong but that it could not rectify the situation because it possessed no authority to rehear the matter.
In the instant case, a proof of service in the lower court file shows that plaintiff was served with a motion to amend judgment, to permit remand, and for rehearing on December 4, 1983, and that this motion was filed with the circuit court on December 6, 1983. Defendant clearly complied with the provisions of GCR 1963, 527.5 by filing its motion within 20 days of November 18, 1982, the date on which the circuit court originally entered its order requiring plaintiff’s reclassification.
Circuit court review was invoked in this case by plaintiff pursuant to the Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101), et seq. Section 106(2) of this act, MCL 24.306(2); MSA 3.560(206)(2), provides: "The court, as appropriate, may affirm, reverse or modify the decision or order or remand the case for further proceedings.” (Emphasis added.) We next address whether this provision imposes any limits on the discretion of the circuit court to select a disposition of an administrative matter from those mentioned in the rule. We conclude that the Legislature’s use of the term "as appropriate” imposes some limits on the court’s discretion to dispose of a case. Had the Legislature intended the courts to have unfettered discretion in this regard, the term "as appropriate” would be meaningless, and a statute is to be construed to give effect to all of the language used therein if this is possible. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956); Deshler v Grigg, 90 Mich App 49, 53-54; 282 NW2d 237 (1979), lv den 407 Mich 875 (1979). Our construction of the term "as appropriate” in MCL 24.306(2); MSA 3.560(206)(2) does not impose stringent restrictions on the court’s discretion to dispose of a case. In many cases, different remedies may be apropriate, and, if the lower court has selected among appropriate remedies, it has properly exercised its discretion.
We finally turn to whether the circuit court’s order reversing the ERB and Civil Service Commission and reinstating the hearing officer’s deci sion to reclassify plaintiff was "appropriate”. We hold that it was not. A review of the administrative record reveals that defendant asserted before the ERB that several errors had been committed by the hearing officer. However, the ERB, in finding in favor of defendant on the issue of "organizational blockage”, did not address the other allegations made by defendant. From a review of the administrative record, it should have been evident to the circuit court that other issues unresolved by the ERB might well have affected plaintiff’s right to his requested reclassification. While it is true that defendant did not initially request a remand in the event that plaintiff prevailed on the issue of "organizational blockage”, we deem this to be of no import. Standard principles of appellate review mandate that where material issues remain unresolved by the lower tribunal, the court of review, if it reverses, may remand the case for a resolution of those material issues raised in, but not resolved by, the lower tribunal. Therefore, we remand this matter to the ERB to resolve any issues raised before it by defendant which were not resolved when the ERB found for defendant on the issue of "organizational blockage”.
To ensure against further piecemeal resolution of this litigation, we order the ERB to require any necessary briefing by the parties, hold a hearing, and address all outstanding issues in this case within 60 days of the date of this opinion’s release. The Civil Service Commission shall have 30 additional days after the ERB renders its judgment to enter a final administrative order in this case. The circuit court shall have full powers to impose sanctions to ensure that the parties, the ERB, and the Civil Service Commission comply with the time limits set forth in this opinion. If, following the decision of the ERB and the Civil Service Commission, either party deems itself aggrieved, that party may proceed with a new petition for circuit court review pursuant to GCR 1963, 706.3.
The judgment in Docket No. 72185 is reversed and remanded to the ERB for proceedings consistent with this opinion. The judgment in Docket No. 70887 is vacated for the reason that our resolution of Docket No. 72185 renders the issues raised in Docket No. 70887 moot. We do not retain jurisdiction. No costs, a public question.
We cannot condone either party’s actions in respect to what happened after the circuit court orally denied defendant’s motion for a remand or a rehearing. Despite the court’s ruling, defendant defied the circuit court by asking the ERB to reopen the case, justifying this request on the basis that plaintiff, having prevailed in the circuit court, was obligated to prepare an order denying the rehearing. In fact, GCR 1963, 522.1, which governs the entrance of judgments and orders, does not obligate the prevailing party to prepare the judgment or order, although this is the customary practice. The rule clearly contemplates some cooperation between the parties in the preparation of the order and does mandate that it be prepared within 10 days of the judge’s decision. This is a joint obligation of the parties which was ignored by both parties in this case. As a result of the parties’ unwillingness to abide by the rules, what should have resulted in one simple appeal developed into a tangled procedural morass, causing an unnecessary flurry of documents directed to the ERB, the circuit court, and this Court, and the needless waste of tax monies in attempting to sort out this case.
This general principle is subject to exception where, for instance, although the lower tribunal did not actually reach an issue raised before it, the record is well enough developed for the court of review to reach a conclusion on the unresolved question. This is appropriate where the unresolved issue is purely one of law or where the lower tribunal has sufficiently fulfilled its factfinding function to permit the court of review to reach a determination on the unresolved issue. In this case, the circuit court specifically declined to undertake its own review of the unresolved issues, and our review of the administrative record reveals that this would not have been an appropriate case for the circuit court to conduct such a review. | [
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R. B. Burns, J.
Defendants appeal by leave granted an order of the Ingham County Circuit Court denying the defendants’ motion for partial summary judgment as to whether plaintiff violated § 16 of the Franchise Investment Law, MCL 445.1516; MSA 19.854(16), entitling defendants to rescission or damages.
Plaintiff, Interstate Auto Transmission Company, Inc., is a national corporation which franchises local businesses to operate automobile transmission repair facilities. Interstate is required to register with the Michigan Department of Commerce, Corporation and Securities Division, in order to sell its franchises in this state. Interstate has registered and filed the requisite offering circular and prospectus in connection therewith.
Interstate sold a franchise to Aaron Reavis, who successfully operated the business for several years. Reavis then resold the business to defendants, Harvey and Leidi. At the time of sale, Leidi was employed in Reavis’s shop and Harvey was a mechanic and businessman with substantial experience in the automobile transmission repair business.
Section 16 of the Michigan Franchise Investment Law and Department of Commerce rules promulgated thereunder, 1979 AC, R 445.405, required Reavis to deliver to Harvey and Leidi, prior to sale, a copy of Interstate’s current prospectus. For purposes of this appeal at least, there is no issue of fact that Reavis did not deliver a copy of the prospectus. In related litigation, Reavis refunded to Harvey and Leidi their entire downpayment in exchange for reconveyance to him of the franchise.
This suit by Interstate was originally brought to recover more than $17,000 in unpaid royalties. Defendants have interposed the defense of illegal ity in the franchise transfer process. In this connection, it should be noted, by separate contract and for consideration of $2,500, Interstate undertook to act as broker for Reavis in the selling of the franchise and preparation of all legal documents in connection therewith and by the terms of the original franchise had the right to approve or disapprove any transfer. Interstate in fact undertook an investigation of the prospective purchasers before placing its imprimatur on the sale.
Section 16 of the Franchise Investment Law states:
"A franchise which is subject to registration under this act shall not be sold without first providing to the prospective franchisee, at least 1 week prior to the execution by the prospective franchisee of any binding franchise or other agreement or at least 1 week prior to the receipt of any consideration, whichever occurs first, a copy of the prospectus, together with a copy of alí proposed agreements relating to the sale of the franchise.” MCL 445.1516; MSA 19.854(16).
The trial court held that, since Reavis, the franchisee, was the seller, the resulting § 16 obligations were his exclusive responsibility, and therefore Interstate had no responsibility in the premises.
Section 32 of the Franchise Investment Law provides:
"A person who directly or indirectly controls a person liable under this act * * * is also liable jointly and severally with and to the same extent as the person, unless the other person who is so liable had no knowledge of or reasonable grounds to believe in the existence of the facts by reason of which the liability is alleged to exist.” MCL 445.1532; MSA 19.854(32).
Section 31(1) provides:
"(1) A person who offers or sells a franchise in violation of sections 5(1), 6, or 16 is liable to the person purchasing the franchise for damages or rescission, with interest at 6% per year from the date of purchase and reasonable attorney fees and court costs.” MCL 445.1531(1); MSA 19.854(31X1).
Section 32 imposed the responsibility on Interstate to ensure delivery of the prospectus.
Since Harvey and Leidi have shown a violation of § 16, they are entitled to rescind the franchise agreement. This is true even though they previously entered into a settlement with Aaron Reavis which included the return of the business and the refunding of the downpayment. Section 31(2) prohibits the maintenance of an action for rescission or damages where there has been a settlement offer to refund the consideration paid for the franchise.
In the instant case, however, there has been no offer of settlement in regard to Harvey and Leidi’s debts under the franchise agreement entered into by Harvey and Leidi and Interstate. The settlement agreement executed by Harvey and Leidi and Aaron Reavis requires in ¶ 1 the return of the $11,675.82 downpayment to Harvey and Leidi. Parágraph 6 requires Harvey and Leidi to return all stock certificates in the "R-Jac Corporation”, the assets of the "Chu-Mick Corporation”, and Harvey and Leidi’s interest in the franchise issued by Interstate Automatic Transmission. The agreement does not, however, absolve Harvey and Leidi of debts incurred under the franchise agreement. Therefore, the agreement between Harvey and Leidi and Interstate has not been rescinded.
In the event that Harvey and Leidi choose to rescind the franchise agreement, they should be required to return the benefits conferred under that agreement. Generally, rescission requires the restoration of the status quo ante. Papciak v Morawski, 243 Mich 157; 219 NW 601 (1928). Where the property, per se, cannot be returned but the value thereof is capable of ascertainment, rescission may still be had. Szarkowski v Pfister, 262 Mich 226; 247 NW 163 (1933). The Legislature’s intention to follow this general rule in the Franchise Investment Law is evidenced by the requirement under § 31(2) that, in approving a rescission offer, the department may consider an equitable offer recognizing "depreciation, amortization, and other factors which bear upon the value of the franchise being returned to the franchisor”. MCL 445.1531(2); MSA 19.854(31X2).
Interstate claims that Harvey and Leidi took full advantage of the benefits conferred under the agreement by using, for two years, the Interstate trademark and by attending training sessions, etc. To the extent that Interstate is able to prove these assertions at trial, it is entitled to the return of the value of these benefits.
In summation, since Interstate controlled the assignment of the franchise agreement to Harvey and Leidi, it was required under § 16 of the Franchise Investment Law to supply Harvey and Leidi with a franchise prospectus. Since Interstate failed to ensure that Harvey and Leidi were supplied with a prospectus, the trial court erred in determining that Interstate could not be held liable for a violation of this requirement. Moreover, Harvey and Leidi are entitled to damages or rescission of the franchise agreement based on Interstate’s failure to supply a prospectus.
Reversed and remanded. | [
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Per Curiam.
Defendant was convicted by a jury of voluntary manslaughter, MCL 750.321; MSA 28.553, and sentenced to a term of ten to fifteen years in prison.
Defendant claims numerous errors, only one of which is worthy of discussion.
Defendant contends that the trial court committed error requiring reversal in denying an instruction regarding "mere presence.” The trial court is required to charge the jury concerning the law applicable to the case. People v Hearn, 100 Mich App 749, 753; 300 NW2d 396 (1980). In People v Reed, 393 Mich 342, 349-350; 224 NW2d 867 (1975), the Supreme Court stated:
The instruction to the jury must include all elements of the crime charged . . . and must not exclude from jury consideration material issues, defenses or theories if there is evidence to support them.
See also People v Daniel, 207 Mich App 47; 523 NW2d 830 (1994).
Instructions are reviewed in their entirety to determine if reversal is required. People v Caulley, 197 Mich App 177, 184; 494 NW2d 853 (1992). Reversal is not required where the jury instructions, taken as a whole, sufficiently protect the defendant’s rights. People v Gaydosh, 203 Mich App 235, 237; 512 NW2d 65 (1982). Further, it has been held that the failure to give a requested instruction is error requiring reversal only if the requested instruction (1) is substantially correct, (2) was not substantially covered in the charge given to the jury, and (3) concerns an important point in the trial so that the failure to give it seriously impaired the defendant’s ability to effectively present a given defense. See, e.g., United States v Newton, 891 F2d 944, 949 (CA 1, 1989).
We are of the opinion that a "mere presence” instruction would not have been "substantially correct” under the circumstances of this case inasmuch as this was not a defense theory. Our appraisal of the record and defense counsel’s argument show that defendant did not claim "mere presence.” In United States v Perkins, 926 F2d 1271 (CA 1, 1991), the court said that "mere presence” implies not only an absence of criminal intent but also passivity and nonparticipation in the actual commission of crime. Here, defendant variously argued that (1) there was no evidence that he actually committed the killing of Cindy Miller other than his statement that he was in the apartment where the killing took place, (2) there was no matching of physical evidence (hair or fingerprints), (3) he was intoxicated, (4) he did not really believe the actual perpetrator was going to kill even though the perpetrator so stated, and (5) he intended to prevent the killing if the situation ever got that far. Moreover, defendant’s statement to the police was evidence of activity beyond the concept of "mere presence.” Defendant admittedly drove the perpetrator to the victim’s apartment, was in the apartment during the killing, which he observed from close range, and said that he thereafter drove the perpetrator back to a bar, before driving himself home.
Thus, defendant’s actual defenses were intoxication, unwitting accompaniment of the perpetrator to the victim’s apartment, his purported lack of knowledge until too late, that contrary to his evaluation of the situation the would-be perpetra tor actually intended to kill Cindy Miller, and his own lack of criminal intent.
A fair reading of the trial court’s instructions concerning the elements of the charge, the lesser offenses, and proscribed coalitions leads this Court to conclude that the instructions were adequate. Had the jury accepted defendant’s version of his participation, or lack thereof, as urged by defense counsel, it would not have convicted defendant under the instructions given. Defense counsel gave an unbridled argument to the jury embracing his defensive posture and was not in any way mistaken in his presentation or misled by the denial of the instruction.
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Michael J. Kelly, P.J.
Plaintiff appeals as of right a circuit court order modifying a 1978 judgment of divorce and requiring plaintiff to pay child support until the June following the twenty-first birthday of the parties’ minor child. We reverse.
The parties were divorced in 1978. The divorce judgment contained the following provision regarding child support:
It is further ordered and adjudged that the Plaintiff herein, Ricky James Blakley, shall pay to the Lapeer County Friend of the Court the sum of $40.00 per week, through the office of the Friend of the Court for the support and maintenance of the minor child until the child shall attain the age of eighteen (18) years, or graduates from high school, whichever occurs last, or until the further order of this court.
Both parties and their attorneys signed the judg ment, indicating their approval "as to form and content.” Both parties signed their initials in the margin beside the child support provision.
In 1982, the judgment was modified to increase the amount of support, but the provision concerning the duration of child support remained intact.
The parties’ daughter, Sarah, was born in 1973 with Down’s syndrome. Following the divorce, defendant-mother moved to New Jersey, where she enrolled Sarah in publicly supported special education facilities. Under New Jersey law, Sarah was entitled to attend such facilities until the June following her twenty-first birthday, in this case, June 1995.
In 1992, defendant petitioned the Lapeer County friend of the court for an income review. The friend of the court’s recommendation increased child support and incorporated language from a newly enacted statutory provision limiting postmajority child support to the age of nineteen years and six months. Defendant objected to that limitation. The circuit court removed the limitation and ordered payment of child support until Sarah’s twenty-first birthday or until she finished high school, whichever occurred first. The court reasoned that, under law applicable to modifying child support orders in 1978 and 1982, Sarah’s continuation of high school studies after her eighteenth birthday constituted an "exceptional circumstance” warranting continued child support beyond the age of majority. See GCR 1963, 729.2(1); 1954 PA 2 (former MCL 552.17a; MSA 25.97[1]); Paaso v Paaso, 170 Mich App 628; 428 NW2d 724 (1988).
In 1989, the Supreme Court issued its opinion in Smith v Smith, 433 Mich 606; 447 NW2d 715 (1989), which addressed whether the Age of Majority Act, MCL 722.51 et seq.; MSA 25.244(51) et seq., enacted in 1971, nullified the "exceptional circumstances” language in GCR 1963, 729.2 and former MCL 554.17a; MSA 25.97(1) and thereby prohibited child support beyond a minor’s eighteenth birthday. The Smith Court held that it did.
In 1990, the Legislature effectively overruled Smith by amending the Age of Majority Act to allow for postmajority support for high school students, but only up to nineteen years and six months of age. MCL 552.16a(2); MSA 25.96(1)(2). The amendment added MCL 552.16a(4); MSA 25.96(1)(4), which provided that, notwithstanding the age limitation in MCL 552.16a(2); MSA 25.96(1)(2), any judgment or order providing for child support after the child attains eighteen years of age is valid and enforceable if at least one of four conditions is met:
(a) The provision is contained in the judgment or order by agreement of the parties as stated in the judgment or order.
(b) The provision is contained in the judgment or order by agreement of the parties as evidenced by the approval of the substance of the judgment or order by the parties or their attorneys.
(c) The provision is contained in the judgment or order by written agreement signed by the parties.
(d) The provision is contained in the judgment or order by oral agreement of the parties as stated on the record by the parties or their attorneys.
The circuit court found that at least three of these conditions applied. We disagree. Regardless of the parties’ approval of the substance of the 1978 judgment, MCL 552.16a(4); MSA 25.96(1X4) contemplates the existence of an agreement or of a "meeting of the minds.” Here, there is no evidence that plaintiff was given a choice between the minimum amount of required support and voluntary support beyond the minimum. Under these circumstances, his signature of approval of the form and substance of the judgment does not evidence a conscious agreement on his part to pay support beyond the minimum required by law. Without some evidence of agreement, MCL 552.16a(4); MSA 25.96(1)(4) does not. apply. We decline to adopt the dissent’s position that the "plain meaning” of the word "agreement” in the statute imparts a willing and immutable acquiescence to a ministerial "consent” endorsement that was mandated by controlling precedent later overruled. A forced choice is no choice at all.
The circuit court erred in requiring plaintiff to pay child support beyond age nineteen-and-a-half.
Reversed.
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Saad, J.
i
NATURE OF THE CASE
This appeal is the most recent chapter in the tangled legal and financial affairs of the law firm Bailey & Koetje, P.C. (b & k). Before the firm’s dissolution, each of the three partners personally guaranteed a portion of a loan made by plaintiff to B & K. Following the firm’s dissolution, plaintiff attempted to collect the guaranteed amount. Although his two partners paid their share of the loan as required by the guarantee, defendant/third-party plaintiff, Donald M. Bailey (defendant) refused to pay, and plaintiff sued. Defendant sued the third-party defendants on a variety of common-law theories. On October 8, 1996, the trial court dismissed the third-party defendants on summary disposition. On January 14, 1997, the trial court ordered summary disposition in plaintiff’s favor against defendant. Defendant now appeals as of right from both summary disposition orders, and also from an order awarding attorney fees to the third-party defendants under MCR 2.114(E) or (F). Because defendant Bailey’s defense to the loan is wholly frivolous, as are his claims against third-party defendants, we affirm the summary disposition orders. The question of first impression raised by the sanctions assessed against defendant is whether a pro se litigant may be awarded attorney fees. We answer no because a pro se litigant has not incurred attorney fees as these terms are used in the relevant court rules and statute. However, we remand with instructions to the trial court to use its discretion under MCR 2.114(E) to formulate an appropriate sanction against defendant for frivolous litigation.
n
FACTS AND PROCEEDINGS
Defendant and third-party defendants James L. Koetje and Donald R. France were partners in the law firm Bailey & Koetje, RC. On August 17, 1994, plaintiff, a bank, extended credit to B & K, documented by an unsecured demand note for $100,000. In connection with the loan, defendant, Koetje, and France each signed a guarantee that limited each signatory’s liability to thirty percent of the total debt.
Koetje subsequently commenced a dissolution action against B & K. In the dissolution action, third-party defendant Wardrop & Wardrop, P.C. (w & w) represented B & K, and third-party defendant Schenk, Boncher & Prasher, P.C. (s, B & P) represented Koetje. In the dissolution action, the trial court appointed third-party defendant Thomas P. Jeakle as a special master to wind down B & K’s affairs. B & K has also been involved in bankruptcy proceedings in late 1995 and early 1996. On May 12, 1995, the trial court entered an order dissolving the corporation in accordance Yíith an arbitration the court conducted at the parties’ request.
On December 21, 1995, plaintiff demanded from B & K’s partners payment of the amount each had guaranteed, including $23,189.32 from defendant. Koetje and France satisfied the obligation, but defendant refused to pay. Plaintiff commenced this lawsuit on January 11, 1996. Defendant filed a third-party complaint, which we can only characterize as rambling and incomprehensible. Defendant alleged that Koetje and B & K fraudulently induced him to guarantee the loan by misrepresenting that Koetje was an officer of B & K. (Defendant has not explained how he could not have known whether Koetje was an officer of B & K, or how such a misrepresentation would have induced him to sign the documents.) Defendant also alleged “wrongful constructive execution [sic]” or “intentional or reckless infliction of severe mental distress” against Koetje. Defendant also sought relief from the corporate dissolution order on the grounds of “mistake, neglect, fraud, misrepresentation, misconduct and/or other reasons.” Finally, defendant alleged that the third-party defendants conspired to deprive him of assets to Koetje’s benefit.
Koetje and B & K moved for summary disposition pursuant to MCR 2.116(C)(6) (prior action), (C)(7) (prior judgment), and (C)(8) (failure to state claim on which relief can be granted). They argued that defendant’s third-party claims reiterated issues raised and resolved in the prior dissolution and bankruptcy actions, and that res judicata, collateral estoppel, or judicial estoppel precluded these claims. Defendant did not file a formal response to the summary disposition motion and did not appear at the motion hearing. He did, however, file an affidavit that did not coherently address the summary disposition motions. Because defendant failed to meaningfully respond to any of the persuasive arguments the third-party defendants raised, the trial court granted summary disposition for all the third-party defendants. The trial court also awarded sanctions, including attorney fees, to third-party defendants under MCR 2.114. Koetje and S, B & P, who represented themselves in the litigation, were awarded attorney fees.
On December 2, 1996, plaintiff moved for summary disposition, apparently under MCR 2.116(C)(9) (failure to state valid defense) and (C)(10) (no genuine issue of material fact). Again, defendant filed an incomprehensible affidavit instead of a formal response, and failed to appear at the hearing. The trial court ruled in plaintiff’s favor, and entered an order granting judgment for plaintiff in the amount of $35,835.85 (the principal of the debt plus the accrued interest, attorney fees, and costs).
m
ANALYSIS
A. SUMMARY DISPOSITION
Defendant argues that the trial court erred in granting plaintiffs motion for summary disposition. We deem that this issue is abandoned because it is not adequately briefed. Dresden v Detroit Macomb Hosp Corp, 218 Mich App 292, 300; 553 NW2d 387 (1996). Defendant has asserted that summary disposition under MCR 2.116(C)(9) was improper because the answer stated a valid defense. However, defendant has presented no argument whatsoever regarding what factual allegation in the answer states a valid defense, nor has defendant offered any explanation regarding why or how his answer constitutes a legally valid defense. Similarly, defendant argues that summary disposition under MCR 2.116(C)(10) was improper because his affidavit, as well as Koetje’s interrogatory answer in the bankruptcy action (asserting that a bona fide dispute existed regarding the debt), required denial of the motion. However, defendant has offered no argument or explanation regarding how or why the affidavit and interrogatory answer created a genuine issue of material fact with respect to defendant’s obligation to pay plaintiff under the terms of the note and guarantee. A party may not merely announce a position and leave it to this Court to discover and rationalize a basis for the claim. Joerger v Gordon Food Service, Inc, 224 Mich App 167, 178; 568 NW2d 365 (1997). We therefore decline to address this issue.
Defendant also challenges the order dismissing Koetje and B & K as third-party defendants. Again, we deem this issue to be abandoned because it is not adequately argued in defendant’s brief. Dresden, supra. Indeed, we are unable to discern the content or meaning of defendant’s argument. Defendant seems to argue that Koetje misrepresented facts pertaining to the prior dissolution and bankruptcy proceedings, but he offers no explanation regarding why these arguments are relevant to this issue. We reiterate that defendant may not merely announce a position and leave it to this Court to rationalize a basis for the claim. Joerger, supra.
Defendant also argues that Jeakle violated MCR 2.603(A)(3) by continuing to defend the action after a default had been entered against him. Defendant raises this issue for the first time on appeal. Therefore, we need not address this issue, because it is not preserved for appellate review. Auto Club Ins Ass’n v Lozanis, 215 Mich App 415, 421; 546 NW2d 648 (1996). Furthermore, this issue has not been adequately briefed. Dresden, supra. Defendant has not argued that the outcome of these proceedings would have been different but for the alleged error. We also decline to address defendant’s argument that Jeakle was deficient in his performance of his duties as a special master in the dissolution action, because it has not been briefed, and because it is not included in the statement of questions presented. Weiss v Hodge (After Remand), 223 Mich App 620, 634; 567 NW2d 468 (1997).
B. ATTORNEY FEES FOR PRO SE LITIGANTS
Defendant argues that the trial court improperly awarded attorney fees under MCR 2.114 to third-party defendants Koetje and s, B & p because attorney fees may not be awarded to pro se litigants. This raises a question of law, which is reviewed de novo on appeal. In re Hamlet (After Remand), 225 Mich App 505, 521; 571 NW2d 750 (1997). We conclude that pro se parties are not eligible for attorney fee sanctions under MCR 2.114, and we vacate the order to the extent that it awards pro se litigants attorney fees. However, we also conclude that the language of MCR 2.114(E) affords the court sufficient discretion to design an appropriate sanction, and we remand for further consideration of the sanction issue consistent with this opinion.
Our Supreme Court and our Legislature have sought to deter attorneys and parties from advancing frivolous legal claims, defenses, and documents, without stifling their good-faith efforts at pursuing novel or arguable legal theories. To achieve this balance, the Supreme Court has adopted MCR 2.114, and the Legislature has enacted MCL 600.2591; MSA 27A.2591.
MCR 2.114(D) provides:
Effect of Signature. The signature of an attorney or party, whether or not the party is represented by an attorney, constitutes a certification by the signer that
(1) he or she has read the document;
(2) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and
(3) the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
MCR 2.114(E) imposes a sanction for violations of this rule:
If a document is signed in violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon the person who signed it, a represented patty, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees. The court may not assess punitive damages.
In addition to the sanctions in subparagraph E, MCR 2.114(F) provides that “a party pleading a frivolous claim or defense is subject to costs as provided in MCR 2.625(A)(2).” The latter rule states that costs shall be awarded under MCL 600.2591; MSA 27A.2591 if the court finds on the motion of a party that a claim or defense is frivolous. This statute’s definition of “frivolous” parallels the provisions of MCR 2.114(D) (improper purpose, or no reasonable basis to believe the facts underlying the party’s legal position, or legal position was devoid of arguable legal merit). The statute further provides the following sanction for frivolous actions or defenses:
(1) Upon motion of any party, if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney.
(2) The amount of costs and fees awarded under this section shall include all reasonable costs actually incurred by the prevailing party and any costs allowed by law or by court rule, including court costs and reasonable attorney fees. [MCL 600.2591(1); MSA 27A.2591(1).]
The trial court did not say if it awarded sanctions under MCR 2.114(E) or (F). As we said, the question — is a pro se party eligible for attorney fees under either of these rules — is one of first impression in Michigan.
Although our courts have not ruled on this precise issue, we have ruled in similar situations that pro se litigants are not entitled to attorney fees. This Court has already held that pro se parties, including attorneys representing themselves, may not obtain attorney fees under the Michigan Freedom of Information Act (foia), Laracey v Financial Institutions Bureau, 163 Mich App 437, 442; 414 NW2d 909 (1987), or under the mediation rule, Watkins v Manchester, 220 Mich App 337, 341-345; 559 NW2d 81 (1996). The Watkins holding was based in part upon Kay v Ehrler, 499 US 432; 111 S Ct 1435; 113 L Ed 2d 486 (1991), in which the United States Supreme Court held that an attorney who represented himself in a civil rights action was not entitled to an attorney fee award under the federal civil rights statute, 42 USC 1988. In Kay, the Court reasoned that the purpose of the attorney fee provision in the civil rights legislation was to encourage litigants to seek the assistance of counsel, and that this purpose would not be served if pro se litigants were eligible for attorney fees. Id., 437. Relying on the reasoning in Kay, this Court in Watkins concluded that the purpose of the mediation sanction rule — to encourage settlement by imposing litigation costs on the party who rejected an appropriate mediation award — would be better served by encouraging parties to hire objective attorneys. Watkins, 344-345. This Court also stated that “to allow litigant-attorneys to recover compensation for time spent in their own behalf, while not extending such a rule to nonattomeys would most likely contribute to the widespread public perception that the courts exist primarily for the benefit of the legal profession.” Id. This Court rejected the argument that attorney pro se litigants should be compensated for the resources that might otherwise have been used for productive business, noting that “[p]ro se litigants who are not attorneys also may suffer lost income or lost business opportunities as the result of their time spent in litigation.” Watkins, 345.
Although instructive, Watkins and Kay are not dis-positive. The Courts in Watkins and Kay emphasized, respectively, that the mediation rule, and the attorney fee provision of the civil rights statute, were intended to encourage parties to seek legal counsel. We see no such purpose in MCR 2.114(E) or (F). Rather, the apparent objective of MCR 2.114(E) and (F) is to deter parties and attorneys from filing documents or asserting claims and defenses that have not been sufficiently investigated and researched or that are intended to serve an improper purpose. Clearly then, the question of sanctions to discourage frivolous litigation under MCR 2.114(E) and (F) is different from the questions and interests addressed in Kay, supra, and Watkins, supra.
This distinction was salient in Prewitt v Alexander, 173 FRD 438 (ND Miss, 1996). There, the pro se plaintiff filed a civil rights claim against the pro se defendants. The court deemed this claim to be frivolous. The court noted that under Kay, supra, the defendants were not entitled to attorney fees under § 1988. However, the court held that the defendants were entitled to attorney fees under 28 USC 1927, which allowed sanctions against attorneys who “unreasonably and vexatiously” multiply proceedings, and under FR Civ P 11, the federal counterpart of MCR 2.114(E). The court explained why Kay was distinguishable:
The policy grounds underlying the award of attorney’s fees under Rule 11 (and 28 USC § 1927) are different from those underlying 42 USC § 1988. Fee shifting statutes such as 42 USC § 1988 are governed by such specific considerations as enabling victims of civil rights violations to secure legal representation and ensuring the effective prosecution of meritorious claims. . . . Providing fees to pro se litigants under 42 USC § 1988 serves as a disincentive to retaining independent counsel, who will likely be the most effective representative of the plaintiff. . . . However, sanctions awarded under Rule 11 (and 28 USC § 1927) are essentially deterrent in nature, imposed in an effort to discourage dilatory tactics and the maintenance of untenable positions. . . . The purpose of the rule would therefore not be frustrated by awarding attorney’s fees to pro se defendants. [Id., 440-441 (emphasis supplied; citations omitted).]
Additionally, at least two of our sister states have distinguished Kay and permitted attorney fees to pro se litigants as sanctions for frivolous claims. Harkleroad v Stringer, 231 Ga App 464, 468; 499 SE2d 379 (1998), and Ziobron v Crawford, 667 NE2d 202 (Ind App, 1996).
We agree with the reasoning stated in Prewitt. There is no disharmony between the deterrent purpose of MCR 2.114 and attorney fees for pro se litigants. On the contrary, we might actually diminish the deterrent effect by limiting the sanctions for pro se litigants. As one court asked: “Why should the prosecutor of a frivolous [litigation] claim be let off the hook simply because the victim of the litigation represented himself? How is the purpose of deterrence less served by compelling the offending party to make payment to a pro se party?” Harkleroad, supra 468. Finding no policy reason against an attorney fee sanction for pro se litigants under MCR 2.114 or MCL 600.2591; MSA 27A.2591, we consider whether this sanction is authorized by the plain language of the court rule and statute.
The interpretation of a court rule is subject to the same principles that govern statutory construction. All words and phrases are to be construed and understood according to the common and approved usage of the language. Reference to a dictionary is appropriate to ascertain the ordinary meaning of a word. [Nelson v American Sterilizer Co (On Remand), 223 Mich App 485, 490-491; 566 NW2d 671 (1997).]
MCR 2.114(E) provides that sanctions may include “the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees.” Similarly, MCL 600.2591(2); MSA 27A.2591(2) provides that “costs and fees awarded under this section shall include all reasonable costs actually incurred by the prevailing party and any costs allowed by law or by court rule, including court costs and reasonable attorney fees.” To incur means “[t]o have liabilities cast upon one by act or operation of law, as distinguished from contract, where the party acts affirmatively.” Black’s Law Dictionary (rev 4th ed). An attorney is “an agent or substitute, or one who is appointed and authorized to act in the place or stead of another.” Id.
One who represents himself cannot be said to have had a liability cast on himself. A person cannot impose a liability for attorney fees on oneself. Thus, Koetje and s, B & P did not “incur” attorney fees, because they represented themselves. Similarly, the definition of “attorney” seems to preclude the possibility of incurring attorney fees unless someone is represented by a separate individual. Because an attorney is an agent or substitute who acts in the stead of another, a party acting in propria persona cannot truly be said to be an attorney for himself. It is thus impossible to incur attorney fees when one is not represented by an attorney, i.e., someone other than the actual party. See Committe v Dennis Reimer Co, LPA, 150 FRD 495 (D Vt, 1993) (no attorney fees for pro se litigants under FR Civ P 11 because pro se parties do not “incur” attorney fees within the meaning of the court rule).
However, our analysis does not end here. MCR 2.114(E) says that if a document is signed in violation of the signature rule, “the court. . . shall impose upon the person who signed it ... an appropriate sanction, which may include . . . the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees.” Therefore, MCR 2.114(E) does not restrict the sanction to expenses or costs incurred. Rather, it gives the trial court discretion to fashion another appropriate sanction. In contrast, MCL 600.2591; MSA 27A.2591, incorporated by reference in MCR 2.114(F), provides that the trial court “shall award to the prevailing party the costs and fees incurred,” without giving the trial court discretion to fashion another appropriate sanction.
Because any sanction awarded under MCR 2.114(F) is restricted to the costs and fees as described in MCL 600.2591(2); MSA 27A.2591(2), we hold that attorney fee sanctions are not available under MCR 2.114(F). In contrast, MCR 2.114(E) grants the trial court discretion to fashion an “appropriate sanction,” which may include, but is not limited to, an order to pay the opposing party the reasonable expenses incurred (including attorney fees). Of course, the “appropriate sanction” may not include punitive damages under either subparagraph. MCR 2.114(E).
We therefore vacate those portions of the sanctions orders awarding attorney fees to in propria persona third-party defendants Koetje and s, B & P. Because the record does not indicate what amount of the sanctions awards constitute the reasonable attorney fees, we remand the case to the trial court to recalculate the sanctions awarded to Koetje and S, B & P after deducting the attorney fee awards. We also remand for findings regarding whether the trial court’s sanctions were awarded under MCR 2.114(E) or (F). If the sanctions were awarded under subrule E, the trial court may fashion an “appropriate sanction” within the discretion afforded by that subrule. If, however, sanctions were awarded under subparagraph F, the trial court’s sanction is limited to the terms of MCL 600.2591; MSA 27A.2591.
We vacate the sanction order to the extent that it awards attorney fees to pro se litigants. We remand for further consideration of sanctions in accordance with this opinion. We retain jurisdiction.
C. DEFENDANT’S MOTION TO DISQUALIFY JUDGE
Defendant contends that the trial judge was biased because of his involvement with the prior arbitration and should have been disqualified. When we review a decision on a motion to disqualify a judge, we review the trial court’s findings of fact for an abuse of discretion. Cain v Dep’t of Corrections, 451 Mich 470, 503; 548 NW2d 210 (1996). However, we review de novo the applicability of facts to relevant law. Id., 503, n 38.
In accordance with MCR 2.003(C)(3), the state court administrator assigned the disqualification motion to Barry Circuit Judge James H. Fisher. Judge Fisher concluded that defendant had presented no facts to establish that Judge Dennis C. Kolenda was biased or should be disqualified. We find no error in Judge Fisher’s conclusion. Under MCR 2.003(B)(1), a judge may be disqualified on a showing of actual personal bias or prejudice. Cain, supra, 495; In re Hamlet, supra, 524. Disqualification is warranted only when “the bias or prejudice is both personal and extrajudicial.” Cain, supra, 495. The party claiming bias “must overcome a heavy presumption of judicial impartiality.” In re Hamlet, supra, 524.
Here, defendant has failed to overcome the heavy presumption of judicial impartiality. There is no record evidence of actual personal bias or prejudice on the part of Judge Kolenda. Defendant’s argument that Judge Kolenda failed to equitably distribute the assets in the prior corporate dissolution action merely indicates that defendant was unhappy with Judge Kolenda’s resolution of the prior proceeding, but does not establish actual bias or prejudice. Assuming, arguendo, that the prior rulings were erroneous, this would not warrant disqualification. Wayne Co Prosecutor v Parole Bd, 210 Mich App 148, 155; 532 NW2d 899 (1995). Additionally, there is no record basis for believing that Judge Kolenda, either in the prior action or in the instant case, displayed “a deep-seated favoritism or antagonism that would make fair judgment impossible.” In re Hamlet, supra, 505. Moreover, despite defendant’s assertion to the contrary, there is no evidence that Judge Kolenda “has personal knowledge of disputed evidentiary facts concerning the proceeding,” MCR 2.003(B)(2), other than matters learned in the course of the judicial proceedings. Judge Fisher properly denied the disqualification motion.
CONCLUSION
We affirm summary judgment for plaintiff and for third-party defendants. We vacate the sanction order to the extent that it awards attorney fees to pro se litigants. We remand for further consideration of sanctions in accordance with this opinion. We retain jurisdiction.
Our decision addresses attorney fee sanctions under MCR 2.114(E) (violations of the signature rule provided by MCR 2.114[D] and MCR 2.114(F) (frivolous claims and defenses under MCR 2.625[A][2] and MCL 600.2591; MSA 27A.2591). We read both of these rules as having the purpose of deterring frivolous legal claims and defenses, and hereafter we will refer to defendant Bailey’s third-party claims as frivolous.
Defendant previously filed two appeals relating to the dissolution action. This Court dismissed both of these appeals for lack of jurisdiction.
Defendant does not appeal the dismissal of third-party defendants w & w, s, B & P, France, or Jeaide. Accordingly, we will limit our discussion to the allegations against Koetje and b & k and to Koetje’s and b & K’s response.
Defendant also argues that the trial court erroneously prohibited discovery after June 10, 1996. This issue is not preserved for appellate review because it was not raised and addressed below. Auto Club, supra, 421.
MCR 2.114 and MCL 600.2591; MSA 27A.2591 are modeled after FR Civ P 11 (Rule 11). Advisory Committee Notes to Rule 11 state that the rule “is not intended to chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories.” In the words of another commentator,
Rule 11 sets minimum levels for the legal and factual sufficiency of every pleading and motion presented to the court. Rule 11 thus acts as a filter throughout the course of every federal lawsuit. . . . Yet Rule 11 must achieve these ends without discouraging attempts to challenge precedent, chilling attorneys’ vigorous defense of client interests, or generating burdensome satellite litigation. [1996 Ann Surv Am L 665, 666-668.]
MCL 600.2591(3)(a); MSA 27A.2591(3)(a).
MCL 15.234; MSA 4.1801(4).
MCR 2.403(0).
The pro se parties in Prewitt were attorneys. However, like the Watkins Court, we make no distinction between attorney or nonattomey pro se litigants.
Under FR Civ P 11, like under MCR 2.114(D), an attorney’s or party’s signature on a document constitutes a certificate that the signer has made a reasonable inquiry that the document is well grounded in fact and law, and is not interposed for an improper purpose. With regard to violations of this rule, Rule 11 provides that
the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
The Prewitt Court apparently did not reach this issue.
Properly utilized, this discretion should deter attorneys and parties from filing frivolous documents without sacrificing zealous representation by the sanctioned party. PR Civ P 11, Advisory Notes. | [
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Clark, J.
Defendants Andringa and Datema, doing business as Andringa-Datema Bus Line, are common carriers of passengers by bus on the public highway between Grand Rapids and Grandville. The highway crosses double tracks of the defendant Pere Marquette Railway Company about a mile east of Grandville. On January 12, 1926, plaintiff was a passenger for hire in a bus driven 'by defendants’ employee. While crossing the tracks in daylight, the bus was struck by an engine pulling a passenger train and plaintiff was injured. He sued the partners and the railway company, averring that his injuries had been caused by concurrent acts of negligence, that all defendants had been negligent, that the negligence of both the bus line and of the railway company had contributed to his injuries. A verdict in favor of the railway company was directed. The jury was instructed that the partners, Andringa and Datema, had been negligent as a matter of law. The only matter left to the jury was the assessment of damages. Plaintiff had judgment. Andringa and Datema, the partners, bring error.
It was the duty of appellants, as common carriers of passengers, to exercise a high degree of care for the safety of plaintiff, a passenger (King v. Neller, 228 Mich. 15), which means care proportionate to the “nature and risk of the undertaking in view of the nature of the means of conveyance employed.” 10 C. J. p. 855. Negligence of defendants is “simply the failure to use the amount of care, skill, and diligence required by the nature of the undertaking and the circumstances of the case.” 10 C. J. p. 855. The tracks were double. The zone of danger was therefore wide. The bus was long. It would take appreciable time to cross and to- clear the tracks. The driver knew this and was familiar with the crossing. He knew that he or his passengers might be killed if a train came before he was clear of the tracks. He knew he must stop for the train. The train was not to stop. It seems he did stop for a second or two. He says he looked, saw no train, and proceeded to cross, -While on the tracks he discovered the train almost upon him. He increased speed but failed to-get clear by a margin of hbout two feet. From the point where he stopped and claims to have looked the view was not fully clear, being somewhat obstructed by some telephone poles along the right of way. The tracks ran on practically level ground. He testified: “I cannot tell how far I could see. * * * I should think I could see to the right of the crossing 1,-000 feet.” The engineer had an unobstructed view of the crossing from a point at least 1,200 or 1,300 feet from the crossing. It was also said, “We could see down the track a mile or more.”
There is no escape, on this record, from the fact that when the driver stopped and when he was starting to cross the train was in plain view rapidly approaching. There is no escape from the fact that the driver failed to see the train because of negligence on his part; he failed to look carefully, failed to exercise commensurate care. The rule announced by the Federal Supreme Court and adopted by this court in Davis v. Railway Co., ante, 166, is:
“When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train, not the train stop for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look.”
We must decline to disturb the trial court’s holding that appellants were negligent as a matter of law.
Appellants contend that the court erred in directing a verdict in favor of the railway company.
The theory of the declaration is that defendants were jointly and severally liable. They were charged with a joint wrong. Appellants do not contend that verdict and judgment should be against all defendants; they contend that the railway company alone was in fault. Plaintiff does not complain because of the directing of a verdict in favor of the railway company. Appellants, in these circumstances, may not complain of it. This question is decided against appellants’ contention by the recent case of Beattie v. Boylon, 227 Mich. 472, which is accessible and from which we need not quote.
There is no question relative to the amount of the verdict. In this view of the case, other questions are without importance.
Judgment affirmed.
Flannigan, C. J., and Fellows, Wiest, McDonald, and Sharpe, JJ., concurred. Bird, J., concurred in the result.
The late Justice Snow took no part in this decision. | [
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Sharpe, J.
On October 30, 1925, the plaintiffs conveyed certain real estate owned by them in the city of Flint to the defendant in exchange for a farm property then owned by her in the county of Alcona. On November 5, 1926, they filed their bill of complaint herein, praying for a rescission of the transaction and the restoration to them of the property conveyed. The trial court entered a decree dismissing their bill, from which they appeal to this court.
The deed executed by defendant was a statutory short form warranty. Her farm property, however, was subject to certain flowage rights, secured to the Alpena Power Company under decree of this court. Holcomb v. Alpena Power Co., 198 Mich. 165, 215 Mich. 382. In this decree the power company was granted permission to maintain a dam at the outlet of Hubbard lake to the height of six and one-half feet on payment to Holcomb of the permanent damages to his land occasioned by the flooding thereof due thereto, which were fixed and determined therein. Defendant’s farm was subject to this servitude at the time she deeded it to plaintiffs, but no mention of it was made in the conveyance.
In a cross-bill accompanying her answer, defendant prayed for reformation, and the deed was “ordered corrected” by inserting therein a provision that it was given “subject to all the rights of easements and servitudes on said lands, decreed the Alpena Power Company.” If the proofs justified such reformation, plaintiffs may not have rescission.
The trial court found that plaintiffs “were chargeable with notice of the contents” of the decree entered in the power company case, and had actual knowledge of the “existence of the water conditions, by plaintiffs’ personal examination and inspection” of the premises before the exchange of properties was consummated. In our opinion the proofs warranted this finding, and also disclose that the failure to except such servitude from the warranty of title was due to inadvertence at the time the deed was prepared. The negotiations which led up to this exchange of properties were begun by defendant’s daughters, who lived in Flint and who were anxious to have their mother there with them. They took the matter up with a real estate agency who had been acting for plaintiffs in an effort to sell or exchange their property. One of the daughters looked over plaintiffs’ property, and she and the agents, Mr. Hudson and Mr. Torrey, and the plaintiffs went up to the home of defendant in Alcona county to look over her property. Up to this time defendant had had nothing to do with the deal. Mr. Frick and the real estate men and a neighbor, who had knowledge of the boundary lines, went over the farm. The dam was then maintained at a height of six and one-half feet, and the part of defendant’s farm affected thereby was in clear view, and apparent to them all. After some time thus spent, Hudson asked Frick if he had any proposition to make. He replied, “it ain’t as good as I expected,” but finally said that he would conclude the deal as it had -been talked in Flint if his wife was satisfied, provided defendant would also convey an adjoining 40 acres which she owned, making 200 acres in all. Mr. Torrey, in answer to a question as to the reason given by Frick for wanting the additional 40- acres, said:
“He figured the worked land on the 160 would not include more than 60 acres. That 40 was of good quality. It would take that to have enough land for his farm.”
Frick then talked with his wife and said it was all right; for them to see defendant and “if it was all right he would deal with her.” The proposition was then put up to defendant, and she declined to include the 40. She, however, accompanied them to Flint, and the deal was there consummated by including the 4Ó acres in the deed to plaintiffs.
Soon after plaintiffs arrived at the farm, they had dinner with the defendant at her home thereon. She and her daughter and the two real estate men all testified that the flooding of the land by the power company’s dam was there discussed. Torrey testified that defendant “said that it affected all the low land. * * * She told us they had a lawsuit and they could raise the water to six and one-half feet.” Hudson testified that at that time Mr. Frick asked, “Is that low land down there any good?” and defendant answered, “Weil, the low land, swamp land, isn’t very much good. It wouldn’t be any good for farming purposes. She says the water does back up there. * * * She said they had trouble with the power company, had a lawsuit with the power company, and had got damages for what damages the water had done there. They had the right to put a dam across the lake to raise the water to a certain number of feet, six feet and a half, I think she said.” He further testified that when looking the property over they found a part of it “was real swampy, * * * quite a lot of marsh. * * * We walked around on top of the bogs to keep out of -the water all we could. Mr. Frick was along with us.”
Defendant’s daughter testified that in the ■ conversation in the house defendant told plaintiffs “that they had had two lawsuits. There was another lawsuit and they wanted the dam taken out, but they couldn’t do that. So it was settled that they could raise the water six and one-half feet.” This testimony but corroborated that of the defendant. While it may be said to be denied by the plaintiffs, we think the finding of the trial court that plaintiffs were chargeable with notice of the effect of the decree, which was duly recorded and under which the power company had secured the right—
“to maintain its dam at Hubbard lake to the height and depth of six feet and six inches, and to impound the water, and to back up the waters of Hubbard Lake behind its dam to said height and depth aforesaid, and that such right of servitude was decreed to said Alpena Power Company for all future time”—
was warranted.
The deed from defendant was prepared by one of the real estate men. Had a competent attorney, informed of the facts, been employed to do so, there can be no doubt' that he would have excepted from the warranty of title the rights secured to the power company under its decree. In our opinion the action of the trial court in reforming the deed in this respect was fully justified. Kelly v. Israel, 237 Mich. 526, and cases 'cited.
The decree is affirmed, with costs to appellee.
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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North, J.
For some time prior to March 28, 1919, Elijah L. Payne and his wife, Elizabeth S. Payne, owned as tenants by entirety certain lands located on the S. E. % of section 10 of Lilley township, Newaygo county, Michigan. On that date they executed a deed of substantially 34 acres of this land, in which deed their only son, Allen E. Payne, the plaintiff herein, was named as grantee. They deeded the remaining portion to their only daughter, Vernnie Almeda Wilson. The plaintiff was present when these deeds were prepared by the scrivener and signed by the grantors. The daughter was not present. - As soon as the deeds were signed they were given by the scrivener to the father, Elijah L. Payne. The plaintiff testified on direct-examination:
“They (his parents) made the statement * * * that they would place those (the deeds) in escrow for keeping until their death; that they would have no more to do with it and so it would be settled while they had health and presence of mind to do so. * * * They signed the deeds. After the deeds were signed my father took them and supposed to be delivered here to White Cloud to be left for safe keeping.”
They stated they would have
“nothing more to do with the property, deeded equally between us so it would save probating and administering, just simply when they were done with it it would drop into o.ur hands without any trouble.”
The father retained possession of the deeds until February 16, 1920, at which time, without the knowledge of any of the other parties, he placed them in the possession of Mr. Charles E. Phillips, who was then register of deeds of Newaygo county. It is not claimed the deeds were left for the purpose of being recorded at that time. Mr. Phillips made a memorandum in writing, which is defendants’ Exhibit 1, and which is as follows:
“White Cloud, Mich.
“February 16, 1920.
“Received of Elijah L. Payne, two warranty deeds executed by himself and wife, Elizabeth S. Payne, to be held in escrow, subject to the order of either, but at the death of both to be delivered to the grantees named in each deed, respectively.
“Chas. E. Phillips, “Register of Deeds.”
It does not appear in the record very conclusively whether Mr. Phillips delivered this paper to Mr. Payne as a receipt for the deeds or whether he retained it as a memorandum incident to his possession of the deeds, but it is probable he retained it.
Elizabeth S. Payne died in October, 1922. On December 7, 1922, Elijah L. Payne and his daughter went to White Cloud and received from Mr. Charles Phillips the two- deeds previously deposited with him. The one running to the daughter was delivered to her by her father, and by her left for record with the register of deeds. The other deed running to the plaintiff was retained by the father and later destroyed by him. On the 16th day of April, 1926, Elijah L. Payne executed and delivered to his daughter Vernnie Almeda Wilson, a deed of about 14 acres of the land included in the deed of March 28, 1919, in which the plaintiff had been named as grantee. This deed to the daughter was recorded June 2, 1926.
In his bill of complaint, the plaintiff alleges he is the owner in fee simple of the N. y% of the S. y% of the S. E. % of said section 10, containing 40 acres more or less, claiming title thereto through the deed signed by his parents, which deed, he alleges, was “left in escrow with the register of deeds in the year 1919.” He has made his father and sister defendants, and charges that, “conspiring together, they had caused one of the deeds left in escrow, viz., the deed to Vernnie Almeda Wilson, to be recorded, and the other deed, left in escrow, conveying the premises to the plaintiff, to be destroyed;” and also that the father has sought by the deed of April 16, 1926, to convey to the defendant Mrs. Wilson land theretofore deeded to plaintiff. He prays that he be decreed to be the owner of the land described in the deed dated March 28, 1919, that the deed from the father to Mrs. Wilson of th'e 14 acres be declared null and void, and that the defendants be restrained from interfering with his possession. The relief sought was granted in the circuit, and the defendants have appealed.
The major question in this case is this: Was there a valid delivery of the deed through which plaintiff claims title? Plaintiff does not claim delivery at the time the deed was executed; but he does claim that there was a valid delivery in escrow to .Mr. Phillips, and that in any event the defendants, because they knew of his being in possession of the land and making improvements thereon while relying on his ownership thereof, are estopped from questioning his title.
Was there a valid delivery of the deed in escrow? Clearly there was not. Mr. Phillips’ memorandum (defendants’ Exhibit 1) is quite conclusive on this issue. Only two witnesses could have had any direct information relative to this question — Mr. Charles E. Phillips and Elijah L. Payne. The former had no recollection whatever of the transaction except as it came from his written memorandum, and the latter denied throughout his testimony that he ever intended to release his control' of this deed. There is some proof that Elijah L. Payne made statements to the contrary; but notwithstanding this, from the record as a whole we are satisfied his contention relative to retaining control of the deed is correct.
Estoppel. The only ground of estoppel that the plaintiff can assert under this record is his claim that after the deeds were executed by his parents they informed him that said deeds had been delivered to the register of deeds
“with instructions to record the same at the death of said Elijah L. Payne and Elizabeth S. Payne; * * * that they have always led him to believe that he was not only the owner of said premises, but that he was entitled to the use, possession, and occupancy thereof at all times;”
and, relying upon these assertions, he took possession and improved the premises. A careful reading of the record brings the conviction that these allegations are not sustained by the proof. Even if they were, it would be highly inequitable to allow the plaintiff to take title to land which he asserts in his bill is now worth over $10,000 because of the slight improvements plaintiff claims he has made thereon. The record is barren of any evidence as to the value or cost of the improvements, or to what extent some of them were made after the plaintiff knew of the change relative to the deeds. The defendant Wilson testified: “the biggest part of the clearing has been done this summer (1926),” and the testimony was not disputed. It is a rule of estoppel in pais that the conduct complained of must have induced another to act to his serious disadvantage, and that his situation in consequence thereof must have changed. Maxwell v. Bridge Co., 46 Mich. 282; Lilly v. Townsend, 110 Mich. 253. Such is not shown relative to the plaintiff. He testified his permanent home had been on this farm for the last 18 years, though he had worked and lived in Muskegon a number of years in the meantime. He admitted he had been allowed to occupy and use these premises since June, 1922; and in his sworn bill of complaint he states his resort business conducted there “is worth upwards of $1,500 per year.” He did not even pay the taxes on the property. It would be difficult to conclude that his use and occupation of this resort property for five seasons had been a damage to him, notwithstanding the improvements he is alleged to have made in the interim. If an estoppel in pats is relied on, the facts that support it must be clearly made out. Rust v. Bennett, 39 Mich. 521; Bond v. Markstrum, 102 Mich. 11. The plaintiff has failed to do this.
The bill charges conspiracy on the part of the defendants, but there is no merit in this allegation. Only one conclusion is justified by this record, i. e., the defendant Elijah L. Payne and his wife attempted to make a testamentary disposition of their property by deeds. There was no consideration for either of the deeds, and no valid delivery of the deed running to plaintiff. His alleged title fails.
The decree of the lower court must be reversed, and a decree entered. here dismissing plaintiff’s bill of complaint, with costs to the defendants.
Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.
Chief Justice Flannigan and the late Justice Bird took no part in this decision. | [
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Sharpe, J.
On April 4, 1924, an infant two weeks old, the son of an unmarried mother, was adopted by Dell J. Moore and Addie Moore, his wife, and his name changed to William Patrick Moore, as 'appears by an order of the probate court for the county of Wayne. In the spring of 1925, Mrs. Moore was in ill health, and concluded that she could not longer keep the child. He had been unwell a part of the time, and she then thought the care .of him more than she could well stand. She communicated with the authorities of the Marr Maternity Hospital, from whom she had' received him, and told them she could not keep him longer, and that if they did not make provision for him she would turn him over to the Children’s Aid Society. The hospital authorities at that time had an application from the defendants, who lived in.Washtenaw county, to adopt a child. After investigation and finding that the defendants were proper persons to have the custody of such a child, they informed Mrs. Moore that the defendants would come for him. They did, and Mrs. Moore delivered him and his clothing into their charge on May 11,1925. ' She soon after regretted her action, and sought to have the child returned to her. She wrote to the defendants, asking them to bring him back and offering to pay their expenses in doing so. She and her husband afterwards went to the home of the defendants and demanded the child. This demand was refused. On July 23, 1925, she petitioned the circuit court of Washtenaw county for a writ of habeas corpus, directed to the defendants, praying for the return of the child to her. A hearing was had on the return of the writ, and considerable testimony taken. The trial court was of the opinion that the act of Mrs'. Moore “was equivalent to an abandonment of the child,” and entered an order on October 21, 1925, dismissing the writ. Plaintiff seeks review by certiorari.
The proofs support the finding of the trial court that the act of the plaintiff amounted to an abandonment of the child. In 1 C. J. p. 1387, § 76, in discussing “What Constitutes Abandonment,” it is said:
“To constitute such an abandonment by a parent as will deprive him of the right to prevent the adoption of his child, and dispense with the necessity of his consent, there must be some conduct on his part which evinces a settled purpose to forego all parental duties. But merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment. Whether or not a parent has abandoned his child is a question of fact.”
It was her intention at that time to relinquish any and all claims she then had upon the child and to surrender her right to his custody to the defendants. Plaintiff’s husband did not join with her in the petition for the writ. It is apparent from the record that he yielded his assent to her action.
We may not lose sight of the best welfare of the child. He is now in a good home and being properly cared for. Nearly fifteen months elapsed after the order was made in the circuit court dismissing the writ before relief was sought in this court. Such matters should be speedily disposed of.
An order will be entered dismissing the writ, with costs to defendants.
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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Fellows, J.
Deceased was about to submit to a serious operation at a hospital. The proponent’s testimony tended to show that he was taken there by Mr. Throop, a relative of his deceased wife, and his physician, Dr. Schilz; that he requested Mr. Throop to prepare his will before the operation. Mr. Throop was unskilled in preparing such papers. The instrument offered for probate is as follows:
“I hereby resign all my personal property and real estate to Richard Hildreth, at my death.”
It bore the signature of deceased, was witnessed by Mr. Throop and Dr. Schilz, and its due execution was established. Proponent’s testimony tended to show that the paper as originally prepared did not contain the words “at my death.” That after reading it deceased handed it back and suggested that these words be added which was done before its execution. Contestant called a handwriting expert who gave an opinion that the words “at my death” were written with a different pen and ink than that used in writing the balance of the instrument, and that they were written at a different time. The question of whether these words were in the paper when it was' executed was submitted to the jury who found that they were.
Contestant called as a witness Mr. Cameron, an attorney, and after establishing that he was employed by Mr. Throop, who consulted him and showed him the proposed will, asked him:
“Q. I want to ask you this question: Whether that paper, the first time you saw it, contained the same language, — was in the same form that it is now?”
Mr. Cameron claimed his privilege, and it was also claimed in behalf of Mr. Throop. After discussion the court sustained the privilege. This ruling presents the meritorious question in the case.
That the privilege includes testimony as to the condition of written instruments, and that they are communications as well as verbal statements, is settled by the weight of authority. In Coveney v. Tannahill, 1 Hill (N. Y.), 33 (37 Am. Dec. 287), it was said:'
. “The third question proposed to the witness was, in substance: ‘When did you first see the account stated, and was the evidence of a settlement indorsed on the account when you first saw it?’ Although the question does not necessarily imply so much, it was understood on the hearing as intended to draw from the witness an admission that he had seen the paper in the hands of his client, or received it from him, in a different state or condition from that in which it appeared on the trial. If such was the aim of the defendants in putting the question, I think the referees were right in not allowing it to be answered. We have already seen that the attorney can not be compelled either to produce or to disclose the contents of a paper which he has received from his client; and this is so although the paper may be required as the foundation for a public prosecution. Rex v. Dixon, 3 Burr. 1687; Rex v. Smith, 1 Phil. Ev. 142. The principle is, that all confidential communications between attorney and client, whether written or oral, are alikeprivileged. If the plaintiff, at any particular time, delivered or exhibited the account to his attorney without the evidence of a settlement indorsed upon it, it was the same thing, in substance, as though he had at that time told him verbally that hé had an account in that plight; and the one form of communication is, I think, as much privileged as the other.”
See, also, Brown v. Payson, 6 N. H. 443; Gray v. Fox, 43 Mo. 570 (97 Am. Dec. 416) ; Wheatley v. Williams, 1 M. & W. 533; Dietrich v. Mitchell, 43 Ill. 40 (92 Am. Dec. 99); Arbuckle v. Templeton, 65 Vt. 205 (25 Atl. 1095).
But it was insisted that Mr. Throop had no interest in the estate, was neither an heir at law nor a beneficiary under the will, and that the privilege inures only to those who consult an attorney about a matter in which they have a personal interest. It was upon this basis that the testimony was offered. Counsel cite Wigmore on Evidence, but the authority does not sustain the contention. Professor Wigmore, in laying down the general principle, says (5 Wigmorfe on Evidence [2d Ed.], § 2292) :
“The phrasing of the general principle,. so as to represent all its essentials, but only essentials, and to group them in natural sequence, is a matter of some, difficulty. The following form seems to accomplish this: Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.”
It should be noted that the will was in the custody of Mr. Throop and that the law cast upon him certain duties (3 Comp. Laws 1915, § 13776). Manifestly he had the right to consult an attorney for the purpose of ascertaining what such duties were. But the reason for the rule of privilege forbids following contestant’s contention. While few people consult attorneys unless they personally have matters pending which require the advice of counsel, the object of the rule is to seal the lips of the attorney who in his confidential relation has received from his client that full and complete disclosure of facts necessary to give the proper advice. It may involve pending litigation or expected litigation. It. may involve assumption of future obligations or guidance on a course of future conduct. The advice given may be as to a present condition, one liable to occur one year, or 10 or 20 years hence. It may be given on a question of present vital importance or upon a purely academic proposition. In order to obtain such advice, and safe advice, the client must communicate all the facts necessary, whether favorable to himself or against himself. The privilege attaches by reason of the confidential relation rather than by reason of the character or importance of the advice sought.
No claim was made in the court below that Mr. Throop sought advice looking to the commission of a crime or the perpetrating of a fraud. Hence no such question is before us for review. The court correctly excluded the testimony of Mr. Cameron.
At the hospital Mr. Bathwiek executed another paper, referred to in the record as Exhibit 6. As this exhibit was not printed in the record, we requested at the hearing that a copy of it be sent up. This has been done, but a reading of the entire record discloses that it was not made a part of the bill of exceptions and it is doubtful if we should consider its contents. The trial judge in substance instructed the jury, doubtless at contestant’s request, that if they found that deceased intended by the will offered for probate (Exhibit 1) and Exhibit 6 to make a final disposition of his property, then Exhibit 1 alone could not be allowed as his will. There was no request for a directed verdict. After verdict a motion was made for a new trial, one of the grounds being that the jury did not follow this instruction. Urging this ground, it is here insisted that the evidence on this subject is all one way, is undisputed. If this were so, contestant should have moved for a directed verdict and not raised the question for the first time on motion for a new trial. Tishhouse v. Schoenberg, 234 Mich. 271. , But we are not persuaded that the evidence and the legitimate inference to be drawn from it is all one way, or is undisputed. At best it presented a question for the jury.
No other assignments of error merit discussion.
The judgment will be affirmed.
Sharpe, C J., and Bird, Flannigan, Wiest, Clark, and McDonald, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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WlEST, J.
Defendant was convicted of the crime of statutory rape and prosecutes review by writ of error.
At the trial the girl was asked, on cross-examination, if her father had had sexual intercourse with her, admitted he had and denied there was a scheme to save her father by charging defendant with the crime. In reply to such imputation, and over repeated objection, the court allowed the witness to testify that she made complaint against her father, and also permitted the proceeding against her father to be introduced. We think it was permissible to rebut the imputation by the testimony of the witness, but we do not approve of the introduction in evidence of the files in the case against the father. This, however, was harmless error. Counsel point to the fact that the written complaint against the father was made by a deputy sheriff. Even so, we may reasonably infer from the testimony that the deputy sheriff obtained information on the subject from the girl, and, while the girl was in error in a technical sense in saying she made the complaint, she was right in fact in saying she complained against her father.
Counsel also complain of a discrepancy between the testimony, of the girl as to the period of time defendant was with her and the recital of her testimony by the trial judge in his charge to the jury. The testimony must have been fresh in the minds of the jury and we cannot conceive of any harm occasioned defendant by the statement.
Defendant moved for a new trial on the ground of discovery that the girl had a venereal disease of long standing, averred he had no such disease, and advanced the postulate that such would not likely have been the case had he had sexual intercourse with the girl. Passing the point of whether the showing was of newly-discovered evidence, we think the postulate too problematical to warrant a new trial.
We find no reversible error, and the conviction is affirmed.
North, Fellows, 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.
Proceedings pursuant to its charter were taken by the city of Detroit before the defendant to condemn certain lands owned by O’Brien and Trossel (hereafter called the plaintiffs) and others for the purpose of opening, widening, and extending what is known as the Vernor highway. A jury was impaneled on May 25, 1924, and made an award on December 19, 1924, finding a necessity for the improvement and fixing the compensation to be paid to the several owners. This award, as to the plaintiffs, was set aside on stipulation and a new trial granted as to the compensation to be awarded. A second jury was impaneled on March 11, 1925, and made its award on July 24, 1925, fixing the compensation to which plaintiffs were entitled at $45,843.23 and $85,100, respectively. On July 25th, the city filed a motion for a new trial. An order granting same as to both plaintiffs was made by defendant on October 8th. By separate petitions plaintiffs ask that defendant be required by mandamus to set aside this order. Orders to show cause were issued, to which defendant has made returns.
In his returns defendant insists that as a judge of the recorder’s court he has the inherent power to set aside and vacate a verdict rendered in his court for any “good and sufficient cause which may come to him in his capacity as judge of said court.” A consideration of the question discloses that the members of this court are not in agreement as to the answer which should be given thereto. As we are all of the opinion that the action of the defendant should be sustained, and as it is important that the cases should be speedily disposed of by us, we refrain from a discussion of this question. •
The award as to both plaintiffs was in the same proceeding. It was the duty of the jury to fix the compensation fairly and equitably as to both of them. If the jury were in any way affected by matters deemed by the court to be improper in determining the value of Trossel’s property, it can but be inferred that it also affected the award as to O’Brien.
It appeared that one of the jurors was a half-brother of the wife of Trossel’s brother. On his voir dire examination he stated that he was not a relative of Trossel. While this answer was strictly true, the defendant felt that the juror, in fairness to the parties, should have disclosed the facts.
The motion was supported by an affidavit, in which the witness deposed that the verdict was excessive. 'It is true that the affiant was a witness for the city on the trial and testified as to the value of the property to be taken. We are impressed that the facts presented to the defendant necessitated the exercise of a judicial discretion on his part in granting or denying the motion. His determination, based thereon, that a new trial should be granted, will not be interfered with by us on mandamus. People v. Branch Circuit Judge, 17 Mich. 67; Detroit Tug & Wrecking Co. v. Wayne Circuit Judge, 75 Mich. 360; Reynolds v. Newaygo Circuit Judge, 109 Mich. 403; Fort Wayne, etc., R. Co. v. Wayne Circuit Judge, 110 Mich. 173; Hayes v. Ionia Circuit Judge, 125 Mich. 277; General Necessities Corp. v. Wayne Circuit Judge, 214 Mich. 138; Breisacher v. Judge of Recorder’s Court, 223 Mich. 254.
The writs are denied. Defendant will have costs.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Fellows, J.
Plaintiff Otsego Sanitary Milk Products Company is a corporation and successor to a voluntary association of farmers. Plaintiff Barnard is its president and was president of its predecessor. Marvin C. Haight was formerly secretary of plaintiff company and its predecessor. He brought an action in assumpsit in the Allegan circuit court against the company to recover for services performed and money expended by him and for services performed by his wife which latter claim was assigned to him. The company in its defense and by way of counterclaim set up that Haight has misappropriated funds of the company. On petition of Haight preliminary to trial the case was transferred to the equity side of the court and Barnard was made a defendant. This proceeding seeks to compel the vacation of such order.
The only relief sought by either party in the original case is a money judgment or decree. It is said by one of the parties that the number of items involved approximates 3,000 and by the other that the number does not exceed 50. The case may be one for a referee under 3 Comp. Laws 1915, § 12639 et seq., but the fact that the items are numerous does not deprive a court of law of jurisdiction. Indeed, the most that is claimed by the present defendant is that the jurisdiction of the law and equity courts is concurrent. The provision of the judicature act relied upon is section 12351, 3 Comp. Laws 1915, which reads as follows:
“If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, or if it appear that an action commenced on the law side of the court should have been brought in equity, it shall be forthwith transferred to the proper side, and be there proceeded with, with only such alteration in the pleadings as shall be essential.”
This statute has been before this court on numerous occasions. Among the cases see Flint v. LeHeup, 199 Mich. 41; Toles v. Duplex Power Car Co., 202 Mich. 224; Courtney v. Youngs, 202 Mich. 384; City of Iron Mountain v. Iron Mountain Waterworks, 206 Mich. 537; Lake Superior Brass Foundry Co. v. Houghton Circuit Judge, 209 Mich. 380; French v. Mulholland, 218 Mich. 248; Banks v. Wayne Circuit Judge, 221 Mich. 147; Koontz v. Bay Circuit Judge, 224 Mich. 463. We need examine but one of these cases to determine that the order of transfer was erroneous. In Lake Superior Brass Foundry Co. v. Houghton Circuit Judge, supra, an action in assumpsit was brought on a promissory note. The defense insisted that the note sued upon was but . one item of partnership accounts, and that an accounting should be had on the chancery side and on motion of defendant, made upon the trial, an order of transfer was made. Reviewing this order on mandamus, Mr. Justice Sharpe, who wrote for the court, pointed out that the statute corresponded with the Federal Equity-Rule No. 22, considered the Federal holdings and said:
“This section, however, provides for the transfer from the law to the equity side of the court at any time it appears that the action on the law side should' have been brought in equity. Applying the reasoning of the Federal courts, the order should only be made when, on the face of the plaintiff’s declaration or a consideration of all the proofs, it should appear to the trial court that the plaintiff cannot recover and a verdict must be directed against him. * * *
“The right of trial by jury is secured to plaintiff by the Constitution of this State. Article 2, § 13. This statute in no way attempts to deprive the plaintiff of such right, nor should such a construction be given it as would even tend to work out such a result in violation of the constitutional provision.”
There is no intimation in any of the pleadings that Mr. Barnard is in any way indebted to the plaintiff in the original suit. In the court below, and on the argument of the instant case in this court, it was conceded that no affirmative relief was asked or could be had against him. No process has been served upon him. People v. Detroit Mortgage Corporation, 228 Mich. 91. The order making him a party is claimed to be justified by section 12364, 3 Comp. Laws 1915, which reads as follows:
“No action at law or in equity shall be defeated by the nonjoinder or misjoinder of parties. New parties may be added and parties misjoined may be dropped, by order of the court, at any stage of the cause, as the ends of justice may require.”
Manifestly this statute was not designed to permit the bringing in of unnecessary parties as defendants against whom the plaintiff has no cause of action either real or apparent, and who have no interest in the out.come and against whom no relief is asked or could be granted. Under the concession of counsel, it would be the duty of the court to enter an order that the case be “dropped” as to Barnard had he been made a party in the original summons. Under these circumstances we think the order making him a party should be vacated. In Bowers v. Gates, 201 Mich. 146, the plaintiff had brought suit against Gates for malpractice and had joined with him as defendant the surety company, which had issued to him a “physician’s liability policy.” The declaration did not allege any tort committed by the surety company or any privity between it and the plaintiff. The trial court refused to dismiss the case. This court, reviewing the order on certiorari, held that neither the statute here under consideration or Circuit Court Rule No. 43, § 3, authorized the continuance of the suit against the surety company and reversed the order made below. Upon the record Mr. Barnard is neither a necessary or proper party, and the order bringing him in must be vacated.
The writ will be granted with costs to the plaintiffs in the instant case against the plaintiff in the original suit.
Sharpe, Snow, Steere, Wiest, Clark, and McDonald, JJ., concurred. Bird, C. J., did not sit. | [
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WIEST, J.
The forenoon of September 30, 1922, Hedir Sadik was killed by a street car on Gratiot avenue in the city of Detroit. Plaintiff was appointed administrator of his estate and brought this suit to recover damages from the defendant city, owner of the street car system. The trial judge held the deceased guilty of contributory negligence and left to the jury the question of Whether his negligence should have been discovered by the operator of the street car in time to have avoided the accident. Upon such issue the jury found in favor of defendant.
Plaintiff reviews by writ of error, claiming the negligence, if any, of the deceased was, under the evidence, a question of fact for the jury, and the court was in error in holding otherwise. /
Hedir Sadik was a push cart peddler. About 10 o’clock the morning of September 30, 1922, he pushed his cart east on Gratiot avenue, and, at the intersection of Rivard street, wanted to cross to the north side of Gratiot. Gratiot avenue has double street car tracks. Sadik, in crossing the south track, had to hurry on account of an approaching street car from the west and the operator of that car had to apply brakes to avoid striking him. While he was crossing the north track a street car from the east struck him just as he was about to step free of the track. It is claimed the street car was about 200 feet away from him when he started to cross its track and continued to approach at a speed of about 15 miles per hour, and this placed him in great peril, from which he could have been saved from injury had his position been duly observed and the speed of the car lessened. Sadik would have been struck by the east-bound car if brakes thereon had not been applied and was struck by the-west-bound car because its speed was not reduced in time to let him pass. . The testimony shows he was running across the track looking ahead and not towards the approaching car. We think, under the evidence most favorable to plaintiff, Sadik was not exercising due care, and, conceding the negligence of the operator of the car, the only question of fact was whether this negligence of the operator continued after Sadik’s peril should have been discovered.
Requests prepared by counsel for plaintiff called for instructions upon the discovered negligence of plaintiff’s decedent. . One car had to reverse to save Sadik from injury; the other car if it had reversed might also have saved him from injury. He tried to cross at a time when the operators of two cars would have to give heed to his careless position if his safety was preserved. A reasonably prudent man will not take a chance of street cars slowing up to let him cross a street.
Other errors assigned have no importance in view of what we have said.
The judgment is affirmed, with costs to defendant.
Bird, C. J., and Sharpe, Snow, Steere, Fellows, Clark, and McDonald, JJ., concurred. | [
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Bird, C. J.
It is the claim of the people that the complaining witness was riding in a Ford automobile with a man named Boggs, on the evening of July 12, 1924. They parked their car at the side of the highway for a few moments to clean the windshield, and while doing so the defendant and three companions drove up in an automobile and stopped a short distance away. They came over to Boggs’ car and entered into conversation and represented that they were deputy sheriffs. They later assaulted Boggs, and defendant and one of his companions dragged the girl out of the automobile, took her to a nearby tree, knocked her down and kicked her in the back and side after she was down. Afterwards the defendant and one of his companions assaulted and raped her.
Defendant complains because the prosecuting attorney developed his case with the complaining witness with so many leading questions. The record does not disclose that any objection was taken to this method of examination. Had counsel who appeared for defendant in the trial court desired to save the question for this court they should have made their objections in the trial court.
The trial court instructed the jury as follows:
“The term ‘reasonable doubt’ does not mean that the prosecution must prove the respondent guilty beyond any doubt whatever, because if this were true then there never could be any conviction in a criminal case where the respondent did not plead guilty. The term, ‘reasonable doubt’ is not meant as a stumbling block for the jury.”
That part of the instruction in italics is complained of as being error. It might have been just as well to omit that sentence, but we see no error in it. When considered in connection with the context it does not appear harmful.
The jury were instructed that:
“Something has been said in this case about the respondent and his companions having had liquor to drink. On that subject I give you the following: It is well settled law in this State that .voluntary drunkenness is not a defense to crime. A man who puts himself in a position to have no control over his acts must be held to intend the consequences. The safety of the community requires this rule. Intoxication is so easily counterfeited, and when real is so often resorted to as a means of nerving a person up to the commission of some deliberate act, it is so inexcusable in itself that the law has never recognized it as an excuse for crime.”
Counsel’s criticism of this instruction is that “the trial court made light of, belittled, palliated and made insignificant the testimony of the defendant as to his intoxication.” If stating the law in a plain unvarnished way is belittling defendant’s intoxication, then perhaps counsel’s statement is well taken. It will suffice to say that we receive no such impression from the instruction.
Counsel insist the trial court should not have submitted the case to the jury because a case of rape was not proven; that the proof of penetration was lacking, and that there could be no case of rape without that proof. The complaining witness testified on that subject as follows:
“Q. And who was holding you then?
“A. Why, just Tom was holding me down.
“Q. Had you been struggling at that time, all the time that Fred was assaulting you?
“A. Yes, sir.
“Q. How was your strength at that time?
“A. I felt my strength slipping several times, but I just kept- on fighting.
“Q. While Tom was assaulting you, were you struggling?
“A. Yes, sir.
“Q. Did Tom penetrate your private parts?
“A. Yes, sir.
“Q. With his?
“A. Yes, sir.
“Q. He completed an act of rape on you there?
“A. Well, I just don’t know to what extent either.
“Q. You were positive that his privates entered yourself?
“A. Yes, sir.
“Q. How long did the act with Tom take place?
“A. Vh> about five minutes or more.
“Q. Was Fred there at that time all the while?
“A. Yes, sir.
“Q. At that time did you make any outcry?
“A. No, sir.
“Q. Had you made any outcry before that time?
“A. Well, I kept hollering for them to leave me go— to let me alone and I begged for mercy.
“Q. You struggled — used all the strength you had?
“A. Yes, sir.
“Q. After Tom completed the assault there, what did you do then?
“A. Fred wanted to get back on me, but he saw a car coming.
“Q. Did the car have its headlights on?
“A. Yes, sir.”
The testimony of the doctor who examined her the following morning tended to corroborate her statement. In view of this testimony this contention is not very persuasive with us.
There are other assignments, but we think they are not well taken. We have examined the record in this case with considerable care, and we are persuaded that defendant’s rights were fully protected by the trial court, and we have no criticism to make of the conclusion which the jury reached.
The judgment of conviction is affirmed.
Sharpe, Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Carr, J.
These defendants, with others, were tried on an information charging them with the crime of criminal conspiracy and were convicted by a jury. They have prosecuted their appeals on the same record that was filed in the case of People v. Heidt, ante:, 629. Reference is made to the opinion in that case for a statement of the general facts involved, the nature of the charge as set forth in the information, and the theory on which the prosecution was based.
These appellants raise the following questions:
“1. Does the failure of the State to call Heinrich Pickert, Detroit police commissioner, as a State’s witness against the appellants constitute a violation and infringement of the appellants’ constitutional rights under article 6 of the bill of rights in the Federal Constitution, and section 19 of article 2 of the Constitution of 1908 of the State of Michigan, guaranteeing unto a defendant in a criminal prosecution the right to a confrontation by witnesses ?
“2. Does the State’s failure to indorse the name of Heinrich Pickert, Detroit police commissioner, upon the information as a res gestae witness after the State had availed itself of a grand jury inquiry, and after complaint and warrant had conducted a lengthy examination, and after one of the defendants had seasonably made a motion to indorse the name of Heinrich Pickert on the information as a State’s witness, constitute reversible error?”
At the opening of the trial counsel representing three of the defendants, Clark, Burczyk and Rick, moved the court for an order to require the special prosecutor to indorse on the information, as a witness for the people, the name of Heinrich A. Pickert, formerly police commissioner of the city of Detroit. The motion alleged that Mr. Pickert, during the period charged in the information, had been police commissioner and that, as such commissioner, he was a res gestae witness as to the offense charged in the information. In support of the motion,'two affidavits, both executed by the attorney who made the motion, were presented. Said affidavits set forth in substance that the police commissioner was in charge of the police department of the city; that he. was responsible for the enforcement of laws and ordinances relating to suppression of gambling; and that he was also responsible for the policies of the department and its methods of operation. One of the affidavits further set forth that, in the opinion of the affiant, Mr. Pickert was “a material and necessary witness to the res gestae of the offense as alleged and claimed by the State. ’ ’ In support of the statements made as to the duties of the police commissioner certain provisions of the city charter were quoted by counsel in his supplemental affidavit.
Following submission of the motion and argument thereon by counsel the court said:
“The ruling on this motion will be withheld at this time. The motion may be renewed at any time counsel for the defendants named in the motion wish to do so at or before the conclusion of the people’s case. In the meantime if counsel for the defense believes that he is material to the prosecution of this case, they may subpoena him as their witness to assure his attendance. I do not feel that I can intelligently at this time upon the face of the motion itself pass upon the question of whether he is a res gestae witness or should be made one.”
The record does not show that the motion was subsequently renewed or called to the attention of the trial court in any way. An examination of the motion itself and of the supporting affidavits discloses that no facts are set forth on which a specific finding might have been made that Mr. Pickert was a res gestae witness. ' There was no showing as to what testimony he could or would give if called as a witness for the people. The failure to grant the motion at the time it was submitted was not error.
The general rule is that in a criminal prosecution it is the duty of the people to show, so far as it is possible, all parts of the transaction involving the particular criminal offense charged. The deliberate suppression of part of such transaction is repugnant to the constitutional guaranties protecting the rights of the accused. The names of res gestae witnesses must, under the statute, be indorsed and such witnesses called by the prosecutor, subject to the exception arising from the underlying reason for the rule, that testimony that is merely cumulative need not, under ordinary circumstances, be offered.
A general statement of the law of Michigan on this subject will be found in People v. Kayne, 268 Mich. 186, 194, where it was said:
“The indorsement and calling of a witness by the prosecution is not required unless he is a res gestae witness. People v. Grant, 111 Mich. 346. And it is not the rule that all res gestae witnesses must be indorsed on the information and called by the State. People v. Kindra, 102 Mich. 147. Especially is this true when the offense charged is not a crime of violence. Bonker v. People, 37 Mich. 4. Instead the rule is that, apart from cumulation of testimony, any res gestae witness should be indorsed and called by the prosecution if the testimony of such witness is reasonably necessary to protect the accused against a false accusation. In People v. Long, 44 Mich. 296, it was held that failure of the prosecution to call a res gestae witness was not error because, as stated by Justice Campbell :
“ ‘His (the witness’) position in regard to the facts was not such as to make him a necessary witness for the prosecution to enable. defendant to be protected against a false accusation”
As stated, the showing made before the trial court on the submission of the motion was insufficient to support a finding that Mr. Pickert was, in fact, a res gestae witness. Counsel for defendants, in whose behalf the motion was made, did not avail himself of the privilege of renewing the motion during the presentation of the people’s proofs. Such failure must be construed as indicating an intent to abandon the motion.
In People v. Kayne, supra, on which appellants rely, the motion was made in advance of the trial and was denied. After testimony had been, received, the motion was renewed,. being based on the record as it then stood. Not having elected to seasonably renew the motion, appellants here are not in position to complain that the trial court did not, on his own motion, raise the matter for further consideration.
It is the claim of the people that the testimony in the record, which appellants argue indicates the various matters concerning which Mr. Pickert might have testified if called, shows clearly that such testimony would have been merely cumulative. There is much force to the claim but, inasmuch as the matter was not presented to the trial court after such testimony had been offered and received, it is unnecessary to consider the matter further.
“3. The verdict rendered was contrary to law and was against the great weight of the evidence.
“4. Did the State prove beyond a reasonable doubt that the appellants had knowledge of the alleged conspiracy?”
"We have examined carefully the testimony given at the trial, bearing on the alleged guilt of each of these appellants. With reference to the defendant Bartlett it was the theory of the prosecution that moneys were collected and were disbursed in the course of the conspiracy and for the furtherance of its purpose. The witness Boettcher testified to the circumstances under which Bartlett became an inspector, and that Bartlett contributed on á monthly basis to the so-called “downtown pool.” This witness, also, testified to statements made by Bartlett with reference to the collection of money in the precinct in which Bartlett was inspector. The weight to be given to this ■ testimony as well as to other testimony of a circumstantial nature tending to implicate Bartlett was, of course, for the jury.
The witness above referred to further testified that defendant Harbison contributed to the “downtown pool,” and stated the names of persons to whom money, collected in this pool, was paid out. People’s witness Miller, a handbook operator, testified to the making of payments to Harbison in the sum of, approximately, $10,000 from January, 1939, until August of the same year. The witness Richards, a handbook operator, also testified to payments made to Harbison.
Another handbook operator, produced by the people, testified that he paid defendant Gallesero, on a monthly basis, in 1939. It is the claim of the people that such payments to defendants were made in the course of the conspiracy and for the purpose of obtaining protection. The testimony given by the witness referred to, against Gallesero, was corroborated by other proof as to contacts between the witness and said defendant.
Appellant Lynch was an inspector in the Detroit police department during a portion of the period covered by the information. People’s witnesses, Broudy, McDonald and Barger, all testified to the making of payments to Lynch. There was also testimony with reference to payment of meat bills for this defendant.
With reference to defendant Watkins, the people’s witness Booth testified that, commencing in August, 1938, he paid $300 per month to said defendant, the witness being a handbook operator in the precinct in which defendant was inspector. The witness Boettcher further testified to contributions made by Watkins to the pool and to the receipt of money that was passed on to defendant Reading. The same witness also testified as to talks between Watkins and Ryan, whose activities in connection with the furtherance of the conspiracy are referred to in the opinion in People v. Heidt, supra.
Appellant Frank Smith was an inspector in the 9th precinct and, subsequently, in the 5th precinct, during the period from February 1,1937, to August 7, 1940. The people’s witness Chase, a handbook operator, who had an interest in certain illegal operations in the 5th precinct, testified to paying defendant Smith $100 a month and, also, that other operators in the precinct likewise made payments to said defendant. The testimony with reference to defendant Baatz is somewhat similar. The people’s witnesses Hilson and Miller, both handbook operators, testified to payments made to him. Defendant Baatz took the stand as a witness in his own behalf and denied receiving any money and, likewise, denied that he took any part in the conspiracy. Against defendant Arnot, the people offered the testimony of one Garfield Wagner, a handbook operator in the 10th precinct in which Arnot was sergeant, that the witness paid said defendant money for protection. Against this defendant there was, also, testimony from other witnesses with reference to the association between this defendant and parties to the conspiracy. Arnot, as a witness in his own behalf, denied the testimony of the people’s witnesses insofar as such testimony tended to show participation in the conspiracy.
The people’s witness, Miller, already referred to, testified that during the time defendant Stevenson was a sergeant on the so-called “clean-up squad,” he paid said defendant the sum of $25 per month, and that later when Stevenson became a lieutenant payments were continued at the rate of $20 per month. People’s witness McDonald, a handbook operator, testified to meeting Stevenson twice during the period from 1936 to 1939, and paying him money on each occasion. There was, also, testimony tending to show associations between this defendant and handbook operators.
The testimony with reference to defendant Reading, the only one of these appellants who was not a member of the police department of the city of Detroit, discloses that during a part of the time from 1935 to 1940 said defendant was acting on behalf of his father, then mayor of Detroit. The witness Boettcher testified that, in the course of the con spiracy, money was paid to defendant Beading. The witness Bode, formerly a police inspector in his precinct, testified to a telephone conversation with said defendant with reference to operation of handbooks, in the course of which the witness was asked to “go easy.”
It is the theory of the prosecution that all of the payments to the appellants and all contributions by any of them to the pool were made in the course of the conspiracy and in furtherance of its unlawful purpose. As a matter of fact, such acts can scarcely be explained on any other basis. The credibility of the witnesses for the people was entirely a matter for the jury, and the rights of the defendants were fully protected by the charge as given by the trial court. The testimony against each of these defendants was of such a character as to justify submitting the question as to his guilt or innocence to the jury, and to support the verdict that was returned. Whether the defendants knew of the existence of the, conspiracy was for the jury to determine from the evidence. It was not necessary to establish that any defendant was a party to the conspiracy during the entire period alleged in the information; nor that appellants knew the names and specific acts of all other conspirators. People v. McCrea, 303 Mich. 213; People v. Ryckman, 307 Mich. 631.
“5. Did the court err in admitting the evidence of Emerson Smith as to events occurring prior to the formation of the alleged conspiracy, and was this error sufficiently prejudicial to warrant a reversal?”
This witness was hot produced on the trial and a portion of the testimony that he gave on the preliminary-examination was read to the jury. Apparently this was done without objection. We find in the record the following: .
“Mr. O’Hara: "Will the court tell me now what I can do or cannot do with Emerson Smith’s testimony which I handed up to the bench last night?
“The Court: You may read that part of it which was not objected to. Before passing upon that, I will give you a further opportunity to be heard.
“Mr. O’Hara: I will read it, with the exception of that which is in question, the five pages that you objected to.”
It does not appear that the portion of the testimony to which objection had been interposed was read to the jury at any time. It is claimed by appellants that the reference to the Consolidated News Bureau, and particularly to Joe Bernstein in connection therewith, was prejudicial to the defendants. Reliance is placed on the rule that bars declarations of an alleged coconspirator made before the existence of the conspiracy. In the instant case, however, the witness Smith did not testify to such declarations. He merely stated facts with reference to organization of the Consolidated News Bureau which copartnership was specifically mentioned in the information. It may be noted, also, that Joseph Bernstein was a defendant. It was competent for the people to show what the situation was with reference to the bureau and it may be assumed that the testimony of Smith was offered as a part of the proofs along this line. It may be noted, also, that the witness Timothy J. Reardon testified on this phase of the case, without objection so far as the record discloses, and repeatedly mentioned the Bernsteins. There is nothing in the record to indicate that any prejudice to defendants resulted. The court cannot take judicial notice that odium attached to the name as claimed by counsel. "We think the testimony was competent; but, in any event, appellants not having objected, and the testimony of Reardon'having been receiyed without objection, further consideration is not required. People v. Wilcox, 303 Mich. 287, 295.
“6. Did the court err in refusing to direct a verdict of ‘Not Guilty’ at. the conclusion of the State’s case, and at the conclusion of the proofs?”
“What was said above with reference to assignments 3 and 4 is applicable here. The trial court was not in error in refusing to direct verdicts of not guilty.
“7. Did the court err in restricting the cross-examination of the State’s witness, George Odgers, in relation to records of meritorious citations of the appellants?”
This witness, produced by the people, testified that he was a police lieutenant of the city of Detroit, in charge of the record bureau. The record indicates that he was called for the purpose of showing the connection of certain of the appellants with the police department of the city, the length of service of each, and the precincts to which each such appellant had been assigned from time to time. A stipulation covering these matters was entered into and offered as an exhibit. Thereupon counsel representing certain of the defendants sought do cross-examine Odgers as to the records with reference to meritorious citations awarded appellant members of the police department. An objection to such testimony was made by the prosecutor and was sustained by the court. Ño specific statement was made as to the purpose of the proof but the following colloquy is significant:
“Mr.. Schemanske: The Court made the statement it isn’t for the purpose of providing character.
“The Court: What is it for?
“Mr. Schemanske: For the purpose of showing activities as a police officer.
“The Court: In what connection?
“Mr. Schemanshe: His connection as a police officer during the time he has been a police officer, as to his activities, whether citations or demerits were issued against the man during the time he was on the force of the police department of the city of Detroit. ’ ’
It was further claimed that the people, by putting in the stipulation based on the records, had opened the do,or to cross-examination along the line indicated.
Obviously, the connection of appellants with the police department of the city was a material matter. However, whether any of the appellants had received citations or demerits was wholly immaterial as to any issue involved in the case. Counsel cite and rely on People v. Dellabonda, 265 Mich. 486, and People v. McCullough, 281 Mich. 15. In the first case cited it was said (p. 502): “Cross-examination on matters in issue or directly relevant to the issue is a matter of right.” Similar language is found in the McCullough Case, but the rule there stated, and sought to be invoked by appellants, has no application in the case at bar. Apparently, it was sought by cross-examination of Odgers to create in the minds of the jurors an impression or opinion that the appellants concerned were men of courage and good character. It is well settled, however, that character may not be shown by specific instances of good conduct. People v. Albers, 137 Mich. 678; People v. Bollman, 178 Mich. 159; People v. Nemer, 218 Mich. 163. Moreover, the cross-examination, excluded by the ruling of the court, was not directed to the conduct of the appellants as police officers. Rather it was designed to elicit that superior officers in the department had formed opinions that the conduct made the basis- of the citations, assuming that there were such, was worthy of recognition. Being in effect opinion evidence the proof offered was not competent. Wharton’s Criminal Evidence (11th Ed.), p. 463; State v. Taylor, 293 Mo. 210 (238 S. W. 489); People v. Eckman, 72 Cal. 582 (14 Pac. 359). The court did not err in sustaining the objection to the cross-examination.
“8. Bid the court err in refusing to discharge juror number 14 from further sitting on the trial jury?”
The motion to dismiss the juror in question was based on the claim of counsel for appellants that said juror was guilty of conduct in open court that indicated prejudice against appellants. Specifically, it was claimed that said juror, while court was in session and during an argument by one of the attorneys representing certain appellants, had smiled or grimaced in the direction of the prosecutor’s table. Following the making of such charge the court conducted an inquiry into the matter and took testimony, which appears in the record. ' The prosecutor denied that he had observed any such action.
The significance of the conduct of the juror is wholly a matter of conjecture. It cannot be said that a feeling of prejudice against ■ any one connected with the trial prompted the juror’s act. The record does not show the nature of the argument of counsel at the time of the occurrence. It was, moreover, in the presence of the trial court; and after the inquiry had been made the judge indicated his conclusions. Thereupon the motion was denied. We have examined the record carefully and conclude that the trial court did not abuse his discretion. The trial covered a period of several weeks and ample opportunity was afforded to note the conduct of the jurors. The conclusion of the judge that he ought not to discharge the juror on the basis of conjecture and suspicion, merely, was correct.
“9. Was the charge of the court argumentative and highly prejudicial thereby depriving appellants of a fair and impartial trial as guaranteed by the Constitution of the United States and of the Constitution of the State of Michigan?”
It is contended that in the court’s charge appellants, who were lieutenants and inspectors in the police department, were referred to more frequently than others of lesser rank. In a case of this nature, however, the trial court in charging the jury and definiiig the issues to be determined cannot well avoid using the names of defendants, at least in certain instances. This is particularly true in a case in which there are a large number of defendants, with varying proofs as to each. We have examined the charge of the court and do not think that any appellant was discriminated against by undue emphasis on the proofs against him or prejudiced because of the use of his name. The suggestion that certain of the defendants, who were acquitted, may have benefited because they were not referred to in the charge as frequently as were the appellants is rather beside the point. Appellants cannot predicate a claim of error on the fact that the jury acquitted other defendants.
‘ ‘ 10. Did the court err in denying appellants ’ motion for a new trial?”
For the reasons above set forth there was no error on the part of the trial court in refusing a new trial to these appellants. The evidence clearly sup ported the verdict of the jury; and for the reason.hereinbefore assigned there was no sufficient bash for the motion.
“11. Does the State’s case as presented show a multiplicity of conspiracies, and as a result, does a variance arise between the charge contained in the information and the proofs?”
This question was considered at some length in People v. Heidt, supra, and determined adversely to the claims of appellants. Further discussion is not required.
Assignments of error not specifically argued in the briefs have been examined and found to he without merit. The record does not disclose any reversible error, and the convictions are affirmed.
Starr, C. J., and North, Bijtzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
See 3 Comp. Laws 1929, § 17254 (Stat. Ann. § 28.980).—Re-porter. | [
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Bird, C. J.
Joseph Palazzolo is an infant, four years of age. He lives with his parents in Grand Rapids. On May 16, 1924, the automobile of Roy C. Sackett, driven by Carlton C. Becker, ran against and over Joseph, seriously injuring his leg. He was laid up for several months and required hospital services and the attention of a physician. When a large amount of expenses had accrued the mother of Joseph took the bills to the office of the casualty company and asked it to pay them. The interest' of the casualty company was because it had written the insurance upon Sackett’s car. After some little delay the casualty company paid $415 to cover the bills, but at the same time making protest that there was no liability. Feeling that the matter had not been legally concluded, the attorneys for the casualty company, had Jacob, the father of Joseph, petition the court to be appointed next friend. It then claims: it made a settlement with Jacob and Alice, the father and mother of the boy, for $125. The casualty company then employed counsel to appear for the boy in court. A declaration was filed by them charging defendant with operating the automobile in a reckless manner and with excessive speed. Subsequently the attorneys for the casualty company and the attorneys it had employed for the boy went into court and took a “confessed judgment” for $125 in favor of Joseph on the agreement made with the parents. Neither the boy nor his parents were present when the judgment was taken. The father of the boy refused to accept the money on this judgment. Subsequently different counsel were substituted for the boy, and they filed a petition praying that the judgment be set aside. The matter was heard by defendant and denied. This application was then made for a writ of mandamus to compel defendant to vacate his order of denial. The question raised is whether the settlement and judgment bind the infant.
The authority of a parent, guardian, or next friend to settle property rights of an infant by compromise was considered and determined recently in the case of Metzner v. Newman, 224 Mich. 324 (33 A. L. R. 98). The question there involved was the rights of minors as legatees under the will of their grandfather. After reviewing the authorities at some length, we said:
“This court having looked with favor upon the adjustment of the differences of adult relatives with reference to the settlement of estates will also look favorably upon the adjustment of differences in the family over the settlement of estates where infant legatees are interested, provided the proposed compromise of the differences is submitted to the court and a finding made that the settlement and compromise are for the best interests of the infants.” ■
It is our understanding from the briefs that both counsel recognize this law should govern the case, but defendant’s counsel say that the rule as laid down in that case was followed in this, and counsel take issue on that question.
The court had before him the fact that the boy was only four years of age, that he was run over and seriously injured. Dr. O’Brien testified that the boy was permanently injured and would probably always be lame. It further appeared that there were doctors’ bills, hospital bills, and that the mother had to nurse him for several months. It further appeared from the declaration which the attorneys for the casualty company caused to be filed in the case, that the injuries to the plaintiff’s right leg were received “by reason of the carelessness and negligence of said defendant, Carlton C. Becker, in driving said automobile, the negligence of the said defendant, Carlton C. Becker, consisting of driving said automobile at a dangerous and excessive rate of speed and without due regard for the pedestrians on said street.” In the petition prepared by the lawyers of the casualty company, for Jacob’s appointment as next friend, it was set up that the boy, Joseph, had a meritorious cause of action against Sackett and Becker. With this and other information which was presented to the court, we are disinclined to believe that the court considered the merits of the case, and concluded that it was for the best interest of the boy* to accept a sum which would not cover the expenses incurred by reason of the injuries. The record fairly shows that the $415 paid, and the $125 proposed to be paid, would not cover these expenses. If this be so, then that would leave the boy nothing to compensate him for his injuries.
The record of the judgment shows:
“In this cause said parties being present in court it is agreed by stipulation that a confessed judgment be entered in the sum of $125, without costs, and without prejudice to either party.” (It has been shown since the argument of the case that the words “without prejudice to either party” were an error and should be omitted.)
After these facts were submitted, the court was advised that the injuries of the boy were very serious, and if the testimony was not full enough to advise him as to whether the sum proffered should be accepted, he should have adjourned the hearing and had the boy brought in and the parents notified, and investigated to the point of being satisfied whether the boy had a probable cause of action, and, if he had, whether this was a fair settlement of it. In other words, the law contemplates the presiding judge will exercise some discretion and judgment in the merits of the controversy, and not allow a judgment, whether for or against a minor, to pass as a matter of course. As we have said, we are inclined to believe that the court treated it as a “confessed judgment” without taking any interest in the merits, and for this reason we think the judgment should be vacated. The writ will issue as prayed, if necessary.
Sharpe, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Snow, J., did not sit. | [
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Nelson Sharpe, C. J.
Catherine E. Bigelow brought an action against the plaintiff to recover the amount due on a land contract executed by him. She recovered a judgment therefor in the circuit court, and, on appeal to this court, it was affirmed. Bigelow v. MacCrone, ante, 217.
While this action was pending in the circuit court, the plaintiff filed the bill of complaint herein to enjoin its further prosecution. After proofs taken, it was dismissed. Plaintiff appealed.
The relief sought was available to the plaintiff in the action at law, and the chancery court had no jurisdiction. Munz Spralawn Corp. v. White Chapel Memorial Ass’n, 265 Mich. 66.
The decree is affirmed, with costs to appellees.
Potter, North, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Wiest, J.
This is a suit to quiet title to certain lands in the county of Marquette. Plaintiff holds under the regular chain of title. Defendant claims title as purchaser at tax sales and under tax deeds from the auditor general, perfected by notice to and failure of the last recorded grantee in the regular chain of title to redeem. Before filing the bill plaintiff deposited with the register in chancery a sum sufficient to redeem. Decree was entered in the circuit quieting plaintiff’s title. Defendant appealed.
When defendant received his deeds from the auditor general, the records in the office of the register of deeds for the county of Marquette showed “The Huron River Land Company, a Michigan corporation,” to be the last grantee in the regular chain of title. To perfect title and end right of redemption from the tax deeds, defendant attempted to give notice to the Huron River Land Company of right to redeem within six months as provided by statute (1 Comp. Laws 1915, § 4138). To this end a notice was prepared and given to the sheriff of Marquette county to serve. The form of the notice is questioned, but we deem it unnecessary to give consideration thereto. The sheriff made inquiry within his county relative to the Huron River Land Company and, not finding any of its agents or officers, made return of not found. Upon this return publication of the notice was made in a newspaper in the county of Marquette.
The Huron River Land Company was organized under the laws of the State of Michigan in October, 1907, and in its articles of incorporation, in accordance with statutory mandate, its office in the State for the transaction of business was fixed at L’Anse in the county of Baraga. No effort was made by the sheriff of Marquette county, or any one else, to learn, from the public records in the office of the secretary of State, the location of the place of business of the Huron River Land Company, and no effort was made to serve the notice outside of Marquette county. It is to be inferred from the record that the Huron River Land Company has ceased active Operations; but if this is so, the section of the statute, regulating the service of the notice, provides for such contingency and requires a return by the sheriff of the county in which the office of the corporation for the transaction of business is fixed in the articles of incorporation.
Right to redeem is important and so recognized by the tax law. Due process of law is provided to enable exercise of right of redemption and to end such right within a time limit after notice. Defendant had knowledge that the Huron River Land Company, a Michigan corporation, was grantee in the last recorded deed in the regular chain of title. The appropriate and readily available public records in the office of the secretary of State showed the incorporation of the land company, and the location of its office in the State for the transaction of business, and had defendant looked there for information, he would have known the notice could not be served in Marquette county, but would have had to be sent to the sheriff of Baraga county for service, or return with reason for non-service. The statute points a plain method of making service upon the last recorded owner, and its provisions must be followed, if right of redemption is cut off. Defendant’s efforts to cut off right of redemption were a nullity.
The decree in the circuit is affirmed, with costs to plaintiff.
Bird, C. J., and Sharpe, Snow, Steers, Fellows, Clark, and McDonald, JJ., concurred. | [
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Sharpe, J.
In May, 1925, plaintiff was desirous of selling a millinery business which she owned and had conducted for six years in the city of Grand Rapids. Defendants desired to purchase such a business, and had enlisted the service of Berton T. Fuller, a real estate broker, to that end. Fuller learned that plaintiff wished to sell, so informed Mrs. Rice, and after some negotiations, a deal was made on June 20, 1925, whereby defendants offered in writing to purchase plaintiff’s millinery business for $4,750'; $250 on delivery of bill of sale, and balance by assignment of defendants’ equity in a house and lot in the city. This offer was accepted by plaintiff in writing. On June 23d. Mrs. Rice was given possession of the millinery store, opened a bank account, and had the insurance policy assigned to her. The parties at that time called an attorney to the store and asked him to prepare the necessary papers to complete the deal. On the morning of June 27th (Saturday) Mrs. Rice called plaintiff on the telephone and said to her that “she was a little afraid of the proposition.” After some conversation, plaintiff said to her, “Meet me at the store a little later and we will talk it over.” Mrs. Rice did not come to the store. The keys were left that night by an employee at a place designated by plaintiff. They were secured by her on Monday morning, and she took charge of the store and conducted the business thereafter. The proceeds of the sales during the preceding week had been left in the store. These were taken possession of by plaintiff and deposited in the bank in her own account. It also appears that on the Sunday intervening the plaintiff caused an advertisement of the business to be inserted in a Grand Rapids newspaper announcing a “clearance sale. Hats 1/2 and 1/3 off.” On Monday the plaintiff signed the bill of sale prepared by the attorney. At her request he took the papers he had prepared for defendants to sign to their home, but they refused to execute them. On July 15th, plaintiff commenced this suit to recover the damages sustained by her, due to defendants’ failure to perform the contract. At the conclusion of plaintiff’s proofs, defendants’ counsel moved for a directed verdict for the reasons, first, that there had been a rescission of the contract, and, second, that plaintiff had failed to establish any damage sustained by her. The trial court granted the motion for the reason first stated. The plaintiff here reviews the judgment entered on the verdict directed for defendants by writ of error.
The defendants did not in terms rescind the contract ; they abandoned it. What they did was, in legal effect, a redelivery of that which they had purchased to the plaintiff. Her act in taking possession and at once resuming the conduct of the business as her own and retaining the proceeds of the sales during the week defendants had possession, we think amounted to an assent to such abandonment and thereby effected a rescission of the contract of sale and placed the parties in a position as if the contract had not been made.
It is urged that defendants were not entitled to possession under the terms of the instrument until, the payment had been made and the conveyances, therein provided for had been executed and delivered, and that Mrs. Rice was not in actual possession at anytime. While not entitled to possession, it cannot be doubted that possession was delivered to her. Plaintiff so testified.
This subject is exhaustively treated in 2 Black on Rescission, §§ 531, 532:
“When goods have been delivered to the buyer under a contract of sale, and he returns them to the seller, and the latter accepts the redelivery, and resumes and. retains possession of the property as his own, and does not notify the buyer that he intends to hold it subject to his order or sell it for his account, the transaction operates as a complete rescission of the-contract of sale.' And it appears to be immaterial, in respect to the application of this rule, whether the purchaser assigns any reasons for returning the goods, or what his specified reasons may be, whether a deficiency in quantity or quality, a general dissatisfaction with the property, his inability to pay, or a mere wish to be released from his bargain. For his return of the goods is an offer of rescission, and the acceptance and retention of them by the seller is an acceptance of that offer, and thereupon a rescission is effected, not necessarily for legally sufficient cause, but by the mutual consent of the parties. * * *
“Without any explicit agreement for the abrogation of a contract, it may be effectually rescinded by the-actions of the parties where they mutually abandon all further performance under it, and treat it as at an end, neither seeking to hold the other to any accountability under it. And the same result follows where one of the parties distinctly and completely abandons all rights and all obligations under the contract, and. the other accepts the situation so created and restores himself, so far as possible, to his former situation.”
In 24 R. C. L. 272, it is said:
“A mutual rescission may be inferred from the conduct of the parties clearly evidencing their intention to treat the contract at an end.”
And further, on page 276:
“The mutual rescission of an executory contract of sale puts an end to any obligation of the parties further to perform or liability for the nonperformance of the contract.”
A somewhat similar question was presented in the late case of Holmes v. Borowski, 233 Mich. 407, where the rules goyerning mutual rescission were considered. The reasoning in the opinion in that case and the authorities discussed and cited are instructive on the question here presented.
The judgment is affirmed.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Nelson Sharpe, C. J.
George Blanchard, of Williamston, executed his last will and testament in due form on the 27th day of April, 1932. In it he devised and bequeathed to his wife, Mabel Blanchard, a life estate in the home occupied by them and the contents thereof. He then devised and bequeathed certain real and personal property-to the Central Trust Company, of Lansing, with the usual powers as to investment, the net income of which was to be paid to his wife during her lifetime. The following then appears therein:
“In case of the termination of the marriage relation between myself and my said wife prior to my death, the foregoing provisions to be null and void. ’ ’
Other bequests were made, and the residue was left to his son, Roy L. Blanchard.
The testator died on April 28, 1933. When his will was offered for probate, Roy L. Blanchard filed an objection thereto — “Insofar as the provisions relating to Mabel W. Blanchard are concerned for the reason that said provisions were revoked by a. property settlement made and entered into between said George Blanchard and said Mabel W. Blanchard on the 26th day of November, 1932.”
The objection was overruled by the judge of probate and the will admitted to probate. An appeal was then taken to the circuit court and, after a hearing thereon, an order was entered admitting it to probate, from which the contestant, Roy L. Blanchard, has taken this appeal.
Soon after the execution of the will, the testator instituted proceedings for a divorce, but there was a reconciliation in June, 1932, and the suit was discontinued. In the fall of that year, they again separated, and on November 26, 1932, an agreement was entered into between them which, after reciting that they had separated and were desirous of making a settlement of all property matters and of the right of the wife to support and alimony in any proceedings which might be instituted by either of them for a divorce, provided that the deceased should convey to his wife certain real estate in the city of Lansing and certain shares of the capital stock in a bank at Williamston and pay to her certain money, and that she should, in consideration thereof, accept the same in full settlement of any rights she then had as his wife in his property, “including the full release of dower in any real estate owned by him or hereafter acquired, and that she will execute and deliver, in addition to the execution of this agreement, a full and complete release of all dower rights.”
It was further agreed that the deceased was released from all obligations to support or maintain his wife, and that the agreement should be a complete bar to any claim for alimony or expenses in case either party should thereafter file a bill for divorce.
It is admitted that the deed was executed and delivered and the bank stock transferred and the money paid, as provided for in the agreement, and a quitclaim deed releasing her claim of dower which she might have as his wife or widow in his real estate executed by her.
Four days later Mrs. Blanchard filed a bill for divorce. This suit was discontinued in January, 1933.. She testified that about three months before his death the testator came to her and got her to go back and live with him and that they then lived together in their home in Williamston until his death.
It also' appears that the testator was in the office of the attorney who drew the will and had possession of it, and who acted for him in other matters, a number of times after the property settlement was made.
Section 13486, 3 Comp. Laws 1929, provides that no will, nor any part thereof, shall be revoked except by its destruction or by the execution of another will or codicil “excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.”
It is the claim of the contestant that, from the execution of the settlement Agreement and performance by them thereunder, revocation of the provisions in the will in favor of the wife will be implied.
This court has on two occasions been called upon to decide whether a will was impliedly revoked by “subsequent changes in the condition or circumstances of the testator.” In Lansing v. Haynes, 95 Mich. 16 (35 Am. St. Rep. 545), a husband and wife had made mutual wills in favor of each other. During the pendency of a divorce suit between them, in which she later obtained a divorce, a property settlement was effected somewhat similar to that made in this case. The husband died without revoking his will, and it was held, under the statute, that it was impliedly revoked. The court said:
“The revocation must rest upon presumption, not upon intention. * * * By the decree of divorce in this case, the parties became as strangers to each other, and neither owed to the other any obligation or duty thereafter.”
A similar question was presented in Wirth v. Wirth, 149 Mich. 687, and it was held that the “divorce and settlement operates ipso facto to revoke the will.”
Many cases from other courts are cited by counsel, in which one or both of these cases are referred to, and a similar conclusion reached. In all of them, so far as we have been able to find, the fact that a divorce has been granted and the husband relieved thereby of any duty which he owed to his former wife is stressed and decision rested thereon.
The settlement in this case was doubtless made in the expectancy that a divorce would be granted. The parties, however, later resumed their 'marriage relations and were so living together at the time of his death. While intent is not controlling, it is significant that the deceased on many occasions after the settlement was made visited the office of his attorney who had the will in his possession, and made no change in it.
The decree is affirmed, with costs to appellee.
Potter, North, Fead, Wiest, Butzel, Btjshnell, and Edward M. Sharpe, JJ., concurred. | [
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Boyles, J.
(for modification of decree). Plaintiff’s bill of complaint alleges that defendant and one Frank Henigman entered into an oral agreement with, plaintiff to prospect for and produce oil or gas in the Bloomingdale oil and gas field in Van Bnren county, that it was agreed each should receive one third of the net profits therefrom, that plaintiff made trips, devoted time to negotiating oil and gas leases, secured leases, particularly one from Mr. and Mrs. Veley, owners of land in the area, negotiated for and secured an agreement from well drillers, and that a producing well was drilled on the Veley lease.from which defendant has received and kept large sums of money without accounting to plaintiff for his share. Plaintiff asks for an accounting, an order enjoining defendant from collecting further -sums of money, and a receivership to conserve and distribute the proceeds from this oil and gas lease. The circuit court after a hearing decreed that plaintiff and defendant had agreed, to share in a joint enterprise, that plaintiff was entitled to his share, that the cause be referred to a circuit court commissioner for an accounting, and that the defendant be restrained from collecting or receiving any further sums of money until plaintiff had been paid in full. Defendant appeals.
■ Appellant claims that plaintiff’s suit is for compensation for services, for work performed by plaintiff. We do not so consider the bill of complaint. It sufficiently alleges facts and circumstances which, if proven, constitute a joint adventure between the parties. Johnson v. Ironside, 249 Mich. 35; Hathaway v. Porter Royalty Pool, Inc., 296 Mich. 90 (138 A. L. R. 955).
Appellant’s principal claim is that the testimony fails to establish a joint adventure. The circuit judge held that a joint adventure had been proven, and we have examined the record to ascertain de novo whether a joint adventure has been established by the proofs.
The parties resided in Illinois. In 1937 plaintiff, an employee of General Electric Company in Chi cago, became interested in exploring for oil and gas as a sideline. Plaintiff and defendant and Prank Henigman—also a resident of Chicago—took leases both in Illinois and Michigan in defendant’s name and put down wells in both places. Henigman had an instrument referred to as a “doodlebug” to test for oil. The defendant herein also had a “doodlebug, ’ ’ and with these so-called test instruments they experimented in tests for oil both in Illinois and in Michigan. Henigman and the defendant herein invited plaintiff to come in with them’ on a deal in western Illinois. They took leases in that territory in defendant’s name, and had one or more wells drilled there. Plaintiff testified that during one of their frequent conferences he said to defendant:
“Well, I am—don’t know much about this western Illinois but I have had a background of knowledge of what is going on in Michigan and Mr. Henigman and I have been up there a great deal and there is a territory east of Bloomingdale that we think quite a bit of.”
Plaintiff’s employer objected to his spending so much time in oil prospecting and in 1939 plaintiff took a two-month leave of absence from his employment. During this, time plaintiff, Henigman and defendant continued to get together and examine oil prospects. Plaintiff mentioned to Henigman and defendant that he “still liked an area up around Bloomingdale (Michigan).” He testified:
“I said ‘Well, let’s go over to Michigan—I would like to show that to you, Mr. Predenhagen, and see what you think of it—’ as Henigman and I had not only checked that area but we had stopped in on a couple of occasions to talk to Walter Schock, a lease that we were particularly interested in to find out whether or, not it was under lease and when it would be ready for re-leasing and We had gone out to make some tests on his farm. So he said ‘Fine. I would be glad to go over’ and said ‘This looks good to you fellows,’ said ‘We will put that in on the play and we will drill a well in western Illinois and drill one in Bloomingdale—’ so I brought them over in my car—and during that trip we made a number of tests in the area.”
They discussed the taking of leases in Michigan and agreed that leases should be taken in defendant Fredenhagen’s name because of the objections voiced by plaintiff’s employer. Plaintiff testified:
“I said ‘All right, Mr. Henigman and Mr. Fredenhagen, we will start in leasing over there and we will share the profits in the interest equally. Is that agreeable to you fellows?’ They both said ‘That is entirely agreeable.’ ”
The record shows that plaintiff assisted in obtaining leases in Michigan, the three men took trips to places in Illinois as well as to Bloomingdale in plaintiff’s car, obtained leases in defendant’s name in both places. Some of the Michigan leases were prepared by plaintiff in his handwriting and secured by plaintiff, using defendant’s name as lessee. Others were obtained by defendant. Plaintiff assisted in raising the funds for drilling, in securing a firm of oil well drillers to develop the leases, and actively participated in obtaining the drilling of wells. Plaintiff tried to procure a written agreement with defendant. He testified:
“I said to Mr. Fredenhagen, ‘We ought to have something in writing between us—we haven’t got anything here , to show what relationship—what agreement we actually have—we don’t have anything and something might happen to any one of the three of us—one of us might be killed and leave one or the other of us holding the sack—and for the protection of all of us we ought to have something-some sort of agreement for the work we have been doing’—Mr. Henigman said that there should be something—Mr. Fredenhagen said we should have something.”
We find from the record that these three parties entered into a joint adventure to explore for oil and gas both in Illinois and in Michigan; that plaintiff actively participated in the venture and materially aided in bringing it to fruition. A well was drilled on the Schoek lease and came in a nonproducer. At the same time, concurrently with the work on the Schoek lease in Michigan, these parties drilled what they called the Roberts well, in Illinois. Henigman and the defendant stayed in Illinois and looked after the Roberts matter and plaintiff came to Michigan and attended to drilling the Schoek well. The Yeley lease was a part of the same joint venture. A firm of well drillers—Clapsaddle & Harris—was engaged to drill on'some leases, they agreeing to drill four wells. A written agreement was signed by Harris and the defendant (the leases being in defendant’s name). Clapsaddle & Harris drilled in a well on the Yeley lease which proved to be a producer.
The negotiations between plaintiff and defendant for a written agreement came to nothing. Henigman apparently has been settled with by defendant, or has been paid from the profits, at least it does not appear that he is making any claim, and he does not appear in this suit. Plaintiff claims he has had nothing in return for his part in the venture.
Yerbal joint adventure agreements are generally indefinite, and the intention of the parties must be gleaned from the entire course of their conduct and transactions. It is reasonable to believe that plaintiff would not have devoted so much time and ex pense in obtaining leases, raising funds to drill wells, arranging for contracts, using his own transportation on a considerable number of trips in Illinois and to Michigan without some agreement to share in the profits. The record supports the finding of the circuit judge that these parties agreed to a joint adventure to procure leases, explore for oil and develop the leases, and share in the proceeds.
Defendant claims that such an agreement, not in writing, is void being within the statute of frauds. The agreement between the parties was to share in the profits, and the sale of an interest in lands is not involved in this case. The statute of frauds (3 Comp. Laws 1929, §13413 [Stat. Ann. § 26.908]) is not a bar to the action. Youngs v. Read, 246 Mich. 219; Stewart v. Young, 247 Mich. 451.
One other question requires consideration. Appellant questions whether the proofs do not disclose a joint adventure covering leases in western Illinois as well as in Van Burén county, Michigan. The bill of complaint makes no claim of an agreement to prospect for oil or gas in any area except the Bloomingdale field in Van Burén county, Michigan. Plaintiff’s claim for a share in profits, as 'set up in his bill of complaint, is limited to the producing oil well on the Veley lease. The bill of complaint seeks an' accounting only for the proceeds from the well on this one lease. The defendant claims that the money realized from the Veley lease has been used in exploring for or drilling other wells on other oil and gas leases. In the original decree the lower court ■granted plaintiff an accounting limited to the Veley lease. Subsequently the court granted a rehearing on its own motion, saying:
“Clearly, if the parties entered into a joint adventure to acquire leases and drill for oil plaintiff cannot select one well, the operation of which was profitable, and demand an accounting and be awarded a money decree and thus avoid liability for losses oii other leases acquired by the joint adventurers.
“A rehearing is hereby ordered on the following:
“1. In addition to the Yeley lease, did plaintiff, defendant, and Henigman enter into a joint adventure to acquire other oil leases and prospect for and produce oil and gas?
“2. If so, name, location and description of such leases and operations carried on thereunder ? ”
Further testimony was taken, following which the court entered a decree designating the leases covered by the joint adventure. The court decreed that plaintiff, defendant and Henigman entered into a joint adventure from which plaintiff and defendant were each to receive one third of the net profits. The decree further provides that the adventure covered leases and operations in the western Illinois field as well as in Yan Burén county before November 9, 1940, at which time the parties terminated their operations. However, the decree designates only the Michigan leases, and directs a reference to a circuit court commissioner for an accounting of the profits and losses with respect to the Michigan leases only.. The record plainly establishes that the joint adventure was not limited to the Michigan operations, but included the operations in Illinois as well. The decree must be modified in that respect. The equities arising from the entire joint adventure are before the court. We are in accord with the conclusion that plaintiff has established the existence of a joint adventure, and that consideration should not be restricted to the profits from the successful Yeley well, disregarding losses and expenses ' from other operations in the adventure. The chancery court has jurisdiction to determine the equities of the entire matter and plaintiff cannot have the aid of a court of equity as to a part, and disregard other parts of the venture which are not to his advantage. Further testimony on the accounting may be taken to show to what extent the operations on various leases were paid for by others. We see no reason why the accounting cannot be comprehensive of the entire joint adventure.
The case is remanded for modification of the decree in the above regard, and for an accounting of the profits and losses and expenses with respect to the entire business and operations of plaintiff and defendant in the joint adventure both in Illinois and in Michigan. The court below may have jurisdiction to take any further action in the case that may be necessary to a complete determination of the rights of the parties as justice may require.
Appellee’s brief not being in conformity with Court Eule No. 68 (1933) regarding separate statement of facts and reference to pages of the printed record, and in combining facts and argument, and appellant having prevailed only in part, no costs should be awarded.
The decree should be modified and the case remanded for accounting and further proceedings in accordance herewith.
Wiest and Sharpe, JJ., concurred with Boyles, J.
North, C. J.
Mr. Justice Boyles is of the opinion that the decree entered in the circuit court should be modified. He seems to reach this conclusion by construing the trial court’s decree to limit the accounting to operations in Michigan. I think the decree should not be so construed.
While the reference to the commissioner to take testimony was limited to the Michigan transactions, it appears from the plain wording of the decree entered in the circuit court that the accounting was to, include transactions incident to the joint adventure in Illinois as well as those in Michigan. There is testimony in the record pertinent to an accounting as to the operations in Illinois; and if necessary to a full accounting, further testimony may be taken as to those transactions. The decree entered in the circuit court was not a final decree, but only an interlocutory decree. That the trial judge clearly intended the final decree should embody an accountiiig as to transactions both in Michigan and Illinois appears from the following portion of the decree entered in the circuit wherein the court found:
“That said joint adventure covered oil and gas leases and operations in the so-called western Illinois field and all oil and gas leases on property in Van Burén county, Michigan, taken in the name of defendant Donald E. Fredenhagen on or before November 9, 1940. That an accounting should be taken of the profits and loss on all such leases and operations thereon.”
Since the decree specifically provides as above indicated there is no occasion for this Court ordering a modification. The decree entered in the circuit court is affirmed and the case remanded for further proceedings incident to a final accounting. For reasons given by Mr. Justice Boyles, no costs will'be awarded on this appeal.
Starr, Butzel, Bushnell, and Reid, JJ., concurred with North, C. J. | [
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O’Connell, J.
The prosecution appeals as of right a December 18, 2007, order of dismissal for a violation of the statutory 180-day rule, MCL 780.131. We reverse and remand.
Defendant was charged with larceny in a building, MCL 750.360, for an offense that occurred on August 26, 2006. The complaint was filed and the warrant authorized on September 20, 2006. Defendant was arraigned on October 16, 2006, and a preliminary examination was scheduled for October 26, 2006. Defendant failed to appear, and a capias order was entered.
On May 10, 2007, the prosecution received a certified letter from the Department of Corrections (DOC) informing it that defendant was incarcerated with the DOC. Defendant was arraigned on the capias order on October 17, 2007. On November 1, 2007, the preliminary examination was held, and defendant was bound over for trial. He was arraigned in circuit court a week later. The trial court scheduled a final pretrial conference for December 18, 2007, and scheduled the trial for January 14, 2008.
On December 13, 2007, defendant moved to dismiss for lack of a speedy trial. He alleged that he was arrested in August 2006 and had been incarcerated since his arrest. He further alleged that he was prejudiced by the delay in proceeding to trial, a delay for which he was not responsible, because “some evidence is no longer available to aid in his defense.”
The prosecution interpreted the motion as one to dismiss for a violation of the 180-day rule, MCL 780.131, and asserted that the statute “doesn’t require the trial itself commence within 180 days, but that the process to bring the defendant to trial begin within the statutory period.” The prosecution asserted that it received notice of defendant’s incarceration from the DOC on or about May 11, 2007, and that defendant was arraigned within the next 180 days. On December 18, 2007, the trial court held that because the statute specifically requires that an inmate “be brought to trial within 180 days” and the 180-day period had elapsed without defendant’s proceeding to trial, dismissal was required.
MCL 780.131(1) states:
Whenever the department of corrections receives notice that there is pending in this state any untried warrant, indictment, information, or complaint setting forth against any inmate of a correctional facility of this state a criminal offense for which a prison sentence might be imposed upon conviction, the inmate shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final disposition of the warrant, indictment, information, or complaint. The request shall be accompanied by a statement setting forth the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time or disciplinary credits earned, the time of parole eligibility of the prisoner, and any decisions of the parole board relating to the prisoner. The written notice and statement shall be delivered by certified mail.
The 180-day period begins on the day after the prosecution receives notice that the defendant is incarcerated and awaiting trial on pending charges. People v Williams, 475 Mich 245, 256 n 4; 716 NW2d 208 (2006).
In this case, the prosecution received notice in May 2007, and the 180-day period expired the following November. MCL 780.133 provides that the court loses jurisdiction over the charges if action is not commenced on the matter within the 180-day period:
In the event that, within the time limitation set forth in [MCL 780.131], action is not commenced on the matter for which request for disposition was made, no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
On appeal, the prosecution claims that the trial court erred when it dismissed the pending charge against defendant because it commenced the prosecution of the charge within 180 days of receiving notice of defen dant’s incarceration from the DOC, satisfying the requirements of MCL 780.131 and MCL 780.133. We agree. Our Supreme Court directly addressed this question in People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959), when it reconciled the provision in MCL 780.131 that requires that a prisoner be brought to trial within 180 days with the provision in MCL 780.133 that requires dismissal of criminal charges only if action has not been commenced within 180 days. The Hendershot Court stated:
It is to be noted that, while [MCL 780.131] directs that the inmate “shall be brought to trial” within 180 days, the statute does not deprive the court of jurisdiction and require dismissal unless “action is not commenced on the matter” within that period.
The language of [MCL 780.131] is not that the inmate shall be “tried” or that his “trial shall commence” within 180 days, but, instead, that he “shall be brought to trial” within that time. The legislative intent and meaning in its use of the term “brought to trial” is to he gathered from the entire act. [MCL 780.133]’s provision for action to be commenced on the matter within the mentioned time throws strong light on the question. Clearly, if no action is taken and no trial occurs within 180 days, the statute applies. If some preliminary step or action is taken, followed by inexcusable delay beyond the 180-day period and an evident intent not to bring the case to trial promptly, the statute opens the door to a finding by the court that good-faith action was not commenced as contemplated by [MCL 780.133], thus requiring dismissal. The statute does not require the action to he commenced so early within the 180-day period as to insure trial or completion of trial within that period. If, as here, apparent good-faith action is taken well within the period and the people proceed promptly and with dispatch thereafter toward readying the case for trial, the condition of the statute for the court’s retention of jurisdiction is met. When the people have moved the case to the point of readiness for trial and stand ready for trial within the 180-day period, defendant’s delaying motions, carrying the matter beyond that period before the trial can occur, may not be said to have brought the statute into operation, barring trial thereafter. [Id. at 303-304.]
The trial court held that Williams supported its determination that dismissal of the charge against defendant was warranted because the prosecution had failed to bring defendant to trial within 180 days of receiving notice of his incarceration from the DOC. However, we note that Williams did not address the direct question at issue in this case. In Williams, our Supreme Court held that a version of MCR 6.004(D) adopted in 1989 to codify its interpretation of the 180-day rule in People v Hill, 402 Mich 272; 262 NW2d 641 (1978), Hendershot, and People v Castelli, 370 Mich 147; 121 NW2d 438 (1963), was “invalid to the extent that it improperly deviated from the statutory language.” Williams, supra at 259. Our Supreme Court overruled its earlier holdings in Hill and Castelli, stating:
MCR 6.004(D) was adopted in 1989 to codify, with two exceptions, this Court’s interpretation of the 180-day-rule statute in [Hill, Hendershot], and dictum in [Castelli]. We hold that this version of MCR 6.004(D) was invalid to the extent that it improperly deviated from the statutory language. This Court’s holding in Hill, supra, and its dicta in Castelli, supra, along with the portion of the court rule implementing these holdings, improperly expanded the scope of the 180-day-rule statute by requiring the prosecutor to bring a defendant to trial within 180 days of the date that the Department of Corrections knew or had reason to know that a criminal charge was pending against the defendant. MCR 6.004(D)(1)(b). This language does not appear in the statute. The statutory trigger is notice to the prosecutor of the defendant’s incarceration and a departmental request for final disposition of the pending charges. The statute does not trigger the running of the 180-day period when the Department of Corrections actually learns, much less should have learned, that criminal charges were pending against an incarcerated defendant. We decline to read such nonexistent language into the statute. American Federation of State, Co & Muni Employees v Detroit, 468 Mich 388, 412; 662 NW2d 695 (2003). We overrule Hill, supra, and Castelli, supra, to the extent that they are inconsistent with MCL 780.131. [Id.]
Questions concerning when the DOC knew or had reason to know of pending criminal charges against a defendant were not addressed in Hendershot and are not applicable in this case. Further, our Supreme Court expressly declined to overrule Hendershot in Williams or any other case. Accordingly, Hendershot remains good law.
Therefore, because the prosecution commenced the action within 180 days of receiving notice of defendant’s incarceration from the DOC, the trial court has not lost jurisdiction of the case and erred when it entered an order dismissing the case, even though a trial had not occurred by the 180-day mark. The prosecution made good-faith efforts to proceed promptly with pretrial proceedings; defendant was arraigned on the capias order on October 17, 2007, and was bound over for trial following the preliminary examination in November 2007. Further, trial would have been quickly forthcoming — a final pretrial conference was scheduled for December 18, 2007, and the trial was scheduled to begin in January 2008.
There is no indication that any delay in bringing defendant to trial was inexcusable or demonstrated an intent not to promptly bring the case to trial. To the contrary, it appears that the prosecution intended to bring the case to trial in a timely manner. The prosecution commenced proceedings in this case within the 180-day period and promptly proceeded to prepare the case for trial, making the necessary good-faith steps to satisfy the requirements of MCL 780.131 and MCL 780.133 as set forth in Hendershot. Therefore, the trial court did not lose jurisdiction of the case, and its dismissal of this case was in error.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
The reason for his incarceration is unclear from the lower court record. | [
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Boyles, J.
This is an appeal from orders entered in contempt proceedings to enforce provisions of a decree for divorce entered in this court. One of the provisions in the decree of divorce entered in Goodspeed v. Goodspeed, 300 Mich. 371, is as follows:
‘ ‘ That plaintiff, J ohn W. Goodspeed, shall forthwith purchase for defendant, Peggy R. Goodspeed, 1 breakfast nook set consisting of a table and 4 chairs as may be selected by said defendant, Peggy R. Goodspeed, the cost thereof to not exceed the sum of $100.”
The decree was entered January 9, 1942. Two years and eight months later, plaintiff having refused to comply with the above provision, the defendant filed a petition in the circuit court for Kent county asking that plaintiff be adjudged to be in contempt of court. Order to show cause was issued, to which plaintiff filed answer in the form of an affidavit denying the allegations in the petition and attempting therein to claim as a defense that the defendant had not complied with other provisions •of the decree. On September 27, 1944, the circuit judge in lieu of adjudging the plaintiff in contempt entered the following order:
“It is ordered that Peggy E. Goodspeed, defendant herein, shall within 30 days from the 25th day of September, 1944, select a breakfast nook set consisting of a table and 4 chairs, and that upon the selection of said table and 4 chairs by defendant, said plaintiff is required forthwith to pay for the same but not to exceed the sum of $100.
“It is further ordered that after the selection of said breakfast nook set by said defendant, the bill for the same is to be presented to plaintiff, or his counsel Allaben & Wiarda and that said plaintiff shall forthwith pay said bill, but not to exceed the sum of $100, or in default thereof, said plaintiff shall forthwith deposit with the clerk of said court a sum equal to said bill and not in excess of $100.
■ Plaintiff has not yet complied with this order, or the provision in the decree to which it relates. The proofs indicate that the defendant at one time selected a breakfast nook set and notified plaintiff where to pay the $100, but that plaintiff refused to do so except on certain self-imposed conditions not in accordance with the decree. Instead, three days after the above order was entered plaintiff filed a petition asking that the defendant be adjudged in contempt of court for failure and neglect to comply with certain other provisions in the decree, specifically to execute certain quitclaim deeds and to “deliver possession” of certain household furniture and equipment to the plaintiff. On this petition an order to show cause was issued, the defendant filed an affidavit in answer, the court heard the matter, testimony was taken, and an order entered denying the petition. From these two orders plaintiff appeals.
Plaintiff admits having failed or refused to comply both with the decree and the order requiring him to pay for the breakfast nook set. This order from which plaintiff appeals does not adjudge plaintiff guilty of contempt, but on the contrary merely directs him to comply with the decree. Plaintiff says that the order requiring him to deposit $100 with the clerk of the court is a void attempt to amend the decree of this court. We do not agree. The order provides in the alternative .that plaintiff should either pa!y the bill for the breakfast nook set when presented or pay the money into court. He may choose the first alternative and thus comply with the decree. Plaintiff further says that this is an attempt to enforce a property settlement by contempt proceedings. If so, plaintiff is seeking the same remedy against the defendant, by appealing from an order denying his petition to have the defendant adjudged guilty of contempt for failure to comply with other provisions in similar paragraphs in the same part of the decree. Plaintiff will not be heard to take such contrary and inconsistent positions on the same issue. Under the circumstances, there is no merit in this claim. This order is affirmed.
Plaintiff also appeals from the order denying his petition to have the defendant adjudged in contempt of court. The decree as entered in this case was prepared and proposed by counsel for plaintiff and entered with approval. One of its provisions is that certain real estate shall be the property of the plaintiff and that the defendant shall “execute” quitclaim deeds of her interest therein to plaintiff, or that in lieu thereof a certified copy of the decree may be recorded with like effect. Plaintiff says that the defendant is in- contempt for failure to “execute” these quitclaim deeds, but plaintiff has never so requested or presented such deeds to defendant for execution. An equally frivolous claim is made by plaintiff that the defendant has failed and neglected to “deliver and turn over” some certain furniture and personal property to him, a grass rug, banjo, tool chest, fishing rods, reels, assorted camping equipment, an old radio valued at $2.50, and about three dozen other small articles including a tent, boots, wool socks, shirt, skis, a $2 lamp, and a dog kennel. It appears that this property was not in the home of the parties with other household goods and furniture hut was stored in a house owned by defendant’s father in his lifetime which had been vacant for nine years and so far as defendant knows it is still there. Plaintiff has made no effort to take possession of this stuff, has never demanded or requested it of the defendant, and now takes the position that defendant is in contempt of court for failing to remove this property from where it was left by the plaintiff and deliver it to the plaintiff at such destination as he may request. The decree does not so require.
Plaintiff’s excuse for not paying the $100 for the breakfast nook set selected by defendant was that he did not have the money. This does not match up with plaintiff’s obviously exaggerated estimate of $1,500 as the value of the aforesaid furniture and other personal property which he has made no effort to obtain from the defendant. Plaintiff’s failure to respect the terms of the decree is inspired by personal animus and malice toward the defendant, rather than any conscientious effort to end this litigation.
The orders appealed from are affirmed and the case remanded for further proceedings for enforcement thereof. Appellee may have costs of both courts. "We consider this appeal to he frivolous and vexatious (3 Comp. Laws 1929, § 15450 [Stat. Ann. 1943 Rev. § 27.2539]; Galvin v. Gregorian Building Co., 275 Mich. 369). Appellee will recover $50 additional costs.
Starr, C.' J., and North, Wiest, Butzel, Bushnell, Sharpe, and Reid, JJ., concurred. | [
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Potter, J.
Growing out of a real estate transaction, Jessie B. French, now deceased, executed a promissory note and a real estate mortgage collateral thereto, to Morris Kraizman and wife. Jessie B. French died December 3, 1929, intestate. Her estate was probated. The last date for hearing claims was May 10,1930. Kraizman’s note was due March 23, 1931. Kraizman filed no claim, absolute or contingent, in the probate court. The administrator of the estate of Jessie B. French procured from Kraizman extension of time of payment to March 28, 1932. Before the expiration of the time to which payment was extended, September 11,1930, the final account of the administrator was allowed by the probate court, on the same date the residue of the estate of Jessie B. French assigned, and January 8, 1932, the administrator discharged. January 12, 1932, Kraizman filed a petition in the probate court to set aside the order discharging the administrator of the estate of Jessie B. French. A date of hearing was set and a hearing had. It is claimed no notice of the filing of the petition was given. The administrator appeared in the probate court specially and moved to set aside the order made by the probate court, fixing a date of hearing of the petition, and also appeared specially as guardian of Bennett E. French, and moved to set aside plaintiff’s petition. February 24, 1932, the probate court set aside the order of hearing made, and denied the petition of Kraizman. Kraizman then appealed to: the circuit court. Special appearances were entered by defendants in the circuit court, and the trial proceeded. The circuit court set aside the order of the probate court, and permitted Kraizman to file his claim. Defendants appeal, and the questions presented are,—
(1) Did the circuit court have the right to set aside the order of the probate court discharging the administrator ?
(2) Did the probate court acquire jurisdiction to set aside the order discharging the administrator of the estate of Jessie B. French upon the petition of Kraizman, alleging he was fraudulently prevented from filing his claim prior to the closing of the estate; and
(3) Did the circuit court have a right to rehear such petition on the appeal?
(4) Was there sufficient, fraud established to authorize the court to act?
Formerly probate courts, though courts of record, had no power to set aside their own orders and decrees. 1 Comp. Laws 1897, §§ 650, 651; Grady v. Hughes, 64 Mich. 540; Corby v. Wayne Probate Judge, 96 Mich. 11. The power to do so was granted by Act No. 271, Pub. Acts 1905, and Act No. 314, Pub. Acts 1915, by section 1 of chapter 51, revised and consolidated the prior provisions of statutes relating to the jurisdiction of probate courts, and the governing provision now stands as 3 Comp. Laws 1929, § 15519, subd. 6, which provides that the probate judge,
“May, upon the filing in said court of a petition therein, within ninety days of the original hearing, or of the rendering or making of any order, sentence or decree, as the case may be, and after due notice to all parties interested, grant rehearings, and may modify and set aside orders, sentences and decrees rendered in such court: Provided, however, That the jurisdiction conferred by this section shall not be construed to deprive the circuit court in chancery in the proper county of concurrent jurisdiction as originally exercised over the same matter.”
The probate court may set aside its order discharging an administrator but only “after due notice to all parties interested.” Such notice was .not given, nor was it waived by the special appearance of defendants either in the probate court or in the circuit court.
The probate court therefore acquired no jurisdiction to set aside its order discharging the administrator, and permitting Kraizman to file his claim.
Had the probate court acquired jurisdiction the circuit court could rehear the petition on its merits, but, on the appeal as perfected, the circuit court was bound by the want of jurisdiction of the probate court. The circuit court could not exercise jurisdiction on appeal from the probate court, which the probate court never acquired.
We cannot logically pass upon the merits of Kraizman’s proof of fraud in a proceeding without jurisdiction.
The" orders of the circuit court, and of the probate court will be set aside, with costs but without prejudice to Kraizman’s giving notice “to all parties interested” of his petition as required by statute.
Nelson Sharpe, C. J., and North, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Edward M. Sharpe, J.
During August and October, 1930, plaintiff deposited $1,600 with defendant bank and received in return three certificates of deposit payable to plaintiff upon demand with interest at three per cent, per annum if left three months or four per cent, per annum if left six months.
On July 24, 1931, the defendant bank was placed in the hands of a receiver and so continued until December 23, 1931. During this interval of time, efforts were being made to reopen the bank. A reopening was finally made possible by the signing of a depositors’ agreement by 96 per cent, of the depositors. Thereupon the defendant bank filed a petition to have the receivership terminated. This action was taken under the authority of 3 Comp. Laws 1929, § 11960, which reads as follows:
“Whenever arrangements shall be made by any such bank or the stockholders thereof by reorganization or otherwise, to the satisfaction of the commissioner of the banking department, to pay all creditors thereof, aside from the stockholders, and to make good the impairment of the capital stock in all particulars, and to pay the expenses of the receivership, if any have accrued, such facts shall be pre sented to the court, and the court may order the property to be turned over to the bank or to such stockholders, and shall discharge the receiver.”
The reorganization of the bank was approved by the State banking commissioner and the receiver was discharged by court order of December 23,1931. Plaintiff did not join in the depositors’ agreement or any agreement to defer enforcement of his claim, and after the reorganization of the bank made demand for the entire amount of his deposit. It is conceded that at the date of reorganization there was sufficient of moneys on hand to pay plaintiff’s claim. Defendant bank refused to pay plaintiff any more than the percentage agreed to by the majority depositors. These dividends were accepted by plaintiff without waiving any rights he might have to the balance.
Plaintiff brought this suit for the balance of his deposit, amounting with interest to $1,582.65. The trial court held that plaintiff was not entitled to a judgment and plaintiff appeals.
The plaintiff claims that he has a contract obligation with the bank, and, not having signed any depositors’ agreement, the contract is in full force and effect and is not modified by any action that other depositors may have taken. Defendant claims that to pay plaintiff in full would result in an illegal preference among depositors in the same class.
In Bush v. Lien, 56 S. D. 270 (234 N. W. 29), it was held that non-assenting creditors cannot be compelled to release their claim against stockholders when the reorganization agreement does not purport to include any settlement of stockholders’ liability.
In the absence of statute or insolvency proceedings, compositions with creditors are binding only on those who assent. In Atlas Engine Works v. First National Bank of Seymour, 50 Ind. App. 549 (97 N. E. 952), upholding a preference to a creditor who had not entered into the composition agreement where no fraud as to other creditors was shown, the court stated at page 553:
“An agreement for a composition may he entered into by a part of the creditors of an insolvent debtor and in such a case it will be binding on those only who enter into it. In such á case, the creditors who do not enter into the agreement may proceed to collect or settle their claims in their own way.”
A creditor who did not consent to the composition agreement signed by other creditors may recover judgment for the full amount of his claim. First National Bank of Guilford v. Ware, 95 Me. 388 (50 Atl. 24). And where there has been no estoppel or waiver the acceptance by a non-assenting creditor of dividends, under the composition agreement, does not bar his subsequently obtaining judgment for the balance of his claim. Loney v. Bailey & Caldwell, 43 Md. 10; Emerson v. Gerber, 178 Mass. 130 (59 N. E. 666); American Exchange Bank v. Bornstein, 185 Wis. 218 (201 N. W. 242).
In Beardsley v. St. Joseph Circuit Judge, 266 Mich. 351, a petition for mandamus to compel the hearing of a claim similar to the instant one, the court said in granting the mandamus (p. 353):
“The mentioned agreement with some depositors of the bank in and of itself did not in law or equity bind others.”
When the receiver filed the petition for reorganization of the bank stating that, as required by 3 Comp. Laws 1929, § 11960, arrangements had been made to the satisfaction of the State banking com missioner to pay all creditors, etc., it meant the-bank was able and willing to pay depositors wbo had not signed the depositors’ agreement, as well as other creditors. Furthermore, it meant that the bank was able to pay such creditors on demand, not that it might be able to pay them in the future. It was upon this agreement that the State banking commissioner permitted the bank to reorganize and the court issued its order discharging the receiver, and defendant cannot now be heard to say that it is unable to carry out such an agreement.
The judgment entered in the ’circuit court will be set aside and the cause remanded with directions to enter a judgment in the sum of $1,582.65. Plaintiff may have costs.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Bijtzel and Bushnell, JJ., concurred. | [
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Potter, J.
Plaintiff, a locomotive engineer, employed by defendant, suffered an injury arising out of and in tbe course of bis employment July 18,1930. Subsequently be instituted suit in tbe Federal court of Toledo, Ohio, .against defendant, and April 18, 1933, that court held defendant was not engaged in interstate commerce when plaintiff was injured and plaintiff could not recover against defendant under tbe Federal employers’ liability act (45 USCA, § 51 et seq.). January 6, 1931, plaintiff filed a claim for injury with tbe department of labor and industry as follows:
“I was injured on tbe 18th day of July, 1930, while working as an employee of tbe Pere Marquette Bail-way Company in the yards of tbe company near Flint, Michigan. I was an engineer and was backing when tbe tender jumped tbe track and I jumped from tbe cab of said engine. Due to said jump I suffered a complete and partly comminuted fracture of tbe os calcis extending into tbe astragalocalcanean articulation. There is an incomplete and imperfect alignment of tbe fragments.
“Under tbe workmen’s compensation law of Michigan as I understand it, no proceedings for compensation for an injury under tbe act shall be maintained unless a notice of tbe injury shall have been given to tbe employer within three months after tbe happening thereof and unless tbe claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within six months after the occurrence of the same. The Pere Marquette Bailway Company has proper notice of my injury and I desire to make claim under the workmen’s compensation law for adjustment upon the following conditions:
“I have instructed my attorneys to file an action at law against the Pere Marquette Railway Company for damages for personal injuries as a result of this accident. I have done this believing my action is one arising under the Federal employers’ liability act. If that is the case I, of course, have no right to compensation under the workmen’s compensation laws of Michigan. The question of whether I was engaged in interstate commerce at the time of my injury may be disputed in said action and if it is and if it is determined that I was not engaged in interstate commerce I desire to preserve my right under the workmen’s compensation laws of the State of Michigan. I, therefore, desire to give notice of my injuries and ask that said claim be held in abeyance until the determination of the ease at law; until it is determined whether I was engaged in interstate commerce at the time. If I was engaged in interstate commerce at the time, my claim, of course, before the workmen’s compensation board will abate. If I was not engaged in interstate commerce and it is so determined I desire to press my claim for compensation and specifically ask that this question be held in abeyance by the department of labor and industry until the matter is finally determined. The action at law will be filed in the Federal court at Toledo, Ohio.”
The question in controversy is whether this claim so filed with the department of labor and industry is sufficient under the Michigan workmen’s compensation act (2 Comp. Laws 1929, § 8107 et seq.) to confer jurisdiction upon the department to act. We are satisfied the case was correctly disposed of by the department of labor and industry. It found not only that the written claim above quoted was filed with the department of labor and industry but that a sufficient verbal claim was made under 2 Comp. Laws 1929, § 8431.
It is claimed, plaintiff by commencing suit in the Federal court, made an election of remedies. To constitute an election of remedies, there must be in fact two or more available remedies between which the party has a right to elect. 20 C. J. p. 20. An election of remedies implies that a party has a choice of remedies. Bryant v. Kenyon, 123 Mich. 151. There is a difference between an election of remedy and a mistake of remedy, and the law has not gone so far as to deprive parties of meritorious claims merely because of attempts to collect them by inappropriate actions upon which recovery could not be had. McLaughlin v. Austin, 104 Mich. 489; McAfee v. Bankers Trust Co., 262 Mich. 276. Had plaintiff first prosecuted his claim before the department of labor and industry and it had found he was engaged in interstate commerce at the time of injury, and he had then begun suit in the Federal court and his case had been there dismissed because he was not engaged in interstate commerce, plaintiff would have been penalized for his mistake.
In Schild v. Railroad Co., 200 Mich. 614, cited by the department of labor and industry, it is said:
“The condition of giving notice of a claim for compensation, controlling the right to demand the same, is clear. There is no room for construction, and the difficulties attending upon a judicial variance from the legislative rule are obvious. Perhaps the legislative rule ought to be changed: a question for the legislature. But I can see no difficulty in such a case if the right to compensation under the Michigan law is preserved by notice, although the right way be doubtful. If the case falls within the Federal statute, remedy under that statute is exclusive; if within the Michigan law, the Federal law has no application. But if a right under the Michigan law is claimed, notice of the claim must be given within six months after the injury is received. ’ ’
In Baase v. Banner Coal Co., 202 Mich. 57, the substance of the claim made was that plaintiff would have to make a claim if he did not get better. This was held not to be an unequivocal claim.
In Brown v. Weston-Mott Co., 202 Mich. 592, no claim of compensation was made for more than two years after the accident, and though the court found 'that the record disclosed defendant had knowledge of the accident and injury prior to that time, it held the statute required not only notice of the injury but claim for compensation. “One to be given within three months and the other to be made within six months after the occurrence of the injury. We have recently held that the claim for compensation must be an unequivocal one. Baase v. Banner Coal Co., ante, 57.”
In Wilkes v. Railway Co., 234 Mich. 629, plaintiff’s right leg was crushed in an accident and he was awarded and paid compensation -for the injury. More than two years afterward a petition for further compensation was filed in which plaintiff claimed injuries to his back and hip. The court held the claim for such injury not barred by the statute of limitations, but said:
“An unequivocal claim for compensation must be made (Brown v. Weston-Mott Co., 202 Mich. 592). It need not be in writing. ’ ’
These cases in no way militate against the rule stated in Shafer v. Parke, Davis & Co., 192 Mich. 577, that:
“Inasmuch as employees, as a class, are not skilled in the niceties of language or judicial pro cedure, and as the law was intended to provide a speedy and inexpensive way for determining the compensation, any notice and any claim, made within the time limited, ought to be considered sufficient if it fairly gives the employer such information as the law intends.”
We think the claim filed by plaintiff was plain, unambiguous and unequivocal. It not only stated the time and place of injury, but that plaintiff claimed compensation therefor. It went further and specified what the plaintiff intended to do. We think the department of labor and industry arrived at a correct conclusion. Its award is affirmed.
Nelson Sharpe, C. J., and North, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Sharpe, J.
Defendants Kenneth Johnstone and wife appeal from a judgment in habeas corpus proceedings, granting plaintiffs Frank Shinkonis and wife the custody of Gerald Johnstone, the minor child of defendant Dorothy Campbell Johnstone.
The facts are that Gerald Johnstone was born out of wedlock to Dorothy Campbell on February 25, 1937. The boy’s natural father is Peter Shinkonis, now deceased. The boy was born in the Marr Hospital, Detroit, and was later taken to Providence Hospital where he remained until he was 15 months old. He was then placed in various boarding homes. On December 3, 1938, his mother married Kenneth Johnstone and about February 20, 1939, he was taken to their home where he lived until about December 26,1942, with the exception of various times during which he lived at the home of Frank Shinkonis, a brother of Peter Shinkonis. In 1942, Kenneth Johnstone adopted Gerald by formal proceedings in the probate court of Wayne county. Gerald remained at the home of the Shinkonises from December 1942 until September 20, 1944, when he was removed and placed in the Custody of the natural mother.
On September 21, 1944, Frank Shinkonis filed a petition for writ of habeas corpus upon the theory that he and his wife had lawful and legal custody of Gerald Johnstone, as defendants had on December 26, 1942, turned possession of Gerald over to petitioners with the understanding that the care and custody of Gerald should be left with petitioner and wife; and that Dorothy Campbell Johnstone is not a fit person to have the care, custody, and education of the minor child.
The cause came on for trial and the trial court made the following finding of facts:
“(1) The court is fully convinced that Gerald will be well provided for and receive good care and affection from the Shinkonises, and that both the Shinkonises are entirely suitable to have the custody of this child.
“(2) The court finds that Dorothy Campbell Johnstone, the natural mother, is devoted to Gerald and loves him as any mother would, and that she is an entirely suitable person to have his cafe and custody.
“(3) The court finds that the Johnstone home, to which Gerald would be taken if returned to the Johnstones, is a suitable home and would be an entirely proper place, as far as surroundings and equipment are concerned, in which to bring up Gerald.
“(4) The court finds that Kenneth Johnstone, Gerald’s foster father, does not have the proper fatherly feeling and affection for Gerald and is not a suitable person to have his custody.
“The factual situation in this case is different from any case which the court has found on the subject.- The distinguishing feature lies in the fact that in the case at bar we have one natural parent found to be suitable in every respect by the court and a foster parent found to be unsuitable.”
Defendants appeal and urge that the record does not sustain the trial court’s findings that Kenneth Johnstone is an unsuitable person to have custody of Gerald; and claim that Dorothy Campbell John-stone, being a suitable mother with a good home, is entitled to the custody of her son, even though the adoptive father may be unsuitable because of lack of parental love.
It appears that the Johnstone home is made up of Mr. and Mrs. Johnstone and their three children. They are buying their home, which is a five-room house. Mr. Johnstone is a machinist and has been employed at the Gar Wood Industries for the past three years and earns $70 per week. The Shinkonises are childless. They are buying their home. Mrs. Shinkonis owns an establishment for the sale of liquor which her husband manages. In January, 1944, petitioners instituted adoption proceedings in the probate court of Wayne county. Defendants consented to the adoption, but later repudiated their consent.
It also appears that Kenneth Johnstone is a sober, industrious, hardworking man, but has not the same amount of love and affection for Gerald that he has for his own children. He testified:
“I was not quite sure if I cared just as much for Gerald as I did for the rest of the children. I cared a great deal for him before we had children of onr own and then I thought there was a difference for a •while. Raising a child from a baby is much different than bringing a child into your home when it is two years old. It was very difficult for me at first. I was 32 years old, I believe, at the time I got married. I never had a child of my own. I never had very much to do with children. I tried very hard, and I think I succeeded. At the present time I have love and affection for this child. It is more than I had when we first took him into our home.
“Q. If there is a difference in your affection for your children, and this child, is it of such a nature that it would interfere with your duties towards this boy?
“A. No.
“Q. When did this love for this child that you now claim you have, first develop and manifest itself in your heart?
“A. About seven or eight months ago.
‘ ‘ That would be about May or April of 1944. Up to that time my feeling had been strong, but I did not know whether it was strong enough.”
In Liebert v. Derse, 309 Mich. 495, we said:
“In the absence of a showing that he is not a suitable person to have the custody of the child, plaintiff, as the surviving parent, is legally entitled to his custody under the probate code, Act No. 288, chap. 3, §-6, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-3 [6], Stat. Ann. 1943 Rev. §27.3178 [206]), which provides in part:
“ ‘The father or mother of the minor, and if 1 of them be deceased, then the survivor thereof, being respectively competent to transact their own business, and otherwise suitable, shall be entitled to the custody of the person of the minor and to the care of his education.’
“We recognize the long-established rule that the best interest of the child is of paramount impor tance, Martin v. Benzie Circuit Judge, 200 Mich. 549; In re Gould, 174 Mich. 663, and that it is onr judicial duty to safeguard his welfare and care, Bird v. Bird, 308 Mich. 230. However, we never have interpreted such rule so as to deprive a parent of the custody of his or her child, unless it was shown that the parent was an unsuitable person to have such custody. ’ ’
See, also, Riemersma v. Riemersma, 311 Mich. 452.
Kenneth Johnstone, as a legal parent of the adopted child, is entitled to all the rights of a parent under the probate code, Act No. 288, chap. 10, § 5, Pub. Acts 1939 (Comp. Laws Supp. 1940, §16289-10 [5], Stat. Ann. 1943 Rev. §27.3178 [545]).
In the case at bar it is clearly shown that Dorothy Campbell Johnstone, the natural mother, and Kenneth Johnstone, the adoptive father, are sober, industrious people. They have a good home and are able and willing to care for Gerald. Under the authority of the Liebert and Riemersma Cases, supra, and the probate code, the defendants are entitled to the care and custody of Gerald Johnstone. The former attitude of Kenneth Johnstone does not disturb such a finding of fact and law.
The judgment granting petitioners custody of Gerald Johnstone is reversed and the cause remanded for entry of judgment dismissing their petition. Defendants may recover costs.
Starr, C. J., and North, Butzel, Bushnell, Boyles, and Reid, JJ., concurred.. The late Justice Wiest took no part in the' decision of this case. | [
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Edward M. Sharpe, J.
The testator, Frank L. Burdick, died January 26, 1923. He left surviving him, his widow, one child, Lura L. Slemons, a resident of California, her son, James B. Slemons, and the children of a deceased daughter, namely Rafaela Dorrance and Frank L. Tennent. After making provisions in his will for the widow and various specific bequests and legacies, the testator set up a trust in paragraph nine of his will as follows:
“All the rest, residue and remainder of my estate, of every name and description, real and personal, I give, devise and bequeath to Wilson Roose, Byron S. Spofford, and Homer B. Jacobs, who are named executors herein, in trust for the following uses, intents and purposes: I hereby authorize, empower and direct that my said trustees shall sell, convert and invest all of my property, both real and personal, hereby conveyed to them in trust, into such interest-bearing securities as in their judgment they shall deem best: Provided, that such trustees may, if they deem it best, retain as a part of-such investment all corporate stocks held by me in the Branch County Savings Bank of -Coldwater, Michigan, and in the Citizens State Bank of Sturgis, Michigan, and in the Sturgis National Bank of Sturgis, Michigan, subject to right of election herein willed to my wife, and out of the income derived therefrom shall pay the necessary expenses attending such trust, subject to the provisions hereinafter made for the disposition of the principal and income, or any part thereof, of my estate. I further will and direct that if any of the bank stock of any of the above-named banks are sold, then all of said bank stock of the particular bank must be sold at the same time. My said trustees shall set aside, invest and keep invested in good securities, the sum of $65,000, the income of which said sum of $65,000, at the prevailing rate of interest, but in no event shall such rate of interest be less than five per cent., shall be paid semi-annually to my daughter, Lura L. Slemons, for and during the term of her natural life and in case said amount of $65,000 so set apart should become impaired, during the term of the natural life of my said daughter Lura L. Slemons, then and in that case my said trustees are expressly authorized and directed to restore the same from the residue of my estate in their hands.”
In clause ten the testator provided that after the death of Lura L. Slemons the $65,000 trust fund should go, $10,000 to Rafaela Dorrance or her children; $25,000 to James B. Slemons or his children; $30,000 to Frank L. Tennent or his children. He also provided that the residue of his estate was to be held by the trustees and various specific legacies paid to testator’s two grandsons upon their complying with specified conditions as to financial worth. Finally, one-half of the residue was to be paid to. each grandson upon similar conditions.
May 3, 1926, the will came before the circuit court of St. Joseph county for interpretation. Upon stipulation of all interested parties, it was ordered that the trustees under the will set aside the sum of $15,000 of the residue of the estate for the purpose of making good any impairment which might take place in the principal of the trust fund created for the benefit of Lura L. Slemons; and that the remainder of the residue be released from the trust and distributed in accordance with the terms of the will and the stipulation of the parties.
Subsequently the trust fund became impaired to the extent that $23,000 worth of bonds in the $65,000 fund are in default and all of the assets of the $15,000 impairment fund are in default with the exception of $2,000. The trustees have on hand $2,000 in cash from the redemption of bonds in the $65,000 fund.
During 1932 Mrs. Slemons failed to receive from the trustees the usual amount of interest and claims-there is due her $1,375. Of this amount $500 was later paid, reducing the amount to $875. The trial court held that Mrs. Slemons was entitled to receive the income from the $15,000 impairment fund as well as the income from the trust fund of $65,000 but nothing from corpus. From this order defendant Lura L. Slemons appeals. Appellant claims that the will created an annuity of $3,250 for her and that she is entitled to the sum of $875 to be taken from the $2,000 cash held by the trustees as part -of the corpus of the trust fund.
The question before us is whether it was the testator’s intention-to give Mrs. Slemons an annuity for a definite sum charged upon both income and principal of the trust fund, or whether he intended to give her the income only, whatever that might be, and preserve the principal for the remaindermen.
' “An annuity in the ordinary sense of the term is a right to the payment of a specified sum of money at stated, intervals, usually annually or at aliquot parts of a year.” 2 Page on Wills (2d Ed.), § 1035.
The distinction between a gift of an annuity and one of income is frequently important.
“One of the chief points of difference in effect between a gift of income and an annuity is, that a gift of income fails if the principal of the estate is not sufficient on investment to pay the income bequeathed ; while an annuity does not fail because the net income is insufficient to pay it in full, but is payable out of the principal, unless the principal is disposed of by the will in such a way that the gift thereof is on an equality with the annuity or has priority over it in case of abatement, or unless the will shows an intention to pay the annuity out-of the income alone.” 2 Page on Wills (2d Ed.), § 1036.
In Matter of Dewey, 153 N. Y. 63 (46 N. E. 1039), there was a bequest to the widow of “the interest upon the sum of $12,000 to be paid to her annually during the period of her natural life.” This was held to be a gift of the actual net income of the fund rather than an annuity of $720 which might be charged upon the corpus.
In Re VonKeller’s Estate, 28 Misc. Rep. 600 (59 N. Y. Supp. 1079), affirmed in 47 App. Div. 625 (62 N. Y. Supp. 1150), the testator directed his trustees to set aside a sum sufficient to yield an annual income of $250 and to pay said interest and income to the testator’s sister for life, at her death the principal to be added to the residuary estate. The sum of $5,000 was set aside. This amount was after-wards impaired to $3,500. It was held that the corpus could not be used to make up the $250 for the sister, as the gift was one of income and the gift over to residuary legatees showed an intent that the corpus be unimpaired.
In Re Velie’s Estate, 119 Misc. Rep. 15 (194 N. Y. Supp. 891), the testator directed his executors to set aside such portion of his estate “as is necessary to guarantee an annual dividend of $12,000 a year, to remain intact so long as my wife * * * shall live. The income created from this fund to be paid to my wife * * * at the discretion of the executors.” There was a gift over on the wife’s death. The income from the total estate amounted to less than $12,000 a year. It was held that the corpus of the estate could not be invaded to make up the $12,000, the gift being not an annuity but a direction to pay the net income and no intention shown to prefer the widow over the remaindermen.
The cardinal principle in the interpretation of wills is to arrive at and carry out the intention of the testator if it is lawful. Morrison v. Estate of Amasa Sessions, 70 Mich. 297 (14 Am. St. Rep. 500).
Although a will makes a plain gift of an annuity, the testator’s intention may be that it shall be payable from income only and not from corpus.
“If the will provides that a certain sum be paid annually or monthly to the widow and that at her death the residue be divided between, or paid over to, other persons, the intention would seem to be that the capital shall be drawn upon to make up the deficiency in the annuity. * * * But where the terms of the gift over show, that the testator intended the fund to be continued in its integrity during the life of the annuitant, and in that state to go over, the corpus cannot be resorted to to make up a deficiency in the annuity.” Einbecker v. Einbecker, 162 Ill. 267, 276, 277 (44 N. E. 426).
An examination of the will shows that the testator in providing for the trust fund does not name a specified amount that Mrs. Slemons is to receive yearly, and does not use the word “annuity;” that if the annual income ■ exceeds $3,250, the life tenant takes the excess; that paragraph ten of the will makes definite gifts to the remaindermen which added together entirely consume the $65,000, thus indicating that the testator contemplated the principal would be kept intact for the remaindermen.
We must therefore conclude that the gift to Mrs. Slemons was a gift of the income of $65,000 and not an annuity of $3,250, and that the proviso regarding five per cent, interest was a mere direction to the trustees.
Judgment affirmed. However, since plaintiff has filed no brief, no costs will be allowed.
Nelson Sharpe, C. J., and Potter, North, Pead, Wiest, Butzel, and Bushnell, JJ., concurred. | [
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Bird, C. J.
This bill was filed by plaintiffs in Wayne county to specifically enforce an agreement with reference to real property. After the hearing was concluded the trial court expressed himself, as follows:
“The present action is one brought by plaintiffs as purchasers to secure specific performance of an alleged land contract, wherein it is claimed defendants Folker and Block agreed to sell to plaintiffs a 120-acre farm in Canton township,'Wayne county, Michigan. The contract sued upon was not executed by the defendants, personally, but by the defendant Archa Woodworth, purporting to act as the agent of the remaining defendants, and is as follows:
“ ‘Received of Clarence Theisen and Julia Theisen, his wife, fifty ($50) dollars as part of purchase price of a certain farm located in Canton township, Wayne county, Michigan, 80 rods west of Canton Center rd. and 160 rd. south of Ford rd. known as the John Nash farm, being about 120 acres, more or less.
“ ‘It is further agreed that the whole of the purchase price shall be $30,000, thirty thousand dollars, payable as follows: $14,950, fourteen thousand nine hundred and fifty dollars, when abstract is brought to date and a reasonable time to examine 'the abstract, not to exceed five days, and the balance at $750 every six months including interest. Arnold F. Folker and Frank Block agree to give possession of the said above farm upon the down payment of $14,950 and a good warranty deed free and clear upon the final payment.
“ ‘Archa Woodworth, Agent for Arnold F. Folker and Frank Block, with authority to act, in writing.
“ ‘We accept the above contract to buy the above property.
“ ‘Clarence Theisen,
“ ‘Julia Theisen.’
“The authority relied upon by the plaintiffs as justifying the action of the defendant Woodworth signing the said contract on behalf of the defendants Folker and Block, comprises a listing agreement, given by defendants Folker and Block to Woodworth. The material terms of the listing agreement as bearing upon the agent’s authority, are the following:
“ ‘We hereby agree with Archa Woodworth if he procure a purchaser for our property as described on reverse side hereof, at price and terms which we will accept, we will pay a commission of five per cent, on selling price. This listing to be fifteen days from date.’
“Mr. Woodworth testified that the listing was given him on February 9th and that on the same day or the day after, pursuant to such authority, he closed with plaintiffs the sale; that on the 11th day of February he wrote Mr. Folker a letter identified at the hearing, the body of which reads as follows:
“ T wish to advise you that I have sold the 120-acre farm located in Canton township, Wayne county, Michigan, listed to me by yourself and Frank Block. Terms to be as per your agreement, price to be $30,000 with a down payment of $15,000 when abstract is brought to date, and balance of $750 semi annually. I am inclosing a certified check for $50 to bind that bargain.’
“The agreement in suit was not inclosed in the said letter, nor any advice conveyed to defendants Block and Folker as to the identity of the purchasers, nor was the fact stated that any contract had been executed nor the terms of such contract, except the price and installments mentioned in said letter. The check was a personal check of Woodworth.
“In reply to this letter, Messrs. Folker and Block sent Mr. Woodworth, as identified on the hearing, reading as follows:
“ ‘We herewith return to you your check for $50 inclosed in your letter of..........thinking it advisable not to accept any deposit until Mrs. Nash has obtained one or two quitclaims necessary to enable her to execute her contract with us. We have prepared such quitclaims and forwarded them to Mrs. Nash and anticipate she will have them executed and returned to us in the matter of a few days. Upon receipt of these quitclaims we will record them and have an abstract brought to date. You can then have your purchaser call at Mr. Polker’s office for the purpose of making his deposit and signing a formal agreement with us.’
“Besides claiming that Mr. Woodworth was sufficiently authorized to execute the contract by virtue of the authority contained in the listing agreement, plaintiffs also claim that Mr. Woodworth’s action was sufficiently ratified by Messrs. Folker and Block in their said letter.
“The listing agreement above set forth authorizing Mr. Woodworth to procure a purchaser does not authorize him to execute and consummate a sale of the land in his principals’ behalf. The language does not purport to give authority to Mr. Woodworth to complete the sale but only contains a promise of the defendants Folker and Block to pay a commission to Mr. Woodworth in case he find a purchaser. He has no authority to make a contract of sale. Defendant Woodworth having no authority To sell’ therefore could not make an agreement binding upon defendants Folker and Block. Landskroener v. Henning, 221 Mich. 558; Jefferson v. Kern, 219 Mich. 294.
“This is not a matter to determine whether Wood-worth would be entitled to commission or not but is to determine whether defendants Folker and Block are bound by the contract of sale made by Woodworth to plaintiffs.
“The letter from Folker and Block to defendant Woodworth, under date of February 13, 1925, does not refer to, mention or identify thé listing agreement between Folker and Block and Woodworth, nor to the contract made between the plaintiffs and defendant Woodworth. Inasmuch as the listing agreement does not give Woodworth authority to sell the said land, the said letter from defendant Woodworth to the other defendants does not and cannot ratify the alleged sale. Hewett Grain & Provision Co. v. Spear, 222 Mich. 608.
“The relief sought by the plaintiffs herein will therefore be denied and the bill dismissed.
“Ray Hart,
“Circuit Judge, Presiding.”
This opinion being in accord with the views of the court, it will be made the opinion of the case. For a valuable note on the main question, see 17 L. R. A. (N. S.) 210.
The decree is affirmed.
Sharpe, Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Potter, J.
This case is here on objections to the confirmation of a mortgage sale and confirmation of the report made by the circuit court commissioner. February 6, 1923, Rindge Building*, a Michigan corporation, later called Howe, Snow & Bertles Realty Company, a corporation, and now known as Commercial Realty Corporation, made and executed to the Michigan Trust Company, as trustee, a mortgage deed of trust on property known as the Grand Rapids Garages, Inc., south unit, to secure the payment of $300,000 in par amount of its gold bonds of which $225,000 were sold and delivered. In 1927 the properties of the Howe, Snow & Bertles Realty Company were divided and Henry T. Heald became the owner of the garage property in question. He executed a declaration of trust, reciting he held the property in trust for the benefit of persons who had held and surrendered junior incumbrances; $50,000 in par amount of the bonds, issued and sold were paid and retired, leaving* $175,000 in par amount outstanding. Default occurred in the terms of the mortgage securing the bond issue. August 11, 1932, a bill was filed by the Michigan Trust Company to foreclose the trust mortgage, stating that the amount due thereon consisted of the principal sum of $175,000, accumulated interest, $16,246.77, and unpaid taxes of $13,661.67, a total of $204,908.44. April 19, 1933, a decree of foreclosure was entered and Henry T. Heald, then the owner of the property, was held personally liable. A bondholders’ committee was formed to bid in the property; $162,700 in par amount of the outstanding bonds were deposited with the bondholders’ committee; $11,200 in par amount of the bonds were not deposited but are owned by appellants. Attempts to reorganize failed. December 2, 1933, the property was offered for sale and was sold for $60,000 subject to taxes which had accrued, amounting then to $22,000, a total of $82,000. Defendant Henry T. Heald filed objections to the confirmation of the sale. A hearing was had from which it appeared that the property was assessed for $175,000. Various persons testified to its value, ranging from $220,000 to $275,000, and the testimony showed that the total investment in the property was approximately $400,000. Plaintiff’s testimony fixed a valuation at from $140,000 to $150,000. The court fixed an upset price at $120,000, that is, at $98,000 plus the accrued taxes. Objections to the confirmation of sale were filed and the court first held that the sale at $60,000 plus the taxes would not be confirmed. A rehearing was granted and the trustee, on behalf of the bondholders ’ committee, filed a release of Heald and the Commercial Realty Company from liability for deficiency and confirmed the sale. The non-depositing bondholders refused to acquiesce in this waiver of deficiency so far as they are concerned, but, notwithstanding their objections, the sale was confirmed. Defendant Heald by reason of being’ in a fiduciary relation to dissenting bondholders and others, refused to assent, but objected to the confirmation. Plaintiff and appellee offered on the trial of the case to permit the non-depositing bondholders to be treated the same as the depositing bondholders, and still in this court in their brief offer to do so. The commissioner reported the proceedings after confirmation of sale, but reported no deficiency by reason of the waiver filed by plaintiff. The $60,000 bid consisted of $6,719.42 in cash and the balance in bonds; $4,028.85 was reported from the sale as having been allocated from the sale to bondholders who were not represented by the bondholders’ committee in par amount of $12,000. January 25, 1934, an order confirming the report of the commissioner of proceedings after sale was entered to which exceptions were filed by defendants and appellants and overruled by the trial court. Appellants, non-depositing bondholders, appealed from the orders of the trial court confirming the sale and confirming the report of the commissioner of the proceedings after sale, contending that the trustee under the trust mortgage had no power or authority to waive a deficiency decree against defendants ; that the circuit court in chancery had no power or authority to waive such deficiency; that the non-depositing bondholders have the same right to equitable protection by the court against the confirmation of a noncompetitive sale at an inadequate price as the mortgagor. Appellant Heald who stands in the position of a mortgagor, says that neither the bondholders’ committee nor the trustee had power or authority to execute the release by the trustee of defendants’ liability for deficiency, that by such action the bonds secured by the mortgage are not canceled and that he still remains personally liable upon the bonds, and consequently the waiver of deficiency is no protection to him and those whom he represents. The appellee contends there was no abuse of discretion upon the part of the trial court; that the price at which the property was sold was fair and equitable under all the circumstances; alleges the mortgage itself authorized and empowered the trustee to release the defendant from liability for a deficiency decree; that the non-depositing bondholders are not injured because they still have a right to resort to the personal obligation of the mortgagor, and defendant Heald cannot complain because he is released from liability upon 93 per cent, of the outstanding bonds and remains liable only for deficiency on seven per cent, of the bonds instead of on 100 per cent. There is no serious dispute about the law.
The bondholders had a right, upon a sale pursuant to the foreclosure decree, to a decree for deficiency. Such right could be waived by the bondholders. The right to a deficiency decree was waived by approximately 93 per cent, of the bondholders. It was not waived by the non-assenting bondholders of approximately seven per cent, of the outstanding bonds. Upon the filing of the waiver of decree for deficiency by 93 per cent, of the outstanding bondholders, no deficiency decree at all was awarded and the sale of the premises and property for $60,000 was confirmed. Whether the trial court would have confirmed the sale if the non-assenting bonclholders had been awarded a deficiency decree is not clear. We see no reason to set aside the sale, but the decree of the trial court must be modified to the extent of awarding the non-assenting bondholders decree for deficiency. With this modification the decree of the trial court is affirmed, with costs to appellants.
Nelson Sharpe, C. J., and North, Fead, Wiest, Butzel, and Edward M. Sharpe, JJ., concurred. Bushnell, J., did not sit. | [
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Sharpe, J.
On May 23, 1922, the directors of the Western Oil & Gas Distributing Agency, a domestic corporation, filed a petition in the circuit court for the county of Genesee, in chancery, praying for the dissolution of the corporation pursuant to section 13563 et seq., 3 Comp. Laws 1915. On the same day the president and secretary of the corporation filed a petition for the appointment of a receiver. An order was made at that time appointing Clifford N. Spauld-ing temporary receiver. He filed a bond, and entered upon the performance of his duties. An order was made fixing July 29, 1922, for the hearing of the petition for dissolution and for notice to creditors and stockholders, as provided for in the statute. The hearing was adjourned to October 16, 1922, on which day a number of the creditors, including the Dayton Rubber Manufacturing Company, a foreign corporation, the appellant herein, filed a petition setting forth that under the management of the receiver the corporation was “making some money,” and that it was “believed that said receiver will be able, if given sufficient time, to reduce the indebtedness of said corporation materially,” and praying that the hearing on the petition for dissolution “be continued indefinitely or until the further order of the court, * * * in order that the receiver may have the benefit of the summer trade in 1923.” An order was thereupon made continuing said hearing for one year, or until the further order of the court. On July 14, 1924, an order was again made continuing said hearing and the appointment of the temporary receiver until the further order of the court.
On November 25, 1924, the Dayton company, claiming the right of intervention, fil£d in said cause what is spoken of as a judgment creditor’s bill, in which it was averred that this company had secured a judgment against the oil and gas company and that the writ of execution issued-thereunder had been returned unsatisfied. After alleging certain unauthorized acts on the part of the temporary receiver, it prayed that he be required to turn over the assets of the corporation to a receiver to be appointed by the court, in order to secure to the Dayton company satisfaction of its judgment. On the same day it filed a!' petition for leave to intervene in the proceedings for dissolution already taken.
On December 10, 1924, the temporary receiver filed a petition, praying for his discharge. On that day the court made an order for the hearing of said petition on December 20th, and it and the hearing on the petition for dissolution and that for intervention came on for hearing on December 24th. Proofs were taken. On December 30th, the court, finding the oil and gas company to be insolvent, ordered its dissolution and appointed a permanent receiver to wind up its affairs, and, later, on motion of the receiver, dismissed the bill of complaint in the nature of a judgment creditor’s bill of the Dayton company. From this order of dismissal the Dayton company appeals.
Plaintiff had the right to intervene. 3 Comp. Laws 1915, § 12362; In re Abbott, 187 Mich. 229. By so doing, it submitted its claim to the'jurisdiction of the court. Its intervention is declared by the statute to be “in subordination to, and in recognition of, the propriety of the main proceeding.” Sidebottom v. Calhoun Circuit Judge, 202 Mich. 116; Nott v. Gundick, 212 Mich. 223; Chase v. Washtenaw Circuit Judge, 214 Mich. 288.
Counsel for the Dayton company insist that the Abbott Case is authority for its right to file the judgment creditor’s bill. We do not so read that decision. It expressly calls attention to the “anomalous situation” which would be created by permitting such a. bill to be filed and a receiver appointed thereunder when there was already one acting under appointment of the court.
It is insisted that the order appointing the permanent receiver is invalid because the court lost jurisdiction by its failure to decree dissolution and appoint a permanent receiver on the return day of the order to show cause. Attention is called to the language of section 13566, which provides that upon the hearing of such order—
“if it shall appear to the court that such corporation is insolvent or that for any reason a dissolution thereof will be beneficial to the stockholders and not injurious to the public interest, a decree shall be entered dissolving such corporation and appointing one or more receivers of its estate and effects.”
It would perhaps be sufficient to say that the Dayton company, by joining in the petition to the court to delay the hearing of the order of dissolution and continue the temporary receiver, and by its petition for intervention, is in no position to raise the question. But counsel urge that jurisdiction may not be conferred by consent. J. F. Hartz Co. v. Lukaszcewski, 200 Mich. 231. The holding in that case applied to proceedings on appeal, the right to which is a. privilege permitted by the statute, and as to which the statutory requirements must be strictly complied with.
The court in this case acquired jurisdiction over the property of the oil and gas company when the petition for dissolution was filed. It is true that if the petition and the proof which may be submitted in its support warrant an order of dissolution, one must be made. But this statute in no way assumes to interfere with the inherent power of the trial court to continue the hearing if he be satisfied that it is in the interest of the stockholders and creditors to do so, or if he require more time in which to determine what action he shall take.
We are of the opinion that the court had jurisdiction to make the order appointing a permanent receiver. After it was made, the Dayton company was not entitled to any preference over the other creditors of the oil and gas company. Jacobs v. E. Bement’s Sons, 161 Mich. 415. Intervention would give it the right to follow the proceedings taken by the permanent receiver. But it had no rights which could be enforced under its judgment creditor’s bill, and it was properly dismissed.
The order appealed from is affirmed, with costs to appellees.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Steere, J.
Albert E. Alldis was a real estate broker in the city of Detroit, doing business under the assumed name of Alldis & Co., with whom the owners had listed for sale lots 13 and 14 in the Cass Farm subdivision on Ledyard street in the city of Detroit. On April 13,1920, plaintiff tentatively bought those lots from or through him, agreeing to pay therefor $140,000, $20,000 within 30 days, $5,000 in 6 months, $5,000 in a year and the balance in two years with interest at 6 per cent, per annum on deferred payments. Plaintiff made a deposit of $1,000 and received from defendant an agreement receipt in the nature of an option providing that the deal should be closed within 30 days after abstracts showing a good title had been furnished and stating the terms of'the purchase. This was signed by defendant “as agents,” and by plaintiff. The $1,000 then paid was to be applied as part of the first cash payment if the deal was consummated, otherwise to be forfeited or returned according to whichever party defaulted in performance. The names of the owners were not stated in that instrument but it specified, amongst other things, that “This sale is made by us as agents for the owners and subject to the owners' approval.” Time was “made the essence of this agreement.”
Lot 13, known as 31 Ledyard street, was owned by Rose Von Dolcke, and lot 14, known as 37 Ledyard street, was owned by William F. Voigt and his wife, Carrie Voigt.
Within a few days after the first memorandum was signed defendant delivered to plaintiff separate memorandums of agreement for the sale of each lot of similar import as the first, also dated April 13, 1920, and signed “Alldis & Company, agents, by John Hudson, salesman A. E. Smith,” to which the respective owners had subscribed “We agree to all the conditions herein contained.”
They provided that all payments Should “be made at the office of Alldis & Company until this agreement is fulfilled” and, as before, time was made of the essence of the agreement. The owners were to pay three per cent, commission on the selling price.
By these agreements the total purchase price of $140,000 was divided between the two lots as follows: the price of lot 13 was to be $71,000, with $10,000 to be paid within 30 days after abstract was furnished, $2,500 within six months, $2,500 within a year and' the balance within two years. The price for lot 14-was $69,000, to be paid $10,000 within 30 days after' abstracts were furnished, $2,500 within six months, $2,500 within a year and the balance within two years. The unpaid balances on each were to draw interest at six per cent, per annum.
Abstracts of title to the property brought down to date were soon thereafter furnished plaintiff and found by him satisfactory. He states of -their first interview thereafter when he went down to defendant’s office that—
“It was a few days after expiration of the 30 days from the first agreement, after the abstract was brought down to date, I was supposed to close the deal within 30 days before I came up there, and I told them that I ain’t in no position to settle the case because the funds which I had I could not collect it, and it is the worse for me to lose the $1,000 or to have extension of time.”
Admitting his inability to pay the $19,000 more at the expiration of the 30 days he negotiated with defendant for an extension of time, resulting in the latter agreeing to see the owners and if possible obtain an extension, on plaintiff putting up a further deposit of $2,000. On July 22d he deposited with defend ant a check for that amount and signed the following paper which was drawn up by defendant and signed as shown:
“Detroit, Mich., July 22, 1920.
“To Alldis & Company,
“Detroit, Michigan.
“Gentlemen: Herewith attached our check for $2,000 as a further deposit on the purchase of 31-37 Ledyard St., Detroit, Michigan; this deposit of $2,000 is deposited by us as a further good faith that we desire to go through with the above mentioned deal, providing present vendors or owners will accept a $30,000 land contract in addition to the $20,000 cash payment as per original agreement between vendors and I. Burstein.
“It is also understood that in the event that this ■contract will not be accepted by the vendors, this deposit of $2,000 will be returned to Mr. Burstein. Mr. Burstein also to have the right to be through with deal as originally intended. Deal to be closed on or before 30 days from date.
“Alldis & Company,
“By Jno. Hudson, “I. Burstein.
“By A. E. Smith.”
On the back of the $2,000 check appears,
“Pay Dime Savings Bank, Detroit, Michigan, or order.
“Alldis & Co.
“Paid through Detroit Clearing House, July 26,1920.
“Dime Savings Bank.”
Whether or not the owners consented to the proposal of July 22d does not plainly appear, but agreeable to negotiations with Alldis a new proposal was made by plaintiff. He testified that the same check as- delivered to Alldis was used and of the circumstances of its making said:
“When I was out there one night, new terms, to go in, for extension of time, Mr. Alldis went over to the stenographer and dictated this agreement, came back from the stenographer to me and read over this statement. I says ‘Now in case they do not accept, they don’t give me additional time, what becomes of the $2,000?’ He says, ‘Well, we will give it back to you.’ I said ‘So that will not be misunderstood, will you be kind enough to put it on?’ And Mr. Alldis wrote it out.”
The body of the proposal is typewritten except the last sentence, which is written with pen and ink. It was written in duplicate, each keeping a copy, and is as follows:
“August 13, 1920.
“To Alldis & Company,
“Detroit, Michigan.
“Gentlemen: Herewith attached our checks for $2,000, as a further deposit on the purchase of property known as 31-37 Ledyard St., Detroit, Michigan: This deposit of $2,000 is deposited by us as a further good faith that we desire to go through with above sale, and to pay the balance of the total of first payment on or before October 1, 1920, or forfeit any rights or any interest we might have in above mentioned property.
“If the parties do not accept this agreement for additional time to close above property, $2,000 is to be returned to I. Burstein.
“Signed and delivered in “I. Burstein. the presence of
“Jno. Hudson,
“A. E. Smith.”
The next written evidence in sequence of events is as follows:
“To Alldis & Co., August 14,1920.
“Detroit, Mich.
“In consideration of a further deposit of two hundred and fifty dollars ($250.00) to me, in hand paid, receipt of which is hereby acknowledged, I hereby agree to extend the time of closing deal for the sale of my property known as No. 31 Ledyard Av., Detroit, Mich., up to and including October 1, 1920.
“Jno. Hudson, . “Mrs. Rose von Dolcke.
“A. E. Smith.”
“To Alldis '& Co., August 14,1920.
“Detroit, Mich.
“In consideration of a further deposit of Two Hundred and Fifty Dollars ($250.00) to us in hand paid, receipt of which is hereby acknowledged, we hereby agree to extend the time of closing deal for the sale of our property known as No. 37 Ledyard Ave., Detroit, Michigan, up to and including October 1 1920.
“Jno. Hudson, “Wm. F. Voigt,
“A. E. Smith. “Per Carrie E. Voigt,
“Carrie Voigt.”
On that date Alldis & Co. gave the respective owners checks for $250 which were paid through the Detroit clearing house on August 17, 1920.
The next written evidence relating to this transaction consists of notices dated September 28, 1920, signed by the owners individually and directed to plaintiff reminding him that his optional contract for purchase of the described property would expire on October 1, 1920, at 12 p. m., and giving notice that “unless the deal is completed before that time the money given by you for the option will be forfeited and the option invalid.” On the same date Alldis & Co. wrote plaintiff a letter of like import stating the owners had advised them no further extension of time would be granted beyond October 1, 1920, and if the sale was not consummated within that time his contract would become void and deposits he had made forfeited.
Whatever reply plaintiff made to those communications was oral and to defendant. He never paid or tendered to either owners or agent the balance of the $20,000 payment, time for which had been extended to October 1, 1920. On April 7, 1921, he commenced this action in assumpsit to recover from defendant the $3,000 deposits he had made as shown. His declaration contains the common counts and a special count relating to the transaction involved, alleging that his offers and the agreement of July 22, 1920, which he submitted to defendant were never accepted by the owners, or if accepted the acceptance was never delivered or communicated to him; that they are therefore null and void under the provisions of section 11977, 3 Comp. Laws 1915, and the money deposits he made with defendant were without consideration.
Upon the trial plaintiff’s counsel conceded that the “case must turn upon the proposition which was made August 13, 1920,” and asked a directed verdict in plaintiff’s behalf for the $2,000 deposited under it with interest, while defendant’s counsel requested a verdict of no cause of action under the written evidence and plaintiff’s conceded failure to pay or tender the amount required to maintain his rights under the terms of his conditional purchase.
The court held the proposed agreement of August 13, 1920, for extension of time was legally accepted in writing by the owners, but under the conflicting testimony submitted to the jury the question of whether defendant timely gave plaintiff proper notice that said offer had been accepted by the owners. The jury decided that issue of fact adverse to plaintiff’s contention and rendered a verdict for defendant. A motion by plaintiff’s counsel for judgment non obstante and for a new trial were denied, and judgment on verdict thereafter rendered.
Upon the issue of fact submitted to the jury we are not impressed that the verdict was against the great 'weight of the evidence, as contended. Plaintiff testified that on numerous occasions between August 13, 1920, and September 29, 1920, he inquired of defendant and his salesmen whether his offer of August 13, 1920, had been accepted by the owners, and that on each occasion to as late as September 25, 1920, he was informed by them that it had not been accepted formally, but intimated that it would be. This testimony was positively denied and the contrary asserted by the defense. Defendant Alldis testified that he early informed plaintiff that the owners had accepted the proposed extension of time and repeatedly urged him to be ready for performance on or before the time limit, saying in part:
“Three or four days after (receiving the owners’ acceptance) I told Mr. Burstein I had the papers and the proposition was accepted and extended to October 1st, and everything was O. K. they gave that option, that he could go ahead with his proposition, we were all waiting on him. We told him that we had it accepted in writing * * * and when he was ready to go ahead and finish up his end of the transaction. He did not ask me to see these papers, just thanked me. They were kept together in the file, together with his offer. I had six or seven conversations with him to close the deal.”
Defendant’s salesman Hudson testified in part:
“I saw Mr. Burstein the third or fourth day after August 13, 1920, he then came into the office and wanted to know if we had our acceptance, and I told him we did, that is, acceptance on the extension. I told him definitely the extension had been granted. We had the extension at the time I told him that. I think they signed on the 14th. * * * Afterwards, I had a conversation with him; he spoke about his loan to put up the building. All the. conversation after that date regarding this deal was as to the date of closing — we had several with him, but it was all that way. We were always asking him when he was going to close. Mr. Burstein never came down to our office after that date to close the deal.”
Plaintiff contended that defendant promised him the owners’ acceptance in writing, which was denied, and it is not shown that any notice of acceptance by the owners, oral or written, was ever given him before September 28, 1920.
Though, couched as a reminder and warning, the written notice of September' 28th, direct from the owners to plaintiff, made plain he yet had until midnight of October 1, 1920, in which to perform on his part and close the deal. But conceding that it came too late for a.valid notice of acceptance, as he contended and the trial court seems to have recognized, on the issue of due and timely notice of acceptance as submitted to the jury defendant’s contention was sustained. Except their final notice to plaintiff, he had no direct communication with the owners. His negotiations and dealings were entirely with and through defendant as their authorized agent.
When plaintiff found himself unable within the prescribed time to meet the conditions of his option contract and they had tentatively agreed upon terms for extension of time defendant obtained the owners’ acceptance in writing the following day. So authorized he promptly notified plaintiff he had secured it and that the time of payment was extended, as the jury found. The writings between the parties construed together show that the original optional contract of April 13th was only changed by a further deposit made in consideration of further extension of time for payment. It was competent for the so authorized agent to extend the time of payment by parol as his principals might have done.
In Loveridge v. Shurtz, 111 Mich. 618, this court held (quoting from syllabus) :
“It is competent for the parties to a contract for a conveyance of land requiring the deed to be executed on a specified day to extend the time by parol.”
Vide, also, Frazer v. Hovey, 195 Mich. 160.
“It is véry generally held that the time of the performance of a contract for the sale of land may be extended by parol. Thus the parties may by parol agreement extend the time of payment, or the time for executing the conveyance.” 39 Cyc. p. 1351.
It is further urged that under the ruling in Hollings-head v. Morris, 172 Mich. 126 (41 L. R. A. [N. S.] 310), the written acceptances by the owners of August 14th addressed to their agent were not valid acceptances as to plaintiff. In that case there was an offer by the owner but no money paid or tendered nor acceptance of the offer delivered to him until he had sold the property to another. We think the case is distinguishable in material facts and not controlling here.
Plaintiff’s counsel imputes a sinister motive to defendant’s not turning over to the owners the entire deposit of $2,000 when they accepted the proposed extension of time to October 1st, which it is claimed constituted “a breach of trust on his part to the plaintiff.” That impresses us as a matter between the owners and their agent, as plaintiff was given the extension of time he made the “further deposit” for.
The writings all relate to the same conditional purchase and are to be construed together. By them all payments were “to be made to the office of Alldis & Company until this agreement is fulfilled.” The $2,000 deposit was of the same nature as the first except as to the extension of time for fulfilment in consideration, for which it was made, and to be credited upon the provided payment of $20,000, if the balance was paid -within the extended time limit. The $3,000 deposited, or slightly over 2% of the $140,000 purchase price, tied up this property from April 13th to October 1, 1920. Had the sale gone through, defendant’s 3% commission from the owners would have been $4,200. When the optional contract expired and the $3,000 deposits were forfeited he had turned over to the owners $1,500 of it and yet had in his’ possession the other half. He was accountable to them for it and its disposition was a matter between him and them. Plaintiff was dealing at arm’s length with the owners and their agent. There were no trust relations between them, or their agent, and plaintiff.
The judgment is affirmed.
Bird, C. J., and Sharpe, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
Justice Moore took no part in this decision. | [
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Per Curiam.
A motion for rehearing has been filed in this case. We have carefully considered it and are not persuaded that any of the questions decided in the former opinion (233 Mich. 157) should be again considered. There is a question not decided in the former opinion which, however, demands consideration. The trial judge failed to instruct the jury that they should find the present worth of plaintiff’s future earnings and future pain and suffering. The attention of the court was called to this failure in the motion for a new trial, together with other matters. We held that defendant had not saved to itself the benefit of that motion and we so hold now. But upon a re-examination of the record, we are satisfied that this particular question was saved by the 34th assignment of error. This error, however, only goes to the amount of the judgment and where we are satisfied to a moral certainty that the ends of justice will be served by requiring a remittitur of a stated amount, such course will be taken. Gallagher v. Monroe, 222 Mich. 202; Sweeney v. Moreland Bros. Co., 227 Mich. 203; Gwitt v. Foss, 230 Mich. 8; Nagi v. Railway, 231 Mich. 452; Gleason v. Lowe, 232 Mich. 300. We are satisfied in the instant case. If plaintiff will remit the sum of $750 from the judgment within 30 days a rehearing will be denied, without costs of the motion. If not, a rehearing will be granted, with costs of the motion. | [
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Wiest, J.
This is an action of ejectment, involving the north boundary line of lot 25 of the plat of A. W. Hand’s survey of the village of Port Sanilac. Plaintiff owns lot 25 and claims the north line thereof has been fixed by adverse possession for 50 years and includes the strip of land in suit. Defendant owns lot 26, which lies next to lot 25, denies the possession asserted by plaintiff and insists that under his deed from the State, of title derived by the State in tax proceedings, the lot lines as platted control and any other line, even though established by adverse possession, cannot be invoked. Defendant took possession of the strip of land here involved and this suit was commenced to eject him therefrom. The circuit judge made findings and stated conclusions of law, to which amendments were proposed by defendant and exceptions filed. Judgment for plaintiff is here reviewed by writ of error.
The evidence supports the facts as found by the circuit judge. We omit review of the evidence and merely state it was along the usual lines of old landmarks, ancient fences, buildings, improvements, hedgerows, and recollections of long time residents. On the line claimed by plaintiff there stood for nearly 50 years a row of planted poplar trees. If defendant’s version is accepted, then someone in the early 70’s set out this row of poplar trees the length of lot 26 at about its center. Lot 26 was laid out 4 rods wide' and no reason can be conceived for splitting it in the middle by such row of trees. On the other hand, it is significant that this row of trees followed the line of lots to the west thereof.
We think the evidence clearly established that the poplar trees were set upon the claimed boundary line between lots 25 and 26 about 50 years ago, and the owners of lot 25 thereafter occupied to such line of trees under claim of right as a part of lot 25, and by prescription acquired title to such line irrespective of whether that was the true line laid down in the Hand’s survey.
The location of the present boundary line between lots 25 and 26 had become fixed by prescription at the time lot 26 was deeded by the auditor general to the commissioner of the State land office in 1907. Title by adverse possession ripened before title to lot 26 vested in the State and neither the State or its grantee may now disturb such established line. If the strip in suit was once a part of lot 26 and is now a part of lot 25 by virtue of prescription it is included in the call for lot 25. Lot 25, inclusive of the strip in suit, is only its platted width. The trouble here manifest originated in laying out more 4-rod lots than the land platted would accommodate. Somewhere there had to come a pinch. The owners of lots 23, 24 and 25, lying between lot 26 and the south end of the plat, had for about 50 years held, occupied and enjoyed full plat size lots and paid the taxes thereon. The strip of land in suit, until defendant purchased lot 26 in 1923, was claimed to be, and openly formed a part of lot 25. If defendant desired the State to defend the action under its deed to him he should have requested the State to intervene.
The errors alleged have been considered, and, no ground for reversal appearing, the judgment is affirmed, with costs to plaintiffs.
Bird, C. J., and Sharpe, Snow, Steere, Fellows, Clark, and McDonald, JJ., concurred. | [
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Steere, J.
In December, 1924, defendant was tried, convicted and sentenced for life to the Detroit house of correction, under an information filed in the recorder’s court of Detroit charging her with having, in the city of Detroit, Wayne county, killed and murdered one John Udurovich, on or about September 20, 1921. On the trial defendant took the stand as a witness in her own behalf, and testified to the circumstances of her disposing of Udurovich on or about the time charged, her defense on the facts being that she acted in self-defense and the killing was justified.
The legal defense and ground for reversal urged in her behalf is failure by the prosecution to make competent initial proof of the corpus delicti, that contention being interrogatively propounded in her counsel’s brief as follows:
“Was the corpus delicti proven when the confessions of the defendant were admitted over objection, and if not proven, was error committed?”
In the order of proof the prosecution first called as a witness William Sigsby, a foreman for the Detroit Seamless Steel Tube Company, who in 1921 owned a house and lot known as 17687 Dryer street, located on a scantily developed subdivision in the northerly outskirts of Detroit, and the only house on that side of the street in the block. He identified defendant as the woman who, with her claimed husband, leased that place from him in September, 1921, under the name of Mr. and Mrs. John Udurovich. They rented it for an indefinite period and paid two weeks’ rent. While they occupied the place he had some plumbing done in the house, and was there to look after it. He then again met his tenants. He had conversed with Udurovich when he met him and was able to describe his appearance. He also identified a photograph of him. He knew they occupied the house for a week or more between September 10th and 25th, but they gave him no notice of quitting, and he first learned they were gone when some one in that neighborhood, who wanted to rent the cottage, called him up and told him they had seen the furniture removed and the place appeared to be vacant. A Polish woman who knew defendant testified that the latter lived there with Udurovich for a week or more during September, 1921. There is no evidence any one saw them leave the place' or Udurovich alive after that time. A woman of his nationality who knew him told of meeting him at various times before, but not since then.
The prosecution next called Dr. A. L. French, chief medical examiner of Wayne county, who qualified as an expert with years of experience in autopsies and post mortem examinations. He identified the bones of a human skeleton as having received them for examination from Lieutenant Collins, a detective of the Detroit police force. From his study of those bones, he testified to, and demonstrated with them, four punctures through the skull, caused, in his opinion, by two bullets, the marks of entrance and exit showing they were fired from the front, one entering below the right eye and the other at the left side of the chin. He was unable, from the condition of those wounds in the skull, to find any indication whether the subject was alive or dead when the punctures were made. He also found and pointed out a round, penetrating puncture or bullet hole through the right fifth adult rib, showing by the burr on the outside, or front, of the rib that it came from the rear, and showed a stain of blood infusion in the fiber of the rib, indicating, as he testified, that the subject was alive when that puncture was made, since no extravasation of blood causing such stain would take place after death. He also testified that a bullet fired into the back of a human being and taking the course indicated by the mark on the rib would pass through the right lobe of the liver, causing a hemorrhage which would result in death. Of the decomposition of a dead body, he testified it would be more rapid when buried near the surface of the ground, and faster in sand than clay.
This .skeleton was found by Lieutenant Detective Collins and Sergeant Detective Wencel of the Detroit police, on September 8, 1924, buried near the surface in damp, sandy ground under the front porch of the house on Dwyer street in Which defendant lived with Udurovich during a portion of September, 1921. The skeleton, a bullet, and some buttons were all they found remaining in condition to identify. It appeared they were led to make this search by information obtained from defendant.
Counsel for defendant urge prejudicial error on admission of testimony at that stage of the evidence as to what guiding information she gave the officers when the search was undertaken, on the ground that it was in its nature an extrajudicial confession of the defendant, by which alone the corpus delicti cannot be established, and without which it had not been shown. In support of this, counsel invoke the general rule that proof of the corpus delicti, or death of a human being and its cause, must be completed before any proof of confession, malice, etc., can be made, citing People v. Hall, 48 Mich. 482 (42 Am. Rep. 477), and other cases tending to sustain that rule.
Corpus delicti is defined as
“The body, substance or foundation of an offense. The substantial and fundamental fact of its having been committed.” Burrill’s Law Dictionary.
“The body of a crime. * * * In a derivative sense, the substance or foundation of a crime; the substantial fact that a crime has been committed.” Black’s Law Dictionary (2d Ed.).
“In cases of felonious homicide, the corpus delicti consists of two fundamental and necessary facts: First, the death; and secondly, the existence of criminal agency as its cause.” Bouvier’s Law Dictionary.
Here, irrespective of how or why the search was made, we have direct proof of the fact of death by the finding of a buried skeleton of a human being, with proof of where it was found, the condition in which it was found, and expert testimony of its condition showing a mortal wound inflicted before death, indicating a criminal agency as the cause of death. Those found facts testified to by eyewitnesses are original, substantive evidence of a corpus delicti in no sense contingent on extrajudicial confession or any other hearsay evidence. Her confession, or story told to the prosecuting attorney after her arrest and verified by the stenographer who took it down and transcribed it, was admitted in evidence after such proof of finding the remains.
Conceding the bones found furnished in themselves no evidence of the identity of the person whose remains they represented, that the place of finding and surrounding circumstances shown also failed to furnish adequate inference of identification to carry that question to the jury, and even that identity of the deceased person was essential to showing the corpus delicti, as is apparently contended, it has been said in a somewhat analogous case that:
“Where items of evidence tend not only to prove the corpus delicti, but tend to connect the defendant with the commission of the crime, they are admissible at any time.” People v. Kimbrough, 193 Mich. 330.
In People v. Jackzo, 206 Mich. 183, where the rule contended for here was pronounced a wise one, which should be observed, it is said:
“That there are exceptions where the same set of facts, in cases of circumstantial evidence, tend to connect the defendant with the commission of the crime, and also at the same time to prove the corpus delicti has been held, and the rule has been somewhat relaxed in such cases.”
Defendant’s so-called confessions are not claimed to have been obtained by any threats, promises, or other improper inducement. She admittedly told her story to the officers voluntarily, before and after her arrest, and repeated it at her trial as a witness in her own behalf. She did not admit or confess that she was guilty of any crime. Her attitude and claim in court and out was that she killed Udurovich in self-defense and was therefore justified in doing what she did. That issue was carefully submitted to the jury under full and correct instructions on the law of self-defense.
Defendant was a woman of mature years and varied experiences, and not a stranger to court proceedings. She was born, raised and first married in Austria, was divorced from her first two husbands, claimed her third was killed by Udurovich, with whom she after-wards lived in meretricious relations, and was married to a fourth husband some time before her trial. She first came to America in 1916, going to Winnipeg and from there drifted into Duluth, from where she was furnished free transportation to the land of her nativity under the Federal deportation act. She soon returned to America, going first to Toronto and from there to Detroit which has since been her abiding place. Her sordid story on the witness stand of her life with Udurovich and his claimed abuses of her, terminating in threats and assaults which compelled her to shoot him in self-defense, was for the jury. She testified that he had assaulted her, got his revolver and threatened to kill her unless she promised to marry him, get some more furniture and continue living with him. In fear he would carry out his threat in case of refusal she so promised. He then put his revolver under a pillow in the bed room, returned and sat down in the kitchen smoking cigarettes, when she went and took the revolver from under the pillow and shot him in the eye before he could get to her. Of what followed she said:
“Then after that he wants to run away. Yes, he would open the window and get out. He started for the window and then I shot him the second time in the back. He fall down. I shot him again over here (indicating) under the chin. * * * He fall down, he don’t do me nothing, he can’t do me nothing. I put the gun under his chin and shoot. After he was dead it was night.” * * *
She then related how she first carried his body to the cellar, and later dug a grave in the soft sand under the porch of the house where she dragged his body and buried it. In connection with this account of that tragedy runs her protest that she acted in self-defense, in deadly fear of him, believing that if she did not do what she did to him he would kill her, as he had then and often before declared he would. Her claim of self-defense was made strictly an issue of fact for the jury to decide under the law upon that subject, as fully explained in the court’s charge.
The case will stand affirmed.
Bird, c. J., and Sharpe, Snow, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Sharps, J.
On February 12, 1924, Joseph Kirt conveyed certain lands in Leelanau county, which he had inherited from his father, to the defendant for an expressed consideration of $900. The deed was subject to two mortgages then on the lands, amounting to $700. This sum, and the interest accrued thereon, was treated as a part of the purchase price. Kirt re ceived but $100. Learning that Kirt and his mother were dissatisfied with the deal, the defendant placed the deed, which had not been recorded, in a bank at Sutton’s Bay, with instructions to deliver it to Kirt on payment of $125. Of this Kirt had notice. It was left in the bank for two days, and, the money not having been paid, defendant took the deed and recorded it.
On May 3, 1924, plaintiff was duly appointed guardian of the property of Kirt, who was found by the probate court to be an incompetent, and qualified as such. He tendered to defendant the amount he had paid to Kirt, and demanded a conveyance of the property to him. On defendant’s refusal, he filed this bill to secure such a conveyance, alleging the incompetency of Kirt and that the consideration was wholly inadequate. He offered therein to pay to defendant such sum as the court might find to be just and equitable.
On the hearing the trial court was not satisfied that the defendant had intentionally committed a fraud in his purchase. He found that the property was worth at least $1,600 and that, while Kirt was “apparently competent to be able to sign and acknowledge a deed,” he “undoubtedly is lacking in business ability and foresight and judgment.” He decreed that defendant might retain the property on payment to plaintiff of the sum of $700 and the costs, fixed at $50, within 30 days from the filing of the decree, and if not so paid, that the deed be set aside and the title vested in plaintiff, subject to the mortgages, .on his payment to the defendant of the sum of $200. From this decree both parties appeal.
The proofs clearly show that Kirt was subnormal. He reached the sixth grade in school at the age of 16, having been conditioned in both the fourth and fifth grades. When the land in question came into his possession on his reaching his majority in the fall of 1928, he mortgaged it and purchased a team and harness and did some work on it. He traded the team for a used Ford car, and the car for a truck, and it for another car of little or no value. He sold some timber on the land for much less than it was worth. The testimony of Kirt, who was called as a witness by the defendant, clearly indicates that he has no business judgment and that his want of it is due to a lack of mental development. He testified that he supposed he was to get $900 over and above the amount of the mortgages. We have not overlooked the opinion of Dr. Murphy that Kirt was competent to make a contract, but this opinion was qualified by the statement that he “probably would not use good judgment; throws his money away, in other words.” The doctor was also asked:
“Now, doctor, isn’t it a fact that you had expressed this, this boy was not strong-minded, but that this boy ought to stay there on the farm. That everybody was skinning the boy, and it was better to stay there on the farm, than to let him sell it foolishly to somebody else?”
and answered, “I think I did.”
We are impressed by the defendant’s testimony that he knew this young man had but little competency to do business or look after his own affairs, and that the land was worth much more than $900. He evidently expected that complaint would be made about his purchase. He kept the deed without recording it for nearly two weeks, and then left it at the bank, as before stated. He testified that Kirt said, “if I didn’t buy it, he says somebody else will. He said, ‘I will sell it if I have to give it away,’ * * * and I took a chance myself.” When asked why he did not buy when Kirt first offered it to him, he answered, “Well, I didn’t want to take it from him; they will say I robbed him; that is the reason I didn’t want to take it. Well, when he told me he was going to sell it to somebody else if I wouldn’t buy it, then I bought it,” and said that he expected some people would find fault with him about it. While he stated that the land “is worth for farming purposes not more than $900,” he admitted that he was offered for it “$2,000 and I wouldn’t take it.”
The rule governing such transactions is thus stated:
“It may be stated as settled law, that whenever there is great weakness of mind in a person executing a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and seasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside.” Allore v. Jewell, 94 U. S. 506, 511.
While we find no decision by this court in which the facts are similar to those here presented, the following cases are instructive as to the equitable doctrine on which the rule is founded: Sponable v. Hanson, 87 Mich. 204; Hemphill v. Holford, 88 Mich. 293; Wagbo v. Smiseth, 227 Mich. 313.
It is unfortunate that the defendant did not accept plaintiff’s tender and make reconveyance. We cannot but conclude, as did the trial court, that the conveyance was executed under such circumstances that a court of equity must set it aside.
Plaintiff complains of the option permitted defendant in the decree. In our opinion it cannot be sustained. The defendant should have reconveyed when requested to do so.
A decree may be here entered modifying that appealed from in the respect stated. Plaintiff will have costs of both courts.
Bird, C. J., and Snow, Steere, ' Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Starr,, C. J.
An opinion in this case was filed June 4,1945, and on plaintiff’s application a rehear ing was granted. Said opinion has been withdrawn, and this opinion, reaching the same conclusion, is substituted therefor.
Plaintiff appeals from a decree dismissing its bill of complaint filed to foreclose a mechanic’s lien on property located in the city of Detroit. The facts are stipulated. Between June 26 and December 6, 1941, plaintiff sold and delivered to defendant Ferguson lumber and building materials of the agreed value of $1,728.95, which were used in the construction of a dwelling house on lot 293 in Mayflower subdivision. On July 11, 1941, Ferguson advised plaintiff that he had contracted with defendants Harold and Mary Parslow to construct said house. On that date defendant Anne Currie held record title to lot 293, but, unknown to plaintiff, she had conveyed her interest by an unrecorded deed to defendant Ferguson “subject to unpaid taxes and tax titles.” Plaintiff was also advised that defendant Joseph Ferry had an interest in the lot. On said July 11th plaintiff served notice of intention to claim a lien on the property, on defendants Currie, Ferry, and Harold and Mary Parslow.
The State of Michigan had bid in said lot 293 at delinquent tax sale in 1940, and, there being no redemption, the auditor general conveyed it to the State by deed dated June 3, 1941, and recorded November 3, 1941. The State thereby became the owner of the lot, free and1 clear of all liens and encumbrances, and a new chain of title was started. Porter v. State Land Office Board, 308 Mich. 324; Darby v. Freeman, 304 Mich. 459. Subsequently, on February 4, 1942, plaintiff filed a claim of lien on the “land and building” in the amount of $1,728.95. In its claim of lien it named defendant Currie as the owner of record and Harold and Mary Parslow as the owners of some interest in the lot, but did not name the State as owner. Plaintiff served copies of its claim of lien on defendant Currie and the Parslows, but did not serve copy on the State.
In pursuance of Act No. 155, Pub. Acts 1937, as amended by Act No. 363, Pub. Acts 1941 (Comp. Laws Supp. 1940, 1942, § 3723-1 et seq., Stat. Ann. 1942 Cum. Supp. §7.951 et seq.), the State sold said lot at scavenger sale on April 17, 1942, to defendant Perry for $120, and the State’s deed to Perry was recorded June 15th. Plaintiff’s account was not paid, and on February 1, 1943, it began the present suit to foreclose its lien. In its claim of lien and in its bill of complaint plaintiff asserted a lien on both the land and building. However, in the lower court it conceded that it had no lien on the land, but claimed a lien on the building under 3 Comp. Laws 1929, § 13103, as amended by Act No. 266, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 13103, Stat. Ann. 1944 Cum. Supp. § 26.283), which provides in part:
“Any person furnishing services or materials for the erection of a new building or structure upon land to which the person contracting for such erection has no legal title * '* * shall have a lien therefor upon such buildings (building) or structure; and the forfeiture or surrender of any title or claim of title held by such contracting person to such land shall not defeat the lien upon such building or structure of such person furnishing services or materials as aforesaid.”
The trial judge held that plaintiff’s failure to name and serve the State of Michigan, as owner, defeated its lien on the building. The above-quoted provision, relating only to a lien upon a “building or structure,” must be considered in connection with other provisions of the mechanic’s lien statutes regarding the form and service of the claim of lien. 3 Comp. Laws 1929, §13105 (Stat. Ann. §26.285), provides in part:
“Every person, * * * whether contractor, subcontractor, material man or laborer, who -wishes to avail himself of the provisions of this statute, shall make and file in the office of the register of deeds, in the county or counties in which said real estate, house, building, structure or improvement to be charged with the lien is situated, a just and -true statement or account of the demand due him, * * * and containing a correct description of the property to be charged with the lien, and the name of the owner, part owner or lessee, if known. ’ ’
' 3 Comp. Laws 1929, § 13106 (Stat. Ann. § 26.286), provides in part:
“Every person filing such statement or account as provided in the preceding section (section 13105 quoted above), * * * shall within ten days after the filing thereof, serve on the owner, part owner or lessee of such premises * * * a copy of such statement or claim.”
To assert a lien on the dwelling-house building under section 13103, plaintiff was required to file and serve a claim of lien. Section 13105 required that the lien state the name of the “owner, part owner or lessee, if known.” Section 13106 required that a copy of the lien be served on the “owner, part owner or lessee.” The recording of the deed to the State of Michigan on November 3, 1941, gave plaintiff constructive notice that the State was the owner of the land and building. However, in its claim of lien plaintiff did not name the State as owner, and it did not serve a copy of its claim on the State,
The present case is controlled by onr decision in Lewis Manufacturing Co. v. Lee, 268 Mich. 383, and it should be noted that that case also involved a claim of lien on a building, under section 13103 quoted above. In that case plaintiff sold building materials to one George Smith, the vendee in a land contract, and the materials were used in the construction of a dwelling house on a lot covered by the contract. Prior to August 22, 1931, the lot was conveyed by deed to said George Smith and his wife. On August 22d plaintiff filed claim of lien on the building, in which it named Mr. Smith as an owner but did not name Mrs. Smith. It served Mr. Smith but did not serve Mrs. Smith with a copy of the claim of lien. Plaintiff later filed bill to foreclose its lien on the building, and, in determining that its failure to name Mrs. Smith as an owner and to serve her with claim of lien defeated its lien on the building, Mr. Justice Wiest said:
“In August, 1931, when the claim of lien was filed, * * * Mrs. Smith was then an owner and entitled to be so named in the claim of lien and to be served with notice. The failure to name her as an owner at that time and serve her with notice rendered the lien inoperative. (Authorities cited.) * * *
“Counsel for plaintiff cite the Strand Lumber Company Case (Strand Lumber Co. v. Dostie, 260 Mich. 422) as authority for not requiring notice of filing of the lien to be given the owner in case the lien is upon the building alone. In the Dostie Case we held that, in case of lien against the building only, notice was not required to be given to one who became owner subsequent to the filing of the lien and before filing the bill for foreclosure.”
“A claim of lien * * * must state, as required by statute, the name of owner, part owner, or lessee, if known. A failure to observe this requirement is fatal.” John F. Noud & Co. v. Stedman (syllabus), 193 Mich. 459.
“Sections 10714 and 10715, 3 Comp. Laws (1897) (3 Comp. Laws 1929, §§13105, 13106 [Stat. Ann. § § 26.285, 26.286), requiring a claim of mechanic’s lien tq contain the name of the owner of the premises, if known to the claimant, and a copy of such statement to be served on the owner, refer to the person who owns the premises at the time the claim of lien is filed.” Waters v. Johnson (syllabus), 134 Mich. 436.
“Mechanics’ liens, being in derogation of the common law, are strictly construed as to the question whether a lien attaches, but are construed liberally after the lien has been created.” Lacy v. Piatt Power & Heat Co. (syllabus), 157 Mich. 544 (133 Am. St. Rep. 360).
“The mistake had been made and plaintiff must stand or fall upon the claim of lien filed.
“The equities are with plaintiff, but, unless lien attached, may not be considered. Proceedings to obtain a lien are wholly statutory and must be strictly followed.” Grand River Lumber & Coal Co. v. Glenn, 234 Mich. 310.
We conclude that under the facts and circumstances of the present case plaintiff’s failure to name the State as owner, and to serve the State with copy of claim of lien, defeated its lien on the building in question. Lewis Manufacturing Co. v. Lee, supra.
Furthermore, as mentioned above, the State sold this property at scavenger sale to defendant Ferry on April T7, 1942. The deed from the State to Ferry was given in pursuance of Act No. 155, § 9, Pub, Acts 1937, as last amended by Act No. 363, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 3723-9, Stat. Ann. 1944 Cum. Supp. § 7.959), which provides in part:
“Any quitclaim deed or deeds executed by the (State land office) board or department shall convey title in fee to land under the provisions of this act, free from any encumbrances.”
Under our recent decision in Boissoin v. Gillie, 311 Mich. 358, the building in question became a part of the realty. Therefore, under the above-quoted statute defendant Perry acquired1 title to the land and building free from plaintiff ’s claim of lien. Pavlovic v. Kastner, 302 Mich. 120; Municipal Investors Ass’n v. City of Birmingham, 298 Mich. 314.
The decree dismissing plaintiff’s bill of complaint is affirmed. Defendant Perry may recover costs of both courts.
North, Bittzel, Bushnell, Sharpe, Boyles, and Reid' JJ., concurred. The late Justice Wiest took no part in this decision.
See 1 Comp. Laws 1929, § 3459, as amended by Act No. 282, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 3459, Stat. Ann. 1940 Cum. Supp. § 7.112).—Reporter. | [
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Smith, J.
The principal issue in this case is similar to the principal issue decided in the so-called “Ford-Canton” case: Park v. Employment Security Commission, 355 Mich 103. Claimants are Michigan-based employees of Northwest Airlines who were laid off from work as a result of a strike by flight engineers who were domiciled in Minneapolis and Seattle, but who were attached to aircraft which flew from place to place throughout the airline system. Federal aviation regulations required such engineers to be on hoard aircraft during flight. When the flight engineers went on a systemwide strike January 9, 1961, the flight operations of Northwest in Michigan and elsewhere were closed down and certain ground personnel, including claimants herein, were laid off by management. Generally stated, the question has to do with whether or not the labor dispute which resulted in claimants’ unemployment was “in the establishment” where they were employed.
The parties agreed to a “statement of proceedings and facts” in the Ingham circuit court, which court had initial appeal jurisdiction from the employment security appeal board. Such statement having been concurred in again by the parties in this Court, and it being a fair summation of the case, is adopted here:
“Claimants are individuals who were employed by Northwest Airlines, Incorporated, at the Detroit Metropolitan Airport and at the Northwest Airlines office in the city of Detroit.
“On the 9th day of January, 1961, the claimants were advised by Northwest Airlines, Inc., that due to a strike of flight engineers that they would bé laid off until further notice.
“The claimants filed claims for unemployment benefits under the Michigan employment security act. The commission filed a redetermination on September 8, 1961, holding that the unemployment of the claimants was due to a stoppage of work in the establishment in which they were last employed and held that the claimants were disqualified from receipt of benefits for the same period of their un7 employment under the labor dispute provision, section 29(1) (b)(4) of the Michigan employment security act.
“The claimants filed appeals from the redetermination to a referee who, on August 27,1962, issued a decision holding that the claimants were not entitled to benefits.
“The claimants appealed this decision to the appeal board of the Michigan employment security commission and on January 4,1963, the appeal board reversed the decision of the referee and held that the claimants were eligible for benefits.
“Northwest Airlines, Inc., filed an appeal to the circuit court for the county of Ingham. On April 29, 1964, the Honorable Sam Street Hughes filed a written opinion holding that the claimants were ineligible for benefits as a matter of law; a copy of the opinion being attached hereto as exhibit A.
“On May 28, 1964, judgment was entered by the Honorable Sam Street Hughes reversing the decision of the appeal board.
“The issue in this case is whether, under section 29(l)(b) of the Michigan employment security act, the unemployment of the claimants was due to a stoppage of work existing because of a labor dispute in -the establishment in which they were last employed.
“Northwest Airlines, Incorporated, is a common carrier by air in interstate and foreign commerce, operating foreign and scheduled air service under authority of the civil aeronautics board.
“Northwest domestic service connects the Pacific northwest cities of Seattle, Tacoma, Portland, with New York, and Washington via Detroit, Chicago, Minneapolis, St. Paul and Spokane. The trunk portion of the system consisted of the mainline between New York and Seattle with segments off the main trunk to Washington, to points in Florida, and to Winnipeg, the Orient, Alaska, and Hawaii.
“The company operations involved centralized dispatching of planes and a centralized electronic reservation system, high line telephone, teletype and meteorology service.
“Prior to January 9, 1961, regularly flying in and out of the Detroit Metropolitan Airport, the flight engineers were performing services. These services were subject to the direction and control of the captain, both when the planes were en route and when they were landing and take-off, including assisting the pilot in phases of the landing and take-off such as monitoring certain instruments pertaining to the performance of the engine of the aircraft aboard the aircraft, and just prior to take-off making what was known as a walk around check at the airport prior to its departure. Flight engineers were subject to the direction and control of the company’s operations manager in Detroit while such flight engineers laid over between flights at that location.
“On January 9, 1961, in the course of a labor dispute, the flight engineers unqualifiedly refused to fly any of the company’s aircraft to or from any point in the company’s entire route system in the continental United States, including the Detroit terminal. This resulted in the complete cessation of operations in Michigan by Northwest Airlines because of the fact that flight engineers who refused to fly were all licensed by the federal aeronautics administration, and such licensed personnel were required by regulation to operate Northwest aircraft. Northwest did not have other replacement personnel available to fly the flights scheduled into and out of Michigan, and, therefore, the flights were grounded as a result of the strike. As a consequence, Northwest employees were given a temporarily no work notice.
“The issues involved in the labor dispute solely concerned the status of the company’s flight engineers. Northwest, on January 9, 1961, had 82 employees on its Michigan payroll, none of whom were flight engineers. None of the flight engineers were based or domiciled in Michigan. The domicile of the flight engineers was either at Minneapolis, Minnesota, or Seattle, Washington. No aircraft was stored in Michigan.
“The company had an operations manager in Detroit who might and did recruit employees. Prospective employees might be interviewed in Minneapolis or locally by an interviewer from Minneapolis, or by a local interviewer, but their ultimate employment was subject to approval by the director of employment at Minneapolis.
“The local manager could not discharge a worker for an infraction of rules until a hearing was held with a final decision being made normally with the manager’s recommendation to the company. In the case such as theft, the manager could directly discharge the employee.
“The payroll department for the entire system was located in Minneapolis. All time cards were checked by the local manager and forwarded to Minneapolis for compiling and for payment. All payroll checks were drawn on the First National Bank of Minneapolis; these being forwarded to the various points of the company’s system around the country.
“For the purpose of union representation the entire system was treated as a single bargaining unit. Thus the flight engineers were represented by the International Association of Machinists. The district lodge of that union at Minneapolis represented all employee members wherever they might be located in the system and negotiated systemwide rather than local agreements with the company. There were no local labor-management agreements and local employees in Michigan were covered by systemwide agreements which provided systemwide seniority. Employees, regardless of location, have systemwide seniority and are promoted, demoted, or laid off based on systemwide seniority.
“The claimants are variously represented for collective bargaining purposes by International Association of Machinists, Brotherhood of Railway & Steamship Clerks and by the Communications Workers of America. The constitution of the Grand Lodge of the International Association of Machinists provides for a strike fund from which the striking flight engineers drew benefits. The International Association of Machinists’ constitution further provides that 50‡ per month is assessed against each member for the support of his local or district lodge, and is specifically earmarked for inclusion in the strike fund.
“Claimants who are members of the International Association of Machinists did not pay union dues during the period of their lay off. They did not receive strike benefits.
“There was no picketing by anyone at the place of employment of the claimants, the Detroit Metropolitan Airport.
“Northwest Airlines pays unemployment taxes on behalf of the claimants to the State of Michigan. Northwest pays unemployment taxes on behalf of its flight engineers to the State of Minnesota.”
The appeal board said, “We do not believe that these flight engineers became employed at the facilities at Detroit Metropolitan airport within the meaning of the act any more than they are attached to any ‘establishment’ in a State over which they fly without landing, simply because of services performed in flight.” Later, the appeal board stated in its opinion that “We therefore conclude that, as a matter of law, the claimants in the instant appeal were employed at a separate ‘establishment’ than that in which the stoppage of work, due to a labor dispute by flight engineers, existed.”
In reversing the decision of the appeal board, the Ingham circuit court held “that the decision of the appeal board is erroneous, as a matter of law.”
Both appellants and appellees agree that the principal issue is whether or not the labor dispute which caused the unemployment of the claimants occurred in the establishment in which the claimants were employed.
Decision in this case turns on the application of principles enunciated in Park v. Employment Security Commission, supra, as that case interpreted statutory language, particularly what constitutes a labor dispute “in the establishment.” Said statutory provisions are the same as they were in the Park Case; however, since the Park Case (1959), and since the 1961 dispute giving rise to the present action, the statute in question has been amended by PA 1963, No 226. Obviously, the amendments do not apply in this suit and, therefore, will not be discussed.
The pertinent section of the statute up for review is as follows:
“Sec. 29. (1) An individual shall be disqualified for benefits: * * *
“(b) For any week with respect to which his total or partial unemployment is due to a stoppage of work existing because of a labor dispute in the establishment in which he is or was last employed * * * .” CLS 1956, § 421.29 (Stat Ann 1960 Eev § 17.531).
Although the statute contains no definition of what constitutes “in the establishment,” that expression was fully explored and defined in Park v. Employment Security Commission, supra.
In Park, where a strike in Ford’s Canton, Ohio, plant resulted in the layoff of Ford employees in three Michigan plants in the Detroit area, this Court held erroneous, as a matter of law, a finding that (p 130) “all of the units of the Ford Motor Company, both in Michigan and Ohio, constituted 1 establishment within the meaning of that word as contained in the Michigan act.” This Court held that the term “establishment”, as used in the provision of the employment security act relative to disqualification for unemployment benefits “because of a labor dispute in the establishment in which he is or was last employed”, has reference to a distinct physical place of business. The Court specifically rejected the company’s suggestion that “establishment” is synonymous with “employing unit”, a term which is defined in the act and which, from the discussion in Park, clearly carries a broader application than the term “establishment.” (p 117)
The Court also rejected (p 125) “functional integrality, general unity, and physical proximity * * * as an absolute test.” It adopted language which left no doubt that although these are some of the factors to be considered in determining when a factory, plant or nnit is a separate establishment, other facts (p 127) “must be taken into consideration in determining whether the nnit under consideration is in fact a separate establishment from the standpoint of employment.” (Emphasis supplied.) Park, supra, quoting with full approval Nordling v. Ford Motor Company, (1950), 231 Minn 68 (42 NW2d 576, 28 ALR2d 272).
The Park Case thus defined “establishment” in terms of a distinct physical place of business, necessarily localized in character. In so deciding, Parle placed substantial reliance upon Nordling v. Ford Motor Company, supra, which posed a similar problem. Nordling held that a determination of whether a unit of employment is a separate “establishment” within the meaning of the disqualifying provisions of their employment security law must be based upon all the facts relating to the relationship of the employee to the unit of employment, rather than on a determination of whether an entire enterprise or industry is highly integrated as to operating units or unified for the purpose of efficient management or production. See number 5 of the syllabus by the court in Nordling. This analysis is a sound and helpful approach to the problem of applying the facts, which in the instant case are not in dispute, to the statutory principle involved in this lawsuit.
We recognize first that the test of functional integrality, general unity and proximity, which has so often been used and debated in connection with “establishment” cases (see cases discussed in Parle), grew out of problems in industries vastly different from the airline industry. Nearly all such cases involved manufacturing industries, especially automotive, with different sets of operating character istics. In manufacturing, the employees are stationary in fixed plant locations, and the products, in various stages of production, move from plant to plant in a highly synchronized manner. The airline industry is, of course, greatly different in organization and purpose. It transports persons and cargoes from place to place and in providing such service employs two distinct kinds of personnel: flight personnel and ground personnel. The ground personnel are located at fixed terminals and offices, while the flight personnel perform their essential functions in connection with the actual flight of aircraft, although some flight personnel perform functions on the ground at various terminal points.
We come down to the question, then, in this ease that where, as here, part of the flight personnel (flight engineers) are involved in a labor dispute with management and certain ground personnel are laid off by management as a result, said ground personnel having no dispute with management, is the labor dispute of the flight engineers “in the establishment” of the ground personnel claimants employed at the Detroit Metropolitan Airport and the Detroit ticket office of Northwest?
Following our interpretation in Parle of what constitutes an “establishment”, that is, a distinct physical place of business local in character, and approaching the fact tests of Parle and Nordling from the stipulated record, we conclude that the labor dispute of the flight engineers did not occur in the establishment of claimants, hence they are not disqualified from unemployment benefits. The analysis of the appeal board is consonant with the broad criteria laid down in the Nordling Case and adopted in Parle, and is therefore relevant at this point:
“The transcript of testimony discloses that, when the aircraft arrived at Detroit metropolitan airport, the flight engineers usually walked around the plane in order to examine it in some respect and, also, perhaps employed their skills in some manner while the plane was being serviced and while passengers were either deplaning or emplaning. However, the primary service of tlie flight engineers appears to he rendered while the aircraft is in flight. For these services, the flight engineers are subject to the flight captain aboard the ship. Can it be said that these flight engineers were employed at the Michigan facility? Here again, the nature of the transportation industry is such that those who employ their skill do so from place to place and it is urged that they are employed at each point along the route. We believe that such type of service is employment at each point along the route in a very literal sense. The question before us, however, is whether or not we have such employment under the terms of our employment security act. We do not believe that these flight engineers became employed at the facilities at Detroit Metropolitan Airport within the meaning of the act any more than they are attached to any ‘establishment’ in a State over which they fly without landing, simply because of services performed in flight. It is to be noted that the flight engineers are not considered in the Michigan employment count for Northwest Airlines Incorporated’s taxes under the act, and no report is made to Michigan of their wages. It follows that these flight engineers could not file claims for unemployment benefits under our act and it appears, from the record, that a number of the flight engineers filed for unemployment benefits in Minnesota. We therefore do not believe that there is any sound basis in the record to consider these flight engineers as having had a labor dispute at a Michigan ‘establishment.’ ” (Emphasis supplied.)
■ To this analysis, we would add the following from the stipulated record. The flight engineers on strike were neither based nor domiciled in Michigan, they were domiciliarles of either Minneapolis, Minnesota, or Seattle, Washington. None of the aircraft to which they were attached was stored in Michigan. The services performed by the flight engineers were under the direction and control of the captain of the aircraft; although, in the event of a layover in Detroit, the flight engineers would come under control of the Detroit operations manager while in Detroit. The operations manager is, as his title implies, in charge of the Detroit operation, including the ground personnel therein.
The referee, in his opinion, sought to distinguish this case from the Park Case by showing that in the Park Case there were “localized employment conditions” whereas in this case “the employer’s [Northwest] airline system is highly integrated with all units along its route, not only for the purposes of management and operation, but for employment purposes as well.” He then goes on to explain his point by repeating that Northwest employees are hired under systemwide collective bargaining agreements and that, although employees may be hired by local units, the central control is maintained by management at company headquarters in St. Paul. The same point is substantially repeated in the opinion of the circuit judge in his review. We think the emphasis was misdirected and, therefore, led to the error in decision.
The Park Case directs us to look first to the ordinary definition of the word “establishment.” In this connection, the controlling opinion in Park instructively comments as follows: (p 116)
“Judges and lawyers can frequently do astonishing things with words. No layman would venture to suggest the single word ‘establishment’, * * * could in normal usage be applied to both the Ford Rouge plant in Dearborn, Michigan, and the Ford forge plant in Canton, Ohio. * * *
“No layman without a specific motive in mind, would read the statutory provisions quoted above and come to the conclusion that the legislature had any such inclusiveness in its intended use of the word.”
This returns us to the simple definition which was adopted in Park, that an “establishment,” within the meaning of the statute, is a distinct physical place of business, local in character. But definitions alone do not suffice when we are faced with the necessity of analyzing the highly complex relationship of the local employee to his employer, a multi-faceted, international business organization. The Park Case then commands us to look not alone to functional integrality, general unity, and physical proximity as a test but to other factors as well, from the standpoint of the worker’s employment.
In view of the broad test laid down in Park, we think that the referee and the able circuit judge placed too heavy emphasis upon the systemwide collective bargaining agreements and central control of personnel. These are factors to be considered, neither more nor less meaningful than other factors present in the case such as the transitory nature of the flight engineers’ work contrasted with the local character of claimants’ work. If we were to affirm the referee and the circuit judge we would be placing undue emphasis upon the systemwide personnel and union procedures of Northwest which cannot be decisive in determining what was the character of the local workers’ employment and the character of the place in which it was performed.
The fact that there was a centralized payroll department and certain basic controls of employees from the Northwest headquarters in Minneapolis do not detract from the distinctly local character of the establishment in question. Nor do we per ceive that because the flight engineers performed some part of their function on the ground in Detroit the character of the Detroit operation was thereby altered so as to place the labor dispute in the local establishment.
Northwest also argues that those of the claimants who belong to the same international union (International Association of Machinists), as do the flight engineers, should also be disqualified for the reason that by the payment of union dues prior to the strike, a portion of which went into a strike fund, the claimants had “financed the labor dispute which caused the stoppage of work as contemplated in Section 29(1) (b)(2) of the Michigan employment security act:
“‘(2) That he is * * * financing * * * the labor dispute which caused the stoppage of work; * * * > >5
The brevity of the quotation in this argument makes it necessary to quote somewhat at greater length from the portion of the statute from which the quotation was taken. It read as follows:
“Sec. 29(1) An individual shall be disqualified for benefits: * * *
“(b) For any week with respect to which his total or partial unemployment is due to a stoppage of work existing because of a labor dispute in the establishment in which he is or was last employed: Provided, however, That no individual shall be disqualified under this section if he shall establish that he is not directly involved in such dispute. For the purpose of this section, no individuals shall be deemed to be directly involved in a labor dispute unless it is established: * * *
“(2) That he is participating in or financing or directly interested in the labor dispute which caused the stoppage of work; Provided, however, That the payment of regular union dues shall not he construed as financing a labor dispute within the meaning of this subsection.” Michigan employment security act, CLS 1956, § 421.29 (Stat Ann 1960 Rev § 17.531). (Emphasis supplied.)
In interpreting the application of the proviso (to which emphasis has been supplied), this Court has already ruled contrary to the argument made by Northwest. In Park, at page 131, we said that “the basic disqualification finding required in the first sentence of section 29(1) (b) must be legally made before the proviso relating to ‘direct involvement’ becomes effective, and before considering or applying the tests of direct involvement set forth in subsections 1, 2, 3 and 4.” This means simply that it must first be established the stoppage of work was due to a labor dispute “in the establishment” before the tests of direct involvement, set forth in subsections 1, 2, 3 and 4, can be applied. Having already decided that the labor dispute was not in the establishment, the proviso plainly does not apply.
The judgment of the Ingham circuit court is reversed as a matter of law, and upon remand the decision of the appeal board will be reinstated. Costs to appellants. .
T. M. Kavanagh, C. J., and Souris and Adams, JJ., concurred with Smith, J.
As -will be seen from the “statement of proceedings and facts,”» some of the claimants are members of the same union, International ’ ■Association of Machinists, as the flight engineers, while other claim•ants are members of 2 other unions: Brotherhood of Railway and steamship Clerks and the Communications Workers of America. | [
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Btjshnell, J.
Defendant, the proprietor, and operator of a nudist colony, described as the Sun Sports League camp, was convicted of a violation of section 335, of the penal code, Act No. 328, Pub. Acts 1931.
The section reads:
“Any man or woman, not being married to each other, who shall lewdly and lasciviously associate and cohabit together, and any man or woman, married or unmarried, who shall be guilty of open and gross lewdness and lascivious behavior, or who shall designedly make any open or indecent or obscene exposure of his or her person, or of the person of another, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than one year, or by fine of not more than five hundred dollars. No prosecution shall be commenced under this section after one year from the time of committing the offense.”
The camp, operated near State highway M-89 in Allegan county in a more or less secluded location in the country, consisted of tents, a building made of paper and another building about 8x10 feet in size, partially boarded up, all surrounded by a second growth of scrub oak in a clearing of about three acres. It lay about a mile and a half from the highway and was reached by a road claimed by appellant to be private.
After viewing the camp and the inhabitants thereof from an overhanging bluff on adjoining property, the officers visited the camp without a search warrant, and found about 15 or 20 naked men and women and children, best described by a neighboring-property owner as “cavorting around,” some on the bank of a creek and others engaged in harmless amusements such as volley ball. The group consisted of the defendant, his wife and two children, six other couples who were married, three unattached men and two other children.
At the trial, defendant’s request for the exclusion of the witnesses from the courtroom was denied. This was entirely within the discretion of the court, and no abuse is shown of that discretion. People v. Burns, 67 Mich. 537.
The sheriff was permitted to testify, over objection, to what appeared to him to have been improper conduct on the part of a man and woman. This, however, did not occur in the presence of the accused. The court did not give appellant’s request to charge, which was as follows:
‘ ‘ There was some testimony in this case from the sheriff as to the conduct of two persons upon the rollway. These persons were not under respondent’s observation at the time and he is in no manner responsible for their conduct, if there was such conduct.”
The failure to give the charge was not error. A jury ’s conception of what constitutes indecent exposure may very properly be influenced by both the purpose and result of the exposure, so that testimony as to conduct on the premises was admissible.
At the close of the examination before the justice of the peace, and again before testimony was taken in the circuit court, the defendant’s motions to dismiss because of a claimed violation of defendant’s constitutional immunity against unlawful search were denied (U. S. Const. 4th Am., Michigan Const. of 1908, art. 2, § 10).
The rule stated in People v. Marxhausen, 204 Mich. 559 (3 A. L. R. 1505), has never been disturbed. Is, however, a nudist camp the defendant’s house or castle? We need not repeat the reasoning of the case cited, nor indulge in what might easily be a lengthy discussion of the situation here. While there is no case directly in point in our reports, there is little difficulty in finding respectable authority elsewhere. The curtilage is immune to unreasonable search and seizure, but there is drawn a distinction between the right of peace officers to invade the privacy of one’s house and the right to invade one’s lands. An open field or roadway is not embraced within the terms of the constitutional prohibition. The obvious intent of the Constitution is to protect the individual in the peaceful enjoyment and occupation of the house in which he lives, the place in which he earns his livelihood and the things connected therewith, and to prevent an unlawful disturbance of his privacy and person. In our ever-changing civilization, it is both difficult and unwise to define the term “curtilage” with exactitude.
That the Constitution does not guarantee the privacy of open lands was held in Hester v. United States, 265 U. S. 57 (44 Sup. Ct. 445). Our conclu sions are also influenced by our study of the following cases: State v. Ladue, 73 Mont. 535 (237 Pac. 495); United States v. McBride, 287 Fed. 214; Schnorenberg v. United States (C. C. A.), 23 Fed. (2d) 38; Worth v. State, 111 Tex. Cr. R. 288 (12 S. W. [2d] 582); Brent v. Commonwealth, 194 Ky. 504 (240 S. W. 45); Dulek v. United States (C. C. A.), 16 Fed. (2d) 275; and Koth v. United States (C. C. A.), 16 Fed. (2d) 59.
We have examined the appellant’s requests to charge, which were refused by the trial court. The office of the charge is to apprise the jury of the questions involved and the rules of law applicable thereto. A study of the charge of the court, in the instant case shows that it was sufficient and proper in the light of the statute and the testimony.
Did the acts of the defendant fall within the prohibition of the statute and was he fairly convicted? The people of the State of Michigan, through a statute, have decreed that it shall be illegal for any one to designedly make any open or indecent or obscene exposure of his or her person or of the person of another. The following authorities have been considered: 1 Bishop on Criminal Law (9th Ed.), §§ 1128, 1130; Commonwealth v. Hardin, 10 Ky. Op. 925; State v. Martin, 125 Iowa, 715 (101 N. W. 637); Commonwealth v. Hamilton, 237 Ky. 682 (36 S. W. [2d] 342); State v. Wolf, 211 Mo. App. 429 (244 S. W. 962); Van Houten v. State, 46 N. J. Law, 16 (50 Am. Rep. 397); People v. Bixby, 67 Barb. (N. Y.) 221; State v. Millard, 18 Vt. 574 (46 Am. Dec. 170); Redd v. State, 7 Ga. App. 575 (67 S. E. 709); People v. Seltzer, 122 Misc. Rep. 329 (203 N. Y. Supp. 809); United States v. Dennett (C. C. A.), 39 Fed. (2d) 564 (76 A. L. R. 1092); People v. Pesky, 230 App. Div. 200 (243 N. Y. Supp. 193); People v. Wendling, 258 N. Y. 451 (180 N. E. 169, 81 A. L. R. 799); Commonwealth v. Friede, 271 Mass. 318 (171 N. E. 472, 69 A. L. R. 640); State v. Burke, 199 N. C. 458 (154 S. E. 747).
The appellant in his brief submits the clear question :
“Is one who, on his own property, privately goes without clothing, in the presence of persons whose sense of decency, propriety and morality is not offended, guilty of a violation of Act No. 328, § 335, Pub, Acts 1931?”
The answer, in the light of the facts presented in the record, is “Yes.” It is clearly shown that the appellant designedly made an open exposure of his person and that of others in a manner that is offensive to the people of the State of Michigan. Such exposure is both open and indecent.
It is not necessary that the crime itself be particularly well defined. The average jury, composed of members of the community, has an instinctive realization of what constitutes a violation of the act. Instinctive modesty, human decency and natural self-respect require that the private parts of persons be customarily kept covered in the presence of others. People v. Kratz, 230 Mich. 334.
The case was fairly tried, the determination of the jury will not be disturbed, and the conviction is affirmed.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Butzel, and Edward M. Sharpe, JJ., concurred. | [
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Starr, J.
On February 6, 1939, the governor appointed plaintiff a member of the appeal board of the unemployment compensation commission for the term ending March 31,1940, and fixed his salary on a basis of “$25 per day, but not to exceed $4,500 a year.” On March 27, 1940, he was reappointed a member of said appeal board for a six-year term, but served only to February 28, 1941. Such appointments were made in pursuance of Act No. 1, § 35, Pub. Acts 1936 (Ex. Sess.), as amended by Act No. 347, Pub. Acts 1937 (Comp. Laws Supp. 1940, §8485-75, Stat. Ann. 1940 Cum. Supp. §17.537), which provided:
' ‘ ‘ Sec. 35. * * * There is hereby created an appeal board of three members to be appointed by the governor, by and with the advice and consent of the senate, after April one, nineteen hundred thirty-eight, for terms of six years each, except that the terms of the members first appointed shall be for two, four and six years respectively, as designated by the governor at the time of appointment. * * * Members of the appeal board shall receive such salary as the governor may prescribe, to be paid from the administration fund.”
The salaries of plaintiff and other members of the appeal board were a part of the expense of administration of the unemployment compensation act and under said section 35 were to be paid from the 1 ‘ administration fund. ’ ’ Such fund was created by-section 10 †of the act, which provided :
‘ ‘ Sec. 10. * * # There is hereby created in the State treasury a special fund to be known and designated1 as the administration fund (Michigan unemployment compensation act). Any balances in this fund at the end of any fiscal year of the State shall be carried over as a part of said fund and shall at no time revert to the general fund of the State. All moneys deposited into said fund under the provisions of this act are hereby appropriated to the commission to pay the expenses of the administration of this act.
‘ ‘ Said fund shall be credited with all moneys appropriated thereto by the legislature, and all moneys received from the United States of America or any agency thereof for such purpose, including the social security board and the United States employment service, and all moneys received by the State for said fund from any other source.”
It should be noted that the above-mentioned administration fund, created to pay the expenses of administration of the act, is separate and distinct from the unemployment compensation benefit fund created by section 26 of the act. The record shows that 93 to 97 per cent, of said administration fund was contributed by the Federal government and the balance by the State.
In disbursing the administration fund, the .commission was required by section 11 of the act to comply with the regulations prescribed by the Federal social security board. Said section ll provided:
“Seo. 11. * * * In the administration of this act, the commission shall cooperate with the social security board, created by the social security act, approved August fourteen, nineteen hundred thirty-five, as amended. • * * * The commission, subject to the provisions of this act, shall comply with the regulations prescribed by the social security board governing the expenditures of such sums as may be allotted and paid to this State under title 3 of the social security act for the purpose of assisting in the administration of this act.”
In summary, section 35 of the act gave the governor authority to appoint members of the appeal board and to fix their salaries, which were to be paid from the so-called administration fund; section 10 provided for the creation of said administration fund to pay the expenses of administering the act; and section 11 provided that in disbursing said fund the commission should comply with the regulations ■prescribed by the social security board.
Plaintiff’s maximum annual salary, as fixed by the governor at $4,500, would cover 180 days at $25 a day, that is, an average of 15 days a month. However, at the time he began work as a member of the appeal board in 1939, he was informed that the disbursement of said administration fund was subject to the regulation of the social security board, and that such board, by budget regulation, had limited the amount which could be paid members of the appeal board (except chairman) to $250 per month, or $25 a day for 10 days. "With notice of such limitation, plaintiff voluntarily performed services for 15 days a month in 1939, but he was paid for only 10 «days. His vouchers for the additional days each month were not approved and were returned to him. Beginning January 1, 1940, the budget approved by the social security board provided for 13 1/3 days of work at $25 a day. Plaintiff continued fo work for 15 days a month, but he was paid for only 13 1/3 days a month, and Ms vouchers for the additional days were returned to him. It should be noted that he accepted pay for the limited number of days each month, and that he made no showing that he was requested or required to work the additional days for which he now claims compensation.
When plaintiff ceased to be a member of the appeal board on February 28, 1941, there was an accumulation of 72 days of service for which he had not been paid and for which the commission refused to pay. On May 8, 1941, he filed petition in the court of claims, asking for a judgment of $1,800 for his services for said 72 days, together with interest. Defendant answered, denying that he was entitled to such additional compensation. The court denied his claim, entered judgment for defendant, and denied his motion for a new trial. He appeals from such judgment contending that his appointment created a binding contract on the part of the State to pay him a salary of $25 a day for services performed as a member of the appeal board, up to a maximum of $4,500 a year.
In fixing plaintiff’s salary, the governor could exercise only such authority as was delegated to him by legislative enactment. The rule is stated in 59 C. J. pp. 172, 173, § 286, as follows:
“Public officers have and can exercise only such powers as are conferred on them by law, and a State is not bound by contracts made in its behalf by its officers or agents without previous authority conferred by statute or the Constitution. * * * Nor is a State bound by an implied contract made by a State officer where such officer had no authority to make an express one.” (See cases cited.)
It is necessary that we determine the authority which the legislature delegated to the governor to fix salaries of members of the appeal board. To determine such authority, we must ascertain the legislative intention by interpreting the provisions of the unemployment compensation act. In re Chamberlain’s Estate, 298 Mich. 2781 From our examination of the above-quoted and other provisions of said1 act, it is clear the legislature intended that the governor’s authority under section 35, to fix the salaries of members of the appeal board which were “to be paid from the administration fund” created by section 10, should be subject to the Federal social security, board’s regulation of the expenditure of said administration fund, as provided in section 11. Therefore, the governor’s authority to fix plaintiff’s salary was subject to such regulation.
At the time plaintiff accepted his appointment as a member of the appeal board, he was chargeable with knowledge of the limitation on the governor’s authority to bind the State to pay him a fixed annual salary. In 59 C. J. p. 173, § 287, it is stated:
‘ ‘ The powers of State officers being fixed by law, all persons dealing with such officers are charged with knowledge of the extent of their authority or power to bind the State, and are bound, at their peril, to ascertain whether the contemplated contract is within the power conferred. ’ ’
The social security board, through its budgetary regulation, limited the salary of plaintiff and other members of the appeal board (except chairman) to $25 a day for 10 days’ work in each month in 1939 and for 13 1/3 days in each month thereafter. Although informed of such limitation and that he would be paid for only a limited and prescribed number of days in each month, plaintiff voluntarily performed services for the additional 72 days for which he now claims compensation.
We conclude that plaintiff was paid in full for all days of service which he was authorized to perform. He does not have a valid1 claim for the additional 72 days of service, which he voluntarily performed in excess of the regulation prescribed by the social security board. Other contentions by plaintiff do not require consideration.
The judgment of the court of claims is affirmed. A public question being involved, no costs are allowed.
North, C. J., and Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. Wiest, J., concurred in the result.
This section, is quoted as it was amended by Act No. 347, Pub. Acts 1937. It was also amended by Act No. 324, Pub. Acts 1939 in a manner not important to the decision of this ehse.
This section is quoted in part as it was amended by Act No. 347, Pub. Acts 1937. It was also amended by Act No. 324, Pub Acts 1939, in a manner not important tc the decision of this ease.
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Smith, J.
This appeal arises out of a late-filed claim for compensation made by the widow and children of a worker who suffered a heart attack on the job and died immediately thereafter. The claim was filed with the workmen’s compensation department on June 4, 1963, although the death upon which the claim was based occurred some seven years earlier, that is, July 2, 1956. The hearing referee granted defendant’s motion to dismiss on grounds that the widow’s claim was barred by a six-year period of limitation derived from a prior decision of this Court. The appeal board reversed the referee and we granted leave to appeal.
The essential facts are that the deceased workman was, at the time he was fatally stricken, lifting and stacking copper ingots weighing approximately 65 pounds each. The day was warm and the job pace was steady if not slightly accelerated. Suddenly, the deceased fell to the floor in faint. He never regained consciousness and was declared dead on arrival at the hospital. The medical diagnosis was that he died of coronary thrombosis.
The testimony showed that about a week earlier, on June 26, 1956, the deceased, Mr. Martin, had gone to his physician’s office for examination, complaining that he was “short-winded” and “couldn’t breathe.” Upon questioning, the doctor elicited that Mr. Martin also had “pain in his chest.” The doctor concluded that Martin had a dilated heart and sent him to a hospital for other tests designed to rule out other ailments associated with chest pains. This was' accomplished, and the doctor then diagnosed his condition as arteriosclerotic heart disease. The doctor says that he advised Martin against returning to work but Martin’s reply was that he could not afford to take time off from work because he had a family to support. He was, thereupon, discharged from the hospital by his physician. He returned to work. On the day of his death, about a week later, he was scheduled to return to the physician’s office for a review of the results of various medical tests. His appointment had been set for the late afternoon of July 2d, but he died on the job in the middle of the day.
After Mr. Martin’s death, other events transpired which are significant to this review. On the day of Martin’s death, a company supervisor filed a report with defendant company which summarized the facts surrounding the death. The report concluded that the death of Martin was “not an industrial accident.” However, on the following day a union committeeman informed defendant company that he was “requesting an investigation into the death of Ivan Martin on the assumption that the condition causing death did not exist at the time of hire and the cause of death may be industrial in origin.” Despite this obvious difference of opinion between management and the union as to the cause of Martin’s death, defendant company never notified the workmen’s compensation department of the death whose cause was in dispute.
The appeal board found and concluded as follows:
1. That in view of substantial changes in the workmen’s compensation law since this Court’s decision in Hajduk v. Revere Copper & Brass, Inc. (1934), 268 Mich 220, which invoked, by analogy, a six-year limitational period on the filing of claims, the Hajduk decision should not be followed.
2. That the proofs (taken by the hearing referee) “compel the conclusion that the late Mr. Martin came to his death from a coronary seizure precipitated by the work being done by him at the time.” (Emphasis supplied.)
3. That defendant employer was “put on notice at once” that Martin “had sustained a fatal compensable injury” and that, therefore, the employer was obligated “under rule 3” of the workmen’s compensation department to notify the department within 14 days after notice or knowledge of the injury or death.
4. That failure to notify the department tolled the running of the six-year limitation period.
5. That compensation payments should not, however, be computed from the date of death, July 2, 1956, but from June 5, 1957, “being six years pre vious to the date of filing of the petition [claim]”, citing Sweet v. Eddy Paper Co., 303 Mich 492.
Defendant employer appeals from the decision of the appeal board and plaintiff cross-appeals only from that part of the decision which limits compensation to six years back from the date the claim was filed in 1963.
Defendant argnes on appeal first that the claim is barred by a six-year limitation imposed by the decision in Hajduk v. Revere Copper & Brass, Inc., supra. ' The second argument is that rule 3 of the workmen’s compensation department is not applicable to the facts in this case. Plaintiff argues the contrary and adds, by way of cross-appeal, that the appeal board erred in limiting compensation to a period six years prior to the date of filing of the claim.
The defendant-employer was required to notify the workmen’s compensation department of the death where its cause was in dispute. The mandate is contained in department Rule III (sometimes referred to as rule 3) which was adopted pursuant to statutory authority. The rule in effect at the time of Martin’s death was adopted in accordance with the authority of PA 1947, No 357, and became effective in October 1947 (1954 AC, §R 408.3):
• “Insurance carriers and self-insured employers must notify the commission on form 107 on or before the 14th day after the employer has notice or knowledge of the alleged injury or death in all cases where the right of the injured or dependent to compensation is disputed. If subsequently compensation is paid, report same on form 101.” (Emphasis supplied.)
Here, unquestionably, under the circumstances presented, where the union committeeman requested an investigation of Martin’s death on the assumption that it was work-connected and the company’s supervisor was of contrary opinion, the cause was in dispute, and, therefore, the employer was required by Rule 3 to notify the department. We are in agreement with the appeal board that “The self-evident purpose of rule 3, directing insurance carriers and self-insured employers to notify the department within 14 days after receiving notice of injury that the right of the injured or dependent to compensation is disputed, is to enable the department to advise the employee or dependent of the fact that the employer has denied statutory liability and also to inform said party of his/her right to have a hearing to determine the issue of liability.”
The sanction for failure to notify the department of such injury or death is provided in the act itself. The workmen’s compensation law, section 15, part 2, requires “That in all cases in which the employer has been given notice of the happening of the injury, or has notice or knowledge of the happening of said accident within 3 months after the happening of the same, and fails, neglects or refuses to report said injury to the compensation commission 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 either said employer or his insurer, until a report of said injury shall have been filed with the compensation commission.” CL 1948, § 412.15 (Stat Ann 1960 Rev § 17.165). As applied to the facts in this case, we construe the failure to notify the department as required by rule 3 adopted pursuant to statutory authority, as tolling the statute of limitations contained in the act itself. This, of course, leads directly to mention of Hajduk v. Revere Cop per & Brass, Inc., supra, which judicially imposed, by analogy, a six-year limitation period on claims, over and above limitations contained in the act.
In Eajduk, although the employee had given timely notice to his employer of his injury, the employer failed to report the injury to the workmen’s compensation department’s predecessor agency. Some 10 years after the injury, in 1933, the employee filed his claim and this Court on review invoked a six-year period of limitation barring the claim. However, in the recent decision of this Court in Autio v. Proksch Construction Company, 377 Mich 517, the Hajduk Case was overruled. Autio overruled Hajduk and cases relying thereupon (pp 526, 527) “insofar as they stand for the proposition that compensation claims not otherwise barred by the provisions of our workmen’s compensation law are barred if not filed within six years of the date of injury or disablement or for the proposition that benefits which otherwise would have been payable had earlier claim been made are barred to the extent the benefits are for periods of disablement prior to six years from the date claim therefor was filed.”
By proper application of Autio in this ease, it is clear that Mrs. Martin was not barred from filing the claim. To restate, defendant employer had a duty to notify the department of the death of which it had knowledge. Failure to notify tolls the statute of limitation contained in the act. The statute remains tolled until notification is given. There is no claim here that notification was ever given the department. Therefore, the statute was still tolled when the claim herein was filed, there being no judicially imposed six-year limitation by retrospective overrulement of Hajduk in Autio. Generally, overruling a decision is retrospective and such construction is followed unless it would impair the ob- • ligation of contract or affect vested rights. Donohue v. Russell, 264 Mich 217, Metzen v. Department of Revenue, 310 Mich 622, Gentzler v. Constantine Village Clerk, 320 Mich 394, Park v. Employment Security Commission, 355 Mich 103.
Having thus decided that the claim in this case was timely filed, the question then remains as to whether Mr. Martin’s death was shown to he compensable. The appeal board found, as a fact, that Martin “came to his death from a coronary seizure precipitated by the work being done by him at the time.” It needs no citation that such finding, in the absence of fraud, is conclusive.
The appeal board concluded therefrom, citing Sheppard v. Michigan National Bank, 348 Mich 577, and Coombe v. Penegor, 348 Mich 635, that the deceased “sustained an injury [fatal] arising out of and in the course of his employment on July 2, 1956.” But, says defendant-appellant, Sheppard and Coombe are not applicable because these cases were decided in June, 1957, whereas Mr. Martin’s death occurred about a year earlier, in July, 1956. In Sheppard, although the injury occurred in 1953, and the case was submitted to this Court on June 13, 1956, it is correct that decision was not reached until June, 1957, apparently due to the gravity of the matter in which there were sharp differences of opinion. In any event, the decisions in Sheppard and Coombe were applicable to the instant case, based upon the principle of retrospectivity to which citation has already been made.
Defendant herein suggests the application of a pre-Sheppard test which inferentially would encompass the now-discredited “fortuitous event” definition of accident. Defendant says, in connection therewith, that “The record in this case is barren of any facts surrounding the employee’s death, in-
dicating that there was anything accidental about an ‘injury’ or that anything occurred other than his usual routine employment.” This is the entire argument on the point and is not persuasive. Although Sheppard and Coombe were sharply divided with respect to the reasons advanced by various participating justices, the results were not in doubt. The vote in both cases was 5-2 in favor of compensation. One justice did not participate. In Sheppard, an office’-machine operator who suffered a back injury as she took a 25-pound tray of cards from a file was held to have been properly awarded compensation. In Coombe, a logger who suffered a brain hemorrhage while tightening a hinder chain around a load of logs was held entitled to compensation. In both Sheppard and Coombe, the injuries were found to have arisen out of and in the course of employment. In the instant case, we think the situation is substantially comparable, hence there is no barrier, as a matter of law, to plaintiff’s recovery.
.Finally, on cross-appeal, plaintiff objects to the appeal board order limiting compensation payments to six years prior to the date of the claim. This point is clearly covered in Autio in the quotation from the Autio opinion cited above. Eajduh and cases relying thereupon which stand for the proposition, among other things (p 527), “that benefits which otherwise would have been payable had earlier claim been made are barred to the extent the benefits are for periods of disablement prior to six years from the date claim therefor was filed” were overruled by Autio. To the extent that Sweet v. Eddy Paper Corp. (1942), 303 Mich 492, relied upon by the appeal board, was thus in conflict with Autio, it was overruled. Applied here, it means that the appeal board was in error in so limiting compensation benefits and, therefore, as to that portion of the order it is reversed. Otherwise, the order is affirmed. Costs to appellee.
T. M. Kavanagh, C. J., and Souris, O’Hara, and Adams, JJ., concurred with Smith, J.
Rule 3 whieh was in. effect when Ivan Martin died on the job is the antecedent of present rule, 1959 AACS, § R 408.33.
See CL 1948, § 413.12 (Stat Ann 1960 Rev § 17.186).—Reporter. | [
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North, J.
This is an appeal by the employer and the carrier of its compensation risk from an award of compensation to plaintiff based upon a finding that plaintiff suffered a compensable injury under the occupational disease provisions of the Michigan workmen’s compensation act. Plaintiff’s injury consists of a right inguinal hernia caused by strains incident to his employment. Appellants present two questions.
1. “Whether or not plaintiff gave prompt notice of the alleged hernia within the time allowed by Act No. 10, pt. 7, § 1 (c), Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937, and' amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 8485-1, Stat. Ann. 1944 Cum. Supp. § 17.220) ?”
As to promptness of notice, tbe following facts are pertinent. Plaintiff, who was in the employ of defendant motor company from March 19, 1943, to May 3, 1944, was engaged in operating machines. In March, 1944, plaintiff -was “loaned” or transferred to another department of thé employer than that where he had been working. This new employment required plaintiff in operating his machine to move a fixture weighing 150 pounds at least four times on each piece of stock on which he was doing drill work. Plaintiff .experienced pain in the region of his right groin a few hours after he began this new and heavier type of work. After so working “one night and a half,” plaintiff went to the first aid department. Prom there he was taken to and examined by the motor company’s physician, Dr. James A. Smith. Dr. Smith testified plaintiff complained of pain along the “adductor muscles in the right side. These are the muscles in the leg.” No hernia was found on this examination. The doctor’s report delivered by plaintiff to his foreman stated that plaintiff “was too light for the work.” Thereupon plaintiff was returned to the department where he had formerly worked; but, as plaintiff testified, he was put back on heavy work. He quit his employment May 3, 1944. He testified he quit:
“Because this pain was getting worse and worse all the time and I couldn’t raise the stock up and put it in the mill from the right side. It (the machine) was Y shape. . I couldn’t put this stock forward on it at all. ’ ’
The department found that plaintiff was required to do heavy work after he was returned from the department to which he had been loaned. The record shows he was required to take 40- to 50-pound stock out of a box, put it first through one machine, then through a second machine, and finally to pile the finished product in rows of five pieces high. Prior to plaintiff]s having the heavier work in the department to which he was transferred in March, 1944, he had not had a hernia, nor had he experienced pain in his right groin. He noticed a small lump in his groin about two weeks after the examination by Dr. Smith. Plaintiff testified he did not know “it was a hernia when you (he) first had that pain down there.” But four or five days after he quit work, and as soon as he could make an appointment, plaintiff was examined by his family physician and was told he had a hernia. This was May 7 or 8, 1944; and was the first plaintiff actually knew of his hernia condition. Plaintiff’s application for adjustment of compensation, dated May 8,1944, was filed with the department of labor and industry May 12, 1944. The department mailed to the employer a duplicate of plaintiff’s application on June 6, 1944. It was received the following day.
Under the facts disclosed by this record, appellants’ first question must be answered in the affirmative. Plaintiff’s claim for adjustment of compensation and its receipt by his employer stating that he had suffered a hernia was sufficiently prompt notice to be within the requirements of the statute. Act No. 10, pt. 7, § 1 (c), Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937, and amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 8485-1, Stat. Ann. .1944 Cum. Supp. §17.220). Because it differs materially in its factual aspect, the instant case is not controlled by Starkweather v. Weidman Lumber Co., 270 Mich. 355, or Caufield v. Ford Motor Co., 310 Mich. 555.
2. The second question presented by appellants’ brief reads:
“Whether or not plaintiff suffered a hernia or personal injury arising out of and in the cqurse of his employment within the meaning and intent of 2 Comp. Laws 1929, § 8417, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 8417, Stat. Ann. 1944 Cum. Supp. § 17.151), or Act No. 10, pt. 7, §1 (c), Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937, and amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 8485-1, Stat. Ann. 1944 Cum. Supp. § 17.220), for which the Standard Accident Insurance Company should be held liable?”
At the outset it may be noted plaintiff does not claim compensation under the provisions of 2 Comp. Laws 1929, § 8417, as amended by Act No. 245, Pub. Acts 1943, above cited. Instead, plaintiff’s claim is solely under the occupational disease provisions of the compensation law. Appellants’ contention relative to this second phase of the appeal is stated in their brief as follows:
“Defendant contends that the conclusion of the department of labor and industry is an error of law in finding that plaintiff suffered a hernia for which the Standard Accident Insurance Company should be held liable. The record is devoid of any testimony which would support a finding that plaintiff suffered a hernia, clearly recent in origin, resulting from a strain arising out of and in the course of the employment and promptly reported to the employer while the Standard Accident Insurance Company was on the risk from the first day of May to the time the plaintiff left the employment of the Graham Paige Company May 3, 1944. * * *
‘ ‘ The defendant contends an award should not be entered against the Standard Accident Insurance Company without evidence to support it.”
We are not in accord with the contention that the record is devoid of testimony tending to prove plaintiff suffered a hernia of recent origin resulting from strain arising out of and in the course of his employment. Instead, there is abundant evidence in the record to support the conclusion contrary to appellants ’ contention, as was found by the department. And, as above noted, the record discloses prompt notice to the employer within statutory requirements, and the department so held. We quote the following from the department’s finding:
“We find that plaintiff’s right inguinal hernia was not caused by a single strain occurring in March, 1944. We find that the hernia was caused by a series of strains which arose out of and in the course of his employment. We further find the date of the injury to be May 3, 1944, the last day of work in the employment in which the plaintiff was last subjected to the conditions causing the hernia, in accordance with section 1 of part 2 of the compensation act as amended. ’ ’
Further it must be held that at the time plaintiff became disabled the Standard Accident Insurance Company was the insurer on this risk. Prior to May 1, 1944, the motor company’s compensation risk was carried by the Hartford Accident & Indemnity Company; but on June 2, 1944, that company filed notice of cancellation of its policy as of May 1, 1944. In the meantime, on April 24, 1944, the Standard Accident Insurance Company had filed with the department notice of its having insured this risk as of May 1, 1944. As of that date the risk was with the Standard Accident Insurance Company. See Gratopp v. Carde Stamping & Tool Co., 216 Mich. 355; Zakrzewski v. American Box Board Co., 256 Mich. 26. Pertinent to this phase of the instant case the department found, as above noted, that the date of plaintiff’s injury was May 3, 1944, citing the applicable statutory provision (2 Comp. Laws 1929, § 8417, as amended by Act No. 245, Pub. Acts 1943 [Comp. Laws Supp. 1943, § 8417, Stat. Ann. 1944 Cum. Supp. § 17.151]), which reads:
“The term ‘time of injury’ or ‘date of injury’ as used in this act shall in the case of a disease or in the case of an injury not attributable to a single event be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death.”
It is' also provided in the compensation act (Act No. 10, pt. 7, §7, Pub. Acts 1912 [1st Ex. Sess.], as added by Act No. 61, Pub. Acts 1937 [Comp. Laws Supp. 1940, §8485-7, Stat. Ann. 1944 Cum. Supp. §17.226]) that:
“For the purposes of this part (7) the date of disablement shall be such date as the board may determine on the hearing of the claim.”
Liability does not attach as of the date of the strain, but as of the date of disablement. Gauss v. Hewitt Metals Corp., 293 Mich. 505.
Under the facts of the instant case and the law applicable thereto, the department reached the correct conclusion. The award is affirmed, with costs to plaintiff.
Starr, C. J., and Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case.
The board here referred to was the industrial accident board whose powers and duties were transferred to the department of labor and industry. The board has been abolished. See 2 Comp. Laws 1929, §8312 (Stat. Ann. §17.3). — Reporter. | [
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Starr, C. J.
These parties were married in Wayne county in September, 1941. He was employed as a maintenance man and she as a waitress in a Detroit hotel. A son was born to them in July, 1942, and they separated in March, 1943.
In September, 1943, plaintiff filed bill of complaint in Chippewa county, where his parents resided1. . He charged defendant with extreme and repeated cruelty and ásked for an absolute divorce and custody of their infant son. Defendant filed answer and cross bill, denying the charges against her and alleging that plaintiff was guilty of extreme and repeated cruelty. She asked for a divorce and custody of the child. The case was tried, and on May 5, 1944, the court entered a decree granting plaintiff a divorce and awarding custody of the child to his parents. Defendant appeals, and, this being a chancery case, we review de novo.
The only question requiring determination is whether or not the trial court had jurisdiction to grant the divorce decree in question. Plaintiff alleged, and the record shows, that he had resided in this State for one year immediately preceding the filing of his bill, as required by 3 Comp. Laws 1929,- § 12731, as amended by Act No. 2, Pub. Acts 1941 (Comp. Laws Supp. 1943, §12731, Stat. Ann. 1944 Cum. Supp. §25.89).
However, there was no proof that either party was a resident of Chippewa county, as required by 3 Comp. Laws 1929, §12728 (Stat. Arm, §25.86), which provides in part:
“A divorce from the bonds of matrimony may be decreed by the circuit court of the county where the parties or one of them, reside.”
Following their marriage the parties had established and maintained a home in Detroit, and after their separation each of them continued to reside in Detroit. Defendant said she intended to make her home there with her brother. Plaintiff admitted that he returned to Chippewa county “merely for this suit.” He testified:
‘ ‘ I was working as a maintenance- engineer at the Fort Shelby (hotel in Detroit). * * *
“ Q. You came up here merely for this suit?
“A. Yes, sir.
“Q. And you expect to go back there (Detroit) to work?
“A. Yes, sir. * * *
“After that (September 1,1943) I came up north and visited my parents * * * a'nd my sister in the Sault for some time and when I went back to Detroit I went to work * * * at the Fort Shelby where I am still employed.”
We note that plaintiff began the present suit in September, 1943, during the time he was visiting his parents and sister in Chippewa county. The ^question of jurisdiction was not raised in the trial court, but it is raised and should be determined on this appeal. In re Estate of Fraser, 288 Mich. 392, we said:
“Courts are bound to. take notice of the limits of their authority, and a court may, and should, on its own motion, though the question is not raised by the pleadings or by counsel, recognize its lack of jurisdiction and act accordingly by staying proceedings, dismissing the action, or otherwise disposing thereof, at any stage of the proceeding.”
“The question of jurisdiction may be properly presented to and passed upon by a court at any stage of pending proceedings.” In re Cody’s Estate, 293 Mich. 697.
See, also, Kerwin v. Rettie, 294 Mich. 308; Township of Warren v. Raymond, 291 Mich. 426; Warner v. Noble, 286 Mich. 654.
The record clearly establishes that neither party was a resident of Chippewa county at the time the present suit was begun or when the decree was entered. Wright v. Genesee Circuit Judge, 117 Mich. 244; Reed v. Reed, 52 Mich. 117 (50 Am. Rep. 247). Therefore, under section 12728 quoted above, the circuit court of that county was without jurisdiction to grant the decree in question. The jurisdiction of the court was statutory (Winter v. Winter, 276 Mich. 665; Herp v. Herp, 254 Mich. 33; Haines v. Haines, 35 Mich. 138), and jurisdiction could not be conferred by consent of the parties. Mondou v. Lincoln Mutual Casualty Co., 283 Mich. 353; Nichols v. Houghton Circuit Judge, 185 Mich. 654 (Ann. Cas. 1917 D, 100). Failure to allege residence in the county could be cured by amendment, but the fact of residence must be proved. In the case of People v. McCaffrey, 75 Mich. 115, 125, 126, we said:
“Failure to allege his residence within that particular county was not a jurisdictional defect. * * *
“The omission to allege it may be cured1 by amendment, though this fact (of residence) must be made to appear in the proofs in order to give relief.”
In 3 Searl, Michigan Pleading & Practice, p. 333, § 1334, it is stated:
“Bills for divorce must be filed in the county where one of the parties resides.”
See, also, Titus v. Chippewa Circuit Judge, 168 Mich. 507.
In view of our conclusion that the trial court was without jurisdiction to grant the decree in question, it is unnecessary to discuss the testimony relative to the respective allegations of cruelty.
The decree entered by the trial court is reversed and set aside. For the reasons herein stated, a decree may be entered in this court dismissing plaintiff’s bill of complaint and defendant’s cross bill. Defendant may recover costs of this court.
North, Wiest, Btjtzel, Bttshnell, Sharpe, Boyles, and Retd, JJ., concurred. | [
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Reid, J.
Plaintiff’s bill of complaint asks for specific performance of an option to purchase real estate from the defendant. From a decree in favor of the defendant, the State appeals.
On or about February 4, 1943, the defendant signed an option for the sale by defendant to the State of real estate, which option was acknowledged before a notary on the day it bears date and is as follows:
‘ ‘ Option por Purchase op Land
‘ ‘ This contract,- made this ... 4th ... day of ... February ... A. D. 19 .. 43 .., by and between ... Catherine F. Owen, R. No. 2, Mason, Mich. ... party ... of the first part, and ... State of Michigan ... party ... of the second part.
“Witnesseth, that the said party ... of the first part, in consideration of the sum of ... One and 00/100 ■... dollars to ... her ... in hand paid by the said party ... 'of the second part, does ... hereby agree that ... she ... shall and will at any time within ... ninety days ;.. from the date hereof, at the written request of the said party ... of the second part, execute and deliver to ... it ..., or to any person or persons as ... it ... the said party ... of the second part shall direct in writing, a good and sufficient warranty deed of the following described land, situated in ... Ingham township ..., county of Ingham ... State of Michigan, to-wit: ... South one-half of northwest one-quarter (S Vz of NW Vi) section thirty-three (33), town two north, range one east (T2N, R1E) ... for the sum of ... Twelve Hundred ($1,200.00) ... dollars payable as follows:
“Cash upon completion of the following requirements and conditions:
“(1) Approval of the proposal to purchase by Michigan conservation commission;
“(2) Submission, by the party of the. first part of an abstract of title, tax history and warranty deed. Party of the first part agrees to pay all taxes including those assessed at the time title is approved .by the attorney general;
“ (3) Approval of title by the attorney general;
. “.(4) Belease of funds by the State administrative board.
“And the said party ... of the first part does ... hereby further agree that ... she ... shall and will not within ... ninety days ... from the date hereof, sell, convey, mortgage, or otherwise encumber the said land, or any part thereof, or do, or permit to be done, any act or deed to diminish or encumber the title to said land.
“It is agreed by and between the parties hereto, that if the said party ... of the second part at the expiration of the aforesaid limited time shall have declined or omitted to make application for the purchase of said land at the price aforesaid, then this instrument shall be void, and the above sum of ... One and 00/100 ... Dollars so paid as aforesaid ... shall be forfeited by the said' party . •.. of the second part, and the said party ... of the first part shall have the right to retain the same, as and for liquidated damages, and the said party ... of the second part shall relinquish to said party ... of the first part all claim to the said land, either in law or equity, and, also all claim to the said sum of ... One and 00/100 ... Dollars, so paid as aforesaid, and no claim of the said party of the second part under this contract shall then be effectual.
“In witness whereof, the said part ... ha ... hereunto set ... hand and seal ... the day and year first above written.
“In presence of Catherine P. Owen [Seal]
Melvin L. Moone .'.................[Seal]
Aletha Dalman ..................[Seal]”
The defendant admits signing the option which was not, however, signed by the State. The sum of $1 mentioned in the option as a consideration thereof was not in fact paid to the defendant. The plaintiff, the State, admits that the writing is an option and not a land contract, except that the State claims that within the 90 days it accepted the continuing offer before its withdrawal and that therefore the defendant became bound to convey.
The plaintiff on February 11, 1943, wrote a letter to defendant requesting that an abstract which the State had borrowed from the National Farm Loan Association be brought down to date and that defendant furnish a full tax history and plaintiff further informed defendant, that if the attorney general’s opinion was favorable, the department would proceed to prepare a voucher and request preparation of a warrant in payment for the land, but if the title was not approved the papers would be returned to defendant. The State through its conservation department, which was the active agency in endeavoring to procure the title to these lands for the State, on April 2d wrote the defendant as follows:
April 2, 1943
‘Mrs. Catherine Owen
Route No. 2
Mason, Michigan
“Dear Mrs. Owen:
“Re: Dansville Project M 18 L — Pittman-Robertson Act — Tract No. 8 (part), S V2 NW %, Sec. 33, T 2 N, R 1 E
“This is to advise you that we are in receipt of the abstract of title, abstract of taxes, tax receipt for 1935 and prior years, tax receipt for 1942. These title papers are being transmitted to the attorney general and if he finds your title marketable we will prepare a warranty deed and send to you for execution. A voucher will also be prepared to cover the purchase price and the case will be completed as rapidly as possible.
“Very truly,
“F. P. Struhsaker,
Lands Division.”
On April 5, 1943, defendant wrote plaintiff a letter as follows:
R 2, Box 71, Mason, Mich.
April 5, 1943
“Mr. F. P. Struhsaker
Lands Division, Dept, of Conservation
Lansing
“Dear Sir:
“When you prepare the warranty deed for me to sign covering the parcel, S % of NW Sec. 33, T 2 N, R 1 E, please state: subject to lease until Mar. 1, 1943, with the exceptions that none of the land is to be plowed up and hunting permitted during the pheasant season.
“This is what Mr. Moone agreed to after con-suiting Mr. Black.
“I also sent the tax history showing all taxes paid up to date which you overlooked in mentioning the paper sent.
“Yours very truly,
“Mrs. Catherine Owen.”
On or about April 9,1943, the department of conservation wrote defendant a letter as follows:
April 9, 1943
“Mrs. Catherine F. Owen
R. F. D. No. 2
Mason, Michigan
11 Dear Mrs. Owen:
“Re: Dansville Area Tract No. 8 — part
“We have your letter of April 5th in which you suggest that the reservation to pasture your south 80 acres be placed in the deed when it is forwarded to you. It would not be feasible to encumber a deed with such a minor reservation as this and it would be preferable to cover the same by a written agreement with you.
‘‘ This letter will be your authority to use the land in question, described as the S % of NW % of Sec. 33, T 2 N, E 1 E, for pasture purposes during the current 1943 season. The granting of this privilege is given with the understanding that no land will be plowed or timber cut on the tract during this time and that this department reserves the right to post the boundaries and reserve the hunting •rights for the public during the open hunting season without responsibility of damage to any livestock on the tract during this time. It is believed that this agreement should be satisfactory to you as the purchase was agreed upon without any mention of such reservation to you.
“We are pleased to advise you that your title has been approved by the attorney general and we have now ordered a check drawn in payment of the purchase price.
“You will find enclosed a deed prepared for execution by you and kindly ask that you return same promptly. As soon as the case is closed, we will return the abstract of title to the National Farm Loan office as agreed.
“Very truly yours,
“F. P. Struhsaker,
Lands Division.
“M. L. Moone,
Land Acquisition.”
The cash had not on April 9th been released by the State administrative board, which was one prerequisite to final acceptance of the offer.
It will further be observed that what this letter of April 9th proposed was not a compliance with what the defendant wrote on April 5th. She desired the change in terms of the transaction to be evidenced in a warranty deed. The department proposed that such terms be omitted from the deed and that its letter would be her authority. Her request was that the deed recite: subject to lease until March 1, 1943. The department’s. letter of April 9th suggested reservation of the use of the land in question for pasture purposes during the current 1943 season. The apparent mistake in her letter reciting, “until March 1,1943,” seems to have been correctly understood by Mr. Struhsaker and Mr. Moone to mean March 1, 1944. It would seem that the requirement in her letter that it would be subject to lease until March 1st, with the year understood to be 1944, would give her tenant the right to take wood from the premises because he was renting some adjacent land and needed the wood, called buzz wood, for his use. The department’s ex- • pressed belief -that their proposal should be satisfactory to defendant was not concurred in by the defendant. The testimony is barren of any showing either by the letter of April 9, 1943, from the department to defendant or in any conversation or writing whatever that the parties after April 5, 1943, agreed upon any terms of sale.
Defendant’s letter of April 5th was received by the department, the agency operating in the transaction on behalf of the State, before any date on which the plaintiff claims an acceptance by the plaintiff of the contract. Subsequent correspondence occurred and an interview was had by defendant with Mr. Moone at his office about .April 16th. At that interview, the defendant verbally renewed her withdrawal of the option. Plaintiff claims that a letter was written to defendant on April 28, 1943, advising defendant that a check for $1,200 was on hand in the lands division office for her and requesting execution and delivery of the deed1. Defendant denies receiving this letter and the trial judge found that she did not receive it. A detailed discussion of the admissibility and effect of testimony about this letter is of no controlling importance in .view of our decision on other grounds.
Plaintiff claims that the terms proposed by defendant in her letter of April 5th are vague and unenforceable. This argument is of nb avail to plaintiff, inasmuch as the letter taken as a whole contains a clear import in'writing that defendant was no longer willing to leave the option stand on its original terms. In order to terminate the option, defendant was not obliged to submit any other terms whatever.
Defendant’s letter of April 5th amounted to a withdrawal .and cancellation of the option in the terms as originally drafted. There was no subsequent agreement of the parties, either oral or written. The State not having accepted the continuing offer before its withdrawal by the letter of April 5th, the State never became entitled to enforce conveyance. Bailey v. Grover, 237 Mich. 548; Olson v. Sash, 217 Mich. 604.
The decree appealed from is affirmed. Costs to defendant.
Starr, C. J., and North, WiUst, Butzel, Bushnell, Sharpe, and Boyles, JJ., concurred. | [
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Butzel, J.
In order to present the issues more fully in the instant case, we find it necessary to refer to some of the pertinent facts. It is, however, impossible to set forth all the details as they appear in a voluminous record and are discussed in 12 briefs. In coming to our conclusions, we have carefully reviewed all of the facts. The answers to many of the questions raised will be found in our discussion of the facts.
On August 20, 1929, suit was brought to foreclose a mortgage for $3,500,000 given January 2, 1926, to the Detroit Trust Company, as trustee, on the Tuller Hotel which was built on slightly more than eight and one-half lots centrally located in the city of Detroit, Michigan. All but 60 feet fronting on West Adams avenue were owned in fee by the mortgagor. The 60 feet, consisting of two half lots, were held by the mortgagor on 99-year leases. The present lessors are the Koch and Longyear estates, each owning 30 feet of the leased property. The Tuller Hotel fronts on West Adams, Park and Bagley avenues.
At the time of the foreclosure sale, there were still $3,300,500 of bonds outstanding. A bondholders’ committee was formed and the property purchased for over $3,000,000 by the trust company as trustee for the bondholders who had deposited their- bonds with the committee which, in turn, issued certificates of deposit to the depositors. The bonds, so deposited, were applied toward the payment of the purchase price at the foreclosure sale. The trust company advanced $42,719.32 to pay non-depositing .bondholders, and by agreement was given a prior lien for this amount. The trust company also owned in its own right a large amount of bonds, which it deposited. The bondholders’ committee consisted of Fred H. Mason and Harry L. Stanton and others. Defendants Mason and Stanton, only remaining members of the committee, were made defendants in all subsequent court proceedings. Mr. Stanton is an officer of the Detroit Trust Company.
Upon purchasing the hotel property the trust company issued a declaration of trust to which the bondholders’ committee duly assented. It provided that all funds advanced by the trust company were to be a prior charge on the trust estate and superior to any rights or interests of the cestuis. Many bondholders sold their certificates. The claim was made at the hearing of the instant suit that some of those who acquired certificates in recent years purchased them at two cents on the dollar.
On June 16, 1939, the trust company filed a bill of complaint making the bondholders’ committee and the certificate owners defendants. It alleged that there was due it for advances the' sum of $384,639.86, which included the amount it had paid to nondepositing bondholders at the time of the sale. It further alleged that the property held in fee had been sold and bid in by the city of Detroit for various taxes, aggregating $132,825.91, and that there were other unpaid taxes against both the property held in fee and the leasehold in the amount of $565,953.59; that notwithstanding the fact that the hotel was managed by one of plaintiff’s employees, no part of his salary had been repaid to plaintiff; that during the many years plaintiff had charge of the trust it had not received any compensation for services rendered either in the operation of the hotel or in the management of the trust; that the revenue from the hotel had been insufficient to maintain all portions thereof in usable condition, so that sections of it had to be closed at various times; that the results of the operation of the hotel during approximately 10 years had made-it apparent that the tax obligations could not be discharged or any of the advances made by plaintiff repaid except by sale of the property to a purchaser who could refinance the charges against the property as well as rehabilitate it. It further stated that the trust company was in imminent danger of losing the entire sum of $384,639.86, which it had advanced, unless afforded the aid and protection of a court of equity. It therefore prayed that it be given the right and authority to sell the property subject only to making a report of any proposed sale and obtaining the approval of the court in advance of the closing thereof. A decree was filed October 31, 1940, granting plaintiff the relief prayed for but reserving jurisdiction in the court.
Some time thereafter the title to the property held in fee became vested in the State of Michigan on tax sale. For a time plaintiff leased the property from the State. The only remaining asset, with the exception • of the personal property of the hotel, some accounts receivable, cash and the- leaseholds, consisted of the preferential right to match any bid for- the property when sold at the scavenger sale. This right was the main asset of the trust estate. The right could be transferred by assignment or deed. Act No. 155, § 5a, Pub. Acts 1937, as added by Act No. 363, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 3723-5a, Stat. Ann. Í943 Cum. Supp. § 7.955 [1]). • The sum of $351,962.25 was required to bid in the property. Plaintiff did not care to advance such amount to an unsuccessful and impoverished trust, nor to obligate itself personally for a very large amount on a land contract to repurchase the property fr.om the State. Without asking or securing the consent of the court, but with the approval of the bondholders ’ committee, the Detroit Grand Park Corporation (hereafter called the Grand Park) was formed with a.capital of 50,000 shares of common stock having a par value of $1 per share. Mr. Stanton, an officer of the plaintiff, and one of the two remaining members of the bondholders’ committee, became president of the Grand Park. All of the stock was issued to the bondholders ’ committee, but immediately pledged to plaintiff as security for the amounts due it. The full and exclusive voting rights were also assigned to plaintiff. The personal property of the hotel and the right to match the highest-bid at the scavenger sale were transferred to Grand Park. A chattel mortgage on the personal property was s given plaintiff. Grand Park purchased the property from the State on land contract. Ten per cent, of the amount of the bid was paid to the State and the balance was made payable over a period1 of 10 years. On March 1, 1943, the amount had been reduced by monthly payments to $284,135.60.
Plaintiff is criticized for not having sought the consent of the court and the certificate holders before transferring the right to bid to the $50,000 corporation. Plaintiff in filing its subsequent petition did not regard the court as being divested of the subject matter, although the outward form of the corpus of the trust had changed. Fault is also found because the certificate holders had no opportunity to be heard, and that possibly some method might have been devised other than turning the property over to a $50,000 corporation. It is contended that had a successor trustee been appointed or a corporation with a much larger capital been formed, and should the hotel thereafter be operated on a profitable basis, very serious income tax problems, including possibly that of payment of a very large amount for excess profit taxes, might have been avoided. On the other hand, the attorneys for the bondholders’ committee now claim that the formation of Grand Park with the consent of the bondholders’ committee ousted the court of all further jurisdiction. Plaintiff did not believe it did when it filed its subsequent petition in the chancery court, nor did the bondholders’ committee when it answered the petition and asked that it be granted. We agree with plaintiff that the court retained jurisdiction. Nor can •we criticize the plaintiff for forming a corporation with a capital of $50,000. The past history of the hotel, its almost constant and continuing losses of large amounts, the considerable amount of money, time and effort plaintiff expended without any repayment, and the large prior liens against the property indicated beyond any question that there was some ' doubt whether any equity would be saved for the certifi‘cate holders, or whether plaintiff could recover the amounts it had' advanced. With the large amount of fees and taxes that a corporation with a large capital would have had to pay on its organization and subsequent operation, plaintiff might have been subjected1 to criticism had the capital been larger, even though the' original investment of the bondholders would have justified a larger capitalization.
On April 1,1943, the Detroit Trust Company filed a petition for approval and authorization for the reorganization and disposition of Tuller Hotel property. It set forth the former court proceedings and the final decree of the court, and alleged that all the holders of certificates of deposit were and1 still are parties defendant in the case, and that the court had reserved jurisdiction to approve any sale or disposition of the property. It recited the assignment of the bidding right to Grand Park and stated that the hopeless insolvency of the trust prevented1 plaintiff from assuming any liability to the State on the land contracts for the purchase price of the property at the scavenger sale. It further stated that the Koch and Longyear leaseholds were being maintained on a rental basis of $14,000 a year plus taxes on these parcels; that the claims against the property consisted of a balance due the State of Michigan on land contracts as of March 1, 1943, amounting to $284,135.60, and the sums due the Detroit Trust Company for advances to the trust aggregating $384,639.86; that the Koch and Longyear estates’ rentals, accruing under leaseholds over a period of years and in dispute, were the sum of $94,909.39; and that also the sum of $9,000 was due the bondholders’ committee, their counsel and the Chicago depositary. This made a. total of $798,945.24. The petitioner further stated that during the past 10 years of its operation all revenues which might have been available for paying debts had been used for rehabilitation of the property; that in addition to not receiving any compensation for its services or responsibility incurred, it had not received any payment on account nor had interest been charged on the amounts advanced by it.
It further stated that all efforts to obtain new funds had been futile, that the trust company had been willing to subordinate its claims to any new loan and extend the time for payment for the period of the loan, that there was no possibility of creating an equity value for bondholders unless the enumerated claims were paid and new funds obtained for the purpose of rehabilitating the property. It further stated that the continued operation of the hotel under conditions that had previously prevailed and without refinancing to the extent necessary for payment of obligations and necessary for rehabilitation of the property would result only in the sale for the best price available which would be a sum substantially less than the total obligations. Petition was filed on April 1, 1943, when the hotel evidently was no longer losing money, probably due to war conditions, for at the end of the following month the financial statement indicated a profit of $130,245.38 from which it seems to be conceded that a 40 per cent, tax would have to be deducted. The petition further stated that until recently no one had offered to venture an investment of any amount in the property. The Jefferson Standard Life Insurance Company of North Carolina, hereinafter called Jefferson Standard, proposed to invest in the hotel on the ■ condition that the paramount claims against the property could he eliminated. The proposal had been developed1 so as to create a potential equity for the former bondholders. Plaintiff, on condition that the plan be approved, offered to accept $108,000 for its advances amounting to $384,639.86 and for its expenses, and to further waive interest and other compensation for services, and further to cancel certificates of the face value of $186,700 representing what it owned in its individual corporate capacity. The plan proposed by J efferson Standard for the disposition and reorganization of the property was to furnish Grand Park with the sum of $500,000, $470,000 of which the Jefferson Standard would loan on a first mortgage payable in ■15 years with 6 per cent, interest, small amounts to be payable on principal semiannually. The $30,000 additional would be paid into the corporation by Jefferson Standard in return for 60 per cent, of Grand Park’s outstanding capital stock of $50,000, thus leaving 20,000 shares of the par value of $1 each for the certificate owners. Figuring the stock as worth par, this would be a return of approximately 65 cents for every $100 originally invested by the bondholders.
From the $500,000 thus realized, plaintiff would receive the sum of $108,000, and the State of Michigan would be paid the balance due it on the contracts arising out of the scavenger sale. The petition also stated that the Koch and Longyear estates would release their claims of approximately $94,909.39 in consideration of new leases being entered1 into for the term of 18 years at a rental of $18,000 per year plus an additional 12 years at a rental of $16,000 per year. There also would be sufficient left to pay the past-due taxes on the leasehold properties, as well as the sum of $9,000 to members of the bondholders ’ committee, its attorneys and depositaries. It was further proposed to reorganize the Detroit Grand Park Corporation so as to pro-, vide for five directors, two of whom would represent the certificate holders, and also increase the number of shares of common stock to be issued on a 60-40 per cent, basis, so that after the cancellation of the certificates held by plaintiff, 31,138 shares would belong to certificate holders and 46,707 shares to the Jefferson Standard.
Plaintiff, as petitioner, further stated that it did not make any representations as to what had been accomplished or would be accomplished by the proposed plan, but it offered to accept $108,000 in full for the various items hereinbefore set forth in the firm belief that the total sums due it could not be obtained by sale of the property or otherwise and such reductions in the plan proposed afforded the only possible means of creating some equity or potential equity for certificate holders which would have a material value. Plaintiff stated that the plan proposed would leave the property encumbered only by the mortgage of $470,000. It stated that the continued operation of the hotel property under the present financial arrangement was bound to result in a sale of the.property for a sum substantially less than the total obligations. Petitioner further alleged it had been unable to obtain or develop any other plan which afforded the certificate holders the opportunity of salvaging anything. The offer of plaintiff to reduce or waive part of its claim was conditioned1 upon the approval and consummation of the plan which petitioner recommended as being fair and reasonable in view of the circumstances and for the “best interest” of the certificate holders and other parties in interest. Petitioner therefore prayed that the court, in the exercise of the power reserved in the former decree to modify and change the same or to make other or further decree, authorize the carrying out of the plan thus set forth in all “the particulars or as to this court shall seem expedient and for the best interests of all concerned.” Order to show cause was issued.
One group of certificate holders opposed the granting of the petition; another certificate holder proposed a different plan. Messrs. Mason and Stanton, the remaining members of the bondholders’ committee, filed an answer in which they did not claim the court was without power. They expressly stated that they had participated in the formation of the plan and that it offered the holders of certificates of deposit of bonds “the greatest possible interest in a solvent corporation that is obtainable.” They further stated that unless they obtained such shares of stock in such a solvent corporation their interests, and consequently, the interests of holders of certificates of deposit, “are worthless.”
The court after a hearing and the arguments of counsel filed a supplemental decree granting the petition to carry out the Jefferson Standard plan. Very shortly thereafter appellant Skaff, holding a large amount of certificates of deposit, which it is claimed he purchased at two cents on the dollar, filed a motion to set aside the supplemental decree and suggested that efforts be made to secure a mortgage from the R. F. C. Mortgage Corporation on a new application so as possibly to create a greater equity for the certificate holders. At the hearing of the motion, there was considerable difference of opinion as to whether such a loan could be obtained. The court thereupon appointed Henry Meyers, an attorney, as friend of the court to investigate the possibility of obtaining such a loan and to report his findings to the court. The order appointing the friend stated that the court was desirous of obtain ing the best possible solution and was particularly anxious about the interest of certificate holders, and that the court should have a report from an officer of the court. The court ordered all persons before it to cooperate with the friend of the court and furnish him all information necessary in connection with the presentation. Three days later, an order was entered extending the powers of the friend of the court-and instructing him to solicit proposals in writing from all parties for the reorganization or .sale of the property in a manner that would be more beneficial to the bondholders than the one theretofore approved, and that such offers be submitted to the court by the friend with his recommendations. The record shows no objections whatsoever were made to the order appointing a friend of the court, or his active participation thereafter in accordance with the order of the court. He notified parties whom he thought might be interested and as a result a number of other proposals were received, all predicated, however, upon plaintiff accepting the $108,000 as indicated in its proposal, in consideration of an absolute release of all claims and the cancellation of certificates of deposit. Proposals were solicited by the friend of the court and sealed bids were opened at a specified time. All of the proposals were submitted to the court with the recommendation of the friend of the court. We shall discuss the various proposals to the extent we believe necessary in connection with the appeals of the proponents of such offers.
The proposal of one Louis Schostak was deemed the best by the court and an order was made directing its consummation by plaintiff and the necessary defendants.
Early in the proceedings the Jefferson Standard made a new proposal and offered to give the certificate holders the option of taking either their pro rata share of 40 per cent, of the stock of the Grand Park or the sum of $7 for each $100 face value of bonds deposited and represented by the certificates. Jefferson Standard further amended its original plan by offering a mortgage loan of $500,000 at 5 per cent, interest at maturity with serial payments to be made as in their first plan. They later offered to pay $300,000 for the entire 50,000 shares of Grand1 Park stock. After deducting $9,000 miscellaneous fees, there would remain for the 31,138 shares held by certificate holders who would share in the proceeds (the trust company’s share being eliminated) about $9 per share. In addition the certificate holders were given the option to purchase one share of stock for every $100 of the face amount of their certificate at $6 per share. The attorney for the Detroit Trust Company stated that it would accept $108,000 if this latter plan were approved.
The final offer of Louis H. Schostak was to acquire all of the stock of Grand Park by purchasing the 31,138 shares outstanding at a price of $12.30 per share conditioned solely upon the acceptance .of an additional $108,000 by the Detroit Trust Company in return for a waiver of all of its claims, including the cancellation of the $186,700 of certificates owned in its individual corporate capacity. This would enable Schostak to become the owner of the entire outstanding capital stock of Grand Park on purchasing the 31,138 shares. It seems to be conceded that this would net each certificate holder approximately $12 per share for every $100 of bonds represented by the certificate. A holder of $13,000 certificates of deposit, represented also' by the attorney for Schostak, filed a separate petition asking for the approval of the Schostak offer. An order making Grand Park a defendant was entered. The court considered the various proposals, approved the Schostak proposal and ordered the closing of the trust and disposal of the property and the corpus therewith. The Detroit Trust Company was ordered1 to accept $108,000 in accordance with its proposal and to perform the other details necessary to make the transfer effective.
On October 26,1943, the day after the court orally stated that it approved the Schostak offer, plaintiff filed a withdrawal of its commitment to accept $108,000.
An important factor in the Schostak proposal is the fact that it was made on the understanding that Schostak and those whom he represented would he obliged to take their chances in making proper adjustment with the lessors of the two 99-year leases and the settlement of all claims thereunder. Unless some agreement already exists or can be reached, it might become necessary to divide the building and close off that part of the hotel on the leased lots, which part contains the elevators and other necessary apparatus of the hotel. If the building on the leasehold property is separated or is torn down and used as a parking lot, it is claimed1 the leasehold properties would not bring nearly as large an income as is provided for under the revised leases as contained in the original petition of plaintiff. There is some claim on the part of Schostak’s attorney that the holders of the 99-year leasehold are legally bound to accept the new leases as set forth in plaintiff’s petition. It is further claimed that the lessors, if they have not already bound themselves by agreement, might be influenced by other factors including the responsibility of the parties with whom they dealt.
Schostak, as appellee, claims that the Detroit Trust Company in its individual capacity is solely a creditor and when it disposes of its claim, its re sponsibility entirely ceases. Schostak attaches to his brief an agreement between the trust company, Grand Park and the lessors by which it is claimed that any liability as might have existed has become solely that of the Grand Park Corporation. This new agreement is not part of the record and attorneys for plaintiff asked that it not be considered notwithstanding an affidavit of the attorney for Schostak claiming that it was omitted from the record because of a misunderstanding between counsel. It is not part of the record. No motion was made to amend the record and it will not be considered but without prejudice to any rights that any purchaser or his assignee might be able to enforce as owner of all of the stock of Grand Park and to any additional rights the purchaser or his assignee might have upon being subrogated to plaintiff’s rights upon payment of the $108,000. On the other hand, inasmuch as this case is being heard de novo, the decree should be modified so as to provide that the purchaser and his assignees shall indemnify and save harmless the Detroit Trust Company against all claims that might be made against it by the lessors under the 99-year leases if such claims exist. Neither the Koch nor Longyear estates are parties defendant in the instant proceeding. The decree cannot bind them or take away any rights they or the purchaser or his assignee may have. The original and amended propositions of the'Jefferson Standard set forth the fact that satisfactory arrangements had1 been made with the lessors of the 99-year leases. The trust company on disposing of its claims should be protected against any possible claim or liability because of the leases. On the other hand, the. purchaser and his assignee shall be given notice of any claim and shall have full rights to direct the defense against these claims.
It appears from the record that one Charles "W. Morris makes some claim, indefinite in character and amount, for services in connection with the Jefferson Standard proposal. He was drawing the sum of $600 a month for services from the Detroit Grand Park Corporation for a number of years. It developed1 during the hearing, for the first time, that the Jefferson Standard, if its proposal was accepted, had agreed to transfer to Morris 9 per cent, of the capital stock of the Grand Park Corporation. Morris testified that he had a claim of some kind but made no formal presentation of it and from the testimony he failed to establish it. As he was not a party to the proceedings, any decree would not be res judicata as to such claim. It is, however, very significant that when the plaintiff filed'-its original petition for approval and authorization for the reorganization and disposition of the Tuller Hotel property, it set forth existing claims and made no mention whatsoever of any amounts due Morris, thus indicating that if Morris has any claim, it is against the Grand Park.
In the final decree the court reviewed the various propositions and declared that it had jurisdiction of the parties and subject matter at the time the Detroit Trust Company agreed- to accept $10.8,000, that such' proposal was subject to the approval of the court and that the proposal was made for the benefit of the certificate holders so that they might realize something on their certificates. The court further found that the Detroit Trust Company had agreed to accept $108,000 in accordance with the Jefferson Standard proposal, which would provide $9 a share to the holders of certificates, that the Schostak plan would enable the certificate owners to realize substantially more than $9, and that Schostak through his attorney in open court offered to complete the proposed arrangements with the Koch and Long-year estates. It further stated that the trust company having come into court praying for relief, may, in turn, be required to do equity in the premises; that it recognized its obligation to the holders of the certificates of deposit when it filed its first petition for the acceptance of the so-called Jefferson Standard plan, and in which it agreed to accept less than the full amount due it, waived all sums in excess thereof and continued to do so in the various revisions of the plan, thus creating an equity for certificate holders. The court, on the petition of a bondholder, ordered that the Schostak plan, to pay $382,997.40 for 50,000 shares of stock of the Detroit Grand Park Corporation, and the further sum of $108,000 to the Detroit Trust Company for its claims, be accepted as the most advantageous to certificate holders, and that upon making these payments Schostak be subrogated to all the claims of the Detroit Trust Company for advances, et cetera. The order made further provision for the payment of fees of the attorneys for the bondholders’ committee and the sum of $2,000 for Mr. Mason, a member of the bondholders’ committee, Mr. Stanton, the other member of the committee, having made no claim for compensation. It also made provision for payment of the Chicago depositary. It further provided that if the Schostak proposal was not completed and consummated, the Detroit Trust Company be ordered to accept $108,000 out of the corporate funds for payment of its advances, fees for counsel, services, et cetera, and for certificates for bonds amounting to $186,700, which certificates should then be cancelled. It further provided that the fees of Henry Meyers, friend of the court, be determined after hearing and the same be paid from the moneys deposited with the clerk of the court as a charge for the services rendered. It further provided that the friend of the court he appointed and directed to represent the bondholders’ committee if an appeal should be prosecuted, but not exclusive of other legal representatives, and that the friend of the court should mail a letter to all certificate holders setting forth the history of the proceedings. The court reserved jurisdiction to make such further findings and further orders as might be necessary.
The Detroit Trust Company on appeal states that the main question is whether it, as a creditor of a trust of which it is also trustee, can be compelled by court order-to accept $108,000 in full payment of the sum of $384,639.86 due under prior decree of the court and compensation for services for 12 years and for the cancellation of $186,700 of bonds, all without its consent or agreement to do so and against its objection and protest and without any legal or moral consideration for so doing.
The record shows that the hotel was run at a tremendous loss for many years. The friend of the court stated in the oral argument that he had no criticism to make in regard to the trust company’s management. The testimony indicated that the hotel was now being run at a large profit, probably due to war conditions, but it is highly speculative as to whether or not this profit will continue after the war. It is shown that the profit at the present time amounts to possibly $150,000 a year or thereabouts, less, of course, income taxes which are estimated at 40 per cent. However, it is pointed out by the attorney for Schostak that no provision whatsoever is being made for excess profit taxes. The trust company is criticized for incorporation for only $50,000. It is plain that the low capitalization of the Grand Park Corporation might possibly make the company liable for very large excess profit taxes which would leave a net profit of a comparatively small amount. The record does not show that the trust company took the question of excess profits into consideration. The income of the corporation was increasing, particularly during a period prior to the time when plaintiff continued to express its willingness to accept $108,000, if the amended Jefferson Standard plan was adopted. It is difficult to conceive that the Detroit Trust Company filed1 its petition with any donative intent. It stated very frankly that it was satisfied to accept $108,000 so as to create a potential equity for the bondholders, the value of which the attorney for the bondholders admitted was very problematical. Even if there was a gift, and we do not find that there was one, it was solely for the benefit of the bondholders for whom the trust company still was the trustee. The trust company distinctly asked for the approval of its petition or any modification the court might see fit to make. The trust company owed a duty to the bondholders; it stood in a fiduciary relationship; it came into a court of equity for the purpose of bringing the trust to an end and disposing of the property. The court made no modification of the trust company’s proposal in regard to its individual claim. It modified it as to certificate holders in conformance with the prayer of the bill.
It is not for us to say whether or not it was good business for the trust company to accept $108,000. The money had been lost in an unsuccessful venture. A vice president of the trust company testified that he wanted the original Jefferson Standard plan consummated ; that there was no other plan that he believed was as good and which would be possible to consummate; that he did not want to run the risk of losing the one he had; that he would not refuse to reduce the indebtedness down to $108,000 for other plans just because these would not be the- trust company’s plan; that, if the Jefferson Standard plan went through, the trust company would get $108,000 and would have no further interest in the project; that he did not want to propose a plan that in his opinion would not be a feasible one, a workable one, a fair one which in some way made provision for the bondholders; and that he was trying to work out the trust company’s problem and also to help the bondholders. He did state that he objected to the other plan because he wanted a plan to go through that would be feasible, and would put the enterprise in a sound position where it would have an opportunity to advance in a good sound financial condition and be able to weather the storms of the future. He claimed that only the Jefferson Standard plan accomplished this. He also stated that he thought the trust company could get $108,000 for its claim very quickly if it wanted to put no other conditions on it. He stated, however, that the trust company had two interests: a monetary interest of its own and a desire to do something for the bondholders. As appellant, however, the trust company claims that its action also constituted a gift to a third party, and that it had a legal right to make such gifts to such persons as it saw fit and it was under no legal obligation, nor could it be compelled, to make a gift to any one other than persons whom the donee or donees had selected. From a careful reading of the record1 and considering the staggering loss that had theretofore been incurred in the operation of the hotel, and considering also its present prosperity and future prospects, much depending upon income taxes and possible excess .profit taxes, the question immediately arises whether plaintiff after its long and unfortunate past experience with the property was not willing to accept a loss, get back $108,000 and reinvest it in a gainful manner. Unfortunately, plaintiff was in a somewhat dual position. As a creditor, it had its own corporate interest to protect, and1 at the same time, it acted as trustee for the bondholders. One of its officers was chairman of the bondholders ’ committee and the president of the Grand Park, and one of its employees was secretary to the Grand Park. Plaintiff had an absolute right to protect its investment, but it had also accepted a trust on becoming trustee of the bondholders. Even had there been a gift, and we find none, it would have been to the bondholders to whom the trust company owed a duty. It was a liquidating trustee for their benefit and was bound by law to carry out its duties toward them with great fidelity and administer the trust solely in the interest of the beneficiaries. 1 Restatement of Trusts, § 170. It was under a duty to the beneficiaries-in administering a trust not to be guided by the interests of • any third person, and it would be improper for the trustee to sell trust property to a third person for the purpose of benefiting this party instead of the -estate. 1 Restatement of Trusts, § 187, p. 482. Plaintiff came into court stating that it had been unable to develop any other plan which afforded the certificate holders the opportunity to salvage anything; that the plan proposed was for the best interests of the certificate holders; that its offer to accept $108,000 was made with the firm belief that the total sums due it could not be obtained by sale of the property, or otherwise, and the reductions of the plan afforded the only possible means of creating some equity or potential equity for certificate holders which would have material value.
Plaintiff came into a court of equity with a sworn petition making the proposal. It called attention to the decree wherein the court had reserved the power to make modifications or changes, and asked for the court’s approval and authority to carry out the plan as set forth in all particulars “or as to this court shall seem expedient and .for the best interests of all concerned. ’ ’ The proposal was in writing signed by the trust company. The language must be most strictly construed against the person responsible for it. Fort Pitt Malleable Iron Co. v. Detroit Steel Products Co., 260 Mich. 683. Nor is the claim that this agreement was without consideration a tenable one under Act No. 238, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 13433-1 et seq., Stat. Ann. 1943 Cum. Supp. § 26.978 [1] et seq.):
“Section 1. An agreement hereafter made to change or modify, or to discharge in whole or in part, any contract, obligation, or lease, or any mortgage or other security interest in personal or real property, shall not be invalid because of the absence of consideration : Provided, That the agreement changing, modifying, or discharging such contract, obligation, lease, mortgage or security interest shall not be valid or binding unless it shall be in writing and signed by the party against whom it is sought to enforce the change, modification, or discharge.”
Commitment having been made in the judicial proceeding, it is not subject to arbitrary withdrawal after the court had stated that it would accept it, as modified. 'We quote from a case where the facts are not even analogous, but wherein the correct principle is stated as follows:
‘ ‘ Obviously an offeror cannot play fast and loose in a case where' judicial approval is required. If an offeror duly submits an offer for approval to a court, where such judicial approval is required, it would seem that such offer might not be withdrawn pending approval proceedings, provided the latter were not unduly protracted.’’ Evans v. 2168 Broadway Corp., 281 N. Y. 34, 40 (22 N. E. [2d] 152).
The trial court held that plaintiff had come into a court of equity and was bound to do equity. Plaintiff was correct in stating that the obligation to do equity does not extend to its foregoing a legal claim. Ordinarily a court could not make a mortgagee in a foreclosure suit waive part of its mortgage, but we have a different situation here. The trust company of its own volition presented a petition to the court agreeing to accept $108,000 in full for its interests. It frankly stated that on'account of untoward conditions presented, it proposed to accept such amount in full settlement of its interests and thereby salvage something which appeared to be of doubtful value for the certificate holders. It asked the court’s approval of the plan or any modifications the court might see fit to make. The court did not ask the trust company to take less than it had proposed. It, however, ordered the company to accept the amount it had offered to take but under a modified order that would net the certificate holders approximately $12 instead of only 65 cents for each $100 in bonds represented by the certificates. Having thus submitted itself to a court of equity, it was bound to do what the court should1 find equitable under the circumstances. With its equitable powers the court had the right and duty to look after the interest of the certificate holders and to that extent it was doing the very thing plaintiff indirectly had requested in its petition. The plaintiff did not withdraw its offer when the Jefferson Standard changed its plan and proposed to pay $9 per $100 to certificate holders coupled with the right to buy one share of stock for each bond represented by the cer tificate at $6 a share. In its original petition the plaintiff reserved for the court the right to modify its proposal as the court shall deem expedient and for the best interests of all concerned. The court found1 that it was to the best interests of all concerned to accept the Schostak plan which would give plaintiff the sum requested and return a larger amount to the bondholders than any other plan had offered.
Plaintiff on appeal further contends that the court had no right to appoint a friend of the court to attempt to obtain a loan from the B. P. C. Mortgage Corporation or, later, to solicit bids higher than the Jefferson Standard proposal in order to obtain more for the bondholders. A peculiar situation had arisen. The Jefferson Standard plan was the result of negotiations in which plaintiff,, the bondholders ’ committee and Mr. Morris, employed by the Grrand Park Corporation, had participated. Plaintiff urged the acceptance of the plan. The attorney for the bondholders ’ committee not only urged it but insisted upon it to the exclusion of any other possible plan. Prom the testimony offered, it was shown that a better plan was available which would give plaintiff the $108,000 it asked for and net more for the certificate holders. A very unfortunate colloquy took place wherein the attorney for the bondholders’ committee plainly showed that he was interested ónly in the Jefferson Standard plan. The judge could not solicit other plans. He felt that, in fairness to the certificate holders, efforts should be made along this line and thereupon appointed Mr. Meyers friend of the court, not to make any decision for the court but to obtain other plans and make recommendations, the court reserving to itself the exclusive right to make the final determination. There is authority for the appointment and payment of a friend of the court who aids in the performance of certain labors and examinations. See 3 C. J. S. p. 1048; 2 Am. Jur. p. 679; In re St. Louis Institute of Christian Science, 27 Mo. App. 633; Mumma’s Estate, 2 Pa. Dist. 592; State v. Gorman, 171 Ind. 58 (85 N. E. 763). The question has not been frequently passed upon. We find no authority to the contrary. However we base our holding on the fact that no objection whatsoever was raised to the appointment of the friend of the court. In fact, the attorney for the bondholders’ committee assisted in drafting the first order and appellants are foreclosed from making any objection at this time.
Some of the appellants claim that the final order of the trial court does not properly incorporate the proposal or offer submitted by Sehostak. There might be some merit to this contention had not the question been settled in the discussion that took place in open court. This discussion left no doubt that Sehostak proposed to pay $12.30 for each $100 unit represented by a certificate and based upon the total of 31,138 units remaining outstanding after those held by the trust company were excluded. On the payment of such amount, and $108,000 to the trust company, Sehostak would become the beneficial owner of all of the capital stock held by the bondholders’ committee and pledged to the trust company. The colloquy that took place removed all ambiguity. The court made the proper order.
Some of the appellants contend that the court could not make the order in view of the opposition of the holders of the certificates representing a large number but a minority of the deposited bonds. The holders of certificates representing a majority of such deposited bonds took no active interest in the proceedings. The certificate holders are bound by the deposit agreement and the original and the final decrees of the court, each providing for the disposition of the property by the court.
We shall not discuss the comparative merits of other oíférs or plans presented by some of the appellants. -We agree with the court that Schostak made the best offer and that under it certificate holders would presently ’receive a larger amount than under any other plan proposed. Over 14 years had elapsed since the bondholders, or their successors, the certificate holders, had realized anything whatsoever from the trust. It is true that the hotel is now showing a large profit, but it is speculative whether such condition will continue after the termination of the war. The foreclosure sale took place in 1932 after litigation that preceded it. The trust company wanted the trust wound up. The court had jurisdiction and properly exercised it.
Some of the appellants claim that because Grand Park is making an estimated profit of-$150,000 a year (before Federal taxes) and because it has a large amount of cash on hand, the trust company in conformance with its petition should be paid $108,000 and the other fees should be liquidated in a similar manner by Grand' Park. The stock thus freed from the trust company’s claim should then be distributed to the certificate holders. This plan assumes that the owners of the leaseholds have made or are bound to make the same concessions. If they refuse, the amount of cash- on hand would be seriously depleted. Under the Schostak plan, the purchaser must take his chances on the concessions being made, if they have not been made theretofore. If Grand Park must pay an excess profit tax, it will retain but a small proportion of its profits. It still remains highly speculative whether the hotel can be run at a profit after the war. The Schostak plan will net bondholders almost $12 for each $100 unit. We be lieve the trial judge was correct in ruling it was the best plan for bringing the trust to a close.
The trust company contends that it owes a duty to all creditors including the owners of the leased property. The decree does not relieve the Grand Park from any liability under the leases. If the trust company has any liability in its individual capacity, Schostak and his assignees must assume it, subject to their right to show that the trust company is not liable in its individual capacity. No part of any amount paid or to be paid because of such liability whether on the part of the Grand Park or the trust company can be deducted or paid out of the $12.30 per unit to be deposited by the purchaser. The decree can in no way affect the leases. The purchaser and his assignees by becoming owners- of the capital stock of the Grand Park do not release the corporation from its liabilities.
We have endeavored to discuss such of the questions raised as have any merit. The length of this opinion precludes us from discussing any others.
The decree of the trial court is affirmed, subject to the slight modification in regard to the assumption by Schostak and his assignee of any individual liability the trust company may have to the owners of the leasehold properties or their representatives. The trial court properly has retained jurisdiction and the decree entered in this court will so provide so that any further questions that may arise including the mechanics of carrying out the decree may be determined by the trial court. Appellees will recover costs.
North, C. J., and Starr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred with Butzel, J. | [
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Btjtzel, J.
Plaintiffs are residents of Mineral Point, Wisconsin; the defendant is a Michigan corporation engaged in the real estate brokerage business. At the time of the transactions in question, the Wisconsin statutes provided that no person, firm or corporation:
“Shall engage in or follow the business or occupation of, or advertise or hold himself out as or shall act temporarily or otherwise as a real estate broker or real estate salesman in this State, without first procuring a license therefor as provided in this section.” Wis. Stat. 1923, §136.01, subd. 5.
Any violation of the above provision was made-a misdemeanor punishable by fine or imprisonment. Section 136.01, subd. 25. Another section prohibited, under penalty, any foreign corporation from transacting business in that State without first qualifying as provided in the statute (section 226.02, subds. 2, 11), and it was further provided that in the event such corporations had not so qualified:
“Every contract made by or on behalf of any . such foreign corporations, affecting the personal liability thereof or relating to property within this State, before it shall have complied with the provisions of this section, shall be wholly void on its behalf and on behalf of its assigns, but shall be enforceable against it or them.” Wis. Stat. 1923, § 226.02, subd. 10.
On February 18, 1926, defendant, the Hannan Real Estate Exchange, without qualifying in Wisconsin, advertised the prospects of profitable investments in Detroit real estate and solicited inquiry of its Mineral Point representative. Acting as broker, through an agent at Mineral Point, defendant caused certain land contracts to be entered into by plaintiffs as vendees, in three of which the vendor was the Telegraph & Twelfth Street Land Company, while in the fourth the vendor was the Dearborn Holding Company. The two vendors were Michigan corporations, neither of which had qualified to do business or make contracts in Wisconsin. The contracts were made in Wisconsin and were for the sale of property in the vicinity of Detroit, Michigan. Although executory, they provided for possession of the lands by the vendees while not in default. In 1930, after the real estate boom had subsided, plaintiffs, having discovered that the Han-nan Beal Estate Exchange was not authorized to do business in Wisconsin, refused to continue making payments, and demanded the return of all amounts paid. Upon defendant’s refusal to comply with this request, plaintiffs brought the instant suits, claiming in each of them that the transactions were illegal and void under the Wisconsin statutes above quoted, and that, therefore, they were entitled to a return of all moneys paid to defendant, which had retained a substantial part as commission. Defendant raised several defenses, one being that plaintiffs’ right to recovery was barred by their failure to tender any reconveyance of the interests acquired by them under the land contracts. The cases were heard together and decided without a jury after testimony of all parties had been introduced, and the court entered judgments of no cause of action.
Since we agree with defendant’s contention that plaintiffs’ right to recover was barred by their failure to make a proper tender before suit, we shall limit our discussion to that question. Plaintiffs claim that the contracts were absolutely void under the Wisconsin statute, that there was, therefore, nothing to rescind, and accordingly no tender was necessary. We do not believe there is any question but that the wording of the Wisconsin statute heretofore quoted makes the contracts merely voidable, and not void. While the statute provides that such contracts shall be wholly void as to the offending party, it nevertheless states that they shall be enforceable against such party. There has been con siderable confusion in the use of the words “void” and “voidable,” and tbe courts have not hesitated to construe “void” as meaning “voidable” where it is apparent that the latter term expresses the result intended. We shall limit our discussion to a few cases in Wisconsin and Michigan, the courts of both States having uniformly construed “void” as meaning “voidable” under conditions similar to those in the instant case.
In Kelly v. Severson, 149 Wis. 251 (135 N. W. 875), the statute prohibited administrators from purchasing or being interested in the purchase of any real estate sold by them in that capacity, providing that all sales made contrary to such prohibition “shall be void.” It was held that the term “void” as thus used in the statute meant “voidable.” In French Lumbering Co. v. Theriault, 107 Wis. 627 (83 N. W. 927, 51 L. R. A. 910, 81 Am. St. Rep. 856), the statute provided that every conveyance of land made with the intent to hinder, delay or defraud creditors “shall be void.” It was again held that the term “void” as used in the statute meant “voidable.”
See, also, Hyman v. Landry, 135 Wis. 598 (116 N. W. 236, 128 Am. St. Rep. 1044).
In Chambers v. Beckwith, 247 Mich. 255, a sale of stock in violation of the Michigan blue sky law was attacked. The blue sky statute prohibited the sale of stock not approved by the securities commission, and made any violation of the act a misdemeanor. We held that sales of stock in violation of the act were “voidable.”
The present suits were in assumpsit for the return of moneys paid under a “voidable” contract. They could, therefore, not be brought until a proper rescission had taken place, by plaintiffs’ returning or offering to return to defendant that which they had received. In Phelps v. Mineral Springs Heights Co., 123 Wis. 253 (101 N. W. 364), relief was denied to a vendee suing at law to recover money paid under a land 'contract breached by the vendor, because of the plaintiff’s failure to make a proper tender. The court declared:
“It is not a suit in equity to obtain a rescission, but a plain action at law to recover back the consideration paid. To maintain such action, it is essential that before it is commenced the rescission shall have been complete as to both parties. * * * He * * * must have returned or offered to return to the other party that which he had received. * * *
“The evidence most favorable to plaintiff * * * discloses nothing whatever of any offer in any way to return or surrender to defendant the equitable rights which he had received from the latter by force of the land contract and his payment of the purchase price.”
To like effect see Joslin v. Noret, 224 Mich. 240; Lightner v. Karnatz, 258 Mich. 74.
Both in Wisconsin and Michigan the vendee under a land contract receives an equitable title. Krakow v. Wille, 125 Wis. 284 (103 N. W. 1121, 4 Ann. Cas. 1016); Church v. Smith, 39 Wis. 492; Superior Consolidated Land Co. v. Nichols, 81 Wis. 656 (51 N. W. 878); Bartz v. Paff, 95 Wis. 95 (69 N. W. 297, 37 L. R. A. 848); Edwards & McCullough Lumber Co. v. Mosher, 88 Wis. 672 (60 N. W. 264); Wing v. McDowell, Walk. Ch. (Mich.) 175; Hooper v. Van Husan, 105 Mich. 592; Stevens v. DeBar, 229 Mich. 251. Plaintiffs therefore had an equitable interest in the land under their land contracts, and it was necessary for them to tender back, in proper form, a conveyance of such interest before an action could lie for the return of the purchase money. Phelps v. Mineral Springs Heights Co., supra; Lackovic v. Campbell, 225 Mich. 1; Barker v. Fordville Land Co., 264 Mich. 95. This they failed to do.
Judgment is therefore affirmed, with costs to defendant.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Bijshnell, and Edward M. Sharpe, JJ., concurred. | [
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Bird, C. J.
The Honorable Charles H. Culver is a member of the present legislature. During the regular 1925 session of the legislature the State was garnished on an existing judgment against Mr. Culver. The auditor general, in response to said writ, disclosed that there was due Mr. Culver, as salary, the sum of $50. Subsequently, and during said session, a second garnishee process was served on the State, and it was agreed between counsel that the result in that case should abide the result in this one. The State entered a motion to dismiss said writ, principally on the ground that Mr. Culver was a member of the legislature then in session at the time the, writ was-served and was, therefore, exempt from such service. The constitutional provision invoked is as follows:
“Senators and representatives shall in all cases, except for treason, felony or breach of the peace, be privileged from arrest during sessions of the legislature and for fifteen days next before the commencement and after the termination thereof. They shall not be subject to any civil process during the same period. They shall not be questioned in any other place for any speech in either house.” Michigan Constitution, art. 5, § 8.
In 1919 the legislature appears to have authorized garnishee proceedings against the State by the following provision:
“All corporations of whatsoever nature, the State of Michigan, and every county therein, may be served and proceeded against as garnishees in the same manner and with like effect as individuals under the provisions of this chapter and the rules of law relative to proceedings against corporations: Provided, That when a municipal corporation, the State of Michigan, or any county therein, is proceeded against as provided for in this chapter, judgment shall have been obtained in a court of competent jurisdiction by the plaintiff against the principal defendant before garnishment proceedings shall be commenced against such municipal corporation, the State of Michigan or any county therein.” * * * Act No. 233, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 13167), amending section 13167, 3 Comp. Laws 1915.
The legislature, by this act, undoubtedly authorizes garnishee proceedings against the State in certain cases, but subject to the foregoing constitutional provision. When the constitutional provision and the legislative act are read together there is little difficulty in construing the law.
But it is said that Mr. Culver does not come within the constitutional exception because judgment had theretofore been obtained and the garnishee process was served upon the State. This is a too narrow view of the situation. The idea back of the constitutional provision was to protect the legislators from the trouble, worry and inconvenience of court proceedings during the session, and for a certain time before and after, so that the State could have their undivided time and attention in public affairs. Mr. Culver, as principal defendant, had the right to make a defense to the garnishee proceeding. In the present case the garnishee proceeding succeeded in doing just what the constitutional provision was created to avoid. It harassed the legislator, drove him to make a defense in the garnishee proceeding, and deprived him of the means of subsistence pending the balance of the session. We think the case clearly comes within the constitutional inhibition.
The motion to dismiss should have been granted. The writ prayed for will issue, if necessary.
Sharpe, Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Carr, C. J.
The claimant and appellant, Drusilla . Koski, was employed by the Ford Motor Company in March, 1943, as a bench hand, and continued in such employment until October 15, 1944, when she was laid off. During the period referred to claimant worked on the afternoon shift from 3:40 p.m. to 11:40 p.m. On October 23d, following her lay-off, she filed claim for unemployment compensation under the statute. Thereafter, and on January 17, 1945, she was recalled by the Ford Motor Company, and continued to be employed on the afternoon shift until April 18, 1945. The question at issue in the case is whether claimant is entitled to unemployment compensation during the period from October 23, 1944, to the date of re-employment-in January, 1945.
The unemployment compensation commission determined in the first instance that claimant had met the conditions prescribed by the statute, and was in consequence entitled to compensation. Thereafter, however, claimant informed the claims examiner of the commission that she was not available for work except on the afternoon shift. Because of the limitation of her availability the commission reconsidered. the matter and denied compensation. On appeal to the referee the decision of the commission was reversed. The appeal board sustained the referee.
Claiming that the determination of the appeal board was erroneous, the Ford Motor Company applied to the circuit court of Ingham county for a writ of certiorari to review the proceeding, which writ was duly issued. This was done pursuant to section 38 of the statute above cited, as last amended by Act No. 364, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 8485-78, Stat. Ann. 1946 Cum. Supp. § 17.540), which reads in part as follows:
'(The findings of fact made by the appeal board acting within its powers if supported by the great weight of the evidence, shall, in the absence of fraud, be conclusive, but the circuit court of the county, in which the claimant resides or in which the employer’s principal place of business in Michigan is located, if no claimant is a party to the case, or the circuit court for the county of Ingham shall have power to review questions of fact and law on the record made before the referee and the appeal board involved in any such final decision, but said court may reverse such decision of said appeal board upon a question of fact only if it finds that said decision of the appeal board is contrary to the great weight of the evidence. ’ ’
Following the hearing in the circuit court, the trial judge filed an opinion holding that, under the undisputed facts in the case, claimant was not entitled to compensation. Judgment was accordingly entered reversing the decision of the appeal board. From such judgment claimant has appealed.
The question for determination-is whether claimant was, during the period for which she sought compensation, available for full time work of a character which she was qualified to perform, and likewise of a character similar to work for which she had previously received wages. Section 28 of the unemployment compensation act, as last amended by Act No. 9, Pub. Acts 1944 (1st Ex. Sess.) (Comp. Laws Supp. 1945, § 8485-68 [Stat. Ann. 1946 Cum. Supp. § 17.530]), provides in part: •
“Sec. 28. * * * An unemployed individual shall be eligible to receive benefits with respect to any week only if the commission finds that: * * *
“(c) He is able to perform full-time work of a character which he is qualified to perform by past experience or training', and of a character generally similar to work for which he has previously received wages, and he is available for such work, full-time, either at a locality at which he earned wages for insured work during his base period or at' a locality where it is found by the commission that such work is available. ’ ’
Claimant’s reason for limiting her availability for work to the afternoon shift was based on the fact that she had two boys, 17 and 10 years of age respectively, and wished to be at home mornings in order to awaken them, get their breakfasts, and start them to school. It is argued in her behalf that, under the circumstances, the limitation placed by her on her availability was reasonable, and that the statute should be construed as authorizing such limitation. Emphasis is placed by counsel for claimant, and for the appeal board, on the purpose of the unemployment compensation act as set forth therein. Such purpose was the relieving of- distress resulting from unemployment and consequent economic insecurity. It was intended to assist unemployed persons who, under the limitations and conditions imposed by the legislature, are entitled to the benefits of the act. The court is not at liberty to read into the statute provisions which the legislature did not see fit to incorporate, nor may it enlarge the scope of its provisions by an unwarranted interpretation of the language used.
It will be noted that section 28 (c) of the statute, quoted above in part, contemplates availability for work of the character that a claimant is qualified to perform and further requires availability for full-time work. The central thought in the subdivision has reference to the character of the labor for which a claimant is available. There is nothing in the statute to justify the conclusion that the legislature intended a claimant might limit his employment to certain hours of the day where the work he is qualified to perform is not likewise limited. It may be assumed that, in a so-called “around-the-clock” operation, the work on different shifts does not vary in character. When claimant stated she would not accept work except on the afternoon shift, she clearly made herself unavailable for work of the character that she was qualified to perform. She took such position, not for any reason connected with the character of the labor itself, but rather because of the situation in her home.
Decisions of courts of last resort dealing with the question at issue are limited in number. In Kut v. Albers Super-Markets, Inc., 146 Ohio St. 522 (66 N. E. [2d] 643), unemployment compensation was denied to a claimant who, for personal reasons, was not available for work on Saturday. Commenting' on the situation it was said:
“The statute does'not designate particular days of the week. It provides that in order to be entitled to benefits a claimant must be. ‘able to work and available for work in his usual trade- or occupation, or in any other trade or occupation for which he is reasonably fitted. ’ Hence, he must be available for work on Saturday if this is required by his usual trade or occupation, as in this instance. ’ ’
By analogy it may be said that the Michigan statute, in prescribing availability for work as a test in determining the right to unemployment compensation, does not limit such availability to particular hours; nor does it grant the right to impose any such limitation. One may not be regarded as exposed unequivocally to the labor market unless willing and able to accept employment that he is qualified to perform. Stress is laid in the case at bar on the fact that claimant has worked for the Ford Motor Company only on the afternoon shift. Such fact, however, does not alter the situation. Clearly, she is.qualified to work on any one of the three shifts in a plant operating on the “around-the-clock” basis and furnishing 'employment of the character that claimant is qualified to perform.
In Keen v. Texas Unemployment Compensation Commission (Tex. Civ. App.), 148 S. W. (2d) 211, the court of civil appeals of Texas upheld a finding of the unemployment compensation commission of that State that the claimant, who was enrolled as a student in the University of Texas, and undertook to limit his availability for work in such manner as not to interfere with his classes, was not entitled to compensation. With reference to the pertinent provisions of the statute involved, it was said:
“The Texas unemployment compensation act indicates a legislative intent to provide a method of compensation for persons' who are unemployed through no fault of their own. There is nothing in the subject matter of the act, however, which would justify the presumption that the legislature intended to thereby make available for compensation benefits all persons who voluntarily resign from their employment, to enter other occupations, where the conditions are such as to render them unavailable for work and to prevent them from accepting any offer of suitable employment.”
Likewise, in Judson Mills v. South Carolina Unemployment Compensation Commission, 204 S. C. 37 (28 S. E. [2d] 535), it was held that a claimant who quit her employment on her employer’s third shift in order that she might care for her children, and who limited her availability for work to the first and second shifts, was not entitled to the benefits of the unemployment compensation act. It was there said:
“This statute was passed in 1936, at a time when this State, in coihmon with the entire nation, was suffering from a prolonged depression which had resulted in industry laying off many workers, many of whom were left without the means of obtaining even the barest necessities of life. This, unquestionably, was the evil which the legislature was seeking to remedy. Unemployment due to changes in personal conditions of the employee, making it impossible for him to continue on his job had existed for many years, but there is no reason to believe that the evil resulting therefrom was any more pronounced in 1936 than it had been prior to that time. I find nothing in the act itself or in the circumstances surrounding its passage to indicate an intention-on the part of the legislature to provide benefits for a worker compelled to give np Ms job solely because of a change in his personal circumstances.”
In Dinovellis v. Danaher, 12 Conn. Supp. 122, the superior court of Hartford county, Connecticut, held that an unemployed married woman, who was willing to accept employment only on a day shift from 7 a.m. to 3 p.m., or similar hours, was not entitled to unemployment compensation benefits. Referring to the conditions prescribed by the governing statute for such benefits, it was said: *
11 Suffice -it to say that among them is none wMch describes an offered or available employment as unsuitable because of the hours of the day or night when it is required that work' be performed, and none which excuses an actual or potential recipient of the benefits of the act from a willingness to accept employment because of the difficulty of personal adjustment to the hours thereof or the inconvenience to such person or his family. Whether if the legislation contained provisions permitting refusal of employment calling for work during hours other than the usual daylight period under normal conditions, provision for such an election would be valid, is, of course, not within the purview of the issues here. The legislature has seen tit to include no such condition and the court is without power to write it in under the guise of judicial construction.”
See, also, Haynes v. Unemployment Compensation Commission of Missouri, 353 Mo. 540 (183 S. W. [2d] 77); Brown-Brockmeyer Co. v. Board of Review, Bureau of Unemployment Compensation, 70 Ohio App. 370 (45 N. E. [2d] 152); In the Matter of Claim of Salavarria, 266 App. Div. 933 (43 N. Y. Supp. [2d] 899); W. T. Grant Co. v. Board of Review of the Unemployment Compensation Commission of New Jersey, 129 N. J. Law, 402 (29 Atl. [2d] 858).
• On behalf of claimant, it is further urged, that the issue as to claimant’s availability for work was factual in character, and that the circuit judge was bound to accept the determination of the appeal board. The judge, however, concluded that, since the facts were'not in dispute, the question before him was one of law rather than of fact, citing in support of his position, Haynes v. Unemployment Compensation Commission of Missouri, supra, and Judson Mills v. South Carolina Unemployment Compensation Commission, supra. The facts not being in dispute;, we think the question may properly be regarded as one of law, involving the interpretation of the statute. It will be noted, however, that under section 38 of the unemployment compensation act, above quoted in part, the circuit court had power to reverse the decision of the appeal board, if found contrary to the great weight of the evidence. The opinion of the circuit judge indicates clearly that he would have made such finding had he considered the issue one of fact., Under the statute we may consider the case as here on general appeal. Palmer v. Unemployment Compensation Commission, 310 Mich. 702 (158 A. L. R. 909). If treated as a factual question, the finding of the appeal board that claimant was available for work within the meaning of the pertinent provision of the statute cannot be sustained. The undisputed evidence is to the contrary.
The holding of the trial court that claimant was not entitled to unemployment compensation was correct, and the judgment is affirmed. The question involved being one of public interest, no costs will be allowed.
Butzel, Bushnell, Sharpe, Bowles, Reid, and North, JJ., concurred. Dethmers, J. did not sit.
Act No. 1, Pub. Aets 1936 (Ex. Sess.), as amended by Act No. 347, Pub. Acts 1937; Act No. 324, Pub. Acts 1939; Act No. 364, Pub. Aets 1941; Act No. 18, Pub. Aets 1942 (2d Ex. Sess.); Act No. 246, Pub. Acts 1943, and Act No. 9, Pub. Acts 1944 (1st Ex. Sess.) (See Comp. Laws Supp. 1940, 1943, § 8485-41 et seq., Stat. Ann. 1944 Cum. Supp. § 17.501 et seq.). | [
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Fead, J.
The case was tried before the court without a jury. At the conclusion of plaintiff’s proofs, defendant moved for a directed verdict on the grounds of lack of negligence of defendant and of contributory negligence of plaintiff’s decedent. The term “directed verdict” is a misnomer on trial before the court but we apprehend it was used as a convenience to express the claim that, taking the facts most favorable to plaintiff, he was not entitled to recover. The court entered judgment for defendant.
Decedent and another woman, riding west in an automobile, were struck and killed by defendant’s train coming from the north at a speed of 50 miles per hour and without whistle or bell signals. The crossing was at a private industrial road which, in some places, was only eight feet wide between buildings. It was well defined, however, had been used for some years by a considerable number of people as well as by neighboring manufacturers, without objection of defendant. But there was no showing that it had been worked by the public or had become a highway. The crossing at one time had been planked but some five years ago the planking had been removed and gravel substituted. We are not told by whom. It was not in good condition. The rails projected above the road so crossing necessarily would be rough and slow. There were no eye-witnesses to the accident. The car was seen approaching the track and shortly thereafter a crash was heard and the car and passengers found some distance down the track, where they had been carried by the train.
Plaintiff relies upon the presumption of due care attending an accident to which no eye-witnesses survive. Defendant relies upon the rule that the presumption may be rebutted by physical evidence. Elrich v. Schwaderer, 251 Mich. 33. The presumption obtains unless the physical facts demonstrate that decedent failed to look for trains when she should have looked, failed to see what she should have seen, or having seen what a reasonably prudent person would have seen, failed to act upon it with due care.
There are two tracks at the crossing. As decedent approached from the east her view to the north was obstructed by kilns, a cement wall and box cars on a,siding. At some distance from the track she could have looked to the north between kilns, but whether she should have done so is a question of fact and does not help the direction of verdict.
When ’10 feet east of the east rail of the nearest or northbound track one could see north 160 feet. When 15 feet east of the east rail of the farthest or southbound track one could see north over 1,000 feet to a curve. His car would then be on the northbound track. The view to the south was somewhat obstructed but apparently not so much as to the north and we are not advised as to the details.
The duties of persons approaching a railroad track to stop, look and listen are recognized. Plaintiff, however, contends there was no safe place in which his decedent could have stopped before reaching the tracks and she was under no legal obligation to stop on or between the tracks. Nichols v. Railway Co., 203 Mich. 373. In that case the accident was at the crossing of a highway, where more cautious handling of trains may be anticipated than at private road crossings. And the decision is at variance with the standard of conduct adopted by this court in Rosencranz v. Railroad Co., 244 Mich. 137.
The character of the neighborhood and of the road was apparent and decedent could not have expected the safety precautions and measures common to street crossings. She was obliged to use care commensurate with the conditions. An observation of only 160 feet along the track at such a crossing would not justify her proceeding without further observations. There was no danger from the south in fact. It must be assumed that she so satisfied herself. As she approached the northbound track and when she was on it, and while still in a place of safety, she had increasing opportunity to see the train coming from the north in ample time to stop and avoid a collision. Downey v. Railway Co., 230 Mich. 243; Ackerman v. Railroad Co., 249 Mich. 693.
We think the physical facts show plaintiff’s decedent guilty of contributory negligence as a matter of law and judgment is affirmed.
Nelson Sharpe, C. J., and Potter, North, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Per Curiam.
Respondent, Department of Treasury (the Department), appeals as of right the order of the Michigan Tax Tribunal granting petitioner Kmart Michigan Property Services, LLC (KMPS), summary disposition. We affirm.
I. SUMMARY OF FACTS AND PROCEEDINGS
KMPS was a limited liability company (LLC) formed in Michigan and wholly owned by its single member, Kmart Corporation (Kmart). During the period at issue, KMPS had three employees and was responsible for winding up the business affairs of Builders Square, its former subsidiary, whose assets were sold to a third party. KMPS filed a single business tax (SBT) return for a fiscal year ending January 28, 1998. At some point, the Department audited KMPS for that fiscal year in connection with an audit of Kmart and determined that KMPS should not have filed a separate SBT return, but should have submitted its income, deductions, credits, assets, and liabilities with those of Kmart, its parent corporation, for the tax year at issue. The Department determined that it would not accept KMPS’s SBT return for the period at issue and would “disregard the entity and treat it as a division of its owner.”
On March 2, 2005, an informal conference was held at which a referee heard arguments from both parties. The referee determined that KMPS was not entitled to a refund for the tax year at issue, which would have been the result if the Department had permitted KMPS to file a separate SBT return. KMPS filed an appeal to the tribunal on August 3, 2005, and later filed a motion for summary disposition.
In its summary disposition motion, KMPS argued that it met the definition of a “person” under MCL 208.6(1) of the Single Business Tax Act (SBTA), MCL 208.1 et seq., qualifying it to file a separate SBT return for the period at issue. KMPS further argued that the Department improperly applied retroactively the guidance of its Revenue Administrative Bulletin (RAB) 1999-9, and further that RAB 1999-9 lacked statutory authority and conflicted with the statute, rendering it invalid. The Department argued before the tribunal that KMPS was not a person under the SBTA, but rather a single-member LLC. In addition, the Department argued that because KMPS elected to be a nonentity for federal tax purposes for tax year 1998, it could not choose to be an entity for purposes of its state SBT filing.
The tribunal concluded that although it was logical for the Department to reason that taxpayers should be categorized under the SBTA according to the entity classification they elected for federal tax purposes, “[t]his rationale ... is not the same as a legal requirement.” The tribunal stated that revenue administrative bulletins deserve due deference from the courts, but are not binding legal authority, particularly if they contravene the applicable statute. The tribunal stated further that KMPS’s federal tax sta tus was not determinative of whether it satisfied the definition of “person” under the SBTA, because the SBTA filing requirements are independent of the federal tax code and existed “long before the federal ‘check-the-box’ regulations” permitting a taxpayer to choose its entity status. Thus, the tribunal found that KMPS was entitled to file a separate SBT return for the tax year at issue.
II. STANDARD OP REVIEW
We have limited review of Tax Tribunal decisions. Mt Pleasant v State Tax Comm, 477 Mich 50, 53; 729 NW2d 833 (2007). Where the facts are not disputed and there is no allegation of fraud, our review is limited to whether the tribunal made an error of law or adopted a wrong principle. Wexford Med Group v City of Cadillac, 474 Mich 192, 201-202; 713 NW2d 734 (2006). However, because the decision involves issues of statutory interpretation and application, our review is de novo. Id. at 202.
In statutory interpretation, our primary goal is to determine and give effect to the intent of the Legislature. Mt Pleasant, supra at 53. We begin by reviewing the language of the statute. Id. “If the statutory language is unambiguous, the Legislature is presumed to have intended the meaning expressed in the statute and judicial construction is not permissible.” Id. “[A] provision of the law is ambiguous only if it ‘irreconcilably conflicts’ with another provision or when it is equally susceptible to more than a single meaning.” Lansing Mayor v Pub Service Comm, 470 Mich 154, 166; 680 NW2d 840 (2004) (citation omitted; emphasis in original). Words and phrases are not read “discretely,” but rather within the context of the whole act. Id. at 167-168.
Additionally, “ ‘the construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not to be overruled without cogent reasons.’ ” In re Complaint of Rovas Against SBC Michigan, 482 Mich 90, 103; 754 NW2d 259 (2008), quoting and adopting the standard stated in Boyer-Campbell v Fry, 271 Mich 282, 296; 260 NW 165 (1935). Because the Department has legal responsibility to collect taxes and is responsible for “[specialized service for tax enforcement, through establishment and maintenance of uniformity in definition, regulation, return and payment,” MCL 205.1, we accord respectful consideration to its position. However, “the agency’s interpretation is not binding on the courts, and it cannot conflict with the Legislature’s intent as expressed in the language of the statute at issue.” In re Complaint of Rovas, supra at 103.
III. ANALYSIS
The Department argued before the Tax Tribunal that KMPS was not a “person” but a single-member LLC, such that the SBTA required KMPS to file its SBT return as a disregarded entity. As a “disregarded entity,” a single-member LLC is not taxed separately, but has its income attributed to its owner and the owner is then responsible for paying all taxes due. Thus, the Department argued, KMPS should have been included in Kmart’s SBT return rather than filing its own.
Under the SBTA, “every person with business activity in the state” was required to pay the SBT. MCL 208.31(1). “Person” was defined as “an individual, firm, bank, financial institution, limited partnership, copartnership, partnership, joint venture, association, corporation, receiver, estate, trust, or any other group or combination acting as a unit.” MCL 208.6. As the tribunal noted in its opinion, “[a] plain reading of the phrase ‘or any other group or combination acting as a unit’ should be construed to cover the same kind, class, character or nature as those entities specifically enumerated,” such that “[t]he concluding phrase ... encompasses business entities that are not enumerated or lack precise legal identification.” Under this interpretation, the tribunal concluded, an LLC, though not identified in the SBTA, fits within the statutory definition of “person” whether it has one or more members. The Department conceded that a “person” with business activity in Michigan is subject to pay the SBT, but argues that KMPS’s election for federal tax purposes overrides its legal status in Michigan for state tax purposes.
Federal treasury regulations 26 CFR 301.7701-1 through 301.7701-3 set forth the classification of organizations for federal tax purposes. 26 CFR 301.7701-l(a)(4) states that “[u]nder §§ 301.7701-2 and 301.7701-3, certain organizations that have a single owner can choose to be recognized or disregarded as entities separate from their owners.” 26 CFR 301.7701-3(a) provides in relevant part:
A business entity that is not classified as a corporation under § 301.7701-2(b)(l), (3), (4), (5), (6), (7), or (8) (an eligible entity) can elect its classification for federal tax purposes as provided in this section. An eligible entity ... with a single owner can elect to be classified as an association or to be disregarded as an entity separate from its owner. Paragraph (b) of this section provides a default classification for an eligible entity that does not make an election.
The default classification under 26 CFR 301.7701-3(b)(ii) provides that “unless the entity elects otherwise,” a domestic eligible entity shall be “[disregarded as an entity separate from its owner if it has a single owner.” The federal regulations make no special provision for domestic entities that are LLCs or whose members are LLCs. Accordingly, under federal tax law, KMPS could elect to be taxed as an entity separate from Kmart or to be a disregarded entity. The parties agree that for the tax year 1998, KMPS elected to be a disregarded entity for federal tax purposes.
The Department argues that Michigan’s SBT utilizes the same “check-the-box” regulations that the federal income tax rules use, relying on Revenue Administrative Bulletin (RAB) 1999-9, which provides, in part:
Michigan conforms to federal check-the-box regulations [26 CFR 301.7701-1 through 301.7701-3] for SBT purposes. The entity election or default classification for filing the federal income tax return is effective for all components of the SBT return that are related to federal income tax.... A taxpayer who elects entity classification at the federal level shall file the Michigan SBT return on the same basis and reflect the same tax consequences.
In the case of a disregarded entity the single member files the return and indicates its legal organization. The member filing the return should attach a statement to the return listing the single member entity(s) included in the return. [RAB 1999-9, ¶ I, p 2.]
RAB 1999-9 also notes the following:
Under [26 CFR] 301.7701-2, if a single member entity is disregarded for federal income tax purposes, its activities are included as a part of the owner’s activities in the respective sole proprietorship, branch, or division of the owner. Therefore, income, deductions, credits, assets and liabilities of a single member entity having nexus with Michigan, who elects to be disregarded as an entity for federal income tax purposes, are deemed to be those of the owner. [RAB 1999-9, ¶ iy p 3.]
Thus, under the guidelines outlined in RAB 1999-9, KMPS was required to use the same entity status it had chosen for federal tax purposes with respect to its SBT filing. If KMPS had followed the guidance of RAB 1999-9, it would not have filed a separate SBT return but would have accounted for its “income, deductions, credits, assets and liabilities” in its owner’s SBT filing, i.e., as a disregarded entity. See RAB 1999-9, ¶ iy p 3.
However, as the tribunal noted in its opinion and the Department conceded at oral argument, the Department’s policies as described in RAB 1999-9 do not have the force of a legal requirement. MCL 205.3(f) provides that the Department “may periodically issue bulletins that index and explain current department interpretations of current state tax laws.” Significantly, the statute makes a separate provision for rules issued by the Department: “After reasonable notice and public hearing, the department may promulgate rules consistent with this act in accordance with the administrative procedures act..., MCL 24.201 to 24.328, necessary to the enforcement of the provisions of tax and other revenue measures that are administered by the department.” MCL 205.3(b). Under MCL 24.207(h), explanatory guidelines are distinguished from rules that have the force of law: rules do not include “[a] form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory.” The Department indicated to this Court that bulletins are considered “interpretative statements.” Accordingly, we agree with the tribunal that KMPS was not legally required to follow RAB 1999-9.
We note that even though RAB 1999-9 is not legally binding, it reflects the Department’s interpretation of a statute it is charged with enforcing, entitling it to respectful consideration. In re Complaint of Rovas, supra at 103. However, we conclude that the Department’s legal rationale is inconsistent with the plain language of the SBTA.
Neither the SBTA nor the federal regulations require an entity to be consistent in its self-classification with respect to its state and federal tax filings for a given year. Indeed, the federal regulations expressly state that entity classification under the Interned Revenue Code “is a matter of federal tax law and does not depend on whether the organization is recognized as an entity under local law.” 26 CFR 301.7701-l(a)(l). In response, the Department argues that the Legislature “adopt[ed] federal categories consistently” in the SBTA, “indicated in the statute by its adoption ... of terminology from the Internal Revenue Code.”
MCL 208.2(2) provides that any “term used in this act and not defined differently shall have the same meaning as when used in comparable context in the laws of the United States relating to federal income taxes in effect for the tax year unless a different meaning is clearly required.” However, nothing in this subsection indicates that entity classification elections in the federal tax code must be carried over to an entity’s SBT filing. Rather, it simply provides that terms defined in the federal regulations have the same meaning when used in the SBTA. There is no specific term at issue in this case and, therefore, no definition to find in the federal regulations. Consequently, the SBTA’s provisions regarding who must pay the SBT stand alone.
Looking simply at the provisions of the SBTA, KMPS was required to file an SBT return, regardless of its classification as a disregarded entity for federal tax purposes, because KMPS fit within the statutory defi nition of a “person” conducting business activity and the SBTA required all persons conducting business activity in the state to file an SBT return. Therefore, the SBTA does not support the requirement of RAB 1999-9 that an organization that is a disregarded entity for federal tax purposes for a given taxable period must also file as a disregarded entity for state tax purposes. Accordingly, we conclude that the tribunal made no error of law. Wexford Med Group, supra.
Affirmed.
Repealed by 2006 PA 325. | [
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Sharpe, J.
(dissenting). On the morning of February 12, 1945, plaintiff, Frank Paquette, a farmer 66 years of age was driving his automobile from his home on M-50 towards Eaton Rapids. He had lived on this highway for 27 years. M-50 is a paved highway, 20 feet in width, with a smooth shoulder 8 to 10 feet wide on each side, beyond which is a ditch.
Plaintiff left his home at about 9 a.m., with the intention of driving to Eaton Rapids. There had been á light fall of snow the night before. It was a foggy morning and plaintiff’s windshield became frosted. He stopped his car on the paved portion of the highway for the purpose of cleaning his windshield. The left side of his car was from 2 to 4 feet from the center of the pavement. At this time Don Smrchek was driving a car, owned by the Consumers Power Company, in the same direction at a speed of 25 to 30 miles per hour. The windshield of his car was obscured by frost and defendant Smrchek was driving by looking out of the window at his left. On or about this time, plaintiff alighted from his car and was in the act of cleaning his windshield when the car driven by Smrchek collided with plaintiff’s car and severely injured plaintiff.
Plaintiff brought an action to recover damages for personal injury to himself, doctor bills incurred and cost of repairing his car. The cause came on for trial. At the close of plaintiff’s proofs, defendants made, a motion for a directed verdict. The trial court denied the motion, reserving his rights under the Empson act. Defendants offered no proofs and the jury returned a verdict for plaintiff in the amount of $6,500. Upon motion by defendants, the trial court directed a verdict non obstante veredicto in favor of defendants upon the theory that plaintiff was guilty of contributory negligence as a matter of law, saying:
“Reference to the facts as outlined above show that the plaintiff, on a road which he knew well, and on a morning when the weather conditions were bad, stopped his car on the pavement, when it was practicable for bin! to have driven off the highway. Had he taken the precautions of an ordinarily prudent man, he would have looked and observed that he was on the highway, and could have driven off onto the smooth shoulder some 8 or 10 feet in width, to the right. In effect, he stopped on the highway when visibility was bad, the road in bad condition, without determining where he was, and was hit by a car approaching from the rear.”
Plaintiff appeals. "Where judgment is rendered non obstante veredicto, the. testimony most favorable to the party against whom the judgment is rendered must be accepted. Tested in the light of the above rule we find that the pavement over which plaintiff was traveling was 20 feet in width; that snow had fallen during the night making it difficult to determine where the edge of the pavement was; that excepting for a frosted windshield it was not unsafe to drive a car; that traffic was light on the highway; that visibility was such that one could see a car 200 feet away; that at the time plaintiff stopped his car he thought he was off the pavement; that seeing defendant’s car 200 feet away on the opposite side of the pavement, he assumed said car would continue in a straight course; that when plaintiff got out of his car and while in th,e act of cleaning his windshield he again saw defendant 20 feet away, bearing down upon him on plaintiff’s side of the highway; and that realizing the danger he was in and knowing that he could not again re-enter his car, he threw himself upon the hood of his car in order to avoid getting hit.
■Prior to the enactment of Act No. 318, Pub. Acts 1939, amending Act No. 318, § '26, Pub. Acts 1927, the statute relating to parking a vehicle on the highway read as follows:
“It shall be unlawful to park a vehicle on the beaten track or paved surface of any highway outside the limits of any village or city.” 1 Comp. Laws 1929, § 4718 (Stat. Ann. § 9.1586).
Section 26 of the amended act reads as follows:
“Outside of the limits of any city or village, it shall be unlawful to stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or leave such vehicle off such part of said highway.” (Comp. Laws Supp., 1940, § 4718 [Stat. Ann. 1946 Cum. Supp. §.9.1586]).
Under the old act, a temporary stop for necessary purposes did not constitute a violation of the act. In Sahms v. Marcus, 239 Mich. 682, plaintiff stopped his car to recover his wife’s hat ydiich had blown off. We there'said:
‘ ‘ There is a difference between stopping and parking. The general purpose of the statute appears to be aimed at dead vehicles, i.e., vehicles that are unable to move under their own power and are left standing on the pavement. It is- also aimed at live vehicles that are able to move under their own power but are left standing on the pavement without watchman or caretaker, and also to vehicles that are able to move but are standing on the pavement to serve some purpose of the occupant or occupants. We think the idea of the legislature was to keep the improved highways open for travel and free from nonmoving vehicles. This purpose would not prohibit a temporary stop for a necessary reason. See 1 'Blashfield’s Cyclopedia of Automobile Law, p. 558.”
In Bowmaster v. William H. DePree Co., 258 Mich. 538, we held that the owners of a truck were not negligent per se in obstructing the wrong side of a highway for the purpose of rendering assistance to another motorist whose car was in a ditch, where proper notice was given by turning on the bright lights of the truck which was facing in the direction from which traffic would come.
In Edison v. Keene, 262 Mich. 611, we held, that parking on a highway means something more than a mere temporary or momentary stoppage on the road for a necessary purpose.
See, also, Osga v. Clock, 266 Mich. 58.
In entering judgment for defendants non obstante veredicto, the trial court stated:
“Plaintiff, on a road which he knew well, and on a morning when the weather conditions were bad, stopped his car on the pavement, when it was practicable for him to have driven off the highway.” ■
The first question to determine is whether'under the amended act, a temporary stop for necessary purposes may be made without violating the purposes of the amended act. The purpose of the amended act is to prevent the stopping or parking of a car on the main or paved portion of the highway when it can be parked off the main or paved portion of the highway. "\J7e do not think the act was intended to absolutely prohibit a temporary stop for necessary repairs.
Defendants rely upon Holmes v. Merson, 285 Mich. 136, for the rule that the violation of a statute is negligence per se if it is the proximate cause of an injury; and urge that plaintiff may not recover as it was practicable for him to. stop his vehicle off the paved or main traveled portion of the highway as required by Act No. 318, §%26, Pub. Acts 1927, as amended by Act No. 318, Pub. Acts 1939.
Plaintiff urges that he was a pedestrian when he alighted from his car and was standing on the pavement engaged in the act of cleaning his windshield; and that “when it is practicable” to stop off the pavement is a question of fact for a jury and not a question of law for the court. Plaintiff relies upon Marth v. Lambert, 290 Mich. 557, in support of his claim that the contributory negligence of one stopping his automobile upon a paved highway to ascertain if repairs to his automobile are needed becomes a question for the determination of a jury. In that ease plaintiff stopped his ear on a' paved highway, got out of his car and was in the act of examining his gas tank. When plaintiff got out of his car he saw defendant 200 feet away in the center lane of a three-lane highway and traveling in the same direction as plaintiff. We there held that plaintiff was not guilty of contributory negligence as a matter of law.
In the case at bar, plaintiff alighted from his car for the purpose of making necessary repairs. Safe driving required that his windshield be cleaned. He thought he was off the pavement when he stopped his car. Because of the frosted windshield, visibility was bad, whether it was .practicable for him to have driven off the paved portion of the highway under the above circumstances becomes a question upon which the minds of men could well differ. We are unable to say that plaintiff was guilty of con- , tributory negligence as a matter of law in stopping Ms car on tbe Mgbway as above related. Nor can we say that plaintiff was guilty of contributory negligence as a matter of law in doing wbat be did after be bad stopped bis car. He first saw defendant’s car 200 feet away traveling on tbe opposite side of tbe highway from where plaintiff was traveling. When he alighted from his car and while in tbe act of cleaning bis windshield, he saw defendant’s car 20 feet away. At that time be did not have time to re-enter bis car and drive to a place of safety. He did not stand on tbe pavement to await the onrushing ear, but attempted to throw himself onto tbe hood of bis car in order to avoid being bit. Under such circumstances bis contributory negligence becomes a question of fact to bo determined by tbe jury or a trier of facts.
It is conceded that defendant Don Smrfehek was guilty of negligence and there being no question of excessive damages, it follows .that tbe trial court was in error in entering judgment for no cause of action.
Judgment should be reversed and tbe cause should be remanded for entry of judgment on the verdict. Plaintiff should recover costs.
Bushnell, J., concurred with Sharpe, J.
3 Comp. Laws 1929, § 14531 et sec/., as amended by Aet No. 44, Pub. Acts 1939 (Comp. Laws Supp. 1940,' §14531, Stat. Arm, and Stat. Ann. 1946 Cum. Supp. § 27.1461 et seq.).—Reporter. | [
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Fead,
J. Invoking the veterans’ preference act, 1 Comp. Laws 1929, §§ 900-903, as amended by Acts Nos. 66, 67, Pub. Acts 1931, plaintiff prays writ of mandamus to compel the State highway commissioner to reinstate him in his employment as rod-man in the highway department. Issues of fact raised by the pleadings have been tried.
The present commissioner was elected for a four-year term, 1 Comp. Laws 1929, § 4020, and took office July 1, 1933. In May he notified all employees of the department that after July 1st they would be working on a day-to-day basis. Plaintiff, who had worked in the department for five years, continued in the service as a rodman until his discharge on August 10th.
The record shows no reason for his discharge. A few days before, he had been transferred from one road building job to another. Neither was completed when he was dismissed. There was work for him on either job and elsewhere in the department. Other rodmen were being hired to replace him and others discharged. Plaintiff followed the requirements of the statute in demanding a hearing before the governor and for reinstatement. No hearing was granted him.
It is claimed plaintiff’s employment under the former commissioner expired with the latter’s term. Abt v. Wilcox, 264 Mich. 183; Lockwood v. Stoll, 264 Mich. 598. But plaintiff was employed by the present commissioner, although on a day-to-day basis. The statute makes no distinction as to the length of term or character of employment. Having been employed under the present commissioner, plaintiff’s discharge was in violation of the statute and he is entitled to reinstatement.
Writ granted, with costs.
Nelson Sharpe, C. J., and Potter, North, Wiest, Butzel, Bushnbll, and Edward M. Sharpe, JJ., concurred. | [
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Fead, J.
The will of Nicholas Recldnger was offered for probate in Wayne county. Objections to its probate were filed and motion to dismiss the proceeding was made on the ground that deceased was not a resident of Wayne county but was a resident of Macomb county at the time of his death. The contest was certified to the circuit court for trial. In circuit court the motion to dismiss was renewed, and granted.
In the briefs the only question argued is whether deceased was a resident of Wayne or Macomb county when he died. The question is one of fact. The facts are in dispute and the great preponderance of the testimony sustains the finding of the court that he was a resident of Macomb county.
The order dismissing the appeal and petition for probate of the will for lack of jurisdiction is affirmed, with costs.
Nelson Sharpe, C. J., and Potter, North, Wiest, Btjtzel, and Edward M. Sharpe, JJ., concurred. Btjshnell, J., did not sit. | [
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Dethmers, J.
Plaintiff filed complaint in this cause for declaratory judgment on May 6, 1964. He did this in his multiple capacity as resident and citizen of the city of Detroit, as taxpayer on real and personal property therein, and as a fare-paying patron of the Detroit city department of street railways. Defendants are the city, members of its common council, the city treasurer, members of the board of street railway commissioners, and the board of education of the school district of the city of Detroit, all the persons being sued in their official capacities and not individually. I
The ultimate, overall issue, with intermediate questions to be considered, is whether the department of street railways, hereinafter called the DSR, is required to pay ad valorem taxes on its real and personal property situated in the city of Detroit to defendant city or its treasurer for and as determined and certified by the defendant school district.
Involved are the taxes so paid under protest by the DSR for the years 1963 and 1964. Relief sought by plaintiff is a declaratory judgment finding that those taxes, appearing on the city’s tax rolls upon the DSR property, are illegal, void and a nullity, requiring the DSR board members to bring necessary proceedings to obtain a refund from the defendant treasurer of the payments made, or that the treasurer make such, refund, or that defendant city council show cause why it should not grant the DSR petition previously addressed to it to pass a resolution requiring the treasurer to make the refund, and why the DSR property should not be removed from the city tax rolls and the refund be made,
■ Plaintiff says that he is entitled to the relief sought because the exaction of what he terms the-unlawful tax from DSR injures him and other present and potential fare-paying patrons of DSR in that it deprives them of the use and benefit which otherwise would be derived from the use of the large sums paid for taxes in furtherance of the transportation system and its equipment and service.
A show cause order was issued as prayed by plaintiff. The defendant board of education, hereinafter called appellant, prayed for a summary judgment dismissing with prejudice the action against it, on the following grounds:
A. The complaint failed to state a cause of. action against it.
B. The DSR is required to pay the taxes by the Detroit city charter, title 4, chap 13, § 14. '
' C. The appellant is a State agency within the .purview of subdivision (1) of section 4f of the home-rule act, being PA 1909, No 279, as amended by PA 1955, No 26 (CDS 1961, § 117.4f [Stat Ann 1963 Cum Supp § 5.2079]), which requires payment of State taxes by the publicly owned utility.
The appellant’s motion was denied. The - DSR filed a motion for summary judgment in its favor granting in substance the same relief sought by plaintiff. The trial court filed an opinion holding for plaintiff and for the DSR and entered a declará.tory judgment accordingly.
The appellant filed claim of appeal to this Court. Then appellant filed claim of appeal in the Court of Appeals. Thereafter, this Court granted appellant’s application for leave to appeal to this Court prior to decision by the Court of Appeals, a,s provided and permitted under GCR 1963, 852, as modified by GCR 1963, 800.12(1). Thus, the case is now before us for decision.
Appellant relies, in support of its position that plaintiff’s petition should be dismissed on. the following statutory and charter provisions:
Subdivision (1) of section 4f of the home-rule act, PA 1909, No 279, as amended by PA 1955, No 26 (CLS 1961, § 117.4f [Stat Ann 1963 Cum Supp § 5.2079]), which provides, with respect to a .city owned transportation utility, in part, as. follows: ■
“When a transportation utility is so acquired, State and county taxes shall be paid thereon as if privately owned, also local taxes on any portion of such property lying outside of the city limits.” (Emphasis supplied.)
The Detroit city charter, title 4, chap 13, § 14, reads, in part, as follows:
“The rate of fare on said street railway. system shall be sufficient to pay, and the said board shall cause to be paid: * * *
“(b) Taxes on the physical property of the entire street car system, the same as though privately owned.” (Emphasis supplied.)
Section 53 of the general property tax act (CL 1948, § 211.53, as amended by PA 1962, No 133 [Stat Ann 1965 Cum Supp §7.97]), provides, in part, as follows:
“Any person may pay the taxes or special assessments, or any one of the several taxes or ■ special assessments, on any parcel or description of land, or on any undivided share thereof, and the treasurer shall note across the face of the receipt in ink any portion of the taxes or special assessments remaining unpaid. He may pay any tax or special assessment, whether levied on personal or real property, under protest, to the treasurer, specifying at the time, in writing, signed by him, the grounds of such protest, and such treasurer shall minute the fact of such protest on the tax roll and in the receipt given. The person paying under such protest may, within 30 days and not afterwards, sue the township for the amount paid, and recover, if the tax or special assessment is shown to be illegal for the reason shown in such protest.”
' Also pertinent here are the provisions of section 196 of the school code of 1955 (CLS 1961, § 340.196 [Stat Ann 1959 Rev §15.3196]), reading, in part, as follows:
! “The board shall thereafter adopt a budget in the same manner and form as required for its estimates and determine the amount of tax levy necessary for such budget and shall certify on or before the Wednesday following the first Monday in June said amount to the assessing officers of the city who shall apportion the school taxes, together with other taxes of the city; the amount so apportioned shall be assessed, levied, collected and returned for the school district in the same manner as taxes of the city; and the city treasurer shall return to the school district its portion of the total tax collections on a percentage basis; Provided, however, That the tax levied by the board may in the discretion of the legislative body of the city be stated separately on each tax bill.” (Emphasis supplied.)
In that connection the Detroit city charter, title 6, chap 4, § 33, provides:
“Sec. 33. State, County and School Taxes: * * * School taxes for the purposes of the board of education of the city of Detroit shall be levied and collected the same as other city taxes.” (Emphasis supplied.)
Appellant reasons that a school board is a State agency, that therefore taxes for its support are State taxes and, hence, under subdivision (1) of section 4f, above quoted, DSE» is required to pay those taxes. Whether or not appellant is a State agency is not controlling of the main issue in this case. The question, rather, is what the legislative intent was as expressed in the enactment of the home-rule act and its authorization of municipal acquisition of a transportation utility, and, particularly, its subdivision (1) of section 4f and the term “State taxes” therein contained.
At the time of enactment of the home-rule act, PA 1909, No 279, and at the time of the amendment thereof by PA 1929, No 126, with its use of the said term “State tax” in subdivision (1) of section 4f, there was assessed annually under the general property tax act (see CL 1897, §3858; CL 1929, § 3423) a tax “to be raised for State purposes”. This continued until adoption of the sales tax act in 1933. In directing the manner of assessment of the several taxes under the general property tax act (see CL 1897, § 3862; CL 1929, § 3428) the statute provided that the assessor should enter the several taxes in separate columns, as follows: “All school taxes and the 1 mill tax in one column * * * and the State taxes in another column.” This clearly evidences a legislative intent that school taxes and State taxes were not to be considered the same. In speaking of State taxes in subdivision (1) of section 4f the legislature must be deemed to have used the term in the sense in which it was understood at the time. Husted v. Consumers Power Company, 376 Mich 41. We are satisfied that /‘State taxes” as used in subdivision (1) of section 4f meant and means in the quoted language of CL 1929, § 3423, “taxes to be raised for State purposes” and that these were not the same as school taxes which CL 1929, § 3428, required to be entered by the assessor in separate columns.
Next it will be observed, in the above quoted section 196 of the school code of 1955, that in providing for adoption of a budget by the school board and determination by it of the amount of tax levy necessary for such budget and certification thereof to the assessing officers of the city, the latter are directed to “apportion the school taxes, together with other taxes of the city”. The language is eloquent of the fact that in legislative contemplation, even in these latter days, taxes for support of local schools and State taxes are not the same.
We hold, therefore, that subdivision (1) of section 4f does not impose upon DSR the burden of paying the taxes in question.
Appellant’s next reliance is on the language of above quoted city charter, title 4, chap 13, § 14. We agree with the trial court that it should be deemed to be only a provision relating to fixing of fares, and not an imposition- of a tax on the DSR. If it were the latter, we observe that no authority therefor in the State Constitution or statute has been called to our attention. On the contrary, it would appear to clash with the provision in the statute (section 4f[l]) that the utility shall pay on its property State taxes, which we hold these are not, and “álso local taxes on any portion of such property lying outside of the city limits”. The implication is clear that it is not to pay local taxes on property within the city limits. The charter may not and-cannot validly provide otherwise.
Finally, appellant directs attention to section 53 of the general property tax act, as hereinbefore set forth, and its provision that any person may pay taxes on property under protest, and sue to recover same “within 30 days and not afterwards”. This suit was not brought within 30 days of payment, of the tax. The trial court, in its opinion, said:
“In raising such legal question, defendants have failed to take into consideration that this cause does not involve an action by a taxpayer to obtain a refund" of taxes voluntarily or involuntarily paid in the usual contest of such proceedings. Instead, this cause seeks in accordance with the provisions of QCR 1963, 521, a judicial declaration of the legal positions of the respective parties with relation to obtaining a bookkeeping credit for money transferred from a department of the city of. Detroit to the treasurer thereof.
“Relief granted to the plaintiff and cross-complainant in this cause will result only in the transfer of funds from ‘one pocket of the city of Detroit to another pocket of the city of Detroit’ and no actual physical payment or retention of money by a taxpayer will result therefrom.”
This language of the trial court is said to be erroneous in that a holding for plaintiff would involve more than “the transfer of funds from one pocket of the city of Detroit to another pocket of the city of Detroit”, with “no actual physical payment or retention of money by a taxpayer”. Instead, according to appellant’s position, a finding for plaintiff would result in less tax money for it and more money for the DSR. To this the appellees say that under the provisions of the above quoted CLS 1961, § 340.196 (Stat Ann 1959 Rev § 15.3196), after the school board adopts a budget and certifies to the assessing officers of the city the amount of tax levy necessary for such budget, it becomes the duty of city officers to apportion the school taxes, assess, levy, and collect same, and the city treasurer shall return to the school district its portion. So, say appellees, the appellant is entitled to and will receive the amount of its budget as thus certified, regardless of whether the assessors correctly or incorrectly assess the same against specific properties. This, by implication, appears to be urged as support for the trial court’s expressed view that no recovery of taxes by a taxpayer but only a transfer of funds from one of the city’s pockets to another is here involved and, hence, the 30-day limitation for suit has no application.
Whatever may be said in that connection, a more dispositive factor is that plaintiff, in the capacities above noted and especially as a fare-paying patron of the DSR, is a proper party to bring this action and that declaratory judgment is an appropriately sought remedy. Neither the statutory provisions formerly pertaining to declaratory judgments (CL 1948, § 691.501 et seq. [Stat Ann § 27.501 et seq.l) nor the presently governing Q-CR 1963, 521 have expressly provided for a time limitation for bringing suit for a declaratory judgment. Reference is made to annotations commencing at 151 ALR 1076. The assumption in the discussions there is that in the jurisdictions considered “there is no particular limitation applicable specifically to declaratory actions” and that there is “a blanket provision fixing the time of institution of all other actions for which no specific limitation has been prescribed by the other sections of the statute” (like the 6-year blanket provision in Michigan [CLS 1961, § 600.5813 (Stat Ann 1962 Rev § 27A.5813)]). These annotations have to do largely with the problem of when limitations of actions start running in suits for declaratory relief rather than what the limitation shall be or is. Interestingly, however, the annotations follow the report of Maguire v. Hibernia Savings & Loan Society, 151 ALR 1062 (23 Cal 2d 719; 146 P2d 673), in which the California court is of the view that, absent a limitation in the statute itself providing for declaratory relief (p 1074), “The period of limitations applicable to ordinary actions at law and suits in equity should be applied in like manner to actions for declaratory relief.” Such view should alleviate any fears that granting plaintiff the relief sought as to the 1963 tax would open the door as well to refund of the 1953 or 1943 tax. Our ordinary statute of limitations and its above cited blanket provision should take care of the expressed concern over according excessive retro-activity to declaratory relief.
The citation, in this connection, of Finlayson v. Township of West Bloomfield, 320 Mich 350, is scarcely more comforting for appellant. There plaintiffs, as electors, sought by suit for declaratory judgment to test the validity of a township election. A special statute (CL 1929, §§ 15298, 15299 [Stat Ann §§ 27.2342, 27.2343]) provided for such test by petition for quo warranto to be filed within 30 days after the election. The holding in the case was (1) that suit for declaratory judgment would not lie because the statute had provided plaintiffs with the needed remedy exclusively by petition for quo warranto and (2) that the 30-day limitation in that statute would not permit remanding of a suit for declaratory judgment, brought after the 30-day period had run, for consideration by the trial court as a quo warranto action. This decision has no bearing on plaintiff’s situation here, in which he properly proceeded by petition for declaration of rights because he had no special, exclusive, statutorily created right to sue within 30 days for and to recover the amount paid. That applied to the. taxpayer, not to plaintiff.
■ We hold that plaintiff is a proper party plaintiff and, as such, has a personal right to bring this suit. It is not derivative. His right in that respect could not be prejudiced, limited, or destroyed by the disinterest, neglect, or ignorance of the DSR. Whether the latter chose to pay the tax voluntarily or under-protest or to sue within 30 days thereafter, or later, or not at all, could not destroy plaintiff’s right to a declaratory judgment. Accordingly, the statutory 30-day limitation on suit by taxpayer to -recover, taxes paid by him under protest is not applicable to plaintiff in this action.
Note is taken of the language of State act and ordinance, above, that when the municipally owned utility is to pay taxes on its property it shall be “the same as though privately owned” or the.taxes shall be’ paid thereon “as if privately owned”. Whether’ private ownership should be thus protected against the unfair competition of a publicly-owned utility benefited by exemption from tax liability, is a policy matter not for court considération. That belongs only in the legislative realm.
Affirmed. No costs, a public question being involved.
O’Hara, J., concurred with Dethmers, J. | [
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Stare, J.
Upon plaintiff’s petition filed February 5, 1944, the trial court issued writ of habeas corpus for the purpose of inquiring into defendants’ alleged unlawful detention of plaintiff’s legally-adopted six-year-old son, Karl Francis Liebert. Defendants answered denying plaintiff’s right to the custody of said child. The matter was brought on for hearing, testimony was taken, and the trial court entered an order dismissing plaintiff’s petition and granting defendants custody of the child. Having obtained leave, plaintiff appeals from such order. In reviewing habeas corpus proceedings involving the custody of a minor child, we examine the record to ascertain if the welfare and best interests of the child have been protected and the legal rights of the’parties properly determined.
The boy, Karl Francis, was born June 14, 1937, and when about three months old was legally adopted by plaintiff and his former wife. The order confirming such adoption was entered in the probate court for Calhoun county September 21,1937. Upon the accidental death of his wife in 1939, plaintiff placed the boy in defendants ’ care, but there was no agreement that they should have his custody permanently. Defendant Flossie Derse, a sister of plaintiff’s deceased wife, testified in part:
“ I realize Mr. Liebert (plaintiff) is the legal parent and guardian the same as a father. It wasn’t our intention to keep him (Karl Francis) right from the first. ■* *'.*
. “Q. * * * When did you decide that Karl should stay with you?
“A. When he showed a preference' and objected to going.”
It appears that at the same time plaintiff placed the boy Karl Francis in defendants’ care, he also placed in their care his eight-year-old daughter by a previous marriage. He visited the children weekly and paid defendants $14 a week for their support and care. After his daughter returned to his home in June, 1943, he paid defendants $7 a week for the boy’s care. In March, 1943, plaintiff remarried and established a home in Grand Rapids. He testified in part:
“My daughter * # * came to live with us on or about June 14th. At that time we had the intention of taking Karl but we were sort of talked into an idea of leaving Karl (with defendants) until school started. I wrote a letter asking that they have Karl ready to return with me on August 29 (1943), and when I went to get my boy I was refused him.
“I made full payment of the board up to August 29th. * * *
“I consider the boy to be my own child and plan to be a father to him in every respect. I feel that onr family environment will be desirable for the child.”
In his opinion the trial court said in part:
‘ ‘ There is a pleasant aspect to this case presented through -the fact that I have observed no attempt on the part of the witnesses on either side to discolor or misrepresent the facts. * * *
“On the part of the plaintiff it appears that he has a good home in Grand Rapids and there is nothing in the proof from which any unfavorable inference can be drawn against the plaintiff or his present wife. And the interest which he manifested at this time in the child which he adopted *' * * is a commendable one. * * #
“It is quite possible that in time the child might react favorably to a change of custody. But as the matter stands at the present time, I do not feel that I would be justified in disturbing the wholesome and happy surroundings now existing.
“It is the order of this court that for the best interest of the child and without any reflections upon the plaintiff, the petition should■ be denied.”
The testimony indicates that plaintiff and his present wife are substantial and respectable people. He is 43 years old, is regularly employed, and says that he is able to provide for the boy adequately. He owns and maintains his home, equipped with modern conveniences and located near a city park. He showed his affection for and interest in the boy by visiting him regularly while he was in defendants’ care and in paying for his support for several years. His wife said that they had redecorated a room in their home and made it into a boy’s room for Karl.
The testimony likewise indicates that defendants are respectable people and that they gave plaintiff’s children good care. Defendant Francis Derse, who is 54 years old, has five grown children, all married. He was obliged to give np factory work because afflicted with arthritis. He and his wife, Flossie Derse, live in a four-room, unfinished house on a farm about a mile from White Cloud, where the boy Karl Francis attended school. Mrs. Derse said, “We do not have very many neighbors, but we have one colored family living across the road from us.”
Defendants admit receiving payment from plaintiff for their support and care of both the children, and they base their refusal to surrender the boy on the ground that he prefers to remain with them. They make no showing whatever that plaintiff is not a proper and suitable person to have the boy’s care and custody. Defendant Francis Derse said, “I have nothing that I feel about the character of Mr. Liebert (plaintiff) that isn’t proper.” A witness called by defendants said, “I do not have a thing to say against Mr. Liebert.” Defendant Flossie Derse testified :
“I have no complaints to make about any person or place. Mr. Liebert was faithful in his payments until August 29, 1943. I have never told Karl that he must go. I have told him that his daddy would be good to him and that he would have a nice home and they like him very much and are very nice people.”
The question presented on this appeal is whether or not the trial court erred in dismissing plaintiff’s petition and in granting defendants custody of the child. As the legal parent of the adopted child, plaintiff is entitled to all the rights of a parent under the probate code, Act No. 288, chap. 10, § 5, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-10 [5], Stat. Ann, 1943 Kev. §27.3178 [545]), which provides in part:
uThe person or persons so adopting such child shall thereupon stand in the place of a parent or parents to such child in law, and be liable to all the duties and entitled to all the rights of parents thereto-, and such child shall thereupon become and be an heir at law of such person or persons, the same as if he or she were in fact the child of such person or persons.”
See Greenman v. Gillerman’s Estate, 188 Mich. 74. In the absence of a showing that he is not a suitable person to have the custody of the child, plaintiff, as the surviving parent, is legally entitled to his custody under the probate code, Act No. 288, chap. 3, § 6, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-3 [6], Stat. Ann. 1943 Eev. § 27.3178 [206]), which provides in part:
“The father or mother of the minor, and if 1 of them be deceased, then the survivor thereof, being respectively competent to transact their own business, and othenvise suitable, shall be entitled to the custody of the person of the minor and to the care of his education. ’ ’
We recognize the long-established rule that the best interest of the child is of paramount importance, Martin v. Benzie Circuit Judge, 200 Mich. 549; In re Gould, 174 Mich. 663, and that it is our judicial duty to safeguard his welfare and care, Bird v. Bird, 308 Mich. 230. However, we never have interpreted such rule so as to deprive a parent of the custody of •his or her child, unless it was shown that the parent was an unsuitable person to have such custody. It should be borne in mind that, in the present case, there was no showing that plaintiff was not a suitable and proper person to have the custody of his son.
In Partch v. Baird, 227 Mich. 660 (affirmed on rehearing in 230 Mich. 615), plaintiff’s wife, before her death, had expressed a wish that their infant son remain with defendant, her mother. Her wish was carried out, and plaintiff left the child with defendant. When the boy was about six years old, plaintiff, having remarried and established his own home, began habeas corpus proceedings to obtain his custody. The trial court determined that the boy should remain with the grandmother. In reversing the trial court and awarding the father custody, we said in part, pp. 665, 666:
“Plaintiff being now in a situation to take care of his boy, he wants him with him. Plaintiff’s wife shares his desire and is willing that the boy should be brought to her home and is willing to mother him. * * *
“The testimony convinces us that the father is fond of his boy and is now in a position to take birr) into his own home, care for him and look after his education. During the years the boy lived with defendant the father visited him on an average of once in two weeks. * * *
“He (plaintiff) has paid defendant $2,557 for the care and attention which she has bestowed upon him. Defendant does not think plaintiff’s home is as suitable as hers, but we think no objection can be urged against the father’s home. * * *
“If the father be a suitable person, the statute gives him the right to the custody of his minor son. 3 Comp. Latvs 1915, % 13955 (substantially the same as chapter 3, § 6, of the probate code,- hereinbefore quoted). The showing made by defendant is not sufficient to establish the fact that plaintiff (father) is an unsuitable person, and the trial court did not find that he was unsuitable.
‘ ‘ The judgment of the trial court must be reversed and one entered giving plaintiff the custody of his boy.”
In the case of In re Goldinger, 207 Mich. 99, the plaintiff’s wife had died and their infant child was placed in the care of defendant, the deceased wife’s mother. About three years later plaintiff, having-remarried, began habeas corpus proceedings to obtain custody of the child. The trial court entered an order giving the grandmother custody. On appeal we reversed1 such order and, after recognizing the rule that our first consideration was the best interest of the child, we said, pp. 104, 106:
“We are unable to find, however, that this court has ever said, or interpreted the rule to mean, that a father would be deprived of the possession of his child where it clearly appears that he is a man of good habits, honest, and well able to provide for his child. * * * He never relinquished the right of the custody of his child, and it was only a short period1 after his second marriage that he requested its possession. It may be true that the respondent (grandmother) is as much attached to the child as the parent and that she is as suitable to have its custody and as able to provide and care for'it, but nevertheless, unless it clearly appears that the parent is for some reason unfit to have its possession, the rule is well established in our law that the parent is entitled do the possession of his child against all others. * # *
“The respondent having failed do show that the father '* * * is not a fit person to have the care and custody of his son, it follows that the order made by the learned trial judge must be vacated and an order entered awarding the permanent cu,stody of his child to the petitioner.”
In the case of In re Adams, 214 Mich. 199, the plaintiff father began habeas corpus proceedings in this court to obtain the custody of his infant daughter. We declined to assume original jurisdiction, as another proceeding involving the custody of the child was pending in circuit court. However, in recognizing the father’s right to the child, we said, p. 204: , ' '
‘ ‘ The law makes him her guardian by nature and for nurture, prima facie entitled to her care and custody. Bearing in mind also the' child’s best interests, the courts will primarily ‘feel bound to restore the custody where the law places it, with, the father, unless in a clear and' strong case of unfitness on his part to have such custody.’ ”
In the case of Chevlin v. Turner, 274 Mich. 249, plaintiff began habeas corpus proceedings against defendants, her father and mother, to obtain possession of her eight-year-old son. It appeared that she had been divorced and the child left in the care of defendants, who refused to surrender him. Plaintiff remarried and demanded possession of her child. In affirming an order .awarding plaintiff custody, we said, p. 251:
“The mother seems now to be established in a suitable home and to be capable of taking and caring for her son. * * * She has never yielded her legal right to the custody of this child. * * *
“That the child has been well cared for in the home of the grandparents .cannot be questioned. * * *. Primarily the mother is legally entitled to the custody of her eight-year-old child. * * * Relying much on the facts and reasoning in Re Goldinger, 207 Mich. 99, the circuit judge found that the mother was entitled to the custody of this child. ’ ’
In the present case defendants base their refusal to give plaintiff custody of his son solely on the ground that he prefers to remain with them. They make no material charges or accusations against either plaintiff or his present wife. They make no showing whatever that plaintiff is not a suitable and proper person to have his son’s custody. When ■placed on the witness stand, the boy said, in substance, that he thought his father would be good to him, but that he preferred to stay with defendants. Such preference was the natural desire of a small child1 to remain in the environment to which he had become accustomed. While his wishes are entitled to consideration, it is clear that a six-year-old child is hardly competent to determine what environment and whose custody are best for his present and future welfare. Furthermore,' his present wish to remain with defendants cannot overrule the established legal right of his father to his custody. In Smith v. Kiel, 150 Mich. 417, the father began habeas corpus proceedings against the grandparents to obtain custody of his daughter, who was about nine years old. In affirming the trial court’s award of custody to the father, we said in part:
“The child gave no testimony, but counsel for defendants requested the court to question her. This the court declined to do, saying that her wishes could not be permitted to overrule legal rights. From this and the language of the opinion which was filed, it is made clear that, having become convinced that both the father and the grandparents were suitable persons to have the care of the child, decision was based upon the idea of the. superior legal right of the parent.”
We conclude that in the absence of a showing that plaintiff is not a suitable person to have the custody of his son, he is legally entitled to such custody. Furthermore, under all the facts and circumstances shown by the record, we believe it is for the boy’s best interest that he be returned to his father.
The factual situations considered in the several authorities cited by defendants distinguish them from the present case. Other questions raised by defendants do not require consideration.
The order of the trial court dismissing plaintiff’s petition is vacated and set aside. The case is remanded with direction to enter an order granting plaintiff’s petition and awarding him custody of the child. Plaintiff shall recover costs.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reíd-, JJ., concurred. | [
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Reid, J.
Plaintiff and defendant entered into a written agreement covering compensation for disablement of plaintiff for silicosis incurred in the course of his employment, which agreement was approved in April, 1944 by the department of labor and industry. Afterwards, plaintiff made an application- for further compensation before the department, which application was amended to constitute the same a petition for review of payments. This petition after a hearing before a deputy commissioner was denied. Upon appeal the department reversed the deputy and awarded compensation in accordance with plaintiff’s claim. Defendant appeals from the award by the department. v.
Plaintiff claims that the method of computation of the award as considered by the deputy commis sioner, which, computation was made by appellant’s superintendent and attached as a rider to the agreement, was incorrect, and that the doctrine of res judicata does not apply to the agreement and computation set out in the rider attached to the agreement; further, that the award by the deputy based on the rider attached to the agreement was contrary to the statute. • Plaintiff further claims that because he suffered from silicosis contracted in the employment and was totally disabled thereby for employment in the occupation in which he contracted the disease, he is entitled t'o receive compensation in total payments of $3,000, under Act No. 10, pt. 7, § 4, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937, and amended by Act No. 3, Pub. Acts 1937 (Ex. Sess.) (Comp. Laws Supp. 1940. § 8485-4, Stat. Ann. 1942 Cum. Supp. § 17.223).
Defendant claims that the computation in the agreement, including the rider, is correct; that the approval of the agreement by the department amounted to an award; that the department was 'without authority to grant a rehearing and without authority to make an award different in effect, after having approved the agreement. Defendant further claims that compensation is payable weekly from the date of disablement, and that the employer is entitled to credit for the number of weeks the em- ^ ployee earns wages and receives partial compensation, said credit to be applied against the total number of weeks that the maximum amount recoverable is to be spread, and that there should also be a reduction of the maximum amount of compensation specified in part 7, § 4 of the-act, proportionate to the reduction in the employee’s earning capacity.
On December 15, 1941, plaintiff became totally disabled to perform his work as a miner and was on that day removed from further exposure to the silica hazard. Thereafter he received lesser wages than he had received as a miner, hut still worked for defendant, first as a powder man until April 16, 1942, and later on the surface until March 10, 1944, when his employment was terminated. He was hospitalized for treatment of silicosis on March 30, 1944. On April 3, 1944, plaintiff entered into an agreement with the defendant in regard to compensation. The agreement provided that December 15, 1941 was the date of the disablement, the cause, silicosis developed during plaintiff’s employment, and the compensation rate, $18 per week. Attached to the agreement at the time of filing was a rider, prepared and submitted by the defendant, showing the method of computation and the payments made to the employee during the period he worked at diminished wages following his disablement.
For purposes of decision herein, we may assume that the rider is part of the agreement. The rider is as follows:
“Date of disablement being Dec. 15, 1941 the total compensation payable would be $2,950 at $18 per week for 164 weeks from Dec. 15, 1941.
“Earnings 12/15/41 to 3/10/44, inch, 116-5/6 weeks at $46.98 (average weekly wage prior to' disablement)
$5,488.83
“Actual earnings during above period
4,213.21
“Reduction in earning capacity
$1,275.62
“Percentage of reduction in earning capacity (per proviso part 7, § 3) 1275.62 ~ 5488.83 = 23.24 per cent.
“Full compensation for above period, 116-5/6 weeks at $18 $2,103.00
“Percentage of full compensation proportionate to reduction in earning capacity (per proviso part 7, § 3). 23.24 per cent, of $2,103
$ 488.74”
In July, 1945, plaintiff filed application for further compensation and amended to constitute the same a petition for review of payments. Defendant pleaded the agreement in question as res judicata. The deputy commissioner denied plaintiff relief, sustaining defendant’s plea of res judicata, and denied a rehearing, relying upon Estate of Beckwith v. Spooner, 183 Mich. 323 (Ann. Cas. 1916 E, 886); Winn v. Adjustable Table Co., 193 Mich. 127 (13 N. C. C. A. 612); Wicko v. Ford Motor Co., 292 Mich. 335. The department reversed the deputy and ordered that defendant pay plaintiff compensation of $18 per week from February 3, 1945, until the payments, both partial and total compensation, aggregated $3,000.
On this appeal the controlling question is whether defendant is correct in its contention that because it has paid to plaintiff partial compensation for 116-5/6 weeks that period should be deducted from the total number of weeks during which plaintiff would be entitled to compensation at $18 per week until he received a total of $3,000, providing his total disability continued. In making this contention defendant relies upon the so-called rider which was attached to the 1944 settlement agreement. In effect defendant’s contention would result in the compensation which plaintiff is entitled to receive being governed by the number of weeks during which compensation was paid. There is no such provision in the statute. Instead the statute provides, as applied to the facts in the instant case, that the amount of compensation to be paid is limited to $3,000, providing the employee’s total disability continues until that amount of compensation accrues.
The above raises the question as to whether or not the 1944 settlement agreement as approved by the department limited plaintiff’s right to recover as contended by defendant, such claim being made by defendant on the ground of res judicata.
Because we deem it not essential to decision, we forego any consideration of the lack of power of the department to limit an employee’s compensation in a manner contrary to the terms of the workmen’s compensation act. Instead we are content to rest decision on the 1944 settlement agreement as approved by the department, including the rider attached thereto.
The approved agreement, after stating plaintiff’s employment by defendant, his' disability resulting from silicosis, his disablement as of December 15, 1941, his average weekly wage of $46.98, provides:
“It is agreed, that compensation be paid at the rate of $18 per week, during total disability of -weeks. ’ ’
The attached rider contains a statement showing the percentage by which plaintiff’s earnings were reduced during the 116-5/6 weeks that he worked after the agreed date of his disablement as being 23.24 per cent. At the time of the agreed settlement such computation was only material for the purpose of disclosing how much compensation defendant conceded plaintiff was entitled to receive during' the period of his partial disability. It in no way, except as hereinafter noted, restricts the total amount of compensation provided in the statute limiting the amount to $3,000. The statute provides:
“Sec. 4. Compensation shall not be payable for partial disability dpe to silicosis or other dust disease. In the event of temporary or permanent total disability or death from silicosis or other dust disease, notwithstanding any other provisions of this act, compensation shall be payable under this part to employees in the employments enumerated in section two of this part, or to their dependents in the following manner and amounts: If disablement or death occurs during the first calendar month in which this act becomes effective not exceeding the sum of five hundred dollars; if disablement of death occurs during the second calendar month after which this act becomes effective not exceeding the sum of five hundred and fifty’ dollars; thereafter the total compensation and benefits payable for disability and death shall increase at the rate of fifty dollars each calendar month. The aggregate amount payable shall be determined by the total amount payable in the month in which disablement or death occurs. In no event shall such compensation exceed an aggregate total of three thousand dollars.” Act No. 10, pt. 7, § 4, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937, and amended by Act No. 3, Pub. Acts 1937 (Ex. Sess.) (Comp. Laws Supp. 1940, § 8485-4, Stat. Ann. 1942 Cum. Supp. § 17.223). Amendments made in 1943 and 1945 do npt apply.
"We do not overlook the fact that the rider contains the following:
“Date of disablement being Dec. 15, 1941 the total compensation payable would be $2,950 at $18 per week for 164 weeks from Dec. 15, 1941.”
Notwithstanding the above recital that total compensation would be $2,950, the department found that the total would be $3,000. This rather inconsequential discrepancy in the-amount is due to the department’s finding that plaintiff was' in defendant’s employment for a greater number of weeks after the act became effective than was assumed in defendant’s computation. We do not understand that the discrepancy just above noted is urged as a ground of reversing or modifying the award from which this appeal was taken.
Careful consideration of this record brings the conclusion that there was no provision contained in the 1944 approved settlement, including the rider, which restricted plaintiff’s right to compensation, providing his total disability continued, to a lesser amount than $3,000, as provided in the statute. It follows that decision herein is not controlled by res judicata.
In appellant’s brief it is further asserted that:
“The department determined that section 4 of part 7 of the act permits recovery of the maximum of $3,000 in any and all events when disablement occurs in December, 1941, allowing plaintiff said sum notwithstanding that he earned $4,2Í3.21 at other work for' defendant for and during the first 116-5/6 weeks from and after the date of disablement, and notwithstanding said proviso of section 3 of part 7 of the act which provides that ‘the compensation payable shall lie a percentage of full compensation proportionate to the reduction in his earning capacity
“Defendant, appellant, contends that said $3,000 as well as the period of time over which payments must be spread, must be reduced accordingly, in conformity with said proviso of section 3-of part 7 of the act.”
We cannot construe the controlling portion of the compensation act in accord with the above noted contention of appellant. 'Notwithstanding, for the purpose of determining the amount of compensation that plaintiff was entitled to at the time of the 1944 settlement agreement, computation was presented in the rider on the theory of reduced compensation because of plaintiff’s earnings during the corresponding period, that did not nullify plaintiff’s right -to recover compensation as provided in section 4 above noted. In this connection it must be noted that section 4 provides:
“Compensation shall not he payable for partial disability due to silicosis or other dust disease. * * * The aggregate amount payable shall be determined by the total amount payable in the month in which disablement or death occurs. In no event shall such compensation exceed an aggregate total of three thousand dollars.”
Under the record in the instant case, assuming plaintiff’s disablement continues during • the full period, the award of the department was correct. In holding as above we are mindful that the former statutory provision that an agreement entered into by the respective parties as to compensation if approved by the department “shall be deemed final and binding upon the parties thereto” (2 Comp. Laws 1929, § 8444 [Stat. Ann. § 17.178] was deleted from the statute in 1943. See 2 Comp. Laws 1929, § 8444, as amended by Act No. 245, Pub.' Acts 1943 [Comp. Laws Supp. 1945, § 8444, Stat. Ann. 1946 Cum. Supp. § 17.178]). On this appeal no question is raised involving the change of the statute, and hence we do not discuss it. herein.
The award of the department which in part reads as follows: “Therefore, it is ordered, that * * * defendant shall pay to the plaintiff compensation of $18 per week from February 3, 1945 until the payments in this cause, both partial and total compensation, aggregate $3,000” is affirmed, with costs to appellee.
Btjtzel, C. J., and Carr, Btjshnell, Sharpe, Boyles, and North, JJ., concurred. ‘ Starr, J., took no part in the decision of this case. | [
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