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Per Curiam.
Plaintiffs sued defendant for damages arising out of an automotive collision. Their essential allegation, summarized by counsel, is that the defendant board of county road commissioners “negligently and carelessly caused the intersection of Ravine road and B avenue and the approaches thereto from the south and the west to be in a dangerous and unsafe condition,” which condition caused the collision. The following portion of defendant’s answer poses the question plaintiff Gerald L. Squires and plaintiff Cecilia J. Brower (formerly Squires) would review:
“that the plaintiff and/or his agents, attorneys and Cecilia Squires, whose married name is Cecilia J. Brower, have made a claim for injuries sustained by the said Cecilia J. Squires, now Brower, as a result of the negligence and liability of Lewis J. Folk, and that a determination has been made determining that the said Lewis J. Folk was guilty of negligence which was a proximate cause of her injuries, and that said plaintiff, Gerald Squires and/or Cecilia J. Squires, now Brower, have been paid as a result of said claim the sum of $10,000, and that said plaintiffs, having participated in said determination, are bound thereby.”
The named plaintiffs moved to strike the above from defendant’s answer. The motion was denied in circuit. Leave to appeal was denied by the Court of Appeals. The two movants apply to this Court for leave to appeal.
The issue submitted by the application arose out of so-called uninsured motorist coverage. The opinion of the circuit judge proceeds:
“Under the terms of the policy, plaintiffs Squires filed a claim against its [their] insurance carrier (State Farm), and after an arbitration hearing plaintiffs Squires were awarded $10,000. Under the terms of the policy of insurance, State Farm is entitled to $10,000 of the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of plaintiffs Squires against any person or organization legally responsible for the bodily injury because of which the $10,000 payment was made by State Farm.”
In lieu of leave and on motion of the Court (see GCR 1963, 853.2 [4]) the Court of Appeals is directed to enter an order vacating the circuit court’s order of June 23, 1966, and granting movants’ motion to strike all of the quoted portion of defendant’s said answer. This Court holds that the right to dam ages for wrongs, such as plaintiffs Gerald L. Squires and Cecilia J. Brower allege against the defendant Board of Road Commissioners, is not to he diminished by the fact that they, plaintiffs Gerald L. Squires and Cecilia J. Brower, either or both, have been wholly or partly indemnified by insurance effected and paid for by plaintiff Gerald L. Squires. See Justice Cooley’s reasoning in Perrott v. Shearer, 17 Mich 48 and Motts v. Michigan Cab Co., 274 Mich 437, Royer v. Eskovitz, 358 Mich 279 (2 ALR 3d 286) and Canning v. Hannaford, 373 Mich 41.
T. M. Kavanagh, C. J., and Dethmers, Kelly, Black, Souris, O’Hara, and Adams, JJ., concurred.
Brennan, J., took no part in the decision of this case. | [
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T. M. Kavanagh, C. J.
Plaintiff, a grade school teacher, seeks compensation for injuries received in a car accident which occurred on her way home from school on September 21, 1959. The workmen’s compensation appeal board, relying on the rule of Baas v. Society for Christian Instruction, 371 Mich 622, overruled a referee’s order granting compensation benefits to plaintiff. This is an appeal by plaintiff, on leave granted, from the Court of Appeals’ denial of leave to appeal the order of the workmen’s compensation appeal board.
The evidence conclusively established that plaintiff had no time whatsoever at school to prepare lessons for her pupils or correct papers and was absolutely required to do work at home in order to properly perform her duties. The school principal and superintendent testified they expected and required plaintiff to take books home with her and do work at home. It was further established that all grade school teachers were required to take books home and to do work at home, since they had no time during the school hours to grade papers and prepare future lessons.
It was also established that along the road going to and from work plaintiff would on occasion stop to collect leaves, flowers and bird nests for nature study instructions for the children. The books she was carrying were not owned by the teacher but Were furnished by the school. The school principal testified that plaintiff was “one of the best” as a teacher.
Plaintiff contends she was performing a duty (transporting school work) expected and required of her by her employer.
Plaintiff has launched a direct attack on the Baas Case, supra, contending that this case, and others like it, can be properly disposed of by application of the “twofold-purpose” or “dual-purpose” doctrine.
The “going and coming cases” were discussed in Howard v. City of Detroit, 377 Mich 102. There, compensation was awarded to an employee injured while returning to work on a split-shift schedule, on the theory that a split-shift explosed the employee to the hazards of highway travel to a greater extent than an ordinary shift. Plaintiff Ploward was concededly on his own time and performing no service for his employer. Mrs. Burchett, on the other hand, was transporting papers and other school property when she was injured. Examination of previous Michigan cases discloses that this injustice need not be perpetuated.
The dual-purpose rule was in effect in Michigan as long ago as 1922, when it was applied in Clifton v. Kroger Grocery & Baking Co., 217 Mich 462, to justify an award of compensation to a store employee who was instructed, as a part of his duties, to take home with him each night for safekeeping all the money taken in at the store after banking hours, and where, while so doing, he was struck by an automobile and injured. In Clifton, the Court observed that (pp 465, 467):
“This general rule has its full application to common laborers and other employees who work during stated hours at specified places, and when they are through for the day are free to go where they like and do as they please, with no further responsibility under their employment or duty to perform for their employers until working hours begin the next day or until they again resume their employment. If in the meantime they are accidentally injured while going somewhere or doing some act wholly for their own benefit they are not protected by the statute. But that rule does not necessarily apply where the injured employee is yet acting within the scope of his employment, carrying out the orders of his employer and performing some duty to further the latter’s business. Where he was going or what he was doing might also further his own interests but it would not in itself bar him from recovery. * * *
“That plaintiff was performing a daily duty imposed by distinct orders of his employer at the time and as required by the terms of employment is undisputed, and there is evidential support for the conclusion of the board that there were peculiar circumstances surrounding this case.”
See, also, Punches v. American Box Board Co., 216 Mich 342, which was cited in Clifton Case as authority for the rule.
It should be emphasized that the general rule is that employees going or coming from work are not covered by the workmen’s compensation act. In applying the dual-purpose doctrine, strict tests must be met.
The existence of the dual-purpose doctrine in Michigan was established by the following cases: Punches v. American Box Board Co., 216 Mich 342; Clifton v. Kroger Grocery & Baking Co., 217 Mich 462; Anderson v. Kroger Grocery & Baking Co., 326 Mich 429. Possessing neither logic nor authority for overruling the entrenched dual-purpose doctrine, the controlling opinions in Baas v. Society for Chris tian Instruction, 371 Mich 622, ignore it. “In law also the right answer usually depends on putting the right question.” Rather than engage in a fruitless query of whether the fact that plaintiff was transporting papers and hooks contributed in any way to her injuries, as was done in Baas, we should instead see if plaintiff meets the dual-purpose rule.
The rule has been reduced to a simple formula: If a special trip would have had to be made if the employee had not combined this service with his going or coming trip, then the dual-purpose rule applies. A recognized authority on workmen’s compensation further subdivides this test into several questions: Does the employer expect or command teachers to transport papers home for correction? Does the employer provide time and facilities for doing this work on the employer’s premises? Or, alternatively, is the teacher transporting these papers home for her own convenience? Finally, the all conclusive question: If the teacher failed to transport the papers, would the employer find it necessary to hire someone else to complete this task? See 1 Larson, Workmen’s Compensation Law, § 18.32.
The findings of the referee in the case at bar provided answers to these questions, and the findings are supported by the testimonial record. The appeal board disregarded these findings and disposed of the case on the law of Baas, supra. The case is returned to the appeal board for proper application of the dual-purpose doctrine. Murphy v. Flint Board of Education, 314 Mich 226, and its progeny, Baas v. Society for Christian Instruction, 371 Mich 622, are overruled to the extent that they deny compensation, without consideration of ■ the dual- purpose doctrine as to those injured, going to or coming from work.
Black, Souris, and Adams, JJ., concurred with T. M. Kavanagh, C. J.
Smith, J., concurred in the result.
Estate of Rogers v. Commissioner of Internal Revenue, 320 US 410, 413 (64 S Ct 172, 88 L ed 134). | [
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Bushnell, J.
On jury trial defendant Clinton Woodson was convicted of the statutory offense of perjury (Act No. 328, § 422, Pub. Acts 1931 [penal code] [Comp. Laws Supp. 1940, § 17115-422, Stat. Ann. § 28.664]) and sentenced to prison for a term of 2 to 15 years. His motion for a new trial was denied and, having obtained' leave, he appeals.
In December, 1939, defendant was called as a witness before Judge Homer Ferguson, sitting as a one-man grand jury engaged in the investigation of gambling and other offenses in Wayne county. Chester P. O’Hara (later appointed special prosecutor) was then acting as amicus curiae to said grand jury. After defendant was sworn, the following took place:
“Q. (By Mr. O’Hara) You have been engaged in operating a policy game in this town?
“A.- I refuse to answer for fear it might incriminate myself. * * *
“Mr. O’Hara: I ask the court to grant this man immunity under the statute, and require him to answer the questions put to him, the same as though they were reduced to writing, pursuant to the statute, so that he will not be prosecuted for any answers that he gives on this record.
“The Court: The law provides that when you claim a privilege that way, the court can grant you immunity. Now according to the statute in this case made and provided the court does now grant you immunity the same as if each of these questions was in writing, and your answer in writing; now the court must require you, after granting you this immunity, that you answer the questions; now when they ask you similar questions that might incriminate you, I will take it that you are claiming the same privilege, and I am now granting you immunity on all the questions and all the answers in this record. So now you must answer.”
Following such purported grant of immunity, defendant was questioned and testified at considerable length regarding gambling and other offenses.
In October, 1941, defendant was called as a witness for the prosecution in the case of People v. Roxborough, then being tried in the circuit court for Wayne county (People v. Roxborough, 307 Mich. 575). He testified under oath relative to the same matters about which he had given testimony before the grand jury. Subsequently he was arrested and charged with having committed perjury in giving false testimony in the Roxborough Case. In proof of the perjury charge, the prosecution introduced in evidence, without objection by defendant, the court reporter’s transcripts of defendant’s testimony before the grand jury and in the Roxborough Case, and portions of such transcripts, were read to the jury. It appeared that certain parts of his testimony in the Roxborough Case were contrary to and in conflict with his grand-jury testimony on the same subjects.
It is admitted that in granting defendant immunity against self-incrimination, the grand jury did not comply with the provisions of 3 Comp. Laws 1929, § 17220 (Stat. Ann. § 28.946), which provides:
“No person shall upon such inquiry be required to answer any questions the answers of which might tend to incriminate Mm except upon motion in writing by tbe prosecuting attorney which shall be granted by such justice or judge, and any such questions and answers shall be reduced to writing and entered upon the docket or journal of such justice or judge, and no person required1 to answer such questions upon such motion shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate Mm. ’ ’
As hereinbefore shown, defendant was granted immunity upon the oral motion of Mr. 0 ’Hara, who was appearing as amicus curiae to the grand jury. The motion was not “in writing by the prosecuting attorney” as required by the above statute (In re Wyrick, 301 Mich. 273; In re Hickerson, 301 Mich. 278). The record does not show whether or not the questions and answers before the grand jury were “reduced to writing and entered upon the docket or journal” of the judge. However, it does appear that they weré taken down by a court reporter and transcribed.
Defendant contends that the grant of immunity was illegal because not in compliance with the statute; that he was compelled to testify by the grand jury and, therefore, his testimony was not voluntary; and that such testimony could not be used against Mm in his subsequent trial for perjury. In support of Ms contention defendant cites In re Wyrick, supra, and In re Hickerson, supra. In each of those cases a justice of the peace of the Pontiac municipal court was conducting a judicial investigation, in pursuance of 3 Comp. Laws 1929, § 17217 et seq. (Stat. Ann. §28.943 et seq.). He appointed an attorney to assist in the examination of witnesses and in the conduct of such investigation. The respective defendants were subpoenaed and asked certain questions, which they refused to answer on the ground that their answers might incriminate them. The attorney appointed filed written motions to grant them immunity, and immunity was granted by the justice. They again refused to answer and were found guilty of contempt and1 sentenced. On review, the circuit court upheld the validity of the immunity granted. Both defendants then appealed, contending in substance that they were not required to answer the questions propounded, because their immunity was not granted upon motion of the prosecuting attorney, as required by the statute. In each case we held that the defendant was not guilty of Contempt and should be released' from custody. In the Wyrick Case we said:
“The right to grant immunity is found in the statute hereinbefore cited (3 Comp. Laws. 1929, §17220). An examination of this statute clearly leads to the conclusion that the making of a motion to grant immunity must he left to the discretion of the State’s representative. The State has wisely provided that this power should lie in the discretion of the prosecuting attorney or the attorney general in certain cases. It follows that the trial court was in error in affirming the action of the justice of the peace in granting immunity upon the motion of one not a prosecuting attorney or attorney general or the duly authorized representative thereof.”
In the Kicker son Case we said:
“The language of the statute, in providing that the motion shall he made by the prosecuting attorney, is mandatory in tone. * *
“A power of such importance should be exercised only by those whose sworn duty it is, as public officers, in this case the prosecuting attorney or attorney general, to enforce the criminal laws.”
It should be noted that in the ahove-diseussed cases the witnesses, after being granted purported immunity, refused to answer questions which might have incriminated them, while in the present case defendant, after being granted purported immunity, freely answered questions propounded to him. Under the above holdings, his refusal to answer would not have placed him in contempt. However, such decisions are not determinative of the question before us, as to whether or not defendant’s testimony before the grand jury in December, 1939, was admissible in proof of his perjury in the Roxborough Case in October, 1941.
The immunity statute expressly protects a witness against prosecution for any offense concerning which his answers may tend to incriminate him, but it does not protect him from an offense subsequently committed. Defendant’s answers before the grand jury did not relate to the offense of perjury, which he committed two years later and, therefore, his answers did not then tend to incriminate him as to such offense. As he apparently testified before the grand jury in reliance upon and without questioning the legality of the purported grant of immunity, it may reasonably be inferred that he testified the same and as truthfully as though immunity had been granted in conformity with the statute. Therefore, we conclude that his testimony, so given before the grand jury, was properly admissible as tending to prove that subsequently, in the trial of the Roxborough Case, he testified falsely. The authorities cited by defendant do not sustain his contention that such testimony was not admissible.
The question, whether or not the immunity granted defendant on the motion of an amicus curiae protected him from prosecution for any offense of which his answers may have tended to incriminate him, is not before us. Apparently he received the immunity which the statute intended, as there is no showing that he was ever prosecuted as a result of incriminating answers.
Immediately after testifying in the Roxborough Case, defendant admitted to Mr. O’Hara, then acting as special prosecutor, and to other persons, that he had testified falsely. Mr. O’Hara, called as a prosecution witness, said in part:
“Q. Now, what was said by Mr. Woodson (defendant) in connection with the testimony which he had given before Judge Pugsley?
“A. Well, Woodson was asked * * * whether or not it was not a fact that he had testified falsely before Judge Pugsley, and he said that he had.”
O’Hara’s testimony as to defendant’s admission of perjury was corroborated by that of am assistant prosecutor, an assistant attorney general, and a police officer. A partner and former business associate of defendant in the gambling business testified as to facts which indicated that he testified truthfully before the grand jury and falsely in the Roxborough Case. Defendant did not take the-stand and offered no testimony in the present case. We are satisfied that there was material and ample evidence from which the jury, as judge of the facts, could' find him guilty beyond a, reasonable doubt of the crime charged.
Defendant further contends that the trial court erred in its charge to the jury. We have carefully examined such charge and conclude that, when considered in whole, it fully and fairly presented the questions of fact involved and the law properly applicable thereto. It should be noted that defendant presented no specific requests to charge and made no objection to the charge when given. The trial court did not err in denying defendant’s motions for a directed verdict and for a new trial. Other questions raised and errors assigned do not merit con sideration. We are convinced that there was no miscarriage of justice (3 Comp. Laws 1929, § 17354 [Stat. Ann. § 28.1096]).
The conviction is affirmed.
North, C. J., and Starr, Butzel, Boyles, and Reid, JJ., concurred with Bushnell, J. • | [
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Starr, J.
On October 11, 1938, while working at a gasoline service station in Detroit, William Brown, about 19 years old, sustained injuries which resulted in his death a few days later. His administrator began the present law action for damages against the Standard Oil Company, which owned the station, and defendant A1 Jones, who leased and operated it.
Jones had operated said station for several years prior to May 5, 1937. On that date defendant company leased the station and the machinery, equipment, appliances, and fixtures connected therewith, to him for a 12-month period. The lease provided for successive renewal periods of six months each and for a monthly rental of $19.50, plus one-half cent per gallon on all gasoline delivered to said station. Jones, as lessee, was required to pay all ex penses in connection with, the operation of the station and to keep it in good repair. The lease further provided:
“That none of the provisions of this lease shall be construed as reserving to the lessor any right to exercise any control over the business or operations of the lessee conducted upon the leased premises or to direct in any respects the manner in which any such business and operations shall be conducted, it being understood and agreed that so long as the lessee shall use said premises in a lawful manner as herein provided, the entire control and direction of such activities shall be and remain with the lessee.
“It is further understood and agreed that lessee shall have no authority to employ any persons as agents or employees for or on behalf of the lessor for any purpose, and that neither the lessee nor any other persons performing any duties or engaging in any work at the request of the lessee upon the leased premises shall be deemed to be employees or agents of the lessor,”
The lease was renewed and defendant Jones was in possession of the station at the time plaintiff’s decedent was injured. There was a sign across the front of the building reading, “A1 Jones Super Service * * * Standard Oil Products.” The station also sold automobile supplies and accessories and furnished services such as washing and greasing cars and changing and repairing tires. Plaintiff’s decedent had worked at the station from about February, 1937, until he was injured. He washed cars, filled gasoline tanks, changed tires, sold merchandise, and did miscellaneous work.
On October 11, 1938, a customer of the station brought in a Ford truck with dual rear wheels, the tires on which carried a pressure of about 80 pounds. The tire on one inside wheel was flat. While working at the station, plaintiff’s decedent had previously repaired tires on this truck. The customer testified that he told defendant Jones, “I have got a flat tire,” and that Jones replied, “All right, I will take care of it.” It appears that to repair a tire on an inside dual wheel, the customary practice was to remove both wheels and to repair and inflate the tire on the inner wheel while it was so removed.. The testimony indicates that on this occasion plaintiff’s decedent removed the outer wheel but was unable to take off the inside wheel because he did not have the proper tool or wrench to remove the lugs or nuts. He attempted to do the tire-repair job without removing the inner wheel. He took off the tire, repaired the inner tube, and replaced the tire on the wheel. The casing of the tire was held in place by a steel rim. Apparently he did not replace or adjust the rim properly, because when he inflated the tire, the rim sprung loose and struck him on the head, causing’ fatal injury.
There was testimony indicating that the safest method would have been for decedent to take off the inner wheel, remove, repair, and replace the tire, affix the steel rim, and then inflate the tire while the wheel was lying on the ground with the rim side underneath. By such method, if the steel rim had sprung loose, it' would not have struck him.
At the conclusion of plaintiff’s proofs, each defendant moved for a directed verdict. The trial court granted both motions and entered judgment for defendants, from which plaintiff appeals. In considering* an appeal from judgment entered on a directed verdict for defendant, we view the testimony in the light most favorable to plaintiff. Lebovics v. Howie, 307 Mich. 326; Arnell v. Gordon, 234 Mich. 140.
Defendant Standard Company based its motion for a directed verdict on the ground that plaintiff’s decedent was not its employee; that the station was leased to and operated by defendant Jones as an independent contractor; that if decedent was determined to be its employee, plaintiff could not recover in this law action because it had elected to come under the provisions of the workmen’s compensation law (2 Comp. Laws 1929, § 8407 et seq., as amended [Comp. Laws Supp. 1940, § 8407 et seq., Stat. Ann. and Stat. Ann. 1938 Cum. Supp. § 17.141 et seq.]); that decedent had not given notice that he elected not to be subject to the provisions of said law; and that plaintiff’s remedy, if any, was by proceedings before the department of labor and industry. Plaintiff contended that both decedent and defendant Jones were employees of the Standard Oil Company; that the company exercised complete control and supervision of the operation of the station; that thé purported lease to Jones was merely a subterfuge by Standard Oil Company to escape liability as an employer; and that both defendants are liable in damages for their negligence in failing to furnish his decedent with proper tools.
The evidence shows that the station was under lease to and was occupied and conducted by defendant Jones at the time of decedent’s injury. It shows, that Jones hired and paid station employees, paid the expense in connection with the operation of the station, and generally conducted it as his own business without consultation with or interference by the Standard Oil Company. In Zoltowski v. Ternes Coal & Lumber Co., 214 Mich. 231, we quoted with approval 26 Cyc. p. 1546, stating as follows:
“An independent contractor is one who, carrying-on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work. Generally the cir cumstances which go to show one to he an independent contractor, while separately they may not be conclusive, are the independent nature of his business, the existence of a contract for the performance of a specified piece of work, the agreement to pay a fixed price for the work, the employment of assistants by the employee who are under his control, the furnishing by him of the necessary materials, and his right to control the work while it is in progress except as to results. ”
See, also, Eberly v. Sanders Lumber Co., 282 Mich. 315; Holloway v. Nassar, 276 Mich. 212; Arkansas Fuel Oil Co. v. Scaletta, 200 Ark. 645 (140 S. W. [2d] 684); Reynolds v. Skelly Oil Co., 227 Iowa, 163 (287 N. W. 823); Hudson v. Gulf Oil Co., 215 N. C. 422 (2 S. E. [2d] 26).
It clearly appears that defendant Jones as lessee conducted the station business as an independent contractor. Viewed in the light most favorable to plaintiff, the testimony does not show, nor could it be inferred, that plaintiff’s decedent was an employee of the Standard Oil Company. The evidence presented no question of fact for jury determination as to whether or not decedent was an employee of the company, and in view of such conclusion, other questions relative to its liability do not require consideration. We find no error in the admission or exclusion of testimony relative to the liability of the company. We conclude the trial court did not err in granting defendant company’s motion for a directed verdict.
Defendant Jones based his motion for a directed verdict on the ground that there was no proof of negligence on his part; and that plaintiff’s decedent was guilty of contributory negligence. He also claimed that plaintiff’s decedent was not his employee ; that he did not pay him wages; but that he permitted Mm to work around the station, doing odd jobs, as an independent contractor. Plaintiff contended in substance that Ms decedent was employed by Jones, and in Ms declaration alleged that “the relation of master and servant existed” between Jones and Ms decedent. He also contended in substance that Jones paid decedent weekly wages, controlled and directed Ms work at the station, and instructed him to make the truck-tire repairs wbicb resulted in Ms fatal injury. He further claimed that defendant Jones was negligent in failing to provide his decedent with a safe place to, work and with proper tools with which to do the tire-repair work in question.
There is conflict in the testimony as to the arrangement or agreement with defendant Jones under which decedent was working. His brother, who was-present when decedent and Jones discussed the matter of employment, testified in part:
“Willie Brown (decedent) asked Mr. Jones whether or not he needed anyone to work. Mr. Jones replied, ‘Yes, I needs a man around here, * * * certain minor things to be done, ’ and asked him what could he do. He (decedent) told him he used to pump gas, and knows how to handle oil and gas, grease cars, that’s all, and Mr. Jones told him, ‘Come back tomorrow and I will put you to work.’
“Q. Now, did * * * Willie Brown go to work there ?
“A. Yes. He went back next day and went to work. * * #
■ “ Q. Did you ever see how much he got?
“A. I have seen Mr. A1 (Jones) pay him $10 ,a week and more. I have seen him pay as high as $13, but he paid him $10 a week regular. I have been there many Sunday mornings and seen Mr. A1 pay him. ’ ’
Defendant Jones denied that decedent was his employee. He testified in part:
“Q. Did this young man (decedent) work for you?
“A. He worked for himself. He washed cars; would go over to police pound No. 1 and repair brakes; he done various jobs, worked for himself. In return, kind of helped me and assist me in the station, because he appreciated it, that I let him stay around there.”
The above-quoted and other testimony clearly presented a question of fact for jury determination as to whether plaintiff’s decedent was an employee of Jones or was merely permitted to work at the station as an independent contractor. It is admitted that Jones had not elected to come under the workmen’s compensation law. Therefore, if plaintiff’s decedent was his employee, Jones was deprived of the defenses of contributory negligence, assumed risks, and negligence of fellow employees (2 Comp. Laws 1929, § 8407 [Stat. Ann. §17.141]). However, it was necessary for plaintiff to prove actionable negligence on the part of Jones. Williams v. Sealander, 288 Mich. 617; Kelley v. Brown, 262 Mich. 356.
The testimony is conflicting and confusing as to whether or not Jones was negligent in failing to furnish plaintiff’s decedent with the proper tools with which to remove the inner wheel from the truck. There was testimony indicating that, being unable to remove the wheel because not supplied with the necessary tools, decedent followed the more dangerous method of repairing and inflating the tire while the wheel was on the truck.
Assuming that plaintiff’s decedent was an employee of Jones, we believe that the conflicting testi mony presented a question' of fact for jury determination as to whether or not Jones was negligent in failing to provide decedent with the proper tool or tools to do the work in which he was engaged at the time of his injury. As the defenses of contributory negligence and assumed risk are barred, we are convinced that, viewing the testimony in the light most favorable to plaintiff, a question of fact was presented for jury determination. The trial court erred in granting defendant Jones \ motion for a directed verdict.
The judgment for defendant Standard Oil Company is "affirmed. The judgment for defendant Jones is reversed and a new trial granted.
Plaintiff shall recover costs from defendant Jones. Standard Oil Company shall recover costs from plaintiff.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Starr, C. J.
Plaintiffs appeal from a decree dismissing their bill and amended bill of complaint, by which they sought to establish title to the Belcrest apartments property located at 5440, Cass avenue in the city of Detroit.
About 1937 Rubin Kowal and his brother, plaintiff Isadore Kowal, became interested in the Belcrest property, which was subject to a first mortgage securing outstanding bonds in the amount of $1,157,-000, and also subject to a second mortgage. They acquired certain of the first-mortgage bonds, the second mortgage, a chattel mortgage on the furniture and furnishings, and a deed from the wife of one of the owners. In proceedings for the foreclosure of the second mortgage they obtained a decree for approximately $180,000. The owners of the property instituted bankruptcy proceedings, and further action in connection with the foreclosure was enjoined.
The Kowals desired to purchase the property from the trustee in bankruptcy, and at their request William Krugly, an attorney engaged in the real estate business in Chicago, presented an offer to the trustee in the name of the Belcrest Apartments Company, a corporation to be organized. This' offer was to pay an amount equal to 29 per cent, net to first-mortgage bondholders and also to pay all fees, compensation claims, and expenses allowed by the bankruptcy court. The Kowals caused the Belcrest Apartments Company to be organized as a Michigan corporation; Krugly was made president, and he assigned his rights under the offer to purchase to the company. The amount to be paid to the trustee in bankruptcy by September 6, 1941, was $347,500. The Kowals had advanced a total of $10,-000, which was deposited with the trustee in connection with the bid for the property.
In order to procure funds to meet its bid, the Belcrest company had obtained a commitment from a life insurance company for a loan of $350,000 upon the security of the apartments property. On June 30, 1941, the insurance company withdrew its commitment, and the Belcrest company was without sufficient funds to meet its bid. On the recommendation of Krugly, the Kowals interviewed and retained one Henry Blum, a Chicago lawyer, and suit was begun against the insurance company to compel specific performance of its loan commitment. When it became apparent that funds would not be available from the insurance company by September 6th, the Kowals sought the aid of attorney Blum relative to obtaining money from other sources. Funds had not been secured by the latter part of August, 1941, and the Kowals were faced with the prospect of the Belcrest company’s defaulting on its bid and of losing the deposit of $10,000 and their entire investment in the property. About this time Blum informed them that he had a client who would advance the required $347,500, but the testimony relative to the terms under which this sum would be advanced is in conflict. Blum prepared three written agreements, all dated August 30, 1941, which were signed by the Kowals. One agreement which is important to the issues involved in the present case, provided as follows:
“To Henry S. Blum, Esquire, Chicago, Illinois.
“We hereby request you to endeavor to procure funds in the amount of $347,500, which, as it is now contemplated, will be deposited in the name of (defendant) Bernard G-. Sang (an attorney employed in Blum’s office) with the Abstract & Title Guaranty Company or John Dyer, trustee, of Detroit, Michigan. The procurement of these funds and all steps taken by you in that regard are at our express request.
“In the event any conflict shall arise between us and either the said Bernard G. Sang, or the undisclosed principal or principals represented by him, we do hereby expressly consent that you may at the time of such conflict withdraw from representing either ourselves or the Belcrest Apartment Company without prejudice to your right of compensation up to the time of withdrawal, and thereafter represent either said Bernard D. Sang or the undisclosed principal or principals as fully as though you had at no time represented us or the Belcrest Apartment Company
“Signed: Rubin Kowal, I. Kowal.”
By another of the agreements the Kowals agreed to pay $10,000 for all services of Krugly to the Belcrest company and all services of Blum “in and about procuring of funds to consummate the acquisition of the Belcrest apartments.” The third agreement was with defendant Sang, the attorney in Blum’s office, and there is conflict in the testimony as to whether it was executed by the Kowals in Chicago on that date or in Detroit on September 5th. As this agreement is the principal subject of controversy in the present suit, we quote it in full:
. ‘ * Chicago, August 30,1941.
“Bernard Sang, Esq.,
“Chicago, Illinois.
“Dear Sir:
“We make you the following proposal:
“You will deposit with the Abstract & Title Guaranty Company, of Detroit, Michigan, the sum of $347,500, to be paid out by that company in exchange for such deeds, releases, waivers and other instruments as will, in the opinion of the Abstract & Title Guaranty Company and of your counsel, Henry S. Blum, be sufficient to vest in you a good and merchantable title in fee simple to the premises described as follows; (description of Belcrest apartments property).
“To make possible the vesting of title in you, we will contemporaneously with the deposit by you, either deposit or expend or have expended: (a) cash; (b) first mortgage bonds of the issue dated October 1, 1925, and recorded November 2, 1925, given by Max Hamburger and Laura Hamburger, his wife, to Melvin L. Straus, trustee; (c) waivers or releases from holders of outstanding interest acquired for cash; (d) waivers or releases of person entitled to distribution or payment as a condition to the consummation of the deal, the aggregate of which shall represent a cash expenditure of not less than $67,500.
“Upon the acquisition by you of the real estate above referred to, you will cause to be organized a corporation with such capitalization as you shall elect, and with such classification of stock as you, in your sole discretion, shall direct, under the laws of the State of Michigan or the laws of such other State as you desire, and cause all of the stock of the corporation to be issued to you. The capital stock of the corporation so to be organized is to be exchanged for the premises hereinabove set out and issued to you, or your nominee.
“Upon the organization of such corporation, yon will canse to be issued two series of debentures, designated, respectively, by the letters ‘A’ and ‘B.’ There will be issued to you, or anyone you may designate, debenture or debentures A, which shall have priority in payment, both as to principal and interest, over debenture or debentures B, which shall be deliverable to us. Debenture A shall be retired out of the first funds coming into the possession of the corporation, whether by loan upon a mortgage, unsecured loan, or otherwise. We expressly consent to the making by you, or by the corporation so to be organized, upon the security of the real estate any such loan or loans you may desire for the retirement of debenture or debentures A. Until the retirement of the debentures, they shall bear interest at the rate of 4% per cent., but the interest on debenture B shall be payable only when and if earned. Debenture B shall at all times as to both principal and interest be subject and subordinate to any loans made or incurred either in the prosecution of the corporation’s business or for the retirement of debentures A.
“The corporation to be organized contemplates the making of a first mortgage loan upon the premises in question for such amount and on such terms as you, in your sole discretion, shall approve, or which the duly elected directors of the corporation shall approve. It is also contemplated that a leasing for a term of years will be made on the aforesaid premises which shall be upon such terms and to such lessee as you, in your sole discretion shall approve. Upon the making of the loan and the lease in question, and not before, there will be delivered to William J. Krugly % of the capital stock of the corporation less one share of stock.
_ ‘ ‘ The undersigned acknowledge that they are advised yon are acting on behalf of an undisclosed principal. We hereby expressly consent that no questions shall at any time be asked by us or any complaint or action predicated upon anything done, caused to be done or any action withheld with respect to the form of the debentures, the form and classification of the stock, the amount thereof, the form of the loan or loans made by the corporation, either without security or upon the security of the property, the leasehold as to the lessee, the amount of the rents, the terms of the lease, the payment or withholding of dividends, or any other matter or thing relating to the subject matter of this letter, including therein your own wilful misconduct.
“The delivery to us of the debentures above referred to and of 'the stock to be issued to William J. Krugly, above set out, is in full and complete payment and satisfaction of all our rights to the above premises or against you or any undisclosed principal represented by you.
“Your signature hereon will constitute your acceptance of the foregoing.
“Eubin Kowal, (Seal)
“I. Kowal (Seal)
“Accepted: Bernard Sang.”
The record indicates that attorney Blum arranged for his client, Henry Crown,' a Chicago businessman, to advance the required $347,500. About September 4th defendant Sang went to Detroit with a check for that amount and met with the Kowals at the office of their attorney. Blum was not present at this meeting, and the testimony is in conflict as to what took place. Isadore Kowal claims that he signed the third agreement, quoted above, in Detroit on September 5th in reliance upon the statements and representations of Sang that it would be subsequently changed so as to provide that the Belcrest company would have title to the property and that the money was advanced as a loan. However, there was testimony indicating that the Kowals signed this agreement without objection and that there were no representations or understanding that it would be changed. In any event, they signed the agreement, and on September 6th Sang paid $347,500 to the trustee in bankruptcy, and' title to the Belcrest property was transferred to him, personally. Coincident with this transaction, the Belcrest company assigned its offer to purchase to Sang, and the Kowals transferred to him their entire interest in the property.
Later, defendant Sang Corporation was organized and attorney Sang transferred his title to the Belcrest property to the corporation. Blum and Sang were directors and officers of the company, and subsequently Rubin Kowal was made a director. - In accordance with the terms of the agreement the corporation issued % of its authorized capital stock, less one share, to William Krugly for the benefit of the Kowals, and the remaining % of the stock, plus one share, to Crown, or to Sang for his benefit. Class A debentures were issued to Crown for his advance and investment of $347,500, and Class B debentures to Isadore and Rubin Kowal for their original investment of $67,500 in the Belcrest property. Rubin accepted his share of class B debentures, but Isadore refused to accept his. The Sang Corporation obtained a loan of $250,000 secured by mortgage on the Belcrest property, which amount, together with other sums arising from the leasing and operation of the property, was apparently paid to Crown to apply upon the class A debentures which he held.
In March, 1942, Isadore Kowal and his son, Meyer Kowal, who had acquired some interest in the property, filed bill of complaint in the present suit. It should be noted that the brother, Rubin, did not join as a plaintiff, and the record indicates that he was satisfied with the deal as negotiated by attorney Blum. In their bill plaintiffs alleged that the above-quoted agreement with Sang was intended to operate as a mortgage on the Belcrest property to secure the repayment of the $347,500 advanced by Blum’s client. They further alleged that attorney Sang stated at the time the agreement was signed that it was “merely for the purpose of evidencing security for said loan.” They claimed that the agreement was void because usurious and against public policy. They further alleged that defendant Goldberg, who had leased the Belcrest property, was made a party defendant only for the purpose of subjecting the rentals to the decree of the court. They asked for an accounting; that the. agreement be declared void; and that they be determined to be the owners 'of the property in fee simple, subject only to a mortgage lien for the balance due on the amount advanced by Blum’s client. Defendants answered, denying the material charges against them and alleging that the agreement expressed the actual understanding and .intention of the parties and created a joint-venture relationship.
In January, 1944, plaintiffs filed an amended bill of complaint, reiterating in substance the charges in their original bill and further alleging fraud, deceit, and trickery by attorney Blum in connection with the written agreements and in the acquisition of title to the Belcrest property by Sang and the Sang Corporation. At the conclusion of the trial,. on plaintiffs’ motion, attorney Blum was made a party defendant. A cross bill had been filed involving the brother, Rubin Kowai, but it was later dismissed at defendants’ request. The trial judge entered a decree dismissing plaintiffs’ bill as amended. In his opinion he said:
“The evidence introduced did not sustain the contentions advanced on behalf of the plaintiffs but, on the contrary, established to the satisfaction of the court that the agreement was entered into by the Kowals without reservations, and that after execution the agreement was ratified and confirmed by both Isadore and Rubin Kowal through agreements between themselves, and their other actions.”
Plaintiffs appeal, contending that the above-quoted agreement with defendant Sang was void because usurious and “unfair, inequitable, unconscionable and against public policy.” They also claim that the transaction evidenced by said agreement was not a joint venture but constituted a loan secured by a mortgage lien on the Belcrest property. This being a chancery case, we review de novo.
It would serve no useful pilrpose to discuss in detail the conflicting testimony contained in the voluminous record before us. However, there are certain facts which are well established. Isadore and Rubin Kowal, who were experienced in the real estate business, desired to buy the Belcrest property from the trustee in bankruptcy. At their request William Krugly presented an offer to the trustee in the name of the Belcrest company. The offer was accepted, and the company was required to pay the trustee $347,500 by September 6, 1941. Neither the Kowals nor the Belcrest company had sufficient money to meet the bid, and they had been unable to obtain funds by the latter part of August. The Kowals were in a rather desperate situation, because if the bid was not met, they would lose their deposit of $10,000 and all their interest in the property. They employed attorney Blum to assist them in obtaining funds. Plaintiff Isadore Kowal testified :
“I told Mr. Blum that * * * I was trying to get the money other than through him. I told Blum to keep trying to get the Union Central or some other company, I don’t care who he got, but to get some money some way — it- didn’t matter where. '* * *
“I told Blum I hired him to raise the money, I couldn’t get any money. *■ * * I was trying as late as August, and stopped trying to get the money at the time I was in Chicago on August 30th and the deal was made. ”
In his testimony regarding the execution of the agreement in question Isadore Kowal said, “I needed money and had to sign it.” In their amended hill plaintiffs admitted “that with less than three weeks left in which to raise the money to consummate the purchase from the bankruptcy court, they (Kowals) realized their position was hopeless. ’ ’ Rubin Kowal testified:
“Mr. Blum said to my brother Isadore, * * * ‘You are known to be a litigant in the State of Michigan, and I am going to draw papers which will tie you up hands and feet because of your reputation.’ # # *
“I did not join with my brother in this law suit because I felt morally indebted to Mr. Blum and his client for putting up this money. * * * I was satisfied with the deal. * * *
“I relied on Mr. Krugly as my agent or broker, to see what arrangements could be made. * # *
“I had confidence in him and have confidence in him today. * * * I do not question his integrity at all.”
It appears that subsequent to the execution of the agreement in question Isadore Kowal introduced attorney Sang as the “new owner of the Belcrest apartment hotel. ’ ’ In October, 1941, after the transaction in question had been completed, Isadore and Rubin Kowal entered into a written agreement between themselves for the purpose of settling their property affairs. In this agreement they referred to their interest in the Belcrest property as follows: “Belcrest hotel deal consisting through the ownership of ’stock and otherwise of a % interest in the property.” That the stock and debentures issued to the Kowals by the Sang Corporation had a substantial value is evidenced by the fact that defendant G-oldberg later offered them $110,000 for their interest.
The testimony of Rubin Kowal, William Krugly, and other witnesses clearly establishes that at the time the agreement in question was executed, the Kowals were satisfied with attorney Blum’s negotiation and arrangement to obtain the required $347,-500. Rubin Kowal said, “I was satisfied with the deal.” From the agreement in question and the evidence presented, we conclude that this money was advanced as an investment and not as a loan, and that a joint-venture relationship existed between the parties. In view of their dire financial situation at the time they signed the agreement, the Kowals, certainly have little cause for complaint.
Blum received $6,500 and Krugly $3,500 for their services to the Kowals and the Belcrest company in connection with their obtaining the required sum of $347,500. Isadore Kowal generally accused attorney Blum of trickery and improper conduct in connection with the entire transaction, but we find no testimony substantiating this charge. Both Blum and Sang testified that they had no interest whatever in the Sang Corporation or its stock, debentures or property. „ The first agreement quoted above expressly provided that Blum could withdraw as attorney for the Kowals and the Belcrest Apartment Company and “thereafter represent either said Bernard D. Sang or the undisclosed principal or principals.”
The plaintiffs argue that the exculpation clause of the agreement with Sang indicates improper conduct on the part of Blum. However, it is apparent that Blum, in representing his client Crown in connection with the advance of the $347,500, was somewhat suspicious of the Kowals and was dealing with them at arms’ length. William Krugly testified:
“Mr. Blum advised Rubin and Isadore Kowal and myself that his client was interested in acquiring half of this property and that Mr. Blum would proceed to draft an agreement, and * * * he advised Mr. Rubin and Isadore Kowal then" and there that the agreement would be very strong and ironclad. He told them again, because his client had heard of the reputation of Rubin and Isadore Kowal and wanted to be protected in this venture. * * *
“The remarks that Mr. Blum made concerning the reputation of Rubin and Isadore Kowal were that his client had advised him that the nature of Rubin and Isadore Kowal was very litigating and he was not interested in obtaining a lawsuit. * * *
“He (Blum) stated, ‘I am handing you a copy of this agreement and I am telling you right now that this thing is mighty powerful and very ironclad,’ or words to that effect. * * * They (Kowals) said it was agreeable to them and they know that once they acquire the property that everything would be all right. * * *
“Mr. Blum * * * did not make any promises in my presence, or of which I have personal knowledge to the Kowals that there would be any deviation or relaxing of the terms contained in * * * the agreement (above-quoted).”
Prom the facts and circumstances shown by the record we are satisfied that the agreement in question represented the understanding and intention of the parties. We find no evidence indicating that the Kowals were induced by fraud, trickery or misrepresentation to sign the agreement. Under the facts and circumstances shown, we cannot say that it was usurious, unfair, inequitable, unconscionable or against public policy, as alleged.
The trial judge saw and heard the parties and their witnesses and was in a better position to determine the credibility of and weight to be accorded their testimony. We agree with his conclusion that plaintiffs failed to establish their right to a cancellation of the agreement in question or to other relief prayed for. Other questions presented do not require consideration.
The decree dismissing the bill and amended bill of complaint is affirmed. Defendants may recover costs of both courts.
North, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case. | [
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Sharpe, J.
Plaintiffs filed a bill for a. declaratory decree under the provisions of Act No. 36, Pub. Acts 1929 (3 Comp. Laws 1929, § 13903 et seq. [Stat. Ann. § 27.501 et seq.]).
Plaintiffs are the village of Breedsville,- an. incorporated village, and a group of residents and taxpayers of said village and the township of. Columbia. They allege that county highway No. 677 in Van Burén county runs through the village, of Breedsville; that on said highway and within- the corporate limits of the village there ' is á bridge which was built in 1890 by the township of Columbia and maintained by the township until the county took over the maintenance of township roads; that in August, 1942, the bridge collapsed and has since been closed to traffic; that by virtue of 1 Comp. Laws 1929, §4545 (Stat. Ann. §9.1194), it became the duty of the township of Columbia to repair and maintain said bridge; that prior to the collapse of the bridge, county highway No. 677 was taken over by the board of county road commissioners of Van Burén county, who thereafter had the duty of repairing and maintaining said bridge; that the board of county road commissioners claim to have expended certain moneys on maintenance and repair of the bridge and are claiming the right to be reimbursed therefor from the village of Breedsville and have withheld certain funds belonging to said village ; that the township of Columbia and the board of county road commissioners have been notified of the condition of the bridge and have refused to assume any responsibility for the repair of said bridge; that the use of said bridge is necessary to the citizens of the village of Breedsville; and that a determination be made as to whose obligation it is to repair and maintain said bridge.
The record also shows that .on September 5, 1941, the board of county road commissioners adopted the following resolution:
“Notice is hereby given that at a meeting of the board of county road commissioners of Van Burén county, Michigan, duly held at Paw Paw, Michigan, on the 29th day of August, 1941, it was resolved and determined by a majority yea and nay vote to return to respective villages of Bangor, Bloomingdale, Breedsville, Decatur, Hartford, Gobles, Lawrence, Lawton, and Paw Paw, and the city of South Haven all of the following described streets included in the corporate limits of- such villages which have heretofore been taken over and incorporated into the county road system under the provisions of chapter 4 of Act No. 283, Pub. Acts 1909, as amended, and Act No. 130, Pub. Acts of 1931. The returning of said streets to the respective villages and cities is to be made under the provisions of Act No. 230 (290), Pub. Acts 1937. It was further resolved that a copy of these resolutions, together with a description of all the streets to be so returned in any one village or city shall be published at least once a week for three consecutive weeks in the newspaper published in the village or pity. Publication of this resolution and description of the streets in the village of Breedsville shall be made in the Bangor Advance. It was further resolved that the date of public hearing on this resolution be set for October 24,1941, at the offices of the board of county road commissioners in the village of Paw Paw.”
Four streets in the village of Breedsville to be abandoned were described in the resolution. Included therein was the street on which the bridge is located, more particularly described as beginning at the center of section 29, thence south to the south line of section 29.
The township of Columbia filed an answer to plaintiffs’ bill of complaint in which it is alleged on information and belief that the village of Breeds-ville built the bridge and has continued to maintain it, except for such time as its maintenance was assumed by the board of county road commissioners; that the responsibility of maintaining the bridge is upon the village of Breedsville; that the relief asked for in plaintiffs’ bill of complaint is not a proper subject for a declaratory decree; and prayed that the issue be disposed of in accordance with Court Rule No. 23, § 8 (1933).
The board of county road commissioners filed an answer in which it alleges that it took proper legal action to abandon its control of county highways wjtb'm'the village' of .Breedsville; and that the subject matters sét .up' in .the bill of' complaint is not a'proper, matter .to be disposed of 'under declaratory decree,
•;A^m.pti.on, was made to dismiss' plaintiffs’ bill of. complaint pm the ground ..that the subject matter of the bill was not a.proper .matter to be disposed of. uhder: declaratory decree. The trial court denied the motion-to dismiss, concluding that there was an actual controversy relative to'the construction of statutes, -responsibility for the repair of the bridge, and; the validity. • and -interpretation - of the action of ' the board of county road .commissioners.
The,"causé came on for a hearing and the trial court entered 'a decree, the material part of which reads as follows:
■-.“(a) That the plaintiff, village of Breedsville, has neither, the right nor -the duty or responsibility, to rebuild,.repair or maintain the aforesaid bridge;
. “(b). That, the defendant,' township of Columbia', hah. neither the. right‘nor the duty or responsibility to rebuild, repair 'of maintain the aforesaid bridge
“(c) That the defendant, board of county road commissioners- of the county of Van Burén, has- the right;- duty and responsibility to rebuild, repair and maintain said bridge and that such right, duty and responsibility'have -existed'in said board, continuously, since the.highway upon which said bridge was. located: was taken- over by said board in the year 1927,” • ■
' Defendant Board- of county road commissioners appeals and urges that the bill of complaint does not'state a proper cause for declaratory decree; that if- a cause -of -action exists, the remedy is by mandamus proceedings; that the individual parties plaintiff do not have sufficient interest in the matter to authorize them as individuals to maintain any action; and that the hoard of county road commissioners has legally abandoned the road.
We are of the opinion that mandamus is not the proper remedy. Mandamus is appropriate where a ministerial act of a publió official is involved, but not where the act involves the exercise of discretion of judgment. See Rupert v. Van Buren County Clerk, 290 Mich. 180. It is urged that the pleadings in this case do not present proper issues for action under the declaration of rights statute.
In City of Muskegon Heights v. Danigelis, 253 Mich. 260 (73 A. L. R. 696), a controversy existed relative to the validity of bonds authorized by the city of Muskegon Heights to raise money for the relief of destitute inhabitants. We there said:
“Under former practice a friendly suit would have been brought, entertained, and right in the matter adjudicated. Now, under the declaratory judgment act, there is presented issuable questions of fact and law of great public moment, and, if the act is to serve at all, it must be permitted to serve in this instance.”
In City of Flint v. Consumers Power Co., 290 Mich. 305, we discussed conditions under which the declaratory act could be invoked. We there said:
“But the rights to be determined by declaratory judgment or decree may be and perhaps usually are rights not in praesenti, but rights which are to come into full fruition or which will be fully vested at some future time. If uncertainties and controversies arise between interested parties as to what their respective rights will be when such rights accrue of become vested, and to avoid needless hazards or possible losses, it is necessary presently to have decision of such uncertain or controverted rights, then there is actual need of and justification for declaratory adjudication. * * * At least one of the tests of right to resort to a declaratory proceeding is the ‘necessity for present declaratory judgment as a guide to plaintiff’s future conduct in order to preserve its legal rights.’ Wolverine Mutual Motor Ins. Co. v. Clark, 277 Mich. 633, 637.
“ ‘The court will not decide as to future rights hut will wait until the event has happened, unless special considerations otherwise require. (Citing cases.) ’ Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673, 677 (68 A. L. R. 105).
“•‘A declaratory judgment may be resorted1 to only when circumstances render it “useful and necessary;” where it will “serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations. ’ ’ (James v. Alderton Dock Yards, 256 N. Y. 298, 305 [176 N. E. 401].) “Where there is no necessity for resorting to the declaratory judgment, it should not be employed.” (Id.)’ Somberg v. Somberg, 263 N. Y. 1 (188 N. E. 137).”
See, also, Evans Products Co. v. State Board of Escheats, 307 Mich. 506.
In the case at bar there is an actual controversy between the parties relative to the duty of repairing the bridge. In order to determine the rights of the parties it is necessary to construe certain statutes and the validity and interpretation of a resolution passed by the board of county road commissioners in attempting to abandon the highway and bridge. Under such circumstances it is proper to invoke the declaration of rights statute.
The principal question in this case relates to the right and obligation of the village of Breedsville, or the township of Columbia or the board of county road commissioners to repair or rebuild the bridge. The facts are undisputed. The village of Breeds-ville was incorporated in 1883. The bridge in ques tion was built in 1890 by the township of Columbia and maintained by it until 1927 when it was taken over by the board of county road commissioners. The resolution of September 5, 1941, was an attempt to “return” the bridge to the village of Breedsville.
It is conceded that in 1927 the county of Van Burén took over county highway No. 677, including the bridge in question. Thereafter, the responsibility for repairing and rebuilding the bridge was upon the board of county road commissioners until such time as it abandoned the bridge. The purport of the resolution adopted by the commissioners was to abandon its control of that portion of the highway in question here. Section 3993, 1 Comp. Laws 1929, as amended by Act No. 290, Pub. Acts 1937 (Comp. Laws Supp. 1940, §3993, Stat. Ann. 1942 Cum. Supp. §9.118), provides: “After proceedings to discontinue and abandon have been had, the jurisdiction in control of such road shall revert to the township or municipality within which the same is situated, which, prior to the time of its adoption as a county road, had jurisdiction and control thereof.” ITnder the above statute the board of county road commissioners could not return the highway to the village of Breedsville. It follows that the village of Breedsville has no authority to repair or rebuild the bridge.
The method of abandoning a highway is found in the last above-cited section which provides:
“The board of county road commissioners of any county which has adopted the county road system is hereby authorized and empowered to, at any time, abandon and discontinue any county road, or any part thereof, by a majority vote. The vote of the county road commissioners in respect .to such abandonment and discontinuance shall be taken and en tered, and notice thereof be given, in the same manner as required in this section, in cases in which county roads are adopted.”
That portion of this section last referred to provides in part:
“Notice of determination shall be forthwith given by the clerk to the highway commissioner of each township and the highway authorities of each city or village in which said road or any part thereof is situated, and published in some newspaper printed and circulated in the county, once in each week for three successive weeks.”
The board of county road commissioners urges that the resolution adopted was sufficient in form and purpose to surrender its jurisdiction over that particular portion of the highway on which the bridge is located. We note that the resolution provided that the highway was to be returned to the village of Breedsville under the provisions of Act No. 290, Pub. Acts 1937; that the resolution does not provide that the highway was to be returned to the township of Columbia; and that the township of Columbia was not served with any notice that the highway was to be abandoned.
Under the above statute the board of county road commissioners had the right to abandon and discontinue the highway in question. The statute provides that proceedings to abandon and discontinue a highway “shall be taken and entered, and notice thereof be given, in the same manner as required in this section, in cases in which county roads are adopted.” In our opinion the intent of the board of county road commissioners to return this highway to the village of Breedsville and the failure to notify the township of Columbia of its intent to abandon or discontinue the road fail to comply with the statute providing for discontinuance or abandonment of .highways under the jurisdiction of the board of county- road commissioners. The resolution did not accomplish the purpose now claimed for it.
The obligation of maintaining and repairing the bridge remains with the board of county road commissioners.
The decree of the trial court is affirmed, but without costs as a public question is involved.
Starr, C. J., and North, Wiest, Butzel, Bushnell, and Reid, JJ., concurred • with Sharpe, J. Boyles, J., concurred in the result. | [
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Clark, J.
The sheriff, at the owners’ request, and without warrant, -searched their premises, a small farm, on which there was a dwelling, then vacant, and an outbuilding, sometime used as a slaughter house. Defendant, aided by his son, -was found operating a still in the slaughter house. A quantity of mash was found in the dwelling. The sheriff seized the outfit, including a quantity of moonshine whisky, which, at the trial, was received in evidence over defendant’s objection, and against his motion to suppress and to discharge, timely made. .
On exceptions before sentence, defendant presents the substance of his objection, that the search and seizure were unlawful because made without a search warrant. The owners testified that they had not given defendant permission to go and to be upon the land. But defendant had testimony that the owners had given him permission to go upon the land and to do what he did do, and he contends that he had a right in the premises which the sheriff might not invade without warrant. If defendant’s testimony be given full credit, he was a mere licensee, he had a mere privilege to go upon the premises for a certain purpose. The license was not exclusive of the owners. 37 C. J. pp. 284-287. They might go upon the premises and into the buildings at any time. And they might invite another to go. They invited the sheriff. He was lawfully on the premises, in the dwelling, in the slaughter house. And being there he observed defendant committing a felony in his presence. It was the sheriff’s duty then to arrest the defendant and to seize the outfit, which he did. 24 R. C. L. p. 723; People v. Chomis, 223 Mich. 289; People v. Woodward, 220 Mich. 511.
Other questions do not require discussion.
Affirmed, and judgment advised.
Bird, C. J., and Sharpe, Snow, Steere, Fellows, Wiest, and McDonald, JJ., concurred. | [
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Smith, J.
This .suit is the result of a split vote in the Mayflower Congregational Church of Detroit (253 for and 204 against) over -whether to become affiliated with the United Church of Christ, a relatively new denomination formed in recent years by a merger of the Evangelical and Reformed Church and a large number of assenting member churches of the Congregational Christian Churches of the United States, an association of autonomous churches. Plaintiffs brought this class action as part of the 204-member minority of Mayflower who voted against their particular church becoming a part of the United Church of Christ. In brief, it is plaintiffs’ claim that if the Mayflower Church becomes a part of the United Church of Christ, it would effect a change in the organizational structure and practices of the Mayflower Church, contrary to the faith and usages to which the church property has been dedicated. Plaintiffs say that as members of the “faithful minority” — that is, faithful to the historical precepts of Congregationalism — they should have title to the church property quieted in themselves and others who, they allege, steadfastly adhere to these precepts. Defendant claims that the central issue of whether the merger resulting in the formation of the United Church of Christ effects a departure from Congregationalism has already been decided in class actions (in which, defendant says, plaintiffs were effectively represented) in other cases in other States, all contrary to plaintiffs’ claim.
This case comes to us on leave granted plaintiffs from a decision of the Michigan Court of Appeals (see 1 Mich App 252), which affirmed the judgment of the trial court dismissing plaintiffs’ complaint on motion. The trial court found that there was “no genuine issue as to any material fact but only disputed questions of law, and that defendant Mayflower Congregational Church is entitled to judgment on its motion as a matter of law.”
The trial court based its judgment upon a holding that in two prior class actions in the State of New York, which will be discussed in detail below, plaintiffs therein “represented a class of which plaintiffs in the present action were members and claimed and sought declarations of rights and interests in the subject matter of the litigation which included all the rights and interests asserted by plaintiffs herein.” The trial court held, therefore, that plaintiffs were estopped by these two prior judgments from litigating the issues in the present complaint inasmuch as the matters are “res jibdicata as to such issues”, to employ the trial court’s terminology.
So much for the brief summary of what the case is about. It will be necessary, however, to examine the pleadings and contentions with added specificity and comprehensiveness because the issues are somewhat technical and rest almost entirely upon prior adjudications in other forums, the holdings of which are in serious dispute between the parties to this action.
First, we examine plaintiffs’ complaint (filed June 22, 1961) which, as we have said, was dismissed on motion of defendant. Plaintiffs brought this class action characterizing themselves as part of the “faithful minority” which opposes the Mayflower Congregational Church becoming affiliated with the United Church of Christ. The Mayflower Church is an ecclesiastical corporation organized under PA 1901, No 53, entitled “An act for the organization of corporate Congregational churches.” The complaint alleges that a union with the United Church of Christ would work a change in the congregational faith by substituting, in part at least, some measure of ecclesiastical control over member churches contrary to the historic principles of Congregationalism which concededly have reposed in each church complete autonomy over its own affairs including, among other things, the power to ordain ministers and to call ministers to pastorates and to determine what are sacraments.
The complaint further alleges that although the constitution of the new United Church of Christ states that “ ‘the autonomy of the local church in the management of its own affairs is not subject to be abridged or impaired’ [it] nevertheless does abridge and impair what have been to this time and are today ‘its own affairs’ of the local church.” In pointing up this claimed contradiction the complaint further alleges that “(a) sacraments are dealt with in section 2 of the Constitution where it is stated, United Church recognizes two sacraments, ‘baptism and the Lord’s supper or holy communion’. Thus, this subject is tahen out of being one of ‘its own affairs’ of the local chv,rch. (b) Ordination of minister is by section 27 declared a ‘rite’ of United Church # * * through an association. The person desiring ordination must apply to the association (bylaw 109) . He is examined by ‘the committee on the ministry of the conference and association’ (bylaw 110) . He is ‘expected’ to have studied in a ‘theological seminary approved by the council for church and ministry’ of the United Church (bylaw 104). This is far from the existing practice by ivhich ordination is by a conciliary council convened by the local church,” reads the complaint. “Under this practice,” it continues, “the association may be called to act as the conciliary council but, if so, acts as an invitee and agency of the local church. Under the constitution and bylaws the association acts as the agency of the United Church and with sole and exclusive authority in respect of ordination, (c) Calling of a pastor is ‘by such procedure as (the local church) shall determine’ and is by the constitution stated to be one of ‘its own affairs’ of the local church but this is limited to procedure and does not extend to the substantive ivho may be called, where from, and his qualifications,” says the complaint.
In the same vein, the complaint continues: “The call is declared to be ‘a concern of the church at large’ (constitution 30). A minister of another denomination can be called only if the association grants him privilege of call, ‘and this is done only after examination by the committee on the ministry of the conference and association’ (bylaw 132). ‘Installation or recognition’ upon acceptance of a call is a function of the association (bylaw 128). (d) Amendment of the constitution is dealt with in section 88. The amending power is solely in the general synod of the United Church and the conferences of that church. The local church has no voice in the amendment. They merely have authority to loot at a proposed amendment and possibly to protest against it. There is no limitation in the constitution on what may be done by way of amendment. While a local church if any amendment were unacceptable to a majority of the members of a local church voting thereon has authority ‘to withdraw by its own decision from United Church * * * at any time without forfeiture of ownership or control of any real or personal property owned by it’, nevertheless the rights which are being asserted by this bill of complaint commonly referred to as the rights of a ‘faithful minority’ are completely cut off and extin guished when the local church becomes ‘a part of the United Church’.” (Italics in preceding paragraphs are supplied.)
Defendant countered plaintiffs’ complaint with a motion to dismiss supported by affidavits replete with materials from previously adjudicated cases. The thrust of the motion was that matters raised in plaintiff’s complaint herein were raised in the two prior lawsuits and “conclusively determined” against plaintiffs. The two cases figuring so importantly in this litigation are (1) “the Cadman Case” (Cadman Memorial Congregational Society of Brooklyn v. Kenyon [1953], 306 NY 151 [116 NE 2d 481]), and (2) “the Burlington Case (First Congregational Church and Society of Burlington, Iowa, v. Evangelical and Reformed Church [CA 2, 1962], 305 F2d 724).
Defendant’s motion asserts, among other things, that the constitution of the United Church of Christ does not and would not interfere with the historical and traditional precepts of Congregationalism in any way and that expressly the autonomy of local churches is preserved. Supporting affidavits contain a substantial discussion of the history of the merger and defendant’s view as to the holdings in Cadman and in Burlington. As aforesaid, the trial court, agreeing with defendant, found no genuine issue of fact and concluded that there was presented only questions of law which the court held had been decided adversely to plaintiffs. Michigan’s intermediate appellate court, the Court of Appeals, affirmed without much discussion. See 1 Mich App 252, at page 260.
On appeal in this Court, plaintiffs-appellants argue that their complaint “alleges a classic case of a faithful minority seeking to prevent a majority from diverting property dedicated to the use of a church to another denomination or to the support of doctrines fundamentally opposed to the doctrines of such church,” citing Michigan Congregational Conference v. United Church of Stanton (1951), 330 Mich 561; Davis v. Scher (1959), 356 Mich 291; and Immanuel Lutheran Church v. Fromm (1962), 367 Mich 575. Plaintiffs say that in both Cadman and Burlington, upon which defendant relies, the rights of the “faithful minority” were not adjudicated. Plaintiffs say also that their complaint raises serious ecclesiastical questions of doctrine and polity of the United Church of Christ which have not been determined and could not have been determined in the two cases above cited. They insist that they have a right to go to trial for determination of the “fact question” of “departure”, that is, whether the organization and doctrines of the United Church of Christ represent a departure from Congregationalism. Defendant says that Cadman and Burlington have already determined that there is no departure “from the traditional doctrine and practice of the church.” Both sides agree that the key issue is whether the New York case of Cadman determined this issue of departure.
What did Cadman Memorial Congregational Society of Brooklyn v. Kenyon, supra, decide? More particularly, did it decide the issue of departure?
Because of the sharp conflict between the parties as to what Cadman decided, we think it best to analyze the well-recorded holdings in Cadman from the trial court stage through intermediate and final appeals.
Cadman in the Trial Court.
The Cadman Church of New York City brought suit in a class action, on behalf of themselves and other Congregational churches similarly situated, against Helen Kenyon as moderator of the general council of the Congregational Christian churches. Plaintiff Cadman sought various relief against the council, including injunction and a declaratory judgment. The Cadman church .had voted against the merger and brought action to halt the general council from proceeding with merger plans, claiming the council had no power to consummate merger with the Evangelical and Reformed Church. Defendant conceded that the general council claimed no power to compel a nonassenting congregational church to merge and become a part of the United Church of Christ. Cadman claimed a property interest in various properties and funds of boards and agencies of the general council of the Congregational Christian Churches. It was the Cadman allegation that such funds were “held or controlled in trust for the benefit” of Congregational Christian Churches, under their principles and practices.
In a lengthy opinion (197 Misc 124 [95 NYS2d 133]), the New York trial court found that significant amounts of property, largely money, were in the hands of several “boards, agencies and commissions” of the Congregational Christian churches, which were “held or controlled in trust for the benefit, work, interest and activities of the Congregational Christian Churches.” The court then discussed with some particularity various provisions of the merger plan known as the “basis of union” and concluded that in several particulars the then proposed basis for merger between the Congregational Christian Churches and the Evangelical and Reformed church would, in the words of the court, constitute a “shift of authority from the [local congregational] church to the United Church of Christ.” The court characterized another provision as “a radical departure.” Still another provision of the “basis of union” was said to constitute a “throttling” of the independence of the heretofore separate autonomous Congregational churches. A declaratory judgment was then entered in favor of plaintiff Cad-man Church declaring that the general council had “no power or authority on behalf of or in the name of the separate churches to proceed with or carry out and consmnmate the basis of union of the Congregational Christian Churches and the Evangelical and Reformed Church.” Concordant declarations were also made by the trial court that the general council “as a representative body” had no power to merge with the Evangelical and Reformed Church and so on. The defendant appealed.
Cadman in the intermediate appeals court.
The appellate division of the New York court reversed on the law and on the facts. In a memorandum opinion by the court ([2d Dept, 1952] 279 App Div 1074 [111 NYS2d 808]), the essential holding was stated as follows, p 1075:
“In controversies such as this, ecclesiastical or doctrinal questions may be inquired into only insofar as it may be necessary to do so to determine the civil or property rights of the parties. The civil courts do not interfere with ecclesiastical matters in which temporal rights are not involved. Plaintiffs have failed to establish any right or interest in or to the funds and other assets which plaintiffs asserted were held in trust, which requires or permits a determination of the ecclesiastical issues presented. The action was not brought upon the theory that the rights of the plaintiffs or other churches similarly situated, with respect to ownership and control of their individual properties and funds, would be in any way threatened or endangered by the proposed church union complained of. As to such rights and as to funds held under express trusts, there is no dispute between the parties. As to other funds held by or under the control of the defendant, it was not established that they were received in any other way than as absolute gifts or contributions, to be expended for specific objects or for defendant’s usual purposes.” (Emphasis supplied.)
Consistent with its prior stated reasons, the appellate division guardedly ended its opinion in this manner, p 1076:
“Findings of fact, expressed and implied, inconsistent with the foregoing, except such findings as were made expressly or by implication, upon questions of doctrine, polity and other ecclesiastical matters, are reversed. For the reasons heretofore stated, this court has not considered and has made no determination upon the questions of fact arising upon the issues as to such ecclesiastical matters.” (Emphasis supplied.)
Thereafter, the Cadman plaintiffs appealed the case to the highest court in the State of New York, the court of appeals.
Cadman in the New York court of appeals.
After reciting the history of merger proceedings as far as they had advanced to the point of suit, the court of appeals analyzed the pleadings and issues in this manner. (See 306 NY 151 [116 NE2d 481]). It stated that “According to its complaint the plaintiff is proceeding upon the theory that the proposed United Church of Christ is and will he so alien and different in structure and polity that fundamental congregational usage and practice will he wholly lost and destroyed. By way of showing such fundamental difference it points out that the United Church of Christ will be a general or authoritative church governed through various ecclesiastical bodies having degrees of sovereignty as distinct from the existing voluntary and advisory ass ocia tio'ns, conferences, conventions, and general council; that the individual churches and members will be subordinate to control providing, as it does, for a central authority for the engaging and dismissal of ministers, the establishment of a system of church judicatories and for a united or uniform confession of faith in place of the absolute independence and freedom now and heretofore enjoyed in such matters by Congregational Christian Churches.” (p 162.)
The court then stated that the answer of the general council conceded that if merger were consummated under the doctrine entitled “basis of union” the Cadman church and any other congregational church would not be subject to any control, in either the spiritual or temporal sphere, by the new United Church of Christ. After discussing further what the answer and concession of the general council meant, with reference to the autonomy of a congregational church under the merger plan, the court observed as follows, p 163:
“In short, there is no power and none is claimed by which the general council can compel or intends to compel the plaintiff Cadman or any other non-assenting church to join the union unwillingly or impose upon them a change of faith or doctrine. Union depends on voluntary action freely taken by independent autonomous churches. * * * Under these circumstances no ecclesiastical question is presented.” Citing Watson v. Jones, 13 Wall (80 US) 679 (20 L ed 666).
The court returned to a consideration of whether consummation of the proposed merger based upon the document entitled the “basis of union” would interfere with any property rights possessed by the Cadman plaintiffs, with particular references to the. funds and assets in various boards and agencies allégedly under control of the defendant general council. It was immediately pointed out that all parties agreed that the funds and property held directly by the Cadman church were in no way “involved in or threatened” by the proposed union. The same agreement was had with reference to funds held by various agencies, boards, and instrumentalities under the general council under express trust, including pension funds. As the court pointed out, the dispute as to whether or not Cadman plaintiffs had any property interest which would give, the court jurisdiction or authority to settle ecclesiastical ques^ tions attendant thereupon was confined solely to the property and funds in various agencies in which the Cadman plaintiffs claimed a beneficial interest under what might be termed an implied trust. Such funds although collected upon a per capita and apportionment basis were nevertheless conceded to be voluntary payments from individual churches., or members, that is, with no compulsion from higher church bodies.
After discussing some of the work of the various boards and agencies such as the American Board of Commissioners for Foreign Missions and the Board of Home Missions, the Pilgrim Memorial Fund and others, the court concluded contrary to the contention of the Cadman plaintiffs, that is, that there was no beneficial interest of plaintiffs in such funds because, as the court found, the funds were, in effect, donated by various churches for general corporate purposes and that the donations were voluntary and without restrictions as to use or application.
: The court then concluded as follows, p 167: “having established that the basis of union is ■ voluntary, and in no way interferes with Congregational faith or manner of worship, and the plaintiffs having, failed to establish any direct or beneficial interest ih and to the unrestricted funds of the general council, its various boards, agencies and instrumental ities, and having failed to show that any snch general funds are to he used for other than authorized charter purposes, the complaint was properly dismissed on the merits.”
The Burlington Case.
The Burlington Case brought in the Federal district court for the southern district of New York was a class action brought by another group of non-assenting Congregational churches, ministers, and members of various churches throughout the country. (In the Cadman Case, only the Cadman Church and Society were plaintiffs.) The defendants named in this action were not only the general council of the Congregational Christian Churches but also the Evangelical and Reformed Church and, in addition, all of the major boards and instrumentalities of the Congregational Christian Churches. (In Cadman, the moderator of the general council was the defendant.) Again, the nonassenters attacked the basis of union as being an illegal document which would impair the historical autonomy of the local congregational church. As to the allegations with respect to property rights, the plaintiffs in Burlington sought to show different property interests from the plaintiffs in Cadman, particularly certain mortgagors’ interests. With respect to such claims, the United States court of appeals, second circuit, summarized the contentions of the Burlington plaintiffs and the court’s ruling as follows (p 729):
“Since the plaintiffs here, as the district court found, also have made only voluntary contributions, if any, and no further charter violations are shown, the present plaintiffs were clearly members of the class represented by tbe Cadman church and society for purposes of resolving the status of the boards and agencies, and are bound by that decision.
“There remains the request made by the present plaintiffs for a declaration that ministers, members, and nonassenting churches may not be deprived of their rights in the assets, properties, and organizations of the Congregational Christian agencies and instrumentalities. If they coulcl show some right or interest adverse or dissimilar to that of the Cadman plaintiffs in these assets, et cetera, the present plaintiffs might prevail in their claim that the Cadman church and society cottld not adequately represent them in the litigation of such an issue. They have, however, made no such showing. While they point to certain differences of interest, no showing is made that these differences give plaintiffs here a claim or right to a declaratory judgment different from that asserted by Cadman. And while such a separate claim or right might arise if, for example, a mortgage were foreclosed or a pension denied because of refusal to join the United Church of Christ, we cannot on the present record ascertain any imminently threatened interest which the present plaintiffs possess which so differentiates them from the Cadman plaintiffs, in terms of the issues there decided, that the Cadman plaintiffs could not adequately represent all the varying nonassenters.” (Emphasis supplied.)
Defendants in Burlington claimed by way of defense res judicata and collateral estoppel, their contention being that representatively the same class and the same issues were before the Federal court as were before the New York court in the Cadman Case. The Federal district court ruled with defendants and on appeal the court of appeals for the second circuit affirmed. The court of appeals said (p 728):
“It is our conclusion that as to the issues actually raised and resolved by the New York court of appeals in Cadman, the plaintiffs therein and the present plaintiffs form one class having common interests, and all were adequately represented by the Cadman church and society. Since no legal issue not determined by Cadman is raised by the present complaint, the judgment of the district court dismissing plaintiffs’ complaint must be affirmed.”
Positions of the Parties.
All the parties agree that this case must turn upon application of a facet of the doctrine of res judicata. The disagreement arises from the interpretation of the opinion of the New York court of appeals in Cadman and of the Federal court of appeals in Burlington and as to what these cases decided.
It is plaintiffs’ position that the doctrine of res judicata does not preclude them from litigating the departure issue. They reason that the New York court of appeals in Cadman made no determination as to the “departure” issue because they had no jurisdiction to do so, there being no property interest shown. Plaintiffs maintain that the court of appeals affirming the appellate division, necessarily affirmed the express finding of the appellate division that no jurisdiction existed to determine ecclesiastical questions, including the question of departure. As to the Burlington decision, plaintiffs argue that the Federal court of- appeals decision is binding upon defendant insofar as it held that it was unclear whether the departure issue was decided in Cadman on the merits. Plaintiffs base this contention upon the following from this significant footnote in the opinion of the court of appeals in Burlington (p 729):
“While it is not wholly clear from the court of appeals decision whether it upheld the basis of union on the merits or because the question of its invalidity was beyond the cognizance of the civil courts, it would make no difference to resolution of the issues presented here which of these grounds of decision was in fact adopted.”
It is the position of defendant that plaintiffs are precluded by res judicata from litigating the departure issue. It maintains that the departure issue was decided on the merits contrary to plaintiffs’ position, in both Gadman and Burlington. Defendant argues that the decisions in Gadman and Burlington were essentially the same as in the instant case, both as to parties and issues, that plaintiffs are members of the class represented in both prior suits, and are therefore barred by the doctrine of res judicata from litigating the departure issue in the present suit. Defendant in answer to plaintiffs’ claim that the court of appeals in Cadman lacked jurisdiction to determine the departure issue, claims quite to the contrary that the court “did have the power to consider and dispose of plaintiffs’ allegations regarding departures from Congregationalism involved in the union. The court found not only that the act of uniting was voluntary,” says defendant, “but also that the churches would remain free in the United Church. * * * This adjudication as to the freedom of churches is the critical ‘departure issue’ in this and the prior actions and has already been adjudicated against present plaintiffs,” argues defendant. (Emphasis supplied.)
Defendant bases this contention upon the following language from the New York court of appeals in Gadman:
“According to its express terms, the basis of union recognizes the local chuiph as the basis of organ ization, and that the conferences, conventions and associations shall ‘conduct its business in its own way’ by providing that each congregation, association, and conference ‘has the right of retaining or adopting its own charter, constitution, bylaws and other regulations which it deems essential and proper to its own welfare’; in other words that there will be no intrusion in or abridgement of traditional congregational polity and usage through fellowship of independent autonomous congregations, free of authoritative control.” 306 NY 151, 161, supra.
Plaintiffs assert that the language relied upon by defendant in the court of appeals decision in Cad-man is based upon concessions by the parties, and that concessions cannot be relied upon as a basis for a plea of res judicata. Defendant answers that under New York law concessions are a proper basis for a plea of res judicata. Both plaintiffs and defendant have raised many other issues which need not be considered here. Two amicus briefs were also submitted, which have been both instructive and helpful.
Statement of Issues.
The overriding issue presented in this case is whether res judicata, or more precisely, the doctrine of collateral estoppel precludes plaintiffs from litigating the departure issue in view of the decisions in Cadman and Burlington. When employing the term “departure”, we mean whether, if an autonomous congregational church merged with the United Church of Christ, a change in religion would result, insofar as the congregational church was concerned. This is in contradistinction to the issue of whether a particular congregational church could be compelled by the general council to join the United Church. It is conceded in Cadman that there was no such power in the council. The autonomous congregational churches were conceded to have the authority to vote whether to join or not to join. But, did Cadman or Burlington decide that if, by majority vote, a particular church of the congregational faith voted to merge with the United Church of Christ and take the church property with it, the tenets and practices of the United Church would be so different from that of Congregationalism that so to adhere would constitute a “departure” from Congregationalism ?
Decision.
First, we are called upon to construe what the court of appeals of New York decided in Cadman. Recapitulating, the trial court in Cadman made two findings, essentially: (1) that the Cadman plaintiffs had a property interest in funds in various agencies and boards under control of the general council; and (2) that, as an ecclesiastical matter, the doctrine and polity of the United Church of Christ as contained in the “basis of union” reflected, in part at least, a departure from Congregationalism. In reversing the trial court, the appellate division of the New York supreme court reversed both on the law and the facts. The appellate division found, contrary to the trial court, that the Cadman plaintiffs had no property interest in the various funds already mentioned above. Finding no property interest in Cadman, the appellate division expressly refrained from “questions of doctrine, polity and other ecclesiastical matters.” In other words, it declined to discuss the departure issue because it felt that in finding no property interest, the court had no jurisdiction to entertain these ecclesiastical questions. This latter position is made emphatic by the contemporaneous writing of the dissenting justice who wrote: “I cannot agree that the trial court had no jurisdiction to determine this matter.” (279 App Div 1074, 1076 [111 NYS2d 808, 811].) He went on to indicate that he thought a property interest had been shown sufficient to confer jurisdiction to decide the ecclesiastical question.
In affirming the judgment of the appellate division, the New York court of appeals made it clear that neither the property held directly by the Cad-man church, nor the funds held by the general council under express trusts were involved in the suit. The only property in dispute were those funds in which the Cadman plaintiffs claimed a “beneficial interest.” As to such funds in possession of the several boards and agencies of the general council, the court of appeals held that under the circumstances, “such funds were general gifts for use by the corporations [various boards] in connection with their general corporate purposes.” The court held that such “unrestricted contributions” create no proprietory or beneficial interest in the Cadman plaintiffs as would warrant interference by the civil court, unless, the court added, it should appear that their use would be violative of corporate or charter purposes, which was not claimed nor shown. The court of appeals, therefore, found, as did the appellate division, no property interest in the funds had been established by the Cadman plaintiffs.
The paragraph in the Cadman opinion of the New York court of appeals about which there is so much dispute is quoted in full herewith (pp 162, 163):
“The general council in its answer concedes that under the basis of union the plaintiff and any other Congregational Christian church, association, or conference, or their members, would not be subject in respect ‘to either their spiritual or temporal affairs to any control by the proposed United Church of Christ,’ — that the proposed expression of faith set out in the basis is not to be considered a substitq tion for any confession of faith which may be used in any congregation and 'shall be regarded as a testimony and not as a test’ and that freedom of worship and education at present enjoyed ‘will be preserved in the United Church * * * [and] not * * * abridged’. These clear and unequivocal admissions afford assurance that the proposed union will in no way change the historical and traditional pattern of the individual Congregational Christian church. They serve to remove all fear that any action taken by the general council leading to a consummation of the basis of union will in any way obligate the individual church to join in the union except through its own voluntary action. Every possible assurance is given that each member church will continue to possess the same freedom of faith and manner of worship as heretofore enjoyed — -that there will be no interference in or abridgment of congregational usage and practice. In short, there is no power and none is claimed by which the general council can compel or intends to compel the plaintiff Cadman or any other nonassenting church to join the union unwillingly or impose upon them a change of faith or doctrine. Union depends on voluntary action freely taken by independent autonomous churches. If any doubt remains, it seems abundantly clear from this record that the very nature of Congregationalism, surviving as it has the vicissitudes of time for nearly 400 years, assures the integrity of the individual Congregational Christian church, its faith and independence. Under these circumstances no ecclesiastical question is presented. (Cf. Watson v. Jones, 13 Wall [80 US] 679 [20 L ed 666].)”
Defendant, in construing the Cadman opinion, says that the court of appeals “found not only that the act of uniting was voluntary, but also that the churches would remain free in the United Church. * * * This adjudication as to the freedom of the churches is the critical ‘deparhire issue’ in this and the prior actions and had already been adjudicated against the present plaintiffs.” (Emphasis supplied.)
Plaintiffs in the present action say that this is what Cadman means: “Cadman said the basis of union was valid because a nonassenting church could not be compelled to join the United Church of Christ. However, if a Congregational church votes to join the United Church of Christ, and these alleged differences amount to a departure from Congregationalism, the church may not take the property into the United Church of Christ. The issue presented in the present action is whether there [sic] differences amount to a departure.” (Emphasis supplied.)
Part of the confusion about what Cadman means is occasioned by the fact that the highest appellate authority in New York, the court of appeals, added another slightly different reason for its decision than did the appellate division which it affirmed. The appellate division followed the conventional pattern of deciding a church dispute, that is, by determining if a property interest was involved sufficient to confer jurisdiction or power to decide the ecclesiastical question. The appellate division found no property interest in the Cadman plaintiffs and, therefore, expressly refrained from ruling on ecclesiastical questions.
However, although the New York court of appeals held with the appellate division on the property issue, it added a point which furnishes the chief bone of contention. As to the property issue, it said: (1) that plaintiffs had “failed to establish any direct or beneficial interest in and to the unresticted funds of the general council, its various boards, agencies and instrumentalities”; and (2) that plaintiffs also “failed to show that any such general funds are to be used for other than authorized charter purposes.” Curiously, the court of appeals added a finding “that the basis of union is voluntary and in no way interferes with Congregational faith or manner of worship.” This latter expression, along with other isolated expressions of a similar nature contained in the Gadman opinion, are said to be a decision on the departure issue. When read in conjunction with parts of the opinion, together with the issues before the court on appeal from the appellate division, the only logical conclusion that can he reached, however, is that not only did the court of appeals not consider the departure question but also that it had no jurisdiction or power so to do because there were no property interests shown so as to confer jurisdiction to decide this ecclesiastical question. In this connection, we acknowledge the helpfulness of the brief amicus filed in support of plaintiffs’ position.
What the court of appeals in Gadman said about the “basis of union * * * [being] voluntary” is consonant with its earlier expressions set forth in the highly disputed paragraph from Cadman quoted in full above. There it reads: “In short, there is no power and none is claimed by which the general council can compel or intends to compel the plaintiff Cadman or any other nonassenting church to join the union unwillingly or impose upon them a change of faith or doctrine.” Then the court added emphatically that “Union depends on voluntary action freely taken by independent autonomous churches.” It concluded the discussion by saying that “Under these circumstances no ecclesiastical question is presented.” Significantly then, the reader was asked to compare “(Cf.)” Watson v. Jones, 13 Wall (80 US) 679 (20 L ed 666).
Watson is a many faceted case which contains important dicta with reference to congregational churches upon which the Gadman court obviously leaned. The holding in Watson, however, had to do simply with a church dispute of a different denomination from Gadman. The 1871 case of Watson found a proslavery and an antislavery group competing for the use of church property of a particular church in Louisville, Kentucky. The highest judicatory body of the Presbyterian church, the general assembly, declared the antislavery group to be the “true and lawful Presbytery of Louisville.” The Kentucky court decided against the general assembly, but was reversed by the United States Supreme Court which held that in a church where congregations are subordinate members of a general church organization, and the highest judicatory body has determined questions of discipline, or of faith, or of ecclesiastical rule, then the civil courts must accept such determination as final.
The important dicta in the case sought to sum up the types of disputes which occurred in religious bodies and to suggest the governing principles for each. The Supreme Court divided the problems into three classifications:
“1. The first of these is when the property which is the subject of controversy has been, by the deed or the will of the donor, or other instrument by which the property is held, by the express terms of the instrument devoted to the teaching, support, or spread of some specific form of religious doctrine or belief.
“2. The second is when the property is held by a religious congregation which, by the nature of its organization, is strictly independent of other ecclesiastical associations, and so far as church government is concerned, owes no fealty or obligation to any higher authority.
“3. The third is where the religious congregation or ecclesiastical body holding the property is but a subordinate member of some general church organization in which there are superior ecclesiastical tribunals with a general and ultimate power of control more or less complete, in some supreme judicatory over the whole membership of that general organization.” 13 Wall (80 US) 679, 722, 723.
The only applicable portion of Watson v. Jones which applied in Cadman was that part of Watson devoted to the second classification of eases, namely those of congregational or other independent, autonomous organizations. Of this type of case, the court in Watson had this to say: (pp 724, 725)
“The second class of cases which we have described has reference to the case of a church of a strictly congregational or independent organization, governed solely within itself, either by a majority of its members or by such other local organism as it may have instituted for the purpose of ecclesiastical government; and to property held by such a church, either by way of purchase or donation, with no other specific trust attached to it in the hands of the church than that it is for the use of that congregation as a religious society.
“In such cases where there is a schism which leads to a separation into distinct and conflicting bodies, the rights of such bodies to the use of the property must be determined by the ordinary principles which govern voluntary associations. If the principle of government in such cases is that the majority rules, then the numerical majority of members must control the right to the use of the property. If there be within the congregation officers in whom are vested the powers of such control, then those who adhere to the acknowledged organism by which the body is governed are entitled to use of the property. The minority in choosing to separate themselves into a distinct body, and refusing to recognize the authority of the governing body, can claim no rights in the property from the fact that they had once been members of the church or congregation. This ruling admits of no inquiry into the existing religious opinions of those who comprise the legal or regular organization; for, if such was permitted, a very small minority, without any officers of the church among them, might be found to be the only faithful supporters of the religious dogmas of the founders of the church. There being no such trust imposed upon the property when purchased or given, the court will not imply one for the purpose of ex-pelling from its use those who by regular succession and order constitute the church, because they may have changed in some respect their views of religious truth.”
It having already been conceded by defendant in Cadman and thereupon found by the trial court that the general council neither claimed nor had authority to compel a nonassenting member congregational church — as was the Cadman church — to join the United Church, there obviously was no necessity for the New York court to get into such ecclesiastical questions as to whether the United Church represented a departure from the doctrine and polity of the Congregational Christian churches, including the Cadman church. In short, the general council could not compel a nonassenter, it being conceded that union was voluntary. Cadman being a nonassenter ■had, in a sense, “volunteered” not to become a part of the United Church. Therefore, the argument was at an end. There was no need for the court to delve into various ecclesiastical questions of the “what iff” type, that is, what if Cadman had, by majority vote, decided to affiliate with the United Church? Or what if the other congregational churches elected to affiliate, would the doctrine, polity and practices of the United Church be so different as to constitute a “departure” from historic Congregationalism?
The New York court of appeals did not attempt to answer all of these questions to which the Cadman plaintiffs sought specific declarations. It merely sought to determine if a union would he voluntary. Once having done that, there was no need, even in such a comprehensive format, to render a declaratory judgment as to whether the doctrine and polity of the United Church represented a departure from Congregationalism. If one was not compelled to join, and elected not to join, then one need not surmise what the climate might be if he did.
By referring to Watson v. Jones, the New York court was indicating its awareness and probable approval of the only relevant portion of the Watson Case, that is, that part having to do with congregational type churches. Watson said, as to such churches, when schisms develop in a particular local autonomous congregational church over whether one segment of such a church is about to depart from historic precepts and practices, then, in the absence of an express trust imposed upon the use of the church property, the rules that govern are those which apply to nonreligious voluntary associations. See 62 Mich L Rev 419, 436 (1963).
Another clarification is in order. The citation in Cadman to Watson v. Jones relative to the law of voluntary associations, appears, clearly from the quote from Watson, to refer to the law of voluntary associations as it applies to local church units. As already indicated, in this regard, the Cadman Case was simply trying to say that so long as the general council had no power to compel an individual church to join, then that resolved that particular issue, leaving it to each individual church, under the rules governing voluntary associations to join or not to join. Obviously, this had no application to the Cad-man plaintiffs because they had already voted not (to join, but it was instructive dicta aimed at possible future litigants.
Thus, by way of summary of Cadman, we may say .this: that the New York court of appeals clearly sustained the finding of the appellate division that • the Cadman plaintiffs had shown no property interest in the funds held by the various boards and agencies of the general council. It might have ended there, as did the appellate division, but, for reasons • of its own, the court added another point to its rationale in Cadman, that is, that the union with the United Church was conceded to be voluntary and that the general council claimed no power nor had any power to compel a nonassenting church such as . Cadman to join the United Church, and thus, under such circumstances, there was no need to discuss alleged doctrinal differences (ecclesiastical questions) between historic Congregationalism and the proposed tenets of the United Church as then expressed in the basis of union. To our way of thinking, the court was making what was already clear also emphatic!
The unquestioned clincher in all this discussion as to what Cadman means is the fact that the almost universal holding of courts in this country is that a civil court has no jurisdiction over ecclesiastical questions unless property rights are involved. Watson v. Jones, supra; Everson v. Board of Education of Township of Ewing, 330 US 1 (67 S Ct 504, 91 L ed 711, 168 ALR 1392); Zorach v. Clauson, 343 US 306 (72 S Ct 679, 96 L ed 954); Kedroff v. St. Nicholas Cathedral, 344 US 94 (73 S Ct 143, 97 L ed 120); 45 Am Jur, Religious Societies, Decisions as Conclusive; Supervisory Power of Civil Courts, § 41, pp 750-752; 76 CJS, Religious Societies, Jurisdiction and Power of Civil Courts in General, § 88, pp 873-878; Rector, Church of Holy Trinity v. Melish, 4 App Div 2d 256 (164 NYS2d 843); Davis v. Scher, 356 Mich 291. Having affirmed that Cad-man plaintiffs had shown no property interests in council funds, we have no doubt that the New York court of appeals was keenly aware of its own jurisdictional limitations and thus did not consciously take up any ecclesiastical questions, any idle phrases suggesting such to the contrary notwithstanding.
The Burlington Case, already cited, was brought in the Federal district court for the southern district of New York several years after Cadman had been concluded in the state courts of New York. It was brought on the eve of merger between a large number of assenting member churches of the Congregational Christian Churches and of the Evangelical and Reformed Church. Plaintiffs in Burlington included a number of nonassenting ministers, members of churches, members of boards and agencies, and churches with mortgages held by the Church Building Society, all of the Congregational Christian Churches. Defendants were the Evangelical and Reformed Church, the United Church of Christ, the treasurer of the general council, and various boards, corporations and agencies of the general council. Plaintiffs claimed that the added parties constituted a different class from that in Cadman, and that their interests in the funds held by or under control of the general council removed the Burlington Case from the rule of res judicata as to issues decided in the Cadman Case. From a judgment for defendants, plaintiffs appealed to the court of appeals for the second Federal circuit. There, the decision was affirmed. The court said “It is our conclusion that as to the issues actually raised and resolved by the New York court of appeals in Cadman, the plaintiffs therein and the present plaintiffs form one class having common interests, and all were adequately represented by the Cadman Church and Society.” 305 F2d 724, 728. (Emphasis supplied.)
The court went on further to say (p 729) “There remains the request made of the present plaintiffs for a declaration that ministers, members and non-assenting churches may not be deprived of their rights in the assets, properties and organizations of the Congregational Christian agencies and instrumentalities. If they could show some right or interest adverse or dissimilar to that of the Cadman plaintiffs in these assets, et cetera, the present plaintiffs might prevail. * * * They have, however, made no such showing.” The court then went on further to add this: “And while such a separate claim or right might arise if, for example, a mortgage were foreclosed or a pension denied because of refusal to join the United Church of Christ, we cannot on the present record ascertain imminently threatened interest which the present plaintiffs possess which so differentiates them from the Cadman plaintiffs, in terms of issues there decided, that the Cadman plaintiffs could not adequately represent all the varying nonassenters.”
The Federal court of appeals in Burlington clearly planted its decision on the Cadman Case as to issues actually raised and litigated by the parties in Cad-man which the court found to be of the same representative class in Burlington as in Cadman.
It was also quite clear that the Federal court in Burlington had some difficulty with the language in the Cadman Case with respect to the ecclesiastical issue of departure. The Burlington court, having already decided that the parties and issues were essentially the same in Burlington as in Cadman, deftly handled the question of whether the Cadman court had touched upon the ecclesiastical dispute in this manner: “While it is not wholly clear from the court of appeals [New York] decision, whether it upheld the basis of union on the merits or because of the question of its invalidity was beyond the cognizance of the civil courts, it would make no difference to resolution of the issues presented here which of these grounds of decision was in fact adopted.” 305 F2d 724, footnote at page 729.
The precise legal problem is one of collateral estoppel and the question may now be asked if the Berkaw plaintiffs in this present action are collaterally estopped from litigating- issues raised in their complaint as to whether or not there would be a departure from Congregationalism if the Mayflower Church joined the United Church of Christ? We think the answer is “no”.
As to collateral estoppel concerning fact questions, a good statement of the rule is contained in Restatement, Judgments, § 68(2), p 293:
“A judgment on one cause of action is not conclusive in a subsequent action on a different cause of action as to questions of fact not actually litigated and determined in the first action.”
Michigan is in accord with this statement. See leading case of Jacobson v. Miller, 41 Mich 90, and Jones v. Chambers, 353 Mich 674. For the rule of collateral estoppel as applied to questions of law, see Restatement, Judgments, § 70, p 318.
In view of the fact that neither Cadman nor Burlington decided the ecclesiastical question of departure, present plaintiffs (assuming'they are within a class represented by the Cadman and Burlington plaintiffs) are not precluded from litigating the issues raised in their complaint.
We are invited to review similar cases decided in the courts of Ohio, Wisconsin, and Wyoming, which cases apparently reached results opposed to what we now decide. We decline to do so, not only for the reasons fully explaining our decision above, but also because the cases to which we are invited present no opinions giving insight into their judgments. These cases are fully cited in the Michigan Court of Appeals decision at 1 Mich App 252, 257. The cases in the Wisconsin and Wyoming courts were decided in the trial courts without opinion or appellate review. The Ohio case, in its brief judgment, seems to turn on other issues. Therefore, no useful purpose would be served by a discussion of any of them.
Reversed and remanded for further proceedings. Costs to appellants.
T. M. Kavanagh, C. J., and Dethmers, Kelly, Souris, O’Hara, and Adams, JJ., concurred.
Mueh of the interesting history of the merger is elaborately detailed in other opinions and therefore need not be presented again. See 1 Mich App 252, but especially Cadman Memorial Congregational Society of Brooklyn v. Kenyon (1953), 306 NY 151 (116 NE2d 481), and First Congregational Church and Society of Burlington, Iowa, v. Evangelical and Reformed Church (CA 2, 1962), 305 F2d 724.
(CL 1948, § 458.301 et seq. [Stat Ann 1963 Bev § 21.1882 et seq.~\).
First Congregational Church and Society of Burlington, Iowa, v. Evangelical and Reformed Church (DC SD NT, 1961), 198 F Supp 677, affirmed (CA 2, 1962), 305 F2d 724, certiorari denied (1963), 372 US 918 (83 S Ct 728, 9 L ed 2d 723).
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Wiest, J.
Nancy Everton, formerly Nancy Griffin, presented a claim, in the probate court, for $890 against the estate of her brother, Frank Patrick Griffin, who died testate in the city of Detroit, November 23, 1941. The probate court referees reported allowance of the claim. The administrator of the estate, with will annexed, objected to the allowance of the claim as reported by the referees, stating that the name of P. F. Griffin, which appears on the instrument upon which the claim is based, is not the genuine signature of the deceased, and that the statute of limitations bars the claim. The probate court allowed the claim and the administrator took an appeal to the circuit court. The claim was based upon a written agreement, purporting to have been signed by the deceased on March 23, 1923, and acknowledged an indebtedness of $890 to claimant, and contained a promise to pay the same whenever he was financially able to do so.
Before impanelling the jury the circuit judge stated on the record:
“Now in this matter, Mr. Reporter, let the record show that both counsel and the court have been in conference on this matter for some time, and it is now, as I understand it, stipulated and agreed by the appellant here that the matter is to go to trial here on the objections to the allowance set .up in paragraph 4 of the appellant’s objections to the allowance of the claim of Nancy Ever ton by the referees. Paragraph 4 reads: ‘Because if it was genuine the statute of limitations has long since run against the claim. According to the tenor of the instrument the claim was due and payable when the testator was financially able to pay it. A right of action accrued to the claimant then and the statute of limitations began to run against the claim. ’ The proofs here are to be limited to the question of when, if ever, was the testator financially able to pay the amount set up in the instrument during his lifetime, and, as I understand it, the appellant now stipulates and agrees that that is the issue here. Is that about right, Mr. Alexander?
“Mr. Alexander: That is just about the correct analysis, your Honor.
“The Court: So we will proceed in this matter, and the issue to be determined, as I have already tried to indicate, is when the testator here was financially able to pay the amount set forth in the instrument. I will limit the proof to that question, and it will be for the jury to say when he was able to pay it, if he was ever able to pay it. Of course, the application as to when the statute of limitations started to run, if ever, will be for the court. Now have I got that right?
“Mr. Alexander: That is correct.
“The Court: That suits you, Mr. Eggenberger?
“Mr. Eggenberger: Yes, your Honor.”
The agreement, if signed by the deceased, was evidently home-drawn and was styled “a Sacred Trust. ’ ’
At the trial the circuit judge in his charge to the jury directed answers in writing to the following questions:
“No. 1. Did the deceased, Frank P. Griffin, become able to pay the obligation mentioned in the exhibit during his lifetime?
“Answer yes or no.
“No. 2. If the answer to No.-l is yes, when did he become so able?
“Answer by fixing the date.”
The jury answered question No. 1 by “Yes,” and to question No. 2, answered that he became able to pay “April 4, 1936.” Thereupon the court affirmed the probate court allowance of the claim.
The administrator appeals on the sole ground that the verdict of the jury was against the clear weight of the evidence. The sole legatee under the will of the deceased took no part in the trial and, in fact, did not appear in the case until April 12, 1943, or 45 days after the trial and judgment.
The legatee, in a brief, claims the administrator was without authority to comply with the issues as stated by the circuit judge and thereby waived a “material legal right” of the legatee without the latter’s knowledge or consent.
The attorney for claimant in his brief asks us to strike from the record the brief filed in behalf of the legatee, claiming that the legatee is a mere interloper. The point raised in the brief for the legatee is the only one .of importance in the case and, had leave been asked, we would have granted the filing of the brief. We now exercise the power of this court under Court Rule No. 72 (1933), which states:
“The Supreme Court may, at any time, in addition to its general powers, in its discretion and on such terms as it deems just: * * *
“(g) Give any judgment and make any order which ought to have been given or made, and make such other and further orders and grant such relief, whether mentioned in the notice of appeal or not, as the case may require.”
The claimed agreement did not prove itself and claimant was not entitled to verdict and judgment without proof of the signature of the deceased, and such proof could not be waived by the administrator or rendered unnecessary by the court.
In Caswell v. Stearns, 257 Mich. 461, we held that in probate proceedings like the instance at bar it was not necessary under Court Rule No. 30 (1931), or the statute, for the administrator to deny, under oath, the execution of the asserted agreement, and we stated the remedy was not intended to apply to a case where, by reason of the death of the real defendant, his representatives are prevented from making the required showing and his estate would be deprived of defense upon the merits.
“Claims against the estates of deceased persons must be proved by the claimants, and judicially found. They cannot he established by concession of the decedent’s representatives. # * * Neither the statute nor the rule was designed to operate as a practical repeal of the probate law requiring affirmative proof of claims against the estates of decedents.”
In Hampton v. Van Nest’s Estate, 196 Mich. 404, 413, the rule requiring denial on oath of execution of a promissory note was invoked' against an estate and we there said:
“We doubt if it is applicable to cases appealed from the prohate court. We think the burden was upon the claimant all the time to make his case and prove the execution of the instruments claimed to have been executed by the deceased.”
The court and counsel for the parties were all in error in leaving out such essential issue, and for such error the judgment is reversed and a new trial granted, but without costs to any one.
North, O. J., and Starr, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Butzel, J.
The Macomb Building Company, a Michigan corporation, brought suit to restrain the township of Clinton and its officers from enforcing the collection of a special assessment levied against plaintiff’s property for the installation of water facilities. It alleges that the proceedings to install the water mains were so irregular and, insufficient that they conferred no jurisdiction on defendants to make such improvements or levy the assessments. Defendants, while not conceding any irregularity, set forth in their brief only one question upon which they base their appeal: Whether plaintiff is not es-topped from raising these objections because, as defendants claim, plaintiff’s grantor had participated in the initiation of the proceedings and improvements and the present officers of plaintiff corporation had knowledge of the construction of the improvements and received and accepted their benefits.
Many irregularities are claimed by plaintiff but we shall discuss only one, lack of jurisdiction. While the petitions to install the water facilities were signed by the alleged owners of over 65 per cent, of the lots in the assessment district, as a matter of fact, the parties who signed as owners of 29 of these lots had no title to them, the record title being in the State of Michigan by virtue of deeds from the auditor general which had been duly recorded prior to the filing of the petitions to install the water facilities. The record owners of only 26 of the 72 lots in the assessment district signed the petition. This was approximately 36 per cent, instead of the 65 per cent, provided for by statute, 1 Comp. Laws 1929, §2386 (Stat. Ann. §5.2412). (The subsequent amendment in Act No. 201, Pub. Acts 1941 [Comp. Laws Supp. 1943, § 2386, Stat. Arm- 1943 Cum. Supp. § 5.2412], made no change in the per centum required.) The signature of the owners of 65 per cent, of the property is jurisdic-. tional. The board never acquired jurisdiction over the subject matter. Its action based upon a void petition is a nullity. Auditor General v. Fisher, 84 Mich. 128; Collins v. Township of Grand Rapids, 108 Mich. 675; Nichols v. Tallmadge, 260 Mich. 576.
The lots, whose record title was in the State, were not owned by the parties who signed the petition as record owners. The property was redeemed from the State by a trustee of plaintiff’s grantor, the latter being the cestui que trust, and the State gave a quitclaim deed to him. This, however, occurred after the filing of the petition. Later, and some time after the proceedings to install the water facilities, plaintiff was incorporated and title to'these lots was conveyed to it by warranty deed. There is reasonable ground to infer that, in arriving at the price paid for the lots, the unpaid water assessment against these lots must have been considered. Defendants claim that because plaintiff’s officers had knowledge of and obtained the benefits from the assessment and because all dealings involving the lots in question were carried out with this knowledge in mind, plaintiff should be estopped1 from denying the validity of the tax.
While it might lie claimed that some minor irregularities in the proceedings can be waived by the action of the parties, the doctrine of estoppel cannot be invoked to establish jurisdiction when none existed. In Auditor General v. Woodward, 191 Mich. 496, the facts upon which a claim of estoppel was based resemble those in the instant case. The grantor of the parties who claimed the assessment illegal had signed the petition for the improvement. In holding that there could be no estoppel where there is a lack of jurisdiction, we quoted with approval from Hamilton’s Law of Special Assessments to like effect. Also, see Miller v. City of Detroit, 244 Mich. 38; Campbell v. City of Detroit, 259 Mich. 297.
Decree for plaintiff affirmed, with costs.
North, C. J., and Stakr,’ Wiest, Bushnell, Sharpe, and Boyles, JJ., concurred. Reid, J., did not sit. | [
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Sharpe, J.
Defendants appeal from an award of the department of labor and industry, granting ■plaintiff compensation for the loss of vision in his right eye, at the rate of $21 per week for 150 weeks, beginning September 27, 1944.
The facts are not in dispute. Plaintiff, James Hiram Allen, was injured on July 21, 1943, while in the employ of the Kalamazoo Paraffine Company, when a splinter from a nail' or metal from a hoop entered his right eye while he was heading barrels. The, parties stipulated that plaintiff lost industrial vision of the eye on September 27,1944. It appears that under the statute in effect on July 21, 1943, 2 Comp. Laws 1929, § 8426 (Stat. Ann. §17.160), compensation for such specific loss was $18 per week for 100 weeks, while on September 27, 1944, under the above statute as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1943, §8426, Stat. Ann. 1944 Cum. Supp. §17.160), compensation payable for such loss was $21 per week for 150 weeks.
Defendants offered to pay compensation for the lesser amount and urge on appeal that the right to compensation arises from the contractual relation between the employer and employee; and that the compensation act in force at the time the contractual relations were entered into governs the substantive rights and obligations of the parties.
We are not in accord with, this theory. Defendant company elected to accept the benefit of the act providing for workmen’s compensation as well as such amendments to the act as the legislature might deem proper to make. See Cooley v. Boice Brothers, 245 Mich. 325. In Henderson v. Consumers Power Co., 301 Mich. 564, we held that the cause of action for the loss of an eye accrued when the loss occurred and not necessarily from the date of injury to the eye. See, also, Mason v. Michigan Trading Corp., 308 Mich. 702. Under the authority of the above cases, plaintiff’s loss of industrial vision having occurred on September 27, 1944, he is entitled to an award of compensation for the specific loss of his eye at the rate of $21 per week for a period of 150 weeks.
The award of the department of labor and industry is affirmed, with costs to plaintiff.
Starr, C. J., and North, Carr, Butzel, Bushnell, Boyles, and Beid, JJ., concurred. | [
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Starr, C. J.
On jury trial in 1940 defendants were convicted under an amended information containing three counts, each of which charged them with the common-law offense of a conspiracy to violate certain gambling laws of the State. On their motion the convictions were set aside and a new trial granted.
On retrial by jury in 1942, a police officer who had observed the private residence at 544 Josephine street in the city of Detroit for several days prior to May 28, 1940, testified that he “saw policy men going in and out;” that he knew the people by name and knew they were policy men and that “they were delivering policy in that house.” Following this observation, police officers went to the residence on May 28th, and a woman sitting on the porch informed them that the lady of the house was inside. The door was open, and they entered peaceably. They went to the basement and there found and seized gambling paraphernalia and arrested several of the defendants. It is admitted that they, made the arrests and seizure without warrants. A search warrant was then issued, and the next day the officers searched the house and seized additional gambling paraphernalia. The other defendants were arrested later, and all were held for trial.
An information was issued charging that defendants “on June 1, 1933, and on divers other days and dates up to and including May 29, 1940,” conspired to violate certain gambling laws of the State. In the first trial it developed that on December 6, 1939, defendants Walter Norwood and Harold Hardiman had testified and been granted immunity in grand-jury proceedings involving graft and corruption in Wayne county. The information was then amended by charging the conspiracy period as December 7, 1939, to May 29, 1940. It later developed that Norwood and Hardiman had again testified before the grand jury on April 24,1940, and again had been granted immunity. The information was then amended to charge the conspiracy period as April 25 to May 29, 1940. During the first trial the information was also amended by striking out all but the three counts mentioned above,
In the present trial a motion to quash the information as to defendants Walter Norwood and Hardiman, because of the immunity granted them in the grand-jury proceedings, was denied. Defendants’ motion to suppress the evidence, consisting of the gambling equipment seized at 544 Josephine street, on the ground that the search and seizure were illegal, was also denied. All defendants were again convicted, their motion and amended motion for a new trial were denied, and they were sentenced as follows: Walter Norwood and Hardiman, 1 to 5 years,* Robert Davis and Allyne, 6 months to 5 years; Woodward, Plummer, Charlotte Norwood, and Laura Davis, probation for 1 year. Having obtained leave, they appeal.
Defendants first contend that the amended information did not charge a crime. They argue that, because the State statute provides punishment for violation of the gambling laws, the alleged conspiracies to violate these laws do not constitute crimes under Act No. 328, § 5.05, Pub. Acts 1931 (Comp. Laws Supp. 1940, §17115-505, Stat. Ann. § 28.773), which provides:
“Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this State, shall be guilty of a felony, punishable by imprisonment in the State prison not more than 5 years or by a fine of not more than $2,500.”
Defendants’ contention is without merit, because the alleged conspiracies to violate the gambling laws were crimes separate and apart from the crimes of violation. In People v. Chambers, 279 Mich. 73, 77, we said:
“A conspiracy to commit a crime is a separate and distinct offense from the crime which it is the object of the conspiracy to commit. 12 C, J. p, 542,”
See, also, People v. Ormsby, 310 Mich. 291; People v. Causley, 299 Mich. 340; People v. Summers, 115 Mich. 537.
The conspiracies charged in the information in the present case were indictable offenses at common law, and, as no punishment for such offenses is expressly provided by statute, they come within the provisions of section 505 above quoted. People v. Ormsby, supra.
We cannot agree with defendants’ contention that the search and seizure at 544 Josephine street were illegal. On motion of the prosecutor one Oneida Oates, the owner of these premises, was discharged as a defendant, and there was no showing that the other defendants were lessees or tenants, or that they had any rights in the premises which would entitle them to question the legality of the search and seizure. People v. Bartoletta, 248 Mich. 499; People v. Azukauckas, 241 Mich. 182; People v. Anscomb, 234 Mich. 203. From observation of the residence a police officer became convinced that gambling operations were being conducted there. The officers entered peaceably; they saw gambling paraphernalia in the possession of defendants and that the premises were being used for the conducting of gambling operations. Under the facts and circumstances shown, the search and seizure were legal, and the gambling paraphernalia was properly admissible in evidence. People v. Ormsby, supra; People v. Bommarito, 309 Mich. 139; People v. Harris, 300 Mich. 463; People v. Cona, 180 Mich. 641.
Defendants Walter Norwood and Harold Hardiman contend that the immunity granted them in the pending grand-jury proceedings extended through the full period of the conspiracies charged in the amended information and, therefore, that the in formation should have been quashed as to them. The statute (3 Comp. Laws 1929, § 17220 [Stat. Ann. § 28.946]), under which immunity had been granted, provides:
“No person shall upon such inquiry be required to answer any questions the answers of which might tend to incriminate him except upon motion in writing by the prosecuting attorney which shall he granted by such justice or judge, and any such questions and answers shall be reduced to writing and entered upon the docket or journal of such justice or judge, and no person required to answer such questions upon such motion shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate him.”
As hereinbefore mentioned, the information had been amended during the first trial to charge the conspiracy period as April 25th to May 29, 1940. Norwood and Hardiman claim that they also testified before the grand jury June 19th and 20th, 1940. Relative to the immunity granted them, the court said in the present trial:
“Let me state, * * * for the benefit of the record, that in the last trial * * * both Nor-wood and Hardiman, had been questioned by the grand jury in April, 1940, and * * * Judge Ferguson said that this immunity * * * [was] extended up to and through April 24, 1940. So * * * the information was amended, so that the initial date of the conspiracy was named as April 25, 1940. Later * * * it transpired, by certain testimony that was given, that * * * Hardiman and Norwood, again testified before the grand jury some time in June (1940). * * * That matter was again taken up with Judge Ferguson and * * * (be) said that the immunity did not extend to June * * * when they were again before the grand jury. * * *
“When. I charge the jury, I will.charge that immunity was given by Judge Ferguson to both these defendants * * * through April 24th.”
These two defendants testified before the grand jury under grants of immunity, and under the statute they could not thereafter be prosecuted for any offense concerning which their answers before the grand jury might have “tended to incriminate” them. However, there was no claim or showing that their answers before the grand jury would have incriminated them of the subsequently-committed conspiracies to violate the gambling laws charged in the present case. The mere fact that they testified before the grand jury does not establish that their testimony would have tended so to incriminate them. The grants of immunity would not protect them from prosecution for offenses about which they were not questioned before the grand jury. In the present trial they could have called the grand juror or his stenographer and shown whether or not their answers before the grand jury would have “tended to incriminate” them of the conspiracies charged. People v. McCrea, 303 Mich. 213, 245, 246; People v. O’Neill, 107 Mich. 556.
Furthermore, the testimony of Norwood and Iiardiman before the grand jury could relate only to past offenses and, therefore, could not incriminate them of future offenses. Ihe immunity granted them on December 6, 1939, and April 24, 1940, did not protect them from the subsequently-committed conspiracies charged in the amended information. In People v. Woodson, 309 Mich. 391, 397 (157 A. L. R. 419), we said:
“The immunity statute expressly protects a witness against prosecution for any offense concerning which his answers may tend to incriminate him, but it does not protect him from an offense subsequently committed.”
Defendants Norwood and Hardiman further claim that by amending the information to charge the conspiracy period as beginning April 25,1940, the prosecution split a continuing offense and thereby placed them twice in jeopardy. We find no merit in this claim. There was no satisfactory proof that the conspiracies charged antedated April 25,1940. Furthermore, a conspiracy to violate existing laws is usually a continuing offense, extending over some period of time, and the prosecution may charge and prove the offense in any part of such period.
Defendants next contend that it was reversible error to admit the testimony of plaintiff’s witness, George Washington, a bookkeeper employed by defendant Walter Norwood. Police officers had seized gambling paraphernalia and books and records at the Norwood hotel, which was conducted by said Norwood, but in the present trial this evidence was suppressed on the ground that the search and seizure were illegal. Witness Washington testified from memory that he prepared the payroll records of the gambling businesses referred to as “policy house” and “clearing house,” under Norwood’s instruction and from information furnished by him. Defendants argue that because the books and records were suppressed, Washington could not testify from memory relative to them. There was no objection to this testimony during the trial, and its admissibility was first questioned in defendants’ amended motion for a new trial. Under the facts and circumstances shown, Washington’s testimony was properly admissible.
Defendants claim that certain remarks of the prosecutor constituted reversible error. Defendant Allyne took the stand.in his own defense and on examination admitted that he had lied in a written statement given the prosecutor’s office. After this admission, the prosecutor referred to him as “a liar.” The court struck out the statement and instructed the jury to disregard it. The prosecutor’s remark was improper, but in view of Allyne’s admission, the term apparently fitted him, and we cannot say that it was reversible error. People v. McNutt, 220 Mich. 620; People v. Shoemaker, 131 Mich. 107. In his argument the prosecutor referred to defendant Walter Norwood as a “bribe payer.” The court struck out this remark and instructed the jury to disregard it. .Under the facts and circumstances shown, the remark was not reversible error.
It is unnecessary to discuss in detail the testimony relative to defendants’ connection with gambling operations and the conspiracies charged. The record clearly indicates that they were all engaged in the gambling business. Questions of fact were presented for jury determination, and we are satisfied that there was material and ample evidence from which the jury, as judge of the facts, could find all defendants guilty beyond a reasonable doubt of the crimes charged.
We are convinced that there were no errors in the trial resulting in a miscarriage of justice. Defendants’ motion and amended motion for a new trial were properly denied. Other questions do not require consideration. The convictions are affirmed.
Noeth, Btjtzel, BushNell, Shabpe, Boyles, and Beid, JJ., concurred. The late Justice Wiest took no part in the decision of this case.
Act No. 328, §§ 301, 302, 306, Pub. Acts 1931 (Comp. Laws Supp. 1940, §§ 17115-301, 17115-302, 17115-306, Stat. Ann. §§28.533, 28.534, 28.538).
See 3 Comp. Laws 1929, §17354 (Stat. Aim. § 28.1096).—Es-portee. | [
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Shepherd, J.
Respondents bring this delayed appeal from a circuit court order of May 19, 1982, which reversed the State Tenure Commission’s (commission) grant of accelerated judgment to respondents. Petitioner cross-appeals the circuit court’s order and the commission’s decision in favor of respondents.
Petitioner, a tenured teacher, has been employed by respondent school system since September, 1966. She was granted a one-year maternity leave of absence for the 1976-1977 school year. On February 28, 1977, she wrote to respondents requesting reinstatement. Respondents contend that, due to cutbacks in personnel, petitioner could not then be returned to work and was carried on "layoff status”, and that petitioner was so notified. Petitioner, however, says that she was told in February, 1977, that her leave might have to be continued because lay-offs had already occurred, and that she was further informed in August, 1977, by respondents that "policy” required that she not be recalled from her leave of absence until all laid-off teachers were first recalled. During the school years 1977-1978 and 1978-1979, petitioner did not teach.
On August 21, 1979, respondent school board wrote to petitioner, informing her that it had decided to recall her to active teaching for the 1979-1980 school year. Included with the letter was a copy of the teachers’ tenure act.
On January 5, 1980, counsel for petitioner sent letters to respondent school board and to an assistant superintendent of the Van Dyke Public Schools requesting a formal hearing on whether respondents rightfully denied petitioner reinstatement for two years after her leave of absence expired. Respondents apparently failed to reply to these letters. On February 21, 1980, Mrs. Kramer petitioned the commission for back pay for the two years during which she was on involuntary extended leave. Respondents moved for accelerated judgment, alleging that petitioner’s appeal had not been filed within the 30-day statutory time limit for appeals to the commission (which required appeal of a school board’s decision within 30 days from the date of such decision). Petitioner then moved for summary judgment based on respondent school board’s failure to give petitioner proper notice of her rights under the teachers’ tenure act, and moved for leave to amend her petition to allege that respondents had placed petitioner on "lay-off’ status when they decided to recall her as a subterfuge to mask their denial of her rights under the teachers’ tenure act.
On October 16, 1980, the commission granted respondents’ motion and dismissed the petition, deciding the commission was without jurisdiction because petitioner had not filed her petition within the 30 days required by the teachers’ tenure act. The commission decided that respondent school board’s letter of August 21, 1979, enclosing as it did a copy of the teachers’ tenure act, comprised notice reasonably calculated to apprise petitioner of her statutory rights, and that respondent school board was not required to "inform the teacher of pertinent judicial interpretations of the act as well”.
Petitioner’s motion for rehearing was denied by the commission on April 10, 1981. She then petitioned the Ingham County Circuit Court for review of the commission’s decision. On May 7, 1982, the circuit court reversed and remanded the case to the commission for a hearing on the merits, finding that respondents’ letter of August 21, 1979, did not adequately inform petitioner of her statutory right to appeal to the commission. The court concluded that requiring respondents to inform petitioner that she had a right to appeal any of the school board’s previous decisions so long as she did so within 30 days of receipt of that letter was not an excessive burden to place on respondents and was necessary in order for petitioner to fully understand her rights under the teachers’ tenure act. An appropriate order was entered on May 19, 1982.
On appeal, respondents argue that their letter of August 21, 1979, to petitioner, accompanied by a copy of the teachers’ tenure act, comprised sufficient notice to petitioner of her rights under the statute. The 30-day limit on time to appeal therefore lapsed long before petitioner actually appealed to the commission on February 21, 1980. Therefore, argue respondents, the circuit court clearly erred in reversing the commission’s grant of accelerated judgment in favor of respondents. We disagree, and affirm the trial court’s order reversing and remanding to the commission for consideration on the merits.
The teachers’ tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., establishes the rights possessed by a teacher who has been discharged or demoted by a school board. A petition challenging the action of a board of education must be filed with the commission within 30 days of the date of that decision. MCL 38.121; MSA 15.2021. The 30-day period of limitation begins to run at the time the teacher actually receives adequate notice of the school board’s decision and notice of her rights under the tenure act, including her right to appeal. Goodwin v Kalamazoo School Dist, 82 Mich App 559; 267 NW2d 142 (1978); Biberstine v Port Austin School Dist #9, 51 Mich App 274; 214 NW2d 729 (1974), lv den 392 Mich 766 (1974). In the instant case, the commission determined that respondent school board’s letter of August 21, 1979, along with a clean copy of the teachers’ tenure act, was adequate notice to petitioner, therefore causing the period of limitation to begin to run upon receipt by petitioner._
Petitioner argued to the circuit court, however, that the commission improperly applied the law to the facts of this case. Neither the letter of August 21, 1979, nor the enclosed copy of the teachers’ tenure act, she argues, was sufficient to inform her of how the law was actually interpreted by the courts and how that interpretation affected her time to appeal. As noted, both Biberstine and Goodwin held that the 30-day limitation on appeals does not begin to run until a teacher is notified of the right to appeal. In this case, therefore, the 30-day limitation pertaining to all prior actions by respondents, including the failure to recall petitioner for the 1977-1978 and 1978-1979 school years, did not begin to run until at least August 21, 1979, when petitioner received her recall letter with a copy of the teachers’ tenure act which "outlines your rights for a hearing in the event you do not agree with any Board decision”. Without further explanation of the judicial gloss which had been established, however, allowing the 30-day limit to be tolled, it was not unreasonable for petitioner to conclude that it was too late for her to appeal respondents’ decisions not to recall her in 1977 or 1978, since the letter did not indicate which board decisions were appealable. It would obviously have been unreasonable for petitioner to have appealed the latest of respondents’ decisions (that recalling her) but a reading of the statute alone might reasonably have led petitioner to conclude that it was only the latest decision of the board, that falling within 30 days of receipt of the letter, which was appealable.
Our review of this issue convinces us that the circuit court did not err in reversing the decision of the commission. In a well-reasoned opinion which we adopt as our own, the circuit court said:
"Rudimentary due process demands that a person be given written notice of administrative action affecting an important interest. Sponick v Detroit Police Dep’t, 49 Mich App 162; 211 NW2d 674 (1973). The interest of a tenured teacher in retaining a teaching position is a property interest protected by the Fourteenth Amendment to the United States Constitution. See, e.g., Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972); Dow v Michigan, 396 Mich 192; 240 NW2d 450 (1976).
"Michigan courts have consistently held that the teacher tenure act was designed to protect teachers from unilateral school board action and that to effect this protection teachers must be given adequate notice of board action effecting [sic] them. Biberstine, supra; Goodwin, supra; Shippey v Madison Dist Public Schools, 55 Mich App 663; 223 NW2d 116 (1974). Thus, under the act a teacher is also entitled to rudimentary due process.
"It is clear to this court, that when a teacher, such as plaintiff, alleges that a school board’s action amounted to a 'discharge or demotion’ without just cause, MCL 38.101; MSA 15.2001, she is entitled to the notice requirements of Goodwin and Biberstine, supra. The real issue here is whether the notice in this case was adequate to inform plaintiff of her right to appeal. This court finds that it was not.
"In reaching this conclusion, the court must determine what process is due. Due process is flexible and requires such procedural protections as the particular situation demands. Dow v Michigan, supra, p 205. Notice must be reasonably calculated under all the circumstances, to advise an interested party of the pendency of the action and afford her an opportunity to present objections. Mullane v Central Hanover Bank & Trust Co, 339 US 306; 70 S Ct 652; 94 L Ed 2d 865 (1950).
"Applying the Mullane standard to this case, it is clear that the August 21 letter did not advise plaintiff of her right to appeal the board’s earlier decisions regarding her recall. As previously discussed, upon reading the letter and the teacher tenure act, a reasonable person would conclude that the only appealable board decision was one made within the 30-day time period prior to the filing of a petition with the Tenure Commission. See Elgammal v Macomb County Intermediate School Dist, 83 Mich App 444; 268 NW2d 679 (1978).
"Defendants argue, however, that they should not be burdened with providing legal advice to a teacher who would be adversely affected by school board actions. This is an extreme view of what adequate notice entails and is not what plaintiff requests. This court believes that the additional burden on the school board is not a heavy one, as defendants contend. All that was required for adequate notice in this case, was for the board to tell plaintiff that she had a right to appeal any of its previous decisions affecting her employment status, and that such an appeal had to be perfected within 30 days of receipt of the letter providing such notice. This additional sentence or two is not an undue burden on defendant. This is not 'more than notice of plaintiff’s rights under the tenure act’ as defendants contend * * *. Notice of the judicial gloss on the tenure act is essential for an interested teacher to know what decisions she may appeal and how long she has to appeal, as this case clearly illustrates.” (Emphasis in original.)
Respondents argue on appeal, however, that even if that August 21,1979, letter was insufficient to advise petitioner of her rights, petitioner was clearly fully informed of her rights by January 5, 1980, when her attorney wrote to respondents requesting action on petitioner’s status. Therefore, respondents argue, petitioner still failed to meet the 30-day limitation period since she did not petition the commission until February 19, 1980, more than 30 days later.
We note that this argument was not raised by respondents before the commission or the circuit court and is not therefore properly before this Court. See Freiberg v Big Bay de Noc School Dist, 61 Mich App 404; 232 NW2d 718 (1975); Ford v Howard, 59 Mich App 548; 229 NW2d 841 (1975). Furthermore, this Court held in Goodwin, supra, that the 30-day limitation period was tolled until a teacher receives her notice of rights from the school board. This burden was placed on school boards to ensure that they did not controvert the purposes of the teachers’ tenure act by disguising board decisions, hoping teachers would not learn of their statutory right to appeal. In keeping with this purpose, we hold that actual notice received by a teacher from another source does not excuse a school board’s failure to comply with its obligation to provide clear and informative notice.
Since we affirm the circuit court’s decision reversing and remanding to the commission on the notice issue alone, we do not reach the substantive issues raised by the parties. These issues were not considered by the circuit court and are properly decided in the first instance by the commission which, because it granted accelerated judgment, has not yet had the opportunity to consider them.
Similarly, we decline to grant the relief requested by petitioner in her cross-appeal. The circuit court did not err in failing to grant summary judgment in favor of petitioner. The State Tenure Commission has jurisdiction over questions arising under the teachers’ tenure act. Rockwell v Crestwood School Dist, 393 Mich 616, 630; 227 NW2d 736 (1975). Since the commission had neither considered nor decided the substantive issues raised by petitioner, the circuit court’s action in remanding to the commission for consideration of those issues was appropriate and will not be reversed on appeal.
The circuit court correctly reversed the commission’s grant of accelerated judgment and remanded for consideration on the merits.
Affirmed.
No costs, a public question being involved.
Respóndante’ letter to petitioner read as follows:
"Dear Mrs. Kramer:
"Our records reflect that you were on leave of absence from September, 1976 through September, 1977 and then carried on lay-off status due to a lack of positions as a result of a declining enrollment in the Van Dyke Public Schools.
"A position is now available for you and you are requested to report for work on September 4,1979.
"In the event you do not wish to report for work for any reason whatsoever, please notify the Board of Education as soon as possible.
"Enclosed is a copy of the Tenure Act which outlines your rights for a hearing in the event you do not agree with any Board decision.
"Sincerely yours,
Raymond Richard, President
Board of Education” | [
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Per Curiam.
On May 12, 1981, defendant pled guilty to larceny from a person, MCL 750.357; MSA 28.589, and sentencing was deferred while defendant participated in a drug rehabilitation program. Subsequently, on September 29, 1981, defendant was sentenced to five years probation with the first six months to be spent in the county jail. After serving the six month custodial period and some of the noncustodial probation time, on October 27, 1982, defendant was arraigned on and pled guilty to violating the condition of his probation that he report monthly to his probation officer. On November 9, 1982, defendant’s probation was revoked and he was sentenced to five to ten years imprisonment for the larceny from a person offense. Defendant appeals as of right.
Defendant first claims that his guilty plea to violating probation must be reversed because the court failed to advise defendant of his rights in compliance with GCR 1963, 791.5(b), which provides in pertinent part as follows:
"(b) Before the court accepts a guilty plea, it shall, speaking directly to the probationer and receiving the probationer’s response,
"(1) personally advise the probationer that by pleading guilty the probationer is giving up the right to a contested revocation hearing, the right to be represented by a lawyer, and the right to an appointed lawyer if the probationer is unable to afford a lawyer;
"(2) personally advise the probationer of the maximum possible sentence for the offense that led to probation”_
Defendant’s plea was taken at a combined arraignment and plea-taking proceeding at which defendant was represented by counsel. During the arraignment portion of the proceeding, prior to the plea-taking, defendant was advised of his right to a hearing at which the prosecutor would have the burden of proving that defendant violated the terms of his probation. Defendant was also advised that he had the right to have his then present attorney or another attorney represent him at the hearing at the county’s expense. In addition, the court explained to defendant that, if he were found guilty of violating probation, his probation could be terminated and he could be imprisoned for a term of up to ten years.
Defendant argues that this advice did not satisfy the court rule provisions set forth above because it was given at the arraignment portion of the proceeding and, in order to comply with the plea advice required by GCR 1963, 791.5(b), as set forth above, the court should have repeated this advice when informed that defendant wished to plead guilty. We cannot agree. In the analogous context of the advice required by court rule to be given where a defendant pleads guilty to a crime, the Supreme Court has explained that "a recital of rights to one defendant by one judge on one day, may suffice as a recital of rights to that same defendant by the same judge on that same day in another case”. Guilty Plea Cases, 395 Mich 96, 121-122; 235 NW2d 132 (1975); People v Voss, 133 Mich App 73; 348 NW2d 37 (1984). This principle applies in the instant case where the advice was given at the arraignment portion of a single proceeding at which the defendant’s plea of guilty to probation violation was also taken.
Defendant also contends that the advice given at the arraignment portion was insufficient to satisfy the plea-taking advice required by GCR 1963, 791.5(b)(1) because defendant, while informed of his rights, was not told that by pleading guilty he was waiving those rights. It is true that GCR 1963, 791.5(b)(1), set forth above, requires a court to advise a defendant that "by pleading guilty the probationer is giving up” his right to a contested hearing at which he may be represented by retained or appointed counsel. However, again in the analogous context of a guilty plea to a crime, for which GCR 1963, 785.7(l)(g) requires that a defendant be advised that, if his plea is accepted, he will not have a trial and gives up the rights he would have at a trial, the Supreme Court has held that the failure to inform a defendant that by pleading guilty he waives those rights of which he was advised does not constitute reversible error. Guilty Plea Cases, supra, p 123.
Defendant also argues that his plea was involuntary because the court failed to inform defendant, pursuant to the advice required to be given at a probation violation arraignment, that, "if the revocation hearing does not take place within 12 days after arraignment, a probationer in custody in this state based on an alleged probation violation is to be released from custody pending a revocation hearing”. GCR 1963, 791.2(e). The court in the instant case did advise defendant at the arraignment portion of the proceeding that the hearing had to be held within the next 12 days unless defendant was "placed on bond” and that bond would be set that day. Defendant contends that the advice given was not sufficient to comply with GCR 1963, 791.2(e) since it did not clearly convey that defendant would be released from custody, even if he could not pay the bond set, after 12 days if the hearing had not yet been held. However, like Guilty Plea Cases, supra, p 119, where the Court found that failure to advise of the probation and parole consequences of pleading guilty to a crime was "without significance” since the defendant was not on probation or parole, any defect here was also insignificant. No bond was set for defendant, nor was defendant held in custody pending a hearing, because defendant immediately pled guilty at the arraignment proceeding. In these circumstances, we find untenable defendant’s claim on appeal that his plea was involuntary and induced by fear of lengthy incarceration while awaiting a hearing because of the court’s failure to inform him that he would be released from custody in 12 days if the hearing had not yet been held. However, a different result might be warranted had defendant’s guilty plea been taken after bond was set, the amount of which defendant knew he would be unable to meet, or been taken after defendant had spent some post-arraignment time in custody without having been released. Hence, we do not sanction the advice given by the court here as a substitute for that required by GCR 1963,791.2(e).
Defendant further argues that, prior to accepting his plea, the court was required to advise defendant of the elements of a contested probation revocation hearing, such as the right to a neutral and detached hearing body, the right to confront witnesses, the right to remain silent or testify, and the right to present witnesses. See Gagnon v Scarpelli, 411 US 778, 786; 93 S Ct 1756; 36 L Ed 2d 656 (1973). We disagree. The court rule setting out the advice to be given prior to accepting a guilty plea to violation of probation does not require that such advice be given. Rather, GCR 1963, 791.5(b)(1) requires only that a defendant be advised of his right to a "contested revocation hearing” and the right to be represented by counsel, including appointed counsel if unable to afford an attorney. Nor is a court constitutionally required to advise a defendant of the specific elements of a probation revocation hearing prior to accepting a guilty plea; rather, it is sufficient if the court advises the defendant that he has the right to a hearing at which he can contest the probation violation charges. People v Gaudett, 77 Mich App 496, 501-502; 258 NW2d 535 (1977).
Finally, defendant claims that his sentence of five to ten years is excessive and requires a remand for resentencing. Recently, our Supreme Court in People v Coles, 417 Mich 523; 339 NW2d 440 (1983), held that sentence length is subject to appellate review. That decision is applicable to the instant case since the sentencing issue was raised by defendant in his appeal and his appeal was pending at the time that decision was issued. People v Coles, supra, p 551. However, relief from a sentence will be granted only if the appellate court finds that the trial court "abused its discretion to the extent that it shocks the conscience of the appellate court”. People v Coles, supra, p 550. Defendant on appeal emphasizes' that the condition of his probation which he violated, that he report monthly to his probation officer, was relatively minor. However, while this transgression led to defendant’s probation being revoked, defendant’s sentence was for his plea-based conviction of larceny from a person, MCL 750.357; MSA 28.589, for which the maximum sentence is ten years imprisonment. After considering the arguments raised by defendant in support of this claim, we do not find that the court’s sentence of five to ten years represents an abuse of discretion which shocks our conscience.
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W. R. Peterson, J.
Defendant appeals by leave granted from a district court judgment, affirmed on appeal to the circuit court, awarding plaintiff damages for breach of contract for sale of a new 1979 Dodge pickup truck.
Defendant claims that the trial court erred in finding that it had accepted the truck and in concluding that it had thereafter wrongfully attempted a revocation of the sale. We agree, finding that the evidence shows no acceptance within the meaning of the Uniform Commercial Code, MCL 440.2606; MSA 19.2606, and that defendant had an absolute right to reject the truck, MCL 440.2601; MSA 19.2601.
The evidence shows that on November 8 or 9, 1978, an officer of defendant, William Washa baugh, called at plaintiffs place of business to discuss the possible purchase of a pickup truck with a snowplow attachment. The truck in question was of the type desired and plaintiffs salesman, John Fuller, took Mr. Washabaugh for a test drive in the vehicle. Washabaugh liked the truck. However, before the test drive was completed, the engine overheated. There was a conflict in the testimony of Fuller and Washabaugh which was not addressed by the opinion of the trial judge: Washabaugh testified that the temperature gauge was "all the way over” and that there was steam coming from under the hood; Fuller testified that the truck was just running warm, that there was no overheating, and that he saw no steam coming from the engine compartment.
Whichever version is correct, the significant fact is that the topic of engine overheating was specifically addressed by Fuller and Washabaugh. Washabaugh expressed concern about the matter, and indicated past experience with other vehicles suffering engine damage from overheating. Fuller said that overheating resulted from incorrect positioning of the snowplow blade in front of the radiator.* ** Washabaugh was willing to buy the truck if Fuller’s statement was correct. Fuller assured him that that was in fact the case, documents of purchase were executed, and Washabaugh gave Fuller a check for the full payment of the purchase price. They agreed that employees of defendant would pick up the truck the following day and that they would be instructed on the proper positioning of the plow blade.
On the following day, Stanley Reid and Leon LaFave came to plaintiff’s place of business to pick up the truck for defendant. Fuller personally showed them how to properly position the blade, and it was so positioned in Fuller’s presence before Reid and LaFave left for defendant’s place of business near Potterville. When they arrived there, the engine was overheating and steaming. A mechanic employed by defendant could find no apparent defects from a visual inspection, so a telephone call was made to plaintiff’s office. An employee in plaintiff’s service department advised rechecking the blade position, refilling the radiator, and taking the truck out for another drive. This was done. Reid and LaFave droye to Potter-ville, about two miles from defendant’s place of business, and back. The engine again overheated, the temperature gauge rose to the maximum, and there was an eruption of water and steam.
LaFave again called plaintiff’s office and was told to bring the truck into plaintiff’s service department. He did so, and when he arrived the engine was again overheating and steaming. He was told that the problem might be with a thermostat but that the truck would be ready and could be picked up the following afternoon.
On the next afternoon (the third day, be it November 10 or 11), LaFave went to Lansing and picked up the truck. He was told that a radiator cap had been replaced. By the time he got back to defendant’s place of business, the engine was again overheating. On Washabaugh’s orders, LaFave immediately notified plaintiff by telephone that defendant was not taking the truck, that payment was being stopped on the check, and that plaintiff should come get the truck. Plaintiff sent a wrecker and crew that evening and towed the truck back to its lot.
In the following days, plaintiff did nothing to the truck by way of inspection or repair. It was left sitting on plaintiff’s lot. On November 15 or 16, the purchase and registration documents were taken by plaintiff to a branch office of the Secretary of State. On November 15 or 16, plaintiff received notice froni its bank that defendant had stopped payment on the check.
Title to the truck was issued in defendant’s name by the Secretary of State on December 1, 1978. Both parties retained counsel, and defendant made an effort to tender title to plaintiff so the truck could be resold. Plaintiff rejected the tender, taking the position that the transaction was complete and that it could not resell the truck because defendant held title, and commenced this suit.
The opinion of the trial judge is sparse in its findings of fact. As noted in footnote 6, the opinion contains the erroneous finding that defendant returned the truck to plaintiff’s lot, implying that this was done without notice to plaintiff. There are no findings as to when plaintiff submitted the registration documents to the Secretary of State, nor were there findings or discussion of the events bearing on notice of rejection. Rather, the opinion merely states a conclusion that plaintiff received no notice of rejection until after title had been transferred to defendant, a conclusion which seems to be clearly erroneous. Moreover, the opinion of the trial judge contains no findings of fact, discussion, or conclusion as to an acceptance of the truck by defendant within the meaning of the Uniform Commercial Code, although the conclusion that acceptance had occurred can be implied from the opinion’s statement of the issues as being: (1) whether the defendant had sustained the burden of proving the truck defective so as to justify a revocation after acceptance; (2) if the truck was defective, whether plaintiff was given an opportunity to seasonably cure the defect; and (3) whether plaintiff had a duty to resell the truck.
We find the trial judge’s decision on such issues inapposite, holding that on these facts the implied finding that there had been an acceptance of the truck by defendant is erroneous.
The Uniform Commercial Code, § 2-606 (MCL 440.2606; MSA 19.2606), provides:
"(1) Acceptance of goods occurs when the buyer
"(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or
"(b) fails to make an effective rejection (subsection (1) of section 2602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or
"(c) does any act inconsistent with the seller’s ownership; but if such an act is wrongful as against the seller it is an acceptance only if ratified by him.
"(2) Acceptance of a part of any commercial unit is acceptance of that entire unit.”
This language, in defining what constitutes an acceptance, clearly contemplates an act of the buyer beyond taking delivery or possession of the goods. Possession during the time necessary for the "reasonable opportunity” to inspect is contemplated prior to acceptance. Similarly, § 2-602 of the code allows a rejection of goods for nonconformance "within a reasonable time after their delivery”. Thus, while transfer of possession or title may be acts bearing on the question of acceptance, they are not in themselves determinative thereof. White & Summers, Handbook of the Law Under the Uniform Commercial Code (2d ed), § 8-2, p 296.
In Colonial Dodge, Inc v Miller, 116 Mich App 78, 322 NW2d 549 (1982), a majority of the Court adopted the holding in Zabriskie Chevrolet, Inc. v Smith, 99 NJ Super 441; 240 A2d 195 (1968), a case in which a newly purchased automobile became inoperable as the purchaser was driving it home from the dealer’s showroom.
Zabriskie is pertinent for two reasons. In the first place, when dealing with acceptance under the UCC, it speaks to the relationship between the manufacturer and seller of complex machines or devices on the one hand and the dependent buyer on the other hand. The buyer may be expert in the use of the machine or device but he generally has no expertise as to the mechanical, electronic, chemical, and engineering components that combine to produce the intended performance. Zabriskie recognized this buyer dependency on the seller’s expertise in holding that something more than a mere visual inspection is appropriate before the buyer can be held to have accepted the machine. We agree. A "reasonable time to inspect” under the UCC must allow an opportunity to put the product to its intended use or for testing to verify its capability to perform as intended.
Zabriskie is also important for its holding that the adoption of the Uniform Commercial Code, § 2-601, which provides that the buyer may reject goods which "fail in any respect to conform to the contract”, creates a "perfect tender” rule replacing pre-code cases defining performance of a sales contract in terms of substantial compliance. We agree with that construction of the code.
In Colonial Dodge, the majority held that lack of a spare tire for a passenger car constituted nonconformity warranting rejection. On rehearing, 121 Mich App 466, 328 NW2d 678 (1982), a majority reversed the original decision on the ground that there was evidence to support the finding of an acceptance by the buyer, so that the question was not one of rejection but whether the nonconformity substantially impaired the vehicle’s value to the buyer so as to justify revocation. The trial judge’s determination that, in fact, the vehicle’s value was not substantially impaired was affirmed, requiring reversal of the result arrived at by Colonial Dodge I. That reversal was not an abandon ment of the construction of the Uniform Code expounded in Colonial Dodge I, and this Court in Colonial Dodge (On Rehearing) expressly distinguished its holding from the result reached in Zabriskie where there had been no acceptance.
In the instant case, there was no acceptance. Nothing that defendant did can be construed under § 2-606(l)(a) as signifying, after a reasonable opportunity to inspect, that the truck conformed or that defendant would retain the truck in spite of its nonconformity. Defendant had the absolute right to reject the truck for nonconformity within a reasonable time, and to seasonably notify the plaintiff thereof. MCL 440.2602; MSA 19.2602. It did so.
Reversed and remanded for entry of judgment in favor of defendant. Costs to defendant.
After a considerable delay, the parties stipulated to the sale of the truck prior to trial, and damages were awarded for the difference between the contract price and the proceeds of the sale.
Defendant’s third-party complaint against Chrysler Corporation and John Fuller resulted in a judgment for the third-party defendants which was not appealed.
It is possible that, when the matter was tried in 1981, some of the witnesses who put events on November 9-10-11, were confused as to dates. It may well be that the events in question occurred on Wednesday, Thursday, and Friday, the 8th, 9th, and 10th rather than on Thursday, Friday, and Saturday, the 9th, 10th, and 11th. It may be doubted, for instance, that both businesses were open on a Saturday afternoon, as all witnesses agree that they were on the third day of the sequence, or that plaintiff sent men to defendant’s place of business on a Saturday night to pick up the truck. Plaintiff’s president, Neil Mason, for instance, says that he saw the truck on his lot on Friday night, November 10th, after it had been brought back by wrecker, an event which happened on the third day.
He also indicated that the risk of overheating from incorrect positioning of the blade would be increased when driving the truck at slow speeds; and, it was suggested at trial that the weather was then somewhat warmer than would be usual for November.
A stop payment order was made by defendant that day.
LaFave could not recall the identity of the person with whom he spoke. Plaintiffs brief implies that there was no such call and states that defendant had no knowledge that defendant was rejecting the truck and stopping payment on the check until it was notified of the stop payment order by its bank on November 15 or 16. Plaintiff also claims that the truck was returned to its lot by defendant; the trial judge so found, but the only evidence on the point is to the contrary.
MCL 440.2607(4); MSA 19.2607(4).
MCL 440.2607(2); MSA 19.2607(2).
Given our conclusions, we do not reach the question of the seller’s duty to resell goods wrongfully rejected or returned on revocation of sale. Neither is it necessary to consider the holding of the majority in Colonial Dodge, Inc v Miller (On Rehearing), 121 Mich App 466; 328 NW2d 678 (1982), that the Michigan Vehicle Code pre-empts the Uniform Commercial Code as to transfer of ownership of vehicles, a conclusion which we question at least as to the parties inter se. We note in passing that plaintiff herein could hardly claim the vehicle code as a shield, having taken steps to cause the issuance of title in the buyer’s name after, and notwithstanding notice of, rejection by the buyer.
MCL 440.2602; MSA 19.2602.
Without consideration of the technical reasons why the car was inoperable, the fact of inoperability established its failure to conform to the contract of sale. We so view the overheating of the engine herein. The overheating is of such significance as to constitute a nonconformity without evidence as to the specific technical cause thereof.
MCL 440.2601; MSA 29.2601.
The facts of Colonial Dodge differ also from those of Zabriskie in another respect which was noted indirectly in Colonial Dodge (On Rehearing) in the discussion of substantial impairment of value as justification for the revocation of an acceptance. Unlike Zabriskie, or the instant case, the missing spare tire of Colonial Dodge was not a latent defect such as could be discovered only by an expert or by testing. In determining whether there has been an acceptance in a given case, what constitutes a reasonable opportunity to inspect will depend upon the nature of the defect. | [
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Danhof, C.J.
In August, 1972, plaintiff contracted with defendant for the construction of 4.17 miles of paving and six bridge structures on 1-196 in Allegan County. On December 4, 1972, plaintiff entered into a subcontract with Paveo, Inc., pursu ant to which Davco would construct the pavement portion of the contract. During the course of construction, Davco became insolvent and was unable to perform the contracted work. This event resulted in increases in cost and time delays in plaintiffs completion of the contract. Based upon the contract schedule, a 68-day delay occurred in having the project open for traffic and a 37-day delay occurred in completing the project.
Due to the delays, defendant withheld $25,950 from the contract price as liquidated damages. After pursuing its administrative remedies with defendant highway department without satisfaction, plaintiff filed a complaint in the Court of Claims, seeking judgment in the amount of the liquidated damages. Defendant’s motion for summary judgment under GCR 1963, 117.2(1) was granted by the trial court as to count II of plaintiffs complaint, which sought redress due to defendant’s prequalification of Davco as a subcontractor. After the trial, the trial judge issued a written opinion rejecting plaintiffs claim that the liquidated damages withheld constituted a penalty and enforcing the liquidated damages clause. Plaintiff was awarded $2,250 after the trial court found that the liquidated damages amount had been improperly computed.
On appeal, plaintiff argues initially that the trial court erred by granting defendant’s motion for summary judgment. Plaintiff argues that a warranty of accuracy accompanied defendant’s prequalification of Davco. Plaintiff further argues that he relied on defendant’s prequalification of Davco as indicating that company’s financial solvency and allegedly the breach of this warranty of accuracy caused damage to plaintiff.
MCL 123.501; MSA 5.2311 allows a state agency such as defendant to require prospective bidders to submit
"a sworn statement at least ten days before bids are opened on such standard form and in such detail and at such time as may be deemed necessary by said officer, board, commission, committee or department, setting forth his qualifications to satisfactorily carry out the work to be performed within the time specified for such performance.”
Defendant admits that certain prequalification procedures were followed here and that Davco was added to the list of subcontractors who were qualified to bid on the instant contract. Defendant denies, however, that a warranty of accuracy accompanies its prequalification of Davco and that it may therefore be held liable for losses suffered by plaintiff due to Davco’s subsequent financial collapse.
We agree with the trial court, which found a failure on the part of plaintiff to state a claim upon which relief could be granted on this issue. The trial judge found the prequalification procedures to be simply a mechanism by which defendant determined who would be allowed to bid on state highway projects. We find the cases relied upon by plaintiff to be distinguishable, since each concerned an express statement by the defendant as to a physical characteristic of a project, which statements were later found to be erroneous. Under those circumstances, the defendant was held liable for the loss to the plaintiff. See Hersey Gravel Co v State Highway Dep’t, 305 Mich 333; 9 NW2d 567 (1943); WH Knapp Co v State Highway Dep’t, 311 Mich 186; 18 NW2d 421 (1945); Holloway Construction Co v State of Michigan, 444 Mich App 508; 205 NW2d 575 (1973), lv den 390 Mich 754 (1973); Kensington Corp v Dep’t of State Highways, 74 Mich App 417; 253 NW2d 781 (1977). In each of the above-cited cases, the plaintiff was allowed to recover the cost of additional work performed by it and not included within the initial bid due to misrepresentations by the defendant as to site conditions.
The instant plaintiff seeks to have defendant bear the burden of cost for damages suffered due to the failure of an independent subcontractor. Const 1963, art 9, § 18 prohibits the credit of the state from being used as a guarantee or surety in favor of any person, association or corporation, public or private. Although plaintiff admits this prohibition, it attempts to distinguish a "warranty of accuracy” from a guarantee by the defendant of Davco’s continued solvency. We find plaintiff’s distinction unpersuasive. To grant the relief requested by plaintiff and hold defendant liable for Davco’s failure under a theory that defendant had prequalified Davco’s financial condition would be to accomplish precisely what the constitution prohibits. We find no error in the trial court’s dismissal of Count II of plaintiff’s complaint.
Plaintiff next argues that the trial court erred by enforcing the liquidated damages clause contained in its contract with defendant. We disagree. The general rule governing liquidated damages was summarized by the Supreme Court in Genesee Bd of Road Comm’rs v North American Development Co, 369 Mich 229, 236; 119 NW2d 593 (1963):
"When it is difficult to determine the actual damages which would be suffered under such circumstances and where the determination of the actual damages for a breach are uncertain in their nature, difficult to ascertain, or impossible to estimate with certainty by any pecuniary standard, the courts permit the parties to ascertain the damages for themselves and to provide in the contract the amount of damages which will be paid for the breach. Jaquith v Hudson, 5 Mich 123.”
To determine whether the amount stipulated as liquidated damages is reasonable, the Court looks to conditions at the time the contract was entered into, not at the time of breach of the contract:
"It is a well-settled rule in this State that the parties to a contract can agree and stipulate in advance as to the amount to be paid in compensation for loss or injury which may result in the event of a breach of the agreement. Such a stipulation is enforceable, particularly where the damages which would result from a breach are uncertain and difficult to ascertain at time contract is executed. If the amount stipulated is reasonable with relation to the possible injury suffered, the courts will sustain such a stipulation.
"The purpose in permitting a stipulation of damages as compensation is to render certain and definite that which appears to be uncertain and not easily proven. The courts recognize that the parties, particularly at the time of execution of the instrument, are in as good a position as anyone to arrive at a fair amount of damages for a subsequent breach. In the event they are not unconscionable or excessive courts will not disturb it. Just compensation for the injuries sustained is the principle at which the law attempts to arrive. Courts will not permit parties to stipulate unreasonable sums as damages, and where such an attempt is made have held them penalties and therefore void and unenforceable.” Curran v Williams, 352 Mich 278, 282-283; 89 NW2d 602 (1958).
The liquidated damages clause in the contract here provided for damages of $300 per day for each day beyond the contract date that the highway was not open for traffic and $150 per day for each day beyond the contract date that the project remained incomplete. The contract provided for varying liquidated damage sums depending on the original contract amount. We find that the liquidated damages clause here was not in the nature of a penalty. The sum involved is not unreasonable, considering the original contract amount. Damages otherwise would be nearly impossible to ascertain, since damage to the public, which was delayed in its use of the highway, does not easily convert into dollars and cents. We find no error in the trial court’s enforcement of the liquidated damages clause.
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Markman, J.
Plaintiff appeals that portion of the circuit court’s order granting summary disposition in favor of defendant Restaurant Concept Management, Inc. (rcmi). We reverse.
On August 16, 1991, plaintiff filed in the Gene-see Circuit Court a complaint alleging that he had been hired by defendants Thomas M. Charters and rcmi as a store manager "for the sole purpose of firing as many black employees that he could.” Plaintiff further alleged "[t]hat after two black employees were terminated, plaintiff refused the defendant’s instructions to wrongfully terminate the remaining black employees,” and that, as a consequence, plaintiff’s employment was terminated, in violation of the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and public policy.
Defendants moved for summary disposition on August 31, 1992. Defendants alleged that plaintiff, in applying for employment with defendants in 1990, had indicated that he had never been convicted of a crime other than a traffic offense although, in fact, he had been convicted of felonious assault in 1988. When the police attempted to arrest plaintiff for that offense, he engaged them in a six-hour standoff. Defendants discovered the misrepresentation on plaintiff’s employment application only after plaintiff had been terminated.
Terry Pellman, who had hired and terminated plaintiff on behalf of defendants, submitted an affidavit on August 31, 1992, indicating that Pellman had relied on plaintiffs claimed lack of a criminal record in hiring plaintiff. Pellman further indicated that he immediately would have terminated plaintiff if he had discovered plaintiffs misrepresentation during plaintiffs employment, particularly in light of the six-hour standoff with police. Plaintiff asserted in his answer to the motion that when he filled out his application for employment with defendants he believed that he had never been convicted of a crime other than a traffic offense because the dangerous weapon involved in his assault conviction was a recklessly driven automobile.
The trial court granted defendants’ motion for summary disposition, dismissing all of plaintiffs claims against the defendants. The plaintiff appeals only that portion of the order granting summary disposition and dismissing plaintiffs claims against rcmi. With respect to plaintiffs claims against rcmi, the trial court reasoned that his criminal history and related misrepresentation clearly established just cause for his termination by defendants, and that as a result, plaintiff could obtain no relief in this action.
A motion for summary disposition under MCR 2.116(0(10) tests whether there is factual support for a claim. When deciding a motion for summary disposition, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. On appeal, a trial court’s grant of summary disposition will be reviewed de novo, and this Court must determine whether the plaintiff was entitled to judgment as a matter of law. Allen v Keating, 205 Mich App 560, 562; 517 NW2d 830 (1994).
In granting summary disposition in favor of defendants, the trial court relied heavily on Johnson v Honeywell Information Systems, Inc, 955 F2d 409 (CA 6, 1992). In Johnson, the Sixth Circuit Court of Appeals held that under Michigan law "an employer may rely upon an employee’s false representations made at the time of employment, of which the employer was unaware, and which were not the grounds for the employee’s discharge, as a just cause defense to the employee’s wrongful discharge and state civil rights claims.” Id. at 410-411. The employee’s résumé fraud was held to entitle the employer to judgment as a matter of law with regard to the employee’s claim of violations of the Civil Rights Act. Id. at 413-415.
The trial court further relied on Bradley v Philip Morris, Inc, 194 Mich App 44; 486 NW2d 48 (1992), affirmed after remand 444 Mich 634; 513 NW2d 797 (1994). In Bradley, former employees sued an employer for wrongful discharge. This Court found that the trial court had erred in excluding from trial "any evidence of previous [employee] misconduct that was discovered after [the plaintiffs’] employment was terminated.” 194 Mich App 48. This Court reasoned:
Evidence of employee misconduct occurring before termination is admissible as substantive evidence even if the former employer did not know of the misconduct until after the termination. Just cause for termination may include facts and circumstances existing at termination but not known to the employer. See 53 Am Jur 2d, Master and Servant, § 46, pp 120-121; Leahey v Federal Express Corp, 685 F Supp 127 (ED Va, 1988); Summers v State Farm Mutual Automobile Ins Co, 864 F2d 700, 708 (CA 10, 1988); and Pugh v See’s Candies, Inc, 203 Cal App 3d 743; 250 Cal Rptr 195 (1988). Moreover, this type of evidence is relevant to the issue of damages. Having reviewed the record, we conclude that the trial court abused its discretion in excluding this type of evidence and in not permitting defendants’ attorney to make a corresponding argument to the jury. [194 Mich App 48.]
However, Bradley did not address the implications of such evidence for a claim brought under the Civil Rights Act.
The United States Supreme Court recently decided a similar issue involving the Age Discrimination in Employment Act (adea), 29 USC 621 et seq., in McKennon v Nashville Banner Publishing Co, 531 US —; 115 S Ct 879; 130 L Ed 2d 852 (1995). In McKennon, the Court unanimously held that an employee discharged in violation of the adea is not barred from all relief when, after his discharge, the employer discovers evidence of wrongdoing that would have led to the employee’s termination on lawful and legitimate grounds. The Court found that "a violation of the adea cannot be so altogether disregarded.” 115 S Ct 884. The Court reasoned in part:
Deterrence is one object of [statutes establishing private causes of action for invidious employment discrimination]. Compensation for injuries caused by the prohibited discrimination is another. . . . The private litigant who seeks redress for his or her injuries vindicates both the deterrence and the compensation objectives of the adea. ... It would not accord with this scheme if after-acquired evidence of wrongdoing that would have resulted in termination operates, in every instance, to bar all relief for an earlier violation of the Act.
Our inquiry is not at an end, however, for even though the employer has violated the Act, we must consider how the after-acquired evidence of the employee’s wrongdoing bears on the specific remedy to be ordered. . . . We have rejected the unclean hands defense "where a private suit serves important public purposes.” . . . That does not mean, however, the employee’s own misconduct is irrelevant to all the remedies otherwise available under the statute. [115 S Ct 884-886. Citations omitted.]
During oral argument, in light of the recent decision in McKennon, rcmi expressly abandoned its argument that plaintiffs résumé fraud, although discovered after his termination, barred all relief under the Civil Rights Act.
Although the defendant no longer raises this issue, we find it appropriate to apply the United States Supreme Court’s prohibition of an absolute bar to relief in this case. An employer should not be absolutely insulated from liability for violations of state civil rights laws because of the fortuitous discovery, after the employee’s termination, of employee wrongdoing sufficient to have caused his termination. Although, as this Court has recognized, there may be differences between the Civil Rights Act and the adea, Riethmiller v Blue Cross & Blue Shield of Michigan, 151 Mich App 188, 198-199; 390 NW2d 227 (1986) (discussing the difference in the language used in the respective remedy provisions), we find nothing at all in the language of the former that would preclude application of the Supreme Court’s logic to this action. Moreover, we find the Supreme Court’s reasoning persuasive, and further find its objectives consistent with the purpose of the Civil Rights Act. As the Michigan Supreme Court has stated:
The Civil Rights Act is "aimed at 'the prejudices and biases’ borne against persons because of their membership in a certain class, and seeks to eliminate the effects of offensive or demeaning stereotypes, prejudices, and biases.” Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984) (citations omitted). [Radtke v Everett, 442 Mich 368, 379; 501 NW2d 155 (1993).]
The Supreme Court further noted in Rasheed v Chrysler Corp, 445 Mich 109, 125-126; 517 NW2d 19 (1994):
Over the years, various legislatures and the courts have added certain restrictions to the contractual relationship between employer and employee in cases where ordinary contract law did not adequately protect important rights of the parties. Examples are the law on discriminatory discharge, which has been the topic of numerous regulations, guidelines on the right of labor to organize, and even rules concerning compensation for work-related injuries.
The Supreme Court included "the Michigan Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458(1) et seq. (since repealed and replaced by the Michigan Civil Rights Act)” as one example of "numerous regulations.” Id. at 125, n 22. Unlike in Bradley, where an alleged violation of civil rights was not at issue and contract law may well have served to adequately protect the employee, a claim of violation of civil rights should not be barred solely because of employee wrongdoing that could not possibly have been the reason for the employee’s discharge.
Although such wrongdoing, to the extent it exists, does not constitute an absolute bar to all relief, this does not mean that the relief afforded the employee should be unaffected by the wrongdoing or that the wrongdoing should be ignored. In McKennon, the Court further observed:
[A]s a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.
The proper measure of backpay presents a more difficult problem. . . . Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit. The beginning point in the trial court’s formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered. [115 S Ct 886.]
Although the plaintiff in this action is not barred from all relief as a matter of law, any wrongdoing on his part may be reflected in the relief awarded to him. As the Supreme Court articulated:
The proper boundaries of remedial relief in the general class of the cases where, after termination, it is discovered that the employee has engaged in wrongdoing must be addressed by the judicial system in the ordinary course of further decisions, for the factual permutations and the equitable considerations they raise will vary from case to case. [115 S Ct 886.]
To the extent rcmi is liable for plaintiff’s claims under the Civil Rights Act and to the extent rcmi has established wrongdoing by the plaintiff that would have led to his lawful termination in any event once discovered by the defendant, evidence of the wrongdoing should be considered in granting relief based on the "factual permutations and the equitable considerations” raised and in light of the remedies available under the Civil Rights Act. This approach precludes the exoneration of either wrongdoer while preserving the statutory goal of deterring discrimination.
Reversed and remanded for a trial on the merits. We do not retain jurisdiction._
While the effect of any such wrongdoing by the employee will vary with the facts and circumstances of the case, we agree with the general guidance provided by the United States Supreme Court with respect to certain remedies. To the extent that future damages or reinstatement would otherwise be available to plaintiff, we agree that as a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. McKennon, 115 S Ct 886; see also Rasheed, supra at 144, n 8 (separate opinion by Justice Levin). We further find the Court’s general calculations of backpay appropriate, more particularly, from the date of unlawful discharge to the date the new information was discovered. McKennon, 115 S Ct 886. | [
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Danhof, C.J.
Defendant was convicted after a jury trial of first-degree murder for the shooting of his ex-wife on October 16, 1968, MCL 750.316; MSA 28.548. He was sentenced to life imprisonment and presently appeals as of right. Defendant was previously convicted of the same offense, but the conviction was reversed by this Court on January 29, 1973, after the prosecution filed a motion for peremptory reversal in which it confessed reversible error.
On appeal, defendant argues initially that he was denied his constitutional right to a speedy trial. The shooting of defendant’s ex-wife occurred on October 16, 1968. Defendant was first convicted of the offense on April 23, 1971. This conviction was reversed by this Court on January 29, 1973. On June 27, 1973, defendant was found incompetent to stand trial and was committed to North-ville Hospital. On July 23, 1976, defendant was found to still be incompetent and the charge against him was dismissed pursuant to MCL 330.2044(l)(b); MSA 14.800(1044)(l)(b). On December 28, 1978, the prosecution petitioned to reinstate the case. This petition was granted on November 30, 1979.
Defendant herein argues that the 29-month period between July, 1976, and December, 1978, resulted in a violation of his right to a speedy trial. The United States Supreme Court recently considered this issue in United States v MacDonald, 456 US 1; 102 S Ct 1497; 71 L Ed 2d 696 (1982), and determined that no Sixth Amendment right to a speedy trial arose until charges were pending. In MacDonald, civilian criminal charges were reinstated against defendant after military authorities had dismissed the charges. The Supreme Court there held that "the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges”. 456 US 7. The charges here were dismissed pursuant to statute and were reinstated after defendant became competent to stand trial. The 29-month period between dismissal and reinstatement did not result in a violation of defendant’s right to a speedy trial.
Defendant next argues that the trial court instructed the jury on an improper standard concerning defendant’s insanity defense. The trial court instructed the jury on the issue of insanity by following verbatim the insanity instructions used in People v Durfee, 62 Mich 487; 29 NW 109 (1886), and expressly approved in People v Martin, 386 Mich 407, 419, fn 5; 192 NW2d 215 (1971), cert den sub nom Lewis v Michigan, 408 US 929 (1972). Defendant argues that these instructions were improper under 1975 PA 180, MCL 768.21; MSA 28.1044(1). Sections 2 and 3 of 1975 PA 180 provide, however:
"Section 2. This amendatory act shall apply to offenses committed on or after the effective date of this act. The law in effect at the time the offense was committed shall apply to offenses committed before the effective date of this act.
"Section 3. This amendatory act shall take effect August 6, 1975.”
The express terms of the statute indicate that the amended definition of legal insanity was inapplicable to this case, as the offense occurred in 1968, prior to the effective date of the act.
The third issue raised by defendant on appeal is that the testimony of Dr. Warren Gordon, a psychiatrist who examined defendant shortly after defendant was arrested, violated the physician-patient privilege. MCL 600.2157; MSA 27A.2157 provides in pertinent part:
"No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.”
Since the physician-patient privilege was not recognized at common law, the scope of the privilege is governed by this statute. People v Lawrence Johnson, 111 Mich App 383, 388; 314 NW2d 631 (1981), lv den 414 Mich 949 (1982). Dr. Gordon was called by an assistant prosecutor shortly after defendant was taken into custody and asked to examine defendant. Dr. Gordon testified that he read defendant his Miranda rights, informed defendant that he had been asked to talk with him by the prosecutor and stated to defendant that the information would be released to the prosecutor for use in court. No physician-patient privilege arose between defendant and Dr. Gordon, since the information given by defendant was not for purposes of treatment by Dr. Gordon._
Defendant also argues that his examination by Dr. Gordon deprived him of his Fifth Amendment right to remain silent and his Sixth Amendment right to assistance of counsel. This argument is without merit. Although defendant’s right to counsel had attached at the time he spoke with Dr. Gordon, Estelle v Smith, 451 US 454; 101 S Ct 1866; 68 L Ed 2d 359 (1981), defendant waived his right to counsel and his right to remain silent. The instant case is distinguishable from Estelle, supra, upon which defendant relies. In Estelle, the defendant was not advised of his Miranda rights. The psychiatrist who talked to defendant in Estelle did not obtain permission from defendant’s attorney and did not inform the defendant that any statements made by him could be used against him at the sentencing portion of his trial to determine whether the death penalty was appropriate. In this case, defendant was repeatedly advised of his Miranda rights. Defendant waived his right to remain silent and his right to counsel. Defendant was told that Dr. Gordon was interviewing him at the prosecution’s request and that statements made by defendant could be used against him at the trial.
Defendant also argues that insufficient evidence was produced to show that defendant was sane at the time of the offense. This issue has been resolved by our decision regarding the proper insanity test. Defendant does not dispute that the evidence of sanity was sufficient under the Durfee test. Since we have found that the Durfee instructions were proper, we find no error on this issue.
We find defendant’s remaining allegation to be without merit. The jury instructions given by the trial court were proper.
Affirmed.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). | [
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Shepherd, P.J.
Plaintiff Attorney General for the State of Michigan appeals from a circuit court order granting defendant Michigan Public Service Commission’s motion for accelerated judgment. The circuit court held that plaintiff’s complaint for review of certain psc orders was not timely filed in the circuit court. We reverse and remand for further proceedings.
Defendant psc entered two orders on June 1, 1983, authorizing defendant Southeastern Michigan Gas Company to adopt and implement a gas cost recovery clause. A month later on July 1, 1983, plaintiff filed an application for rehearing of both orders with the psc. The application for rehearing was denied on September 27, 1983. On October 27, 1983, plaintiff filed a complaint in Ingham Circuit Court, seeking judicial review of the orders of June 1, 1983. The psc’s motion for accelerated judgment was granted on February 15, 1985.
The basis for granting the accelerated judgment was lack of jurisdiction due to the complaint’s not having been timely filed in circuit court. The Attorney General argued for an interpretation of the pertinent statutes that would have given him thirty days from the denial of the application for rehearing in which to file a timely complaint.
The applicable statutory review proceedings in utility rate-making cases is MCL 462.26; MSA 22.45, which provides in pertinent part:
Any common carrier or other party in interest, being dissatisfied with any order of the commission fixing any rate or rates, fares, charges, classifications, joint rate or rates, or any order fixing any regulations, practices or services, may within 30 days from the issuance of such order and notice thereof commence an action in the circuit court in chancery for the County of Ingham, against the commission as defendant to vacate and set aside any such order.
The psc is given the authority to grant rehearings in MCL 460.351; MSA 22.111. The procedure for bringing a suit for judicial review of a psc order after denial of rehearing is set forth in MCL 460.352; MSA 22.112, which provides:
The time allowed by law for the bringing of suit to review any order of the commission, shall con tinue after the order denying a rehearing or made upon a rehearing, for the same number of days now provided by law for review of the order upon which such rehearing was denied or had.
The question on appeal is whether the original thirty-day period was merely tolled during the pendency of the motion for rehearing, as urged by the psc, or whether a new thirty-day period began when the motion for rehearing was denied, as urged by the Attorney General. Under the defendants’ interpretation, the rehearing provision merely suspends the running of the thirty-day appeal period, and consequently plaintiffs complaint for review in the circuit court was untimely. Under plaintiffs view, a party has thirty days to request a rehearing under MCL 462.26 and, following the psc order on rehearing, thirty days to perfect an appeal under the rehearing statute, MCL 460.352.
Another panel of this Court has recently considered this same issue and held that the time period is only tolled and does not begin anew. Great Lakes Steel Div of Nat'l Steel Corp v PSC, 143 Mich App 761; 373 NW2d 212 (1985), lv den 424 Mich 859 (1985). The Court reasoned:
In considering this question in the context of a similar statutory provision relative to the regulation of motor vehicle carriers, this Court defined "continue” as:
" 'To be steadfast or constant in a course of activity: keep up or maintain esp. without interruption a particular condition, course, or series of actions.’ ” Veterans Airport Service, Inc v Public Service Comm, 5 Mich App 602, 605; 147 NW2d 455 (1967).
Additionally, the Legislature indicated the necessity for review in the instant type of case. See Attorney General v Public Service Comm #1, 133 Mich App 719, 728; 349 NW2d 539 (1984), and MCL 460.6a; MSA 22.13(6a), which establishes, as a goal, a time frame of nine months for these cases from start to finish. Therefore, we hold that the time period is only tolled and does not begin anew. [Id., 764],
We disagree with the Court’s reasoning and conclusion in Great Lakes Steel. The analogous statutory provision referred to in Great Lakes Steel has been interpreted as merely tolling the thirty-day appeal period from psc orders in motor carrier cases until a decision is made on a petition for rehearing. See Veterans Airport Service, Inc v PSC, 5 Mich App 602; 147 NW2d 455 (1967). However, that statute omits certain qualifying language found in the subject statute. The analogous statute provides in pertinent part:
All orders entered in accordance with the provisions of this section shall be served and take effect as herein provided for original orders, and the time allowed by law to bring proceedings to review any order of the commission shall continue after the order denying the hearing or after the order made upon a rehearing. [MCL 479.18; MSA 22.583.]
In comparison, MCL 460.352, at issue here, provides that the time for bringing an appeal from a psc order "shall continue after the order denying a rehearing . . . for the same number of days now provided by law for review of the order upon which such rehearing was denied or had.” We read this additional qualifying language as providing that the appeal period continues after denial of a rehearing for thirty more days, i.e., the same amount of time as the party originally had to file a complaint for judicial review. To interpret the statute as urged by defendants would be to hold that the statute means the same thing with or without the language "for the same number of days now provided by law for review of the order upon which such rehearing was denied or had.” We are not prepared to say that this language is mere surplusage in view of the rule of construction that ascribes to the Legislature an intent to give meaning to every word in a statute. Michigan Harness Horsemen’s Ass’n v Racing Comm’r, 123 Mich App 388, 391; 333 NW2d 292 (1983). The psc argues that our holding will result in one rule for public utilities and another for common carriers, both of which are regulated by the same agency. While this is true, the problem (if it is, in fact, a problem) was created by the Legislature when it used different language in the two applicable statutes.
We are also not persuaded by the second rationale stated in Great Lakes Steel, the need for prompt review. Our interpretation will have the effect of advancing the case by no more than thirty days. We agree with the Attorney General that the need for prompt review must be balanced against the time needed to prepare for review in an area of law that is frequently complex. We view the thirty-day time period for filing a motion for rehearing as a minimal amount of time in which to prepare the motion. Yet, under the interpretation urged by the psc, if most of that time were used to prepare the motion for rehearing, the Attorney General would have almost no time left to file a complaint for judicial review even though the content of the complaint could be modified by action taken by the psc on the motion for rehearing.
Reversed and remanded for further proceedings.
Orders of the Public Service Commission in utility rate-making cases are appealable under § 26 of the railroad commission act, MCL 462.26; MSA 22.45. See Sullivan v Public Service Comm, 93 Mich App 391, 395; 287 NW2d 188 (1979), lv den 411 Mich 1004 (1981); Great Lakes Steel Div of Nat’l Steel Corp v Public Service Comm, 143 Mich App 761, 763; 373 NW2d 212 (1985), lv den 424 Mich 859 (1985). | [
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Per Curiam.
May the elected Chief Executive Officer (CEO) of a charter county having a population exceeding 1,500,000 which has adopted a charter form of government pursuant to the enabling act for charter counties, MCL 45.501 et seq.; MSA 5.302(1) et seq., remove incumbent road commissioners and make appointments to fill the vacancies thereby created? On April 26, 1983, the Circuit Court for Wayne County answered this question of first impression in the affirmative and granted summary judgment for plaintiff. On April 27, 1983, plaintiff terminated the individual defendants and appointed their successors. On April 29, 1983, the circuit court ordered a stay of its April 26, 1983, order of summary judgment.
In Docket No. 71499 plaintiff appeals as of right from the order of stay, and in Docket No. 71018 defendants appeal from the order of summary judgment. The two appeals were consolidated by order of this Court and argued before the Court July 25, 1983.
The basic facts are straightforward and uncontested. Plaintiff is William Lucas, elected County Executive (CEO) of Wayne County. Defendant Board of County Road Commissioners of Wayne County is the statutory corporate body created pursuant to the county road act, MCL 224.1 et seq.; MSA 9.101 et seq., responsible for the county road system and highways in Wayne County, Detroit Metropolitan and Willow Run Airports and county parks. Defendants Claude Dukes, Grace Hampton, and Harold Bondy (individual defendants) are the incumbent members of the board, having been appointed to those positions by the Wayne County Board of Commissioners pursuant to §6 of the county road law, MCL 224.6; MSA 9.106. Intervening defendant Wayne County Government Bar Association (WCGBA) is the collective-bargaining representative for seven attorneys employed by defendant board.
Pursuant to Const 1963, art 7, § 2, and the enabling legislation enacted in accordance therewith known as the county charter act, MCL 45.501 et seq.; MSA 5.302(1) et seq., a home-rule charter was adopted June 16, 1981, by the Wayne County Charter Commission, and approved by the voters of Wayne County on November 3, 1981. In November, 1982, William Lucas was elected Chief Execu tive Officer. On December 21, 1982, plaintiff filed a complaint in circuit court seeking injunctive relief and alleging that defendant board and the individual defendants were in breach of their fiduciary duty by negotiating labor contracts with the WCGBA. On January 13, 1983, plaintiff filed an amended complaint asserting for the first time the pivotal claim in this litigation — that plaintiff as CEO has the authority to summarily remove the individual defendants from their office as road commissioners and appoint their successors to serve at his pleasure. On the following day, plaintiff moved for summary judgment.
On January 25, 1983, defendant board and the individual defendants filed their motion for summary judgment under GCR 1963, 117.2(1). The basis for that motion was defendants’ assertion that plaintiff lacked authority to remove incumbent road commissioners and appoint their successors. The parties filed answers to each other’s motion for summary judgment and submitted briefs in support of their respective positions. The matter was transferred to Judge Irwin H. Burdick who, after extensive oral argument on April 14, 1983, announced from the bench that he would issue a decision by April 26, 1983. On April 26, Judge Burdick issued a lengthy written opinion in which he concluded that § 14(d)(ii) of the county charter act, MCL 45.514(d)(ii); MSA 5.302(14)(d)(ii), gave plaintiff the authority he claimed to remove incumbent road commissioners and appoint their successors. Judge Burdick also entered an order which denied defendants’ motion for summary judgment and granted plaintiff’s motion for summary judgment._
In separate actions, each party appealed as of right from Judge Burdick’s orders. As noted earlier, the two appeals were consolidated and on July 22, 1983, motions to intervene as defendants by Michigan AFSCME Council 25 and County Road Association of Michigan were granted by this Court. In Docket No. 71018, the principal defendants raise four issues for review. A fifth and new issue is raised by intervening defendant County Road Association of Michigan. The sole issue presented in Docket No. 71499 concerns the status of the order of stay as granted by the trial court and as subsequently modified by order of this Court.
I
Does the implementing legislation for counties having a population of over 1,500,000, 1980 PA 7, MCL 45.514[d][iiJ; MSA 5.302[14][d][ii], violate the Michigan Constitution of1963, art 4, § 29, the prohibition of local acts?
In 1966, pursuant to the authority conferred upon Michigan counties in Const 1963, art 7, § 2, to adopt a charter form of government, the Legislature passed 1966 PA 293. MCL 45.501 et seq.; MSA 5.302(1) et seq. That act gave all counties the power to adopt, amend, or repeal a charter form of government. The only distinction among counties on the basis of population was the number of charter commissioners and county commissioners. The smaller the county population, the fewer the number of commissioners allowed. Since the top population figure stated in the act was 600,000, none of the population figures applied only to one county. However, in 1980, the Legislature in response to special problems existing in Wayne County passed 1980 PA 7. That act gave special statutory authority for county charters applicable only to a county with a population over 1,500,000. Based on the 1980 federal census, the special authority so conferred applied only to Wayne County.
Section 14(d) of 1966 PA 293, applicable to all counties, contained a provision saying "[n]othing in the charter shall be in derogation of the powers and duties of county road commissioners in the exercise of their statutory duties concerning the preservation of a county road system”. However, upon passage of 1980 PA 7, former § 14(d) was broken into parts (i) and (ii). Part (i) reads in part: "In a county having a population of less than 1,500,000, the charter shall not be in derogation of the powers and duties of the county road commission in the exercise of their statutory duties concerning the preservation of a county road system”. Part (ii) commences with the language "[i]n a county having a population of 1,500,000 or more” and then goes on to authorize a three-member road commission which "shall be appointed by either the elected county executive or the chief administrative officer”. It is under § 14(d)(ii) that plaintiff finds the authority to appoint road commissioners of his own choice.
Because § 14(d)(ii) of 1980 PA 7 applies only to one county, defendants argue that it is a special act which is prohibited by Const 1963, art 4, § 29, unless approved by two-thirds of the members of both houses of the Legislature and approved by a majority of the voters of the district affected. Because these procedures were not followed, defendants claim the charter provision under which plaintiff acted was invalid. In support of this claim, defendants strongly rely upon Avis Rent-A-Car System, Inc v Romulus, 400 Mich 337; 254 NW2d 555 (1977), and Attorney General ex rel Dingeman v Lacy, 180 Mich 329; 146 NW 871 (1914).
The fact that a legislative act contains a population classification which limits the geographical application of the act does not necessarily make the act local or special. If the population classification has a reasonable relation to the purpose of the statute and the statute applies whenever the population classification is met, an act containing such a classification is not thereby made local or special. Dearborn v Wayne County Bd of Supervisors, 275 Mich 151; 266 NW 304 (1936); Chamski v Wayne County Bd of Auditors, 288 Mich 238; 284 NW 711 (1939); The Irishman's Lot, Inc v Secretary of State, 338 Mich 662; 62 NW2d 668 (1954).
The statute in question concerns the organization of county government, sometimes referred to as "the dark continent” of American government. The least student of urban sociology knows that metropolitan population centers have far greater problems than rural areas with respect to crime and thus the law enforcement services necessary to preserve the public peace, with respect to indigency, and its associated problems of housing, sanitation, and medical treatment, as well as in respect to many other facets of life, such as emergency preparedness, toxic wastes, traffic flow (hence the specific focus on removing the independence of the road commission vis-á-vis the county chief executive), and many others.
Where there is an obvious and intimate relationship between the population of a county and its governmental organization, a statute which distinguishes counties on the basis of population is not invalid as a local act. As this Court said in Airport Community Schools v State Bd of Ed, 17 Mich App 574, 576; 170 NW2d 193 (1969):
"As amended, [1967 PA 239] applies to all counties attaining a population of more than 1,000,000.
"The large number of high school students to be found in non-high school districts in a populous area as opposed to the smaller number in a less populous area and the improbability of relief through annexation or consolidation establish the reasonable relation of the population classification to the purpose of the statute.”
Similarly, in upholding a housing law which required the establishment of a board of tenant affairs in cities having a population over 1,000,000, the Court in Bankhead v Mayor of River Rouge, 387 Mich 610, 616; 198 NW2d 414 (1972), held:
"The population limitation restricts the application of [1968 PA 344] § 49 to the City of Detroit. The questions of whether the population limitation constitutes a local act or is a denial of equal protection as an unreasonable classification are discussed in the majority opinion of the Court of Appeals. We agree with the reasoning of that opinion.”
This Court had said in Bankhead, 35 Mich App 7, 17; 192 NW2d 289 (1971):
"We are unable to say that restriction of the act as expressed in the title of the legislation is arbitrary. The Legislature could reasonably determine that tenants of public housing projects in large cities face considerably different problems than do tenants in smaller cities, such as to warrant classification. For example, tenants in large city public housing projects must compete with a greater number of tenants for individual attention. Tenants of such projects — because they live in the midst of huge urban areas — must cope with not only living in public housing but also living in large cities. Many such distinguishing features exist.”
Because densely populated counties such as Wayne County present problems of governmental management and control different in kind, quality, and magnitude from those faced by other counties, 1980 PA 7 is not unconstitutional as local legislation. The population criterion therein specified bears a reasonable relationship to the purpose of the enactment, namely, the organization of county government. Once the validity of a population factor is recognized, the Legislature’s choice as to where to draw the line, unless patently arbitrary, must be upheld, as in Bankhead.
Defendants’ strong reliance on Avis Rent-A-Car System, supra, is misplaced. The statute under attack in Avis withdrew from airport concessionaires in counties over 1,000,000 population a tax exemption given airport concessionaires in other counties. The court struck down the statute on grounds that the population of the county had no reasonable relationship to attracting an airport concession. However, in the case before us, there is a reasonable relationship between the population of the county and the need for differentiation of political structure.
II
Does the adopted charter fail to give the CEO authority to appoint and remove road commissioners?
Section 4.385 of the home-rule charter is entitled ”Appointments” and reads:_
"Unless otherwise speciñcally provided by this Charter or law:
"(1) The Deputy CEO, directors, deputy directors, members of boards and commissions, representatives of the County on intergovernmental bodies, and all other officials or representatives not in the classified service shall be appointed by the CEO with the approval of a majority of Commissioners serving.
"(2) If the Commission fails to act on a [sic] appointment within 30 days after its submission to the Commission, the appointment is effective.
"(3) Appointees in County government serve at the pleasure of the appointing authority.” (Emphasis added.)
Plaintiff argues that this section plainly and unambiguously gives him power to remove the individual defendants from their offices as incumbent road commissioners and appoint their successors. Defendants contend that the charter does not confer such authority (a) because the limiting language (emphasized above), "otherwise specifically provided by * * * law”, precludes such authority, and (b) because the charter provisions do not mirror the exact language of the enabling act, 1980 PA 7, heretofore referred to. We address the arguments separately.
On the date that the charter was adopted, November, 1981, there was a specific statute in existence pertaining to the selection of county road commissioners. That statute was the county road law, § 6 of which provided for the appointment and removal of road commissioners by the county board of commissioners. MCL 224.6; MSA 9.106. Further, that section was re-enacted in 1982 PA 299. Ergo, argue defendants, there was something "otherwise specifically provided by law” when the charter was adopted and, thus, plaintiff is without the authority he claims with respect to the road commission. We disagree. Also in existence at the time the charter was adopted was 1980 PA 7, § 14(d)(ii) of which specifically provided that in counties of more than 1,500,000 there should be a three-member road commission whose members shall be appointed and may be removed by the elected county executive or chief administrative officer. In view of this statute which specifically applies to Wayne County’s charter form of government, it is impossible to agree with defendants’ argument that plaintiffs power to appoint and remove was "otherwise specifically” precluded.
We now turn to defendants’ argument that because the charter provisions do not specifically pick up the language of the enabling act the CEO is without power to appoint and remove incumbent road commissioners. According to defendants, the charter must specifically address the removal and appointment of road commissioners as such; to address the removal and appointment of commissioners in general is not enough. On this issue the trial court persuasively stated:
"Defendants’ argument erroneously presupposes that the key word in the statute relied upon, 'provided’, connotes that the charter must mirror word for word the terms of the enabling act. Had the Legislature meant this they could have more clearly expressed their intention by using the phrase 'the charter shall state’ or some other phrase indicating that the charter was to state word for word the content of the enabling act.”
We agree with the trial judge. Carried to its logical extension, defendants’ position would give every department not specifically named as subject to the CEO’s removal powers the opportunity to claim exemption or immunity from such powers. We do not think that was intended by the charter or the implementing legislation. For example, §§4.311 (corporation counsel), 4.321 (personnel), 4.341 (health), 4.351 (public works), and 4.381 (other agencies) call for the creation of named departments to be headed by certain parties but without any mention of appointment and removal. Yet all of them, in our opinion, clearly fall within the language that "directors, deputy directors, members of boards and commissions * * * shall be appointed by the CEO” and "serve at the pleasure of the appointing authority” in § 4.385 of the charter. The department of road commission mentioned in § 4.361 should be treated no less.
Furthermore, there is ample authority for the proposition that statutory provisions not mentioned per se in a municipal charter are automatically read into the charter and become a part thereof. In City Comm of City of Jackson v Vedder, 209 Mich 291; 176 NW 557 (1920), the city charter, in accordance with the then enabling state statute, provided that the limit of bonded indebtedness of the city could not be raised or lowered without a two-thirds vote. Some years later the Legislature amended the statute so as to allow the limit of indebtedness to be changed by a three-fifths vote. In a subsequent election on the question of raising the debt limit, the proposition carried by a three-fifths majority vote, but fell short of a two-thirds majority vote. Opponents of the increase filed suit claiming the increase was invalid because the charter did not contain the language in the statute. The Supreme Court disagreed, saying:
"Had the charter provided the bonding limit might be raised or lowered by any different vote than that prescribed by the statute, it obviously would have been of no force. Or had the charter been silent as to the requisite majority, and this controversy had arisen, a construction of the charter would have required us to read into it the legislative provision. This being true, when the Legislature amended the act by requiring a three-fifths vote instead of a two-thirds vote, the amendment was automatically read into the charter, and is now a part of it. ” 209 Mich 294. (Emphasis added.)
This rule that statutory provisions not mentioned in a charter are read into and become a part of the charter has been followed in City of Jackson v Consumers Power Co, 312 Mich 437, 450; 20 NW2d 265 (1945); City of Hazel Park v Municipal Finance Comm, 317 Mich 582, 601; 27 NW2d 106 (1947), and Council of City of Saginaw v Saginaw Policemen & Firemen Retirement System Trustee, 321 Mich 641, 647-648; 32 NW2d 899 (1948), in which latter case the point had been deemed so well settled it was reaffirmed in these cryptic words:
"It must be assumed that the people, in adopting a constitutional amendment providing for a 15-mill tax limitation which might be increased by charter provision, were conversant with and had in mind the fact that it then was, as it now is, the established law in Michigan that charter provisions of municipal corporations come into being by legislative enactment as well as adoption by local electors. Hence, our decision in City of Hazel Park v Municipal Finance Comm, supra, which is controlling here.”
Therefore, it is irrelevant that the Wayne County charter does not mirror word-for-word the language of the enabling acts. The statutory provisions, by virtue of their enactment into general law, form a part of that charter whether or not repeated therein, fill in the gaps, and supersede any possibly conflicting provision actually contained within the charter.
Ill
Assuming that the CEO would otherwise have appointment and removal powers with respect to road commissioners, are those powers vitiated by 1982 PA 299?
Defendants next argue that enactment of 1982 PA 299 evidenced a legislative intent to continue the long-standing procedure under the county road law for appointment of road commissioners by the county board of commissioners and for their removal only for cause after a due process hearing. In support of this position, defendants track the legislative history of House Bill 5874, showing that as introduced HB 5874 excluded charter counties. That draft was not enacted into law; the next draft proposed abolishing the board of road commissioners in charter counties, but that draft was also rejected. As finally adopted, the relevant section (subsection [2] of § 6) reads:
"(2) In a county having a population of 1,500,000 or more which has adopted a charter under Act No. 293 of the Public Acts of 1966, being sections 45.501 to 45.521 of the Michigan Compiled Laws, the powers and duties which are otherwise provided by law for a board of county road commissioners may be reorganized by amendment to the charter. Funds provided to the county pursuant to Act No. 51 of the Public Acts of 1951, being sections 247.651 to 247.674 of the Michigan Compiled Laws, shall only be expended for the purposes provided for in Act No. 51 of the Public Acts of 1951.” (Emphasis added.)
Based upon this legislative history, defendants conclude that, had the Legislature intended to exclude Wayne County from the long-standing procedure for selection of road commissioners, the earlier versions of HB 5874 would have been passed and that by revising subsection (2) to the form in which it finally did pass, "the Legislature announced that the appointment and removal provisions in subsection (1) of section 6 do apply in Wayne County unless and until the county’s charter is amended to reorganize the road commission’s powers and duties”. (Emphasis added.) Since the Wayne County charter has not been so amended, defendants opine that the CEO is without power to remove and appoint road commissioners.
Defendants’ argument would be persuasive but for the offsetting legislative intent expressed in 1982 PA 300 which became effective simultaneously with 1982 PA 299. In fact, Act 299 was tied to Act 300 with the express proviso: "This amendatory act shall not take effect unless House Bill No. 5875 of the 81st Legislature is enacted into law”. Act 299 amends the county road law and Act 300 amends the county charter law. Act 300 specifically provides that the charter of a county having a population of more than 1,500,000 persons must give the CEO the power to appoint and remove road commissioners.
Because Act 299 and Act 300 were passed simultaneously, were each dependent upon the enactment of the other, and dealt with the same subject, we cannot agree with defendants that the omission in Act 299 of a provision for appointment and removal of road commissioners by the CEO evidenced a legislative intent to deny that power unless the Wayne County charter was again voted upon. The Legislature could not have intended to undo in Act 299 what it simultaneously was reaffirming in Act 300, viz.: mandating that in a county with more than 1,500,000 population the road commissioners be appointed and removed by the CEO. We agree with plaintiff that to require a vote to amend the charter to empower the CEO to appoint and remove road commissioners would be an absurdity. It would require an amendment to the charter to say what the charter already says.
Finally, on the issue raised, we agree with the trial court that as between Act 299 and Act 300, Act 300 is the more specific statute. It deals specifically with the power of the CEO to appoint and remove road commissioners. Act 299 does not even address the power of the CEO. Rules of statutory construction dictate that a special statute enacted subsequent to a general statute is an exception to the general regulation. People v Rodgers, 18 Mich App 37, 40; 170 NW2d 493 (1969); Manville v Board of Governors of Wayne State University, 85 Mich App 628, 636; 272 NW2d 162 (1978); In re Cole Estate, 120 Mich App 539, 548; 328 NW2d 76 (1982). This rule also applies when statutes are enacted simultaneously, as in this case. 2A Sutherland, Statutory Construction (Sands rev, 4th ed, 1973), § 51.05, p 315.
One must also conclude that MCL 45.514(d)(ii); MSA 5.302(14)(d)(ii) is more specific because it relates only to counties having more than 1.5 million people. Since MCL 45.514(d)(ii); MSA 5.302(14)(d)(ii) is not a fatally defective local act in violation of Const 1963, art 4, § 29 (see Issue I, supra), MCL 45.514(d)(ii); MSA 5.302(14)(d)(ii) must control by virtue of the accepted rules of statutory construction because of its specificity. Accordingly, we conclude that 1982 PA 299 does not supersede § 14(d)(ii) of the county charter act or contravene the appointing power given the CEO in § 4.385 of the Wayne County charter.
IV
Is the charter invalid because the Governor, lacking an affirmative response from the Attorney-General, improperly approved the charter?
The county charter act describes the manner in which a county charter may be adopted. Section 16 thereof, MCL 45.516; MSA 5.302(16), provides in part:
"The charter shall be submitted to the governor for approval within 30 days after its completion. The charter may be approved by the governor upon written recommendation of the attorney general that it conforms to the provisions of the constitution and statutes of this state. The governor either shall approve or reject the charter within 30 days of its submission.”
The Governor approved the charter July 22, 1981. In a letter dated July 17, 1981, the Attorney General recommended to the Governor that "changes be made to accomplish conformance”. Defendants contend that the Governor’s approval without the Attorney General’s express recommendation of approval renders the charter nugatory.
The word "recommendation” has an established usage; it refers to action which is advisory in nature rather than one having any binding effect. People v Gates, 41 Cal App 3d 590, 599; 116 Cal Rptr 172, 178 (1974). Had the Legislature wished to restrict the power of the governor to approve the charter, it could easily have done so by providing that the Governor not approve the charter unless buttressed by the written recommendation of the Attorney General. Instead, the Legislature merely provided for the Attorney General to act in an advisory capacity. To hold otherwise would be to render the succeeding sentence nugatory, for absent the affirmative recommendation of the Attorney General, the Governor could not approve the charter. Moreover, to thus delimit the power of the Governor would run afoul of the separation of powers principle of Const 1963, art 3, § 2, by virtue of which the executive power is vested solely in the Governor, Const 1963, art 5, § 1.
The Attorney General, albeit a constitutional officer, is a member of the executive branch and thereby constitutionally subservient to the Governor as repository of the executive power of the state. Under the circumstances, the Legislature must be far more specific if it intends to restrict the Governor’s exercise of a delegated duty and to make it dependent upon the approval of an inferior officer. In this respect, the Governor’s decision to approve the charter is entitled to great deference, for the Governor has no less a solemn obligation, see Const 1963, art 11, § 1, than does the judiciary to consider the constitutionality of his every action. See Rostker v Goldberg, 453 US 57; 101 S Ct 2646; 69 L Ed 2d 478 (1981).
V
Does 1980 PA 7 constitute an impermissible amendment by implication, contrary to Alan v Wayne County, 388 Mich 210; 200 NW2d 628 (1972)?
This provocative issue is raised by intervening defendant County Road Association of Michigan. Because intervenor only came into the case upon appeal to this Court, the issue was not discussed by the trial court. Nowhere in the title or object of the act does 1980 PA 7 make any reference to or attempt to amend the county road law, particularly chapter four which established county road commissions, being 1909 PA 283. The only reference to statutes being amended is to laws pertaining to the form of county government. Citing Alan and Justice Cooley in Mok for the rule that "you cannot amend statute C even by putting in statute B specific words to amend statute C, unless you republish statute C as well as statute B under Const 1963, art 4, § 25”, intervening defendant concludes:
"That is just exactly the issue in this case. The Legislature cannot amend the general highway law, 1909 PA 283, by amending an entirely different statute, 1966 PA 293, unless 1909 PA 283 is republished. * * *
"A rule of reason and equity would also require that the legislative body changing the rights and responsibilities of county road commissions has a duty to make that change very clear to them as opposed to the requirement that the attorney or law members on the county road commission do as thorough a research job as is possible by a legislative body.”
Intervening defendant construes Alan and Mok far too broadly. Contrary to intervenor’s assertion, Michigan case law does not prevent amendment by implication. To the contrary, amendment by implication is permitted without republishing or re-enacting every previous statute affected by the new law. As stated by Justice Coleman upon sustaining the validity of the "No-Fault Automobile” legislation in Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 477; 208 NW2d 469 (1973):
"Amendments by implication are an inevitable byproduct of the legislative scheme of government. It boggles the mind to contemplate the laws which would be rendered unconstitutional ab initio and the avalanche of litigation which would follow were we to construe § 25 in so extended a manner as to find unconstitutional its effect upon 1972 PA 294.”
The no-fault statute then under attack modified the title and added a chapter to the Insurance Code but did not mention or cross-reference to over 200 statutes that were related in some way. Justice Coleman noted that because the act was a complete act in itself, did not confuse or mislead, and set forth in full the amendments to the Insurance Code, it did not present the kind of problem to which the rule in Alan was directed.
The situation in the case before us is similar. 1980 PA 1, unlike the statute in Alan, does not purport to insert words from one statute to another. Instead, it is a complete act in itself. It introduces a new form of government, viz.: the charter form, and provides that in any county with a population of more than 1,500,000 the government will be centralized by an elected county executive or chief administrative officer who has the power to appoint department heads. It does not amend the county road law as such. That act continues in force and establishes the status of road commissioners for all regular counties. The only time the provisions of 1980 PA 7 would apply would be if a county voted to adopt the charter form of government. Like no-fault, 1980 PA 7 "is a complete act and does not confuse or mislead, but publishes in one act for all the world to see what it purports to do”. 389 Mich 476. As such, it is "not part of the mischief designed to be remedied” by Alan or Const 1963, art 4, § 25. 389 Mich 473.
VI
May the stay which was dissolved by the circuit court on April 26, 1983, be retroactively imposed by the circuit court on April 29, 1983, so as to nullify plaintiff’s April 27, 1983, order terminating defendants and appointing successor commissioners?
This question is the sole issue raised on appeal in Docket No. 71499. We find the issue rendered moot by the stay order issued by this Court on May 17, 1983. On May 19, 1983, we clarified the May 17 order by limiting the stay to that portion of the circuit court’s April 26 order "which dissolves the temporary restraining order, dated December 30, 1982, which enjoined the plaintiff from discharging the defendant members of the Board of County Road Commissioners or making new appointments to their positions”.
The order of stay so issued by this Court precluded discharge of the incumbent road commissioners serving on April 26, 1983, and appointment of their successors pending decision by the Court of Appeals. However, this Court having now determined on the merits in Docket No. 71018 that the trial court did not err in granting summary judg ment to plaintiff, the order of stay is hereby dissolved.
Conclusion
In summary, defendants contend that despite the people’s approval of a charter form of government with strong powers vested in an elected chief executive, despite the Legislature’s twice authorizing a new method for appointing and removing road commissioners, and despite the legislative confirmation of such power upon amendment of the county road law in 1982 PA 299 — despite all of these affirmative actions, defendants ask us to not give effect to the new charter.
We decline to do so. Pursuant to Const 1963, art 7, § 2, the first constitutional provision to provide for the creation of charter counties, the Legislature passed 1966 PA 293, the charter act, which for the first time implemented the constitutional provision. In 1980 PA 7, the Legislature amended the county charter act adding new sections calling for centralization of power in a strong executive director in counties with a population over 1,500,-000. Among the powers so granted the CEO was the power to appoint and remove county road commissioners. That express power was reconfirmed upon passage of 1982 PA 300. 1980 PA 7 is not a local act in violation of the Michigan Constitution. The population criterion set forth in the statute is reasonably related to the purpose of the enactment, namely, the effective organization of county government in a densely populated area. The Legislature reasonably determined that county government would more effectively operate in a high population county if power were centralized in a single executive who could be held accountable and that the people of such county could have the choice of whether or not to adopt such form of government. Section 4.385 of the charter clearly confers upon the CEO the power authorized in 1980 PA 7, as amended by 1982 PA 300. Finally, the authority so granted was not superseded or otherwise modified by 1982 PA 299. Accordingly, the trial court’s order of summary judgment in favor of plaintiff is affirmed. The trial court’s order of stay issued April 29, 1983, and the stays ordered by this Court May 17 and 19, 1983, are vacated.
Affirmed. No costs, a question of public importance being involved.
This opinion shall be given immediate effect. GCR 1963, 821.3.
References in this opinion to this statutory section reflect its proper citation prior to its amendment by 1982 PA 300. — Reporter.
"The legislative purpose in 1970 PA 174 was to withdraw a tax exemption from concessions at airports located in counties over 1,000,000 people (only Wayne County). The legislative conclusion must have been that these airports will attract concessions without the lure of a tax exemption. The attraction, however, is not a function of county population. It depends on the volume of traffic flowing through the airport.” 400 Mich 347. (Emphasis added.)
House Bill 5875 became 1982 PA 300, and House Bill 5874 became 1982 PA 299.
The letter from the Attorney General listed some 11 instances where the proposed charter and the implementing legislation did not strictly conform. The letter then stated "[t]he foregoing discusses those charter sections which are at variance with constitutional or statutory law. It is recommended that appropriate changes should be made in such provisions of the charter to conform the charter with the provisions of constitution and statute.”
Mok v Detroit Building & Savings Ass’n No 4, 30 Mich 511 (1875).
For other decisions holding that "an act complete within itself, even though repealing by implication another statute, is not one of the evils sought to be prevented by art 4, § 25”, see Charter Twp of Meridian v East Lansing, 101 Mich App 805, 808; 300 NW2d 703 (1980); Queen Airmotive, Inc v Dep’t of Treasury, 105 Mich App 231, 235; 306 NW2d 461 (1981). | [
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M. J. Kelly, P.J.
Petitioner, Edsel & Eleanor Ford House, appeals as of right from a decision of the Michigan Tax Tribunal denying it an exemption from ad valorem property taxation for the years 1980 and 1981. Petitioner challenges tax assessments of $967,700 for each year on the ground that it is exempt as a charitable institution or nonprofit theater under former MCL 211.7; MSA 7.7, for the tax year 1980 and under MCL 211.7n; MSA 7.7(4k) and MCL 211.7o; MSA 7.7(4-l), for the tax year 1981. We agree.
I
The property owned by Edsel & Eleanor Ford House consists of 50.3 acres of land on Lake Shore Drive in the Village of Grosse Pointe Shores. On the property is located the main house, built in the 1920’s as the personal residence of Edsel and Eleanor Ford, a children’s playhouse, a swimming pool and pool house, a power house, an equipment building, a greenhouse, and a long gatehouse which formerly housed servants. The house is furnished with many of the antiques and rare art works collected by the Fords during their lifetime and is included in both the National Register of Historic Places and the Michigan State Register of Historical Sites. The Michigan History Division of the Michigan Department of State has designated the house as a site for a historic marker.
Eleanor Ford died in 1976. In her will, she provided that her house be preserved "for the benefit of the public”, and specifically directed that it be transformed into "an historical property and cultural center” to be used for activities including but not limited to:
"conferences and receptions; exhibitions of works of art; lectures and symposia; concerts, recitals and other musical events; transient quarters for artists, lecturers, authors, scientists, and other prominent dignitaries visiting Michigan; temporary residence for distinguished refugees or other distinguished visitors in this country; headquarters for learned societies, community service associations, garden clubs and other non-profit organizations; meeting place for local and other groups; public garden and public park; etc.”
To ensure that her wishes were carried out, Mrs. Ford left an endowment of $15,000,000 for the maintenance and preservation of the property.
Pursuant to the terms of the will, a foundation, the petitioner herein, was formed, headed by a board of trustees composed primarily of Ford family members. The board was vested with the authority to develop policy, approve budgets, and moniter activities on the property. Articles of incorporation were filed for a nonprofit corporation; and in 1978, after extensive alterations and renovations, the house was opened to the public. The policies established by the board, in accordance with the terms of Mrs. Ford’s will, provided that any nonprofit group was allowed to use the house for functions having an educational, charitable, cultural, or civic purpose, but excluding all com mercial functions or those aimed at promoting the sponsoring corporation.
During 1980 and 1981, the house was used for numerous activities, including but not limited to conferences, seminars, receptions, meetings, recitals, lectures, concerts, and fundraisers. Sponsoring groups included, the Michigan Cancer Foundation, Operation LINC, Ronald McDonald House, Henry Ford Hospital, Boy Scouts, Campfire Girls, the Republican and Democratic convention site election committees, the National Governors’ Conference, the Society of Manufacturing Engineers, the Stanford Club of Michigan, and others. A one dollar "preservation fee” was charged per guest.
In 1980, the petitioner began to offer individual tours to members of the public without regard to social, racial, religious, or economic considerations. Fees were generally charged, though waived for anyone who was unable to pay, and group tours by school children were always free. The amount of the fees collected was less than the amount expended for the maintenance of the property.
II
Prior to June 2, 1980, MCL 211.7; MSA 7.7 provided, in relevant part, that exemption status applied to: *
"Real estate or personal property shall be owned and occupied by nonprofit theater, 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.”
Effective June 2, 1980, the general property tax statute provides exemption status for:
"[r]eal 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 incorporated * * MCL 211.7n; MSA 7.7(4k),
and for:
"[r]eal 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; * * *.” MCL 211.7o; MSA 7.7(4-l).
In interpreting the earlier statute, the Michigan Supreme Court has developed a four-pronged exemption test, first enunciated in 1944 and reaffirmed as recently as 1980:
"(1) The real estate must be owned and occupied by the exemption claimant;
"(2) The exemption claimant must be a library, benevolent, charitable, educational or scientific institution;
"(3) The claimant must have been incorporated under the laws of this State;
"(4) The exemption exists only when the buildings and other property thereon are occupied by the claimant solely for the purpose for which it was incorporated.” Engineering Society of Detroit v Detroit, 308 Mich 539, 550; 14 NW2d 79 (1944); Michigan Baptist Homes & Development Co v Ann Arbor, 396 Mich 660, 670; 242 NW2d 749 (1976); Ladies Literary Club v Grand Rapids, 409 Mich 748, 751; 298 NW2d 422 (1980).
The Tax Tribunal, in adopting the findings and conclusions of the hearing officer, applied the above test and found that petitioner had failed to satisfy requirements (2) and (4). First, the tribunal held that the maintenance and operation of the property as a cultural and historical center is not a charitable function and that the petitioner is thus not a charitable institution within the meaning of the tax exemption statutes. Second, the tribunal held that, even if the the petitioner were found to be a charitable institution, the property was not used solely or even primarily for the purposes for which it was incorporated and the property was thus not exempt. We review the tribunal’s decision, bound by its factual determinations, and consider only whether the tribunal erred as a matter of law in deciding these two issues. Const 1963, art 6, § 28; Circle Pines Center v Orangeville Twp, 103 Mich App 593, 597; 302 NW2d 917 (1981).
Ill
In determining that petitioner is not a charitable institution, the tribunal looked to the standard dictionary definition of charity and concluded that charitable institutions, as referred to in the tax exemption statutes, must be "kind and generous in giving money or help to those in need”. Since petitioner did not provide money or help to the needy, petitioner did not qualify as a charitable institution. While we recognize that tax exemption statutes are in derogation of the general principle of equality in taxation and are thus to be strictly construed, Retirement Homes of Detroit Annual Conference of United Methodist Church, Inc v Sylvan Twp, 416 Mich 340, 348; 330 NW2d 682 (1982); Ladies Literary Club v Grand Rapids, su pra, p 754, we reject as too narrow the tribunal’s definition of a charitable institution.
The Michigan Supreme Court has, in fact, provided several different analyses of activities considered charitable for purposes of real and personal property tax exemption, all of which are significantly broader than that enunciated by the tribunal. It has been held that to qualify for a charitable tax exemption, real property must be used for the benefit of the general public without restriction. Auditor General v R B Smith Memorial Hospital Ass’n, 293 Mich 36, 38-39; 291 NW 213 (1940); Michigan Baptist Homes v Ann Arbor, supra, p 671; Retirement Homes v Sylvan Twp, supra, p 348. In Retirement Homes v Sylvan Twp, supra, pp 348-349, the Supreme Court cited with approval a definition of a charity which had been used by the Missouri Supreme Court and which had been used by this Court in Asher Student Foundation v East Lansing, 88 Mich App 568, 572; 278 NW2d 675 (1979), lv den 406 Mich 999 (1979):
"Probably the most comprehensive and carefully drawn definition of a charity that has ever been formulated is that it is a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their 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.” The Salvation Army v Hoehn, 354 Mo 107, 114; 188 SW2d 826 (1945). (Citations omitted.)
We conclude that the tribunal erred in limiting its definition of charity to the distribution of goods or funds to the needy. Another panel of this Court has recently reached a similar conclusion regard ing what appears to be the tribunal’s consistent application of an erroneously narrow standard. See Kalamazoo Aviation History Museum v Kalamazoo, 131 Mich App 709; 346 NW2d 862 (1984), where the tribunal refused to allow a personal property tax exemption for a nonprofit corporation operating a museum on World War II aviation. We likewise hold that the relevant inquiry is whether the petitioner promotes the general welfare of the public by extending a gift for the benefit of an indefinite number of people, bringing them under the influence of religion or education, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government.
We believe that the petitioner does qualify as a charitable institution under the more expansive definition of charitable institution provided by the Supreme Court. Petitioner extends the gift of a cultural and historical center to all members of the public and to any nonprofit organization wishing to use the property for certain activities. Petitioner maintains the house upon the property as a public building and that house has been designated an historical building by several organizations, including the State of Michigan. We conclude that the petitioner satisfies the second requirement of the four-pronged exemption test.
IV
We must next consider whether the property is occupied by the petitioner solely for the purposes for which it was incorporated. The tribunal held that the property was used in 1980 and 1981 primarily for social or cultural purposes and that, because the functions held there were not charitable in nature, petitioner’s occupation of the premises was not solely for the purposes for which it was incorporated and petitioner thus failed to satisfy the fourth requirement of the exemption test. Presumably, the tribunal relied upon its own narrow definition of the term charitable in analyzing the nature of the activities conducted at the house.
In its articles of incorporation, petitioner specifically states as its purposes:
"a) To constitute the charitable corporation directed to be formed by the late Eleanor Clay Ford under Article V of her Will (copy attached), and, as such, to receive from the Executors of the Estate of Eleanor Clay Ford the bequest and legacies given for charitable uses under Article V of said Will, more particularly described as follows: (i) those premises in the Village of Grosse Pointe Shores and City of St. Clair Shores, Michigan, which constituted the home of the late Eleanor Clay Ford and are now known as Edsel & Eleanor Ford House, (ii) furnishings, furniture and other contents of said premises and (iii) the endowment fund given to said charitable corporation as a legacy; and
"b) To maintain and operate Edsel & Eleanor Ford House as a historic property and cultural center of service to the public, in the manner provided in Article V of said Will;
"all of the foregoing to be carried on exclusively for charitable purposes and in accordance with the limitations and restrictions of 501(c)(3) and 2055 of the Internal Revenue Code of 1954, as amended (or their counterparts from time to time in force).
"No part of the net earnings of the corporation shall inure to the benefit of, or be distributable to, its members, trustees, officers, or other private persons, except that the corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in Article II hereof. No substantial part of the activities of the corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the corporation shall not participate in, or intervene in (including the publishing or distribution of statements) any political campaign on behalf of any candidate for public office.”
We believe that the petitioner’s occupancy of the property in 1980 and in 1981 was consistent with its stated purposes of incorporation. Petitioner exists only to benefit the public and does not derive any benefit for itself or for its members in maintaining the house and property. Petitioner schedules individual and group historical tours for the general public, providing a description of the industrial developments in Detroit which resulted in the development of the property. Petitioner also makes the house available to nonprofit groups at fees far below maintenance costs. These organizations are free to meet and conduct any activity in the house so long as the purpose of the activity is educational, charitable, cultural, or civic in nature. The fact that some nonprofit organizations choose cocktail parties or dinners as the vehicles through which to expose members to the history of the industrial era, or through which to conduct fundraisers for charitable purposes, does not vitiate the nature of the activity engaged in by the petitioner, that is, the maintenance and provision for the general public, without restriction, of valuable historical property which would not otherwise be available.
For these reasons, we distinguish the instant case from Ladies Literary Club v Grand Rapids, supra, and from Circle Pines Center v Orangeville Twp, supra, relied upon by the respondents and the intervening respondent as authority for denying petitioner’s tax exempt status. In Ladies Literary Club the property for which the plaintiff sought exemption was a 93-year-old club house which included a small library, an auditorium, and facilities for child care which was provided during the various functions conducted there. The plaintiff club organized classes in writing and theater, and offered lectures on various topics. The plaintiff also organized trips to music festivals, plays, museum exhibits, and flower shows. While the programs and trips were open to nonmembers for an admission fee, and while the plaintiff did engage in several public service or charitable activities, the Court found that the principal use of the clubhouse was for the social benefit of its members. The Court rejected the plaintiff’s claim that its trips, lectures, and classes were "educational”, as that term is used in the tax exemption statute, since the activities neither fit into the general scheme of education provided by the state nor eased the burden of the state in providing education to its citizens. 409 Mich 755-756.
Similarly, in Circle Pines Center, the property for which exemption was sought was 297 acres in Orange Township with tent sites, cabins, orchards, meadows, gardens, and a natural forest. The plaintiff center organized such activities as youth camps, family camps, workshops, cider weekends, and ski weekends for the benefit of its members. The philosophy of the group was "cooperative education”, which emphasizes "learning through living”. Outside organizations were sometimes allowed to use the plaintiff’s facilities for retreats and seminars. This Court found that although the plaintiff’s activities were beneficial and commendable, the plaintiff did not qualify as an educational institution for purposes of the tax exemption statute. This Court further noted that the plaintiff Circle Pines Center was even less involved in benefitting members of the public without restric tion than was the plaintiff in Ladies Literary Club v Grand Rapids.
Unlike the activities engaged in by the Ladies Literary Club and Circle Pines Center, petitioner in this case did not organize social and cultural events for the benefit of its members. The petitioner’s only activities were to maintain the property as a historical landmark and to make that landmark available to the general public and to nonprofit corporations. The fact that some nonprofit groups chose a social activity as the mechanism by which to expose their visitors to the historical value of the house did not change the nature of the petitioner’s activities. We find that the tribunal erred as a matter of law in concluding that the petitioner does not qualify for tax exempt status under former MCL 211.7; MSA 7.7 and applicable case law.
V
We further find that the four-pronged exemption test applies where the question of petitioner’s tax exempt status arises under MCL 211.7n; MSA 7.7(4k) or MCL 211.7o; MSA 7.7(4-l). The relevant language of the amended statute is nearly identical to the pre-amended version. Additional language in the new statute may indicate an intent on the part of the Legislature to provide tax exempt status to a broader category of organizations, though we find no need to decide that issue here. Petitioner qualifies for tax exempt status for the years 1980 and 1981.
Reversed.
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ON REMAND
Before: Cavanagh, P.J., and Brennan and Sawyer, JJ.
Per Curiam.
Defendants were charged with several counts of first-degree obscenity, MCL 752.365; MSA 28.579(365). However, these criminal charges subsequently were dismissed by the trial court on the basis of its finding that the Michigan criminal obscenity statute, MCL 752.361 et seq.; MSA 28.579(361) et seq., was unconstitutionally over-broad. The people appealed, and the trial court’s decision was affirmed by the Oakland Circuit Court. The people appealed to this Court, and we affirmed. On August 24, 1994, however, the Michigan Supreme Court reversed the judgment of this Court and remanded the case to this Court for consideration of the merits of the people’s application for leave to appeal. We reverse and remand.
The sole issue on appeal is whether the Michigan obscenity statute is constitutionally valid and enforceable. The people contend that the statute is constitutional and, consequently, request that this Court remand this case for reinstatement of the first-degree obscenity charges. At the time of the alleged offenses, MCL 752.365; MSA 28.579(365) stated in pertinent part:
A person is guilty of obscenity in the first degree when, knowing the content and character of the material, the person disseminates, or possesses with intent to disseminate, any obscene material if dissemination of obscene material is a predominant and regular part of the person’s business at a particular theater, store, warehouse, or other establishment and if obscene materials are a principal or substantial part of the stock in trade at that theater, store, warehouse, or other establishment.
"Knowledge of content and character” was defined in pertinent part in subsection 3 of § 2 as
general knowledge or reason to know, or a belief or ground for a belief which warrants further inspection or inquiry, of the nature and character of the material involved. A person has such knowl edge when he or she knows or is aware that the material contains, depicts, or describes sexual conduct whether or not such person has precise knowledge of the specific contents of the material. [MCL 752.362(3); MSA 28.579(362X3).]
An obscenity statute must contain some form of scienter. Smith v California, 361 US 147; 80 S Ct 215; 4 L Ed 2d 205 (1959). At issue in this case is whether the Michigan obscenity statute satisfies this requirement.
The first sentence of subsection 3 of §2 specifically requires that to be guilty of obscenity, a person must have "general knowledge or reason to know, or a belief or ground for a belief which warrants further inspection or inquiry, of the nature and character of the material involved.” This language closely resembles the statutory language in Mishkin v New York, 383 US 502; 86 S Ct 958; 16 L Ed 2d 56 (1966), that the United States Supreme Court upheld as permissible. Consequently, we find that the language contained in the first sentence of subsection 3 of § 2 is sufficient to satisfy the scienter requirement. See 511 Detroit Street, Inc v Kelley, 807 F2d 1293, 1297-1298 (CA 6, 1986).
We do not, however, find that the second sentence of subsection 3 of § 2 is constitutionally sufficient. According to this sentence, a person who "knows or is aware that the material contains, depicts, or describes sexual conduct whether or not such person has precise knowledge of the specific contents of the material” is deemed to have the knowledge set forth in the first sentence of subsection 3 of § 2. We are of the opinion that this language clearly creates an impermissible presumption that a person who knows or is aware that material contains, depicts, or describes sexual conduct is also aware of the nature and character of the entire material. See Ripplinger v Collins, 868 F2d 1043 (CA 9, 1989); 511 Detroit Street, Inc, supra at 1298.
In light of these findings, it is for this Court to now determine whether severability is possible in this case. If necessary, a court must give a statute a narrow construction to render it constitutional if such a construction can be possible without harming the intent of the Legislature. Thompson v Merritt, 192 Mich App 412, 424; 481 NW2d 735 (1991). MCL 8.5; MSA 2.216 states in pertinent part:
If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable.
The law enforced after an invalid portion of an act is severed must be reasonable in light of the act as originally drafted. Republic Airlines, Inc v Dep’t of Treasury, 169 Mich App 674, 685; 427 NW2d 182 (1988).
We are of the opinion, after careful review of the statute, that the language contained within the obscenity statute is readily susceptible to severance. In order for the Michigan obscenity statute to be constitutionally valid, all that would need to be done is sever the second sentence of subsection 3 of §2. No additional language or construction would be necessary. The first sentence of subsection 3 of § 2 is operable alone and is reasonable in light of the act as originally drafted. People v Cavaiani, 172 Mich App 706, 711; 432 NW2d 409 (1988). Moreover, we believe that it properly can be applied to defendants in this case. Osbourne v Ohio, 495 US 103; 110 S Ct 1691; 109 L Ed 2d 98 (1990). Accordingly, we remand this case for reinstatement of the first-degree obscenity charges.
' Having found the statute constitutional when the second sentence of subsection 3 of § 2 is severed, we reverse and remand for proceedings consistent with this opinion.
Brennan, J., did not participate.
206 Mich App 78; 520 NW2d 346 (1994).
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Allen, J.
Defendant was convicted by a jury of first-degree felony murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). She was sentenced to consecutive statutorily mandated prison sentences of two years and life for the felony-firearm and murder convictions, respectively.
In an authored opinion released September 21, 1982, this Court, in a 2-1 decision, reversed defendant’s conviction for first-degree felony murder and remanded for resentencing on second-degree murder. Such was found to be required because: (1) the underlying felony with which defendant was charged was breaking and entering an occupied dwelling, (2) the offense occurred during daylight hours, (3) at the time of the offense the felony-murder statute did not include breaking and entering an occupied dwelling but only common-law burglary, i.e., an offense which can only be committed at night, and (4) the evidence presented at trial did not show that a common-law burglary had occurred. The breaking and entering/burglary distinction was raised sua sponte by this Court at oral argument.
On October 11, 1982, the prosecution moved for a rehearing, claiming that: (1) it was unreasonable to assume that the Legislature intended to exclude daytime burglaries from the statute, (2) defendant was charged with an attempted larceny and such was included under the statute, (3) defendant should be deemed to have waived any error, espe dally since there is no question that she committed first-degree murder, and (4) defendant committed felony murder based on the underlying felony of larceny. We are not persuaded.
The prosecution’s first claim was made and rejected in People v Saxton, 118 Mich App 681; 325 NW2d 795 (1982). In that case, the defendant, a minor, was charged with felony murder occurring during the daylight hours of December 16, 1974, when defendant and another broke into the victim’s home, beat the victim to death and fled, taking a bottle of pennies and the victim’s car. Defendant was charged with felony murder occurring during a breaking and entering. On appeal, defendant claimed he could not be convicted of felony murder where the underlying felony, breaking and entering, was not one of the enumerated felonies until March 11, 1980, when 1980 PA 28 was passed amending the statute by deleting the word "burglary” and replacing it with "breaking and entering a dwelling”. The prosecution argued that burglary, a common law, was the breaking and entering of an occupied dwelling and, thus, the Legislature intended that the term "burlgary”, as it existed in the felony-murder statute, encompass the course of conduct proscribed at common law. The Saxton panel rejected that argument saying:
"To determine the meaning of burglary as it was used in the felony-murder statute in effect in 1974, we must examine what the drafters of the 1931 felony-murder statute intended. People v MacDonald, 409 Mich 110, 119; 293 NW2d 588 (1980). Criminal statutes are to be strictly construed and any ambiguity is to be resolved in favor of lenity. People v Dempster, 396 Mich 700, 707, 715; 242 NW2d 381 (1976); People v Krist, 93 Mich App 425, 433; 287 NW2d 251 (1979), lv den 407 Mich 963 (1980). As discussed above, burglary was a crime distinguishable from the statutory crimes of breaking and entering. As used in the felony-murder statute, the term 'burglary’ referred to the common-law crime which required a breaking and entering of a dwelling house in the nighttime.
"In the present case, the breaking and entering took place in the daytime. The breaking and entering therefore fails to establish the underlying felony and defendant’s first-degree murder conviction cannot be affirmed.” Saxton, pp 690-691. (Emphasis supplied.)
The prosecution’s second and fourth claims are essentially that attempted larceny and larceny are lesser included offenses of breaking and entering an occupied dwelling with intent to commit larceny and, thus, defendant’s conviction can be affirmed because she committed or attempted to commit a "larceny of any kind”. On the date the victim was killed and his house broken into, October 15, 1978, the statute under which defendant was tried read as follows:
"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.” MCL 750.316; MSA 28.548. (Emphasis supplied.)
Additionally, the information upon which defendant was tried read in pertinent part as follows:
"Murder First Degree — Felony
"* * * did feloniously, while in the perpetration or attempted perpetration of a breaking and entering of an occupied dwelling with intent to commit larceny, kill and murder one Martin Rueger; contrary to sec. 750.316, CL 1970, as amended; MSA sec. 28.548.”
Larceny in a building is clearly not a necessarily lesser included offense of breaking and entering with intent to commit larceny. People v Huffman, 315 Mich 134, 139-140; 23 NW2d 236 (1946); People v Brager, 87 Mich App 321, 326-327; 273 NW2d 925 (1978), rev’d on other grounds 406 Mich 1004; 280 NW2d 826 (1979); People v Robert Brown, 72 Mich App 749, 750; 250 NW2d 522 (1976); People v Keatts, 54 Mich App 618, 621; 221 NW2d 455 (1974), rev’d on other grounds 396 Mich 803 (1976), although the Supreme Court has stated that it is a cognate lesser offense. People v Brager, 406 Mich 1004; 280 NW2d 826 (1979).
However, the law is confused as to whether larceny in a building is a cognate lesser included offense of breaking and entering. In Huffman, supra, the Supreme Court held that the two offenses were "separate and distinct”. Relying on Huffman, this Court found the two offenses separate and distinct, and thus, not cognate. But in People v Kamin, 405 Mich 482, 496; 275 NW2d 777 (1979), the Supreme Court, without mentioning Huffman, held that larceny was a "cognate lesser included offense of breaking and entering”. This holding was repeated by order of the Supreme Court entered in People v Brager, supra. For further discussion of the conflicting opinions on this question, see People v Stevens, 130 Mich App 1; 343 NW2d 219 (1983).
However, assuming arguendo that larceny is a cognate included offense of breaking and entering, it does not follow that, because defendant attempted to commit a "larceny of any kind”, her conviction can be affirmed. The jury was never instructed that attempted larceny or larceny could be the crime upon which to predicate a finding of felony murder. Thus, she could not have been found guilty based on those offenses:
"The instant jury was not instructed as to the elements of assault with intent to do great bodily harm less than murder. If a jury is not instructed on lesser included offenses, such offenses are, for all practical purposes, excluded from the jury’s consideration. By rendering a verdict absent any instruction by the court as to the elements of the crime, the jury impermissibly usurped the function of the trial judge.” People v Lewis, 91 Mich App 542, 545; 283 NW2d 790 (1979).
"To allow a felony murder conviction upon a finding of an attempt to commit one of the enumerated felonies, an instruction in the nature of CJI 9:1:01 must be given. Without such an instruction, the underlying crime of attempted criminal sexual conduct is removed from the jury’s consideration, see People v Henry, 395 Mich 367, 373; 236 NW2d 489 (1975), and no murder conviction may be based thereon. The conviction of first-degree felony murder must, therefore, be vacated.” People v Horton, 99 Mich App 40, 45-46; 297 NW2d 857 (1980).
The prosecution’s third claim, i.e., that defendant should be deemed to have waived the error since (a) the facts adduced at trial disclosed premeditation and (b) the issue on which reversal is predicated was not raised by defendant and was raised only sua sponte by this Court, must also fall. Though the testimony at trial did contain some evidence of premeditation and deliberation, it must be remembered that defendant was not called upon to defend a charge of first-degree murder predicated upon premeditation and delib eration. Had defendant been charged with first-degree murder based on premeditation and deliberation, she could have defended on grounds that the killing was done in the heat of passion or at least without premeditation. Because defendant had no notice of such a charge, her conviction cannot be based on that theory, even though there was some evidence of premeditation and deliberation.
Nor should the fact that defendant did not raise the error be grounds for not considering the issue on appeal. In Saxton, supra, as in the instant case, the identical defense was not raised at trial. Nevertheless, this Court found that the error required reversal. Having done so in Saxton, no less should be done in the instant case. Further, the majority of this panel having determined in our prior opinion that the issue was not waived, we decline to reverse that position at this late date.
Finally, the prosecution’s request to retry defendant for first-degree murder is rejected. Essentially, this Court determined that the evidence presented at trial was legally insufficient to convict defendant of the charged offense. In such a case, the Double Jeopardy Clause of the United States Constitution bars retrial. People v Bruno, 115 Mich App 656, 661; 323 NW2d 176 (1982); People v McCurtis, 84 Mich App 460, 462-463; 269 NW2d 641 (1978), lv den 407 Mich 893 (1979).
Consequently, this Court did not err by reversing defendant’s conviction for first-degree felony murder and our prior decision in this matter is affirmed.
T. C. Megargle, J., concurred.
People v Whetstone, 119 Mich App 546; 326 NW2d 552 (1982).
Our decision is further supported by the recent Supreme Court opinion in People v Young, 418 Mich 1; 340 NW2d 805 (1983). In Young, the Court held that, prior to the amendment of the first-degree murder statute, 1980 PA 28, when a "burglary” was charged as the aggravating conduct which would support a conviction of first-degree murder, the prosecution was required to prove the historic common-law elements of the offense, i.e., the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony therein. | [
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Michael J. Kelly, J.
Plaintiffs appeal as of right an order of the circuit court granting defendant Design Irrigation, Inc., summary disposition under MCR 2.116(0(10). We reverse.
On December 14, 1990, plaintiff Cheryl Court-right slipped and broke her ankle while attempting to shut off a broken valve of a sprinkler system near her condominium. Defendant Manhatten Condominium Association, Inc., owned the condominium complex in which plaintiffs resided, and defendant P.M. One, Ltd., managed the complex. Defendant Design Irrigation, Inc., was under contract with P.M. One to drain and winterize the sprinkler system.
At the time of the plaintiff’s accident, Design Irrigation had begun the drainage job but had not finished it, leaving some water in the pipes. Freezing temperatures caused some of the pipes to burst, resulting in a small flood. Plaintiff slipped and fell while wading through the water on her way to reach the shut-off valve. Design Irrigation had made no attempt to discover whether P.M. One or Manhatten Condominium Association had finished draining the pipes. Although disputed, there was evidence that Design Irrigation failed to inform P.M. One that it had left the drainage work incomplete.
At issue is whether the evidence presented by plaintiffs created a triable issue of fact regarding Design Irrigation’s liability in tort for plaintiff’s injuries, especially where the alleged breach of duty may be characterized as a breach of contract with P.M. One. In determining whether plaintiffs have a tort action under these circumstances, we note that Michigan law distinguishes between misfeasance and nonfeasance. Hart v Ludwig; 347 Mich 559, 564; 79 NW2d 895 (1956); Freeman-Darling, Inc v Andries-Storen-Reynaert Multi Group, Inc, 147 Mich App 282, 285-286; 382 NW2d 769 (1986). Misfeasance is negligence during performance of a contract. While performing a contract, a party owes a separate, general duty to perform with due care so as not to injure another. Breach of this duty may give rise to tort liability. Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967). The duty to act with due care encompasses the duty to prevent injury from a peril created during performance. See Hart, supra at 565. In contrast, failure to perform a contract altogether constitutes nonfeasance and gives rise only to a suit for breach of contract. Id.
The distinction between misfeasance and nonfeasance is somewhat "difficult to make.” Id. at 564. This is particularly true where, as here, a party begins performance of a contract but does not complete it. Relying in part on Hart, supra, and Freeman-Darling, supra, the trial court found Design Irrigation’s failure to complete the contract indicative of nonfeasance. We disagree.
On this point, § 324A of the Second Restatement of Torts has been accepted as a correct statement of Michigan law. McMiddleton v Otis Elevator Co, 139 Mich App 418, 427-428; 362 NW2d 812 (1984). That section provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking. [2 Restatement Torts, 2d, § 324A, p 142.]
Here, Design Irrigation clearly undertook to perform the service of draining the sprinkler system for P.M. One. This maintenance work was deemed necessary for the protection of the tenants and their property. Moreover, there was evidence that Design Irrigation failed to inform P.M. One that the drainage job was incomplete once it stopped work on the pipes. Whether the drainage work had been completed was a fact not readily ascertainable by P.M. One. Under these circumstances, P.M. One could assume that the work was complete. These facts fit within § 324A(c). See also 2 Restatement Torts, 2d, § 324A, comment e, illus tration 4, p 141. They are also analogous to the facts in Talucci v Archambault, 20 Mich App 153; 173 NW2d 740 (1969), where the defendant failed to remove ice and snow from the walkway of a business, as required by contract. The Court held that the defendant had undertaken to remove the snow and that its failure to do so could be deemed a failure to exercise due care. Id. at 160-161.
Hart, supra, which involved incomplete performance of a contract, is distinguishable. There, the defendant repudiated a contract to maintain an orchard. He did so after completing one season’s work and shortly after beginning the next season’s work. 347 Mich 560. The defendant plainly refused to perform, rather than letting it appear that the job was complete when it was not. Unlike the drainage of underground pipes, the Hart defendant’s failure to maintain the orchard was plainly visible. In short, the plaintiffs there could hardly rely on the defendant to complete performance after the defendant announced his repudiation of the contract.
Freeman-Darling, supra, is also distinguishable. That case involved a delay in performance, not an abandonment of performance that was not readily apparent and that resulted in a hidden danger. 147 Mich App 288.
The trial court erred in concluding as. a matter of law that plaintiffs could not establish a case of misfeasance.
Reversed.
Throughout this opinion, the term "plaintiff” in the singular will be used to refer to plaintiff Cheryl Courtright. | [
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Per Curiam.
Both parties appeal from various orders of the Oakland County Circuit Court entered subsequent to proceedings by defendant to collect on obligations imposed on plaintiff by the property division provisions of a judgment of divorce. All of the proceedings involved on appeal were conducted by the judge who granted the divorce.
The parties were divorced in 1978. As part of the property division, plaintiff was ordered to pay to defendant $85,800, "said sum to be interest free”, at the rate of $300 per week. Apparently, very few payments were made. In 1980, defendant secured a writ of execution on the divorce judgment, claiming that he was owed over $31,000. Plaintiff moved to quash the writ. The writ was quashed in 1981, but a second one was issued by the same court. Levy was made against real property owned by plaintiff in Macomb County, but sale of the property was stayed. Ultimately, the circuit judge held that his court was without jurisdiction to grant the writ of execution sought by defendant, stating that defendant must seek that writ in Macomb County. To preserve the status quo, however, he allowed the previous order of execution and notice of levy on real estate to remain in force and enjoined defendant from selling, assigning, encumbering, destroying, or otherwise disposing of the property in question. This appeal followed. Defendant challenges the trial court’s holding that it lacked jurisdiction to issue execution; plaintiff challenges the decision allowing the notice of levy to remain in place and enjoining her from acting with respect to her property.
The circuit court erred by refusing to recognize its jurisdiction to grant execution on the payment provisions of its divorce judgment. We note first that any circuit court (or other court of record) may issue execution to collect a judgment to the sheriff or other proper officer "of any county of this state”. MCL 600.6001; MSA 27A.6001. See Dewey v Dewey, 151 Mich 586, 587; 115 NW 735 (1908). See also 11 Michigan Law & Practice, Execution, § 3, p 552.
Our Supreme Court has clearly held that a court which grants a divorce has the power to make a judgment for money which is subject to execution for its satisfaction. Bartholomae v Stellwagen, 277 Mich 618, 619; 270 NW 159 (1936); Stellwagen v Stellwagen, 277 Mich 412, 415; 269 NW 216 (1936); McFarlane v McFarlane, 298 Mich 595, 599; 299 NW 728 (1941); Carnahan v Carnahan, 143 Mich 390, 395; 107 NW 73 (1906); St Ana v St Ana, 353 Mich 271, 276-278; 91 NW2d 292 (1958); Wellman v Wellman, 305 Mich 365, 372; 9 NW2d 579 (1943). See also Kavanagh v Kavanagh, 30 Mich App 636, 638-639; 186 NW2d 870 (1971); Corley v Corley, 79 Mich App 499, 502-503; 261 NW2d 65 (1977). See also 2 Michigan Practice, Marriage & Divorce (3d ed), § 1421, p 191. Any barriers to seeking execution without bringing an independent action for a money judgment, see Toth v Toth, 242 Mich 23, 26-27; 217 NW 913 (1928), were brought down by the merger of law and equity. See 2 Michigan Practice, Marriage & Divorce (3d ed), § 1423, pp 192-194. It was clearly within the power of the Oakland Circuit Court to issue the writ of execution sought by defendant. It erred by failing to recognize its power to grant the relief requested. Defendant need not bring an independent action to secure a money judgment against plaintiff on which execution may issue; the court which granted the divorce has the full power to grant a final money judgment subject to execution as part of its judgment. It also has the power to enter money judgments upon motion where appropriate. See St Ana, supra; Corley, supra. See also 2 Michigan Practice, Marriage & Divorce (3d ed), § 1375, p 162. A divorce judgment containing a money judgment need not state specifically that the money judgment may be enforced by execution. The right to execute is implicit in any judgment for money. MCL 600.6001; MSA 27A.6001. See Behrens v Chevrie, 255 Mich 79, 80; 237 NW 551 (1931).
Having decided that the circuit court had the authority to issue the writ of execution sought by the defendant, we need not address the other contentions on appeal. The trial court acted fully within its power in attempting to preserve the status quo in this case. See MCL 600.6104; MSA 27A.6104; 2 Michigan Practice, Marriage & Divorce (3d ed), § 1424, p 194.
Remanded for proceedings consistent with this opinion. | [
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Per Curiam.
Defendant, Jack Faxon, 7th District State Senator, appeals, by leave granted, from the denial of his motion to quash service of process.
Defendant’s motion to quash service of process, following plaintiff Richard Golden’s commencement of suit against him for contract rescission in October, 1981, was based on his constitutional and statutory privilege from civil process during sessions of the Legislature. Const 1963, art 4, § 11 and MCL 600.1831(3); MSA 27A.1831(3). The trial court found that recognition of the privilege in this case would result in a denial of due process to plaintiff, since defendant is a necessary party and since the Legislature adjourned sine die in late December, 1981, thereby making defendant immune from civil process between the 1981 and 1982 legislative sessions. See Bishop v Wayne Circuit Judge, 395 Mich 672, 677; 237 NW2d 465 (1976).
In our judgment, the trial court committed clear error in this case. The constitution and statute provide clearly and unambiguously for the legislators’ privilege from civil process during sessions of the Legislature. While consistent late December sine die adjournments of the Legislature may result in a denial of due process because of the inability to effect service of process on an essential litigant, we find that a single late December adjournment did not cause an unreasonably long period of immunity in this case. Bishop v Wayne Circuit Judge, supra, p 677. Plaintiff has not shown that it will be impossible, within the constraints of Const 1963, art 4, § 11, to effect service of process on defendant and to bring defendant before the court to answer his complaint.
Reversed. No costs, a public question.
Except as provided by law, senators and representatives shall be privileged from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof.
The constitutional provision was amended by the people at the November 2, 1982, general election, effective December 18, 1982. The sole change effected by the amendment was the addition of the prefatory words "Except as provided by law.” There has as of yet been no legislative response to the amendment.
Civil process shall not be served on any senator or representative during sessions of the legislature and for 15 days next before the commencement and after the end of each session. | [
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R. R. Ferguson, J.
Petitioner appeals as of right from an order of the Ingham Circuit Court affirming a decision of the State Tenure Commission (the commission) finding that respondent, a teacher, was not discharged by petitioner for reasonable and just cause. By affirming that order, we put to rest fourteen years of litigation. Unfortunately, we find that a synopsis of the fourteen-year procedural history of this case is required.
Respondent was employed by petitioner during the 1969-70 and 1970-71 school years as a third grade teacher. On March 31, 1971, respondent received a letter from the district’s superintendent of schools informing her that she would not be offered a contract for the next school year, based on her unsatisfactory service as a teacher during her probationary period. Respondent requested a hearing before the school board, which was denied. Respondent then filed a petition for review by the commission on May 27, 1971. That hearing was adjourned after petitioner stipulated to give respondent a hearing as if she were tenured. Petitioner eventually filed twelve written charges against respondent.
A hearing before the school board was held on August 26, 1971. On September 13, 1971, petitioner’s school board voted to dismiss respondent. Respondent petitioned for review by the commission. Because petitioner failed to file a timely answer, the commission ordered that respondent be reinstated. The St. Clair Circuit Court reversed that order on August 24, 1973. This Court affirmed the decision of the St. Clair Circuit Court on appeal and remanded to the commission for consideration on the merits. Henderson v Memphis Community School Dist, 57 Mich App 770; 226 NW2d 725, lv den 394 Mich 763 (1975).
On remand, the commission determined that respondent was not a tenured teacher and, thus, that it had no jurisdiction. Respondent’s petition was dismissed. Respondent appealed to the St. Clair Circuit Court, which ruled that respondent was a tenured teacher.
On remand, following a hearing, the commission determined that respondent had not been discharged for reasonable and just cause, as required by statute, and ordered that she be reinstated with back pay.
On appeal, the Ingham Circuit Court refused to hear arguments on the merit of petitioner’s argument that respondent was not tenured, finding that the St. Clair Circuit Court’s determination of that question was res judicata. The Ingham Circuit Court found the commission’s finding that respondent was not discharged for just and reasonable cause to be based on substantial, competent evidence and affirmed.
Other facts will be related where relevant to the issues addressed herein.
I
On appeal, petitioner contends that respondent was not tenured and that the commission thus had no jurisdiction to act on respondent’s petition. Petitioner further contends that the commission’s determination is not supported by the evidence.
II
Respondent claims that petitioner’s failure to directly appeal the St. Clair Circuit Court’s determination that the commission had jurisdiction over respondent’s claim precludes review of that issue here, after a remand to the commission and a hearing on the merits. We agree that the alleged error in assuming jurisdiction here was one which must be preserved for appeal, but disagree with respondent’s contention that petitioner has failed to preserve this issue.
Error in the determination of questions of law or fact upon which the court’s jurisdiction in a particular case depends, the court having general jurisdiction of the cause and the person, is error in the exercise of jurisdiction. Jackson City Bank & Trust Co v Fredrick, 271 Mich 538; 260 NW 908 (1935). Because respondent’s petition for review to the circuit court alleged facts which would give the commission jurisdiction, any error in finding jurisdiction was error in the exercise of jurisdiction.
Judgments entered pursuant to an erroneous exercise of jurisdiction are not void, but rather are voidable. Jackson City Bank & Trust Co, supra, pp 545-546. "Good faith, as well as sound public policy, demands that erroneous and voidable judgments be set aside and modified in the courts in which they are rendered.” Id.
Petitioner preserved this issue for appeal by contesting the commission’s jurisdiction before the commission and St. Clair and Ingham Circuit Courts. This is not a case in which an appellant has submitted to a lower court’s jurisdiction without contest and then contests that jurisdiction for the first time on appeal to this Court. Cf. Jackson City Bank & Trust, supra; In re Adrianson, 105 Mich App 300, 307-311; 306 NW2d 487 (1981).
We reject respondent’s contention that an attempted appeal to this Court from the St. Clair Circuit Court was required to preserve this issue for appeal. Thus, this Court must determine if the commission had jurisdiction to determine respondent’s claim.
III
The teacher tenure act, MCL 38.71 et seq.; MSA 15.1971 et seq., protects from arbitrary discharge teachers who have completed a probationary period with a school district. At issue here is whether respondent satisfactorily completed a probationary period.
The act defines "teacher” as including "all certificated persons employed for a full school year by any board of education or controlling board of any public educational institution.” MCL 38.71; MSA 15.1971. A person is certificated if he holds a Michigan certificate valid for the position to which he is assigned, with certain exceptions not applicable here. 1979 AC, R 390.661.
"All teachers during the first two school years of employment shall be deemed to be in a period of probation . . . .” MCL 38.81; MSA 15.1981. "No teacher shall be required to serve more than one probationary period in any one school district . . . .” MCL 38.82; MSA 15.1982. "If a teacher on continuing tenure is employed by another controlling board, he shall not be subject to another probationary period for more than 1 year beginning with the date of employment.” MCL 38.92; MSA 15.1992.
"At least 60 days before the close of each school year, the controlling board [must] provide the probationary teacher with a definite written statement as to whether or not his work has been satisfactory. Failure to submit a written statement [is] considered as conclusive evidence that the teacher’s work is satisfactory.” MCL 38.83; MSA 15.1983.
The St. Clair Circuit Court gave three reasons for holding that the commission had jurisdiction: (1) petitioner was estopped from denying respondent’s tenure status after proceeding before the commission as if respondent had tenure; (2) respondent acquired tenure by her previous employment in the Yale School District and satisfactory completion of a one-year probation period with petitioner; and (3) respondent acquired tenure by completing two years of probation with petitioner, the notice of unsatisfactory performance by the superintendent of schools being statutorily defective.
We agree with the trial court on the third ground. The record before the St. Clair Circuit Court was devoid of a record of the vote of petitioner’s board terminating respondent’s employment.
The provisions of the act governing the giving of written notice of unsatisfactory work are interpreted quite literally in favor of the legislative purpose of protecting teachers’ rights. Weckerly v Mona Shores Bd of Ed, 388 Mich 731, 734; 202 NW2d 777 (1972).
MCL 38.83; MSA 15.1983 governs notice to a probationary teacher. The controlling board must give the statutory notice, although the mechanical aspects of giving notice may be carried out by administrative personnel. The controlling board must make the decision as to whether a probationary teacher’s work is satisfactory and whether the probationary teacher’s services are to be discontinued. Official action at a public meeting is required for the decision to be valid and a proper record of the vote must be made. Fucinari v Dearborn Bd of Ed, 32 Mich App 108, 112-113; 188 NW2d 229 (1971) (citing MCL 340.561; MSA 15.3561), see also Dryden v Marcellus Community Schools Bd of Ed, 401 Mich 76; 257 NW2d 79 (1977) (construing in conjunction both MCL 340.561; MSA 15.3561 and MCL 38.83; MSA 15.1983).
Because the minutes of the meeting in which the board allegedly terminated repondent’s employment did not evidence the board’s vote to terminate, we must conclude that the notice from the superintendent of schools was statutorily defective. Specifically, the notice was not supported by the required action of the board. As such, respondent was entitled to employment with tenure upon completion of her second year. MCL 38.83; MSA 15.1983; Munro v Elk Rapids Schools, 385 Mich 618; 189 NW2d 224 (1971).
IV
Finally, we must address petitioner’s claim that the commission’s finding that respondent was not discharged for just and reasonable cause is not supported by the evidence.
On appeal to the commission from an adverse decision of a controlling board, a tenured teacher is entitled to de novo review of all questions of fact and questions of law decided by the controlling board. The school district has the burden of showing reasonable and just cause for discharging the tenured teacher before both the controlling board and the commission. Comstock Public Schools v Wildfong, 92 Mich App 279, 283-285; 284 NW2d 527 (1979).
On appeal from decisions of the commission, reviewing courts must determine whether the decision was supported by competent, material and substantial evidence on the whole record. Beebee v Haslett Public Schools (After Remand), 406 Mich 224, 231; 278 NW2d 37 (1970). Of course, the commission’s decision must not be contrary to law. Const 1963, art 6, §28; MCL 24.306; MSA 3.560(206).
MCL 38.101; MSA 15.2001 provides that "[d]is-charge or demotion of a teacher on continuing tenure may be made only for reasonable and just cause . . . .”
In the instant case, twelve written charges were filed against respondent. The commission found that petitioner had offered insufficient evidence on five charges; the commission found that in the case of three of these charges respondent was never warned that her conduct was unacceptable. The commission could not find that the incidents giving rise to those three charges, dealing with tardiness, tidiness, failure to follow proper channels of communication, and failure to follow proper requisition procedures, represented "either wilful or persistent disobedience.” With regard to charge two, that respondent often appeared in inappropriate attire, the commission found no standard dress code by which to judge respondent. The commission’s findings were supported by the evidence and we agree that wilful or persistent disobedience with knowledge of the board’s rules is required to constitute "just cause” when charges of the aforementioned nature are brought.
Petitioner offered no evidence whatsoever to support two of the charges. With regard to charge seven, which alleged that respondent entered a boys’ locker room, the commission found respondent’s version of events more credible and not indicative of misconduct.
The commission found two allegations, contained among numerous others in charges eight and ten, to be supported by the evidence. Specifically, the police once arrived at school to take respondent in for a speeding ticket and respondent once sent a student home during school hours without first determining that someone would be there when the child arrived.
With regard to the last charge, twelve, the commission assigned little probative value to the elementary principal’s reasons for giving respondent a performance score of three, based on a scale of one to five, based on classroom observation.
Given the innocuous and vague nature of the testimony offered in support of respondent’s discharge, we cannot say that the commission’s determination was not supported by competent, material and substantial evidence or that it was contrary to law.
The commission having jurisdiction to hear respondent’s petition and having properly determined that respondent was not discharged for just cause, the order of the Ingham Circuit Court is affirmed.
Affirmed.
MCL 38.101; MSA 15.2001.
It is clear that a court cannot obtain jurisdiction solely by estoppel. Bandfield v Wood, 104 Mich App 279, 282; 304 NW2d 551 (1981).
With regard to the trial court’s second ground for finding that respondent was a tenured teacher, the following facts are relevant: (1) in 1965-66, respondent taught sixth grade in Yale, holding a valid elementary teaching certificate; (2) in 1966-67, respondent taught sixth grade in Yale but had only a secondary teaching certificate; (3) in 1967-68, respondent taught sixth grade and one eighth grade math class in Yale, but had no certificate for elementary grades until February 28, 1968; this provisional certificate expired on June 30, 1972; (4) in 1968-69, respondent taught in Brown City; and (5) in 1969-70 and 1970-71, respondent taught third grade for petitioner. We express no opinion on whether a combination of any two of the above years of teaching, combined with respondent’s first year with petitioner, would entitle her to tenure for purposes of her employment with petitioner.
Repealed by 1976 PA 451, the School Code of 1976, effective January 1, 1977. See MCL 380.1201; MSA 15.41201. | [
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Per Curiam.
A jury convicted defendant of armed robbery, MCL 750.529; MSA 28.797. Defendant received a sentence of two to fifteen years. We granted leave to appeal in this delayed appeal so we could consider whether a voluntary intoxication defense should have been available to defendant. We affirm.
On August 5, 1991, at about 12:30 a.m., two men in a car robbed a Mobil gasoline station in Sterling Heights. The station attendant, Michael Kluk, identified defendant as one of the robbers. Kluk testified that defendant and another man came into the station together. The other man was never identified. After defendant bought a pack of cigarettes and the other man paid for gas, they left. The other man returned a few minutes later, stuffed about fourteen or fifteen cigarette cartons into a tote bag, and ran out the door. Kluk followed the man. When Kluk warned the man that he was being videotaped by cameras, the man pulled out a gun and threatened to kill Kluk if he did not return inside. Kluk went inside and observed the two men alongside a black Camaro. As Kluk was trying to read the license plate number on the Camaro, he saw defendant throw the plate into the car. Defendant then drove the car away, with the other man in the passenger seat.
Officer David Crown of the Warren Police Department noticed a 1980 Chevrolet Monza without a license plate speeding on Eight Mile Road at about 3:45 a.m. Crown identified defendant as the driver. Defendant’s driving was reckless and exhibited all the indications of a drunken driver. When Officer Crown pulled the car over, however, defendant did not smell of alcohol and was coherent, and Crown concluded he was not intoxicated. Crown detained defendant for traffic violations and because he fit the description of the robber of the gasoline station. When Crown interviewed defendant at the Warren police station, defendant admitted he was in the area of Fifteen Mile Road and Schoenherr that night. Defendant claimed that he had dropped off a hitchhiker at the corner of Fifteen Mile and Schoenherr, and that after defendant bought cigarettes, the hitchhiker jumped back in the car with cartons of cigarettes and told defendant to get out of there. Defendant let the hitchhiker drive while he drank a bottle of wine.
Defendant’s sister, brother, and nephew testified at trial that defendant is an alcoholic and is easily influenced, especially when drunk. Defendant’s brother testified that defendant lived in his car in August 1991. Defendant’s brother also stated that when he saw defendant earlier in the evening of August 5, 1991, defendant was drunk.
A major issue at trial was how well Kluk, the only eyewitness, could see the event. Conflicting testimony was presented regarding how many panes of glass Kluk had to look through and regarding the presence of obstructions to Kluk’s view of the pertinent gasoline pump and of defen dant. The tried occurred in late February 1992. The trial court gave a cautionary instruction regarding changed weather and time-of-day conditions before the prosecution showed a videotape of the crime scene. After beginning deliberations the following day, the jury was allowed to view the crime scene over defense counsel’s objection. The next day, the jury found defendant guilty of armed robbery.
First, defendant argues that, because aiding and abetting armed robbery is a specific intent crime, he was entitled to receive a jury instruction regarding voluntary intoxication. We disagree.
The elements of an armed robbery are (1) an assault and (2) a felonious taking of property from the victim’s person or presence while (3) the defendant is armed with a weapon described in the statute. People v Allen, 201 Mich App 98, 100; 505 NW2d 869 (1993). Armed robbery is a specific intent crime for which the prosecutor must establish that the defendant intended to permanently deprive the owner of property. People v Fordham, 132 Mich App 70, 75; 346 NW2d 899 (1984), rev’d on other grounds 419 Mich 874 (1984). The defense of intoxication will negate the specific intent element of the crime charged if the degree of intoxication is so great as to render the accused incapable of entertaining the intent. People v Savoie, 419 Mich 118, 134; 349 NW2d 139 (1984). Voluntary intoxication is a defense only to a specific intent crime. People v Langworthy, 416 Mich 630, 638; 331 NW2d 171 (1982).
If defendant had been charged as the principal in this armed robbery, the defense of intoxication would have been available to him upon a proper showing that he was intoxicated. Fordham, supra at 75; Savoie, supra at 134; Langworthy, supra at 638. However, in People v Karst, 138 Mich App 413, 416; 360 NW2d 206 (1984), this Court defined two types of aiding and abetting: (1) where the aider and abettor himself possesses the requisite specific intent for the underlying crime and (2) where the aider and abettor knows that the principal has the requisite intent. Id. Voluntary intoxication was held not to negate the latter:
Where the offense is a specific intent crime, as here, voluntary intoxication of the defendant would be a defense to the first type, aiding and abetting with [specific] intent. However, we agree with the trial court that voluntary intoxication of the defendant is not a defense to the second type, aiding and abetting with knowledge, because this knowledge element is only a general intent, not a specific intent requirement.
. . . Therefore, notwithstanding that the substantive offense involved herein is a specific intent crime, defendant’s voluntary intoxication was not a defense to conviction as an aider and abettor having knowledge of his coparticipants’ possession of the requisite specific intent. [138 Mich App 415-416.]
After Karst, the Michigan Supreme Court decided People v Kelly, 423 Mich 261, 278; 378 NW2d 365 (1985). In Kelly, our Supreme Court addressed the jury instruction for aiding and abetting a felony murder. The Supreme Court declined to review the actual instruction because the defendant had failed to preserve that issue for review. Id. at 280. Regarding the two types of aiding and abetting, the Supreme Court stated:
The requisite intent is that necessary to be convicted of the crime as a principal. Meister v People, 31 Mich 99 (1875). In this instance, under [People v Aaron, 409 Mich 672; 299 NW2d 304 (1980)], it therefore must be shown that the aider and abettor had the intent to kill, the intent to cause great bodily harm or wantonly and willfully disregarded the likelihood of the natural tendency of his behavior to cause death or great bodily harm. Aaron, 409 Mich 733. Further, if the aider and abettor participates in a crime with knowledge of the principal’s intent to kill or cause great bodily harm, he is acting with "wanton and willful disregard” sufficient to support a finding of malice under Aaron. This result is in accord with numerous decisions reached by the Court of Appeals over a considerable period of time. [423 Mich 278-279.]
Defendant argues that Kelly implicitly overrules Karst. We disagree.
Unlike this case, Kelly involved a general intent crime. In Kelly, the Supreme Court addressed the intent of an aider and abettor for the murder in a count of felony murder. Unlike armed robbery, felony murder is not a specific intent crime because it does not require the intent to kill. In re Robinson, 180 Mich App 454, 462; 447 NW2d 765 (1989). This Court has applied Kelly only to the general intent requirement of felony murder. People v Flowers, 191 Mich App 169; 477 NW2d 473 (1991).
Rather than overruling the prior holdings of this Court, Kelly states that its result is "in accord with numerous decisions reached by the Court of Appeals.” Id. at 279. In many of those prior decisions, this Court stated that an aider and abettor can either possess the same intent as the principal or know that the principal possesses that intent. People v Schaffer, 129 Mich App 287, 290-291; 341 NW2d 507 (1983); People v Davenport, 122 Mich App 159, 164; 332 NW2d 443 (1982); People v Harris, 110 Mich App 636, 642-643; 313 NW2d 354 (1981); People v Wirth, 87 Mich App 41, 46-47; 273 NW2d 104 (1978).
This Court has previously held that Kelly did not overrule the doctrine that the intent requirement for aiding and abetting may be fulfilled if the aider and abettor only had knowledge of the principal’s intent. People v Buck, 197 Mich App 404, 425; 496 NW2d 321 (1992), rev’d in part on other grounds People v Holcomb, 444 Mich 853 (1993). This Court determined that Kelly did not address this issue. Buck, supra at 425. In the absence of a Supreme Court ruling clarifying the intent required of aiders and abettors, we reaffirm our consistent holding that aiders and abettors can be liable for specific intent crimes if they possess the specific intent required of the principal or if they know that the principal has that intent.
Karst is consistent with our holding. The knowledge element is merely a general intent requirement imposed to prevent an innocent participant from becoming an aider and abettor. Id. at 416; People v Watts, 133 Mich App 80, 83; 348 NW2d 39 (1984). In this case, because defendant was tried for aiding and abetting an armed robbery with knowledge that the principal had the specific intent to rob, he was not entitled to a voluntary intoxication instruction. Contrary to defendant’s assertions, voluntary intoxication is not a defense to a general intent crime. Langworthy, supra at 641. Because we hold that defendant was not entitled to a jury instruction regarding voluntary intoxication, we will not address whether the evidence supported his intoxication defense.
Next, defendant claims that the trial court abused its discretion in allowing the jury to view the crime scene under dramatically different conditions and without a cautionary instruction regarding changed conditions. Defendant also argues that' he was prejudiced because he was not informed of his right to be present at the jury view. Although defense counsel objected to the jury view, he did not request a cautionary instruction, either before or after the jury went to the scene. Appellate review is thus precluded absent manifest injustice. People v Phillips, 61 Mich App 138, 151-152; 232 NW2d 333 (1975).
Permitting the jury to view a crime scene is within the trial court’s discretion. MCL 768.28; MSA 28.1051; People v Mallory, 421 Mich 229, 245; 365 NW2d 673 (1984), appeal after remand 168 Mich App 255; 423 NW2d 637 (1988). A crime scene properly can be viewed despite changed conditions where the jury has been properly apprised of the changes. Id. at 245.
The trial court sent the jurors to the crime scene with a court officer on the afternoon of February 26, 1992. The previous day, the trial court gave a cautionary instruction regarding changed conditions when the jury viewed a videotape of the crime scene. We find no manifest injustice in permitting the jury to view the scene under these circumstances. The trial court had warned the jurors of the changed conditions the previous day. From the cautionary instruction and the application of common sense, the jurors could infer that weather and lighting conditions would be different for a February afternoon and an August evening. Id.
Defendant then argues that the trial court’s failure to inform him of his right to be present at the jury view denied him an opportunity to assist in his own defense. Defendant did not request to be present at the jury view, and no record was made to indicate whether defendant affirmatively waived this right.
An accused defendant in custody has the fundamental right to be present at every stage of trial where his substantial rights may be affected, in- eluding a jury view of the crime scene. Id. at 247. A defendant may waive his right to be present at a jury view (1) by affirmative consent, (2) by failure to appear at the view when he is at liberty to, or (3) by disorderly or disruptive conduct at trial precluding continuation of the trial in his presence. Id. at 248. None of these applies in the instant case.
This Court reviews a criminal defendant’s absence from part of a trial to ascertain whether" there is any reasonable possibility of prejudice. People v Woods, 172 Mich App 476, 480; 432 NW2d 736 (1988). Defendant asserts that his presence was required at the jury view so that he could inform the jury about the changed conditions. As we stated above, the jury instruction given the previous day combined with the common sense of the jurors would achieve that result. Because defendant failed to demonstrate how he was prejudiced, we find no error. Id.
Defendant maintains that the trial court erred in permitting one of Kluk’s coemployees to testify as a rebuttal witness. Because defendant failed to object to the admission of this evidence, this Court will review the issue only for manifest injustice. Kelly, supra at 281.
Rebuttal evidence is limited to refuting, contradicting, or explaining evidence presented by the other party. People v Leo, 188 Mich App 417, 422; 470 NW2d 423 (1991). The general rule is that the prosecutor cannot introduce evidence on rebuttal that could have been introduced in the people’s case in chief. People v Losey, 413 Mich 346, 351-352; 320 NW2d 49 (1982).
In this case, defendant’s only witnesses were his sister, brother, and nephew. Their testimony concerned defendant’s alcoholism and mental deficiencies. The prosecution’s rebuttal witness, Paul Sundberg, testified about the physical layout of the Mobil station. Because the prosecutor’s rebuttal evidence neither referred to evidence presented by defendant nor impeached any defense witnesses, admission of this evidence was improper.
However, admission of this evidence did not result in manifest injustice, to defendant. The rebuttal evidence was almost identical to the evidence introduced in the prosecution’s case in chief. Sundberg reiterated Kluk’s description of the store layout. Because the jury had already heard another witness give the same information, exclusion of the rebuttal evidence would not have altered the verdict. People v DeLeon, 103 Mich App 225, 230; 303 NW2d 447 (1981).
Finally, defendant argues that three remarks by the prosecutor during closing argument constituted misconduct. In all three of the remarks now challenged by defendant, the prosecutor merely was responding. to arguments raised by defense counsel. No misconduct occurred. People v Simon, 174 Mich App 649, 655; 436 NW2d 695 (1989).
In conclusion, we find that Kelly did not implicitly overrule Karst A defendant may be convicted as an aider and abettor in a specific intent crime if he participated in the crime and either possessed the specific intent to commit the crime or knew that the principal possessed that intent. Because this knowledge element is merely a general intent requirement, , defendant is not entitled to a voluntary intoxication defense. If defendant had possessed the specific intent to commit the crime, then voluntary intoxication would be available as a defense.
We also find that the trial court’s failure to inform defendant that he could be present at the jury view of the crime scene did not prejudice defendant’s right to a fair trial. Although the trial court did err when it allowed Paul Sundberg to testify as a rebuttal witness, this error did not result in manifest injustice. Finally, the prosecutor’s statements during closing argument did not constitute misconduct because he was only responding to the remarks of defense counsel.
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Michael J. Kelly, J.
Defendant appeals as of right an order of the circuit court finding unconstitutional certain portions of a Ferndale ordinance regulating massage establishments and massagists. We vacate the circuit court’s order and hold that the entire ordinance is unenforceable because the regulation of massagists has been preempted by the Occupational Code, MCL 339.101 et seq.; MSA 18.425(101) et seq., and in particular by its provisions regarding the practice of myomassology, MCL 339.1701 et seq.; MSA 18.425(1701) et seq.
At issue is Ferndale’s Ordinance No. 832, amended by Ordinance No. 836. Section 7-247(a) and (b) of the ordinance require both massage parlors and massagists to obtain valid city permits in order to practice their trade. Sections 7-249 and 7-250 set forth the requirements for obtaining such licenses. An applicant must show proof of gradúa tion from a "recognized school” that taught massage. Section 7-249(m). A "recognized school” includes
any school or educational institution licensed to do business in the state in which it was located, or any school recognized by . . . the American Massage and Therapy Association, Inc., and which has for its purpose the teaching of . . . massage. [Section 7-246(k).]
Section 7-266 specifies several unlawful acts involving the practice of massage. Section 7-266(a) prohibits massagists from treating persons of the opposite sex except upon the signed order of a licensed physician, chiropractor, or physical therapist. Massage establishments are required to keep specific records of any such intergender massages, and such records are subject to inspection by police. Section 7-266(b) prohibits any person in a massage establishment from touching sexual, genital, and sensitive parts of the anatomy. Section 7-266(c) prohibits any person in a massage establishment from "exposing his or her sexual or genital parts ... to any other person.” Under § 7-266(d), it is illegal for persons in massage establishments "to fail to conceal with a fully opaque covering, the sexual or genital parts of his or her body.” Section 7-265 authorizes the chief of police to make inspection of massage establishments from time to time for purposes of determining compliance with the ordinance. That section also makes it unlawful for any licensee to hinder such inspection in any manner.
Section 7-261 prohibits anyone under eighteen years of age from being on the premises of a massage establishment. Under § 7-255(b), proof of identity must be shown by every patron of a massage establishment.
Plaintiffs, who are massagists and operators of massage establishments, sued defendant under 42 USC 1983 and 42 USC 1988, alleging that these portions of the Ferndale ordinance deprived them of constitutionally protected rights. The circuit court found that the state statute regulating the practice of myomassology was not pervasive enough to evidence a legislative intent to preempt the Ferndale ordinance. However, the court found several provisions of the ordinance unconstitutional.
We believe the circuit court erred in its analysis of the preemption issue. In Michigan, the principle of preemption precludes a municipality from enacting an ordinance where (1) the ordinance is in direct conflict with the state statutory scheme, or (2) the state statutory scheme "pre-empts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation.” People v Llewellyn, 401 Mich 314, 322; 257 NW2d 902 (1977), cert den sub nom East Detroit v Llewellyn, 435 US 1008 (1978).
Certain guidelines are used in determining whether the state has preempted a given field of regulation. First, preemption occurs where the state law expressly provides that its authority to regulate in a specified area of law is exclusive. Id. at 323. That is not the case here. Second, preemption may be implied from an examination of legislative history. Id. Third, the pervasiveness of the state regulatory scheme may indicate an intent to preempt. Id. Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to achieve the state’s purpose. Id. at 324. Where the nature of the subject matter regulated calls for a uniform state regulatory scheme, supplementary local regulation is preempted. Id. at 325. Where the subject matter of the local ordinance involves the potential restriction of important civil liberties, protection of the people’s civil liberties requires that the state retain sole control of such regulation. Id.
Our review of the Occupational Code, which includes the state regulations on myomassology, MCL 339.1701 et seq.; MSA 18.425(1701) et seq., indicates a pervasive and comprehensive scheme to provide statewide licensing and regulation of over twenty various professions. Under the Occupational Code, the Department of Licensing and Regulation is empowered to issue licenses to practice in these professions pursuant to the requirements set forth in the statute and to additional rules and standards of acceptable practice set by the various boards formed under the code, including the Board of Massage. MCL 339.202; MSA 18.425(202); MCL 339.308; MSA 18.425(308). The roles of the department and the boards are extensive under the statutory scheme and include the power to set licensing standards for occupational schools and individuals, to set license fees, to hold investigations and hearings, to revoke licenses, to assess penalties, and to prosecute actions against violators. See MCL 339.202-339.605; MSA 18.425(202)-18.425(605).
Licensing and regulation of massagists ("myomassologists”) and massage establishments is provided under §§ 1701-1707 of the Occupational Code. Section 1702, MCL 339.1702; MSA 28.425(1702), creates the Board of Massage. Section 1703, MCL 339.1703; MSA 18.425(1703), sets forth license requirements. Section 1704, MCL 339.1704; MSA 18.425(1704), lists prohibited acts. It also allows department inspectors to visit and enter massage establishments during business hours in order to inspect the business and its records for compliance with state laws and regulations.
The state statute not only establishes rules in many of the same areas addressed by the Ferndale ordinance — e.g., educational requirements, license fees, and inspection of the business premises and records — but it also empowers the board to establish additional regulations that conceivably could affect any aspect of the practice of massage. In short, the scope of the statute is comprehensive and highly pervasive. Further, the nature of the subject matter regulated (i.e., the practice of a chosen occupation) involves an important civil liberty and calls for a uniform regulatory scheme. See Greene v McElroy, 360 US 474, 492; 79 S Ct 1400; 3 L Ed 2d 1377 (1959); Llewellyn, supra at 325. In fact, the overriding concern that fueled the passage of the Occupational Code was to bring uniformity and order to the existing rules and procedures. See House Legislative Analysis, HB 4114, November 12, 1980. We therefore hold that the Occupational Code preempts the Ferndale ordinance in its entirety.
The circuit court’s analysis of the preemption issue also included an alternative finding, that the issue was moot because the statute regulating the practice of massage, enacted in 1980, was never implemented. However, the lack of implementation represents a failure by the executive branch to carry out legislative intent. It has no weight in the determination whether the Legislature intended to occupy the regulated field, which is the dispositive issue in preemption cases. See Llewel lyn, supra at 321. See also Local No. 1, Broadcast Employees of Int'l Brotherhood of Teamsters v Int'l Brotherhood of Teamsters, 419 F Supp 263, 277 (ED Pa, 1976); Serrano v Serrano, 213 Conn 1, 5; 566 A2d 413 (1989); Loma Portal Civic Club v American Airlines, Inc, 61 Cal 2d 582, 591; 394 P2d 548 (1964). Also immaterial is the contention by the Department of Licensing and Regulation that the statute is "defective.” We know of no case law finding the statute defective and of no authority allowing the department to make such a legal determination itself. Similarly, we do not believe that the department can single-handedly nullify the Legislature’s intent to occupy the field of massage regulation simply by referring potential license applicants to local officials.
We acknowledge the danger that our holding regarding the preemption issue effectively leaves the practice of myomassology unregulated. We also acknowledge that the City of Ferndale has legitimate interests in the area that are not being addressed adequately at the state level. However, the Legislature has spoken, and it is clear that it has opted to occupy the field of massage regulation. If the Legislature no longer intends that the state should preempt the field, it should indicate so by way of amendment of or repeal of the statute. Otherwise, it can take issue with the executive branch for failing to implement the legislative scheme. Either way, it is not the prerogative of the City of Ferndale to pick up the ball merely because the executive and legislative branches have dropped it.
Because of our holding regarding the preemption issue, we need not address the alleged constitutional violations.
The order is vacated and this matter is remanded for entry of an order consistent with this opinion. We do not retain jurisdiction.
Murphy, P.J., concurred.
Saad, J., concurred in the result only._
The term "myomassologist” is defined simply as "a person who offers the person’s services for hire in the practice of massage.” MCL 339.1701(c); MSA 18.425(1701)(c). The use of the special term "myomassology” in the statute does not render the focus of the statute any narrower than that of the Femdale ordinance. Both deal generally with the practice of massage.
The statements concerning the state statute being "defective” and referring potential license applicants to local officials appear in a letter issued by the department in response to inquiries regarding the practice of massage.
Of course, other state and local laws are still available to prevent the use of "massage establishments” as houses of ill repute. For example, counsel for the City of Ferndale noted at oral argument that the business of plaintiff The Loving Touch, Inc., has been padlocked because of unlawful sexual conduct on the premises.
In fact, as of 1988, the Legislature apparently had not yet changed its mind. In 1988 PA 463, the Legislature amended MCL 339.1707; MSA 18.425(1707), which deals with reciprocal recognition of myomas sology licenses from other states. It also repealed MCL 339.1706; MSA 18.425(1706), which related to the form of license applications for myomassology. The Legislature left all other provisions regarding myomassology intact. | [
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Per Curiam.
Respondent Commissioner of Insurance appeals as of right from the Oakland County Circuit Court’s June 9, 1982, order reversing the commissioner’s decision in a contested case.
On September 28, 1978, petitioner filed with the Michigan Insurance Bureau a master policy, certificate of insurance, and associated forms and documents for a new type of credit insurance known as "joint credit life insurance”. This form of credit insurance is sold to joint debtors and provides that if either codebtor dies during the term of the loan, the insurer will pay the outstanding balance to the creditor.
Petitioner’s filing was made pursuant to § 12 of the Credit Insurance Act, MCL 500.601 et seq.; MSA 24.568(1) et seq. Petitioner set the proposed premium for the insurance at $1 per $100 of original indebtedness. Under §§ 13 and 14 of the act, an insurer may begin selling a proposed policy after the expiration of 30 days following the filing, unless the commissioner disapproves the filing within the 30-day period. Under § 13, the commissioner may disapprove the proposed policy within the 30-day period if he determines that "the benefits provided therein are not reasonable in relation to the premium charge * *
In this case, the commissioner did not disapprove the filing within the 30-day period and petitioner became authorized to sell the policy by operation of law. On April 3, 1979, the commissioner notified petitioner that he intended to withdraw approval of the policy because the premium charged was excessive in relation to the benefits provided. This action was taken pursuant to § 15 of the act, MCL 550.615; MSA 24.568(15), which provides:
"The commissioner, at any time after a hearing, of not less than 20 days written notice to the insurer, may withdraw his approval of any such form on any of such grounds.”
Following an extensive hearing, the hearing officer entered a proposal for decision recommending that approval of petitioner’s $1 per $100 premium be withdrawn and that the maximum premium be $.85 per $100. On February 6, 1980, the commissioner entered an opinion and final order substantially adopting the hearing officer’s findings, but further reducing the premium to $.80 per $100 of indebtedness.
Petitioner filed a petition for review in the Oakland County Circuit Court and an ex parte temporary restraining order was issued on March 3, 1980, allowing petitioner to continue charging the higher rate pending the circuit court’s decision. Respondent’s subsequent motion to dissolve the temporary restraining order was denied. On May 21, 1982, the court entered an opinion reversing the commissioner’s decision. The court held that, since the proposed joint credit life insurance was a new type of policy, the commissioner was required to establish a prima facie rate (i.e., a rate presumed to be reasonable and applicable to all insurers), pursuant to the rule-making procedures of the Administrative Procedures Act and not by way of a contested case proceeding. The circuit judge was of the opinion that the standard for determining the reasonableness of petitioner’s pro posed premium had to be established by rule before the hearing and not by a standard to be set as a result of the contested case hearing. A final order was entered on June 9, 1982.
The issue is whether the circuit court erred in requiring the commissioner to promulgate rules setting a reasonable premium for the policy proposed by petitioner and in prohibiting the commissioner from using a contested case proceeding to determine if the premium proposed by petitioner was reasonable in relation to the benefits provided. We find that the circuit court did so err, and remand the case for a determination on the merits of petitioner’s petition for review concerning the proper premium to be charged.
The United States Supreme Court has held that administrative agencies have discretion to set standards by adjudicating individual cases rather than through formal rule-making procedures. Securities & Exchange Comm v Chenery Corp, 332 US 194; 67 S Ct 1575; 91 L Ed 1995 (1947); Nat'l Labor Relations Board v Bell Aerospace Co, Div of Textron, Inc, 416 US 267; 94 S Ct 1757; 40 L Ed 2d 134 (1974). This principle has recently been recognized by panels of this Court. In DAIIE v Comm’r of Ins, 119 Mich App 113, 117-118; 326 NW2d 444 (1982), the Court stated:
"[A]n administrative agency need not always promulgate rules to cover every conceivable situation before enforcing a statute. Specifically, an administrative agency may announce new principles through adjudicative proceedings in addition to rule-making proceedings. The United States Supreme Court stated in Securities & Exchange Comm v Chenery Corp, 332 US 194, 202; 67 S Ct 1575; 91 L Ed 1995 (1947):
" 'Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity.’ ”
Accord, Michigan Life Ins Co v Comm’r of Ins, 120 Mich App 552; 328 NW2d 82 (1982).
This principle is consistent with § 22 of the Credit Insurance Act,. MCL 550.622; MSA 24.568(22), which places discretion in the commissioner to adopt rules and regulations "as he deems appropriate for the supervision of the act”.
The commissioner was authorized pursuant to § 15 of the act to withdraw his approval of the premium upon a determination, arrived at through a contested case proceeding, that the premium rate charged by petitioner was excessive. We find nothing in the act which would require the commissioner to promulgate a rule establishing a reasonable premium prior to taking action against a particular insurer pursuant to § 15. We agree with the commissioner that it would be wholly unrealistic to require that premiums be set by the rule-making procedures of the APA. Insurance companies in Michigan propose scores of different kinds of insurance policies, the provisions of which are affected by a myriad of variables. If premiums are required to be set by rule, every premium rate for every kind of insurance in Michigan would be subjected to the elaborate rule-making procedures of the APA, and once the premiums were set, they could not be changed except through rule-amendment procedures. The credit insurance act clearly does not envision such a process.
One final observation concerning the position taken by petitioner and the circuit court is in order. The underlying premise of that position is that the commissioner circumvented the rule-making requirements of the APA by establishing a prima facie rate in a contested case. This premise reflects a basic misconception regarding the meaning of a rule under the APA and the function of a prima facie rate.
Section 107 of the APA, MCL 24.207; MSA 3.560(107), provides that a rule is a "statement, standard, policy, ruling or instruction of general applicability”. The APA definition of a rule expressly excludes any "order establishing or fixing rates”, MCL 24.207(c); MSA 3.560(107)(c), and any "determination, decision or order in a contested case”, MCL 24.207(f); MSA 3.560(107)(f). The commissioner’s decision to disapprove a particular insurer’s premium following a hearing as provided in § 15 of the Credit Insurance Act is not a ruling of general applicability and is not a rule within the meaning of the APA. The rate decision in a contested case is binding only upon the particular insurer or insurers involved.
The circuit court found that the commissioner’s decision in this contested case had the effect of setting a prima facie rate for all insurers. However, a prima facie rate is simply a rate which the insurance bureau will accept for filing without detailed actuarial support. It is a practical mechanism which benefits the insurance industry by avoiding the requirement of a detailed actuarial analysis each time a proposed premium is filed. It is simply an expression by the insurance bureau that it will not contest rate filings which fall below that level. The prima facie rate is not binding in the sense that any insurer may propose a higher premium and litigate the matter through a contested case hearing. Contrary to the circuit court’s opinion, there is no requirement that prima facie rates be established pursuant to the rule-making procedures of the APA. Rather, prima facie rates are the logical result of the commissioner’s determinations in individual contested cases.
The order of June 9, 1982, is reversed and the matter is remanded to the circuit court for a determination on the merits of petitioner’s petition for review.
Reversed and remanded.
Because the proposed policy was being offered for the first time in Michigan, there was no prior experience upon which the proposed premiums could be based. Petitioner therefore based its proposed premiums on estimated factors. The filing was required to be and was accompanied by actuarial data prepared by petitioner.
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W. R. Peterson, J.
This is a workers’ compensation dispute between two insurers, one of which, Citizens Insurance Company, was the employer’s insurance carrier at the time plaintiff was injured in an industrial accident and which, when plaintiff later became unable to work, paid benefits for a number of years. When plaintiff subsequently filed an amended petition alleging total and permanent disability, Citizens filed a petition for determination of rights, alleging that his disability did not arise from the original injury but from a subsequent aggravation thereof. If true, Employers Mutual of Wausau, the employer’s insurer when plaintiff’s employment terminated, would be solely responsible for the payment of benefits, hence Citizens’ petition sought reimbursement from Employers for the benefits it had paid to plaintiff.
This appeal, on leave granted, presents two factually related questions. The first is as to the date of injury within the meaning of the Worker’s Disability Compensation Act, the determination thereof establishing responsibility as between the different carriers who were on risk for the employer during the employment period in question. The WCAB answered the question in favor of Citizens, finding that a specific injury to plaintiff, caused by an industrial accident, had been aggravated by the physical exertion of plaintiff’s job duties thereafter, and fixing the date of injury as plaintiff’s last day of employment.
That determination, making Employers Mutual responsible for the payment of benefits, presented the second question. When one insurer (Citizens) has paid benefits that should have been paid by another (Employers Mutual), does the "one-year-back” rule apply to the claim of the first insurer for reimbursement from the second?
In a divided opinion, the WCAB answered the second question in the affirmative, limiting Citizens’ right of reimbursement to the period commencing one year prior to its making of the claim. Having concluded that the WCAB wrongly determined the date of injury, we reverse without consideration of the second question, The correct date of injury fixes the liability of Citizens for all benefits. _
There is no question as to plaintiffs disability or that it results from degenerative disc disease of the lower spine caused by an industrial accident.
Plaintiff commenced work for Pigeon Manufacturing Company in 1968. On February 13, 1969, an overhead spot welder assembly, weighing about 700 pounds, collapsed. It struck plaintiff a glancing blow across the lower back and right leg and ankle, throwing him to the floor and knocking him out. He was hospitalized briefly and off work for a few days. '
Plaintiff was referred to the Pigeon Clinic by his employer and was treated there for his injuries during the period from February 14, 1969, until March 11, 1969. When plaintiff returned to work, he was assigned to favored employment for an undisclosed period of time before resuming his regular work as a spot welder. On February 4, 1970, he again returned to the Pigeon Clinic with complaints of back and leg pain. In March he was referred to the Bay Neurosurgical Clinic where a myelogram disclosed a markedly herniated disc at L4-L5. A laminectomy was performed and the disc was removed by Dr. Z. E. Taheri. Subsequently, he was seen by Dr. Walker and then by Dr. James A. Devlin, who performed a second operation on plaintiffs lower spine late in 1970. The WCAB found plaintiff justified in declining further at tempts at spinal surgery to alleviate his symptoms and stabilize his back. His last day of work at Pigeon Manufacturing was March 3, 1970.
Michigan has adopted the view previously stated in 3 Larson, Workmen’s Compensation Law, § 95.12, pp 508.130-508.133, now found at 4 Larson, Workmen’s Compensation Law, § 95.12, pp 17-71— 17-78, and cited in Mullins v Dura Corp, 46 Mich App 52, 55-56; 207 NW2d 404 (1973), and Dressler v Grand Rapids Die Casting Corp, 402 Mich 243, 253-254; 262 NW2d 629 (1978):
"The Massachusetts-Michigan rule in successive-injury cases is to place full liability upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability.
"If the second injury takes the form merely of a recurrence of the first, and if the second incident does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. In this class would fall most of the cases discussed in the section on range of consequences in which a second injury occurred as the direct result of the first, as when claimant falls because of his crutches which his first injury requires him to use. This group also includes the kind of case in which a man has suffered a back strain, followed by a period of work with continuing symptoms indicating that the original condition persists, and culminating in a second period of disability precipitated by some lift or exertion.
"On the other hand, if the second incident contributes independently to the injury, the second insurer is solely liable, even if the injury would have been much less severe in the absence of the prior condition, and even if the prior injury contributed the major part to the final condition. This is consistent with the general principle of the compensability of the aggravation of a preexisting condition.”
The applicability of the rule has been blurred . somewhat by the willingness of the Michigan courts to treat a physical deterioration following an original injury as an "injury not attributable to a single event” if there is evidence indicating that the physical demands of the employment aggravated the original injury. Gilbert v Reynolds Metals Co, 59 Mich App 62; 228 NW2d 542 (1975); Hughes v Lakey Foundry Corp, 91 Mich App 170; 284 NW2d 135 (1979); Dressler v Grand Rapids Die Casting, supra. Indeed, as noted in Derwinski v Eureka Tire Co, 407 Mich 469; 286 NW2d 672 (1979), degenerative disc disease can develop from the prolonged wear and tear of heavy lifting without any single traumatic injury.
It is not easy, then, to determine the date of injury as to any given back condition resulting in disability and to know whether the case is governed by Mullins or by Gilbert.
The date of injury is a question of fact, Porter v Great Lakes Steel, 114 Mich App 293, 298; 318 NW2d 646 (1982), and the findings of fact of the WCAB are conclusive if there is any competent evidence to support them. MCL 418.861; MSA 17.237(861); Johnson v Vibradamp Corp, 381 Mich 388; 162 NW2d 139 (1968); Braxton v Chevrolet Grey Iron Foundry Div of General Motors Corp, 396 Mich 685; 242 NW2d 420 (1976).
The specific finding of the WCAB herein was that plaintiff sustained an injury in 1968 which was worsened by aggravation in the performance of his duties of employment. That finding was based, it was said, on the plaintiff’s testimony and that of the experts.
Plaintiff’s testimony was that he suffered pain in his lower back and right leg after the 1969 acci dent for which he was treated at the Pigeon Clinic. He did not discontinue his visits to the clinic because he felt better but because he became angry because the clinic doctors did not believe his complaints of back pain. He went thereafter to see his personal physician, Dr. Sorenson. He testified that, although he went back to work, he was never free of pain in his lower back and right leg.
While plaintiff was easily led by the attorneys and said that the pain was "on and off” and that it bothered him in bending and lifting, he was consistent in his testimony that this had been a continuous condition since the 1969 accident. It is clear that there was no specific incident in 1970 to add to his existing condition, and nowhere in his testimony did he say or suggest that the pain gradually worsened or that his condition when he finally went back to the Pigeon Clinic was worse than it had previously been. To the contrary, his testimony seems clear that the condition was constant and that he simply reached the point on February 4, 1970, where he had had enough and was not content to put up with it any longer.
Nor can we find that the testimony of the experts proved a worsening of plaintiffs condition caused by his employment duties. Dr. Charles Townley saw plaintiff in 1975 and testified shortly thereafter. His testimony focused on plaintiff’s employability at that time and whether surgery for a third time was appropriate. He was not asked for, nor did he give, an opinion bearing on the date of injury. The same was true as to Dr. Max Newman, who also saw plaintiff in 1975.
During plaintiffs treatment at the Pigeon Clinic in 1969, he was treated by three different physicians, none of whom testified. Another physician affiliated with the clinic and who saw plaintiff in 1970, Dr. Robert Willits, was allowed to testify as to the 1969 conclusions of his colleagues from their notes, which notes were made an exhibit. The February 14, 1969, notation of admitting diagnosis was "contusion, lumbo-sacral area”. It appears that medication had been prescribed when plaintiff was taken to the hospital on the 13th, and the only other treatment over the next three and a half weeks consisted of diathermy treatments. A notation that X-rays showed no abnormality in the lumbo-sacral spine is not persuasive that there was an absence of disc pathology since a similar report appears in the clinic notes as to X-rays taken at the clinic in 1970 when there was in fact such pathology which necessitated spinal surgery shortly thereafter. Likewise, testimony by Dr. Willits that Dr. Dixon, who saw plaintiff on February 14, made no notation of muscle spasm in the lower back and would have done so had he found any is not persuasive that the accident was not sufficiently traumatic to the spine to cause spasm since the clinic notes of the examining physician on March 11th indicates "back quite tender”, a condition that Dr. Willits said was indicative of spasm.
The WCAB pointed to testimony of Dr. Willits that it was possible for work such as plaintiff performed to exacerbate and contribute to the condition of plaintiffs lower back. That is not quite what Dr. Willits said, and the acknowledgment of a mere possibility is not, in any event, proof of actuality. Nor do we find in the 1969 clinic notes the proof that the WCAB says is found therein of "an entirely new plateau of impairment” by 1970. The clinic’s referral of plaintiff to the Bay Neurosurgical Clinic for a myelogram in March, 1970, was because of the "persistence of symptoms for over a year”.
Dr. James A. Devlin, an orthopedic surgeon to whom plaintiff was referred late in 1970, performed the second operation on plaintiffs back. His testimony, on which the WCAB relied, has the same lack of substance. The WCAB said:
"Dr. James A. Devlin also responded to a reasonably accurate hypothetical that the work plaintiff performed post injury could possibly aggravate the condition existing in plaintiffs back as a result of the original injury.”
Apart from the inadequacy of a finding based on a mere possibility, it should be noted that the hypothetical question referred to was not reasonably accurate. It assumed that plaintiff lost no time from work whatsoever, it assumed continuation on the same job without a period on lighter work, and it assumed that on February 1, 1970, pain in plaintiffs back became much worse. The question then asked what role the "incident” of February 1, 1970, or the continual nature of plaintiffs work in early 1970 might have had on his condition as Dr. Devlin found him. on the application of the one-year-back rule. Dr. Devlin’s response was that it was possible that the "incident” could cause an aggravation of a previous existing condition in his back. There was, of course, no "incident” on February 1, 1970.
Again, apparently assuming some incident on February 1, 1970, Dr. Devlin pointed out that, while it was possible that what plaintiff "did” on that day could have aggravated an existing back condition, he could not say that it did and that it was equally possible that so simple an act as getting out of a car could aggravate an existing back condition. Dr. Devlin also testified that the severe degenerative changes which he found at L4-L5 had obviously existed for a long period of time. He also testified that the continuing symptoms related by the plaintiff indicated that the original condition caused by the 1969 injury had persisted.
On this record, we believe that there has been one identifiable injury, that of February 13, 1969, causing a degenerative disc disease which continued unchanged thereafter; that the symptoms of the disease continued, their presence when work tasks were performed merely evidencing the continuation of the condition; and that there is no evidence to support the WCAB’s finding that the condition was aggravated by the physical efforts of employment. The case is thus governed by Mullins v Dura Corp, supra.
Reversed and remanded for entry of an appropriate order.
Bronson, J., concurred.
At the time plaintiif terminated his employment MCL 418.301(1); MSA 17.237(301X1) provided:
"Time of injury or date of injury as used in this act in the case of a disease or in the case of an injury not attributable to a single event shall be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death.”
MCL 418.833(2); MSA 17.237(833X2) provides:
"When an employer or carrier takes action to recover overpayment of benefits, no recoupment of money shall be allowed for a period which is more than one year prior to the date of taking such action.”
The WCAB held that the general statute of limitations was inapplicable on the reasoning that nothing in the Worker’s Disability Compensation Act authorized its application to such claims, a conclusion which we need not review on the facts herein; but quaere, whether it is not equally true that nothing in the act proscribes application of the general limitations statute to such claims?
A division reflecting diverse opinions by different panels of the WCAB; see Shepard v McInerney Spring & Wire, 1982 WCABO 272, and Painter v Allied Supermarkets, 1980 WCABO 1108.
The condition existed at the fourth and fifth lumbar and first sacral vertebrae. Two surgical attempts to stabilize those vertebrae bylaminectomy and fusion have failed, and plaintiff was held to be justified in declining the risk of another attempt at spinal fusion.
It was argued that the injury was so inconsequential that plaintiff missed no time whatever, an erroneous conclusion probably derived from the fact that the time cards show that he was paid for the time off. Close examination of the cards and the testimony of the employer’s general manager as to office absence records confirm that he was off work after the accident. Plaintiff testified he was off for three days.
Dr. Taheri was not a witness.
Dr. Walker was not a witness.
Dressler v Grand Rapids Die Casting Corp, supra, suggests that such evidence must also be "substantial”.
Dr. Sorenson was not a witness.
While the medical evidence leaves something to be desired, it must be recognized that the evidence was taken on different occasions over a period of years and that the principal thrust of the inquiry went to the extent and permanence of disability and the feasibility of further surgery rather than to the question of on-the-job aggravation of a condition caused by the original trauma.
Dr. Willits’ recital of the opinions of those doctors, derived by him from their notes, was objected to on hearsay grounds, which objection would appear to be well taken. Moreover, as noted hereafter, we do not find in the clinic notes the evidence which the WCAB thought was contained therein to support its finding.
To the question, "Do you feel that the work that he did from February 13, 1969, could have caused or aggravated or accelerated or exacerbated or precipitated the necessity of treatment and surgery performed by Dr. Taheri, that being a laminectomy at L4-L5?” Dr. Willits answered: "My answer is that anything is possible.”
Dr. Willits also testified that plaintiff was not disabled until 1970 because he kept working until then, but also noted that pain tolerance is fantastically variable from person to person. He further testified that lifting and straining can precipitate more symptomatology from a chronic back problem, but that is not the same as saying that it could or did cause a different or further back problem. | [
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Per Curiam.
Defendant, Bon Secours Hospital, appeals by leave granted the order of the circuit court denying the hospital’s motion for accelerated judgment. GCR 1963, 116.1(5).
Plaintiff filed suit against Edward F. Eldredge, M.D., a defendant not involved in this appeal, on April 23, 1979. Plaintiff alleged that, during his August to October, 1977, stay at Bon Secours Hospital, Dr. Eldredge ordered that certain medi cation be administered to him. Plaintiff suffered auditory nerve damage as a result of the medication.
In 1980, plaintiff twice amended his complaint to add two pharmaceutical companies as parties defendant, E. R. Squibb & Sons, Inc., and Burroughs Wellcome. These defendants are not involved in this appeal.
On December 18, 1981, the court granted plaintiff’s motion to add yet another defendant, Bon Secours Hospital. As to the hospital, plaintiff alleged negligence as follows:
"a. In the defendant herein failing at all time pertinent hereto to maintain a policy and/or protocol for the use and administration of Neomycin, Neosporin, and Gentamycin within said institution when these defendants knew, or in the exercise of reasonable care should have known, that Neosporin, Neomycin, and Gentamycin are ototoxic agents;
"b. In the defendant herein, and its agents, servants and/or employees, failing to monitor the administration of Neomycin, Neosporin, and Gentamycin by the physicians on its staff, and in particular Dr. Eldredge, at all times pertinent hereto to prevent excessive doses of said ototoxic agents from being given to its patients, and specifically, Richard Peltier;
"c. In the defendant herein, and through its agents, servants and/or employees, failing to maintain a policy and/or procedure of monitoring patients, and in particular Richard Peltier, who were being treated with Neosporin, Neomycin and/or Gentamycin when the defendants knew, or in the exercise of reasonable care should have known, that failure to so monitor said patients, and in particular Richard Peltier, could ultimately lead to hearing loss;
"d. In the defendant herein, and through its agents, servants and/or employees, permitting said ototoxic agents to be prescribed, administered, and dispensed within defendant hospital at all times pertinent hereto when the defendants knew, or in the exercise of reason able care should have known, that the risks of prescribing, administering, and dispensing said ototoxic agents far outweighed the benefit of said ototoxic agents to its patients, and in particular, to Richard Peltier.”
Defendant hospital moved for accelerated judgment, claiming expiration of the statutory limitations period. See MCL 600.5805(4), 600.5838(2); MSA 27A.5805(4), 27A.5838(2). The trial court found that there was a factual dispute concerning the "date of discovery” and denied the motion for accelerated judgment. GCR 1963, 116.3. We reverse.
Claims for malpractice are governed by a two-year statute of limitations. MCL 600.5805(4); MSA 27A.5805(4). A malpractice action may, however, be commenced within six months after the plaintiff discovers, or should have discovered, the existence of the claim. MCL 600.5838(2); MSA 27A.5838(2).
According to plaintiff, it was not until he deposed the associate administrator and acting chief executive of the hospital that he became aware of the hospital’s malpractice. That deposition was held on November 13, 1981. Only then, according to plaintiff, did he learn that the hospital had no "policy, protocol, procedure, or review committee to monitor the use and administration of the ototoxic agents in question that caused [his] injuries”.
This Court discussed the "date of discovery” malpractice rule in Lefever v American Red Cross, 108 Mich App 69, 74; 310 NW2d 278 (1981):
"In order for a court to conclude as a matter of law that a person has or should have discovered asserted malpractice, it must be shown that the person knew of the act or omission itself and had good reason to believe the act itself was improper or was done in an improper manner.
"Accelerated judgment is improper where material factual disputes exist regarding discovery of the alleged malpractice. Jackson v Vincent, 97 Mich App 568, 572; 296 NW2d 104 (1980). However, the 'time of discovery’ rule relates to the discovery of the asserted malpractice and not the discovery of defendant’s identity or involvement.”
In Lefever, the plaintiff received a blood transfusion at an Ann Arbor hospital on February 18, 1976, and on the same day was told that at least some of the blood was diseased with serum hepatitis and that she would likely contract hepatitis. On August 2, 1976, she was diagnosed as having the disease. On October 9, 1979, the plaintiff filed her complaint against the American Red Cross, which had furnished the blood to the hospital. Accelerated judgment was granted to the defendant, based on the running of the period of limitations. On appeal, this Court affirmed, rejecting the plaintiff’s reliance on the "time of discovery” malpractice rule since: (1) on February 18, 1976, the plaintiff knew she had received diseased blood, by August 2, 1976, she knew she had contracted hepatitis, and she had good reason to believe the transfusion of diseased blood was improper; and (2) there were no material factual questions as to when she discovered the alleged malpractice.
Similarly, the instant plaintiff knew, long before adding the hospital as party defendant, that he had received certain medication and that he had suffered hearing loss possibly as a result of the medication. In short, he knew of the alleged malpractice. He cannot avail himself of the "time of discovery” rule to remedy his failure to discover in a timely fashion the nature of defendant hospital’s complicity in that alleged malpractice.
We reverse the trial court’s order, and direct that accelerated judgment be entered for defendant Bon Secours Hospital. Remanded to the circuit court for further proceedings not inconsistent with this opinion. | [
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Per Curiam.
The prosecution appeals an order of the circuit judge suppressing certain evidence gathered after a fire. We affirm.
On the night of August 2, 1981, there was a fire at the Convenient Market. The fire was under control at approximately 3 a.m. Most of the firemen left the scene of the fire at that time, but some remained to preserve the scene.
Investigators returned to the scene at approximately 8 a.m. and gathered evidence until 12:30 p.m.
The trial judge found that:
"The aim of the investigators was clear from approximately 1:00 a.m. on. They were investigating a criminal arson not looking for accidental causes for the fire. No question of any concern to preserve evidence has been presented in this case. However, the guarding of the fire site by the fire fighters left on the scene effectively preserved the evidence for more than the time necessary to secure a search warrant.”
The United States Supreme Court in Michigan v Tyler, 436 US 499, 511-512; 98 S Ct 1942; 56 L Ed 2d 486 (1947), stated:
"In summation, we hold that an entry to fight a fire requires no warrant, and that once in the building, officials may remain there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches. (Citations omitted.) Evidence of arson discovered in the course of such investigations is admissible at trial, but if the investigating officials find probable cause to believe that arson has occurred and require further access to gather evidence for a possible prosecution, they may obtain a warrant only upon a traditional showing of probable cause applicable to searches for evidence of crime.”
We are convinced, as was the trial judge, that the purpose of the-Deputy Fire Marshal’s investigation after 1 a.m. was to find evidence of a crime. The people did not show any "grave emergency” which justified their not obtaining a search warrant. There was no showing that, in the time period between 1 a.m. and 9 a.m., when the investigation began in earnest, they could not have obtained a search warrant.
We are convinced that the trial judge was correct and affirm. | [
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Per Curiam.
Defendant appeals as of right from his jury conviction of first-degree murder, MCL 750.316; MSA 28.548, and felony-firearm, MCL 750.227b; MSA 27.424(2).
On the morning of March 6, 1982, two men assaulted and wounded Rachel Powell, defendant’s ladyfriend, in an attempt to rob her. After Ms. Powell received medical treatment for her wound, she, defendant, defendant’s brother Wilmon Nichols, and Nichols’s wife, Romanitta Nichols, drove back to the area where Ms. Powell had been assaulted. Defendant and Nichols brought fire arms; defendant had a rifle and Nichols carried a sawed-off shotgun. When Ms. Powell indicated she saw one of her assailants, defendant and Nichols left the car with their weapons. Soon after, either defendant or Nichols fatally shot Rodney Dozier.
Both defendant and Nichols were charged with first-degree murder and felony-firearm. At Nichols’s bench trial, the people presented conflicting evidence regarding which codefendant actually shot Dozier. The trial judge, who also presided at defendant’s subsequent jury trial, specifically found that Nichols fired the fatal shot.
The people submitted defendant’s case to the jury on alternate theories: either defendant was the principal who shot Dozier or defendant aided and abetted Nichols in the murder of Dozier. With either theory, the people argued that the evidence showed that defendant and Nichols intended to track down and murder Ms. Powell’s assailants and thus established that both defendant and Nichols had the requisite mental element or intent to be found guilty of premeditated murder.
Defendant argues that the trial court was es-topped from submitting the people’s case to the jury on the first-degree murder charge. Defendant argues that, because his codefendant was found to lack the necessary mental element to be found guilty of first-degree premeditated murder, the jury was precluded from deciding that issue at his trial. Moreover, defendant argues that the trial court should have precluded the people’s theory that he was the principal, that is the person who fired the fatal shot, as that issue was also determined in Nichols’s earlier trial.
In Ashe v Swenson, 397 US 436, 443; 90 S Ct 1189; 25 L Ed 2d 469 (1970), the court found that collateral estoppel, or issue preclusion, does apply to criminal as well as civil cases. The court defined collateral estoppel:
"[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Emphasis added.)
The court found that collateral estoppel as applied to criminal litigation was embodied in the Fifth Amendment guarantee against double jeopardy. Therefore, the collateral estoppel doctrine applied to state criminal prosecutions via the Fourteenth Amendment.
In this case, because there is no mutuality of parties involved in these criminal cases, defendant asks this Court to adopt the doctrine of nonmutual collateral estoppel. Defendant argues that, because the government litigated the same issues involving the same transaction in Nichols’s trial, the government should be bound by the judgment in the prior case and should have been precluded from retrying those issues in the action against him.
In Standefer v United States, 447 US 10; 100 S Ct 1999; 64 L Ed 2d 689 (1980), the court refused to adopt the application of the doctrine of nonmutual collateral estoppel in criminal cases. The court held that an aider and abettor could be found guilty even though the principal is previously acquitted in a separate action. The court stated in a footnote: "Nothing in the Double Jeopardy Clause or Due Process Clause forecloses putting petitioner on trial as an aider and abettor simply because another jury has determined that his principal was not guilty.” 447 US 22, fn 6.
Defendant argues that this Court should find that the doctrine of nonmutual collateral estoppel is applicable to criminal cases in this state as a matter of Michigan’s constitutional protection against double jeopardy. Const 1963, art 1, § 15. Defendant relies upon People v Taylor, 12 Cal 3d 686, 698; 117 Cal Rptr 70; 527 P2d 622 (1974), in which the court concluded that the lack of identity of parties-defendant did not preclude the application of the doctrine of collateral estoppel where an accused’s guilt must be predicated upon his or her vicarious liability for the acts of a previously acquitted confederate.
Taylor was the getaway driver in a liquor store robbery perpetrated by Smith and Daniels. The liquor store owner shot and killed Smith during the robbery. Daniels was acquitted of Smith’s murder. However, Taylor was found guilty of Smith’s murder on a theory that he was vicariously liable for his confederate’s actions. The Taylor court specifically limited its holding to the circumstances of that case.
We do not find Taylor persuasive. First, by statute, MCL 767.39; MSA 28.979, the common-law distinction between accessories and principals is abrogated. Thus the conviction of a principal as a prerequisite to a valid conviction of the aider and abettor is not required. People v Mangiapane, 219 Mich 62; 188 NW 401 (1922); People v Brown, 120 Mich App 765, 771; 328 NW2d 380 (1982). If an accessory may be convicted despite the principal’s acquittal, it follows that an accessory can be found guilty of a greater offense than the offense for which the principal was found guilty.
Second, even if we should disagree with the above rule, the circumstances in this case would not warrant the application of the nonmutual collateral estoppel doctrine. The people presented legally sufficient evidence in defendant’s trial to prove defendant guilty as a principal as well as an aider and abettor.
Third, even if we were to adopt a doctrine of nonmutual collateral estoppel in criminal cases, we would limit that doctrine’s application to those cases where fairness and justice required, since we do not agree that the doctrine is embodied in any constitutional protection against double jeopardy. Standefer, supra. We do not find that fairness and justice require the doctrine’s application in this case.
Defendant’s second argument is that the trial court erred by refusing to allow in as evidence the fact that Nichols was only convicted of second-degree murder. Defendant correctly states that the people had to prove the principal’s guilt at defendant’s trial in order to prove the defendant’s guilt as an accessory. Defendant argues that Nichols’s second-degree murder conviction was proof that Nichols, as the principal, was not guilty of premeditated murder. That proof, argues defendant, should have been admitted as evidence that defendant, as the accessory, was not or could not be guilty of first-degree murder.
We agree with the trial court’s ruling that evidence of the fact that Nichols had been convicted of second-degree murder was irrelevant evidence. MRE 401. "[W]here the acquittal of the principal does not affect the criminal liability of the accessory * * * the record of acquittal is not admissible in evidence on the trial of the accessory to prove the innocence of the principal.” 22 CJS, Criminal Law, § 105, p 295. Moreover, such evidence would tend to obfuscate the independent factfinding responsibility of a jury.
Finally, we find no merit in defendant’s third argument. The trial court’s aiding and abetting instruction was proper. The example the trial court gave with that instruction was not so similar to the facts of this case as to be prejudicial.
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Per Curiam.
The defendant was arrested in connection with a grocery store holdup on April 28, 1981, in which two persons were killed. Defen dant was charged with two counts of first-degree murder, MCL 750.316; MSA 28.548, two counts of felony murder, MCL 750.316; MSA 28.548, one count of armed robbery, MCL 750.529; MSA 28.797, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2).
The jury at trial was unable to reach a verdict on the first four counts, but found defendant guilty of the latter two. On November 24, 1981, defendant was sentenced to serve 50 to 75 years for armed robbery and 2 years for felony-firearm. Defendant appeals as of right.
On appeal, defendant raises three issues. The dispositive question of the trilogy is whether the trial court erred in allowing the prosecutor to call defendant’s accomplice as a witness, knowing that the witness would claim the privilege against self-incrimination as to matters concerning the alleged crimes, even though the accomplice did not in fact assert the privilege on the stand. We hold that the incident unfairly prejudiced defendant’s right to a fair trial and reverse for the reasons stated below.
The accomplice, Herman Noble, was arrested and charged with the defendant. Mr. Noble pled guilty to two counts of second-degree murder, one count of armed robbery and felony-firearm, as part of a plea bargain with the prosecutor. Mr. Noble was endorsed as a witness in defendant’s trial over objection. However, after being endorsed, and prior to sentencing, Mr. Noble sought to withdraw his plea. On the day Mr. Noble was scheduled to testify, a hearing had been scheduled on his request.
The trial judge conducted a hearing away from the jury to determine whether the prosecutor would call Mr. Noble as a witness in light of the changed circumstances. The record discloses the following discussion in pertinent part:
"The Court: All right. Do the people intend to call Mr. Herman Noble, who is endorsed on the information?
"Mr. Neaton [attorney for the people]: Yes, your Honor.”
Thereafter, Mr. Noble, present with his attorney, notified the trial court that he would assert his Fifth Amendment privilege if questioned in connection with the crimes.
"Mr. Blake [attorney for Noble]: Your Honor, I have conferred with Mr. Noble with respect to his appearance as a witness in this case. Mr. Noble informed me that he had entered a plea of guilty before this court to a crime involved in this case. Mr. Noble informed me that subsequent to entering that plea of guilty he desired to withdraw his plea prior to sentencing and that he, in fact, wrote your Honor, as you’ve stated, advising you that he desires to withdraw this plea.
"I’ve advised Mr. Noble, therefore, that his posture is that there is a possibility, should the court allow him to withdraw, that he would then proceed to trial on the crime charged. * * * I’ve advised Mr. Noble, therefore, that should he take the stand and should the prosecution pose questions to him concerning the facts and circumstances surrounding the crime to which he faces a prospective possibility of a trial, that he has a right, your Honor, not to incriminate himself and to assert the Fifth Amendment with respect to the crime charged. Is that correct, Mr. Noble?
"Mr. Noble: Yes, sir.
"Mr. Blake: Now, I’ve left it up to Mr. Noble to decide what he should do. Mr. Noble has advised me that he will, in fact, assert his Fifth Amendment privilege if questions are posed to him regarding the facts and circumstances of the crimes charged.”
Over the objection of the defendant’s lawyer, the trial judge allowed the prosecutor to call Mr. Noble as a witness. The judge ruled that since Mr. Noble was endorsed as a witness he could be called.
Once on the stand, Mr. Noble answered the following questions:
"Q. Sir, your name is Herman Noble, is that correct?
"A. Yes, sir.
"Q. How old are you?
"A. Twenty.
"Q. Do you have a sister named Kim Noble?
"A. Yes.
"Q. How old is she?
"A. She’s 21.
"Q. And do you know Lome King?
"A. Yes, sir.
"Q. And is Lome King your sister Kim’s boyfriend?
"A. I do not know.
"Q. Do you know where your sister Kim was living or staying last April of 1981?
"A. Yes.
"Q. Where was that?
"A. West Grand Boulevard with my mother.
"Q. And is that in the same building that Lome King stayed at that time?
"A. I don’t know if Lome King stayed there or not.
"Q. You know the address of that building?
"A. I think it’s 2318.
"Q. West Grand Boulevard?
"A. Yes.
"Mr. Neaton [attorney for the people]: Thank you, That’s all.”
Defendant’s counsel again objected and moved for a mistrial. The motion was denied. Defendant did not cross-examine Mr. Noble.
The prosecution argues that, because Mr. Noble did not assert his Fifth Amendment privilege nor testify to any fact from which the jury could infer guilt with respect to him or the defendant, the verdict should be affirmed. However, the ethical standards relating to the prosecutorial function, as well as our own decisions, compel us to reject this argument.
The Michigan Supreme Court in People v Giacalone, 399 Mich 642, 645; 250 NW2d 492 (1977), established the standard which this Court must apply:
"A lawyer may not knowingly offer inadmissible evidence or call a witness knowing that he will claim a valid privilege not to testify. The American Bar Association standards relating to the prosecution and defense functions provide that it is unprofessional conduct for a prosecutor or a lawyer representing a defendant
—'knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence’
—'to call a witness who he knows will claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege.’ ” (Footnotes omitted.)
This Court has recently applied the Giacalone standard in several cases. While we have disagreed on its application to a defendant who calls a recalcitrant witness, compare People v Bashans, 80 Mich App 702; 265 NW2d 170 (1978), with People v Squires, 100 Mich App 672; 300 NW2d 366 (1980), lv den 410 Mich 919 (1981), and People v Jerry Johnson (After Remand), 86 Mich App 430; 272 NW2d 672 (1978), lv den 406 Mich 864 (1979), as to the prosecutor, our holdings have reinforced the inveterate policy in Michigan of disfavoring convictions obtained with suspicions of prosecutorial misconduct. People v Swindlehurst, 120 Mich App 606; 328 NW2d 92 (1982), lv den 417 Mich 900 (1983); People v Squires, supra; People v Hines, 88 Mich App 148; 276 NW2d 550 (1979), lv den 406 Mich 934 (1979); People v Savard, 73 Mich App 175; 250 NW2d 565 (1977). This policy is particularly felicitous when a prosecutor goes through the motions of calling a witness who he knows intends to assert the Fifth Amendment privilege. See Bashans, supra, p 710.
In People v Poma, 96 Mich App 726; 294 NW2d 221 (1980), this Court spoke of the unfairness inherent in merely putting a recalcitrant witness on the stand when the witness intends to assert the privilege:
"We hold that it is inherently prejudicial to place a witness on the stand who is intimately related to the criminal episode at issue, when the judge and prosecutor know that he will assert the Fifth Amendment privilege. When a judge determines at the evidentiary hearing that the intimate witness will either properly or improperly claim the protection against self-incrimination, he must not allow this witness to be called to the stand.” Poma, supra, p 733.
We adopt the Poma reasoning, although we need not apply the breadth of the Poma holding; it is clear that Mr. Noble had a valid privilege to assert as to the matters the prosecutor so stealthily avoided. Mr. Noble’s situation was similar to that of an accomplice in People v Swindlehurst, supra. There the defendant argued on appeal that it was improper for the prosecutor to comment in closing argument on the failure of the accomplice to testify on the defendant’s behalf. This Court rejected the defendant’s argument because of his failure to object during trial, however, as to the merits of his contention, the Court noted:
"The witness in question, one Evans, had pled guilty and was awaiting sentence at the time of this trial. The record is silent as to whether, if he had been called by either side, he would have claimed his Fifth Amendment privilege. Having in mind the possibilities of a withdrawal of his guilty plea, or a successful appellate challenge to his conviction, there is reason to believe that he would have invoked his Fifth Amendment privilege if called.
"It would have been error for either the prosecutor or defense counsel to call Evans as a witness under such circumstances. People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977). See also People v DeGoenaga, 202 Mich 503; 168 NW 436 (1918).” Swindlehurst, supra, p 612.
Having found error in the fact that Mr. Noble was called to testify, we are unable to say that the error is harmless. The standard for harmless error consists of two questions:
(1) Was the error so offensive to the maintenance of a sound judicial system as to require reversal; and
(2) If not, was the error harmless beyond a reasonable doubt? People v Mobley, 390 Mich 57, 65; 210 NW2d 327 (1973). People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972).
The purpose of the first question is to "deter prosecutorial and police misconduct and to safe guard those individual rights which are so fundamental that the impact of their violation cannot be fully assessed”. People v Swan, 56 Mich App 22, 32, fn 6; 223 NW2d 346 (1974), lv den 395 Mich 810 (1975), see also People v Mobley, supra, pp 65-66. As to the second element "[w]e must determine 'whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’, that is, whether it might have aided in convincing an otherwise undecided juror of the defendant’s guilt beyond a reasonable doubt”. Swan, supra, p 33 (footnote omitted).
The case before us fails both tests. An error deliberately injected by the prosecutor cannot be upheld. Robinson, supra, p 563; People v Parks, 98 Mich App 87; 296 NW2d 195 (1980); People v Reese, 86 Mich App 50; 272 NW2d 192 (1978). Moreover, it is foreseeable that absent the prejudice caused by the calling of Mr. Noble as a witness, even one juror might have voted to acquit the defendant. Swan, supra, p 33. People v Norwood, 70 Mich App 53, 57-58; 245 NW2d 170 (1976), lv den 397 Mich 884 (1976). The jury found the question of guilt to be a close one. They deliberated for five days, requested assistance in evaluating the evidence on at least three occasions and displayed marked uncertainty throughout the process.
When viewed in context of the entire record, we are unable to declare that the unfair prejudice brought by the calling of Mr. Noble did not contribute to or affect the result. Therefore, the error was not harmless and defendant must be retried. We reiterate the position of the Michigan Supreme Court in People v White, 401 Mich 482, 509-510; 257 NW2d 912 (1977), disapproving of the practice wherein the prosecution in a criminal case calls a witness which it is under no duty to call and who it has reason to know will assert the constitutional privilege against self-incrimination, thereby adding nothing of substance to the case, for the purpose of implanting an unfair inference in the minds of the jurors. "If the witness intends to claim the protection of the Fifth Amendment at trial, there is no way to prevent prejudice to the defendant absent barring that witness.” Poma, supra, p 732. See People v McNary, 43 Mich App 134, 140-141; 203 NW2d 919 (1972).
Reversed and remanded for a new trial.
At a subsequent retrial on the murder charges, a jury found the defendant not guilty of those charges.
Defendant also raises two other issues. First, defendant contends that the evidence was insufficient to permit the magistrate at the preliminary examination to bind him over. Second, defendant argues that the evidence at trial was insufficient to find him guilty beyond a reasonable doubt. Since we reverse this case for the reasons stated, we do not pass upon the additional questions. | [
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Wahls, P.J.
In this action involving claims of age and marital status discrimination brought pursuant to the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., plaintiffs appeal as of right from an order granting summary disposition for defendant Detroit Golf Club pursuant to MCR 2.116(C)(8). We affirm.
When 1992 PA 70 was enacted, it amended, in part, § 301 of the Civil Rights Act to declare that private country clubs and golf clubs are "places of public accommodation,” thereby bringing them within the coverage of the act. MCL 37.2301(a)(i); MSA 3.548(301)(a)(i). Section 302a, which was also created and added to the act, provides, in pertinent part:
(1) This section applies to a private club that is defined as a place of public accommodation pursuant to section 301(a).
(2) If a private club allows use of its facilities by 1 or more adults per membership, the use must be equally available to all adults entitled to use the facilities under the membership. All classes of membership shall be available without regard to race, color, gender, religion, marital status, or national origin. Memberships that permit use during restricted times may be allowed only if the restricted times apply to all adults using that membership.
(3) A private club that has food or beverage facilities or services shall allow equal access to those facilities and services for all adults in all membership categories at all times. This subsection shall not require service or access to facilities to persons that would violate any law or ordinance regarding sale, consumption, or regulation of alcoholic beverages. [MCL 37.2302a; MSA 3.548(302a).]
Following the enactment, defendant instituted a membership policy allowing the spouses and adult children (between eighteen and twenty-five years of age) of all the members unrestricted access to its facilities and golf courses. Specifically, defendant removed "tee time” restrictions on spousal golfing and the "male only” restriction regarding one of its dining facilities, known as the "Men’s Grill.” Up until this point, defendant allowed the spouses and children of members to fully utilize its other facilities. Defendant did not request addi tional dues from the members who were affected by this policy.
On September 10, 1992, plaintiffs filed a complaint alleging that defendant discriminated against them on the basis of their age and marital status in violation of § 302 of the Civil Rights Act, MCL 37.2302; MSA 3.548(302), which provides, in pertinent part:
Except where permitted by law, a person shall not:
(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status.
Plaintiffs are married and unmarried members who are over the age of twenty-five. In their complaint, they claimed that the new policy denied single members, married members whose spouses did not golf, and members over the age of twenty-five "full and equal” enjoyment of defendant’s facilities and required them to subsidize these nonmember’s use of the facilities.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that plaintiffs failed to state a claim for discrimination on the basis of marital status or age under the Civil Rights Act. Defendant asserted that its policy was consistent with the requirement in § 302a(2) that all adults entitled to use the facilities pursuant to a membership are to be treated equally and may not be restricted in the use of the facilities. In response, plaintiffs maintained that §302 of the Civil Rights Act was applicable rather than section 302a. The Civil Rights Commission and the Department of Civil Rights were allowed to intervene as defendants and concurred with defendant’s motion for summary disposition.
In granting summary disposition, the trial court held that defendant’s policy did not violate § 302a because it did not deny plaintiffs full and equal use of the facilities and golf courses. The court noted that plaintiffs’ economic disadvantage did not amount to a denial of the full and equal enjoyment of defendant’s facilities. Furthermore, the trial court ruled that plaintiffs were not members of a class intended to be protected under the act and, therefore, could not bring a claim for age or marital status discrimination.
On appeal, plaintiffs challenge the trial court’s dismissal. A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. The motion should be denied unless the claim is so clearly unenforceable as a matter of law that no factual development could justify recovery. This Court reviews a summary disposition ruling de novo. Merillat v Michigan State Univ, 207 Mich App 240, 245; 523 NW2d 802 (1994).
Plaintiffs contend that § 302 of the act, MCL 37.2302; MSA 3.548(302),- governs their age and marital status discrimination claims rather than § 302a, MCL 37.2302a; MSA 3.548(302a). We disagree.
Resolution of this issue involves interpretation of the two statutory provisions. Where the language of a statute is clear, the Legislature must have intended the meaning it has plainly expressed and there is no need for interpretation. Gebhardt v O’Rourke, 444 Mich 535, 541-542; 510 NW2d 900 (1994); Farrington v Total Petroleum, Inc, 442 Mich 201, 208; 501 NW2d 76 (1993). If judicial construction or interpretation is necessary, courts must ascertain and give effect to the intent of the Legislature and employ the ordinary and generally accepted meaning of the words used by the Legislature. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). If two statutes address the same subject, courts must strive to read them harmoniously in order to give both statutes a reasonable effect. House Speaker v State Administrative Bd, 441 Mich 547, 568; 495 NW2d 539 (1993); Bauer v Treasury Dep't 203 Mich App 97, 100; 512 NW2d 42 (1993).
Section 302 broadly prohibits the denial of the full and • equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation on the basis of religion, race, color, national origin, age, sex, or marital status. On the other hand, § 302a clearly states that it is applicable to a private club that is defined as a place of public accommodation under § 301(a) and further narrowly prohibits denial of a membership in a private club on the basis of race, color, gender, religion, marital status, or national origin. We find that by its plain language, § 302a applies in this case.
Moreover, application of § 302a furthers the Legislature’s intent. The Senate Fiscal Agency bill analysis of SB 351 indicates that the Legislature was concerned about membership restrictions in private clubs and the denial of access to the clubs’ facilities on the basis of sex. Amicus curiae, Senator Lana Pollack, a proponent of SB 351, similarly submits that the bill was designed to remedy gender discrimination in private clubs. Furthermore, application of § 302 would render the more recent, limited, and specific nondiscrimination provisions in § 302a mere surplusage. The court should presume that every word in a statute has some meaning, and should avoid a construction that would render any part of the statute surplus- age or nugatory. Altman v Meridian Twp, 439 Mich 623, 635; 487 NW2d 155 (1992); Detroit City Council v Mayor, 202 Mich App 353, 358; 509 NW2d 797 (1993).
Because § 302a applies, we further find that the trial court did not err as a matter of law in ruling that plaintiffs’ complaint failed to state claims under the Civil Rights Act. Defendant has not denied plaintiffs, or anyone else for that matter, equal use of its facilities and golf courses. Rather, defendant’s policy fully complies with the section’s mandate to provide equal use to all adults entitled to use its facilities under their membership. Furthermore, all classes of membership are available without regard to race, color, gender, religion, marital status, or national origin. Therefore, plaintiffs did not allege any facts establishing that defendant violated the provisions contained in § 302a.
In addition, plaintiffs did not allege any facts establishing that they were treated differently on the basis of marital status. Defendant’s policy treats members differently only to the extent that a member’s spouse or adult children may desire to use the facilities or golf courses. However, the policy does not discriminate on the basis of whether a member is married or treat members differently on the basis of a stereotypical view of the characteristics of married or single persons. Whirlpool Corp v Civil Rights Comm, 425 Mich 527, 531; 390 NW2d 625 (1986); Miller v C A Muer Corp, 420 Mich 355, 363; 362 NW2d 650 (1984). Defendant’s policy is also one of inclusion, rather than the exclusion of certain persons from its facilities that the Civil Rights Act was designed to eliminate. Certainly, the act was not intended to ensure economic fairness for all members belonging to a private club.
Accordingly, the trial court did not err as a matter of law in granting defendant’s motion for summary disposition and dismissing plaintiffs’ claims.
Affirmed.
The amendment also declared that (1) a boating or yachting club, (2) a sports or athletic club, and (3) a dining club (with one exception) are places of public accommodation. MCL 37.2301(a)(ii)-(iv); MSA 3.548(301)(a)(üKiv). | [
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O’Connell, P.J.
Plaintiff Sarah Elizabeth Cox, through her next friend Daniel Cox, appeals as of right the circuit court’s order granting summary disposition in favor of defendant City of Dearborn Heights pursuant to MCR 2.116(0(10). We affirm.
On April 24, 1989, plaintiff was standing on a sidewalk at the intersection of two streets in the City of Dearborn Heights. One of the streets had stop signs for traffic traveling in both directions on that street. On the other street, no stop signs were installed. Plaintiff was injured when an automobile driven by Sonia Lynn White apparently stopped at the appropriate stop sign, failed to observe an automobile approaching on the cross street, proceeded into the intersection, struck the automobile that was traveling in a perpendicular path, and propelled that automobile from the roadway and into plaintiff.
Plaintiff brought suit against the drivers of both cars, the owners of both cars, and Dearborn Heights. Settlement agreements were reached with all defendants except Dearborn Heights. Dearborn Heights (hereinafter defendant) then moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). The circuit court granted defendant’s motion pursuant to MCR 2.116(C)(10) after it was learned that plaintiff’s proffered expert witness would be unwilling to testify that the intersection in question was unsafe. The lower court implicitly held nonexpert testimony regarding the issue of safety to be inadequate for creating a material factual issue concerning the safety of the intersection.
The gist of plaintiff’s complaint, as relevant to the present defendant, is that defendant’s failure to install two more stop signs at the intersection constituted a breach of its duty to maintain the highway in a state of reasonable and safe repair, allegations designed to fall within the highway exception, MCL 691.1402(1); MSA 3.996(102X1), to the broad immunity generally afforded governmental agencies. MCL 691.1407; MSA 3.996(107).
On appeal, defendant argues that the. trial court’s rationale for granting summary disposition is correct. Also, defendant, cognizant of this Court’s practice of affirming where the right result was reached by the trial court but for the wrong reason, Gray v Pann, 203 Mich App 461, 463; 513 NW2d 154 (1994), raises two additional arguments apparently not raised below. First, defendant contends that, as a municipality, any duty it may have extends only to the ’'improved portion of the highway designed for vehicular travel,” MCL 691.1402(1); MSA 3.996(102)(1) (which allegedly does not include traffic signs). In the alternative, defendant argues that even if its duty is not limited to the improved portion of the highway designed for vehicular travel, the broader duty of maintaining highways "in reasonable repair . . . reasonably safe and convenient for public travel,” MCL 691.1402(1); MSA 3.996(102X1), does not include a duty to install adequate traffic control devices.
i
We first address defendant’s contention that it may be held liable only for injuries ultimately stemming from improved portions of highways designed for vehicular travel. Generally, all governmental agencies are immune from tort liability for actions taken in furtherance of a governmental function. MCL 691.1407; MSA 3.996(107). The term "governmental agency” is defined to include municipal corporations such as defendant city. MCL 691.1401(a) and (d); MSA 3.996(101)(a) and (d). However, several "narrowly drawn” exceptions to this immunity exist. Mason v Wayne Co Bd of Comm’rs, 447 Mich 130, 134; 523 NW2d 791 (1994). Among these is the highway exception.
The highway exception is set forth in MCL 691.1402(1); MSA 3.996(102)(1), which, in relevant part, states that
[e]ach 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. Any person sustaining bodily injury or damage to his or her property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reason able repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him or her from the governmental agency. . . . 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.
Additionally, "highway” is defined broadly to include "every public highway, road, and street which is open for public travel and shall include bridges, sidewalks, crosswalks and culverts on any highway.” MCL 691.1401(e); MSA 3.996(101)(e).
Defendant argues that, as a municipality, it is subject to liability only for injuries resulting from inadequacies of the improved portion of the highway designed for vehicular travel. Although the relevant statute provides such a limitation of liability, this limitation expressly applies only to the state and to county road commissions. MCL 691.1402(1); MSA 3.996(102)(1). Defendant argues that the relevant case law reflects an extension of this limitation to municipalities as well. While we concede that the case law, until recently, was somewhat ambiguous with regard to this issue, see, e.g., Bunch v Monroe, 186 Mich App 347, 349; 463 NW2d 275 (1990), the Supreme Court’s recent statement concerning the matter in Mason, supra, p 136, n 6, defeats defendant’s position. In Mason, the Supreme Court stated that the limiting séntence in issue "applies only to counties and the state,” and went on to elucidate, to some extent, the rationale underlying the disparate treatment afforded municipalities. Id. (emphasis supplied). Therefore, we are constrained to reject defendant’s contention. The limitation of liability set forth in MCL 691.1402(1); MSA 3.996(102)(1) applies only to the state and to the county road commissions.
Therefore, defendant’s duty in the present case is controlled by the first sentence of MCL 691.1402(1); MSA 3.996(102X1), which, to reiterate, provides that "[e]ach 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.”
ii
Defendant next argues that the duty to maintain its highways "in reasonable repair . . . reasonably safe and convenient for public travel,” MCL 691.1402(1); MSA 3.996(102)(1), does not include a duty to install adequate traffic signs, such as the stop sign allegedly lacking in the present case. While this Court’s decision in Pick v Gratiot Co Rd Comm, 203 Mich App 138, 141; 511 NW2d 694 (1993), appears to support such a contention, we note that the defendant in that case was a county road commission, an entity enjoying the limitation of liability that we, immediately above, have concluded does not encompass the present defendant.
Further, the question in Pick was whether the duty to maintain "improved portion[s] of . . . highway^]” included a duty to install certain traffic signs, while in the present case we must consider whether the duty to maintain highways "in reasonable repair . . . reasonably safe and convenient for public travel,” MCL 691.1402(1); MSA 3.996(102)(1), includes the duty to install adequate traffic control devices.
We hold that a municipality’s duty to maintain its highways in reasonable repair so that they are reasonably safe and convenient for public travel encompasses the duty to install adequate traffic signs. To quote at length from Justice Boyle’s concurrence in Chaney v Dep’t of Transportation, 447 Mich 145, 175-176; 523 NW2d 762 (1994):
By the early eighties, it was established that "the duty to maintain a highway in reasonable repair encompasses the maintenance of traffic signs.” Salvati v State Hwy Dep’t, 415 Mich 708, 715; 330 NW2d 64 (1982.) In 1968, the Legislature narrowed liability under the highway exception by excluding trees and utility poles from the definition of "highway” as that term is used in the highway exception. MCL 691.1401(e); MSA 3.996(101)(e). Before the amendment, this section had stated merely that "[t]he term 'highway’ shall not be deemed to include alleys.” Because, at that time, governmental units could be liable for failing to repair and maintain traffic lights and signs, and because the Legislature restricted liability without mentioning signs and traffic lights, it is reasonable to infer that it intended that governmental units should be liable for failing to repair and maintain signs and signals.
We are aware that neither Justice Boyle’s opinion in Chaney nor Justice Coleman’s opinion in Salvati, upon which Justice Boyle relied, garnered the signatures of four justices, and that, as a result, neither opinion constitutes binding precedent under the doctrine of stare decisis. People v Jackson, 390 Mich 621, 627; 212 NW2d 918 (1973); see also Negri v Slotkin, 397 Mich 105, 109; 244 NW2d 98 (1976). However, we find the reasoning set forth by Justice Boyle in Chaney to be applicable to the present situation, and, in the absence of any controlling authority on the matter, we adopt it as our own.
However, we are not entirely comfortable with the result. In Mason, supra, a driver failed to stop at a red stop light, leading to the injury of the plaintiff, who was running across the street on a crosswalk. The Supreme Court held that the Wayne County Board of Commissioners could not be held liable for the failure to install a flashing red stop light and various signs warning drivers that a school was nearby.
In the present case, Sonia White failed to remain at the stop sign until the intersection was clear of traffic, and struck a lawfully traveling automobile, leading to the injury of plaintiff, who was standing on a sidewalk. The factual situations are similar. Yet, because of the two standards set forth in the highway exception, MCL 691.1402(1); MSA 3.996(102)(1), a municipality could be held responsible, where the state or a county road commission would not be held liable under the same circumstances.
In accordance with the reasoning set forth in Mason and Chaney, we today make explicit that municipalities may face liability where a pedestrian is injured as a result of allegedly inadequate traffic control devices. While we are puzzled with regard to the Legislature’s disparate treatment of municipalities vis-a-vis the state and county road commissions, our role is to enforce the law as written. Furthermore, our duty is to interpret the law, not make new laws. Any purported ambiguity in the relevant statute was laid to rest by Justice Boyle’s concurring opinion in Chaney. Therefore, we reject defendant’s argument that it had no duty to install adequate traffic signs.
hi
Defendant’s final contention is that the trial court correctly ruled that expert testimony was required to put the safety of the intersection in issue. Defendant’s position may or may not be correct. However, we need not reach that precise issue where plaintiff failed to submit any admissible evidence to put in issue a material fact, rendering summary disposition appropriate pursuant to MCR 2.116(0(10).
Plaintiff, in response to defendant’s motion for summary disposition, had the burden of presenting sufficient evidence from which the trial court could conclude that a factual record might be developed that would leave open a material issue upon which reasonable jurors could differ. Coleman-Nichols v Tixon Corp, 203 Mich App 645, 650; 513 NW2d 441 (1994). Furthermore, this evidence must be evidence that would be admissible at trial. SSC Associates Limited Partnership v General Retirement System of the City of Detroit, 192 Mich App 360, 364; 480 NW2d 275 (1991). Specifically, plaintiff had to present admissible evidence that the intersection was not reasonably safe as required by MCL 691.1402(1); MSA 3.996(102X1). As mentioned above, plaintiff was unable to procure expert testimony to this effect, which testimony likely would have satisfied this requirement.
Plaintiff submits that the evidence she offered was sufficient to withstand defendant’s motion for summary disposition. First, she presents a petition signed by area residents stating that the intersection in question was unsafe. While we would not be inclined to find such a political document probative with regard to the issue of safety, we are not, in any event, persuaded that the common person could offer competent testimony regarding the issue where plaintiff’s own expert witness declined to offer his opinion because of allegedly inadequate trafile studies. If it can be said that plaintiff’s own expert was incompetent to testify with regard to the issue, it stands to reason that common citizens likewise are not competent to testify.
Second, plaintiff claims that testimony establishing that defendant subsequently installed stop signs at the intersection in question would be admissible. Obviously, this evidence would be inadmissible as a subsequent remedial measure pursuant to MRE 407. See also Jernigan v General Motors Corp, 180 Mich App 575, 583-584; 447 NW2d 822 (1989). While plaintiff argues that our decision in Ellis v Grand Trunk W R Co, 109 Mich App 394; 311 NW2d 364 (1981), controls the present matter, Ellis involved a study of subsequently generated reports of subsequently existing conditions, rather than subsequent remedial measures, as in the present case. However, to the extent that our present statement regarding the matter is inconsistent with our prior holding in Ellis, we decline to follow Ellis. See Supreme Court Administrative Order No. 1994-4.
Finally, plaintiff contends that defendant did not comply with the Michigan Manual of Uniform Traffic Control Devices, which, apparently, defendant has adopted. While a failure to comply with the manual’s directives likely would be admissible evidence, see Salvati, supra, plaintiff has failed to submit evidence of such a lack of compliance. Our review of the record, including plaintiff’s specific citations to the lower court file, fails to reflect any evidence suggesting that defendant failed to comply with the manual.
Therefore, plaintiff failed to submit admissible evidence putting in dispute the safety of the intersection. Accordingly, the trial court acted properly in granting defendant’s motion for summary disposition.
Affirmed._
The trial court would require an expert witness to testify that the intersection was unsafe.
In Salvati, Justice Coleman, joined by Chief Justice Fitzgerald and Justice Ryan, summarized the duty as follows:
A governing unit may incur liability under the broad concept of "traffic sign maintenance” in the following ways: for failing to properly maintain a sign placed on the roadway, O’Hare v Detroit, 362 Mich 19; 106 NW2d 538 (1960); for failing to erect any sign or warning device at a point of hazard, Bonneville v Alpena, 158 Mich 279; 122 NW 618 (1909); Mullins v Wayne County, 16 Mich App 365; 168 NW2d 246 (1969); for positioning an improper system of signs on the roadway, National Bank of Detroit v Dep’t of State Highways, 51 Mich App 415; 215 NW2d 599 (1974); or for placing a sign which inadequately informs approaching motorists of a hazard, Lynes v St Joseph County Road Comm, 29 Mich App 51; 185 NW2d 111 (1970). While the highway authority has discretion in the erection of traffic control signs, MCL 257.608; MSA 9.2308, this discretion may not be capitalized upon to shield the authority from liability for highway defects, see Mullins, supra, 381, nor should compliance with standard manual specifications similarly act wholly to absolve the highway authority from liability. However, National Bank of Detroit, supra, suggests that compliance with traffic manual standards is a factor to consider in determining the reasonableness of the state’s actions at the time of the accident. [415 Mich 715.]
Cf. Dettloff v Royal Oak, 178 Mich App 319; 443 NW2d 410 (1989) (affirming dismissal of the case on the ground of governmental immunity where the plaintiff alleged that she had slipped and fallen in an alley).
We conclude that the inference is, at best, approximate. The Legislature’s failure to exclude signs or lights from the definition of a highway does not necessarily show that it intended to include them. The necessary votes may not have been available for either proposal. Cognizant of the difficulties presented by the limited information available to us, we remain convinced that this is the most reasonable interpretation of what occurred.
We note, however, that our present statement is wholly consistent with the rule of law established in Denolf v Frank L Jursik Co, 395 Mich 661, 669-670; 238 NW2d 1 (1976), upon which Ellis relies. | [
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Fitzgerald, P.J.
Petitioners filed a claim of appeal in the Wayne Circuit Court from a decision by the City of Allen Park Fire & Police Civil Service Commission to discipline petitioner Kenneth Dobson, a policeman with the Allen Park Police Department. Following a hearing, the circuit court affirmed the commission’s decision. Petitioners now appeal as of right.
On May 18, 1992, the vehicle in which Allen Park police officer Corporal Richard Curtis and Dobson, his passenger, were traveling collided with the rear of a vehicle owned by Laura Crupi and driven by Chad Hall. Curtis and Dobson had been golfing all day and admittedly consumed alcoholic beverages before the accident. According to witnesses, Curtis admitted fault, but indicated that he did not want to report the accident because his insurance rates were too high. Another witness indicated that Hall, who had a suspended license, did not want to be reported as the driver. Although Dobson denied knowing that Hall was the driver, Hall, along with other witnesses, indicated that Dobson knew that Hall was the driver.
Allen Park police officer Kenneth Zalenski responded to the scene of the accident. Zalenski heard Dobson tell Crupi and Hall that they could make out an accident report with Zalenski, or wait and have Dobson take care of it the following Thursday. Dobson then told Zalenski to "clear the scene.”
Crupi went to the police station three days later and Dobson prepared a police report. Crupi was listed as the driver of her vehicle and Dobson was not listed as a passenger in Curtis’ vehicle.
The Allen Park Police Department subsequently received anonymous telephone calls informing them that the police report had been falsified and that the police officers had been drinking on the day of the accident.
Six charges were brought against Dobson as a result of the traffic accident. The charges alleged that Dobson:
(1) Knowingly entered false information on a police report regarding the accident of May 18, 1992, in which you were involved;
(2) Failed to obtain all facts and pertinent information available regarding the accident of May 18, 1992, as reported in complaint #A-404-92;
(3) [Was] dishonest in your statement to the officer investigating said accident and complaint;
(4) Failed to allow the responding on-duty officer to fully and properly investigate the accident of May 18, 1992 as reported in complaint #A-404-92;
(5) Submitted a document to department records for filing that you knew contained false information;
(6) Instigated and committed actions that tend to or does discredit and injure the morale and reputation of the department.
As a result of these charges, the charging officer recommended that Dobson be discharged.
A hearing was held before the City of Allen Park Fire & Police Civil Service Cpmmission on September 10, 1992. Charges 3, 4, and 6 were dismissed for lack of evidence. The remaining three charges were sustained. The punishment imposed by the commission was a fifteen-day suspension without pay, the loss of five vacation days, and ineligibility for promotion for six months. Petitioners appealed the commission’s findings and order of discipline to the Wayne Circuit Court, which affirmed the commission’s determination.
Petitioners maintain that the charges against Dobson were filed more than ninety days after the violation and are therefore void as a matter of law. See MCL 38.514; MSA 5.3364, which provides that "all charges shall be void unless filed within 90 days after the date the violation occurred.” The word "occurred” was added when the statute was amended in 1986. 1986 PA 155. Under the prior version of the statute, which provided that "all charges shall be void unless filed within 90 days of the date of the violation,” the ninety-day period was interpreted to begin running after the department had knowledge of the violation. See Solomon v Highland Park Civil Service Comm, 47 Mich App 536, 539-540; 209 NW2d 698 (1973); see also Hunn v Madison Heights, 60 Mich App 326, 333; 230 NW2d 414 (1975). Although the amendment of the act by 1986 PA 155 resulted in substantive changes designed to correct provisions that conflict with anti-discrimination rules, the amendment also made numerous nonsubstantive changes merely to update and clarify the language of the original act, 1935 PA 78. See House Legislative Analysis, HB 5265, March 13, 1986. The change involved in the present case is one such nonsubstantive change, , and we see no reason to interpret the statute in a manner other than one consistent with prior opinions of this Court. We hold, there fore, that the ninety-day limitation period of MCL 38.514; MSA 5.3364 did not begin to run until the discharging authority had actual knowledge of an employment violation.
In the present case, the police department did not have knowledge of Dobson’s violations until June 9, 1992. The charges were brought against him on September 1, 1992, within the ninety-day limitation period. Accordingly, no violation of the statute occurred.
We are bound, however, by this Court’s recent decision in Goodridge v Ypsilanti Twp Bd, 209 Mich App 344; 529 NW2d 665 (1995), wherein the panel (Griffin, J., dissenting), rejected earlier decisions of this Court and held that "all charges filed after ninety days from the date of the violation are void.” Id. at 347. We believe that Goodridge was wrongly decided and, therefore, follow Goodridge only because we are constrained to do so by Administrative Order No. 1994-4. Accordingly, because the charges were filed after the ninety-day limitation period, they were void, as is the punishment imposed.
Given our resolution of this issue, we need not address the remainder of petitioners’ arguments. We note, however, that we have reviewed the arguments and find them to be without merit.
Reversed.
E. R. Post, J., concurred.
Our holding is consistent with previous opinions in which this Court has interpreted the limitation provisions in other statutes regulating public employment and has inferred the existence of tolling periods even though the involved statute did not provide explicitly therefore. See, e.g., Wines v Huntington Woods, 97 Mich App 86, 91; 293 NW2d 730 (1980); Werner v Macomb Co Civil Service Comm, 77 Mich App 533, 538; 258 NW2d 549 (1977).
Interpreting the statute as urged by petitioners would render an absurd result. Densmore v Dep’t of Corrections, 203 Mich App 363, 364; 512 NW2d 72 (1994). That is, an officer would be able to commit an employment violation and escape punishment if the violation went undetected for ninety days.
Dobson is entitled to be reimbursed for the wages lost during the fifteen-day suspension, to the return of the five vacation days, and to have the ban on the eligibility for promotion lifted. | [
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Per Curiam.
Defendant was convicted after a bench trial of delivery of less than 50 grams of cocaine, MCL 333.7401; MSA 14.15(7401). Defen dant was sentenced from to 5 to 20 years imprisonment and presently appeals as of right.
On appeal, defendant argues that he was denied his Sixth Amendment right to the effective assistance of counsel because his attorney failed to present a defense of entrapment. The test for effectiveness of counsel requires that defense counsel perform at least as well as a lawyer with ordinary training and skills in the criminal law and conscientiously protect his client’s interest undeflected by competing considerations. People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977). Ineffectiveness of counsel may also be shown where defense counsel makes a serious mistake but for which the defendant would have had a reasonably likely chance of acquittal. People v DeGraffenreid, 19 Mich App 702; 173 NW2d 317 (1969); Garcia, supra. This Court has held that a defense counsel’s failure to raise a substantive defense, where there is substantial evidence to support the defendant’s claim, may amount to ineffectiveness of counsel. People v Snyder, 108 Mich App 754; 310 NW2d 868 (1981).
We have carefully examined the record and find no merit to defendant’s allegation of ineffectiveness of counsel. There was not substantial evidence to support defendant’s claim of entrapment. It was therefore not error for defense counsel to fail to raise entrapment as a defense.
The record indicates that, in early 1979, defendant agreed to work with Detective Thomas Cor-win, the Director of the Jackson County Narcotics and Organized Crime Unit, as an informant in exchange for the detective’s promise to contact the prosecuting attorney and recommend probation on a delivery of heroin charge to which defendant had pled guilty on October 5, 1978. Defendant also agreed to work with Lieutenant Leroy Soeltner, the detective in charge of the state police organized crime section in East Lansing, in his investigation of illegal gambling operations.
Detective Corwin testified that defendant worked for him only during the summer of 1979, after which time Corwin terminated the arrangement. Corwin did not notify defendant that their agreement was ended. Corwin had previously twice cautioned defendant not to involve himself in any illegal activities unless they were under the direction of himself or Lieutenant Soeltner.
The instant charge arose out of purchases made by defendant on October 2 and 3, 1980, on behalf of undercover State Police Trooper Mark Siegel, who was assigned to the Jackson County Narcotics and Organized Crime Unit. On October 2, 1980, Trooper Siegel approached defendant at the Mark III Lounge in Jackson and told defendant that he wanted to purchase some cocaine. Defendant made a telephone call, then returned and suggested that they "take a ride”. They left the lounge in Siegel’s undercover car and went to a residential building. Siegel waited in the car while defendant went in, returning with four packets of cocaine. Siegel paid defendant $100 with marked cash. On October 3, 1980, Siegel again contacted defendant at the Mark III Lounge and purchased cocaine. When Siegel entered the lounge, defendant accused him of being a police officer. Siegel denied that he was working for the police.
Prior to the purchases on October 2 and 3, 1980, Siegel had three to four contacts with defendant. On June 17, 1980, Siegel witnessed an informant purchase narcotics from the defendant. On September 12, 1980, Siegel was introduced to defendant by a suspected narcotics dealer. On Septem ber 30, 1980, Siegel purchased cocaine from defendant and the two then drove around the city and defendant pointed out places where narcotics could be purchased. Siegel testified that from his first contact with defendant through October 3, 1980, he was working undercover. At no time did he give defendant the impression that he was a police officer.
Michigan has adopted an objective test for determining whether entrapment has occurred. People v Turner, 390 Mich 7; 210 NW2d 336 (1973). Under this test, the question is whether agents of the government have acted in a manner likely to instigate or create a criminal offense. Turner, supra, p 20. Defendant is required to show entrapment by a preponderance of the evidence. People v D’Angelo, 401 Mich 167, 183; 257 NW2d 655 (1977).
We find that the above-recited facts do not meet the objective test for entrapment. Detective Cor-win had not used the defendant as an informant for more than one year before Trooper Siegel, working undercover, approached defendant. Siegel never identified himself as a police officer and Detective Corwin had twice cautioned defendant not to commit any illegal acts except at Corwin’s direction. We find this case to be factually distinguishable from People v Hampton, 111 Mich App 782; 314 NW2d 753 (1981), relied upon by defendant. In Hampton, the defendant agreed to work as an informant for Police Officer Edwards. Defendant was told that he would be contacted by someone who would instruct him regarding arrangements for purchasing a large quantity of amphetamines from a doctor. Approximately two months later, Edwards unilaterally terminated the arrangement without informing defendant. Defen dant was contacted by an undercover officer almost immediately after the arrangement was terminated and asked to purchase amphetamines from the doctor. After defendant made four purchases of this type, he was charged with four counts of delivery of amphetamines. In Hampton, unlike the instant case, the defendant performed exactly the service he had been asked to do, under the conditions agreed to, within two months after making the initial agreement with Edwards. We do not find the police conduct in this case to be comparable to that in Hampton.
Since we find no basis for defendant’s claim of entrapment, we decline to reverse defendant’s conviction on the ground that he was ineffectively represented by counsel. Counsel performed at least as well as a lawyer with ordinary training and skill in criminal law and did not make a serious mistake but for which defendant would have had a reasonably likely chance of acquittal.
We also find no merit in defendant’s claim that the trial court erred by failing to sua sponte hold an entrapment hearing and make separate findings of fact and conclusions of law on the entrapment issue. Where defendant makes no effort to have the trial court decide the issue of entrapment, appellate review is precluded. People v Edmonds, 93 Mich App 129; 285 NW2d 802 (1979), Iv den 408 Mich 918 (1980). The issue of entrapment was never raised in the court below and the trial court was under no duty to sua sponte hold a hearing or make findings of fact on this issue.
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Per Curiam.
The subject of this dispute is a lease with an option to purchase involving commercial property located on West Stadium Boulevard in Ann Arbor. Defendant-counterplaintiff Masland Development Company, the owner of the property, entered into a lease with Standard Oil Company, the predecessor in interest of defendant Amoco Oil Company, on February 14, 1958. Renewals of the lease effectuated continuance of the lease through July 17, 1983. On February 2, 1983, the tenant Amoco exercised its option to purchase the property, which was being used as a retail gas station. On May 12, 1983, Amoco assigned the lease including the exercised option to purchase to plaintiff-counterdefendant Larry Stenke who operated the gas station on the premises. Stenke subsequently commenced this action against Masland in the circuit court, seeking specific performance of conveyance of the property pursuant to the option to purchase. Masland filed affirmative defenses and a counterclaim against Stenke, contending that the option provisions of the lease are invalid and unenforceable as a matter of law. Masland also initiated summary proceedings in the district court for possession of the property and unpaid rent. By stipulation of the parties, Masland’s district court action was removed to the circuit court and consolidated with Stenke’s action.
The parties filed opposing motions for summary judgment. The trial court granted summary disposition in favor of Amoco and Stenke and against Masland pursuant to MCR 2.116(C)(9) and (10). Masland appeals from that order, claiming that the trial court erred in finding that the lease which is the subject of the parties’ dispute was assignable, did not constitute an unreasonable restraint on alienation, did not violate the rule against perpetuities, and was not unconscionable. Masland also asserts that the trial court erred in granting summary disposition on Masland’s claim that the appellees waived the right to exercise an option to purchase the subject property, because genuine issues of material fact exist. We affirm the trial court’s order.
I
Masland first argues that the option provision of the lease constitutes an unreasonable restraint on alienation since, according to Masland, it effectively placed an $85,000 ceiling on the value of the leased premises during the term of the lease.
Paragraph 9 of the lease gave the lessee a fixed price option to buy the leased premises for $85,000 and a right of first refusal to buy the property for the amount contained in any bona fide offer made by a third party. Paragraph 9 provides in pertinent part:
Lessee shall have, and is hereby given, the option of purchasing said premises, buildings, fixtures, equipment, machinery and appliances included in this lease, for the sum of EIGHTY FIVE THOUSAND AND NO/100 — DOLLARS ($85,000.00), provided Lessee shall give Lessor notice in writing of its election to exercise said option of purchase at least thirty (30) days prior to the expiration of this lease, or at least thirty (30) days prior to the expiration of any extension period, if this lease be extended, it being understood that in no event may this option be exercised prior to end of first year original term. ... It is further understood that if the Lessor or the Lessor’s heirs, executors, grantees, or assigns, or successors or assigns at any time during the term of this lease or any extension thereof, receives a bona fide offer to purchase said premises or any property which includes the premises, and said buildings, fixtures, equipment, machinery and appliances and desires to sell said premises, buildings, fixtures, equipment, machinery and appliances, or any part thereof under the terms of said offer, Lessor agrees to give Lessee (90) days notice in writing of such bona fide offer, setting forth the name and address of the proposed purchaser who has made the offer, the amount of the proposed purchase price, and all other terms and conditions of such offer, and the Lessee shall have the first option to purchase the demised premises by giving written notice to the Lessor of its intention to purchase within said (90) day period at the same price and on the same terms of any such proposal.
Michigan follows the common-law rule against unreasonable restraints on alienation of property. Moffit v Sederlund, 145 Mich App 1, 12-13; 378 NW2d 491 (1985). The Restatement, Property, § 404, p 2381 defines a restraint on alienation of property as an attempt by an otherwise effective conveyance or contract to cause a later conveyance (1) to be void, (2) to impose a contractual liability upon the conveyor for conveying in breach of the agreement not to convey, or (3) to terminate all or part of a conveyed property interest. Nichols v Ann Arbor Federal Savings & Loan Ass’n, 73 Mich App 163, 165; 250 NW2d 804 (1977), lv den 400 Mich 844 (1977).
While Masland apparently concedes that the dual option is not technically a restraint on alienation since it did not prevent alienation, Masland argues that the practical effect of the option provi sion effectively restricts alienation by placing an $85,000 limit on the purchase price. Masland relies on Nichols, supra, as authority that contractual provisions that restrict alienation as a practical matter constitute unlawful restraint. In Nichols, a due-on-sale clause in a mortgage contract was challenged. While this Court recognized that the clause was not within the classical definition of restraint on alienation, it held that "the due on sale clause directly and fundamentally burdens a mortgagor’s ability to alienate as surely and directly as the classical promissory restraint.” 73 Mich App 166. Masland asks this Court to expand the Nichols rationale to the dual option provision which is the subject of this appeal.
However, Masland’s reliance upon Nichols is misplaced because the dual option provision in the parties’ lease does not restrict alienation even as a practical matter. Masland’s position is premised upon an interpretation of the option clause that the option to purchase at a fixed price can intervene in a circumstance in which the lessee has already been notified of a third-party offer. This Court rejected such an interpretation of an identical option provision in Amoco Oil Co v Kraft, 89 Mich App 270; 280 NW2d 505 (1979). In Kraft, the lessee was notified of a bona fide purchase offer and declined to exercise its first-refusal option. The sale was made to the third party, and several years later the lessee sought to exercise its fixed-price option. This Court held:
The language of the lease clearly indicates that the parties intended to create alternative options of equal stature. Under plaintiffs interpretation of the contract, however, the first refusal option would cease to be an independent option and instead be transformed into a secondary option subordinate to the fixed price option. Plaintiffs interpretation would freeze the value of the leasehold at the amount of the fixed price option. No one would be willing to purchase the property for a higher price than the fixed price with the knowledge that he could lose his investment and be divested of the property if plaintiff decided to purchase the property at the lower fixed price. This being the case, plaintiff would never have occasion to exercise its first refusal option, and it would be rendered virtually meaningless. We find nothing in the contract to show that the parties intended to make the first refusal option dependent on the fixed price option or to fix a ceiling price on the value of the leasehold. Therefore, plaintiff’s interpretation of the contract cannot stand. See Manassee v Ford, 58 Cal App 312; 208 P 354 (1922), Texaco, Inc v Rogow, 150 Conn 401; 190 A2d 48 (1963).
Conversely, under defendants’ interpretation of the contract, both options continue to be viable until one of them ceases to be merely a contingent interest and instead becomes a vested right, at which time the nonvested option is extinguished. Since defendants’ interpretation of the contract keeps both options independent and viable, it is the more reasonable interpretation of the contract. [89 Mich App 273-275. Footnotes omitted.]
Thus, according to the language of the contract, if Masland had ever received a bona fide offer to purchase from a third party, upon notification as prescribed by the lease the first-refusal option would have vested and the fixed-price option would have been inoperative. We conclude, as did the trial court, that the lease did not limit the price of the property and thus did not effectively constitute an unreasonable restraint on alienation.
II
Masland next argues that the dual option provi sion of the lease violates the rule against perpetuities by creating an estate in property which might not vest during the twenty-five-year term of the lease. More properly stated, the argument is that the option could remain "contingent,” i.e., unexercised, beyond twenty-one years.
The common-law rule against perpetuities has been adopted in Michigan by statute. MCL 554.51; MSA 26.49(1). The statute also expanded the rule to apply to both real and personal property interests. The rule against perpetuities is violated if, at the time an instrument creating a future estate (interest in property) comes into operation, it is not certain that the estate will vest or fail to vest within twenty-one years of the death of a person named in the instrument. Moffitt v Sederlund, supra.
It is readily apparent that the rule against perpetuities is not applicable in the present case since the holder of an option to purchase land does not have an interest in the premises, either legal or equitable. Oshtemo Twp v Kalamazoo, 77 Mich App 33; 257 NW2d 260 (1977), lv den 402 Mich 814 (1977). The rule against perpetuities applies only to future estates or interests in property. In Windiate v Leland, 246 Mich 659, 665; 225 NW 620 (1929), the Supreme Court quoted with approval the following language from Keogh v Peck, 316 Ill 318; 147 NE 266; 38 ALR 1151 (1925):
"An option to purchase does not create estate in land. No title, legal or equitable, is granted to the holder of the option by an option agreement.
"Options are not invalid as contrary to rule against perpetuities. Optional contracts, either in deeds or in long-term leases, giving an optional right of forfeiture and re-entry for covenant broken or a right of renewal are not invalid as being contrary to the rule against perpetuities.”
Masland asserts that Windiate is not controlling authority because its holding was based upon a statutory rule against perpetuities which was repealed in 1949. This argument is faulty for two reasons. First, while Windiate was originally decided by analysis of only the then-applicable statute, 236 Mich 531, 534 (1926), on rehearing our Supreme Court also reviewed the case under the perspective of the common-law rule. The Court’s rationale on rehearing was based on its "own holding, by text writers, and by decisions of other courts.” 246 Mich 664-665. In short, the conclusion that options cannot violate the rule against perpetuities was based on the common-law rule which remains the controlling law of this state today. Second, the underlying premise of Windiate, that an option to purchase creates no interest on behalf of the option holder, remains current law. Oshtemo Twp v Kalamazoo, supra. The lower court did not err in granting summary disposition against Masland’s rule against perpetuities defense.
III
Masland also argues that it should be given the opportunity to show at trial that the purchase option provision was unconscionable.
During discovery, the only deposition taken was that of Masland’s president, Joseph Petovello. Petovello is also a director and the sole owner of Masland. Masland, a commercial real estate development company, was founded by Edward Maslanka. Petovello bought Masland in 1961. At the time the instant lease was negotiated, Masland was represented by Maslanka, who was a commercial builder, and Maslanka’s lawyer. It happens that Petovello at the time was an employee of Standard (the corporate predecessor of Amoco), and negotiated the subject lease, that he now claims is unconscionable, on behalf of his employer.
Petovello, a licensed real estate broker, has extensive experience in commercial real estate development, particularly in the area of retail petroleum outlet locations. He testified that fairly extensive negotiations regarding the instant lease took place between himself and Masland’s representatives, and that the parties did not reach an agreement for sixty days. One of the major issues during negotiations was the amount at which the fixed-price option should be set, which Masland attempted to fix at as high an amount as possible. Petovello also testified that when the parties agreed to a price of $85,000, it was a fair and good ¡price for the land.
The equitable doctrine of unconscionability has a long history in Michigan. In Eames v Eames, 16 Mich 348 (1868), our Supreme Court refused to exercise its power to order specific performance of a contract because the contract would have given the buyer an unconscionable advantage. The doctrine was adopted by our Legislature in the Uniform Commercial Code, MCL 440.2302; MSA 19.2302, and continues to apply to contracts outside the scope of the Uniform Commercial Code as well. Reed v Kaydon Engineering Corp, 38 Mich App 353, 356; 196 NW2d 487 (1972). There is a two-pronged test for determining whether a contract is unenforceable as unconscionable:
"(1) What is the relative bargaining power of the parties, their relative economic strength, the alternative sources of supply, in a word, what are their options?; (2) Is the challenged term substantively reasonable?” Allen v Michigan Bell Telephone Co, 18 Mich App 632, 637; 171 NW2d 689 (1969), lv den 383 Mich 804 (1970).
Even if the contract is adhesive under the first prong, still the challenged term is enforceable if it is substantively reasonable and not oppressive or unconscionable. Allen, supra, p 638; Brown v Siang, 107 Mich App 91, 107; 309 NW2d 575 (1981). [Ryoti v Paine, Webber, Jackson & Curtis, Inc, 142 Mich App 805, 809; 371 NW2d 454 (1985).]
Contrary to Masland’s argument on appeal, its owner, director, and president testified during deposition that the lease agreement was extensively negotiated by experienced and knowledgeable persons. Unlike the typical contract of adhesion between an individual and a monopoly, this lease was the result of two corporations dealing at arms’ length. Such circumstances support the conclusion that the instant lease is not unconscionable. See St Paul Fire & Marine Ins Co v Guardian Alarm Co of Michigan, 115 Mich App 278, 283; 320 NW2d 244 (1982).
Even if there were unequal bargaining power to the extent that Standard’s position was unconscionably advantageous, the lease is still enforceable if the resultant terms are substantively fair. Ryoti, supra, p 809. Masland argues that the option provision was unfair. It points to the dual option provision, and repeats its argument regarding interpretation of the effect of that provision which it advanced in its first issue on appeal. As set forth previously, Masland’s argument has no merit.
The appellees’ motions for summary judgment on this issue were brought pursuant to GCR 1963, 117.2(3), now MCR 2.116(C(10). A motion for summary judgment under rule 117.2(3) is designed to test whether there is factual support for a claim. In ruling on this motion, a trial court must con sider not only the pleadings, but also depositions, affidavits and other documentary evidence. Rizzo v Kretschmer, 389 Mich 363, 373; 207 NW2d 316 (1973). The party opposing the motion must come forward to establish the existence of a material factual dispute. If the nonmoving party fails to establish that a material fact is in issue, the motion is properly granted. Bob v Holmes, 78 Mich App 205, 212; 259 NW2d 427 (1977).
Here, Masland has failed to point to anything on the record which would support its contention that the lease was procedurally or substantively unconscionable. Rather, the testimony of Masland’s president amounts to a party admission that the lease negotiations and the resultant terms were fair. In ruling on the motion, the trial court held that the record entirely failed to substantiate Masland’s contentions of unconscionability. We agree. The dual option provision afforded Masland two alternatives: 1) it could do nothing and be faced with the possibility that Amoco would exercise its $85,-000 fixed price option, or 2) it could have put the property on the market and attempted to get a higher price. As a matter of law, where the fixed price option is fair at the time the contract was entered into and the owner is free to sell to a purchaser who will pay a higher price, we cannot conclude that the dual option provision in dispute in this case is unconscionable. Because there was no factual issue in dispute regarding the unconscionability of the contract, summary disposition of this issue was proper. Barck v Grant State Bank, 137 Mich App 440, 446; 357 NW2d 872 (1984).
IV
Masland next argues that the purchase-option provision of the lease was not assignable and therefore its purported assignment by Amoco to Stenke is invalid as a matter of law.
Paragraph 12 of the parties’ lease begins:
Lessor agrees that Lessee may assign this lease or sublet the premises and equipment herein described without consent of Lessor.
Based upon this language, the trial court held that Amoco unquestionably could assign its lessee’s interest to Stenke. Masland now avers that the trial court misinterpreted the above-quoted provision. It asserts that the assignment clause must be read in context with other provisions that suggest that assignment of the lease was contemplated only for assignment of the lessee’s possessory interest in the property. This argument focuses upon the use of "lease” (with a small "1”) as opposed to "Lease” which Masland claims indicates that only the possessory interest of the lease was assignable.
Absent a contractual provision prohibiting assignment, an option to purchase contained in the lease is assignable. Berrien County Fruit Exchange, Inc v Pallas, 314 Mich 66, 72; 22 NW2d 74 (1946). As a general rule, contractual restrictions against assignability are strictly construed, Miller v Pond, 214 Mich 186, 190; 183 NW 24 (1921), and in cases of options to purchase, the lease is to be construed with the purpose of benefit to the lessee in view. Holt v Stofflet, 334 Mich 272, 274; 54 NW2d 593 (1952).
Masland’s contention that the use of "lease,” as opposed to "Lease,” in paragraph 12 supports its position is both strained and mistaken. The parties’ lease consists of two separate contracts, which were simultaneously made. The first, entitled "Lease,” is a one-page document which merely gave to Standard the right to possession and use of the property. The second document, entitled "Agreement,” consists of four pages and sets forth all of the remaining terms of the parties’ contract. In paragraph 1 of the agreement, reference is made to the "Lease,” and the agreement is incorporated into the Lease. Elsewhere in the agreement, when reference is made to the overall terms of the contract, the documents together are referred to as the "lease.” Thus, the use of "lease” in paragraph 12 of the parties’ contract actually leads to the opposite conclusion than that urged by Masland here. That is, since "lease” refers to all of the terms of the contract and "Lease” refers to the one-page document which granted possession of the property, paragraph 12 clearly allows assignment of the lease and all of its terms, including the purchase-option provision.
Moreover, Masland’s interpretation of the lease does not comport with Michigan law. Unless expressly excluded, the assignment of a lease vests the assignee with all the rights of the former lessee. Weatherwax Investment Co v PPG Industries, Inc, 43 Mich App 546, 549; 204 NW2d 353 (1972). Contrary to Masland’s contention, the purchase option clause is not separable from the leasehold interest. Meadow Heights Country Club v Hinckley, 229 Mich 291, 293-294; 201 NW 190 (1924). The documents in question did not expressly exclude assignment of the option to purchase and consequently the trial court did not err in ruling that the option was assignable.
v
Masland’s final argument is that genuine issues of material fact exist with respect to its contention that Amoco waived its option to purchase the leased premises.
Joseph Petovello, Masland’s president, testified during his deposition that in 1981 and 1982 he was told by certain Amoco employees that Amoco would not be releasing or purchasing the subject property. Only later in 1982 or in early 1983 did Amoco appear to reverse its position and exercise its purchase option.
Stenke and Amoco assert Petovello’s deposition does not raise a genuine issue of material fact that there was a waiver of the option and, in any event, that the purported oral waiver was ineffective as a matter of law under MCL 556.1; MSA 26.978(1), since it was not in writing. We need not consider whether the purported oral waiver was ineffective since we agree that Petovello’s own testimony establishes that he was well aware from his own experience as an Amoco employee that the Amoco employees with whom he discussed the matter had no authority to waive the purchase option and that any statement by them that Amoco would not be exercising the option was not binding on the company.
Petovello testified to Amoco’s management hierarchy, which did not vest in its field representatives the authority to enter into leases. While the field representatives and their managers conducted the negotiations with outside parties, authority to agree to contractual terms was reserved to personnel two and three tiers higher in the management scheme. Petovello’s conversations with Amoco employees regarding Amoco’s release or purchase of the property all took place with employees who did not have contractual authority on behalf of Amoco, or at least no authority to waive the purchase option. Significantly, Petovello was aware that he was not dealing with employees who could speak with finality for Amoco. Moreover, Petovello never acted in reliance upon the pur ported waiver. Rather, he testified that he did not enter into a lease or sale agreement with any third persons because he was bound to the Amoco lease, including the possibility that the purchase option would be exercised, even after the purported waiver.
Thus, Masland itself, by its president, director, and sole owner, has established that the presentations made to Masland by Amoco were not made by persons who had authority to waive Amoco’s contractual rights, that Masland was aware that the employees making the representations had no such authority, and that Masland was never induced to believe that Amoco had waived its purchase option right. Conversely, Masland has not submitted any affidavit or any other documentation that would dispute Petovello’s testimony and raise a genuine issue of material fact. Under the circumstances, summary disposition of the issue was proper. Durant v Stahlin, 375 Mich 628, 638; 135 NW2d 392 (1965).
Accordingly we affirm the trial court’s well-reasoned opinion and order granting summary disposition against Masland.
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MacKenzie, P.J.
Plaintiff began working for defendant Michigan Oil Company (moc) as vice president and general manager in 1981 after two interviews with defendant Smith, president and a director of moc, regarding the position. This case arises from plaintiffs 1984 termination of employment. Plaintiff appeals as of right from an opinion and order granting summary disposition, apparently pursuant to MCR 2.116(C)(8) and (10). We affirm.
Plaintiff filed his first complaint on May 18, 1984. The complaint specified four claims: Count i, discharge by moc without good or just cause; Count ii, unjustifiable inducement by Smith, causing moc to breach its agreement with plaintiff; Count iii, unjustifiable interference by Smith with the agreement between plaintiff and moc; and Count iv, publication by Smith of objectionable material which tended to place plaintiff in a false light, causing plaintiff embarrassment, humiliation and emotional stress. On October 10, 1984, defendants filed a motion for summary judgment as to all counts pursuant to GCR 1963, 117.2(1) and (3), now 2.116(C)(8) and (10). Before the motion was heard, however, the parties agreed that plaintiff would file a first amended complaint. Although defendants’ motion was prepared in response to plaintiffs original complaint, on May 22, 1985, the trial court granted summary disposition as to all counts of plaintiffs first amended complaint.
On appeal, plaintiff first contends that the trial court improperly granted summary disposition pursuant to MCR 2.116(C)(10) as to Count i. A motion brought under this subrule tests whether there is factual support for plaintiffs claim. A court, in deciding such a motion, must consider the pleadings, affidavits, depositions, admissions, and documentary evidence available to it and give the nonmoving party the benefit of every reasonable doubt. The motion must not be granted unless the court is satisfied that it is impossible to support the claim at trial because of some deficiency which cannot be overcome. See Kortas v Thunderbowl & Lounge, 120 Mich App 84; 327 NW2d 401 (1982), discussing GCR 1963, 117.2(3).
Count i of plaintiffs amended complaint alleged that plaintiff was wrongfully discharged, without good or just cause. In our opinion, the trial court properly ruled, after reviewing plaintiffs amended complaint and all available depositions and affidavits, that plaintiff’s claim was unsupportable since his employment was terminable at will.
Contracts for permanent employment are generally construed to be indefinite hirings terminable at the will of either party. Lynas v Maxwell Farms, 279 Mich 684, 687; 273 NW 315 (1937). Nevertheless, a provison making indefinite employment terminable only for cause may be expressed in an oral or written contract, or may arise from an employee’s legitimate expectations grounded in an employer’s established policies and procedures. See Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 598; 292 NW2d 880 (1980). A mere subjective expectancy of continued employment on the part of an employee will not justify an expectation of termination for just cause only. Schwartz v Michigan Sugar Co, 106 Mich App 471; 308 NW2d 459 (1981), lv den 414 Mich 870 (1982).
In this case, it is undisputed that plaintiff was not hired pursuant to a written contract. The only established employment policies and procedures before the court neither stated nor implied that plaintiff (or any other employee) could be terminated by defendants only for cause. Plaintiff alleged in his complaint that when he accepted employment with moc he was led to believe that he could be terminated only for just cause based upon statements made to him by Smith regarding his level of compensation and benefits, his possible future benefits, a possible future promotion, and the amount of time he should take to learn the business before deciding whether or not to stay with the company. These were promises of what plaintiff could expect if his employment continued; they were not statements regarding moc’s termination policy. See Schwartz, supra, pp 478-479. Moreover, plaintiff’s deposition testimony refutes such an understanding. Plaintiff testified that there were no promises that moc would never ask for his resignation. He did not discuss during his interviews with Smith any restrictions on defendants’ right to terminate his employment; in fact, plaintiff testified that he knew Smith had unrestricted authority to fire him. When asked to explain the basis for his belief that he could not be discharged except for cause, plaintiff said: "Because I came to do the job, and I did the job.”
Plaintiff’s expectation of continued employment with moc is similar to that of the plaintiff in Schwartz, supra, p 479:
Plaintiffs deposition testimony made it clear that he felt he could only be discharged for cause not because of any representations or policies promulgated, but because of his own personal belief that an employee doing competent work would be retained as a company asset. Plaintiff considered this "a convenience in almost any company”. Such a subjective belief is insufficient to establish a contract implied in fact. Thus, although plaintiffs complaint sufficiently pled a cause of action on this theory, in fact, plaintiffs basis for the claim is not the objective circumstances of his employment, but his own personal view of what the law should be.
As this Court held in Schwartz, the trial court’s dismissal of plaintiff’s wrongful discharge claim in the instant case was proper.
Plaintiff next contends that the trial court erred in granting summary disposition as to Counts n and iii of plaintiff’s amended complaint. In these counts, plaintiff claimed that Smith, for reasons personal to himself, induced moc to breach its contract with plaintiff and tortiously interfered with that contractual relationship. The trial court ruled that because Smith was essentially a party to the employment contract he was privileged to terminate the relationship and thus could not be sued for wrongful interference. We affirm the trial court’s ruling on slightly different grounds.
To maintain a cause of action for tortious interference with a contract, a plaintiff must establish a breach of contract caused by the defendant, Trepel v Pontiac Osteopathic Hospital, 135 Mich App 361; 354 NW2d 341 (1984), lv den 422 Mich 853 (1985), and that the defendant was a "third party” to the contract or business relationship, Seven D Enterprises, Ltd v Fonzi, 438 F Supp 161 (ED Mich, 1977). In the instant case, there was no factual support for either element. First, since plaintiff’s employment contract was terminable at will, there could be no breach arising from its termination. To the extent that Tash v Houston, 74 Mich App 566; 254 NW2d 579 (1977), lv den 401 Mich 822 (1977), would lead to a different result, we reject the majority’s reasoning in that case and adopt that of the dissent. Second, as the trial court concluded, Smith was not a third party to plaintiff’s employment relationship with moc. Plaintiff, in his complaint, states that his employment agreement was made by Smith on behalf of moc. Smith is a director of moc, its president, a controlling shareholder, and director and chief executive officer of its parent corporation. He had express authority and responsibility for hiring, evaluating, supervising, and terminating plaintiff on behalf of moc. In short, Smith is the company on these facts. Summary disposition was therefore proper.
Plaintiff next challenges the trial court’s ruling, apparently under MCR 2.116(C)(8), that plaintiff failed to state a cause of action for false light invasion of privacy against Smith. A motion under this subrule tests the legal sufficiency of the pleadings alone. All well pled allegations must be taken as true. The motion should be denied unless the alleged claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Hankins v Elro Corp, 149 Mich App 22; 386 NW2d 163 (1986). In the instant case, the court noted that "[e]ven an intentionally false comment is not actionable unless it results in unreasonable and highly objectionable publicity that attributes to the plaintiff characteristics, conducts [sic], or beliefs that are false so that he is placed before the public in a false position.” This analysis was correct. See, e.g., Beaumont v Brown, 401 Mich 80, 95, n 10; 257 NW2d 522 (1977); Ledl v Quik Pik Food Stores, Inc, 133 Mich App 583; 349 NW2d 529 (1984); Reed v Ponton, 15 Mich App 423, 426; 166 NW2d 629 (1968). Since plaintiff’s amended complaint alleges incidents which occurred only in the presence of other employees or, at most, a handful of office visitors within hearing range, plaintiff failed to plead facts sufficient to establish that "the oral communication [was] broadcast to the public in general or publicized to a large number of people.” Reed v Ponton, supra, p 426. Summary disposition was thus proper.
Finally, we reject plaintiff’s argument that the trial court should have granted him leave to amend his complaint following its ruling on defendants’ motion. Where summary disposition has been entered against a party, he can only amend his complaint by leave of the court. Steel v Cold Heading Co, 125 Mich App 199; 336 NW2d 1 (1983). In this case, we find no record evidence that plaintiff sought leave to file a second amended complaint. In any event, we note that plaintiff was allowed to amend his complaint after defendants filed their motion for summary judgment, and hence had a full and fair opportunity to draft his pleadings in response to the issues raised by defendants.
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E. E. Borradaile, J.
This case has had a tortured and tortuous route through the trial and appellate process of this state. The incident giving rise to this case occurred on October 5, 1983, in Highland Park, when defendant shot a police officer and exchanged gunfire with another police officer. Defendant was arrested and charged with two counts of assault with intent to commit mur der and one count of felony-firearm. On March 14, 1984, defendant was convicted of two counts of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and one count of possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2), after a jury trial before Wayne Circuit Court Judge Thomas J. Foley. On April 10, 1984, Judge Foley sentenced defendant to prison for from six years, eight months to ten years for the assault convictions, and to the mandatory consecutive two-year term for the felony-firearm conviction.
The case was then appealed to this Court, which affirmed the convictions but remanded for resentencing on the ground that the trial court failed to give defendant an opportunity to exercise his right to allocution. People v Miller (Docket No. 78416, decided June 11, 1985 [unreported]). Defendant was resentenced before Judge Foley on July 16, 1985, and it is from that proceeding that the present appeal was taken as a matter of right.
Prior to this appeal, however, habitual offender proceedings under MCL 769.11; MSA 28.1083 were instituted pursuant to a separate information filed by the prosecutor. Judge Foley disqualified himself from the habitual offender proceedings on July 17, 1984. Defendant was found guilty of being an habitual offender by Wayne Circuit Court Judge John R. Kirwan on July 19, 1984, after a bench trial. On September 6, 1984, Judge Kirwan sentenced defendant to from thirteen years, four months to twenty years imprisonment. Defendant appealed from his habitual offender conviction as a matter of right, but this Court affirmed. People v Miller (Docket No. 82147, decided October 28, 1985 [unreported]).
During the resentencing proceeding, Judge Foley sentenced defendant to prison terms of the same duration as he originally handed down on April 10, 1984. He also indicated that the terms for the assault convictions and the felony-firearm conviction were to be served consecutively to the unexpired portion of a prior term for an armed robbery conviction, for which defendant had been placed on parole prior to the October 5, 1983, events, but for which he had been placed on hold by the parole board when he was arrested on the felony-firearm and assault with intent to commit murder charges.
Judge Foley, though requested by defendant to set aside the term for one of the assault, or "underlying offense,” convictions pursuant to MCL 769.13; MSA 28.1085, which provides for vacating the sentence for the underlying offense after a conviction as an habitual offender, refused to do so, apparently under the belief that Judge Kirwan, the presiding judge at the habitual offender trial, was the only judge who could order vacation. At the sentencing for the habitual offender conviction, Judge Kirwan did not order vacation of the sentence for one of the underlying offenses, and the issue was not raised on the appeal as of right from the habitual offender trial.
We reverse the consecutive sentences imposed for the assault convictions and remand this case to Judges Foley and Kirwan for resentencing.
I
Michigan law seems quite clear that concurrent sentences are the norm and consecutive sentencing is not to be used except when specifically authorized by statute. People v Henry, 107 Mich App 632; 309 NW2d 922 (1981). See also Wayne Co Prosecutor v Recorder’s Court Judge, 406 Mich 374: 280 NW2d 793 (1979), app dis 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979), for an excellent discussion of when sentences may run consecutively as opposed to concurrently.
MCL 768.7a; MSA 28.1030(1), the statutory provision relied upon by the trial court in imposing consecutive sentences, requires that, if an inmate incarcerated in or escaping from a "penal or reformatory institution” commits a crime punishable by imprisonment, then the prison term imposed for that crime should be served consecutively to the unexpired time from any prior conviction. In People v Walker, 143 Mich App 479; 372 NW2d 596 (1985), this Court held that a parolee is not subject to incarceration for purposes of that section of the statute and, hence, that consecutive sentencing cannot be imposed since the parolee "is free from the enclosures of a prison facility.” Id., p 481 (quoting People v Sanders, 130 Mich App 246, 251; 343 NW2d 513 [1983]). Walker is indistinguishable from the instant case and thus mandates the same result.
Defendant also requests that resentencing on remand take place before a different judge than the presiding judge at the underlying offense trial and resentencing proceedings, but has failed to cite authority or to provide any rationale for this request. There appears to this Court to be no justification for such a request, and that request accordingly is denied.
II
MCL 769.13; MSA 28.1085 clearly requires that the sentence for the underlying offense be vacated. See also People v Thomas Johnson, 133 Mich App 150, 156-157; 348 NW2d 716 (1984); People v Nathaniel Johnson, 113 Mich App 414, 422; 317 NW2d 645 (1982). The language of the statute is that "[i]f the accused pleads guilty to the information or if the jury returns a verdict of guilty, the court may sentence the offender to the punishment prescribed in section 10, 11, or 12, and shall vacate the previous sentence, deducting from the new sentence all time actually served on the vacated sentence if required.” (Emphasis added.)
The difficulty arises in this case because one judge heard the trial of the underlying offenses and then disqualified himself from hearing the habitual offender proceeding. Both the underlying convictions and the habitual offender conviction have been appealed to this Court, and this Court, in the appeal from the assault convictions, indicated as dictum that the sentence for one of the underlying offenses must be vacated at resentencing, but failed to directly address the question as to which proceeding is appropriate to make this order.
The appeal as of right in this case was taken from the assault and felony-firearm proceedings only, not the habitual offender proceedings which were conducted before a different judge and from which another appeal as of right was taken earlier. The question of whether defendant is entitled to a vacation order, which he clearly is, is not really before this Court on this particular appeal, and it has been said that an issue arising from a related proceeding separate from the proceeding in which the appeal is taken is outside the scope of the appeal for which the opinion is requested. German v German, 57 Mich 256, 259; 23 NW 802 (1885). We are satisfied, however, that to allow this to stand without correction would be exalting form over substance, and accordingly deal with the issue.
In People v Thomas Johnson, supra, 133 Mich App 157, this Court, in a situation not quite analo gous, but similar, where there had been no vacation of the sentence imposed for the underlying felony, modified the sentence on its own order. We believe that People v Coles, 417 Mich 523, 536; 339 NW2d 440 (1983), dictates that the matter must be remanded to the trial court for resentencing:
However, an appellate court’s authority to consider appeals involving sentencing issues and that court’s authority to resentence the defendant on appeal are two separate matters. If the court determines that resentencing is necessary, the case must be remanded to the trial court. The appellate court may direct that the defendant be resentenced by a different judge if the court determines that is warranted by the circumstances.
We reach this conclusion for two principal reasons. First, the Legislature has indicated its intention to confer upon the trial courts alone the power to impose criminal sentences. Second, policy considerations dictate that sentencing should remain the responsibility of the trial courts.
The Coles Court, in determining that a trial court must impose sentence, quoted from MCL 769.1; MSA 28.1072, which reads as follows:
A judge of a court having jurisdiction is authorized and empowered to pronounce judgment against and pass sentence upon a person convicted of an offense in a court held by that judge. The sentence shall not be in excess of the sentence prescribed by law.
MCL 769.13; MSA 28.1085 uses the term "court” and does not use the term "judge” as does MCL 769.1; MSA 28.1072. The Legislature has provided in MCL 762.1; MSA 28.844 that the various courts and persons of this state now having jurisdiction and powers over criminal causes shall have such jurisdiction and powers as are now conferred upon them by law.
If this case were not one where the consecutive sentence was given for the underlying assault felonies, we would have no problem in sending the case back for resentencing to the judge who sentenced on the habitual offender charge and requiring compliance with MCL 769.13; MSA 28.1085. However, in view of the confusion between one judge trying the underlying offenses and the other judge trying the habitual offender charge, we accordingly send the case back to the trial judge on the underlying assault with intent to do great bodily harm less than murder charges and require that he correct his sentences, and that the case then be submitted to the judge who sentenced on the habitual offender charge for him to set aside one of the sentences on the underlying convictions of assault with intent to do great bodily harm less than murder in resentencing on the habitual offender charge.
Reversed and remanded for proceedings consistent with this opinion.
This case perhaps would not have the same problems if the same jury that had heard the underlying offenses also heard the habitual offender charges. It appears that it is within the discretion of the trial court whether the same jury hears both cases. See People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968). See also People v Eroh, 47 Mich App 669; 209 NW2d 832 (1973); People v Elmore, 92 Mich App 678; 285 NW2d 417 (1979); Anno: Juror’s Presence at or Participation in Trial of Criminal Case (or Related Hearing) as Ground of Disqualiñcation in Subsequent Criminal Case Involving Same Defendant, 6 ALR3d 519. | [
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Per Curiam.
Plaintiff appeals as of right from an order granting defendants’ motion for summary disposition entered pursuant to MCR 2.116(C)(10).
The facts are not in dispute. Plaintiff was employed by defendant Commercial Carriers, Inc., a car hauler, to load the company’s trailers with cargo. On April 21, 1983, plaintiff was loading a tractor trailer with a motor home chassis. While driving the chassis onto the trailer, plaintiff was injured when the portable seat in which he was sitting became dislodged and caused plaintiff to fall and strike his back against the side of the trailer.
As a result of the injury, plaintiff received workers’ compensation benefits from defendant Commercial Carriers. Plaintiff also applied to both Commercial Carriers and Old Republic Insurance Company for no-fault insurance benefits. After plaintiff’s claim was denied, he instituted this suit.
We are called upon to interpret an amendment to the parked vehicle provision of the no-fault act, MCL 500.3106; MSA 24.13106. Subsection (2) now reads:
Accidental bodily injury does not arise out of the ownership, operation, maintenance, or use of a parked vehicle as a motor vehicle if beneñts under the worker’s disability compensation act of 1969, ... as amended, being sections 418.101 to 418.941 of the Michigan Compiled Laws, are available to an employee who sustains the injury in the course of his or her employment while loading, unloading, or doing mechanical work on a vehicle unless the injury arose from the use or operation of another vehicle. [Emphasis added.]
Subsection (2) was added to preclude individuals eligible for workers’ compensation benefits from collecting no-fault benefits for injuries arising from acts of loading or unloading a parked vehicle.
The construction to be given to the words "loading” and "unloading” was recently addressed by this Court. In Bell v F J Boutell Driveaway Co, 141 Mich App 802, 810-811; 369 NW2d 231 (1985), this Court, after reviewing the legislative purpose and history of the amendment, concluded that:
[T]he Legislature intended to eliminate duplication of benefits for work-related injuries except where the actual driving or operation of a motor vehicle is involved. Therefore, we find it appropriate to broadly interpret the terms "loading” and "unloading” in subsection (2) because by doing so the statute further eliminates duplication of benefits for work-related injuries that do not relate to the actual driving or operation of a motor vehicle. [Emphasis added.]
Thus, the driving of the chassis onto the trailer for shipment as cargo constituted the loading of a vehicle during the course of employment. The question remaining to be resolved is whether "the injury arose from the use or operation of another vehicle.”
Section 3101(2)(c) of the no-fault act defines "motor vehicle” as follows:
"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.
Accordingly, to fall within the statutory definition, a vehicle must be operated or designed for operation upon a public highway, be powered by a source other than muscular power, and have more than two wheels. McDaniel v Allstate Ins Co, 145 Mich App 603, 607; 378 NW2d 488 (1985).
The chassis in this case was the stripped-down frame of a vehicle, consisting of steel rails, a motor, and a steering wheel. Although it did not include the body, hood, windshields, or even the seat of the finished vehicle, there is no dispute that the chassis was powered by an engine and had more than two wheels. Because the chassis was not being operated upon a public highway at the time of the injury, the decisive inquiry is whether the chassis was designed for operation upon a public highway.
Plaintiff argues that because the chassis was equipped with the minimal components for highway operation (e.g., engine, wheels, steering wheel, etc.) and because similar chassis had been operated on public streets by employees of defendant Commercial Carriers, the chassis was designed for operation on a public highway. We disagree.
In Apperson v Citizens Mutual Ins Co, 130 Mich App 799; 344 NW2d 812 (1983), this Court ruled that a car which had been modified for racing on a track was not a "motor vehicle” because it was no longer designed for use on a public highway. This Court noted that the vehicle was no longer equipped with lights, windshield wipers, turn signals, exhaust pipes, or an outside mirror. Id., 801-802.
Even more persuasive is this Court’s decision in Ebernickel v State Farm Mutual Automobile Ins Co, 141 Mich App 729; 367 NW2d 444 (1985), lv den 422 Mich 969 (1985). In Ebernickel, the plaintiff was injured at his place of employment when he was struck from behind by a forklift which was equipped with an engine, four wheels, lights and an exhaust system and was capable of being driven on a highway. This Court ruled that the forklift was not a "motor vehicle” because it was not "primarily designed for operation on a public highway” at the time of the accident. Id., 731 (emphasis added). Significantly, this Court also stated that the fact that the machine "could be” or "had been previously” operated on a highway was of no consequence in the determination of whether the vehicle was primarily designed for highway use.
Similarly, we find that the chassis in this case was not a motor vehicle within the statutory definition. While it may have been equipped with a motor, steering wheel, and tires, it was not equipped with a body, hood, windshield, or a permanent seat. In its stripped-down state, the chassis was not designed primarily for operation on a highway. The fact that defendant Commercial Carriers may have operated similar chassis on the highway is of no consequence.
Given the above, we find that granting summary disposition in favor of defendants was not erroneous.
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Per Curiam.
The claimant, Dave W. Tuck, was discharged from Ashcraft’s Market during the week of July 24, 1982. He filed for unemployment benefits on August 11, 1982. The Michigan Employment Security Commission found him ineligible for benefits on August 24, 1982. After a redetermination upholding the disqualification was issued on August 31, 1982, claimant filed an appeal for a hearing on September 8, 1982, which was held before a referee on September 28, 1982. The referee upheld the mesc’s redetermination decision on October 22, 1982. Claimant appealed the referee’s decision to the MESC Board of Review on November 5, 1982. The MESC Board of Review confirmed the referee’s decision which had affirmed the redetermination on February 8, 1983. Claimant then filed an application for rehearing on February 24, 1983, which was denied on April 18, 1983. Claimant appealed the MESC Board of Review’s decision to the circuit court, and prevailed on that appeal. Respondent, Ashcraft Market, Inc., now appeals from the Gladwin Circuit Court order which reversed the decision of the MESC Board of Review which upheld the referee’s finding that claimant was discharged from employment as a result of misconduct within the meaning of former § 69(2)(b) of the Michigan Employment Security Act, MCL 421.69(2)(b); MSA 17.569(19)(2)(b), now covered by MCL 421.29(1)(b); MSA 17.531(1)(b), and was, therefore, disqualified for unemployment benefits.
Claimant had worked for defendant Ashcraft’s Market in the meat department as a meat cutter from November, 1980, until July 22, 1982. The incident which culminated in claimant’s discharge involved his unauthorized removal (from Ash-craft’s) of two cartons of fish, at least one of which contained fifteen to seventeen individually wrapped packages of fish. An estimated value of $45 to $55 was given for the contents of one carton.
Bill Patch, the meat division supervisor for all of defendant Ashcraft’s supermarkets, was visiting the store in Gladwin on the date claimant removed the fish. When Patch entered the store, he noticed the claimant carrying a box out of the display cooler into the meat room. He later noticed that box "tossed” in claimant’s pickup truck. At the time of his initial observations, Patch did not know what was contained in the box in the truck. Later, Patch noticed that the box or one identical to the box that claimant had carried out of the cooler and into the meat room was back in the cooler and Patch thought that this was somewhat unusual. Claimant left soon thereafter (his shift was over). Patch checked out the box in the cooler and found that it contained packages of prepackaged fish. The next day, Patch looked into the cooler and found that the carton containing the fish which he had seen in the cooler the previous evening was gone. He asked the meat manager what he knew about the fish and the manager had no idea where it was or that it was taken without authorization. The claimant was approached and when confronted, he readily admitted that he had taken the two boxes of fish the previous evening. When the claimant had left work, he had taken one box home in his truck and returned later that evening and removed the second box of fish through the back door of the supermarket.
Claimant claimed that, while he and another employee were making room in the display cooler for newly delivered products, they both noticed that the fish in question had thawed and it was no longer saleable.
Since the regular manager was gone that day, claimant felt that it was up to him to make decisions concerning what to do with the unsaleable fish. It was claimant’s longstanding habit of five years to take scrap meat for bear baiting, even prior to his employment with defendant Ashcraft. The usual procedure was to remove scrap meat after it had been placed as waste in a "bone barrel” outside the rear door of the store, by driving up and emptying the contents of the bone barrel into another container in the pickup truck. The only difference on this day was that the claimant did not first place the discarded fish into the bone barrel and then dump the bone barrel contents into a container in his truck. Rather, he bypassed the bone barrel and immediately placed the nonsaleable scrap into his truck.
Bill Jesse, manager of respondent Ashcraft, claimed that it was strictly against company rules to remove inventory out the back door of the supermarket or to enter or leave the building from that door. The back door was designated for use only at times of unloading delivery trucks and for garbage removal. Such a rule was required for security reasons and claimant was informed at the time of his hire that other use of the back door was prohibited, and further, that his predecessor had been fired for unauthorized use of the back door. In addition, the company handbook also contained a prohibition against such use and prescribed the appropriate method for removing any items from the store. Claimant acknowledged receipt of the handbook and that he had read it. Jesse steadfastly maintained that it was not within claimant’s scope of authority to make a determination of whether items had outlived their shelf life and that the department head or store manager was the only person authorized to determine the appropriate disposition of nonsaleable goods be it sale to restaurants or employees at a discount or disposal in the bone barrel. The date stamped on the fish was not the expiration date but the package date. There had been no determination by anyone of appropriate authority that the fish had spoiled or that the product was outdated.
After admitting that he took the fish, the claimant was fired. He then contacted Charlie Ashcraft, owner of the market, and three days later returned all but a couple of the individual packages, all of which he brought with him to the administrative hearing held on September 28, 1982.
The administrative referee issued detailed findings of fact and concluded that the claimant’s discharge was for a wilful act which was sufficiently contrary to standards the employer might reasonably expect of an employee. In concluding that the claimant was disqualified for unemployment benefits because of misconduct, the referee used the definition of misconduct found in Carter v Employment Security Comm, 364 Mich 538; 111 NW2d 817 (1961).
The MESC Board of Review affirmed the decision of the referee after reviewing the decision in the light of the evidence appearing in the record. The board affirmed because the decision was in conformity with the law and facts. The trial court reversed this decision after applying the definition of misconduct in Carter, supra. When reversing the MESC Board of Review’s decision, the court stated:
In the instant case the Court is of the opinion that this single incident did not rise to the level of misconduct laid out in Carter. A finding of fact was made that the fish was unsaleable. Plaintiff mistakenly felt he had authority to decide what to do with the unsaleable fish. He breached company rules by not asking the meat manager for permission and by removing the fish by the back door.
However, when asked he gave his explanation as set out above. This is not a case of wilful and wanton disregard of the employer’s interest. He had found spoiled fish that smelled. Ordinarily, it would have gone in the bone barrel. That day he had been instructed to clean out the bone barrel because it smelled. He decided not to put unsaleable fish which smelled into the bone barrel. As was his habit, he took the unsaleable fish home for bear bait out the back door.
Plaintiff at worst is guilty of ordinary negligence or a good faith error in judgment or discretion. Under the Carter doctrine this is not statutory misconduct.
Reversed. Costs to plaintiff.
An order in conformity with this opinion was entered on November 26, 1982. From this order, respondent appeals.
We must determine on appeal whether the trial court erred in reversing the MESC Board of Review.
MCL 421.38; MSA 17.540 provides in part:
The circuit court . . . may review questions of fact and law on the record made before the referee and the board of review involved in a final order or decision of the board, and may make further orders ... as justice may require, but the court may reverse an order or decision only if it finds that the order or decision is contrary to law or is not supported by competent, material and substantial evidence on the whole record. [Emphasis added.]
On appeal from decisions of the board of review, this Court’s review is limited.
The Court of Appeals "may review questions of law or fact, Const 1963, art 6, § 28; MCL 421.38; MSA 17.540, but it can reverse only if’ the board of review’s decision or order "is contrary to law or is unsupported by competent, material and substantial evidence on the record.” Gormley v General Motors Corp, 125 Mich App 781, 784-785; 336 NW2d 873 (1983). See also Bowns v City of Port Huron, 146 Mich App 69; 379 NW2d 469 (1985); Washington v Amway Grand Plaza, 135 Mich App 652; 354 NW2d 299 (1984).
The reviewing court "cannot substitute its own judgment for that of the administrative agency if there is substantial evidence which supports the agency.” Smith v Employment Security Comm, 410 Mich 231, 256; 301 NW2d 285 (1981). "[W]here substantial evidence exists to support both sides and the agency must make a judgment assigning credibility to one side, we may not substitute our judgment for that of the agency.” Id. p 261. Where "there is no dispute as to the underlying facts relative to the issues raised in this appeal, the questions presented are to be treated as matters of law.” Robinson v YMCA, 123 Mich App 442, 445; 333 NW2d 306 (1983). The scope of appellate review includes the soundness of the mesc’s interpretation of misconduct. Washington, supra, p 657; Bowns, supra.
In the instant case, the trial court found that the single complained-of incident did not rise to the level of misconduct which would have warranted disqualification for benefits under former § 69. Thus, the court reversed on the ground that the review board’s decision was contrary to law.
When this case arose, disqualification from unemployment compensation for misconduct was covered by MCL 421.69(2)(b); MSA 17.569(19)(2)(b) which stated:
(2) An individual shall be disqualified for benefits, in all cases in which he or she:
(b) Has been discharged for misconduct connected with his or her work, or for intoxication while at work unless the discharge has subsequently been reduced to a disciplinary layoff or suspension. [MCL 421.69(2)(b); MSA 17.569(19)(2)(b), current version at MCL 421.29(1)(b); MSA 17.531(1)(b).]
In Carter v Employment Security Comm, supra, the Supreme Court adopted the following definition of misconduct:
The term "misconduct” ... is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judg ment or discretion are not to be deemed "misconduct” within the meaning of the statute. [Id., p 541.]
It is the employer’s burden to show statutory misconduct. Fresta v Miller, 7 Mich App 58, 63-64; 151 NW2d 181 (1967).
The only question of law presented by this appeal is whether a finding of misconduct under the statute may be based upon removal of property of an employer which has de minimis value when the removal of such property is contrary to the employer’s established rules and procedures.
The referee did not disqualify claimant from receiving benefits on the ground that he was guilty of theft. The reason he did not, was because the employer had failed to establish the value of the fish. Further, since the fish had been removed from the store and no person of appropriate authority had determined what its condition was at the time of removal, establishing its monetary value would have been very difficult. In the alternative, the referee concluded that claimant was guilty of misconduct because he had removed the property contrary to established rules and procedures.
The referee found:
that any employer may hold a reasonable expectation of examination and of approval or denial with respect to removal of any property which has not been clearly designated, by segregation, from stock inventory or otherwise devalued, in a manner free of self-dealing whether or not the merchandise removed had a prospect of sale value, to the employer, the property right remained the employer’s and in former times, claimant had either removed articles already set out in the bone barrel or approved for removal by the supervisor at hand.
Claimant acted at his peril in retaining control over merchandise removed from freezer to cooler until he could transport it away without seeking the review of either the department manager or store manager. Claimant has not demonstrated that any authority he held to operate the department on the manager’s day off included the authority to dispose of stale stock, particularly when the article held intrinsic value influencing the self interest of the claimant.
It is clear that, while misconduct may justify an employee’s discharge for breach of company rules, not every such breach rises to the level of misconduct sufficient to disqualify the employee for unemployment benefits. Reed v Employment Security Comm, 364 Mich 395; 110 NW2d 907 (1961).
[A]n employee’s continual violation of an employer’s rules may amount to a substantial disregard of the employer’s interests. [Razmus v Kirkhof Transformer, 137 Mich App 311, 316; 357 NW2d 683 (1984).]
A single incident of misconduct may fall within the statutory meaning of misconduct. See Booker v Employment Security Comm, 369 Mich 547, 548-555; 120 NW2d 169 (1963) (opinion of Black, J., and opinion of Kavanagh, J.).
The claimant herein violated the rule by removing the store’s property in a manner contrary to store procedure. However, we believe under the Carter definition of misconduct that the trial court correctly determined that the claimant’s misconduct did not give rise to the level of statutory misconduct as was found by the referee and the board of review. Although there were procedures for removing inventory by store personnel, the management was cognizant of the fact that claim ant had been taking scrap for several years once it was placed in the scrap barrel. Because a manager was not there, claimant made an error of judgment in his determination that he had the authority to decide whether or not to scrap the fish. He made the decision and bypassed the scrap barrel procedure. Claimant breached rules by not asking the meat manager for permission (and thus concluding that the thawed fish was scrap) and by removing the fish by the back door.
We believe that, while claimant’s conduct may have been negligent, he did not wilfully and wantonly disregard his employer’s interests. We do point out that the referee found respondent’s conduct to be misconduct regardless of whether the fish was saleable or not. The trial court erred in its statement that a finding of unsaleability was made. We also believe that claimant’s determination that the fish was unsaleable was a good faith error in judgment and did not evidence an evil design or show a substantial disregard of the employer’s interests.
Therefore, we affirm the lower court’s reversal of the MESÓ Board of Review’s decision. We find it unnecessary to address the remaining issue raised by defendant in light of our disposition here.
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Wahls, J.
The issue in this appeal is whether the petitioner is entitled to an exemption from ad valorem property taxation as to three parcels of improved real property. We conclude that petitioner is entitled to an exemption as a nonprofit charitable institution and, accordingly, we reverse the Tax Tribunal’s determination to the contrary.
Petitioner is incorporated as a Michigan nonprofit corporation, is licensed by the state to solicit charitable contributions, and enjoys exemption from federal taxation under IRC § 501(c)(3). Petitioner’s articles of incorporation state its purpose as follows:
To develop, maintain, operate, own, and control facilities and to develop programs to place, rehabilitate and assist selected county and area youth; and to do all acts necessary and incidental to said objective, including but not limited to fund raising, public relations, hiring of personnel, establishing policy, establishing salaries and budgets and the administration of same.
Petitioner provides residential treatment pro grams for youths from ages ten to eighteen years and independent living programs for youths who are ready to leave the residential programs. There are no limitations to admission based on sex, race, creed, national origin, religion or ability to pay. Petitioner occasionally accepts youths on an emergency basis without reimbursement and at least once accepted a youth on a long term basis without reimbursement. Petitioner considers for admission any youth in need of its services, regardless of the location of the youth’s residence. The only reasons cited by petitioner for rejection were if the youth had an established history of frequent fire settings or running away or if petitioner determined a youth would not benefit from its programs. Most of the youths are referred to petitioner by the Department of Social Services, Department of Mental Health, juvenile and other courts and other agencies that are involved in care and treatment of abused, neglected and troubled young people.
Petitioner is administered by a board of directors who are volunteers from the community at large and receive no remuneration. Staff members are paid but receive no other remuneration except for occasional consultation fees for services they provide to other agencies. Staff members often counsel youth outside their normal working hours.
Petitioner’s principal source of funding is per diem payments from the State of Michigan. The payment rates are determined by contracts with the Departments of Social Services and Public Health and are designed to cover costs only and not to generate profit. These government payments account for more than ninety-nine percent of petitioner’s operating funds. Less than one percent of petitioner’s operating funds are provided by contributions and petitioner has no charitable endowment.
Petitioner operates two specialized care units (scu), five community-based treatment programs (ecu), one supervised independent living program and one school site. The scus are self-contained units which provide education within the unit, house six youths and three staff and are designed for the more seriously troubled youths. The ecus provide job training and teach survival skills in the community, also house six youths each and are designed for youths who can function in the community. Of the three parcels involved in this appeal, two are scus and one is a ecu. One of the scus has two certified special education teachers, one certified teacher’s aide and a full educational program on site.
On appeal, petitioner argues that it is entitled to a property tax exemption as a charitable institution pursuant to MCL 211.7o; MSA 7.7(4-l), as an educational institution pursuant to MCL 211.7n; MSA 7.7(4k), or as an entity providing government services which should, like the government, be exempt from taxation. As we conclude that petitioner is entitled to the charitable institution exemption, we limit our discussion to that exemption alone.
The General Property Tax Act provides that all real and personal property within the jurisdiction of this state is subject to taxation unless expressly exempted. MCL 211.1; MSA 7.1. Exemption statutes are subject to a rule of strict construction in favor of the taxing authority. Retirement Homes of the Detroit Annual Conference of the United Methodist Church, Inc v Sylvan Twp, 416 Mich 340, 348; 330 NW2d 682 (1982). The rule is stated in 2 Cooley on Taxation (4th ed), § 672, p 1403:
An intention on the part of the legislature to grant an exemption from the taxing power of the State will never be implied from language which will admit of any other reasonable construction. Such an intention must be expressed in clear and unmistakable terms, or must appear by necessary implication from the language used, for it is a well-settled principle that, when a specific privilege or exemption is claimed under a statute, charter or act of incorporation, it is to be construed strictly against the property owner and in favor of the public. This principle applies with peculiar force to a claim of exemption from taxation. Exemptions are never presumed, the burden is on a claimant to establish clearly his right to exemption, and an alleged grant of exemption will be strictly construed and cannot be made out by inference or implication but must be beyond reasonable doubt. In other words, since taxation is the rule, and exemption the exception, the intention to make an exemption ought to be expressed in clear and unambiguous terms; it cannot be taken to have been intended when the language of the statute on which it depends is doubtful or uncertain; and the burden of establishing it is upon him who claims it. Moreover, if an exemption is found to exist, it must not be enlarged by construction, since the reasonable presumption is that the State has granted in express terms all it intended to grant at all, and that unless the privilege is limited to the very terms of the statute the favor would be extended beyond what was meant. [Quoted in Detroit v Detroit Commercial College, 322 Mich 142, 148-149; 33 NW2d 737 (1948).]
The charitable institution exemption is set forth in MCL 211.7o; MSA 7.7(4-l):
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 occu pied by them solely for the purposes for which they were incorporated ....
It is undisputed that the property in this case is owned and occupied by petitioner and that petitioner is a nonprofit institution incorporated under the laws of this state. In dispute are the requirements that the institution be charitable and that it occupy the property solely for the purposes for which it was incorporated.
The Tax Tribunal concluded that these latter two requirements are interrelated and thus did not clearly address them separately. In this, the Tax Tribunal’s analysis was deficient. The first of these two requirements looks to the corporation’s general character, the second to its specific operation. A charitable corporation will be taxed for its nonexempt occupancy of property, but the loss of the exemption does not deprive the corporation of its charitable status or its exemptions as to charitable occupancy of other property. For example, in Retirement Homes, supra, the plaintiff received exemptions for its operation of a licensed nursing home and a licensed home for the aged, but it was denied an exemption with respect to an apartment complex for elderly residents chosen on the basis of their financial and physical independence.
The generally accepted rule as to charitable institution status is stated in Exemption of charitable organization from taxation or special assessment, 34 ALR 634, 635:
In general, it may be said that any body not organized for profit, which has for its purpose the promotion of the general welfare of the public, extending its benefits without discrimination as to race, color, or creed, is a charitable or benevolent organization within the meaning of the tax exemption statutes. [Quoted in Auditor General v R B Smith Memorial Hospital Ass’n, 293 Mich 36, 38-39; 291 NW2d 213 (1940).]
See also Asher Student Foundation v East Lansing, 88 Mich App 568, 572; 278 NW2d 675 (1979), lv den 406 Mich 999 (1979). Implicit in the Tax Tribunal’s findings in this case is that petitioner satisfies the general rule above. In addition to finding that petitioner offered its services to youths on a nondiscriminatory basis, the Tax Tribunal stated:
We find that Petitioner is a nonprofit corporation, and that the services which Petitioner provides are of benefit to the general public in the sense that the public will always benefit wherein provision is made for the needs of its youth.
We believe that petitioner qualifies as a charitable institution.
To receive an exemption for specific owned property under the first part of § 7o, a charitable institution must occupy and use the property in such a way that it "benefit the general public without restriction.” Michigan Baptist Homes & Development Co v Ann Arbor, 396 Mich 660, 671; 242 NW2d 749 (1976). In Retirement Homes, supra, pp 348-349, the Supreme Court expanded on what unrestricted public benefit meant by adopting a description of charity employed in numerous other jurisdictions:
"[C]harity . . . [is] a gift, to be applied consistently with existing laws, for the benefit of an indefínite 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,”
The Tax Tribunal was of the opinion that petitioner offered no gift because the state pays it a per diem rate based upon its costs. This per diem funding constitutes more than ninety-nine percent of petitioner’s funding. The Tax Tribunal was persuaded by respondents’ argument that petitioner is a "governmental contractor” and should be viewed as a business. We cannot agree with this analysis.
The Tax Tribunal found that petitioner did not discriminate on the basis of ability to pay and had accepted youths without any reimbursement. However, as petitioner’s witness explained, virtually all troubled youths in need of a residential treatment program have contacts with the state and state funding is available. The problem presented by the Tax Tribunal’s analysis is where to draw the line. Will eighty-five percent or fifty-five percent or forty-five percent funding by the state permit an exemption?
First, we note that the youths clearly receive a gift. From our review of Retirement Homes, supra, it appears that the proper focus is whether there is a gift for the benefit of the residents. Here it is the state, not the residents, that pays for the services rendered to the residents.
Second, we note that petitioner does not charge more than the cost of its services — its charges are based on per diem rates established by the state on the basis of petitioner’s costs in the prior eighteen months. Consequently, in an inflationary period, petitioner’s charges will generally be less than its current costs. In Retirement Homes, supra, p 350, n 15, the Supreme Court stated that "a nonprofit corporation will not be disqualified for a charitable exemption because it charges those who can afford to pay for its services as long as the charges approximate the cost of the services.” If petitioner could charge, at the per diem rate, people using its services and able to pay, we think it ought also to be able to pass on such charges to the state.
In Retirement Homes, supra, p 351, n 16, the Supreme Court noted that, in three cases from sister jurisdictions, "a tax exemption was granted, at least in part, because many of the residents were subsidized either by the home, by the government, or by both.” In the instant case, the residents were subsidized almost completely by the state because, if petitioner did not provide the service, the state itself would have been required to care for the youths. That petitioner’s service fulfills a government purpose should tend to qualify it as a charitable purpose rather than disqualify it. 2 Restatement Trusts, 2d, §368, quoted in Baptist Homes, supra, p 680 (Coleman, J., dissenting). Furthermore, the uncontradicted testimony at the Tax Tribunal hearing indicated that petitioner’s programs cost the state less than if the state itself provided the programs.
We reject as unsatisfactory and unprecedented the Tax Tribunal’s denial of an exemption to petitioner as a "government contractor.” We find equally unsatisfactory the Tax Tribunal’s second reason for denying an exemption: that the Legislature’s specific exemption of certain nonprofit housing indicates that the Legislature believed that at-cost housing was not already exempt as "charitable” and, accordingly, because housing for youths was not specifically exempted, such housing cannot be exempted under the general charitable exemption.
The Tax Tribunal’s analysis relies on the exemptions for housing of elderly or handicapped fami lies in MCL 211.7d; MSA 7.7(4a) and for charitable homes in MCL 211.7o; MSA 7.7(4-l). The tribunal believed that these specific exemptions would be redundant if at-cost housing would qualify for the general exemption. However, it should be clear that the specific exemptions, while they may overlap with the general exemption, cannot be considered as subsets of the general exemption. For example, one specific exemption is for charitable homes of fraternal societies. MCL 211.7o; MSA 7.7(4-l). This exemption does not require that the society be "incorporated under the laws of this state.” Similarly, the § 7d exemption for housing of elderly or handicapped families permits the housing to be owned and operated by a nonprofit corporation "or association.” The only conclusion that may be drawn from consideration of these specific housing exemptions is that the Legislature has not broadened the exemption for youth housing beyond the scope of the long-standing "charitable” exemption.
Implicit in the Tax Tribunal’s opinion is the acknowledgement that petitioner qualifies for the § 7o exemption apart from two objections: that petitioner appears to be a "government contractor” and that the specific exemptions for other kinds of housing must mean that youth housing is not exempted. Because we find no merit in these two objections, we conclude that petitioner is entitled to the exemption. The record supports such a result.
Reversed. No costs, a public question being involved. | [
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Per Curiam.
Plaintiff, Camille Sponkowski, as personal representative of the estate of decedent, Lorrie Sponkowski, appeals as of right from the grant of defendant Charles Wood’s motion for summary disposition dismissing plaintiffs negligence action for failure to state a claim upon which relief can be granted. MCR 2.116(C)(8). Plaintiff filed a wrongful death action against defendants Patricia and Charles Wood based upon the alleged negligent operation of an automobile that was owned by Patricia Wood and driven by Charles Wood. The trial court determined that defendant Charles Wood owed no duty to the plaintiffs decedent as a matter of law. We reverse.
On November 10, 1983, the decedent, Lorrie Sponkowski, Charles Wood, and numerous other Michigan State University students intended to take a hayride at the Crazy C stables in Mason, Michigan. Transportation to the hayride was by way of four or more privately owned automobiles. Several of the drivers were unfamiliar with the location of the Crazy C and as a result it was agreed that one driver, who knew the way, would lead and the other vehicles would follow.
Lorrie Sponkowski was a passenger in defendant Cindy Osmon’s car, which was one of the cars in the caravan. The Osmon vehicle directly followed the car driven by defendant Charles Wood. Osmon indicated in her deposition that she did not know the way to the stables and thus needed to follow another vehicle. From the agreement reached be tween the participants before leaving, it is apparent that Charles Wood realized that he would be followed.
As the caravan proceeded southbound on Hagadorn Road, defendant Wood lost control of his vehicle at a sharp turn and left the road, ending up in a ditch. Immediately thereafter, the car carrying Lorrie Sponkowski also left the road at the same curve. The Osmon car sideswiped the Wood vehicle and then continued forward until it struck a tree. Lorrie Sponkowski died as a result of injuries she received in the accident.
Plaintiff subsequently filed the present wrongful death action against the Ingham County Road Commission, Cindy Osmon, and Charles and Patricia Wood. As to defendant Charles Wood, the complaint alleged that he knew that Osmon would be following him and that his negligent operation of his vehicle was a proximate cause of Lorrie’s death. Defendant Wood filed an answer and a motion for summary judgment, asserting that plaintiff failed to state a claim because he owed no legal duty to Lorrie Sponkowski. The trial court agreed and dismissed the plaintiff’s claim against defendant Wood.
On appeal, the sole issue for our determination concerns whether the trial court erred in finding as a matter of law that Charles Wood owed no duty to the decedent under the facts of this case, and therefore improperly dismissed the plaintiff’s negligence action for failure to state a claim.
The trial court granted summary disposition pursuant to MCR 2.116(C)(8) for failure of plaintiff to state a claim upon which relief can be granted. The standard for this Court’s review of such a motion is well settled:
The motion is to be tested by the pleadings alone. The motion tests the legal basis of the complaint, not whether it can be factually supported. The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. [Ortiz v Textron, Inc, 140 Mich App 242, 244; 363 NW2d 464 (1985).]
In a negligence action, the question of whether a duty exists is one of law for the court’s resolution. Moning v Alfono, 400 Mich 425, 436-437; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977). "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person.” 400 Mich 438-439. In negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in light of the apparent risk. Prosser, Torts (4th ed), § 37, p 206. In general, an individual, like the defendant in this case, owes no duty to protect another individual who is injured by a third person, unless the first individual has some special relationship with the dangerous person or the potential victim. See Welke v Kuzilla, 144 Mich App 245, 250; 375 NW2d 403 (1985).
However, where a person voluntarily assumes the performance of a duty (e.g., to lead another motor vehicle to an unfamiliar destination), he is required to perform it carefully, not omitting to do what an ordinarily prudent person would do in accomplishing the task. Tucker v Sandlin, 126 Mich App 701, 705; 337 NW2d 637 (1983); Smith v Allendale Mutual Ins Co, 410 Mich 685, 718; 303 NW2d 702 (1981); Wolf v City of New York, 39 NY2d 568; 384 NYS2d 758; 349 NE2d 858, 860 (1976).
Michigan law imposes on all motorists a general duty to operate their vehicles in a reasonably prudent manner. Zarzecki v Hatch, 347 Mich 138, 141; 79 NW2d 605 (1956). While a motorist is not required to guard against every conceivable result of his actions, he is required to exercise reasonable care in order to avoid the foreseeable consequences of his actions. In addition, the determination of whether a particular harm is foreseeable is an issue for the trier of fact in deciding if the defendant has been negligent. Davis v Thornton, 384 Mich 138, 146; 180 NW2d 11 (1970).
Based on the pleadings in this case, we believe that the trial court’s determination that defendant Charles Wood did not owe a duty to Lorrie Sponkowski was clearly incorrect. Defendant Charles Wood knew that Osmon was following and relying upon him for direction to their destination. Certainly, that understanding and reliance gave rise to a duty on the part of Charles Wood to drive reasonably in light of the apparent risk to all those relying upon him, of which Lorrie Sponkowski was one. Injury to Lorrie is within the foreseeable risk of harm created by defendant’s alleged negligent conduct. Therefore, we hold that the trial court erred in dismissing the plaintiffs claim based on the duty issue.
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Per Curiam.
Defendant Ray Eurich appeals as of right from an order of summary judgment by the Saginaw County Circuit Court declaring that plaintiff, Frankenmuth Mutual Insurance Company, Inc., had no duty to defend defendant or provide him coverage for damages arising out of a fire. Prior to entry of the order, the trial judge issued a three-page opinion, setting forth the basis of his decision.
The facts are not in substantial dispute. Defendant Eurich is a plumbing, heating, and building contractor. In 1973, he began construction of the River Greens office complex. He purchased from Frankenmuth a commercial insurance policy which included coverage for comprehensive general liability. The term of the policy ran from October 1, 1973, to October 1, 1976. On June 2, 1976, the completed structure was sold to George and Linda Schanz. On June 3, 1976, Eurich wrote across the face of an insurance premium installment billing that he had sold the building and requested that the policy be discontinued.
On February 12, 1979, the office complex was completely destroyed by fire. From the ashes arose several lawsuits in which Eurich was named as a principal defendant or as a third-party defendant. The suits alleged that Eurich did not comply with applicable fire code provisions or that he designed and built an office complex which was not firesafe.
New Hampshire Insurance Group, a subrogee of George and Linda Schanz, filed suit against Eurich and others in early 1981. On April 17, 1981, Frankenmuth wrote Eurich a letter ackowledging it had received a copy of the summons and had referred the matter to local counsel "[i]n accordance with our duty to defend you under the terms of your policy with us.” The letter also advised him that he might wish to retain his own counsel to consult with the firm selected by plaintiff because the suit claimed damages in excess of the policy limits.
A second letter, dated August 3, 1981, advised Eurich of additional pending suits in which he was involved. In that letter, plaintiff, Frankenmuth, reserved the right to deny coverage, claiming that the fire occurred after the policy period expired and that the "products hazards — completed operations hazards” exclusion precluded coverage. However, plaintiff continued to represent Eurich pending further investigation.
Plaintiff thereafter filed the instant declaratory action, seeking a determination that it had no duty to defend Eurich or to provide coverage. Plaintiff then brought a motion for summary judgment, pursuant to GCR 1963, 117.2(3), now MCR 2.116(0(10). Eurich asserted that the insurance agent from whom he had purchased the policy had represented that the policy provided "full coverage” and did not inform him about the exclusion. Eurich also alleged that plaintiff’s initial representation that it was obliged to defend him estopped plaintiff from now asserting that it had no obligation to provide coverage or defend under the terms of the insurance contract. The judge denied plaintiff’s motion without prejudice, stating that there were questions of fact which should be developed before he could consider granting summary judgment.
On October 15, 1984, a hearing was conducted on plaintiff’s renewed motion for summary judgment. The trial judge, thereafter, issued an opinion, finding that the fire had occurred outside the policy term and that consequently plaintiff’s policy provided Eurich no coverage. An order to that effect was entered, which listed the circuit court docket numbers of eleven pending suits against Eurich in which the trial court concluded plaintiff had no duty to defendant. Eurich now appeals and we affirm.
The insurance policy at issue in this case is an "occurrence” type policy. That is, a policy holder is covered for claims which arose during the term of the policy. This is in contrast to a "claims made” type of policy in which coverage is provided for those claims which are discovered and brought against the insurer during the term of the policy. Thus, in the case at bar, plaintiff has a duty to defend and provide coverage if, and only if, the alleged act or misdeed which constitutes the basis for Eurich’s liability occurred during the time the policy was in effect. There is no dispute that the policy came into existence on October 1, 1973, and continued until June 3, 1976, when Eurich voluntarily cancelled the policy because of the sale of the building. Furthermore, it is not disputed that the fire occurred in 1979.
The question we are presented with is whether the "occurrence” of Eurich’s negligent act was sometime between 1973 and 1976, when he constructed the building, or in 1979, when the fire occurred. We conclude it is the latter. In Moss v Shelby Mutual Ins Co, 105 Mich App 671; 308 NW2d 428 (1981), this Court concluded that an accident or occurrence occurs when the injuries arise. In Moss, a wooden deck was constructed on a home in 1966. The deck collapsed in 1973, injuring a number of people. Suit was brought against the construction company alleging negligent construction. The Moss Court concluded that the "occurrence” occurred in 1973 and that the 1966 insurer of the construction company was not liable under the "occurrence” type liability policy.
Similarly, in Employers Mutual Liability Ins Co of Wisconsin v Michigan Mutual Auto Ins Co, 101 Mich App 697; 300 NW2d 682 (1980), this Court concluded the occurrence was the date of the accident, not the date the negligent act was performed which gave rise to the subsequent accident.
We find these cases to be applicable to this case. The fire occurred in 1979, which is the relevant occurrence date for purposes of the insurance policy at issue. Since the policy was not in effect in 1979, plaintiff is not liable on the policy and has no duty to defend.
Before concluding, however, we wish to briefly address two specific challenges defendant makes to the grant of summary judgment. First, Eurich argues that there is an issue of fact concerning whether the fire comes within a policy exclusion for completed operations and products hazards, as was the case in Moss, supra. He alleges that, when he purchased the policy, he told his insurance agent that he wanted "full coverage.” However, what coverage or what exclusions the parties negotiated is of no concern to this case. Whatever coverage he purchased ended in June, 1976, when he cancelled the policy. While it may well be that, had he continued the policy, the fire would have been covered, the undisputed fact remains that Eurich did not continue the policy.
Next, Eurich argued below that plaintiff, having commenced to defend in the underlying action, should now be estopped to deny its duty to defend. While Eurich does not properly frame this argument for review by this Court, plaintiff does address the issue on appeal and the issue is of sufficient concern to merit brief comment by this Court. We believe plaintiff acted properly in defending Eurich until such time as the question of its duty to defend was resolved. Not only did this protect defendant’s interest, it also protected plaintiff’s interests in the event it was determined that plaintiff did have such a duty. However, this does not mean that plaintiff should not be able to withdraw its defense after a determination favorable to plaintiff.
We would, however, expect the withdrawal to proceed in a manner designed to avoid prejudicing Eurich’s ability to proceed with his own defense. This is not so much a burden on plaintiff as it is on the attorneys retained by plaintiff to defend defendant. If these attorneys do not continue to represent Eurich in his employ, we expect that they will cooperate with any substitution of counsel and to fully comply with the Code of Professional Responsibility.
The judgment of the circuit court is affirmed. Costs to plaintiff.
See Stine v Continental Casualty Co, 419 Mich 89, 96-100; 349 NW2d 127 (1984), for a discussion comparing the two types of policies.
As indicated above, the claims against Eurich are based upon his allegedly improper construction of the building.
See DR 2-110 (Withdrawal From Employment). | [
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Gage, J.
State liquor employee plaintiffs initiated the instant suit in response to defendant’s announcement in early 1996 that it intended to privatize the state-operated liquor warehousing and distribution system, thus closing state-operated liquor warehouses and stores and terminating plaintiffs’ employment. In October 1996, plaintiffs sought a declaration that an administrative rule promulgated by defendant that defined an “authorized distribution agent” (ada) under the planned privatized liquor distribution system was unenforceable. In January 1997, the trial court issued a temporary restraining order prohibiting defendant from closing any state-operated liquor warehouses or stores and from laying off state liquor employees. Defendant appeals by leave granted. We reverse and remand.
In furtherance of its privatization plan, defendant drafted a proposed administrative rule defining and establishing qualifications for ADAS, who would warehouse and distribute liquor under the privatized plan. Defendant complied with the then-existing rule-promulgation requirements outlined by the Administrative Procedures Act (apa), MCL 24.201 et seq.; MSA 3.560(101) et seq., including holding a public hearing regarding the proposed rule, MCL 24.241; MSA 3.560(141), and submitting the proposed rule to the Legislative Services Bureau and the Joint Committee on Administrative Rules (jcar), a legislative committee consisting of five senators and five representatives, MCL 24.235(1); MSA 3.560(135)(1), for approval. MCL 24.245; MSA 3.560(145). Under the statutory scheme, defendant was prohibited from promulgating or adopting its proposed rule until either (a) the Legislature by concurrent resolution approved the rule or (b) the JCAR approved the rule. MCL 24.245(9); MSA 3.560(145)(9). However, without awaiting legislative approval, defendant filed the proposed rule with the Secretary of State on September 10, 1996, thus violating APA subsections 45(9) and 46(1), MCL 24.246(1); MSA 3.560(146)(1). The JCAR subsequently advised defendant of its disapproval of the proposed rule. However, the published rule appears at 1996 AACS, R 436.1802, and became effective on September 11, 1996.
Plaintiffs filed their original complaint in October 1996. Plaintiffs alleged that defendant’s promulgation of Rule 436.1802 despite the jcar’s disapproval violated apa §§45 and 46 and requested that the court enjoin defendant from implementing its privatization plan. Defendant moved for summary disposition on the basis that §§45 and 46 authorized the Legislature to act in violation of provisions of articles 3 and 4 of the 1963 Michigan Constitution, which provisions this opinion later addresses.
On December 19, 1996, the Legislature adopted 1996 PA 440. This act defined an ADA and otherwise amended the Liquor Control Act, MCL 436.1 et seq.-, MSA 18.971 et seq., to provide for the potential privatization of the state-operated liquor warehousing and distribution system. See MCL 436.2ee, 436.3, 436.3a; MSA 18.972(31), 18.973, 18.973(1).
After the enactment of 1996 PA 440, defendant filed an amended motion for summary disposition, arguing that the enactment rendered moot plaintiffs’ complaint. Defendant claimed that the enactment explicitly authorized its utilization of adas and the implementation of its privatization plan. Plaintiffs responded that (1) different terms contained in 1996 PA 440 and defendant’s proposed rule indicated that the Legislature did not approve defendant’s proposed rule or repudiate the jcar’s veto of the proposed rule and (2) 1996 PA 440 mandated that, in the event defendant privatized the system, it establish rules governing authorized distribution agents before it could select or appoint such agents.
Pursuant to plaintiffs’ request, the trial court on January 10, 1997, issued a temporary restraining order prohibiting defendant from appointing or utilizing ADAS and from laying off any state liquor employees or closing state liquor warehouses or stores. The trial court subsequently amended the temporary restraining order to require that defendant continue to accept and fill liquor orders under the state-operated system. The temporary restraining order was to remain in effect until January 28, 1997, when the court would determine whether to issue a preliminary injunction.
Also on January 10, 1997, the trial court denied defendant’s amended motion for summary disposition. The court believed that a question existed regarding the validity of defendant’s proposed rule in light of the statutory amendments regarding privatization. The court also believed that, in the event the proposed rule was invalid, defendant would likely have to adopt valid rules or take some other action before it could appoint adas.
The trial court also subsequently denied defendant’s original motion for summary disposition, instead granting summary disposition to plaintiffs. The court reasoned that the APA provisions providing for jcar approval or veto of proposed administrative rules represented a valid, limited retention of control by the Legislature over the rule-making process. The court concluded that defendant’s promulgation of its proposed rule despite the jcar’s disapproval violated §§ 45 and 46 and that the proposed rule was therefore invalid.
Defendant filed several motions with this Court on January 13, 1997, including a motion for a stay of the temporary restraining order and an emergency application for leave to appeal. On January 21, 1997, in an unpublished order, this Court granted defendant’s application for leave to appeal and dissolved the trial court’s temporary restraining order, on the basis that plaintiffs had failed to demonstrate that they would suffer irreparable harm absent injunctive relief.
On January 28, 1997, in an unpublished order, this Court stayed any further trial court proceedings in this matter pending our resolution of the issues raised in defendant’s application for leave to appeal. We now consider those issues.
Defendant first argues that apa §§45 and 46, which require JCAR or legislative approval of proposed rules, are unconstitutional and therefore it need not have awaited JCAR approval of its proposed rule before promulgating and implementing the rule. Defendant contends that §§45 and 46 violate the following provisions of the Michigan Constitution: (1) article 3, § 2, the provision establishing a separation of legislative, judicial, and executive powers, (2) article 4, §§ 1 and 22, vesting legislative power in a Senate and House of Representatives, and requiring that all legislation arise by bill, (3) article 4, § 26, providing that no bill may become a law until approved by a majority of each house of the Legislature, (4) article 4, § 33, requiring presentation of all bills to the Governor before they may become law, and (5) article 4, § 37, which permits the Legislature to “empower a joint committee . . . acting between sessions, to suspend any rule or reg ulation promulgated by an administrative agency subsequent to the adjournment of the last preceding regular legislative session. Such suspension shall continue no longer than the end of the next regular legislative session.” We review the constitutionality of a statute, which is a question of law, under the de novo standard. Sills v Oakland General Hosp, 220 Mich App 303, 311; 559 NW2d 348 (1996).
This Court has recently addressed the constitutionality of §§ 45 and 46 in Blank v Dep’t of Corrections, 222 Mich App 385; 564 NW2d 130 (1997), and concluded that these provisions violate articles 3 and 4 of the Michigan Constitution. In Blank, several Michigan prison inmates challenged the validity of administrative rules promulgated by the Department of Corrections that established new prison visitation policies. Id. at 389. The Department of Corrections had promulgated and begun enforcing the administrative rules at issue without having first obtained jcar or legislative approval as required by §§ 45 and 46. Blank, supra at 390. The prison inmates claimed that the visitation rules were invalid because the Department of Corrections failed to adhere to the apa’s rule-making provisions. Id. at 391. The department countered that §§45 and 46 were unconstitutional. Blank, supra.
The Blank Court agreed that §§45 and 46 violated article 4 of the Michigan Constitution. Blank, supra at 397-398. While the Court recognized that the Legislature could properly delegate rule-making authority to administrative agencies, it noted that the Legislature could only subsequently interfere with such delegated authority according to constitutionally prescribed law-making procedures. Id. at 396. The Court concluded that §§45 and 46 enabled the Legislature to avoid adherence to the constitutional requirements that it legislate only by bills (Const 1963, art 4, § 22) approved by majorities of both the Senate and the House of Representatives (Const 1963, art 4, § 26), and the requirement that all bills passed by the Legislature must be first presented to the Governor for approval before becoming law (Const 1963, art 4, § 33). Blank, supra at 396-397. The Court reasoned as follows:
Because the procedures in § 45 do not mirror the requirements of article 4 of our constitution, the Legislature is interfering with the delegated authority by something short of a “law” By giving the jcar the authority to veto administrative rules proposed by an executive agency, the Legislature has delegated legislative power to a smaller legislative body that can effectively negate a valid action of an agency without following the restrictions of article 4 of our constitution. Although administrative rules have the force and effect of law, when an agency makes rules, it is not “legislating,” and therefore not bound by the requirements of article 4, because it must act pursuant to and within the confines of the legislative delegation of power. However, when the jcar acts, it has the power to speak on the subject at issue without any specified limitations and, in accordance with its own will, it is essentially “legislating” without the confines of article 4. The Legislature may not do indirectly what it cannot do directly. Even when the Legislature acts by concurrent resolution, it is not making “law.” Such resolutions are not “bills” and are not presented to the Governor for approval as required by article 4 of our constitution. [Blank, supra at 397 (citations omitted).]
The Court noted that its holding that §§45 and 46 were unconstitutional aligned Michigan with the majority of other states who had considered the constitutionality of similar legislative review processes. Blank, supra at 393, n 2, 394-395. Because § 45’s jcar and legislative resolution rule-approval procedures were determined to be unconstitutional, § 46’s prohibition against filing proposed rules with the Secretary of State without accompanying certificates of legislative approval was rendered a nullity. Blank, supra at 398.
The Blank Court also concluded that §§45 and 46 violated the separation of powers principle established within article 3, § 2 of the constitution. The Court found that the absence of a provision requiring presentment to the Governor of a legislative veto of proposed rules created the type of unchecked legislative power that article 3, § 2 sought to avoid. Blank, supra.
We agree with the Blank Court that §§45 and 46 violate articles 3 and 4 of the Michigan Constitution, and we adopt the Blank Court’s reasoning. Therefore, defendant’s failure to comply with these unconstitutional provisions does not invalidate its promulgated rule.
Like the state prison inmates in Blank, plaintiffs contend that §§45 and 46, if declared unconstitutional, may not be severed from the APA because legislative review of proposed rules represents a primary APA objective. Plaintiffs claim that therefore the entire APA must be discarded in light of our determination that §§45 and 46 violate articles 3 and 4 of the constitution. We disagree.
MCL 8.5; MSA 2.216 directs that when a court finds a portion of an act invalid, the remainder of the act should be enforced to the extent that it can be given effect consistent with the legislative intent behind the act. In enacting the APA, the Legislature intended to “provide procedural protection where a personal right, duty or privilege is at stake.” Midland Twp v State Boundary Comm, 401 Mich 641, 671; 259 NW2d 326 (1977); Blank, supra at 402. Therefore, because procedural protections still exist within the APA even in the absence of §§ 45 and 46, in the form of public notice and public hearing requirements regarding proposed rules, see MCL 24.241-24.244; MSA 3.560(141)-3.560(144), the remainder of the APA remains enforceable. Blank, supra.
Furthermore, even assuming as plaintiffs suggest that legislative veto power over proposed rules constituted a primary apa objective, the Legislature may still exercise veto power over proposed rules without relying on §§ 45 and 46. As subsection 51(b), MCL 24.251(b); MSA 3.560(151)(b) recognizes, the Legislature may enact a bill, passed by a majority of both houses and presented to the Governor, that revokes a proposed rule with which it disagrees. Blank, supra. Pursuant to subsection 51(a), MCL 24.251(a); MSA 3.560(151)(a), the Legislature may also adopt a resolution expressing its disapproval of a rule in the hope that the promulgating agency would acknowledge the legislative disapproval and amend the rule accordingly. Finally, article 4, § 37 of the constitution grants the Legislature the limited authority between legislative sessions to suspend by concurrent resolution the enforcement of rules promulgated by agencies after the end of a legislative session. As the Blank Court noted, this narrow constitutional delegation of legislative power by resolution supports the conclusion that, other than between sessions, the Legislature must legislate as article 4 of the constitution prescribes. Blank, supra at 399-401.
Defendant next contends that even if its promulgated rule is invalid because of its failure to comply with §§45 and 46, 1996 PA 440 authorized it to select and appoint adas without first having promulgated an administrative rule regarding ADAS. Although we are not required to address this issue in light of our resolution of defendant’s first argument, we take this opportunity to address the important new statutory provisions involved. We conclude that the Liquor Control Act, while contemplating that defendant may promulgate rules governing ADA qualification and selection, does not mandate that defendant promulgate rules before it may begin implementing its privatization plan by ADA selection.
None of the provisions of the Liquor Control Act added by 1996 PA 440 require that defendant promulgate new rules. Section 2ee of the Liquor Control Act merely defines an ADA as a person approved by defendant to engage in certain enumerated activities. Section 3 indicates that the sale, delivery, or importation of liquor may be performed by, among others, an ADA approved by defendant. Subsection 3a(l) indicates that if defendant decides to implement a priva tization plan, it “shall... by order appoint authorized distribution agents to engage in the warehousing and delivery of spirits,” which ADAS will be “subject to uniform requirements, including business operating procedures, which [defendant] may prescribe by rule. ...” Our review of this statutory language, in light of the fact that “shall” usually designates a mandatory provision, while “may” ordinarily designates a permissive provision, Jordan v Jarvis, 200 Mich App 445, 451; 505 NW2d 279 (1993), leads us to conclude that the Legislature did not intend to mandate that defendant promulgate rules before selecting and appointing adas. We reject as unreasonable plaintiffs’ suggestion that “may” should be interpreted as mandatory, because nothing in the context of this statutory provision supports such an interpretation. Mull v Equitable Life Assurance Society of the United States, 444 Mich 508, 519; 510 NW2d 184 (1994).
Nor do we accept plaintiffs’ contention that § 7 of the Liquor Control Act, MCL 436.7; MSA 18.977, mandates that defendant promulgate rules as a prerequisite to its selection and appointment of adas. Section 7 provides that defendant “shall adopt rules and regulations governing the carrying out of this act and the duties and responsibilities of licensees in the proper conduct and management of their licensed places.” (Emphasis added.) Defendant has, as § 7 requires, adopted many rules implementing the Liquor Control Act and governing the selection and conduct of liquor license holders. See licensing qualification rules in the 1979 Michigan Administrative Code and 1980-1996 Annual Supplements, Rule 436.1101 el seq. Subsection 3a(2)(a) explains that one becomes eligible for ADA appointment on satisfying several conditions, including that the “person satisfies all applicable commission rules prescribing qualifications for licensure promulgated under section 7.” Subsection 3a(2)(a)’s reference to § 7 does not indicate that defendant must adopt preprivatization rules. By its terms, subsection 3a(2)(a) merely requires that one seeking ADA appointment satisfy already existing and applicable licensure qualifications that defendant had created pursuant to § 7. Subsection 3a(2)(a)’s requirement that potential adas satisfy any applicable licensure rules ensures that the already existing rules apply to this section and that defendant may not select adas without applying standards. Therefore, we conclude that the trial court erred in denying defendant’s amended motion for summary disposition on the basis that defendant was required to promulgate rules before selecting ADAS.
We reverse the trial court’s orders granting plaintiffs summary disposition and denying defendant’s motions for summary disposition.
Remanded to the Ingham Circuit Court for any further proceedings consistent with this opinion. We do not retain jurisdiction.
Reversed and remanded. | [
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The Court orders that a special panel shall be convened pursuant to MCR 7.215(H) to resolve the conflict between this case and People v Gaines, 223 Mich App 230; 566 NW2d 35 (1997).
The Court further orders that the opinion in this case released October 30, 1998, is hereby vacated.
The appellant may file a supplemental brief within 28 days of the clerk’s certification of this order. Appellee may file a supplemental brief within 21 days of service of appellant’s brief. Nine copies must be filed with the Clerk of the Court. | [
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O’Connell, J.
Plaintiffs-appellants (hereinafter plaintiffs), former employees of defendant city of Detroit, appeal as of right from an order granting summary disposition to defendant under MCR 2.116(C)(7), on the ground that their claim was barred by the applicable statute of limitations. We reverse and remand for further proceedings.
Plaintiffs voluntarily left their employment with defendant pursuant to an early retirement plan available to employees who were at least forty years old and who had been employed with defendant for at least eight years. In 1974 and 1977, defendant’s city counsel passed resolutions obligating defendant to pay health insurance premiums for retirees. Defendant initially regarded those resolutions as applying to only conventional retirees, not those taking advantage of the “40 & 8” early retirement plan. Defendant explained to plaintiffs, all of whom retired in 1983 or earlier, that payment of health insurance premiums would not be part of their retirement packages.
In 1989, this Court rendered Clexton v Detroit, 179 Mich App 209; 445 NW2d 201 (1989), holding that retirees under the “40 & 8” plan are fully entitled to health insurance benefits. Id. at 215. In 1994, plaintiffs sued defendant for unprovided health insurance benefits. Defendant moved to dismiss, contending that the applicable statute of limitations, MCL 600.5807(8); MSA 27A.5807(8), barred their claims. The trial court agreed and granted the motion.
Plaintiffs argue that the trial court erred in holding that plaintiffs’ claims were wholly time barred. The period of limitation for actions over breaches of contract is six years. MCL 600.5807(8); MSA 27A.5807(8). The period of limitation generally begins to run on the date of the breach. Harris v Allen Park, 193 Mich App 103, 106; 483 NW2d 434 (1992). The trial court ruled that the date of breach for each plaintiff was the date upon which each began receiving retirement benefits that did not include medical coverage, this in each instance being more than six years before this action was commenced. Plaintiffs posit four alternative bases for avoiding the bar of the statute of limitations, which we will address in turn. We review these issues de novo, as questions of law. Miller v Farm Bureau Mut Ins Co, 218 Mich App 221, 233; 553 NW2d 371 (1996) (summary disposition); Rapistan Corp v Michaels, 203 Mich App 301, 306; 511 NW2d 918 (1994) (questions of law).
I. “INSTALLMENT CONTRACT”
Plaintiffs argued before the trial court that their retirement benefits should be likened to obligations under installment contracts, each deficient periodic payment constituting a separate breach of contract actionable for the following six years. The trial court rejected this argument, ruling that “medical and hospitalization were a one time benefit.”
Plaintiffs rely on Harris, supra at 107, where, under facts similar to those of the instant case, this Court ruled as follows:
[N]ot all individuals who retired from the system more than six years before this action was filed should have their claims barred. Pension benefits are similar to installment contracts and the period of limitation runs from the date each installment is due. Therefore, every periodic payment made that is alleged to be less than the amount due plaintiffs . .. constitutes a continuing breach of contract and the limitation period runs from the due date of each payment.
The trial court distinguished the instant case from Harris in that Harris concerned periodic payments of a monetary benefit, whereas the instant case concerned premiums to be paid directly to an insurance carrier. We agree with plaintiffs that Harris is applicable to this case, the incidental factual distinction notwithstanding. There is no meaningful difference, for purposes of likening a retirement plan to an installment contract, between benefits paid directly to the retiree and benefits paid to a third party for services to be rendered to the retiree.
Accordingly, we conclude that the trial court erred in ruling that plaintiffs’ claims were entirely barred by the statute of limitations. We hold that each plaintiff is entitled to proceed against defendant for all benefits withheld up to six years before commencement of this cause of action.
H. CLEXTON AS ESTABLISHING THE DATE OF ACCRUAL
Plaintiffs argue that because they did not understand that they had a claim against defendant until this Court published its decision in Clexton, supra, the accrual date of their claims should be that of Clexton’s release. We disagree.
“A plaintiff need not know of the invasion of a legal right in order for the claim to accrue.” Harris, supra at 106; see also Michigan Millers Mut Ins Co v West Detroit Bldg Co, Inc, 196 Mich App 367, 372, n 1; 494 NW2d 1 (1992) (“A breach of contract claim accrues on the date of the breach, not the date the breach is discovered.”). Further, a plaintiff may not “sleep on his rights until a subsequent appellate court decision rouse[s] him to action.” Lothian v Detroit, 414 Mich 160, 175; 324 NW2d 9 (1982). Plaintiffs are not exempted from these principles because of their failure to appreciate their rights before Clexton was issued. All the elements of each plaintiff’s claim of breach existed from the moment that defendant began providing incomplete retirement benefits. Further, at least some retirees, obviously including the plaintiff in Clexton, recognized that a breach had taken place. For these reasons, plaintiffs’ argument that the limitation period should begin with the release of Clexton must fail. Plaintiffs may not use Clexton as a means of attaching a later date to claims that otherwise fall outside the six-year period of limitation.
m. REVIVAL OF CLAIMS UNDER MCL 600.5866; MSA 27A.5866
In November 1991, defendant’s agent issued a memorandum addressed to the staff of defendant’s retirement system announcing that, in light of Clexton, defendant’s policy was that vested retirees “who resigned prior to July 1, 1983 and began collection prior to August 8, 1989 are all eligible for benefits provided they made a written request within six (6) years of their receipt of their first retirement check.” Plaintiffs, citing the revival statute, MCL 600.5866; MSA 27A.5866, argue that this memorandum revived their claims in the face of any running of the period of limitation. We disagree.
MCL 600.5866; MSA 27A.5866 provides as follows:
Express or implied contracts which have been barred by the running of the period of limitation shall be revived by the acknowledgment or promise of the party to be charged. But no acknowledgment or promise shall be recognized as effective to bar the running of the period of limitations or revive the claim unless the acknowledgment is made by or the promise is contained in some writing signed by the party to be charged by the action.
Our Supreme Court, in ancient cases that nonetheless comport with the current statute and guide our reading of it, stated that for an acknowledgment of a contractual obligation to revive a contract claim that is otherwise time barred, the acknowledgment must contain “ ‘an unqualified and direct admission of a present subsisting debt which the party is liable and willing to pay and be unaccompanied by any circumstances or declarations which repel the presumption of a promise or intention to pay.’ ” Throop v Russell, 145 Mich 482, 486; 108 NW 1013 (1906), quoting Ten Eyck v Wing, 1 Mich 40, 47 (1848).
In the instant case, the memorandum to which plaintiffs point, given its conditional language, constitutes neither a direct admission of an existing debt nor an unqualified statement of intention to pay. Accordingly, we agree with the trial court that the memorandum did not revive any time-barred claims.
IV. ESTOPPEL
Plaintiffs argue that defendant should be equitably estopped from asserting the statute of limitations as a defense to plaintiffs’ claims. We disagree.
Equitable estoppel arises where one party has knowingly concealed or falsely represented a material fact, while inducing another’s reasonable reliance on that misapprehension, under circumstances where the relying party would suffer prejudice if the representing or concealing party were subsequently to assume a contrary position. See Cincinnati Ins Co v Citizens Ins Co, 454 Mich 263, 270; 562 NW2d 648 (1997); Moore v First Security Casualty Co, 224 Mich App 370, 376; 568 NW2d 841 (1997). Although the doctrine can operate to bar use of the statute of limitations as a defense to a contract claim, our Supreme Court has been “reluctant to recognize an estoppel in the absence of conduct clearly designed to induce the plaintiff to refrain from bringing action within the period fixed by statute.” Lothian, supra at 177 (internal quotation marks and citation omitted).
In the instant case, defendant did not conceal plaintiffs’ cause of action, misrepresent the applicable period of limitation, or otherwise attempt to dissuade plaintiffs from commencing action at an earlier time. See Attorney General v Consumers Power Co (On Rehearing), 202 Mich App 74, 81; 508 NW2d 901 (1993). Defendant’s pre-Clexton representations to plaintiffs that they were not entitled to health insurance benefits was an honest reflection of policy pur suant to a reasonable, though incorrect, interpretation of defendant’s obligations. Because there was no intentional misrepresentation at the time, defendant is not equitably estopped from raising the statute of limitations in defense of plaintiffs’ claims.
Plaintiffs further argue that defendant was their retirement plan fiduciary and that defendant accordingly had an affirmative duty to inform them of the Clexton result. However, plaintiffs never properly brought this assertion before the court below, and did not otherwise challenge defendant’s claim that defendant was not a plan fiduciary. For these reasons, for purposes of this appeal we decline to charge defendant with the special duties of a plan fiduciary.
V. CONCLUSION
The trial court erred in treating defendant’s failure to pay health insurance premiums for each plaintiff as one-time occurrences, dating each from the moment each plaintiff began receiving benefits for purposes of applying the statute of limitations. On remand, the court should liken plaintiffs’ retirement benefits to installment contracts, each deficient payment of benefits marking the time from which a separate claim accrues. Accordingly, plaintiffs may pursue their claims for any unprovided benefits dating from the six years before plaintiffs filed suit. Defendant is free to raise the statute of limitations as a defense to any earlier claims.
The release of this Court’s ruling in Clexton, supra, has no bearing on the accrual date of any claim, nor does defendant’s agent’s memorandum of November 1991 revive any claim that falls outside the six-year limitation period as described above.
Reversed and remanded for farther proceedings. We do not retain jurisdiction.
We wish to express our displeasure with defendant city of Detroit for its failure to participate meaningfully in this appeal, having neither submitted a brief nor appeared for oral argument. This particularly concerns us in that the present and future consequences of the instant case implicate large sums of public money for which defendant is responsible. We are disappointed not only by defendant’s failure to defend the public treasury, but also by defendant’s failure to assist this Court in resolving this important case. | [
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Sharpe, C. J.
The brief of defendant’s counsel so fully complies with the requirement of Supreme Court Rule No. 40 that we quote from it at length:
“On October 24, 1925, the defendant, Harry Field, was engaged in operating taxicabs in the city of Muskegon and its environs. He was a common carrier of passengers. On that date, Mike Kriss hired one of _ the taxicabs of defendant to transport him to a point on the Bolt highway, in Muskegon county, and return him to the city of Muskegon. On the return trip to Muskegon plaintiff’s arm was injured by being forced through one of the windows of the taxicab and cut.
“There is an irreconcilable conflict in the testimony of plaintiff and the driver of the taxicab as to the manner in which plaintiff sustained his injuries.
“Plaintiff’s version of the accident, as testified to by him, is as follows:
“ T think the accident occurred about eight or nine miles out. The road was very slippery with rain and ice, and the driver was going fast; I don’t know how many miles. He came in close to pass a car, too close, and he became between two cars, and he couldn’t pass and he swerved his car too close to the gasoline station and turned over 'his car, turned it in the gasoline station and put the brakes on very hard which forced his car to stop and hit my side and threw me back. When he put the brake on he threw me against the window which broke the glass and cut me. We were going back to Muskegon when the accident happened. There were two cars ahead going down town, and cars going to Grand Rapids, two cars passing them, and he went out to pass, too; he tried to go between two cars. Then he swerved his car outside the road, and when he saw he could not get through, he put on the emergency brake, and it stopped the car very quick, and it skidded off on the gravel on the side of the road, then skidded back. The car tipped one way and then the other, and my arm went through the window. It threw me to the right side and I hit my head and hurt me, but not very much, and then threw me to the left side, threw me ahead, and my hand broke the window; my hand went through the window, and cut my arm. It cut the cord and the nerve for one finger. I was treated by a doctor two months.’
“The story of the taxicab driver as to the cause of plaintiff’s injuries, as told by him, is as follows:
“ ‘He was drunk and we got back about a quarter of a mile from there, and he started to move around in the back and I didn’t know what he wanted; he took hold of the front seat and started to beat on the' glass and motion to turn around, and I went to make a turn in the driveway off the concrete. I looked both ways to see the road was clear and I had a good chance to turn that way because there wasn’t anything in back of the cab, and I turned off the pavement on the gravel and he broke the window hitting on it. He was hitting on the window with his fist. He was hitting pretty hard with his hand on the window glass in the cab and he got hurt. I was close to him that day, and I could smell liquor on him. When he got me to take him out to this fellow’s place, when he came back, he was staggering and went pretty near to sleep on the way out. I was present when these people fixed his arm, and I told them he had been drinking. I took him to Dr. LePevre at the bank building and then to the hospital. Dr. LePevre said something about being drunk. I did not, in bringing my car to a stop, cause this injury.’ ”
Plaintiff brought this action to recover the damages due to his injury. The case was tried by the court without a jury. Findings of fact and conclusions of law were filed, followed by a judgment in favor of plaintiff for $522. Defendant reviews by writ of error.
His counsel insists that the findings on which liability is predicated are against the great weight of the evidence. This question is properly raised and must be disposed of as in review of the verdict of a jury. After carefully reading the testimony, we are impressed that reversal should not be had for this reason. The testimony of the plaintiff is in' direct conflict with that of the driver. But the former is at least somewhat corroborated by that of Irving Anderson, the proprietor of a grocery store and filling station near which the accident occurred. He testified:
“I was talking and working about the store when I heard the brakes squeak and I looked up and saw the yellow cab. I saw him put on the brakes. He got off the concrete and hit my gravel and the car wheeled and almost turned over. It made a big slur to the left-hand side and back to the right-hand side and came back on the right and made a turn over to the left. The brakes were on when the car skidded. It skidded about 30 feet. The taxi driver at that time mentioned that the brakes didn’t take hold right away.”
The driver’s claim that the plaintiff was intoxicated is disputed, not only by the plaintiff but by both Anderson and his wife. The latter dressed his hand. They both testified that he was not under the influence of liquor at the time; that “he was perfectly sober.”
We cannot say that the findings are against the great weight of the evidence.
The judgment is affirmed.
Bird, Flannigan, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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McDonald, J.
.These two cases were tried together in the court below and are here in the same record. They will be disposed of in one opinion. In the first case, the plaintiff entered into a contract with the board of education of the city of Detroit for the erection of the Lynch sehoolhouse. A guaranty was required that the construction of the roof, which was designed for a playground, should be in accordance with the plans and specifications, without defects in workmanship and materials, and would not leak for a period of ten years after completion. The plaintiff sublet the construction of the roof to the defendant, the E. E. Davis Company. The Davis Company furnished the required guaranty in the form of. a letter directed to the plaintiff, which the plaintiff also signed and filed with the clerk of the board of education. After the roof was completed, leaks developed in many places. The defendant was notified but disclaimed any responsibility for the condition of the roof, on the ground that it had been constructed in accordance with the plans and specifications prepared by the architect of the board of education. The board made necessary temporary repairs and later laid an entirely new roof over that put on by the defendant. The Otto Misch Company was called upon to pay the amount so expended and did so. It then began this suit against the E. E. Davis Company to recover the amount which it had paid.
In the second case, the main facts are substantially the same. John Bollin Company secured a contract to build two schoolhouses, known as the Noble school and the Brady school. The Southern Surety Company was the surety on its bond. The roof construction was sublet to the E. E. Davis Company. A guaranty, similar to that in the Otto Misch Company case, was given and the work was performed, with the same results. The board of education made temporary repairs and the surety company reimbursed it and began this suit to recover the amount paid. The two cases were tried together by the court without a jury. Findings of fact and law were filed, on which judgments were entered in favor of both plaintiffs. The defendant has brought error.
The first question presented is that the findings are “against the manifest weight of the evidence.”
“The law is well settled in this case that a trial judge’s findings of fact take the place of a verdict by a jury, and ordinarily will not be disturbed if there is evidence in the record to support them.” Atlas v. Gunsberg Packing Co., 240 Mich. 141.
The findings complained of are, substantially, that the roofs were not built according to the plans and specifications; that, because of defects in workmanship and materials, the roofs leaked, and that the repairs made by the board of education were necessary and were reasonably worth what was charged therefor. It will not be necessary to detail the testimony which influenced the trial judge in reaching his findings on the facts. A brief reference to some of the evidence will suffice. Mr. Fred Laffrey was a witness for the plaintiff. He had 22 years of experience with work of this kind. He was superintendent and inspector for the architect while these roofs were being constructed by the E. E. Davis Company. He testifies that the plans and specifications were not followed, that he so informed the defendant’s foreman and superintendent, and was told that they were following their own method and had guaranteed the results. He says that because of the manner in which they performed the work:
“When the thaw came in January we had lots of rain and one day I went up there and the people called me upstairs and we had four or five washtubs in the various rooms and large sections of the plaster were loosened and things were in bad shape from the leaks and the water came through, poured through.”
His testimony was supported by that of other witnesses of equal credibility. On the part of the defendant, it is a significant fact that neither the superintendent nor foreman in charge of the work was called to testify. The only witness who testified that the work was done according to the plans and specifications was Mr. Davis, the president of the defendant company. The plaintiffs testimony was ample and of such a quality as to leave no doubt that the trial judge arrived at a correct conclusion on the facts. There was not a substantial compliance with the plans and specifications.
But it is insisted by the defendant that the architect ■waived a compliance with the specifications because, with full knowledge of the fact that they were not being complied with, he permitted the defendant to continue the work, and, upon its completion, issued a final certificate to the general contractor.
“A waiver implies an intention to overlook a deficiency, or to forego a right to have the defect remedied or to have compensation therefor, and necessarily implies a knowledge of the defect that is waived, or acquiescence under circumstances reasonably implying unconditional acceptance of the work as a full performance.” Eaton v. Gladwell, 108 Mich. 678.
In 9 C. J. p. 797, it is stated:
“So where the work or materials is under the inspection of the owner, or his architect, during its progress, if the builder is not complying with the contract, it is the duty of the owner or architect to object to such work or materials as obviously do not comply with the contract, and on his failure to do so the owner cannot, after the work is completed, claim that the work or materials was not in accordance with the contract.”
Citing Pennsylvania Rubber Co. v. Detroit Shipbuilding Co., 186 Mich. 305, in which case it was said:
“The defects complained of were obvious; and it has been held that if the defects are obvious, the failure to reject is equivalent to approval.”
The specifications provided for the construction of asphalt roofs, the bottom layer of which was to be five-eighths of an inch thick. As laid by the defendant, it is claimed that it was one-half of an inch thick. It was required that the top layer should overlap the joints of the lower layer. As laid, the top layer did not overlap the joints of the lower layer. It was provided that the ingredients of the asphalt should be mixed in certain proportions. There is. testimony that, after leaks developed in these roofs,, an examination of the asphalt disclosed that it had not been mixed according to the specifications ; that it was spongy and porous and contained too much sand. It is said that these are the defects which caused the roofs to leak.
The testimony is undisputed that, except as to the defect in the mixture of the composition, which was not obvious at the time, the defects were pointed out to the defendant’s foreman and superintendent, but that they insisted on laying the roofs according to their own methods. Mr. Laffrey, superintendent for the architect, testified:
“I told the foreman that he was not doing it right as soon as I got on the job. They had put the first two squares on. I was there the next day. He was doing the same thing. He told me that he was going to continue doing it and that was the way he had orders from his office to do it and, inasmuch as he was covered by a guaranty, I had no business to stop him. I knew it was not right according to the specifications.”
Mr. Dupont, a witness for the plaintiff, was superintendent of construction at the Noble and Brady schools. He testified:
“The Brady school was started first by the Davis Company, and as they started I noticed that they were putting on a half inch of asphalt, the first coat, and I called their attention that it should be five-eighths of an inch in thickness. To Mr. Davis and Mr. Davis informed me that they were putting it on according to their own method; that they had to stand back of it, and with that I did not interfere or dictate how the roof was to be completed. I saw their work after that. They did not make any change; they completed one-half inch for the first coat. They put it that way all the way through.”
The testimony is conclusive that there was a deliberate and substantial departure from the specifications by the defendant.' Objections to the manner of performing the work were met with the statement that if the results were not right the owner had its remedy ■on the contract. Permitting the work to continue after protest and objection is not a waiver of compliance with the specifications or of the right to compensation for the defects.
In 9 C. J. pp. 797, 798, it is stated:
“But an acceptance under protest is not a waiver; and the mere failure of the owner to take charge of the prosecution of the work when he discovers that the builder is not complying strictly with the conditions of the contract does not waive his right to damages for defects.”
As to the effect of the issuance of the final certificate for payment to the original contractors, the evidence is that the certificate was issued after an understanding with the surety companies that the defects were to be corrected or paid for. In this connection it should be remembered that there was a guaranty intended to survive the approval and acceptance of the work. In the circumstances, the law does not imply a waiver.
The next contention discussed by defendant’s counsel in their brief is stated as follows:
“Where a contractor has substantially complied with the plans and specifications and the work does not accomplish the results for which it was designed, there can be no liability on the part of the contractor unless he has in express terms guaranteed the sufficiency of the plans and specifications and such intention must be clearly expressed in the contract.”
A complete answer to this proposition is that in this case there was not a substantial compliance with the plans and specifications. The defendant ignored them in some material respects and followed a method of its own. It requires no further discussion.
It is also contended in behalf of the defendant that there can be no recovery because the instrument which is the basis of the action was an obligation in which plaintiffs and defendant were joint obligors. The several guaranties are in the same language except as they refer to different schools. That given in reference to the Noble school reads as follows:
“15 East Van Burén Street.
Chicago.
Phone Wabash 2020.
E. E. Davis Incorporated
Designers and Contractors Floor Construction and Floor Finish.
General Motors Building.
Phone Market 856.
Detroit, Mich.
October 31, 1921.
“John Bollin Company,
1257-58 Book Building,
Detroit, Michigan.
Re Noble School.
“Gentlemen: We hereby guarantee the asphalt floors and asphalt roof laid in the Noble School — work performed in accordance with the specifications — that all work is without defect in workmanship and materials and that the roof will not leak for a period of ten years. ■
Yours very truly,
E. E. Davis Company,
By (Signed) E. E. Davis.
John Bollin Company,
(Signed) E. J. Bollin.”
It is apparent on the face of the instrument that this is not a joint obligation. We must look to the language of the entire undertaking to ascertain the intention of the parties. It is addressed by E. E. Davis Company to the John Bollin Company and is in the form of a letter. The John Bollin Company is the obligee. Was it the intention of the parties that the John Bollin Company should become bound to the John Bollin Company? There is nothing in the body of the contract or anywhere on the face of the guaranty to indicate that such an absurdity was intended. Were it not for the signature of the John Bollin Company at the bottom of the writing, it would be a simple guaranty by E. E. Davis Company alone. An explanation as to why and how the signature of the obligee came to be signed to the instrument was shown in the evidence without objection. The John Bollin Company had a contract with the board of education for the erection of this schoolhouse. It sublet the roof work to the E. E. Davis Company. This company prepared and mailed the guaranty in question to the John Bollin Company, which company later signed it and filed it with the clerk of the board of education. The guaranty was of no use to the board. It could not sue the E. E. Davis Company because the board was not a party to the contract and it was not made for its benefit. It was for the benefit of the Bollin Company, and the Bollin Company could maintain an action if its terms were breached. There is no merit in defendant’s contention that the guaranty was a joint obligation.
The only other contention which merits discussion is that in regard to the measure of damages.
In their brief, counsel for the defendant say:
“We submit that the utmost for which the defendant, under the facts developed by this record, could be held liable to respond in damages would be the cost of temporary repairs, since the permanent repairs were made after the board of education entirely abandoned its proposed use of the roof designed and specified to be built by the defendant and they designed a roof for an entirely different purpose. * * * In designing the new roof, the new specifications required the former built by the defendant to be used as a base and the new roof was built upon the roof theretofore built by the defendant. For this purpose the roof thus built by the defendant was equally as valuable as though it had been in perfect condition.”
The applicable rule of law is well stated in Drummond v. Hughes, 91 N. J. Law, 563 (104 Atl. 137). We quote from the syllabus:
“Where work is done under a written contract and specifications, and some of the work is defective, the contractor is only liable for the cost of such replacement as is necessary to make the work as good as was contemplated by the original contract and specifications.”
In the instant case, the defendant contracted to build a roof that would not leak for a period of ten years after completion. He breached- his contract. There were defects in the roof which caused it to leak. The defendant was under obligation to repair the defects or to build an entirely new roof if necessary to make it conform to the requirements of -his contract. If he failed to do so, the plaintiffs had the right to make the necessary repairs and charge the defendant therefor. But he was not obliged to pay for a new roof if the roof he laid could be sufficiently repaired by replacing the defective parts. He di'd not contract in any event to build a new roof of different design and according to different specifications. In case of breach, it was contemplated by the'?parties, when they entered into the contract, that the cost of making the roof comply with the plans and specifications would be the measure of plaintiffs’ damages. So that these so-called permanent repairs cannot be charged to the defendant unless they were necessary to make good his contract.
The defects complained of as causing the roof to leak were due to the failure of the defendant to lay the second layer of asphalt so that it would overlap the joints in the first. When the condition of the roof was called to the defendant’s attention, he denied responsibility and refused to make repairs. The architect engaged Mr. Mahon to make the repairs. Mr. Mahon is an expert roofer. Whether, in repairing the- defects, he followed his own method or that of the architect, does not appear, but the architect testified that the method used would stop the leaks, and Mr. Mahon says it did stop them. The schools were occupied for a year or more before the permanent roof was put on. There is no. evidence that it was put on because of leakage in the original roof. There is no evidence that the first roof was wholly defective and incapable of repair or that it was necessary to lay an entirely new roof in order to make it comply with the defendant’s guaranty. The fact seems, to be that the new roof was decided on not of necessity because of the defects in the old, but because it had become apparent that the old roof was not suitable for the purpose for which it was designed. The new roof was of different design, of simpler construction and less liable to develop leaks. It was a better and more permanent roof than the one originally designed. The board was entitled to have the defects complained of in the original roof replaced with material and workmanship in accordance with the original plans and specifications. The evidence shows, that! if this had been done the roof would have met the requirements of the defendant’s'contract. The expense of building the new roof was not necessary and cannot be charged to the defendant. On this record, the defendant is liable only for so-called temporary repairs.
A case differing somewhat as to its facts, but of in terest in the consideration of this question, is City of Cleveland v. Walsh Construction Co., 279 Fed. 57.
The judgment is reversed, and the cause remanded to the circuit court with directions that a judgment be entered for the plaintiffs for the amount expended by the plaintiffs for temporary repairs. The defendant will have costs.
Flannigan, C. J., and Fellows, Wiest, Clark, Bird, and Sharpe, JJ., concurred.
The late Justice Snow took no part in this decision. | [
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(On Rei-ieaeing.)
Fellows, J.
We granted a rehearing in this case •and it has again been considered by the court (former ■opinion 232 Mich. 561). The case was disposed of by the determination of a controlling question, and it became unnecessary to consider all questions discussed in the briefs of counsel. In the vast majority of cases which come to this court one or two, at most but a few, questions are decisive of the case, and the court does not and should not lumber up the reports of this court with the discussion of every proposition the ingenuity of counsel may bring to our attention. They are, of course, considered by the court, but, unless of importance to the decision of the case, are not and should not be written upon at length. I am not persuaded, after a re-examination of this case, we-, should reach a conclusion different than the one reached by the court when we first considered it. Wether e followed a case written by Mr. Justice. Hooker. over 20 years before (Barry & Finan Lumber Co. v. Insurance Co., 136 Mich. 42), which had been followed! by this court in Fisk v. Insurance Co., 198 Mich. 270, and, so far as I am able to see, not since questioned by this court. I shall not again go over the ground covered by the majority opinion, as I am content with what was there said, but will consider such of the contentions noted in the brief of appellees on rehearing as require consideration.
We passed without comment the fact that the conversation between plaintiffs’ attorney and Mr. Fischer, local agent of defendant, did not occur until several months after the fire. Plaintiffs’ counsel makes so much of this conversation in his brief on rehearing that we should call attention to the fact that the fire occurred September 19, 1921, and the conversation occurred May 8, 1922, over five months and a half after the time fixed by the policy for filing proof of loss had expired. How plaintiffs can claim under this state of facts that they did not furnish proof of loss by reason of this conversation and thereby estop defendant from making this defense is not plain to see. The only talk before the time had expired was with an employee of Fischer named Garessi, so that plaintiffs’ case is not as strong as was that of the Lumber Company in the case written by Justice Hookeb. If one employed by a local insurance agent to solicit insurance carries with him, by virtue of such employment, power and authority to waive substantial rights of the company guaranteed it by the terms of the policy, then written contracts of insurance afford little or no protection to the insurer and the general rules of agency are not applicable in insurance cases.
But it is said that the fact of cancellation is a denial of liability. To so hold would mean that there was ■a denial of liability before there was a claim of liability. But the position plaintiffs take, and which they of necessity must take, precludes such a claim. Plaintiffs insist, and must of necessity insist, that the cancellation was invalid, was a nullity. They insist, and must of necessity insist, that the cancellation was void and the policy therefore in force. If the cancellation was void and the policy in force, all of it was in force, those provisions favorable to defendant as well as those favorable to plaintiffs. In the recent case of Fort Dearborn Coal Co. v. Cement Co., 230 Mich. 360, defendant sought cancellation of the contract but plaintiff refused and insisted upon its rights under the contract. It was there said:
“In this request to cancel the plaintiff did not acquiesce but positively refused and insisted upon its rights under the contract. It expressly declined to put an end to the contract, and expressly insisted that it be kept alive; it could be mutually put at an end only by the acquiescence of both parties. Plaintiff declined to give its acquiescence. . The contract was kept alive by it for the supposed benefit which might accrue to it. If kept alive for the benefit of plaintiff, it was likewise kept alive for the benefit of defendant. * * * It was up to plaintiff to accede to the request and put an end to the contract or to decline and leave it in force. It chose the latter course. By so choosing it preserved its rights under the contract, and likewise its liabilities thereunder.”
Provisions requiring notice and proofs of loss serve a useful purpose. They give time and opportunity for investigation, negotiation, and settlement, and are sustained in the law. In Oakland Motor Co. v. Fidelity Co., 190 Mich. 74, where a policy of indemnity insurance was involved, it was said by Mr. Justice Steere, speaking for the court:
“Conditions for notice of the event insured against, similar to those under consideration, are common in policies for most kinds of insurance. They are nothing new or misleading. Such stipulations, when contained in the policy, are recognized, as valid, and must be complied with before recovery can be had, if within the power of the insured. Plaintiff’s right to indemnity flows from this policy, constituting the written agreement between the parties which they voluntarily entered into and of which these conditions form a part. Failure by plaintiff to observe the condition precedent of this executory contract was failure to perform the contract on its part. It first breached the contract, and by such nonperformance it released the other contracting party. In order to maintain this action, it was bound to give notice of both the accident and claim for damages as and when by the terms of the contract it agreed to do so.”
I think we correctly disposed of the case upon the first hearing and that we should again reverse the judgment without a new trial.
Sharpe, Snow, Steere, Wiest, and Clark, JJ., concurred with Fellows, J. | [
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Boyles, J.
Oil leave granted defendant appeals from a sentence following conviction by jury in the circuit court for Wayne county, on a charge of practicing medicine without the license required by Act No. 237, §7, Pub. Acts 1899, as amended (2 Comp. Laws 1929, §6743 [Stat. Ann. §14.537]). Admittedly the defendant was not licensed to practice medicine but had a license as a cosmetologist under Act No. 176, Pub. Acts 1931, as amended by Act No. 323, Pub. Acts 1937 (Comp. Laws Supp. 1940, §§ 8714-1-871A-37, Stat. Ann. and Stat. Ann. 1944 Oum. Supp. §§ 18.131~18.167). The argument seems to be whether the defendant was practicing cosmetology under such license, or practicing medicine without a license. The facts shown by the record follow.
The complaining witness, one Elizabeth Jane Heil, was having trouble with her complexion and on October 1, 1942, went to the defendant’s office on the second floor above a drugstore at Woodward and Warren in Detroit. There was a sign below at the stairway entrance as follows:
“Clear Skin Institute, Second Floor”
On the door of defendant’s office was the name “Clear Skin Institute” and defendant’s name was on the inside with a suffix “N.D.” There were a number of diplomas on the wall of the office. After .she was seated in his office, the defendant asked her name and address, where she worked, whether she had gone to any doctors, whether she had been sick within the last year, whether she menstruated regularly or had trouble with her bowels. The defendant filled out a form and arrangements were made at that time for her to come twice a week for treatments at $5 per treatment. She paid defendant $12 for two treatments plus $2 for a “registration fee.” At that time she received a registration card which she had in her possession for about two and onelialf weeks. This card on its face stated:
“I, Neil E. Gilbert, Director of the Clear Skin Institute, hereby agree to treat Miss Betty Jane Heil for a period of 30 days from the above date under the following conditions:
“There shall be no further payments made by her during this period and in event that no improvement is shown in her complexion during this period, I shall refund all and any moneys paid to date for five visits or treatments already received.
“Miss Heil and members of her family shall be the sole judge as to whether or not there has been any improvement. However, if there is improvement, Miss Heil will pay me for whatever visits she received up to that date.
(Signed)
“Neil E. Gilbert.'”
On the back of this card was the following:
“You are accepted for the ‘Dermedic Method’ of ‘Skin Clarification,’ by the Foundation, under the following conditions:
“Appointments should be met at the appointed time, to avoid the possibility of overcrowding.
“If unable to keep your appointment kindly telephone TEmple 1-7800 and a new appointment will be made for you.
“ Two consecutive appointments missed' without notice cancels this registration.
“This registration covers ‘Sldn Clarification’ only. No medical service or advice is rendered hereunder.
“Clear-Skin Foundation
“10 West Warren cor. Woodward
“Detroit, Michigan
“TEmple 1-7800”
She testified that on the occasion of her first visit the defendant informed her “I had acne, and that he could cure me. ’ ’ Thereafter she received five treatments during two different weeks but her condition did not improve. The treatments consisted in using a lamp and some salve, except the last one at which time the defendant extracted or opened the pimples or blackheads on her face. This treatment hurt her face and she inquired at the Better Business Bureau about the defendant, and then called up the medical association where she learned for the first time that the defendant was not a doctor of medicine. During the course of her treatments, defendant’s assistant called him “Doctor.” The designation N.D. was on diplomas in his office. After she learned from the Wayne county medical society that defendant was not registered to practice as a doctor, she went again to his office accompanied by her sister Ada Mae and testified the following occurred there:
“I asked him if he wanted to see me. He said, ‘Yes, he heard I had been checking up on him,’ as he put it, and I said, ‘I had.’ And, I said, and I said — I asked him if he was a doctor. He said, ‘yes, he was.’ I said, ‘The Wayne county medical society didn’t know anything about it.’ He said, ‘Well, he is a doctor of naturopathy,’ and so we were there about 2% hours, and he offered to give me back $5, but I didn’t want it.”
This' testimony was corroborated by the sister of the complaining witness who accompanied her to the defendant’s office on the above occasion and who testified as follows:
“I was present wheii a conversation was had between the defendant and Betty Jane.
“ Q. And at that time, what was the substance of that conversation?
“A. Well, she wasn’t satisfied and she wanted her money, and he wanted her to keep on, and we sat about two hours and it was the same thing over and over, more or less.
“Q, Was any statement made by him relative to whether or not he was a doctor?
“A. He said he was a doctor.
“Q. What else did he say?
“A. Well, that; about 10 minutes later he said he wasn’t a doctor, then he said he was a doctor and it was naturopath.
“Q. Doctor of naturopathy?
“A. Yes.”
There was further testimony that the defendant in giving treatments to the complaining witness instructed his assistant to apply certain ointments or medicines, that she did so, that the defendant used an instrument to remove the blackheads, that he" gave the witness soaps to take home and a medicine or ointment to apply on her face at night. At no time during her visits to defendant’s office was any reference made to his being a beauty operator or cosmetologist or anything else but a physician or a medical doctor. There was nothing in'defendant’s place of business to indicate that he was a cosmetologist, such as beauty tables, manicure tables, hair dryers or any of the usual instruments found in a so-called beauty parlor. There was testimony re garding the confusion caused by the similarity between the designations “N.D.” and the usual “M.D.” designating a doctor of medicine. There was testimony that two certificates of conducting business under an assumed name were on file in the office of the Wayne county clerk. In the first the assumed name was “Clear Skin Foundation” filed in 1939, and in the second certificate filed February 6, 1941, the assumed name was given as “Clear Skin Institute.” The defendant admits having-practiced his profession, whatever it was, under the above assumed names at the addresses given in the certificates.
At the close of the people’s case the defendant moved to dismiss on the ground that the people had failed to prove a case of practicing medicine without a license, contrary to the provisions of the statute. The court denied the motion, and the defendant then put in considerable testimony as to the practice of cosmetology and of witnesses who testified that they were well pleased and satisfied with the methods and results of the defendant’s treatment. Doctor Shaffer, a licensed physician and surgeon and professor of dermatology and syphilology at Wayne university, a graduate of the University of Michigan medical department in 1917, who had specialized in skin diseases in the department of dermatology and syphilology at Mayo clinic for three years, extramural lecturer for the medical school of the University of Michigan, a director of the Detroit department of health, on the staff of Deceiving hospital as attending- physician and teaching classes in dermatology and also on the staff of Harper hospital, was called by the people as a witness. After fully qualifying as an expert witness on skin diseases, he testified that acne, “ordinarily spoken of as pimples,” was a human ailment which would be classified as a disease. He also testified that papular acne might be quite similar to secondary syphilis, hard to differentiate even by an ordinary physician without special training in dermatology; “it certainly would require a physician to treat those diseases.”
The statute (2 Comp. Laws 1929, § 6743 [Stat. Ann. §14.537]), on which this charge is predicated states that any person “who shall practice medicine or surgery in this State, or who shall * * * hold himself * * * out to the public as being able to treat, cure or alleviate human ailments or diseases,” without a license issued under the act shall be guilty of a misdemeanor. Section 9 of the act (2 Comp. Laws 1929, § 6745 [Stat. Ann. § 14.539]) states that:
“The term ‘practice of medicine’ shall mean the actual diagnosing, curing or relieving in any degree, or professing or attempting to diagnose, treat, cure or relieve any human disease, ailment, defect, or complaint, whether of physical or mental origin, by attendance or by advice, or by prescribing or furnishing any drug, medicine, appliance, manipulation or method, or by any therapeutic agent whatsoever.”
The people’s testimony in this case was ample to submit to the jury the question of fact, whether defendant was guilty of a violation of the statute. The motion to dismiss at the close of the people’s proofs was properly denied.
On cross-examination of one of defendant’s witnesses, the prosecutor asked certain questions regarding an advertisement which appeared in a newspaper published subsequent to the last date mentioned in the information. Defense counsel’s request that the trial court hear the argument in the absence of the jury or in chambers was not granted. Subsequently, the court sustained the objection of defense counsel to the testimony. Appellant claims that the refusal of the trial court to hear the argument in the absence of the jury, and the hearing of the argument in the presence of the jury, was prejudicial error. No part of the advertisement in question was read or given to the jury. The sole reason advanced for reversal is that the argument as to its admissibility was in the presence of the jury. It was on a question of law as to the admissibility of the advertisement, and the court sustained the objection. We find nothing in the record prejudicial to the defendant in the colloquy which took place in the presence of the jury in which the court took part.
The prosecutor was permitted to cross-examine a defense witness concerning X-ray treatments received at defendant’s office from a person other than the defendant on a date beyond the last date stated in the information. Appellant contends that this was prejudicial and reversible error. The defendant had introduced the testimony of one Betty Kulczyk who testified that she had been receiving treatments from the defendant for “big, large pimples and blackheads,” beginning in August, 1942, prior to the time when the defendant was charged with violating the medical practice act (from October 1 to October 27, 1942). On cross-examination, she testified without objection:
“He (the defendant) did not ask me if I had had X-ray treatments before, he asked me did I take treatments before. My, mother or father did not sign any waiver that I know of, permitting the defendant to give me X-ray treatments. I did not sign any waiver for the defendant to give me X-ray treatments. I went once a week from January, and I am still taking X-ray treatments. I think it was ten. From January of this year up until now, I have had X-ray treatments. I paid $5 for these X-ray treatments. I had them once a week.
“Q. Who would give you the X-ray treatments'?
“A. There’s a doctor there, a short man. I don’t know his name. I never asked. I knew he was a doctor because he told me he had charge of the clinic; because there is a partition, a little clinic next door. I don’t know what is the clinic next door, I never looked to see any name on it.”
The record is clear that this witness went to the defendant’s office beginning in August, 1942, and paid the defendant himself for all of the X-ray treatments (10 in number), except one time she paid “this other doctor” on a Sunday when the defendant himself was absent. All this was admitted without objection. Subsequently the court on motion struck out some part of the testimony, just what part is not clear. As to the objection made, the defendant’s method of having X-ray treatments given to patients or clients who came to his office, and the general scheme or plan followed by him under the designation of “Clear Skin Institute” to treat skin diseases without a license to practice medicine, opened the door to proof of acts immediately prior or subsequent to the period between October 1 and October 27,1942. 3 Comp. Laws 1929, § 17320 (Stat. Ann. §28.1050). As to the “other doctor,” the court charged the jury:
“Now, there is some talk about a Dr. Koenig. Of course, if there was a Dr. Koenig, there; if he, rather than this defendant committed the acts which are here charged, of course, the defendant wouldn’t be found guilty thereof. He couldn’t be identified with the acts of a certain Dr. Koenig.
“In other words, in order to come within the provisions of the law, it must be an act in his own per sonal capacity, rather than in the act of some doctor who possesses a license. It seems almost axiomatic that would be true there, and I will call your attention to the fact that if there was a doctor there and if he had a license to practice medicine, and if he did the things which are charged, of course, as a doctor of medicine he can do those things. On the other hand, if the defendant did those, he wouldn’t have a right to do so, providing those things constitute a practice of medicine without a license, and provided further, that they are not such acts as are permitted under the cosmetology statute.”
We find no reversible error in such cross-examination of this witness.
Defendant claims reversible error in certain instances during the prosecutor’s argument to the jury. In one instance the statement was withdrawn; in other instances the objection was sustained or the argument not pursued by the prosecutor. No further request to charge the jury was made by counsel. There was no error in the rulings of the court.
Defendant claims error in the failure or refusal of the court to give certain of the defendant’s requests to charge the jury. The requests were argumentative, and some of them were plainly designed so as tb be open to more than one construction. We need not discuss them at length. The court charged the jury fully and fairly as to the defendant’s claims and the law of the case. The rights of the defendant under the law applying to cosmetologists were carefully explained, together with the defendant’s theory of the law of the case as applied to the facts. In conclusion, the court charged the jury:
“Now, the question for you to determine in this case, from the facts, that during the time alleged in the information, whether what he did constituted the practice of medicine, or whether in lieu thereof it constituted the practice of cosmetology. ’ ’
The charge as a whole was fair and complete, and the case was properly submitted to the jury. We find no prejudicial error and the conviction and sentence is affirmed.
Starr, C. J., and North, Butzel, Bttshnell, Sharpe, and Reid, JJ., concurred. The late Justice Wiest took no part in this decision. | [
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' Wiest, J.
Plaintiff applied to the secretary of State under the provisions of Act No. 46, Pub. Acts 1921, as amended (1 Comp. Laws 1929, §4658 et seq. [Comp. Laws Supp. 1940, 1943, § 4658 et seq., Stat. Ann. and- Stat. Ann. 1944 Cum. Supp. § 9.1471 et seq.]), for a license to-carry on the business of a dealer in automobiles during the year 1944. The license was refused. In Powers v. Secretary of State, 309 Mich. 530, we denied plaintiff’s application for writ of mandamus directing issuance of the license, but without prejudice thereby upon a hearing before the secretary of State. Thereupon the defendant gave plaintiff notice of the charges' against him and held a hearing thereon at which plaintiff and his counsel took part in the presentation of evidence. The defendant made a finding from which we quote the following:
“Considering all of the testimony offered, and the numerous exhibits produced, there appears to have been a clear and consistent course of sales-tax evasion on the part of the applicant. His utter disregard for and his intentional failure to pay the sales tax required by law constituted a series of fraudulent acts in connection with the selling or dealing in motor vehicles contrary to Act No'. 46, §14f (d), Pub. Acts 1921, as added by Act No. 151, Pub. Acts 1943.
“Although applicant has attempted to evade the consequences of his own acts by placing the blame which lies, upon a separate corporate structure, a structure of which he in fact is the keystone and controlling influence, I find that the fraudulent acts complained of were the acts of Jamos B. Powers as an individual.
“The corporate fiction of which he attempts to avail himself is a mere subterfuge and hardly worthy of serious consideration.
“Therefore, by virtue of authority vested in me under the provisions of Act No. 46, §14f (d), Pub. Acts 1921, as added by Act No. 151, Pub. Acts 1943:
' “It is ordered that the application of James B. Powers for a license to carry on or conduct the business of buying, selling or dealing in. motor vehicles or parts thereof in the county of Wayne, State of Michigan, for the year 1944 is denied, and I hereby refuse to issue such license.”
Under the statute “The findings of fact made by the secretary of State acting within his power shall, in the absence of fraud, be conclusive, but the Supreme Court shall have power to review questions of law involved in any final decision or determination of the secretary of State.”
Plaintiff reviews by certiorari, presenting questions of law. The statute of 1921 has been amended many times, the final amendment being Act No. 151, Pub. Acts 1943 (Comp. Laws Supp. 1943, §§4658-1 — 4671-6, Stat, Ann. 1944 Cum. Supp. §§9.1471 [1]—9.1482 [2]). That statute expressly empowers the secretary of State to refuse a license if, upon a hearing, he finds the applicant “has been guilty of a fraudulent act in connection with selling or otherwise dealing in motor vehicles; ’ ’ This is a broad provision inclusive of intentionally withholding payment of proper sales tax. Under the evidence the amount owing by Powers Motor Sales, Inc., constituted a flagrant violation of the sales tax act and constituted fraud within the meaning of Act No. 46, Pub. Acts 1921, as amended.
Findings of fact by the secretary of State dispose of many of the questions propounded by plaintiff. The secretary of State at the hearing had a right to consider all previous acts of plaintiff under former license to the. claimed corporation. Plaintiff applied as an individual for license and the statute includes any and all acts of omission which would be cause for refusing or revoking a license issued to such officer, director, employee or partner as an individual. Defendant was not estopped to deny plaintiff a license for the year 1944 for reasons occurring prior to that date even if known by defendant previous to issuance of the former license. The test in the instance at bar is not one of the right of plaintiff to engage in a business not harmful to the public health, morals, safety and general welfare of the people of the State of Michigan. In performing administrative acts-under direct command of the legislature defendant was not performing judicial functions. The one object of the act is apparent and that is to regulate the business of dealing in automobiles and compliance in so doing with provisions of law regulating reports and payment of revenue to the State. Plaintiff has failed to present a record establishing former adjudication of any issue in the proceeding at bar.
Under the facts, as found, and the law applicable thereto, the secretary of State was empowered to refuse the license and his action in so doing is affirmed, with costs to defendant.
Starr, C. J., and North, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
See Aet No. 167, Pub. Acts 1933, as amended (Oomp. Laws Supp. 1940, 1943, § 3663-1 et seq., Stat. Ann. and Stat. Ann. 1944 Cum. Supp. § 7.521 et seq.).—Reporter. | [
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Sharpe, J.
This is a suit wherein plaintiff, Mary McAlpine, seeks to be declared the sole owner of a piece of real estate free from any claim of the defendant Theresa Meehan.
On March 9,1921, Juliana Groll and Clara Meehan sold a piece of property on contract to defendant Theresa Meehan for the sum of $3,000 payable $800 upon execution and delivery of the contract and the balance in payments of $25 or more each month.
The contract provided:
“If default be made on the part of the party of 'the second part in making such payment of taxes or assessments, said parties of the first part shall have the right to pay the same and have the payment due hereon from the time of such payment with interest at seven per cent, per annum till paid.”
Defendant made payments until on or ‘ about July 9, 1932, reducing the balance of unpaid principal to $375.71. Defendant made no further payments on the contract and for some time prior to the above date had failed to pay the taxes assessed against the property. The property was sold to the State at the 1938 tax sale from which there was no redemption, with the result that title became absolute in the State of Michigan as of November 3, 1939. The State sold the property to defendant Meehan for the sum of $637.50 with a down payment of $83.75 and the balance of $573.75 payable in monthly instalments of $10 each. Theresa Meehan’s bid for the premises was made on February 27, 1941, but the land contract was* not executed and delivered by the State until June 11, 1941. Plaintiff who is an assignee of the vendor’s interest in the land contract attempted to match Meehan’s bid, but the State land office board denied her any relief.
On March 10, 1921, Juliana Goll and Clara Meehan, the vendors in the above-mentioned contract, assigned their interest in said contract to George H. Reif. On February 15, 1940, George H. Reif and wife assigned their interest in the contract to Retta E. Dalton. On March 12, 1940, Retta E. Dalton assigned her interest in, the contract to Mary McAlpine, plaintiff herein, who took physical possession of the premises and rented the same to defendant Edward P. Lemuel.. Occupancy of the premises by Edward P. Lemuel was without the knowledge or consent of the Tri-County Land Agency, managing agents for the State of Michigan. Edward P. Lemuel paid rent to defendant Theresa Meehan covering the period from June 11, 1941, to July 11, 1941. He refused to pay more rent, but continued to occupy the premises. On February 3, 1943, Theresa Meehan who had brought action \against Lemuel, recovered judgment in the sum of $432.50. On February 19, 1943, Meehan who had instituted summary proceedings 1 against Lemuel, obtained a judgment of. restitution of the premises.
On April 29, 1941, plaintiff served a notice of intention to forfeit the land contract .on defendant Theresa Meehan and on May 14, 1941, a notice was served on defendant Theresa Meehan that said contract had been forfeited.
On March 18, 1943, plaintiff brought the present suit and alleges that defendant Theresa Meehan has no title, interest or ownership in the premises since the forfeiture of the land contract on May 14, 1941. Defendant Edward P. Lemuel filed a cross bill in which he alleges that he rented the premises from plaintiff and paid' monthly rent for the same; and that the judgment of $432.50 in favor of defendant Theresa Meehan was procured by fraud. He asked that Theresa Meehan be permanently enjoined from taking any further proceedings on said judgment.
The trial court entered a decree which provided as follows:
“7. No proceedings in court were taken by plaintiff immediately following her action with respect to the service of the notice of intention to forfeit/ and the notice of forfeiture hereinbefore referred to in order to secure possession of the said .property, until the filing of the bill of complaint in the case at bar, other than the possession hereinbefore referred to.
‘ ‘ 8. The assignment executed by George Reif and his wife transferred no interest in the land to Retta E. Dalton, nor did the conveyance and assignment from her convey anything to plaintiff, and the plaintiff had no interest in the premises at the time of the tax sale, and that the bill of complaint should be dismissed. The sum of $639.62 expended by the plaintiff for improvements having enhanced the value of the premises should be repaid by the defendant Meehan.
“9. The defendant Lemuel should be reimbursed by the plaintiff, for the rent paid to her in the sum of $432.50.
“10. The defendant Theresa Meehan should be permitted to proceed with her legal remedy against the defendant Lemuel for all rents accruing since June 11, 1941.”
The decree also provided for dismissal of plaintiff’s bill of complaint and dissolution of the injunction theretofore issued.
Edward P. Lemuel' has hot appealed and his status in the proceedings will not be changed by results reached in this opinion.
Plaintiff appeals and urges that defendant Meehan’s purchase of the property at scavenger sale was subject to the contract which rested on it when she let the State take it for taxes; and that plaintiff, as assignee of the vendor’s interest in the contract, obtained all rights that the Vendor had in the contract. Defendant Theresa Meehan urges that her purchase of the property at the scavenger sale was a purchase under a new title and did not amount to a redemption because plaintiff acquired no rights under her assignment.
In coming to our conclusions, we have in mind that the issuance of a contract by the State land office board to defendant Theresa Meehan is not involved. The principal question for decision involves the right of plaintiff, the last assignee of the vendor’s.interest in the land contract, to be declared the sole owner of the property in question. We have in mind that plaintiff’s interest in the property was acquired after the State had acquired title to the same by virtue of the tax sale. We also have in mind that title to this property came to the State because of the failure of Theresa Meehan to meet her contract obligations of paying taxes on said property.
The rule is well settled that “one who is obligated by contract with another to pay the taxes may not, through his own default, obtain an advantage over the other.” Ford Heights Land Co. v. Schanert, 279 Mich. 693 ; Jacobsen v. Nieboer, 299 Mich. 116; Walker v. Woods, 308 Mich. 24.
See, also, Blackwood v. Van Vleit, 30 Mich. 118; Connecticut Mutual Life Insurance Co. v. Bulte, 45 Mich. 113; Hubbard v. Shepard, 117 Mich. 25 (72 Am. St. Rep. 548); Simons v. Rood, 129 Mich. 345; Tyler v. Burgeson, 229 Mich. 268.
In Dubois v. Campau, 24 Mich. 360, 370, it was said:
“But in a case, where a party whose duty it is to pay all the taxes on the land, allows it to be sold for such taxes to a stranger who might hold the whole against all parties, though this may terminate the tenancy while such tax-title is held by another, yet it has been terminated by the wrong of the party in default; and when he purchases in the title, he and the former owners are remitted to their original position and rights as they stood before the sale, and as they would have stood had the taxes been paid when due, or had the sale for taxes been made directly to such party in default. Such, we think, must be the result upon principle.”
It is equally as well settled that this rule is as applicable under the tax statutes involved here as under previous tax statutes. In Jacobsen v. Nieboer, supra, the mortgagors purchased the premises at a scavenger sale which resulted from their failure to pay the taxes as they became due and as the mortgagors had covenanted to do. We there said ,(p. 133):
‘ ‘ There is no such dissimilarity between the present and previous statutes as to establish a law that defendants may take advantage of their own default and their breach of the express covenants in their mortgage. Equity will consider that defendants redeemed the land when they subsequently exercised their right as former owners to match the highest bid at the scavenger sale. Defendants are estopped from claiming an interest in the land in question as against plaintiffs (mortgagees) in foreclosure proceedings.”
From tfcte early case of Dubois v. Campau, supra, down to the present time, the general rule above quoted has been adhered to. It has also been the rule that property purchased1 at a tax sale by one in default operates to place the parties to the contract at the time of its breach in the same position as they stood before the tax sale. Dubois v. Campau, supra. As was said in Tyler v. Burgeson, supra:
“When defendant himself paid for these tax titles he but paid his own debt and the payment operated as a redemption.”
Defendant recognizes these rules, but urges that plaintiff being an assignee of the vendor’s interest in the original contract and having acquired such interest after title had vested in the State with full knowledge that the property had been sold for taxes acquired no--rights in the original contract. Such a' claim is valid insofar as plaintiff’s right to match the bid at the scavenger sale is concerned, but we are 'not concerned with the scavenger sale. The purchase of this property at the scavenger sale by defendant Theresa Meehan operated as a redemption. In Jacobsen v. Nieboer, supra, title to the property had vested in the State by virtue -of the tax sale, yet we held that the purchasers of the property at scavenger sale who were the owners and mortgagors prior to the tax sale could not defeat a suit in chancery to foreclose the mortgage. Decision therein was based upon the premise that “equity will consider that defendants (mortgagors) redeemed the land when they subsequently exercised their right as former owners to match the highest bid at the scavenger sale. Defendants, are estopped from claiming an interest- in the land in question as against plaintiffs (mortgagees) in foreclosure proceedings.”
In-the case at bar, plaintiff acquired the interests of the original vendor in the contract. Under decision in the Nieboer Case, supra, the original vendor could maintain tlie present suit' and. by virtue of assignments plaintiff succeeds to such right. When Theresa Meehan purchased the property at the scavenger sale, she did so by virtue of her contract with Juliana Goll and Clara Meehan. Such purchase was in the nature of a redemption of the property and reestablished contract rights; at least the doctrine of estoppel denies defendant the right to claim otherwise.
A decree will be entered requiring- defendant Theresa Meehan to perform and fulfill her contract with the State land office board and pay plaintiff Mary’McAlpine the amount spent for repairs and improvements as well, as the amount due and owing on her contract with Goll and Meehan. She may have 90 days to comply with the terms of the decree. Plaintiff may recover costs.
Starr, C. J., and Bushnell, Boyles, and Reid, JJ., concurred with Sharpe, J.
North, J.
While I am in accord’with the reasoning and general conclusions of the opinion of Mr. Justice Sharpe, I cannot concur in the manner in which he has finally disposed of the ease because I think it is inadequate. Instead, I am of the opinion that the decree to be entered in this Court should provide that defendant Theresa Meehan within 90 days after the entry of our decree shall pay to plaintiff the balance of the purchase price on her contract originally made with Goll and Meehan together with accrued interest thereon and shall also pay to plaintiff $639.62, the amount expended for repairs and improvements made by plaintiff on the property in suit; and upon compliance with the above provisions defendant Theresa Meehan shall become and be decreed to be the owner of the property involved as against any land all rights of plaintiff Mary McAlpine.
Our decree should further provide that in default of compliance, within the time limited, with the foregoing provisions by Theresa Meehan, the circuit court shall enter a supplemental decree providing that all the rights of Theresa Meehan in and to the property in suit are foreclosed and terminated, and plaintiff subrogated to all the rights of Theresa Meehan as vendee in the land contract with the State of Michigan to the same effect as though Theresa Meehan had assigned her rights as vendee in said land contract to Mary McAlpine; provided, however, that within 90 days after entry of such supplemental decree in accordance with this paragraph plaintiff shall reimburse defendant Theresa Meehan for the total of her payments (without interest) made to the State of Michigan on its contract covering the land in question, and payment thereof to Theresa Meehan shall be secured by a lien upon the interest of plaintiff in the said land.
Our decree should also provide for remand of the case to the trial court for any further proceedings therein, and in particular for entering a supplemental decree in accordance with our decree herein in which there shall be recited the final disposition of the property rights of the respective parties under the one or the other of the foregoing alternatives, and that such supplemental decree may be made a matter of record in the register of deeds office in the county of Wayne. And our decree should award plaintiff Mary McAlpine costs on this appeal.
Starr, C. J., and Wiest, Butzel, Btjshnell, Boyles, and Reid, JJ., concurred1 with North, J.
See Act No. 155, § 7, Pub. Acts 1937, as amended by Act No. 244, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 3723-7, Stat. Ann. 1940 Cum. Supp. § 7.957). Reporter. | [
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Sharpe, J.
Ethelyn A. LaBarge and Sidney H. LaBarge were divorced in January, 1933. The decree of divorce provided:
“And it is further ordered, adjudged and decreed that said defendant, Sidney H. LaBarge, shall pay to the clerk of this court as and for permanent alimony and support money for the benefit of said plaintiff, Ethelyn A. LaBarge, the sum of $5 per week, to be paid on Monday of each week, commencing Monday, January 23, 1933, said payments to continue until the decease of said plaintiff or her earlier remarriage. * * *
“And it is further ordered, adjudged and decreed that upon the payment of said several sums of money hereinbefore ordered to be paid by said defendant, and the delivery of proper instruments of conveyance of the real estate and personal prop erty hereinbefore described to said plaintiff, same shall stand in lieu of the dower rights of said plaintiff, Ethelyn A. LaBarge, in the property of her husband, Sidney H. LaBarge, and which said payments when made shall be in full satisfaction of all claims that she, the said Ethelyn A. LaBarge, may have in any property which her husband, said Sidney H. LaBarge, now owns, or may hereafter own, or in which he may have any interest.”
Sidney H. LaBarge married Beatrice S. A. La-Barge in May, 1939. He died testate April 16,1943. At the time of his death, he was in arrears approximately $15 for permanent alimony. The will of Sidney H. LaBarge was allowed to probate and his widow, Beatrice S. A. LaBarge, was appointed executrix of his estate.' A.n order was entered in said estate setting the time for hearing claims as of. July 8, 1943.
In May, 1943, plaintiff, Ethelyn A. LaBarge, filed a bill of complaint in the superior “court of Grand Bapids, in chancery, in which the following relief was sought:
, “ C. 'That this court grant this plaintiff such lump sum in cash from the estate of her former husband, Sidney H. LaBarge, as shall be equitable and just in fulfillment of the award granted this plaintiff in the aforesaid decree of divorce.
“D. That this court order such sum to be paid out of the estate of the deceased, if sufficient, giving priority thereto over all other claims against the estate, and provide that such sum so ordered to be paid constitute a lien on the estate of said deceased.”
Defendants filed a cross bill with their answer and asked that the divorce decree be modified to provide that all payments after March 29, 1943, cease; and that it be decreed the estate is under no further obligation under the divorce decree.
The will of Sidney H. LaBarge dated August 23, 1935, gave all of his estate to Beatrice S. A. Bohn, now his widow, and named her executrix. He executed a codicil to the will March 21, 1939, which provided that said will “shall include the inheritance from my father’s estate and also that which I inherit from the estate of my cousin, Carrie R. Heaton, according to her will.”
The cause came on for hearing and the trial court dismissed plaintiff’s hill of complaint, holding “that the court has no power to continue the payments of permanent alimony out of the estate of the deceased.”
In Braffett v. Braffett, 308 Mich. 506, we discussed the question involved in the present case. We there held that in the failure of the deceased during his lifetime or the representative of his estate to take any action to have a divorce decree modified, the probate court may allow the claim for accrued alimony and make provision for the payment of future alimony by holding the estate open and retaining funds to safeguard the contingent claim.
In the case at bar the trial court did not dispose of the cause on its merits. The court was in error in holding it had no power to continue the payments of permanent alimony.
The cause is- reversed and remanded to the trial' court for a determination of the merits of plaintiff’s bill of complaint and the cross bill. Plaintiff 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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Sharpe, J.
This case involves the determination by a chancery court of the respective rights of the two sole stockholders in the assets of a corporation which operated a summer hotel at St. Clair Plats.
The hotel property is owned by the State of Michigan and several years ago was leased for a term of 50 years to one Aaron DeRoy who sold his interest in the same on contract to one Norman Soderlund. Mr. Soderlund was unable to keep up the contract and it was terminated by the Aaron DeRoy estate and then sold by it directly to defendant, Nicholas Hermann.
In March, 1940, plaintiff, Edward J. Roberts, and defendant Nicholas Hermann incorporated under the name of Hermann’s Idle Hour, Inc., for the purpose of owning the leasehold interest and operating the above-mentioned summer hotel. In the articles of incorporation, plaintiff and defendant Hermann are listed as the owners of 500 shares each of common stock. The hotel was purchased for the sum of $8,641.70. Defendant Hermann made an original investment of $6,456.72 and plaintiff originally invested $1,000 in the business. Plaintiff gave his note for $2,728.36 to defendant Hermann secured by his stock for the difference. The hotel was operated by Roberts and Hermann and their wives without compensation during the summer season of 1940. After the 1940 summer season, the hotel remained closed until June, 1942, when defendant Hermann leased the premises to the United States Coast Guard for use as a training station at a rental of $1 a year. The premises were occupied by the United States Coast Guard until October 31, 1942.
In June, 1942, plaintiff filed a bill of complaint in the circuit court of Wayne county, in chancery, in which it is alleged that plaintiff and defendant Hermann formed a partnership wherein it was agreed that each party would have a half interest in and to a certain lease of personal property; that in pursuance of said agreement the parties formed a corporation known as Hermann’s Idle Hour, Inc.; that defendant had charge and management of the partnership books and has taken and applied to his own use large sums of money from the receipts and profits of the business; that in April, 1942, defendant mailed a notice of a meeting of the incorporators of Hermann’s Idle Hour, Inc.; that such meeting was not called in accordance with the by-laws of the corporation; that at said meeting held on April 23, 1942, and after the corporation was dissolved, the meeting proceeded to disenfranchise and deprive plaintiff of 350 shares of stock in said corporation, leaving plaintiff with only 150 shares of stock; and that defendant Hermann is proceeding to collect the accounts owing to said partnership. By way of relief, plaintiff asks for a dissolution of the partnership and that defendant pay to plaintiff whatever sum of money shall be found to be due him; that plaintiff be decreed to be a half owner in the lease; and that a proper person be appointed a receiver of the property.
On November 2, 1942, plaintiff filed an amended bill of complaint in which it is alleged1 that articles of incorporation were executed about March' 12, 1940, which corporation was known as Hermann’s Idle Hour, Inc.; that on April 3, 1940, the leasehold interest in the hotel property was assigned to the corporation; that the business was operated at St. Clair Flats; that the operation of the hotel business resulted in large profits, but that defendant Hermann claimed there were large losses, which statements were false. By way of relief, plaintiff asks that there be a complete accounting of all assets of the corporation; and that the corporation be dissolved according to law.
Defendant Hermann filed an answer to the amended bill of complaint and denies that the business was operated at a profit. He also filed a cross bill of complaint in which he alleges that prior to or at the time óf the incorporation defendant Hermann advanced $6,456.72, while plaintiff Roberts advanced only $1,000; that to equalize said investments, plaintiff executed and delivered to defendant a promissory note in the sum of $2,728.36 with interest at six per cent, due in one year; that no part of the note and interest has been paid; that under the terms of the preincorporation agreement of March 12, 1940, plaintiff agreed to place his 500 shares of stock in the corporation as collateral to said note.
The corporation, under an order of the trial court, was made a party to the suit and it also filed a cross bill of complaint in which it is alleged that during the fall of 1940, plaintiff, Roberts, removed from the premises a large quantity of furniture, rugs, linens, lamps, glassware and other articles valued at $2,500; that the one season the hotel was operated, resulted in a loss of approximately $1,300; that since March 31, 1941, defendant Hermann has paid out for the benefit of the corporation a sum of approximately $4,700 in addition to the 1940 operating loss of approximately $1,300; and that since March 31, 1941, plaintiff has contributed the sum of $85 for interest, $145 for one-half of the 1940 tax and $517 for one-half of a principal and interest payment on the lease.
The cause came on for trial and the trial court on March 31, 1944, entered a decree in which he dissolved the corporation and ordered a sale of the property within two weeks at the highest price obtainable. On April 10, 1944, plaintiff filed a motion to set the order or decree aside because to sell the property within .two weeks would result in irreparable damage to plaintiff; and because a proper inventory and audit had not been made of the property of the corporation. On April 14, 1944, defendant Hermann made an offer to purchase the assets of the corporation for the sum of $7,200. On April 25, 1944, an order was entered requiring plaintiff and defendant Hermann to each deposit the sum of $200 for the payment of the cost of an audit. Mr. Hermann paid said sum to the clerk of the court, but plaintiff failed to do so.
Thereafter, on May 19, 1944, the trial court entered a decree in which he found that of the original investment of $7,456.72, the sum of $6,456.72 was contributed by defendant Hermann and $1,000 by plaintiff; that to equalize the investment plaintiff , executed and delivered to defendant his note, dated March 5, 1940, in the amount of $2,728.36 payable in one year with interest at six per cent; that by the terms of the agreement dated March 12, 1940, plaintiff pledged his 500 shares of stock as security for the payment of the note; that said note is unpaid ,and that on May 5, 1944, the amount due on said note is the sum of $3,410.44; that the amount due on said note may be decreed a first lien upon plaintiff’s stock; that in March, 1941, an audit of the business was made which showed an excess of disbursements over receipts in the amount of $2,405.06 and unpaid debts of $493.60; that since March 31, 1941, defendant Hermann has expended for the benefit of the córporation the sum of $5,635.66 for unpaid debts, cóntract payments, taxes, and insurance; that the total investment of defendant Hermann is the sum of $15,216.29 and the total investment of plaintiff is the sum of $1,754.84; that 48 days have elapsed since the property was ordered sold, during which time plaintiff failed to find a buyer for said property; and ordered that all of the assets of the corporation belong to defendant Hermann free and cléar of any and all claims of plaintiff.
On June 12, 1944, plaintiff filed a motion to vacate the decree because the corporation was not properly dissolved and because the decree was inequitable. This motion was denied and plaintiff appeals.
We note that in plaintiff’s amended bill of complaint he seeks an accounting and a dissolution of the corporation; that the record shows that all creditors of the corporation have been paid; and that the trial court found that the corporation was dissolved by certificate of dissolution filed on November 2, 1942, with the Michigan corporation and securities commission and no decree of dissolution was necessary.
The principal reason for plaintiff’s filing suit was to get an accounting from defendant Hermann as treasurer of the corporation. Whether the corporation had been dissolved, as found by the trial court, or still exists as a corporation, as claimed by plaintiff, is of no particular importance as chancery courts, under certain conditions, may' dissolve corporations. See Stott Realty Co. v. Orloff, 262 Mich. 375; and Flemming v. Heffner & Flemming, 263 Mich. 561.
Of paramount importance is the right of a court of chancery to distribute the assets of a corporation among its stockholders.
In Stamm v. Northwestern Mutual Benefit Association, 65 Mich. 317, 331, we said:
“Upon principle, as well as upon authority, I think that, when a corporation is virtually dead, although its term of existence limited by law has not expired, and it has property or assets which-cannot be used in carrying out the purposes of the corporation, remaining in the hands of the corporation,- this Court has jurisdiction to distribute such property and assets among its members upon such a basis as shall be just and equitable.”
In our opinion, the record in this case justified the trial court in distributing the assets of the corporation.
It is next urged by plaintiff that the business was operated at a profit during the season of 1940. Plaintiff claims that the profit was approximately $4,000, while defendant Hermann urges that there was an operating loss in excess of $2,400.- It appears that in March, 1941, an audit was made of the business- done in 1940. This audit shows an excess of disbursements over receipts in the amount of $2,405.66 with unpaid bills in the sum of $493.60. While plaintiff challenges the accuracy of this audit, we have in mind that he refused to bear a part of the expense of an audit ordered by the trial court. Under such circumstances the trial court was justified in using the 1941 audit as a basis for his -conclusions.
We have carefully examined the record and con-' elude that there is competent testimony to sustain the findings of the trial court.
The decree is affirmed, with costs to defendant.
Starr, 0. 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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Fellows, J.
Defendant, furnishing part of the land and other parties furnishing another part, platted and put on the market Sherwood Forest subdivision just outside the city limits of Detroit. The following year and before plaintiff purchased a lot the property was annexed to the city. On March 1, 1917, plaintiff entered into a contract with defendant to purchase lot 330, which was in the portion of the subdivision owned by him. The contract contains in detail many restrictions making the subdivision a strictly high grade residential district. The contract contained the following provision:
“Nine. In consideration of the purchase by said second party of Lot 330 of Sherwood Forest subdivision, said parties of the first part agree that they will, without cost to the second party, provide street paving twenty feet wide before all lots except lots fronting on Livernois avenue and Lincoln highway; five-foot sidewalk and shade trees in front of all lots, put in sewers, drainage pipes, electric lights and water mains in the streets on which said lots are located, all of which improvements except as the city authorities may install, shall be completed by the end of the year 1919.”
The purchase price of the lot was $3,500 and plaintiff made his payments regularly until the spring of 1921. The improvements had not been put in, due to war conditions as defendant claims, and by mutual agreement further payments were deferred. Afterwards the city put in the public improvements which included sewers, sidewalks, pavement 26 feet wide and the attendant curbing. The controversy here arises over this situation: Lot 330 is located on the northwest corner of the intersection of Berkley road and Cambridge road and the pavement and sidewalks were put in on two sides of it. Plaintiff concedes he should pay for the extra width of pavement beyond that called for in the contract, but insists that defendant should pay for the balance of the pavement with the incidental curbing and the sidewalk on both sides of the lot, while defendant insists that the lot fronts on Berkley .road and that he should only be required to pay for the improvements on that street. Plaintiff tendered the amount due under his claim, and upon its refusal filed this bill for specific performance, and had decree.
Defendant contended in the court below and here contends that the words “before” and “in front of” should be literally enforced and that they exclude improvements on streets at the side of the lot and upon which the lot faces. The expressions “before” and “in front of” seem to have been used interchangeably. Authorities on the subject are not numerous, but we think they support plaintiff’s contention that the language used under the circumstances of this case contemplates improvements upon the street or streets upon which the lot faces. In Justices of Bedfordshire v. Bedford, 7 Exch. 658, where the court had before it the words “in front of” in the local act of 43 Geo. III, chap. 128, § 59, it was said by Pollock C. B.:
“After looking at the language of the local act, and after hearing the able arguments which have been urged on behalf of the appellants, I am still of opinion that the term ‘in front,’ in the 59th section, includes every part of the building which the justices could form into a front by opening doors or windows in it, so as to obtain communication with any street — in other words, that every part of the building is to be considered as frontage which fronts or abuts upon any public street.”
In City of Des Moines v. Dorr, 31 Iowa, 89, the court gave some force to the fact that the plural was used in the contract to “keep up the sidewalks in front of the same” yet it expressly held:
“The front of a lot is very well known to be that part of the same which faces a street or streets. It may front on one street only or it may front on two. What is the front of a lot is a.question determinable by its facing upon- a public street or streets. In this case the lot in question faced upon two public streets. The lease required the lessee to keep up the sidewalks in front of the lot. The building of a sidewalk on Walnut street by him was not a full compliance of the agreement, if a walk was ordered by the city on the other front.”
In Waters v. Collins (N. J. Eq.), 70 Atl. 984, where the term “front property line” was involved, it was said:
“Now a lot fronts on a street when it lies face to face with, or opposite to, a street. The front property-line of any street is a boundary which delimits private property lying along that street from the street itself. Both at Atlantic avenue and Montpelier avenue this condition of affairs exists. There is therefore on both streets a front property line of defendant’s lot.”
In Meier v. City of St. Louis, 180 Mo. 391 (79 S. W. 955), where the court was construing the provisions of the city charter, it was held that “fronting,” “adjoining,” and “abutting,” as used in the charter were not synonymous, and in Bedard v. Bonville, 57 Wis. 270 (15 N. W. 185), the words in a contract “to finish the front part of the basement” were held to be so vague as to require extrinsic evidence to aid in the construction of the contract.
We shall, however, not consider the parol testimony clearly establishing the practical construction by all the parties before the price of material advanced, as we are satisfied that a consideration of the contract itself, with the surrounding circumstances, coupled with the authorities already cited, sustain plaintiff’s contention. The contract before us makes practically every conceivable restriction and condition necessary to make the subdivision a high grade exclusively residential district. It is rare indeed that we have before us a provision evidencing such care in its preparation as in the one here. When the subdivision was put on the market and the form of contract prepared the subdivision was outside the city and the question of paving and sidewalks was a matter of private concern and of private contract. To make a high grade residential district there must be pavements and sidewalks and sewers and lights, not on portions of the subdivisions, but upon all of it. Cambridge road, one of the streets here involved, has many lots facing it alone. It is conceded by defendant that he must build pavements and sidewalks there. It seems entirely out of line with, the character of the subdivision to. think of holding that it was contemplated that he would discharge his obligation by building pavement and sidewalks there alone, leaving his purchasers to struggle through the mud where the lots only face Cambridge road on the side. Yet that would be the situation if we adopt defendant’s contention, having in mind, as we have pointed out, that when platted and when the form of the contract was prepared, the lands were outside the city and the building of sidewalks and pavement a private matter. The contract was prepared by defendant and must be most strongly construed against him. We can discover no good reason for disagreeing with the conclusions of the trial judge.
The decree will be affirmed, with costs of this court»
Bird, C. J., and Sharpe, Snow, Steere, Wiest,. Clark, and McDonald, JJ., concurred. | [
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Sharpe, J.
On February 24, 1923, plaintiffs purchased from defendant on a land contract a farm of 200 acres in Muskegon county, and the live stock, tools and implements thereon, at an agreed price of $10,000; payable, $1,000 on delivery of the contract, and balance in deferred payments. On April 8,1924, they brought this action to recover damages claimed to have been sustained by them, due to the false and fraudulent representations made by defendant as to the condition and value of the farm and the personal property. They had verdict and judgment in the sum of $1,000. The defendant had moved for a directed verdict, and for judgment notwithstanding the verdict, and the errors discussed by her counsel relate to the denial of such motions.
Plaintiffs moved on the farm soon after the execution of the contract, and remained there until May 12, 1924. They failed to pay the taxes levied on the farm in 1923, as they had agreed to do in the contract, and defendant, on February 23, 1924, served on them a notice of forfeiture, and afterwards took proceedings to recover possession, resulting in the issue of a writ of restitution on May 12, 1924. The plaintiffs surrendered possession to her on that day.
It is defendant’s claim that, as plaintiffs admit that they became fully advised as to the condition of the farm and the personalty as early as May, 1923, their conduct in retaining possession thereafter, and without making any effort to rescind the contract, amounted in law to a waiver of any claim for fraud which they might have. Her counsel relies on the following eases: Rumsey v. Fox, 158 Mich. 248; Hakes v. Macklin, 170 Mich. 228; Draft v. Hesselsweet, 194 Mich. 604; Parkyn v. Ford, 194 Mich. 184. These cases all involve rights under rescission or questions concerning the validity of the contract.
Where a vendee claims that he had been defrauded in the purchase of property by misrepresentations as to its condition or value, he has his choice of two remedies. He may rescind the contract, tender back that which he has received, and demand a return of that which he paid; or, he may affirm the contract, retain the property, and bring an action to recover the damages sustained, due to such misrepresentation. This court has many times so held. Two of the later cases are Barnhardt v. Hamel, 207 Mich. 232, and Bryan v. Houseman-Spitzley Corp., 213 Mich. 236.
Plaintiffs’ action is not founded on rescission. In it recovery is sought for the damages incurred by reason of the representations made, which are alleged to be false, and which it is claimed were relied on by plaintiffs. As was said in Barnhardt v. Hamel, supra:
“The relief asked in this form of action does not involve the parties being placed in statu quo, but is only to recover damages for a wrong done, and no special diligence is required to discover the fraud or in bringing such action after discovery short of the statute of limitations.”
In Parkyn v. Ford, 206 Mich. 576, it was pointed out that the right to bring an actiomsuch as is here brought may be waived by acts which indicate an intention to dq so: In St. John v. Hendrickson, 81 Ind. 350, quoted from approvingly in that case, it was said:
“We neither hold, nor mean to hold, that affirmance by retention of the thing bargained for cuts off an action far damages.”
The forfeiture of the contract, followed by the issue of the writ of restitution, in no way affected plaintiffs’ right to recovér. Williamson v. Hannan, 200 Mich. 658.
The judgment is affirmed.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Edward M. Sharpe, J.
The common council of the village of Flushing in 1933 adopted an ordinance entitled “An ordinance to regulate hawking, peddling and street vending- and to prohibit the sale of goods, wares, merchandise, fruits, and vegetables, within the limits of the village of Flushing without a license.” This ordinance was to become effective May 2, 1933. Section 1 of the ordinance is as follows :
“No person, firm or corporation shall engage in the business of hawking, peddling or vending at retail any goods, wares, merchandise, baked goods, fruits or vegetables from door to door, or from or upon the streets, alleys and public places within the limits of the village of Flushing, or take orders by sample or otherwise, for delivery then or in the future, without first obtaining a license so to do from the village clerk. Said village clerk is hereby directed to have license blanks for that purpose.”
Section 2 provides that “(c) those representing retail or wholesale establishments which have been engaged in business in the village of Flushing three months or longer” shall be exempt from payment of fees for licenses under the ordinance.
Plaintiff is a Michigan corporation, organized in 1921, having its main offices in Detroit and ware houses in Detroit, Flint, Battle Creek and Bay City. It also does business in and has affiliated corporations in other States. Plaintiff deals in tea, coffee, sundry groceries and spices. It does business in over 100 villages and communities in Michigan, sending out its salesmen in trucks. The salesman calls upon his customers once every two weeks. At the time he makes deliveries, he takes orders for the next delivery. The salesman does not go from door to door soliciting orders nor does he call out his wares upon the street. He does, however, call on any new customers who are recommended by old customers. The plaintiff, through its agent, has been taking orders and making deliveries in this manner in the village of Flushing for more than five years.
After paying $10 in daily fees over a period of several months, plaintiff refused to continue the payment of fees as prescribed in the ordinance and insisted on by the village officials and filed a suit to enjoin the enforcement of the ordinance. Plaintiff alleges that the ordinance is unconstitutional because it discriminates between local and non-local tradesmen and thus violates the Fourteenth Amendment of the Federal Constitution and article 2, § 1 of the Constitution of Michigan of 1908, guaranteeing to all persons the equal protection of the laws. Plaintiff also contends that the license fee is not regulatory in nature but amounts to a tax, and that the ordinance is unconstitutional because it gives the village council power to revoke any license at will.
The trial court in construing the ordinance held that the exemption applies only to retail or wholesale establishments which have had a regular place of business in Flushing for three months or longer and held that plaintiff was not exempt from the license fee, and that the ordinance was constitutional. Plaintiff appeals.
The Fourteenth Amendment of the United States Constitution and article 2, § 1 of the Michigan Constitution of 1908 give the same right of equal protection of the laws. Naudzius v. Lahr, 253 Mich. 216 (74 A. L. R. 1189, 30 N. C. C. A. 179).
These constitutional provisions do not mean that there can be no classification in the application of statutes and ordinances, but only that the classification must be based on natural distinguishing characteristics and must bear a reasonable relation to the object of the legislation.-
The standards of classification given in Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78 (31 Sup. Ct. 337, Ann. Cas. 1912 C, 160), were quoted by this court in Naudzius v. Lahr, supra, at pp. 222, 223:
“1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3.'When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.”
It has been repeatedly held that a provision in an ordinance discriminating in favor of residents as against nonresidents is in violation of constitutional prohibition and invalid. Brooks v. Mangan, 86 Mich. 576 (24 Am. St. Rep. 137); City of Saginaw v. Saginaw Circuit Judge, 106 Mich. 32; Goldstein v. City of Hamtramck, 227 Mich. 263; In re Irish, 122 Kan. 33 (250 Pac. 1056, 61 A. L. R. 332). So, also, a classification in an ordinance based on location of place of business is void. American Bakeries Co. v. City of Griffin, 174 Ga. 115 (162 S. E. 513); Hair v. City of Humboldt, 133 Kan. 67 (299 Pac. 268); Fecheimer Bros. & Co. v. City of Louisville, 84 Ky. 306 (2 S. W. 65); Grantham v. City of Chickasha, 156 Okla. 56 (9 Pac. [2d] 747); Ideal Tea Co. v. Salem, 77 Ore. 182 (150 Pac. 852, Ann. Cas. 1917 D, 684). Ordinances discriminating against businesses located outside of cities in favor of businesses located within cities for a given length of time are void. In re Robinson, 68 Cal. App. 744 (230 Pac. 175); Dusenbury v. Chesney, 97 Fla. 468 (121 South. 567).
The avowed purpose of the instant ordinance was to discourage fly-by-night peddlers and to prevent fraud on the public. What reasonable relation does the location of a vendor’s place of business have to his responsibility? The effect of the exemption to “establishments engaged in business in the village of Flushing three months or longer” is to grant benefits to those concerns having a place of business in the village while denying the ■ same privileges to those which have no place of business therein. That is the only meaning that can be given to the ordinance, since the test of “engaging in business in Flushing” applied by the village officials and the only test capable of application with any reasonable certainty is the location of a place of business in the village. This is the very classification which has been condemned. It is an unreasonable discrimina tion and the ordinance is therefore void as in violation of the Fourteenth Amendment of the United States Constitution and article 2, § 1, of the Michigan Constitution. The injunction as prayed for by plaintiff should be granted.
In view of this decision, the other grounds of invalidity alleged by plaintiff need not be discussed.
Decree reversed, with costs to plaintiff.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, and Butzel, JJ., concurred. Bushnell, J., did not sit. | [
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Fellows, J.
Donald McDonald, an employee of Steindler Paper Company, was voluntarily in the county of Charlevoix on August 26, 1923. His residence was in Cheboygan county. While driving in Charle-voix he came into collision with two automobiles, inflicting serious injuries on some of the occupants thereof. The collision occurred under such circumstances as to satisfy the sheriff that he should be prosecuted for violating the automobile law, and he was arrested and placed in jail; while there he was served with summons directed against him and the company. In a motion heard by defendant circuit judge, it was insisted that he wa's privileged from service of civil process, and the overruling of this motion is reviewed in this mandamus case. The validity of his arrest is not assailed, nor is there anything upon this record showing or tending to show collusion between the sheriff and the plaintiff in the negligence case. No question is raised as to the propriety of the present plaintiff making the motion to dismiss and we shall dispose of the case on its merits.
Possibly we will better understand what is before us by first pointing out what is not before us. We have not a case where a defendant is brought into the State on rendition proceedings to answer a criminal charge and is then served with civil process (In re Cannon, 47 Mich. 481; McCullough v. McCullough, 203 Mich. 288). Nor a case where a defendant is taken from the county where he resides into another under a criminal warrant and has after his release on bail been served with civil process (Baldwin v. Branch Circuit Judge, 48 Mich. 525); nor a case where he is arrested on civil process from the Federal court and for the purpose of putting in bail leaves the county of his residence and goes to another county where he is served with civil process (Watson v. Judge of Superior Court, 40 Mich. 729); nor where a party goes into another jurisdiction for the purpose of giving testimony (Mitchell v. Huron Circuit Judge, 53 Mich. 541; Letherby v. Shaver, 73 Mich. 500; Connelly v. Wayne Circuit Judge, 227 Mich. 139); nor where a party is on his way home after having been arrested and let to bail and is served with process while consulting counsel in one of the counties through which he passes (Jacobson v. Wayne Circuit Judge, 76 Mich. 234, and see the discussion of this case in the majority opinion in Monroe v. St. Clair Circuit Judge, 125 Mich. 283 [52 L. R. A. 189]). The case before us is one where a party voluntarily in a county not of his residence is apprehended for crime then and there committed and while in jail is served with civil process. So that the real question before us is this: Is one exempt from service of civil process while confined in jail under arrest for violation of the criminal law in a county where he has voluntarily gone for either business or pleasure, and While there by his conduct has subjected himself to such arrest and such arrest has been made before he leaves such county? The claim of exemption is based and must be based on the fact of his arrest and confinement in the county jail. Manifestly if he was not under arrest service of the process would be good beyond question, as the plaintiff is a resident of Charlevoix county. Does such arrest and confinement bring with it immunity from service of civil process?
Counsel 'do not call our attention to any of our own cases which are directly in point and we do not find any. However, we think the question is settled by the textwriters and the decisions of other courts in accordance with the holding of the circuit judge. In 21 R. C. L. p. 1314 it is said:
“The mere fact that a person is in jail or prison* under a criminal charge or sentence furnishes no exemption against the service of civil process on him. An imprisoned person is subject to be sued and prosecuted to judgment, and proceeded against in ail the modes prescribed by law to enforce civil remedies, the same as if he were at large.”
In 32 Cyc. pp. 494, 495, the rule as to nonresidents brought into the State by rendition proceedings and voluntarily coming into the State is laid down, and it is said:
“Residents confined in jail or .prison on criminal charges are subject to service of civil process.”
The cases' sustain the text. White v. Underwood, 125 N. C. 25 (34 S. E. 104, 46 L. R. A. 706, 74 Am. St. Rep. 630); Davis v. Duffie, 1 Abbott App. Dec. (N. Y.) 486; Dunn’s Appeal, 35 Conn. 82; Phelps v. Phelps, 7 Paige Ch. (N. Y.) 150. The case of Dunn’s Appeal, supra, is somewhat similar to the case before us. He was confined in the Hartford county jail and. was there served with process although he belonged, in East Windsor. It was held that the service was. good. The legislature of this State has recognized, the propriety and validity of such service and has made provision for service on defendants confined in jails and prisons. 3 Comp. Laws 1915, § 12444.
Day v. Harris, 14 N. Y. Supp. 3, is quite in point. The defendant was under arrest for a criminal offense. He was a resident of New Jersey. He moved to dismiss the civil suit but did not make a showing that he was brought into the jurisdiction by criminal process. It was held that the showing was not sufficient. It was there said:
“But the essential condition of the rule and ground of the exemption is that the person claiming it shall have come within the jurisdiction of the court issuing the process as such party or witness. It is not sufficient that he is a nonresident of the jurisdiction; it must appear that he came from without the jurisdiction upon the occasion of the judicial proceeding which he was attending, and for the purpose of attending it.”
The writ will be denied, with costs.
Bird, C. J., and Sharpe, Snow, Steere, Wiest, Clark, and McDonald, JJ., concurred. | [
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Bushnell, J.
The precise question presented by this appeal is one of first impression in this State.
The defendant, after examination in the recorder’s court of the city of Detroit, was arraigned on an information charging him with breaking and entering a dwelling house in the nighttime, with intent to commit a larceny therein. The information is laid under the Michigan penal code (Act No. 328, Pub. Acts 1931, §§ 110, 360), and contains a larceny count. Subsequently, a motion to quash the information was heard. Counsel for the State admitted that, to establish probable cause, they relied solely upon (1) proof that the crime charged in the information was committed (the corpus delicti), and (2) proof that a palm print of defendant’s right hand was found on the sill of the rear bedroom window through which the offender effected an entrance, such discovery having been made by a police officer and fingerprint expert within 12 hours of the commission of the offense. The premises had been isolated during the interim.
The defendant contended that (1) such proofs were insufficient to make such a showing of probable cause as would justify binding defendant over for trial; (2) that Act No. 197, Pub. Acts 1931, amending 1 Comp. Laws 1929, §§567-573, providing for the taking of fingerprints in case of arrest for felony, did not justify the officers in taking defendant’s palm prints after his arrest on general suspicion; and. (3) that in so doing the officers violated defendant’s rights and compelled him to incriminate himself against his will in violation of article 2, § 16, of the Constitution of this State. The court ruled that the evidence was insufficient to hold the defendant for trial, quashed the information and ordered the discharge of the defendant. We granted leave to appeal from the order and directed that the cause be heard as a motion.
The exhibits attached to the record include a photograph of a portion of a human palm print, found on the window sill of the premises in question, marked exhibit 1 and hereafter referred to as the “latent print,” and a photograph of a print of the right palm of the defendant, marked exhibit 2 and hereafter referred to as the “actual print.” These prints are both marked in 15 different places, each of which is claimed to reveal an identical characteristic.
The prints are read in this manner: An identical characteristic is located on both prints, and marked number 1, it being in this case a dot. Number 2 identical characteristic is. a point at the end of a line, separated on both prints from number 1 by one intervening line. Number 3 is the end of a line separated from 2 on both prints by two lines. Number 4 is another end of a line separated from 2 on both prints by two lines. Number 4 is another end of a line separated from 3 by three lines on both prints, while numbers 5 and 6 are two dots found on both prints between 4 and the next line. Number 7 is the end of a line separated from 6 by six unbroken lines, and so on clockwise around both prints until 15 identical characteristics have been read, located in the Same position on each. The general similarity of the latent and actual prints is obvious to one who has never before read a print.
There seems to be little or no difference between the methods employed in the reading* of palm prints and fingerprints. It is true that palm prints are nol used as extensively as fingerprints and are not generally tabulated. The authorities on the subject are agreed, however, that the same types of peculiarities exist in the palms and feet as in the fingers. The permanent nature and individuality of the fingerprint was first put forward in a scientific manner by J. E. Purlrinje, an eminent professor of physiology, in a paper read before the University of Breslau in 1823. He adduced nine standard types of impressions and advocated a system of classification which attracted no great attention. Sir Francis G-alton later did much to advance the use of the science, and today it is an accepted and well-recognized aid not only in the identification of criminals, but for many other purposes. Sound authority declares that fingerprints are reliable as a means of identification. See,'9 Encyclopedia Britannica (14th Ed.), p. 249. The fingerprints of millions of men in the service during the late war were taken and proved invaluable in many instances. In India, fingerprints have long been used to prevent false impersonation and to fix the identity of those who execute documents. C. Ainsworth Mitchell in “Science and the Criminal,” p. 51 (1911). Their use is well known in connection with the postal savings system, and foot prints have become an accepted means of identifying new-born babies in the obstetrical wards of hospitals.
We have passed upon the propriety of permitting an experiment in fingerprinting before a jury, in People v. Chimovitz, 237 Mich. 247, holding it to be within the sound discretion of the court. The experiment was designed to indicate to the jury the accuracy of such evidence, the admissibility of which does not seem to have been questioned. Practically all the decisions in which the question has been considered have held that evidence as to the correspondence of fingerprints is admissible to prove identity. See Powell v. State, 50 Tex. Cr. R. 592 (99 S. W. 1005); Brown v. State, 76 Tex. Cr. R. 316 (174 S. W. 360); and State v. Miller, 71 N. J. Law, 527 (60 Atl. 202).
See, also, cases collected in 3 A. L. R. 1706, 16 A. L. R. 370, and 63 A. L. R. 1324.
The case of first impression upon the question whether evidence as to the identity of palm print impressions is admissible, as tending to connect the accused with the commission of the crime, is State v. Kuhl, 42 Nev. 185 (175 Pac. 190, 3 A. L. R. 1694). There Chief Justice McCarran traced the history of the science and quoted liberally from the authorities, referring to the leading fingerprint cases in this country. People v. Jennings, 252 Ill. 534 (96 N. E. 1077, 43 L. R. A. [N. S.] 1206); People v. Roach, 215 N. Y. 592 (109 N. E. 618, Ann. Cas. 1917 A, 410); Young v. State, 68 Ala. 569; and People v. Storrs, 207 N. Y. 147 (100 N. E. 730, 45 L. R. A. [N. S.] 860). The learned discussion in the Kuhl Case is ample authority for a holding that palm prints are just as valuable and accurate as fingerprints. The evidence of experts as to the identity of latent and actual palm prints is a proper subject for the consideration of a jury, and the weight to be given such testimony is for the jury to determine. Further, such evidence may be a sufficient showing of probable cause.
Does Act No. 197, Pub. Acts 1931, amending 1 Comp. Laws 1929, §§ 567-573, justify police officers in taking the palm prints of one arrested on suspicion? This act imposes upon police officers the duty to take fingerprints upon aii arrest for a felony, and is not a limitation upon their lawful actions in the detection and apprehension of criminals. We do not understand that it is claimed that the defendant’s palm prints were taken under the authority of this act.
Was the taking of defendant’s palm print a violation of his constitutional rights? In Moon v. State, 22 Ariz. 418 (198 Pac. 288, 16 A. L. R. 362), it was held that a constitutional prohibition against self-incrimination was not violated by the introduction in evidence of photographs of fingerprint impressions which defendant voluntarily suffered to be taken.
“The prohibition of compelling a man in a criminal case to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. ’ ’ Holt v. United States, 218 U. S. 245, 252 (31 Sup. Ct. 2, 20 Ann. Cas. 1138).
In People v. Sallow, 100 Misc. Rep. 447 (165 N. Y. Supp. 915), the court, in concluding an extensive discussion of the authorities bearing upon the construction of the constitutional provision, said:
“It has always, at common law and in the practice prevailing under the Constitution and laws of our State, been permissible to put in evidence, for the purpose of identification of the defendant, testimony as to his personal appearance, his hair,<£tis eyes, his complexion, marks, scars, teeth, his hands, and the like. Fingerprints are but the tracings of physical characteristics or the lines upon the fingers. Nothing further is required in fingerprinting than has been sustained heretofore by the courts in mak ing proof of identification. The steps are to exhibit the fingers of the hands and to permit a record of their impressions to be taken. The requirements that the defendant’s fingerprints be taken for the purpose of establishing identity is not objectionable in principle. There is neither torture, nor volition, nor chance of error. The defendant is required to allow another to make observation and record. Torture is defined as ‘the act of inflicting severe pain as a means of persuasion.’ Century Dictionary. Fingerprinting is entirely harmless, and it is not done as a means of persuasion. * * *
“No volition — -that is, no act of willing — on the part of the mind of the defendant is required. Fingerprints of an unconscious person, or even of a dead person, are as accurate as those of the living. * * * By the requirement that the defendant’s fingerprints be taken there is no danger that the defendant will be required to give false testimony. The witness does not testify. The physical facts speak for themselves; no fears, no hopes, no will of the prisoner to falsify or to exaggerate could produce or create a resemblance of her fingerprints or change them in one line, and therefore, there is no danger of error being committed, or untruth told.
“The talcing of fingerprints is not a violation of the spirit or purpose of the constitutional inhibition. ‘The scope of the privilege, in history and in principle,’ says Greenleaf, ‘includes only the process of testifying, by words of mouth or in writing; i. e., in process of disclosure by utterance. It has no application to such physical, evidential circumstances as may exist on the witness’ body or about his person.’ Vol. 1, § 469e (16th Ed.). It would be a forced construction to hold that by fingerprinting the defendant was required to furnish evidence against herself. Such is not the case. The defendant was already in the case. The court merely makes inquiry by physical examination and records the same as to her identity while it detains her. It might as well be urged that by her arrest the defendant was deprived of her constitutional rights, because her body is produced before the court.”
In the case of United States v. Kelly (C. C. A.), 55 Fed. (2d) 67 (83 A. L. R. 122), Circuit Judge Hand, in reversing the district court’s order to the United States attorney directing that the defendant’s fingerprints be returned to him, stated:
“Any restraint of the person may be burdensome. But some burdens must be borne for the good of the community. * * * The slight interference with the person involved in fingerprinting seems to us one which must be borne in the common interest. * * *
“The appellee argues that many of the statutes and the decisions in common-law States have allowed fingerprinting only in the case of felonies. But, as a means of identification, it is just as useful and important where the offense is a misdemeanor, and we see no valid basis for a differentiation. In neither case, does the interference with the person seem sufficient to warrant a court holding fingerprinting unjustifiable. It can really be objected to only because it may furnish strong evidence of a man’s guilt. It is no more humiliating than other means of identification that have been universally held to infringe neither constitutional nor common-law rights. Fingerprinting is used in numerous branches of business and of civil service, and is not in itself a badge of crime. As a physical invasion it amounts to almost nothing, and as a humiliation it can never amount to as much as that caused by the publicity attending a sensational indictment to which innocent men may have to submit. ’ ’
See, also, State v. Cerciello, 86 N. J. Law, 309 (90 Atl. 1112, 52 L. R. A. [N. S.] 1010); Garcia v. State, 26 Ariz. 597 (229 Pac. 103); but contra, People v. Hevern, 127 Misc. Rep. 141 (215 N. Y. Supp. 412).
While it is the thought of the writer that the taking of fingerprints or palm prints, voluntary or otherwise, infringes upon no constitutional right, the fact question raised renders a determination of this issue unnecessary. The testimony of the officer on preliminary examination shows that the defendant voluntarily submitted to the taking of his palm print. The affidavit of defendant. attached to his motion, however, avers compulsion. In view of the fact question raised, under the rule laid down in People v. Prestidge, 182 Mich. 80, the decision as to whether or not the taking of the print was voluntary may properly be left to the determination of a jury. This rule is well established. See, People v. Corder, 244 Mich. 274, 285; People v. Lipsczinska, 212 Mich. 484; People v. Johnson, 215 Mich. 221; People v. Best, 218 Mich. 141; People v. Baker, 251 Mich. 322, and People v. Cammarata, 257 Mich. 60.
We are satisfied that fingerprints and palm prints are a more certain and exact method of identification than a comparison of color of hair and eyes, height, weight and even physical defects. Their use affords more protection to the innocent than do the more usual and accepted modes of identification, and there is no reason why the police, in their unending war on crime, should be deprived of the use of well-tested scientific means as aids in the detection and apprehension of criminals.
The evidence offered by the people is sufficient to constitute a showing of probable cause. The trial judge is directed to reinstate the information and a writ of mandamus may issue if such be necessary.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Bittzel, and Edward M. Sharpe, JJ., concurred. | [
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Butzel, J.
On January 2, 1911, Edith L. Metheany, Alice L. Luton and Lottie C. Luton, of Grand Rapids, Michigan, desiring to be relieved of the care and management of certain property belonging to them, entered into a trust agreement with plaintiff, the Michigan Trust Company of Grand Rapids, as trustee, by virtue of which possession of the property was transferred to the latter, with full power to care for, manage, control and dispose of it. The trustee was given very broad powers in regard to the property, the net income from which it agreed to turn over, from time to time, to the cestuis que trustent. The corpus of the trust consisted of real and personal property then valued at $57,307.19, $30,000 of which represented the value placed on certain property in Grand Rapids, known as 39-47 Fountain street. The agreement provided that any one of the parties could terminate the trust by giving 60 days’ notice in writing, but this right could not be exercised by the settlors until repayment, with interest, of any advances made by the trustee under the agreement.
Lottie C. Luton, who subsequently married Tom Thoits of Grand Rapids, died some time prior to 1924. In 1924, Alice L. Luton and Edith L. Metheany, in order to purchase the interest of the estate or heirs of Lottie C. Luton, deceased, applied to the Michigan Trust Company for a loan. They executed and delivered to the trust company, as mortgage trustee, a trust mortgage providing for the issuance of 15 notes of $2,000 each, or an aggregate of $30,000, secured by the Fountain street property. By the terms of the mortgage the notes were delivered to the trust company either for its own use, or to be sold to other parties, as the company desired. Evidently with the consent of the mortgagors, only $22,000 of the principal sum, the amount required to purchase the interest of Mrs. Thoits, was turned over to the defendants at the time of the mortgage, and 11 notes were áuthenticated by the trustee. Three of the four remaining notes of $2,000 each were subsequently negotiated, and the moneys accounted for. This still left one note of $2,000 that was neither used nor negotiated. When the necessity arose for its use, the mortgage was long past due and the note could not be sold, nor was there any duty on the part of the trustee at that time to advance money on a past due and unpaid note upon which default had been made.
On August 3, 1932, the Michigan Trust Company brought foreclosure proceedings as trustee under the mortgage. In addition to the $28,000 principal due on the mortgage, it was also claimed that the instalments of interest due on April 22, 1931, and subsequent thereto, as well as taxes and other assessments, were due and unpaid. The trust company, as trustee under. the mortgage securing the notes, was occupying the anomalous position of attempting to foreclose on property held by it as trustee for the mortgagors under the management trust. It could not with propriety occupy a dual position of this nature without subjecting itself to severe criticism as well as inviting litigation. For that reason we have critically examined the proceedings.
The mortgagors, Alice L. Luton and Edith L. Powell (formerly known as Edith L. Metheany), did not rely upon the trust company, as managing trustee, to lóok after the defense of the mortgage foreclosure. They employed a well-known and highly-respected attorney, of the Grrand Rapids bar, to take care of their interests. The latter accepted service of the summons and entered defendants’ appearance in the case, notwithstanding the fact that they were not personally served with process. He then permitted their default and an order pro confesso to be. entered, but checked over the figures in the decree before it was presented to the court. On December 6, 1932, a pro confesso decree was entered. On March 25, 1933, the mortgaged premises were sold under the decree of the circuit court commissioner, and were bid in by plaintiff, as mortgage trustee, for the total amount of the mortgage debt, so that no deficiency is claimed. Ten days later an order was entered confirming the sale unless cause to the contrary was shown within eight days. We have carefully examined the record and can find no irregularities in the proceedings, nor does it appear that the interests of the mortgagors and defendants herein were neglected. Defendants’ attorney was confronted with a situation where his clients, the defendants herein, were unable to pay money loaned to them in good faith. He therefore acknowledged the debt and rights of plaintiff.
On August 17,1933, eight months after the default decree had been entered, defendants acting through a different attorney, substituted for their former one, filed a motion to set aside their default and the sale thereunder. The trial court refused to set aside the default, in view of Court Rule No. 28 (1931), which provides that:
“In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly filed or entered.”
However, the court did order a resale of the property, to follow plaintiff’s resignation as managing' trustee for the defendants. Both parties have appealed from the action of the trial judge, for reasons which we shall now discuss.
Defendants claim that Court Rule No. 28 (1931) is not applicable to the instant case because the de fault was not validly and regularly entered for the following reasons: (1) There was no personal service upon defendant; (2) there was no valid affidavit of default, since it was not signed by the affiant; (3) the affidavit of regularity was invalid because filed prior to the taking of the decree; (4) copies of the affidavits and of the order pro confesso were not served upon defendants’ attorney.
(1) Although there was actually no personal service upon defendants, their attorney accepted service of the summons and entered their appearance in the case. A general appearance by a duly authorized attorney is the equivalent of personal service. Hempel v. Bay Circuit Judge, 222 Mich. 553; Najdowski v. Ransford, 248 Mich. 465. There was, therefore, a substantial compliance with the requirement of personal service found in Court Rule No. 28 (1931). Kentucky Wagon Manfg. Co. v. Kalamazoo Circuit Judge, 208 Mich. 267; Westlawn Cemetery Ass’n v. Wayne Circuit Judge, 238 Mich. 119.
(2) The failure of the affiant to sign the affidavit of default did not affect the validity of the affidavit. Affidavits are valid if properly sworn to, even though not signed by the affiant. People, ex rel. Dickinson, v. Simondson, 25 Mich. 113; Bloomingdale v. Chittenden, 75 Mich. 305; Wynkoop v. Grand Traverse Circuit Judge, 113 Mich. 381.
(3) There is no merit to defendants’ claim that the affidavit of regularity was invalid because filed prior to the taking of the decree. It was on file at the time the decree was taken, in accordance with Court Rule No. 50 (1931).
(4) Failure to serve copies of the affidavits and the order pro■ confesso upon defendants’ attorney did not impair the validity of the proceedings. Defendants’ attorney had full knowledge of what was being done. lie examined the decree before its presentation to tbe court, checked the figures therein, and agreed to their accuracy. He further stipulated in writing as to the amount of the attorney fee to be allowed to plaintiff. Since he had actual notice of the proceedings which were taken, there was no necessity for the service of papers.
We therefore agree with the trial court that the default was validly and regularly entered.
Defendants further claim that the proceedings taken after default in the instant case were not valid and regular. They contend that the trust company could not properly start an action to foreclose a mortgage on property of which it was in possession as trustee under another trust instrument without first resigning from the latter trust; that Court Rule No. 28 (1931) is therefore not applicable under the authority of W. H. Warner Coal Co. v. Nelson, 204 Mich. 317, in which this court held that the rule applied only where valid and regular proceedings were taken after the default. In that case the only proceeding taken on the strength of the default of the garnishee defendant constituted a joint judgment entered at the same time against both the principal debtor and the garnishee defendant, in violation of the statute providing an interim of at least two days between the judgment against the principal defendant and that against the garnishee defendant. It thus appears that the only proceedings taken after default in that case was a judgment which the court had no power to enter, under the statute. In the instant case, whatever may be our view as to the propriety of plaintiff’s conduct in acting in a dual capacity throughout the transaction, the court had unquestioned power to enter the foreclosure decree and order a sale thereunder. The decree and salé were valid and effective, at least until attacked by the cestuis que trust emt, the defendants herein, and the proceedings following default were, therefore, valid and regular within the meaning of Court Rule No. 28 (1931). The trial court therefore properly refused to set aside the default.
We now come to the most serious question in the case, whether the conduct of plaintiff was such as to justify the court in setting aside the foreclosure sale. We have scrutinized with care plaintiff’s entire action, and are unable to find any fraud therein. This is not the case of a purchase by the trustee of the trust property from himself, at his own sale. The entire transaction was initiated voluntarily by defendants, for their own advantage. When defendants were seeking a loan it was not at all unnatural for them to go to the trust company, which was acting as manager of their property, and which made mortgage loans in the ordinary course of its business. While it might have been better policy had plaintiff refused to make the loan while acting as trustee, it cannot be said that the trust company did not act in good faith in thus accommodating defendants at their own request. No fraudulent conduct is shown on the part of the trust company either prior or subsequent to the making of the loan.
We believe, however, that plaintiff should have resigned its position as managing trustee when it became necessary for it, in another capacity, to assume a hostile position against the defendants. When a resort to foreclosure became advisable, the trust company found itself in the position of owing two conflicting duties. On the one hand, on behalf of the note holders, it was interested in purchasing the property for as small an expenditure as it might be obliged to pay; on the other hand, as manager of defendants’ property, it should have been interested in obtaining as high a price as possible at the foreclosure sale. Under such circumstances the trust company could not efficiently serve two masters, and should therefore have extricated itself from its inconsistent position before attempting to foreclose the mortgage.
However, after examining the record with care, we can find no infirmity in the sale. After the sale had been properly advertised, the trust company purchased the property for the full amount of the loan, plus interest, so that no deficiency is claimed. It is significant that the purchase price so paid by plaintiff was higher than the valuation placed upon that property by the parties in the management trust agreement of 1911. The depressed condition of property values may account for the fact that there were no bidders for more than the amount due on the mortgage.
On the other hand, while there was no infirmity in the sale, the trust company was derelict in its duty to defendants subsequent to the foreclosure sale, in failing to make an effort'to secure for them the benefits of the moratorium statute, Act No. 98, Pub. Acts 1933. This act became effective on June 2, 1933, subsequent to the foreclosure sale and during the equity of redemption. We are not unmindful of the fact that defendants’ present attorney was substituted on August 17, 1933, and that the equity of redemption did not expire until September 25, 1933, so that the latter had ample time in which to apply for the benefit of the moratorium statute. He did move to set aside the default, and the sale would have been nullified had such motion been granted. However, the fact that defendants were represented by independent counsel did not relieve plaintiff of the duty of attempting to secure for them the benefit of the moratorium statute. This was a substantial right, which plaintiff, as trustee of defendants ’ property, should have made an effort to secure for them by making the proper showing to the court. Instead, by remaining silent, the trust company performed the inconsistent duty which it owed as mortgage trustee for the note holders, of attempting to secure possession of the property free from the equity of redemption as quickly as possible.
For the above reasons, we are of the opinion that the decree of the lower court should be modified. The sale should be confirmed subject to the condition that defendants may within the next 60 days apply to the trial court for the benefit of the moratorium act (Act No. 98, Pub. Acts 1933), so that, upon doing equity as ordered by that court, they may have possession of the property and the right to redeem on or before March 1,1935. The full facts in regard to the status of the management trust are not before us. The trial judge shall therefore determine when the management trust shall terminate, upon a proper accounting. ’ The cause is remanded to the trial court to modify its decree in accordance with this opinion. Defendants will recover costs.
Nelson Sharpe, C. J., and Potter, North, Fead, Wibst, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Shaepe, J.
This is an appeal on behalf of the people of the State of Michigan from an order amending life sentence of Raymond Fox.
The facts are not in dispute. On May 3, 1928, Raymond Fox, defendant, was tried, convicted and sentenced for a term of life imprisonment for robbery armed by Judge Skillman of the recorder’s court of the city of Detroit. On September 21,1944, defendant Fox filed a motion in the recorder’s court before Judge Skillman for an order nunc pro tunc amending his life sentence to a maximum term of not less than 15 years and not more than 20 years for the reason that under the circumstances the sentence imposed was too severe; that at the time the sentence was imposed the court was not fully aware of.the good character of the defendant, nor fully acquainted with all the facts and circumstances; that since his commitment he has a good institutional conduct record; and that under the 10-year life law (Act No. 255, chap. 3, § 4, Pub. Acts 1937, as amended by Act No. 173, Pub. Acts 1941 [Comp. Laws Supp. 1943, § 17543-44, Stat. Ann. 1944 Cum. Supp. §28.2104]), providing for paroles for lifers who have served 10 calendar years and who have not been sentenced for first degree murder, he is eligible for parole, but the parole board has taken no action.
On November 21, 1944, the trial court issued an order modifying the original sentence so as to read that Raymond Fox serve a sentence of not less than 10 years and not more than 16 years, 6 months and 16 days in the Southern Michigan Prison at Jackson, such sentence to commence with the date of the original sentence. Upon leave being granted, plaintiff appeals.
Defendant urges that the trial court has inherent power at any time to amend a sentence in the interest of justice; and argued that Act No. 144, Pub. Acts 1935, which added section 27 to chapter 9 of •Act No. 175, Pub. Acts 1927, known as the code of criminal procedure (Comp. Laws Supp. 1940, § 17354-1, Stat. Ann. § 28.1097), recognizes the existence of such power.
Section 27 of chapter 9 of the code of criminal procedure provides:
“In the event that any sentence imposed under and by virtue of the provisions of this act shall be changed in any respect by the sentencing judge, it shall be the duty of the clerk of the court of said judge to give written notice of the change to the prosecuting attorney. In the event that the prosecuting attorney desires to oppose the change, he shall file an application, within five days after receiving such notice, and in such a case shall be entitled to be heard in open court upon the merits of the change.”
Plaintiff urges that the governor has exclusive power to commute sentences under Constitution 1908, art. 6, § 9, which reads as follows:
“He (the governor) may grant reprieves, commutations and pardons after convictions for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to regulations provided by law relative to the manner of applying for pardons. Upon conviction for treason, he may suspend the execution of the sentence until the case shall be reported to the legislature at its next session, when the legislature shall either pardon or commute the sentence, direct the execution of the sentence or grant a further reprieve. He shall communicate to the legislature at each session information of each case of reprieve, commutation or pardon granted and the reasons therefor.”
In Brown v. Rice, 57 Maine, 55 (2 Am. Rep. 11), defendant pleaded guilty and was sentenced to.be imprisoned in the county jail for a period of six months. He was committed on the same day. A few days later the trial judge undertook to revoke the sentence and to sentence defendant on the same indictment to be imprisoned in the State prison for the term of three years. Upon review, that court said:
“When the court had done these acts it would seem to have done all that it had the legal power to do, and its power over the prisoner or his destiny, under the proceedings then before it, would appear to be at an end.”
In People v. Meservey, 76 Mich. 223, defendants pleaded guilty to a charge of burglary and were sentenced to be imprisoned for a period of five years. On the following day they were brought into court, whereupon the trial judge vacated the sentence and re-sentenced each of the defendants to a longer term. Upon review, we .said:
“We also think that the original sentences had gone into effect, and that one day of the imprisonment at Jackson, under the sentences, had passed at the time the order was made vacating them. The circuit judge had no power at that time to vacate the sentences, because the authority over the prisoners had passed out of his hands by his own order.”
See, also, People v. Kelley, 79 Mich. 320.
In re Richards, 150 Mich. 421, we said:
“We have held that a trial court cannot set aside a valid sentence and impose a new and different one, after the defendant has been remanded to jail to await the execution of the sentence. ’ ’
To hold with defendant under the circumstances of this case that the court has power to amend a sentence after the prisoner has served a part of it would infringe upon the exclusive power of the governor under the Constitution to commute sentence. It would violate the jurisdiction of the parole board. Section 2.7 of chapter 9 of the code of criminal procedure relied upon by defendant does not give the trial court the power to reduce a sentence after it has been partly served.
The order of the trial court amending the sentence is annulled and set aside. The defendant is remanded to the warden of the State prison at J ackson.
Starr, C. J., and North, Carr, Butzel, Bushnell, Boyles, and Reid, JJ., concurred. | [
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North, C. J.
(dissenting). This is an appeal by defendants from a judgment granted to the respective plaintiffs by the court of claims of the State of Michigan. Although each of the plaintiffs filed separate suits and the factual situation as to dates and amounts differs, yet the questions of law involved are identical, and the cases on appeal are consolidated.
- Bach plaintiff is a Michigan corporation properly licensed to sell certain alcoholic liquors for consumption on the premises, under the provisions pf the liquor control act (Act No. 8, Pub. Acts 1933 [Ex. Sess.], as amended ). Prior to November 25, 1942, both plaintiffs had purchased large quantities of liquors from the defendant liquor control commission but had been refused a 15 per cent, discount on such purchases. On that date, this Court granted to plaintiff Detroit Athletic Club a writ of mandamus compelling the liquor control commission to grant the discount on all such purchases, under Act No. 8, §16, Pub. Acts 1933 (Ex. Sess.),. as amended (Comp. Laws Supp. 1940, § 9209-31, Stat. Ann. 1943 Cum. Supp. § 18.987). See Detroit Athletic Club v. Liquor Control Commission, 303 Mich. 444.
The present actions are to recover from the State discounts which the State withheld from the plaintiffs during three years prior to the filing of the respective claims, March 1, 1943, for the Detroit Club, and February 23, 1943, for the Detroit Athletic Club. This period is within the general limitation of Act No. 135, Pub. Acts 1939, as amended .by Act No. 137, Pub. Acts 1941 (Comp. Laws Supp. 1940, 1942, § 13862-1 et seq., Stat. Ann. 1942 Cum. Supp. § 27.3548 .[1] et seq.). Tbe trial court gave tbe Detroit Club a judgment for $5,594 and the Detroit Athletic Club a judgment for $59,920.14 as being the agreed amounts of the discounts withheld during that period'.
The court of claims act (Act No. 135, Pub. Acts 1939) was amended by Act No. 137, Pub. Acts 1941 (Comp. Laws Supp. 1942, § 13862-lla, Stat. Ann. 1942 Cum. Supp. § 27.3548 [11%]), and this amendment added a section designated 11a, which reads in part as follows:
“No claim shall be maintained against the State unless the claimant shall, within 1 year after such claim shall have accrued, file in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the State or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained. # # *
“Provided, That claim or notice of intention of filing any claim which has ¿cerned prior to the effective date of this amendatory act may be filed within 1 year after the effective date thereof.”
It is to be noted that under this amendment a claimant whose claim had accrued prior to January 10, 1942, the effective date of the amendment, was allowed one year, or until January 10, 1943, to file such claim or written notice of intention to file a claim. In the instant case neither plaintiff filed such a claim or written notice thereof within the year; and it is obvious that at this point plaintiffs had failed to comply with the provisions of the statute and barred portions of their claims could not have been allowed by the court of claims. This is particularly true because on April 19,1943, in each case an answer was filed and this defense pleaded, so that the cases were then at issue.
However, by Act No. 237, Pub. Acts 1943, effective July 30,1943, the legislature again amended the court of claims act and to section 11a of Act No. 137, Pub. Acts 1941, the following was added:
“Provided, however, That in all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the claim itself within 6 months following the happening of the event giving rise to the cause of. action.” (Comp. Laws Supp. 1943, § 13862-lla, Stat. Ann. 1943 Cum. Supp. §27.3548 [11%]).
In accordance with article 5, § 21, of the State Constitution (1908), the entire body of 11a was reenacted with the above-quoted portion being the only new amendment or change in this section. It is the plaintiffs’ claim that by the re-enactment of the words “Provided, That claim or notice of intention of filing any claim which has accrued prior to the effective date of this amendatory act may be filed within 1 year after the effective date thereof” (Act No. 137, Pub. Acts 1941), the legislature intended to recreate another one-year period extending to July 30, 1944, within which any claims (including plaintiffs’) which had accrued prior to July 30,1943, might be filed. If this is true, as the trial court held, then the plaintiffs are entitled to their judgments. Defendants deny the above contention of plaintiffs, but concede that even though the time is not so extended plaintiffs are entitled to recover part of their respective claims. Defendants’ concession is that recovery by the Detroit Athletic Club should be only for discounts incident to payments made between February 23,1942 (one year prior to its notice), and November 28,1942 (last date discount was withheld), amounting to $4,332.80; and the Detroit Club should recover only for discounts incident to payments made between March 1, 1942 (one year prior to its notice), and November 18, 1942 (last date discount was withheld), amounting to $1,772.30.
Consideration of the court of claims act and its amendments leads to the conclusion that the time for filing these claims was not extended1 by the 1943 amendment. The court of claims act is in derogation of the common law, and statutes creating it' and to some extent relinquishing sovereign immunity must be strictly construed. Manion v. State Highway Commissioner, 303 Mich. 1, 19. By this act the privilege of suing the State was granted to persons claiming injury but without creating any vested right of suit in the claimant. The legislature may at any time broaden or restrict its provisions, or even repeal the entire act. Section 11a of the 1941 amendment was a new provision obviously establishing a procedure which those who exercise their privilege under the act must follow. It is not inconsistent that the act should provide for a three-year limitation on bringing suits and at the same time require that notice of intention to make claim be given within 1 year of the accrual of the cause of action. While it is true that under certain circumstances section 11a may operate as a limitation, yet the State, in voluntarily giving up a defense which it had at common law, could1 properly restrict the permissive action by a requirement that the State have notice of such claim within a prescribed time limit. The title of the act is sufficiently broad to cover such procedural requirements, the provision being germane to the subject matter of the act.
The 1943 amendments to the act granted an additional privilege to claimants in that it, by section 24, waives its immunity from liability for the torts of its officers and employees, a waiver not contained in the original act or in the 1941 amendment. By the 1943 amendment permitting tort actions, the legislature as to such actions shortened the one-year period for notice of such claims to a six-months period, which is obviously a limiting rather than a broadening provision. Had the legislature intended to revive other actions which were, on July 30, 1944, barred1 by failure of claimants to comply with the procedure as provided in the 1941 amendment, it could have readily done so by appropriate language. There is no indication that the legislature intended to give such a broadening effect to the 1943 amendment. Instead the contrary intent appears from the above-noted restriction.
The well-settled rules of statutory construction are stated in Wade v. Farrell, 270 Mich. 562, which cited with approval 25 R. C. L. p. 907, viz:
“When a statute continues a former statute law, that law common to both acts dates from its first adoption, and only such provisions of the old act as are left out of the new one are gone, and only new provisions are new laws. Where an act is amended ‘so as to read as follows’ the part of the original act which remains unchanged is considered as having continued in force as the law from the time of its original enactment and the new portion as having become the law only at the time of the amendment. ’ ’
Under this rule, the first proviso in section 11a dates from the effective date of the 1941 amendment and the second' proviso dates from the effective date of the 1943 amendment. See footnote. There being no indication to the contrary, the legislature must be presumed to have been mindful of the quoted rule and to have intended the amendments to be so construed. This rule must be followed unless it appears that the legislature intended otherwise.
Plaintiffs urge that the case of Stebbins v. State Board of Pharmacy, 297 Mich. 676, is authority for their contention that the re-enactment by amendment carries forward a time-limitation period. While it is true that in the Stebbins Case the same words appearing in the original act were carried forward in the amendment, and we held that the period of time involved-was controlled by the amendment, the holding did not do violence to the rule as enunciated in the Wade Case. The basic rule in the Stebbins Case is that the intent of the legislature controls the interpretation of the statute and although the end result differs, yet the same rule may be and is applied here. If, as noted of the Wade Case in the Stebbins Decision, vested rights are involved, even the legislature may not deprive the individual of those rights. If however, as in the instant case, vested rights are not involved, decision is controlled by ascertainment of the legislative intent.
The defendants argue that the payments involved were voluntarily made and hence may not be now recovered. The defendant liquor control commission was the only source through which plaintiffs could purchase the liquor requisite to carrying on the business for which they had purchased licenses from the State. ' The commission wrongfully coerced the plaintiffs into paying a price for liquor purchased without allowing" a discount to which they were entitled. See Detroit Athletic Club v. Liquor Control Commission, supra; City of Saginaw v. Consumers Power Co., 304 Mich. 491. For the reason that the commission wrongfully denied the discounts to the plaintiffs, and under the particular situation disclosed by this record, the plaintiffs, having paid under duress sums which they should not have been required to pay, are entitled to recover insofar as they may by having filed a timely claim in the court of claims. But plaintiffs may not recover for items as to which they did'not timely give the required statutory notice.
In the brief of the Detroit Athletic Club the position is taken that (1) the notice of claim required by the statute was waived by refusal of defendant commission to allow the discounts, and (2) the notice period was arrested by bringing in the Supreme Court “a kindred action” (Detroit Athletic Club v. Liquor Control Commission, supra) within the notice period. Neither position is tenable, and the trial court so held. To hold otherwise would in practical effect nullify the statutory provision for notice. It was the refusal to allow discounts on the purchase price that gave rise to the right of action; and the required notice is not only to the commission but by section 11a is also to the attorney general, and to be filed in the court of claims. The liquor control commission was without power to waive the required statutory, notice. Mead v. Michigan Public Service Commission, 303 Mich. 168; McNair v. State Highway Department, 305 Mich. 181. Nor was running of the notice period arrested by bringing a mandamus suit in the Supreme Court which neither by stat ute nor otherwise has original jurisdiction to entertain the instant suits. Exclusive original jurisdiction of these cases is in the court of claims; and prosecution of claims in that court is dependent upon compliance with the conditions precedent imposed by the statute granting the right to sue.
Since the foregoing was written Mr. Justice Wiest has submitted an opinion affirming the judgment entered in the trial court. In so doing my Brother seems to rely solely upon People v. Lowell, 250 Mich. 349, The inapplicability of our decision in the Lowell Case to the instant case plainly appears upon noting the difference between the statutory amendment under consideration in the Lowell Case and the statutory amendment in the instant case. Our decision in the former case involved the amendment of Act No. 338, Pub. Acts 1917, as embodied in Act No. 114, Pub. Acts 1929. The 1929 legislature in amending the earlier act entirely omitted from the amendment the pertinent words of the 1917 act—i.e., the words fixing the penalty provided- for violation of the law. Therefore it was held in the Lowell Case that by entirely omitting the words of the 1917 act when passing the 1929 amendment, the legislature intended to and did repeal the omitted portion. This is not the situation at all in the instant case. Instead when the legislature passed the amended act now under consideration (Act No. 237, Pub. Acts 1943) the identical words of the earlier act (Act No. 137, Pub. Acts 1941), so far as here pertinent, were continued in the 1943 amended act. It is difficult to conceive of any reason for the legislature having done this except the purpose was to perpetuate in the act the 1941 provision thus embodied in the 1943 act; and under the authorities cited earlier in this opinion the amended act of 1943 should be so construed as to the type of claims for which plaintiffs seek recovery.
“ ‘An amendment to a statute will generally be considered as a part of original act and the entire act as amended be given the construction which would be given it if the amendment were a part of the original act. People, ex rel. Attorney General, v. Railroad Co. (syllabus), 145 Mich. 140.’ ” Perry v. Hogarth, 261 Mich. 526.
In People, ex rel. Parsons, v. Wayne Circuit Judge, 37 Mich. 287, Justice Cooley speaking for the Court plainly pointed out that the final test of proper construction of a statutory provision is the determination of the intent of the legislature. In the instant case it is difficult to conceive that the intent of the legislature was to revive actions which were plainly barred'by the provision in the 1941 amendment. Instead in carrying the proviso of the 1941 amendment literally into the 1943 amendment, the reasonable construction must be that the intent of the legislature was to continue the limitation or the bar of the 1941 amendment.
Under defendants’ concession hereinbefore noted, the Detroit Athletic Club should have judgment for $4,332.80, and the Detroit Club for $1,772.30. The cases should be remanded to the court of claims with direction to vacate the judgments entered and to enter judgments in accordance with this opinion. Neither party having fully prevailed on this appeal, no costs should be allowed in this Court.
Starr and Butzel, JJ., concurred with North, C. J.
Wiest, J.
The judgments should be affirmed.
The provisions carried over from the old act operate wholly under the new act and not the old one. The act of 1943 speaks too plain to admit of judicial construction. It specifically lifted the time element in the former act by the proviso:
“That claim or notice of intention of filing any claim which has accrued prior to the effective date of this amendatory act may be filed within one year after the effective date thereof.”
It is- true the same proviso was in the former act, but we are confined to consideration of the act as it now stands and its operative effect upon the claims at bar.
The effective date of the act was July 30, 1943, and1 the accrued claims were timely presented and judgments thereon properly rendered. The applicable rule of law in the premises was settled by this court in People v. Lowell, 250 Mich. 349. We there said :
“An amendatory act has a repealing force, by the mechanics of legislation, different from that of an independent statute. Repugnancy is not the essential element of implied repeal of specifically amended sections. The rule is:
“ ‘Where a section of a statute is amended, the original ceases to exist, and the section as amended supersedes it and becomes a part of the statute for all intents and purposes as if the amendments had always been there.’ 25 R. C. L. p. 907. * * *
“The provisions carried over have their force from the new act, not from the former. 1 Lewis’ Sutherland Statutory Construction (2d Ed.), § 237. .
“It is plain from the authorities in this State and elsewhere that the effect of an act amending a specific section of a former act, in the absence of a saving clause, is to strike the former section from the law, obliterate it entirely and substitute the new section in its place. This effect is not an arbitrary rule adopted by the courts. It is the natural and logical effect of an amendment ‘to read as follows.’ It accomplishes precisely what the words import. Any other construction would do violence’ to the plain language of the legislature. * * *
“Nowhere in the act did the legislature, by words or in the manner provided by any rule of construction, express an intention to save the prosecution of former offenses. On the contrary, both by the natural meaning of the language used and in accordance with the acknowledged and long-established rules with which it was presumably familiar, it affirmatively and appropriately expressed an intention to obliterate the amended section. A contrary conclusion is private speculation, not judicial construction.
“ ‘The result may or may not be conformable to the actual intent of those who passed1 the latter statute. We can only ascertain the legal intent of the legislature, by the language which they have used, applied and expounded conformably to the settled and well-known rules of construction.’ Commonwealth v. Kimball, 21 Pick. (38 Mass.) 373.
“ ‘Even though the court should be convinced that some other meaning was really intended by the lawmaking power, and even though the literal interpretation should defeat the very purposes of the enactment, still the explicit declaration of the legislature is the law, and the courts must not depart from it.’ Black on Interpretation of Laws, p. 36. * * *
“At bottom, the argument against repeal is sociological rather than legal, that the effect of repeal will be injurious to the public welfare, in excusing offenders from punishment, and1 that such ‘mischievous and absurd consequences’ justify this court in saving the prior penalties by construction.. The argument is temptingly forceful, and if Act, No. 114 [Pub. Acts 1929] were ambiguous, its meaning being sought, and inore than one construction of its language reasonable, it would be persuasive. However Act No. 114 is construed, whether prospective, retroactive, or both, its effect of repeal on amended sections is the same, because, on a day certain, by the language of the law, they were abrogated and new sections ‘to read as follows’ were substituted for them.
“No reason can be urged against tbe rule itself. If observed in making laws, it certainly and accurately expresses tbe will of tbe legislature according to the natural meaning of tbe words used. No principle of sociology would warrant tbe abrogation of a rule upon which legislation bas been enacted and construed since tbe establishment of tbe State, because, in a single or a few instances, misfortune follows, not its observance, but its disregard. Nor can it confer upon the court legislative power to correct mistakes in unambiguous laws. * * *
“Nor, upon tbe grounds of ultimate public good, as distinguished from tbe immediate consequences, is tbe sociological argument entirely without answer. There are such offsetting considerations as tbe overruling of a long line of decisions of this court, upon which personal and property rights have been established ; tbe abrogation of a certain and reasonable rule of statutory construction wbicb accurately mirrors tbe language of tbe legislature; tbe substitution for it of an uncertain or no rule, with confusing effect; tbe encouragement of carelessness in lawmaking, with tbe idea that this court will legislate virtue into or evil out of the law as enacted by tbe legislature; and, of tbe first importance, tbe departure of tbe court from its constitutional judicial function to usurp legislative power by supplying a saving clause wbicb the legislature bas purposely or inadvertently omitted. ’ ’
Tbe opinion of tbe court, written by Mr. Justice Fead and concurred in by Mr. Justice North, is a scholarly exposition and can be read with profit.
Tbe judgments are affirmed, with costs to plaintiffs.
Sharpe, Boyles, and Reid, JJ., concurred with Wiest, J. Bushnell, J., did not sit.
See Comp. Laws Supp. 1940, 1943, § 9209-16 et seq., Stat. Ann. and Stat. Ann. 1943 Cum. Supp. § 18.971 et seq.—Reporter.
By Act No. 281, Bub. Acts 1937.—Reporter.
The provisos in section 11a read: 1 ‘ Provided, That claim or notice of intention of filing any claim which has accrued prior to the effective date of this amendatory act may be filed within 1 year after the effective date thereof: Provided, however, That in all actions for property damage or personal injuries, claimant shall file with the clerk of the court of claims a notice of intention to file a claim or the elaim itself within 6 months following the happening of the event giving rise to the cause of action.” | [
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WIEST, J.
Marcia J. Robinson, an old lady, owned a modest home in the village of Newaygo. January 8, 1913, she went to the real estate office of John Bailey, Sr., in that village, and had him prepare and she there executed a deed of the home to her daughter, Lena P. Bailey, reserving, however, at the insistence of the scrivener, a life lease, and she directed that the deed be recorded and kept secret until her death and then delivered by Mr. Bailey to the grantee. The deed was recorded three days after its execution. Thé grantee knew nothing about the making, recording and holding of the deed by Mr. Bailey until early in the summer of 1924.
Mrs. Robinson, unmindful of that deed, September 7, 1917, sold the home to Frederick Meade, husband of her granddaughter, Lottie H. Meade, on land contract, for the sum of $350. This price was probably less than the value of the property, but was agreeable to the parties, and it is evident the relationship figured in the deal. Mrs. Robinson delivered possession to the Meades and they made the place their home, made repairs and improvements, paid the taxes, and paid the full purchase price, and May 5, 1920, Mrs. Robinson executed and delivered to Frederick and Lottie H. Meade a warranty deed, under which they are now in possession.
After selling her home on contract, Mrs. Robinson, part of the time, made her home with her daughter, Lena Bailey, grantee in the deed she had executed in 1918, but never intimated to the daughter.that there was such a deed. Lena Bailey lived in the village of Newaygo, knew her mother had sold to the Meades, was fully aware of at least some of the major repairs and improvements made by the Meades, was well pleased that the young couple were getting along so well and expressed her pleasure. Plaintiffs are young folks and all they have is invested in this home. Mrs. Bailey is Mrs. Meade’s aunt, and daughter-in-law of John Bailey, Sr.
Early in the summer of 1924, plaintiffs wanted to sell their home and then, for the first, discovered the deed on record from Mrs. Robinson to Mrs. Bailey. Upon refusal of Mrs. Bailey to release the property, plaintiffs filed the bill herein to quiet their title. Mrs. Bailey appeared, asserted title under the deed to her and by cross-bill asked to have the deed to plaintiffs vacated. Mrs. Robinson also answered and set up the claim that, at the time she sold to plaintiffs, she had forgotten about her previous deed to her daughter, averred her old age and feebleness and asserted fraud and overreaching in fixing the price paid. Mrs. Robinson died before the hearing. In the circuit, decree passed for plaintiffs. Defendant Bailey ap-, pealed.
We find no fraud on the part of plaintiffs in any of their dealings with Mrs. Robinson. We are persuaded that the Meades acted at all times in good faith, were wholly ignorant of the deed to Mrs. Bailey, and Mrs. Meade, in dealing with her grandmother, did not think of going to the public records to look up the title. Whether Mrs. Robinson forgot about the deed to her daughter, or felt it was not effective, is of little moment in the disposition of this case.
Defendant Bailey had no knowledge of the execution of the deed to her until long after the rights of plaintiffs had intervened. There was no delivery of that deed in fact until about the time this suit was commenced. While in utter ignorance of the existence of the deed, Mrs. Bailey, of course, could not assent to the deed.
There is no merit in plaintiffs’ claim that, by her expressions of approval of their purchase and the repairs and improvements they made, Mrs. Bailey is estopped from asserting title under her deed. Mrs. Bailey was not chargeable with constructive notice, by the recording of the deed, and, as before stated, she had no actual notice of its existence, and, therefore, an essential basis for estoppel is missing.
The deed to Mrs. Bailey was wholly voluntary and without any previous agreement or understanding with her mother, and without consideration unless we go back many years, when the daughter lived at home, and find from such fact that she expected pay and the mother expected to pay her for services rendered. This, of course, we cannot do. The old services of the daughter may have been a moving cause for giving the deed. No consideration was necessary, for the mother was at liberty to make a gift by deed to the daughter. The total want of knowledge by the grantee of the existence of the deed brings to bear an old and well established rule of law calling for affirmance of the decree.
A deed executed in due form does not become effective until delivery and acceptance. Mr. Bailey, in holding the deed, acted solely under the direction of the grantor, and was in this matter a stranger to the grantee, and could make no assent to the deed in behalf of the grantee.
Delivery of a deed may be to the grantee, or to one acting for the grantee, or to a stranger, to hold pending an event certain to happen, and then to be delivered to the grantee. In this jurisdiction, as stated in 21 C. J. p. 867, we
“make a distinction between cases where the future delivery is to depend upon the performance of some condition, and cases where it is to await the lapse of time or the happening of some contingency, holding that the former is an escrow, but that the latter will be deemed the grantor’s deed presently.”
See Taft v. Taft, 59 Mich. 185, 193 (60 Am. Rep. 291).
But, if deemed the grantor’s deed presently, it will not take effect as a deed until the “second delivery;” but, when so made effective, it will take effect, by relation, from the first delivery, if not working injury to third persons. As stated by Mr. Justice Steere in Brown v. Keiser, 182 Mich. 432, 440:
“As between grantor and grantee and those in privity with them, it may, by legal fiction, be held that the delivery to a third party for subsequent delivery to the grantee, who assents, operates as a full and complete delivery, but as is said in Hibberd v. Smith, 67 Cal. 547 (4 Pac. 473, 8 Pac. 46, 56 Am. Rep. 726):
“ ‘Tiie 'assent can get back to tbe date of delivery to the stranger only by virtue of the! doctrine of relation, which is a fiction of law in which there is always equity, never working an injury, and which is never permitted or applied so as to do wrong to third persons.’ ”
This fiction of relation exists to aid and not to fetter justice; it appeals to conscience when not employed in working inequity; but when its application will wrong third parties it is rejected as an imagination unworthy of judicial indulgence.
The rule we apply to the case at bar is stated as follows in 1 Devlin on Deeds (3d Ed.), § 276:
“When a grantee is ignorant of the execution of a deed which has been delivered to a stranger for the grantee’s benefit, but when informed of the fact, accepts the conveyance, the deed becomes operative, and where the rights of third persons have not intervened, takes effect from the date of the first delivery. * * * Yet, until the grantee is informed of the execution of the deed and does some act equivalent to an acceptance of it, it is manifest that he may refuse to accept it, notwithstanding the fact that by a fiction of law the presumption of an actual acceptance had all the while existed for his benefit as against the grantor, his heirs, devisees, and ordinary creditors. But this fiction will not be allowed to prevail to the prejudice of persons who have acquired title to, an interest in, or a lien upon the property before the date of the actual acceptance.”
The registry of the deed does not help defendant.
In Abrams v. Beale, 224 Ill. 496 (79 N. E. 671), it was held, quoting from the syllabus:
“The execution and recording of a deed of voluntary settlement to an adult grantee, who was not aware the deed had been made, does not amount to a delivery of the deed, where the grantor retained the deed in his possession and subsequently conveyed the same property to another, who took possession thereof.”
In that case the court quoted as follows from Brown v. Brown, 167 Ill. 631 (47 N. E. 1046), which was a suit between father and son to set aside a deed:
“It is true the deed was placed upon record; but that fact, of itself, does not establish a delivery of the instrument. If a grantor, without the knowledge or assent of the grantee, place a deed on record, that will not constitute a delivery, for the reason the grantee has not assented to receive the deed, and it is well settled that it is essential to the legal operation of the deed that the grantee assents to receive it. Without acceptance on behalf of the grantee there can be np delivery.”
See, also, to the same effect, except as to devises, the opinion of this court written by Mr. Justice Fellows in Truitt v. City of Battle Creek, 208 Mich. 618, 620.
Adult grantees, sui juris, must, to make deeds to them effective and determinative of intervening rights of third persons, actually assent thereto. Assent may be presumed if rejection is not made, but assent cannot be presumed during a period the grantee had no knowledge of the existence of the deed. It was early held in Harrison v. Trustees of Phillips Academy, 12 Mass. 456, 461:
“For no man can make another his grantee without his consent; and a deed made to a man with all requisite formalities, and even entered in the public registry, would be null, if not afterwards accepted by the grantee. But if the grantee afterwards assent to the conveyance, it will be good to pass the title to him; unless some other circumstances shall be shown to render it invalid.”
In Younge v. Guilbeau, 3 Wall. (U. S.) 636, it was held, quoting from the syllabus:
“But where the grantee had no knowledge of the existence of the deed, and the property which it purported to convey always remained in the possession and under the control of the grantor, and where, therefore, any registry was of course without either his assent or knowledge, the presumption of a delivery from the fact of registry is repelled.”
In Maynard v. Maynard, 10 Mass. 456, 458 (6 Am. Dec. 146) it was held:
“The act of registering a deed does not amount to a delivery of it; there not appearing any assent on the part of the son, or even any knowledge that the deed had been executed in his favor.”
In Parmelee v. Simpson, 5 Wall. (U. S.) 81, it was held, quoting from the syllabus:
“The placing of a deed to a party on record, suc'h party being wholly ignorant of the existence of the deed, and not having authorized or given his assent to the record, does not constitute such a delivery as will give the grantee precedence of a mortgage executed between such a placing of the deed on record and a formal subsequent delivery.”
And it was also held:
“As a general thing a ratification of a grantor’s unauthorized delivery can be made by the grantee; but not when the effect would be to cut out an intervening mortgage for value.”
It will be noticed that the mortgagee, in that case, had constructive notice of the deed, but, notwithstanding, his rights were saved by want of delivery of the deed and assent of the grantee. See, also, Gillen v. Gillen, 238 Ill. 218 (87 N. E. 388). The rights of plaintiffs, under their deed, are founded on good faith and a valuable consideration, and were fixed before delivery of the deed to Mrs. Bailey and assent thereto by her.
We hold that, before the deed to Mrs. Bailey became effective by delivery and acceptance, the rights of plaintiffs intervened, and they are entitled to protection, and in good conscience Mrs. Bailey may not assert title contrary thereto. Plaintiffs’ title is quieted against the deed to Mrs. Bailey.
The decree in the circuit is affirmed, with costs to plaintiffs.
Bird, C. J., and Sharpe, Steere, Fellows, Clark, and McDonald, JJ., concurred. Snow, J., did not sit. | [
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O’Hara, J.
This case may be controlled by Autio v. Proksch Construction Co., 377 Mich 517.
In this case the referee and the appeal board based their decisions exclusively on overruled Hajduk v. Revere Copper & Brass, Inc., 268 Mich 220, and its absolute 6-year limitation. Neither reached the question of whether the employer was given notice of or had knowledge of the happening of injury or accident. No specific finding of fact was made as to whether a report of injury was filed by the employer with the compensation department. The injury occurred on January 7, 1954, and claim was filed on June 9, 1961.
The order of the appeal board affirming the grant of the' motion to dismiss by reason of the operation of the 6-year limitation is vacated. The case is remanded to the appeal board for these findings of fact, either under the record as made before the referee or under such further testimony as the appeal board may determine is necessary.
No costs, construction of a statute being involved.
T. M. Kavanagh, C. J., and Souris, Smith, and Adams, JJ., concurred with O’Hara, J.
Black, J.
(for reversal and remand). A majority of the Court having voted (Autio v. Proksch Construction Co., 377 Mich 517) to overrule with wholly retroactive effect the six-year limitational rule found in Hajduk v. Revere Copper & Brass, Inc., 268 Mich 220, and all cases following Hajduk, I vote to reverse and remand, with no award of costs.
See CL 1948, § 412.15 (Stat Ann 1950 Rev § 17.165), as amended by PA 1954, No 175.—Reporter.
See CL 1948, § 412.15 (Stat Ann 1950 Rev § 17.165), as amended by PA 1954, No 175.—Reporter. | [
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Order oe the Court.
On Order of the Court, a peremptory writ shall issue forthwith ordering respondent to proceed at once with statutory processing of the Detroit Edison Company’s pending petition for refund and the Detroit Edison Company’s pending requests for determination and/or redetermination of its annual franchise privilege fees as identified in our order to show cause dated April 9, 1965.
The Court finds a clear legal duty on the part of the respondent to proceed as above under sections 9 and 10 of the statute. No other opinion to follow.
T. M. Kavanagh, C. J., and Dethmers, Kelly, Black, Souris, Smith, O’Hara, and Adams, JJ., concurred.
CLS 1956, §§450.309, 450.310 (Stat Ann 1963 Rev §§21.210, 21.210 [1]).—Reporter. | [
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Reid, J.
This is an appeal in the nature of certiorari from an award of the department of labor and industry.
On November 14, 1941, plaintiff filed a notice and application for adjustment of claim with the department, alleging that an accident, the cause of his physical condition, happened1 on the — day of March, 1941 (not specifying on what day in March it occurred) ; that the accident happened as follows: plaintiff was overcome by excessive and unusual accumulation of carbon monoxide gas. The injury is -carbon monoxide poisoning resulting in paralysis.
Defendants on November 25, 1941, filed their answer to the statement of claim,' setting forth the following: first, that plaintiff suffered no injury in their employment; second, that he suffered no disability as a result of any accidental personal injury arising out of and in the course of their employment; third, that he did not make claim for compensation within the statutory period; fourth, that they had no notice or knowledge of an accidental personal injury arising out of and in the course of any employment within the statutory period.
The amended notice and application alleged the matter as “accident and occupational disease” and was filed January 14, 1942, to which an amended answer was filed1 January 17, 1942.
The finding of the deputy commissioner was that plaintiff’s average weekly wage was $21, that plaintiff had not sustained an accident nor suffered an occupational disease and was not entitled to.receive any compensation.
On review by the department, May 6,1943, finding was made in accordance with plaintiff’s claim that on March 14, 1941, while doing his regular work in the employment of defendant, plaintiff became dis abled as the result of occupational disease. They reversed the deputy’s award and awarded plaintiff compensation for total disability, $18 per week beginning March 14,1941.
In the instant case plaintiff’s work was wiping off the windows and exteriors of the automobiles that were proceeding along the line. Other employees in preceding operations prepared the cars for plaintiff’s finishing operation. The last car that plaintiff worked on was immediately behind a car, the motor of which was running, half racing, with smoke 'coming out of the exhaust pipe. The owner of that car didn’t want the motor stopped during the washing process. As plaintiff' cleaned off the whole side of the car down to the front, the smoke from the -preceding car’s exhaust continued to come out into his face. It was cold that day, the windows were closed and the doors were closed except when they let a car out. Plaintiff continued to work in such a position on the last car that his face was in front of the exhaust and in the path o’f the exhaust fumes for about five minutes. After that, as he testified, he felt “pretty dog-gone bad1 * * * awful funny about the head and everything * * * dizzy, dizzy.” He went back to the barrel, wrung out his chamois, and there fell exhausted over the barrel. His foreman on the job, Charles McCray, and others came along and carried him out into the air and placed him on a bench in front of the building. After McCray finished up another car he told a customer to take plaintiff home but the man took plaintiff to Receiving hospital, where he remained 15 days. He was then taken to Marine hospital where he remained until August 31, 1941, when he was taken home. He has not been able to do any work since. It was 75 days after he returned home from the hospital that he filed his claim.
Plaintiff claims that knowledge on the part of the foreman of. his condition is equal to notice and that he is excused from filing his claim during his illness in the hospital, that under 2 Comp. Laws 1929, § 8431 (Stat. Ann. § 17.165), the statute of limitations does not run against him until the report of the injury shall have been filed by the defendant with the department.
A controlling item is the knowledge of the foreman and the question whether such knowledge of the foreman constitutes notice to the company so that thé employee need not give any other notice.
Charles McCray, the foreman, testified as follows:
“Q. You remember the day when he collapsed at work?
“A. Sure.
“Q. These cars move on a conveyor, don’t they?
“A. No, they push them down; they come in and we give them only just a little push and they go down.
“Q. And as soon as it gets in there, some men start working on it right there?
“A. Yes.
“Q. And then they go a little bit farther and some other men work on them?
“A. Yes, men to do the body washes and men to chamois.
“Q. So that 10 men aren’t working on a car at one time?
“A. Oh, no.
“Q. There is about 2 and 2?
“A. When one car gets done another car takes that place and then the body washers do that one then it gets to the chamoising and- then they get started on that and it just keeps going and they chamois the body off and it keeps right on going.
“Q. These cars are close together?
“A. Yes, bumper to bumper.
“Q, So that the exhaust from one car in front would he right there at the front of the next car, it would he right there ?
“A. Yes, it would be right next to the next one.
“ Q. If you were bending over and wiping aro and the hood and fenders there you would get the exhaust right in your face ?
“A. If you was wiping the back' end by the exhaust pipe, I suppose you would get it.
“Q. . You would if the exhaust of the car ahead is coming right at you, isn’t it?
“A. Well, yes, if of course they are linked together ; most naturally they would be that way.
“Q. Were you working with Hutchinson on a car before he got sick?
“A. Sure, working, I am on one side and he is on the other.
“Q. You do the wiping’ out there?
“A. Yes, I wipe this side and he wipes on that side.
“Q. Is that all you do on the job is wipe or do you go from car to car and supervise?
“A. I am from car and to car and help them.
“Q. So that you aren’t always wiping a car?
“A. No, I chamois the car and collect the money. ’ ’
Plaintiff also testified that the foreman worked on the other side of the car that plaintiff worked, on, and the inference is fair that the foreman knew about the escaping of carbon monoxide gas from the exhaust of the car ahead as described by plaintiff. The foreman further testified:
“Q. McCray, as a matter of fact- you didn’t notice him until he collapsed on the barrel, isn’t that right?
“A. No, I did hot.
“Q. Isn’t that when you first noticed him?
“A. When I first noticed him I had a tag and was 'walking in the place and hanging it up and when I turned1 around this way he was laying on the barrel; I stepped back and seen him.
“ Q. Had you watched him walk from the car he was working on to the barrel?
“A. I didn’t see him; I didn’t watch him walk away; I didn’t know it; when I went there he was on there, because I was on this side.
“Q. And you helped carry him out?
“A. I * * *
“Q. Did you ask a customer to take him to the hospital?
“A. . The customer offered; he said, ‘I will take him home.’ And I sent one of the boys with him; one of the boys working in the gang.
“Q. Didn’t you want him taken to the hospital?
“A. No, he wanted to go home; and I said—this fellow says, ‘I will take him home,’ I offered to pay him; he says, ‘Give me the wash,’ I says, ‘You can have it,’ he says, ‘I will take him.’ When they get out, they claim he was too sick to take home and they took him to the hospital. ■
\“Q. He was sick when he fell over the barrel?
“A. He must have been. * * *
“Q. * * * Hutchinson said he wanted to go home, did he say that he wasn’t feeling good, that he wanted to go home, or what?
“A. He didn’t tell me nothing; he just said1 he wanted to go home; there was a doctor there at the time, he said, ‘ This fellow is sick and he needs to go home or to the hospital.’
“Q. You said that there was a doctor there at the time; there was a doctor in there at the time?
“A. Yes.
“Q. And this doctor said that this man either had to go home or to the hospital?
“A. When we picked him up we saw he was sick. He examined him and he said, ‘His heart is beating all right.’ When we sat him on the bench his heart was beating all right. He said, ‘ This man needs to go home or to the hospital.’ Although when they got him out they took him to the hospital. I told him to take him home. They thought he was too sick and took him to the hospital. They found out he was too sick; just how sick he was I don’t know, because I ain’t a doctor. * * * The fellows said this fellow (plaintiff) is sick; I _ said, ‘Sure he is sick.’ He must-have been sick. ‘Pick him up and take him out.’ ”
Some cars were washed with the engine running, and some back-fired when they got wet.
Plaintiff also testified that the foreman _ ordered him taken home. ■
Plaintiff’s witness, Dr. Owen, testified, reciting facts shown by testimony and his direct deductions therefrom:
“First, he had been well; second, he was in some heavy fumes, and in those fumes there (are) a lot of gases such as carbon monoxide and other incompletely combusted petroleum gases which make a person sick to their stomach, and which give people headaches. * * * If a person has carbon monoxide poisoning their blood is deficient in oxygen, because the carbon monoxide attaches itself to the hemoglobin, so that the oxidation is hindered very greatly, and with that process very .frequently smail blood vessels do rupture * * * so I believe there could be a relationship between an exposure to the fumes indoors and the resultant paralysis that he now has.” • .
We take notice of the fact that it is common knowledge among persons whose employment is closely connected with operations around automobiles in enclosed places such as garages that carbon monoxide gas is expelled through the exhaust of a running motor and even small portions of the gas mixed with air are poisonous and may cause a person who inhales such gas to collapse,
Defendants cite Gumtow v. Kalamazoo Motor Express, 266 Mich. 16; Littleton v. Railway Co., 276 Mich. 41; Maki v. S. J. Groves & Sons, 279 Mich. 644; Berg v. Hemlock River Mining Co., 287 Mich. 697. Since the cause for claim occurred in each of those four cited cases, the occupational disease amendment to the workmen’s compensation law was enacted, being Act No. 61, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 8485-1 et seq., Stat. Ann. 1940 Cum. Supp. § 17.220 et seq.), which took effect October 29, 1937. Part 7, § 2, subd. 22, then defined carbon monoxide poisoning as occupational disease. In the Berg Case, supra, the opinion stresses want of notice of an accident within the required period and the word accident is italicized in the opinion, which recites at p. 700:
“It is urged as a defense that defendant had -no notice nor knowledge within the statutory limitation of plaintiff’s having suffered an accident. There is ample testimony disclosing that plaintiff’s sickness and his inability to continue his work were promptly called1 to the attention of defendant. ’ ’
On p. 699 the opinion recites:
“Plaintiff claims that getting wet caused rheumatism, that he could not get out of bed the next day and he sent notice to the company’s doctor who attended plaintiff * * * that a couple' of weeks after the alleged accident his superintendent called on plaintiff and he told the superintendent about getting wet.”
The Berg Case does not sustain the position of defendants as to sufficiency of notice in this occupational disease case.
The case of Vestal v. Therminsul Corp., 291 Mich. 64, while not discussed in the briefs, should be considered on the question of notice. In that case a light-colored gas was observed coming out of the cupola door, and two of defendant’s employees, Sleeman and Webster, who had been putting coke and slag into the cupola, were overcome by gas to such an extent that immediate medical attention was necessary. Plaintiff’s decedent assisted in attempts to resuscitate them. He went to his home nearby and got some whisky. A short time after that his wife found him in a stooped position by the sidewalk. He appeared to be faint. The doctor called about an hour afterwards and found him practically unconscious. While one doctor was working on the two other men defendant’s superintendent received a report that Vestal “had also been taken sick and was at home.” The superintendent immediately went to the Vestal home and was told by Vestal that he was “sick to his stomach.” Defendant’s night superintendent also testified as to the gassing of Sleeman and Webster and that Vestal told him the next morning that he had been taken ill the same night the other two were gassed and that he “had to have help to get home” because “he was taken ill on his way to the house.” In that case the department, after citing Clifton v. Chrysler Corporation, 287 Mich. 87, held that the testimony “relative to notice or knowledge was not sufficient bo sustain plaintiff’s action.” On appeal we held that “knowledge of Vestal’s illness following so closely and so immediately connected with knowledge of the escaping carbon monoxide gas and its effect on others in the same room was sufficient 'notice or knowledge of the injury’ to satisfy the requirement of the statute, ’ ’ and vacated the order of the department.
Section 10 of part 7, the occupational disease amendment, provides:
“The requirements as to notice as to occupational disease and death resulting therefrom and the requirements as to the bringing of proceedings for compensation for disability or death resulting from such occupational disease shall be the same as required in section fifteen of part two of this act, except that the notice shall be given to the employer within one hundred twenty days after the disablement. ’ ’
“Want of * * # notice shall not be a bar * * * if it be shown that the employer had notice or knowledge of the injury.” 2 Comp. Laws 1929, § 8434 (Stat. Ann. § 17.168). Purdy v. City of Sault Ste. Marie, 188 Mich. 573 (Ann. Cas. 1917D, 881); Burke v. Michigan Stamping Co., 223 Mich. 495.
The knowledge on the part of the foreman is sufficient under this section to charge the defendants with notice. The company not having filed a report to the department, the claim is not barred.
Defendants claim that if the plaintiff contracted an occupational disease as he alleges, it was an aggravation of a pre-existing condition and the department should have proportioned the award under Act No. 10, pt. 7, § 8, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 8485-8, Stat. Ann. 1943 Cum. Supp. § 17.227). This'objection was not raised before the department nor alleged in the reasons and grounds for appeal to this Court, and will not now be considered. See Kolbas v. American Boston Mining Co., 275 Mich. 616.
There was competent testimony to show plaintiff’s paralysis was caused by the carbon monoxide gas to which he was exposed in his employment on the occasion in question, which was also a recurrent condition of his employment, and to furnish a basis for the department’s finding. The award is affirmed, with costs to the plaintiff.
North, C. J., and Starr,' Wiest, Butzel, Bushnell, Sharpe, and Boyles, JJ., concurred. | [
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Wiest, J.
Plaintiff rented land for cattle pasture from defendant Neifert. Defendant Walker & Company, a corporation, maintained two large billboards for advertising purposes in the pasture field and, it is claimed, that in painting the billboards from time to time paint was dropped on the ground and quantities left in pails; that plaintiff’s cattle licked the fresh paint and consumed some of the paint in the pails on the ground, were poisoned thereby and died. This suit was brought to recover damages for loss of the cattle and, upon trial by jury, resulted in verdict and judgment for plaintiff against Walker & Company. Walker & Company prosecutes this appeal, and we style it defendant.
Defendant contends there was not sufficient evidence to establish negligence; that cause of death of the cattle rests upon employment of the rule res ipsa loquitur, which is not recognized in this jurisdiction.
In 1928, and shortly after repainting the billboards, four of the cattle exhibited characteristic symptoms of poisoning and died, and at that time the cause of death was not discovered. Again, in July, 1929, and shortly after repainting of the billboards, two more cattle died. A veterinarian at that time examined one of the dead animals and found it was killed by lead poisoning, evidenced by enough paint in the stomach to cause death. All of the cattle died exhibiting symptoms of lead poisoning. The proofs were sufficient on that phase of the case to present a question of fact for the jury. The jury had a right to draw reasonable inferences from disclosed facts and circumstances.
As said in Moorman Manfg. Co. v. Keller, 98 Ind. App. 607 (184 N. E. 913), where it was an issue whether sheep had died from poison in a stock food:
“It may be assumed that the jury inferred that the sheep were killed by the stock food, because they quit dying when appellee quit feeding the stock food, and because there was evidence that if the sheep had eaten lumps of blue vitriol similar to the lumps found in the stock food, it was sufficient to produce the condition of one of the sheep which had died. When considering the whole evidence, we are of the opinion that such inference was not unreasonable.”
A more troublesome question is that of negligence. Was it negligence to spill paint on the ground or leave pails with paint therein in a field where cattle were pasturing? The particular consequence need not have been foreseen if some injury should have been anticipated. LaPointe v. Chevrette, 264 Mich. 482.
Upon this subject the court instructed the jury to determine whether defendant’s employees negligently left the paint as claimed by plaintiff: “with knowledge that their negligence, if you find that what they did was negligent, might result in damage to somebody, if it was a pasture land that it might result in damage to the owner of the cows, if there were any in the pasture.”
Outside paint usually contains white lead or zinc, and both are poisonous if taken internally. The jury found that defendant knew the paint was poisonous and should have anticipated that the cat- tie in the field would consume paint left on the ground or in open pails. We think the question was one of fact for the jury.
Plaintiff charged defendant with owning and painting the billboards and defendant, by answer, admitted ownership and repainting of the signs, but denied: "that it negligently and carelessly dropped and spilled quantities of paint on the grass near the billboards or that it left large quantities of paint in buckets and receptacles.” •
There was no occasion for the trial court to declare a mistrial on the ground that a witness for plaintiff volunteered a statement of defendant’s willingness to compromise and settle the case. The court immediately instructed the jury to give no heed to the statement.
At the close of plaintiff’s case defendant moved for a directed verdict and the court permitted plaintiff to introduce further evidence, and defendant contends that this should not have been done. There is no merit in the claim. We find no reversible error.
The judgment is affirmed, with costs to plaintiff.
Nelson Sharpe, C. J., and Potter, North, Pead, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Sharpe, J.
Defendant, Herman Litvin, was tried and convicted in tbe recorder’s court for tbe city of Detroit for violation of Detroit compiled ordinances, 1936, cbap. 74, § 15 (c), wbicb reads as follows :
“No licensee shall sublet, sublease or otherwise permit .any parking lot or any portion thereof to be used by any vendor of goods, wares or merchandise or services for the conduct of such vendor’s business unless the same is conducted in a permanent building or structure.”
Defendant was a licensed parking-lot operator whose lot was located at the corner of Randolph street and Monroe avenue in Detroit. He permitted a portion of his parking lot to be used by hawkers, vendors, and pitchmen. After conviction, defendant removed the cause to the circuit court of Wayne county by certiorari, alleging that the ordinance was. invalid and unconstitutional.
The judge of the recorder’s court filed a return in which it was stated:
“That the testimony showed that the automobiles of patrons parked on the parking lot were generally left unlocked, with the keys in the car, and that such peddlers, vendors and merchants and prospective customers had ready and easy access to such cars.
“Testimony further showed that there was no barrier or fence between the portion of the parking lot made use of by the peddlers and vendors and that portion of the lot made use of for the parking of cars.
“Testimony further showed that the peddlers attracted all kinds and types of people, creating a serious police problem by crowding the parking lot and the sidewalk adjacent to the parking lot, thus seriously impeding pedestrian traffic.
“Testimony further showed that for the year 1943, 626 automobiles were stolen from parking lots in the city of Detroit, and that on October 8, 1943, an Olds coupe, bearing license JGr 9069, was stolen from the parking lot operated by the defendant Litvin, at the foregoing location, Monroe and Randolph.
‘ ‘ Testimony further showed that many complaints have been made to the police department by reason of the theft of personal property from automobiles and that parking lot operators disavow any liability for the theft of personal property from parked automobiles.
“Testimony further showed that large crowds congregated in this parking lot which made it easy for pickpockets to ply their trade, thus causing a serious police problem.
“Testimony further showed that the ordinances prohibiting the use of parking lots for the sale of merchandise by peddlers and vendors was passed in order to prevent unauthorized persons from easy, access to parking lots, in order to prevent congestion on sidewalks, thus impeding pedestrian traffic; to prevent pickpockets from plying, their trade among crowds, and in order to enable parking lot operators to better control and operate their parking lots, and that the ordinance was necessary for the proper regulation and operation of parking lots.”
The trial court filed an opinion in which he said:
• ‘ ‘ The ordinance here undertakes to prohibit recognized legitimate businesses on private property and I don’t think that this is in the power of the common council.”
Subsequently, an order was entered reversing the judgment of conviction in the recorder’s court and discharging the defendant.
' Plaintiff, upon leave being granted, appeals and urges that the enactment of Detroit compiled ordinances,. 1936, chap. 74, § 15 (e), constitutes a reasonable and proper exercise of the police power of the municipality and does not violate section 1 of the Fourteenth, amendment to the Federal Constitution or article 2, § 16, of the State Constitution; that the above section of the ordinance does not constitute an unreasonable and arbitrary classification; and that the finding of unreasonableness by the trial court is not justified by -the record.
Defendant urges that the particular section of the ordinance in question here is unconstitutional as it imposes an unreasonable regulation upon a lawful private business under the guise of the general police powers.
The city of Detroit is a home rule city. In People v. Sell, 310 Mich. 305, we said:
“The home rule city act (Act No. 279, §§ 4 — i, 4-j, Pub. Acts 1909, as added by Act No. 126, Pub. Acts 1929, and as amended by Act No. 283, Pub. Acts 1941 [Comp. Laws Supp. 1943, § 2239, 1 Comp. Laws 1929, §2240, Stat. Ann. 1944 Cum. Supp. § 5.2082, Stat. Ann. § 5.2083]) provides in part:
‘ ‘ ‘ Sec. 4-i. Each city may in its charter provide: #
“ ‘ (4) For the regulation of trades, occupations and amusements within its boundaries, not inconsistent with State and Federal laws, and for the prohibition of such trades, occupations and amusements as are detrimental to the health, morals or welfare of its inhabitants.’
“ ‘Sec. 4-j. Each city may in its charter provide: # # #
.“ ‘(3) For the exercise of all municipal powers in the management and control of municipal property and in the administration of the municipal government, whether such powers be expressly enumerated or not; for any act to advance the interests of the city, the good government and prosperity of the municipality and its inhabitants- and through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns subject to the Constitution and general laws of this State.’ ”
Title 3, chap. 1, § 12, of the charter of the city of Detroit, as amended, provides:
“The legislative powers and duties of the council shall be as follows: * * *
“(d) To enact ordinances to carry into effect the powers conferred and the duties imposed upon, the' city by the Constitution and laws of the-State, to make' operative the provisions of this charter, and to promote the general peace, health, safety, welfare, and good government of the city; and to provide for the enforcement of such ordinances and the punishment of violations thereof. * * *
“(n) To provide for the regulation of trades, occupations and amusements and to provide for the prohibition of such trades, occupations and amusements as are detrimental to the health, morals or welfare of its inhabitants, and for the regulation and restriction of the territory within which intoxicating liquors are sold or manufactured, if not prohibited by law: Provided, that the council -shall by ordinance provide for the regulating, licensing and bonding of private detectives and private detective agencies.” ■ ' '
In Cady v. City of Detroit, 289 Mich. 499, 504, we said:
‘ ‘ The sovereign power of the State includes protection of the safety, health, morals, prosperity, comfort, convenience and welfare of the public, or any substantial part of the public. Schmidinger v. City of Chicago, 226 U. S. 578 (33 Sup. Ct. 182, 57 L. Ed. 364, Ann. Cas. 1914 B, 284); Bacon v. Walker, 204 U. S. 311 (27 Sup. Ct. 289, 51 L. Ed. 499); Nebbia v. People of State of New York, 291 U. S. 502 (54 Sup. Ct. 505, 78 L. Ed. 940, 89 A. L. R. 1469); Barbier v. Connolly, 113 U. S. 27 (5 Sup. Ct. 357, 28 L. Ed. 923); Lake Shore & M. S. Railway v. Ohio, 173 U. S. 285 (19 Sup. Ct. 465, 43 L. Ed. 702); Chicago, B. & Q. Railway v. People of the State of Illi nois, ex rel. Drainage Comm’rs, 200 U. S. 561 (26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175)."
In People of the State of New York, ex rel. Armstrong, v. Warden of the City Prison of the City of New York, 183 N. Y. 223 (76 N. E. 11, 2 L. R. A. [N. S.] 859, 5 Ann. Cas. 325), the court said:
“All business and occupations are conducted subject to the exercise of the police power. Individual freedom must yield to regulations for the public good. It may be laid down as a general principle that legislation is valid which has for its object the promotion of the public health, safety, morals, convenience and general welfare or the prevention of fraud or immorality.”
In Parkes v. Judge of Recorder’s Court, 236 Mich. 460 (47 A. L. R. 1128), we said:
“The constitutional guaranty of life, liberty and of property is subject to such restraints as are reasonably necessary for the public good. As a member of organized society the individual citizen has no right to do those things which are injurious to the common welfare.”
In Kelley v. Judge of Recorder’s Court of Detroit, 239 Mich. 204, 214 (53 A. L. R. 273), we quoted with approval from Crowley v. Christensen, 137 U. S. 86 (11 Sup. Ct. 13, 34 L. Ed. 620):
“The possession and enjoyment of all rights are subject to such reasonable conditions as may' be -deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.”
In our opinion the regulation of trades, occupations and business activities is a proper question for the legislative power of the city. We do not 'find any improper use of this power in enacting that portion of the ordinance in question. However, it is urged that the ordinance is invalid because of unreasonable and invalid classification, in that the ordinance permits vendors to operate on the parking lots if the business is conducted in a permanent building, while no such restriction is cast upon operators of used-car lots.
In Cook Coffee Co. v. Village of Flushing, 267 Mich. 131, we said:
“One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. ’ ’
In our opinion there is a material difference between parking lots and used-car lots. In nsed-car lots, the operator usually owns or controls the cars parked therein. In parking lots, such as the one involved in this case, the cars are usually left unlocked and moved frequently. Because of different conditions there is a greater need of regulating parking-lots than used-car lots. The ordinance applies to all operators of parking lots. The ordinance has a relation to the evil growing out of the uses made of parking- lots.
In Bordens Farm Products Co., Inc., v. Baldwin, 293 U. S. 194, 209 (55 Sup. Ct. 187, 79 L. Ed. 281), it was said:
“"When the classification made by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912 C, 160); Ohio, ex rel. Clarke, v. Decke bach, 274 U. S. 392, 397. (47 Sup. Ct. 630, 71 L. Ed. 1115); Lawrence v. State Tax Commission of Mississippi, 286 U. S. 276, 283 (52 Sup. Ct. 556, 76 L. Ed. 1102, 87 A. L. R. 374).”
Defendant relies upon S. S. Kresge Co. v. Mayor of City of Detroit, 290 Mich. 185 (124 A. L. R. 543), as authority for the claim that the ordinance is unreasonable. We there said:
“The object of the present ordinance was not to protect the citizens of Detroit in their public health, safety, morals or general welfare, but was for the financial benefit of a few. In view of the fact that the selling of flowers and potted plants is a legitimate business, and that there has been no showing made of the existence of any evil in connection with the sale of flowers and potted plants, we are constrained to ■ hold that the ordinance involves the infringement of the right of property or business under the guise of police regulations and is therefore void'.”
It is to be noted from the language above quoted that the object of the ordinance in the Kresge Case was “the financial benefit of a few,” while in the case at bar the object is to gain better police protection to motorists who park their cars in such parking lots and to alleviate the problem of pedes7 trian traffic in such locations.
In coming to a decision in this cause, we have in mind that the ordinance under discussion also provides that anyone conducting a parking station shall obtain a license for the same; that a license fee must be paid therefor- that the person obtaining such license must have a good character; that each person employed in the parking station must also he licensed; that each station shall be equipped1 with proper fire-extinguishing apparatus; that the parking station shall be enclosed with a suitable fence with one common entrance and one common exit, which may or may not be combined; and that such station shall be kept free from dust. We recognize the' necessity of parking lots, in cities the size of Detroit as well as the duty of the city to properly regulate the same. In our opinion the record sustains a finding that the legislation was for the public welfare. The return of the recorder’s court establishes that a reasonable relationship exists between the regulation provided in the ordinance complained of and the evil sought to be remedied.
The order of the court setting aside the conviction is reversed and the cause remanded to the circuit court for certification to the recorder’s court for execution of sentence.
Starr, C. J., and North, Wibst, Butzel, Bushnell, Boyles, and Beid, JJ., concurred. | [
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Steere, J.
On June 25, 1924, plaintiff recovered a judgment of $10,000 against defendant in the circuit court of Wayne county as damages for personal injuries sustained on March 12, 1919, in an automobile accident while riding from Detroit to Mt. Clemens, caused by the overturning of the Ford car in which he was riding with a man named Villerot, who was; driving. Only the two men were in the car at the time of the accident and their mission together on that occasion was in connection with a senatorial election contest between defendant, Henry Ford, and Truman H. Newberry. Villerot was one of a number of men employed to represent Ford in transferring the senatorial election ballots, cast throughout the State at the preceding election, from the ballot boxes to temporary receptacles for proper preservation and shipment to Washington available for recount by the United States senate. Plaintiff was one of the men acting in a like capacity for Newberry.
A certificate of election as United States senator at the fall election of 1918 had been issued to Newberry, and Ford as a rival candidate contested the election. Directed primarily to preservation of the ballots, he instituted an injunction proceeding in the Federal court entitled Henry Ford v. Truman H. Newberry and others, wherein an order was entered on March 7,1919, by consent of counsel for the respective parties, providing in substance that upon proper notice to counsel for the respective parties arrangements should be promptly made to transfer the senatorial ballots, tally sheets, etc., from ballot boxes throughout the State required for use at the April, 1919, election to temporary receptacles preparatory to the sergeant-at-arms of the United States senate taking possession of them, “such transfers to be made by each custodian in the presence of the representatives of the said Henry Ford and Truman H. Newberry.” The temporary receptacles were to be carefully fastened and sealed. All expenses in giving notice of the times and places of transfers and providing the temporary receptacles for such ballots were to be borne by contestant Ford.
In this proceeding Alfred Lucking was attorney for Mr. Ford and James Murfin for Mr. Newberry. They took preliminary steps for harmoniously carrying out "the order of the court. Under Mr. Lucking, Mr. «Gerald Buckley was placed in direct charge of the details for Mr. Ford, and Mr. E. V. Chilson in like capacity for Mr. Newberry, with authority to cooperate in designating the times and places of transfer to be met by their respective agents or representatives and to witness the transfers. They were authorized to and did employ agents and representatives of their respective sides and provide facilities for that undertaking, including transportation as needed. Both sides had men in their employ while the transfer was in progress who were sent to various polling precincts throughout the State to meet notices or appointments for that purpose. Buckley was in direct charge of Ford’s agents and representatives in that service and Chilson of Newberry’s. Where such facilities were available those agents usually went to the place of transfer by train or trolley, but where the distance was short or the precincts away from those lines of travel automobiles were frequently used, just how many or often is somewhat in dispute.
Buckley and Chilson directed the details of this work in and from Detroit. It is undisputed that the men actually doing the work throughout the State took their instructions from them. Under their instructions Emery and Villerot had been working together, going to various polling places to supervise the transfers. At the time of the accident, as plaintiff claims, they were going to Mt. Clemens by direction of Buckley and Chilson to provide for and supervise a transfer of the senatorial ballots in that vicinity, making the journey together in a Ford car which Villerot, by order of Buckley, had obtained from a Ford agency at Highland Park for that purpose, and which by his negligent driving he capsized, severely injuring Emery.
The accident as such presented no novel questions of law as applied to the facts in controversy and in its essentials turns on issues of fact for the jury. That the car capsized under Villerot’s driving and injured Emery somewhat severely is not disputed, just how seriously and whether permanently is in dispute. The accident occurred on a practically straight strip of paved highway between Detroit and Mt. Clemens along which Villerot was driving, as he said, at a speed of 20 to 22 miles an hour when they saw ahead an approaching car with a motorcycle behind it going at greater speed. As they drew near the motorcycle swung out and passed that car. Villerot testified he slowed down to about 12 miles an hour and turning out to avoid hitting the motorcycle, “when off the road, hit a bump, hit a soft spot in the road, off the regular road,” and as he tried to turn back the car turned over. Emery’s version is that Villerot’s regular speed on the road was faster. As they saw the approaching car some distance away with the motorcycle about to pass it they were going 25 miles an hour or more. He called Villerot’s attention to it and cautioned him to be careful, but he suddenly increased his speed at the wrong time and swung out; that he then cautioned him to look out as he was going to skid but he did not check down and the capsize followed just after the motorcycle passed them on its right side of the road; that Emery himself was knocked unconscious and had no personal knowledge of what immediately ensued. Other witnesses saw and testified to the circumstances of the accident as observed from their point of view. There is testimony in the case tending to show that Villerot drove recklessly and the accident was imputable to his negligence. After a careful consideration of the record on that phase of the case we are of opinion that the questions of Villerot’s negligence, plaintiff’s contributory negligence and the extent of the latter’s injuries were issues of fact, which the court submitted to the jury in a careful and appropriate charge containing no error prejudicial to defendant.
The more urgently argued and fairly debatable question is defendant’s liability for Villerot’s negligence. That claim was exhaustively contested for the defense in the court below with pragmatic insistence, which led the court to suggest, “We are trying here to try a lawsuit on the merits,” but continual coming resulted in eliminating Buckley’s testimony from the case, although both sides refer to it in their briefs. Starting in the record before us at commencement of the trial and reading consecutively through plaintiff’s proofs, we find recorded as the second witness—
“Buckley, Gerald, deposition of, was read in evidence, as follows: Direct-examination by Mr. L.” (defendant’s counsel).
This direct-examination by defendant’s counsel of nine and one-half printed pages is followed by slightly over three pages of “cross-examination” by plaintiff’s counsel, after which are about two pages of redirect, re-cross and re-redirect-examination. The record discloses no objection of any kind to the introduction and reading of this deposition until four days later in the trial, when, near the close of plaintiff’s testimony, defendant’s counsel called up what he termed “a matter of importance,” and making certain statements of an introductory nature disclosed that the matter of importance upon which he wished to be heard was, that while introducing his proof plaintiff’s counsel had read Buckley’s depositions without announcing that he read them under the provisions of the statute as to an agent of the opposite party (3 Comp. Laws 1915, § 12554), was therefore bound by the witness’ testimony and could not impeach or contradict any portion of it. Plaintiff’s counsel insisted it was the understanding and agreement that either party might read the depositions in evidence as a substitute for swearing the witnesses in open court in the same manner as though they were produced. The written evidence of this claim was a letter from defendant’s counsel of October 24, 1923, stating his understanding as to production of certain other witnesses, saying, amongst other things:
“And, further, that the depositions of Gerald Buckley and Frances Erben, heretofore taken, may be read in evidence upon the trial by either party, without the necessity of again swearing the witnesses in open court.”
Because of what the court, after listening to the respective contentions, termed a “misunderstanding,” counsel for plaintiff offered, and asked the court, that the record show Buckley’s depositions were read and admitted in evidence subject to the provisions of the statute as to an ag'ent of the opposite party, which was insistently opposed by defendant’s counsel, and denied by the court. A protracted side7bar and crossbar debate ensued on that technical issue which covers some 26 pages of the printed record. Its details are not sufficiently illuminating or material to require discussion, but the ultimate result was that the court granted defendant’s motion to strike out Buckley’s depositions entirely, and later, on defendant’s motion, instructed the jury, amongst other things, that it was—
“stricken out for all purposes, that is, just the same as if it had not been testified to, you are in your own minds to strike out that testimony, forget it, blot it out entirely.”
It is not ours to reason why upon the condition which confronts us in that particular. This is an action at law, tried by jury. It was for the jury to decide the issues of fact from the evidence in the case. Buckley’s evidence was stricken out of the case and the jury so advised with instructions to ignore it in their deliberations, and it follows that we must do likewise in determining whether there was evidence in the case tending to support plaintiff’s claim that in taking Emery with him to Mt. Clemens in the automobile he drove Villerot was within the scope of his employment. He was not violating any' order not to do so, a controlling distinction in certain cases upon which defendant relies. He and Buckley were both regular employees of defendant, assigned at that time to the task of. transferring and collecting the senatorial ballots throughout the State for preservation and use in defendant’s election contest, with Buckley in authority over Villerot.
Villerot had been in defendant’s service for about eight years and at the time of the trial was employed in the purchasing department of the Ford Motor Company. Called as a witness for the defense, he testified, amongst other things, that about two weeks before the accident he was picked from his department by its head to report at the office of Ford’s attorney in the Ford building in Detroit in connection with the transfer of those election ballots, and during that service received his instructions from Buckley. He met Emery at Buckley’s headquarters prior to the time of the accident, and had done some automobile driving with him in connection with transfers of senatorial ballots in Bay county, using a car which Villerot obtained in Bay City from a Ford dealer. Emery then told him he had been there before and advised him as to what roads to take. The day before the accident (March 11, 1919) they were engaged in that work together at Pontiac. They left the Ford building together on the next morning with instructions to first go to Royal Oak and transfer some ballots there. He remembered hearing some discussion before they left “about Mt. Clemens, and the transfer to be arranged the next day, on the 12th,” but denied receiving instructions from Buckley to go there. They went to Royal Oak by trolley on the 12th (the day of the accident), and completed the transfers there by noon. He then called Buckley up by ’phone, and, as he testified:
“Asked him what I should- do next. He told me to stop at the Denk-Thompson garage at Highland Park for an automobile and report. Mr. Buckley said to get the automobile and drive down town and report at the office for further instructions. That is all that I remember. * * * We (he and Emery) discussed Mt. Clemens coming back from Royal Oak on the interurban cars. * * *
“Q. Now what was it that Mr. Emery said to you about Mt. Clemens, after you left Royal Oak?
“A. I can’t remember just what he said. He said something about a transfer at Mt. Clemens. It was between 11:20 and 12 o’clock, I would say, we got to Denk-Thompson. Mr. Emery and I went into the office of the garage and inquired about a car that we were supposed to get. * * * We were at the Denk-Thompson before we secured the car about 20 minutes to a half hour. After going down town we parked the car behind the Ford building and went up to the Lucking office in the Ford building. I went up there myself to see if Mr. Buckley was in. * * * I didn’t find Mr. Buckley. I didn’t find Mr. Buckley at all that noon time. I didn’t get anything at the office that noon time.”
He also stated that there were no bags for transfer of the ballots in the car and they got none during the noon hour; that he never received any instructions from Mr. Buckley to go to Mt. Clemens or to take Emery with him. Asked his reason for going there, he said that Emery suggested they go down to Mt. Clemens to try and locate the keys and seals. Asked if they always had to locate the keys and seals, he said it was necessary to have them to complete the transfer of ballots. Asked on cross-examination if he got further instructions when.he called up Buckley from Royal Oak and asked for them, he answered as follows:
“I got instructions to stop off at Highland Park and get an automobile. * * *
“Q. For what?
“A. For a transfer perhaps that afternoon of some outlying township.
“Q. Where?
“A. No definite place set.”
Emery testified that he was present on the morning of that day when Buckley and Chilson gave them their instructions. He and Villerot were to go to Royal Oak first and transfer the ballots there. Mr. Buckley told him to proceed to Royal Oak where they would make transfer and then go to Mt. Clemens. The arrangement as he heard and understood it was that, if possible, they were to make both Royal Oak and Mt. Clemens that day, saying;:
“We received instructions on the morning of the 12th in regard to the visit to Royal Oak and to Mt. Clemens. The arrangement was to proceed to Mt. Clemens, transfer the ballots in the city of Mt. Clemens, and to conclude the work that day if possible. If not, finish it in the morning, and then proceed to the several townships.”
Chilson was one of the two men put in direct charge of the details of collecting the ballots. He testified that his instructions when he took up the work were to assist in the transfer all over the State as rapidly as it could be done and he was in almost daily conference with Buckley at his office in the Ford building, “sometimes two or three times a day.” Of their method of carrying on the work, he explained:
“My practice was at this time to agree with Mr. Buckley that on such and such a day the ballots should be transferred at such and such a town, according to some ’phone conversation or telegram or something of that sort that either I or Mr. Buckley might receive from the election officials out in the State. For illustration, if some communication by way of ’phone or telegram had been received from a town like Howell, or any other town in Michigan, that got to my office, I would communicate with Buckley and tell him about it. If it came to him, he would communicate with me. We would then look over our schedule of what work we had on hand of different other towns or districts to transfer. And we would say, perhaps, we can cover that point two days from now, and we would agree on that. * * * It was Mr. Ford’s duty, through Buckley, and through these different representatives, to see that the temporary receptacles or bags were gotten to the place in time. I had nothing to do with furnishing the receptacles. They presented their receptacles, we agreed to it, and said it was satisfactory.”
Of their arranging for the trip in which the accident occurred, he said, in part:
“Mr. Buckley called me and said it was necessary to make a change in the schedule. Something had occurred in Macomb county that necessitated an immediate collection of ballots in that county. If I recall^ it, it was some extra or special election to be held_ in that county. I am not positive about that. I said, ‘Very well, Mr. Villerot and Mr. Emery were to be at Royal Oak or are at Royal Oak. I will communicate with Mr. Emery and have him at Mt. Clemens tomorrow morning.’ Mr. Buckley said he would do likewise with their representative, and to speed matters up they would provide a car and Mr. Villerot, their representative, and Mr. Emery, our representative, would drive to Mt. Clemens if we could get them together. I said, ‘that is perfectly satisfactory to us.’ * * * I was the man that directed Mr. Emery at all times, he was under my orders. He was not under Mr. Buckley’s orders at all, only as the combination worked out. Mr. Emery did not undertake to do anything unless I ordered him to do it, as to time and place of transferring ballots. * * * And Mr. Buckley’s men always followed his orders as to time and place, so far as I know. I had no direction of their men.
“Q. You had no right to direct a Ford man as to time and place?
“A. Only as we agreed upon things.
“Q. Only as you and Buckley had previously agreed on it, certainly?
“A. Yes, sir. * * *
“Q. Was there any reason why on March 12 or 13, Mr. Emery could not have gone to Mt. Clemens on the street car, so far as Mr. Newberry’s interests were concerned ?
“A. No.
“Q. Did you order him to ride out there with Villerot?
“A. Yes, after Mr. Buckley had said they wanted the car used.
“Q. They wanted the car used?
“A. Which he frequently did.
“Q. Just a moment. Never mind frequently. What do you mean, frequently, about Mt. Clemens?
“A. No, throughout the State.
“Q. Well, to reach points out in the State?
“A. They preferred to furnish the car they said.
“Q. Who said that?
“A. Mr. Buckley.
“Q. When?
“A. Shortly after we started work.
“Q. When was that, in the fall?
“A. Shortly after we started work on transferring the ballots.
“Q. And there were points in the State that could not be reached by rapid railway or street car or railroad that you had to witness a transfer?
“A. Oh, yes, a great many. * * * this arrange.ment about the cars was their own suggestion.
“Q. When was it that he said that about Mt. Clemens ?
“A. Shortly after — well the day that we agreed -to make the transfer at Mt. Clemens, or the day previous.
“Q. Had that been scheduled for four or five days?
“A. No, it was a quick shift, something unexpected came up, as I told you.
“Q. This was scheduled at Mt. Clemens for March 13 in the morning?
“A. I think so.
“Q. Was there any reason why Emery had to go out in an automobile that afternoon, then, to get that transfer ?
“A. I don’t think that is true. The transfer was to be made the same day that they left to make the transfer.”
We have no difficulty in concluding there is competent testimony in this record from which the jury could legitimately find that Villerot was directed by Buckley to get the car as he did and take Emery with him to Mt. Clemens for purposes of the transfer pursuant to the arrangement made between Buckley and Chilson, to which the latter testified. The remaining question on that phase of the case is whether there is any competent testimony in the record showing directly or by fair inference that in so doing Buckley was acting within the scope of his authority.
Defendant Ford, called by plaintiff under the statute, testified briefly, consistently, and comprehensively as to his participation in this transfer of ballots. His entire testimony is as follows:
“I filed a petition in the United States (court?) to preserve the senatorial ballots. Mr. Liebold was acting for me in all these matters. Mr. Liebold repre sents me. He is my general secretary, and he represents me in a great many things. He does anything that I designate him to do, that I lay out for him to do. He signs checks for me and has the complete management of many of my affairs. He had full power to act for me in this senatorial controversy. Mr. Liebold had charge of this recount and the transfer of ballots. He had full power to hire whoever he desired and go to any expense necessary, and I paid for it.”
Liebold testified that he was direct agent for defendant in a great many things, with authority to sign checks and transact general business. He knew of defendant’s suit in the Federal court relative to preserving the senatorial ballots, and when Alfred Lucking, who handled the matter before the senate committee and as attorney for defendant, arranged for modifying the restraining order as to the ballot boxes so that the boxes could be used at the ensuing election, he discussed the matter with him, and first testified as follows:
“The office of Mr. Alfred Lucking looked after the transfer of both ballots in detail for Mr. Ford. Mr. Buckley was formerly employed by the Ford Motor Company and was supplied as a man to carry out that work. I had knowledge at the time that he was there for that work. He was to do what he was told to do either jointly by — whatever he was instructed by me, or whatever Mr. Lucking instructed him to do. He looked after the counting of the ballots and saw that the men were sent to the proper place, and scheduled the towns where they were to be received, and so on. He was directed to do that. That was part of his work. I know Mr. Villerot. I met him once or twice prior to the counting of the ballots. He was taken out of the Ford Motor Company to supply some necessary help for that work. I did not hire him. He was paid by Henry Ford. Mr. Buckley’s salary was paid from Mr. Ford’s funds. I know that Mr. Buckley was one of the men that was going down to the Lucking office. I act for Mr. Ford whenever I feel there is occasion for me to use my own judgment, and have a right many times to act without consulting him.”
In direct-examination by defendant’s counsel, he testified that he first heard of the accident “possibly a year after” and until then had not learned that any of Ford’s witnesses had transported a Newberry witness anywhere, and he never understood it was any part of defendant’s duty to do so. On cross-examination he was asked and answered: .
_ “Q. As a matter of fact, Mr. Liebold, you never discussed the question of transportation or how the men were going to travel, at all, with Mr. Lucking, did you?
“A. No? I never did.
“Q. This matter was left, after the details of the transfer, to the office of Mr. Lucking, and Mr. Buckley?
“A. Well, to a certain extent, it was, yes. * * *
“Q. Whom do you mean by we? You say ‘We were in constant consultation’ in case of any emergency arising?
“A. Mr. Alfred Lucking and myself.
“Q. You consulted with Mr. Buckley?
“A. Well, possibly, if he was in the office, and anything happened that we were talking about, he might be called in to discuss it. * * *
“Q. Was there any such discussion in regard to how the Ford men should get to these places in Detroit and immediate vicinity?
“A. Not between us.
“Q. You left the schedules entirely to them?
“A. In detail, yes.
“Q. Did you O. K. the bills?
“A. I did after they were all paid and turned in, yes, approved them. * * *
“Q. As a matter of fact, Mr. Liebold, isn’t this true, that about the only time you would consult him at all in connection with the transfer of these ballots is when Mr. Lucking saw fit to call you?
“A. Well, yes, when he called me. I would usually go down to his office or he would discuss matters over the ’phone. I might be there once a week, I might be there once in two weeks, but we were in constant communication.
“Q. There were lots of times when you were out of the city?
“A. Yes, I was out of the city at different times.
“Q. During those times did Mr. Lucking handle the matter?
“A. He would, yes.
“Q. With full authority to go ahead as he saw fit?
“A. For the time being, yes. * * * If there had been any change made in the schedules by reason of some circumstances from the regular schedules of dates and places for transfers, I would not bother about that.”
It is undisputed that both Buckley and Villerot were at the time of the accident in the service of defendant, assigned as his agents to the task of transferring, collecting and preserving these ballots for his use in the senatorial election contest he had inaugurated. Primarily, Newberry had no interest in the preservation or transfer of these ballots, but as it was done at the instance of Ford, he had, and was granted by the court, the right of notice and opportunity to see that it was properly done. Legally the initiative and burden of this work rested on defendant. By cooperation of counsel under authority of their respective clients the undertaking was planned and the task efficiently and expeditiously performed.
It seems idle to quibble over whether or not Ford’s agents, or Newberry’s, had express authority direct from them to use automobiles in that work. It covered the entire State and contemplated every voting precinct in it, many of which were in villages and townships off the lines of trolley or steam railway transportation. Under the statute the sealed ballot box was in charge of the clerk, its keys held by the chairman of the election board and the seal in the hands of one of the election inspectors. If no mutual arrangements were made to have them assembled by their custodians at the county seat or some other convenient place for legal transfer the inspecting agents taking defendant’s bags for transfer would have to ride or walk by highways to where they were. Even Secretary Liebold would scarcely contend that by auto was not the most expeditious and economical way of meeting such a situation. The very fact, as Liebold tells, that transportation was never discussed or “never even thought of” implied authority for those in charge of the details to obtain such means of transportation as they thought best served the undertaking in which they were employed. Neither was. carrying the other’s agent who was assigned to the same inspection entirely one-sided in this co-operative undertaking. A witness for defendant named Lile, who was in the service of defendant and took part for a time in the transfer work in the northern part of the State, reporting to Buckley, told of two instances in the short time he was in that service where Newberry agents furnished free to him and drove the auto in which they made their trips out into the country to make transfers. Whether they owned or hired the cars they drove, or whether Ford ever paid for the use of a Ford car, is beside the mark. Liebold admits that as defendant’s agent he paid for repairing the damages done to the car when Villerot capsized it at the time of the accident. It is not shown that Villerot or Emery had any other reason for going to Mt. Clemens than the work in which they were engaged, nor that Buckley had any other reason for ordering Villerot to get the car that day. Even Villerot, who denies that he was instructed to go to Mt. Clemens, but went, understood it was to be used in that line of work, or, as he said, “for transfer perhaps that afternoon of some outlying townships.”
Liebold testified that Mr. Lucking’s office looked after the transfer of the ballots, and Buckley, who was in defendant’s employ, “was supplied as a man to carry out that work.” Buckley had a desk there, and carried out that work in and from there. Chilson, who acted in like capacity for Newberry, visited and conferred with him there almost daily and the men under him who were doing the actual transferring through the State took their orders from and reported to him there. That he was under the general supervision of Ford’s attorney, or Liebold, and subject to such instructions as they saw fit to give him, is not questioned, neither is there any proof that in carrying out that work lie ever did anything which they told him not to do or violated any instructions they gave him.
In the law of agency it is a fundamental principle that every delegation of power carries with it authority to do all things which are reasonably necessary or proper to efficiently carry into effect the power conferred, unless it be a thing specifically forbidden; and as to torts against third parties, even doing a forbidden thing is not always the test, if the agent is acting within the scope of his employment (Richard v. Manufacturing Co., 79 N. H. 380 [109 Atl. 88]; 2 C.J. p. 848).
We find there is ample testimony to carry the case to the jury on plaintiff’s theory that Villerot and Emery were acting together in the prosecution of their respective employers’ business as instructed by those in authority over them, in a joint journey to make a transfer requiring a representative of each side to be present and to expedite the work, or “speed matters up,” they were as Buckley had proposed going in a car furnished by defendant which his agent Villerot was driving.
“The question whether the act complained of was within the course of the employment, — the question whether the servant did the act on his own account or on his master’s, — the question whether the servant has simply made a detour or has entirely departed from the master’s service — these are questions which, when the facts are in dispute, or, though the facts are not in dispute, when more than one inference can reasonably be drawn from them, are questions for the jury under proper instructions from the court.” 2 Mechem on Agency (2d Ed.), p. 1491.
Those questions were rightly submitted to the jury by the court with plain and proper instructions, including supplemental requests by defendant, fully as favorable to the defense as any authority sustains.
It is also insisted that the case should be reversed because the verdict is excessive. Eliminating Emery’s testimony as to his injuries, which runs in the superlative but was for the jury to pass upon, there was other practically undisputed testimony, mostly medical, showing that he sustained a fractured skull, two broken ribs, an injured eye, loosened teeth and seriously sprained spine, causing excessive and protracted shock to his nervous system.
Dr. H. W. Hewitt, a practicing physician on the staff of the Grace hospital, testified that when Emery was brought there after the accident and he first saw him he was in a dazed condition and not entirely conscious, was nauseated and had a subnormal pulse; further saying, in part, as follows:
“I found he had a fracture of the skull, his left eye was swollen, his ninth and tenth ribs on his right side were broken. * * * His left hip joint was limited considerably in the motion we call flexion. * * * He had several abrasions about different parts of his body, especially on his legs and shoulders and other parts. We had several X-rays taken. Since leaving the hospital Mr. Emery has been under my observation. * * * I have a full understanding of his condition. Mr. Emery’s fracture was located on the left side of his head, starting up around in the temporal region, or a little further up, and had two or three fracture lines down this way, and one went around to the base of the skull. * * * The effect of such a fracture on a man’s general health and capacity depends entirely on the injury to the brain at the time. I ascertained what the injury to the brain was. The effect on the nervous system would be to produce a condition of emotional shock, and later a nervous exhaustion. That would be permanent in its character in many cases. It is in Mr. Emery’s case. I don’t believe he ever will make a complete recovery. * * * The result of this fracture was that it increased the intra-cranial pressure, that is, the pressure inside of the brain; and the direct result of that was a semi-conscious condition; and the ultimate result is more or less permanent injury to the nervous system in general. I should say that this injury produces a permanent defect. This injury resulted in a condition of nervous exhaustion. The symptoms of nervous exhaustion are lack of endurance, both physical and mental.”
Dr. Clark, a specialist in nervous and mental diseases who had belonged to the Grace Hospital staff for seven years, testified that on March 24th, having been called into conference by Dr. Hewitt, he examined Emery, saying, in part:
“I found him in bed in a subconscious condition, or cloudy mental condition, facial expression and general conduct was one of a person suffering considerable pain, symptoms of skull fracture, pains in temple region, left eye swollen and edamatous, central and latter incisors of jaw loose. * * * On the 28th his pulse was 60, temperature was 97, his respiration was 18. On the following day his condition was unsatisfactory. Did a lumbar puncture and spinal pressure. The spinal fluid much increased, amber color, instead of being the usual about 12 to 14 drops, I found it much increased. The spinal fluid shot out across the bed when I pulled out this trocar. It was an amber color. That denotes presence of blood in the cerebral spinal fluid. It would come from the spinal canal, the space around the spinal cord. * * * I saw him (Emery) yesterday between the hours of 3 and 5:15. Dr. Hewitt was present.”
Asked if there was any chance of his making an ultimate recovery, he replied as follows:
“Sometimes, in a small percentage of such excessive cases, extensive injuries as I observed, to these plates, the result of fracture of the skull and his general symptoms, sometimes a few, a small margin apparently, recover near normal until such a time as something comes along and tips them over, some little accident or something, and down they go again. It is few that really recover at his age, that make a permanent recovery. * * * He is somewhat improved from what I saw him in November, 1919. As to his future, I can only judge by those I have attended in the past. I would say that it was uncertain about his recovery; but I question in my own mind that he ever will completely recover.”
To the contrary of this, Villerot testified that Emery was able to- talk intelligently and to walk after the accident; that he rode back with him to Detroit that evening and took a street car to return alone to his own home. Certain men employed to shadow Emery after he left the hospital testified to his physical activities as they observed him when he did not know any one was watching, in marked contrast to his assumed crippled condition and manifestations of pain when conscious that he was under observation. Defendant’s only medical testimony was that of Dr. Klingman of Ann Arbor, an expert in nervous and medical diseases, who, in answer to hypothetical questions, gave extended qualified replies tending to show that Emery’s injuries from the accident were not permanent.
The credibility of all these witnesses was for the jury. And if they believed the testimony of plaintiff’s witnesses we cannot say that the amount of their verdict was excessive.
Defendant’s many other assignments of error have been carefully examined but we do not find them calling for serious discussion. The rules of law ap plicable to this case are well settled and the case was submitted to the jury on the facts under a full and fair charge in which we find no reversible error.
The judgment will stand affirmed.
Sharpe, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Bird, C. J., did not sit.
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Potter, J.
Bill to construe the last will and testament of Andrew Borden, deceased. The case was heard on bill and answer. The important question is the construction of the second paragraph of the will of testator, which, so far as concerns this case, is as follows:
“Second, I give, devise, and bequeath unto my daughter, Frances Eby, all my property, both real and personal, wheresoever the same may be situated at the time of my decease.
“Nothing is herein given to same Frances Eby’s husband, and she is hereby requested by me to retain all the property that I may leave her in her own name and possession as long as she shall live. I further desire that she shall, by will or otherwise, provide that in the event of her decease without any lineal descendants, such property as she may receive from my estate shall go to such persons as would take from me had I lived until that time and died intestate. ’ ’
The will was executed July 23, 1889. Testator died October 29,1892. His estate was probated and the property involved in the second paragraph of his will assigned by the probate court to Frances Eby. Frances Eby died June 26,1931, leaving a will dated October 15, 1925. Her estate, as inventoried, was $124,635.42. The contest arises between the heirs of Frances Eby and the Grand Rapids Association for the Blind and Sight Conservation to which she devised and bequeathed her estate except small devises and bequests. The case has been exhaustively briefed.
“If the fee simple of land be devised to one, the remainder cannot be devised to another, albeit the first devise be but conditional. And therefore if land be devised to I. S. and his heirs, and if he die without heirs, that it shall remain to I. N. and his heirs; this is a void remainder to I. N. (The rule is, no estate may be devised to take effect in remainder after an estate in fee simple; but a devise to vest, in derogation of an estate in fee previously devised, may, under proper limits, be good by way of executory devise.)” 2 Sheppard’s Touchstone (7th Ed.), 417.
“I hold it to be a rule that admits of no exception in the construction of written instruments, that where one interest is given, where one estate is conveyed, — where one benefit is bestowed in one part of an instrument by terms clear, unambiguous, liable to no doubt, clouded by no obscurity, by terms upon which, if they stood alone, no man breathing, be he lawyer or.be he layman could entertain a doubt, — in order to reverse that opinion, to which the terms would of themselves and standing alone have led, it is not sufficient that you should raise a mist; it is not sufficient that you should create a doubt; * * * it is not even sufficient that you should deal in probabilities, but you must show something in another part of that instrument, which is as decisive the one way as the other terms were decisive the other way; and that the interest first given cannot be taken away either by taciturn or by dubium, or by posibile, or even by probabile, but that it must be taken away, and can only be taken away, by expressum et cerium.” Lord Chancellor Brougham, Thornhill v. Hall, 2 Cl. & F. 22: 8 Bligh N. S. 88 (5 Eng. Repr. 879).
There are cases (1) where a life estate is devised and bequeathed, in real and personal property, with remainder over to another; (2) where a devise and bequest of real and personal property is made in trust for purposes designated, by the testator; (3) where there is a devise of the fee of real estate and a bequest of personal property, burdened with charges made against it by the testator; (4) where there is a devise or bequest for life only coupled with a power of disposition, with remainder over to another; but, such cases are not important in the construction of the will in question. Here the testator gave, devised and bequeathed all his property, both real and personal, to his daughter Frances Eby. He then requested her to keep the property given her, and he expressed a desire that at her death she by will or otherwise dispose of the property as he wished. Testator made no attempt to direct by his will the manner in which the property should go. He did express a desire Frances Eby dispose of the property at her death in a certain way, but how she was to dispose of it, at her death, whether by will or otherwise, was left to her. He recognized it was her will that would control its disposition after her death and not his will.
While words expressing a wish, desire or request under some circumstances may be sufficient to constitute a devise or bequest (Kinney v. Kinney, 34 Mich. 250; Stebbins v. Stebbins, 86 Mich. 474; Bush v. Delano, 113 Mich. 321; Oyster v. Knull, 137 Pa. 448 [20 Atl. 624, 21 Am. St. Rep. 890]; Phillips v. Phillips, 112 N. Y. 197 [19 N. E. 411, 8 Am. St. Rep. 737]; Barney v. Hayes, 11 Mont. 571 [29 Pac. 282, 28 Am. St. Rep. 495]; Gaston’s Estate, Weller’s Appeal, 188 Pa. 374 [41 Atl. 529, 68 Am. St. Rep. 874]), such language is not important here. Schram v. Rogers, 168 Mich. 340; Colton v. Colton, 127 U. S. 300 (8 Sup. Ct. 1164). Mee v. Gordon, 187 N. Y. 400 (80 N. E. 353, 116 Am. St. Rep. 613, 10 Ann. Cas. 172); Killefer v. Bassett, 146 Mich. 1.
In cases involving wills like that here, the rule is that the person to whom the title is devised or bequeathed takes the same absolutely. Moran v. Moran, 143 Mich. 322 (5 L. R. A. [N. S.] 323, 114 Am. St. Rep. 648); Killefer v. Bassett, supra; Schram v. Rogers, supra; Hollway v. Atherton, 205 Mich. 129; Gibson v. Gibson, 213 Mich. 31.
The most that may be said of the language of the will is that the testator expressed a desire that Frances Eby would, by will or otherwise, provide for a disposition of the property received by her from her father’s estate by will which she had left at her death so that it would go to his heirs, but there is nothing in the language of the will which cuts down the absolute ownership given by the previous clause of the will. She might or might not dispose of the property as he desired in her discretion, and though she disposed of it as desired by the testator, the manner in which she disposed of it was left to her discretion. To enforce the trust prayed for would be for the court to supersede or control the discretion vested by the testator in Frances Eby as to the disposition of the property which was devised and bequeathed to her absolutely. This the court ought not to do.
We find no error in the decree of the trial court which is affirmed, with costs.
Nelson Sharpe, C. J., and North, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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McDonald, J.
The plaintiffs seek a mandamus to compel the circuit judge of Bay county to vacate an order denying their petition for a belated appeal from an order of the probate court allowing the probation of the will of Curtis E. Pierce, who died.at Bay City on the 28th of July, 1924. The petition alleges that the will was made on August 18, 1923, and charges that Mr. Pierce at that time was mentally incompetent and was induced to make the will by duress and undue influence. The petition was accompanied by supporting affidavits. . The proponents of the will filed counter affidavits, and moved to dismiss the petition. On the hearing the circuit judge found that the plaintiffs were without fault for delay in claiming an appeal under the statute, but denied the petition on the ground that the petitioners had not made sufficient showing that justice required a revision of the case.
The statute authorizing delayed appeals from an order of the probate court provides: j
“If any person aggrieved by any act of the judge of probate * * * shall, from any cause, without fault on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall appear that justice requires a revision of the case, may, on petition of the party aggrieved, * * * allow an appeal to be taken and 'prosecuted with the same effect as if it had been done seasonably.” 3 Comp. Laws 1915, § 14156.
The record shows sufficient material facts calling for the exercise of the discretion of the circuit judge. The sole question is whether he clearly abused that discretion in determining that justice did not require a revision of the case.
“We have held many times that we would not reverse the determination of the circuit court under this statute unless it appeared that there had been a clear abuse of discretion.” Clark v. Berrien Circuit Judge, 194 Mich. 180, and cases cited.
On a hearing of a petition under this statute the circuit judge is supposed to exercise his judgment on all the evidence presented by the petition, its supporting affidavits and the counter affidavits. He is not required to find by a preponderance of the evidence that the testator was or was not mentally competent, or that he was or was not induced to make the will by undue influence. He is not to pass on the merits of that issue. The question that 'he is to determine is whether justice requires that the order of the probate court be reviewed. The burden is upon the plaintiffs to convince the court that “justice requires a revision of the case.” And they must show this by more substantial evidence than would make a mere prim a facie case for the jury on a trial of the merits. They must show a meritorious case. The correct rule is stated in Deering Harvester Co. v. Johnson, 108 Wis. 275 (84 N. W. 426) as follows:
“The burden is upon the applicant to satisfy the -court that, in view of all the known facts, there is at "least reasonable probability that upon further hearing :.a result more favorable to him will be reached.”
The statute leaves the question to the discretion of the circuit judge, and unless there is a clear abuse of that discretion this court will not disturb his finding. There is no abuse of discretion if the facts presented are fairly passed on by the circuit judge. His judgment may be erroneous. It may not be such a judgment as we would have rendered in determining the facts, but, unless it is clearly against reason and the evidence, or shows that he acted arbitrarily and unreasonably, it cannot be said that it was an abuse of discretion. We do not deem it necessary to refer in detail to the statements of facts contained in the various affidavits submitted by the plaintiffs. Some of them furnish competent evidence of the mental unsoundness of the testator, but the whole ■combination falls far short of being sufficient to sustain a judgment that he was mentally incompetent to make the will in question, or that he was induced to make it by undue influence.
What was said by this court in McKay v. Macomb Circuit Judge, 227 Mich. 235, applies here:
“Upon a trial of the cause on its merits it would be the duty of the court, under the proofs as shown by this record, to instruct the jury that a prima facie case had not been made of either mental incompetency or undue influence.”
The plaintiffs did not make a sufficient showing that justice required a revision of the case. The court was right in so holding.
The writ is denied, with costs to the defendant.
Bird, C. J., and Sharpe, Snow, Steere, Fellows, Wiest, and Clark, JJ., concurred. | [
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Snow, J.
The plaintiff in this cause was granted an absolute decree of divorce from the defendant on the 6th day of July, A. D. 1922. Among other pro visions of the decree, the custody of the infant child, Janet Ruth, was given to the mother, until said child should arrive at the age of' 16 years, and the father was to pay, for its care and maintenance, the sum of $100 per month, payments to be made to the county clerk for Wayne county. Provision was also made for the father to see the child from time to time. Since the decree the mother has at all times had the custody of the child, and the payments for its support have been promptly made by the father. He has been permitted to see the child in accordance with the decree, and they undoubtedly enjoy a mutual affection and attachment.
In the year 1924 the plaintiff remarried, and her present husband, one Arnold Herrmann, being desirous of removing his family, including the child, Janet Ruth, to Rochester, New York, she petitioned the circuit court, in January, 1925, for a modification of the divorce decree permitting her to take the child out of the State of Michigan, and to live with her and her husband in Rochester, New York. Thereupon the defendant filed his petition asking that the decree be modified so that he would be given the full custody and control of the child, and that the monthly payments be discontinued. These' petitions came on for hearing, and on the 28th day of February, A. D. 1925, after the taking of testimony, the trial court caused an order to be entered modifying the decree to the extent of allowing the mother to take the child to her home in Rochester, and providing for a visit by the child to its father
“at least three times per year, during school vacations (exclusive of week ends), and that the vacation periods of said child be divided equally between her mother, Irene Edith Epstein, now Irene Edith Herrmann, and her father, Samuel J. Epstein.”
Other provisions for seeing the child in Rochester were made in the order, and the $100 monthly payments were to continue as before. From this order and decree the defendant appeals, but it is to the above quoted provision that his exception is particularly directed.
It is practically conceded that either of the child’s parents is morally fit to have its custody and control. Both are of good character, and the child would undoubtedly enjoy the proper home surroundings with her father or with her mother. Under such circumstances the courts invariably have difficulty in determining with whom the child shall remain. The legislature has aided somewhat by section 11484, 3 Comp. Laws 1915, which provides:
“That in case of the separation of husband and wife having minor children, the mother of said children shall be entitled to the care and custody of each of the children under the age of twelve years.” * * *
In this case the child, Janet Ruth, is not yet 9 years of age. It is only where the mother is not of good moral character, or where conditions exist in her home that make it an unfit place for the child, that the court will ignore the provision of the statute and give the father the custody of children under the age of 12 years. Such are not the facts here. The mother is of good moral character and has á suitable home for her child, and is entitled to its custody.
We are, however, on a careful reading of the record, impressed that some changes should be made in the order and decree of the trial court. At the end of paragraph four of the order of modification, the following will be added:
“That is to say, that Samuel J. Epstein shall have the custody of said child during the first half of the Easter or spring vacation, the first half of the summer vacation, and the last half of all other vacations during the year that shall be for a period of one week or more.”
And at the end of paragraph seven of said , order of modification, the following will be added:
“Provided, that said defendant shall be relieved of all payments above provided for her support, during the time said child shall be in his custody.”
The said order and decree appealed from is therefore hereby affirmed with the foregoing modifications. Neither party will recover costs.
Bird, C. J., and Sharpe, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Starr, J.
This case involves an automobile accident which occurred about 5 o’clock in the afternoon of September 16, 1942, at the intersection of through highway US-12 and Ann Arbor Trail road, near the city of Plymouth. Suit was begun and trial had in the common pleas court of Detroit, and on appeal by defendant to the circuit court for ’Wayne county was retried de novo. Plaintiff asserted claim for damages which he alleged resulted from defendant’s negligence. Defendant filed cross 'declaration claiming damages which he alleged resulted from the negligence of the driver of plaintiff’s car.
At the conclusion of all proofs plaintiff moved for a directed verdict against defendant on his cross declaration, on the ground that he was guilty of contributory negligence as a matter of law. The trial court reserved decision on such motion and submitted the case to the jury, which returned a verdict of no cause of action against each party. Judgment was entered on such verdict, plaintiff’s motion for a new trial was denied, and he appeals. Defendant cross-appeals.
US-12 is a cement-paved, through highway, 24 feet wide, running east and west. Ann Arbor Trail road •is tarvia surfaced to a width of 20 feet and runs in a southeasterly and northwesterly direction. The intersection of the two roads resembles an X with the greater or obtuse angles on the northeasterly and southwesterly segments of the intersection. Plaintiff’s car, driven by his 21-year-old son, was proceeding east on US-12 and approached the intersection at a speed variously estimated at 45 to'60 miles an hour. Defendant, driving his Ford pick-up truck in a northwesterly direction on the Ann Arbor Trail road, approached the intersection at a speed of about 35 miles an hour, but stopped before entering the intersection. The day was clear, the roadways were dry, there was no interfering traffic, and the view of each driver was unobstructed.
After passing a car driven by witness Austin, at a point 600 feet or more west of the intersection, plaintiff’s driver did not return to his right side of the road but proceeded toward the intersection straddling the center line. He testified that when he was 300 to 400 feet west of the intersection, he observed defendant’s car 50 to 60 feet south of the intersection; that he did not see defendant’s car stop, but admitted, “Perhaps he did. I .didn’t see him stop.” Though his view was unobstructed, plaintiff’s driver did not make further observation until about 50 feet from the intersection, when he saw defendant’s car proceeding slowly across in front of him. He said that he swerved to the left onto the north (wrong) side of the highway to avoid a. collision. He admitted that he was familiar with the highway and intersection; that he did not sound his horn, apply his brakes or reduce his speed. Witness Austin testified that plaintiff’s car was approximately 90 feet from the intersection when defendant started across.
Defendant testified that he stopped his car before entering the intersection; that he observed the highway to the left and right; that he saw the car of witness Austin about 750 feet distant approaching from the left (west) and the car of witness Stamper about 250 feet distant approaching from the right (east); that he made no further observation and proceeded across the intersection in low gear at a speed of 10 to 15 miles an hour; and that while crossing the intersection, he could have stopped his car within 3 or 4 feet. Defendant said that he did not see plaintiff’s car until it was directly in front of him. He testified in part:
“Q. Did you see that car at any time except just before the impact took place?
“A. I did not. I never saw that car until it was right in front of me. * * *
“ Q. * * * You came to the road and * * * stopped and looked?
“A. Looked up and down the road. I seen the traffic was clear and proceeded across the road. * * #
“Q. Did you look to your left again after you observed that car (witness Austin’s car) coming out of the bend on the straightaway the first time?
“A. No.”
The cars collided in the northeast portion of the intersection, at a point about three feet from the north line of US-12. The front of defendant’s car struck the right side of plaintiff’s car near the front wheel. Defendant’s car remained on the highway near the place of impact, while plaintiff’s car continued on out of control for 100 feet or more.
Assuming, for the purpose of this opinion, that defendant was negligent, the first question presented is whether or not plaintiff’s driver was guilty of contributory negligence barring recovery. Plaintiff contends in substance that because his car was on a through highway, his driver was free from contributory negligence as a matter of law. We cannot agree with such contention. Although he was driving on a through highway, it was the duty of plaintiff’s driver to make proper observation of traffic approaching on intersecting highways and to use reasonable care and caution to avoid an accident. In the case of Kerns v. Lewis, 246 Mich. 423, Mr. Justice Wiest, writing for the court, said in part, pp. 426, 428:
“Plaintiff was driving east on a trunk line highway, and defendant’s car was being driven north on an intersecting highway. * **§* *
“Plaintiff invoked the right of way accorded by law to users of a trunk line highway and the assurance of safety thereunder. While the law accords the right of way, it requires, as well, the exercise of at least ‘horse sense.’ The statute does not authorize one, in approaching a highway crossing, to assume that in all events he may proceed without looking, or, if unable to see, without exercising precaution commensurate with reasonable prudence.”
In the case of Adams v. Canfield, 263 Mich. 666, we said: •
“A rate of speed on a through highway of 45 or more miles per hour is not illegal nor excessive nor uncommon. It is quite ordinary. A driver desiring to cross such road1 must anticipate fast traffic on it, and, when the range of his vision is limited, he cannot always assume that a single observation will disclose the situation and all of its probabilities and proceed as though there were no cars on the road within colliding distance. On the other hand, he may assume that a driver on the through highway, coming into the range of vision, tvill discover him seasonably and take ordinary care to avoid collision.”
In the case of Bife v. Colestock, 297 Mich. 194, 198, Mr. Justice Butzel said:
‘ ‘ There may be circumstances where a driver on a through street may be guilty of contributory negligence if he proceeds after he has seen that the driver from an inferior cross street has failed to stop in accordance with the stop sign. Plaintiff testified that the reason he did not look to the west again was because the intersection was clear 140 feet to the west when he looked, and that no one who came to a stop in accordance with the law could cross the intersection prior to plaintiff. Was this a reasonable surmise or not? Was a person guilty of contributory negligence in exercising such a belief? We hold that these questions are for the determination of a jury. See Swainston v. Kennedy, 253 Mich. 518; Bunker v. Reid, 255 Mich. 536; Rhoades v. Finn, 288 Mich. 262.”
In Campbell v. Osterland, 283 Mich. 175, we said:
‘ ‘ The law applicable to the situation, as stated in Arnold v. Krug, 279 Mich. 702, is that the right of way accorded to a driver upon a trunk line highway is something more than the privilege of going through an intersection in advance of a car which reaches it at the same time, and that the driver is entitled to assume that those approaching a through highway from an inferior street will obey the law and stop. We also stated that, on the other hand, the driver on the through highway must keep such a lookout ahead and to the sides and down intersecting highways as a reasonably prudent person would do in order to avoid possible danger. He must act carefully under the existing conditions. ’ ’
See, also, Breker v. Rosema, 301 Mich. 685 (141 A. L. R. 867); Dramis v. Dunbar, 280 Mich. 300.
The testimony clearly presented questions of fact as to whether or not plaintiff’s driver made proper observation and whether or not he exercised reasonable care and caution to avoid the accident. There was evidence from which the jury could find, as they apparently did, that he was guilty of contributory negligence as a matter of fact. "We cannot say that the verdict was against the great weight of the evidence.
Assuming, for the purpose of this opinion, that the driver for plaintiff, as cross-defendant, was negligent, the next question is whether or not defendant as cross-plaintiff was guilty of contributory negligence barring recovery under his cross-declaration. He stopped his car at the through highway, as required by law. 1 Comp. Laws 1929, § 4713 (e), as amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4713 [e], Stat. Ann. 1943 Cum. Supp. § 9.1581 [e]). It was his duty to make proper observation for approaching traffic before entering the intersection. He had a clear and unobstructed view to the left (west) for a distance of more than 750 feet. He saw witness Austin’s car approaching at a distance of about 750 feet and concluded1 that he could safely cross the highway. He proceeded into the intersection without making further observation and did not see plaintiff’s car until it was directly in front of him. It is clear that, had he made proper observation, he would have seen or be presumed to have seen plaintiff’s car, which was plainly visible as it approached from the west. In Heckler v. Laing, 300 Mich. 139, 145, we said:
“It was not only the duty of plaintiff’s decedent to stop at US-2, but it was also his duty, after stop-' ping, to make proper observation for approaching traffic. If he, * * * having stopped, failed to make proper observation before entering the intersection, he was guilty of contributory negligence as a matter of law. Gallagher v. Walter, 299 Mich. 69; Zuidema v. Bekkering, 256 Mich. 327; Buwalda v. County of Ottawa, 270 Mich. 477.
“Plaintiff’s decedent, in making the required observation on US-2, is presumed to have seen what a person in the exercise of ordinary care and caution would see; that is, what was plainly visible.”
See, also, Slingerland v. Snell, 283 Mich. 524; Knight v. Merignac, 281 Mich. 684.
We conclude that under his own testimony defendant as cross plaintiff was guilty of contributory negligence as a matter of law. The trial court might properly have granted plaintiff’s motion for a directed verdict against defendant as cross plaintiff. However, there was evidence from which the jury could find, as they apparently did, that defendant as cross plaintiff was guilty of contributory negligence as a matter of fact.
Plaintiff contends that the appeal by both parties is, in effect, a concession that only questions of law are presented for review. We find no basis or authority for such contention in this case.
The judgment is affirmed. Neither party having prevailed, no costs are allowed.
North, C. J., and Wtest, Btjtzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
The statute in effect when the cause of action, arose in the case from which this quotation was taken was Act No. 96, Pub. Acts 1923. That statute was repealed by Aet No. 318, Pub. Acts 1927. Por present statutory law on the subject of right of way at type of intersection here involved, see 1 Comp. Laws 1929, § 4713 [c], as amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4713 [e], Stat. Ann. 1943 Cum. Supp. § 9.1581[e]).—Reporter. | [
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K. F. Kelly, J.
Plaintiff appeals as of right a supplemental order of the family division of the circuit court permitting the minor child of the parties to remain in the established custodial environment of defendant’s home with defendant’s widow, Lisa Anjoski (Lisa), pending an evidentiary hearing. We affirm. This matter requires us to address (1) whether a third party with no legal connection to the child at issue has standing to initiate a child custody dispute, (2) whether a trial court, in recognition of parents’ fundamental liberty interest in childrearing and the parental presumption under MCL 722.25, must immediately return the child to a noncustodial parent upon the death of a custodial parent when the record contains legitimate allegations that the noncustodial parent is unfit, and (3) whether a trial court has the authority to award custody to a third party without standing pursuant to MCL 722.27(1)(a). We hold that a third party lacks standing if it does not meet one of the statutory standing requirements in the Child Custody Act, MCL 722.21 et seq. We further hold that a trial court, in considering a motion to modify a custody order in situations where sufficient legitimate and compelling indicia exist on the record indicating that a noncustodial parent is currently unfit, must first make a finding of parental fitness before determining the burden of persuasion to be applied and conducting an evidentiary hearing. Lastly, we hold that the plain language of MCL 722.27(l)(a) permits a trial court to award custody to a third party who lacks standing.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff and defendant conceived a child out of wedlock. The minor child was born in 2003. Plaintiff initiated a paternity suit against defendant, who admitted paternity in November 2004. The judgment of filiation indicated that plaintiff would maintain sole legal and physical custody of the minor child and provided parenting time for defendant. Defendant then moved for a change of custody in December 2005. Consequently, the trial court amended the custody award in May 2006, awarding plaintiff and defendant joint legal custody, with physical custody remaining with plaintiff and parenting time given to defendant.
On July 6, 2006, defendant moved for a change of custody on the basis that plaintiff allegedly failed to follow the parenting time schedule, failed to provide proper clothing and hygiene to the minor child, allowed the minor child’s medical insurance to lapse, used marijuana and crack cocaine, lived with an unstable boyfriend, and transported the minor child in her car without a child restraint. Defendant also alleged that he smelled crack cocaine emanating from plaintiffs car when plaintiff dropped the minor child off, that plaintiff had rarely visited the minor child when the child was in the hospital, and that plaintiff dressed the minor child in clothing inappropriate for the weather.
The trial court scheduled a hearing on defendant’s motion for September 5, 2006. Defendant refiled the identical motion on August 30, 2006. The September 5th hearing was adjourned, however, because plaintiff was in the hospital, allegedly for treatment for drug abuse, and another hearing was scheduled for September 15th. Defendant then filed an amended motion for a change of custody on September 8, 2006. On October 10, 2006, the trial court granted defendant’s motion, awarding defendant temporary sole physical custody, with joint legal custody for both plaintiff and defendant, and scheduled another hearing for January 9,2007. The minor child then began living with defendant and his wife, Lisa. Plaintiff was allowed reasonable parenting time but only on the condition that any parenting time be supervised. At the January 9, 2007, hearing the trial court appointed a guardian ad litem for the minor child, ordered supervised parenting time for plaintiff to take place at HelpSource, and scheduled an evidentiary hearing for April 4, 2007.
At the April 4, 2007, hearing, the guardian ad litem testified that the minor child was in an established custodial environment with defendant. The guardian ad litem further indicated that he had concerns regarding plaintiffs drug use and that he had recommended drug screening and treatment. Ultimately, the guardian ad litem recommended that the minor child should remain in defendant’s physical custody. Both plaintiff and defendant consented to this recommendation. Consequently, the trial court entered an order on May 2,2007, that summarized the parties’ agreement, under which the parties maintained joint legal custody while defendant maintained sole physical custody. The order required both plaintiff and defendant to undergo random, but weekly, drug screenings and continued plaintiffs supervised parenting time, which was to gradually increase depending on plaintiffs successful and timely completion of substance abuse counseling and negative drug screens. Lisa, however, did not become the minor child’s guardian or otherwise establish any legal connection to the minor child.
In August 2007 defendant died. Lisa filed a complaint for custody of the minor child, but dismissed it after the trial court determined that she did not have standing. Plaintiff then moved for a change of custody, citing defendant’s death as a change of circumstances. On October 19, 2007, the trial court denied plaintiffs motion and “continued [its] current orders,” which included supervised parenting time, reasoning on the record that, “if an established custodial environment is in place for a minor child, this court shall not disrupt that custodial environment until an evidentiary hearing has been held.” In coming to this determination, however, the trial court recognized the parental presumption under MCL 722.25 that it is in the child’s best interests to be placed with the parent and also noted that it did not wish to delay the matter in any way. The trial court stated:
[Pursuant to MCL 722.25, Lisa] would have a burden by clear and convincing evidence in this case. Unless Ms. Kane is deemed unfit. And as a result, I am reappointing [the guardian ad litem] on behalf of the child to go to reinvestigate the home environments for this child ....
Thus, the minor child remained with Lisa pending an evidentiary hearing on November 20, 2007, which was as soon as the trial court’s docket would permit.
Plaintiff moved for rehearing on November 2, 2007, alleging that the trial court erred by ordering a best interests hearing instead of immediately returning the minor child to plaintiff. In response, Lisa filed a brief opposing plaintiffs motion and also filed a motion to intervene. The trial court heard plaintiffs motion on November 20, 2007. At that hearing, the trial court again recognized the statutory presumption in favor of a parent and also recognized the competing presumption, under MCL 722.27(l)(c), in favor of maintaining the established custodial environment. The trial court then reiterated its previous statement regarding the applicable burden of persuasion when the parent is deemed unfit. The trial court stated:
[I]n a child custody dispute between a natural parent who does not have the status of a fit parent and a third party custodian, the trial court is not required to apply the statutory presumptions in favor of the parent. In this situation, the natural parent must show, by a preponderance of the evidence, that a change in the child’s established custodial environment is in the child’s best interest.
The trial court then took note of the factual history leading up to the present dispute, including plaintiffs consistent drug abuse, residence with an abusive boyfriend, and sporadic employment record. The court also noted that even when the minor child was in plaintiffs physical custody, the minor child nonetheless lived almost exclusively with defendant because plaintiff left the minor child with defendant, and that the minor child, when living with plaintiff, was neglected and lived in deplorable conditions. Because of these facts, the trial court deemed it necessary to reappoint the minor child’s guardian ad litem to “properly assess the situation.” As a result, the trial court concluded that it could not change the minor child’s established custodial environment until a best interests evidentiary hearing was held. Further, with respect to Lisa’s motion to intervene, the court noted that caselaw does not permit a third party to intervene, but “that does not preclude the court from deciding, after a best interest hearing, that it is in the child’s best interest to be placed with a third party.”
On December 11, 2007, the day of the rescheduled best interests hearing, the parties moved for an adjournment in order to collect more information concerning the minor child’s progress at school. In addition, plaintiff had tested positive for cocaine and the guardian ad litem requested more time for a hair follicle test. Accordingly, the trial court adjourned the hearing to February 14, 2007.
The trial court then issued a supplemental order on January 11, 2008, directing that the minor child remain with Lisa pending the evidentiary hearing and that the minor child receive, as necessary, counseling to deal with the loss of her father. The order also required plaintiff to reenroll in a drug abuse treatment program, attend weekly appointments with her case manager and monthly appointments with her psychiatrist, and allotted plaintiff additional parenting time over the holidays as long as plaintiff remained at her father’s house. Plaintiff now appeals this supplemental order. The trial court stayed the evidentiary hearing scheduled for February 14, 2008, pending this Court’s disposition of the matter.
II. STANDARDS OF REVIEW
Three standards of review are relevant to child custody appeals. Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000). “This Court must affirm all custody orders unless the trial court’s findings of fact were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue.” Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008). Findings of fact should be affirmed “unless the evidence clearly preponderates in the opposite direction.” Phillips, supra at 20. The trial court’s discretionary decisions, such as its custody awards, are reviewed for an abuse of discretion. Id. Lastly, “[q]uestions of law are reviewed for clear legal error. A trial court commits clear legal error when it incorrectly chooses, interprets, or applies the law.” Vodvarka v Grasmeyer, 259 Mich App 499, 508; 675 NW2d 847 (2003) (quotation marks and citations omitted).
Further, we review matters of statutory construction de novo. “The primary goal of judicial interpretation ... is to ascertain and give effect to the intent of the Legislature.” Taylor v Currie, 277 Mich App 85, 94; 743 NW2d 571 (2007) (quotation marks and citation omitted). “The first criterion in determining.. . intent is the specific language of the statute. ... If the plain and ordinary meaning of the language is clear, judicial construction is neither necessary nor permitted ....” Id. (quotation marks and citation omitted).
III. THIRD-PARTY STANDING
Plaintiff first argues that Lisa is a third party who does not have standing to initiate a custody dispute or intervene in a paternity action. We agree.
Generally, a party has standing if it has “ ‘some real interest in the cause of action,... or interest in the subject matter of the controversy.’ ” Bowie v Arder, 441 Mich 23, 42-43; 490 NW2d 568 (1992), quoting 59 Am Jur 2d, Parties, § 30, p 414. However, this concept is not given such a broad application in the context of child custody disputes involving third parties, or “ ‘any individual other than a parent,’ ” Heltzel v Heltzel, 248 Mich App 1, 31 n 20; 638 NW2d 123 (2001) (citation omitted). For example, a third party does not have standing by virtue of the fact that he or she resides with the child and has a “personal stake” in the outcome of the litigation. Bowie, supra at 42; see also In re Clausen, 442 Mich 648, 678-682; 502 NW2d 649 (1993). Nor may a third party “ ‘create a custody dispute by simply filing a complaint in circuit court alleging that giving legal custody to the third party is in the [child’s] best interests ....’” Heltzel, supra at 28-29 (citation omitted); Terry v Affum (On Remand), 237 Mich App 522, 529; 603 NW2d 788 (1999). Rather, under the Child Custody Act the Legislature has limited standing for third parties to two circumstances. Pursuant to MCL 722.26b, third-party guardians have standing to bring an action for the custody of a child. That provision provides, in part:
(1) Except as otherwise provided in subsection (2), a guardian or limited guardian of a child has standing to bring an action for custody of the child as provided in this act.
(2) A limited guardian of a child does not have standing to bring an action for custody of the child if the parent or parents of the child have substantially complied with a limited guardianship placement plan regarding the child....
A third party also has standing under MCL 722.26c(l)(b), if the third party meets all the following conditions:
(i) The child’s biological parents have never been married to one another.
(ii) The child’s parent who has custody of the child dies or is missing and the other parent has not been granted legal custody under court order.
(Hi) The third person is related to the child within the fifth degree by marriage, blood, or adoption.
Neither of these provisions applies to the instant case. Lisa never became a guardian of the minor child and, therefore, MCL 722.26b does not confer standing on Lisa. Further, standing is precluded under MCL 722.26c(l)(b). Even though plaintiff and defendant were never married, MCL 722.26c(l)(b)(i), and Lisa is related to the minor child through her marriage to defendant, MCL 722.26c(l)(b)(iii), plaintiff shared legal custody with defendant at the time of defendant’s death, MCL 722.26c(l)(b)(ii). Thus, not all three requirements are met to create third-party standing. If a third party does not fit within one of the two statutory standing requirements, the third party lacks standing to create a custody dispute. Lisa meets none of the statutory standing requirements, and both the minor child’s residence with Lisa after defendant’s death and Lisa’s petition for custody are insufficient to create standing. Therefore, the trial court properly concluded that Lisa did not have standing to file a petition for custody.
IV INTERIM CUSTODY AWARD
Plaintiff next contends that the trial court clearly erred and abused its discretion when it temporarily awarded custody to Lisa pending a best interests evidentiary hearing. Specifically, plaintiff asserts that the court erred because it modified the child custody order by awarding Lisa physical custody before holding an evidentiary hearing pursuant to MCL 722.25(1), which creates a presumption in favor of the natural mother, plaintiff. According to plaintiff, the minor child should have been automatically returned to plaintiffs physical custody upon defendant’s death. We cannot conclude under the circumstances of this case that the trial court committed clear error requiring reversal or that it abused its discretion by permitting the minor child to remain with Lisa.
A. PRESUMPTIONS UNDER THE CHILD CUSTODY ACT
At the outset, we note the steps necessary to effectuate a change in custody pursuant to the Child Custody Act. A party seeking a change in custody must first establish proper cause or a change of circumstances by a preponderance of the evidence. Vodvarka, supra at 508-509; MCL 722.27(1). The movant must make this showing before the trial court can consider which burden of persuasion applies and conduct a child custody evidentiary hearing. Vodvarka, supra at 509. These initial steps, requiring the movant to establish proper cause or a change of circumstances, as well as the trial court’s consideration of the burden of persuasion, taken before the court can conduct the evidentiary hearing “are intended to erect a harrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.” Id. (quotation marks and citation omit ted). Accordingly, when a motion for a change of custody is made, it is not improper for a trial court to continue the child’s current established custodial environment pending the evidentiary hearing.
As indicated, after a movant first establishes proper cause or a change of circumstances warranting a change in custody, the trial court must then determine the relevant burden of persuasion before conducting the hearing. In most instances, the fáctual history of the case will not require lengthy consideration of the issue. Generally, if a petition for a change in custody involves a parent and a third party, there is a strong presumption that awarding custody to the parent is in the child’s best interests. See Heltzel, supra at 26. This presumption is based on parents’ fundamental due process liberty interest in the care, custody, and control of their children. Troxel v Granville, 530 US 57, 65; 120 S Ct 2054; 147 L Ed 2d 49 (2000); Herbstman v Shiftan, 363 Mich 64, 67; 108 NW2d 869 (1961). The Legislature recognized this interest in MCL 722.25(1), which provides the following burden of persuasion:
If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.
In such instances, the third party will bear the burden of proof and is required to rebut the parental presumption by clear and convincing evidence. Heltzel, supra at 26.
The Child Custody Act, however, also creates a presumption in favor of maintaining the established custodial environment. MCL 722.27(l)(c) provides, in relevant part:
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age and, subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, until the child reaches 19 years and 6 months of age. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.
This provision permits a court to modify a custody order so as to change a child’s established custodial environment only if there is “clear and convincing evidence that it is in the best interest of the child.” Id. As a result, in custody disputes between a parent and a third party with whom a child has an established custodial environment, a conflict arises between these two presumptions.
B. HELTZEL v HELTZEL AND MASON v SIMMONS
Courts have attempted to reconcile the interplay between the parental presumption and the custodial environment presumption in situations where, as here, the conflict exists. In Heltzel this Court determined, in recognition of parents’ fundamental liberty interest in raising their children, that the parental presumption trumps the presumption of an established custodial environment. Heltzel, supra at 23-28. And, we agree with that conclusion. This parental presumption protects not only parents’ rights to the care and custody of their children, but also protects the children’s parallel rights to the integrity of their family. Accordingly, in order to overcome the parental presumption, the Heltzel Court held that a third party nonparent must “proveQ that all relevant factors, including the existence of an established custodial environment and all legislatively mandated best interest concerns within [MCL 722.23], taken together clearly and convincingly demonstrate that the child’s best interests require placement with the third person.” Heltzel, supra at 27. Thus, under normal circumstances, where the parent is fit, he or she is entitled to the parental presumption and the third party bears the burden of persuasion.
However, in Mason v Simmons, 267 Mich App 188, 190-192; 704 NW2d 104 (2005), which involved a custody dispute between a parent and a custodial third party, this Court addressed whether an unfit parent is to be afforded the same deferential treatment to which a fit parent is entitled in considering a child’s best interests in a custody dispute between the parent and the third party. The Court held that “when a parent’s conduct is inconsistent with the protected parental interest, that is, the parent is not fit, or has neglected or abandoned a child, the reasoning and holding of Heltzel do not govern.” Id. at 206. The Court did find, however, that because of the fundamental constitutional right of parents to make decisions concerning the care and custody of their children, even an unfit parent was entitled to some deference given his or her status as a parent. Id. at 198. Thus, in custody disputes between an unfit parent and a third-party custodian, even though the presumption in favor of maintaining an established custodial environment is triggered and the burden of persuasion shifts to the parent, the lower “preponder anee of the evidence” burden of persuasion is on the unfit parent to demonstrate that a change in the established custodial environment is in the child’s best interests. Id. at 207.
While neither Heltzel nor Mason directly addresses the factual situation presented in this case, these two cases, taken together, nonetheless inform the present matter because an unfit parent, or one who acts inconsistently with his or her parental interest, is not entitled to the parental presumption announced in Heltzel. Further, and most significantly, Heltzel and Mason indicate that an additional step is necessary, under certain limited circumstances, before applying the framework announced in Vodvarka in change of custody matters. Namely, when a custody issue arises between a parent and a third party after the death of a custodial parent, which issue presents legitimate and compelling indicia on the record that raise serious concerns regarding the parent’s current ability to care for the safety and welfare of the child and suggests that the parent is unfit, the trial court is required to first make a preliminary finding of parental fitness before proceeding further. Once this preliminary finding is made, whether by judicial notice if appropriate, through pleadings and documentary evidence, or by an evidentiary hearing, the trial court may proceed to determine the proper burden of persuasion to be applied, as announced in either Heltzel or Mason. There is no require ment, despite the parent’s fundamental liberty interest, that the child be immediately returned to an allegedly unfit noncustodial parent because these prehminary steps are necessary for the protection of the child’s health and welfare and to prevent unwarranted and disruptive changes of custody. Vodvarka, supra at 509. However, we emphasize, for the purpose of providing trial courts with guidance in future similar circumstances, that in the absence of any legitimate indicia indicating that a noncustodial parent is unfit to the extent that a child may be at risk if returned, and in the absence of any legal relationship between the third party and the child, the trial court is required to return the child to the non-custodial parent upon notice of a custodial parent’s death.
C. APPLICATION
In the present matter, defendant had physical custody of the minor child and joint legal custody of the minor child with plaintiff, while Lisa, in the context of this child custody dispute, had no legal relationship with the minor child. Once plaintiff learned of defendant’s death, plaintiff petitioned the trial court for a change of custody. There is no dispute that plaintiff established by a preponderance of the evidence that a change in circumstances, defendant’s death, warranted her petition for a change of custody. Vodvarka, supra at 509. Under normal circumstances, any custodial arrange ments with a third party would have yielded to a parent’s constitutional right to the custody and care of the child and the parental presumption of MCL 722.25(1), and plaintiff would have been awarded custody of the minor child upon notice of defendant’s death.
This was not the outcome of plaintiffs motion for a change of custody. At the hearing on plaintiffs motion for rehearing, the trial court noted the factual history of the case, including plaintiffs consistent drug abuse, plaintiffs residence with an abusive boyfriend, and plaintiffs neglect of the minor child. Given the substantial evidence on the record, the trial court had legitimate concerns regarding plaintiffs parental fitness, especially in light of the fact that plaintiff was only permitted supervised visitation and tested positive for cocaine on the date of the evidentiary hearing. Because the record contained serious legitimate and compelling allegations regarding plaintiffs current parental fitness, the trial court, while recognizing both the parental presumption and the custodial environment presumption, indicated that it would continue its current orders until more information had been collected regarding plaintiffs fitness. This was the proper course of action. It was appropriate for the trial court to maintain the status quo while it made its preliminary findings, including first determining plaintiffs parental fitness, then determining which burden of persuasion would be applicable, and finally conducting the evidentiary best interests hearing. The trial court did not commit clear legal error, nor did it abuse its discretion by permitting the minor child to remain with Lisa in the interim.
D. PARENTAL FITNESS
Although we have concluded that the trial court did not err, we find it necessary to provide some guidance with respect to making a constitutionally sound determination of parental fitness, because the trial court must make such a finding on remand. We first note that while the courts of this state have consistently held that the rights of a parent are not to be disturbed absent a showing of unfitness, they have not articulated a clear standard by which a parent may be found unfit in the context of a child custody dispute and the application of the parental presumption. See Burkhardt v Burkhardt, 286 Mich 526, 534-535; 282 NW 231 (1938); Liebert v Derse, 309 Mich 495, 500; 15 NW2d 720 (1944); Riemersma v Riemersma, 311 Mich 452, 458; 18 NW2d 891 (1945). In Mason, supra, in which this Court ultimately concluded that the parental presumption of MCL 722.25(1) does not apply if a parent is found to be unfit, the Court provided little direction with respect to making a finding of fitness. The Court merely stated: “If a parent is unfit or fails to adequately care for a child, i.e., neglects or abandons a child, [the parental presumption is] extinguished.” Mason, supra at 200. Over four decades earlier, in Herbstman, supra, our Supreme Court provided a similar, albeit more nuanced, approach to making a finding of parental fitness. The Court stated:
The rights of parents are entitled to great consideration, and the court should not deprive them of custody of their children without extremely good cause. A child also has rights, which include the right to proper and necessary support; education as required by law; medical, surgical, and other care necessary for his health, morals, or well-being; the right to proper custody by his parents, guardian, or other custodian; and the right to live in a suitable place free from neglect, cruelty, drunkenness, criminality, or depravity on the part of his parents, guardian, or other custodian. It is only when these rights of the child are violated by the parents themselves that the child becomes subject to judicial control. [Herbstman, supra at 67-68.]
More recently, our Supreme Court in In re Clausen, supra at 686, recognized the interdependent nature of both children’s and parents’ liberty interests. The Court indicated that these mutual interests may be broken where a parent is unfit, thereby warranting interference with the parent-child relationship. Id. at 687 n 46.
Each of these cases relates parental fitness to the child’s needs. And, while none of these cases articulates a standard for determining parental fitness, it is nonetheless clear, given the interdependent nature of the rights involved, that the inquiry must focus on a parent’s abilities relative to the child’s needs when determining parental fitness. See id.; Herbstman, supra at 67-68. In many instances, the relevant factors may be plainly evident in the facts of the case. However, courts may also look for additional guidance from the criteria enumerated in MCL 712A.2(b) and utilized in child protective proceedings. See In re Brock, 442 Mich 101, 107; 499 NW2d 752 (1993) (“The purpose of child protective proceedings is the protection of the child . .. .”). As our Supreme Court outlined in Herbstman, supra at 67-68, such criteria may include, but are not limited to, the ability or inability to provide: proper and necessary supervision and support; education as required by law; medical, surgical, and other care necessary for a child’s health, morals, or well-being; and a safe and suitable environment free from neglect, cruelty, drunkenness, criminality, or depravity. Further, given the fundamental nature of the liberty interest involved, Troxel, supra at 65, we are of the view that a parent should be deemed unfit only after such an inquiry shows, by a preponderance of the evidence, that the parent is, in fact, currently unfit. See In re Brock, supra at 108-109. It is important for us to stress that a finding of unfitness in the context of custody proceedings may always be revisited. That a parent is once found unfit does not somehow bar him or her from resolving issues, becoming fit in the future, and seeking custody at a later time whereupon the parental presumption would again be applied.
V CUSTODY AWARD “TO OTHERS”
Plaintiff further claims that the trial court improperly concluded that it had authority, pending an evidentiary hearing, to award custody to Lisa, a third party without standing, pursuant to MCL 722.27(l)(a), which provides, in pertinent part:
If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may ... :
(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support....” [Emphasis added.]
In plaintiffs view, the language referring “to others” in MCL 722.27(l)(a) means “others with standing.” We observe at the outset that the trial court has not acted pursuant to this authority at this point in the proceedings, although it has indicated that it has the power to make such an award regardless of the applicable presumption. We agree with the trial court.
The meaning of MCL 722.27(l)(a) is clear and unambiguous. If a child custody dispute is pending, the trial court may award custody of the child to others if it is in the child’s best interests. There is no limiting language in the statute that conditions an award “to others” to only those “others having standing,” as plaintiff argues. Rather, the statute’s sole limitation is that the award be in the child’s best interests, after weighing the parental presumption, applicable burdens of proof, and the statutory best interests factors.
Further, we cannot agree with plaintiffs argument that the Legislature must have intended the “to others” provision to mean “others with standing” because interpreting the language to include all “others” would abrogate the standing requirements of MCL 722.26c. To adopt plaintiffs interpretation is to engage in judicial construction, which is neither necessary nor permitted when, as in this case, a statute is plain and unambiguous. Taylor, supra at 94. Moreover, there is no merit to plaintiffs contention that the standing requirements of MCL 722.26c will be abrogated if trial courts are permitted to award custody “to others” for the child’s best interests. As we have discussed, if a third party lacks standing, he or she cannot become a party to a custody dispute. Bowie, supra at 48-49. It is a threshold requirement of MCL 722.27(1) that a custody dispute be properly initiated before the trial court can make any award. A third party without standing cannot initiate that dispute. However, once a custody dispute has been properly initiated, it is within the court’s authority to award custody of the child to a third party pursuant to MCL 722.27(l)(a) if it is appropriate to do so under the particular facts of the case. The trial court was not inaccurate in its statement that it had authority to award the child at issue “to others” pursuant to MCL 722.27(l)(a) after a best interests evidentiary hearing.
VI. CONSTITUTIONAL CLAIM
Lastly, plaintiff characterizes the trial court’s determination as an egregious violation of her constitutional rights because the decision effectively allows “any person” at “any time” to obtain custody of a child, contrary to Troxel, supra at 65. We disagree. Plaintiffs characterization of the trial court’s determination is inaccurate. The trial court did not allow Lisa to petition for custody of the minor child or to intervene in the paternity action because, in fact, the trial court ruled that Lisa lacked standing. Thus, the trial court’s decision cannot be construed as permitting “any person” to seek, “at any time,” custody of a child.
Rather, the trial court in this matter recognized the parental deference that is due under due process standards, Heltzel, supra, and properly indicated that this parental preference is afforded only to fit parents, Mason, supra. The trial court further indicated that the presumption in favor of maintaining an established custodial environment would apply if plaintiff is found to be currently unfit. Mason, supra. These recognized burdens of proof adequately protect plaintiffs fundamental right and liberty interests, particularly in light of the consideration of the child’s best interests, safety, and welfare. Therefore, we conclude that the trial court did not deny plaintiffs constitutional right to the care, custody, and control of the minor child.
Having found that the trial court did not commit clear legal error or abuse its discretion, we affirm the trial court’s interim custody order permitting the minor child to remain in the established custodial environment of Lisa’s home pending the best interests hearing. MCL 722.28; Berger, supra at 705.
Affirmed and remanded for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.
Although the trial court’s docket entries indicate that an order was entered on September 15, 2006, it appears from the record that the matter was adjourned to October 10, 2006.
In 2006, HelpSource was a private nonprofit agency offering a variety of services, including, but not limited to, supervised parenting time and assistance with substance abuse.
Plaintiff sought leave to appeal the trial court’s November 20, 2007, determination on plaintiffs motion for rehearing, which this Court denied. Kane v Anjoski, unpublished order of the Court of Appeals, entered December 7, 2007 (Docket No. 282246).
We also note that a party moving to intervene in litigation, as Lisa did here, must demonstrate that the party has standing to assert his or her claims. Karrip v Cannon Twp, 115 Mich App 726, 732; 321 NW2d 690 (1982). Because Lisa did not have standing, the trial court properly denied Lisa’s motion to intervene.
Although our conclusion is in agreement with plaintiffs position, we must note that we agree with plaintiff only to the extent that a third party does not have standing to create a custody dispute, or to intervene, in the absence of satisfying either of the statutory standing requirements. We disagree with plaintiffs contention that the trial court abused its discretion by allowing a third party without standing to “create a custody dispute.” This assertion is factually inaccurate. Our review of the record shows that the trial court did not permit a third party without standing to petition for custody because it explicitly concluded that Lisa lacked standing. To the contrary, this matter was initiated on plaintiffs own petition. For this same reason, we find no merit in plaintiffs related argument that the trial court’s allegedly improper course of action is tantamount to terminating plaintiffs parental rights. Assuming, for the sake of argument, that the trial court does award Lisa custody following any further hearings, plaintiffs parental rights will not be terminated and plaintiff may move for another change of custody.
We are bound to apply the holding in Mason, supra, pursuant to MCR 7.215(J)(1), even though we recognize that it appears to conflict with the plain language of MCL 722.27(l)(c): “The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.”
We can envision circumstances in which a child, because of the actions of an individual parent, is under the jurisdiction of the juvenile court. MCL 712A.2 et seq.
While the circuit courts of this state have continuing jurisdiction over child custody disputes, Harvey v Harvey, 470 Mich 186, 192; 680 NW2d 835 (2004), there will generally no longer be any case or controversy to resolve after the death of a custodial parent. In that event, the circuit court’s exercise of its continuing jurisdiction over the child would merely involve dissolving the order awarding custody and returning the child to the surviving parent, including taking any necessary steps to provide for the orderly transition of the child to the care and custody of the surviving parent.
We stress that these factors are to he considered only in the context of determining a parent’s fitness and are not to be weighed in comparison to the competing custodian. | [
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T. M. Kavanagh, J.
Plaintiff brought an action, labeled in the printed form of the summons as trespass on the case, in the Muskegon municipal court to recover from defendant Blair the balance on a $500 indebtedness. At the same time plaintiff instituted another suit to recover against defendant Barnes. The only difference between the two cases was the amount of advanced cash involved.
On November 12, 1959, plaintiff Seaboard loaned $500 to Blair, taking his promissory note therefor. On July 15, 1960, while current in his payments, Blair applied for and received an extension of credit on the balance due on the original obligation and additional cash in the amount of $120.59. The original note was cancelled and a new note representing Blair’s total indebtedness was executed in the amount of $500. Blair provided plaintiff with a financial statement to induce it to extend the original obligation and to lend him the additional money. It is admitted the statement was materially false and that plaintiff relied on it.
Subsequently, Blair filed in bankruptcy and sought the discharge of all his obligations to plaintiff. He received a discharge from his provable and dis-chargeable debts.
Blair claims that while he owes the $120.59, representing the new money, the remainder of his liability on the note was discharged in bankruptcy. Plaintiff claims that the entire debt is nondischargeable and that Blair’s liability is for $472.81.
In the companion case of Barnes, the only difference is that the original loan of $500 was made on May 9, 1958, and the second note — representing an extension of credit and an advance of cash — -was executed on September 6, 1960. The advance of cash here was in the amount of $85.52 and was given pursuant to a false financial statement.
The Muskegon municipal court found that “the false and fraudulent financial statement should he applied only to the additional compensation which was obtained concurrent with the false statement.” Judgments were rendered accordingly.
Plaintiff appealed both cases to the Muskegon circuit court. The circuit judge held that the first debt, being a legitimate loan, was dischargeable in bankruptcy hut that the additional money obtained by fraud was not dischargeable. The circuit judge rendered identical judgments in both cases, except as to the amounts thereof.
Plaintiff sought to appeal both judgments. Leave was granted by the Supreme Court December 23, 1964, for preparation and presentation to the Court of Appeals. The cases were consolidated in the Court of Appeals, which Court characterized the dispute as “an action for fraud” and found that the correct measure of damages was the moneys advanced at the time the false financial statements were made by defendants. The circuit court’s judgments were affirmed. The Court .of Appeals said (2 Mich App 5, 7):
“These are not cases where the plaintiff brought suits oh promissory notes and the defendants pleaded bankruptcy as a defense, and this Court does not interpret the bankruptcy act or amendments thereto.
“The plaintiff sued in pleas of trespass on the case for the balances due on loans obtained by false financial statements.” (Emphasis supplied.)
The Court of Appeals then proceeded to apply the rule of damages applicable in cases of fraud, saying (pp 7, 8):
“In an action for fraud the burden of proof is upon the party who alleges fraud. It is incumbent upon the party to prove that he has suffered a loss directly from, and as a clear consequence of, the fraud. As stated in Findlater v. Dorland (1908), 152 Mich 301, 308: ‘ “ ‘The damage to be recovered must always be the natural and proximate consequence of the act complained of.’ ” ’
“The trial judge correctly held that the damages to the plaintiff were the moneys advanced at the time the false financial statements were made by the defendants. Judgments affirmed.”
Plaintiff is here on leave granted.
Two questions are raised on appeal:
(1) Was the nature of the action ex contractu or ex delicto?
(2) Does the 1960 “Celler amendment” to the Federal bankruptcy act [11 TJSCA, § 35(a) (2)] deny a discharge of the whole amount of the note as an extension or renewal of credit plus advanced “new cash”?
In dealing with the first question, we find that counsel for the parties entered into stipulations of fact in each case dated July 22, 1963. The stipulations can only be read to mean an action in assumpsit and show plainly that defendants understood the plaintiff to be suing in assumpsit. The trial judge in the circuit court signed a concise statement of facts which stated the issue, as tried-to him, to be as follows;
“The question involved:
“ ‘Where an existing current note is extinguished by a renewal note extension with new money advanced, obtained by a materially false statement relied on by the lender, followed by the borrower’s bankruptcy, is recovery limited to only the new money advanced, or is the full balance of the extended obligation nondischargeable V ”
The issue was stated in similar form when tried in the Muskegon municipal court.
The Court of Appeals construed the isolated phrase “trespass on the case” in the summons as determining the form of action in these cases to be in fraud and not assumpsit.
41 Am Jur, Pleading, § 395, p 564, reads as follows:
“When a case is submitted to the court on a report of evidence or on an agreed statement of facts, technical questions of pleading will be considered as having been waived, unless the contrary appears.”
The forms of action formerly existing in Michigan procedure were abolished by GrCR 1963, 110.3. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 178, has this to say on forms of action:
“The ordinary forms of action (assumpsit, trespass on the case, replevin, and ejectment) have been generally disregarded by Michigan courts. Emphasis is placed upon the presentation of facts which state a cause of action, and upon giving reasonable notice of the nature of the cause pleaded, rather than on pleading the claim to fit one of the forms of action.”
It is evident in the instant cases, by virtue of the bill of particulars and the stipulations of facts signed by counsel for the parties, that the defendants were fully aware of the nature of plaintiff’s claim. So was the circuit judge when he stated precisely the question involved. The bill of particulars is plainly based on a claim eoo contractu in assumpsit and seeks the recovery of money loaned and unpaid.
These cases were tried on the merits under stipulations of facts. No objection to the form of action was made.
“The case was apparently tried on its merits, and no objection to the form of action is shown to have been made. Recovery can be had for a tort under the common counts in assumpsit, and if no objection is made to the form of action until after all the evidence has been introduced it will not prevail. Boston & W. R. Co. v. Dana, 1 Gray (67 Mass) 83.” McDonald v. Young (1917), 198 Mich 620, 628.
The Court of Appeals was clearly in error in disregarding the claimed breach of contract set forth in the bill of particulars and the contract theory on which the cases were tried, as set forth in the stipulations of facts signed by counsel as well as the concise statement of facts and the precise question involved signed by the trial judge.
The second question is much more difficult. Prior to 1960 a minority of the State courts, including Wisconsin, Louisiana, and Washington, limited the creditor to judgment for the amount of new cash advanced.
A majority of courts took the view that where there has been a prior existing obligation and a new loan was negotiated for an additional amount, the giving of a false financial statement at the time of the new loan permitted the creditor to recover the entire indebtedness.
The 1960 “Celler amendment” of section 17(a) (2) of the bankruptcy act, 11 USCA, §35 (a)(2), must-be read in conjunction with section 14(c)(3) of the bankruptcy act, 11 USCA, § 32(e)(3), which was amended at the same time as section 17 (a) (2). The amendment of both sections demonstrates that it was the intent of congress to limit the false financial statement as a ground for the complete denial of a discharge in bankruptcy, while making it clear that debts incurred by means of such statements would not be discharged in bankruptcy. Prior to its amendment section 14(c)(3) read as follows:
“Discharges, when granted * * *
“(c) The court shall grant the discharge unless satisfied that the bankrupt has * * * (3) obtained money or property on credit, or obtained an extension or renewal of credit, by making or publishing or causing to be made or published in any manner whatsoever, a materially false statement in writing respecting his financial condition.”
As amended on July 12, 1960, section 14(c)(3) now reads as follows:
“Discharges, when granted * * *
“(c) The court shall grant the discharge unless satisfied that the bankrupt has * * * (3) while engaged in business as a sole proprietor, partnership, or as an executive of a corporation, obtained for such business money or property on credit or as an extension or renewal of credit by making or publishing or causing to be made or published in any manner whatsoever a materially false statement in writing respecting his financial condition or the financial condition of such partnership or corporation.”
Prior to its amendment section 17(a) (2) read as follows:
“Debts not affected by a discharge
“(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts * * * except such as * * * (2) are liabilities for obtaining money or property by false pretenses or false representations.”
After the 1960 amendment section 17(a) (2) read:
“Debts not affected by a discharge
“(a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts * * * except such as * * * (2) are liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially- false statement in writing respecting his financial conditión made or published or caused to be made or published in any manner whatsoever with intent to deceive.” (Amendment italicized.)
The legislative history of these sections supports the view that it was the will of congress to extend the scope of the exception where a materially false statement in writing was made. See Senate Report No 1688, 86th Congress (2d Sess), June 24, 1960, reported in 2 DSC, Congressional and Administrative News (1960), p 2954; see also 1 Collier, Bankruptcy (14th ed, 1961), p 1577.
We conclude, in view of the amendment of the bankruptcy act, the exception in the act has been extended to deny a discharge of the whole amount of the renewed or extended obligation. The defendants’ reliance on the bankruptcy discharge is without merit.
Since the adoption of the amendment to the bankruptcy act, the Wisconsin, Louisiana, and Washington supreme courts, following the above reasoning, have joined the majority. See Liberal Finance Corporation v. Holley (La, 1963), 157 S2d 376; First Credit Corporation v. Wellnitz (1963), 21 Wis 2d 18 (123 NW2d 519); Federal Finance Co., Inc., v. Merkel (1964), 65 Wash 2d 379 (397 P2d 436).
The judgments of the Court of Appeals are reversed and the cases remanded for entry of judgments in the lower court for the entire amount of the new notes. Plaintiff shall have costs.
Dethmers, C. J., and Kelly, Black, T. M. Kavanagh, Souris, O’Hara, and Adams, JJ., concurred.
Brennan, J., took no part in the decision of this case.
Stipulation of facts, paragraph 2: “Defendant applied for and received from plaintiff an extension of credit and an advance of cash in the amount of $120.59.” | [
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Sharpe, J.
This is a bill of interpleader filed by the city of St. Johns to determine the ownership of the sum of $1,400 which represents the balance owing by the city for the construction of a municipal building.
It appears that on December 10, 1938, the city of St. Johns advertised for sealed bids for the construction of a municipal building, and for the plumbing, heating and electric wiring thereof. Hudson- Howe, Inc., was the successful bidder and entered into a contract with the city for the construction of the building. The defendant R. E. Leggette, doing business as Acoustical & Specialties Contracting Company, entered into a contract as subcontractor for the performance of certain work and services in and about the construction of the building. The specifications for the building provided:
■ “24. Owner’s right to withhold certain amounts and make application thereof. In addition to the payment to be retained by the owner under the preceding provisions of these general conditions the owner may withhold a sufficient amount of any payment otherwise due to the contractor to cover (a) payments that may be past due and payable for just claims for labor or materials furnished in and about the performance of the work on the project under this contract, (b) for defective work not remedied, and (c) for failure of the contractor to make proper payments to his subcontractor. The owner shall disburse and shall have the right to act as agent for the contractor in disbursing such funds as have been withheld pursuant to this paragraph to the party or parties who are entitled to payment therefrom. The owner shall render to the contractor a proper accounting of all such funds disbursed in behalf of the contractor.”
The statutory labor and material bond was executed in which Robert Hudson and J. H. Howe, doing business as Hudson and Howe, were principals, Michigan Surety Company was surety, and the people of the State of Michigan were obligees. The same principal and surety company also executed a performance bond.
R. E. Leggette entered into a written contract with Hudson-Howe to furnish and install certain acousti celotex for the building, in accordance with the plans and specifications, for the sum of $1,400. The work required by this contract was completed on December 6, 1939, and there is no dispute as to the character of the work done.
After work had commenced on the building the principal contractor experienced difficulties in meeting its financial obligations, and Robert Hudson, one of the partners of Hudson-Howe, borrowed the sum of $10,000 from the Owosso Savings Bank, which loan was secured by a bond executed by the Michigan Surety Company. On October 23, 1939, Robert Hudson and J. H. Howe assigned all their right, title and interest in and to certain moneys to become due to them by virtue of the construction contracts to Robert Hudson and Michigan Surety Company. The contract for the construction of the building was completed. The surety company paid all of the laborers, materialmen and subcontractors on the various jobs covered by the assignment except R. E. Leggette. It is admitted that the amount due R. E. Leggette under his contract is the sum of $1,400.
The trial court found that the Michigan Surety Company and Robert Hudson undertook and did complete the principal contract and that the assignment constituted a novation, and entered an order directing that the money be paid to the surety company. R. E. Leggette appeals. The surety company did not file a cross appeal. It is admitted that R. E. Leggette did not file the proper notice under the statutory bond and therefore is not entitled to recover under the bond. Appellant contends that by virtue of article 27 of the specifications,—
“Assignment of contract. The contractor shall not assign this contract or any part hereof without the written consent of the owner. No assignment of this contract shall be valid unless it shall contain a provision that the funds to he paid to the assignee under the assignment are subject to a prior lien for services rendered or materials supplied for the performance of the work called for in said contracts in favor of all persons, firms, or corporations rendering such services or supplying such materials.”
and article 24, hereinbefore quoted, he is entitled to the unpaid money held by the city of .St. Johns.
The Michigan Surety Company contends that appellant, as a subcontractor, can only look to the principal contractor, or the surety on its bond, for recovery of the amount earned on his contract. It is also urged by the surety company, and the trial court found as a fact, that the specifications, of which article 24 is a part, were never introduced in evidence. In view of the fact that the determination of whether the specifications were introduced in evidence is important to the rights' of the claimants of the fund, we have carefully examined the record and find that the court admitted in evidence all exhibits from 1 to II. Exhibit 2 was the specifications. The record is clear that the specifications were introduced in evidence.
An examination of article 24 discloses that the city reserved the right to withhold money otherwise due the contractor for the payment of labor and materials. Under its provisions the city had the right to withhold such funds and disburse the same to parties entitled to payment from the principal contractor. The provision was designed as additional protection to the subcontractor.
Under article 27, relating to assignment, it is to be noted that the funds to be paid to the assignee are subject to a prior lien for services rendered or materials supplied.
In our opinion defendant R. E. Leggette is entitled to the sum of $1,400 by virtue of articles 24 and 27. The trial court was in error in awarding the sum to Michigan Surety Company.
The decree is reversed, and a decree will he entered awarding said sum to R. E. Leggette. Appellant may recover costs against the Michigan Surety Company,
North, C. J., and Starr, Wiest, Butzel, Bush-hell, Boyles, and Reid, JJ., concurred.
See 8 Comp. Laws 1929, § 13132 et seq. (Stat. Ann. § 26.321 et s<tq.).—Reporter. | [
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Kelly, J.
Defendant appeals from a jury conviction of carrying a concealed weapon and asserts as error the failure of the.trial court to grant his motion to suppress evidence.
Two points are argued: First, that probable cause was not established to support the search without a warrant, of defendant’s person; and, second, that article 1, § 11, of the 1963 Michigan- Constitution (article 2, § 10, 1908 Constitution), violated the Fourteenth Amendment to the United States Constitution as interpreted by the case of Mapp v. Ohio, 367 US 643 (81 S Ct 1684, 6 L ed 2d, 1081, 84 ALR2d 933.)
The only witness at the examination (December 6, 1963), which resulted in defendant Blessing being bound over for trial, was Detroit police officer Charles McNamara.
He testified that on November 23, 1963, about 1 p.m., he, while in uniform in a scout car, heard the radio call which resulted in his car and three other scout cars proceeding to the retail jewelry store located at 19376 Livernois avenue, Detroit, Michigan; that the manager, a saleslady, and two white males were in the store; that after talking to the manager and the saleslady he talked “to the two men out there and questioned them as to their business in the store there.” McNamara further testified:
“I asked Bichard Charles Blessing to identify himself to me, and as to what his purpose was as to being in that location there, and he stated to me that he was there in regards to making a purchase of some jewelry, and that he had made an appointment with the manager, Herbert Kay, to come back at 4:30 that day, to make a purchase. * * * I asked Mr. Martin for his identification, and he did not produce any identification, and he told me he was Father John Moore and that he was, — or rather, I asked him where they were located, and Bichard Blessing stated at that time that they had just gotten into town, and they had no address here at this time. * * * I went to talk to Blessing, and I wanted to take him in the back room and try and figure out their story, and as we walked back there I 'informed him that I was going to search him, and' upon searching him I found a pair of handcuffs, as well as a loaded .38 revolver on his hip.”
The court refused defendant’s objection to the introduction in evidence of the revolver the police officer testified he found concealed on defendant Blessing’s person, stating that he disagreed with counsel that Mapp v. Ohio, supra, invalidated the Michigan Constitution in re search and seizure.
Motion to suppress evidence and quash information was duly made by counsel for appellant, heard before the presiding judge for the recorder’s court for the city of Detroit, and denied.
At the March 19, 1964, trial, in addition to officer McNamara, the people introduced the testimony of three police officers and Mr. Kay, the manager of the jewelry store. Mr. Kay testified why the behavior of appellant Blessing and his companion Martin, on the sidewalk before entering the jewelry store caused him to call for help by pressing the alarm button and how their actions after entering the store confirmed his suspicions. The police officers’ testimony established that after Blessing was searched, a search of Martin was also made which disclosed that he had on his person a loaded .38 caliber revolver.
■ At the conclusion of the people’s case, counsel for appellant again moved to suppress the evidence.' The trial court indicated that the officers had a right to make the search, and denied said motion.
Because of extensive questioning by this Court during oral argument, the assistant prosecuting attorney of Wayne county asked for, and was granted, the right to file a supplemental brief."'We quote from that brief as follows:
“The appellee herein is not, nor has he been unfamiliar with the Michigan practice of requiring pretrial motions to test the legality of a search and seizure. People v. Marxhausen, 204 Mich 559 (3 ALR 1505); People v. Miller, 217 Mich 635; People v. Bass, 235 Mich 588; People v. Heibel, 305 Mich 710; People v. Taylor, 341 Mich 570; People v. Robinson, 344 Mich 353; People v. Ferguson, 376 Mich 90.
“Furthermore, the appellee admits knowledge of the companion rule that the facts upon which' a pretrial motion is to be determined are the preliminary examination testimony and that these facts may not be amplified by the trial testimony for purpose of the appeal. People v. Taylor, supra; People v. Zeigler, 358 Mich 355; People v. Williams, 368 Mich 494. * * *
“The position of the appellee is that the trial court could have refused to hear argument by defense counsel on the issue of search and seizure for the reason that the matter had already been decided by pretrial motion and that the issue of the legality of the search and seizure was collateral to the main issue of the guilt or innocence of the defendant on trial.
“The appellee further states that it is his opinion that the trial court should not have granted a second hearing on the motion to suppress and that to deny such a motion would be in line with better Michigan practice in that a defendant is not legally entitled to a second hearing on the legality or illegality of a search and seizure. People v. Kerwin, 234 Mich 686; People v. Kramer, 260 Mich 94.
“However, the trial court, in its discretion, permitted the issue to be renewed by defense counsel, and at their urging, heard arguments outside the presence of the jury, and then rendered its decision denying the renewed motion to suppress. By following this course of action, the trial court gave the defendants a second chance to urge the illegality of the search and seizure. Upon a full and fair hearing, it was determined that the defense counsel’s motion be denied. Does this decision of the trial court render the renewal of the issue of the legality of the search nugatory and so much idle waste of judicial time? We think not. It is the position of the appellee that the people of the State of Michigan, having twice been put to the task to defend the search and the seizure, in all fairness should also be the recipients of any benefit conferred by reason of the second argument and not be limited or bound by the second argument only if the people should lose same. Therefore, the position of the appellee has been based primarily on the apparent fairness of this latter premise.
“In legal support of this premise we would direct the Court’s attention to the following Michigan precedents.”
I believe it will assist the courts and the law enforcement officers if this decision is confined to answering two questions:
Question No. 1: Was sufficient evidence introduced at the preliminary examination justifying the court’s denial of defendant’s motion to suppress evidence and binding defendant Blessing over for trial?
Question No. 2: Did the judge at the preliminary examination rightly conclude that he had the right and duty to follow and enforce the constitutional provisions in re search and seizure?
Question No. 1.
In determining the legality of a search and seizure, this Court should give serious thought to the particular situation and all its attendant circumstances.
As Officer McNamara turned his scout car toward the jewelry store, knowing that three other scout cars had been directed by radio to converge on this store, he had reason to conclude that he was approaching a point of great danger.
It is my opinion that the police officers would have been justified under these circumstances to have immediately taken the necessary steps to assure themselves that those within the jewelry store were not carrying concealed weapons.
In addition, however, police officer McNamara, trying to learn who these people were and obtain their explanation of their actions that caused the manager to push the alarm button, received from appellant Blessing the answer that they had come from Illinois to that jewelry store to buy a diamond and “had just gotten into town, and they had no address here at this time.”
I quote with approval the following from the people’s brief:
“The earlier recitation in this section of the brief of the facts, possessed by the police officers at the time of arrest, certainly demonstrates the officers acted with reasonable prudence and caution and had good reason to believe that these men were committing a felony. It is respectfully submitted that if the police officers had charged into the jewelry store, the result of an official police broadcast and had seen nothing ostensibly wrong and walked rig’ht out without further investigation, they indeed would have been derelict in their duty and subject to severe censure by their superiors. The police, under the facts in the present case, acted reasonably and the trial court’s determination that they did in fact so act cannot be realistically subject to doubt.”
Officer McNamara did not have to have legal evidence that appellant entered the jewelry store to commit robbery and, if necessary, murder, but only sufficient facts for a reasonably discreet and prudent man to conclude such was true, as is disclosed by Husty v. United States, 282 US 694 (51 S Ct 240, 75 L ed 629, 74 ALR, 1407), where the court held:
“To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected act. It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched.” (Syllabus 2.)
The court conducting the examination had sufficient evidence to deny the motion to suppress and to bind the defendant over for trial.
Question No. 2.
Appellant contends that the provisions of article 2, § 10, of the 1908 Michigan Constitution which provides, “That the provisions of this section shall not be construed to bar from evidence in any court of criminal jurisdiction, or in any criminal proceeding-held before any magistrate or justice of the peace, any narcotic drug or drugs, any firearm, rifle, pistol, revolver, automatic pistol, machine gun, bomb, bombshell, explosive, blackjack, slungshot, billy, metallic knuckles, gas-ejecting device, or any other dangerous weapon or thing, seized by any peace officer outside the curtilage of any dwelling house in this State,” has been invalidated by the United States Supreme Court decision in Mapp v. Ohio, supra.
The facts in the Mapp Case are so different than the facts in the present appeal. Justice Clark, in the Mapp Case, labeled the search as “official lawlessness” and “a flagrant abuse” of basic rights, and described the forcible entry and search as follows (pp 644, 645) :
“On May 23, 1957, 3 Cleveland police officers arrived at appellant’s residence in that city pursuant to information that ‘a person [was] hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a larg-e amount of policy paraphernalia being-hidden in the home.’ Miss Mapp and her daughter by a former marriage lived on the top floor of tbe 2-family dwelling. * * *
“Running roughshod over appellant, a policeman ‘grabbed’ her, ‘twisted [her] hand,’ and she ‘yelled [and] pleaded with him’ because ‘it was hurting.’ Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child’s bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search.
“At the tidal no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for.”
The Cleveland police forced their way into the Mapp home. The Detroit police entered the jewelry store in response to the manager’s call for help.
The people in their brief urge “this Court to affirm the reasonable exercise of the police power of this State, found in article 1, § 11, of the 1963 Michigan Constitution and hold same not to be repugnant and in violation of the United States Constitution by reason of the holding in Mapp v. Ohio, supra,” and review Michigan’s dealing with search and seizure as follows:
“The decision in Mapp made it incumbent upon the several States to adopt the exclusionary rule of evidence as part and parcel of the Fourth Amendment’s prohibitions against unreasonable searches and seizures. It specifically reversed a prior decision of that court in the case of Wolf v. Colorado, 338 US 25 (69 S Ct 1359, 93 L ed 1782). However, Michigan was not one. of the target States at which this''constitutional arrow was pointed. In 1919 the highest court in Michigan, just five years after the Federal courts' adopted the exclusionary rule of evidence in Federal trials, became the first State in the Union to follow the Federal courts’ lead and voluntarily imposed on itself an exclusionary rule of evidence. This same exclusionary rule, as first expounded in the case of People v. Marxhausen, 204 Mich 559, is still the rule in the State of Michigan to this day. In the interim period of time from the adoption of this rule to 1936, there reigned in Detroit a seige of lawlessness and terror vented upon the public. * * * As the result of these crimes and' the advent of the automobile, the people of the State of Michigan in 1936 voted and passed a constitutional amendment adding a proviso to then article 2, § 10, of the 1908 Constitution dealing with unreasonable searches and seizures:
“ ‘Provided however that the provisions of this section shall not be construed to bar from evidence in any court of criminal jurisdiction or in any criminal proceeding held before any magistrate or justice of the peace any firearm, rifle, pistol, revolver, automatic pistol, machine gun, bomb, bombshell, explosive, blackjack, slungshot, billy, metallic knuckles, gas-ejecting device, or any other dangerous weapon or thing seized by any peace officer outside the curtilage of any dwelling house in this State.’
“In 1952 the State legislature proposed and the people voted and ratified another amendment to the constitutional provision, dealing with the reprehensible traffic in narcotics with the words ‘any narcotic drug or drugs.’ Eleven years later in 1963, they again, through duly elected delegates of the State of Michigan, reaffirmed its earlier provisions by inserting into their new Constitution substantially the same public protection previously found necessary.
“The people, who are the ultimate source of sovereignty, have reasonably expressed their will on three separate occasions. The purpose of this proviso is to protect the safety of the public, a proper aim of the police ■ power.”
Emphasizing that Mapp did not usurp State rights in re search and seizure, the people call to this Court’s attention the first case considering Mapp in the United States Supreme Court where, in affirming convictions for possession of marijuana, the court stated:
“Mapp, however, established no assumption by this court of supervisory authority over State courts * * * and, consequently, it implied no total obliteration of State laws relating to ¿rrests and searches in favor of Federal law. Mapp■ sounded no death knell for our federalism. * * * The States are not thereby precluded from, developing workable rules governing arrests, searches and seizures to meet The practical demands of effective criminal investigation and law enforcement.’ ”
Appellant attempts to discount the Ker decision by stating that the opinion was not adopted by a unanimous court and calls attention that, “In the cases of Stoner v. California, 376 US 483 (84 S Ct 889, 11 L ed 2d 856), and Preston v. United States, 376 US 364 (84 S Ct 881, 11 L ed 2d 777), both decided after Ker, the United States Supreme Court reversed convictions obtained after searches by State officers acting without warrants.”
The Preston v. United States decision condemned a search as “being too remote in time or place to be treated as incidental to the arrest,” and did not even refer to the Ker decision.
The Stoner v. California decision condemned a search of defendant’s hotel room without a warrant because it was not “substantially contemporaneous and confined to the immediate vicinity of arrest.” The only reference to Ker is found in the footnote on pages 486 and 487, which reads:
“ ‘The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 US 132, 158 (45 S Ct 280, 69 L ed 543, 39 ALR 790); Weeks v. United States, 232 US 383, 392 (34 S Ct 341, 58 L ed 652, LRA1915B, 834, Ann Cas 1915C 1177). * * * But the right does not extend to other places.’ Agnello v. United States, 269 US 20, at 30 (46 S Ct 4, 70 L ed 145, 51 ALR 409). See, also, Ker v. California, 374 US 23, 42, n 13; Lustig v. United States, 338 US 74, 79, 80 (69 S Ct 1372, 93 L ed 1819).”
Neither Mapp nor Ker held that the States must be governed by fixed formulas following Federal evidentiary rules. In fact, the State of Michigan, which appellant claims is illegally ruthless in its method to combat crimes, has protected the accused beyond those rules provided by Federal procedures at Federal trials. Michigan requires the holding of a preliminary examination with rights of confrontation and cross-examination. The Federal code of criminal procedure does not provide such a safeguard. In Michigan we must not only advise the accused of the charges made against him, but also, the names of the witnesses the State will call to prove those charges. Under the Federal system the accused does not learn the identity of the witnesses against him until those witnesses are called to the stand in open court when the trial'is in pr.qg-; ress. GCR 1963, 785.5, commands the prosecuting attorney to give written notice to the defendant at the time of his arraignment on the information, of any confession or admission made hy him to the police. These examples are hut a few of the differences in procedure between the courts of Michigan and the Federal courts.
The same charges appellant makes in this appeal as to the effect of Mapp v. Ohio upon the validity of our Michigan Constitution was made by appellant in In re Winkle, 372 Mich 292, certiorari denied 379 US 645 (85 S Ct 611, 13 L ed 2d 551). The writer of this opinion answered appellant’s challenge in Winkle by holding that the Mapp v. Ohio decision did not render the provisions found in article 2, § 10, of the 1908 Constitution invalid.
I answer the present appellant as I did the appellant in Winkle and refer to and incorporate as a part of this opinion what I wrote in Winkle. I again repeat (pp 324, 325):
“The Michigan proviso does not condone illegal search. It was an expression by the people of this State to the citizenry that if they have in their possession, outside the curtilage of their dwelling, drugs, firearms, or dangerous weapons, or things, said possessor would not have the right to question the legality of the search as a defense to illegal possession.”
Affirmed.
O’Hara, J., concurred with Kelly, J.
CL 1948, § 750,227 (Stat Ann 1962 Eev § 28.424).—Eeportek.
People v. Cardella, 233 Mich 505; People v. Feltner, 234 Mich 209; People v. Nutter, 255 Mich 207; People v. Lee, 371 Mich 563.
People v. Licavoli, 245 Mich 202; People v. Miller, 245 Mich 115; People v. Lewis, 269 Mich 382; People v. Gonzales, 356 Mich 247; People v. Kuntze, 371 Mich 419; Brinegar v. United States, 338 US 160 (69 S Ct 1302, 93 L ed 1879); Ker v. California, 374 US 23 (83 S Ct 1623, 10 L ed 2d 726).
Ker v. California, 374 US 23, 31, 34 (83 S Ct 1623, 10 L ed 2d 726). | [
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Smith, J.
Leave was granted from a decision of the Court of Appeals which decision is fully reported in 1 Mich App 414. The facts are stated in that report and need not be repeated in full. It is sufficient .to' note that plaintiff filed articles of incorporation December 22, 1959, with authorized capital stock of 50,000 shares having a par value of $1Q per share. In its annual report filed with the com mission on or about May 15, 1960, plaintiff listed assets as of the tax date, December 31, 1959, consisting solely of stock subscriptions receivable in the amount of $350,000 (35,000 shares at $10 per share). A corresponding entry was made on the liability side of the report showing $350,000 for capital stock subscribed. The stock was paid up on or about February 1, 1960. The question is (as it was in the Court of Appeals) whether stock subscribed for but not paid up may be considered paid-up capital or surplus and thus subject to the annual corporate privilege tax under CL 1948, § 450.304, as amended by PA 1959, No 276 (see Stat Ann 1959 Cum Supp § 21.205), which reads, in pertinent part, as follows:
“Every * * * profit organization organized or doing business under the laws of this state, * * * shall pay, at the time of filing the annual report with the Michigan corporation and securities commission * * * an annual fee of 5 mills upon each dollar of its paid-up capital and surplus, but such franchise fee shall in no case be less than $10.00.” (Emphasis supplied.)
We affirm the decision of the Court of -Appeals insofar as it holds that stock subscribed for but not paid up is neither paid-up capital nor surplus within the meaning of the cited statute, under circumstances presented by such a skimpy record.
The statute does not, by reasonable construction, cover this situation, where the partners in a partnership are in a transitional phase at tax time, the, articles of incorporation having been filed and stock subscribed for by the partners-incorporators, and the partnership assets not having been transferred from the partnership to the corporation (in satisfaction of the partners-incorporators stock subscriptions). No violence should be done to the well- settled meanings of “paid-up capital” and “surplus” by heavy-banded judicial construction; this is a matter which must await legislative clarification.
What is more, in doubtful cases, revenue statutes must be construed against the taxing authority. Consumers Power Company v. Corporation and Securities Commission, 326 Mich 643 (16 ALR2d 1084).
Affirmed. No costs, a public question being involved.
T. M. Kavanagh, C. J., and Dethmers, Kelly, Souris, O’Hara, and Adams, JJ., concurred with Smith, J.
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Edward M. Sharpe, J.
Plaintiff is the beneficiary of a policy in defendant insurance company on the life of her husband, Carl H. F. Fischer, who on August 12, 1928, insured with defendant company and received therefrom an insurance policy known as a “term policy.” This policy, on August 5, 1931, was converted into an ordinary life policy with an annual premium due and payable on August 12th. In addition to this policy, Mr. Fischer carried two term policies with defendant company on which premiums were also payable on August 12th. Each of these policies contained a clause providing a 31-day period of grace for the payment of premiums.
Mr. Fischer became ill about July 8, 1932, with pleurisy and pneumonia. For some time prior thereto he had been suffering from a rheumatic heart. On August 10, 1932, Mr. Fischer wrote to the Detroit agent of the defendant company the following letter in his own hand:
“Aug. 10/1932.
“Milton L. Woodward, Gen. Agt.,
“Union Guardian Bldg.
“Detroit, Mich.
‘ ‘ Gentlemen:
‘ ‘ This is to notify you that I desire to cancel policy No. 2098921 in the Northwestern Mutual Life Insurance due Aug. 12, 1932. The policy is a straight life, sum $23,000. There is a dividend of $231.38 on this policy due Aug. 12th. Kindly credit my account with this amount and use same to pay other premiums due Aug. 12, 1932. Whatever cash surrender value there is to the policy in question, please put same to my credit.
“Very truly yours,
‘ ‘ Carl H: F. Fischer.
“848 Lawrence Ave.
“Detroit, Mich.”
In response to this letter, Mr. Hibbard, an agent of the defendant company, called to see Mr. Fischer and secured a surrender of the policy. During the conversation incidental to the signing of the surrender, Mr. Fischer said to the agent,
“You take care of it for me and get out of it what you can for me, take care of it for me.”
The surrender was forwarded to the home office at Milwaukee, Wisconsin, and was accepted August 13, 1932. Mr. Fischer’s illness continued until his death, which, occurred August 25, 1932. The company applied the cash surrender value of the policy to the payment of premiums on the other two policies and forwarded a check for the balance of $6.32 to the assured. This check was not received until after Mr. Fischer’s death and was then returned to defendant. Plaintiff is now suing oii the $23,000 policy.
It is the claim of the plaintiff that the surrender was obtained by fraud and unfair advantage; that the cancellation was contrary to the instructions of the insured, in that the policy through the 31-day grace period would protect the insured until September 12, 1932; that the surrender was without consideration; and that the surrender was ineffective because it was secured without the consent of plaintiff, the contract having been made in Wisconsin and therefore controlled by the Wisconsin statute. This statute, enacted in 1891, reads as follows (Wisconsin Statutes 1931, § 246.09):
“Any married woman may, in her own name or in the name of a third person as her trustee, with his assent, cause to he insured for her sole use the life of her husband, son or other person for any definite period or for the natural life of such person; and any person, whether her husband or not effecting any insurance on his own life or on the life of another may cause the same to he made payable or assign the policy to a married woman or to any person in trust for her or her benefit; and every such policy, where expressed to he for the benefit of or assigned or made payable to any married woman or any such trustee, shall he the sole and separate property of any such married woman and shall inure to her separate use and benefit and that of her children, and in case of her surviving the period or term of such policy the amount of the insurance and all proceeds and avails therefrom shall he payable to her or her trustee for her own use and benefit, free from control, disposition or claim of her husband and of the person effecting or assigning such insurance and from the claims of their respective representatives and creditors.”
By amendment in 1931, effective July 3, 1931, the following lines were added:
“Whether or not the right to change the beneficiary was reserved or permitted by the terms of the policy. ’ ’
We are not impressed with plaintiff’s claim that the surrender was obtained through fraud and unfair advantage. While it is true that decedent was suffering from a serious heart ailment, yet it did not affect his mental capacities as evidenced by the letter he wrote to the company agent two days before he signed the surrender. This letter is an excellent example of a business letter and absolutely void of anything denoting a mental disturbance. Neither can it be said that Mr. Hibbard, the company agent, took any advantage of decedent’s condition. Mr. Hibbard was invited there by -decedent and before the surrender was signed advised decedent that the premium on the policy could be taken care of by an increased loan. Mrs. Fischer testified that her husband was rational when he signed the surrender and Dr. Price could not classify decedent’s illness as a mental disorder.
We next come to plaintiff’s contention that the surrender should have become effective as of a later date, but not beyond September 12, 1932. This is based upon decedent’s instructions to the company agent when he said, “Take care of it * * * and get out of it what you can for me.” While it is true that decedent could have deferred payment of the premium until September 12th, yet there were no such instructions given to the company agent at the time the surrender was signed. There was no duty upon the part of the agent to tell the assured of the effect of the 31-day grace period. We can assume that neithér party had any idea that a month’s time would have any material effect on the rights of the insured or his beneficiary. Neither the company agent nor the physicians were aware that the assured’s afflictions were to be so imminently fatal. We think that the action of the agent in forwarding the surrender to the home office when he did was a compliance with the insured’s request.
As to whether there is consideration for a surrender prior to the expiration of the period of grace, the recent case of Lipman v. Equitable Life Assurance Society of the United States (C. C. A.), 58 Fed. (2d) 15, is in point. In this case the premium was due October 5th with one month’s grace period. On October 10th insured sent in her policy with instructions to cancel it and pay her the cash surrender value. On October 14th the policy was received by the company and canceled. Somewhat later on the same day the insured was killed in an auto accident. The insured’s husband sued on the policy. It was held that although the terms of the policy gave an option to surrender only “upon default in payment of premiums” there was such default immediately on the due date of the premium and prior to the expiration of the grace period and that the surrender was valid. In the instant case, there being no express limitation whatever as to the time when the cash surrender value might be called for, a fortiori the date of surrender has no bearing on the question of consideration.
Many States, including Michigan, give the insurance company the right to charge interest on a premium during the grace period. This indicates that the premium is due on the date fixed in the policy, and that payment during the grace period is a postponed payment relating back to the date fixed in the policy. While Mr. Fischer might have waited until the end of the grace period before surrender ing.liis policy, it does not follow that he could not have surrendered it when he did. The only privilege Mr. Fischer had was to defer payment -of the premium due August 12th. He did not surrender paid-for insurance but merely the privilege of postponement.
It is urged by the plaintiff that the surrender was ineffective because it was secured without the consent of plaintiff. The policy reserved the right to change the beneficiary and also contained the following clause:
“Upon receipt of this policy and a full and valid surrender of all claims hereunder, without the consent or participation of any beneficiary not irrevocably designated or any contingent beneficiary, the company will pay its then cash surrender value.”
Unmistakably the intent and purpose of this provision was to reserve to the insured the right to surrender the policy without the consent of the beneficiary. In our opinion that purpose has been aptly expressed.
It is not contended that there is any public policy or statute of Michigan which would prevent the carrying out of the clearly expressed intent of the parties. It is, however, contended that the Wisconsin statute quoted earlier in this opinion renders the express provision of the policy nugatory as against plaintiff, a married woman.
The Wisconsin cases, contrary to the general rule, are to the effect that the consent of the beneficiary is not necessary to a surrender of the policy. The statute has been held to change this rule in so far as regards the rights of married women as beneficiaries of life insurance policies. Ellison v. Straw, 116 Wis. 207 (92 N. W. 1094). Prior to the amendment in 1931, the Wisconsin court held that the consent of a married woman beneficiary was not required to a surrender by the assured where the policy provided, “It is understood that in the event of the surrender of this policy, the beneficiary hereunder shall have no claim whatever upon said company.” Hilliard v. Wisconsin Life Ins. Co., 137 Wis. 208 (117 N. W. 999). Likewise it was held that a policy might validly reserve the right to change the beneficiary, although originally payable to a married woman. National Life Ins. Co. v. Brautigam, 163 Wis. 270 (154 N. W. 839, 157 N. W. 782).
There does not seem to be any adjudication by the Wisconsin court of the effect of the 1931 amendment. It may have been intended to clear up the uncertainty concerning the rights of insured’s trustee in bankruptcy to a policy payable to a married woman but reserving the right to change the beneficiary. Cf. In re Grant, 21 Fed. (2d) 88, with Cannon v. Lincoln Ins. Co., 208 Wis. 452 (248 N. W. 320). But even if the amendment, properly interpreted, requires the consent of a married woman to a change of beneficiary in spite of a contrary provision in the policy, yet to require her consent to a surrender notwithstanding reservations to the contrary would put restrictions into the policy evidently not intended by the legislature. We cannot give the Wisconsin statute the interpretation contended for by the plaintiff.
Since the result would be the same under the laws of either State, it is unnecessary to decide whether the policy is a Michigan or Wisconsin contract.
In accordance with the terms of the policy, the surrender of the policy by the insured constituted a cessation of all rights of the plaintiff thereunder. Judgment affirmed, with costs to appellee.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Butzel, and Btjshnell, JJ., concurred. | [
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Nelson Sharpe, C. J.
In plaintiff’s declaration it was alleged that on July 18, 1928, it issued to the defendant a workmen’s compensation insurance policy; that on July 6, 1929, one Sidney Grace, an employee of the defendant, suffered an accident while in its employ, of which the defendant had notice; that proceedings were taken and had whereby he received an award on account of his injury by the department of labor and industry for permanent disability for 427 weeks at $14 per week, and that the plaintiff has paid thereon the sum of $1,558, and is liable for the balance thereof.
It also alleged that in said policy it was provided:
“This employer, upon the occurrence of an accident, shall give immediate written notice thereof to the company with the fullest information obtainable. He shall give like notice with full particulars of any claim made on account of such accident. If, thereafter, any suit or other proceeding is instituted against this employer, he shall immediately forward to the company every summons, notice or other process served upon him. Nothing elsewhere contained in this policy shall relieve this employer of his obligations to the company with respect to notice as herein imposed upon him;”
that the defendant failed to give it such notice until December 24, 1930, and that the plaintiff was released and relieved thereby from its liability to protect the defendant by reason of said accident, and that it has a cause of action to recover from the defendant the money paid and which it is liable to pay to said employee. The answer was, in effect, a denial of defendant’s liability.
Upon the trial the plaintiff put in evidence the policy of insurance and a certified copy of the proceedings had before the department of labor and industry, above referred to, and rested.
Sidney Grace had testified before the deputy commissioner that while in the employ of the county road commission on July 6, 1929, he suffered an injury to his left side and back by being thrown from a road grader; that he told Henry Christen-son, the foreman under whom he was working, about it on that day; that he worked for a time thereafter, but quit work on account of his injury, and that when he left he asked Christenson about compensation and “he said he would see to it.” He was cross-examined at some length by one of plaintiff’s present attorneys, who was then acting for the road commission. A fellow-workman, named Fred O. Repp, testified that he saw the accident and that Christenson and John E. McCarthy, the county highway engineer, who was in charge of the work, came along when Grace “was getting his arm done up at the camp where we were staying,” and that McCarthy “knew he had been hurt.”
It was the claim of the defendant that notice of the employee’s injury first came to its attention by a demand made therefor to its highway engineer, John E. McCarthy, in December, 1930, and that this fact was at once communicated to plaintiff’s local agent at the city of Manistique. It appears that plaintiff’s claim office at Milwaukee was notified, and that on December 16, 1930, its examiner wrote the Manistique agency that the matter was referred to Derham & Derham, attorneys of Iron Mountain. This letter was shown to McCarthy, and a report of compensable accident, prepared by plaintiff’s local agent and signed by McCarthy, was filed in the department of labor and industry on April 7, 1931, in which it appeared that the plaintiff company was carrying the risk of the defendant on the date of the accident, which was stated as July 6, 1929. Plaintiff’s attorneys filed a denial of liability on behalf of the road commission • for the reason, among others, that “proper notice was not given to the defendant.”
Christenson was called as a witness on the part of the defendant. He testified:
“Q. On July 6, 1929, did Sidney Grace say anything to you about an injury to his back?
“A. No, he did not — not that I recollect anyway.
“Q. Did he ever say anything to you during the time he was working for you about injuring his back?
“A. Well, after he left — he had to leave — he said he was in bad shape.”
He also testified that the reason he did not report the accident was that “McCarthy was right there the day the thing happened,” and that he knew that Grace had been thrown from the grader. McCarthy was not called as a witness.
The deputy commissioner made an award in favor of the employee, from which both parties sought review before the commission. One of the reasons assigned therefor on behalf of the defendant was that “proper notice was not given to the defendant. ’ ’ In its opinion the commission stated that the defendant therein had withdrawn its appeal. It found that “the county road commission had notice and knowledge of the accident on the day that it occurred,” and affirmed the amount of the award of the deputy from which the plaintiff therein had appealed.
The trial court in submitting the case to the jury instructed them that, as no appeal had been taken from the award of the commission, the fact that the foreman of the county road commission had timely notice of the injury sustained by the employee was established thereby and not at issue in the case. In this he was clearly right. Lumbermen’s Mutual Casualty Co. v. Bissell, 220 Mich. 352 (28 A. L. R. 874). He submitted to them the claim of the defendant that the plaintiff by its acts and conduct and its failure to act had waived the provision in the policy requiring immediate notice to be given to it and had estopped itself from relying thereon.
The jury found for the defendant. From the judgment entered thereon, the plaintiff has taken this appeal. Its counsel insist that a motion made by them for a directed verdict in favor of the plaintiff should have been granted, and ask that the judgment entered be reversed and the cause remanded, with directions to enter a judgment in its favor.
It is well settled that the failure of an employer to give notice of an accident to the insurer as pro vided for in the policy, while it in no way relieves the insurer from liability to the employee, is ground for the recovery by the insurer from the insured of all moneys paid by it pursuant to an award therefor. Oakland Motor Co. v. American Fidelity Co., 190 Mich. 74; Lumbermen’s Mutual Casualty Co. v. Bissell, supra.
It seems to be well settled also that when an insurer, although obligated to defend under the terms of its policy, with knowledge of or means of ascertaining facts which, if established, will relieve it from liability at the suit of the insured, undertakes and prosecutes the defense, without giving reasonable notice to the insured that it does not consider itself liable to it under the policy, it is estopped to deny its liability. But if notice be given that in the event of certain facts being established it will disclaim liability and the insured, after such notice, makes no objection to its further defense of the action or proceeding, no estoppel can be based thereon.
The authorities are reviewed and commented on at length in annotations in 59 A. L. R. 308, and in 81 A. L. R. 1326. See, also, Meyers v. Continental Casualty Co. (C. C. A.), 12 Fed. (2d) 52. In Empire State Surety Co. v. Pacific National Lumber Co., 118 C. C. A. 410 (200 Fed. 224), after stating the rule as above, the court said (p. 229):
“We are impressed by the fairness of this rule, and our conclusion is that, if it was the intention of the surety company to claim that the policy did not cover the accident, its duty was to have notified the lumber company promptly of that ground, so that the lumber company could have taken charge of the defense.. But when it failed to give any such notice before it went into the defense of the case at the trial' in the superior court of the State, the lumber company had a right to assume that the surety company would defend the suit, as it did, under the general clauses of the policy.”
In Sargent Manfg. Co. v. Travelers’ Ins. Co., 165 Mich. 87 (34 L. R. A. [N. S.] 491), the insurer, on receipt of an amended declaration, under which a claim was made which, if established, would have relieved it from liability, wrote the insured that if the allegations therein be proved upon the trial it would not pay the judgment if one was rendered, and thereafter the attorney for the insured participated in the trial. It was decided that the insured “must be held to have accepted the terms proposed by the defendant in its letter of notification,” and that the insurance company had not estopped itself from denying liability.
In Kidd v. Minnesota Atlantic Transit Co., 261 Mich. 31, wherein a similar question was involved, it was said (p. 33):
“It was the duty of the appellant under its policy issued to the employer to defend suits, whether groundless, false, or fraudulent. If it gave reasonable notice to the employer that it denied liability because of the illegal employment, its defense in the cause would not constitute an estoppel.”
Upon the trial of this case the defendant called its county highway engineer, John E. McCarthy, above referred to, as a witness. His evidence was admitted, not for the purpose of attacking the finding of the department that the road commission had timely notice of the accident and the award based thereon, but in its bearing upon the question of estoppel on which the defendant relied. He testified that he saw Ray Derham, one of plaintiff’s attorneys, in the county road office in Manistique about the last part of January, 1931; that.G-race and Christenson soon after came in, and he introduced them to Derham; that Derham asked him, “What do you know about this case?” and he answered, “I know nothing about it;” that after Derham had questioned Christenson he (McCarthy) asked if he could do anything more for him, and that Derham replied, “No, I can take care of this,” and that he left and had no conversation with him thereafter.
Christenson was not sworn as a witness on the trial, but there is nothing in the record to indicate that his answers to the questions of Mr. Derham were in any way different from his testimony before the deputy commissioner.
Mr. Derham, at that time representing the plaintiff company, was certainly chargeable with notice that the liability of the road commission was dependent upon whether or not a timely notice of Grace’s accident had been given to Christenson or McCarthy, or to both of them. He was also chargeable with knowledge that, if it had been given, the provision in the policy , of insurance relieved the casualty company from liability to the road commission on account thereof. And yet, without protest or disclaimer of liability, he filed a denial of liability on behalf of the road commission and contested it before the deputy commissioner. At the hearing before the deputy he heard the testimony of Grace and of Repp, above referred to, and, after award made, applied for review before the full board on the ground that no notice of the accident had been given, and later withdrew this application.
The road commission, relying on the provision in the policy wherein the insurer agreed to assume all obligations imposed upon the employer by his ac ceptance of the compensation act so far as the payment of compensation was concerned, and to defend in its name- and on its behalf any suits or other proceedings which might be instituted against it on account of injuries to employees, did not employ an attorney in its defense. Had plaintiff’s counsel at the time of his conversation with McCarthy and Christenson, or even when the award was made by the deputy, notified the road commission of the intention of the plaintiff to rely on the provision in the policy relative to notice, it might, and doubtless would, have employed an attorney and endeavored to protect itself against liability. But during all of the time after its attention was called to the claim of the employee for compensation, the plaintiff, by the acts and conduct’ of its representatives, led the defendant to believe that it had no intention of relying upon the lack of notice as a defense to its liability under the terms of the policy. Upon the facts as stated, the jury were justified in finding that the plaintiff was estopped from insisting upon the breach of the policy on the part of the defendant.
The judgment is affirmed.
Potter, North, Fead, Wiest, Btttzel, and Edward M. Sharpe, JJ., concurred. Btjshnell, J., did not sit. | [
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Reid, J.
Plaintiff Clifford H. Ranney, a taxpayer of the State of Michigan in Wayne county, a citizen of the State, an elector entitled to vote at all primary and. general elections, a resident of Detroit and owner of land and personal property assessed for taxation in the city of Detroit, Wayne county, Michigan, files his petition against the defendant, secretary of State of Michigan, for a writ of mandamus. The petition sets forth that the third judicial circuit of the State of Michigan comprises the county of Wayne, in which circuit by law there are 18 circuit judges. The terms of all of the present incumbent judges will expire December 31, 1947, and their successors are required by law to be elected at the biennial election to be held the first Monday in April, '1947. The State Constitution (1908), art. 7, §23, requires the nominating petitions for candidates for the office of circuit judge to be filed with the defendant as secretary of State on or before January 13, 1947, that being 35 days before the third Monday in February, on which day the primary election is by law required to be held. Seé 1 Comp. Laws 1929, § 2858, as amended by Act No. 172, Pub. Acts 1939 (Comp. Laws Supp. 1940, §2858, Stat. Ann. 1946 Cum. Supp. '§ 6.113). Such petitions must be filed in order to obtain the printing of the names of the candidates for the office of circuit judge on the primary ballot to be balloted upon at the nonpartisan primary election to be held February 17, 1947 (the third Monday in February).
It is further the claim of plaintiff that by virtue of Act No. 351, pt. 3, chap. 2, § 9, Pub. Acts 1925, as added by Act No. 1, Pub. Acts 1941 (Comp. Laws Supp. 1945, §2864-2, Stat. Ann. ,1946 Cum. Supp. § 6.120), if nominating petitions have been filed for no more candidates than there are persons to be nominated, then the defendant, as secretary of State, shall certify to the Wayne county board of election commissioners the names of all the candidates whose petitions have been filed and that such candidates shall be nominees for such office and that as to such office no nonpartisan primary election shall be held.
Plaintiff further recites that on or before January 13, 1947, there were filed with the defendant, nominating petitions for not more than 36 candidates for the office of circuit judge in said third judicial circuit and in fact, there were filed petitions for 30 candidates and ho more. Plaintiff further claims that it became the duty of defendant to certify the names of the 30 candidates whose petitions had been thus filed, but that defendant refused to certify the 30 candidates as persons who are nominated whose names .should be printed upon the nonpartisan election ballots for the general election the first Monday in April, 1947. Plaintiff further claims that upwards of $50,000 will be caused to be expended by the public in Wayne county in holding the judicial' nonpartisan primary election, if one were held, and that such expense would be a useless waste of public funds. Plaintiff prays that a writ of mandamus issue directing the defendant to certify the 30 persons as nominees, so that there will be no necessity for holding a nonpartisan judicial primary election in the third judicial circuit on February 17, 1947.
Defendant while not denying that petitions of the purport claimed by petitioner have been filed with him, asserts that it is not his duty and that it is not within his power to certify.the 30 persons whose petitions have been filed with him as persons who are nominated and in effect, defendant claims that it is necessary that a nonpartisan judicial primary election be held in the third judicial circuit on February 17, 1947. In- support of his contention, defendant cites article 7, § 23, of the State Constitution, the pertinent portion of which is as follows:
“Sec. 23. All primary elections and elections of justices of the Supreme Court, judges of the circuit court, judges of probate courts and all county judicial officers provided for by the legislature under section 21 of article 7 of the Constitution shall be nonpartisan and shall he conducted hereunder. For the purposes of this section, all elections at which candidates for said judicial offices are nominated are designated ‘primary elections.’ Nominations for justices of the Supreme Court shall be made as now or hereafter provided by law; nominations for all other said judicial offices shall he made at nonpartisan primary elections. This section is declared to be self-executing. Except as in the Constitution otherwise provided, all primary election and election laws, including laws pertaining to 'partisan primaries and elections, shall, so far as applicable, govern primary elections and elections hereunder.” (Italics supplied.)
Defendant stresses the words which we have italicized. The portion of article 7, § 23, not above quoted, after providing for the -filing of nomination petitions for candidates for judicial offices, and requiring a separate judicial ballot containing ' no party designation to be used for primary elections and elections under said section 23, concludes with this sentence:
“The candidates receiving the largest number of votes at any such primary election, to a number equal to twice the number of places to be filled, shall be nominated.”
The Constitution plainly requires that nominations for certain judicial offices other than justices of the Supreme Court shall be made at nonpartisan judicial primary elections, and nowhere authorizes the legislature to do away with the holding of a nonpartisan judicial primary for the purpose of such nominations. The plain purport of article 7, § 23, is to require the holding of a nonpartisan priqnary election not only so that the 30 persons mentioned may be voted upon at the primary by electors in designating their choice of nominees, but also that electors may have the opportunity, by proper procedure, to vote for the direct nomination of others as nominees for the office of circuit judge; and thus have printed on the ballots for use at the April election the names of 36 candidates if nominated, which may of may not include the names of all of the 30 persons whose petitions have been filed with the secretary of State.
The statute relied upon by plaintiff, Act No. 351, pt. 3, chap. 2, § 9, Pub. Acts 1925, as added by Act No. 1, Pub. Acts 1941, is as follows:
“Sec. 9. • If upon the expiration of the time for filing petitions for the general primary election'held on the third Monday in February, it shall appear that, as to any office on any nonpartisan ticket there is no opposition, then the officer with whom such petitions are filed shall certify to the proper board of election commissioners the name of such candidate whose petitions have been properly filed, and such candidate shall be the nominee for such office and shall be so certified. As to such office there shall be no primary and such office shall be omitted from the primary ballot. The provisions of this section shall likewise apply where more than one. candidate is to be nominated for any office and there are no more candidates than there are persons to be nominated. ’ ’
Plainly the above statute would cause a nomination of the 30 persons whose" petitions are herein-before spoken of, by petition instead of “at nonpartisan primary elections.” So far, therefore, as said Act Nb. 351, pt. 3, chap. 2, § 9, Pub. Acts' 1925, as added by Act No. 1, Pub. Acts 1941, above cited, would have the effect of doing away with the nonpartisan primary election for circuit judges in the third judicial circuit, the act is contrary to the provision of article 7, §23, of the State Constitution, and the act is to that extent, therefore, of no effect.
The nonpartisan judicial primary election must be held on February 17, 1947, regardless of the provisions of part 3, chap. 2, § 9 of the general election. law, as added by Act No. 1, Pub. Acts 1941 because of the constitutional provision that nominations for judicial offices, other than for Supreme Court justices, must be made at nonpartisan primary elections.
Since it is not essential to decision herein, we deem it unnecessary to pass upon appellee’s contention that plaintiff is not a proper person to maintain this action of mandamus against the.State officer. But see People, ex rel. Ayres, v. Board of State Auditors, 42 Mich. 422; Giddings v. Secretary of State, 93 Mich. 1 (16 L. R. A. 402); Baldwin v. Alger County Supervisors, 189 Mich. 372.
Mandamus is denied, but no costs are allowed since a question of public interest is involved.
Carr, C. J., and Butzel, Bushnell, Sharpe, Boyles, North, and Dethmers, JJ., concurred. | [
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Detihmers, J.
Plaintiffs have applied for a writ of mandamus and prohibition to prevent tke Secretary of State from certifying to tke clerk of each county, and tke defendants from, submitting to tke people for approval or rejection at tke next ensuing general election, a fair employment practices law proposed by an initiative petition filed, in sections, with tke defendants and by them transmitted to tke legislature which has taken no action thereon within tke prescribed time. Plaintiffs’ application is planted on tke theory tkat tke initiative petition is fatally defective, because it contains no title of, tke proposed measure.
Tke power to enact laws by tke initiative is reserved to tke people by tke Michigan Constitution of 1908, article 5, § 1, as amended in 1941, which prescribes tke method of its exercise. Compliance therewith is mandatory. Thompson v. Secretary of State, 192 Mich. 512. Said section 1, as amended, reads in part:
“No law skall be enacted by tke initiative tkat could not under this constitution be enacted by tke legislature. Initiative petitions shall set forth in full the proposed measure. * * * Tke law proposed by suck petition skall be either enacted or rejected' by the legislature without ■ change or amendment.
“Any initiative or referendum petition may be presented in sections, each section containing a full and correct copy of the title and text of the proposed measure. ’ ’
After specifying how an initiative petition shall be signed, section 1, as amended, then provides:
“If the same has been so signed, the Secretary of State or other persons hereafter authorized by law to receive and canvass same, determines that the petition-is legal and in proper form and has been signed by the required number of qualified and registered electors, such petition shall be transmitted to the legislature.”
The initiative petition here under consideration fails to comply with the requirements of said section 1 in that it does not contain a copy of the title of the proposed measure.
The Michigan Constitution of 1908, article 5, § 21, provides in part as follows:
“No law shall embrace more than one object, which shall be expressed in its title.”
This makes the title an essential part of every law. That this title requirement applies to laws enacted by the initiative, as well as to those enacted by the legislature, there can be no doubt, particularly in view of the provision of section 1, that no law shall be enacted by the initiative that could not, under the Constitution, be enacted by the legislature. As this Court said in Fillmore v. Van Horn, 129 Mich. 52, 56:
“The title to an act is required by the Constitution. It is as much a part of the act as the body thereof. ”
Section 1 requires that the petition shall set forth in full the proposed measure. This cannot be done' without a title.
It follows that the petition did not meet the constitutional requirements prerequisite to its transmittal to the legislature. Nor could the legislature, had it been so disposed, have cured the defect in view of the inhibition of section 1 against legislative change or amendment.
After directing attention to sections 1 and 2 of the proposed law, which immediately follow the enacting clause and which contain a statement of principle and definition of scope, respectively, defendants’ brief suggests but declines to express an opinion as to whether these might -be deemed to serve as a title. Since long before the adoption of the Constitution of 1908, it has been the legislative practice in Michigan to cause the title of an act to precede and the body of the act to follow the enacting clause. Never has it been the practice to incorporate the title in the body of the act. The meaning of the word “title” as here employed in the Constitution must be deemed to be consonant with the common usage and well known legislative practices in that respect at the time of the Constitution’s adoption. City of Detroit v. Chapin, 108 Mich. 136, 142 (37 L. R. A. 391); School District of City of Pontiac v. City of Pontiac, 262 Mich. 338, 348. 11 Am. Jur., § 63, pp. 676—678. The purpose of the constitutional requirement that the object of a law shall be expressed in its title is to protect legislators from passing a law not fully understood, to fairly notify them of its design, and to inform them and interested persons that only provisions germane to the object therein expressed will be enacted. Thomas v. Collins, 58 Mich. 64; Blades v. Board of Water Commissioners of Detroit, 122 Mich. 366; MacLean v. State Board of Control for Vocational Education, 294 Mich. 45. This purpose of the constitutional requirement that the object of a law shall be expressed in its title is not accomplished by the mere fact that the object of the law may be discovered by a reading of the body of the act.
The brief of .amici curiae points ont that, if the proposal be placed on the ballot, the defendants are required by statute (Act No. 246, § 4, Pub. Acts 1941 [Comp. Laws 1945 Supp. §3285 — 4, Stat. Ann. 1946 Cum. Supp. § 6.685 (4) ]) to prepare and place on the ballot in connection therewith a statement of the purpose of such proposal in not more than 100 words. It is suggested that upon adoption of the measure by the people such statement of purpose, so prepared by defendants, might well stand as the title of the law. The suggestion overlooks the requirements of article 5, § 1, that each section of the petition, when filed, shall contain a copy of the title of the proposed measure, and that the petition shall set forth the proposed measure in full. These requirements are mandatory. Full compliance is a prerequisite to transmittal of the measure to the legislature and submission thereof to the people.
It is objected that plaintiffs, described in their application as citizens, residents, taxpayers and legally qualified electors of the State, have shown no such interest as entitles them’ to the relief sought. In this case the attorney general has assumed a position contrary to that of plaintiffs and is himself a defendant. Under such circumstances, we have heretofore held electors to be proper parties plaintiff. Scott v. Secretary of State, 202 Mich. 629; Thompson v. Secretary of State, supra. The interest of plaintiffs is sufficient to warrant their bringing these proceedings for the determination of an important public question.
Defendants ’ chief reliance is placed on the case of Hamilton v. Secretary of State, 212 Mich. 31, as authority for the proposition that this Court will not pass upon the constitutionality of a proposed law about to be submitted to tbe people under article 5, § 1 of tbe Constitution. In support of tbis proposition, defendants’ brief quotes from this case as follows (p. 34):
“If tbe defendant in tbis case may decide whether tbe proposed amendment is constitutional and thus refuse to submit it, may be not in any case in which it is bis judgment that tbe proposed amendment is unconstitutional, decline to submit it? If be may exercise tbis power, is not be going much farther than bis duties as a ministerial officer authorize him to go? If tbe proposed amendment should receive a majority of-tbe legal votes cast, there will then be time enough to inquire whether'any provision of tbe Federal Constitution has been violated. Until that time comes we must decline to express any opinion as to tbe unconstitutionality of tbe proposed amendment. ’ ’
Tbe brief of amici curiae quotes from tbe same case tbe following (p. 42):
“Tbis Court has no express or implied power by judicial veto to nullify in futuro a prospective law foreshadowed by a properly introduced bill before tbe legislature, nor, by analogy,* a proposed amendment of tbe Constitution properly presented by petition for tbe electors to pass upon. In our opinion it is neither tbe duty nor tbe right of tbis Court in tbis proceeding to- pass upon the constitutionality of this amendment which has not been, is not now, and never may become a part of our Constitution. ’ ’
In tbe case at bar, however, we are not concerned with tbe question of whether tbe substance of tbe proposed law is violative of tbe Federal or State Constitutions. Here tbe question is whether tbe petition, in form, meets tbe constitutional requirements so as to qualify it for transmittal to tbe legislature and submission to tbe people. With reference to such question, this Court also said in the Hamilton Case, supra (p. 38):
“The duty of the Secretary of State is plainly prescribed. He ‘shall submit all proposed amendments * . * * initiated by the people for adoption or rejection in compliance herewith.’ Upon the filing of the petition, the duty devolves upon him to ascertain whether it complies with the constitutional requirements. He must canvass the same and determine whether it has been signed by the requisite number of qualified voters and also whether it is in the form prescribed and is properly verified. * * . *
“Should he determine that the requirements for submission as contained in this section have not been complied with, he may refuse to submit it. If it is claimed that he is in error in the determination thus reached, his action may be reviewed in this Court.”
And to the same effect, in Thompson v. Secretary of State, supra, 523, 524, this Court said, concerning the secretary of State:
“But he should be careful to see that its various sections comply with the requirements of the Constitution fairly and reasonably construed. Whatever other purpose these requirements may have, it is plainly to be seen that each and every one was intended to safeguard the' honesty of the petition. And each and every one is mandatory and must be complied with. * # *
“And sections which show upon their face that they' were filed in violation of the Constitution are as ineffectual as if they never had been filed at all.”
In Scott v. Secretary of State, supra, plaintiffs brought mandamus to compel the' secretary of State to refrain from submitting certain proposed amendments to the Constitution to the electors, at the next general election, on the ground that the petition filed therefor did not contain the full text of the amendment as required by the Michigan Constitution of 1908, article 17, § 2. In granting the writ this Court said (p. 644):
“Does the petition here in question contain the full text of tie proposed amendment? This is the single question to be answered, and is a question of fact.- * * *
“Of the right of qualified voters of the State to propose amendments to the Constitution by petition it may be said, generally, that it can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises. But the right is to be exercised in a certain way and according to certain conditions, the limitations upon its exercise, like the reservation of the right itself, being found in the Constitution. The secretary of State is charged with certain duties in this behalf.
“ ‘Upon receipt of such petition by the secretary of State he shall canvass the same.’
“Such petition. A petition including the full text of the amendment so proposed, signed by not less than ten per cent, of the legal voters of the State. The ascertainment of these facts which are to appear before he is charged with the performance of further duties involves the exercise of no discretion, the performance of none but a ministerial duty. * # * As he might be compelled by mandamus to receive a proper petition, so by mandamus he may be compelled to refuse to receive an improper petition, since it is his duty to reject, at least to refuse to take further action concerning, petitions not conforming to the constitutional mandate. The jurisdiction of the court in the premises cannot be doubted, exercised within the limits herein indicated. Rich v. Board of State Canvassers, 100 Mich. 453; Livingstone v. Wayne County Election Commissioners, 174 Mich. 485; Thompson v. Secretary of State, 192 Mich. 512, 521, 522. * * *
“I conclude that it was the duty of the secretary of State to reject the petition, and is now his duty to refuse to proceed further to perforin any duty imposed on him by article 17, section 2, of the Constitution in this behalf.”
The applicability to the instant case of the holding in the above case is at once apparent. In both cases.the petitions failed to meet the requirements of the Constitution. In the Scott Case mandamus was held proper because the petition did not include the full text of the proposed amendment. In the case at bar the petition is defective because it does not contain the title of the proposed measure.
In the Hamilton Case, supra, this Court, in holding that we do not consider the constitutionality of a proposed law before its enactment, took note of the Scott Case saying (p. 38):
‘ ‘ The cases relied on by counsel for the defendant: Scott v. Secretary of State, 202 Mich. 629; Hamilton v. Secretary of State, 204 Mich. 439; and Hamilton v. Secretary of State, 206 Mich. 371, illustrate the questions which can be thus raised. In the Scott Case, the question presented was whether the proposed amendment was sufficient in form, it being the claim of the defendant that the full text of the proposed amendment was not contained in the petition. This Court held that such infirmity existed, that it did not comply with the constitutional requirement that ‘Every such petition shall include the full text of the amendment so proposed.’ The question of the validity of the propose! amendment was not discussed or passed upon by the court.”
From the language of the Thompson, Scott and Hamilton Cases the distinction to be made is clear. While the constitutionality of a proposed law is not determined by this Court before enactment, nonetheless, we do determine, in cases properly presented here before submission of the propo'sed law to the people, whether the constitutional requirements for such submission have been met, \and mandamus will issue to prevent such submission when compliance therewith is lacking.
It is urged by defendants that m’andamus is not a matter of right, but one of grace, which, in this instance, should be-denied because' plaintiffs do not show that they are in a class to be affected by the proposed law and because of the shortness of the time in which this Court is called upon to render decision in view of the imminent' deadline for printing ballots for the next general election. In answer to a like contention in the Hamilton Case, supra (212 Mich. 31), this Court said:
“But this Court has said in no uncertain terms that it has no discretion when called upon to compel a public officer to perform a duty imposed on him by law.
“ ‘A mandamus in a case where the duty of a public officer is absolute and specific * * * is no more matter of discretion than any other remedy.’ Auditor General v. Tuscola County Treasurer, 73 Mich. 28, 32.”
Defendants insist that no duty reposes upon them to determine whether the petition meets the constitutional requirements for submission to the people, except as relates to signatures. This contention is answered in the language of the Scott Case, supra. Since the opinion in that case was written, article 5, § 1 of the Constitution has been amended (1941). As will be noted from a reading of the quotation hereinbefore madp therefrom, the section now imposes jan express duty upon the defendants to determine that the petition is in proper form. Thus the Constitution now makes express the duty which this Court had theretofore held rested upon the Secretary of State.- The duty is still ministerial, involves solely the determination of a question of fact’ and represents a clear legal duty, obedience to which this Court will compel by mandamus.
It was the duty of the defendants to have determined that the petitions were not in proper form to meet constitutional requirements for transmittal to the legislature. It now is the duty of defendants to refuse to proceed further in the performance of any function attendant on submission of the proposed law to the people.
The writ of mandamus will issue accordingly.
Sharpe, Boyles, Reid, and North, JJ., concurred with Dethmers, J. | [
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Starr, J.
On November 23, 1942, plaintiff made an offer to purchase a dwelling-house property owned by defendants in the city of Pontiac, and on the same date defendants executed an acceptance of such offer, as follows:
“Preliminary Agreement
“Pontiac, Michigan. November 23, 1942.
“We hereby offer and agree to purchase through Leslie R. Tripp, realtor agent for the owner, the following described property, situated in the city of Pontiac, in tbe county of Oakland, and State of Michigan, to-wit:
“Lot numbered 434 of Woodward Estates subdivision of the city of Pontiac, # * * subject to restrictions and easements of record; the same being improved with a dwelling known as No. 192 Bondale, including all electric, heating and plumbing fixtures, stoker, shades and curtain rods.
“And to pay therefor the sum of $5,000 uponthe following terms and conditions: $100 upon the signing of this agreement, receipt of- which is hereby acknowledged to apply on the purchase price, the same to be returned should proposition be rejected by owner, or prior sale, of said property; or should the title be found unmarketable, the balance to be paid as follows:
“Four hundred dollars upon execution of good and sufficient (land contract), * * * the balance to be paid in monthly instalments of not less than $50 per month, the first payment to be due one month from date of land contract;
“Said payments (to include) six per cent, interest. Deal to be closed within five days from date, abstract of title or policy of title insurance certified to date, showing marketable title has been, delivered to purchaser for examination, other bills and insurance to be adjusted to date of transfer.
“Purchaser—David L. Czeizlee. * * *
“We hereby accept the above offer and agree to terms of same, and will furnish abstract of title or policy of title insurance certified .to date, showing marketable title, and when conveying shall convey by:
“Abstract and Title Guaranty Company form of land contract calling for warranty deed upon completion; we further agree to pay all taxes, special and regular, in full, that are now a lien against the said property; all taxes and assessments that become due henceforth (including December, 1942 taxes, so- called) to be paid by purchaser; possession to be given purchaser five days from date of closing deal. Upon closing deal the undersigned ‘seller’ hereby agrees to pay Leslie B. Tripp a real-estate commission of five per cent, of above sales price.
“Julius Badke.
“Bose Badke.”
Upon defendants’ refusal to complete the sale, plaintiff began the present suit for specific performance. Defendants answered, alleging in substance that there was no consideration for their agreement to sell; that the acceptance was not the free act and deed of defendant Julius Badke because he was ill and under the influence of intoxicating liquor when he executed it; and that plaintiff was not entitled to the relief sought. The trial court decreed specific performance, and defendants appeal. This being a chancery case, we review the same de novo.
We shall give only a brief summary of the testimony, much of which is in conflict. Defendant Julius Badke had lived in the United States since 1910; had conducted a grocery store; owned other properties; and said that he had “done a lot of business in this country.” Leslie Tripp, a real-estate agent, testified that defendant Badke telephoned him, stating that he -Wanted to sell his residence property, and requested Tripp to come to his home and discuss the matter; that he and his salesman, witness Yoorheis, went to the Badke home; that Badke told them that his health was poor and that he was in a hurry to sell the property as he was leaving the city. Tripp further testified that Badke said, “I will sell it for five thousand with five hundred down.” ■ Tripp’s testimony was corroborated by that of witness Yoorheis.
Witness White, another salesman employed by Tripp, took plaintiff and his wife to the Badke home, introduced them to the Badkes, and they inspected the property. Plaintiff then signed the above-quoted offer to purchase and gave White a check for $100 as a binder payment. White testified in part:
“I took him (plaintiff) * * * to see the property. Mr. and Mrs. Radke were there. * * * She said to show the property. Mr. Radke was there and I made bim acquainted with the party (plaintiff). * * * We looked the property over. * * *■ Mr. Czeizler on the way back said, ‘I am going to give you a deposit.’• * * * I called up Mr. Tripp and asked him if he would make out the purchase agreements. * * * I picked him up at the office and we went over to Mr. Czeizler’s and Mr. Czeizler and his wife signed them. * * * Mr. Czeizler had given me his check for $100. * * * I went back to the Radke’s with Mr. Tripp. * * * I heard no talk that night about them not wanting to sell. When we went in, Mr. Tripp told them that we had an offer. * * * He * * * gave Mrs. Radke a copy (of plaintiff’s offer) and Mr. Radke a copy and * * * read it over to them. They signed at that time. Mr. Tripp’s cheek was given to them at that time. No complaint was made about the check. * * * I came into the office on Wednesday and there was a note saying the Radkes wanted to know if the purchaser would buy the coal and if they wanted the roomer to stay. * * * On Friday Mr. and Mrs. Radke got into a dispute. I could see at that time they didn’t want to sell the property. Mr. Radke said, ‘If we gdt the property that we wanted, it would have been O.K., but when we got there it was sold. ’ ’ ’
Witness Tripp further testified regarding defendants’ acceptance of plaintiff’s offer and their later refusal to complete the sale, in part as follows:
“Mr. White and I drove to Mr. Radke’s and gave them my check for $100 and tendered the offer to him. He accepted it. He and Mrs. Radke signed the agreement (acceptance of plaintiff’s offer). * * * There was no quibbling about signing. They made no objection to taking my check. The next morning # # # Mr. Radke called me on the telephone stating that he was leaving the abstract (of title) at his daughter’s grocery store, and asked me if I would object to going out there and picking it up, having it certified for him, which I did. * * * The abstract was examined and approved by Mr. Czeizler’s attorney. * * * A few days after the abstract was approved, I met Mr. and Mrs. Radke at Mr. Hampton’s office at which time I tendered them the balance of the purchase money, the down payment, in cash. Their attorney, Mr. Hampton said, ‘We will acknowledge that you have made a tender of the down payment. ’ Then he suggested to Mr. Radke that he tender me my $100 check which he had received which he did and I declined to take it. * * * Mrs. Radke stated that they would like to get released from the agreement, and that if Mr. Czeizler would release them, 'that she would be glad to pay me my commission for making the sale.
“They gave as their grounds for refusing to go .through with the deal that the contract they had contemplated buying was no longer available, and second, that * * # the house that they owned had been rented by their daughter to some of her employees and they couldn’t move in that house, and then further reasons that the down payment wasn’t sufficient.”
Plaintiff Czeizler testified regarding his inspection of the property and his interview with the Radkes in part as follows:
“I went out to see the property with Mr. White, Mr. and Mrs. Radke were there. * * * I talked with Mr. Radke. He showed us through the property. * * *
“He told me * * * if I bought the place he could give me possession just as soon as I wanted it and he also showed me the advantages of the place and he took me upstairs and showed me in the attic and showed me the furnace. * * *
“Q. At that time was anything said about the coal in the bin?
“A. Yes, he asked me what we would do about the coal. I said, you estimate about how many tons you have and I will pay you at the fair market price.”
Defendants admitted signing the written acceptance of plaintiff’s offer, and that Tripp’s check for $100 was tendered to them, but said that they refused to accept the check because their name was not spelled properly. They stated they could not read English, and denied reading plaintiff’s offer. It appears that defendant Julius Eadke was afflicted with tuberculosis and had been in a sanitarium and undergone several operations. Defendants both testified in substance that, to relieve his pain and nervousness, he had developed the habit of drinking-large quantities of intoxicating liquor and that he also took sedatives. Julius Eadke claimed that when he signed the acceptance of plaintiff’s offer, he was under the influence of liquor and sedatives and did not understand what he was doing. He testified in part:
“I was under a doctor’s care in November,-1942.
“He gave me some medicine to drink after meals and some pills. I tried everything and I couldn’t get enough relief from my pains. * * ■* I started to use the liquor. * * *
‘ ‘ Started with a pint. Sometimes up to a quart. # * *
“About 8: 30, Mr. Tripp came * * * with Mr. White and brought the papers to sign * * * and they said I should sign the papers so and so. I signed the papers. * * *
“He read the words and I looked the thing oyer, * * * I couldn’t get much straight, so I said I don’t know what it is except you will read it,— * * * so he did read it but what it was I don’t know. * * *
“When the papers was signed, I was—got upset. * * *
“Q. You don’t claim to have been drunk on that occasion * * # when you talked to Tripp the first time?
“A. I don’t say I was drunk but that is what it was. * * *
“Q. Answer yes or not, Mr. Radke. Were you too drunk to know what you were doing?
“A. No.”
Defendant Rose Radke testified, “Mr. Tripp told me the paper was an agreement on the place. I signed the paper and Mr. Radke signed the paper.” A doctor who had attended defendant Julius Radke for several years testified in part:
“For years # # # he has had tuberculosis which we now feel is arrested. * * * Since his release from the sanitarium, I have seen him several times going back as far as 1940 and 1941 and then in November, 1942. The chief complaint seems to be extreme nervousness. * * *
“At various'times * * * he was given sedatives * * * to help induce sleep because he complained he was unable to sleep and was extremely nervous. * * *
“I think both times when I saw him in November, 1942, he had been drinking rather heavy. * * * “The impression that I got from his general attitude was that he was almost an.early case of delirium tremens. That is to the extent he was very greatly agitated and he wouldn’t sit and talk calmly. # # #
“I think even without a sedative that possibly his judgment— * * * certainly his reaction to sitúa tions was definitely altered by the use of alcohol. # # #
“Q. What dates did you see him in November, doctor? 1 * * *
“A. Perhaps * * * around the 20th of November. * * *
“Q. So you wouldn’t be able to testify as to what condition he was in on the 23d (the date he signed the acceptance) ?
“A. No, not definitely on the 23d.”
Witness Voorheis, the salesman who accompanied Tripp to the Radke home in the afternoon of November 23d, said that Julius Radke did not appear to be intoxicated. Witness Tripp further testified:
“I have known the defendants since 1928. I bought groceries at Mr. Radke’s store. # * *
“Q. Did you observe at that time (November 23d) that Mr. Radke appeared to be intoxicated or under the influence of liquor?
“A. It never occurred to me that he might even have had a drink. He acted normal to me. * * *
“I wouldn’t think that he had been drinking. Certainly not to a degree that would affect his judgment or his mental keenness.”
Witness White, the salesman who showed plaintiff the property on November 23d, and who was present that evening when defendants signed the acceptance of plaintiff’s offer, testified that “Mr. Radke did not appear to be intoxicated that night. ’ ’
The question presented is whether or not the trial court erred in decreeing specific performance of the ageement to sell, as embodied in plaintiff’s written offer to purchase and defendants ’ acceptance thereof. In the case of Blanchard v. Railroad Co., 31 Mich. 43, 53 (18 Am. Rep. 142), we said:
“The jurisdiction of equity in specific performance proceeds on the supposition that the parties have not only agreed, as between themselves, upon every material matter, but that the matters so agreed on are of such a nature, and the subjects of enforcement so delineated or indicated, either directly or by reference to something else, or so raised to view by legitimate implication, that the court can- and may collect, and in their proper relations, all the essential elements, and proceed intelligently and practically in carrying into execution the very things agreed on and standing to be performed.”
In 49 Am. Jur. pp. 35, 36, § 22, it is stated :
“Whenever it appears that material matters are not clear, certain and complete, but are left by the parties so obscure or undefined that the court cannot say whether or not the minds of the parties met upon all the essential particulars, or if they did, the court cannot say exactly upon what substantial terms they agreed, the case is not one for specific performance. Equity cannot make a new contract for the parties, but must enforce the contract according to its terms or not at all, the court will not make a contract for the parties or supply any material stipulation thereof.”
In the case of MacGlashan v. Harper, 299 Mich. 662, 667, we said:
“Equitable relief by way of specific performance should not be granted to plaintiff unless his course of conduct relative to the transaction has been one that warrants the approval of a court of equity. Brear v. Baumgartner, 249 Mich. 633. Specific performance is a remedy of grace and not a matter of right, Mowat v. Walsh, 236 Mich. 391, and the test of whether or not it should be granted depends upon the peculiar circumstances of each case, Waller v. Lieberman, 214 Mich. 428. The granting of this equitable remedy lies within the discretion of the court. Stecker v. Silverman, 294 Mich. 422. See, also, Richards v. White, 44 Mich. 622; Smith v. Stewart, 245 Mich. 452; and 58 C. J. p. 1078, § 336.”
See, also, Tincknell v. Ward, 285 Mich. 47; Wolverine Packing Co. v. Hawley, 251 Mich. 215; Chatham-Trenary Land Co. v. Swigart, 220 Mich. 137; Bilansky v. Hogan, 190 Mich. 463.
“The test to be applied in such cases is, Are the sellers obligated to sell and the purchaser to buy?’-’ Muirhead v. Freimann, 270 Mich. 181, 185.
“As the rule is generally stated, equity will decree the specific performance of a contract only in cases where there is a mutuality of obligation and of remedy.” 49 Am. Jur. p. 47, § 34.
The situation presented in the instant case can be summarized briefly as follows: defendants wished to sell their property and, in effect, made Tripp their agent; Tripp’s-salesman, with defendants’ approval, showed the property to plaintiff, who made a written offer of $5,000 and gave the salesman a check for $100 as a binder payment; defendants signed an acceptance of such offer, and Tripp gave them a check for the $100 which plaintiff had paid him. That defendants accepted such check is evidenced by the undisputed testimony that several days later, on the advice of their attorney, they tendered the check back to Tripp. Defendants recognized their agreement to sell when, on the day following their, acceptance, they instructed Tripp to obtain the abstract of title from their daughter and have it brought down to date. They later changed their minds, refused plaintiff’s tender of the balance of the down payment, and sought to avoid their agreement to sell.
We have carefully examined the agreement, consisting of plaintiff’s offer and defendants’ accept anee, hereinbefore quoted, and conclude that the essential provisions of such agreement were sufficiently clear, definite, and complete to create a valid contract and a mutual right to specific performance. Defendants’ acceptance of the check for $100 constituted a valid and sufficient consideration for their agreement to sell.
Although, because of his illness and use of liquor, defendant Julius Radke was in a nervous state at the time he accepted plaintiff’s offer, we are convinced that he knew and understood what he was doing. The trial court, who' saw and heard the parties and their witnesses, was in a better position to judge their credibility and the weight to be accorded their testimony. After examining the record, we agree with the trial court who said in part:
“While the court is satisfied that Mr. Radke is in a highly nervous state, I cannot help but feel that he has plenty of mental capacity. He has made a success in life, much more so than the average individual. The fact he is afflicted with tuberculosis in my opinion does not make him incompetent to do business. I am also satisfied Mrs. Radke was competent to do business. * * * There was consideration. Mr. Tripp acted as the agent of the defendants in this case and the defendants had capacity to contract. * * * The agreement signed November 23, 1942, is a valid existing agreement capable of being enforced.”
We conclude that plaintiff was entitled to specific performance of defendants’ agreement to sell. The decree of the trial court is affirmed. Plaintiff shall recover costs of both courts.
North, C. J., and Wiest, Btttzel, Bushnsll, Sharpe, Bo?les, and Reid, JJ., concurred. | [
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Butzel, J.
William Fleming, defendant, was convicted of attempting to entice away a female child 14 years of age from her parents, without their consent, for the purpose of concubinage. Upon a supplementary information being filed charging him with two prior convictions for felonies, he was sentenced as a third offender to Jackson State prison for a term of not less than five nor more than ten years. The trial court stated that he was impressed with the importance of the questions raised by the defense, and believed them to be of sufficient merit to warrant an appeal. He therefore directed that, in the event of such an appeal, the expense be borne by the county.
The testimony of numerous witnesses called at the trial on behalf of the people established the following facts: On March 30, 1933, defendant called at the home of a 14-year old child, and had several conversations, first with her mother, and later with both parents. He represented that:he was a physician with an invalid wife, and desired the services of the child to look after his wife while he was out on professional calls. He offered to give the child board, and permit her to attend a school near his home, and also to pay her a small wage. On his first visit, defendant asked that he be permitted to take the little girl away for a few minutes to see his wife. When the child conditioned her acceptance upon her younger sister also being taken along, defendant replied that the car would be too crowded, as he had to meet three old ladies up town, and there would not be room for all. Defendant made many inconsistent statements, which caused the child’s parents to become suspicious and send for the sheriff. The latter came to the house with his deputy, interviewed defendant, and finally ordered him to drive to the sheriff’s office for further investigation. After the sheriff had alighted from his car and gone to unlock the office, defendant escaped by starting his own car just as the deputy was stepping out of it. He was apprehended some time later. There is no question but that the statements made by defendant to the child’s parents were false in every respect. He assumed a false name, was not a physician, and had no home, and there was no showing that he had a wife. He admitted to the sheriff that his statements were untrue.
At the conclusion of the testimony by the witnesses called on behalf of the people, defendant did not take the stand, nor were any witnesses called on his behalf. His attorney requested the court to instruct the jury to render a verdict of “not guilty,” on the ground that no evidence had been presented by the people to show what intent defendant had. The motion for a directed verdict was denied, and the defense rested its case. The jury then returned a verdict of guilty as charged.
Concubinage has been defined as any form of illicit intercourse. People v. Bristol, 23 Mich. 118; People v. Cummons, 56 Mich. 544. However, the difficulty with this case is that defendant’s purpose in attempting to entice the child away from her home is unknown. It is necessary for the people not only to charge, hut to prove the intent on the part of respondent when the corrupt intent is made a necessary ingredient of the crime charged. People v. Bilitzke, 174 Mich. 329. The rule was stated by Mr. Justice Christiancy in Roberts v. People, 19 Mich. 400, 414, as follows:
“We think the general rule is well settled, to which there are few, if any, exceptions, that when a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to he proved as the act itself, and must be found by the jury, as a matter of fact, before a conviction can be had. But especially, when, the offense created by the statute, consisting of the act and the intent, constitutes * * * substantially an attempt to commit some higher offense than that which the defendant has succeeded in accomplishing by it j we are aware of no well-founded exceptions to the rule above stated.”
The prosecuting attorney contends that the circumstances, as well as the defendant’s character, were such as to permit of no other inference than that he wanted to secure the child for the purpose of concubinage. He claims the proofs indicate that the child’s parents were poor and had a large family, and that it therefore could not reasonably he inferred that defendant attempted to secure the possession of the child for the purpose of exacting money. He also calls attention to the following-statement by Mr. Justice Cooley in People v. Carrier, 46 Mich. 442, 446:
“It was also insisted that there was no evidence to go to the jury tending to show that the defendant enticed the woman from Barry’s custody, or that, if he did, his purpose was either prostitution, concubinage, or marriage. The facts were that defendant induced a brother of the girl to persuade her to meet him at a place away from Barry’s house, and that after the interview which there took place the girl went off at once to Canada!. How far, if at all, this was induced by the persuasions of the defendant was left to the jury on the facts. ’ ’
However, Justice Cooley went on to state that the prosecution had thrown light upon the intent by a showing of previous illicit relations and of the subsequent conduct of the parties.
Were the previous record of defendant in the instant case examined, it would be found that both of his former convictions were for making “an indecent and obscene exposure of the person of another,” that the exposure was of a female in both cases, and that it was of a female child in at least one of the cases. It is quite possible that defendant may be a pervert, with a strong psychopathic disposition toward the commission of the offense of indecent exposure of the person of another, and that such was his intent in the instant case. There are strong indications that defendant requires the attention of a psychiatrist and possibly institutionalizing, but that does not establish his guilt of the charge in the instant case. There is no evidence that defendant attempted to entice the child away for the particular purpose of concubinage, and for this reason the conviction must be set aside and a new trial ordered. Under the circumstances, it will be unnecessary to discuss whether defendant may be sentenced as a third-term offender, or whether his two previous offenses were felonies or misdemeanors.
The conviction is set aside and defendant is remanded to the custody of the sheriff for a new trial.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Bhshnell, and Edward M. Sharpe, JJ., concurred. | [
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North, J.
This is a suit for an accounting. Plaintiff had decree in the circuit court and defendant has appealed.
Plaintiff alleges that he is the holder of two $1,000 bonds issued by the Soo Beverage Company. These bonds, payable to bearer, were part of a $25,000 issue and payment was secured by a trust mortgage payable to defendant Ferguson as trustee. Originally the bonds matured July 1, 1920; but subsequently the due date of plaintiff’s bonds was extended to July 1, 1926. Plaintiff’s alleged purchase was in January, 1927. At the time of foreclosure the First National Bank of Sault Ste. Marie owned all of the outstanding bonds. In addition to others, it held $13,000 of these bonds (Nos. 1-13) as collateral to indebtedness of the Soo Beverage Company amounting to approximately $13,000, which indebtedness before receipt of these bonds had been unsecured. Plaintiff claims the bank purchased these bonds, but the trial court did not so hold. The bank was pressing the debtor for payment or at least a reduction of the amount of the indebtedness. Mr. Rheinhart, secretary and treasurer of the debtor company, testified that prior to January 30, 1927, bank officials suggested that he try to find someone who would purchase some of the bonds, evidently so that the proceeds of such sale might be used in reducing the indebtedness to the bank. Plaintiff, a brother-in-law of Rheinhart, alleges that-in January, 1927, he purchased at par through Rheinhart two of these bonds, being numbers one and two. Rheinhart paid the bank $2,000, the two bonds (without being marked paid) were delivered to him and in turn delivered to plaintiff who resided in Wausau, Wisconsin. He thereafter continued to hold the bonds. At the time the $2,000 was paid to it, the bank was also paid the further sum of $397, accrued interest to date on the two bonds. This latter amount was paid by the Soo Beverage Company. Mr. Ferguson, the trustee named in the bond mortgage, was also president of the First National Bank of Sault Ste. Marie. There being a default in the bonded indebtedness, Mr. Ferguson, as trustee, instituted foreclosure proceedings. This foreclosure resulted in a sale of the mortgaged property which the circuit judge found was all of the real and personal property of the mortgagor, the total sales price being $20,253.90. This amount was bid by the trustee who later transferred the purchased property to the bank. The trustee did not include in his foreclosure proceedings the two bonds held by plaintiff herein. The mortgagor’s indebtedness to the bank with in terest and costs was the amount bid on the foreclosure sale by defendant. In this suit plaintiff, claiming that his two bonds should have been included with those of the bank in the foreclosure proceedings, sought and obtained a decree from the circuit court requiring the trustee- to account to plaintiff for his pro rata share of the amount bid upon foreclosure of the bond mortgage. This decree was based upon a finding of the trial judge in accordance with the claim of the plaintiff as above outlined.
It is the claim of the defendant that plaintiff did not purchase the two bonds as alleged, but instead that the $2,000 paid to defendant by Eheinhart was in payment of the amount represented by the two bonds, and that they were thereupon surrendered as paid bonds to Eheinhart, the secretary and treasurer of the Soo Beverage Company. The record before us contains a somewhat detailed and carefully prepared opinion of the trial judge. He noted the conflict of testimony on “clear cut questions of fact involved in this case,” and after considering the same concluded that plaintiff had established his right to the relief sought. We have carefully reviewed the record and find no justification for disturbing the trial judge’s findings of fact;
Aside from the factual aspect of the case above noted, appellant asserts that there are certain legal grounds, to which we shall allude shortly, upon which he was and is entitled to a decree dismissing the bill of complaint. As bearing upon these contentions of appellant, it should be borne in mind that the bank of which he is president received and has retained the $2,000 which plaintiff paid for the two bonds he holds. The record is such as justifies the conclusion that the defendant trustee is chargeable with the knowledge and conduct of the First National Bank and conversely that the bank is chargeable with the conduct and knowledge of the trustee. It also appears from the record that the quitclaim deed by which the defendant trustee conveyed to the First.National Bank the property he purchased at the mortgage foreclosure was “signed, witnessed and acknowledged by the grantors on the 12th day of January, 1931.” In the instant case the bill of complaint was filed and summons issued January 5, 1931. Service was obtained January 9th. In view of these and other facts appearing from the testimony, it cannot be held as a matter of law that the transfer of the property by the defendant trustee to the bank of which he was president has worked an estoppel against plaintiff. Nor do the facts in the case as determined by the circuit judge and approved by us justify holding as a matter of law that the bonds purchased by plaintiff were nonnegotiable because they had previously been paid by the obligor and were thereby canceled; or that these bonds represented junior obligations secured by the trust mortgage as against other bonds held by the bank; or that the bonds were held by the bank as collateral, could not be sold by it, and therefore plaintiff had no title to either of the bonds on the basis of which he seeks to recover in the instant suit. Also we are of the opinion that the testimony does not sustain appellant’s contention that subsequent to the purchase of the bonds Rheinhart continued to act as plaintiff’s agent. Therefore plaintiff is not estopped by any subsequent action or knowledge of Rheinhart from asserting his present claim against defendant herein. Further, so far as appears from this record, defendant was not- prejudiced and hence cannot claim estoppel against plaintiff on the ground that he has been guilty of laches in asserting his right as a bondholder to payment. By foreclosure the defendant trustee obtained all of' the mortgaged property. He could have obtained no more if plaintiff had then and there asserted the. rights which he is now asserting. Further, as noted above, this suit was instituted against defendant before he disposed of the proceeds of the foreclosure sale. Appellant having acted as trustee in the foreclosure proceedings is bound to account to the respective bondholders.
The merits of the case are quite conclusively disposed of by the following extract from the trial judge’s opinion:
“It is undisputed that these bonds were delivered by Mr. Bheinhart to plaintiff' Neuman and that plaintiff paid in good faith to the bank, through his agent Bheinhart, their full face value. Neuman certainly acted in good faith and this case would never have been in court if the First National Bank had done what an ordinarily prudent person would have done under the circumstances if the transaction was as they now contend, marked the bonds paid or canceled. It would almost appear that the bank should now be estopped from raising this question. * * * Failure of plaintiff to demand payment of the bonds in no way affected the First National Bank, Soo Beverage Company, or the trustee or receiver. None of them have been injured by the delay. The First National Bank has secured all the property of .the Soo Beverage Company, both real and personal. The trustee should account to plaintiff for plaintiff’s pro rata share of the property sold for $19,920.73 (and accrued costs), on June 2, 1930.”
The decree entered in the circuit court is affirmed, with costs to appellee.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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North, J.
On June 19, 1946, three circuit judges sitting en banc in the circuit court of Wayne county, after due hearing, entered an order whereby Harold H. Emmons was disbarred as an attorney-at-law, his license to practice law in this State was revoked, and his name ordered stricken from the roll of attorneys; but with a stay of the order not to exceed -20 days, pending’ an application for leave to appeal. Leave having first been obtained, Harold H. Emmons, hereinafter referred to as defendant, has appealed from the order of his disbarment.
This disbarment proceeding was instituted and prosecuted under the State Bar r.ules. After service upon defendant in 1940 of charges preferred, an extended hearing was had before a grievance committee of the third judicial circuit. At the conclusion of the hearing in 1946 the committee filed its report, recommending that defendant be disbarred. In accordance with proper procedure the matter came on for hearing before the three circuit judges and on review of the record made before the grievance committee the result first above noted followed. The appeal now before us is under Supreme Court Bules governing leave to appeal and that portion of Bule No. 15 of the Supreme Court Buies adopted for the State Bar of Michigan, which in part reads:
“Any final order entered (in disbarment proceedings before circuit judges) shall be subject to review by the Supreme Court in its discretion on the law and the facts.”
Briefly stated, the charges preferred against the defendant are that while acting in a fiduciary capacity incident to probating the estate of .George H. Cummings, deceased, and ultimately, in conducting the affairs of a testamentary trust provided in the Cummings’ will, defendant was guilty of misconduct in the following particulars:
(a) Failure to give $120,000 bonds as testamentary trustee as required by court order entered by probate judge Hulbert June 19, 1928, incident to allowing defendant’s final account as surviving executor and assigning the residue of the estate to him as surviving testamentary trustee for the benefit of • crippled children; concealment of such failure; wrongful assumption of the office of trustee and misrepresentation in procuring an order from a successor judge (Judge Murphy) in 1935 for reduction of the required trustee bonds.
(b) Self-dealing with trust funds and misrepresentation and concealment thereof in accounts filed in 1935 and 1936.
(c) False sworn statements in his answer as a defendant in a chancery accounting proceeding (King v. Emmons, 283 Mich. 116 [115 A. L. R. 564]), commenced in 1936, concerning his failure to give the required bonds and defendant’s alleged self-dealings.
Understanding of the factual background in consequence of which the order of disbarment was made renders necessary recital of the following. George H. Cummings died testate in June, 1920. By his will the residue of his estate together with accruals and additions thereto were left in trust to the executors named in the will for the purpose of establishing and maintaining a home for the care, maintenance and education of crippled children who otherwise are destitute of the proper and necessary means for their care, medical attention and educa tion. The will named as executors testator’s sister, Nellie G. Rockafellow, and Harold H. Emmons, and they were so appointed in July, 1920. They filed an account as executors which was allowed in December, 1924. Nellie G. Rockafellow died the following month, and thereafter Harold H. Emmons continued to administer the Cummings estate as the sole surviving executor. For some further details see King v. Emmons, supra.
The earlier proceedings in the Cummings estate were before Judge Durfee who died in 1927. He was succeeded by Judge Hulbert who resigned April 1,1934. Judge Hulbert was succeeded by probate judge Thomas C. Murphy. In June, 1928, probate proceedings in the estate of George H. Cummings, deceased, were closed, and on petition of the defendant herein the proceeds of the estate were, by the order of Judge Hulbert, assigned to defendant as sole surviving trustee. In his 1928 petition for closing the estate the defendant herein stated under oath that the assets of the estate were valued at upwards of $1,250,000. In the June, 1928, order of Judge Hulbert it was provided that Emmons should give three bonds. Two of them, each in the sum of $10,000 pertained respectively to two other testamentary trusts under the Cummings will, and a bond in the sum of $100,000 was ordered incident to the administration of the testamentary trust for crippled children. It is admitted that none of the bonds so ordered were given. Nonetheless, the record discloses that the defendant herein took over the assets of the estate and continued to manage its affairs until 1935 without giving any of the ordered bonds. After Thomas C. Murphy became probate judge and on application of defendant herein in 1935 the amount of bonds ordered in 1928 was reduced to $100 each, and furnished by defendant. As above noted, one of the charges preferred against defendant in the instant proceeding is his failure to give bonds as testamentary trustee in accordance with the June, 1928 order of Judge Hulbert, the concealment of such failure, wrongful assumption of the office of trustee and misrepresentation in procuring an order from a successor judge in 1935, whereby the amount of the trustee’s bonds was reduced.
There is credible support in the record for defendant’s contention and it will be assumed that at the time of George IT. Cummings’ death his estate was insolvent. This was due to the fact that his possessions mainly consisted of something like 80 equitable interests in real estate practically all of which were heavily encumbered, and on foreclosures the estate would have been liable for deficiencies, and because of the then somewhat depressed real estate market the encumbered equities were not salable, and the income from the estate was not sufficient to meet carrying expenses. However, a few months after the death of Mr. Cummings real estate values in and about Detroit took on a boom aspect. By May, 1924, incident to their return for the purpose of fixing the Federal estate tax, the co-executors under oath reported the net value of the Cummings estate as being $377,954.54. Defendant testified that in the summer of 1920 he discussed the matter of the Cummings estate with probate judge Durfee and that the latter advised defendant to wind up the estate as insolvent. In this connection defendant’s testimony in part was:
“I said, ‘In this estate there ar'e three pieces out Woodward avenue totalling about 800 acres.’ * * * I mean three parcels as we finally segregated them. * * * I said, ‘ of course, the build ing boom in Detroit is here, in full force and effect, and some of these real estate fellows I have talked to have said if we could subdivide those properties and sell them at retail, they can go out and sell them at retail, they can go out and sell them as lots. ’
“He (Judge Durfee) says, ‘You know you can’t do that as an executor. ’ And I said, ‘ Sure, I know it. All we can do, as executor, is sell exactly what the dead man owned when he died; file a petition to sell each piece.’ * * *
“I said, ‘Judge, if we could get them out of this estate somehow or other and subdivide them, and these men could sell them, and I think they can, we might get enough out of this to pay these Negroes off, that have been swindled out of this money (referring to Negroes who prior to the death of George H. Cummings had purchased lots in the proposed Cummingston Park subdivision, which subdivision ■ was not consummated in Cummings’ lifetime). * * I don’t know what they can do, but they are getting ready, lawyers are filing appearances, and so on, and we might get enough out to pay them off, maybe we could pay some of the other debts, I don’t know.’ * * #
“I have had a lot of experience in real estate, I have owned, in whole or in part, probably interests in 30 subdivisions in Detroit, and I know something about it and I have got confidence that these men can sell these things if we can subdivide them. * * * How would it be if I could get some of my law partners or my friends or my relatives to buy these equities at the probate sale, under license, then they will turn them back to me as an individual, because they won’t go into this real estate business, they haven’t any interest in it. They will turn them back to me and I will group them into these subdivisions and put these fellows to selling them. ’ ’ ’
In accord with the plan, which in general is indicated by the foregoing testimony, large acreage which formerly belonged to George H. Cummings was platted and sold through defendant. As a result thereof, and of some other fortunate transactions, as disclosed by defendant’s report to the probate court, as of March 31, 1928, the estate had among, its assets cash on hand to the amount of $25,368.76 and land contracts receivable to the amount of $936,584.81; and further that the estate had paid all of its indebtedness and expenses of administration.
The principal aspect of the real estate transactions was the subdivision and sale of three parcels of land. One of these, the so-called Stanley farm, was sold for $75,000, and the proceeds of this sale, according to defendant’s testimony went into the funds of the Cummings estate. As to the other subdivisions, defendant testified:
“The balance of the money on these three subdivisions that were sold outside in.a similar manner were kept in a separate fund, -a trustee fund, to handle the business of this enterprise that I was running, and my 'statement to Judge Durfee was that when I finished with this whole thing, if I was able to save anything out of it at all, I would turn it into the crippled children’s fund, wherever that happened to be at the time. * * This whole arrangement I made with Judge Durfee was that I would go into the real estate business in my own name, and on my own expense and risk. And I told him if I could ever get anything out of it net, I would put it into the crippled children’s fund. * * * It couldn’t go into the estate. The estate was through with this property when the (probate) sale was made. So this money I had in my hands as trustee as a result of these subdivision operations was held by me with the idea that when we got to where we knew we were out in the clear, whatever might he left I would turn into this crippled children’s fund.”
The defendant further testified he was going to use the fund accumulated in accordance with what the testator wanted him to do, — i.e., to aid crippled children; and that as a part of the plan, he, in 1930, caused to he organized the George H. Cummings Corporation, later (1933) changed to the George H. Cummings Foundation, as an agency to carry out the testamentary trust in accordance with the residuary clause of Mr. Cummings’ will. Upon being asked: “Was there * * * any method by which you could have been compelled to turn over to this Foundation the proceeds of the sale of these lots,” defendant replied, “There is no question but what there was. * * * An action would lie in the circuit court in chancery any time; ’ ’ defendant further asserted that this could he done: “Under the agreement I had with Judge Durfee, that if, ultimately, I realized anything out of those properties, it would go into the crippled children’s fund.”
Throughout these proceedings it has been defendant’s theory and contention that in handling the subdivided real estate and the money received from sales in the manner herein indicated, he was not acting in a fiduciary capacity as an executor of the estate nor was he acting as a trustee under the testamentary trust. Instead, his claim is that under the arrangement made by him with probate judge Durfee defendant was authorized to acquire, either directly or indirectly, real estate formerly owned by Mr. Cummings and to dispose of it in the same manner that defendant might have handled his own individual property, hut with the understanding that the net proceeds were to be accounted for to the proper custodian of the crippled children’s fund. Notwithstanding in some aspects these earlier real estate transactions may have been highly irregular, nonetheless since- the outcome was beneficial to the trust estate, it may well be questioned that the fact that defendant took title to the real property, subdivided it and sold, a substantial portion, would afford justification for the result reached by the circuit judges; and it is not our understanding that the result reached by the circuit judges was fundamentally based upon the foregoing, but rather upon the aspects of the record about to be considered.
The period of defendant’s alleged misconduct charged by the grievance committee relative to his misuse of trust funds was not the early period of the administration of the estate of George’II. Cummings, deceased, but instead during the period of 1928 to 1936. The matters hereinbefore noted so far as materially involved in the salvaging of the Cummings estate occurred prior to the closing of the estate of the deceased in June, 1928. That is, the plan of subdividing and platting real estate formerly belonging to Cummings had been accomplished. At that time the assets of the estate amounted to $1,250,000, as stated in defendant’s sworn petition for closing the estate of the deceased and the assignment of the assets of the estate to defendant as the surviving trustee named in the will, We' note that defendant now claims the amount was grossly overstated in his petition; but the record discloses that the financial status of the estate was such that in March, 1929, defendant, -as hereinafter noted, petitioned the probate court for and received authority to make a loan of $60,000 out of estate funds then on hand. Adpnittedly the Cummings real estate holdings subsequently materially decreased in value, but that is not a basis of defendant’s alleged , misconduct.
In the main, the gravamen of alleged misconduct of defendant from 1928 to 1936 is the manner in which he took over the large assets of the estate after it had been rehabilitated, and more particularly defendant’s alleged wrongful conduct in self-dealing with the funds of the estate. We deem it of little consequence as to the capacity in which defendant was acting during the period just above noted. Under one view it might be said that as a result of defendant’s failure to give the bonds ordered by Judge Hulbert in 1928 and by reason of the statutory provision (see 3 Comp. Laws 1929, § 15870 [Stat. Ann. § 27.3049]) title to 'the property never vested in defendant as trustee and in legal effect he declined to accept the trust. The result might be, as defendant intimated in his fianl account, that he continued throughout to act in his capacity as an executor. Even if defendant during the period above noted believed he was acting under the oral arrangement which he claims was made with Judge Durfoe, but of which there is no official court record, still at all times and under all circumstances disclosed by this record defendant in respect of the assets of the Cummings estate unquestionably was acting in a fiduciary capacity. And in that capacity, under the circumstances of this, case, defendant had no right, without an express order of the court, to use in self-dealings the funds which he held in trust.
After June, 1928, when Judge Hulbert entered the order purporting to close the estate of George II. Cummings, deceased, and transferring the assets to defendant as the surviving trustee, defendant made no general report to the court concerning the condition of the trust estate until he filed his final account for Judge Murphy’s consideration in June, 1935. In no-report prior to Judge Murphy’s 1935 order closing the estate did defendant reveal to the court in an understandable manner defendant’s self- dealing transactions. They were merely noted as “investments” without revealing from whom purchases of stock were made or to whom payments therefor were made. It was not until some time after the allowance of defendant’s final account in August, 1935, that the nature of the questionable investments by defendant came to the attention of probate judge Murphy. He thereupon appointed a guardian ad litem for the unascertained beneficiaries of the crippled children’s trust. From a report to the court by the guardian ad litem made in May, 1936, the probate court for the first time learned that defendant had used trust funds in purchasing for the trust estate from himself or members of his family 34,119 shares of stock and certificates of indebtedness in the Chemical Research Corporation, and like purchases of 7,120 shares of Wolverine Producing & Refining Company, and that these items, constituting a part of the trust estate, had been purchased at an expenditure of upwards of $231,000 of trust funds during the years 1929 to 1932. The probate court attempted to have defendant make a supplemental final account or to reopen his final account but this was blocked by defendant’s application to the Supreme Court for a writ of prohibition. An order to show cause in that proceeding was issued. By stipulation hearing was adjourned from time to time and finally the prohibition proceedings were dismissed by stipulation in June, 1942. The dismissal was due to the fact that at approximately the same time the accounting suit pending in the Wayne county circuit court (see King v. Emmons, 283 Mich. 116) was dismissed in consequence of a proposed settlement submitted by the parties to, and approved by, the circuit court. It appears in the record before us that in the settlement of the accounting suit defendant herein not only turned over the assets of the trust estate, but he also paid or turned over several thousand dollars of his individual property, and thereupon received a release in full from liability growing out of his relation to, and activities in, the George H. Cummings estate. Incident to the foregoing settlement defendant herein turned over to the trust fund life insurance carried by defendant having a cash surrender value of $31,203. It further appears that in the settlement of the accounting case the Foundation took over from defendant 31,119 shares of Chemical Besearcli stock, some of which had been purchased at $20 per share from defendant or members of his family with trust funds; and that the market value of this stock during the year of the final estate settlement (1935) varied from $2.35 down to $1.65 per share. The record shows that at no time pending-negotiations for the settlement of the accounting suit was the Chemical Besearch stock worth as much as had been paid for it. And further, in connection with the settlement of the accounting case, it may be noted that one of defendant’s witnesses in testifying before the grievance committee said: “he (defendant herein) has turned over, as I understand it, practically everything he had in the world to the Cummings estate or to the orthopedic concern (with which the foundation has been merged).” And the member of the grievance committee who dissented from the recommendation of the other five members of the committee, at the conclusion of the hearing-said: “Mr. Emmons and his immediate family have given up every asset they have.”
Under the record before us it is quite impossible to overlook certain portions of it which, to say the least, quite clearly indicate that even defendant himself did not believe, during- the period with -which he has been charged with misconduct, that in 'conse quence of Ms interview with Judge Durfee in 1920, defendant might rightfully deal with the assets of the estate without regard to his duties and obligations as a trustee. For example, in 1929, when defendant was desirous of making the so-called G-lancy loan of $60,000 in which loan defendant was interested as one of the borrowers, for the obvious purpose of being authorized to make the loan he filed a petition in the probate court and upon a showing made' obtained an order' authorizing the loan. In 1931, depression conditions came about in consequence of which defendant deemed it advisable to minimize obligations of purchasers of lots in subdivisions of the Cummings real estate. Instead of doing this by reason of his individual right and authority on which he now relies, he petitioned the probate court for authority, saying in his petition: “If your petitioner were so authorized to take action as circumstances may dictate in each case; such as remitting interest in whole or in part, granting discount of not exceeding 10 per cent, for payments in full,” a desirable result would be accomplished. This petition was granted by the probate judge. And again in 1932, a petition of similar purport was filed in the probate court and the order sought granted, permitting petitioner to grant larger concessions to land contract purchasers than was provided in the 1931 order. As bearing upon the capacity in which defendant made these petitions to the probate court, we quote the following from his 1932 verified petition, which in these respects is much like his earlier petition.
“The undersigned, executor and trustee of said estate, hereby presents this petition to the court for instructions:
1‘1. Under date of July 2,1931, this court entered an order authorizing petitioner to make settlement with land contract purchasers upon the terms therein set forth.
“2. A considerable amount of money was realized for the estate through following the terms of said order.
“3. However, existing financial conditions have grown worse during the year. '* # *
“Wherefore your petitioner prays that this court may consider this subject and by its order instruct your petitioner as to the action he may take in the premises.”
v We do not overlook, but are not impressed by defendant’s present contention, that the foregoing applications to the probate court were made in consequence of insistence and pressure brought to bear by attorneys who represented parties who had purchased lots in the subdivisions. No such intimation is made in any of the petitions filed in the probate court for the purpose of obtaining- the respective orders. 'In any event the explanation is not claimed to be applicable to defendant’s 1929 petition to make the Glaney loan. It is difficult to conclude that an attorney of the outstanding ability of defendant would deem it necessary to apply to the probate court in such matters as those above noted if he really believed that by reason of an arrangement with Judge Durfee in 1920 and the subsequent probate sales of Cummings real estate he had the authority in handling these real estate transactions and the proceeds therefrom to act wholly apart from the direction or control of the court, or that he then understood and believed, as contended in defendant’s brief, “These joint venture contracts (for the development and sale of the' subdivisions) were not assets of the estate at all, but belonged to respondent individually.” As giving some further light on this phase of the case, it appears from the record in the suit for an accounting brought by the guardian ad litem in 1936, in behalf of the beneficiaries of the crippled children’s trust and against the-defendant herein, defendant filed a sworn answer wherein he said:
“He admits that after the allowance of his final account (in June 1928) as executor as aforesaid, he continued the administration of. said estate of George II. Cummings, deceased, as the trustee of the trusts created under the last will and testament of George H. Cummings, deceased, and expressly avers that in that connection he at all times held aiid administered the rest of said trust as such trustee.”
In another paragraph of defendant’s answer filed in the same suit he, under oath, made the following statement:
“That commencing in the year 1929, this defendant, being in the need of funds to meet his personal obligations and therefore in the need of disposing of securities held by him, and particularly his interest in the Chemical Research Corporation, as aforesaid, determined to sell his interest therein to' this estate, which he did over a period from the year 1929 through the year 1931.”
While in the portion of defendant’s answer just above quoted he also states that the sales made by him to the estate were made at less than the then market value, that alone would not justify the transaction since the stock involved was of a highly speculative value; and his claim in that regard may well be questioned under the record before us. Defendant’s sales of Chemical Research Corporation stock belonging to himself or members of his family in 1929, were on the basis of $20 per share; but the market value of this stock in 1929, as listed on the Toronto Exchange, was a high of $21.50 with a low of $6 per share. And from the same source it appears the market value of this stock in 1931 dropped to a low of $1.50 per share. By August, 1935, defendant had passed over to the estate as a part of its assets 34,119 shares of Chemical Research stock which had theretofore been the property of defendant or members of his family. He likewise sold to the estate 7,120 shares of stock which defendant or members of his family held in the Wolverine Producing & Refining Company. The former stock was carried in defendant’s account with the estate at a value of $184,414, and the latter at $10,680.
In defendant’s reply brief he refers to his dealing with trust funds in the Chemical Research stock as not being a sale “but which was in fact merely setting aside the stock for the benefit of a crippled children’s fund.” Such a contention cannot be seriously entertained under this record. Numerous checks were issued against trust funds in payment for Chemical Research stock which theretofore •belonged to defendant or members of his family. The record is barren of any testimony tending to show that defendant petitioned the probate court for authorization of such an investment. And in schedules attached to defendants 1935 final account as ‘ ‘ executor and trustee ’ ’ there appears among the assets belonging to the estate the following items “7,120 Shares. . . .Wolverine Producing & Refining Co. $10,680” and “34,119 Shares. . . . Chemical Research $184,414.” After having procured an order of the probate court approving defendant’s final account as “executor and trustee,” with the above items included, defendant cannot now be heard to say he did not sell the stock to the estate.
The record before us is replete with evidence of defendant’s self-dealings with the trust funds here involved. Many facts and circumstances, not hereinbefore noted, appear in the record, but reasonable bounds of decision forbid their detailed recital herein, nor is such recital necessary since to do so would not alter final determination. We have not overlooked defendant’s testimony that in developing the real estate subdivisions, above noted, he assumed personal liabilities in large amounts; that as to self-dealing transactions he kept in his file collateral security to indemnify the estate against loss; or his contention that lack of revealing details in his reports filed in the probate court was justified by the established practice in Wayne county of receiving in lieu thereof reports of certified accountants as to the accuracy of the account so filed, and that such practice was followed by defendant. We have considered defendant’s claim that his failure to give a trustee bond of $100,000, as ordered in 1928 by probate judge Hulbert, was due to the fact that bonding companies were unwilling to give a bond in that amount, and further that the amount of the bond was fixed in anticipation of an early sale of a valuable piece of real estate, but that since the sale did not materialize, the need for giving the ordered bond ceased. However, the petition which led to the order for the $100,000 bond makes no mention of a contemplated sale of real estate; and defendant’s explanation hardly applies to his also having been guilty of failure to give either of the two smaller trustee bonds which were also ordered by Judge Hulbert in 1928. We are also mindful of defendant’s contention that by the early probate sales of the real estate formerly belonging to George H. Cummings the title thereto through conveyances from purchasers at the probate sales 'became vested in defendant and thereupon he became the absolute owner thereof, and further that in other litigated cases involving real estate formerly property of George IT. Cummings it was adjudicated in effect that title thereto had been vested in' defendant and thereby defendant asserts that issue became res judicata; and a like claim that the order of the probate court approving defendant’s final account is res judicata of the questions therein involved. None of these matters or others not detailed herein are controlling or such as alter ultimate determination; nor had the matter now before the Court or any controlling aspect thereof been adjudicated prior to the hearing in the circuit court.
On the other hand, we have not stressed or been influenced by the disclosure in this record that for his' services in the Cummings estate defendant, by probate orders, was rather liberally compensated in the amount of $125,000. The justness of the ordered compensation is not challenged.. Likewise we have refrained from reciting the details of the many and devious ways in which defendant has sought to, and has succeeded in, deferring final decision in the 'proceedings now before us.
Notwithstanding one of the six members of the grievance committee filed a minority report which we have considered, we are in accord with the prevailing conclusion reached by the grievance committee in part contained in the accompanying footnote. The record in the grievance committee proceedings was painstakingly reviewed by three circuit judges; and the conclusion reached by the committee followed. We fully approve the commendatory statement of one of the circuit judges who in announcing decision in the trial court said:
“I think that the commissioners of the State Bar Association, the grievance committee that was assigned to this matter, its counsel, and especially Mr. Brand have done a hard and difficult job, an exhaustive job and a praiseworthy job. * * -* I feel that the majority report of the committee should be confirmed, including the disciplinary order, and that a disciplinary order of disbarment should he entered.”
The record before ns necessitates concurrence with and affirmance of the holdings of the circuit judges, the. gist of which is that throughout his activities in connection with the Cummings estate and the testamentary trust defendant herein was acting as a fiduciary, that he wrongfully failed to give bonds ordered by Judge Hulbert in 1928, that defendant improperly and wrongfully used trust funds in self-dealings; and we find this resulted in prejudice and loss to the trust estate, that such self-dealings were intentionally and wrongfully concealed by defendant from the court having jurisdiction of the matter, and that, notwithstanding defendant’s claim of good faith and exercise of his best judgment, under this record a disciplinary order was essential. On this appeal of necessity consideration has been given to the measure of severity of the discipline imposed. The course of misconduct charged against defendant was not inadvertent. Instead it was deliberate and continued over a long course of years. The disciplinary order 'is not without precedent in this jurisdiction. See In re Radford, 168 Mich. 474, and In re Hartford, 282 Mich. 124. As was said of the defendant in the Hartford Case so it might well be said of defendant in the instant case.
“His actions exhibit a gross disregard of the obligations imposed upon him by virtue of his status as an attorney and officer of the court, and are not compatible with the attitude and sense of moral responsibility which must be possessed by those with whom the administration of justice is entrusted if the respect and dignity of the courts is to be maintained. ’ ’
We find nothing in this record which Would justify us in deviating from the determination of the three judges in the circuit court of Wayne county, disbarring defendant from the practice of law in this jurisdiction. The judgment so entered is affirmed.
Butzel, Sharpe, and Dethmers, JJ., concurred with North, J.
Bushnell, J.
Notwithstanding the thorough and painstaking manner in which this matter has been considered, I nevertheless feel that, under the circumstances, disbarment is too harsh. I would . modify the order of the circuit court to provide for a three-year suspension rather than disbarment.
Carr, C. J., and Boyles, and Reid, JJ., concurred with Bushnell, J.
“Bindings — Conclusion. The committee finds and concludes * * * (e) that as to the funds disbursed by him (defendant) in the transactions relating to said securities, he was a trustee and fiduciary and in dealing with himself individually and for his family he was in a position where his personal and family interests conflicted with the discharge of his duties and obligations as such trustee and fiduciary; (d) that by reason of such conflict he could not, and did not, exercise tie proper and required judgment and discretion required of Mm as trustee and fiduciary with respeet to said funds and the trust thereof; (e) that in making said disbursements he was motivated by his personal financial needs and not bj^ the best interests of the trust or of those beneficially interested in the funds so used; (f) that the prices at which he testified said securities were acquired were unwarrantedly high and were not fixed or determined in a manner protective of the trust; (g) that, at least, the Chemical Research stock and certificate of indebtedness, and the Wolverine & Detroit Bankers Company stock, were, under the circumstances, highly speculative,' uncertain and improper for investment of the trust funds therein; (h) that the investments made by respondent in or in connection with the stocks and securities owned by him or his family were not made in the exercise of good faith on his part as trustee of the funds disbursed by him; (i) that respondent wilfully sought to and did conceal the making of such investments from Judge Murphy in respondent’s 1935 petition for reduction of trustee bonds and in procuring the order therefor, in his 1935 final account and in procuring court approval thereof, and in his 1936 supplemental account; and (j) the estate of George H. Cummings, the trust for crippled children created by his ,wül, and the beneficiaries thereof were seriously damaged by the conduct of respondent pertaining to said securities and the disbursement of the trust funds in connection therewith. ’ ’ | [
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Boyles, J.
One George Wing suffered a personal injury resulting in bis death, while an employee of the defendant Refiners Transportation & Terminal Corporation. On November 30, 1944, Etta Wing, as guardian of Janet Wing, his seven-yéar-old daughter, was awarded compensation for his death, by a deputy commissioner of the department of labor and industry. No appeal was taken, and payments are being made pursuant to the award.
A controversy arose between Etta Wing, guardian, and her attorneys, Murl K. Aten and Phillip C. Kelly, appellants herein, regarding the amount of their claim, for attorney fees in connection'with said award. On July 23, 1945, appellants filed in the department a petition for a hearing and determination of the amount of their attorney fees, under the provisions of part 3, § 10, of the workmen’s compensation act (2 Comp. Laws 1929, § 8449, as amended by Act No. 245, Pub. Acts 1943'[Comp Laws Supp. 1945, § 8449, Stat. Ann. 1946 Cum. Supp. §17.184]), to which reference will again be made later.
This petition for determination' of appellants’ attorney fees was heard by a deputy commissioner on September 4, 1945,' and the deputy made a determination and award of $848 to appellants “in full of all legal services rendered in the above entitled cause to the date hereof.” Apparently this was in addition to $152 already paid appellants, making a total of $1,000. This award was filed in the department September 26,1945.
On October 1, 1945, Etta Wing, guardian, wrote a letter to the chairman of the department of labor and industry which was received and filed in the department October 2d, in which she stated:
“I wish to file an appeal on the decision of John J. McGrinty at the hearing heard in Jackson on September 4, 1945 to fix attorney fees, the award is for $848. I have paid them $152 which I think is sufficient.”
This letter further asked for the name of the stenographer in order to obtain a copy of the testimony, and. for “some reliable information” as to what she was supposed to do. The secretary of the department replied promptly by sending to Etta Wing the blanks on which to file a formal claim for review. However, the formal claim for review was not filed until January 8, 1946.
Prior to the filing of the formal claim for review proceedings were taken by the commission on the assumption that this letter constituted a sufficient “claim for review.” On November 6, T945, appellants, having been advised of the filing of this letter through correspondence with the secretary of the department, filed in the department a motion to dismiss plaintiff’s claim for review, the first ground being stated as follows:
“Because said claim for review was not properly filed.”
The gist of appellants’ claim for dismissal of plaintiff’s appeal from the deputy’s award on the above ground, and which is again urged here, was and is that no claim for review was filed within the time limited by statute (10 days from the time of filing the award of the deputy, 2 Comp. Laws 1929, § 8447, as amended by Act No. 245, Pub. Acts 1943 [Comp. Laws Supp. 1945, § 8447, Stat. Ann. 1946 Cum. Supp. § 17.182]). The motion to dismiss was denied by the commission. On the appeal to this Court, by leave granted, appellants again advance the same contention as ground for setting aside an order subsequently made by the commission modifying the deputy’s award. On April 18, 1946, the commission entered an order modifying the award of the deputy commissioner. The present appeal to this Court is from said order. Appellants claim that the commission did not have jurisdiction to modify the deputy’s award.
The wording of the statute prior to amendment by Act No. 245, Pub. Acts 1943, was not substantially changed by the amendment in 1943. Of. Act No. 10, pt. 3, § 8, Pub. Acts 1912 (1st Ex. Sess.) (2 Comp. Laws 1929, §8447 [Stat. Ann. §17.182]), and the same section amended by Act No. 245, Pub Acts 1943 (Comp. Laws Supp. 1945, § 8447, Stat. Ann. 1946 Cum. Supp. § 17.182). The applicable part provides :
“The decision of the member or deputy member of the commission shall be filed with the compensation commission. Unless a claim for a review is filed by either party within 10 days, the decision shall stand as the decision of the compensation commission: Provided, That said commission may, for sufficient cause shown, grant further time in which to claim such review.”
Under this provision, and under the decisions of this Court, plaintiff’s letter filed in the department on October 2d was a sufficient claim for review. In Jones v. St. Joseph Iron Works, 212 Mich. 174, a similar letter to the industrial accident board (now workmen’s compensation commission) asked for “blanks for appeal of my case * * * and full information as to procedure, as I desire to appeal the case upon my own behalf without my attorney. ’ ’ While no formal claim for review in that case was filed within the statutory time, this was held to be a sufficient claim for review. The Court said (pp. 177, 178) :
“(1) Was applicant’s letter above quoted a •sufficient claim for review of the decision of the arbitrators'? * * *
“We are persuaded that the * * * question must be answered in the affirmative. * '* *
“1. The statute (section 5461, 2 Comp. Laws 1915, amended by Act No. 64, Pub. Acts 1919) requires no formality in the claim for review and this Court has on numerous occasions recognized the summary character of these proceedings. Strict rules of pleading are not required. In Kalucki v. American Car & Foundry Co., 200 Mich. 604, where this section of the statute was under consideration, this Court said:
“ ‘It may be noted in passing that a bare statement in writing of plaintiff’s claim for revifew which could be written in two or three lines, would if filed with the board within the 7 days have preserved right of review under the provision of the statute. ’
“And in Brunette v. Quincy Mining Co,, 197 Mich. 301 (16 N. C. C. A. 743), where it was urged that time was needed to prepare the claim for review and assignments of error, we said:
“ ‘The act only requires a claim for review to be filed within the 7 days, which can be quickly prepared and transmitted. Assignment of errors and grounds for review which counsel urge take time to prepare are not required by the act to be then stated. ’
“While the language found in the letter does not strictly follow the language of the statute, we think it was sufficient. ’ ’
See, also, Zielke v. A. J. Marshall Co., 306 Mich. 474.
In the case now before us the commission considered the letter to be a sufficient claim for review. Appellants seemingly recognized the letter as a claim for review in moving the commission “to dismiss the claim for review heretofore filed * * * because said claim for review was not properly filed. ’ ’ Apparently the basis of this claim is that the plaintiff did not file a formal claim for review (on the blanks provided by the commission) until January 8th. Appellants point out that the commission did not extend the time for filing a claim for review, as might have been done under the above-quoted provision of the act, for sufficient cause shown. However, a claim for review having been filed within the statutory 10 days, there was no requirement that time for filing the same be extended by the commission.
. The other ground on which appellants rely to set aside the order of the commission modifying the award by the deputy was stated in their motion to dismiss the claim for review as follows:
“Because more than 30 days have elapsed since the date of filing by plaintiff of her purported claim for review and no transcript of testimony or proceedings in the matter has been filed by said plaintiff.”
The above statement was true at the time the motion to dismiss was filed in the department, November 6, 1945. The statute does not require that an employee who fil§s a claim for review must furnish or file a copy of the testimony and proceedings had before the deputy. Part 3, § 11, of the act (2 Comp. Laws 1929, § 8450, as amended by Act No. 245, Pub. Acts 1943 [Comp. Laws Supp. 1945, § 8450, Stat. Ann. 1946 Cum. Supp. §17.185]). The act does provide that the department may make rules not inconsistent with the act for the carrying out of its provisions (Part 3, § 3 [2 Comp. Laws 1929, § 8442 (Stat. Ann. § 17.176)]). Under that authority the commission had the power to make a rule requiring any party who files a claim for review to file such a transcript. Guss v. Ford Motor Co., 275 Mich. 30. A rule to that effect has been made by the department as follows (Mich. Administrative Code [1944],' Rule 10, p. 350) :
“Whenever a claim for review from an award of the deputy commissioner is filed, the party making such claim for review shall, at his expense, file a complete transcript of all the testimony taken and the proceedings had before the deputy commissioner within 30 days from the date the claim for review is filed.”
On November 29th when appellants’ motion to' dismiss the claim for review was brought on for. consideration and denied by the commission, it entered an order extending for 20 days the time within which the plaintiff might file a transcript of the testimony. It was within the power of the commission to thus, extend the time:
‘ ‘ The commission may grant extensions of time in which to comply with any rule when it shall deem such extensions of time reasonable.” Mich. Administrative Code (1944), Rule 20, p. 351.
It is true the transcript was not filed within the time thus extended by the commission. However, no further objection to the filing of the transcript was made before the commission by the appellants, and its belated acceptance by the commission in the absence of any such objection does not constitute sufficient ground for setting aside the order subsequently entered and now under consideration.. It would have been better practice to enter an. order for .further extension, which was within the power of the commission.
At the outset of this opinion reference is made to the statute under which appellants brought the instant proceeding before the commission (part 3, § 10, workmen’s compensation act [-2 Comp. Laws 1929, § 8449, as amended by Act No. 21:5, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8449, Stat. Ann. 1946 Cum. Supp. §17.184)]). The material part is as follows:
“The fees and payment thereof of all attorneys and physicians for services under this act shall be subject to the approval of the compensation com mission. In the event of disagreement between the parties as to the fees for services of attorneys and physicians, either party may apply to the compensation commission for a hearing in accordance with the terms of section 14, part 3, of the act, or the compensation commission may, by rule and regulation or by a special order in any particular case, prescribe maximum attorney fees and the manner in which the amount may be determined or paid by the employee.”
Doubtless by inadvertence, the provision, supra, “for a hearing in accordance with the terms of section 14, part s, of the act” has not been changed although the legislature by Act Ño. 245, Pub. 'Acts 1943, changed the entire purport and tenor of said section 14, part 3, of the act, so that it no longer applies to such hearings. (See section 14, part 3 [2 Comp. Laws 1929, § 8453, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8453, Stat. Ann. 1946 Cum. Supp. § 17.188)]).. Under such circumstances resort may be had to other pertinent parts of the act, and the applicable rules of the commission. By rule, the commission has provided for compensation for attorneys as follows (Mich. Administrative Code [1944], Rule 18, p. 351) :
“No fee in excess of 25 per cent, of the accrued compensation shall be charged or received for the enforcement or collection of a claim unless approved by the commission, nor shall any fee be charged or taken from an employee’s weekly compensation payment unless approved by the commission. The limitation as to fees shall apply to the combined charges of attorneys who knowingly combine their efforts towards the enforcement or collection of any compensation claim.”
In the instant case the commission was within its authority in making the order here under consideration modifying the deputy’s award of attorney fees to appellants. It lias the authority under part 3, §10, of the act (2 Comp. Laws 1929, § 8449), as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws' Supp. 1945, § 8449, Stat. Ann. 1946 Qum. Supp. § 17.184), supra, to prescribe maximum attorney fees “by a special order in any particular case.” We conclude that a claim for review of the deputy’s award-was filed within the 10-day period after the award was filed in the department, that the commission had jurisdiction, to review the award of attorney fees by the deputy and make a special order in the instant case fixing appellants’ fees.
The order appealed from is affirmed, and the case remanded for further proceedings in accordance therewith, but without costs, appellee not having filed a brief in this Court.
Carr, C. J., and Butzel, Bushnell, Sharpe, Reid, North, and Dethmers, JJ., concurred. | [
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Bushnell, J.
On August 14,1937, Mrs. Henry G. Dykhouse- gave her son, George J. Dykhouse, a general power of attorney, which was recorded in Kent county on September 28, 1937. This instrument did not specifically empower him to enter into any agreement concerning lands.
On March 20,1945, defendant George J. Dykhouse executed an instrument on behalf of his mother, reading as follows:
“For the.sum of $25 the receipt of which is hereby acknowledged. ,The undersigned hereby gives to Harry Bergman an option to purchase the following described property for $2,250 cash; — North half of Northwest quarter 'of Sect. Eleven (11), Township (4), Bange Eleven West (11), located in Allegan county, State’of Michigan, containing 80 acres, more or less.
“In case of a purchase the undersigned agrees to pay one-half of the surveying charges, but not more than $75.
“Said option to be exercised within thirty (30) days.
Sig. Bose Kersey Dykhouse
per Geo. J. Dykhouse”
On April 9, 1945, John H. Yander Wal addressed the following letter to Mrs. Dykhouse:
“In behalf of Harry Bergman we are giving notice that he hereby exercises the option given to him by you under date of March 20, 1945, for the purchase of the following described property for the price of $2 250.
“N.% of NWYL of Sec. 11, Township 4, Bange 11 West, located in Allegan county, State of Michigan, containing 80 acres more or less.
“We are prepared to close this deal as soon as the abstract can be examined by us to see that yon have good legal title to this property. Will you please get in touch with us at once so that we can have the abstract for examination?”
In response to this letter an abstract was delivered, to Yander Wal, who had the entries therein completed to April 23, 1945. On August 13th of that same year Mrs. Dykhouse conveyed the property to Major W. Seery and Grace A. Seery, his wife.
The purchase price named in the option was not tendered by Bergman until after the date of the deed to the Seerys. Mrs. Dykhouse died shortly after this tender was made, and when her executors refused to convey to Bergman, he instituted an action for specific performance of his option agree ment, or damages in lieu thereof. The Wayland State Bank was joined as a defendant in this action because of a mortgage it held on the property.
The testimony intimates that Mrs. Dykhouse was present when her son George signed the option, and it is claimed that she was fully informed as to the facts. It should be added that in 1937, when the power of attorney was given,, a land contract was executed covering the property in question to the Seerys as vendees. Subsequently they defaulted on their payments and the property was sold for delinquent taxes. It was repurchased from the State land office board by Mrs. Dykhouse on November 18, 1942.
The trial judge filed a written opinion in which he discussed the authority of George Dykhouse to execute the option agreement. He held that:
“In and by itself the power of attorney would not authorize him to convey,his mother’s real estate. It does not describe the land nor specifically authorize the sale of any lands.” <
His view was, however, that George had ample authority to act in the matter as his mother’s agent.
The trial judge further directed attention to the fact that Mrs. Dykhouse did not sell the property to, the Seerys until nearly four months after the delivery of the abstract and the expiration of the life of the option. He concluded that Bergman did not exercise the option in accordance with its terms and, therefore, was not entitled to either specific performance or damages.
Bergman has appealed from the decree dismissing his bill of complaint and contends that the Yander Wal letter of, acceptance created a contract enforceable by either party.
. It is elementary that powers of attorney are strictly construed, cannot be enlarged by construction, and that “authority to sell/real estate must ordinarily be conferred in clear and direct language. ’’ 1 Mechem on Agency (2d Ed.), § 802.
See, also, Penfold v. Warner, 96 Mich. 179 (35 Am. St. Rep. 591); Parkhurst v. Trumbull, 130 Mich. 408; Magilavy v. Fekete, 251 Mich. 518; Long v. City of Monroe, 265 Mich. 425; People v. Etzler, 292 Mich. 489; Jaynes v. Petoskey, 309 Mich. 32; and 3 Comp. Laws 1929, §13411 (Stat. Ann. § 26.906).-' '
■ The testimony in this record is not convincing that Mrs. Dykhouse was actually, present, or that she verbally authorized her son George to execute the option on her behalf. Even if such were the case and the rule in DeWar v. Juett, 228 Mich. 84, validated the option, the question still remains: Was the option accepted “according to its terms?”
The applicable rule is stated in Beecher v. Morse, 286 Mich. 513, as follows:
“An option is a mere offer, and * * * acceptance thereof must be made within the time allowed or the optionee’s rights thereunder will be lost. * * * Substantial compliance' with the terms of the option is not sufficient to constitute an acceptance of the offer.”
See, also, Nu-Way Service Stations, Inc., v. Vandenberg Bros. Oil Co., 283 Mich. 551.
The instant option contemplated a cash transaction and was silent as to the furnishing of an abstract. It was required to be exercised within 30 days. Vander Wal’s letter of acceptance of April 9th, though delivered within 30 days, altered the terms of the option. Tender of the purchase price was not made within the required time, but nearly four months later. It must therefore follow, as found by the trial judge, that plaintiff did not exercise the option in accordance with its terms, and is not entitled to either specific performance or damages. Thomas v. Ledger, 274 Mich. 16.
The decree dismissing plaintiff’s bill of complaint is affirmed, with costs to appellees.
Butzel, C. J., and Carr, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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Bushnell, J.
Plaintiffs Kuizema, Stachelski and Kokot are owners of homes 'in Grand Rapids. Kuizema’s property is located at 519 Lexington avenue, N.W., and is “the north' 26 feet, front, by 31 feet, rear of, lot 129, Cummings & Ferry’s Addition.” Kokot resides on the remaining’ south portion of lot 129 and Stachelski on lot 5 of Adams subdivision. These properties are located in the block bounded on the north by Second street, on the west by Stocking avenue, on the south by First street, and on the east by Lexington avenue.'
Defendants Breen are the owners of premises known as 522 Stocking avenue, N.W., and described as “Lot 3 of Adams Subdivision and Lot 131 of Cummings & Ferry’s Addition.” This property has a frontage on Stocking avenue of 147-% feet on the west, a depth of 213 feet on the north, 145 feet on the south, and 117 feet on the east. The irregular shaped building which is now on the property is. 83-% feet by 110* feet by 60 feet by 95 feet. Tbe Breens sought a permit for the erection of a 60 by 100 foot addition to the rear of their present building.
Under the zoning ordinance of Grand Rapids the block, in which the properties involved are located, is designated partly as a “C” commercial district and partly as a “D” industrial district. The Breen property is in the “C” district, where an open space of 25 feet is required in the rear of buildings located thereon. No such rear open space, however, is required in the “D” district, wherein plaintiffs’ properties are located.
The addition, which the Breens propose to erect, will occupy the rear of their property,- in violation of the provision of the zoning ordinance requiring the maintenance of a 25-foot rear yard in the “C” district. After the Breens were refused.a permit-by the city building inspector, the matter was considered by the board of zoning appeals. Plaintiff Kuizema appeared as an attorney representing himself and several other property owners who opposed the issuance of the' permit. After a hearing, the board took the position that, because the zoning regulations applicable to plaintiffs’ properties located in the-“D” industrial district permitted them to build up to their rear lot line, a “variation” should be granted to defendants Breen for the “new building only, under supervision and approval of the building inspection department.”
Plaintiffs then filed a bill of complaint in the superior court, of Grand Rapids and secured a temporary restraining order against defendants Breen and the board of zoning appeals. Upon the hearing of the order to show cause, the trial judge determined that this injunction had been improvidently issued and entered a decree dismissing “the injunction and restraining order.”
Plaintiffs have appealed without first seeking' leave to appeal, and we are'confronted with appellees’ contention that the matter is not properly before this Court for the reason that the decree appealed from is interlocutory in nature. See Court Rule No. 60 (1945), and 3 Comp. Laws 1929, § 15491 (Stat. Ann. 1943 Rev. § 27.2591).
In Cooper v. LaBuda, 308 Mich. 737, 742, we repeated the rule that “the right to appeal is determined not by the form of the order or decree, but by its effect.” (See, also, Lewis v. Campan, 14 Mich. 458 [90 Am. Dec. 245], and Barry v. Briggs, 22 Mich. 201). The manner of applying this rule was set out in Equitable Trust Co. v. Bankers Trust Co., 268 Mich. 394, 397, as follows:
“The test, to determine whether an interlocutory order may be appealed from or not, is whether it affects with finality any of the -rights of the parties in the subject matter or a part of it. The fact that there may be a possible or even a probable return of such subject matter does not warrant it being-treated as a mere interlocutory proceeding pendente lite.”
Therefore, if the decree in question is not a final disposition of the subject matter of the litigation or a part of it, the appeal taken without leave must be dismissed.
The opinion of the trial court recites that:
‘£ The present bill of complaint was filed May 20th, or 12 days after the order became final and in this interval defendants proceeded with the erection of •the building.”
In so doing, defendants assumed the risk of an adverse holding. See Nechman v. Supplee, 236 Mich. 116, 124; Gallon v. Heftier, 284 Mich. 445; Hansen v. Facione, 294 Mich. 473; and authorities annotated in 57 A. L. R. 336 et seq., and 96 A. L. R. 1287 el seq.
The decree, entered in. the trial court, only dismissed the injunction and the restraining order. Plaintiffs’ bill of complaint has not been dismissed and the cause awaits trial.
Plaintiffs saw fit, however, to take a general appeal without leave prior to the trial of their cause. The decree in question was in effect only an interlocutory order from which an appeal may not be taken without leave. The propriety of such practice having been questioned by appellees, plaintiffs’ appeal must of necessity be dismissed, with costs to appellees.
Carr, C. J., and Btttzel, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
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Sharpe, J.
This is a suit to determine whether Act ,No. 370, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 1464-11 et seq., Stat. Ann. 1946 Cum. Supp. § 5.1191 [1] et seq.), known as the county civil service act, is applicable to plaintiff as a clerk in the office of the circuit court commissioner for Wayne county.
Plaintiff, James L. Duncan, was employed in the office of the circuit court commissioner on or about February 16,1937. On'December 1, 1942, he carried a budgetary title of “assistant chief clerk.” Subsequent to the adoption of the county civil service act, he was classified by the Wayne county civil service commission as “clerk 2.” His salary was not changed by the change in classification, nor were his duties affected by such classification.
On November 9,. 1944, plaintiff began a suit to enjoin defendants from attempting or continuing to classify or reclassify him as an employee of the office of the circuit court commissioner and for a declaration that Act No. 370, Pub'. Acts 1941, does not apply to the employees in the office of the circuit court commissioner of Wayne county. An order to show cause was issued upon the filing of plaintiff’s bill of complaint. On December 11, 1945, the trial court filed a written opinion directing the, entry of a decree dismissing plaintiff’s bill of complaint. On- January 9, 1946, a decree was entered in conformity with the opinion filed.
Plaintiff appeals and urges that the office of circuit court commissioner is judicial in nature; that the civil service act cannot apply to the judiciary under the separation of governmental powers under the Constitution; that the act does not, under-its own terms, apply to the judiciary; and that if the act does apply to the judiciary, clerks in the circuit court commissioner’s office would be exempt under section 10, subd. (a) (4). '
Following are portions of the act in question which are material to the issues involved:
“Sec. 12. * * * The powers and duties of the commission shall be as follows:
“ (a) It shall classify all the offices and positions of employment with reference to the examination herein provided for excepting as herein otherwise provided;
“(b)_ Shall from time to time make, in accordance with the provisions hereof, rules adapted to carry out the purposes of this act and not inconsistent with its provisions for the .examination and selection of persons to fill the offices and positions in the classified service, which are required to be filled by appointment, and for the selection of persons to be employed in the service of the county.”
“Sec. 10. * * * The civil service of the county is hereby divided into the unclassified and classified services.
“ (a) The unclassified service shall include:
“(1) Officers elected by popular vote and persons appointed to fill vacancies in such elective offices;
“(2) Officers and employees fot whom the constitution specifically directs the manner of appointment;
“(3) Members of boards and commissions inquired by law to be appointed;
“ (4) A deputy or assistant in each of the elective offices, who in the case of a vacancy in the elective office or inability of such elective officer to perform his duties, would be entitled to perform the duties of the office until the vacancy is filled or the inability removed;
“ (5) Assistant prosecuting attorneys;
“(6) Commissions appointed by the board of supervisors, or by the board of county auditors, under the general law of the state.
“(b) * * * The classified service shall comprise all positions not specifically included by this act in the unclassified service. ’ ’
Plaintiff’s position as a clerk in the circuit court commissioner’s office,, not being specifically within the six statutory exemptions, may not be exempted unless .the office of circuit court commissioner is a judicial office.
The Constitution of Michigan of 1835 makes no mention of the circuit court commissioner.’ Such appears for the first time in the Constitution of 1850, art. 6, § 16, the language being identical with that of the Constitution of 1908, art. 7, § 21. However, the office of circuit court commissioner was known and existed in Michigan prior to the adoption of the 1850 Constitution. See McClintock v. Laing, 19 Mich. 300.
The judicial powers of a circuit court commissioner shall not exceed those of a judge of the cir cuit court at chambers. See Constitution 1908, art. 7, § 21; Chandler v. Nash, 5 Mich. 409; Streeter v. Paton, 7 Mich. 341.
In re Burger, 39 Mich. 203, we said:
“Circuit court commissioners are chosen under the provision of the Constitution empowering the electors of each county to elect officers who may be vested with judicial powers ‘not exceeding those of a circuit judge at chambers.’ Art. 6, § 16. ^But as the Constitution had already conferred the judicial power of the State upon certain courts—Art. 6, § 1 *—this section, as we have frequently had occasion to declare, permitted giving to the commissioners judicial powers in a very subordinate sense only; powers of the sort that are usually denominated quasi judicial; such as are appropriate for the judge’s chambers rather than for the court. It is not competent for the Legislature to empower them to try titles to property; Waldby v. Callendar, 8 Mich. 430; Case v. Dean, 16 Mich. 12; or to decide upon the right to the custody of children; Rowe v. Rowe, 28 Mich. 353; or in short, to exercise the usual powers of courts. * * * In short, the circuit court commissioner is a subordinate’and assistant to the circuit court rather than an independent judicial officer. * * *
“In other words, the determination whether the judicial function has or has not been properly and legally exercised in any' particular case, is necessarily the exercise of judicial power, and therefore jurisdiction in respect to it cannot be conferred on an officer elected merely for ministerial and chamber duties.
“No doubt the statute, Cómp. Laws 1871, chap. 223, empowers circuit court commissioners to issue writs of habeas corpus; but this authority is limited and restrained by the Constitution, and cannot extend to any case where a consideration and decision of the" question raised would be an exercise of the judicial power. The cases are therefore few in which the commissioner would be empowered to act at all.”
In Rosenthal v. American Construction & Realty Co., 262 Mich. 91, we said:
“The Constitution expressly vests the judicial power in the Supreme Court, circuit courts, probate courts, justices of the peace, and such other courts of civil and criminal jurisdiction as the legislature may establish by general law (article 7, § 1). Acting under the above-noted constitutional authority the legislature created the judicial office of circuit court commissioner and vested it with limited judicial powers. The grant of such jurisdictional powers is covered in part by 3 Comp. Laws 1929, § 14964 et seq The jurisdiction in á circuit court commissioner is limited to that conferred by the legislature. In summary proceedings, as in other proceedings before him, the commissioner’s jurisdiction is purely statutory. Davis’ Michigan Practice before Circuit Court Commissioners, § 22. ”
We are in accord with the following from the opinion of the trial court:
“It follows from these authorities that the office of circuit court commissioner is dual in nature— part judicial, part ministerial or administrative. The very term used in designating such court indicates its dual nature. The Constitution, in designating other courts, uses the terms ‘Supreme Court’, ‘circuit courts’, et cetera. Were it the intention of the framers of the Constitution to create circuit court commissioners a court in the judicial sense of that term, it is reasonable to conclude that they would have designated such by appropriate language.
“Viewing the office of circuit court commissioner from the point of its creation, its functions, and its purposes, as these are set forth in the Constitution, the statutes and judicial pronouncements, this Court is of the opinion, 'and finds the fact to he, that the circuit court commissioner is not a ‘court’ in the judicially accepted meaning of that term. As stated by Mr. justice Cooley, In re Burger, 39 Mich. 203: ‘Its powers are of the sort that are usually denominated quasi judicial. ’ ”
, The duties of the clerks for the Wayne county circuit court commissioners are set forth in Act No. 392, § 3, Local Acts 1891. A reading of this section brings one to the conclusion that such duties are obviously ministerial in character and do not call for the exercise of any judicial powers.
In People, ex rel. Vanderburg, v. Brady, 275 Ill. 261 (114 N. E. 25), it was held that the position of deputy clerk-of the supreme court was within the intendment of the State civil service law. The court said:
“The duties of the clerk may be performed by a deputy, and it is not an unreasonable regulation to prescribe reasonable qualifications for persons who may be employed as deputies and removal from office for a lack of efficiency in the performance of its duties. The purpose of a competitive examination is a legitimate one to secure competent service. ’ ’
We are not in accord with the claim of appellant that interference with clerks in the circuit court commissioner’s office is interference with the judiciary. Plaintiff urges that the provisions of Act No. 31) Pub. Acts 1923, adding- section 119a to chapter 2 of Act No. 311, Pub. Acts 1915 (3 Comp. Laws 1929, § 13721 [Stat. Ann. §27.241]), authorizing clerks of the circuit court commissioner “to sign the name of the circuit court commissioner upon all such summonses, subpoenas, citations, dockets, and process for the collection óf costs” and the provisions of Act No. 147, Pub. Acts 1933, amending Act No. 314, chap. 2, § 114, Pub. Acts 1915 (Comp. Laws Supp. 1940, § 13715:, Stat. Ann. § 27.238), authorizing and deputizing a clerk of the circuit court commissioner to perform certain acts in the absence of the commissioner from his office makes such clerks a part of the circuit court commissioner’s office.
We approve of the principle and reasoning used in Attorney General, ex rel. Sullivan, v. McOsker, 84 N. J. Law, 380 (86 Atl. 497), where that court said:
“It must be borne in mind that the object of the legislature was to secure by means of the civil service law efficient public service in the State institutions and in the governmental departments of the State. Therefore, in applying this statute to any particular given case the court must above all recognize and enforce the broad public policy which underlies it. In order to carry out the legislative policy which had in view the welfare of the people, in that, it may receive good and efficient service from its public servants the widest range should be given to the applicability of the law.”
In our opinion, the duties performed by plaintiff as a clerk in the office of a circuit court commissioner are ministerial. His duties have not been changed by the adoption of the act in question. We find nothing arbitrary or unreasonable or any encroachment on any power properly belonging to the judicial branch of our government by the placing of clerks in the offices of the circuit court commissioners under the county civil service act.
Prior to the adoption of the county civil 'service act, plaintiff was an assistant chief clerk in the office of the Wayne county circuit court commissioner. He was appointed by the board of auditors upon the recommendation of the circuit court commissioner. Under the county civil service act the recommending power is in the civil service commission with the appointing power in the circuit court commissioner. The act in question does not in any way modify the structure of the office of the circuit court commissioner. The change relates to the method of selection of employees only. In our opinion the civil service act does not contravene article 4, §§1 and 2, of the Michigan Constitution providing for the division of the powers of government into three departments and forbidding any person belonging to one department exercising the, 'powers properly belonging to another. We are also of the opinion that the civil service commission acted within the scope of its powers in abolishing plaintiff’s former noncivil service title and position of assistant chief cleric and classifying him in the civil service position of clerk 2.
The decree of the trial court is affirmed, but without costs as a public question is involved.
Carr, C. J., and Butzel, Bushnell, Boyles, Reid, North, and Dethmers, JJ., concurred.
See Constitution 1850.—Reporter.
See Stat. Ann. § 27.1975 et seq.—Reporter. | [
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Carr, C. J.
Plaintiff, a taxpayer of the city of Kalamazoo, brought suit in the circuit court against said city, its mayor and its city commissioners, for the purpose of obtaining equitable relief. The bill of complaint, filed November 25, 1944, alleged that for a period of 10 years and upwards past, defendant city had annually contributed to the Michigan Municipal League public funds derived from taxes and assessments, that the city manager, in preparing a budget, for the year 1945, had included therein for the purpose indicated the sum of approximately $500, and that in accordance with the action taken in prior years such item would be approved by the city commission. The bill further alleged that such proposed expenditure was not authorized under-the Constitution, the statutes of the State, or the city charter. Plaintiff asked that the court declare such expenditure to be unauthorized, illegal, and void, and that defendants be enjoined from including the item referred to in the budget of the city for the year 1945, and from paying any money whatsoever to the municipal league. Defendants filed an answer to the bill of complaint, admitting annual payments to the Michigan Municipal League, and that the amount included for such purpose in the 1945 budget was slightly in excess of $500. The answer further alleged that such payments were made in consideration of services received, and denied that the city of Kalamazoo was without authority to make the expenditure in question.
The Michigan Municipal League filed a petition in the case, claiming an interest in the subject-matter of the litigation and seeking permission to intervene as a party defendant. Such permission was granted. Thereupon the intervenor filed its answer to the bill of complaint”, setting forth specifically the nature and purposes of its organization and tlie character of the services rendered by it to its various constituent members, including the city of Kalamazoo.
The present charter of the defendant city was adopted under the provisions of Act No. 279, Pub. Acts 1909, as amended, commonly referred to as the city home-rule act. Section 3 of said act, in prescribing mandatory charter provisions, specifies in subsection (h) the requirement “for an annual appropriation of money for municipal purposes.” The statute must be construed in connection with the home-rule, provisions of the 1908. Constitution, particularly article 8, §§20 and 21. Said sections are as follows:
‘ ‘ Sec. 20. The legislature shall provide by a general law for the incorporation of cities, and by a general law for the incorporation of villages; such general laws shall limit their rate of taxation for municipal purposes, and restrict their powers of borrowing money and contracting debts.
“Sec. 21. Under such general laws the electors of each city and village shall have power and authority to frame, adopt and ■ amend its 'charter and to amend an existing charter of the city or village heretofore granted or passed by the legislature for the government of the city or village and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State. ’ ’
Article 8, § 23, as amended at the general election held November 7,1944, provides:
“Subject to the provisions of this Constitution, any city or village may acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof; and may also sell and deliver, heat, power and light without its corporate limits' to an amount not to exceed 25 per cent, of that furnished by it within the corporate limits, and may also sell and deliver water outside of its^ corporate limits in such amount as may be determined by the legislative body of the city or village; and may operate transportation lines without the municipality within such limits as may be prescribed by law: Provided, That the right to own or. operate transportation facilities shall not extend to any city or village of less than 25,000 inhabitants.”
Attention is also called to article 8, §25, which provides in part:
“No city or village shall have power to abridge the right of elective franchise, to loan its credit, nor to assess, levy or collect any tax or assessment for other than a public purpose. ”
The Michigan Municipal League was organized in 1928 as a nonprofit corporation. It succeeded a voluntary association of cities and villages of the State, designated as the Michigan League of Municipalities, which functioned for approximately 30 years. At the end of the 1944 fiscal year the membership in the corporation consisted of 283 Michigan cities and villages. The articles set forth the pur-' poses of the corporation as follows:
“The improvement of municipal government and administration 'through co-operative effort; and this purpose shall be advanced by the maintenance of a central bureau of information and research; by the holding of annual conventions, schools and short courses; by the publication of an official magazine; by the encouraging of legislation beneficial to the municipalities of Michigan and the citizens thereof; by the rendering of such special and general services as may be deemed advisable; and by the fostering of municipal education and a greater civic consciousness among the citizens of the municipalities of Michigan. ’ ’
The general character of the services rendered by the Michigan Municipal League to its constituent members is set forth in paragraph 11 of its answer, which reads:
“That the Michigan Muncipal League-exists for the purpose of perpetuating and organizing an agency for the co-operation of Michigan cities in the practical study of matters pertaining to municipal government, and the establishment and maintenance of a central bureau of information for use in collection, compilation and dissemination of statistics, reports and all kinds of information relative to municipal government; that 'this information and service, among other things, includes taxation problems, utility regulation, construction and engineering, garbage disposal, zoning, civil service, extension of city limits, streets, paving, housing, law enforcement and ordinances, public welfare, liquor control, research, labor problems, pension, compensation, directories, licensing, police and fire protection, legal assistance, transient merchants, floods, stream pollution, accounting, purchasing, public health, parks and play-grounds, post-war planning, information on .proposed legislation, drafting charters, and many other services which are essential to the efficient management of the different municipalities constituting its membership.”
The expenses of the Michigan Municipal League in carrying on its activities are-paid in the main from fees assessed, on the basis of population, against the cities and villages making up the membership. The Federal census of 1940 shows that in that year the city of ^Kalamazoo had a population of 54,097. The amount assessed against it for the year 1945, was the sum of. $517. The municipal league is governed by a board of directors, selected from municipal officials representing’ .constituent members. A.president, vice-presidents, and a secretary are selected in like manner.
After hearing the proofs of the parties the trial court came to the conclusion that the action of the defendant city in availing itself of the services of the municipal league was not illegal or unauthorized, except as to the legislative activities of the municipal league. Payment for such activities, other than compiling and sending out, to the cities and villages comprising the league, information pertaining to legislative matters, was held, in the' opinion filed by the trial judge, to be unauthorized and improper. A decree was accordingly entered, denying the relief sought against the city and its officials, but enjoining the intervening defendant from:
‘ ‘ 1. Advising and counselling individual members of the legislature and legislative committees of the legislature, either during or between legislative sessions, as to desirable or undesirable proposed and anticipated legislation, and
“2. Drafting legislation and expending money for such purpose, and
“3. Appearing before legislative committees for the purpose of influencing* the actions and reports of said committees upon proposed legislation, and
“4. Approaching individual members, whether assembled collectively or alone and presenting arguments to such members in respect to pending’ or anticipated legislation, provided that this order and injunction shall not be construed as prohibiting said Michigan Municipal League from maintaining’ a legislative^ bureau or from continuing the publication and circulation of its legislative bulletins to its members, containing information for its constituent members as to any legislation proposed or pending before the legislature of the State of Michigan and containing facts and statistics relative thereto affecting- said legislation.”
From the decree all parties have appealed. It is in substance the position of the plaintiff that he is entitled to injunctive relief in accordance with the prayer of the bill of complaint, on the ground that the city of Kalamazoo has no right to pay public funds to the Michigan Municipal League for any purpose. Defendants insist the city has the right to belong to the municipal league, to avail itself of the services furnished thereby, and to make compensation from public funds on the ground that such expenditure is for a proper city public purpose.- It is further urged by defendants that the legislative activities of the municipal league are not unlawful or otherwise improper, and that payment of dues is not open to objection because of such activities iii connection with other services of the municipal league to its members. Emphasis is placed on the fact that there is no claim that the municipal league, or any of its officers, or agents, have resorted to improper methods in presenting arguments and information to legislative committees, or to members of the legislature, with reference to pending or anticipated legislation.
Plaintiff claims in his brief that the petition of the Michigan Municipal League for permission to intervene as a party defendant should not have been granted. The record does not disclose that objections to the order allowing intervention were presented to the trial judge, or that the question was raised at any time .during the proceeding in the circuit court. In any event, we do not think that there was an abuse of discretion on the part of the trial court in granting the prayer of the petition. It appeared from such petition that the Michigan Mu nicipal League is financed solely by the funds received from constituent members, including the city of Kalamazoo, and that a judicial determination that such members may not lawfully appropriate mone^ for the payment of dues to the municipal league would render it impossible for said league to continue with its activities. Sufficient interest to justify the order was shown by the petition. Leave to intervene was properly granted.
The claim of plaintiff that defendant city cannot lawfully pay public funds to the municipal league for membership dues rests on the theory that the pertinent constitutional, statutory, and charter provisions do not authorize such expenditure. Reliance is placed on article 8, § 25, above quoted, and also on article 10, § 12, of the State Constitution. The last cited section reads:
“The credit of the State shall not be granted to, nor in aid of any person, association or corporation, public or private. ’ ’
Defendants do not contend that money may be raised by taxation for other than public purposes, nor that municipal funds so obtained may lawfully be expended for other than such purposes. As before stated, it is urged on behalf of defendants that the city may avail itself of the services of the municipal league and pay therefor, on the theory that the general welfare and public intérests of the'municipality are thereby served. The expression “public purpose” has been frequently discussed in judicial decisions and by text writers. It is difficult, if not impossible, to give to the expression a definite meaning that will be applicable under any and all cir- ■ cumstanees. In 37 Am. Jur. p. 734, it is said:
“A public use changes with changing conditions of society, new appliances in the sciences, and other changes brought about by an increase in population and by new inodes of transportation and communication. The courts as a rule have attempted no judicial definition of a public as distinguished from a private purpose, but have left each case to be determined by its own peculiar circumstances. .Generally, a public purpose has for its objective thé promotion of the public health, safety, morals, general welfare, security, prosperity, and contentment of all the inhabitants or residents within the municipal corporation, the sovereign powers of which are used _ to promote such public purpose. The phrase ‘municipal purpose,’ used in the broader sense, is generally accepted as meaning public or governmental purpose as distinguished from private. The modern trend of decision is to expand and liberally construe the term ‘public use’ in considering State and municipal activities sought to be brought within its meaning. The test of public use is not based upon the function or capacity in which or by which the use is furnished. The right of the public to receive and enjoy the. benefit of the use determines whether the use is public or private. ’ ’
In support of his contention plaintiff relies on the decision of this Court in Detroit Museum of Art v. Engel, 187 Mich. 432. That case involved the constitutionality of an act of the legislature of the State, in terms authorizing the city to make an annual appropriation, not exceeding $20,000 in any one year, for the support of the Detroit Museum of Art. It was held that the act in question infringed the provisions of article 8, § 25, and article 10, § 12, of the State Constitution, above quoted. Prior decisions denying to municipalities the right to use public funds in aid of private industrial .projects were cited with- approval. On behalf of plaintiff it was urged that its operations were conducted for the purpose of benefiting the public and that the appropriation by the city, sought to be authorized by the action of the legislature, was not within the inhibition of the constitutional provisions cited. However, plaintiff’s- operations, while conducted for the benefit of the general public, did not serve a city public purpose. The case did not involve the right of a municipality to avail itself of, and to pay for, information and services of benefit to the city in its governmental capacity. It may not be regarded, therefore, as controlling of the issue in the case at bar.
In Mosier v. Wayne County Board of Auditors, 295 Mich. 27, the board of supervisors of Wayne county undertook by resolution to appropriate public funds to employ a competent person to make a survey among the industrial and agricultural counties of the State, and to form committees in said counties which would create a State committee for the purpose of proposing a constitutional amendment on the subject of the apportionment of representation in the State legislature. It was held that the matter of such representation did not have such relation to the property and business of the county as to require a holding that the board of supervisors had acted within its constitutional and statutory powers. The object sought to be attained was not a county public purpose. As in Detroit Museum of Art v. Engel, supra, the question of the 'power to 'appropriate money, and expend such money, for services rendered to a municipality in the performance of its proper municipal functions was not in issue.
Defendants insist that .the expenditure of public moneys that plaintiff seeks to prevent is for a city public purpose and as such authorized by the provisions of the Constitution above referred to, by the city home-rule act, and by the municipal charter. The provisions of the Constitution of 1908, with reference to cities and villages, were designed to give such, municipalities greater powers of self-government than they had previously had. The city home-rule act, above cited, was enacted with such thought in mind. It seems apparent, also, that the clause of the charter of the city of Kalamazoo, hereinbefore quoted, was intended to give to the city the full measure of powers contemplated by constitutional and statutory provisions.^
In discussing the home-rule act this Court said in Gallup v. City of Saginaw, 170 Mich. 195:
‘ ‘ The new system is one of general grant of rights and powers, subject only to certain enumerated restrictions, instead of the former method of only granting enumerated rights and powers definitely specified. We must assume the act was passed with that intent and construe it accordingly.”
Likewise, in Bowler v. Nagel, 228 Mich. 434, 437 (37 A. L. R. 1154) it was said:
“When the legislature enacted the home-rule act, we must assume that it had in mind the provisions of the new Constitution and was seeking to comply with its provisions. Section 21, above quoted, authorized the enactment of a general law permitting the electors of the city ‘to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.’ Subsection (r) of section 3307, above quoted, delegated to the city the power to provide in its charter ‘For a system of civil service,’ and subsection (t) ‘For the exercise of all municipal powers * * * in the administration of the municipal government, ’ and, generally, to adopt any provision which would ‘advance the interests of the city, the good government and prosperity of the municipality and its inhabitants,’ and ‘to pass.all laws and ordinances relating to its munic ipal concerns subject to the Constitution and general laws of this State.’ Very broad power is here conferred. If we read the provisions of the Constitution and those of the statute together, as I think we should, it seems apparent that the legislature intended to and did confer upon cities the power to manage their own local affairs in their own way provided only that in so doing they should not contravene any constitutional or statutory provision.”
In Village of Kingsford v. Cudlip, 258 Mich. 144, the Court, after quoting article 8, § § 20 and 21 of the State Constitution, .said:
‘ ‘ The purpose of these and other provisions which follow undoubtedly was to secure to cities and villages a, greater degree of home rule than they formerly possessed. The provision for a general law for their incorporation was intended to confer upon them almost exclusive rights in the conduct of their affairs, not in conflict with the Constitution or general laws applicable thereto.”
See, also, City of Pontiac v. Ducharme, 278 Mich. 474; Conroy v. City of Battle Creek, 314 Mich. 210.
In Miller v. Michigan State Apple Comm., 296 Mich. 248, this Court upheld an act of the legislature imposing a tax on the privilege of marketing Michigan-grown apples. In discussing the question whether the act served a public purpose, the Court quoted from the opinion of Justice Cooley in People, ex rel. Detroit & H. R. Co., v. Township Board of Salem, 20 Mich. 452, 475 (4 Am. Rep. 400), as follows :
“ ‘I do hot understand that the word public, when employed in reference to this power, is to be construed or applied in any narrow or illiberal sense, or in any sense which would preclude the legislature from taking broad views of State interest, necessity or policy, or from giving those views effect by means of the public revenues. Necessity alone is not the test by which the limits of State authority in this direction are to be defined, but a wise statesmanship must look beyond the expenditures which are absolutely needful to the. continued existence of organized government, and embrace others which may tend to make that government subserve the general well-being of society, and advance the present and prospective happiness and prosperity of the people.’ ”
Applying the general principle suggested by the language of Justice Cooley, in the light of the home-rule provisions of the Constitution and the city home-rule act, we think it must be said that the city of Kalamazoo had the right to join the Michigan Municipal League, to avail itself of the services rendered thereby, and to expend money out of public funds in payment therefor. The record fully justifies the conclusion that the welfare of the city was thereby served and, hence, that the purpose was a city public purpose.
In commenting on the character of the services received by the city, the trial court said:
“The record is replete with conclusive evidence that the league has for many years rendered many services valuable to its members, and which would have been both difficult and expensive, if not in many cases impossible to obtain from other authentic sources. This court is also of the opinion that services rendered "by the league in the whole to its members have been received at a comparatively reasonable, if not nominal charge.’-’
The statement quoted is fully supported by the facts in the case. The trial court was correct in denying to plaintiff injunctive relief, barring the city of Kalamazoo from participating in the benefits of the services performed by the municipal league. En joining the city in accordance with the prayer of the bill of complaint would, obviously, result in preventing it from availing itself of services well adapted to promote the efficiency of the functioning of the municipal government.
This brings ns to a consideration of the effect of the legislative activities of the Michigan Municipal League on the right of its constituent members to contribute funds by way of annual dues in return for services rendered. On this phase of the case the trial court came to the conclusion that the municipal league “overstepped its legitimate function,” in presenting to members of the legislature, including legislative committees, statistics, information and arguments with reference to the merits of pending, or anticipated, legislative measures. Accordingly, the decree enjoined the municipal league from engaging in such activities other than the maintenance of a legislative bureau and the dissemination of information among the constituent members of the league. Defendants and cross-appellants assert that the decree was erroneous in such respect, claiming that no law or rule of public policy is violated, or has been violated by the legislative-activities of the municipal league, its officers and agents. On behalf of plaintiff it is argued in substance that activities of the character in question are not a proper municipal function and public funds may not be expended therefor. Decisions are cited, in plaintiff’s brief holding that a municipality may not use public funds for the purpose of securing the enactment or defeat of proposed legislative measures. Among the cases of this character are Minot v. West Roxbury (1873), 112 Mass. 1(17 Am. Rep. 52); Coolidge v. Brookline (1874), 114 Mass. 592; Westbrook v. Deering (1874), 63 Me. 231. Attention is also called to other decisions of like import, many of them involving changes in boundaries, or other questions not considered to be proper matters of municipal concern.
Defendants rely on the premise that the mere placing of information and legitimate arguments before public officials having power to act in a given instance is not repugnant to public policy. Attention is called to the decision of this Court in Beal v. Polhemus, 67 Mich. 130. Involved in that case was the validity of a contract under which plaintiffs’ decedent went to the city of Washington, and placed before certain officials of the Federal government the merits of his building, in the city of Ann Arbor, as a location for the post office in said city. The claim was made that the agreement was repugnant to public policy and, therefore, void. In rejecting the contention it was said with reference to the acts of the decedent in carrying out his undertaking:
“It is not shown by the findings or the evidence in the case that he used any improper means to gain his point, or even that he influenced any senator or representative in congress, or any officer of the government, to interfere in his behalf. He went to Washington personally, and, while there, secured the location of the office where he wanted it; but there is not the slightest testimony that he used any undue means to accomplish his end. We cannot presume that he used his personal power, which is said to have been very great, in a corrupt or unseemly manner, or in violation of any public policy. For aught we know, he appeared, as any citizen might and has a right to do, before the proper office at Washington, and stated the merits of his claim so convincingly and conclusively that the location desired seemed to be the most proper and available one. Certainly, there could be nothing wrong in this. ’ ’
See, also, Reinhard v. Grand Rapids School Equipment Co., 211 Mich. 165.
In' 17 C. J. S. p. 575, following a discussion suggesting different views on the subject, it was said:
“Many agreements are admittedly good. All persons whose interests may be affected by any public or private act of the legislature have an undoubted right to urge their claims and arguments, either in person or by counsel professing to act for them, before legislative committees, as well as in coui’ts of justice. An agreement, express or implied, for-professional services in drafting petitions to the legislative body, in collecting evidence, preparing arguments, and • submitting them either orally or in writing to legislative committees or other proper authorities is valid and free from judicial criticism, and it is immaterial that the person rendering such services is not a member of the legal profession.”
As before noted, plaintiff’s argument, and the cases on which he relies, particularly the earlier decisions, go to the extent of denying to a municipality the right to expend public funds in connection with legislative matters. The trend of the more recent decisions on the subject is not in accord with such contention. In Powell v. City and County of San Francisco, 62 Cal. App. (2d) 291 (144 Pac. [2d] 617), the district court of appeals of the first district of California upheld the right of the municipalities concerned to pay the expenses of municipal representatives who went to the city of Washington for the purpose of obtaining the approval of congress for -the continuance of certain utility operations by the city of San Francisco. As in the case at bar, there was no showing, and apparently no claim, that the services were not rendered in good faith, or that any improper methods were resorted to by the members of the delegation.
In the case of In re Carrick, 127 N. J. Law, 316 (22 Atl. [2d] 561), it appears that the legislature had under consideration measures to compromise taxes owing by certain railroads operating’ within the State. The legislative body of Jersey City undertook to appropriate and expend money to present to the'public information relating to the contemplated action. In denying an application for a writ, of certiorari to review the municipal resolutions, it was said:
“The proposed legislation was thought to seriously affect the financial life of the city. Municipal officers have a broad, discretion in promoting the welfare of their communities. This is not a case of private profit, as in Loudenslager v. Atlantic City, 80 N. J. Law, 658 (77 Atl. 1060); aff. 82 N. J. Law, 530 (81 Atl. 1134); Zeller v. Guttenberg, 81 N. J. Law, 305 (83 Atl. 466). In this case, a public question of local interest was before the legislature. The precise manner in which the local authority should present its views rests in the sound discretion of its officials. Courts cannot control the form of public expression.”
• Of similar import is City Affairs Committee of Jersey City v. Board of Commissioners of Jersey City, 132 N. J. Law, 552 (41 Atl. [2d] 798).
In Galveston County v. Gresham (Tex. Civ. App.), 220 S. W. 560, the court of civil appeals of Texas upheld an agreement between county authorities and an attorney for the rendition of services in connection with placing before congress the desirability of the construction of a sea wall within the county. It was held that the project was properly to be -regarded as county business. In answer to the claim that the agreement contravened public policy in that it was a lobbying contract, the court referred to the conclusion reached by the lower court that there was no evidence to support such charge,- and said:
“To say that the record justifies this conclusion is putting it mildly, when, by the uncontroverted testi mony, ‘to represent the county as its attorney before the proper committee or committees of Congress in the matter of the sea wall’ was carried out by the appellee’s simply appearing publicly before the river and harbors committee of Congress, explaining and urging its approval of the protective improvement, and that with no attempt at, nor thought of using his personal influence with any, member of Congress. Such is not this court’s conception of what it takes to make a ‘lobbying’ contract.”
The supreme court of Texas refused to issue a writ of error to review this decision.
A similar conclusion was reached by the supreme court of Iowa in Kemble v. Weaver, 200 Iowa, 1333 (206 N. W. 83). There a board of supervisors, acting on behalf of a public drainage district, employed attorneys to appear before the State legislature for the purpose of obtaining an appropriation to pay an assessment on State-owned lands.' The agreement was upheld as against the contention that' it violated a rule of public policy against lobbying contracts, the court pointing out that no improper influences were exerted on members of the legislature.
An interesting discussion of the question'is found in Meehan v. Parsons, 271 Ill. 546 (111 N. E. 529). In that case the city of Cairo sent its mayor to Washington for the purpose of obtaining Federal aid, through congressional action, in the construction of levees. The right of the city to pay the expenses thus incurred was questioned. In sustaining the right to recover such expenses, it was said:
‘ ‘ The principal contention made and the one most strenuously argued by appellees is, that it is contrary to public policy’ for the city to reimburse Parsons for expenses incurred in securing the passage of the act appropriating $250,000 for repairing and strengthening the levees at the city of Cairo. Appellees cite a number of authorities under the propositions, first, that ‘an agreement for compensation contingent upon obtaining legislation is void;’ and second, that ‘a contract to promote the passing of laws and ordinances and paying expenses or compensation therefor is against public policy and cannot be enforced. ’ The first of these propositions is not applicable to the facts in this case, and the second proposition is not sustained by the authorities cited in support'thereof. The cases cited by appellees do' hold, and properly, that an agreement for compensation which is contingent upon obtaining certain legislation is void. No such situation is presented by the facts in this case. While appellants aver in their answer that Parsons attended upon the sessions of Congress in Washington at the instance of the city, it is nowhere alleged by appellees, or admitted by appellants, that Parsons was to receive any compensation contingent upon obtaining the desired legislation. On the contrary, it does definitely and clearly appear that Parsons is claiming only a portion of his proper, necessary and suitable expenses incurred in connection with the three trips he made to the city of Washington, and that he had no personal interest whatever in the outcome, and that personally he would neither be benefited nor damaged by any action which Congress might take in the matter. The courts have not gone so far as to hold that in no event and under no circumstances is it proper to interview and importune members of a 'legislative body to enact certain legislation in which the party importuning them may be interested. The interests of the city of Cairo would undoubtedly be affected by whatever action Congress should choose to take.in reference to the appropriation for the building- of its levees. Should Congress refuse to appropriate any sum whatever,. the whole burden of building and maintaining its levees would, rest upon the city. That burden would be lightened by whatever appropriation Congress should see fit to make. The city therefore had the undoubted right to authorize its chief executive to appear before the various congressional committees and interview the members of Congress to urge upon them the claims of the city and to advance any legitimate argument in favor of the passage of an appropriation bill for the relief of the city in this respect. Having the undoubted right to intercede with the members of Congress and to appear before its committees through its authorized agent, it must follow that the city undoubtedly would have the right to pay the necessary and legitimate expenses of its agent in presenting its claims to the members of Congress.”
See, also, County of Campbell v. Howard, 133 Va. 19 (112 S. E. 876); Denison v. Crawford County, 48 Iowa, 211; Davis v. Commonwealth, 164 Mass. 241 (41 N. E. 292, 30 L. R. A. 743); Crawford v. Imperial Irrigation District, 200 Cal. 318 (253 Pac. 726); West v. Coos Co., 115 Ore. 409 (237 Pac. 961, 40 A. L. R. 1362); State, ex rel. Hunt, v. Okanogan Co., 153 Wash. 399 (280 Pac. 31, 67 A. L. R. 668).
. In considering the question before us, we may properly take into account that under the State Constitution, art. 8, § 23, above quoted, municipalities of the Staté are authorized to own and operate certain public utilities. Pursuant to such provision and the city home-rule act, the city of Kálamazoo is. invested with powers of a proprietary nature, which it is required to exercise for the use and benefit of its people. Legislation, pending or anticipated, affecting the performance of such functions, necessarily concerns the city. Obviously, private corporations engaged in the operation of public .utilities of the character in question may present their views to the members of the legislature, submitting facts and arguments legitimately tending to aid a proper determination of such questions on their merits. Such being the case, cities and villages should not be denied similar privileges. This necessarily implies the right to compensate from public funds for services rendered and expenses incurred on behalf of such municipalities, in activities of the character in question.
The trial court in Ms opinion suggested, and counsel for plaintiff contends before this Court, that a city may not properly be permitted to delegate the power to promote or oppose legislation at the expense of the city. It is also suggested that occasions may arise when the officers of the municipal Teague may take a position with reference .to legislative matters at variance with the views and attitude of the city of Kalamazoo, or some other constituent member'of the municipal league.' The city, however, by joining the municipal league and accepting its services, does not thereby preclude itself from placing before members of the legislature such facts, information and arguments, as are considered expedient in the interest of proper action as to such matters. It niay, in other words, do exactly what the municipal league,- through its officers and agents, undertakes to do, namely, assist.the members of the legislature in arriving at a ^proper understanding of the situation before it and the effects of the proposed legislative action. The possibility of the officers and agents of the municipal league taking a position at variance with that of the city in a particular instance is not a valid reason for denying to the constituent members of the municipal league the right to receive the benefits of the services available to them.
In view of the present day problems confronting cities and villages, we cannot say that the expendi ture of public funds for tbe purpose of giving to the legislature information with reference to the subject-matter of proposed or anticipated legislation affecting such problems, is against public policy. . As before noted, no claim is made that the municipal league, or those acting in its behalf, have resorted to illegal, improper or otherwise reprehensible means. Its undertaking is to place before members of the legislature, including appropriate committees, views and information designed to aid deliberate and considered action, to the end that the interests of constituent municipalities may be properly protected, and the performance of the municipal functions contemplated by pertinent constitutional and statutory provisions may be aided, by appropriate and expedient legislation.
For the reasons stated, the decree of the trial court will be modified by striking therefrom the provisions enjoining the intervening defendant from engaging in the legislative activities in question. A decree will enter in this Court, denying the relief sought by plaintiff and dismissing the bill of complaint. The case involving matters of public interest, no costs are allowed.
Butzel, Busi-inell, Sharpe, Boyles, Reid, North, .and Dethmers, JJ., concurred.
1 Comp. Laws 1929, § 2228 et seq., as amended (Comp. Laws Supp. 1940, 1943, § -2231 et seq., Stat. Ann. and Stat. Ann. 1944 Cum. Supp. § 5.2071 et seq.).
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Butzel, O. J.
For 18 years prior to December 3, 1944, the date of his death, Oscar F. Poindexter was employed by the Michigan department of conservation, defendant in proceedings to recover workmen’s compensation, brought by decedent’s dependent widow and children, Defendant has brought an appeal in the nature of certiorari from an award in favor of plaintiffs. At the time of his death, decedent was in charge of the water resources branch of the geology division of defendant. He frequently made physical examinations, tabulations and meas urements of water levels and occasionally testified in court proceedings concerning that subject on wbicb be was an expert. In 1943 be appeared only twice in such proceedings, but in 1944, be made 13 •appearances. Attendance at them was accepted by Mm as one of the duties incident tb Ms work, and defendant compensated Mm for the time so. spent.
Prior to November 29, 1944, decedent’s general health appeared to be fair. He suffered from a catarrhal condition and dyspepsia but had lost no time on that account. He was examined by his physician in February and March of 1944, without any observation of heart disease symptoms.
Proceedings had been instituted in the circuit court for the county of Eaton by the board of supervisors of that county and the Michigan department of conservation to establish the water level of Narrow lake. Decedent was thoroughly familiar with the problem. He had measured the water level at various intervals, prepared a hydrographic chart and acquainted himself with the topographic features of the lake area. On November 29, 1944, he appeared in the circuit court, Charlotte, Michigan, to give testimony regarding these matters. His entire testimony is contained in 11 pages of the printed record. He was on the stand approximately 40 minutes. He was questioned on direct examination by the prosecuting attorney for Eaton county and had answered but four simple questions on cross-examination when’ the court took the usual noon recess. He remained in the court room a brief time and then proceeded to the corridor where, with two of his colleagues, he descended the stairs, crossed the lobby and was just about to step down from the first step to the street level outside the court house when he said he was sick. His com- pardons noted that he was pallid and that beads of perspiration appeared on his hands. He was taken into the register of deeds ’ office where he was placed on a cot. A physician was summoned and administered something to ease his pain. Later in the day he was taken to his home in Lansing, Michigan, and his family physician was called. Upon the latter’s orders, he was moved to a hospital and placed under an oxygen tent. He died on December 3,1944. His illness was diagnosed as coronary thrombosis or coronary occlusion, and was so certified by his doctor on the death certificate.
A hearing on the application for compensation was held before a deputy commissioner who, as indicated by the record, made no- separate findings of fact as to the alleged disability or injury except to state in the award that decedent on November 29, 1944, received a personal injury arising out of and in the course of his employment. Appellant claims that this is a conclusion, not a finding of fact; that the department’s oiily real finding on review was that the deputy commissioner was in the best position to evaluate the conflicting testimony relative to the effect that decedent’s court appearance had upon him. Appellant contends that under such circumstances and in accordance with Goines v. Kelsey Hayes Wheel Co., 294 Mich. 156, we may examine the testimony to_ determine whether there is any competent evidence to support the award. We may do this at all times when the claim is made that there is no competent evidence to support the award.
Decedent was a capable and conscientious man well qualified for his work by scholastic training,. ability and long years of experience. He was of an intense and nervous temperament and regarded bis work seriously. He was a busy man and had returned just tbe preceding evening from a mission to Benton Harbor on State business. He stopped at Narrow lake tbe morning of tbe day on which be testified. He knew bis subject matter and was well fortified with charts and maps. Although be- was appearing in court much more • frequently in 1944 than in tbe previous year, there was nothing unusual or overstrenuous in this assignment. He was acting in tbe regular and normal course of bis duties. There was nothing accidental, fortuitous or. even unusual in what occurred in tbe court room. It was claimed that be. was under a mental strain while testifying. This is not uncommon with expert or other witnesses. In its opinion tbe department cites two questions asked of the decedent which it is claimed contributed to his discomfiture. To one of them his answer was: “I would not be prepared to testify on that;” to the other he answered: “I coulcln’t say about that.” Such answers are a poor index of mental strain.
There is no question but that decedent was ill when he took the witness stand. His hands shook when he rested them on the stenographer’s table while testifying from charts and maps. Moreover, in the expert testimony on behalf of plaintiff, it is admitted that coronary thrombosis or occlusion is preceded by untoward conditions. Plaintiffs’ experts were not in full accord, ^ome said the disease began with arteriosclerosis. It was stated that when this condition has reached a certain stage of development;, the thrombosis or occlusion occurs. A large percentage of persons afflicted with the disease have died in their sleep. One of the medical experts for plaintiffs stated that this type of heart seizure occurs frequently after some excitement, that merely listening to a broadcast of a ball game had been known to induce a coronary occlusion. It is a matter of common knowledge that heart disease causes more mortality than any other affliction, and that coronary thrombosis or occlusion is one of its most frequent forms.
Plaintiffs rely on LaVeck v. Parke Davis S Co., 190 Mich. 604 (L. R. A. 1916 D, 1277), where the employee suffered a cerebral hemorrhage and subsequent partial paralysis as the result of working long hours in an exceedingly hot laboratory. There something unusual and fortuitous was shown. In Monk v. Charcoal Iron Company of America, 246 Mich. 193, also relied upon by plaintiffs, the employee succumbed to a heart seizure brought on by’ excitement and over exertion resulting from his attempts to pull the fire from under a boiler after a steam pipe had been broken. Then again in Schroetke v. Jackson-Church Co., 193 Mich. 616 (L. R. A. 1917 D, 64), the employee was affected by overexertion and excitement attendant on an accidental fire, and this Court held that this was something fortuitous and unexpected. There was nothing of that nature in the instant case. Decedent die! from an ordinary disease of life. As we have often stated, the compensation act is neither a health nor life insurance plan. Plaintiffs try to distinguish the instant case from the very recent one of Hagopian v. City of Highland Park, 313 Mich. 608, on the ground that in the latter case plaintiff knew he had a heart condition when he attempted to perform his regular work. The instant case in which no physical strain was shown is far stronger for the rule stated in the Hagopian Case. Decedent was doing exactly what he was employed to *do. There was no trauma or fortuitous event, nor anything even of a dangerous or grave nature. He was suffering from ail ordinary disease of life to which the public is generally exposed when he suddenly succumbed. We need not repeat what we stated so recently in Hagopian v. City of Highland Park, supra.
The award is vacated, with costs to defendant.
Carr, Bushnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred.
See 2 Comp. Laws 1929, § 8451, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8451, Stat. Ann. 1946, Cum. Supp. § 17.186).—Reporter.
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Ryan, J.
(to vacate order of the Grievance Board). I must respectfully disagree with the opinion of the Chief Justice.
Following publication of my original opinion in this case, affirming in part the decision of the State Bar Grievance Board and suspending respondent from the practice of law for two years, the United States Supreme Court decided Ohralik v Ohio State Bar Ass’n, 436 US 447; 98 S Ct 1912; 56 L Ed 2d 444 (1978). Thereafter that Court directed us to reconsider our original decision in light of Ohralik, supra.
Having done so, I am persuaded that Ohralik forbids us to construe this state’s Code of Professional Responsibility and the Supreme Court Rules governing the State Bar of Michigan as prohibiting the particular conduct for which we disciplined respondent.
In our original decision, we did not consider the then undeclared constitutional dimensions of the disciplinary rules prohibiting attorney solicitation. We confined our inquiry to whether respondent’s conduct violated the literal prohibitions of DR 2-103(A) and DR 2-103(C). The Supreme Court had yet to provide guidance in the area of attorney solicitation beyond its decision in Bates v State Bar of Arizona, 433 US 350; 97 S Ct 2691; 53 L Ed 2d 810 (1977), dealing with broad restrictions on the impersonal media advertising of routine legal services. The Court has now provided such guidance in Ohralik.
The careful language with which the Supreme Court framed its holding manifestly suggests that disciplinary rules may not prohibit attorney solici tation per se. We would be remiss in our obligation to adhere to the spirit of that decision if we choose to limit its impact on our own disciplinary-rules which prohibit all forms of attorney solicitation. Under Ohralik, in-person solicitation of remunerative employment by an attorney is not removed from the protection of the First Amendment although the level of judicial scrutiny is lower. The appropriate inquiry is whether the particular conduct of the attorney is likely to result in the adverse consequences which the state has a legitimate and important interest in prohibiting. Ohralik, supra, 462-464.
1 am unconvinced that the particular conduct attributed to Jaques in findings I and II rises to the level of "fraud, undue influence, intimidation, overreaching, and other forms of 'vexatious conduct’ ” which the disciplinary rules may properly seek to prevent. Ohralik, supra, 462. Jaques did not directly contact any prospective client. His solicitation was directed to a union business agent who ostensibly represented the interests of union members with potential claims. The union agent possessed the expertise to make a detached and informed evaluation of Jaques’ qualifications before passing any recommendation along to his members. There is no claim that the union official was in fact nothing more than a "runner” or agent for Jaques. Under these circumstances, the union agent served as a buffer between the attorney and prospective clients thus alleviating the potential for overreaching and undue influence.
We have no occasion today to address the propriety of disciplining an attorney for the type of in-person solicitation attributed to Jaques in findings III and IV of the State Bar Grievance Board. Those findings were dismissed on the prior appeal because of procedural irregularities.
While as a lawyer I am now no less offended by the unprofessional behavior of Mr. Jaques in connection with the Port Huron tunnel explosion cases than when I wrote to discipline him for it, in obedience to the authority of the Supreme Court which has given it constitutional countenance, I vote to vacate the order of the Grievance Board.
Kavanagh, Levin, Fitzgerald, and Blair Moody, Jr., JJ., concurred with Ryan, J.
Coleman, C.J.
In State Bar Grievance Administrator v Jaques, 401 Mich 516; 258 NW2d 443 (1977), this Court affirmed, as modified, a State Bar Grievance Board order suspending respondent’s privilege to practice law. The suspension was based on findings that respondent violated DR 2- 103(A) and DR 2-103(C) by personally soliciting others to join in a class action he was planning to file and DR 2-103(0 by requesting the agent for a local labor union to recommend employment of him to persons who had claims arising out of a tunnel explosion. Respondent appealed to the United States Supreme Court which vacated this judgment and remanded the case for further consideration in light of the decision in Ohralik v Ohio State Bar Ass’n, 436 US 447; 98 S Ct 1912; 56 L Ed 2d 444 (1978). The Supreme Court’s action in this case is an indication that we should consider the constitutional issues present in order to resolve whether the state’s action in disciplining respondent violated US Const, Ams I, XIV. The Supreme Court’s reference to Ohralik indicates that the constitutional standard employed in Ohralik should control this case. After reviewing Ohralik, and the constitutional standard applied in that case, we would hold that the suspension of respondent’s privilege to practice law did not offend the Constitution and reinstate the order of suspension.
I
In Ohralik, two girls were involved in an automobile accident with an uninsured motorist. Ohralik, an Ohio attorney, telephoned and visited the parents of the 18-year-old driver and learned that their daughter was in the hospital. He approached the daughter in the hospital and, after a brief conversation, told her that he would represent her. He asked her to sign a representation agreement but she said she would have to discuss it with her parents. After another visit with her parents, he returned to her hospital room where she signed a contingent fee agreement. In the meantime, Ohralik approached the driver’s passenger at her home on the day she was released from the hospital. He offered to represent her on a contingent fee basis and she responded "O.K.” As a result of complaints filed by these two individuals, Ohralik’s license to practice law was indefinitely suspended for violating DR 2-103(A) and DR 2-104(A) of the Ohio Code of Professional Responsibility.
Ohralik appealed to the United States Supreme Court claiming that his actions in soliciting these clients were constitutionally protected and indistinguishable, for the purpose of constitutional analysis, from the advertising in Bates v State Bar of Arizona, 433 US 350; 97 S Ct 2691; 53 L Ed 2d 810 (1977). On appeal, the Court held that "the Bar — acting with state authorization — constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent”. Ohralik, supra, 449. The Court reaffirmed the tenet that:
"The States enjoy broad power to regulate 'the practice of professions within their boundaries,’ and '[t]he interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been "officers of the courts.” ’ ” In re Primus, 436 US 412, 422; 98 S Ct 1893; 56 L Ed 2d 417 (1978).
See Goldfarb v Virginia State Bar, 421 US 773, 792; 95 S Ct 2004; 44 L Ed 2d 572 (1975). However, if the exercise of these powers regulates conduct within the First Amendment’s protective ambit, then such regulations must pass constitutional scrutiny.
In setting forth the appropriate standard of judicial review for this type of case, the Supreme Court carefully identified the First Amendment interests which were, and were not, present in Ohralik. The Court characterized the activities at issue in Ohralik as a "commercial transaction”. The Court was careful not to discard "the 'commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to governmental regulation, and other varieties of speech”. Ohralik, supra, 455-456. These specified "other varieties” refer to political, associational and expressional speech which are at the core of the First Amendment’s protective ambit. "[The] government may regulate in the area only with narrow specificity”, NAACP v Button, 371 US 415, 433; 83 S Ct 328; 9 L Ed 2d 405 (1963), Primus, supra, 424.
However, the solicitation in Ohralik did not involve any "political expression or an exercise of associational freedom, 'employing] constitutionally privileged means of expression to secure constitutionally guaranteed civil rights’ ”. Ohralik, supra, 458. Compare Button, supra; Primus, supra. There fore, the stricter standard of judicial review warranted by those political and associational freedoms was not applicable to that case. While this did not remove such speech entirely from the protection of the First Amendment, it lowers the level of appropriate judicial scrutiny, Ohralik, supra, 457.
In the area of commercial speech, the most commonly recognized First Amendment interest is preserving the free flow of information, see Bates, supra; Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, Inc, 425 US 748; 96 S Ct 1817; 48 L Ed 2d 346 (1976). In Virginia Pharmacy, supra, 763-765, the Court noted that not only advertisers, but also consumers and society as a whole have an interest in preserving the free flow of commercial information. The Court stated:
"As to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.
"Generalizing, society also may have a strong interest in the free flow of commercial information.
"It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable.”
When state regulations affect these First Amendment interests, the regulations will be held unconstitutional if they do not sufficiently advance justifiable state interests, Bates, supra. In Ohralik, the appellant conceded that the state had a legitimate and compelling interest in preventing those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching and other forms of vexatious conduct. The Court agreed that these were important and legitimate state interests, see Ohralik, supra, 462.
However, Ohralik insisted that none of those evils were actually present in his case. He argued that nothing less than actual harm would justify the disciplinary action imposed because any other standard would unnecessarily curtail the free flow of information protected by the First Amendment. The Supreme Court declined to accept this argument stating that "[t]he Rules prohibiting solicitation are prophylactic measures whose objective is the prevention of harm before it occurs”, Ohralik, supra, 464. The Court reasoned that the state’s strong interest in preventing the evils likely to result from unregulated in-person solicitation, together with the fact that it would be difficult to prove that harm actually occurred, justified the prophylactic measures. The Court held that the disciplinary rules could constitutionally be applied to appellant’s conduct even without proof of actual harm.
II
The underlying facts of the instant case as presented to this Court appear more fully in Jaques, supra. The specific charges upon which findings by the State Bar Grievance Board finally were based were set forth in two complaints.
The first complaint charged that respondent, on or about December 13, 1971, personally requested and did meet with Robert J. McLaughlin, Jr., union business agent, for the stated purpose of obtaining McLaughlin’s assistance in soliciting the victims and/or survivors of a tunnel explosion. McLaughlin refused so to endorse respondent. The complaint then alleged that respondent directly and in concert with Edward Paige and/or William Rounsoville solicited or caused to be solicited personal and/or derivative claims from certain named victims and/or survivors (nine in number). DR 2-103(C), DR 2-104(A)(5) and DR 2-105(A) of the Code of Professional Responsibility and the Supreme Court Rules relating to the State Bar of Michigan.
After Wayne County Hearing Panel 17 heard six witnesses, including Mrs. Rose Woolstenhulme, whom respondent allegedly personally solicited at her home after she had lost a husband and grandson in the explosion, and including William Rounsoville, union steward, who allegedly was solicited for recommendations of respondent to survivors/ victims of the explosion, Mr. Jaques offered to plead nolo contendere to charges amended by stipulation. The plea was accepted and a one-year suspension from practice was ordered.
However, the State Bar Grievance Board set aside the plea and remanded to Panel 17 for hearing the testimony to conclusion. Prior to this order a second formal complaint was filed. It alleged that on or about December 15, 1971, respondent met with McLaughlin and volunteered advice to him to bring a lawsuit on behalf of the union in order to bring about inquiry into the causes of the explosion. It further alleged that respondent sought to persuade McLaughlin to solicit and/or seek out survivors and next of kin of deceased victims for the purpose of employing respondent as their attorney. DR 2-103, subds (A) and (C) of the Code of Professional Responsibility and Rule 15, §§ 2(2), 2(3), and 2(4) of the Supreme Court Rules governing the State Bar of Michigan.
The board thereafter ordered the two complaints consolidated and heard. Panel 17 then disqualified itself as did Panel 12. The case eventually was heard by Panel 2 which made four findings and ordered discipline which was modified by the board only as to the amount of costs.
Because only three of the original six witnesses personally appeared, Panel 2 read the transcript of the earlier truncated hearing before Panel 17 and then took ten more days of testimony.
Our Court found that it was error for Panel 2 to have relied upon the earlier transcript. Eliminating that part of the record caused a failure of evidentiary support for findings concerning the personal solicitation of the widow Woolstenhulme and also of the union steward Rounsoville for recommendations to survivors, and others.
We affirmed the remainder of the findings, saying:
"In view of the foregoing we conclude that the findings that Mr. Jaques violated DR 2-103(A) and DR 2-103(C) by personally soliciting McLaughlin and members of the local laborer’s union to join in a class action he was planning to file, and DR 2-103(C) by requesting McLaughlin, the agent for the local union, to recommend him to persons who had claims arising out of the tunnel explosion, heretofore described as Grievance Board findings I and II respectively, are supported by substantial evidence in the record.
"As indicated, we reverse Grievance Board findings III and IV, the alleged solicitation of Rose Woolstenhulme and the alleged request of William Rounsoville to recommend Jaques to survivors of explosion victims.
"The kind of solicitation involved in this case remains the classic example of the public conception of 'ambulance chasing’ which not only exposes the profession to public contempt, but unjustly exposes its thousands of innocent individual members to concomitant derision and contempt despite their steady allegiance to ethical norms and professional self-discipline.” Jaques, supra, 543-544.
We also modified the discipline from a three-year suspension from practice to 24 months. On remand, respondent claims that this disciplinary action must be dismissed because his activities were constitutionally protected and because the facts of this case are not within the narrow holding in Ohralik, supra.
A
The constitutional standard governing the regulation of this type of commercial activity provided in Ohralik also governs this case. Like Ohralik, see Ohralik, supra, 458, respondent does not claim that his conduct involved any political expression or the exercise of an associational freedom in an effort to secure constitutionally protected rights. Therefore, the more stringent constitutional standards employed when these interests are present, see Primus, supra; Button, supra, do not apply in this case. In the context of commercial speech, Bates, supra, and Virginia Pharmacy, supra, established that a state cannot constitutionally curtail the free flow of information by regulation without advancing a justifiable countervailing state interest.
Respondent claims that his conduct provided potential clients with information about their legal rights and remedies and the availability and terms of his legal services. He argues that the disciplinary rules unjustifiably curtail the free flow of this commercial information. However, applying the rules in this case will not necessarily curtail the free flow of this information. The rules do not prohibit respondent from communicating information to people about their legal rights and remedies or recommending that they obtain counsel. The rules only prohibit a lawyer from recommending employment of himself and requesting others to do so. In this respect, the rules are similar to DR 2-104(A). In holding that DR 2-104(A) did not unconstitutionally curtail the free flow of information, the Supreme Court stated, "[t]he Rule does not prohibit a lawyer from giving unsolicited legal advice; it proscribes the acceptance of employment resulting from such advice”. Ohralik, supra, 458.
B
On the other hand, the state’s interests in regulating solicitation by attorneys are particularly strong. In addition to the state’s general interest in protecting consumers, the state bears a special responsibility for maintaining standards among members of its licensed professions. Some of the substantive evils sought to be prevented by the regulations prohibiting solicitation include: stirring up litigation, assertion of fraudulent claims, debasing the legal profession, and potential harm to the prospective client due to overreaching, undue influence and invasions of privacy, see Ohralik, supra, 461. These legitimate interests justify regulations prohibiting solicitation in circumstances where harm is likely to occur, and as a constitutional matter, the absence of any proof or finding of harm in any particular case is immaterial, see Ohralik, supra, 468.
Ill
When determining whether the state can constitutionally impose discipline in this case, the appropriate focus is on respondent’s conduct, see Ohralik, supra, 463. In distinguishing Ohralik, and in support of his constitutional claims, respondent argues that (1) he did not solicit any potential clients in person, (2) his conduct did not create any circumstances likely to present dangers that a state has a right to prevent, and (3) he was not acting for pecuniary gain. Respondent argues that these factors distinguish his conduct from that present in Ohralik and that because this case is not within the narrow holding of Ohralik, discipline cannot constitutionally be imposed.
Contrary to respondent’s interpretation of Ohralik, we find that Ohralik does not represent the only situation in which a state can constitutionally discipline an attorney for solicitation. Ohralik and Primus have been described as the opposite poles of the attorney solicitation problem, see Ohralik, supra, 469 (opinion of Marshall, J.). Whether the Constitution permits or prohibits the regulation of solicitation in situations falling between the two extremes of Ohralik and Primus does not depend solely on whether the factual situation in the case in question is identical to the facts presented in the extreme cases. It depends on how the standards applied in those cases and the considerations underlying those standards apply to the case in question.
A
Respondent contends that this case is distinguishable from Ohralik because he did not solicit any potential clients in person (as confined to findings regarding Counts I and II). He refers to the fact that there were no victims, or survivors of victims, at the meeting, see Jaques, supra, 539. However, Father Maggioni, who represented the families of two of the victims, was present at the meeting. McLaughlin and several members of the local union were also present. It was the personal solicitation of these latter persons which was, in part, the basis of the board’s finding of violation of DR 2-103(A).
Respondent’s actions in requesting McLaughlin to recommend him to others who had claims arising from the explosion did not involve any direct in-person solicitation by an attorney. McLaughlin was not a potential client and he did not solicit any potential clients on respondent’s behalf. Respondent claims that the absence of any Michigan Supreme Court findings with respect to in-person solicitation renders this case distinguishable from Ohralik and indistinguishable from Bates, supra. While the absence of any in-person solicitation of potential clients by an attorney does distinguish this case from Ohralik it does not necessarily require a different result. The gravamen of this complaint against respondent was that he requested another person to recommend employment of him to potential clients in violation of DR 2-103(C).
The use of another person as an intermediary to solicit potential clients may pose dangers as substantial as soliciting them directly. The relative magnitude of these potential dangers depends on the facts present in each case. It can vary depending on the intermediary chosen and the actions taken by the intermediary. The use of some intermediaries may reduce the potential for overreaching present when an attorney solicits clients in person, but there is nothing inherent in the use of a personal intermediary which will necessarily remove the possibility of overreaching, undue influence, and invasion of privacy that the state has a right to prevent.
The potential for overreaching or undue influence is substantial when the intermediary solicits the potential client in person. The intermediary may also be a professional, such as a salesperson, trained in the art of persuasion. Such in-person solicitation, like in-person solicitation by an attorney, "may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection”, Ohralik, supra, 457. It is the presence of these factors which distinguishes this conduct from the advertising in Bates, supra, which simply provides access to "information and leaves the recipient free to act upon it or not”, see Ohralik, supra, 457.
The use of an intermediary who is not an attorney to solicit potential clients may also present other risks. The nonlawyer intermediary may be more likely to misstate the applicable law or the client’s legal remedies, either through inadvertence or ignorance or on purpose, in attempting to persuade the client to employ a specific attorney. The intermediary may even attempt more extreme, less ethical conduct than an attorney might use in soliciting clients because a nonlawyer intermediary might not feel bound to adhere to the standards incorporated into the Code of Professional Responsibility.
The use of personal intermediaries to recommend employment also would signficantly increase the likelihood that the privacy of potential clients would be invaded. Allowing the use of intermediaries would increase the number of potential clients with whom an attorney could communicate. Moreover, once certain attorneys employed intermediaries, others might feel compelled to respond by also using intermediaries. The privacy of all individuals would be likely to suffer as a result.
Finally, the potential for all these harms increases if the intermediary has or perceives that he might have an interest in successfully soliciting clients.
For these reasons, we conclude that the use of intermediaries is just as likely to pose dangers that the state has a right to prevent as direct in-person solicitation by an attorney. The United States Supreme Court recognized that the use of intermediaries, or runners, presents problems similar to those presented by direct solicitation, see Ohralik, supra, 464, fn 22. Therefore, we find that the fact that respondent requested another to solicit potential clients, instead of soliciting them himself, does not necessarily distinguish this case from Ohralik.
B
Respondent also argues that this case is distinguishable from Ohralik because his conduct did not involve "circumstances likely to pose dangers that the State has a right to prevent”. He argues that his activities in requesting the union agent to recommend him were constitutionally protected and that the rules impermissibly impinge on the associational rights of the union members. The Supreme Court has ruled that workers have a constitutional right "to gather together for the lawful purpose of helping and advising one another” in asserting Federal rights, Brotherhood of Railroad Trainmen v Virginia State Bar, 377 US 1, 5; 84 S Ct 1113; 12 L Ed 2d 89 (1964), and that groups can unite together to assert their legal rights as effectively and economically as practical, United Transportation Union v State Bar of Michigan, 401 US 576, 580; 91 S Ct 1076; 28 L Ed 2d 339 (1971). In United Transportation, supra, the Court held that a state may not enjoin members of a union from banding together to gain advice on their legal rights or enjoin a union from recommending selected attorneys to its members. Respondent argues that the premise underlying these decisions is that the union agents will become familiar with and acquire an expertise in recommending attorneys for their members through repeated experiences in this area and, thereby, assist their members in making informed decisions in obtaining counsel. Respondent claims that his conduct in informing the union agent of his availability serves the same function as the advertising in Bates, supra, and allows the union to make an "informed” recommendation. He argues that the union agent will become sufficiently familiar with the problems of legal referral only if attorneys are allowed to contact and advise him and that, once so advised, the union agent will have sufficient expertise to evaluate the different attorneys’ statements and claims. Therefore, he contends that his conduct with respect to the union agent did not create any dangers of overreaching or undue influence since any requests for employment are evaluated by the union agent before being conveyed to the potential clients.
Recognizing that unions can fulfill a valuable and important function in assisting their members to gain access to and in compiling information on the availability of legal assistance, the application of these disciplinary rules to respondent’s conduct will not hinder or diminish the ability of the union to fulfill this function. The disciplinary rules apply to attorneys; they do not directly apply to the union or its members. The rules do not prevent the union from seeking advice from attorneys on behalf of its members. The rules do not proscribe the union from recommending an attorney to its members. The rules do not even prevent an attorney from giving unsolicited legal advice to a union or its members. In the context of the instant case, the rules proscribe an attorney from seeking out a union and requesting that the union recommend employment of him to its members. The application of this rule to respondent’s conduct will not diminish the ability of the workers to associate together in furtherance of a legal purpose. The rule does not undermine the workers’ ability to engage in collective activity undertaken to obtain meaningful access to the courts. Therefore, we decline to accept respondent’s claim that his conduct did not create circumstances likely to pose dangers that a state has a right to prevent. The fact that he initiated the meeting with the union agent and others did not destroy the state’s right to prevent the harms which are likely to result from this type of conduct.
C
Respondent also contends that the disciplinary rules cannot constitutionally be applied in this case because he was not acting for pecuniary gain. In soliciting potential clients for the proposed class action, respondent stated that no fees were to be charged in connection with bringing this suit. He argues that since he had no pecuniary interest in soliciting these clients, it was less likely that he would take any advantage of them. Therefore, his actions did not pose any danger of harm that the state had a right to prevent. This argument does not apply to the board’s finding that respondent requested McLaughlin to recommend employment of him to the survivors of the deceased victims. Respondent does not claim that he was going to represent these people free of charge in connection with their suits for damages.
In Ohralik, supra, 461, fn 19, the Court noted that the presence of a pecuniary motive in attorney solicitation cases creates special conflict of interest problems. While the presence of a pecuniary motive certainly increases the dangers presented by in-person solicitation, the fact that some services are offered free of charge does not necessarily guarantee the absence of a pecuniary motive or eliminate the dangers of overreaching, undue influence or invasion of privacy. One may have a pecuniary motive, or perceive a pecuniary interest, even though no fee is being charged for the immediate service. In the context of the instant case, an attorney may perceive that by prevailing in the initial investigation suit, he may induce others, especially those who joined in the investigation suit, to retain him to represent them in later suits for damages for which a fee will be charged. Also, it is possible for an attorney to perceive that success in his present client’s suit for damages (and, hence, his contingent fee from that client) depends upon persuading others to join in this initial investigation suit. Thus, an attorney may have, or perceive that he has, a pecuniary interest in a case even though no fees are charged for the first phase. Also, money is not the only consideration which motivates people. The desire for publicity or exposure could also motivate an attorney to solicit clients for a case for which no fee would be charged. As Justice Rehnquist noted in another context, "A State may reasonably fear that a lawyer’s desire to resolve 'substantial civil liberties questions,’ may occasionally take precedence over his duty to advance the interests of his client.” In re Primus, supra, 445. (Citation omitted.)
Accordingly, we conclude that the absence of an immediate apparent pecuniary interest is not necessarily determinative of this issue. Even where no such interest is apparent, the possibility of future interests or a combination of other factors may supply an equivalent motive, see ABA Committee on Professional Ethics and Grievances, Formal Opinion No 169 (February 13, 1937), Informal Opinions Nos 99, 100, 101 (unpublished opinions, see ABA, Opinions of the Committee on Professional Ethics [1967 ed], pp 111-112), see also, ABA Committee on Professional Ethics, Informal Opinion No 970 (November 23, 1966).
Furthermore, it is difficult to prove an attorney’s state of mind or motives during these transactions. Therefore, the efficacy of the state’s efforts to reduce the possibility of the evils which can result from solicitation by attorneys would be significantly reduced if the state, having proven solicitation in circumstances likely to present harm, must also prove that the solicitor has’ a pecuniary motive. For these reasons, we conclude that the respondent has failed to show that his conduct did not create circumstances likely to pose dangers that the state has a right to prevent merely by showing that his present investigatory services were offered free of charge. If respondent had no motive for accepting this employment other than desiring to help the victims and others, it is more likely that he would have recommended that they retain another attorney rather than recommend himself and request others to recommend him. Nor would it have been deemed necessary to demonstrate his success in obtaining high verdicts or to display his newspaper clippings.
IV
In summary, we conclude that applying DR 2-103(A) and DR 2-103(C) to prohibit this type of commercial activity wiil not unjustifiably curtail the free flow of information. DR 2-103(A) and DR 2-103(C) do not prohibit the giving of unsolicited legal advice. They prohibit an attorney from recommending employment of himself and requesting others to recommend him. Applying the rule to this type of conduct will not undermine the union’s ability to engage in collective activity undertaken to obtain meaningful access to the courts. These prophylactic measures reflect substantial state interests in preventing solicitation in circumstances where harm is likely to occur. The respondent’s activities created a potential for harm which justified, as a constitutional matter, the application of these regulations in furtherance of the state’s interests even in the absence of proof or a finding of actual harm. The application of these disciplinary rules to respondent’s conduct did not offend the Constitution, US Const, Ams I, XIV. Accordingly, we would reinstate the Grievance Board’s order suspending respondent’s privilege to practice law as modified in Jaques, supra, 544.
Williams, J., concurred with Coleman, C.J.
See footnote 7 in this Court’s original opinion, State Bar Grievance Administrator v Jaques, 401 Mich 516, 543; 258 NW2d 443 (1977).
"The Court expressly reserved the question of the permissible scope of regulation of 'in-person solicitation of clients — at the hospital room or the accident site, or in any other situation that breeds undue influence — by attorneys or their agents or "runners.” ’ [Bates v State Bar of Arizona, 433 US 350, 366; 97 S Ct 2691; 53 L Ed 2d 810 (1977)]. Today we answer part of the question so reserved, and hold that the State — or the Bar acting with state authorization — constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent.” 436 US at 449.
"The American Bar Association, as amicus curiae, defends the rule against solicitation primarily on three broad grounds: It is said that the prohibitions embodied in DR 2-103(A) and 2-104(A) serve to reduce the likelihood of overreaching and the exertion of undue influence on lay persons, to protect the privacy of individuals, and to avoid situations where the lawyer’s exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest.
"We need not discuss or evaluate each of these interests in detail as appellant has conceded that the State has a legitimate and indeed 'compelling’ interest in preventing those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of 'vexatious conduct.’ Brief for Appellant 25. We agree that protection of the public from these aspects of solicitation is a legitimate and important state interest.” 436 US at 461-462.
The union agent in the instant case demonstrated the independent nature of his judgment in such matters by deciding not to recommend Jaques’ services or to forward any of his materials to union members with potential claims.
DR 2-103(A) provided:
"A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer.”
DR 2-103(C) provided:
"A lawyer shall not request a person or organization to recommend employment, as a private practitioner, of himself, his partner, or associate, except that he may request referrals from a lawyer referral service operated, sponsored, or approved by a bar association representative of the general bar of the geographical area in which the association exists and may pay its fees incident thereto.”
See Jaques v State Bar Grievance Administrator, 436 US 952; 98 S Ct 3063; 57 L Ed 2d 1118 (1978).
The issue on remand concerns the state’s power to regulate these types of activities and whether respondent’s activities were constitutionally protected. Accordingly, this opinion will not discuss other nonconstitutional issues such as the appropriateness of these disciplinary rules or whether the rules should be amended for policy reasons. See ABA Report 177B of the Board of Governors, pp 43-45 (1977), ABA, Code of Professional Responsibility (August, 1978). Also, we will not reconsider the other nonconstitutional issues decided in State Bar Grievance Administrator v Jaques, 401 Mich 516; 258 NW2d 443 (1977).
Overreaching has been defined as "aggressive competition among lawyers for clients which leads to lawyers approaching clients at times when the clients are in no condition to properly consider retention of a lawyer”. Note, Advertising, Solicitation and the Profession’s Duty to Make Legal Counsel Available, 81 Yale L J 1181, 1184, fn 23 (1972).
"That on or about December 13, 1971, respondent personally arranged to meet Robert J. McLaughlin, Jr., business agent for Local 463 of the Laborers International Union of North America and did so meet with McLaughlin on said day and date for the stated purpose of obtaining McLaughlin’s assistance, as an officer of said union, in soliciting the victims and/or survivors of victims of a tunnel explosion at Port Huron occurring December 11, 1971.
"That McLaughlin personally, and as an officer of said union refused to endorse respondent as an attorney recommended to said victims and/or survivors by him or the local union.
"That thereafter, from on or about December 13, 1971 to on or about February 1, 1972, and on frequent occasions in the interim respondent, individually and in concert with Edward Paige and/or William Rounsoville solicited or caused to be solicited the personal and/or derivative claims, and/or contemplated personal and/or derivative claims of the victims and/or survivors of said victims of said explosion, to-wit:
"(1) Mrs. Johanna Laretz;
"(2) Mrs. Maddelin Williams; [sic]
"(3) Mrs. Rose Woolstenhulme;
"(4) Mrs. Sue Curtis;
"(5) Mrs. Maggie Epperson;
"(6) Mrs. Judy A. Hardel;
"(7) Francis M. Hamricks;
"(8) Olin Hamricks, Jr.; and
"(9) Joyce Simkins (Mrs.)
"That the foregoing violated Code of Professional Responsibility DR 2-103(0; DR 2-104(A)(5); and DR 2-105(A) and the Supreme Court Rules relating to the State Bar of Michigan.”
"That on or about December 15, 1971, respondent met with Robert J. McLaughlin, business agent of Local 463 of the Laborers Union at Port Huron, Michigan, and did, then and there:
"(a) Volunteered advice to said McLaughlin to bring a lawsuit or lawsuits on behalf of said union for the purpose of precipitating an inquiry into the causes of an explosion in a tunnel being constructed in the vicinity in which members of said union were employed at the time of said explosion;
"(b) Sought to persuade said McLaughlin to act on behalf of respondent to solicit and/or seek out survivors of said explosion and/or next of kin of victims of said explosion for the purpose of employing respondent as their attorney to prosecute any and all compensation or personal injury claims of said victims and/or their next of kin.
"That said conduct is in violation of former Canon 28 of the Canons of Professional Ethics, Canon 2, DR 2-103(A) and (C) of the Code of Professional Responsibility and Rule 15, § 2, [subds] (2), (3), and (4) of the Supreme Court Rules relating to the State Bar of Michigan.”
"I. That Mr. Jaques personally solicited the local laborer’s union and some of its members to join in a class action Mr. Jaques was planning to file to compel the Coast Guard to investigate the tunnel explosion, in violation of DR 2-103(A) and DR 2-103(C). See also DR 2-104(A)(5).
"II. That Mr. Jaques requested the agent for the local union, Robert J. McLaughlin, to recommend him to persons who had claims arising out of the explosion. DR 2-103(C) prohibits a lawyer from requesting another to recommend his employment.
"HI. That Mr. Jaques visited the home of Mrs. Rose Woolstenhulme, whose husband and grandson died in the explosion, and requested to be employed to represent her in violation of DR 2-103(A).
"IV. That Mr. Jaques requested William Rounsoville, steward of the local laborer’s union, to recommend him to survivors of victims of the tunnel explosion, violating DR 2-103(0.” 401 Mich 531-532.
In attacking the constitutionality of the disciplinary rules, respondent does not rely on the overbreadth doctrine. Nor does it appear that such an argument would prevail, see Ohralik v Ohio State Bar Ass’n, 436 US 447, 462, fn 20; 98 S Ct 1912; 56 L Ed 2d 444 (1978), Bates v State Bar of Arizona, 433 US 350, 380; 97 S Ct 2691; 53 L Ed 2d 810 (1977). Respondent contends that the rules can not constitutionally be applied to him.
McLaughlin testified that respondent told him in regard to respondent’s business cards that he could "meet with my people” and pass the cards out, "my people” being the surviving family members of the deceased laborers, see Jaques, supra, 542.
For example, DR 2-103(0(1) permits attorneys to request referrals from a lawyer reference service operated or approved by a bar association.
The Federal Trade Commission has recognized that face-to-face selling techniques may have detrimental aspects even when ordinary consumer products are the only items involved, see 16 CFR §§ 429.1 et seq.; see, also, Ohralik, supra, 464-465, fn 23.
The use of nonlawyers as intermediaries can present potential for harm even if all their attempts at solicitation fail. Not only is the privacy of individuals likely to be invaded but also there is a danger that the solicitee might be misled by some statements of the intermediary. Unless the intermediary is knowlédgeable of the applicable laws and available remedies, he may through inadvertence inaccurately advise the potential client. Relying on this information, a person might forego an available remedy or take some action which is not in his best interest. The dangers presented by this situation are the greatest when the solicitee decides not to consult an attorney. In these situations, the dangers resulting from any inaccurate information may go unchecked.
See ABA, Code of Professional Responsibility, Canon 3, Ethical Consideration 3-3.
Not only does the presence of a pecuniary motive on behalf of the soliciting intermediary increase the potential for the abuses mentioned above, but it also might give the solicitor a motive for stirring up litigation or encouraging people to file fraudulent claims.
See ABA Committee on Ethics and Professional Responsibility, Informal Opinion No 1298 (November 12, 1974).
Applying the rule to this type of conduct will not diminish the union’s access to information concerning legal rights and remedies. When the union desires to assist its members in obtaining legal representation it may contact and discuss its situation with as many attorneys as it deems appropriate. Ideally, the union would contact a sufficient number of attorneys to permit it to make an informed decision or recommendation. There is no showing that prohibiting an attorney from contacting the union and recommending employment of himself will diminish the union’s ability, compare NAACP v Button, 371 US 415; 83 S Ct 328; 9 L Ed 2d 405 (1963).
In this case, for example, there were no findings that respondent did or did not have a pecuniary motive for soliciting the potential clients to join the class action seeking an investigation, see Jaques, supra, 553 (opinion by Levin, J.).
There was no finding that harm actually occurred as a result of respondent’s conduct but this is only because McLaughlin refused to recommend the employment of respondent to the survivors of the victims. | [
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Per Curiam.
On July 30, 1979 this Court declined to grant a request by the Legislature for an advisory opinion on the constitutionality of 1979 PA 57. In doing so we stated:
"[B]ecause the potential claims of unconstitutionality are not particularized, because there is a factual and jurisprudential void, because a premature construction of the Headlee Amendment may embarrass the right especially reserved by that amendment to taxpayers to bring actions in the Court of Appeals, and because the request in part affects legislation such as HB 4277, the effectiveness of which depends on this Court agreeing to this request and responding in a manner predetermined by the Legislature, a majority of this Court is unable, being fully mindful of the importance of the questions involved, and with due respect to the Legislature, to grant the request to render an advisory opinion.” 407 Mich 60, 68; 281 NW2d 322 (1979).
By letter dated December 28, 1979 the Governor has also asked for an advisory opinion on the constitutionality of 1979 PA 57. In his letter, the Governor stated, inter alia:
"The answer to this question is of unique and critical importance to me and to the Legislature as we consider the Fiscal Year 1981 budget. In the event that section la is unconstitutional and such assumptions [financing and administration of a function after December 22, 1978, which was previously performed by local units of government] are not countable as state payments under section 30 [Const 1963, art 9, § 30], it will obviously be necessary for the state to satisfy the requirement by making direct state payments to local units. Such continuation could inhibit the development of new and sound policy initiatives or promote deleterious decentralization.”
While we are not unmindful of the. budgetary planning problems alluded to by the Governor, in the few months which have passed since our previous decision on this matter, none of the concerns which originally prompted us to decline the request for an advisory opinion have been eradicated.
For the reasons cited in our previous opinion, we must respectfully decline the Governor’s request for an advisory opinion on the constitutionality of 1979 PA 57.
We reiterate the observation we made in Bequest for Advisory Opinion on the Constitutionality of 1979 PA 57, supra, at page 68: "The Court stands ready to examine carefully and to resolve expeditiously any controversy that comes to it out of application of [the Headlee Amendment and legislation pertinent thereto] in a factual setting.”
Kavanagh, Levin, Ryan, and Blair Moody, Jr., JJ., concurred. | [
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Per Curiam.
The question is whether the trial court reversibly disallowed expert testimony on the standard of care required of a surgeon treating breast cancer and fibrocystitis because the expert was unfamiliar with the practice in Kalamazoo or similar communities.
In June, 1974, plaintiffs Ethel and Merton Francisco filed a complaint alleging that defendant Parchment Medical Clinic was liable for damages because of breach of contract and medical malpractice. The activities complained of centered upon the actions of two of defendant’s doctors, general practitioner Hoekstra and general surgeon Hammer, with regard to the removal of plaintiff Ethel Francisco’s breasts in February, 1971.
Dr. Hammer was a board-certified general surgeon. However, the trial court refused to admit the testimony of plaintiffs’ expert, Dr. Harvey Golomb of Chicago, as to the standard of care required of Dr. Hammer because the court believed Dr. Golomb "has no knowledge of the characteristics of this community in the medical field and I might add he has no way of comparing it with any other community because he doesn’t know the characteristics of this community”. Subsequently, the trial court entered a directed verdict in favor of the defendant on the malpractice and breach of contract claims.
The Court of Appeals upheld the trial court’s decision to exclude the proffered testimony by Dr. Golomb, holding:
"The ruling that Dr. Hammer is a general surgeon and thus a general practitioner is within the discretion of the trial court and will not be reversed unless clearly erroneous. In reviewing the testimony adduced at trial it is found that Dr. Hammer considered himself a general surgeon and not a specialist. Dr. Hammer at one time operated on all parts of the body, but with the increasing number of specialists in the community, his practice had narrowed to the abdomen, breasts, thyroid and the extremities. There is no showing that Dr. Hammer held himself out as a specialist in the treatment of some particular organ or disease, and thus, it cannot be said that the trial court’s ruling was clearly erroneous. See Anno: Physicians and Surgeons: Standard of Skill and Care Required of Specialist, 21 ALR3d 953. Therefore, the plaintiffs’ argument in this regard is without merit.” Francisco v Parchment Medical Clinic, PC, 86 Mich App 583; 272 NW2d 736 (1978).
In a medical malpractice action the plaintiff generally must show by expert testimony that the defendant failed to meet the required standard of care. Lince v Monson, 363 Mich 135; 108 NW2d 845 (1961). Before the medical expert may testify, the plaintiff must show that the expert knows the appropriate standard of care. Before Naccarato v Grob, 384 Mich 248; 180 NW2d 788 (1970), the standard of care for physicians was that degree of care and skill commonly exercised by the ordinary skillful and prudent physician practicing in the same community as that of the defendant or a similar community.
Although applied with greater flexibility in cases involving specialists, the "character of the locality” remained an essential criterion in determining the standard of care for all physicians. In Naccarato v Grob, supra, the Court ruled that: "Geographical conditions or circumstances control neither the standard of a specialist’s care nor the competence of an expert’s testimony.” 384 Mich at 254.
The specialist is not measured by a local but by a national standard because:
"The reliance of the public upon the skills of a specialist and the wealth and sources of his knowledge are not limited to the geographic area in which he practices. Rather his knowledge is a speciality. * * * Any other standard for a specialist would negate the fundamental expectations and purpose of a speciality. The standard of care for a specialist should be that of a reasonable specialist practicing medicine in the light of present day scientific knowledge.” 384 Mich at 253-254.
The instant record shows Dr. Hammer is a board-certified general surgeon, and hence a specialist. It was reversibly erroneous for the trial court to disallow Golomb’s testimony because he was not familiar with the practice of surgeons in the community of Kalamazoo or similar communities. It does not matter whether the practice in Chicago and in Kalamazoo is similar; the standard for a specialist is a national standard, not a local one.
Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we modify the Court of Appeals decision so as to allow plaintiffs a new trial on the issues of negligence including the issue involving treatment of fibrocystic disease.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
"In order to submit a case of alleged malpractice to the jury, the plaintiff must produce medical testimony to the effect that what the attending physician or surgeon did was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or similar communities.” Delahunt v Finton, 244 Mich 226, 230; 221 NW 168 (1928).
"The rule is firmly established that defendant was bound to use the degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities.” Rytkonen v Lojacono, 269 Mich 270, 274; 257 NW 703 (1934).
"A physician or surgeon is bound to follow usual and ordinary practice of physicians and surgeons of ordinary learning, judgment or skill in his own or similar localities.” Fortner v Koch, 272 Mich 273, 281; 261 NW 762 (1935).
See Sampson v Veenboer, 252 Mich 660; 234 NW 170 (1931).
Pelky v Palmer, 109 Mich 561, 563; 67 NW 561 (1896).
That a board-certified general surgeon is a specialist is supported by the fact that the American Medical Association and the Advisory Board of Medical Specialties recognize general surgery as a specialty. See 1 Lawyers’ Medical Cyclopedia (1966 ed), § 1.8, p 13. Note also a reference by Williams, J., in Siirila v Barrios, 398 Mich 576, 622, fn 12; 248 NW2d 171 (1976), to "specialists such as surgeons”. | [
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Btjtzel, J.
The City of Highland Park filed a bill of complaint against Boyal Oak No. 7 storm sewer drain district (Oakland county), Oakland county, its drain commissioner, and its board of supervisors. Of the bonds issued by Boyal Oak No. 7 storm sewer drain district, plaintiff owns $65,000 face value and certain defendants who have joined the plaintiff in this appeal own an additional $85,000 face value. The bill of complaint recites the .history of the undertaking by means of which a sewer was built under the drain law. It sets forth the nature of the conduits that were built and the claim is made that no facts were disclosed in the record of the original proceedings indicating that the purpose of the structure was other than that of a drain as provided by law. The bill further shows that the entire issue of bonds amounting to $191,000 was sold to a brokerage house and the moneys used exclusively for the building of the drain, acquisition of rights of way, engineering and other incidental expenses, and that the improvement remains in use at the present time and will for many years serve the district. The bonds were issued in 1928.
The bill of complaint refers to the case of City of Highland Park v. Oakland County Drain Commissioner, 300 Mich. 501, where it is stated that the proceedings to establish the drainage district in question were instituted on June 3, 1927, under Act No. 316, Pub. Acts 1923, as amended by subsequent acts but which only authorized the construction of drains. Forty-one thousand dollars of principal as well as some interest was paid on the drain bonds so that there remains $150,000 and interest outstanding and unpaid. Plaintiff admits in its bill that it is impossible for it and the defendant bondholders to sue upon their bonds but alleges that equitable grounds exist for recovery of the full amount of the unpaid bonds or some substantial part thereof from the drain district, or for other relief. Appellants claim fraud on the part of the drain commissioner and in the recitals in the bonds because it was concealed from all prospective purchasers that the project would primarily serve as a sanitary sewer. They allege that the improvement is of value to defendants. They ask that the drain commissioner be ordered by mandatory injunction to levy'upon all lands in the drain district and against the village of Oak Park taxes of sufficient amount to enable the drainage district to discharge the indebtedness, or in lieu thereof, that an account he taken of the cost of such features and parts of the improvement so as to determine what it would have cost if the improvement had been properly designed simply as a storm drain, and that each of the outstanding bonds be reformed to state such amount of principal as would properly represent l/191st of such cost and a decree for such amount be binding upon defendant drain district. As an alternative it asks that the drain district be decreed to be trustee of the property known as the Eoyal Oak No. 7 storm sewer drain, its rights of way and all parts and equipment thereto, to be held in trust for plaintiff and the bondholder defendants, and that said trust be enforced either through transfer of the property to bondholders or through the imposition of an equitable lien in their favor for the sum of $150,000 and interest thereon at the rate of 5 per cent, per annum since May 1, 1940.
Defendant appellees appeared specially and moved to dismiss. They set forth that by. adjudication of the. court no such valid drain district exists (see City of Highland Park v. Oakland County Drain Commissioner, 300 Mich. 501, and cases therein referred to), and they further set forth that in the absence of a valid drain district, defendants Oakland county, its board of supervisors and drain commissioner have no jurisdiction or custody over any physical assets connected with the structure and, therefore, appellants are not entitled to the relief- sought. They assert that as no valid drain district was created, no officers were guilty of fraud; that the duties of the drain commissioner were purely statutory and it was not the present incumbent of the office who practiced the alleged fraud complained of. Defendants claim that if the storm drain district does not exist, it cannot be sued, and the court is without jurisdiction. They further claim that the taxpayers, mortgagees and owners of land from whom plaintiff seeks payment are not before the court; that plaintiff is guilty of laches; that the court is without power to establish a drain district and, if it had the power, the proper parties are not before the court; and that the bill of complaint does not state a cause of action against any of the defendants.
A motion to dismiss was granted without the talcing of testimony. While, as a general rule, on a motion to dismiss allegations well pleaded must be assumed to be true, nevertheless when attention is called to City of Highland Park v. Oakland County Drain Commissioner, supra, involving the same subject matter before the same court, the decision in that- case as far as it governs the facts alleged is final. There, cannot be a rehearing under- the guise of a new bill of complaint. The lower court stated:
‘£ This court is forced to the conclusion that there is no such entity in existence as Royal Oalc No. 7 Storm Sewer Drain District and without it there can be no liability against other defendants who, it follows as a matter of course, do not have custody, control or jurisdiction of the physical assets involved. This conclusion is based upon the many expressions of our Supreme Court, pointing to complete lack of jurisdiction from the beginning in the following cases:
££ £An entire want of jurisdiction,’ £No jurisdiction,’ ‘The proceedings are void for want of jurisdiction.’ (Township of Lake v. Millar, 257 Mich. 135.)
‘ ‘ ‘ The petition as filed conferred no jurisdiction on the commissioner to take action,’ ‘All subsequent proceedings were without authority and void. ’ (Kinner v. Spencer, 257 Mich. 142.)
“ ‘The acts of the drain commissioner were without warrant in law.’ (Village of Oak Park v. Van Wagoner, 271 Mich. 450.)
“‘We think the proceedings void,’ ‘The" drain commissioner was without jurisdiction.’ (Meyering Land Co. v. Spencer, 273 Mich. 703.)
“Null aud void, wholly without authority, _ All proceedings thereunder are void. (Detroit Fire & Marine Ins. Co. v. County of Oakland, 284 Mich. 130.)
“The relief sought in paragraph 1 of plaintiff’s prayer cannot be granted in view of the holding in City of Highland Park v. Oakland County Drain Commissioner, 300 Mich. 501, because if it were illegal and unconstitutional to levy a tax to pay the bonds, it would be just as illegal to levy taxes to pay a judgment such as sought here.
“The relief sought in paragraph 2 of the prayer cannot be granted because the parties defendant before the court do not have possession of, custody or control of the physical assets on which the lien is sought. The $23,000 does not belong to plaintiff and the taxpayers cannot recover it. It belongs to the county general fund.
‘ ‘ This court might well paraphrase the statement of the Supreme Court in International Typographical Union v. County of Macomb, 306 Mich. 562, by saying:
“ ‘Even if we were to hold that the lower court was in error in its reasons for the dismissal of the bill of complaint, which we do not, we would feel compelled to affirm the decree of dismissal by reason of the rule of stare decisis.’ We call attention to the case_ of City of Highland Park v. Oaklaoid County Drain Commissioner, 300 Mich. 501, where we said:
•“ ‘We do not say that Village of Oak Park v. Van Wagoner, 271 Mich. 450, is res judicata of the rights of these relator bondholders; nor do we hold that they had their day in court through representation by the drain commissioner who was the defendant in that action. We do say, however, that the rule of stare decisis should be applied even though equitable considerations might prompt a different result. Detroit Trust Co. v. Detroit City Service Co., 262 Mich. 14, 35. See, also, People v. Droste, 160 Mich. 66, 75, and Colborne v. Railway, 177 Mich. 139, 142. Since we held in 1935, that it was illegal to levy and collect any tax assessed as a result of this project, under the doctrine of stare decisis we must hold now that it is illegal to levy and collect a tax to pay outstanding bonds issued incident to the same project.’
“ Plaintiffs could not recover on express contract. They cannot recover on implied contract. Hanslovsky v. Township of Leland, 281 Mich. 652, 655, 656, and Litchfield v. Ballou, 114 U. S. 190 (5 Sup. Ct. 820, 29 L. Ed. 132).”
It will be noted that in the opinion of the court it is stated the sum of $23,000 has been collected by the county on assessment for the so-called drain from owners of property who made payments prior to the final adjudication that the entire proceedings were void. No testimony was taken in.regard to the $23,000. It is evident from the opinion and the briefs that some owners of property paid the county expressly for the purpose of meeting the bond obligations prior to the entire proceedings being held void. No suit has been brought to recover these payments within the time limited by statute and those who paid the assessments have no further right of recovery. 1 Comp. Laws 1929, § 4927 (Stat. Ann. § 11.91). The rule is stated in 2 Page & Jones on Taxation by Assessment, § 1512, as follows:
■ “The funds raised by special assessment are trust funds, and the city must apply them to the payment of the improvement, even if the statute under which the bonds are issued and the bonds themselves are void.”
The rule is upheld in City of Gladstone v. Throop, 18 C. C. A. 61 (71 Fed. 341), and Willis v. Board of Commissioners of Wyandotte County, Kansas, 30 C. C. A. 445 (86 Fed. 872). We believe, therefore, that an account should be taken of the amount so held by the county and approximating $23,000 and that all the money he divided pro rata among the holders of the outstanding bonds.
Much has been said by the appellants in the series of briefs filed by them in regard to the equities. They again refer to City of Highland Park v. Oakland County Drain Commissioner, 300 Mich. 501, wherein we held that the rule of stare decisis should be upheld even though equity might prompt a different result. We referred to a number of cases including Village of Oak Park v. Van Wagoner, 271 Mich. 450, wherein the same project was under consideration. We must admit that some equitable considerations may arise in these cases but equities may frequently operate against the property owners. In Clinton v. Spencer, 250 Mich. 135, one of the first drain cases involving the same question came before this court. It will be recalled that had the assessment for sewer construction under drain proceedings been upheld and had we found that there was jurisdiction, the drain assessment alone for building the sewer would have been far in excess of the entire assessed value of the lands belonging to the plaintiffs. We should avoid the pitfall of making bad law in hard cases. The rule of stare decisis should be adhered to.
Situations like the present one have arisen before. See McCurdy v. County of Shiawassee, 134 Mich. 550. We believe the leading case is Litchfield v. Ballou, 114 U. S. 190 (5 Sup. Ct. 820, 29 L. Ed. 132), wherein the United States supreme court stated that there could not be any recovery. It is true in the latter case that general tax funds as well as the assessments raised through special taxes were used in the project. In the present case, conduits were buried in lands that plaintiff did not own or have any control over. These lands were publicly owned rights of way and they constitute an essential part of the project. Part of the cost had been paid by other taxpayers who did pay their assessments and it is admitted in the briefs that a good part of the land became the property of the State and was sold at scavenger sales, free from taxes to the bidders at the sale.
In the final brief filed by appellants, they admit that the court has heretofore held the proceedings both for the construction of the drain and the issuing of the bonds to be illegal for want of jurisdiction for the drain commissioner to build a sewer. ■ They now rely upon Act No. 342, Pub. Acts 1939, as amended by Act No. 353, Pub. Acts 1941 (Comp. Laws Supp. 1940, 1943, § 2486-91 et seq., Stat. Ann. 1943 Cum. Supp. §5.2767 [1] et seq.). They claim that Oakland county now has the right to own and operate a sewer and sewage system on a revenue basis and lands belonging to those who did not pay the assessments, but excepting those who purchased the property , at scavenger sale, should be assessed and moneys collected on a revenue basis for the use of the conduit paid to the bondholders. We shall not even discuss these claims. They were not raised in the bill of complaint. So, many questions immediately arise including what rights, if any, the bondholders have at this late date in the conduits, what right they ever had after the conduits were buried in properties not belonging to them, and what would be the value of the property and the conduits if they were unearthed, whether the proper parties are before the court, and whether appellants are not guilty of laches. Many other questions may be raised. Inasmuch as this is a' new question and the lower court had no opportunity to pass upon it, we ¡decline even to consider it.
The-query also arises whether, if a mere storm drain had been built, it would not have been paid for by the $41,000 already paid to the bondholders plus the $23,000 which we decree belongs to the bondholders. On this record, we shall not pass upon whether the entire question is not res judicata under the circumstances.
The decree of the lower court is modified to the extent that the $23,000, or thereabouts, should be divided fro rata among the bondholders; otherwise, it is affirmed, but without costs, each party having prevailed partially.
North, C. J., and Starr, Wiest, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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-58,
-97,
-119,
64,
-39,
64,
52,
123,
52,
77,
85,
77,
-86,
47,
48,
107,
41,
104,
-7,
41,
-48,
-13,
-71,
-123,
91,
4,
32,
94,
-104,
-61,
-22,
58,
-112,
53,
16,
-8,
51,
-90,
-122,
116,
13,
-101,
-120,
34,
-90,
1,
37,
-65,
-16,
-72,
15,
-34,
-115,
6,
-111,
120,
82,
-86,
-68,
-97,
116,
82,
-90,
82,
105,
-43,
91,
108,
-126,
-89,
-26,
-109,
-50,
-12,
-114,
3,
-49,
35,
34,
81,
-49,
118,
76,
103,
18,
91,
15,
-8
] |
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