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Bushnell, J.
Plaintiff Alfred Lawrence Beardsley filed a bill in equity seeking specific performance of an oral agreement claimed to have been made by his adoptive father and mother, Martin P. Beardsley and Blanche M. Beardsley.
Alfred was adopted by the Beardsleys in 1923 when he was 7 years old, and lived with them until his marriage in 1936. During the years of his minority he assisted his adoptive parents in the operation of their confectionery stores, and also • worked in various motor car factories, and turned over his earnings to them. After plaintiff’s marriage, Blanche M. Beardsley in 1939 acquired by inheritance and a settlement agreement certain real property which had belonged to her mother. Alfred claims that shortly before this settlement was effected his adoptive parents entered into an agreement that this property should be placed in their joint names, with the right of survivorship, and that each of them would execute a will so that at the death of the survivor the property would go to plaintiff.
Title to the property in question was taken jointly by Martin and Blanche Beardsley on November 25, 1939. Mrs. Beardsley had executed a will on July 28, 1938, in which she gave, devised, and bequeathed her entire estate, real and personal, to her husband, Martin F. Beardsley. She died on April 27, 1944. This will was never probated, because there was no estate to administer, title to the property in question having vested in her husband under the deed as her survivor.
On July 1,1944, Martin F. Beardsley married the defendant, Rena A. Miller Beardsley. On August 14th of the same year he executed a will in which he gave plaintiff $100, and all the rest, residue and remainder of his estate, both real and personal, to his wife Rena. After his death on October 10, 1944, defendant filed a petition for the probate of this will, which was opposed by Alfred. The opinion of the trial judge indicates that the probate proceedings were enjoined pending determination of the instant case.
Joseph A. Payne, who drafted Blanche Beardsley’s will, testified that this was the only will he drafted for her, and that the 1944 will was the only one he drafted for Martin Beardsley. There is no other testimony in the record with respect to the claimed joint wills.
As indicated by the trial judge, there was considerable ill-feeling between the remaining witnesses who are members of the immediate family. He was of the opinion that none of the testimony of these interested witnesses outweighed the other, and a decree was entered dismissing the bill of complaint. As said in Lau v. Lau, 304 Mich. 218, 223:
“When the testimony is conflicting, the findings of the trial court will be upheld in the absence of a definite showing that a contrary result should have been reached. ’ ’
Decision turns upon the burden of proof; and after a careful examination of this testimony we are obliged to. agree with the trial judge that plaintiff has not sustained this burden. See Ruch v. Ruch, 159 Mich. 231; King v. Luyckx, 280 Mich. 117 ; Eicholtz v. Grunewald, 313 Mich. 666.
Plaintiff also claims that, the trial judge erred in denying his motion for a rehearing on the ground of newly-discovered evidence. This latter contention concerns the proposed testimony of Effie Bearnbien, a neighbor of the Beardsleys, whose affidavit shows that she was- well acquainted with all the parties and that during the last, illness of Mrs. Blanche Beardsley she discussed with her the disposition of her property in the event of her death. The Beaubien affidavit concludes with this statement:
“Deponent further says that she has been very reluctant to become involved in any way in the trouble over the property and, for that reason, had not discussed it with Mrs. Kirby or anyone else prior to the trial but after .the trial of .the case she learned of the outcome and voluntarily came to the office of Pliny W. Marsh, as attorney for the son, and gave him the information as relat.ed in this affidavit. ’ ’
The testimony of Mrs. Beaubien, if admissible, could have been discovered prior to the trial if due diligence had been exercised. We must therefore conclude that this offer was not sufficient to justify a rehearing. Webert v. Maser, 247 Mich. 245.
It is .also argued that the trial court erred in holding that the testimony of plaintiff and his wife was inadmissible because of 3 Comp. Laws 1929, § 14219 (Stat. Ann. § 27.914).
The trial judge was correct in excluding this testimony under the authority of Laird, v. Laird, 115 Mich. 352.
The decree dismissing plaintiff’s hill of complaint is affirmed, with costs to appellee.
Butzel, C. J., and Carr, Sharpe, Boyles, Beid, North, and Dethmers, JJ., concurred. | [
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Wiest, J.
Tbe council of tbe village of Allen Park, by petition, seeks our writ of mandamus directing the village clerk to countersign refunding special assessment bonds, pledging tbe full faitb and credit of tbe village as authorized by tbe council. Tbe clerk refuses so to countersign, claiming such refunding special assessment bonds may not issue unless authorized by vote of the village electorate.' Tbe charter of tbe village requires that bonds be countersigned1 by tbe clerk. Tbe original special assessment bonds, authorized by tbe village council, pledged the full faitb and credit of tbe village, without vote of tbe village electors. Tbe purpose of refunding, in part, is to reduce tbe rate of interest.
The question of law here involved, is well stated as follows in petitioner’s brief:
“Is an electoral vote' necessary, under tbe provisions of Act No. 278, §26, subd. (e), Pub. Acts 1909, as amended?”
Tbe statute, 1 Comp. Laws 1929, § 1788 (Stat. Ann. § 5.1536), relating to prohibited bond issues', provides:
“(e) Or authorize any issue of bonds except special assessment bonds, * * * unless approved by three-fifths of tbe electors voting thereon at any gene-ral or soecial election.”
Counsel for defendant concedes that no electoral vote was required by the village charter. The sole question turns upon, the meaning of the term “special assessment bonds,” as employed in the mentioned section of the village home rule act. The quoted subdivision excepts special assessment bonds from need of electoral authorization.
Counsel for defendant urges us to circumscribe the term “special assessment bonds” as employed in the statute to such as are payable solely from the assessments levied against districts and the collections thereof made. So to hold would render the village, maker of the bonds, a mere tax collector for the bondholders. The right of the village to issue bonds in anticipation of collection of special assessments carries a liability to pay the bonds. Such bonds are excepted from the amount of prohibited village indebtedness.
Counsel for plaintiff cite our opinion in Callahan v. City of Berkley, 307 Mich. 701. That case is in point. Counsel for defendant claims that, upon the pivotal point here involved, the opinion was dictum in that, while the point was presented in the* appeal, it was not argued by counsel representing the parties. It was argued in the brief amicus curiae, rightly considered* and a motion for rehearing denied.
The village clerk is directed to countersign the refunding bonds, as issued by the village council. No costs,
North, C. J., and „Starr, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Butzel, J.
Defendant John Coenis purchased lot 3 of block 2, Warren’s Addition, Bay City, Michigan, and received a deed therefor. He also purchased on land contract lots 1, 2, 4, 5 and 6 of block 2 of the same subdivision. This property is located just within the corporate limits of Bay City and fronts on a four-lane highway leading to Saginaw.
Plaintiff Vollmer was employed by Coenis to build a large brick restaurant on lot 3 and to make other improvements including the erection of a garage and the moving of a barbecue stand from Saginaw and placing it on one of the other lots, all for a consideration of $16,400, part of which was paid in cash on hand and part with the proceeds of a mortgage of $9,000 given to the Peoples’ American State Bank. .Defendants gave plaintiff a note and a mortgage on lot 3 heretofore described for $3,239, the balance unpaid. Defendants owed other amounts, including sums due for fixtures being purchased on title-retention contract. They also were indebted for lumber to the Bressler Lumber Company, of which plaintiff was president. A large sum was also due from them to an ice cream company. Because of their inability to keep up the payments, defendants as first parties on the 20th of November, 1934, entered into an agreement with plaintiff as second party and the ice cream company as third party in which it is set forth that defendants are the owners of an interest in the six lots, that a building was erected on lot 3, that certain personal property was chattel-mortgaged to the ice cream company and to a soda fountain company, and that certain debts were owing to the various parties including the Bressler Lumber Company. It provided for monthly payments to be made by defendants to the various creditors including the mortgagee bank. Specific amounts were set for each month’s payment to the various creditors. The agreement further provided that:
“To secure the faithful performance of the payments above specified, said first parties have this day drafted and executed to Arthur Vollmer a quitclaim deed of the property above described, which deed has been placed in escrow with Henry T. Robinson, and the said first parties hereby agree with the said Arthur Vollmer and other parties to this transaction that should they fail to make the monthly payments above specified, then the said Arthur Vollmer may make proof of such failure to the said Henry T. Robinson and the said Henry T. Robinson shall forthwith deliver said quitclaim deed to said Arthur Vollmer and the said Arthur Vollmer shall own said property free and clear of claims of said first parties, and said first parties expressly waive all benefit of any laws or statutes, and hereby acknowledge that the said Arthur Vollmer shall own said property free and clear of any claim on their part upon their default.
“In consideration of the posting of the deed and the payments to be made by first parties, said M & B Ice Cream Company, for itself and as agent for the Knight Soda Fountain Company, agrees to withhold foreclosure of its chattel mortgage. It is also understood and agreed that People’s American State Bank, while not binding itself in any way or in any way agreeing’ not to foreclose, will be satisfied with its payment.
“It is further agreed on the part of Arthur Vollmer that in consideration of the payments made to him, he will withhold foreclosure on his second mortgage, and will likewise withhold the foreclosing of the land contract held by the Bressler Lumber Company.”
The agreement further provided that the creditors might audit defendants’ books, and the latter agreed not to further incumber the property nor to execute a transfer without applying the full consideration therefrom to the debts. In the event the business should make larger sums than contemplated, the parties agreed to prorate the increase among the creditors. This agreement was to extend for a period of two years except on default of defendants. It further stated that failure to make payments constituted grounds for plaintiff to take over the property and receive delivery of the deed from the escrow agent, as stated in the quoted paragraph. A quitclaim deed running to plaintiff was duly executed and deposited with the escrow agent, Henry T. Robinson, who was an officer of the mortgagee bank. Defendants failed to keep up the payments and thereupon the deed to plaintiff was recorded and he took over the property. Plaintiff thus not only became the title owner to the property, on which he had a second mortgage, but the record discloses that he took possession of the property and rented it to others. While the record is not at all clear, it indicates that the bank foreclosed its mortgage and the parties having liens repossessed themselves of the personal property.
Plaintiff brought the instant suit on his second mortgage note. Defendants claim that the deed to plaintiff operated as a merger of the second mort gage with the fee estate and not only disposed of the second mortgage lien but also satisfied the mortgage debt in accordance with the understanding at the time the papers were executed.
Plaintiff complains of the fact that defendants did not clearly give notice in their first plea of the defense of payment by the giving of the deed. The supplemental answer, filed almost two years before the case was heard, undoubtedly supplied this deficiency. The order granting leave to file a supplemental answer was never signed by the circuit judge, because, it is claimed, of the judge’s illness and his subsequent death. However, it was approved in form by the attorney for plaintiff. The case was tried as if this order had been made and we will so consider it (3 Comp. Laws 1929, § 14149 [Stat. Ann. §27.843]; Court Rule No. 72 [1933]).
Plaintiff’s testimony was hesitant and evasive. In some manner the deed to plaintiff, which was deposited with Mr. Robinson as escrow agent, was withdrawn from him, duly recorded, and at the time of the trial was in the possession of plaintiff’s attorney. The return address to which the register of deeds mailed the instrument was written in pencil on the back of the deed and, significantly, designated plaintiff’s office. It was shown that the handwriting resembled that of plaintiff’s daughter who looked after his office. During another phase of the trial, plaintiff admitted that he had the keys to part of the premises though at first he denied it.
Strenuous objection was made to testimony that was offered by defendants to show that plaintiff agreed to release defendants from all further liability if he became the owner of defendants ’ equity in the premises. The trial judge upheld the objection to this testimony upon the grounds that the written agreement was complete and unambiguous in its terms, and that parol evidence could not be received to show the prior negotiations between the parties. Because he found nothing in the contract itself that' provided for the extinguishment of the debt upon the delivery of the deed by the escrow agent, he allowed recovery on the note. The deed, however, was absolute in form. According to the written agreement, upon default - plaintiff was entitled to receive from the escrow agent the deed to the property free and clear of all claims of defendants including all benefits of any laws or statutes. Was the trial judge correct in allowing recovery on the note and in excluding parol evidence explaining the contemplated effect of the deed?
As a rule the merging of a mortgage and fee estate extinguishes the mortgage. First National Bank of Utica v. Ramm, 256 Mich. 573. There is no question but at the time the deed was executed, title remained in defendants. It, however, was placed in the hands of an escrow agent who was to deliver it to plaintiff in the event of defendants’ default. Immediately thereupon absolute title would vest in plaintiff. •Defendants thus denied themselves the right to a moratorium, a period of redemption, et cetera. A person generally cannot remain mortgagee of lands after acquiring the fee in-the absence of any showing that the mortgage was to be kept alive to protect the rights thereunder against the claims of others. Jackson v. Evans, 44 Mich. 510. The case of Weston v. Livezey, 45 Col. 142 (100 Pac. 404), is very similar to the instant one. A mortgagor placed a deed of land in escrow to secure certain payments on the mortgage. After default on these payments, the escrow agent delivered the deed to the mortgagee. Suit was brought on the original note. The court said:
“Where the mortgagee acquires the fee in the land mortgaged by conveyance from the mortgagor, the mortgage debt, so far as the mortgagee is concerned, is extinguished, unless a contrary intention is manifest.”
The case is more fully briefed in 65 A. L. R. 124. The trial judge was manifestly in error in not permitting parol testimony by defendants to show that it was the intention of the parties that the delivery of the deed should extinguish the mortgage debt. There is no question but that one could show by parol that a deed was given as a mortgage instead of to pass immediate title. The converse of the rule is equally true. One can always show that a deed was intended for the purpose of passing title and not to have the effect of a mortgage.
The judge acting without a jury rendered a judgment for the full amount against defendants. The judgment should be reversed. In view of the ruling of the lower court, the plaintiff may not have deemed it necessary to present any further testimony to support his case. Under the circumstances, we believe there should be a new trial.
Judgment' reversed, with costs to defendants.
North, C. J., and Starr, Wiest, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Bushnell, J.
Plaintiffs Peter Paul Franko and Rosalie Marie Franko, his wife, on November 22, 1943, entered into a written agreement with defendants Anthony Olszewski and Mary Olszewski,- his wife, for the purchase of real property located in the city of Detroit, described as:
“Lot numbered 9 of Alfred M. Low’s subdivision . of lot 4 of Christopher Markey’s Estate, P. O. 60 and 719, Detroit, as recorded in liber 31, page 17 of plats, Wayne county records,” together with a “class ‘C’ State of Michigan liquor license #2170 and a S.D.M. license, and the following described fixtures and stock located on the first floor of 6874 St. John St., Detroit, Michigan, to-wit: 10 tables, 40 chairs, one front bar, one back bar, one National cash register, 2 electric fans, one radio, one beer box. All stock of goods on the bar and all other fixtures located at the said premises except one ice box, and the furniture of the sellers which is located on the second floor of the premises.”
The licenses' mentioned were in the name of Mary Olszewski, who agreed to transfer ‘them to Rosalie Marie Franko. The agreement provided that, in the event such license transfers were not approved, the agreement would be considered null and void, and the deposit money refunded in full to the Frankos. The transaction was to be closed within 10 days after final approval of the license transfers by the liquor control commission.
Subsequently plaintiffs tendered to the defendants the balance due under the terms of the agreement, which tender was refused. A few days later plaintiffs filed a bill of complaint seeking specific performance of the agreement, possession of the property described therein, and an accounting for profits derived from the operation of the tavern in question.
Defendants took the position that the liquor control commission had refused to transfer the licenses and, therefore, plaintiffs were not entitled to equitable relief.
The proofs disclose that on December 3, 1943, the liquor control commission received a letter from Mary Olszewski, reading as follows:
“Regarding class C license 170 of Mary Olszewski, I wish to inform you that an application for transfer of the above license to Rosalie Marie Franko was filed with your office. I have since changed my mind about selling the business, and will appreciate it if you would not issue the transfer, and call the whole transaction off.”
On January 3,1944, the commission wrote Rosalie Franko as follows:
“This will acknowledge receipt of your letter of December 27, 1943, requesting the reason for the delay of transfer of class C and SDM license from Mary Olszewski, 6874 St. Johns street, Detroit, to yourself. Inasmuch as we received a letter from Mary Olszewski requesting that the above transfer be cancelled, further action cannot be taken on the above request.”
The trial judge stated that, according to the pretrial statement, the defendants admitted refusing-specific performance and claimed the agreement was secured through fraud and overreaching. Defendants also insisted that the agreement was rescinded and abandoned when plaintiffs refused to purchase liquor in storage at its inventory value, according to the terms of the agreement.
The trial court granted specific performance and entered a decree requiring Mary Olszewski to “make application forthwith in the manner and form as required by the liquor control commission of the State of Michigan, for the purpose of transferring • to said plaintiff Rosalie Marie Franko all of the right, title and interest of said defendant Mary Olszewski in class *C’ State of Michigan liquor license No. 2170 and S.D.M. License issued by the liquor control commission of the State of Michigan to said defendant Mary Olszewski. ’ ’
In the event plaintiffs secured transfers of the licenses, they were required to pay the clerk of the court the sum of $8,300, “plus the inventory value of all liquor in cases and stored on said premises. ’ ’
' The trial court retained jurisdiction in order to further adjudicate the cause in the event that the liquor control commission refused or failed to transfer the licenses in question.
On appeal, defendants argue that plaintiffs are not entitled to equitable relief until they exhaust their legal remedies under the liquidated damage clause in the agreement. They also contend that plaintiffs’ failure to qualify as transferees under the rules of the commission relieved defendants of their contract obligations. Defendants renew their arguments that the agreement was - rescinded and abandoned by the parties before the institution of the suit, and that the agreement was secured by overreaching and unfair dealings on the part of plaintiffs.
Defendants’ argument as to the existence of a legal remedy is predicated upon the following provision in the agreement.
“And for the true and faithful performance of all and every of the covenants and agreements above mentioned, the parties, to these presents bind themselves, each unto the other, in the penal sum-of the total amount of expenses suffered by the other party, as fixed and settled damages to be paid by the failing party. ” '
As indicated by the trial judge, a like argument was presented in Milner Hotels, Inc., v. Ehrman, 307 Mich. 347, 356. In that case the Court said:
“A stipulation in regard to liquidated damages' does not preclude a suit for specific performance unless it appears from the whole contract that it was the intention of the parties that the right to pay the stipulated sum or perform the contract should he optional. Hedrick v. Firke, 169 Mich. 549. 2 Restatement, Contracts, p. 700, § 378. Also, see authorities assembled in 32 A. L. R. 584, 98 A. L. R. 887.”
To the foregoing may be added the observations in Decker v. Pierce, 191 Mich. 64, 70:
‘ ‘ The rule established at an early day in Michigan was the following: Where, by the terms of a contract, a sum is mentioned as ‘liquidated damages’ for a nonperformance of several distinct stipulations of very different degrees of importance, and this sum is. to be payable equally on a failure to perform the least, as of that to perform the most, important or whole of them together, it is in legal effect a penalty, and not stipulated damages; and the fixing of such a penalty by the contract is no objection to snecific performance. Daily v. Litchfield, 10 Mich. 29.”
See, also, Powell v. Dwyer, 149 Mich. 141 (11 L. R. A. [N. S.] 978).
Defendants’ argument that specific performance cannot be deereéd because the court cannot control the discretion of the liquor control commission, is of no avail in the light of Roodvoets v. Anscer, 308 Mich. 360, where an analogous situation was presented.
The defendants were required, under the terms of the agreement, to make an application to the com-' mission for the transfer of the licenses, and the trial court’s decree merely requires compliance therewith.
Defendants’ contention that the agreement was rescinded and abandoned by the parties raised a factual issue which was determined adversely to them. -The record. sustains the conclusion reached by the trial judge.
Fraud will not be presumed on slight circumstances, or lightly inferred, but must be established by a preponderance of the evidence. Fahey v. Pell, 310 Mich. 280; Gardner v. Gardner, 311 Mich. 615; and Dieterle v. Pearll, 312 Mich. 134.
The record does not substantiate defendants’ claims of overreaching and unfair dealing. While Mary Olszewski had a limited education and was overworked and worried by her husband’s physical condition, she was nevertheless able to handle business affairs adequately. She had in this instance the benefit of the advice of a real estate broker and the attorney who prepared the agreement. The selling price may have seemed inadequate to the defendants, but opinions usually differ as to the value of such properties. Notwithstanding the testimony of an expert, produced by defendants, we accept and adopt the statement of the trial judge that:
“This expert’s opinion may or may not be a cor-' rect estimate of the value of the property, but when people with eyes open make a bargain, the courts are bound to enforce the agreement of the parties unless there is fraud or overreaching of some kind which nullifies the agreement they entered into. In my opinion, the discrepancy in the value is not sufficient to warrant the court in setting aside the bargain they made. ’ ’
The decree is affirmed, with-costs to appellees.
Carr,, C. J., and Butzel, Sharpe, Boyles, Reid, North, and Dethmers; JJ., concurred.
Soe Act No. 8, § 17, Pub. Acts 1933 (Ex. Sess.), as amended by Act No. 281, Pub. Acts 1937 (Oomp. Laws Supp. 1940, § 9209-32, Sfcaj;. Anri, 194§ Cum. gupp. § 18.988).—Brpqbtee. | [
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Williams, J.
(to reverse). This case involves construction of the following language in a private disability insurance contract:
"The Weekly Benefit Amount shall be reduced by the weekly pro-rata portion of any benefits payable under the Workmen’s Compensation Act and the primary disability monthly benefit payable under the Federal Social Security Act regardless of actual receipt of such benefit due to the Insured’s failure to apply therefor (primary disability monthly benefit means the benefit relating to the Insured only and not including any additional benefit which might be payable because of the presence of dependents).”
Issues present for our review are: (i) whether this provision mandates a disabled employee’s application for the mentioned benefits; (ii) whether reapplication, appeal or suit for such benefits is required if they are initially denied; and (iii) whether costs for pursuit of such benefits must be borne by the disabled employee or by the insurance company.
I
The Three Rivers Rubber Company, a purchaser of an employees’ group disability insurance policy from defendant Insurance Company of North America ("INA”), employed plaintiff John Mays as an engineer. Plaintiff became permanently disabled on December 10, 1970. Pursuant to its disability insurance policy, INA paid weekly benefits to plaintiff from March 20, 1971 (90 days after the date of disability) until December, 1973, amounting to 60% of plaintiff’s base salary. The INA policy permitted the weekly benefit amount to be reduced by payable workers’ compensation and Federal social security benefits; INA did not, however, assert its contractual right to these reductions.
Plaintiff promptly filed for both workers’ compensation and social security disability benefits. The former claim was paid for 13 weeks, until those benefits were cut off because the carrier asserted nonliability. The social security claim was initially denied; as a result of a second application, filed at INA’s request, disability benefits were awarded from June, 1973.
In August, 1974, plaintiff instituted suit to compel INA’s payment of weekly benefits. Plaintiff simultaneously filed a petition for workers’ compensation. A hearing referee found plaintiff to be disabled as of December, 1970, but awarded compensation as of August, 1973, pursuant to the one-year-back rule.
Prior to jury trial on May 24, 1977, the trial court was asked to rule on the extent to which INA could offset social security disability and workers’ compensation benefits from the benefit of 60% of the base weekly salary paid to plaintiff, in accordance with the provision quoted above. Based on this Court’s decision in Bonney v Citizens’ Mutual Automobile Ins Co, 333 Mich 435; 53 NW2d 321 (1952), the trial court ruled that the insurance policy’s inclusion of the term "payable” was unambiguous as a matter of law. The court therefore concluded that INA was entitled to offset retroactively awarded and received social security disability benefits against the weekly benefits paid to plaintiff. The trial court also held that INA could offset workers’ compensation benefits from the date INA became obligated under the policy, despite the fact that the workers’ compensation award was from August, 1973. With minor modification, the Court of Appeals affirmed. We reverse the Court of Appeals and remand the case to the trial court for a redetermination of permissible setoff.
II
The facts presented provoke the following questions:
(1) Was the employee under any contractual obligation to make any application for either workers’ compensation or social security disability benefits?
(2) Did the employee’s original application for workers’ compensation, and receipt of benefits for 13 weeks, satisfy any contractual obligation the employee might have had "to apply” for compensation?
(3) When compensation benefits were subsequently terminated, was the employee required to reapply or appeal?
(4) Did the initial application for, and denial of, social security disability benefits satisfy any contractual obligation the employee might have had "to apply” for benefits?
(5) Was it incumbent upon the employee to reapply for, or appeal the denial of, disability benefits?
(6) If reapplication or appeal is mandatory for either workers’ compensation or social security disability benefits, must the employee retain an attorney and bear the attendant expenses?
A partial answer to these queries can be found in the language of the contested contractual provision which states:
"The Weekly Benefit Amount shall be reduced by the weekly pro-rata portion of any benefits payable under the Workmen’s Compensation Act and the primary disability monthly benefit payable under the Federal Social Security Act regardless of actual receipt of such benefit due to the Insured’s failure to apply therefor (primary disability monthly benefit means the benefit relating to the Insured only and not including any additional benefit which might be payable because of the presence of dependents).”
At the outset, it is significant that there is absolutely no specific language that obligates an employee to apply for either workers’ compensation or social security disability benefits. The only mention of "application” is found in the statement that "regardless of actual receipt of such beneñt due to the Insured’s failure to apply therefor” (emphasis added), the "Weekly Benefit Amount shall be reduced”.
Three reasons suggest that the "failure to apply” language relates only to the social security disability benefit and not to workers’ compensation: (1) the "failure to apply” clause immediately succeeds the social security disability benefit reference; (2) directly following the "failure to apply” reference is the parenthetical clause, which applies only to the social security disability benefit; (3) wherever the provision speaks of social security disability, it uses the singular, beneñt, whereas the workers’ compensation reference is to beneñts, plural.
While this analysis may seem super-refined, it is exact. Such analysis is appropriate when applied to often hypertechnical insurance contracts.
Moreover, since there is more efficacious notice to the employer, hence the insurer, under one system than the other, there may very well be a rational ground for utilizing the "failure to apply” standard only in the case of social security disability, and not workers’ compensation.
We are not required, however, to resolve these speculations, because it is hornbook law that insurance contract ambiguity is construed against the drafter, the insurer. Such contract analysis leads to the following conclusions:
(1) The insurance contract provision in question cannot be said to require any application for workers’ compensation.
(2) If the employee does not apply for the social security disability benefit, the benefit which would have been payable may be set off.
Thus, the employee in this case was not obligated to make any application for workers’ compensation benefits. A setoif of such benefits, even if no application was filed, cannot be countenanced under the instant provision, except when such benefits are actually received. We must, however, clarify the meaning of "failure to apply” with respect to the social security disability benefit.
Ill
As the questions set forth in Part II indicate, this case is concerned with whether a worker must (1) make an original application for benefits; (2) make reapplication or appeal if denied on the original application; and (3) pursue an application, reapplication or appeal to the extent of hiring a lawyer and suing.
The facts of this case indicate that the employee originally filed for the social security disability benefit in 1971; that application was denied at that time. If the contract requires that the employee make an original application, plaintiff fulfilled that obligation.
In September, 1974, the employee reapplied for and was allowed the social security disability benefit, retroactive to June, 1973. Obviously, there is a hiatus in receipt of benefit from the time of denial in 1971 to June, 1973. Is defendant insurer entitled to a setoff, because the employee failed to reapply or appeal immediately, or can it be assumed that the insurance provision in question was satisfied by the original application?
Again, reference is made to the fact that there is no direct, specific language requiring the employee to make application. All the contract provides on the subject is that "failure to apply” triggers a setoff. In this case, the employee did apply. It certainly is arguable that the employee fulfilled all that the contract required. Since the insurer wrote the contract, any ambiguities must be determined against it. Therefore, we must conclude that the employee fulfilled all requirements relative to making application. Any action beyond original application for the social security disability benefit was the responsibility of the insurer, with an obligation of the employee to cooperate as necessary.
IV
In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgments of the trial court and Court of Appeals and remand the case to Kalamazoo Circuit Court for a redetermination of the offsets INA is to be afforded under this opinion. We direct the court to award reductions of INA’s weekly benefit obligation for workmen’s compensation benefits as of August, 1973 unless the award is otherwise modified by the Workmen’s Compensation Appeal Board. The court should also reduce the INA benefits owed to plain tiff by the amount of social security benefits the plaintiff has received. All reductions of the INA benefits to plaintiff should be offset by actual attorney’s fees and costs incurred by the plaintiff in pursuing the workmen’s compensation claim and the instant suit.
Reversed.
Kavanagh, Levin, Fitzgerald, and Blair Moody, Jr., JJ., concurred with Williams, J.
See MCL 418.833; MSA 17.237(833).
We do not believe the Bonney decision controls. There, the Court determined only that the term "benefits payable” in an exclusion clause was unambiguous and did not address the question who (the insured or insurer) must establish eligibility for the purpose of enabling the insurance company to obtain setoffs from payments the insured was entitled to under the contract. The Court did not have to decide the latter question because the insurance company there was not seeking to obtain setoffs, but instead was arguing nonapplicability of the policy under an exclusion clause.
The Court of Appeals took note of the fact the workmen’s compensation carrier had appealed the award and stated:
"If the Workmen’s Compensation Appeal Board concludes plaintiff was not and is not entitled to compensation benefits, then those benefits would not be 'payable’ and defendant would be required to reimburse plaintiff for any sums plaintiff must repay to the worker’s compensation carrier and defendant would not be entitled to reduce its future obligation to plaintiff.” 85 Mich App 255, 257; 271 NW2d 189 (1978). | [
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Adams, J.
On May 8,1963, the legislature enacted PA 1963; No 62 (CL 1948,'§ 125.1251 et seq. [Stat Ann 1965 Cum Supp § 5.3533(21)' et seq.]), de scribed as the “industrial development revenue bond act of 1963.” It permits Michigan municipalities to issue tax-exempt municipal bonds to finance acquisition of industrial buildings.
The city council of Gaylord approved such a bond issue. It contracted with United States Plywood Corporation for it to purchase land and construct an industrial plant. Gaylord is to finance purchase of these facilities by selling “city of Gaylord, Michigan, industrial building revenue bonds.” The facilities are then to be sold to the city with a lease back to the corporation for 25 years at a rental sufficient to pay principal and interest on the bonds. At the end of 25 years, the corporation has the option of purchasing the facilities for $1. The bonds are to recite:
“This bond and the interest thereon are payable solely from the revenues derived from the facilities * # * and does not [in any way] * * * obligate * * * the city to levy * * * any form of taxation whatever for the payment of such principal and interest.”
Because section 103 of the internal revenue code of 1954 (26 USCA, § 103 [a] [1]) grants a tax exemption to the income from municipal bonds, the net result of this transaction is that the city of Gaylord lends its tax-free status to the corporation so that the interest on what would otherwise be a private bond issue becomes tax-free.
The plywood plant has been built, but defendant city clerk refused to complete the transaction. The city brought mandamus to compel performance. The case was certified directly to this Court, by virtue of GCR 1963, 797, at the request of Governor George Romney. The questions are stated in this opinion as certified to us by the circuit judge.
I.
Is Act 62 of 1963 unconstitutional because its title is deficient under the terms of article 4, § 24, of the Michigan Constitution (1963) ?
Defendant contends that Act No 62 violates article 4, § 24, of the Michigan Constitution of 1963, which provides:
“No law shall embrace more than one object, which shall be expressed in its title.”
Justice Thomas M. Cooley has stated the principle to be followed in applying this section:
“It ought to be construed reasonably, and not in so narrow and technical a sense as unnecessarily to embarrass legislation.” Ryerson v. Utley, 16 Mich 269, 277, citing People, ex rel. Drake, v. Mahaney, 13 Mich 481, 494.
The object of Act No 62 is to enable municipalities to attract industry by acquiring and financing industrial facilities through revenue bonds. The title reads:
“An act relating to industrial development; to authorize municipalities to acquire industrial buildings and sites; to provide for the financing of such buildings by the issuance of revenue bonds; to provide the terms and conditions of such bonds; and to prescribe the powers and duties of the municipal finance commission.”
The title informs the reader of the object of the act. “The title to an act is good if it fairly indicates the general subject matter covered by the act.” City of Bay City v. State Board of Tax Administration, 292 Mich 241, 249.
II.
Are the improvements for which bonds are to be issued works of internal improvement for private purposes prohibited by article 3, § 6, of the Michigan Constitution (1963)?
Article 3, § 6, of the Michigan Constitution (1963) provides:
“The State shall not be a party to, nor be financially interested in, any work of internal improvement, nor engage in carrying on any such work, except for public internal improvements provided by law.”
The reasons for section 6 have been fully documented. Briefly, in 1835 the people of Michigan sought a prosperity they thought could be brought about by improved lines of communication. They directed the legislature to engage in “Internal improvement * * * in relation to roads, canals and navig’able waters.” Constitution of 1835, art 12, § 3. Shortly afterward, the nation underwent a financial crisis. Oppressive taxation to service the State debt resulted from many bond issues that had been floated to finance “internal improvements.” Article 14, § 9, of the Constitution of 1850 provided;
“The State shall not be a party to, nor interested in, any work or internal improvement.”
This prohibition, with modifications in language, was carried into the 1908 and 1963 Constitutions. Const 1908, art 10, § 14; Const 1963, art 3, § 6. It has been repeatedly held, however, that it does not include self-liquidating bonds because they do not obligate the general taxing power. Gilbert v. City of Traverse City, 267 Mich 257, 260, 261; Attorney General, ex rel. Eaves, v. State Bridge Commission, 277 Mich 373, 383; Oakland County Drain Com’r v. City of Royal Oak, 306 Mich 124, 142; City of Dearborn v. Michigan Turnpike Authority, 344 Mich 37, 74, 75.
The law of these cases was brought to the attention of the delegates to the 1961 convention by a member of the committee that drafted section 6. He stated:
“Neither the State nor any local unit of government is prohibited by section 14 of article 10 [1908 Constitution] from engaging in self-liquidating projects. These projects, of course, are defined, generally speaking, as projects which must be paid for out of the revenue which the project itself produces, such as is established by revenue bond that I am sure practically all of the delegates in this convention are familiar with. This section, of course, does not prohibit engaging in that type of activity.” 2 Official Record, Constitutional Convention of 1961, p 2311.
A sponsor of a minority amendment which later was substantially adopted by the convention as section 6 stated:
“Now, let us look upon its operation [article 10, § 14 (1908 Const)] as a prohibition against government ventures in, hopefully, self-supporting and self-liquidating projects. One, it is no longer very effective in this direction.” 2 Official Record, supra, p 2317.
Whether the exception as to revenue bonds was approved or disapproved, it was a recognized fact. The delegates froze that exception into section 6 by their retention of substantially the same language which, in prior Constitutions, had been construed to allow it. See Const 1850, art 14, § 9; Const 1908, art 10, § 14.
Defendant insists that we look at the plain language of the Constitution. It prohibits not only direct financial involvement by the State but also prohibits the State from being a “party” to works, of internal improvement. The State, through the city of Gaylord, is a “party” but the prohibition against the State being a “party” was present when this Court found an exception as to self-liquidating bonds. Const 1850, art 14, § 9; Const 1908, art 10, § 14. Since that exception was known to the delegates, in the absence of some specific limitation by them of the same, it must be considered still valid;
This project might also escape classification as an internal improvement as not being an artery of commerce. See OAG 1963-1964, pp 75-78. Whether the meaning of “internal improvement” should be so limited need not be decided in light of our holding as to self-liquidating bonds.
III.
' Will the issuance of bonds under Act 62 of 1963 constitute the granting of the credit of the city of Gaylord, an agency of the State, for unauthorized purposes as prohibited by article 9, § 18, and article 7, § 26, of the Michigan Constitution (1963) ?
Article 9, § 18, of the 1963 Constitution provides:
“The credit of the State shall not be granted to, nor in aid of any person, association or corporation, public or private, except as authorised in this Constitution.” (Emphasis supplied.)
Article 7, §'26 (Const 1963), provides:
“Except as otherwise provided in this Constitution, no city or village shall have the power to loan its credit for any private purpose or, except as provided by law, for any public purpose.” . (Emphasis supplied.)
An exception permitted by section 18 is contained in section 26. "We confine our inquiry to section 26. Defendant admits that this Court has, on several occasions, held that self-liquidating projects do not involve a granting’ of credit. Attorney General, ex rel. Eaves, v. State Bridge Commission, supra; Oakland County Drain Com’r v. City of Royal Oak, supra. She seeks to delimit this line of cases, however, by pointing out that each involved a clear, undisputed public purpose. Under section 26, if the bond issue is not a loan of credit, the question of public purpose is not reached.
■ Defendant cites the banking laws of Connecticut, Massachusetts, and New York to the effect that any default by a municipality for a fixed period of years preceding a bond issue shall bar banks and financial institutions in those States from buying the general obligation bonds of that municipality. Defendant also contends that if the municipality is negligent in issuing the bonds it maybe held in breach of an implied covenant of good faith (see Armstrong, “Municipal Inducements” — The New Mexico Commercial and Industrial Project Revenue Bond Act, 18 Cal L Rev 58, 62, n 19 [1960]) and that misrepresentation, implied covenant of warranty, and breach of trust are additional theories by which the general taxing power of the municipality might be reached. (See Fordham, Revenue Bond Sanctions, 42 Col L Rev 395, 409-419 [1942] The “Public Purpose” of Municipal Financing for Industrial Development, 70 Yale L Rev 789, 793 [1961].)
The dangers presented by these various contentions exist as to all municipal revenue bonds, not' just industrial revenue bonds. However persuasive defendant’s arguments might be upon first impression, if we were to characterize industrial revenue, bonds as a loan of credit, such a holding would have to extend to all types of revenue bonds. The delegates to the 1961 Constitutional Convention brought the lending of credit provision into the 1963 Consti-. tution against a line of decisions which flatly stated that revenue bonds are not within the prohibition: of lending of credit. See Attorney General, ex rel. Eaves, v. State Bridge Commission, supra; Oakland County Drain Com’r v. City of Royal Oak, supra; City of Dearborn v. Michigan Turnpike Authority, supra, p 59. These decisions have created for the constitutional language a meaning that excludes revenue bonds from the definition of a loan of credit.
IV.
Does the financing proposed leave open the possibility that tax moneys of the city may be diverted for nonpnblic purposes as prohibited by article 7, § 21, of the Michigan Constitution (1963) ?
We would state the above question as follows: Does Act No 62 and the program of the city of Gaylord thereunder exhibit a public purpose? It is the crucial question in this case and one of first impression. Unlike the questions thus far discussed, it is not possible to point to a specific provision of the 1963 Constitution that might be construed to permit the city of Gaylord to act if a public purpose is present or to prohibit it from acting absent such purpose.
Nevertheless, the theme of public purpose runs through the Constitution. As we have seen, article 3, § 6, specifically excepts from its prohibitions “public internal improvements provided by law”, and article 7, § 26, prohibits the lending of the credit of any city or village “except as provided by law, for any public purpose.”
Article 7, § 21, reads:
“The legislature shall provide by general laws for the incorporation of cities and villages. Such laws shall limit their rate of ad valorem property taxation for municipal purposes, and restrict the powers of cities and villages to borrow money and contract debts. Each city and village is granted power to levy other taxes for public purposes, subject to limitations and prohibitions provided by this Constitution or by law.”
Article 4, §51 (Const 1963), provides:
“The public bealtb and general welfare of tbe people of the State are hereby declared to be matters of primary public concern. The legislature shall pass suitable laws for the protection and promotion of the public health.”
This new section, together with the traditional public policy of this State, must be held to limit the powers of the legislature and of government generally to such legislative acts and such governmental powers as exhibit a public purpose.
Defendant contends that the location of a manufacturing plant in the Gaylord area is not a public purpose because the plant is primarily to make a profit for its stockholders; that any benefit the area receives is merely incidental; that such a plant will create additional public needs for schools, streets, sewers, and water facilities which will increase the tax burden; and that, if the plant shuts down, the public welfare load would be substantially increased.
Plaintiff contends that there is a definite public interest in providing and maintaining steady employment ; that under the stipulated facts, as a direct result of the location of the plywood plant in the Gaylord area, there is now only one vacant building on Main street out of 14 vacant not long ago; that it is extremely difficult to rent store space; that a housing shortage exists; commercial and residential growth has resulted; the corporation will employ up to 200 persons in the plant and an additional 100 or 150 persons in outside activity.
It is further stipulated that, based upon the United States Chamber of Commerce estimate prepared for the small business administration, the expected impact of the manufacturing plant on the economy of the city of Gaylord is reflected in the following chart:
“Chaut
“What Each 100 Jobs Means to a Community.
“What 100 New Factory Workers Bring to a Town:
“359 More People
“91 More School Children
“$710,000 More Personal Income Per Tear
“100 More Households
“$229,000 More Bank Deposits
“3 More Retail Establishments
“97 More Passenger Cars Registered
“65 More Employed in Nonmanufacturing
“$331,000 More Retail Sales Per Tear.”
Whether the rosy picture of the future depicted by plaintiff may prove to be a chimera or reality, this Court can neither judge nor prognosticate. There is nothing in the contract between United States Plywood and the city of Gaylord to guarantee either result. Plywood is not obligated to provide any given number of jobs for any period of time. It does not undertake to run the plant a single day. If, because of technological advances or for any other reason, it should elect to close the plant, there is nothing in its contract to prevent it from doing so. Nevertheless it is Plywood’s money alone that was laid on the line to construct this plant and it would seem to be a reasonable assumption that operation of it will follow.
As we have noted, insofar as Plywood is concerned, it achieves by this transaction a tax-exempt status for interest on bonds issued in the name of the city which Plyv/ood alone is in effect obligated to redeem. Gaylord was assured only that a manufacturing plant would be built in a township adjacent to the city and that the rental for the plant would pay off the bonds.
In casting up the credits and the debits, from present view, the probabilities would seem to favor the credits — that is to say, employment and other benefits to the community and the area as opposed to additional costs for schools, public utilities, and the hazard of unemployment. Such an assessment is buttressed by the fact that the transaction is subject to the scrutiny and approval of the Michigan municipal finance commission.
Numerous cases from other jurisdictions deal with the problem of public purpose. The weight of authority upholds municipal industrial aid financing as having a public purpose. For example, in the Oklahoma case of Harrison v. Claybrook (1962), 372 P2d 602, 605, it is stated:
“That the particular function, or purpose, involved is a ‘public’ one cannot be seriously doubted. We think the court in Faulconer v. City of Danville, 313 Ky 468 (232 SW2d 80, 83), was particularly articulate on this subject when it said therein:
“ ‘The consensus of modern legislative and judicial thinking is to broaden the scope of activities which may be classed as involving a public purpose. * * * It reaches perhaps its broadest extent under the view that the economic welfare is one of the main concerns of the city, State, and the Federal governments.’ ”
Such cases, however, are of limited assistance. The question must be assessed in the light of our constitutional provisions and the history of our State. .
Michigan cases have steadily broadened the concept of public purpose. In Miller v. Michigan State Apple Commission, 296 Mich 248, a State tax on apples, which was used to promote sale of Michigan apples, was upheld because stimulation of the State’s apple industry would be beneficially reflected throughout the State. In Hays v. City of Kalamazoo, 316 Mich 443 (169 ALR 1218), the expenditure of general funds of a city for membership in the Michigan Municipal League, a private nonprofit corporation established to advise and lobby for cities and villages in the State, was upheld as being for a public purpose. In Sommers v. City of Flint, supra, a transfer of city property to the Federal government, without consideration, for use as an armory was upheld, based upon mutuality of obligation between the United States and the city in the field of national defense.
In determining what constitutes public purpose the following statement contained in Allydonn Realty Corporation v. Holyoke Housing Authority, 304 Mass 288, 292 (23 NE2d 665), is much quoted:
“Some of the factors which the cases suggest as proper to he considered are these: Whether the benefit is available on equal terms to the entire public in the locality affected; whether the service or commodity supplied is one needed by all or by a "large number of the public; whether the enterprise hears directly and immediately, or only remotely and circumstantially, upon the public welfare; whether the need to be met in its nature requires united effort under unified control, or can be served as well by separate individual competition; whether private enterprise has in the past failed or succeeded in supplying the Avant or in eradicating the evil; whether, insofar as benefits accrue to individuals, the whole of society has an interest in having those individuals benefited; whether a proposed extension of governmental activity is in line with the historical development of the Commonwealth and with the general purpose of its founders; whether it will be necessary to use public ways or to invoke the power of eminent domain; whether a special emergency exists, such as may be brought about by war or public calamity. It is hardly necessary to say that the foregoing considerations are in no sense to be regarded as exclusive of others, and that great weight or little or no weight may be attached to some of them according to the presence or absence of others, or of still other conditions not herein-before enumerated.”
In Hays v. City of Kalamazoo, supra, pp 453, 454, this Court quoted with approval from 37 Am Jur, Municipal Corporations, § 120, p 734:
“ ‘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 modes 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 the 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.’ ”
It can scarcely be questioned that the benefits resulting from a plywood plant that are conjured by plaintiff would be general to the public in the Gay-lord area, thereby meeting the test of public use set forth in Hays v. City of Kalamazoo, supra. The legislature, in enacting Act No 62, has concluded that the public health and welfare will be served. The act is constitutional as exhibiting a public purpose. In coming to this conclusion, we have taken particular note of the mandate of article 7, § 34, a new provision of the 1963 Constitution which states, in part, as follows:
“The provisions of this Constitution and law concerning counties, townships, cities, and villages shall be liberally construed in their favor.”
Y.
Does Act No 62 of 1963 surrender or avoid the taxing power of the township of Bagley in which the plant will be located, contrary to the provisions of article 9, § 2, of the Michigan Constitution (1963), in that it does away with the lien for taxes against the industrial plant and site ?
Act No 62 provides that the lessee will be subject, to ad valorem property taxation, but that a lien will not attach to the property by virtue of that tax. Defendant contends that this violates article 9, § 2, of the Constitution of 1963, which provides:
“The power of taxation shall never be surrendered, suspended or contracted away.”
A lien is not an essential element of the power of taxation. See Hellerstein, State and Local Taxation, pp 15-20 (1952). Unless a taxing statute expressly so provides, taxes do not constitute a lien on property. Tousey v. Post, 91 Mich 631, 634; 84 CJS, Taxation, § 585, p 1180.
Section 11 of Act No 62 parallels PA 1953, No 189, as amended (CLS 1961, §§ 211.181, 211.182 [Stat Ann 1960 Rev § 7.7(6) and Stat Ann 1965 Cum Supp §7.7(5)]). The purpose in both instances is to insure that persons leasing normally tax-exempt property for profit-making purposes do not secure an unfair advantage by avoiding taxation. See United States v. City of Detroit, 345 Mich 601, 610; Township of Muskegon v. Continental Motors Corporation, 346 Mich 218, 223; and Rockwell Spring & Axle Company v. Romulus Township, 365 Mich 632, 637.
VI.
Is Act No 62 of 1963 unconstitutional in that it does not contain a restriction on the power of the city of Gaylord granted therein to borrow money and contract debts, contrary to the provisions of article 7, § 21, of the Michigan Constitution (1963) ¶
Article 7, § 21, of the 1963 Constitution provides:
“The legislature shall provide by general laws for the incorporation of cities and villages. Such laws shall * * * restrict the powers of cities and villages to borrow money and contract debts.”
Defendant contends that since Act No 62 does not contain a restriction on the power of the city to; borrow it is invalid. The self-liquidating aspect of these bonds excepts them from the constitutional language. In re Brewster Street Housing Site, 291 Mich 313, 341, 342. For an extended discussion of this exception, see Young v. City of Ann Arbor, 267 Mich 241, 248-254. Because of the reasons expressed in Young, Act No 62 does not violate the debt restrictions of article 7, § 21,
VII.
Is Act No 62 of 1963 deficient as ambiguous and incomplete because:
A. It does not provide that the bonds must be sold at public sale?
B. It permits a referendum on the question of the issuance of the bonds but provides no means for giving notice of the right of referendum?
A.
Defendant’s contentions here go to the provision in the municipal finance act for the public sale of mortgage revenue bonds issued by a municipality. CLS 1961, § 133.2 (Stat Ann 1958 Eev § 5.3188[7]). Act No 62 is silent with regard to the manner in which bonds are to be sold. However, section 9(2) of Act No 62 states that when issuing bonds a municipality may authorize additional bonds for contemplated future improvements and place them in escrow to be “negotiated” later.
The legislature may place restrictions on the manner in which bonds are' to be sold. See 43 Am Jur, Public Securities and Obligations, § 126, p 373,- and 15 McQuillin, Municipal Corporations (3d ed), § 43.65, p 589. The normal purpose of a public sale is to assure the best price, but here the city is unconcerned with price. Price is of concern only to the corporation.
Section 13 of Act No 62 specifically states that the municipal finance commission shall determine “whether the bonds conform to the provisions of this act.” (Emphasis supplied.) While bonds under Act No 62 may not be issued without the approval of the. municipal finance commission, they are not made subject to the provisions of the municipal finance act, only the provisions of Act No 62. That act does not require public sale. The legisla ture was free to make such a requirement or not. The act is not deficient in this regard.
B.
Section 12 of Act No 62 provides for a right of referendum but makes no provision as to how notice should be given to the electors of that right. The legislature is not required to provide any right of referendum. Consequently, the act is not invalid for failure to particularize the method of notice. The city exercised its discretion in giving notice to the electorate. The council’s action was published in the local newspaper. No petition for referendum was filed. No abuse of discretion is shown.
The referendum provision contained in the home-rule act (CLS 1961, § 117.5 [g] [Stat Ann 1965 Cum Supp § 5.2084(g)]) is substantially different from that found in Act No 62. Only the referendum provision in Act No 62 is applicable to this proceeding.
VIII.
Is the proposed bond issue in conflict with Act No 62 of 1963 or with applicable provisions of the city charter because:
A. The financing does not meet the requirements of the act in that:
(1) No provision is made for a depreciation account ?
(2) Operation and maintenance expenses are to be met by the lessee rather than the city, with the result that excess funds for that purpose are to be returned to the lessee rather than credited to a depreciation account?
(3) The financing calls for the naming of a trustee although the industrial plant and site are not to be mortgaged?
B. The financing does not comply with provi-' sions of the Gaylord city charter in that:
■ (1) There will be no provision for competitive construction bids as required by section 16.6 of the city charter?
(2) The financing may contemplate the city’s engaging in a business enterprise requiring an investment of money in excess of 10 cents per capita but without the approving vote of the electors of the city thereon, as required by section 15.2 of the city charter and section 5(e) of the city home-rule act?
(3) The financing may not comply with the terms of sections 10.7 and 10.9 of the city charter relative to the means of collection and payment of city funds ?
(4) The financing may cause the city to exceed its debt limit as specified in section 12.7 of the city-charter?
A.
(1) Section 3(c) of Act No 62 requires that the agreement “provide * * * an adequate depreciation account.” CL 1948, § 125.1253 (Stat Ann 1965 Cum Supp § 5.3533[23]). (Emphasis supplied.) Plaintiff admits no depreciation account has been created. The rentals are programmed to amortize the cost of the plant and site over 25 years. The corporation can then purchase the facility for $1. Since the rentals will amortize the cost of the plant, and the cost basis will be zero at the end of the lease, this provides a built-in “depreciation account” which is adequate.
(2) The fact that operation and maintenance expenses are to be met by ,the lessee rather than the city out of a segregated fund does not bring the proposed bond issue in conflict with Act No 62. Section 3(c) of Act No 62 does not require the establishment of a separate operation and maintenance fund. It states:
■ “The agreement shall provide that the rents to be charged for the use of the industrial building shall be fixed and revised from time to time so as to produce income and revenues sufficient to provide for * * * the operation and maintenance of the industrial building.”
Since the lessee will pay for operation and maintenance, the required provision has been met. Since the rentals do not include this cost, no money need ;be segregated in an operating and maintenance fund. Section 8(1) of Act No 62 does not require that sums accumulated in an operating and maintenance fund be transferred into the depreciation account, but provides that they “may” be transferred. These features of the proposed financing do not conflict with Act No 62.
(3) The proposed bond issue is not in conflict with Act No 62 although the issue calls for the naming of a trustee and does not provide for a mortgage on the facility. Section 5 of Act No 62 recognizes the alternative of either a mortgage or a trustee for the bondholders. CL 1948, § 125.1255 (Stat Ann 1965 Cum Supp § 5.3533 [25] [1] [e], [2], [3]). Further, that section is permissive and provides only that the resolution authorizing the bond issue “may [require] a mortgage or deed of trust” to secure principal and interest. The city council was not required to have the bond issue secured by a mortgage nor was it prohibited from providing for a trustee for the bondholders.
B.
(1) The failure of the proposed financing agreement to make provision for competitive bids does not violate section 16.6 of the charter of the city of Gaylord. The plywood plant is now in existence. Section 16.6 is silent as to the acquisition of an existing structure. It provides:
“Before making any purchase or contract for supplies, materials, equipment, or contractual services, opportunity shall he given for competition.” (Emphasis supplied.)
Section 3(a) of Act No 62 allows a municipality to acquire an industrial facility by “gift or purchase.” Act No 62 controls. City of Hazel Park v. Municipal Finance Commission, 317 Mich 582.
(2) Section 15.2 of the charter of the city of Gay-lord requires that the city have a 3/5 approval of the electors before it engages in any business enterprise requiring an investment of money in excess of 10 cents per capita. An identical requirement is found in CLS 1961, § 117.5(e) (Stat Ann 1965 Cum Supp § 5.2084[e]). The city’s function in this case is merely to furnish its name to a bond issue. Such function does not constitute engaging in a business enterprise.
(3) Section 10.7 of the city charter of Gaylord provides:
“All * * * other moneys regardless of source, accruing’ to the city shall be collected by the city clerk who shall in all cases give receipts therefor.”
This provision is contradictory to section 5(1) (a) of Act No 62, which provides:
“Any resolution authorizing the issuance of bonds under this act may contain covenants as to * * * the use and disposition of the rentals from the industrial building.”
Bead as a whole, Act No 62 was intended to provide á particular means for the collection and payment of funds involved in industrial financing. See, especially, section 3(e), which provides:
■ “Any municipality may * * * sell and convey the industrial building, including without limitation the sale and conveyance thereof subject to a mortgage.”
Section 10.7 was designed for the normal fiscal activities of the city. To the extent that it is in conflict with the purposes of Act No 62, it is not applicable here.
Section 10.9 of the charter provides a precise method by which claims and demands against the city are to be met. This bond issue is self-liquidating. No “claims and demands” will arise from the proposed scheme of financing. Section 10.9 does not, therefore, invalidate the bond issue.
(4) Section 12.7 of the city charter of the city of Gaylord provides:
“The city may not incur indebtedness by the issue of bonds or otherwise, in any sum which * * * shall exceed 10 per centum of the assessed valuation of the real and personal property within the city.”
This bond issue is in excess of the 10 percent limitation. The rationale which supports the exception noted in article 7, § 21, of the 1963 Michigan Constitution is applicable here. See infra. The indebtedness contemplated by section 12.7 is general obligation indebtedness and not self-liquidating indebt.edness required by Act No 62.
Conclusion.
: Since the questions certified to this Court by the circuit court for the county of Otsego have been answered in favor of plaintiff, a writ of mandamus will issue to compel defendant to perform her duties.
No costs, a public question being involved.
Addendum.
Adams, J.
This addendum is written in reply to the opinion of Justice Souris in this case. On July 19,1966, this Court convened for the purpose of hearing the response of counsel to the following communication from the clerk of the Court:
“Confirming my telephone conversation earlier today, please be advised that the Supreme Court has instructed me to request that you appear before the Court on Tuesday, July 19, at 11:30 a.m., prepared to discuss whether the following question ought to be certified and briefed.
“The question referred to is as follows: Should this proceeding be remanded to the trial court for supplementary certification of the questions designed to test the constitutional validity of PA 1963, No 62, against the limitations on legislative power contained in the 1908 Constitution, then still in effect?”
At the conclusion of the session, all counsel were asked whether, in their opinion, it was necessary that further questions be certified or further briefs be submitted. Counsel stated that further briefing was unnecessary and that the case could stand on the questions submitted.
This might be sufficient reason to decline to pass upon the questions raised by Justice Souris. There is, however, a more fundamental reason. The Michigan Constitution of 1963, art 3, § 7, under the heading “General Government”, provides:
“The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.”
The above provision has been shifted in the 1963 Constitution from its former position in the sched ules of previous Constitutions. Under Schedule and Temporary Provisions, it is further provided:
“Sec. 1. The attorney general shall recommend to the legislature as soon as practicable such changes as may be necessary to adapt existing laws to this constitution.”
No Michigan eases have considered the import of article 3, § 7, or of the similar provisions of other Michigan Constitutions. In Dewar v. People, 40 Mich 401 (29 Am Rep 545), the city charter enacted in 1873 empowered the common council to license and regulate saloons, restaurants, and billiard rooms. At the time the charter was granted by the legislature, the State Constitution provided that ,the legislature should not pass any act authorizing-.the grant of a license for the sale of intoxicating liquors. The constitutional provision was repealed and the city then passed an ordinance that in effect .provided for licensing liquor establishments. In -holding that the ordinance could not be sustained, the Court said:
“The legislature of 1873 had no power, under the Constitution as it then was, to authorize such licenses, and it is not presumable that any unconstitutional power was intended to be exercised in granting the charter. But if the charter at that time did not confer or attempt to confer the authority, neither does it do so now. The meaning of the charter is the same to-day that it was when adopted, and it cannot be affected and enlarged by any subsequent change in the Constitution. The intent to be sought for in the charter is the intent of the body which passed it, namely, the legislature of 1873; and that was clearly not an intent to authorize the licensing of sales of intoxicating drinks.”
Dewar did not involve construction of the provision in the 1850 Michigan Constitution with regard to laws “in force” remaining in force. All Dewar decided was that the removal of a constitutional prohibition on the legislature did not have retroactive effect on previous legislative action so as to enlarge the legislative grant of authority beyond what the legislature had the power to do when it acted.
In Village of Mt. Pleasant v. Vansice, 43 Mich 361 (38 Am Rep 193), the defendant was fined for violation of a village ordinance forbidding the sale of liquor and providing that violations of the ordinance were misdemeanors. The Court said: (p 363)
“In the first place the general act referred to nowhere assumes to delegate the power to a village council to ordain misdemeanors.”
The Court found (citing Dewar) that, since the legislature was forbidden to make laws authorizing the grant of a license at the time the incorporating act was passed, the legislature could not give that power to the village. The elimination from the Constitution of the prohibition did not change the meaning of the law from what it was at the time of enactment.
In Dullam v. Willson, 53 Mich 392 (51 Am Rep 128), it was held that a statute, purporting to give the governor power to remove public officers for misconduct, void for repugnancy to the Constitution which had vested no judicial power in the governor, was not validated by an amendment to the Constitution giving him the power of removal. Justice Champlin wrote: (p 398)
“The information alleges that the removal was made in pursuance of the statute; and from the fact that the executive order removing the respondent follows the language of the statute instead of the Constitution, and fills the vacancy until the next session of the legislature, instead of the unexpired term, I am convinced that the action was had under the statute. But if the power exists under the Constitution, it is immaterial that a misrecital is made as to its source, and would not invalidate the exercise of the power. I am satisfied that the statute furnishes no valid basis for the power of removal, because repugnant to the Constitution of 1835, which vested no judicial power in the governor. The statute, being void, was not validated by the amendment of 1862, and the question depends solely upon the constitutional amendment of 1862.” (Emphasis supplied.)
Nothing was said in the amendment of 1862 with regard to its effect on prior laws nor did it purport in any way to validate a prior law.
Seneca Mining Company v. Secretary of State, 82 Mich 573 (9 LRA 770), involved passage by the legislature of PA 1889, No 129, authorizing the renewal of a corporate charter. An amendment to the Michigan Constitution passed at the 1889 April election eliminated a former limitation on the authority of the legislature to authorize such renewals. The Court said: (p 575)
“Without the authority conferred upon the legislature by this amendment to the Constitution, the legislature would have no authority to authorize the
extension of corporate existence of corporations such as this, as was held in Attorney General v. Perkins, 73 Mich 303. The important question which is therefore presented is, when did the amendment adopted by the electors in April, 1889, take effect as a part of the Constitution?”
The Court held the amendment took effect prior to the legislative enactment and, therefore, the renewal was authorized. Once again, the case does not involve the construction of the laws “in force” language of the Constitution but, rather, the construction of amendments to the Constitution.
In People v. Frencavage, 233 Mich 369, defendant had first been convicted in 1921 and sentenced to the Michigan reformatory. While out on parole, he was arrested on another offense and sentenced to Marquette prison. This conviction was vacated because of an invalid information. He was then brought back to Kent county under an 1861 law that had been declared unconstitutional. He was recommitted to the Michigan reformatory for his unexpired term under the first conviction. The Court said: (pp 371, 372)
“The portions of this legislation dealing with procedure were held to be unconstitutional in People v. Moore, 62 Mich 496. If these provisions were beyond the power of the legislature to enact at the time they were enacted, it is obvious that a change in the Constitution (PA 1903, p 452) did not make them valid without re-enactment.”
An amendment to the 1850 Constitution in 1903 did not provide for validation of the 1861 act, but merely authorized procedures for retaking and returning convicts on parole. Since the 1861 act had been declared unconstitutional prior to adoption of the 1908 Constitution and was not validated by the 1903 amendment to the 1850 Constitution, it was not “in force” when the 1908 Constitution was adopted.
Toole v. State Board of Dentistry, 300 Mich 180, involved an attack upon a law that had been submitted to a referendum vote. A constitutional provision required that the law be printed on the ballot. It was not so printed in machine precincts. The Constitution was later amended to allow a statute subject to referendum to be posted in the polling place rather than printed. The Court said: (p 184)
“This, of course, did not have retroactive effect, and the ballot prepared for use on the voting machines did not comply with the then command of the Constitution.”
The Constitution required a certain procedure which was not followed. The amendment to the Constitution, adopted after the referendum, did not attempt to validate the procedure used at that election but, rather, authorized a new procedure. The election was tested by the procedure in effect when it was held.
It will be seen that, while the above cases deal with the effect of an amendment to the Constitution upon legislation, no case considered the effect of the laws “in force” provisions of any Michigan Constitution. Unfortunately, the constitutional debates are not helpful in construing the meaning of the laws “in force” provisions. However, if the language does not result in validating laws in effect at the time a new Constitution is adopted (save for those repugnant to it), each of Michigan’s earlier Constitutions continues to have life and an effect upon the laws of this State even though the manifest intention of the authors of each Constitution was to replace the old with the new. The result would be that any law enacted under a previous Constitution would first have to be tested for constitutionality under that Constitution, then under ensuing Constitutions, and finally under the 1963 Constitution. Under such a rule, a law might have to be reviewed for constitutionality under all four Michigan Constitutions before its validity is finally established.
As somewhat indicative of the intention of the framers of the 1963 Constitution, it may be noted that the words “provided by law” or words to similar effect are used throughout the document and with much greater frequency than in earlier Constitutions. By way of example, the following parallel provisions are of interest:
1908
art 2, § 13.
“The right of trial by jury shall remain, but shall be deemed to be waived in all eivil eases unless demanded by one of the parties in such manner as shall be prescribed by law.”
art 5, § 39.
“All laws enaeted at any session of the legislature shall be published in book form within 60 days after the final adjournment of the session, and shall be distributed in such manner as shall be provided by law. The speedy publication of sueh judicial deeisions as may be deemed expedient shall also be provided for by law. All laws and judicial decisions shall be free for publication by any person.”
1908
art 8, § 1.
“Each organized eounty shall be a body corporate, with such powers and immunities as shall be established by law. All suits and proceedings by or against a eounty shall be in the name thereof.”
art 8, § 8.
“The legislature may by general law confer upon the boards of supervisors of the several counties such powers of a local, legislative and administrative character, not inconsistent with the provisions of this constitution, as it may deem proper.”
art 9, § 8.
“Any officer elected by a eounty, eity, village, township or school district may be removed from office in such manner and for such cause as shall be prescribed by law.”
1963
art 1, § 14.
“The right of trial by jury shall remain, but shall be waived in all eivil eases unless demanded by one of the parties in the manner prescribed by law. In all eivil eases tried by 12 jurors a verdiet shall be received when 10 jurors agree.”
art 4, § 35.
“All laws enaeted at any session of the legislature shall be published in book form within 60 days after final adjournment of the session, and shall be distributed in the manner provided by law. The prompt publication of judicial decisions shall be provided by law. All laws and ju dicial decisions shall be free for publication by any person.”
1963
art 7, § 1.
“Each organized eounty shall be a body corporate with powers and immunities provided by law.”
art 7, § 8.
“Boards of supervisors shall have legislative, administrative and such other powers and duties as provided by law.”
art 7, § 33.
“Any elected officer of a political subdivision may be removed from office in the manner and for the causes provided by law.”
Tbe change from the future tense in the 1908 Constitution to the present tense in the 1963 Constitution is of some significance.
The following eases from other States are helpful in determining the correct construction of the “in force” provision.
In Henry v. State (1871), 26 Ark 523, the State Constitution [1868] provided in article 15, § 16:
“All laws in this State not in conflict with this' Constitution shall remain in full force until otherwise provided by the general assembly, or until they expire by their own limitation.”
Defendants were indicted for keeping a grocery without a license. It was claimed that the former law regulating groceries was repealed by the new Constitution. The court rejected this proposition and said:
“The laws continued in force by the Constitution itself, are as valid as though re-enacted by the general assembly!’ (Emphasis supplied.)
Golden v. People, ex rel. Baker, 101 Colo 381 (74 P2d 715), involved a 1932 amendment to the Constitution which provided: “No such laws shall ever authorize the establishment or maintenance of any saloon.” A 1935 act defined a so-called statutory “saloon”, which went into existence all over the State. In 1936 an old age pension amendment was passed allocating to the pension fund 85% of taxes from intoxicating liquor “of whatever kind.” The district attorney sought an injunction to prevent a town from issuing licenses on the theory that the 1935 act was unconstitutional. The court said, at p 384:
“Following the enactment by the general assembly of said chapter 142, licenses therein provided for, similar to those here in question, were issued and ‘saloons,’ if such they be, established thereunder have since been operating generally throughout the State. Thus the revenue raising provisions of said chapter 142 were incorporated into, and are now a part of, the Constitution, with the result that said article 22 has been modified as to its prohibition against the establishment and maintenance of any saloon, and those places here in question which had provided, and were providing, such revenue were legalized.
“To hold otherwise * * * seems clearly contrary to the purpose and intent of said amendment No. 4 and its specific language. The fact, if it be a fact, that the licensing provisions of said chapter 142, here involved, were, prior to the passage of the old age pension amendment, unconstitutional, is now immaterial. It had not been so declared and all presumptions were in its favor.” (Emphasis supplied. )
State, ex rel. Marr, v. Luther, 56 Minn 156 (57 NW 464), involved railroad acts which were held to have been validated by an amendment to the Constitution. The court said: (pp 164, 165)
■ “In brief, the legislature assumed that when making a grant of lands to aid the building of a railway, or in executing the trust where lands had been granted to the State by congress for the same purpose (and which, while thus held by the State, either as proprietor or in trust, were, of course, not subject to taxation), it had the power, in the furtherance of the object for which the grant was made, to exempt such lands from ordinary taxation, and to provide for commuted taxation of both the railroad and the granted lands.
“There is not in the history of the State a single grant of lands to aid the building of a railway, where this system of commuted taxation has not been adopted. * * *
“In this situation of things, the people adopted a constitutional amendment, Const, art 4, § 32a, ordaining that ‘any law providing for the repeal or amendment of any law or laws heretofore or hereafter enacted which provides that any railroad company now existing in this State, or operating its road therein, or which may be hereafter organized shall in lieu of all other taxes * * * pay into the treasury of this State a certain percentage therein mentioned of the gross earnings of such railroad companies now existing or hereafter organized shall, before the same shall take effect and be in force, be submitted to a vote of the people of the State, and be adopted and ratified by a majority of the electors voting at the election at which the same shall be submitted to them.’
“This language must have been selected and this amendment adopted with reference to the existing legislation and the general legislative policy to which we have referred; and, read and construed in that light, it amounts to a clear recognition of the validity of existing laws providing for this commuted system of taxation of railroad property and lands, and of legislative power to enact such laws for the future. If it did not refer to this, there was nothing to which it could refer. It is, by necessary implication, a validation of past legislation of that land, and a grant of power to enact it in the future(Emphasis supplied.)
People, ex rel. McClelland, v. Roberts (1896), 148 NY 360 (42 NE 1082), involved the Constitution of 1876 which gave the superintendent of public works power to make certain appointments. The Constitution of 1894 put all government workers under civil service. The court held that the new Constitution enlarged the former civil service statute so that it covered all public employees and took away the power of the superintendent to make appointments. The court said, at pp 369, 370:
“Moreover, it is evident from the language of the new provision of the Constitution and from the debates in the convention which followed its introduction into that body, that it was framed and adopted with reference to existing laws, which were intended to give to it immediate practical operation. So that in adopting the new Constitution, the people, in their original capacity, decreed that, thereafter, all the departments of the government should be brought within the operation of existing laws on the subject of appointments. The mandate to the legislature to enact laws to provide for the enforcement of the section does not in any degree conflict with this view. That was a prudent and proper, though, perhaps, an' unnecessary precaution. But it affords no ground for the inference that the people intended to ignore the aid and utility of existing laws to give immediate practical effect to the principle, or that they were content to wait for the reform until the legislature should make new regulations on the subject. It was the intention to put all the new provisions of the Constitution into operation through the instrumentality of such laws as were then in force, so far as practicable, and if, in practice, they were found to be in any respect insufficient for that purpose, they were to be replaced or supplemented by new ones. This view does not depend entirely upon construction, since the instrument itself contains an express provision on that subject. The people declared in section 16 of article 1 that ‘Such acts of the legislature of this State as are now in force shall be and continue the law of this State, subject to such alterations as the legislature shall make concerning the same; but all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated.’
“If the act of 1883 or any of its amendments needed new life and vigor, in order to bring this case within their operation, it has thus been given to them by an authority from which even the legislature itself has derived all of its powers(Emphasis supplied.)
In the above case, it will be noted that the court not only held the law to be in force but also that the new Constitution had enlarged the former scope of the law.
See, also, Speegle v. Joy (1882), 60 Cal 278, holding that, under a constitutional “in force” provision, an act in force was kept in existence and that an act to go into effect at a future date was defeated. See, also, People v. Whiting (1883), 64 Cal 67 (28 P 445), where a portion of a statute in effect was held valid and a portion to have effect in the future was severed.
Of all the numerous State Constitutions containing provisions similar to Michigan’s article 3, § 7, as a matter of draftsmanship the provisions in the 1945 Georgia Constitution are of particular interest :
“Paragraph III. Third in authority. — Third: In subordination to the foregoing: All laws now of force in this State, not inconsistent with this Constitution shall remain of force until the same are modified or repealed by the general assembly.
“Paragraph IY. Local and private acts. — Local and private acts passed for the benefit of counties, cities, towns, corporations and private persons, not inconsistent with the Supreme Law, nor with this Constitution and which have not expired nor been repealed, shall have the force of statute law, subject to judicial decision as to their validity when passed, and to any limitations imposed by their own terms.” (Emphasis supplied.) 1 Georgia Code Ann, pp 666, 669.
The difference in the language of these two sections seems particularly pertinent since the last clearly spells out the rule for which Justice Souris contends. Following one after the other, it must be inferred that the first does not.
The correct test of the constitutionality of a statute is not all previous Michigan Constitutions in effect from the time of a law’s enactment plus the existing Constitution, but simply the validity of the law under the present Constitution. This is the test that originally was set up in the Constitution of 1835, art 1, § 21, where it was provided:
“All acts of the legislature contrary to this or any other article of this Constitution shall be void.”
This provision was not repeated in later Michigan Constitutions. It is quite understandable why it was not because later Michigan Constitutions by their “in force” provisions carried over the statutory law that had been developing through the years under previous Constitutions and validated it save for repugnancy to the new Constitution. It is noteworthy that all Michigan Constitutions retain in the laws in force provisions the exact words “not repugnant to this Constitution.” Other phraseology has changed. This clause has remained throughout.
To adopt the contrary rule would produce results the people could not possibly have intended. In the present case, if we were to test PA 1963, No 62, under the 1908 Constitution and determine it to he unconstitutional, having already determined it to be constitutional under the 1963 Constitution, the legislature would he obliged again to pass the law. While the examination of the constitutionality of a law under two or more Michigan Constitutions might exercise the brain cells of the members of this Court, it would be an exercise the futility of which seems manifest. Enactment of legislation is a time-consuming and expensive process. If a law is valid under the 1963 Constitution, we cannot believe either the framers of the Constitution or the people intended that it be stricken from the statute hooks because of invalidity under some former Constitution which they have voted out of existence.
We construe the language of the 1963 Michigan Constitution, art 3, § 7, to have validated all laws that were in force and effect on January 1, 1964. The constitutionality of said laws shall he tested by the 1963 Constitution save as to existing public and private rights as provided for by section 2 of the schedule and temporary provisions of that Constitution.
O’Hara, J., concurred with Adams, J.
The questions were not so presented or briefed by either party, a practice of which we disapprove. Wherever this unusual procedure is invoked, the parties should address themselves to the questions as certified.
See Attorney General, ex rel. Barbour, v. Pingree, 120 Mich 550, 554 et seq. (46 LRA 407) ; Campbell, Outlines of the Political History of Michigan, p 480 et seq. (1876); Cooley, Michigan, a History of Governments, p 279 et seq. (1905) ; Sagendorph, Stevens Thomson Mason, Misunderstood Patriot, p 317 et seq. (1947).
This language ineludes both the State and loeal units of government. Attorney General, ex rel. Barbour, v. Pingree, supra, p 561. Also, see 2 Proceedings of the 1907-1908 Constitutional Convention, pp 1066, 1067; 2 Official Record, Constitutional Convention of 1961, P 2310.
Section 18 places a flat prohibition upon the lending of credit “except as authorized in this Constitution.” The predecessor of section 18, article 10, § 12, of the Constitution of 1908, did not contain this exception. Because of this, decisions involving' municipalities under the 1908 Constitution relied upon both article 10, § 12, and article 8, § 25, which was directly applicable to loeal units of government. Skutt v. City of Grand Rapids, 275 Mich 258, 266; Sommers v. City of Flint, 355 Mich 655, 661. Under the 1963 Constitution, this is no longer required.
CGSA, §§ 36-96(2); Ann L Mass., eh 168, §43; 4 McKinney’s Cons. L., Banking Law, § 235.
The proposed lease between Gaylord and United States Plywood places the sole burden of tort liability, insurance, and repair on the lessee corporation. A trustee will attend to the mechanics of collection of rent, segregation of funds, and payment of the bonds.’ However, in the proposed trust indenture the city will covenant to perform all duties placed upon it and agree to collect sufficient revenues and rental income to meet the requirements of the indenture. Numerous other duties are placed upon the city, sueh as enforcing compliance with the terms of the lease and reletting the facilities in the event of default by United States Plywood. Safeguards are provided by section 13 of PA 1963, No 62, which require the municipality to obtain permission from the municipal finance commission for the bond issue. The commission may request information from the municipality and section 13 lays down specific criteria to guide the commission in giving its approval. See CL 1948, § 125.1263 (Stat Ann 1965 Cum Supp § 5.3533[S3]).
Similarly, these dangers are encountered by revenue bonds issued by the State but nevertheless the bonds have been regularly held not to be pledges of the State’s credit. See the recent case of Schureman v. State Highway Commissioner, 377 Mich 609, 611; Pinsky, State Constitutional Limitations on Public Industrial Financing: An Historical and Economic Approach, 111 Penn L Rev 265, 316
The absolute character of this requirement does not diminish its flexibility. As Justice Cooley said, “All governmental powers exist for 'public purposes, but they are not necessarily to be exereised under the same conditions of public interest. The sovereign police power which the State possesses is to be exercised only for the general public welfare, but it reaches to every person, to every kind of business, to every species of property within the commonwealth. The conduct of every individual and the use of all property and of all rights is regulated by it, to any extent found necessary for the preservation of the publie order, and also for the protection of the private rights of one individual against encroachments by others. The sovereign power of taxation is employed in a great many eases where the power of eminent domain might be made more immediately efficient and available, if constitutional principles would suffer it to be resorted to; but each of these powers has its own peculiar and appropriate sphere, and the objeet which is public for the demands of one is not necessarily of a character to permit the exercise of another.” People, ex rel. Detroit & H. R. Co., v. Township Board of Salem, 20 Mich 452, 478 (4 Am Rep 400). The requirement of publie purpose has been most rigid when publie money or property is involved. Attorney General v. Board of Supervisors of Bay County, 34 Mich 46, 47; Baker v. City of Grand Rapids, 142 Mich 687, 690; Younglas v. City of Flint, 345 Mich 576, 578; Cf. Sommers v. City of Flint, supra. The requirement has been less rigid when there was no chance the general taxing power could be reached. Gilbert v. City of Traverse City, 267 Mich 257, 261.
Opinion of the Justices, No. 120, 254 Ala 506 (49 So 2d 175) ; Newberry v. City of Andalusia, 257 Ala 49 (57 So 2d 629) ; DeArmond v. Alaska State Development Corporation (Alaska), 376 P2d 717; Andres v. First Arkansas Development Finance Corp., 230 Ark 594 (324 SW2d 97) ; Hackler v. Baker, 233 Ark 690 (346 SW2d 677); Roan v. Connecticut Industrial Building Commission, 150 Conn 333 (189 A2d 399) ; In re Opinion of the Justices, 54 Del 366 (177 A2d 205); State, ex rel. Ferguson, v. City of Pittsburg, 188 Kan 612 (364 P2d 71) ; Industrial Development Authority v. Eastern Kentucky Regional Planning Commission (Ky, 1960), 332 SW2d 274; Miller v. Police Jury of Washington Parish, 226 La 8 (74 So 2d 394) ; City of Frostburg v. Jenkins, 215 Md 9 (136 A2d 852); Albritton v. City of Winona, 181 Miss 75 (178 So 799, 115 ALR 1436); Opinion of the Justices, 103 NH 258 (169 A2d 634) ; Opinion of the Justices, 103 NH 325 (171 A2d 429); Roe v. Kervick, 42 NJ 191 (199 A2d 834); Village of Deming v. Hosdreg Company, 62 NM 18 (303 P2d 920); Gripentrog v. City of Wahpeton (ND 1964), 126 NW2d 230; Harrison v. Claybrook (Okla, 1962), 372 P2d 602; Opinion to the Governor, 79 RI 305 (88 A2d 167); cf. Opinion to the Governor, 88 RI 202 (145 A2d 87); Darnell v. County of Montgomery, 202 Tenn 560 (308 SW2d 373); McConnell v. City of Lebanon, 203 Tenn 498 (314 SW2d 12) ; Almond v. Day, 197 Va 782 (91 SE2d 660); State, ex rel. County Court of Marion County, v. Demus, 148 W Va 398 (135 SE2d 352).
The minority view is represented by the following: Beazley v. DeKalb County, 210 Ga 41 (77 SE2d 740) ; Hogue v. Port of Seattle, 54 Wash 2d 799 (341 P2d 171); Nash v. Town of Tarboro, 227 NC 283 (42 SE2d 209) ; Opinion of the Justices, 152 Me 440 (131 A2d 904) ; Opinion of the Justices to the Senate, 332 Mass 769 (126 NE2d 795); State, ex rel. Beck, v. City of York, 164 Neb 223 (82 NW2d 269); State, ex rel. Saxbe, v. Brand, 176 Ohio St 44 (197 NE2d 328); Village of Moyie Springs, Idaho, v. Aurora Manufacturing Company, 82 Idaho 337 (353 P2d 767); Village of Suring v. Suring State Bank, 189 Wis 400 (207 NW 944) ; State v. Town of North Miami (Fla 1952), 59 So 2d 779; State v. Suwannee County Development Authority (Fla 1960), 122 So 2d 190; State v. Clay County Development Authority (Fla), 140 So 2d 576; but see State v. Inter-American Center Authority (Fla 1955), 84 So 2d 9; and State v. Inter-American Center Authority (Fla 1962), 143 So 2d 1.
Constitution of 1835. Schedule.
“2. All laws now in force in the territory of Michigan, which are not repugnant to this constitution, shall remain in force until they expire by their own limitations, or be altered or repealed by the legislature.”
The following also appears in article 1 of the Constitution of 1835.
“Sec. 21. All acts of the legislature contrary to this or any other article of this Constitution shall be void.”
Constitution of 1850. Schedule.
“Sec. 1. The common law and the statute laws now in force, not repugnant to this constitution, shall remain in foree until they expire by their own limitations or are altered or repealed by the legislature.”
Constitution of 1908. Schedule.
“Sec. 1. The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are altered or repealed.”
Amending Const 1850, art 18, § 8.—Reporter.
There were approximately 2,000 public acts in force when the 1963 Constitution went into effeet. Many of those statutes contain numerous “portions.” Under PA 1945, No 119 (CL 1948, § 8.5 [Stat Ann 1961 Rev §2.216]), or under the severability provisions contained in many acts prior to the enactment of that aet, the Court would be obliged to determine which portions of an aet were invalid and whieh were not and whether the valid portions could be given effeet after the invalid portions had been severed. The magnitude of this task can be judged from the fact that in 1948 there were 21,000 sections to the compiled laws. The number has, of course, since increased.
See Index Digest of State Constitutions, pp 595, 596.
The procedure of adopting a great body of law along with the adoption of a Constitution is a common one. For example: The 1835 Michigan Constitution carried into Michigan law the laws in force in the Territory of Michigan. Const 1835, schedule, § 2. The Kentucky Constitution carried into effect in Kentucky laws in force in Virginia as of June 1, 1792. Constitution of Kentucky, paragraph 233. The New Hampshire Constitution carried into State law the laws of the colony usually practiced in courts of law- Constitutipu of the State of New Hampshire, part 2, art 90, | [
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Per Curiam.
The question posed for review in the instant matter is whether, in this action for damages brought pursuant to the no-fault act, the defense attorney’s remarks in closing argument concerning the impact of this case upon the continued viability of the no-fault scheme in Michigan were improper and served to deny the plaintiff a fair trial. We answer that question in the affirmative.
I
On September 3, 1976, the plaintiff was a passenger in a car driven by defendant Laurie Sue Lougheed. The car was owned by defendant Wheels, Inc. There was a collision with another vehicle as a result of which the plaintiff suffered injuries including cerebral concussion, fractured pelvis, and multiple lacerations.
The plaintiff filed suit against the defendants claiming that she was entitled to damages inasmuch as she had suffered injuries resulting in disfigurement and serious impairment of bodily function. The jury returned a verdict in favor of the defendants.
The plaintiff pursued an appeal to the Court of Appeals. The Court of Appeals affirmed in an unpublished per curiam opinion.
II
A major theme which was emphasized by defense counsel in his closing argument to the jury was his version of what the Legislature intended by the no-fault legislation and what, in his opinion, was necessary for the sustained viability of this system. The following excerpt from defense counsel’s closing argument is illustrative:
"[I]n other words, just because somebody is at fault, they still have been hurt and they still may be out of work and they still may have medical bills to pay and I think the Legislature said, 'Hey, wait a minute, let’s require everybody [to] have insurance and let’s say all right regardless of fault, we’re going to give, if somebody is injured, we’re going to pay some benefits’ and there are a lot of benefits and it provides no-fault, PI or personal injury benefits, reimbursement or all your medical expenses from now until you die, the rest of your life, rehabilitation if you need it, loss of services if you need that, wage reimbursement up to, I think it is, a thousand dollars a month for three years.
"I am almost sure that all of us who have automobiles have no-fault policy and if you read it and see all of the benefits, it provides, required by law and the Legislature says, 'All right, we’re going to put that law into effect and we hope by this law to eliminate the problem we are having with all these lawsuits coming into courts and court congestion and tying up judges and juries and we are going to pay people regardless of fault.’ We call it no-fault now. It doesn’t make any difference about fault. We don’t want to hear about fault. If you have been hurt, we’re going to pay these benefits for you and we are going to solve our automobile accident injury problem, we hope, without getting into court system [sic] through this matter.”
And further:
"You see, the no-fault law, the statute with its intended purpose to eliminate except for the serious injury is good idea, but it will only work if the jurors meet their responsibility. You might think that as you are sitting there, you might think this is just a little case up in Leelanau County, but what you do in this case will have a broad effect, because if you go into that jury room with these facts and you decide that this is a serious impairment of bodily function case, then I go back to my client and I tell him about the jury up in Leelanau County and what they did and I tell the lawyers about what happens and Mr. Clancey tells his people about what happens — .”
Plaintiff’s attorney objected to defense counsel’s remarks at this point and the trial court cautioned defense counsel. Nevertheless, defense counsel continued:
"I guess what I am saying to you is this, is that what you do in this case makes a great deal of difference as to how this no-fault statute is going to work, and I guess I don’t want you to think that just because you are a jury in Leelanau County involving [sic] this case, that your decision may not be important to us lawyers and judges as to what juries do with cases of this kind and that is really the point I am trying to make.”
On appeal, the plaintiff argued that defense counsel’s remarks concerning the no-fault legislation and the duty of the jury were improper and constituted reversible error. The Court of Appeals rejected the plaintiffs arguments and took plaintiff to task for failing to cite any authority for this proposition, citing Mitcham v Detroit, 355 Mich 182; 94 NW2d 388 (1959).
Ill
We conclude that the remarks set forth served to deny the plaintiff a fair trial. The issue for the jury’s consideration in this case was not the continued viability of the no-fault legislation. The only issue for determination by the jury in this case was whether the plaintiff had suffered the type of injury for which noneconomic damages could be recovered. We cannot agree with the Court of Appeals that defense counsel’s remarks were a simple admonition to the jury to follow the law. We believe that defense counsel’s remarks may well have influenced the jury to decide this matter on the basis of considerations not germane to the issue which was presented to them.
Moreover, we do not believe that the plaintiff should be faulted for her failure to cite authority for her position in this regard. The nature of the plaintiffs argument on appeal was that the remarks made by defense counsel denied her a fair trial. We see no reason, given this type of argument, to preclude a finding of error because of the lack of cited authority.
Our disposition of this allegation of error makes it unnecessary to reach the other points raised by the plaintiff in her application for leave to appeal.
Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgments of the Court of Appeals and of the Leelanau Circuit Court and remand the matter to the Leelanau Circuit Court for a new trial. Costs to plaintiff.
Kavanagh, Williams, Levin, Fitzgerald, and Blair Moody, Jr., JJ., concurred.
Coleman, C.J.
We agree with the majority’s conclusion that the defense attorney’s remarks concerning the possible impact that this jury’s verdict might have upon the future of the no-fault scheme interjected irrelevant considerations into the trial and were improper. However, the remarks were not so prejudicial as to deny plaintiff a fair trial.
The control of arguments of counsel is entrusted to the trial court’s discretion and generally, counsel is given some leeway in presenting his argument. Although the argument that the jury should exercise its responsibility carefully because it may have broad ramifications in other cases was improper, the argument was not an appeal to the jury’s self-interest, passion or prejudice.
After plaintiff’s objection, the trial judge cautioned the defense attorney to "tone it down a little”. No further request for relief in the form of a curative instruction or motion for a mistrial was made. Since an appropriate instruction to the jury to disregard these remarks could have been made if counsel had deemed them prejudicial, we conclude that reversal is not required in this case. The trial judge did not abuse his discretion in denying defendants’ motion for a new trial.
Ryan, J., concurred with Coleman, C.J.
MCL 500.3101 et seq.; MSA 24.13101 et seq.
MCL 500.3135; MSA 24.13135.
See Wayne County Board of Road Comm’rs v GLS LeasCo, 394 Mich 126; 229 NW2d 797 (1975), Clark v Grand Trunk W R Co, 367 Mich 396; 116 NW2d 914 (1962), University of Delaware v Munson, 316 A2d 206 (Del, 1974), Russell v Guider, 362 So 2d 55 (Fla App, 1978), Hansel v Chicago Transit Authority, 132 Ill App 2d 402; 270 NE2d 553 (1971), Williams v North River Ins Co, 579 SW2d 410 (Mo App, 1979).
See In re Dellow’s Estate, 290 Mich 167; 287 NW 420 (1939), Rutter v Collins, 103 Mich 143; 61 NW 267 (1894); Bugar v Staiger, 66 Mich App 32; 238 NW2d 404 (1975).
See Elliott v A J Smith Contracting Co, 358 Mich 398; 100 NW2d 257 (1960), Gonzalez v Hoffman, 9 Mich App 522; 157 NW2d 475 (1968).
See GLS LeasCo, supra, Clark, supra, Anno: Appeals to Juror’s Self-Interest, 33 ALR2d 442.
See Munson, supra.
See Koepel v St Joseph Hospital, 381 Mich 440; 163 NW2d 222 (1968), Russell, supra.
See Moore v Spangler, 401 Mich 360; 258 NW2d 34 (1977), Kailimai v Firestone Tire & Rubber Co, 398 Mich 230; 247 NW2d 295 (1976). | [
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Bushnell, J.
Plaintiff Wilbur DeYoung seeks a writ of mandamus in this court to require defendant State land office board to forthwith accept payments due under a land contract in which he is the vendee’s assignee and defendant is the vendor. This contract, which is dated January 21, 1941, was assigned to DeYoung on November 17, 1941. According to the admissions in DeYoung’s petition, “notices of intention to' forfeit” on 5 or 6 different occasions were served upon him. In each instance he redeemed the arrearages.
On April 27, 1945, a “notice of intention to forfeit” was sent him by registered mail, he being at the time three months in arrears in the sum of $27. On May 17, 1945, he was served with a “notice of. forfeiture,” also by registered mail. ’ Thirty-one days after such service of notice of forfeiture the plaintiff appeared at the Detroit 'office of the defendant and tendered the full amount of the arrearage including such sum as was necessary to bring the contract up to date. Defendant refused to accept the tender, stating “that in view of the fact that 30 days had. elapsed since service of notice of forfeiture they were unable to accept same.” The amount of. the original contract was $880, and there have been paid sums totaling in excess of 50 per cent, thereon.
The “notice of intention to forfeit” and the “notice of forfeiture” were signed by “one Mr. Macklin, underneath which signature appeared the initials L. B.”
Defendant has replied to an order to show cause by filing an answer and return, in which it avers that the method it pursued to forfeit the land contract conforms to statutory requirements. (See Act No. 155, Pub. Acts 1937, as amended [see Comp. Laws Supp. 1940, 1943, § 3723-1 et-seq., Stat. Ann. 1944 Cum. Supp. §7.951 et seg.]). Defendant admits “it previously refused payments heretofore tendered after the expiration of the time limited as the effective date of the forfeiture in Act No. 155, § 8a, Pub. Acts 1937, as added by Act No. 363, Pub. Acts 1941, and it admits that the defendant will continue to refuse .to accept the said payments and will place said land for sale, as is provided by the said Act No. 155, Pub. Acts 1937, as amended, unless ordered not so to do by this Court. ’ ’
In his petition for mandamus, DeYoung sought only a writ directing defendant, “forthwith to accept all payments -due undér the said land contract as heretofore tendered to defendants and as herein tendered.”
Plaintiff argues that the statute requires the “notice of forfeiture” to he signed by the chairman and one other member of the State land office board, and he denies that the board can delegate such authority to a clerk and, therefore, contends that the notice is invalid. In addition, he asks this Court to determine that the State land office board is required to institute proceedings of foreclosure before a circuit court commissioner in all such cases.
The State land office board act (Act No. 155, Pub. Acts 1937, as amended [Comp. -Laws Supp. 1940, 1943, § 3723-1 et sec[., Stat. Ann. 1944 Cum. Supp. §§ 7.951-7.964]), created a board consisting of three members. This board has control and jurisdiction over State owned lands, title to which has been vested in the State by virtue of tax sales. The act provides in section 9 †that the board shall be a body corporate, may sue and be sued, and shall adopt a seal of which all the courts of this State shall take judicial notice. In the third paragraph of section 9 appears the following language:
“The board is authorized, for and on behalf of the State of Michigan, to execute, with the seal of the board attached, such quitclaim deeds, land contracts, leases or other contracts, documents or papers as may be necessary to carry out the provisions of this act.”
Section 1 of the act reads in part :
‘ ‘ Two members shall constitute a quorum, and the signatures of the chairman and one other member of the board on any papers signed by the board shall be sufficient. ’ ’
The provisions of the act with respect to forfeiture are stated in section 8a and read as follows:
“Default having been made by.a vendee in the terms of any land contract executed under this act for the sale of lands, the forfeiture of the rights of such vendee thereunder shall become effective 30 days after either service, upon said vendee, of a notice thereof or after mailing of notice thereof -to said vendee by registered mail, return receipt requested, addressed to the last address of such vendee as shown by the records of the board or department having jurisdiction of the ■ matter. Possession of such lands shall be obtained forthwith in the method provided by law for the recovery of possession of lands held contrary to the conditions or covenants of an executory contract for the purchase thereof. Such lands following, the forfeiture of such contract shall be disposed of in the manner provided in section 6 or 8 of this act as the case may be.” (Added by Act No. 363, Pub. Acts 1941 [Cómp. Laws Supp. 1945, § 3723-8a, Stat. Ann. 1946 Cum. Supp. §7.958 (1)]).
Section 8a does not indicate the manner in which the forfeiture notices are to be executed. Had the legislature intended such notices to be executed by the board it presumably would have so directed. It seems unreasonable to require the board to convene or have its members personally sign notices of forfeiture. When we consider the amount of business the board is required to transact it would only seem reasonable that it should be permitted to delegate such routine matters to its employees. After all, the purpose of a notice of forfeiture is to inform a vendee of his delinquency and permit him to remedy it. It is of no consequence whether such information comes to him over the signature of a clerk of the board or that of the chairman and another member of the board.
Plaintiff does not deny his default but seeks to escape responsibility therefor. The allegations in the petition indicate that he had on previous occasions extended his time of payment by taking ad vantage of periods of* default, but in this instance he overstepped the time limit. We see no reason why the board should be required to excuse his repeated neglect. A writ of mandamus is a writ of grace and not a writ, of right. Plaintiff has not indicated any circumstances which require this Court to issue the writ.
The question of whether ór not the State land office board should be required to foreclose after forfeiture is not involved in the matter before us. The writ is denied, with costs to defendant.
Butzel, C. J., and Carr, Sharpe, Boyles, Reid, and North, JJ., concurred. Starr, J., took no part in the decision of this case.
Then amended by Acts Nos. 9, 16, 159, 194, 196, Pub. Acts 1943. —Reporter.
Amended by Act No. 363, Pub. Acts 1941 (Gomp. Laws Supp. 1945, § 3723-9, Stat. Ann. 1946 Cum. Supp. § 7.959). — Reporter.
Amended by Aet No. 9, P.ub. Acts 1943 (Comp. Laws Supp. 1943, § 3723-1, Stat. Ann. 1944 Cum. Supp. § 7.951). — Reporter. | [
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Per Curiam.
Appeal is dismissed as leave to appeal was improvidently granted to intervenors who have no interest in the subject matter of the litigation.
T. M. Kavanagh, C. J., and Dethmers, Kelly, Black, Souris, Smith, O’Hara, and Adams, JJ., concurred. | [
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Souris, J.
By a 3-2 decision, 3 Justices not participating, this Court affirmed the circuit judge’s order reversing a decision of the employment security commission’s appeal board which had granted unemployment compensation benefits to claimants, employees of the General Motors Corporation, 376 Mich 135. On its own motion the Court granted rehearing.
The essential facts and principal questions presented by the appeal are stated fully and accurately in the opinions of Justices Dethmers and Black appearing at 376 Mich 135, 138, 143. It is my judgment that Justice Black was right in concluding that paragraph 118 of the collective bargaining agreement between General Motors and the claimants’ union cannot be given the effect contended for it by General Motors without violation of section 31 of the employment security act (CL 1948, § 421.31 [Stat Ann Í960 Rev § 17.533]) and that, therefore, our decision in Park v. Employment Security Commission (1959), 355 Mich 103, requires reversal of the circuit court’s judgment.
Since our grant of rehearing, General Motors has filed a supplemental brief in which it reargues a contention previously advanced but not considered in Justice Black’s opinion. It is that claimants are disqualified from receiving unemployment compensation benefits not alone because of paragraph 118 but, as well, because claimants’ unemployment resulted in fact from a work stoppage due to a labor dispute in tbe establishments, even as defined in Park, supra, in which they were last employed. The basis for this contention by the company is evidence that the Mansfield, Ohio, strike involved more than just local issues affecting wages, hours and working conditions of the Mansfield employees; it is the company’s claim that the price exacted from it for labor peace in Mansfield was its execution of a supplement to its 1955 national agreement with the union to include provisions therein “relating to apprentice training, the ratio of apprentices to journeymen, the allocation of overtime between journeymen and apprentices, and the eligibility of production employees for apprentice training”.
The record discloses that following the 1955 national agreement, the union became the certified bargaining agent for apprentices at about 20 of the company’s plants and that the supplementary agreement ultimately reached was designed to cover these-apprentice employees. It also discloses that the apprentices at the Flint plants in which claimants worked were not represented by the union until over' a year after termination of the Mansfield strike and execution of the supplementary agreement when the apprentices at the Fisher, but not the Buick, plant! became members of the union. Nonetheless, the company argues that as a result of the supplementary agreement production employees at its Flint plants, including claimants, were accorded greater opportunities to become apprentices by a change made in the age limit for admitting employees into the apprentice training program. Furthermore, it is claimed that journeymen at the Flint plants also benefited from certain of the provisions of the supplementary agreement. And finally, it is claimed that pursuant to a long-standing and well-recognized policy of General Motors the benefits granted by the supplemental agreement to apprentices represented .by the union were extended to those apprentices not represented by the union, including those in the Flint plants in which claimants worked.
From all of this the company argues that the Mansfield strike, although it may have started as a local labor dispute, eventually became a national labor dispute permeating every “establishment” of the company; that claimants’ unemployment was due “to a stoppage of work existing because of a labor dispute in the establishment in which [they are or were] last employed”; and that, therefore, claimants were disqualified to receive benefits by the provisions of section 29(1) (b) of the act even without reliance upon the provisions of paragraph 118 of the collective bargaining agreement.
The trouble with this argument is that we are not free to set aside findings of facts made by the appeal board unless such findings are contrary to the great weight of the evidence. Section 38 of the act; Miller v. F. W. Woolworth Company (1960), 359 Mich 342, 352. In this case of General Motors, the referee and the appeal board, by adoption of the referee’s decision, found, contrary to the company’s assertions, that:
“The issues resulting in the labor dispute at the Mansfield, Ohio, plant were local matters concerning working conditions involving the employees in such plant. It was not shown that the wages, hours or working conditions of the claimants herein were involved in such, labor dispute. It was brought out that certain matters concerning apprentices were involved in the dispute at the Ohio plant, and that agreement reached in this respect covered approximately 20 different units of the employer, none of which, however, concerned apprentices at the Fisher Body and Buick Motor Division plants in Flint.”
The record amply supports the findings quoted. Indeed, had the appeal board found, as a matter of fact, that a labor dispute existed in the Flint plants in which claimants were employed solely on the basis of the evidence submitted by the company and summarized above, we would have had to hold that such finding was contrary to the great weight of the evidence. Evidence that a strike in Ohio was called or prolonged to effectuate a contract covering conditions of employment of apprentices located in' numerous plants of the employer, but not in its Flint plants, is not sufficient to support a finding that a labor dispute existed in the Flint plants just because some of the Flint production employees might thereby more easily qualify for apprentice training or even because the employer unilaterally, might extend the contract’s provisions to its nonunion apprentices in Flint. The term “labor dispute”, as used in section 29(1) (b), cannot be read so broadly. It means no more than a controversy between employer and employees regarding hours, wages, conditions of employment or recognition of a bargaining representative. See Lillard v. Employment Security Commission (1961), 364 Mich 401, 420.
Absent evidence compelling a finding that claimants’ unemployment was due to a stoppage of work because of a labor dispute in the establishments in which they were last employed, subsections (1), (2), (3), and (4) of section 29(l)-(b) are not pertinent to our decision. See Park v. Employment Security Commission (1959), 355 Mich 103, 131, 132.
The foregoing considered, I join now in Justice Black’s opinion for reversal appearing at 376 Mich 135,143, not alone for the reasons therein stated but, as well, for the further reason considered herein.
. T. M. Kavanagh, C. J., and Smith, J., concurred with Souris, J.
Black, J., concurred in the result.
In the interim between our earlier decision and the grant of rehearing, GCB. 1963, 405.3(2) was amended, see 376 Mich xlix and 377 Mich xxi, thereby removing the bar which prevented two of the three nonpiarticipating Justices from qiartieipating in the first decision herein.
Paragraph 118 reads as follows:
“The union has requested this national agreement in place of independent agreements for each bargaining unit covered hereby. Ac cordingly an authorized strike in one bargaining unit under this agreement which results in an interruption of the flow of material or services-to operations in any other bargaining unit under this agreement, will be considered an authorized strike in any such affected bargaining-unit.”—Reporter^
CLS 1961. § 421.29 (Stat Ann 1960 Rev § 17.531).
CLS 1961, § 421.38 (Stat Ann 1960 Rev § 17.540) | [
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Boyles, J.
This suit was brought by plaintiffs to recover commissions claimed to be due them for acting as agents for the defendants in selling compensation insurance. The defendants denied liability and gave notice of set-off and recoupment. The amounts involved are stipulated. Plaintiffs claim they are entitled to a judgment for $2,473.28 plus interest, against T. EL Mastin & Company, a copartnership, Consolidated Underwriters and Underwriters Exchange. The trial judge, hearing the case without a jury, entered a judgment against L. A. Walden individually of no cause for action as to all defendants ; against L. A. Walden & Company, a Michigan corporation, of no cause for action as to Underwriters Exchange and T. EL Mastin & Company, a Missouri corporation; and in favor of defendant Consolidated Underwriters and T. EE. Mastin & Company, a copartnership, on their claim of set-off and recoupment, and against L. A. Walden & Company, a Michigan corporation, for $1,329.81. No defendant has appealed or cross-appealed. Plaintiffs appeal, claiming they should have judgment against all the defendants except T. EL Mastin & Company, a Missouri corporation, for $2,473.28 plus interest. The involvement among these various parties, as to their respective claims, is a fair sample of the confusion that existed between and among them during the course of their, transactions. The question this Court -is asked to decide, oh the appeal, is whether either plaintiff is entitled to a judgment and, if so, •against whom; and, if not, whether the judgment for defendants Consolidated Underwriters and T. EE. Mastín & Company, a copartnership, against L. A. Walden & Company, a corporation, for $1,329.81 should he affirmed. The trial court held that there was no proof on which to base a judgment against the .defendants Underwriters Exchange and T. H. Mastín & Company, a Missouri corporation, and we concur in this conclusion.
The crucial issue in the case, which we consider to he controlling of the result, is whether plaintiffs, or either of them, are entitled to agent’s commissions on premiums collected hy the defendants, or any one or more of them, after termination of the agency contract, on certain annual policies issued prior to the termination of the agency contract, and during the remainder of the policy years.
L. A. Walden & Company, a Michigan corporation, was licensed hy the State commissioner of insurance to act as agent for defendants Underwriters Exchange and Consolidated Underwriters during the period material to this suit. Defendant T. H. Mastín & Company, a copartnership, was attorney-in-fact for these two reciprocal insurance exchanges. It had an agency contract with L. A. Walden, as an individual, which the trial court found was lawfully terminated hy T. H. Mastín & Company, the co-partnership, on January 15, 1943.
The insurance written was mostly for workmen’s compensation liability. There was, in addition, a small amount of public liability insurance which is not involved in this suit. The compensation policies were for a term of one year, and a new policy was issued each year. If the premium was small, it might he paid at the beginning of the policy year. If the premium was large, the insured was allowed to make an initial deposit of one-third the estimated premium, and to pay the full amount in monthly instalments during the policy year. Both types of ■ premium payment were subject to audit at the end of the policy year, at which time adjustment of premium was made according to the actual number of employees covered, their wages, and type of risk, none of which could be precisely determined before the end of the policy year. T. H. Mastin & Company, the copartnership, collected the premiums directly from the insured. Exhibit 21, a typical insurance policy, contains the following provisions as to cancellation:
“This contract may be canceled by either of the parties after 10 days’ written notice to the other. * * * If canceled by the attorneys-in-fact for nonpayment of monthly charges, or if canceled by the subscriber for any cause, the subscriber shall pay to the attorneys-in-fact the remuneration they would have received had the contract continued in force until its next anniversary date. ’ ’
It appears that defendants dealt indiscriminately with both plaintiffs as agents, although the agency contract itself was with L. A. Walden as an individual. The express contract on which plaintiffs rely was in the form of a proposal addressed by T. H. Mastin & Company to L. A. Walden individually, and the acceptance was signed by Walden individually. However, most of the agency licenses issued by the State insurance commissioner were to “L. A. Walden & Company, L. A. Walden, President.” The record before us indicates that during the entire course of their dealings these parties acted on the assumption that either one, or both, of the plaintiffs had authority to act as agent for the defendants. Their transactions were in such confusion in that regard that checks for payment of commissions were made payable to L. A. Walden and the corporation jointly. In some years State licenses to act as agent for the defendant reciprocal insurance companies were issued by tbe State insurance commissioner to both L. A. Walden as an individual and to tbe corporate plaintiff. L. A. Walden is tbe president of L. A. Walden & Company and sole owner of all tbe corporate stock.' We find tbat tbe record indicates a community of interest between tbe two plaintiffs to sucb an extent tbat plaintiffs may be treated as one for tbe purpose-of considering tbe issue in tbe case. See Montgomery v. Central National Bank & Trust Co. of Battle Creek, 267 Mich. 142.
Plaintiffs declared on an express written agreement signed “T. H. Mastin & Company, By T. H. Mastín,” and accepted by “L. A. Walden.” Tbe defendants answered admitting tbe contract, but claimed tbat it was to continue only so long as plaintiff L. A. Walden was employed as agent, tbat be terminated bis employment in November, 1942, and tbat therefore be was entitled to no commissions except those on premium deposits paid during tbe time be was in defendants’ employ. Plaintiffs, replying to tbe affirmative matter in tbe answer, stated:
“Tbat although plaintiff L. A. Walden ceased to act as agent for defendants in November, 1942, at which time defendants terminated sucb agency, be was nevertheless entitled to receive commissions on business written by him over a period of one year, tbat being tbe time for which tbe policies were written. ’ ’
We conclude tbat recovery, if any, must depend upon tbe construction to be given tbe terms and provisions in tbe express written contract of agency. Tbe parties differ as to tbe meaning of these terms. See Millar v. Macey Co., 263 Mich. 484; Clifton v. Village of Constantine, 294 Mich. 304; Geistert v. Scheffler, ante, 325.
The material part of the written contract as to commissions on premium payments to he paid to the agent is as follows:
“1. Nine per cent, of all business except special deals, to be paid monthly, based upon the earned and paid monthly premium deposits; this to begin oh the 1st of January, 1941.
“2. Five per cent, bonus of the first year’s estimated premium on new business only, based upon the paid initial deposit, if you prefer to do it this way rather than waiting until the actual premium has been paid. If you prefer to wait until the actual premium has been paid, it can be paid to you monthly, based on the actual earned paid premium. This bonus does not apply on the special deals. * * *
“6. It is understood this agreement will continue so long as we employ you to look after our interests in the Detroit, Michigan territory, unless in the future the undersigned conclude to make another agreement. ’ ’
Defendants contend that the words “based upon the earned and paid monthly premium deposits,” in paragraph 1, preclude recovery of commissions on premiums paid after termination of the agency. However, this conclusion cannot be clearly deduced from the language of the contract. Unless the contract clearly so provides, we should not conclude that there must now be a forfeiture of plaintiffs’ commissions fully earned. Does “based upon” mean contingent upon, or does it mean computed on the basis of the earned and paid premium deposits ? To aid in resolving this ambiguity it is necessary to look to the dealings of the parties. The method which they employed in carrying out these provisions of the contract was as follows: If the premium was a lump sum payment, plaintiffs received nothing until the audit at the end of the yea,r. If it was made in monthly payments, they received an approximate commission during the following month, which was subject to adjustment at the end of the year. From the second paragraph of the contract it is clear that a similar method was optional with the plaintiffs in the case of new accounts, and this lends credence to the testimony as to the course of dealing under paragraph 1, which was uncontradicted. This contract was dráwn by Mr. Mastin, a lawyer, and should be construed against the defendants where ambiguous. Saxon v. Howey, 247 Mich. 508. For a comparable situation, see Clausen v. Title Guaranty & Surety Co., 168 App. Div. 569 (153 N. Y. Supp. 835 [affirmed without opinion, 222 N. Y. 675 (119 N. E. 1035)]).
Under such circumstances, does the right to-commissions fully earned by plaintiffs on premiums accrued, but not certain in amount, become forfeited upon termination of the agency? There is nothing in the contract to this effect. Defendants claim it as a rule of law, and the trial court so found. We do not agree with this conclusion. Defendants rely upon Phoenix Mutual Life Ins. Co. v. Holloway, 51 Conn. 310 (50 Am. Rep. 20); 29 Am. Jur. pp. 136, 137; 79 A. L. R. 475, 478; 136 A. L. R. 160, 167; 35 L. R. A. (N. S.) 153; Fidelity Deposit Co. of Maryland v. Washington Life Ins. Co. of New York, 193 Fed. 512, and like cases, which hold in effect that an insurance agent whose agency is rightfully terminated is not entitled to commissions on renewal policies unless his contract specifically so provides. But these cases and annotations' have reference to renewals of life insurance policies, effective subsequent to the termination of the agency. The case at bar deals with contracts which were “renewed” prior to the termination of the agency. Strictly speaking, these were not renewals at all, but new contracts. Brady v. North Western Ins. Co., 11 Mich. 425; Aurora Fire & Marine Ins. Co. v. Kranich, 36 Mich. 289; Ladies of The Modern Maccabees v. Illinois Surety Co., 196 Mich. 27; Michigan Mortgage-Investment Corp. v. American Employers’ Ins. Co. of Boston, 244 Mich. 72; Attorney General, ex rel. Commissioner of Insurance, v. Lapeer Farmers Mutual Fire Ins. Assn., 297 Mich. 174; Perkins v. Century Ins. Co., Ltd., 303 Mich. 679. The situation in the instant case differs from that of policies which are automatically renewed by payment of premium, and not by the issuance of new policies as was done in the present case.
We conclude that plaintiffs are entitled to the commissions claimed. The case is similar to Stevenson v. Brotherhoods Mutual Benefit, 312 Mich. 81, where such recovery was allowed on a somewhat less ambiguous contract. See, also, American Surety Co. v. Sheerin (Tex. Civ. App.), 203 S. W. 1120, where under similar circumstances the court said:
“It is thus obvious that Sheerin (the agent) had concluded every essential step necessary to entitle him to his compensation under his arrangement with the American Surety Company. The fact that the company extended credit to the bank (the insured) did not reduce the period of the bond to any less term than two years, or lessen the liability of the bank to pay the premium when due, or require any other act on the part of Sheerin in order to earn his commission.”
In this case, the fact that defendants extended monthly credit to the insured did not reduce the ‘period of a policy to any less term than one year, or require any further act -on the part of plaintiffs to earn the commission.
The foregoing conclusion answers defendants’ claim that the termination of the agency contract ended plaintiffs’ rights to commissions on premiums then unpaid, regardless of the length of time the policies had to run thereafter. Defendants terminated the agency agreement on January 15, 1943, as they had the right to do under paragraph 6 of the contract hereinbefore quoted. However, such termination did not end plaintiffs’ right to commissions on premiums earned by plaintiffs and later collected by the defendants, on policies issued during the life of the agreement.
The judgment for the defendants on their set-off and recoupment is set aside and reversed. Inasmuch as the plaintiff corporation has received the benefits of the agency contract entered into by L. A. Walden, individually,, and is the agent of the defendant reciprocal companies recognized by the State insurance commissioner, L. A. Walden & Company, a Michigan- corporation, will be considered as the plaintiff entitled to the commissions. The ease is remanded for entry of judgment for plaintiff L. A. Walden & Company against defendants T. H. Mastín & Company, a copartnership, and. Consolidated Underwriters, a reciprocal insurance exchange, for $2,473.28, together with interest at five per cent, from April 11, 1945, to date of entry of judgment, with costs to said plaintiff.
Btttzel, C. J., and Carr, Bushnell, Sharpe, Reid, North, and Dethmers, JJ., concurred.
No appeal has been taken from the court ^s finding that the agency was terminated January 15, 1043. | [
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Williams, C.J.
The Court granted leave in these two cases in order to consider the legal standard to be applied in workers’ compensation cases involving psychiatric disabilities related to employment. The Legislature has amended the relevant statute effective January 1, 1982. Because this Court today in Hurd v Ford Motor Co, 423 Mich 531; 377 NW2d 300 (1985), has construed this statute as applicable to "personal injuries occurring on or after January 1, 1982,” we decline to reexamine our interpretation of the earlier statute in Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1; 268 NW2d 1 (1978).
Facts
A. Peters v Michigan Bell Telephone Co
The plaintiff worked as a telephone operator for the defendant from November, 1967, until September, 1977. In September 1978, the plaintiff filed a claim for workers’ compensation benefits, alleging a nervous and emotional disorder, aggravation of hypertension, and an aggravation of an injury to the heart, circulatory system, and central nervous system.
Plaintiff was awarded benefits by the hearing referee in 1980, and, on October 29, 1982, the wcab, citing Deziel, affirmed the award with a minor modification. The Court of Appeals denied the defendant’s application for leave to appeal from the decision of the board. In an order dated September 19, 1984, this Court granted leave to appeal.
B. Morrish v General Motors Corp
Plaintiff Morrish worked for General Motors from February, 1969, until January, 1978. Subsequently, Morrish filed a workers’ compensation claim, alleging a psychiatric disability caused by incidents at work. The hearing referee, on February 4, 1980, determined that there was no causal nexus between plaintiff’s disability and her employment. On November 19, 1982, the Workers’ Compensation Appeal Board reversed the decision of the hearing referee and awarded benefits. The. Court of Appeals denied defendant’s application for leave to appeal on May 25, 1983. In an order dated September 19, 1984, this Court granted defendant’s application for leave to appeal.
Discussion
In Deziel, this Court considered the compensability of mental disorders under the existing statute, MCL 418.301(1); MSA 17.237(301X1). In interpreting the statutory requirement that compensable injuries must arise "out of and in the course of’ employment, we developed a three-step analysis. This analysis required findings that
1) the claimant was disabled;
2) an injury in the form of a precipitating work-related event had occurred;
3) using a subjective causal nexus standard, the employment had combined with some internal weakness or disease to produce the disability.
Deziel, p 37.
The relevant statute was subsequently changed by the Legislature, 1980 PA 357, MCL 418.301(2); MSA 17.237(301X2), effective January 1, 1982.
Conclusion
In light of the legislative action, we decline to reexamine our interpretation in Deziel as we are persuaded that it would be unwise to create potentially a third standard for the determination of the complex question of liability for alleged work-re lated mental disability. These cases are remanded to the Court of Appeals as on leave granted for further proceedings not inconsistent with this opinion.
Levin, Cavanagh, and Boyle, JJ., concurred with Williams, C.J.
"Mental disabilities and conditions of the aging process, including but not limited to heart and cardiovascular conditions, shall be compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof.” | [
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Boyle, J.
These cases require determination of whether a trial court may employ an administrative order to compel funding in excess of appropriations and consideration of a procedure to guide the fair and expeditious resolution of conflicts between the judiciary and local funding units.
The governmental funding crisis that is the backdrop for these conflicts began in this state in the late 1960’s and early 1970’s. An explosion of litigation, the creation of new courts, new judicial remedies, inflation, the introduction of unionization into the public sector, substantial unemployment, and public resistance to tax increases created increased competition between the courts and units of local government for local tax revenues.
The judicial system would be benefited if our "one court of justice,” Const 1963, art 6, § 1, was financed by the State Legislature. While the state has undertaken to eliminate local funding of state functions, MCL 600.9947; MSA 27A.9947, relief has been forthcoming primarily in Detroit and in Wayne County. The result has been disparity in compensation and in delivery of services.
The allocation of tax revenues has become an ever more difficult task for local funding units. The need to maintain and improve local court staff and services is confounded by shortage of funds. Local judges who should be independent of the political process find themselves increasingly involved in the political give-and-take inherent in the appropriation process.
In this perplexing and disturbing situation, we attempt to provide guidance for resolution of conflict and a basis for the development of data supporting further movement toward statewide financing by procedures set forth in the administrative order attached as an appendix, effective upon issuance of the Court’s judgment orders.
I. Facts
A. Hillsdale County
The County of Hillsdale established a contributory retirement plan in which the employees contribute three percent and the county four percent of the gross wages of all non-union county employees. In a previous action, the district court employees for that county obtained a circuit court judgment against the county declaring that they could withdraw from the plan; thereafter they entered into an agreement with the judge increasing their compensation by the four percent that the county would, under the plan, have been required to contribute.
When the county refused to provide funds to pay the additional compensation, the district court issued an administrative order directing the county to pay the additional four percent to the court employees. The county again refused and the employees and the judge commenced this action in the circuit court to compel payment by the county. The county filed a countersuit for injunctive relief.
The circuit judge found that payment of the increase would not adversely affect the county and that failure to pay the increase would not adversely affect the operation of the district court. Placing the burden of proving that the administrative order was unreasonable on the county, the circuit judge held that the order was reasonable and that the county was obliged to pay the increased salary. The county appealed to the Court of Appeals and filed an application for leave to appeal to this Court before issuance of a decision by the Court of Appeals. We granted leave on May 17, 1984.
B. Cheboygan County
The Cheboygan circuit judge asked the county to provide $5,619.25 for a part-time mediation clerk. The board of commissioners agreed to provide $2,400 to employ one part-time employee for one full seven-hour day each week at the rate of $4.93 per hour. However, the judge hired a part-time mediation clerk for 17 Vi hours per week and directed that she be paid $5.91 per hour and receive pro-rata sick leave, vacation, medical, and hospital insurance benefits. The county policy is that part-time county employees do not receive such benefits. The board adopted a resolution stating that the employee would not receive fringe benefits and would be paid $4.93 per hour in accordance with county policies for all part-time personnel paid with county funds.
On January 6, 1984, the judge issued Administrative Order 1984-1 requiring that the county provide the wages and benefits agreed upon by the judge. The county decided to comply to the extent of the $2,400 previously appropriated for part-time circuit court employees. In March 1984, the county advised the judge that it did not consider the employee’s salary to be reasonable and necessary to the court’s operations and that it would not appropriate funds beyond the $2,400. The county also took steps to charge the fringe benefit costs against the $2,400 appropriation. On March 28, 1984, the circuit judge entered Administrative Order 1984-2, requiring, inter alia, that the county refrain from altering the budget of the court without prior written consent of the court. The administrative order warned that it was enforceable through the judge’s contempt power. On April 3, 1984, the judge issued an order to show cause why the county clerk should not be held in contempt for failure to comply with the administrative order. On April 6, 1984, the board, the county clerk, and the county treasurer filed a motion for immediate consideration and a complaint for superintending control with this Court. The judge filed a counter-complaint for declaratory judgment and sought an order requiring payment by the county of attorney fees incurred in defending the case before this Court. This Court granted the county’s motion for immediate consideration and ordered that the case be argued and submitted as a calendar case together with the Hillsdale County appeal. On stipulation of the parties, hearings in circuit court to enforce the administrative orders were adjourned.
We hold that MCR 8.112(B) does not provide authority to compel expenditures and conclude that when agreement cannot be reached between a court and a funding unit, the court may initiate suit and shall bear the burden of proof regarding expenditures in excess of appropriations. Our first conclusion requires vacation of the administrative order and pendent contempt proceedings in Che boygan Co Comm’rs v Cheboygan Circuit Judge. Our second conclusion requires discussion of the law applicable to the situation presented in Employees & Judge of the Second Judicial Dist v Hillsdale Co.
II. Analysis
The issue in Hillsdale is whether the district control unit has the authority to decline to fund salary increases for district court employees which were not alleged or proven to be necessary to maintain a statutory function of the court or to provide for the overall administration of justice. In Cheboygan the issues are whether a court may direct a county to appropriate funds by means of an administrative order and whether the circuit judge may employ counsel to defend the court’s interest in these proceedings.
Each branch of government has inherent power to preserve its constitutional authority.
It was certainly never intended that any one department, through the exercise of its acknowledged powers, should be able to prevent another department from fulfilling its responsibilities to the people under the Constitution. [O’Coin’s, Inc v Worcester Co Treasurer, 362 Mass 507, 511; 287 NE2d 608 (1972).]
However, an indispensable ingredient of the concept of coequal branches of government is that "each branch must recognize and respect the limits on its own authority and the boundaries of the authority delegated to the other branches.” United States v Will, 449 US 200, 228; 101 S Ct 471; 66 L Ed 2d 392 (1980).
No claim has been asserted in the Hillsdale case that a statutory function, the overall operation of the court, or a constitutional function is in jeop ardy because of the actions taken by the funding unit.
The Legislature has specifically authorized the district court to "appoint employees and fix their compensation,” MCL 600.8271; MSA 27A.8271. However, we are unable to conclude from the record in Hillsdale that additional expenditures beyond appropriations may be compelled.
This Court held in Judges of the 74th Judicial Dist v Bay Co, 385 Mich 710; 190 NW2d 219 (1971), that the directive by the Legislature that the court shall appoint and fix compensation of its employees represents a legislative intent to place those determinations in the control of the district court judge. The court has the authority to fix salaries, which if reasonable and within appropriations, must be paid by the funding unit. Sturgis v Allegan Co, 343 Mich 209; 72 NW2d 56 (1955). We are unable to conclude, however, that the phrase "within appropriations provided by the . . . district control unit,” MCL 600.8271; MSA 27A.8271, is a determination by the Legislature that the funding unit is limited to approving the amounts fixed by the district court. To so construe the statute would be to disregard the statutory language. The Legislature has amended several statutes authorizing the courts to appoint and fix salaries. It has not, however, eliminated the function of the funding unit. Despite amendment of the District Court Act by 1980 PA 438, the language restricting the compensation "within appropriations fixed by the district control unit” has been retained. MCL 600.8271(1); MSA 27A.8271(1).
The Legislature has stated that the exercise of the judicial authority is limited to setting of salaries "within appropriations set by the governing body of each district control unit,” MCL 600.8271; MSA 27A.8271. This language cannot, however, bar a claim that an amount in excess of appropriations is necessary to fulfill a function mandated by the Legislature. To hold otherwise would be to permit a legislative directive to be frustrated by the funding units’ failure to provide necessary funds. Wayne Circuit Judges v Wayne Co, 15 Mich App 713, 726; 167 NW2d 337 (1969). See also Jail Inmates v Wayne Co Sheriff, 391 Mich 359; 216 NW2d 910 (1974).
Where the Legislature has by statute granted authority or created a duty, the local funding unit may not refuse to provide adequate funding to fulfill the function. _
However, since the trial court in Hillsdale found, and it is not disputed here, that the district court was functioning at a level "satisfactory to all,” without the four-percent increase proposed by the district court judge, there is on this record no basis for resolving the issue of when and under what standards the judiciary may compel expenditures beyond those appropriated to fulfill a statutory function.
Our responsibility in this case is to give effect to the intent of the Legislature, In re Certified Question, 416 Mich 558; 331 NW2d 456 (1982).
We harmonize the principles outlined above and give effect to each by concluding 1) that the court has the authority to set salaries which, if reasonable and "within appropriations,” must be approved by the control unit, and 2) that where the parties are unable to agree, the court may institute suit and shall bear the burden of proving that the appropriation it seeks is necessary to the performance of its statutorily mandated function. This construction carries out the apparent intent of the Legislature that the courts are free to appoint employees and set salaries "within appropriations,” and yet provides a means for the court to obtain additional funds where it demonstrates that they are necessary to perform a statutory function.
The issue in Cheboygan is whether the trial court may employ an administrative order to compel funding in excess of appropriations. We hold that the use of administrative orders to compel payment of requested funding is inappropriate under MCR 8.112(B). MCR 8.112(B)(1) states:
A trial court may issue an administrative order governing only internal court management. [Emphasis added.]
We conclude, in view of the clear language of the rule, that MCR 8.112(B) does not authorize trial courts to issue administrative orders to compel appropriations.
As there has been no determination of the reasonableness of the attorney fees incurred by the circuit judge in Cheboygan in connection with his representation before this Court, we remand for a determination of the reasonableness of the attorney fees incurred. MCL 49.73; MSA 5.826. _
III. Conclusion
This Court has stood "foursquare” in support of the constitutional doctrine of inherent power, Wayne Circuit Judges v Wayne Co (On Rehearing), supra, 386 Mich 8. However, the standard against which such authority is to be measured has not been articulated. Indeed, the original Black-Dethmers opinion in Wayne Circuit Judges v Wayne Co, 383 Mich 10; 172 NW2d 436 (1969) (adopted by the Court on rehearing), references several possible standards.
We agree with the statement of our dissenting colleagues that an inherent power analysis is implicated when judicial functions are in jeopardy. Post, p 743.
However, this observation is simply inapplicable to the cases before us. On this record there is no allegation and no proof that the additional salary item(s) were required to be funded by any formulation of the inherent-power doctrine.
An assertion of judicial power ultimately rests on the consent of thoughtful citizens. Where circumstances demonstrate a right and the record supports relief, history demonstrates public support. Public belief in the propriety, fairness, and justice of our decisions is essential. Therefore we defer to the observation that public willingness to accept and abide by a court decision "ultimately rests on sustained public confidence in its moral sanction.” Baker v Carr, 369 US 186, 267; 82 S Ct 691; 7 L Ed 2d 663 (1962) (Frankfurter, J., dissenting).
In our judgment such confidence will be fostered by awaiting a proper record for further development of the relationship between judicial independence and the doctrine of separation of powers.
The opinion of the trial court in Employees & Judges of the Second Judicial Dist v Hillsdale Co was not based on an asserted constitutionally conferred power to compel increased compensation for the district court employees; nor was it premised on an impairment of a statutory function. Therefore, we reverse.
Administrative Orders 1984-1 and 1984-2 and the pendent contempt proceedings in Cheboygan Co Comm’rs v Cheboygan Circuit Judges were not appropriate under MCR 8.112(B). Accordingly, we vacate the proceedings below. We remand to the Cheboygan Circuit Court for a determination of reasonable attorney fees under MCL 49.73; MSA 5.826 and entry of an appropriate order.
No costs, a public question being involved.
Levin, Brickley, and Cavanagh, JJ., concurred with Boyle, J.
Appendix
The present anomaly of constitutionally and statutorily mandated state functions financially dependent on local governments — which often operate on a limited tax base — leaves trial courts in a vulnerable and perplexing position.
Until such time as full state court financing is realized, it is important to accomplish several objectives. First, in the interest of governmental comity and in deference to the principle of separation of powers, it is important to avoid conflicts between state courts and local funding units that arise over unsubstantial or marginal appropriation issues. Second, it is necessary to have a procedure and a data base that will insure that where there is a substantial difference between a court and its funding unit that rises to a constitutional or statutory neglect the court can prudently but effectively protect its mandate. Finally, to give guidance to the courts in effective budgeting and in dispute resolution involving courts and local funding units, and to prepare for the administration of full state court financing, there is a need for a broader, centralized data base on trial court budgeting.
In response to those concerns and in furtherance of these goals, we adopt the following Administrative Order to be effective on issuance of the judgment order in the instant cases:
Administrative Order No. 1985-6
Court Funding; Funding Disputes Between Courts and Local Funding Units; Submission of Budgets
I
This Administrative Order applies to all trial courts as defined in MCR 8.110(A).
II
A court shall submit its proposed and appropriated annual budget or any supplements thereto to the State Court Administrator at the time of its submission to or receipt from the local funding unit or units.
Ill
If, after the local funding unit or units have made their appropriations, a court concludes that the funds provided for its operations by its local funding unit or units are insufficient to enable the court to properly perform its duties and that legal action is necessary, the procedures set forth in this order shall be followed.
1. Legal action may be commenced 30 days after the court has notified the State Court Administrator that a dispute exists regarding court funding that the court and the local funding unit or units have been unable to resolve. The notice must be accompanied by a written communication indicating that the chief judge of the court has approved the commencement of legal proceedings. With the notice, the court must supply the State Court Administrator with all facts relevant to the funding dispute. The State Court Administrator may extend this period for an additional 30 days.
2. During the waiting period provided in paragraph 1, the State Court Administrator shall attempt to aid the court and the involved local funding unit or units to resolve the dispute.
3. If, after the procedure provided in paragraph 2 has been followed, the court concludes that a civil action to compel funding is necessary, the State Court Administrator shall assign a disinterested judge to preside over the action.
The procedures provided in this Administrative Order do not apply to any portion of a court’s budget that is funded by the state.
These cases do not present a question involving the authority of a court to negotiate collective bargaining agreements, Livingston Co v Livingston Circuit Judge, 393 Mich 265; 225 NW2d 352 (1975). Our opinion is not intended to reach this question.
An examination of the cases dealing with funding of the courts reveals two dimensions to the disputes. The first involves the kinds of expenses for which the power to compel funding is asserted. Second, the courts reviewing such disputes have taken three distinct approaches to the issues before them.
The kinds of expenses for which the power to compel funding has been asserted can be classified along a spectrum. In the first kinds of cases, funding is sought for a specific matter necessary to conducting court, and the propriety of the amount sought is not disputed. These cases have often involved expenses necessitated by somewhat unusual, even emergency, circumstances. See, e.g., O’Coin’s v Worcester Co Treasurer, 362 Mass 507; 287 NE2d 608 (1972) (tapes and tape recorder for use in criminal trials where stenographer not available); Stowell v Jackson Co Bd of Supervisors, 57 Mich 31; 23 NW 557 (1885) (boarding and lodging costs for sequestered jury); Grimsley v Twiggs Co, 249 Ga 632; 292 SE2d 675 (1982) (temporary clerical help for court clerk); Knuepfer v Fawell, 96 Ill 2d 284; 449 NE2d 1312 (1983) (provision of sufficient number of courtrooms). Closely related are cases in which the authority of the court to employ certain permanent personnel is at issue. See, e.g., Flathead Co Comm’rs v 11th Dist Court, 182 Mont 463; 597 P2d 728 (1979) (county refused to fund position provided for by statute). In the next category of cases, while the court’s authority to hire certain personnel may also be discussed, it is the amount of compensation which is at issue: here the proper amount of funding for the position is disputed. See, e.g., In re Lyon Co Court Clerk v Lyon Co, 308 Minn 172; 241 NW2d 781 (1976); Young v Pershing Co Bd of Comm’rs, 91 Nev 52; 530 P2d 1203 (1975) (probation officers, secretary, and other court employees). Related cases involve the question of who, the court or the county, has the power to hire, control, and determine the compensation of court personnel. See, e.g., Mowrer v Rusk, 95 NM 48; 618 P2d 886 (1980); State ex rel Weinstein v St Louis Co, 451 SW2d 99 (Mo, 1970); Holohan v Mahoney, 106 Ariz 595; 480 P2d 351 (1971). Finally, other cases involve the broadest assertion of judicial inherent power to determine the overall budget of the court; here, the focus is not upon a specific court function, or a specific cost, but instead upon the sum total of the costs for all the functions of the court. See, e.g., Commonwealth ex rel Carroll v Tate, 442 Pa 45; 274 A2d 193 (1971); Mowrer v Rusk, supra; Beckert v Warren, 497 Pa 137; 439 A2d 638 (1981).
The courts have also taken three distinct approaches in reviewing disputes over court funding. Sometimes, where statutes are not considered, or where the applicable statutes are found not to authorize the funding sought by the court, the issues are resolved solely on the basis of an inherent power analysis. See, e.g., Commonwealth v Tate, supra; Beckert v Warren, supra; In re Salary of Juvenile Director, 87 Wash 2d 232; 552 P2d 163 (1976); Young v Pershing Co Comm’rs, supra (expenses for secretary and library); People ex rel Bier v Scholz, 77 Ill 2d 12; 394 NE2d 1157 (1979); Noble Co Council v State ex rel Fifer, 234 Ind 172; 125 NE2d 709 (1955); Smith v Miller, 153 Colo 35; 384 P2d 738 (1963). The second approach interprets the applicable statutes to be coextensive with the inherent power of the judiciary, either on the grounds that the statute would otherwise be unconstitutional, or on the ground that the statute constitutes a legislative recognition of the judiciary’s inherent power. See, e.g., Grimsley v Twiggs Co, supra; O’Coin’s v Worcester Co Treasurer, supra; State v Superior Court of Marion Co, 264 Ind 313; 344 NE2d 61 (1976); State ex rel Johnson v Taulbee, 66 Ohio St 2d 417; 423 NE2d 80 (1981) (discussion of prior statute). The third approach to resolving such disputes is based solely on statutory analysis. In these cases, a statute is either held to provide sufficient authority to meet the court’s need, or the court’s claim is held to fail because statutory procedures have not been followed. See, e.g., Deddens v Cochise Co, 113 Ariz 75; 546 P2d 811 (1976); Knuepfer v Fawell, supra; Pena v Second Dist Court, 681 P2d 953 (Colo, 1984); State ex rel Schneider v Cunningham, 39 Mont 165; 101 P 962 (1909); State ex rel Kitzmeyer v Davis, 26 Nev 373; 68 P 689 (1902).
Inherent power analysis often does not distinguish between a court directive to provide funds to fulfill a specific constitutionally required function, and a court directive to fund that which is reasonable and necessary for the administration of justice, Beckert v Warren, supra. See Note: The courts’ inherent power to compel legislative funding of judicial functions, 81 Mich L R 1687-1701 (1983).
MCL 600.1481; MSA 27A.1481 was amended in part by 1980 PA 438, but the provision concerning the compensation of judicial assistants (other than those in the 36th District Court, the Third Judicial Circuit Court, and the City of Detroit Recorder’s Court) was unchanged: "The compensation of a judicial assistant shall be fixed by the recommending judges within the sum appropriated therefor by the legislative body . . . .” MCL 600.1471; MSA 27A.1471, which 1980 PA 438 amended to provide for law clerks in district courts as well as circuit courts, states: "The compensation of a law clerk shall be fixed by the judges of the court within the sum appropriated for that purpose by the county board of commissioners or by the governing body of the district control unit.”
Justice Brennan has explicated a distinction between the legislative and executive functions of the county. He stated:
"Within the limits of its delegated legislative powers, counties may pass appropriations for the expenditures of county funds for county purposes.
"But in the scheme of county government, the Legislature has not seen fit to delegate that ultimate power of the purse by which a legislative judgment must be made in advance of payment of any and all public funds.” Wayne Circuit Judges v Wayne Co (On Rehearing), 386 Mich 1, 24; 190 NW2d 228 (1971) (separate opinion of Brennan, J.).
We note that the statutory analysis suggested by Justice Brennan is not directly applicable to a dispute involving the district courts. His analysis rested upon an express "exclusion” of jurisdiction over the circuit courts from the general legislative powers granted to county boards under MCL 46.11; MSA 5.331. See Wayne Circuit Judges v Wayne Co (On Rehearing), supra at 14-15. No similar "exclusion” exists concerning the district courts.
Cf. Wayne Co Prosecutor v Wayne Co Bd of Comm’rs, 93 Mich App 114; 286 NW2d 62 (1979) (where the Legislature has statutorily imposed duties and obligations, the court determines whether sufficient levels of funding have been provided).
Although not dispositively resolved in the jurisprudence of this state, the question of a court’s authority to order salary increases has been the subject of considerable litigation elsewhere.
In Smith v Miller, 153 Colo 35; 384 P2d 738 (1963), and Deddens v Cochise Co, 113 Ariz 75; 546 P2d 811 (1976), the courts construed statutes which authorized a local court to fix the salaries of employees "with the approval of the board of supervisors,” Ariz Rev Stat, § 12-252, and "subject to the approval of the county commissioners,” former Colo Rev Stat 39-16-1, to create a "ministerial duty ... to approve [the amounts]” and to provide the means for payment, Smith v Miller, supra at 41, unless the board was able to show that the schedule of salaries was wholly unreasonable, capricious, and arbitrary.
Similarly, in Norman v Van Elsberg, 262 Or 286, 288-290; 497 P2d 204 (1972), the Oregon Supreme Court held that the words "approved” in a statute which conferred on local judges the authority to appoint persons "at a salary designated by the appointing judge and approved by the budget-making body of the county,” Or Rev Stat 419.604(1), permitted the budget-making body of the county to disapprove the salary schedule fixed by the judges only if salaries were unreasonable.
By contrast, in People ex rel Bier v Scholz, 77 Ill 2d 12; 394 NE2d 1157 (1979), the Illinois Supreme Court issued a writ of mandamus vacating an administrative order of a chief judge fixing probation officer salaries above those approved by the county board. The court’s analysis rested on statutory provisions which provided, inter alia, that the amount of compensation "shall be determined by the board of commissioners or supervisors,” Ill Rev Stat 1977, ch 38, ¶ 204-6, Ill Const, and "each shall receive a monthly salary fixed by the county board,” Ill Rev Stat 1977, ch 23, ¶ 2683.
Likewise, in In re Salary of Juvenile Director, 87 Wash 2d 232; 552 P2d 163 (1976), the Washington Supreme Court interpreted the phrase "receive compensation which shall be fixed by the board of county commissioners” to preclude a claim of judicial power to fix salaries inferred from the power to appoint.
Other courts have held that statutes authorizing a judge to fix salaries "with the consent” of a funding unit do not delegate discretionary legislative power to the board and do not extend the power to veto reasonable budgeting requests, Young v Pershing Co Comm’rs, n 2 supra; Lubbock Co Comm’rs Court v Martin, 471 SW2d 100 (Tex Civ App, 1971).
MCR 8.112(B), substantially the same as former GCR 1963, 927.2, provides:
“(B) Administrative Orders.
"(1) A trial court may issue an administrative order governing only internal court management.
"(2) Administrative orders must be sequentially numbered during the calendar year of their issuance. E.g., Recorder’s Court Administrative Orders 1984-1,1984-2.
“(3) Before its effective date, an administrative order must be sent to the state court administrator. If the state court administrator directs, a trial court shall stay the effective date of an administrative order or shall revoke it. A trial court may submit such an order to the-Supreme Court as a local court rule.”
MCL 49.73; MSA 5.826 provides:
"Sec. 3. The board of commissioners of a county shall employ an attorney to represent elected county officers, including the sheriff, prosecuting attorney, clerk, treasurer, county surveyor, county executive, register of deeds, drain commissioner, mine inspector, public works commissioner, and judges of the county district, probate, and circuit courts in civil matters, as a defendant, when neither the prosecuting attorney or county corporation counsel is able to represent the particular officer. Legal advice, counsel, or court action shall be required under this section only in a case which involves an official act or duty of the office of the county officer. The attorney shall receive reasonable compensation as shall be determined by the board of commissioners. This section shall not supersede section 8 of Act No. 170 of the Public Acts of 1964, being section 691.1408 of the Michigan Compiled Laws.”
These possible standards include the following: "reasonably necessary to fulfill the constitutional obligation,” Wayne Circuit Judges v Wayne Co, supra, 383 Mich 33-34, 36, "functions serviceably as a coequal branch of Michigan’s government,” "ascertainment of critical judicial needs and, if that ascertainment be affirmative (it is here indeed), of determining the reasonableness or unreasonableness of the monetary amount required to meet the urgency of the situation,” "critically pressing” needs. | [
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D. F. Walsh, J.
This appeal concerns the constitutionality of Michigan’s essential insurance act (EIA), MCL 500.2101 et seq.; MSA 24.12101 et seq., and specifically those provisions of the EIA which permit automobile no-fault insurers to cancel insurance policies if the insurer determines that the insured has been at fault in two or more motor vehicle accidents in the three years preceding application for renewal of a policy. The circuit court ruled that a revocation or refusal to renew a policy of insurance based upon the insured’s involvement in automobile accidents without a prior judicial determination of fault deprives the insured of his state and federally guaranteed right to due process of law. Defendant appeals and we reverse.
The EIA requires that no-fault insurance be provided to an "eligible person”. MCL 500.2118(1); MSA 24.12118(1). "Eligible person” is defined as an owner or registrant of a licensed vehicle or a licensed driver, MCL 500.2103(1); MSA 24.12103(1). However, a person who has accumulated too many "insurance eligibility points” in the three years preceding application for or renewal of a no-fault policy is excepted from the definition of "eligible person”. MCL 500.2103(l)(h); MSA 24.12103(l)(h).
Insurance eligibility points are assessed for convictions, civil infractions, or findings of responsibility in probate court. MCL 500.2103(4); MSA 24.12103(4). A schedule is provided in § 2103(4) of the statute, detailing the number of points which can be assessed for each driving incident. Concerning motor vehicle accidents, points are assessed after the insurer determines that the insured was "substantially at-fault” in the accident. "Substantially at-fault” means more than 50% at fault. MCL 500.2103(4), 500.2104(4); MSA 24.12103(4), 24.12104(4).
Three points are assessed for the first "substantially at-fault” accident. For the second and each subsequent accident in which the insured has been determined to be substantially at fault, four points are given. If application for a renewal of a no-fault policy occurred on or before December 31, 1982, the insurer could decline or terminate coverage if the insured had accumulated five eligibility points within the three previous years. For applications or renewals occurring after January 1, 1983, an accumulation of six eligibility points would be required to justify a refusal or termination of insurance. MCL 500.2103(l)(h); MSA 24.12103(l)(h).
Between June 27 and November 11, 1980, plaintiff Ida Flumignan was involved in three automobile accidents. In two accidents, she struck parked vehicles. In the third, she struck the rear end of a vehicle as it was leaving a parking lot. Plaintiffs were provided with no-fault insurance by defendant during the period in which the accidents occurred. They were subsequently notified that their insurance would be renewed only if Mrs. Flumignan was excluded from coverage or if the plaintiffs agreed to pay higher premiums. Such terms were not acceptable to plaintiffs and defendant opted to terminate coverage. Plaintiffs were notified that their insurance would be terminated June 10, 1981, because Mrs. Flumignan had incurred 11 eligibility points as a result of the three accidents.
On June 2, 1981, plaintiffs commenced the present action, contending that the EIA was unconstitutional because it allowed termination of coverage without due process of law. Thereafter, defendant moved for summary judgment under GCR 1963, 117.2(1). The circuit court judge found that plaintiffs were entitled to due process of law before their insurance could be terminated. Specifically, the judge ruled that the plaintiffs were entitled to a judicial determination of fault before eligibility points for motor vehicle accidents could be assessed and their insurance terminated.
Defendant raises primarily three arguments on appeal: (1) that the plaintiffs have no property interest in no-fault insurance; (2) that no state action was involved in the attempted termination of plaintiffs insurance; and (3) that the procedures in the EIA satisfy the requirements of due process of law. Since we are persuaded that defendant’s third argument is meritorious, we will assume without deciding, for purposes of the following discussion, that the necessary state action and property interest are present.
The United States Supreme Court has consistently held that "some form of hearing is required before an individual is finally deprived of a property interest” and that the "fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner’ ”. Mathews v Eldridge, 424 US 319, 333; 96 S Ct 893; 47 L Ed 2d 18 (1976), citing Armstrong v Manzo, 380 US 545; 85 S Ct 1187; 14 L Ed 2d 62 (1965). The issue presented in this appeal is whether due process requires a judicial determination of fault prior to the assessment of insurance eligibility points for accidents in which the insured is found to be "substantially at-fault” by the insurer.
In Mathews v Eldridge, supra, the United States Supreme Court considered virtually the same issue in a slightly different factual setting and ruled that a prior evidentiary hearing was not required. We find that the Supreme Court’s ruling in Mathews is dispositive of this appeal.
In Mathews a state agency determined that George Eldridge, a recipient of disability insurance benefits under the Social Security Act, was no longer disabled and pursuant to that determination the social security administration terminated benefits. Eldridge brought an action in the United States District Court for the Western District of Virginia claiming that the administrative procedures established by the Secretary of Health, Education and Welfare for assessing whether a continuing disability existed were insufficient to satisfy the requirements of due process. Both the district court and United States Court of Appeals for the Fourth Circuit agreed, holding that prior to termination of benefits the recipient had to be afforded an evidentiary hearing. The United States Supreme Court reversed, ruling that due process does not always require a predeprivation evidentiary hearing. Mathews, supra, 424 US 349. See also Parratt v Taylor, 451 US 527, 538; 101 S Ct 1908; 68 L Ed 2d 420 (1981). In so ruling the Court reviewed the recent cases in which the Court had had the opportunity of considering "the extent to which due process requires an evidentiary hearing prior to the deprivation of some type of property interest even if such a hearing is provided thereafter” and noted that "[i]n only one case, Goldberg v Kelly, 397 US 266-271; 90 S Ct 1011; 25 L Ed 2d 287 (1970), has the Court held that a hearing closely approximating a judicial trial is necessary”. Mathews, supra, 424 US 333. The Court further reflected that its prior decisions reaffirm the truism that "[d]ue process is flexible and calls for such procedural protections as the particular situation demands”. Mathews, supra, 424 US 334, citing Morrissey v Brewer, 408 US 471, 481; 92 S Ct 2593; 33 L Ed 2d 484 (1972).
Finally, the Court in Mathews identified three distinct factors which must be considered in determining whether the specific dictates of due process have been met in any situation in which there is a deprivation of a private property interest by state action. The factors identified are as follows:
"First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” 424 US 335.
In order to apply these factors to the case before us, it is necessary that the relevant EIA procedures be examined and evaluated.
Under § 2123(1) of the statute, notice of nonrenewal must be provided no later than 30 days before the insurance is to expire. The notice must declare the reason for the termination and advise the insured of his rights under §§ 2113 and 2114 of the act. Under § 2113, the insured has a right to an informal conference with the insurer. The insurer must establish reasonable internal procedures to provide the insured with the information pertinent to the denial of insurance and a method for resolving the dispute promptly and informally, while protecting the interests of both the insurer and the insured. MCL 500.2113(2); MSA 24.12113(2). If the informal conference procedure is not completed within 30 days of notice of nonrenewal or if the insured is dissatisfied with the insurer’s decision after the conference, the insured may appeal the decision to the insurance commissioner. MCL 500.2113(3); MSA 24.12113(3). 1981 AACS, R 500.1508(2), subds (c), (d).
Section 2113(4) requires that the insurance commissioner establish by rule a procedure for resolution of disputes between the insured and insurer under this section, which procedure shall be calculated to provide the resolution informally and as rapidly as possible, while protecting both parties’ interests. Pursuant to these dictates, the commissioner’s rules provide that the appeal from the insurer’s decision must be brought within 120 days of the decision. 1981 AACS, R 500.1510(2). The insured may be represented by another person through the appeal. 1981 AACS, R 500.1508(2)(e). The commissioner is then directed to review the appeal based on written materials or, if requested, based on a meeting with the parties. 1981 AACS, R 500.1510(3). Under the commissioner’s procedures, the parties are given a chance to supply the agency with all relevant information. Provision is made for prompt resolutions by the commissioner. 1981 AACS, R 500.1511-500.1513. Included in the decision must be a notification that, if the insured disagrees with the decision, he can seek review by the commissioner as a contested matter under the Administrative Procedures Act, MCL 24.201 et seq., 500.2113(5); MSA 3.560(101) et seq., 24.12113(5).
The Administrative Procedures Act provides detailed procedures governing contested hearings. It specifies that notice as to the date, location, and nature of the hearing must be provided to the parties involved. It also provides for an evidentiary hearing, along with issuance of subpoenas at the request of the parties, the taking of depositions and discovery, cross-examination and the compilation of a record for purposes of appeal. MCL 24.271-24.276, 24.286; MSA 3.560(171)-3.560(176), 3.560(186). The decision of the commissioner is then required to be made in writing within a reasonable period. The decision must state the findings of fact and conclusions of law. If it is determined that the insured was not substantially at fault in an accident, the termination may be deemed invalid and coverage reinstated either retroactively or from the date of the decision. The insurer may also be required to reimburse the insured for any excess premiums the insured has incurred as a result of the improper termination. 1981 AACS, R 500.1514. Thereafter, the insured may seek judicial review.
In performing the Mathews balancing test, we note first that an insured whose policy is terminated can still receive insurance at either a higher rate by the same insurer or from other insurers or through the insurance placement facility, which exists to provide insurance to anyone who cannot obtain insurance through private channels. The private interest involved, therefore, is uninterrupted insurance from the same insurer at the same premium rate. Certainly there is a risk of an erroneous deprivation of insurance before the insured can process his appeal. Such risks do not appear to be substantial, however, since the insured must be given notice of the insurer’s decision to terminate coverage, an opportunity for an informal conference with the insurer, access to the information on which the insurer made its decision and an opportunity for a prompt review of the termination by the insurance commissioner. There do not appear to be any reasonable additional or substitute procedural safeguards, short of a judicial hearing, which would more adequately protect the insured against wrongful deprivation.
While a judicial determination as to whether the insured was substantially at fault in the accidents prior to the termination of coverage would reduce the risk of an erroneous deprivation, it would also seriously undercut the public interest involved, which is the administration of a low-cost, efficient automobile insurance system. To require a judicial determination of fault prior to assessment of insurance eligibility points under the statute would not only substantially increase the cost of insurance protection and seriously undermine the efficiency of the insurance system but it would also, in our judgment, hopelessly overburden the limited resources of the state judicial system. Moreover, as a practical matter, given the already overloaded dockets in many of the courts of this state, it would often be impossible to conclude a full judicial evidentiary hearing on fault prior to the end of the three-year period during which the accident can be considered in determining insurance eligibility points. Judicial predetermination of fault would be clearly impractical and prohibitively expensive and is constitutionally unnecessary in light of the administrative procedures provided and the public and private interests involved.
We hold that the procedures provided in the EIA for administrative review of the insurer’s decision to assess eligibility points and to terminate insurance coverage along with the post-termination remedies including an administrative evidentiary hearing and judicial review of the agency decision satisfy the requirements of due process of law. The judgment of the circuit court is reversed. Our decision on this issue eliminates the necessity of disposing of the other issues raised by the parties.
Reversed. Costs to appellants.
C. W. Simon, J., concurred.
It should be noted that plaintiffs did not avail themselves of the procedures provided in the EIA for review of the insurer’s decision to terminate coverage. However, the insurance commissioner’s rules, 1981 AACS, R 500.1501 et seq., setting forth the procedures for resolution of disputes between the insurer and the insured were not effective until October 30, 1981, more than four months after the plaintiffs’ insurance was terminated. This fact does not affect our decision, however, because the availability of post-termination judicial review and relief, combined with the procedures in the EIA itself, satisfy due process. The administrative review procedures provided in the rules merely buttress this conclusion. | [
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Allen, J.
In this appeal, we are asked to decide a question of first impression: at what time does the three-year statute of limitations commence to run on an action brought under MCL 418.827; MSA 17.237(827) by a workers’ compensation carrier for recovery and reimbursement from a third-party tortfeasor of workers’ compensation benefits previously paid by the insurer to an injured employee. On May 20, 1982, the trial court held that the period of limitation commenced to run on the date of the industrial injury to the employee and thereafter entered an order granting defendant’s motion for an accelerated judgment. Plaintiff, Travelers Insurance Company, appeals as of right contending that the period of limitation does not begin to run on suits brought under MCL 418.827; MSA 17.237(827) until the third-party tortfeasor pays the., injured employee without withholding from the settlement agreement sums which the carrier previously paid in workers’ compensation benefits. We agree with plaintiff and reverse.
On June 14, 1977, Robert Dilts, an employee of plaintiff’s insured, Firestone Tire & Rubber Company, was injured during the course of his employment when he fell while alighting from his employer’s truck onto premises owned by S & H Tire Company. As the workers’ compensation carrier for Firestone, Travelers paid Dilts $37,147.60 in weekly disability benefits pursuant to the provisions of the Michigan Worker’s Disability Compensation Act. On July 11, 1978, Robert Dilts commenced an action against the third-party tortfeasor, S & H. Dilts alleged that S & H’s negligent maintenance and supervision of its parking lot caused him to sustain injuries which resulted in serious impairment of his bodily functions and permanent serious disfigurement. On January 12, 1979, Travelers filed a notice of its lien against any payment made pursuant to any settlement or judgment. On May 11, 1979, Travelers filed a motion to intervene as a party to the suit between Dilts and S & H. Following a March 19, 1980, hearing, the trial court issued a written opinion denying Travelers’ motion to intervene.
On July 10, 1980, Travelers filed a motion to stay proceedings in the suit between Dilts and S & H until the Court of Appeals rendered a final determination of Travelers’ right to intervene. The motion was granted by the trial court on July 30, 1980. In an unpublished per curiam opinion, the Court of Appeals affirmed the trial court’s denial of Travelers’ motion to intervene. The Court noted that Travelers failed to argue below that it was entitled to recover for excess economic losses for which tort liability was not barred. The Court stated that Travelers might be entitled to intervene for recovery of excess economic losses for which tort recovery was not barred if it amended its complaint to claim economic damages.
On rehearing, the Court of Appeals revised its decision in an unpublished per curiam opinion. Dilts v S & H Tire Co, Docket No. 52627, decided July 1, 1981. Noting the Supreme Court’s decision in Great American Ins Co v Queen, 410 Mich 73; 300 NW2d 895 (1980), this Court affirmed the lower court’s decision without prejudice to Travelers’ right to intervene for reimbursement of benefits representing excess economic loss.
On April 29, 1981, the date the original Court of Appeals decision was rendered, Dilts’ action against S & H was dismissed by the trial court, the parties having reached an amicable settlement. Plaintiff filed the instant suit against S & H on September 21, 1981. Plaintiff’s complaint alleged that, although the revised Court of Appeals decision held that Travelers was entitled to reimbursement for workers’ compensation benefits previously paid which did not serve as a substitute for no-fault insurance benefits and that plaintiff was entitled to raise the issue at trial, plaintiff could not raise a new motion to intervene since the action had previously been dismissed by stipulation of the parties pursuant to a settlement. Plaintiff alleged that it was entitled to a minimum of $17,000 from S & H as reimbursement for workers’ compensation benefits paid to Dilts which did not serve as a substitute for no-fault insurance benefits.
MCL 418.827; MSA 17.237(827) provides in pertinent part:
"(1) Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies but the injured employee or his dependents or personal representative may also proceed to enforce the liability of the third party for damages in accordance with the provisions of this section. If the injured employee or his dependents or personal representative does not commence the action within 1 year after the occurrence of the personal injury, then the employer or carrier, within the period of time for the commencement of actions prescribed by statute, may enforce the liability of such other person in the name of that person. Not less than 30 days before the commencement of action by any party under this section, the parties shall notify, by certified mail at their last known address, the bureau, the injured employee, or in the event of his death, his known dependents or personal representative or his known next of kin, his employer and the carrier. Any party in interest shall have a right to join in the action.
"(2) Prior to the entry of judgment, either the employer or carrier or the employee or his personal representative may settle their claims as their interest shall appear and may execute releases therefor.
"(3) Settlement and release by the employee is not a bar to action by the employer or carrier to proceed against the third party for any interest or claim it might have.
* * *
"(5) In an action to enforce the liability of a third party, the plaintiff may recover any amount which the employee or his dependents or personal representative would be entitled to recover in an action in tort. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall ñrst reimburse the employer or carrier for any amounts paid or payable under this act to date of recovery and the balance shall forthwith be paid to the employee or his dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payments of compensation benefits.” (Emphasis added.)
On appeal plaintiff contends that, in situations where, as here, the injured employee files a third-party suit, the workers’ compensation carrier may assert its right to reimbursement in three ways: First, by filing its own action, as subrogee of the injured employee, against the third-party tortfeasor, as expressly authorized in subsections (1) and (3); Second, by filing a motion to intervene in the injured employee’s suit against the third-party tortfeasor as expressly authorized by the last line of subsection (1); and, Third, by a judicially created cause of action established by this Court in Ohio Farmer’s Ins Co v Neff, 112 Mich App 53; 315 NW2d 553 (1981). Plaintiff contends that under all three potential remedies, plaintiff is not barred by the running of the statute of limitations. We discuss the merits of plaintiff’s claims in inverse order.
Plaintiff suggests that the cause of action recognized by the Court in Ohio Farmer’s was in the nature of an equitable action for conversion on which the period of limitation admittedly begins to run when the conversion (failure to reimburse the carrier) takes place. Plaintiff construes the opinion far too broadly. Our Court did not clearly identify the nature of the cause of action which it recognized when it allowed the insurer to sue the employee and the third-party tortfeasor in Ohio Farmer’s. Thus, it is not known whether the Court viewed the suit as a subsection (1) action which authorizes an insurer to bring an action in the name of the injured employee if the employee, his dependents or personal representative do not com menee the action within one year after the occurrence of the personal injury. The opinion makes no reference to the amount of time which lapsed between the injury and the commencement of the employee’s suit. The opinion also made no mention of subsection (3) which states that a settlement and release by the employee is not a bar to an action by the carrier to proceed against the third-party tortfeasor for any interest or claim it may have. Furthermore, the Court never acknowledged that equitable principles were the crux of its decision and the Court did not label the cause of action as an action for conversion.
Because the Court’s opinion in Ohio Farmer’s fails to identify the nature of the cause of action which it found the insurer was entitled to pursue and because no statute of limitations question was raised in that case, Ohio Farmer’s is of limited value in deciding the question raised by the instant appeal. Certainly, it fails to create a new or additional form of action under which plaintiff carrier may proceed against the third-party tortfeasor. Nevertheless, as explained later in this opinion, it is helpful in determining the applicable period of limitation in suits brought under subsection (3).
Plaintiff did attempt to intervene in the circuit court action commenced by Dilts against S & H, but intervention was denied by the trial court because of plaintiff’s failure to properly draft its motion. On appeal this Court affirmed and upon rehearing, in a subsequent opinion, again affirmed the trial court’s decision but granted plaintiff the right to intervene without prejudice if the motion were redrafted to reflect excess economic loss. However, by this time, Dilts and S & H Tire Company had arrived at a settlement and the Dilts suit had been dismissed by stipulation of the parties. Because plaintiff alone was responsible for its unsuccessful attempt at intervention, we see no way in which this Court on appeal could reverse the trial court. Thus, if plaintiff is to prevail in this appeal, plaintiff must do so by timely filing its own action as subrogee of the injured party. Whether such action was timely filed largely depends upon what is the applicable statute of limitations and when does it commence to run.
Unfortunately, on this question the statute is at best ambiguous. The only reference to the period of limitation appears in § (1) which provides that if the injured employee does not start suit within one year from the occurrence of the injury:
"[T]hen the employer or carrier, within the period of time for the commencement of actions prescribed by statute, may enforce the liability of such other person in the name of that person.”
The ambiguity lies in the uncertainty as to whether the period of limitation so described is restricted to § (1) actions or whether it carries over and is applicable to §§ (3) and (5) situations. Section (1) clearly refers to actions to establish the liability of the third party for the employee’s injury. Section (3) pertains to suits by the carrier to enforce the rights to first reimbursement described in § (5). Does the period of limitation on suits for personal injuries, which under MCL 600.5805(8); MSA 27A.5805(8) is three years, carry over to § (3) actions which the insurance carrier is authorized to pursue after an employee and the third party have settled?
Where a statute is ambiguous, its true meaning is ascertained under well recognized rules of construction. In Smith v Elliard, 110 Mich App 25, 29- 30; 312 NW2d 161 (1981), lv den 413 Mich 944 (1982), this Court said:
"The cardinal rule of statutory interpretation is to ascertain and give effect to the intention of the Legislature. To ascertain intent, this Court first reviews the specific language of the disputed provision, giving all terms their plain and ordinary meaning absent a contrary legislative intent. Where an ambiguous term is found, the Court will refer to any factors which may advance the determination of intent.” (Citations omitted.)
In Deshler v Grigg, 90 Mich App 49, 53-54; 282 NW2d 237 (1979), lv den 407 Mich 875 (1979), the Court stated:
"Courts are bound to arrive at a reasonable construction of a statute and to reconcile seeming inconsistencies, striving to give effect to all the provisions of the statute * * *. Every word of a legislative enactment is presumed to have some force and meaning, * * * and every effort is to be expended in arriving at an interpretation of a statute which avoids declaring any portion of the Legislature’s language to be surplusage.” (Citations omitted; emphasis in original.)
Another rule of statutory construction is that a statute should be construed to prevent absurdity, hardship, injustice or prejudice to the public interest. Franges v General Motors Corp, 404 Mich 590, 612; 274 NW2d 392 (1979); Gardner-White Co v State Bd of Tax Administration, 296 Mich 225; 295 NW 624 (1941); Zawacki v Detroit Harvester Co, 310 Mich 415; 17 NW2d 234 (1945); General Motors Corp v Unemployment Compensation Comm, 321 Mich 604; 33 NW2d 90 (1948).
Application of the foregoing rules of construction leads us to conclude that the period of limitation set forth for suits under § (1) does not carry over and apply to carrier suits brought under § (3) to enforce rights conferred in § (5). Dilts was injured June 14, 1977, and thus, under § (1), the carrier could not start suit to determine S & H’s liability to Dilts until June 14, 1978. Within one month from the date plaintiff could have started suit, Dilts filed his own action against S & H. Once Dilts initiated suit, plaintiff no longer had a right to commence its own action as subrogee of Dilts. Harrison v Ford Motor Co, 370 Mich 683; 122 NW2d 680 (1963).
Since Travelers no longer had a right to commence its own action against S & H once Dilts filed suit against S & H, the only other method available to Travelers was to seek to intervene in the employee’s suit pursuant to § (1). But as noted earlier, Travelers was unable to intervene in the suit between Ditls and S & H because its complaint failed to allege facts which would support recovery for excess economic losses. The employee’s suit was settled before Travelers could amend its complaint so that it could intervene. With both of the avenues provided by § (1) — intervention and a suit by the insurer in the name of the employee —closed to Travelers, was there any method Travelers could employ to enforce its statutory right to reimbursement? We think there was under § (3).
Section (3) provides that a settlement and release by the employee is not a bar to an action by the carrier against the third party for any claim the carrier might have. Section (5) gives the carrier a first claim of reimbursement for sums paid the injured employee. Obviously, this clear statutory claim is totally thwarted if a limitation period of three years from the date of injury is imposed. Carrier action under § (3) cannot be commenced until after a settlement and release is effectuated between the third party and the injured employee and, since a carrier cannot sue under § (1) while an employee suit is pending, the employee and tortfeasor can easily preclude the carrier from enforcing its statutory right to reimbursement by merely waiting for three years to elapse from the date of injury before signing a settlement and dismissing suit. This is not a reasonable construction of the statute and is contrary to the rules of statutory construction previously set forth.
The sensible and reasonable construction to give the statute is to construe § (1) as the carrier’s right to institute suit to establish the liability of the third party for the employee’s injury and to construe § (3) as giving the carrier a separate right to reimbursement once release and settlement have been made and the parties have not withheld from the settlement the workers’ compensation benefits paid the injured employee. The carrier’s right to first reimbursement as provided in §(5) becomes an empty right if the carrier is precluded from enforcing its right to reimbursement because of the failure to intervene (which option was open but not properly exercised in this case) or because of the failure to bring its own action against the third party to establish liability (which option was open to Travelers for only 29 days after the year elapsed without Dilts commencing action, but closed when Dilts commenced his suit). The right to be reimbursed from the proceeds of the settlement before any funds are paid to the employee would also be an empty right if no method was provided for enforcing that right. Simply put, we don’t believe the Legislature intended to limit a carrier’s right to reimbursement to 29 days. But that is what happens in the instant case if the three-year period of limitation is extended to § (3) type situations.
Having decided that § (3) actions are not bound by § (1) limitations and no period of limitation being specified by the Legislature for § (3) actions, we must next determine what is the applicable limitation period and when a carrier’s cause of action thereunder accrues. We think Ohio Farmer’s, supra, while not establishing a judicially created nonstatutory cause of action, clearly holds that a carrier may recover from the third-party tortfeasor who settled the claim against it with knowledge of the carrier’s claim. We also conclude that the carrier’s cause of action under § (5) does not accrue until the employee and the third party enter into a settlement or release. In the instant case, the settlement and release without paying plaintiff took place April 29, 1981.
This still leaves unanswered the question of whether the period of limitation, following accrual of the claim, is three years, six years or some other period of time. Drapefair, Inc v Beitner, 89 Mich App 531, 544-545; 280 NW2d 585 (1979), suggests the claim is governed by the general six- year statute of limitations. However, it is unnecessary to decide this question since Travelers’ action was commenced September 21, 1981, only some five months from the date Dilts and S & H settled their dispute.
In summary, we do not believe that the applicable period of limitation for a carrier’s suit to enforce its right to reimbursement begins to run on the date of the employee’s injury and expires three years later. Instead, we believe the Legislature intended, and we so hold, that the period begins to run on the date the employee and third party arrive at a settlement and make payment knowing full well of the carrier’s claim but nevertheless not first reimbursing the carrier for workers’ compensation payments previously made. Whether the period of limitation from the date of accrual is three years or six years, we decline to decide, the carrier’s claim having been filed in the instant case within three years from the date of accrual.
Reversed and remanded for trial. Costs to plaintiff.
Danhof, C.J., concurred.
Harrison involved a carrier’s suit under MCL 413.15; MSA 17.189, the predecessor of MCL 418.827; MSA 17.237(827). In upholding the dismissal of the carrier’s suit, the Supreme Court said: '
"May the insurer maintain its separate action after plaintiff has already filed his suit? The statute provides that if the employee does not start suit within 1 year after the injury, then the employer or its insurer may commence action. Here plaintiff did not sue within the 1 year. However, he did start suit before the insurer did. We think the meaning of the statutory language is that the employer or insurer may not start suit within the 1 year, but may do so thereafter if the employee has not done so. Plaintiff, here, having begun suit, the door was no longer open to suit by the employer or insurer, but intervention by them in the employee’s suit, according to the language of the statute, alone remained to them. This legislative intent seems evident, further, from the statutory provision that, in the employee’s suit, damages recovered are to be applied on the insurer’s payments and future liability, while suit by the employer or his insurer is to be brought in the employee’s name, indicating that there is but 1 cause of action. Muskegon Hardware & Supply Co v Green, 343 Mich 340; 72 NW2d 52 (1955).” 370 Mich 685-686. | [
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Cavanagh, J.
This case requires us to determine the appropriate standard for reviewing an order, entered by the juvenile division of a probate court, waiving jurisdiction over a juvenile defendant so that the juvenile can be tried as an adult offender. We must also determine whether defendant was properly waived.
We adopt the standard of review articulated in People v Schumacher, 75 Mich App 505; 256 NW2d 39 (1977). Under this standard, we conclude that defendant should not have been waived from the juvenile division of Wayne Probate Court to Detroit Recorder’s Court. Our review of the waiver hearing leaves us with the definite and firm conviction that, aside from the seriousness of the offense charged, defendant was tried as an adult because the probate court believed that adult correctional facilities provided better vocational training than juvenile facilities. Jurisdiction should not have been waived because defendant would have been amenable to the treatment available in juvenile facilities, he did not pose a danger to the public, and he would not have disrupted the rehabilitation of other juveniles. This sixteen-year-old defendant was thus made to stand trial for an offense punishable by a mandatory sentence of imprisonment for life without parole — a sentence which could (and ultimately did) render the promise of better educational facilities in the adult system entirely illusory.
I
Defendant was one of several individuals who participated in the theft of the decedent’s bicycle. One struck the decedent with a car jack, another administered fatal knife wounds. Defendant struck the decedent with a chain that had evidently been used by the decedent to lock his bike. Defendant was charged with first-degree felony murder and armed robbery. Since defendant was sixteen years old when the offense occurred, he could not be tried as an adult until the juvenile division of probate court waived its jurisdiction over him. MCL 712A.4; MSA 27.3178(598.4). The prosecutor requested that jurisdiction be waived to Recorder’s Court. The parties stipulated that a felony had been committed and that there was probable cause to believe that defendant had committed it. Numerous witnesses testified concerning the appropriateness of waiver, but only one witness recommended that defendant be waived. The probate court waived jurisdiction.
Defendant was subsequently convicted of felony murder and received a mandatory nonparolable life sentence. Defendant appealed the waiver order to circuit court, which affirmed several months after the trial and sentencing. The Court of Appeals, in an unpublished decision, affirmed both the waiver order and defendant’s conviction. We granted defendant’s application for leave to appeal. 419 Mich 855 (1984).
II
MCL 712A.4(4); MSA 27.3178(598.4)(4) sets forth five criteria which the probate court must consider in determining whether jurisdiction should be waived:
Upon a showing of probable cause, the court shall conduct a hearing to determine whether or not the interests of the child and the public would be served best by granting a waiver of jurisdiction to the criminal court. In making the determination, the court shall consider the following criteria:
(a) The prior record and character of the child, his physical and mental maturity and his pattern of living.
(b) The seriousness of the offense.
(c) Whether the offense, even if less serious, is part of a repetitive pattern of offenses which would lead to a determination that the child may be beyond rehabilitation under existing juvenile programs and statutory procedures.
(d) The relative suitability of programs and facilities available to the juvenile and criminal courts for the child.
(e) Whether it is in the best interests of the public welfare and the protection of the public security that the child stand trial as an adult offender.
MCR 5.911(A)(2), formerly JCR 1969, 11.1(B), is substantially identical.
The Juvenile Code must be liberally construed in order to provide each child coming within the juvenile division’s jurisdiction with such care, guidance, and control as will be conducive to the child’s welfare and the state’s best interest. Proceedings under the Juvenile Code are not criminal in nature. MCL 712A.1; MSA 27.3178(598.1).
Although this Court has never articulated a standard for reviewing waiver decisions, Justice Riley, in People v Schumacher, supra, has done so. We believe that Justice Riley has aptly and thor oughly described the relevant considerations and standard of review:
Although our statute and court rule do not speak in terms of "amenability,” we discern within them an intention that the juvenile’s prospects for rehabilitation be seriously considered. Otherwise, our duty of liberal construction, aimed at providing care, guidance and control similar to that provided by the child’s parents, would have little meaning in the instant setting. Similarly, the mandate that the probate court consider whether the child’s and the public’s interest are best served by waiver would truly be hollow if rehabilitative potential were not seriously weighed.
On the other hand, we would be blind indeed were we to overlook the clear solicitude expressed by court rule and statute concerning the public security and welfare. See JCR 11.1(B)(5) and MCL 712A.4(4)(e); MSA 27.3178(598.4)(4)(e).
Accordingly, we hold that an order waiving jurisdiction will be affirmed whenever the judge’s findings, based upon substantial evidence and upon thorough investigation, show either that the juvenile is not amenable to treatment, or, that despite his potential for treatment, "the nature of his difficulty is likely to render him dangerous to the public, if released at age [nineteen],[ ] or to disrupt the rehabilitation of other children in the program prior to his release.” People v Fields (On Rehearing), 391 Mich 206, 242, n 13; 216 NW2d 51 (1974) (Levin, J., dissenting), quoting State v Gibbs, [94 Idaho 908, 916; 500 P2d 209 (1972)].
We believe this holding hews a close line between the often competing interests of the juvenile and society. We emphasize, however, that the "seriousness of the oífense,” MCL 712A.4(4)(b); MSA 27.3178(598.4)(4)(b), JCR 1969, 11.1(B)(2), may not alone be used to determine the likelihood that a potentially amenable juvenile will endanger the public or other children in a rehabilitation program. [Citations omitted.] The Legislature and the Supreme Court have indicated by statute and rule, respectively, that all of the waiver criteria shall be considered; thus, no reason appears why the "seriousness of the offense” should gain preeminence over other factors to be assessed. [75 Mich App 511-512.]
Justice Riley further stated, and we agree, that there must be evidence on the record, to which the probate court must refer, regarding the relative suitability of programs and facilities available in the juvenile and adult correctional systems. Id., p 514.
Ill
In the instant case, it was undisputed that defendant had no prior criminal record. Even though he lived in a very "tough” neighborhood, he had never been affiliated with any street gang. Defendant dropped out of school about a year before the offense was committed because he had been beaten several times by gang members. Defendant wanted to be an auto mechanic, but could read only at a fourth-grade level. The expert witnesses agreed that defendant had to be able to read at a sixth-grade level before he could successfully participate in vocational training. They also agreed that only adult correctional facilities provided adequate auto mechanic programs.
Michael McMillan, a clinical psychologist from the Wayne County Clinic for Child Study, testified that he gave numerous psychological and aptitude tests to defendant. He originally recommended in a written report that defendant be waived because "his personality and problems are not the type which are adequately dealt with on the juvenile level.” McMillan believed that defendant was mature but was also self-centered, greatly desired to be recognized by others, lacked sensitivity, and was manipulative. However, with proper direction, McMillan believed that these traits could be used in a socially desirable manner. He did not believe that "positive peer culture,” the primary psychological technique used in juvenile facilities, would be very effective. Nevertheless, he did not see defendant as an intrinsically hostile or dangerous child or a murderer. He believed that defendant knew the difference between right and wrong.
McMillan changed his recommendation one day after he wrote his report because a supplemental reading test indicated that defendant was functioning at a fourth-grade level rather than a second-grade level. He now believed that a juvenile training school could improve defendant’s reading level to a functional point during the relatively short time defendant would be at the school. He concluded that the only benefit defendant could receive in the adult system would be vocational training. McMillan described this as the most difficult case he had ever encountered.
Barbara Dicks, a psychiatric social worker for the Wayne County Juvenile Court, concurred in McMillan’s original recommendation solely because of the seriousness of the offense. However, she also changed her recommendation after viewing defendant’s improved reading results. She thought that positive peer culture could help defendant and did not view his personality as extreme. If comparable vocational education were available in juvenile facilities, she believed that defendant would be better off there. She also concluded that the waiver decision was close.
Frank Gregurek, Jr., a probation officer for the Wayne County Juvenile Court, was the only person to recommend waiver. He viewed defendant as a friendly and open person, saw no evidence of manipulativeness, and thought that positive peer culture would help defendant. He based his recommendation on the seriousness of the crime and the availability of vocational training in the adult system. If such training were available in juvenile facilities, he would not have recommended waiver.
Will Wilson, an administrator of delinquency programs for the Wayne County Department of Youth Services, explained that juvenile correctional facilities provided limited prevocational services. He recommended that defendant be placed in the juvenile system, notwithstanding the seriousness of the offense, because defendant had no history of truancy or violent behavior. Wilson believed that positive peer culture techniques were more effective with first offenders regardless of the seriousness of the offense.
Ex Rhodes Barham, an employee at the reception center of Jackson prison, testified that educational, psychological, and vocational services were available at all state adult correctional facilities. Barham offered no recommendation concerning waiver.
Defendant presented four witnesses. A teacher who had known defendant in 1973 and 1974 testified that defendant was an excellent student with good potential who had caused no problems. A neighbor who had known defendant for over seven years stated that defendant was not dangerous. Defendant’s social studies teacher at the Wayne County Youth Home described defendant as well-adjusted, eager, ambitious, and dependable. A minister testified as to defendant’s good character.
The probate judge considered and made findings of fact on each of the five waiver criteria. As to the first criteria, the judge concluded that defendant had no prior criminal record, was physically mature, and had an acceptable pattern of living. The seriousness of the offense weighed in favor of waiver. As to the third criteria, the judge concluded that defendant did not have a repetitive pattern of offenses and was amenable to rehabilitation in the juvenile system.
The judge made the following findings on the fourth and fifth criteria:
Now, the Court has considered the forth [sic] criteria, the relative suitability of the programs and facilities available to the juvenile and criminal courts for the child. From the testimony, the Court determines that part of the needs of the respondent here are educational and vocational. That he’s reading at a 4.5 grade level and the Court determines that this has to be brought up in order to function at least to perhaps a 6.0 grade level or a 6.5 grade level, and hopefully right up to an eigth [sic] grade level. That in order to function in any other area there are certain basic skills which the reading level is an indicia; that these skills are lacking and that in order to gain these skills that really must be brought up. He has done well earlier in school in math as was testimony in the record which demonstrates to this Court that there’s a potential for him to improve himself to become a functioning citizen.
He has expressed a desire as has been testified here to become a mechanic. The educational facilities at the adult and at the juvenile levels has [sic] been weighed. At the juvenile level there is a reading program there and there’s a preliminary vocational program there. The familiarity as was testified to the average length of stay is eight months. That in the adult level there’s a full vocational program and there’s an additional program that runs at least through the high school. And that the length of stay, of course, would be determined by sentence in the adult court if he were convicted and his ultimate placement would in part be determined by the length of time that he would spend there.
The Court has considered the criteria where it is found to be in the best interests of the public welfare and for the protection of the public security, generally, that said juvenile be required to stand trial as an adult offender. The Court in its investigation of the interests of the child and the public has determined that Jeffrey needs an educational backing that is lacking in the juvenile system. It is going to take more time than the juvenile system can afford him to bring his reading skills up and other skills. And he certainly hasn’t helped himself educationally by remaining out of school for the past one year and this unfortunately works to Jeffrey’s detriment. In his best interests, he has to bring that educational level up and that in the best interests of the public that he has to bring that level up.
As to vocational matter, I think that the Court feels that the adult system, as the testimony shows, is far superior to the juvenile facilities and that he would better be able to function in a free society after gaining educational and vocational training. And that the interests of the public welfare and the protection of the public security indicate that Jeffrey is not of such a position at this time to function adequately in society. That he needs something that must be given to him in a more structured setting than he receives at home.
Therefore, it is the Court’s decision that the Motion requesting Waiver of Jurisdiction on Jeffrey Dunbar to the adult court be granted ....
The probate judge thus made adverse findings on the second, fourth, and fifth waiver criteria. The adverse finding on the second factor — the seriousness of the charged offense — could not alone have justified a waiver of jurisdiction. As to the fourth factor, the judge did not find that defendant would not have benefited from juvenile programs and facilities. The judge only concluded that defendant would be unable to increase his reading level significantly during the relatively short time he would be in the juvenile system. In addition, defendant would not be able to learn a trade because the juvenile facilities did not offer vocational training. As to the fifth factor, defendant was not found to be a dangerous or disruptive person. The court merely found that without sufficient remedial reading and vocational training, defendant would not be able to make an honest living if released at age nineteen and would probably resort to criminal activity. The adverse finding on the fifth criteria was based solely on the adverse finding on the fourth criteria.
Other jurisdictions have held that a waiver of jurisdiction to an adult court is improper where a finding of lack of amenability to treatment or danger to the public is based upon the correctional facility’s failure to provide adequate treatment and programs. In In re Welfare of JEC v State, 302 Minn 387; 225 NW2d 245 (1975), the defendant was waived to an adult court because there was no juvenile program specifically designed for "hardcore, sophisticated, aggressive delinquents . . . .” Such a program had existed, but was terminated for lack of funding. The crucial question was whether the juvenile court could waive jurisdiction because there was no program which could rehabilitate the defendant, with adequate protection for the public, by the time defendant became twenty-one. The Minnesota Supreme Court, after noting that the defendant had a statutory right to rehabilitative treatment, held that the juvenile system’s failure to provide adequate treatment facilities could not be the basis of a finding that a juvenile is not amenable to treatment or is dangerous to the public. Id., 389. The case was remanded to the juvenile court to determine whether any program existed or could be created to treat the defendant in the juvenile system. See also In re Patterson, 210 Kan 245, 251-252; 499 P2d 1131 (1972).
In United States v Tillman, 374 F Supp 215 (D DC, 1974), the defendant was convicted of first-degree felony murder when he was nineteen years old and was sentenced to life imprisonment. Although the defendant was eligible for treatment under the Federal Youth Corrections Act (yca), this disposition was not recommended. Two of the reasons given were the defendant’s need for long-term psychotherapy, which could not be completed during his stay at the youth center, and his inabil ity to achieve significant academic or vocational gains while at the center due to his low intelligence. The district court rejected both reasons:
The Federal Youth Corrections Act, 18 USC § 5010(c), expressly provides for long term treatment for youth offenders. . . . [T]he conclusion . . . that the defendant could make rehabilitative progress from involvement in long term psychotherapy would appear to support a finding that the defendant would benefit from yca treatment. Certainly a recommendation against a yca commitment because of the lack of long term psychotherapy treatment facilities is improper .... [T]here is no legal authority to deny an eligible offender a Youth Act sentence because of the inability of the correctional institutions to provide treatment contemplated by the Act. If the Lorton Youth Centers cannot, as a practical matter, accommodate offenders with long term treatment needs, there appears to be no legal obstacle to prevent cooperation in this regard between Lorton and the Federal Bureau of Prisons, which does have long term treatment programs. . . .
[T]he defendant’s inability to achieve educational or vocational gains does not necessarily mean that he would not benefit from yca treatment. . . . The 5010(e) reports did not address the question of whether or to what extent the defendant needed academic and vocational treatment. Instead they simply concluded that he would not fit into the established programs at the Youth Center, regardless of whether those programs provided the spectrum of treatment services contemplated by the yca or needed by the defendant. . . .
Addressing solely the question of whether the defendant’s low intelligence level would "hamper his making any significant progress in a school and/or vocational program” at the Youth Center, the evidence on the record does not support the Classification Committee’s position and some of it tends to show that the defendant would make academic, vocational and rehabilitative progress from participating in the programs. . . . [T]he 5010(e) reports did not explain why a person of the defendant’s intelligence level could not make progress in the Center’s basic reading and mathematics programs. . . . The defendant’s reading level presently qualifies him for some of the vocational programs at the Youth Center, and it is the policy of the Center to offer part or full time reading and training programs to persons whose reading is deficient until they are able to meet the entry qualifications. . . .
Thus the defendant does appear to have some rehabilitative potential in the academic and vocational areas, and whatever this potential is, it has not been shown why it would adversely affect the defendant’s ability to benefit from rehabilitative treatment under the yca. [Id., 223-224.]
Here, only one witness favored a waiver and his opinion was based upon the prospects for vocational training in the adult system. The defendant was a first offender and the record clearly demonstrates that he was a good prospect for rehabilitation. The probate judge found that defendant could be rehabilitated in the juvenile system and could benefit from the available educational services. Reduced to its simplest terms, the judgment of the probate court was that this sixteen-year-old individual should be tried for a nonparolable capital offense in order that he have the benefit of the slightly better vocational programs thought to be available in the adult system. With this judgment, we disagree.
Society must be protected from dangerous individuals, but the Legislature intended that the long-term protection for society is to come from the successful rehabilitation of the juvenile. Where the prospects for a juvenile’s rehabilitation are so slim that society’s protection requires a waiver, waiver must be ordered. Here, the probate judge believed that rehabilitation was possible and attempted to place the defendant in a setting that would provide the best vocational training program. This attempt was pointless, however, since the judicial system gave vocational training with one hand while taking away with the other hand any possibility that the vocational training would ever be used. This defendant has been sentenced to live in prison until he dies. Of what use is his vocational training?
The Department of Social Services is required to meet the educational and treatment needs of youths residing in juvenile correctional facilities. MCL 803.303; MSA 25.399(53). Defendant should not be penalized for the state’s failure to provide adequate vocational training or for his desire to learn a skilled trade. It is ironic that if defendant had committed this crime at a younger age, the probate judge might have concluded that confinement to a juvenile facility would be long enough to increase his reading level sufficiently.
We recognize that it is rare for this Court to intervene in a matter of this kind. However, unless the rule is to be that such decisions are not reviewable at all, we must intervene on these facts. There is ample evidence that defendant was not incorrigible, was amenable to rehabilitative programs, and had promise.
IV
The difficulty of crafting a remedy for this defendant is obvious. As Justice Riley observed in Schumacher, p 515, we face "the bitter choice of releasing outright a person who has inflicted . . . harm on the community, or of remanding for a reconstructed waiver hearing, nunc pro tunc.” Such a choice "satisfies neither the interests of justice nor the juvenile’s interest in rehabilitation.” Aware of these considerations, we hold that defendant must be discharged. On a full and complete record, the probate judge came to the wrong conclusion. A reconstructed waiver hearing would serve no purpose. Had the probate judge retained jurisdiction, as we are convinced the facts warranted, the defendant would have been released over four years ago. Instead, he has spent the intervening years in the adult correctional system.
We order that defendant’s conviction be reversed and defendant discharged forthwith.
Williams, C.J., and Levin and Brickley, JJ., concurred with Cavanagh, J.
The adult codefendant who stabbed decedent pled guilty to second-degree murder and was sentenced to ten to twenty-five years in prison. The juvenile codefendant who wielded the car jack was waived to Recorder’s Court, convicted of first-degree felony murder, and sentenced to a mandatory nonparolable life term.
The decision to waive jurisdiction consists of two phases: 1) a determination that a felony has been committed and that there is probable cause to believe that the juvenile committed the crime; and 2) a determination that the interests of the juvenile and the public would best be served by waiving jurisdiction. MCR 5.911(A)(1). See also former JCR 1969,11.1.
MCR 5.911(A)(2) provides:
"In making the determination, the court shall consider and make findings on the following criteria before a waiver is granted:
"(a) the child’s prior record and character, physical and mental maturity, and pattern of living;
"(b) the seriousness of the offense;
"(c) even though less serious, if the offense is part of a repetitive pattern of offenses which would lead to a determination that the child may be beyond rehabilitation under the regular statutory juvenile procedures;
"(d) the relative suitability of programs and facilities available to the juvenile and criminal courts for the child;
"(e) whether the best interests of the public welfare and the protection of the public security, generally, require that the child stand trial as an adult offender.”
The jurisdiction of the juvenile division of a probate court ends when the youth becomes nineteen years old. At that time, the youth must be discharged from a correctional institution. MCL 712A.2, 712A.2a, 712A.5; MSA 27.3178(598.2), 27.3178(598.2a), 27.3178(598.5).
"As to the first criteria, the Court finds from the testimony that the respondent has no adjudicative Juvenile Court record, and from the testimony that he’s physically mature, from the testimony that his pattern of living is acceptable under the particular situation where he lives. And that situation is found to be from the testimony, a high crime area and one in which several gangs inhabit. The Court finds that the absence of the respondent from school for one year may be because of the beating administered to him because of his brother but the Court is not convinced that the staying out of school is the best possible decision and resolution to that possible reason for staying out of school.
"The Court in criteria one has considered the testimony of the defense’s presented witnesses. Mr. Andrews, the fifth and sixth grade school teacher who testified that while in the fifth or sixth grade that the respondent did well in school and presented no particular problem, if any, to the school people. The same pattern has been existent as is testified by Mr. Martin in the Youth Home since his stay there on July 26, 1978, and that he has been no problem there. And the testimony of the Reverend Mitchell indicates that the family itself is a good family.”
"The seriousness of the offense is the next criteria; the stipulation with the court with the allegations in the petition. The Court does find without equivocation that the taking of a human life is a serious crime. That that human being has every right to live as much as Jeffrey has a right to live, and he no longer can exercise that right. So without belaboring that point, the Court finds from the petition that the offense is the most serious in our penal code; that it is not a less serious offense . . . .”
". . . Jeffrey does not have a repetitive pattern of offenses that would lead this Court to determine that he is beyond rehabilitation under the regular statutory juvenile procedures.”
In Schumacher, p 515, Justice Riley urged this Court to promulgate a court rule which would accelerate the appellate procedure for reviewing probate court orders waiving jurisdiction. The need for such a rule is evident from the facts of this case. Jurisdiction was waived in September, 1978, and defendant promptly appealed this determination. The circuit court did not decide the appeal until July, 1979, several months after defendant was tried and sentenced. The Court of Appeals affirmed the waiver order and the conviction two years later.
The bench and bar are respectfully advised that, pursuant to MCR 1.201, the Court has this day notified the Juvenile Court Rules Committee to prepare and publish for comment a court rule providing for an expedited appeal of a probate court order waiving jurisdiction over a juvenile. Following publication and comment, this Court will consider the wisdom of such an amendment and will take appropriate action. | [
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Williams, C.J.
I. Introduction
This case presents two issues for determination by this Court which it has not previously considered. The first issue is what standard should be applied in determining whether to award back pay to a civil rights claimant under § 7(h) of the Fair Employment Practices Act, MCL 423.307(h); MSA 17.458(7)(h), where the employer refuses to permit the claimant to return to work unless she complies with a discriminatory dress code. The second issue is whether a civil rights claimant is entitled to attorney fees under the successor to the Fair Employment Practices Act, the Civil Rights Act, MCL 37.2605(2)(i), (j); MSA 3.548(605)(2)(i), (j), which specifically provides for such fees, where the charge was filed three days prior to the effective date of the Civil Rights Act and the repeal of the Fair Employment Practices Act, which does not provide for attorney fees.
We conclude that back pay should generally be awarded where there has been a finding of unlawful discrimination. Given such a finding, back pay should only be denied for reasons, which if applied generally, would not frustrate the statutory purposes of the Fair Employment Practices Act. The statutory purposes were twofold: first, to eliminate the last vestiges of discrimination, and, second, to make whole those who have suffered from discrimination. On the record before us, we find that the trial court denied back pay for reasons that would frustrate both of the above central statutory purposes.
With respect to attorney fees, we find ourselves unable to reach this issue. Claimant Cornell has precluded review by this Court inasmuch as she failed to raise the issue before the Civil Rights Commission, failed to appeal from the commission’s ruling, and raised the issue before the circuit court on a different ground without any real accompanying argument.
We reverse the judgment of the Court of Appeals as to back pay, and affirm its judgment as to attorney fees.
II. Facts
Starrla K. Cornell filed a complaint with the Department of Civil Rights against Edward W. Sparrow Hospital Association on or about May 5, 1976. The department issued a charge against the hospital on March 28, 1977. Hearings were conducted before a referee on May 5, 6, 12 and 13, 1977. The hearing referee issued findings and recommendations in favor of the hospital.
On May 23, 1978, the Civil Rights Commission issued an order rejecting the findings and recommendations of the referee and adopting the opinion issued by Commissioner Paul H. Harbrecht, finding in favor of Ms. Cornell. Among other things, the claimant was awarded back pay. No mention was made of attorney fees.
Only Sparrow Hospital filed a claim of appeal in the Ingham Circuit Court on June 19, 1978. The circuit judge, reviewing the matter de novo, affirmed the ruling of the commission in all respects, except that he denied lost wages, benefits, and attorney fees. Reconsideration was denied.
Ms. Cornell and the Department of Civil Rights appealed to the Court of Appeals. In a two to one decision, the Court of Appeals affirmed the circuit court. Dep’t of Civil Rights v Sparrow Hospital Ass’n, 119 Mich App 387; 326 NW2d 519 (1982). Rehearing was denied in a two to one decision. This Court denied the applications for leave filed by Ms. Cornell and the department. On reconsideration, this Court granted leave to appeal.
Starrla Cornell was employed by Sparrow Hospital as a histotechnologist from July 1, 1972 until May 3, 1976, when she was told not to report to work without complying with what was later declared to be a discriminatory dress code. The dress code required female technologists to wear a full white or pastel-colored uniform, including certain shoes, socks, underclothing, dresses, or pantsuits. In addition, female technologists were admonished to wear skirts of "respectable length” and accessories "appropriate for the situation.” Male technologists, on the other hand, were permitted to wear a white laboratory coat over ordinary street clothing. The laboratory director testified that the dress code was justified because patients were used to seeing males dressed like doctors and females dressed like nurses.
The Department of Civil Rights introduced expert testimony regarding the effects of the discriminatory dress code on the female lab technicians at Sparrow Hospital. One social psychologist testified that the code reinforced negative stereotypes that females "must be told what to do,” and gave them a "sense of inferiority that makes them function less effectively” in the workplace. Another social psychologist testified that requiring female lab technicians to wear a kind of uniform that implied they were of lower status than the male lab technicians increased the psychological burden on the females. Additional testimony established that the female uniform was more costly and less convenient than that required of males.
This dress code was instituted on May 1, 1976. Ms. Cornell reported to work at least twice wearing clothing inconsistent with that required for females under the code, but acceptable for male employees of her status. She was sent home on each occasion, and, as noted above, told not to return to work without proper attire in accordance with the code.
III. Back Pay
This issue involves Ms. Cornell’s right to back pay, where Sparrow Hospital refused to permit her to report for work unless she wore a specific uniform only required for females. This dress code was found by the Civil Rights Commission to be violative of the Fair Employment Practices Act, MCL 423.301 et seq.; MSA 17.458(1) et seq. (repealed and superseded by the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548[101] et seq.), which, inter alia, declared it to be an unfair labor practice "[f]or any employer . . . because of the sex of any individual, to refuse to hire or otherwise to discriminate against him with respect to hire, tenure, terms, conditions or privileges of employment.” MCL 423.303a(a); MSA IT^SÍSaXa). Under the Fair Employment Practices Act, where the commission determined that the respondent has engaged in an unfair employment practice:
[T]he commission shall state its findings of fact and shall issue and cause to be served on such respondent an order requiring such respondent to cease and desist from such unfair employment practice and to take such further affirmative or other action as will effectuate the purposes of this act, including, but not limited to, hiring, reinstatement or upgrading of employees with or without back pay, or admission or restoration to union membership, including a requirement for reports of the manner of compliance. Upon the submission of such reports of compliance, the commission may issue a declaratory order stating that respondent has ceased to engage in unfair employment practices. [MCL 423.307(h); MSA 17.458(7)(h). Emphasis added.]
The Civil Rights Commission in this case ordered, inter alia, that the claimant be reinstated with back pay. The circuit court reversed the award of back pay because "[t]he dress code, as instituted, does not amount to such purposeful and invidious discrimination as to prohibit the attain ment of gainful employment.” The Court of Appeals affirmed that decision. We disagree and reverse.
The issue involving the back-pay provision of the Fair Employment Practices Act is one of first impression in this Court. In fact, there is little or no guiding precedent on this issue in Michigan. The federal courts, on the other hand, have had far more experience with a comparable provision of the federal Civil Rights Act of 1964, 42 USC 2000e-5(g). That provision reads:
If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title. [Emphasis added.]
The preeminent federal case construing 42 USC 2000e-5(g) is Albemarle Paper Co v Moody, 422 US 405; 95 S Ct 2362; 45 L Ed 2d 280 (1975). Although federal case law is not binding on us here, we find the Albemarle reasoning compelling. See Civil Rights Comm v Chrysler Corp, 80 Mich App 368, 375, n 4; 263 NW2d 376 (1977).
A. Albemarle
In Albemarle, a class action was brought on behalf of present and former black employees of the Albemarle Paper Company, alleging certain violations of Title VII of the federal Civil Rights Act, with respect to the company’s seniority system and its program of employment testing. One of the primary issues before the United States Supreme Court on certiorari was:
When employees or applicants for employment have lost the opportunity to earn wages because an employer has engaged in an unlawful discriminatory employment practice, what standards should a federal district court follow in deciding whether to award or deny backpay? [Albemarle, supra, p 408.]
The Albemarle Court noted that 42 USC 2000e-5(g) used the term "may” in authorizing an award of back pay, and hence concluded that any award was discretionary. Since an award of back pay is discretionary and a form of restitution, the award is also equitable in nature, see Curtis v Loether, 415 US 189, 196-197; 94 S Ct 1005; 39 L Ed 2d 260 (1974), and " 'equity eschews mechanical rules . . . [and] depends on flexibility.’ ” Albemarle, supra, p 417, quoting Holmberg v Armbrecht, 327 US 392, 396; 66 S Ct 582; 90 L Ed 743 (1946). Despite the discretionary/equitable nature of the award, however, the Albemarle Court opined that the author ity to grant or deny such an award was far from unlimited:
[S]uch discretionary choices are not left to a court’s "inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” United States v Burr, 25 F Cas 30, 35 (No 14,692d) (CC Va 1807) (Marshall, C.J.). The power to award backpay was bestowed by Congress, as part of a complex legislative design directed at a historic evil of national proportions. A court must exercise this power "in light of the large objectives of the Act,” Hecht Co v Bowles, 321 US 321, 331 [64 S Ct 587; 88 L Ed 754] (1944). That the court’s discretion is equitable in nature, see Curtis v Loether, 415 US 189, 197 [94 S Ct 1005; 39 L Ed 2d 260] (1974), hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review.
[WJhen Congress invokes the Chancellor’s conscience to further transcendent legislative purposes, what is required is the principled application of standards consistent with those purposes and not "equity [which] varies like the Chancellor’s foot.” [Eldon, L.C., in Gee v Pritchard, 2 Swans *403, *414, 36 Eng Rep 670, 674 (1818).] Important national goals would be frustrated by a regime of discretion that "produce[d] different results for breaches of duty in situations that cannot be differentiated in policy.” Moragne v States Marine Lines, 398 US 375, 405 [90 S Ct 1772; 26 L Ed 2d 339] (1970). [Albemarle, supra, pp 416-417.]
In accordance with the foregoing, the Albemarle Court held that a trial court’s decision to award or deny back pay must be measured against the purposes of Title VII.
The primary purpose of Title VII was to achieve equality of employment opportunities and remove barriers that have operated to favor one identifia ble group over another. Back pay is connected with this objective because it provides a catalyst for employers to self-examine and self-evaluate their practices in an effort to eliminate discrimination. Albemarle, supra, pp 417-418.
The Court also found that Title VII embodied a "make whole” purpose, to make persons whole for injuries suffered due to unlawful employment discrimination. This "make whole” purpose was evidenced by the fact that Congress had armed the courts with full equitable powers, whose historic purpose was to " 'secure complete justice,’ Brown v Swann, 10 Pet 497, 503 (1836); see also Porter v Warner Holding Co, 328 US 395, 397-398 [66 S Ct 1086; 90 L Ed 1332] (1946).” Albemarle, supra, p 418. Moreover, the Albemarle Court stated that Title VII dealt with injuries of an economic nature and that in such cases the courts should attempt to place the injured party in as near the same position the party would have occupied had this wrong not been committed. Finally, the Court noted that the "make whole” purpose was supported by the legislative history of Title VII. The back-pay provision of Title VII was modeled on the back-pay provision of the National Labor Relations Act, under which the National Labor Relations Board has consistently awarded back pay as a matter of course. The Albemarle Court stated that it must assume that Congress was aware of this fact. Albemarle, supra, pp 418-421.
Thus, the two central statutory purposes of Title VII as set forth in Albemarle are to eliminate discrimination and make persons whole for injuries suffered through discrimination. The Albemarle Court held that "given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes . . . .” Albemarle, supra, p 421. On the basis of this standard, the Albemarle Court concluded that the employees were entitled to back pay.
B. Albemarle & Section 7(h) of the Fair Employment Practices Act
We think that the Albemarle standard should be the standard under § 7(h) of the Fair Employment Practices Act. In fact, we agree with dissenting Judge Mackenzie in the Court below that "the case for a result such as the Court reached in Albemarle is more compelling under the state statute than under the federal statute.” Dep’t of Civil Rights v Sparrow Hospital Ass’n, supra, p 395 (Mackenzie, J., dissenting).
The operative section of the federal Title VII reads, "the court may . . . order such affirmative action as may be appropriate, which may include . . . reinstatement . . . with or without back pay . . . .” 42 USC 2000e-5(g). Such language is clearly discretionary. Section 7(h) of the state Fair Employment Practices Act, on the other hand, reads, "the commission shall . . . take such further affirmative or other action as will effectuate the purposes of this act, including . . . reinstatement . . . with or without back pay . . . .” The "with or without” language in § 7(h) imparts some sense of discretion. However, that discretion, by the express terms of the statute, shall be exercised so as to effectuate the purposes of the act.
Furthermore, as in Albemarle, the power to award back pay was given by the Legislature as part of legislation that was directed at an historic evil. The Legislature bestowed this power on the commission to "further transcendent legislative purposes . . . .” Albemarle, supra, p 417. To permit inconsistent application of the back-pay provision would be to frustrate those purposes.
In accordance with the above discussion, we think that the decision to deny or grant back pay must be measured by the purposes of the Fair Employment Practices Act. We find that the purposes of the Fair Employment Practices Act, like Title VII, were to eradicate discrimination and to make persons whole for injuries suffered as a result of discrimination.
The purpose of eradicating discrimination is clearly stated in the act itself. At the time this action was commenced, the preamble to the Fair Employment Practices Act read in pertinent part, "An act to promote and protect the welfare of the people of this state by prevention and elimination of discriminatory employment practices and policies . . . .” Preamble, MCL 423.301 et seq.; MSA 17.458(1) et seq., as amended by 1976 PA 52 (emphasis added).
In fact, this Court has forthrightly and consistently recognized this purpose in construing the Fair Employment Practices Act and its successor the Civil Rights Act. See Boscaglia v Michigan Bell Telephone Co, 420 Mich 308, 314-316; 362 NW2d 642 (1984); Miller v C A Muer Corp, 420 Mich 355, 362-363; 362 NW2d 650 (1984); Highland Park v Fair Employment Practices Comm, 364 Mich 508, 512; 111 NW2d 797 (1961). We reiterate and emphasize that dominant purpose.
Like Title VII, a second major purpose of the act was to make whole those who suffered injury on account of discriminatory practices. As previously noted, the Albemarle Court pointed out that Title VII armed the courts "with full equitable powers . . .” and that "it is the historic purpose of equity to 'secur[e] complete justice ....’” Albemarle, supra, p 418, quoting Brown v Swann, supra, p 503. This historic purpose was part of the Fair Employment Practices Act because, much the same as Title VII, the Fair Employment Practices Act bestowed upon the commission a full array of powers that were equitable in nature. See MCL 423.307; MSA 17.458(7). Albemarle, supra, p 418, quoting Brown v Swann, supra, p 503. The Fair Employment Practices Act also dealt with injuries that were largely economic in nature, and as the Court stated in Albemarle, in such situations "[t]he injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.” Albemarle, supra, pp 418-419, quoting Wicker v Hoppock, 6 Wall 94, 99; 18 L Ed 752 (1867).
In addition, § 7(h) of the Fair Employment Practices Act, like the back-pay provision of Title VII, was modeled on the corresponding National Labor Relations Act provision, Boscaglia v Michigan Bell Telephone Co, supra, p 316, n 12. See Highland Park v Fair Employment Practices Comm, supra, pp 516-517. Pursuant to that provision, the National Labor Relations Board has awarded back pay as a matter of course. Albemarle, supra, pp 419-420. We must assume that the Legislature was aware of this fact when it enacted the back-pay provision of the Fair Employment Practices Act. Albemarle, supra, pp 419-420. See 2A Sands, Sutherland Statutory Construction (4th ed), § 52.02.
We conclude that § 7(h) of the Fair Employment Practices Act had a twofold purpose, to eliminate discrimination and to make whole those who have suffered through discrimination. Thus, following a finding of unlawful discrimination, back pay should not be denied except for reasons which, if applied generally, would not defeat these two central purposes.
C. Award of Back Pay in the Instant Case
The trial court applied an incorrect standard in deciding whether to award back pay to the claimant. The trial court refused to award back pay because the dress code did not amount "to such purposeful and invidious discrimination as to prohibit the attainment of gainful employment.” However, the act does not seek to eliminate only "purposeful and invidious” discrimination, but all discrimination. Therefore, the question whether the discrimination is of a purposeful or invidious nature is not controlling.
An award of back pay serves two purposes. First, it encourages employers to examine and evaluate conditions of employment with an eye toward eliminating those which have discriminatory effects. Albemarle, supra, pp 417-418, 422. This purpose is not served if back pay is awarded only against employers who "purposefully and invidi ously” impose discriminatory conditions. The unwitting discriminator is equally in need of an incentive to undergo self-evaluation.
The second purpose of the back-pay award is to compensate a claimant for economic losses suffered as a result of discriminatory practices. Such losses exist without regard to the attitude with which the employer imposes the discriminatory working conditions. Awarding back pay only for purposeful and invidious discrimination thwarts this second purpose too.
The trial court in Albemarle denied back pay for a reason similar to that employed by the circuit court in this case. The Supreme Court of the United States rejected that basis as inconsistent with the purposes of the act:
The District Court’s stated grounds for denying backpay in this case must be tested against these standards. The first ground was that Albemarle’s breach of Title VII had not been in "bad faith.” This is not a sufficient reason for denying backpay. Where an employer has shown bad faith — by maintaining a practice which he knew to be illegal or of highly questionable legality — he can make no claims whatsoever on the Chancellor’s conscience. But, under Title VII, the mere absence of bad faith simply opens the door to equity; it does not depress the scales in the employer’s favor. If backpay were awardable only upon a showing of bad faith, the remedy would become a punishment for moral turpitude, rather than a compensation for workers’ injuries. This would read the "make whole” purpose right out of Title VII, for a worker’s injury is no less real simply because his employer did not inflict it in "bad faith.” Title VII is not concerned with the employer’s "good intent or absence of discriminatory intent” for "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Griggs v Duke Power Co, 401 US [424,] 432 [91 S Ct 849; 28 L Ed 2d 158 (1971)]. See also Watson v City of Memphis, 373 US 526, 535 [83 S Ct 1314; 10 L Ed 2d 529] (1963); Wright v Council of City of Emporia, 407 US 451, 461-462 [92 S Ct 2196; 33 L Ed 2d 51] (1972). [Emphasis added. Albemarle, supra, pp 422-423. See Albemarle, supra, p 422, n 16; MERC v Reeths-Puffer School Dist, 391 Mich 253, 266-267; 215 NW2d 672 (1974).]
Like the United States Supreme Court, we reject the trial court’s denial of back pay on the basis of the hospital’s alleged "good faith.” We find that denial of back pay to this claimant would defeat the central purposes of the act.
Sparrow Hospital argues that the circuit court’s denial of back pay was justified because the claimant failed to mitigate her damages by continuing work at Sparrow Hospital. The hospital argues that the claimant should have mitigated her damages by complying with the discriminatory dress code while simultaneously challenging its validity. The circuit court seems to have shared this same opinion.
The hospital points out that the United States Supreme Court in Ford Motor Co v EEOC, 458 US 219, 236; 102 S Ct 3057; 73 L Ed 2d 721 (1982), held that under Title VII, the duty to mitigate requires a wronged individual to accept a subsequent offer of employment from the wrongdoing employer. What the hospital fails to note is that the Supreme Court held that although the offer of employment need not include back pay, it must otherwise be "unconditional.” Here the hospital’s "offer of employment” was not unconditional. Rather, it was specifically conditioned upon Ms. Cornell’s compliance with an unlawful discriminatory dress code.
Furthermore, the hospital’s position is wholly inconsistent with the purposes of the act. Although the claimant was justified in not complying with the unlawful discriminatory dress code, and thereby denied employment, she would not be made whole for her injuries. Likewise, the employer would not be encouraged to examine its policies with an eye toward eliminating discrimination. The hospital’s position would encourage employees to comply with discriminatory practices established by employers, not encourage employers to eradicate such practices.
Ms. Cornell was ready, willing, and able to work at all times. She simply refused to comply with the unlawful discriminatory dress code. Ms. Cornell’s supervisor refused to allow her to return to work unless she complied with the code, and, when she did not do so, her employment was terminated. While as a general rule, a wrongfully terminated employee seeking damages must accept employment to mitigate damages, either with a different employer or with the same employer, if the job is unconditional except as to back pay, nonetheless, where an employer refuses to allow an employee to return to work unless that employee complies with an unlawful discriminatory condition of employment, the employee has not failed to mitigate damages.
The hospital argues that the federal doctrine of constructive discharge prevents Ms. Cornell from receiving an award of back pay. Under that doctrine, an employee who voluntarily quits employment may be deemed "constructively discharged,” and hence eligible for back pay only when "working conditions . . . have [become] so difficult or unpleasant that a reasonable person in the em ployee’s shoes would have felt compelled to resign.” Bourque v Powell Electrical Mfg Co, 617 F2d 61, 65 (CA 5, 1980), quoting Alicea Rosado v Garcia Santiago, 562 F2d 114, 119 (CA 1, 1977). Courts generally deem the fact of discrimination alone insufficient to justify voluntary quitting, in order to encourage employees to attack discriminatory working conditions within the context of a continuing employment relationship. Bourque, supra, p 66.
We are not inclined to address the question whether Ms. Cornell was constructively discharged because the facts indicate that she was actually discharged. As stated above, she was ready, willing, and able to work at all times. The findings of fact of both the hearing referee and the Civil Rights Commission included statements that the dress code was made a condition of Ms. Cornell’s employment at the hospital and that Ms. Cornell "was terminated and prevented from working as the result of her failure to comply” with the requirements of the dress code. In light of the fact-finding of the administrative tribunals and lower courts, we accept the finding that the hospital discharged Ms. Cornell for refusing to comply with the discriminatory dress code. See also EEOC v Sage Realty Corp, 507 F Supp 599, 608, 613 (SD NY, 1981).
However, even under the doctrine of constructive discharge we would find Ms. Cornell eligible for back pay because a reasonable employee in her situation would have felt compelled to resign. Sparrow Hospital imposed two different dress codes on its laboratory technologists, a male dress code and a female dress code. The codes were intentionally designed to reinforce sexual stereotypes: men were dressed to look like doctors, and women were dressed to look like nurses.
Ms. Cornell complained about the discriminatory nature of the dress code to a member of the committee responsible for designing the codes and to her supervisor several times before the codes became effective. Cornell complied with the male dress code after the codes became effective. She again called her supervisor’s attention to the discriminatory nature of the dress code when the supervisor called her away from her work station and sent her home to change clothes. In light of the obviously demeaning nature of the dress code and of her employer’s unwillingness to reexamine its dress code, it was reasonable for Ms: Cornell not to return to work. We therefore find that under the doctrine of constructive discharge, Ms. Cornell is entitled to receive back pay.
We also reject several aspects of the minority’s analysis of the constructive-discharge doctrine. The minority opinion justifies the denial of back pay under the constructive-discharge doctrine for at least two reasons. First, management’s ability to manage is impaired when the threat of back pay makes it unable to enforce employment conditions which are arguably discriminatory. Second, emotional distress damages may be available to compensate the victim of discriminatory employment conditions for the period in which the illegal condition was. tolerated.
These justifications are inadequate and fundamentally undermine the intent underlying the Civil Rights Act. The minority concludes that the analysis it applies "is beneficial to both employers and employees.” Post, p 584. This is because, the minority argues,
The employer cannot ... be made whole retroactively. Requiring the employer . . . not [to] enforce] a rule whenever an employee considers it discriminatory . . . would impair management’s ability to manage. In large plants, the result could be disruptive. Post, pp 585-586.
No evidence of such "disruption” and "serious impairment” in businesses liable for back-pay awards was produced in this case. Certainly the present case demonstrates the very opposite. Unless the very essence of management is the ability to impose discriminatory working conditions upon employees, it is difficult to imagine any harm whatsoever, let alone "disruption,” Sparrow Hospital would have suffered from not introducing and enforcing its newly adopted dress code. Thus, this is not the case in which to address the problems of "disruption” and "management’s ability to manage,” assuming they exist.
On the other hand, the minority states, "[i]f the employee stays on despite the discriminatory condition, the employee can ordinarily be 'made whole’ retroactively.” Post, p 585. Yet, as the minority concedes in a footnote, post, p 585, this Court has never held that mental distress damages are recoverable for employment discrimination. Thus, in fact, the minority is relying on a remedy with which to make the employee whole which may not be available at all. Boscaglia v Michigan Bell, supra, p 316, n 13; Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401; 295 NW2d 50 (1980); Daley v LaCroix, 384 Mich 4; 179 NW2d 390 (1970).
Indeed, as the minority concedes, under its approach, unless mental distress damages are recoverable, "a worker who remains on the job would receive nothing for successfully challenging an unlawful discriminatory condition.” Post, p 585. Implicit in this acknowledgment is, of course, the recognition that the employer who illegally discriminates is subject to no more than a declaratory judgment that its policy is illegal, or, at worst, to an injunction against continuing the practice. Thus, the minority’s analysis removes "the spur or catalyst which causes employers ... to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges . . .” of discrimination, Albemarle Paper Co v Moody, supra, pp 417-418, quoting United States v NL Industries, Inc, 479 F2d 354, 379 (CA 8, 1973). Not only does the minority’s analysis eliminate employers’ incentives to critically evaluate their employment practices and policies — it also eliminates all incentives for employers to cease and desist from a discriminatory practice once they recognize it as being illegal. Instead, they are encouraged to wait until the declaratory judgment of illegality becomes final— and, indeed, there is no reason for them not to simply institute a "new,” slightly different, policy and let the employees go through the entire court-process all over again. In fact, the minority’s analysis is an incentive, an encouragement, to employers to continue to discriminate.
In addition, vulnerability to mental distress damages is far more likely to be disruptive to management than vulnerability to back-pay awards. An award of back pay is a known, relatively easily calculable dollar figure. By contrast, the award of mental distress damages will vary widely from individual to individual and, no doubt, from jury to jury. Management can calculate the financial risk of imposing an arguably discriminatory condition far more accurately when back pay, and not mental distress damages, is an available remedy.
An employee who resigns because of an arguably discriminatory condition of employment will not be assured a windfall in the form of back pay if a court later finds that the condition was illegal. The employee is always under a general duty to mitigate damages by seeking other employment, as mentioned above at footnote 5.
We conclude that the trial judge improperly overturned the commission’s award of back pay.
IV. Attorney Fees
Ms. Cornell argues that attorney fees should have been awarded by the circuit court and commission under the Civil Rights Act. MCL 37.2605(2)(i), (j); MSA 3.548(605)(2)(i), (j). The claimant admits that her action was filed under the Fair Employment Practices Act before the effective date of the . Civil Rights Act, March 31, 1977. She argues, however, that the attorney fees provision of the Civil Rights Act should be held to be retroactive because it is remedial in nature. We find ourselves unable to reach the merits of the claimant’s argument because she has failed to preserve the issue for review.
The Fair Employment Practices Act clearly did not provide for attorney fees, while the Civil Rights Act clearly does, MCL 37.2605(2)(i), (j); MSA 3.548(605)(2)(i), (j). Ms. Cornell filed a complaint against Sparrow Hospital under the Fair Employment Practices Act on or about May 5, 1976 with the Civil Rights Department. That department issued a charge against the hospital under the Fair Employment Practices Act on March 28, 1977. This was three days before the effective date of the Civil Rights Act.
Hearings were conducted before a referee on May 5, 6, 12 and 13, 1977, and he issued his findings and recommendations soon thereafter. These findings and recommendations were substantially rejected by the Civil Rights Commission by final order dated May 23, 1978. Only the hospital sought appeal to the circuit court on June 19, 1978.
Although the Civil Rights Act was in effect during all proceedings before the Civil Rights Commission except the actual filing of the complaint, the issue of attorney fees was never raised. In fact, the order of the commission does not even address the issue one way or the other.
Moreover, Ms. Cornell never filed an appeal from the order of the commission. Instead, she simply requested attorney fees along with her request for other relief, citing § 7(h) of the Fair Employment Practices Act. MCL 423.307(h); MSA 17.458(7)(h). No claim for attorney fees was made under the Civil Rights Act, nor did the claimant raise any issue regarding the retroactive application of the Civil Rights Act’s attorney fees provision to the award of the commission. It was not until the claimant sought review in the Court of Appeals that she claimed a right to attorney fees under the Civil Rights Act.
Thus, the claimant failed to raise the issue before the commission, failed to appeal from the commission’s ruling, and raised the issue before the circuit court under a different theory without any real accompanying argument. For these reasons, this issue is not reviewable on appeal. See Turner v Consumers Power Co, 376 Mich 188, 191-192; 136 NW2d 1 (1965); Odoi v White, 342 Mich 573, 577; 70 NW2d 709 (1955); Dwelley v Tom McDonnell, Inc, 334 Mich 229, 233; 54 NW2d 217 (1952).
V. Conclusion
We hold that given a finding of unlawful discrimination under the Fair Employment Practices Act, back pay should only be denied to a claimant for reasons which, if applied generally, would not frustrate the central purposes of the act. The two main purposes of the act were to eliminate discrimination and make whole those who suffered injury on account of discrimination. Denial of back pay under the facts of this case would frustrate both of these purposes.
With respect to attorney fees, Ms. Cornell has precluded review by this Court because she has failed to properly preserve the issue for appellate review.
In accordance with the foregoing, we reverse the judgment of the Court of Appeals as to back pay and affirm the judgment of that Court as to attorney fees. We remand to the circuit court for determination of the amount of back pay and mitigation.
Cavanagh and Boyle, JJ., concurred with Williams, C.J._
The comparable provision in the Civil Rights Act is MCL 37.2202(1); MSA 3.548(202)(1). The charge issued here by the Civil Rights Department was filed three days before the effective date of the Civil Rights Act and the repeal of the Fair Employment Practices Act. As such, all proceedings in this case, except for the filing of the charge, occurred after the repeal of the Fair Employment Practices Act. Nonetheless, the parties, courts and the civil rights hearing referee and commission have proceeded throughout this litigation under the Fair Employment Practices Act. We do not decide the propriety of proceeding under that act. For purposes of our discussion in this case, we note that the back pay provision of the Civil Rights Act, MCL 37.2605; MSA 3.548(605), is in all relevant respects, language, history and purpose, the same as that present in its predecessor, the Fair Employment Practices Act, MCL 423.307(h); MSA 17.458(7)(h).
As originally enacted, the preamble to the Fair Employment Practices Act read in pertinent part, "An act to promote and protect the welfare of the people of this state by prevention and elimination of discriminatory employment practices and policies . . . .’’Preamble, MCL 423.301 et seq.; MSA 17.458(1) et seq. (before 1975 amendment, 1975 PA 332). (Emphasis added.) The preamble was amended in 1975 to read, "An act to promote and protect the welfare of the people of this state by prevention and elimination of unfair practices and policies in employment. . . .” Preamble, MCL 423.303 et seq.; MSA 17.458(3) et seq., as amended by 1975 PA 332. (Emphasis added.) The meaning of "unfair practices ... in employment. . .” can be gleaned from the act itself which defines "unfair employment practice” throughout the act as discrimination. See MCL 423.303, 423.303a; MSA 17.458(3), 17.458(3a). In 1976, the preamble was amended to read much the same as it did originally and as it did read at the time this action was commenced, "An act to promote and protect the welfare of the people of this state by prevention and elimination of discriminatory employment practices and policies . . . .” Preamble, MCL 423.301 et seq.; MSA 17.458(1) et seq., as amended by 1976 PA 52 (emphasis added).
While, in a situation such as that present here, our ruling applies in the first instance to the award of the commission, it is equally applicable to the reviewing courts subject to the proper reviewing standard. In this light, whenever the commission or court declines to award back pay, it is necessary to articulate the reasons therefor. See Albemarle, supra, p 421, n 14.
We make no comment regarding whether or not the hospital’s discriminatory dress code was purposeful or invidious.
The record discloses testimony by the plaintiff that she sought employment elsewhere in an attempt to mitigate damages. However, no finding on the question of general mitigation of damages was made below.
The circuit court’s findings stated that Ms. Cornell "was sent home and told that unless she adhered to the new policy she would be terminated.” The Court of Appeals opinion stated, "When Cornell refused to conform her appearance to the provisions of the dress code, she was discharged.” 119 Mich App 387, 390; 326 NW2d 519 (1982).
We note that we do not have the complete record of the proceedings before the commission. However, Ms. Cornell does not deny the hospital’s assertion that the issue of attorney fees was never raised. In fact, during oral argument counsel for Ms. Cornell conceded as much. Moreover, the hospital’s assertion is supported by the commission’s opinion which makes no mention of attorney fees.
The fact that the circuit court’s review is de novo does not absolve the claimant of the responsibility to raise the issue before the commission and seek an appeal therefrom in order to preserve that issue for appellate review. See Alford v Lehman, 350 Mich 446, 457-458; 86 NW2d 330 (1957). | [
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Riley, J.
The issue to be decided in this case is whether MCL 418.301(2); MSA 17.237(301)(2) of 1980 PA 357 will have prospective or retroactive effect. This Court holds that MCL 418.301(2); MSA 17.237(301)(2) was enacted to invalidate this Court’s decision in Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1; 268 NW2d 1 (1978), thus effecting a substantive change in the law and that the provisions of this amendment have prospective application.
Plaintiff, Quay Hurd, began working for the defendant, Ford Motor Company, in 1962. In 1974, plaintiff sought psychiatric treatment, complaining that he was nervous and believed his bosses and coemployees were against him. He related a specific incident when a general foreman yelled "you are crazy” into his ear, subsequently causing him to hear roaring sounds in his head.
The plaintiff was later transferred to a different shift and experienced a decline in his psychiatric symptoms. However, following a return to his regular shift, the plaintiff’s symptoms reappeared. He was treated for these symptoms on many occasions in the plant medical department, but the culmination of these problems led to the plaintiff’s eventual placement on medical leave on September 27, 1975. On October 1, 1975, although still on medical leave, allegedly commanded by voices, he returned to the plant and attempted to convince plant officials to turn off the machine he believed was controlling his mind. The following afternoon, again "commanded to do so by the voices he was hearing,” he attempted suicide by jumping off an 1-75 overpass. The multiple injuries sustained in the fall rendered plaintiff a paraplegic.
The plaintiff was denied benefits by a hearing referee, but, on appeal, the Workers’ Compensation Appeal Board, in applying the "honest perception” standard of Deziel (After Remand), supra, found that work stresses "contributed to his illness, attempted suicide, and resulting disability.” Subsequently, leave to appeal was denied by the Court of Appeals. However, application for leave to appeal in this Court was held in abeyance pending decision in Selk v Detroit Plastic Products Co, 419 Mich 1; 345 NW2d 184 (1984). Following Selk, this Court granted leave to appeal on September 19, 1984.
The pertinent rule of statutory construction used to determine the effect an amendatory act has on transactions and events completed prior to its enactment is set forth in 1A Sands, Sutherland Statutory Construction (4th ed), § 22.36, pp 300-301:
In accordance with the rule applicable to original acts, it is presumed that provisions added by the amendment affecting substantive rights are intended to operate prospectively. Provisions added by the amendment that affect substantive rights will not be construed to apply to transactions and events completed prior to its enactment unless the legislature has expressed its intent to ■ that effect or such intent is clearly implied by the language of the amendment or by the circumstances surrounding its enactment.
There being no indication the Legislature intended that MCL 418.301(2); MSA 17.237(301X2) have any other interpretation, we hold this section to affect only those personal injuries occurring on or after January 1, 1982.
In light of our disposition of this issue, and inasmuch as the merits of the instant case are not before this Court, we do not, as in Peters v Michi gan Bell Telephone Co, 423 Mich 594; 377 NW2d 774 (1985), consolidated with Morrish v General Motors Corp (released simultaneously with this opinion) remand to the Workers’ Compensation Appeal Board. We affirm the decision of the Workers’ Compensation Appeal Board.
No costs, statutory interpretation being involved.
Williams, C.J., and Ryan, Brickley, Cavanagh, and Boyle, JJ., concurred with Riley, J.
Levin, J.
(separate opinion). I agree with the majority that the amendment of § 301(2) of the workers’ compensation act, enacted as part of the 1980 reform legislation, has "prospective application.” I also agree that § 301(2) is applicable to "personal injuries occurring on or after January 1, 1982.” I disagree, however, with the conclusion that § 301(2) applies "only” to personal injuries occurring on or after January 1, 1982, and hence does not apply to injuries that occurred before that date.
I
The 1980 reform act provides that § 301 "of this amendatory act shall take effect January 1, 1982.” In stating that this act has "prospective application” only to "personal injuries occurring on or after January 1, 1982,” the majority makes no reference to the provision of the 1980 reform act stating that § 301 "shall take effect January 1, 1982.”
It does not acknowledge or consider that there are meanings of "shall take effect January 1, 1982” other than "shall take effect January 1, 1982” only as to "personal injuries occurring on or after January 1, 1982.” It does not consider whether "shall take effect January 1, 1982” might mean that § 301(2) is also or alternatively effective either as to
(i) applications for workers’ compensation decided on or after January 1, 1982, by a referee or the workers’ compensation appeal board, or adjudicated on or after January 1, 1982, by the appellate courts although the injury or disability occurred before January 1, 1982, as was held by this Court on the original submission in Selk v Detroit Plastic Products, 419 Mich 1; 345 NW2d 184 (1984), or
(ii) payments of workers’ compensation on or after January 1, 1982 although the injury or disability occurred before January 1, 1982, as was held by this Court on resubmission in Selk v Detroit Plastic Products (On Resubmission), 419 Mich 32; 348 NW2d 652 (1984), or
(iii) weekly benefit periods commencing on and after January 1, 1982 although the injury or disability occurred before January 1, 1982, as was held by this Court in Franks v White Pine Copper Division, 422 Mich 636; 375 NW2d 715 (1985).
A
The majority does not set forth and acknowledge its decisions in Selk and Franks on the retroactivity-prospectivity of the 1980 and 1981 reform legislation, or make any effort to explain how its decision today might be reconciled with its decisions in those cases other than to quote a generali zation that an amendatory act affecting substantive rights is presumed to operate prospectively, and not to "transactions and events completed prior to its enactment” absent an express or implied statement or circumstances surrounding enactment indicating a contrary legislative intent.
Without further discussion, the majority holds that because there is "no indication the Legislature intended that” § 301(2) "have any other interpretation,” the section affects "only those personal injuries occurring on or after January 1, 1982.” There is no consideration of whether the January 1, 1982 specific effective date might not be indicative of a contrary legislative intent, of an intent that § 301(2) apply, as in Franks, to weekly benefit periods commencing on and after January 1, 1982, although the injury or disability occurred before that date.
B
In Selk, supra, pp 34-35, this Court held on resubmission that the date of the award was "not determinative,” and that "it is the date of payment which triggers the application of the [increase in interest payable on unpaid compensation from five percent to the twelve-percent] rate” enacted as part of the 1981 reform legislation. The 1981 reform act considered in Selk, like the 1980 reform act being considered in this case, also had a specific January 1, 1982, effective date.
In Franks and the companion cases of Chambers and Gomez v General Motors Corp, this Court considered the effective date question in the context of the provisions of the 1980 and 1981 reform legislation providing for the coordination of workers’ compensation benefits and unemployment compensation, social security, and pension retirement benefits. Those amendatory acts also provided a specific effective date of January 1, 1982. This Court held — although the amendments under consideration affected substantive rights — that the coordination provisions of the 1980 and 1981 reform legislation were applicable to weekly benefit periods commencing on or after the effective date although the injury or disability, and resulting entitlement to workers’ compensation benefits under prior law, occurred and arose before January 1, 1982.
C
Thus, in sum, this Court has held that the date of award is not determinative (Selk), the date of injury is not determinative (Franks), and the date of payment is determinative (Selk). This suggests, consistent with Selk and Franks, that amended § 301(2) is effective as to weekly benefit periods commencing on and after January 1, 1982, without regard to the date of injury or disability or of award. Nevertheless, the Court holds today that the date of injury is determinative for the purposes of § 301(2).
II
I dissented in Selk and concurred in Franks. In my view, the specific effective date of January 1, 1982, is determinative. In both Selk and Franks, I wrote that the Legislature, by providing a specific effective date of January 1, 1982, evidenced its intent not to leave the matter open to judicial construction, and meant that the amendatory act applies to weekly benefit periods commencing on and after the specific effective date.
In Selk, supra, p 36, I expressed the view that interest accrued at the higher twelve-percent rate on and after, but not before, the January 1, 1982, effective date, without regard to the date of award or payment.
In Franks, supra, p 678,1 agreed with the majority that the provisions of the 1980 and 1981 reform legislation requiring the coordination of benefits were applicable to weekly benefit periods commencing on and after the effective date although the injury or disability occurred before January 1, 1982.
The generally conflicting rules of statutory construction, the empty distinction between an amendatory act concerning a substantive right and an amendatory act concerning remedy or procedure, need not be and should not be invoked where the Legislature has provided a specific effective date.
The legislative purpose in providing a specific future effective date was to indicate when the provision of this amendatory act superseding the "honestly, even though mistakenly” component of this Court’s decision in Deziel v Difco Laboratories, Inc (After Remand), 403 Mich 1; 268 NW2d 1 (1978), would take effect. In stating that "this amendatory act should take effect January 1, 1982,” the Legislature indicated its intention that the superseding provision would become effective on January 1, 1982.
The superseding provision is a subject matter of this amendatory act; a purpose of the act is to supersede the honest though mistaken component of Deziel. The apparent purpose of the January 1, 1982 effective date was to state when the Legislature desired the provisions of the amendatory act so superseding Deziel to become effective. The words "this amendatory act shall take effect January 1, 1982” thus mean that the honest though mistaken component of Deziel is superseded, effective on January 1, 1982, and not before that date. Accordingly — I agree with the majority that — the superseding provision does not apply to weekly benefit periods commencing before January 1, 1982, but — and here I find myself in disagreement with the majority — does apply as to each weekly benefit period commencing on and after that date although the worker was injured or disabled before that date.
Ill
In the instant case, the majority, in deciding that the amendment of § 301(2) has prospective application, indicates, although it does not state, that the amendment affects "substantive rights.” The coordination provisions of the 1980 and 1981 reform legislation — held in Franks to be applicable to weekly payments of workers’ compensation benefits that became payable on or after the effective date although the injury or disability, and resulting entitlement to workers’ compensation benefits under prior law, occurred and arose before January 1, 1982 — also affected substantive rights. Workers’ compensation benefits payable to persons as a result of injuries or disabilities that occurred before January 1, 1982, were reduced or eliminated altogether as a result of the enactment of the coordination provisions and this Court’s decision in Franks holding that the coordination provisions applied to weekly benefit periods that commenced on or after the effective dates although the worker was injured before January 1, 1982.
The question ultimately turns on what the Court perceives to have been the legislative intent. In Hlady v Wolverine Bolt Co, 393 Mich 368, 391; 224 NW2d 856 (1975), I observed that a change in law, just as a change in facts, may justify or require a redetermination of entitlement to workers’ compensation benefits:
Workmen’s compensation disability benefits, like social security and unemployment compensation benefits, are a form of income maintenance for persons whose wage-earning capacity has been suspended or terminated. A claimant’s entitlement to such benefits depends on the circumstances at the time of application and payment.
A change in law, statutory or judge-made, like a change in fact, can effect a change in circumstances justifying, upon application of worker or employer, an award of benefits or termination or suspension of benefits previously awarded.
The right to workmen’s compensation disability benefits depends on whether, at a given point in time, the claimant is within the statutory intendment. The scope of that intendment is subject to change. A determination that a claimant is not today entitled to disability benefits does, not preclude reexamination of his entitlement should the facts or the law, by legislative amendment or court decision, change tomorrow. Entitlement to continuing disability benefits is an open question.
This Court said in Franks, supra at 654:
Workers’ compensation benefits are social-welfare income-maintenance benefits. Workers’ compensation is the first or progenitor safety net providing a means of income maintenance for persons who have met misfortune or whose regular income source has been cut off. All the social welfare programs — workers’ compensation, unemployment compensation, social security old age, disability, and survivors benefits, no-fault automobile benefits, aid to families with dependent children, and general assistance — are directed to the same objective, income maintenance. All these programs are funded by impositions on employers and others of mandatory payments (to the government, insurers or, in the case of the self-insured, to the beneficiary), with statutorily prescribed benefits. In providing for such benefits, the Legislature did not covenant not to amend the legislation.
Income-maintenance benefits payable under a legislatively mandated social welfare program are not property protected by the Due Process Clause, the Contract Clause, or the Takings Clause from substantive change by subsequent legislation irrespective of whether the recipient contributed to the cost of funding the benefit or of whether the program replaces a tort remedy which has been abolished.[ ]
In Franks, supra at 683,1 said:
Workers’ compensation benefits are payable weekly, and are geared to weekly wage loss. The nature of workers’ compensation is that events after an award of benefits may change the extent of an entitlement to benefits. A disabled worker may cease to be disabled or obtain gainful employment. The number of the worker’s dependents may change. The right to receive workers’ compensation benefits thus generally depends on one’s status, week by week, and is subject to change during any week. [Levin, J., concurring.]
Although each of the four amendatory provisions considered in Selk, Franks, and the instant case was set forth in an act stating that the amendatory provision would "take effect January 1, 1982,” this Court has given those words a different meaning in each case, moving from date of award on or after January 1, 1982, in Selk (on original submission), to date of payment on or after January 1, 1982 in Selk (on resubmission), to weekly benefit period commencing on or after January 1, 1982, in Franks, to personal injury occurring on or after January 1, 1982, in the instant case.
Absent our attention being called to something in the language or in the history of the 1980 reform legislation that would justify the conclusion that the Legislature, which expressly stated that the amendment of § 301(2) was to become effective on January 1, 1982, did not intend that the amendment would become effective as to weekly benefit periods commencing on and after that date, without regard to whether the injury or disability occurred before that date, I would hold that the amendment of § 301(2) is effective as to weekly benefit periods commencing on and after January 1, 1982, whether or not the injury or disability occurred before that date.
Intuitions that the Legislature "could not” have intended to defeat injured or disabled worker expectations based on past determinations, or to require redetermination of eligibility or entitlement where an employer claims that the amendment of § 301(2) justifies a change in a former determination do not, in my judgment, provide an adequate basis for reading the specific effective date — contrary to our decision in Franks — as if the Legislature had added before the words "January 1, 1982” the words "as to injuries and disabilities that occur on or after.”
To be sure there is a difference between an amendment that might require a redetermination of eligibility or entitlement (§ 301[2]) and an amendment providing for a setoff (coordination of benefits dealt with in Franks) that reduces or eliminates altogether benefits resulting from a prior determination of eligibility or entitlement, but the difference is not a substantive or legal difference. The Court indicates that § 301(2) involves a "substantive right,” but has not explained the substantive difference between the amendment at issue in this case and the amendment at issue in Franks.
If the Court were to adopt the construction I would adopt, it would mean that in those cases where the employer asserts that the change in law brought about by § 301(2) terminates the employ er’s obligation to pay benefits that under prior law it is obligated to pay, the employer could, by filing a petition to stop payment of benefits with the bureau of workers’ compensation, apply for a hearing seeking a determination that benefits are no longer, as of January 1, 1982, payable. Until the employer received a favorable determination, it would be obligated to continue to make payments pursuant to any prior determination.
IV
In the instant case, the employer, Ford Motor Company, argued that the amendment of § 301(2) was fully retroactive in all cases pending before an administrative tribunal or the appellate courts on January 1, 1982, with the result that weekly benefits that became payable before, as well as after, January 1, 1982, that would no longer be payable under the provisions of amended § 301(2), would be eliminated. Because, in my view, the specific eifective date of January 1, 1982, is determinative, I join with the majority in rejecting Ford’s claim that the amendment of § 301(2) was fully retroactive in all pending cases.
Ford did not alternatively contend that if this Court rejects its claim that § 301(2) is fully retroactive it should hold that § 301(2) nevertheless limits its obligation to pay weekly benefits, that otherwise would become payable on and after January 1, 1982, in respect to injuries or disabilities that occurred before that date. Because Ford did not make that alternative argument, the Court does not have the alternative question before it. Interested parties, who might seek to file amicus briefs on the question, have not had an opportunity to brief and argue the question.
Recognizing that the precise question is not before us and that judgment should be reserved until the question is presented, I have had no alternative but to now address the question because the Court holds that § 301(2) applies "only” to personal injuries occurring on or after January 1, 1982.
"(2) Mental disabilities and conditions of the aging process, including but not limited to heart and cardiovascular conditions, shall be compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof.” MCL 418.301(2); MSA 17.237(301X2).
In addition, we acknowledge that this Court requested that the parties brief the issue whether MCL 418.301(2); MSA 17.237(301)(2) impliedly repealed by amendment the "honest perception” standard of causation in a workers’ disability compensation case of mental disability. However, we do not address this issue because we conclude that it is not the dispositive issue in this case.
"(2) Mental disabilities and conditions of the aging process, including but not limited to heart and cardiovascular conditions, shall be compensable if contributed to or aggravated or accelerated by the employment in a significant manner. Mental disabilities shall be compensable when arising out of actual events of employment, not unfounded perceptions thereof.” MCL 418.301(2); MSA 17.237(301)(2).
1980 PA 357.
Ante, p 534.
1980 PA 357, § 3.
1981 PA 194, MCL 418.801(5); MSA 17.237(801X5), providing that when weekly compensation is paid pursuant to an award, the compensation shall be paid at the rate of twelve percent per annum from the date each payment was due, until paid. Formerly, the workers’ compensation act had not provided for the payment of interest, but this Court had held that interest was payable at the rate of five percent per annum; see Selk v Detroit Plastic Products, supra, pp 17 and 18, notes 4 and 5 and accompanying text.
1981 PA 194.
1980 PA 357, amended § 358 of the workers’ compensation act, MCL 418.358; MSA 17.237(358), to provide that net weekly benefits and certain lump sum benefits shall be reduced by one hundred percent of unemployment compensation benefits paid or payable for identical periods of time and chargeable to the same employer.
1981 PA 203, MCL 418.354; MSA 17.237(354), amended the workers’ compensation act to provide "[t]he employer’s obligation to pay or cause to be paid weekly benefits other than specific loss benefits” "shall be reduced” by
(i) "[fjifty percent of the amount of the old-age insurance benefits received or being received under the social security act,” and
(ii) "[t]he after-tax amount of the payments received or being received under a self-insurance plan, a wage continuation plan, or under a disability insurance policy provided by the same employer” to the extent that employer contributions funded the pension or retirement payments, for the "same time period.”
1980 PA 357, § 3; 1981 PA 203.
Because this 1981 amendatory act was not given immediate effect, it did not become operative until March 31, 1982.
The same view was earlier stated on the original submission in Selk v Detroit Plastic Products, supra at 15 (Levin, J., dissenting).
I would have held that weekly payments of workers’ compensation benefits that became due before January 1, 1982, on account of injuries that occurred before that date, that remained unpaid on January 1, 1982, because the employer disputed liability or for another reason, bear interest at five percent until January 1, 1982, and at twelve percent on and after that date. Thus, in such a case, interest would accrue at five percent during weekly benefit periods that commenced before January 1, 1982, and at twelve percent during weekly benefit periods that commenced on and after January 1, 1982.
See Llewellyn, The Common Law Tradition of Deciding Appeals, Appendix C, pp 521 ff.
See also Richardson v Belcher, 404 US 78; 92 S Ct 254; 30 L Ed 2d 231 (1971); Alessi v Raybestos-Manhattan, Inc, 451 US 504; 101 S Ct 1895; 68 L Ed 2d 402 (1981).
Two separate provisions were considered in Franks; see ns 7 and 8.
Welch, Workers’ Compensation in Michigan: Law & Practice, § 20.10. | [
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Per Curiam.
Plaintiffs in this products liability case appeal as of right from an order granting summary disposition for defendants. We affirm.
Plaintiff Charles Edward Mallard was tragically paralyzed after he dived into his neighbors’ above-ground swimming pool and hit his head. At the time, he was thirteen years and eleven months old.
Plaintiffs filed suit against the neighbors, alleging improper supervision, and against defendant, Hoffinger Industries, Inc., the pool manufacturer, and defendant Pool Town Distributing, Inc., the pool distributor, alleging violation of their duty to warn. Pursuant to a consent judgment, the neighbors were dismissed from the action. Defendants Hoffinger and Pool Town filed motions for summary disposition, which were granted.
Meanwhile, plaintiffs moved to amend their complaint to allege defective design. The motion was denied, whereupon plaintiffs filed a new com plaint raising a claim of defective design. The new complaint was consolidated with the original complaint, and summary disposition was again granted for defendants with respect to the defective design count. This appeal followed.
Plaintiffs first contend that the trial court erred in granting summary disposition for defendants with respect to the duty-to-warn claim. They assert that the "open and obvious danger” rule expressed in Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379; 491 NW2d 208 (1992), does not apply to minors. We disagree.
Glittenberg was a consolidation of three cases in which adults were paralyzed after diving into above-ground pools. The Supreme Court held that above-ground pools are simple products regarding which the manufacturer has no duty to warn of potentially dangerous conditions or characteristics that are readily apparent or visible upon casual inspection. Id. at 385.
The Court engaged in a lengthy discussion of the scope of a manufacturer’s duty to warn, and stated that, in general, a manufacturer or seller has no duty to warn of open and obvious dangers associated with an otherwise nondefective product. Id. at 390. With respect to warnings of the obvious danger of "simple products,” there is no duty to tell people what they already know. In other words, no duty exists where the consumer is in as good a position as the manufacturer to gauge the dangers associated with the product. Id. at 391.
The Court clarified that whether a product-connected danger is "obvious” is an objective determination. "The focus is the typical user’s perception and knowledge and whether the relevant condition or feature that creates the danger associated with use is fully apparent, widely known, commonly recognized and anticipated by the ordinary user or consumer.” Id. at 391-392.
The Court held that above-ground pools are simple products, because no one can mistake them for anything other than large containers of water that sit upon the ground, all of whose characteristics and features are readily apparent or easily discernible upon casual inspection. Id. at 399. It reasoned that the condition that creates the asserted danger is the shallowness of the water, a fact that is also readily apparent or discoverable upon casual inspection, without the need for special experience. Id. at 400. The Court emphasized that it is not necessary that the consuming public understand the specific risk of quadriplegic injury as opposed to the general danger of diving into shallow water, because the law does not impose a duty upon a manufacturer to warn of all conceivable ramifications of injuries that might occur from the use or foreseeable misuse of the product. Id. at 402.
Because the determination of the obvious nature of the danger is an objective one that focuses on the typical pool user, and because it is not necessary that the user understand the precise nature of every possible injury that might result from diving into an above-ground pool, we are unable to distinguish this case from Glittenberg on the basis of the victim’s age. We tend to agree with defendant Pool Town’s comment that, if a child is capable of understanding a warning, the dangerous condition would be obvious to the child, rendering the warning unnecessary. Conversely, if the condition is not obvious to the child, then a warning would likely be of little use.
This is a distressing case. Nevertheless, we must conclude, as did our Supreme Court, that "neither negligence nor product liability jurisprudence establishes the legal principle that every injury warrants a legal remedy.” Id. at 403.
Summary disposition was properly granted in favor of defendants with respect to the duty-to-warn claim.
Plaintiffs next contend that , the court erred in granting summary disposition of their design-defect claim. However, they fail to cite any legal authority in support of their assertion, beyond acknowledging that this issue was not addressed in Glittenberg. This Court will not search for authority either to sustain or reject a party’s position. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Plaintiffs have effectively abandoned this issue. Id.
Affirmed.
Plaintiffs cite a recent decision of the Illinois Court of Appeals that distinguishes Glittenberg and holds that the question whether above-ground pool manufacturers and sellers have a duty toward a minor to warn of the risk of permanent neurological injury presented by their products is one of fact that is inappropriate for summary disposition. Klen v Asahi Pool, Inc, 268 Ill App 3d 1031; 643 NE2d 1360 (1995). However, because plaintiffs fail to provide any authority for the proposition that Glittenberg is not controlling and fully applicable to the facts of the present case, they have given us no reason to consult the case law of our sister state. | [
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Per Curiam.
Plaintiffs appeal as of right the trial court’s order granting defendants’ motion to dismiss the case for lack of jurisdiction, based upon the doctrine of forum non conveniens. We find no error and affirm.
This action arises from an accident in which plaintiff Michael Hamann was allegedly injured when the Jeep which he was driving rolled over. Plaintiffs are residents of Tennessee, and the accident occurred in Tennessee. The sole basis for plaintiffs’ decision to file this action in Michigan was the fact that defendant American Motors Corporation (of which the other two defendants are wholly owned subsidiaries) has its headquarters or principal place of business here.
The doctrine of forum non conveniens is governed by the principles announced in Cray v General Motors Corp, 389 Mich 382, 395-397; 207 NW2d 393 (1973). In that case, the Court focused upon the following factors which must be weighed in deciding whether to accept or reject jurisdiction:
"1. The private interest of the litigant.
"a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;
"b. Ease of access to sources of proof;
"c. Distance from the situs of the accident or incident which gave rise to the litigation;
"d. Enforceability of any judgment obtained;
"e. Possible harassment of either party;
"f. Other practical problems which contribute to the ease, expense and expedition of the trial;
”g. Possibility of viewing the premises._
"2. Matters of public interest.
"a. Administrative difficulties which may arise in an area which may not be present in the area of origin;
"b. Consideration of the state law which must govern the case;
"c. People who are concerned by the proceeding.
"3. Reasonable promptness in raising the plea of forum non conveniens.” 389 Mich 396.
Application of the foregoing factors is left to the trial court’s discretion. Cray, supra.
In the present case, we find no abuse of discretion. The trial court considered each of the factors carefully, noting that there were no witnesses who could be compelled to testify by the Michigan court but not the Tennessee court. On the other hand, defendants pointed out that certain non-party witnesses whom they would want to call are Tennessee residents subject only to compulsory process in the Tennessee court. Plaintiffs made much of the fact that design, manufacturing, and test documentation from defendant Jeep Corporation was in Toledo, a site much closer to the Michigan court than to Tennessee. The trial court aptly replied that it could not do anything to Ohio records that the Tennessee court could not do. Furthermore, defendants maintain that certain documents which they will need to defend this action are in the hands of nonparties in Tennessee.
Other factors also weigh in favor of having this action tried in Tennessee rather than in Michigan. The situs of the accident would be far closer to any Tennessee court than to the Michigan court. There would be little, if any, possibility for a jury view of the premises if the case were tried here rather than in Tennessee.
With regard to matters of public interest, the trial court considered some administrative difficulties which might arise, as well as what state law would govern. The court was concerned that, if it were to accept jurisdiction, it might open the floodgates and encourage forum shopping. The trial court also determined that the law of Tennessee would apply pursuant to the doctrine of lex loci delicti. See Sexton v Ryder Truck Rental, 413 Mich 406, 433; 320 NW2d 843 (1982), and Severine v Ford Aerospace & Communications Corp, 118 Mich App 769, 776; 325 NW2d 572 (1982), indicating that the law of the forum state (Michigan) is appropriate only where both plaintiff and defendant are Michigan residents.
The only factor cited by plaintiffs which weighs in favor of having the case tried here is the possibility that some of the witnesses in defendants’ employ may leave prior to trial and thus be subject only to compulsory service in Michigan. However, this factor is highly speculative, as plaintiffs have failed to identify any potential witnesses which might fall into this category.
In concluding our review of this issue, we note one final factor which the Supreme Court has identified as significant under circumstances similar to those involved here:
"The Wayne Circuit Court, where this action was filed, has the most crowded civil docket of any court in the state. The burden on our courts and upon the defendant’s ability to prepare a defense greatly outweighs the remote interest the plaintiff has shown in behalf of conducting this trial in Michigan.” Anderson v Great Lakes Dredge & Dock Co, 411 Mich 619, 631; 309 NW2d 539 (1981).
The Court’s admonition in Anderson, supra, is instructive in any situation such as the present one, where a plaintiffs interest in his chosen forum is slight:
"A plaintiffs selection of a forum is ordinarily accorded deference. * * * Various factors, such as those outlined in Cray, supra, 396-397, are to be considered in determining whether the balance strongly favors the defendant. In balancing these factors, one of the considerations is the plaintiffs interest in the chosen forum. When this interest is slight — as when the plaintiff has chosen a forum where none of the parties or witnesses reside, where Michigan law does not apply and where none of the operative facts have occurred — the choice is entitled to much less weight than where there exists a significant nexus between litigation and the chosen forum.” 411 Mich 628-629.
In the present case, the court was willing to accord deference to plaintiffs’ choice of forum, but properly decided to decline jurisdiction when plaintiffs could not point to any significant factors weighing in favor of having the case tried here. We conclude that the court’s order dismissing the case must be affirmed.
Affirmed.
We find no merit in any suggestion that the final factor listed by the Court in Cray, "reasonable promptness in. raising * * * forum non conveniens” weighs against defendants herein. Although each party took steps which caused delays in the ultimate resolution of this matter, there is no dispute that the issue was at least raised with reasonable promptness. Defendants filed their motion to dismiss for lack of jurisdiction in direct response to plaintiffs’ complaint. | [
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J. T. Kallman, J.
Michelle L. Moore (hereinafter respondent) appeals as of right from an order entered in the Kent County Probate Court which terminated her parental rights to her minor children, William, Lee, and Shawndryka. Respondent continues to have custody of a baby who was born after the events leading to the termination of her parental rights in respect to William, Lee, and Shawndryka.
In March, 1981, respondent sought temporary foster care placement for her children. Respondent explained that she was on welfare and that the rent money provided her by the Michigan Department of Social Services had been stolen. Respondent stated that one welfare check had been stolen from her mailbox and that she had cashed a second check, but the money was stolen from her house. According to respondent, the Michigan Department of Social Services was unwilling to provide any further funds for the rent, and her landlord was threatening to place her belongings on the street.
The Kent County Department of Social Services (hereinafter DSS) filed a petition with the Kent County Probate Court, seeking jurisdiction of respondent’s children pursuant to MCL 712A.2(b)(l); MSA 27.3178(598.2)(b)(l). The petition specifically alleged that respondent neglected or refused to provide proper and necessary support for her children, and jurisdiction was assumed on the basis of this petition.
On April 20, 1981, respondent entered into a "parent-agency agreement” with the D. A. Blodgett Homes for Children (hereinafter Blodgett). Respondent agreed to: (1) find and maintain suitable housing within three months, (2) apply for and meet requirements for financial assistance or seek employment, (3) attend school or job training classes, (4) counsel biweekly with a caseworker, (5) consistently attend and invest in parenting classes, (6) visit her children biweekly, and (7) utilize public transportation and apply for a driver’s license.
Respondent pled guilty on July 24, 1981, to a charge of soliciting for prostitution and was fined and sentenced to probation for a period of one year. Respondent was later convicted of probation violation and was sentenced to a year’s extension of probation and to 20 days in jail for contempt of court. Respondent was jailed from October 25 through December 11, 1981. However, her probation officer, Janice Hammerlind, was satisfied that respondent did not thereafter violate the conditions of her probation.
The DSS filed a petition on August 30, 1982, alleging that the Moore children were within the provisions of MCL 712A.19a(e); MSA 27.3178(598.19a)(e), in that the parents were unable to provide a fit home by reason of neglect. Specifically, the petition alleged that respondent had not completed the goals of her treatment plan in that she failed to obtain suitable housing, failed to attend parenting classes, failed to maintain regular contact with her caseworker, failed to maintain visitation with her children, failed to comply with her probation requirements, failed to obtain employment or other source of income, and failed to attend school or job training classes. A hearing on the petition was commenced on August 30, 1982. At the conclusion of the hearing, the court found the evidence "pretty much evenly balanced” and ordered a continuance for four months.
On September 24, 1982, respondent entered into a new "parent-agency agreement” with Blodgett whereby she agreed to: (1) find and maintain suitable housing within the next three months, (2) apply for and meet requirements for financial assistance or seek employment, (3) counsel with her caseworker biweekly, (4) consistently attend and invest in parenting classes weekly, and (5) visit her children biweekly._
The neglect hearing was continued on February 16, 1983. In its opinion, the probate court found that respondent could not consistently avoid neglecting the important emotional needs of her children while caring for the new baby. The court concluded that respondent was without "the necessary responsibility and emotional energy to attend to the children’s ongoing emotional and ultimately physical needs”. The court concluded that respondent’s failure to avail herself of counseling and parenting classes constituted neglect. The probate court found "pursuant to § 19a(e) of the Juvenile Code [MCL 712A.19a(e); MSA 27.3178(598.19a)(e)] and by clear and convincing evidence that the parents are unable to provide a fit home for their children by reason of neglect which the court finds is likely to continue into the future”.
The testimony taken at the August 30, 1982, and February 16, 1983, hearings will be detailed below.
Parental rights may not be terminated except upon proof by clear and convincing evidence that the termination is warranted. In the Matter of LaFlure, 48 Mich App 377, 386; 210 NW2d 482 (1973), lv den 390 Mich 814 (1973). The statutory provision under which respondent’s parental rights were terminated is MCL 712A.19a(e); MSA 27.3178(598.19a)(e), which provides for termination of those rights upon a finding by the court that: "[T]he parent or guardian is unable to provide a fit home for the child by reason of neglect.” The Michigan Supreme Court has held that to justify termination of parental rights based on neglect "real evidence of long-time neglect or serious threats to the future welfare of the child” must be shown. Fritts v Krugh, 354 Mich 97, 116; 92 NW2d 604 (1958). This Court has applied both a de novo and a clearly erroneous standard of appellate re view in termination cases. In the Matter of Bailey, 125 Mich App 522, 527; 336 NW2d 499 (1983). While we have no doubt that respondent is not an ideal parent, we are equally convinced that, under either of the standards of appellate review set forth in Bailey, termination of respondent’s parental rights was unwarranted. The simple fact is that this record contains no real evidence of neglect by respondent but, rather, shows only that a poorly educated woman without substantial job skills who has largely made her own way in the world since the age of 13 has had problems obtaining housing for her children. The ultimate moral of this case is that a mother without the current means of supporting her children should do anything but attempt to get aid from the Department of Social Services if she wants to keep her children.
The record is wholly lacking in evidence that, at the time respondent initiated involvement with the DSS, her children were neglected or abused. Indeed, Tom Nelson, a caseworker with Blodgett, who supervised respondent’s case until July, 1982, testified at the August hearing that respondent’s children were in reasonably good shape, both emotionally and physically, at the time respondent sought help from the DSS. Nelson admitted that respondent had shown herself to be a capable mother. Nelson further acknowledged that the interaction between respondent and her children was excellent and that there was definite bonding between respondent and the oldest child, William Lee, who suffers from multiple handicaps. Although respondent had moved frequently, Nelson described her housing arrangement at the time of the hearing as adequate._
Despite these positive attributes of respondent and the positive aspects of her relationship with her children, Nelson concluded that her parental rights should be terminated because she allegedly had missed 6 of 13 scheduled visits with her children and had not engaged in counseling or attended the parenting classes which were part of her agreement with Blodgett. When the court asked Nelson why it should not simply return the children to respondent’s care given his admission that respondent had previously provided her children with good care, Nelson responded vaguely about respondent’s "lifestyle” and expressed concern that respondent would not be able to meet the needs of her children due to her own youth.
Respondent’s probation officer, Janice Hammerlind, testified that, since the probation violation in September, 1981, she was satisfied that respondent had complied with her probation. Hammerlind stated that respondent had been attending job training classes offered through South Kent Community College and that she had been informed by respondent’s instructor that there had been no problems with attendance. Hammerlind testified that respondent was very positive about the children and always expressed love and concern for them. She believed that respondent’s housing arrangements were suitable. Hammerlind indicated that, while she did not feel qualified to comment on respondent’s progress in respect to the juvenile court, respondent had made positive substantial changes over the last eight months with respect to the district court and the probation order.
Charles Johnson, a caseworker with Blodgett who was assigned to replace Tom Nelson on the Moore case, also testified at the August 30, 1982, hearing. At that time, Johnson had been involved with the case for about four weeks. Johnson observed respondent interact with the children on two occasions. Respondent showed a great deal of affection towards the children. Respondent failed, however, to meet him for a scheduled counseling appointment. She later told Johnson that she had injured her hand and had to seek medical attention. This was confirmed by respondent’s sister, Queen Moore. Based on his limited observation of the case, Johnson recommended that respondent’s parental rights not be terminated.
At the time of the February hearing, however, Johnson recommended that respondent’s parental rights be terminated. Johnson’s recommendation was made despite the fact that respondent had visited the children regularly and had attended 7 of 10 counseling appointments scheduled with him. Johnson further testified that he had no doubts that respondent’s displays of love and affection for her children were sincere, that respondent’s new residence was satisfactory for herself and her four children, and that respondent was providing adequate care for her new child.
Despite the foregoing testimony, Johnson rather incongruously contended that respondent’s lack of parenting skills would cause her to neglect her children, which neglect he later stated would take the form of not meeting the "emotional needs” of the children. At the same time, however, when asked outright whether respondent would be able to care for her children over the long haul without neglecting them, Johnson responded: "I can’t answer that. I don’t know”. Johnson also allowed that he believed that respondent "could properly care for this infant child that she has”.
Johnson was particularly concerned about respondent’s ability to care for William, the handicapped child. He allowed that it would be easier for respondent to care for the two younger children if she was not also required to care for William. Nonetheless, he could not recommend returning the younger children because he did not believe William, Lee, and Shawndryka should be separated.
Johnson also testified that respondent had only unqualifiedly failed to meet one goal of her "agency-parent” agreement with Blodgett, i.e., she failed to attend parenting classes. In addition, respondent had "not totally” fulfilled the counseling provisions of this agreement.
The probate court made various enumerated findings which it concluded constituted clear and convincing evidence, justifying termination. These findings and our views on each will be summarized below._
1. Respondent moved repeatedly. While it would be desirable to maintain a long-term residence, the failure of a poor woman to do so hardly is proof that she will neglect her children. The testimony concerning respondent’s residence as of the last hearing was that it was adequate for her and her children.
2. Respondent did not reasonably comply with the treatment plan. The court noted that respondent had been informed of the importance of the parenting classes, counseling, and visitation with the children. It further found that "while she has complied with some of these requirements, she has substantially failed to complete all of them satisfactorily”.
It is undeniable that respondent did not attend the parenting classes. However, this record wholly lacks evidence that respondent was an inadequate parent. All of the testimony shows that when the children were voluntarily brought to the DSS, they appeared to be well cared for. Johnson testified that respondent’s new baby was adequately cared for. Everybody agreed that respondent showed genuine love and affection for her children. In the absence of clear and convincing evidence that the parenting classes were actually needed to improve neglectful behavior, which is not the case here, the failure to attend such classes does not establish neglect.
The court’s findings concerning respondent’s compliance with the counseling and visitation aspects of the treatment plan obviously focus far more on respondent’s behavior prior to the August hearing than her behavior subsequent to the August hearing. After the August hearing, the court found the evidence essentially "equal” and continued the case. Thereafter, respondent apparently made each scheduled visit with her children and substantially improved her counseling record. Despite these dramatic improvements, the court nonetheless felt that, after the February hearing, neglect had been proven by clear and convincing evidence. It is difficult to understand this conclusion, given that the court found insufficient evidence of neglect to terminate respondent’s rights on a record less favorable to respondent in August.
3. Respondent is emotionally weak. We do not necessarily know what the probate court meant by describing respondent as "emotionally weak”. Nonetheless, the existence of emotional problems or weaknesses, by themselves, simply do not establish "real evidence of long-time neglect or serious threats to the future welfare of the child”. Fritts, supra. This record contains no evidence that respondent neglected the emotional needs of her children while they were in her custody.
4. Respondent has an unsavory past, has been convicted of prostitution, and has spent time in jail. Apart from the fact that respondent’s probation officer is satisfied that respondent has made positive changes in regard to her attitude toward the law, a conviction for soliciting for prostitution simply does not establish neglect as defined by Fritts. Criminal involvement far more serious than the misdemeanor for which respondent was convicted has been held insufficient to justify termination of parental rights. See, e.g., In the Matter of Curry, 113 Mich App 821; 318 NW2d 567 (1982) (father serving a life sentence as an habitual criminal; mother incarcerated on a charge of delivery of cocaine, allegedly committed while on "inmate status” from a previous larceny in a building conviction).
5. Respondent’s documented emotional problems. Introduced at the February hearing was a report of psychologist Thomas Gunnings’ evaluation of respondent’s mental state. Based upon the "Forty-Eight Item Counseling Evaluation Test Revised (ICET),” the "Draw-A-Person (DAP)” test, the "Incomplete Sentence Blank Adult Form (Rotter)”, and one interview of an unspecified duration Gunnings concluded that, despite respondent’s best intentions, she would be unable to avoid neglecting her children’s emotional needs when under stress. Gunnings was not called as a witness at either hearing.
We believe that termination cannot be premised on Gunnings’ views given his very limited contact with respondent and the fact that he was not even subject to cross-examination. Gunnings’ prediction as to how respondent would respond to her children’s needs plus demonstrable real evidence of past serious neglect could well be sufficient to terminate respondent’s parental rights. On this record, however, as noted above, there is an utter lack of any real evidence of neglect, long-term or otherwise. The time has not yet come that a prediction of future emotional neglect made by a psychologist based upon one interview with a parent can constitute the basis for terminating rights.
6. All three children have lived together in foster care for 22 months and need a permanent home as soon as possible. We do not quarrel with this finding, but it simply does not establish long-term neglect. The children have been in foster care for 22 months and deprived of a permanent home with their mother largely because the court has not seen fit to return the children to respondent.
7. Respondent is adequately caring for her new child, but could not reasonably meet the needs of the baby and the other three children. The prediction that respondent could not care for her four children is simply not supported by the history of respondent’s interactions with her children. There is no evidence that respondent was not adequately caring for William, Lee, and Shawndryka at the time she sought aid from the DSS because of the eviction. Indeed, the evidence of record shows that respondent’s children were in reasonably good shape, both physically and emotionally, at the time she voluntarily gave them up to the DSS for what she believed was a temporary placement. The court explicitly found that respondent is providing adequate care for her new child. There is simply no basis in the history of respondent’s interactions with her children upon which a finding of neglect inside the meaning of Fritts can be premised.
Apart from its enumerated findings, the probate court also made much of the fact that respondent admitted at the time she voluntarily agreed to make her children temporary wards that she was unable to care for them. This constitutes the crowning irony of this case, namely, that the probate court apparently punishes respondent for responsibly seeking shelter for her children at a time when she was in the process of being evicted and, thus, was unable to provide them with adequate housing. Rather than constituting evidence of neglect, we believe respondent’s decision to seek aid for her children from the DSS actually tends to show the absence of neglect. Numerous decisions have held that a parent unable to provide for a child does not act neglectfully where she arranges with a relative to take care of that child. See, e.g., In the Matter of Curry, 113 Mich App 81; 318 NW2d 567 (1982); In the Matter of Carlene Ward, 104 Mich App 354; 304 NW2d 844 (1981). Similarly, we do not believe that a parent who seeks a temporary placement of her children through a county department of social services acts neglectfully.
In conclusion, the probate court’s order terminating respondent’s parental rights is not supported by clear and convincing evidence that termination was warranted. Petitioner failed to present clear and convincing evidence that respondent was unable to provide a fit home for her children by reason of neglect. At the conclusion of the August 30, 1982, hearing, the probate court found the evidence evenly balanced. Following the August 30, 1982, hearing, respondent had established a residence described by her caseworker as adequate for her children. Respondent was adequately caring for her newborn baby. Respondent had attended scheduled visitations with her children and there appeared to be a genuine affectionate relationship between them. Respondent had significantly bettered her attendance at the scheduled counseling sessions with her Blodgett caseworker and had not involved herself in any further criminal activities. The probate court’s decision to terminate respondent’s parental rights seems to be based primarily on her failure to attend parenting classes. This is not an adequate reason for termination, either by itself or when considered with all the evidence of record.
Reversed and remanded.
Respondent admitted the allegations in this petition, although they are patently inconsistent with a document entitled "Kent County Juvenile Court Neglect Fact Sheet” which appears as part of the record. This document specifically indicates that respondent was being evicted from her home and notes that respondent “reports that at the present time she is unable to provide her children with the care and stable environment she feels they require”. On its face, rather than presenting a scenario in which a parent refuses to support her children, this matter seemingly falls within the ambit of MCL 712A.2(b)(2); MSA 27.3178(598.2)(b)(2), allowing jurisdiction to be assumed over the children of an unmarried mother "without adequate provision for care and support”. However, because respondent admitted the allegations appearing in the petition seeking jurisdiction, we will not inquire into the underlying validity of the facts contained in that petition.
Of course, it is always possible that respondent’s subsequent violations were merely undetected. Hammerlind indicated, however, that the area of Division Street, in which prostitution is most common in Grand Rapids, is regularly patrolled and that the police officers in this part of the city routinely report probationers they catch in the area.
"He that is without sin among you, let him first cast a stone at her.” The Holy Bible (King James version), John 8:7.
Respondent testified that she had probably missed only two scheduled visits with her children and that the failures to make those visits were Nelson’s fault. Respondent indicated that on both occasions she had appeared for the visits. On one occasion, a Blodgett supervisor told her that the foster parents knew nothing about a visit. When she later asked Nelson about the problem, he indicated that he had forgotten about the visit. On the other occasion, Nelson told her that the children were not ready for the visit and that she would have to see them another time.
It is clear from the record that there was some animosity between respondent and Nelson. That the pair did not get along was confirmed by the testimony of respondent’s probation officer.
Respondent violated her probation by being seen on Division Street at 10:05 p.m. one evening. She was sighted on Division one time after she was found guilty of probation violation. However, the officer who spotted her was unsure if respondent was there to solicit and, consequently, did not arrest her. Respondent testified that she was merely going to the Acapulco Restaurant with a woman friend for something to eat.
Although William’s handicaps were such that he required more attention than young infants, there is still no demonstrable evidence that respondent neglected William’s needs. In any case, even if such evidence existed, respondent’s failure to care for William would not justify the termination of respondent’s parental rights in respect to Lee and Shawndryka simply because it would be nice to keep all three children together. | [
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Allen, P.J.
Plaintiff appeals as of right from the May 27, 1983, order of partial summary judgment granted to defendant on plaintiff’s claim for exemplary damages arising out of a breach of an insurance contract. The order provided for removal of the action to district court. The parties have stipulated to a stay of those proceedings pending outcome of this appeal.
Plaintiff enrolled in defendant’s non-group comprehensive hospital care program on October 20, 1980. The policy prescribed certain waiting periods and provided that hospital service was not available for a condition existing on the date of membership (whether known or unknown) until at least 180 days had elapsed from the date of enrollment. On March 3, 1981, less than 180 days after the policy’s effective date, plaintiff was treated for sudden abdominal pains and on March 9, 1981, underwent surgery for removal of an acute endometrial cyst. Plaintiff’s hospitalization and medical costs amounted to $7,906.76. Defendant refused to pay based on the pre-existing condition clause in the policy; plaintiff was unable to pay the bills and was subjected to telephone calls and letters from a collection agency.
Plaintiff filed a two count complaint based upon defendant’s failure to pay the costs of her hospitalization and medical expenses. Count I alleged a breach of contract for defendant’s failure to pay under the policy of insurance and sought damages in the amount of the bills, plus costs and attorney fees. The merits of this claim are not before this Court. Count II alleged that defendant acted intentionally and in bad faith (or alternatively, negligently, recklessly and carelessly) in refusing to provide coverage for plaintiff’s surgery and hospitalization expenses. The complaint further alleged:
"14. That defendant knew or should have known that its wrongful refusal to provide coverage would deprive plaintiff of the solicitude and peace of mind of knowing that plaintiff’s hospitalization policy would afford plaintiff necessary medical care regardless of plaintiff’s ability to pay for such care and would subject plaintiff to the anxiety and distress of having to bear substantial financial burden.
"15. That as a direct and proximate cause of defendant’s wrongful acts, plaintiff was constrained to suffer great fear, anxiety and emotional distress of bearing the substantial cost for her hospitalization and treatment for which plaintiff had, and has, inadequate funds to cover.
"16. That as a direct and proximate cause of defendant’s wrongful acts, plaintiff’s unpaid hospital and medical expenses were put into collection. Plaintiff was constrained to suffer great anxiety, humiliation and embarrassment of being subjected to numerous letters and phone calls from collection agencies seeking payment for said expenses.”
The trial court granted defendant’s motion for partial summary judgment, ruling that, as a matter of law, count II failed to state a claim upon which relief could be granted. GCR 1963, 117.2(1). The sole issue on appeal is whether this case falls within an exception to the general rule that damages for mental or emotional distress are not recoverable for breach of contract. Hadley v Baxendale, 9 Exch 341; 156 Eng Rep 145 (1854).
In Kewin v Massachusetts Mutual Life Ins Co, 409 Mich 401; 295 NW2d 50 (1980), reh den 409 Mich 1116 (1980), the Supreme Court considered the plaintiffs claim for punitive damages arising out of the nonpayment of benefits alleged to be due under a disability income protection insurance policy. Plaintiff alleged that he suffered mental anguish as a result of the insurer’s refusal to honor his claim. The Court found that the insurance contract involved was of a commercial nature and, as such, damages for its breach were limited to the monetary value of the contract had the breaching party fully performed its obligations. Absent allegation and proof of tortious conduct independent of the breach, damages for mental distress are not available for breach of a commercial contract. Kewin, pp 419-421. This rule follows from application of the Hadley v Baxendale principle that only those damages that flow naturally from the breach or those that were reasonably within the contemplation of the parties at the time of contracting are recoverable upon breach of a contract.
Exceptions to the general rule of nonrecovery for mental distress damages do exist. In Stewart v Rudner, 349 Mich 459; 84 NW2d 816 (1957), the plaintiff sought damages for the breach of a contract to perform a Caesarean section which allegedly resulted in the death of the infant. In allowing recovery for mental distress damages, the Court stressed both the personal nature of the agreement and the inevitable mental suffering and pain which would result from its breach. As did the Court in Kewin, we find that the medical insurance contract in the present case does not involve "rights we cherish, dignities we respect, emotions recognized by all as both sacred and personal”. Stewart, p 469. Here, the contractual agreement provided for the payment of money and did not involve such a personal component as did the agreement for the delivery of a child in Stewart.
The Kewin Court also distinguished the facts of that case from the exception to the general rule of nonrecovery found in Miholevich v Mid-West Mutual Auto Ins Co, 261 Mich 495; 246 NW 202 (1933). Miholevich involved an insurance contract which involved an agreement by the insurer to satisfy any judgment rendered against its insured. Due to the company’s wilful neglect, the plaintiff was placed in jail following rendition of a judgment against him. Damages for mental distress were found to be within the contemplation of the parties at the time of contracting, thus permitting the recovery of mental distress damages for breach of the insurance contract.
Relying on McCune v Grimaldi Buick-Opel, Inc, 45 Mich App 472; 206 NW2d 742 (1973), plaintiff argues that a medical insurance contract is a matter of mental concern and solicitude indicative of a personal contract rather than a trade and commerce commercial agreement. McCune involved an employment contract which provided that the employer would pay one-half of the employee’s health insurance premiums and would submit that payment along with plaintiffs portion of the cost when billed by the insurance company. Grimaldi failed to timely perform and plaintiffs insurance coverage was terminated which resulted in plaintiffs incurring medical and hospital bills and damages for harassment and humiliation. Finding that hospital and medical insurance fell within the Stewart definition of a matter of "mental concern and solicitude”, the Court upheld plaintiffs claim for mental anguish and humiliation.
We note that the McCune case was decided seven years prior to the Supreme Court’s decision in Kewin. Recent opinions of this Court have questioned the continued vitality of that holding in light of the more recent pronouncement of our highest Court. See, e.g., Butler v DAIIE, 121 Mich App 727; 329 NW2d 781 (1982), and Van Marter v American Fidelity Fire Ins Co, 114 Mich App 171; 318 NW2d 679 (1982). Both Butler and Van Marter refused to extend recovery for mental distress damages to cases involving breach of an automobile insurance contract, holding instead that the no-fault insurance contracts were commercial or pecuniary in nature.
We find plaintiffs diligent and skillful attempts to distinguish the facts of the present situation from the holding in Kewin to be futile. Although plaintiff has characterized the policy in the present case as a primary hospital medical policy under which payment is made directly to the health-care provider rather than to herself, we find this factor does not alter the primary commercial nature of the contract. Nor do we find plaintiff’s characterization of the contract as providing her with "protection from mental concern and solicitude over her health care” or as one in which defendant sold her "peace of mind for her physical and mental health, safety and welfare” sufficient to establish that damages for mental distress were either a natural result of the breach or were reasonably within the contemplation of the parties at the time of contract formation. The concepts espoused by plaintiff were thoroughly discussed and developed in Justice Williams’s dissent in Kewin; we, however, are bound by the majority opinion and find its reasoning persuasive.
We also note that a situation similar to that in the present case was presented in Zimmerman v Michigan Hospital Service, 96 Mich App 464; 292 NW2d 236 (1980), lv den 409 Mich 941 (1980). This Court reversed a lower court judgment that awarded exemplary damages to plaintiff for mental anguish and humiliation arising out of a breach of a hospitalization insurance contract. In Zimmerman, as in the present case, damages for mental distress were based upon actions taken subsequent to the insurer’s refusal to pay and resulted from attempts to secure payment for the hospital costs. Although plaintiffs were subjected to collection efforts by the hospital, the Court found the dispute to be of a pecuniary nature and capable of compensation without resort to damages for mental distress.
We have no doubt that plaintiff has suffered some anxiety and concern arising from defendant’s alleged breach of the insurance contract; as with any broken agreement, some annoyance or inconvenience will usually result. Recovery for such consequences however, will not be allowed absent evidence that they were within the parties’ contemplation at the time the contract was made. Here, the contract between plaintiff and defendant provided for the payment of certain medical expenses, a financial arrangement capable of accurate monetary recompense for any breach. We find that the hospitalization insurance contract is unlike the contracts in Stewart and Miholevich in that the damages resulting from the loss of a child or a deprivation of personal liberty are not capable of being compensated by reference to the monetary value of the contract alone. Furthermore, both those contracts involved special personal or sacred rights where mental anguish and distress were likely results of the breach and were not only within the contemplation of the parties but were "an integral and inseparable part of’ the contract. Stewart, supra, p 471.
We affirm the decision of the trial court granting defendant summary judgment on plaintiff’s claim for mental distress damages. Given plaintiff’s failure to seek leave to amend her complaint in the lower court, we decline to consider this request for the first time on appeal.
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Per Curiam.
On March 14, 1985, defendant pled guilty to delivery of a controlled substance, MCL 333.7401(1) and (2)(b); MSA 14.15(7401)(1) and (2)(b), and to being an habitual offender, third offense, MCL 769.11; MSA 28.1083. He was sentenced as an habitual offender to from two to fourteen years in prison. Defendant appeals from his convictions and sentence as of right. We affirm.
On July 25, 1985, defendant filed a motion to withdraw his guilty plea, arguing that the trial court failed to comply with the requirements of MCR 6.101(F)(1). Specifically, defendant argued that the trial court erred by failing to inform him that it was his option to choose a bench or jury trial. The trial court denied defendant’s motion. Defendant raises the same argument on appeal. He emphasizes the court rule language "if the defendant does not want trial by a jury.” He claims that the trial court’s failure to recite literally such language resulted in a failure to inform him that he had an option to choose between a bench or a jury trial and that the omission of such language constitutes error. We disagree.
MCR 6.101(F)(1)(c) states in part that the court shall tell the defendant that, if his guilty plea is accepted, the defendant will not have a trial of any kind, so he gives up the rights he would have at a trial, including the rights: (i) to trial by a jury; and (ii) to trial by the court if the defendant does not want a trial by a jury. In this case, the following colloquy took place:
The Court: Do you understand that you do have a constitutional right to have a trial on these charges by a court or by a jury?
The Defendant: Yes.
The Court: Do you understand the difference between the two forms of trial?
The Defendant: Yes, I do.
The Court: And what is your understanding of that difference?
The Defendant: A jury would be twelve people to decide, and the court would be you.
The Court: And the issue to be decided is whether you are innocent or guilty.
The Defendant: Yes.
The Court: Do you understand that throughout the entire trial that you are presumed to be innocent of these charges—
The Defendant: Yes.
The Court: — and the burden rests on the People, through the Assistant Prosecutor, to prove that you are guilty of these charges beyond a reason able doubt with competent evidence shown at the trial?
The Defendant: Yes.
The Court: Do you understand that at a trial, whether it be by court or by jury, you do have certain rights? Namely: You have the right to have your counsel represent you at all times. You have the right to be confronted by all the witnesses that would be called to testify against you. You have the right to cross-examine those witnesses. You have the right to present your own witnesses to testify for you, and this court would compel their attendance in court to testify at no additional expense to you. You do have the right at the trial to give testimony yourself, and you have the right at the trial to remain silent, from which silence no inferences of guilt can be drawn by either the court or the jury.
So I do ask whether or not you do understand you have all of these rights?
The Defendant: Yes, I do.
We hold that the court’s questioning in this case was adequate. The right to a trial by the court is but one of the ten rights listed in a subsection of the court rule which is designed to impress on the accused the fact that by his plea of guilty he waives his right to a trial. See Guilty Plea Cases, 395 Mich 96, 122; 235 NW2d 132 (1975). While the language of the court rule has changed since the Court’s decision in Guilty Plea Cases, the primary purpose remains the same. On appeal, the issue is whether it appears on the record that the defendant was informed of such constitutional rights and incidents of a trial as reasonably to warrant the conclusion that he understood what a trial is and that by pleading guilty he was knowingly and voluntarily giving up his right to a trial and such rights and incidents. Guilty Plea Cases, supra, p 122. The defendant was adequately informed here.
Defendant next argues that the trial court did not state adequate reasons for the sentence imposed.
In People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983), the Supreme Court required that trial courts state on the record which criteria were considered and what reasons support the court’s decision regarding the length and nature of the punishment imposed. Included among the proper criteria for determining an appropriate sentence are: (1) the disciplining of the wrongdoer; (2) the protection of society; (3) the potential for reformation of the offender; and (4) the deterring of others from committing like offenses. Coles, supra.
Sentencing in the present case took place on March 21, 1985. On that date, defendant pled guilty to a probation violation. After sentencing in regard to the probation violation, the trial court continued sentencing ”[r]elative to the charge of Delivery of a Controlled Substance and being an Habitual Offender Third Offense.” The court then stated the reasons supporting its decision and the criteria considered in determining the appropriate sentence for defendant. However, instead of immediately stating that it had determined that a sentence of from two to fourteen years was appropriate, the court first imposed a sentence of from IV2 to seven years on the underlying conviction for delivery of a controlled substance. However, the court immediately vacated that sentence and sentenced defendant under the habitual offender statute to from two to fourteen years.
Defendant argues that the trial court’s sentencing reasons were generally inadequate. He alleges that the court’s reasons were given only in support of the sentence for the underlying conviction, and, thus, that the trial court erred by failing to state any reasons for imposing the final sentence based on defendant’s habitual offender status. Defendant also contends that the minimum sentence should have remained within the recommended range provided by the sentencing guidelines and that only the maximum sentence should have been affected by his habitual offender status.
Defendant’s arguments are based in part on several apparent misconceptions regarding sentencing when an habitual offender is involved. We take this opportunity to clear up such misconceptions. First, the sentencing guidelines are not applicable to habitual offenders. Second, if a defendant’s habitual offender status is established before sentencing on the underlying crime, then only one sentencing is to take place and only one sentence is to be imposed.
The habitual offender statutes, MCL 769.10; MSA 28.1082, MCL 769.11; MSA 28.1083, MCL 769.12; MSA 28.1084, and MCL 769.13; MSA 28.1085, provide for the enhancement of the punishment which is available and which may be imposed on a defendant if his conviction is not for his first felony or attempted felony conviction. While the prosecution bears the burden of proving at a jury trial that the defendant is an habitual offender, habitual offender status is not a crime in itself. A defendant who is an habitual offender is still sentenced for the underlying offense. The statutes merely provide new limitations on the length of the sentence which may be imposed upon conviction of the underlying offense. When sentencing a defendant, the sentencing court can consider the prior convictions along with all other background material when it considers the relevant criteria and determines an appropriate sentence for the defendant. That sentence is required to fall within the range established by the habitual offender statutes.
There is one situation where a defendant will be sentenced twice. That situation occurs when a defendant’s habitual offender status is not established until after he is convicted and sentenced on the underlying offense. In such a situation, upon conviction for the underlying offense, the defendant is sentenced in the normal manner. Once habitual offender status is established, however, the sentence on the underlying conviction is vacated and the defendant is resentenced. See MCL 769.13; MSA 28.1085. A resentencing must occur because the court has gained new knowledge about the defendant and because the range of sentencing options available to the court has been changed by application of the habitual offender statutes. The court will have knowledge of the defendant’s prior convictions and will be able to impose a higher maximum sentence in most cases. When a higher maximum sentence is available, a higher minimum sentence may also be available. See People v Tanner, 387 Mich 683; 199 NW2d 202 (1972). The knowledge of defendant’s convictions may or may not lead the court to conclude, for instance, that there is a greater need to discipline that offender than the court had previously thought. This depends on the total circumstances of the case. Based on all relevant factors, the court must exercise its sentencing discretion and resentence the defendant.
In the present case, at the time of sentencing it had already been established that the defendant was an habitual offender. Thus, the sentencing judge should have exercised her discretion in light of all the relevant facts and circumstances, including the knowledge of defendant’s prior convictions and the sentencing options available to her. We are convinced that she did. While she did not technically follow the appropriate procedure, the judge realized and stated when giving her reasons for the sentence imposed that the sentencing would be done relative to the delivery conviction and to the habitual offender conviction. We can discern no prejudice to defendant in this case. The trial judge obviously realized that the ultimate sentence would be established pursuant to defendant’s habitual offender status. We are convinced that she exercised her discretion with that in mind.
Moreover, while her reasons for the sentence were not as elaborate as we would prefer, they were adequate to enable us to review her exercise of discretion in sentencing. In light of defendant’s past criminal history, the sentencing judge noted her concern for deterring others from committing similar acts, her concern for protecting the community from further similar conduct, and her concern for providing adequate punishment. The judge exercised her discretion and imposed a final sentence of from two to fourteen years. The trial court did not abuse its discretion to the extent that it shocks the conscience of this Court. People v Coles, supra, p 550.
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Per Curiam.
Plaintiff, Eddie Robertson, appeals as of right from two separate orders issued by two different Wayne County circuit judges in unrelated cases. On November 20, 1981, Judge Myron Wahls granted accelerated judgment against plaintiff on his claim of appeal from a decision of the Detroit Civil Service Commission. On that same day, Judge Joseph B. Sullivan entered summary judgment against plaintiff in an action in which plaintiff sought injunctive relief against his employer, City of Detroit, Department of Transportation. Plaintiff’s two appeals have been consolidated before this Court.
We will first address plaintiff’s claim of appeal from a decision of the Detroit Civil Service Commission.
In the trial court, plaintiff cited Const 1963, art 6, § 28 as the relevant authority guaranteeing him the right to seek judicial review from the Detroit 'Civil Service Commission’s ruling and granting jurisdiction to the circuit court to hear that appeal. Article 6, § 28 provides:
"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.”
Defendant moved for accelerated judgment under GCR 1963, 116, for the reasons that: (1) the circuit court lacked jurisdiction of the subject matter and (2) the claim is barred by the statute of limitations. The trial court granted defendant’s motion on the basis that plaintiffs claim of appeal was not timely filed since more than 20 days had passed since the entry of the order or judgment appealed from, GCR 1963, 701.2. Plaintiff appeals this order granting defendant’s motion.
We affirm the trial court’s order granting accelerated judgment, but for the reason that the circuit court lacked subject matter jurisdiction. "Where, as here, the trial judge achieves the right result, but assigns the wrong reason therefor, the result will not be disturbed on appeal. Peninsular Construction Co v Murray, 365 Mich 694, 699; 114 NW2d 202 (1962), inter alia ” Gilbert v Grand Trunk W R Co, 95 Mich App 308, 313; 290 NW2d 426 (1980).
The authority for cities to create civil service commissions is provided in Const 1963, art 11, § 6. Pursuant to this constitutional provision, the Michigan Legislature enacted MCL 117.4i(7); MSA 5.2082(7) as part of Michigan’s Home Rule Act, which permits home-rule cities to provide for the establishment of a civil service commission in their charters. The actual operation of general municipal civil service commissions, however, is not governed by statute, although such a statute has been enacted with regard to municipal fire and police employees. See the firemen and policemen civil service act, MCL 38.501 et seq.; MSA 5.3351 et seq. where a police or fire employee disputes a ruling of the civil service commission, at least with regard to certain disciplinary actions, that employee may seek judicial review of the commission’s decision within 90 days of the commission’s ruling in "the circuit court of the county wherein the city, village or municipality is situated”. MCL 38.514; MSA 5.3364. No comparable statutory provision exists with regard to non-police and non-fire municipal employees.
Moreover, the chapter of the Michigan Administrative Procedures Act providing for judicial review, MCL 24.301 et seq.; MSA 3.560(201) et seq., fails to provide plaintiff a right of appellate review since that act does not apply to municipal administrative agencies. Hendricks v Sterling Heights Police & Fire Dep’t Civil Service Comm, 85 Mich App 646, 652; 272 NW2d 170 (1978), lv den 405 Mich 826 (1979); Justewicz v Hamtramck Civil Service Comm, 65 Mich App 555, 561; 237 NW2d 555 (1975); Montiy v Civil Service Board of City of East Detroit, 54 Mich App 510, 515; 221 NW2d 248 (1974).
Plaintiffs reliance on Const 1963, art 6, § 28 is misplaced. As noted by the Supreme Court in McAvoy v H B Sherman Co, 401 Mich 419, 443; 258 NW2d 414 (1977), reh den 402 Mich 953 (1977), the phrase "as provided by law” contained in Const 1963, art 6, § 28 "vests the Legislature with the authority to exert substantial control over the mechanism of how administrative decisions are to be appealed”. As noted, the Legislature has failed to specifically exert any control over the appellate rights and procedures stemming from a decision of a general municipal civil service commission. The circuit court, therefore, had no jurisdiction over plaintiffs dispute with defendant commission.
Contrary to plaintiff’s argument on appeal, the trial court did not abuse its discretion by issuing the order "with prejudice”. Under the circumstances, no purpose would be served by leaving plaintiff free to refile this same suit against defendant.
We now address plaintiffs suit against the City of Detroit, Department of Transportation.
Plaintiff filed his petition for injunctive relief on May 21, 1979, seeking only injunctive relief in the form of an order enjoining defendant from harassing him during the pendency of his appeal to this Court from a decision of the Michigan Employment Relations Commission. This Court’s decision in that case, Robertson v City of Detroit, 92 Mich App 377; 284 NW2d 808 (1979), lv den 409 Mich 884 (1980), was released on September 6, 1979.
Approximately two years after the petition for injunctive relief had been filed, the trial court dismissed plaintiffs petition for the reason that his cause of action for injunctive relief had become moot, given this Court’s disposition of September, 1979. At the hearing on defendant’s motion to dismiss, plaintiff apparently sought to amend his complaint to include a claim for damages. The trial court denied the motion. Plaintiff now urges that this motion was improperly denied.
We disagree. The denial of a motion to amend the pleadings will not be disturbed absent an abuse of discretion. Cobb v Mid-Continent Telephone Service Corp, 90 Mich App 349, 353; 282 NW2d 317 (1979)’ Here, plaintiff allowed over two years to elapse before making any such request. In addition, plaintiff’s original petition was very narrowly drawn, seeking only injunctive relief for a limited period of time. Under the circumstances, the trial court did not abuse its discretion.
The trial court did not err by granting defendant’s motion for summary judgment. Once this Court’s decision in Robertson v City of Detroit, supra, was released, there was no longer any issue of material fact. GCR 1963, 117.2(3). This order of summary judgment was properly granted "with prejudice”. As far as plaintiff’s petition for injunctive relief is concerned, no purpose would be served by allowing plaintiff to refile.
The decisions of the trial courts are affirmed. | [
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Bronson, J.
Defendant appeals by leave granted from a circuit court order affirming district court judgments in favor of plaintiffs. We affirm.
The facts are undisputed. On December 18, 1978, defendant, an employee of the Prince Corporation, injured his right knee playing touch football during his lunch break. Defendant received medical treatment for his injuries from plaintiffs, Zeeland Community Hospital and Jeffrey Green, a physical therapist. Defendant filed a petition for disability compensation benefits with the Bureau of Workers’ Disability Compensation on February 6, 1979. The employer initially denied liability on the ground that defendant’s injuries did not arise out of or in the course of defendant’s employment. The employer eventually agreed to redeem its liability for $15,000. The redemption order provided that $4,065.34 be paid for defendant’s medical expenses, a 15% attorney fee on the balance of the $15,000 redemption be paid to defendant’s attorney, and the balance be paid to defendant for future medical expenses and weekly benefits._
Defendant tendered to plaintiffs payment for their services, less a 15% "attorney fee”. Such a fee was not similarly deducted from defendant’s payments to certain other doctors who had provided medical services. Plaintiffs refused to accept less than full payment for their services.
Defendant filed petitions for determination of rights with the Bureau of Workers’ Disability Compensation, seeking approval of the prorated 15% fee charged by defendant’s attorney against plaintiffs. Notice of hearing was served on both plaintiffs, but neither responded. Following a hearing on each petition, the hearing referee entered orders approving the 15% prorated attorney fee against plaintiffs’ bills.
Meanwhile, plaintiffs had commenced the instant suits in district court, seeking judgment for the full amount of their fees. The district court granted plaintiffs summary judgment and entered judgments for the full amount due to plaintiffs. The circuit court affirmed the district court. Defendant’s application for leave to appeal to this Court was held in abeyance pending decision in Boyce v Grand Rapids Asphalt Paving Co, 117 Mich App 546; 324 NW2d 28 (1982), lv den 417 Mich 1023 (1983).
Defendant first claims that the district court lacked subject matter jurisdiction over plaintiffs’ claims because exclusive jurisdiction to decide the fee controversy vested in the workers’ compensation bureau (WCB) pursuant to MCL 418.841; MSA 17.237(841). We disagree.
MCL 418.315; MSA 17.237(315) states that the employer shall furnish medical treatment to an employee injured during the course of employment. If the employer fails to do so, the workers’ compensation bureau has two options: (1) the bureau may order the employer to reimburse the employee for reasonable expenses paid by the employee or (2) the bureau may order the employer to make payments "in behalf of the employee to persons to whom the unpaid expenses may be owing” (medical provider). MCL 418.315(1); MSA 17.237(315X1).
Prior to 1963, there was no authorization for direct payments to the medical provider. Thus if a medical provider did not receive payment, his or her only remedy was to institute suit against the employee. The administrative hearing was restricted to the question of whether the employee could be reimbursed by the employer for the incurred medical expenses. See Boyer v Service Distributors, Inc, 366 Mich 319; 115 NW2d 101 (1962).
In 1963 the statute was amended to provide for direct payments to the medical provider. The statute does not, however, state whether or how a medical provider may enforce the direct payment provision. In contrast, some jurisdictions specifically provide a medical provider the right to petition the appropriate administrative body for enforcement of an award of medical benefits. See Orthopedic Specialists, Inc v Great Atlantic & Pacific Tea Co, Inc, 388 A2d 352 (RI, 1978); Bell v Samaritan Medical Clinic, Inc, 60 Cal App 3d 486; 131 Cal Rptr 582 (1976). In other jurisdictions the medical provider must await pressing his claim until compensation proceedings have been at least initiated by the employee or employer. Grantham v Coleman Co, 190 Kan 468; 375 P2d 629 (1962), modified in other respects 190 Kan 634; 376 P2d 908 (1962); Patterson Steel Co v Smith, 353 P2d 126 (Okla, 1960). New York requires a medical provider to collect its fee from the employer rather than the claimant, pending judgment on the employee’s claim against the employer. If the employee loses his or her claim, the medical provider can then file suit in court to recover payment from the employee for services rendered. Ellis Hospital v Symonds, 96 Misc 2d 643; 409 NYS2d 630 (1978).
The Michigan Legislature has not clearly expressed its intent regarding the procedure to be followed by a medical provider seeking payment for services rendered to a workers’ compensation claimant. In Boyce v Grand Rapids Asphalt Paving Co, supra, a hospital which was unsatisfied with the hearing referee’s order concerning payment for services rendered to a claimant appealed to the Workers’ Compensation Appeal Board. The question of whether jurisdiction lay with the WCB or a court did not arise since the hospital pursued the administrative remedy.
Defendant argues that the plaintiffs should have similarly sought relief within the WCB and that their failure to do so precluded the district court from assuming jurisdiction over plaintiffs’ claims. In support, defendant cites appellate decisions upholding the bureau’s exclusive jurisdiction. Dixon v Sype, 92 Mich App 144, 150; 284 NW2d 514 (1979); Maglaughlin v Liberty Mutual Ins Co, 82 Mich App 708, 711-712; 267 NW2d 160 (1978), lv den 403 Mich 851 (1978); St Paul Fire & Marine Ins Co v Littky, 60 Mich App 375, 378; 230 NW2d 440 (1975); Herman v Theis, 10 Mich App 684, 692; 160 NW2d 365 (1978), lv den 381 Mich 772 (1968). The issues to be resolved in the cited cases much more intimately involved the employer-employee relationship.
More analogous to the instant case is Bonney v Citizens Mutual Automobile Ins Co, 333 Mich 435; 53 NW2d 321 (1952), where the Supreme Court held that the circuit court had jurisdiction to determine whether the plaintiffs-employees could recover under defendant’s automobile insurance policy where defendant denied coverage under the clause excepting coverage where workers’ compensation benefits were recoverable. The Court stated:
"The statutory grant of exclusive jurisdiction to the workmen’s compensation commission does not deprive a court of the jurisdiction to determine rights arising out of an entirely different relationship and in an entirely different type of proceeding in which the employer and employee relationship is only incidentally involved.” 333 Mich 440. Accord, Fletcher v Harafajee, 100 Mich App 440, 443; 299 NW2d 53 (1980).
The Legislature may have intended to give a medical provider a statutory right to petition the WCB to enforce a direct payment order. The issue in the instant case, however, is whether the Legislature intended to abrogate the medical provider’s common-law right to enforce its contract with a patient to whom it has rendered services. The statute does not clearly express such an intent; moreover, this Court will not extend a statute by implication to abrogate an established right of action at common law. Bandñeld v Bandñeld, 117 Mich 80; 75 NW 287 (1898)._
We find no indication that the Legislature, by granting authority to the WCB to order the employer to make direct payments to a medical provider, intended to vest exclusive jurisdiction in the WCB over a medical provider’s claims for payment for services rendered. We hold that the district court had jurisdiction over plaintiffs’ claims that defendant tender the full amounts of his medical bills.
Having concluded that the district court had jurisdiction over plaintiffs’ claims, we must now decide whether the district court erred in ruling that the WCB did not have authority to charge plaintiffs with a pro-rata portion of defendant’s attorney’s fees. The court relied on Boyce v Grand Rapids Asphalt Paving Co, supra, where this Court summarily rejected the plaintiff’s argument that the defendant hospital should be responsible for the payment of plaintiffs counsel’s fees. The Court stated:
"Where one of several persons, all of whom are equally interested in the results of a suit, employs an attorney to conduct the case for him and the benefit of the attorney’s services from the nature of the case extends to all interested parties, the other parties do not, merely by accepting the benefits of the attorney’s services without objection, become liable for the attorney’s fees.” 117 Mich App 549.
This Court also noted that, although subsequently amended, under the WCB rule in effect at the relevant time, 1972 AACS, R 408.44, the claimant’s attorney was precluded from recovering a percentage fee for the portion of the compensation recovery which represented accrued medical expenses. Id., 551-552. Since the instant administrative action similarly occurred prior to the rule amendment, the referee violated the bureau’s rule when he awarded defendant’s attorney a percentage fee based on the recovery for medical expenses.
Defendant argues that plaintiffs should nonetheless be responsible for a portion of defendant’s attorney fee since they received reimbursement for unpaid medical expenses as a result of defendant’s attorney’s efforts in successfully pursuing defendant’s workers’ compensation claim against his employer. Defendant cites Aetna Casualty & Surety Co v Starkey, 116 Mich App 640; 323 NW2d 325 (1982), lv den 417 Mich 929 (1983), where this Court held that various medical providers could be charged with a pro-rata portion of attorney fees incurred in defending the claimant against an action brought by his insurer under a no-fault insurance policy. Ordinarily the attorney would have collected his fee from the uninsured motorist benefits, but because of a set-off provision the only funds available were received by the medical providers under the personal protection insurance benefit provisions. The Court stated:
"Finally, we reject the contention of the medical providers that they never requested the assistance of defendant’s attorney and therefore have nó obligation to him. It can be said that medical providers would have an obligation to the attorney, his lien notwithstanding, on the theory of unjust enrichment. The providers knew that the attorney was expending time and energy in substantiating the insurance claims which led to their payment by Aetna. They were willing to accept his assistance in the knowledge that it would result in their payment. Only when it became clear that the attorney would have to assert his lien against the only existing fund, the PIP benefits, did the providers move to deny the attorney his share.” 116 Mich App 648.
Accord, Kaiser Foundation v Worker’s. Compensation Appeal Bd, 91 Cal App 3d 493; 154 Cal Rptr 760 (1979) (medical lien claimant who receives payment of his lien by reason of the professional skill of the injured worker’s attorney may be required to bear a fair share of the attorney’s costs).
Although we find merit in the "unjust enrichment” argument, we are unable to discern any legislative intent to require a third-party medical provider to pay a pro-rata share of an injured worker’s attorney’s fees. The pertinent portion of the statute provides:
"If the employer fails, neglects, or refuses [to furnish medical care to the employee], the employee shall be reimbursed for the reasonable expenses paid by the employee or payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the hearing referee. The hearing referee may prorate attorney fees at the contingent fee rate paid by the employee.” MCL 418.315(1); MSA 17.237(315X1).
Since the clause concerning attorney fees follows the clause concerning the employer’s refusal to pay the employee’s reasonable medical expenses, the final sentence is logically construed to require either the employer or the insurance carrier to pay a portion of defendant’s attorney’s fees. Contra, MCL 418.821; MSA 17.237(821), which expressly authorizes the assessment of a pro-rata share of a claimant’s attorney’s fees against an insurance company which seeks to enforce an assignment given it by the claimant-employee in exchange for an advance payment under a group hospitalization insurance policy.
Our reading of the relevant statutory provisions does not indicate that the Legislature intended to require plaintiffs to pay a portion of defendant’s attorney’s fees, notwithstanding that plaintiffs may have derived some benefit from the attorney’s efforts. The district court properly ruled that plaintiffs were entitled to the entire amounts of their bills.
Affirmed.
"Any controversy concerning compensation shall be submitted to the bureau and all questions arising under this act shall be determined by the bureau. The director shall be deemed to be an interested party in all workmen’s compensation cases in questions of law.”
Herman v Thies, supra (an injured employee’s negligence action against his employer was barred by the exclusive remedy provision); St Paul Ins Co v Littky, supra (whether an employee was covered under the policy issued by his employer’s insurance carrier was a question to be decided by the WCB); Maglaughlin v Liberty Mutual, supra (whether a workers’ compensation insurer must pay benefits pending appeal to the WCAB was a question for the bureau); Dixon v Sype, supra (an injured employee’s action against her co-employee must first be heard by the WCB to determine if the injuries arose out of the course of her employment). | [
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Per Curiam.
Defendant was convicted by a jury of first-degree criminal sexual conduct, MCL 750.520b(l)(a); MSA 28.788(2)(l)(a), and was sentenced to a prison term of from 6 to 20 years. Defendant appeals as of right.
Defendant argues that the trial judge erred by admitting the testimony of a physician which related the victim’s account of the offense and identified the defendant as the perpetrator.
The physician was Dr. Susan Scheurer, Director of the Family Assessment Clinic at Michigan State University. The victim was the nine-year-old daughter of defendant’s wife. The victim was referred to the clinic by a doctor from the emergency room of the Ingham County Medical Center who examined the victim and by the Ingham County Department of Protective Services for Children.
Defendant argues that the testimony of Dr. Scheurer, which contained the history of the sexual abuse related to her by the victim, was inadmissible hearsay. The trial court ruled, and the prosecutor argues, that this testimony was admissible under the medical treatment exception to the hearsay rule. MRE 803 provides:
"The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
"(4) Statements made for purposes of medical treatment ór medical diagnosis in connection with treatment. Statements made for purposes of medical treatment or medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably necessary to such diagnosis and treatment.” (Emphasis supplied.)
The defendant does not suggest that the victim’s statements to Dr. Scheurer were not made for medical treatment or medical diagnosis. Rather, defendant asserts that these statements were not reasonably necessary to such diagnosis and treatment. Specifically, defendant argues that Dr. Scheurer’s testimony, which identified the defendant as the perpetrator and described the context in which the acts were committed, was not necessary for the victim’s medical treatment and diagnosis. Defendant also contends that admission of testimony such as Dr. Scheurer’s goes far beyond the scope of the exception and will result in a revival of the tender years exception overruled in People v Kreiner, 415 Mich 372; 329 NW2d 716 (1982).
Since there are no Michigan cases on point, we look to the federal rules and decisions for guidance. FRE 803(4) is identical to MRE 803(4), except that FRE 803(4) is broader in that it only restricts the exception to statements "insofar as reasonably pertinent to diagnosis or treatment”. FRE 803(4). (Emphasis supplied.) In United States v Iron Shell, 633 F2d 77 (CA 8, 1980), cert den 450 US 1001; 101 S Ct 1709; 68 L Ed 2d 203 (1981), the Eighth Circuit Court of Appeals discussed the application of FRE 803(4) to the testimony of an examining physician which contained a repetition of a nine-year-old victim’s description of an assault as related to the physician by the victim. The court stated that there are two independent rationales for the medical treatment exception. The first is that the patient’s statements are likely to be reliable because the patient has a strong motivation to tell the truth, as diagnosis and treatment depend in a large part upon what the patient says to the physician. The second rationale is that facts reliable enough to serve as a basis for medical diagnosis are also reliable enough to escape the hearsay proscription. Since life and death decisions are made by physicians in reliance on the facts related by the patient, they should have sufficient trustworthiness to be admissible in a court of law. Consequently, the court in Iron Shell fashioned a two-part test to determine whether statements were "reasonably pertinent” to diagnosis or treatment. First, the declarant’s motive must be consistent with the purpose of the rule; and second, it must be reasonable for the physician to rely on the information in diagnosis and treatment. Iron Shell, supra, pp 83-84. On the basis of this two-part test, the court held that the statements made to the physician were reasonably pertinent to diagnosis and treatment. Iron Shell, supra, pp 84-85.
A similar analysis can be applied to the facts of the instant case under MRE 803(4). First, there is nothing in the record to indicate that the victim’s motive in making the statements to Dr. Scheurer was other than as a patient seeking treatment. The age of the patient mitigates against a finding that the statements were not within the traditional rationale of the rule. Iron Shell, supra, p 84. Further, the Family Assessment Clinic deals with the special problems of children. Therefore, Dr. Scheurer would be able to effectively judge the reliability of a child’s description of a sexual assault. In fact, Dr. Scheurer testified that the victim related the story in "childlike language” that was consistent with her age. Consequently, the statements made by the victim to Dr. Scheurer were sufficiently reliable to justify bringing them within the rationale of the medical treatment exception to the hearsay rule.
Secondly, the information elicited from the victim by Dr. Scheurer was necessary to her diagnosis and treatment. The defense argues, however, that it was not necessary to identify the defendant for purposes of treatment. The general rule is that statements as to fault do not ordinarily qualify as necessary for treatment. Iron Shell, supra, p 84; Bradbury v Ford Motor Co, 123 Mich App 179, 187; 333 NW2d 214 (1983). However, in this case, it was necessary for Dr. Scheurer to identify the source of the victim’s sexual abuse. Dr. Scheurer testified that the role of her clinic is to assess difficult parent-child problems. In a sexual abuse case, the clinic diagnoses and treats the medical, physical, developmental, and psychological components of a sexual abuse case. There is no way in which the clinic could adequately diagnose and treat the impact of sexual abuse on a child unless it was known that the source of the abuse was a family member. Part of the treatment that was recommended for the victim was that she begin seeing a child psychologist and that she be removed, through the probate court, from her home. This treatment would have been impossible had the clinic not known that the source of the sexual abuse was the victim’s stepfather. Consequently, the statements elicited from her were reasonably necessary to her diagnosis and treatment. We therefore hold that the trial court correctly admitted the testimony of Dr. Scheurer under MRE 803(4).
Defendant’s contention, that the admission of this testimony evaded the holding of People v Kreiner, 415 Mich 372; 329 NW2d 716 (1982), is without merit. In Kreiner, the Supreme Court found that the tender years exception did not survive the adoption of the Michigan Rules of Evidence. The Court held that the admission of a hearsay statement by a child of tender years is proper only if the foundational criteria of one of the hearsay exceptions are met. In this case, the trial judge found that the testimony was admissible within MRE 803(4). Therefore, the trial judge was not evading the holding of Kreiner.
Defendant also argues that allowing the use of the medical treatment exception in the instant case will enlarge the scope of such exception. Defendant argues that because the medical treatment exception is not by its terms limited to doctors the potential sources of hearsay will be virtually unlimited. He concludes that such sources could even include the investigating police officers who have made the decision to refer the victim for medical treatment. We disagree with this argument. As the prosecutor points out, the scope of the rule becomes much narrower when the statement is not made directly to a physician by a patient seeking diagnosis or treatment. The treatment that a police officer can give is limited to finding medical assistance for the victim. Much more information is necessary when there is a psychiatric component to the diagnosis and treatment. While disclosure of the identity of the assailant would be reasonably necessary for psychiatric treatment, statements for the purpose of treatment of a surface injury would seldom, if ever, require the disclosure of the identity of the person who caused the injury.
Defendant claims that he was denied adequate notice of the charge because the victim was unable to testify to the exact date of the offense. Since defendant made no objection at trial to the information or to the prosecutor’s amendment of the information, defendant has not preserved this issue for review. People v Bowyer, 108 Mich App 517, 523; 310 NW2d 445 (1981), lv den 414 Mich 851 (1982), and the cases cited therein.
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Per Curiam.
Plaintiff appeals as of right from a grant of an accelerated judgment on her claims against defendants. Plaintiff claims that the trial judge improperly applied the statute of limitations for legal malpractice, MCL 600.5805(4); MSA 27A.5805(4), to her claims rather than statutes governing complaints alleging breach of contract or general negligence.
Plaintiff hired defendant Dilley and the law firm of which he was a member to act as her attorney in a lawsuit brought against her by Ethel and Dorothy Hartman. At a scheduled deposition, plaintiff and defendant Dilley had a serious disagreement which resulted in Dilley’s withdrawing as plaintiffs attorney a few days later. The suit against plaintiff was ultimately dismissed.
In her first complaint, plaintiff alleged legal malpractice. In her first amended complaint, plaintiff alleged that she contacted defendant Dilley and "requested that he defend her” against the claim brought by the Hartmans. She and defendant Dilley then "entered into a contractual agreement in which [he] agreed to represent [her] in the aforementioned lawsuit”. Defendant Dilley and the attorney for the Hartmans signed a stipulation providing that the discovery depositions of the Hartmans and of plaintiff would be taken on April 19, 1978. When she arrived at the deposition, defendant Dilley insisted that plaintiff sign a letter authorizing the release of a tape to the Hartmans in connection with the lawsuit. Plaintiff refused to sign the letter. Plaintiff claimed that defendant Dilley "breached his contract with plaintiff on April 19, 1978, when he refused to take the depositions in pursuance with the contractual agreement with his client, Martha Barnard, contrary to his signed stipulation, and in defiance of the order of Judge Simhauser”.
The trial judge (in this case) determined that plaintiffs claim was one sounding in malpractice and not in contract. The type of interest allegedly harmed is the focal point in determining which limitation period controls. Adkins v Annapolis Hospital, 116 Mich App 558, 563; 323 NW2d 482 (1982). The applicable period of limitation depends upon the theory actually pled when the same set of facts can support either of two distinct causes of action. Wilkerson v Carlo, 101 Mich App 629, 631-632; 300 NW2d 658 (1980).
In her first amended complaint, plaintiff alleged only that a contract to represent her in a specific action was made between her and defendant Dilley. This contract was not a "special agreement” as that term was used in Stewart v Rudner, 349 Mich 459, 468; 84 NW2d 816 (1957). It was not a contract to perform a specific act, but one to exercise appropriate legal skill in providing representation in a lawsuit. Her claim is that damages flowed not from his failure to represent her, but from his failure to represent her adequately. This is a claim grounded on malpractice and malpractice only.
Plaintiff also claimed that defendant Dilley was liable to her based on a general theory of negligence. This claim was properly rejected by the trial court. To establish a tort, one must first establish a duty to the claimant imposed on the alleged tortfeasor. The only claim of duty contained in plaintiffs first amended complaint arises out of the attorney-client relationship between plaintiff and defendant Dilley. Where the alleged duty arises out of such a relationship, the tort claim is one for malpractice and malpractice only. Affirmed. | [
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AFTER REMAND
Before: Marilyn Kelly, P.J., and W. P. Cynar and K. T. Wilder, JJ.
W. P. Cynar, J.
In 1984, defendant pleaded guilty of voluntary manslaughter, MCL 750.321; MSA 28.553, and of being a fourth-felony habitual offender, MCL 769.12; MSA 28.1084, in exchange for the dismissal of first-degree murder charges, MCL 750.316; MSA 28.548, in the beating death of his sixteen-year-old girl friend. In 1993, defendant was resentenced to a term of 70 to, 116 years. This is defendant’s third appeal as of right. We affirm in part and remand for modification of defendant’s sentence and for correction of the presentence report.
Defendant first argues that his sentence is disproportionate. We disagree.
Although the sentencing guidelines do not apply to habitual offender convictions, the trial court must compute the guidelines for the underlying offense. People v Cutchall, 200 Mich App 396, 409; 504 NW2d 666 (1993). Contrary to what the trial court apparently believed, the guidelines are a helpful tool to be considered in habitual offender cases. People v Derbeck, 202 Mich App 443, 446-449; 509 NW2d 534 (1993). However, because the fourth-felony habitual offender statute, MCL 769.12; MSA 28.1084, authorizes enhancement of the statutory maximum up to any term of years or life, comparing the degree of enhancement authorized by the statute to the range recommended by the guidelines is of limited utility. Derbeck at 448-449.
In this case, the guidelines’ range for the underlying offense of voluntary manslaughter was seven to ten years. As will be seen below, defendant’s amended sixty-year minimum sentence is six times the upper end of the range. The trial court justified its sentence with the brutality of the crime, defendant’s assaultive record, the danger he repre sents to society, and the court’s perception that defendant had not changed much in his ten years in prison. We find no abuse of discretion.
Next, defendant argues that the trial court erred in refusing to order that a totally new presentence information report be prepared, in refusing to strike certain matters from the supplemental report, and in leaving legible materials that it had agreed to strike. Although we agree in part, resentencing is not required.
There is no requirement that a completely new report be prepared for resentencing. A supplemental report was properly prepared in this case in compliance with People v Triplett, 407 Mich 510, 511; 287 NW2d 165 (1980). As required by the statute, inaccuracies were "stricken.” See MCL 771.14(5); MSA 28.1144(5); see also MCR 6.425(D)(3) (a). There is no requirement that information to which challenges were sustained be made completely illegible at the time of sentencing, as long as it is "stricken” and the court does not consider it.
With regard to defendant’s juvenile record, the trial court refused to strike a reference to assault and possession of marijuana with subsequent probation. The court stated on the record that the information had "no bearing at all on the sentence and it will not be considered on the sentence.” The trial court nevertheless declined to strike the entry because the court thought that the information might be useful to the Department of Corrections for some unspecified purpose.
We agree with defendant that the court erred in refusing to strike information that it deemed irrelevant. See MCL 771.14(5); MSA 28.1144(5); see also MCR 6.425(D)(3)(a). However, because the information was not considered, the error was harmless beyond a reasonable doubt. People v Fisher, 442 Mich 560, 567, n 4; 503 NW2d 50 (1993). Nevertheless, on remand, the information should be stricken and a corrected copy of the report should be transmitted to the Department of Corrections. People v Swartz, 171 Mich App 364, 380-381; 429 NW2d 905 (1988); People v Taylor, 146 Mich App 203, 205-206; 380 NW2d 47 (1985). We stress that, because the court deemed the information irrelevant, defendant is not entitled to resentencing.
Defendant next argues that the trial court erred in considering disciplinary credits in calculating his minimum sentence because, as an habitual offender, he would not be eligible to earn disciplinary credits. We agree.
Persons sentenced as habitual offenders are not eligible for parole before the expiration of the minimum sentence except by written permission of the sentencing judge or the judge’s successor. MCL 769.12(3); MSA 28.1084(3). Therefore, they may not earn disciplinary credits. People v Lincoln, 167 Mich App 429, 431; 423 NW2d 216 (1987). The trial court therefore erred in considering such credits in determining whether the minimum sentence exceeded defendant’s life expectancy. Rather than reversing, however, we remand for amendment of the sentence to correspond to the 60- to 100-year term that the trial court stated it would impose if this Court determined that consideration of disciplinary credits was improper.
Lastly, defendant argues that his sentence should be set aside because it exceeds his life expectancy. We disagree. Under the amended sentence, defendant will be eligible for parole when he is eighty-five. Because we are bound by precedent holding that a defendant has a "reasonable prospect” of living into his early nineties, the amended sentence does not violate People v Moore, 432 Mich 311, 329; 439 NW2d 684 (1989). See People v Weaver (After Remand), 192 Mich App 231, 234-235; 480 NW2d 607 (1991).
Affirmed in part and remanded for modification of defendant’s sentence and correction of the presentence report in accordance with this opinion. We do not retain jurisdiction.
Marilyn Kelly, P.J., concurred.
This Court initially affirmed defendant’s sentence and leave was denied by the Supreme Court. People v Martinez, 147 Mich App 94; 382 NW2d 741 (1985), lv den 425 Mich 873 (1986). However, defendant’s subsequent motion for resentencing was granted in light of People v Moore, 432 Mich 311; 439 NW2d 684 (1989), and he again appealed. This Court held that convictions obtained without counsel improperly had been taken into account and remanded for resentencing before a different judge. People v Martinez, 193 Mich App 377, 387; 485 NW2d 124 (1992). It is from that sentence that defendant now appeals. | [
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Per Curiam.
In this putative class action lawsuit, plaintiffs, Tanya J. Mudge and Jonathon Brown, alleged that defendants, Macomb County, Macomb County Sheriff’s Department, and William Hackel, the Macomb County Sheriff, violated the Prisoner Reimbursement to the County Act (prca), MCL 801.81 et seq.; MSA 28.1770(1) et seq., by obtaining and implementing ex parte orders seizing plaintiffs’ bond monies for reimbursement of the expense of plaintiffs’ incarceration in the Macomb County jail. Plaintiffs further alleged that they were entitled to monetary damages and injunctive relief under 42 USC 1983 for defendants’ violation of their federal civil rights. Defendants moved for summary disposition on various grounds. The trial court denied defendants’ motion, but, on rehearing, granted the motion and dismissed plaintiffs’ complaint with prejudice. Plaintiffs appeal as of right.
i
The prca authorizes a county, in its discretion, to seek reimbursement for incarceration expenses of not more than $30 a day from jail prisoners by filing a civil action in either the district or the circuit court within six months of a prisoner’s release from the county jail. MCL 801.83(l)(a), 801.87(1); MSA 28.1770(3)(l)(a), 28.1770(7)(1). Before exercising this authority, a county must investigate the financial status of the prisoner or former prisoner from whom reimbursement is sought and, to this end, the county must develop and use a form for determining the financial status of prisoners. MCL 801.83(l)(b), (2); MSA 28.1770(3X1) (b), (2). Before entering any order on behalf of a county in an action against a prisoner or former prisoner for reimbursement, a court must take into consideration any legal or moral obligations of the defendant to support a spouse, minor children, or other dependents. MCL 801.87(3); MSA 28.1770(7)(3). Once the court determines that reimbursement is appropriate, it may enter a "money judgment” against the defendant and may order that the defendant’s property is liable for reimbursement. MCL 801.87(4); MSA 28.1770(7)(4). Only when "necessary to protect the county’s right to obtain reimbursement” may a county attorney "seek issuance of an ex parte restraining order to restrain the defendant from disposing of the property pending a hearing on an order to show cause why the particular property should not be applied to reimbursement.” MCL 801.88(2); MSA 28.1770(8)(2). A prisoner’s sentencing judge and the county sheriff must furnish all information and assistance possible to a county attorney seeking reimbursement. MCL 801.91; MSA 28.1770(11).
The Legislature’s stated purpose in enacting the prca was "to provide certain powers and duties of county oficiáis; and to provide for the reimbursement of certain expenses incurred by counties in regard to prisoners sentenced to county jail.” 1984 PA 118. Because the statute was intended to protect the public from financial loss, it is an exercise of police power delegated to county officials. See People v Murphy, 364 Mich 363, 368; 110 NW2d 805 (1961). Municipal corporations derive all police power from legislative act. Const 1963, art 7, § 1; People v Armstrong, 73 Mich 288; 41 NW 275 (1889). Accordingly, a municipal corporation can exercise only the police power that is granted to it in express terms, that is necessarily or fairly implied in or incident to those express powers, or that is indispensable to accomplish the objects and purposes of the corporation. Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984).
Here, defendants clearly acted ultra vires of the prca by (1) obtaining ex parte orders from plaintiffs’ sentencing judge in their respective criminal cases instead of filing a separate civil action; (2) obtaining and implementing ex parte orders seizing plaintiffs’ bond monies where there was no evidence that such ex parte orders were necessary; (3) failing to investigate plaintiffs’ financial status before seeking reimbursement; and (4) seizing bond monies posted in plaintiffs’ respective criminal cases without ascertaining whether such bond monies in fact were posted by plaintiffs or by others.
Because defendants failed to file a separate civil action as expressly required by the prca, plaintiffs were deprived of procedural due process of law, which at a minimum demands that a party be given notice and an opportunity to be heard. Mullane v Central Hanover Bank & Trust Co, 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950); Ridenour v Bay Co, 366 Mich 225, 240; 114 NW2d 172 (1962). Absent the filing of a complaint and summons in accordance with the court rules, the circuit court’s exercise of jurisdiction was erroneous. See Stump v Sparkman, 435 US 349; 98 S Ct 1099; 55 L Ed 2d 331 (1978) (finding that judge of state court of general jurisdiction did not exceed his jurisdiction in issuing ex parte order on same day as mother’s informal presentation of affidavit requesting authorization to sterilize minor daughter).
Subject-matter jurisdiction is the right of the court to exercise judicial power over a class of cases, not the particular case before it. Joy v Two-Bit Corp, 287 Mich 244, 253-254; 283 NW 45 (1938); Altman v Nelson, 197 Mich App 467, 472; 495 NW2d 826 (1992). The prca expressly confers on the circuit court subject-matter jurisdiction of cases brought under its provisions. MCL 801.88(1); MSA 28.1770(8)(1). Therefore, notwithstanding the absence of the filing of formal complaints and summonses, the circuit court was vested with subject-matter jurisdiction to adjudicate these underlying matters brought pursuant to the prca. Stump, supra. Thus, the action taken by the circuit judge in entering the ex parte orders, although an erroneous exercise of undoubted jurisdiction, was not void. Bowie v Arder, 441 Mich 23, 56; 490 NW2d 568 (1992); Altman, supra at 477. In light of defendants’ ultra vires acts, resulting in plaintiffs being deprived of procedural due process of law, and the circuit court’s erroneous exercise of jurisdiction, we exercise our authority pursuant to MCR 7.216(A)(7) to vacate the circuit court’s ex parte orders and to order defendant Macomb County to return the representative plaintiffs’ bond monies and any money recovered as a result of collection actions, along with interest.
ii
In their counterclaim, defendants assert that, even if the period of limitation had run under the prca, they are entitled to recoupment from plaintiffs via alternative setoff theories of indemnity, breach of contract, quantum meruit, suit for debt, or the prca. We disagree.
A county, as a political subdivision of the state, possesses only those powers delegated to it by constitution or statute. Const 1963, art 7, § 1; Wright v Bartz, 339 Mich 55; 62 NW2d 458 (1954). By statute, each county is required to maintain a jail at its own cost and expense. MCL 45.16; MSA 5.291. Before enactment of the prca, a county was liable for. all expenses of safekeeping and maintaining inmates in its county jail, except medical care expenses for which it could seek reimburse ment from the prisoner or the prisoner’s insurer. MCL 801.4, 801.5a; MSA 28.1724, 28.1725(1). Concomitant with enactment of the prca, the Legislature amended MCL 801.5; MSA 28.1725, which authorized counties to acquire by contract or private donation all necessary supplies for maintenance of county jails, to include a provision reflecting the county’s ability to seek reimbursement for all charges and expenses of incarceration from a prisoner pursuant to the prca. MCL 801.5(4); MSA 28.1725(4). Thus, it is apparent that the Legislature has not authorized a county to seek reimbursement from inmates via common-law remedies, such as breach of contract or quantum meruit. Accord People v Krieger, 202 Mich App 245, 249; 507 NW2d 749 (1993); People v Gonyo, 173 Mich App 716, 719; 434 NW2d 223 (1988). Moreover, a statute that creates a liability and provides a remedy specifically adapted to its enforcement impliedly excludes less appropriate common-law remedies. Pompey v General Motors Corp, 385 Mich 537, 553, n 15; 189 NW2d 243 (1971). Accordingly, we conclude that the Legislature intended the prca to constitute a county’s exclusive remedy for seeking reimbursement of incarceration expenses from an inmate of that county’s jail.
Because the ex parte orders in this case have been vacated, and because the statutory period for seeking reimbursement under the prca has lapsed with respect to the representative plaintiffs, defendants’ opportunity to secure reimbursement (or recoupment by counterclaim) from these plaintiffs is lost.
in
Our finding that defendants acted ultra vires of the prca does not end the matter. Plaintiffs’ amended complaint also alleged that defendants had deprived them of their property without due process of law in violation of federal law, and they sought monetary damages and injunctive relief under 42 USC 1983 for violation of those federal rights. Thus, we must also address whether defendants’ motion for summary disposition was granted properly with respect to these claims.
A. VIOLATION OF PRCA AS FEDERAL DUE PROCESS CLAIM
The trial court dismissed plaintiffs’ federal due process claims, finding that they had failed to cite any jurisdictional authority to permit state court jurisdiction over the federal claims.
Dismissal with prejudice of a claim is a harsh remedy and should be applied only in extreme situations. North v Dep’t of Mental Health, 427 Mich 659, 662; 397 NW2d 793 (1986). We find that the trial court abused its discretion in dismissing plaintiffs’ federal due process claims on the sole basis that they had failed to cite jurisdictional authority for the federal claims. On remand, the trial court is directed to permit plaintiffs an opportunity to amend their complaint relative to this omission.
B. 42 USC 1983 CLAIM
In paragraph 6 of their amended complaint, plaintiffs sought monetary damages and injunctive relief under 42 USC 1983 for defendants’ violation of their federal civil rights. The trial court dismissed the monetary damages claim, finding that defendant sheriff (and his employees) were entitled to either absolute quasi-judicial or qualified immunity. The court also dismissed the claim for injunc tive relief, finding that it was without authority to countermand a coequal judge’s order.
Section 1983 provides a remedy for the violation of a person’s constitutionally protected rights by any person acting under color of state law. Davis v Wayne Co Sheriff, 201 Mich App 572, 576-577; 507 NW2d 751 (1993). A municipality, including a local governing body such as a county, is a "person” for purposes of § 1983 liability but may only be sued for its own unconstitutional or illegal policies or customs, not for the acts of its employees or agents. Monell v New York City Dep’t of Social Services, 436 US 658; 98 S Ct 2018; 56 L Ed 2d 611 (1978). A § 1983 claim against a municipal employee or agent for acts undertaken in an official capacity is tantamount to a claim against the municipality that the employee or agent represents. Kentucky v Graham, 473 US 159, 165-166; 105 S Ct 3099; 87 L Ed 2d 114 (1985). Liability for damages may be imposed on a municipality only where execution of a municipal policy or custom rises to the level of deliberate indifference to a person’s constitutional or statutory rights. Canton v Harris, 489 US 378; 109 S Ct 1197; 103 L Ed 2d 412 (1989); Rushing v Wayne Co, 436 Mich 247, 260-261; 462 NW2d 23 (1990), cert den 499 US 920 (1991). In addition, the policy or custom, actually must cause or be closely related to the person’s ultimate injury. Id. at 261; Davis, supra at 577.
Our review of plaintiffs’ amended complaint reveals that their claim for damages is asserted against Sheriff Hackel in his official capacity as Macomb County Sheriff. Accordingly, we construe plaintiffs’ complaint as seeking to recover damages only from Macomb County. Brandon v Holt, 469 US 464; 105 S Ct 873; 83 L Ed 2d 878 (1985). In a § 1983 action, municipalities cannot invoke a qualified immunity defense based on good faith, al though they are immune to claims for punitive damages. Owen v Independence, 445 US 622, 635-658; 100 S a 1398; 63 L Ed 2d 673 (1980); Newport v Fact Concerts, Inc, 453 US 247; 101 S Ct 2748; 69 L Ed 2d 616 (1981). Personal immunities are unavailable to employees or agents in actions for damages under § 1983 brought against them in their official capacities, because only the liability of the municipal entity is at issue. Owen, supra; Brandon, supra. Thus, we conclude that the trial court misconstrued either plaintiffs’ complaint or § 1983 jurisprudence by finding that Sheriff Hackel was entitled to absolute quasi-judicial or qualified immunity.
Because a municipality is liable under § 1983 only for its own unconstitutional or illegal policies or customs, liability cannot be imposed solely because it employs a tortfeasor. Monell, supra at 691. Municipal liability attaches under § 1983 where "a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Pembaur v Cincinnati, 475 US 469, 483-484; 106 S Ct 1292; 89 L Ed 2d 452 (1986). The determination whether a person has final decision-making authority to establish municipal policy regarding a particular subject matter is a question of state law. St Louis v Praprotnik, 485 US 112; 108 S Ct 915; 99 L Ed 2d 107 (1988) (plurality opinion). Pursuant to our state constitution, a county is not liable for the acts of its sheriff, notwithstanding that the sheriff’s department is an agency of the county. Const 1963, art 7, § 6. However, state law immunities, whether arising from constitutional provision, statute, or common law, do not protect persons otherwise subject to § 1983 liability. Howlett v Rose, 496 US 356; 110 S Ct 2430; 110 L Ed 2d 332 (1990); Rushing, supra at 259. Conser quently, in a § 1983 action, a sheriff’s policies are generally attributable to the county. Id. at 260; Marchese v Lucas, 758 F2d 181, 189 (CA 6, 1985), cert den 480 US 916 (1987).
The peca expressly provides that the county, through its board of commissioners, county executive, or designee of the county executive, must be the moving force behind the decision to seek reimbursement. MCL 801.84; MSA 28.1770(4). Although defendants acknowledge that the county’s prisoner reimbursement program was the "dual creation” of the Macomb Circuit Court and the Macomb County Sheriff’s Department, we are unable to determine from the limited record available whether the program, as implemented, was authorized by legislative act of the county’s board of commissioners. Thus, in order for municipal liability to attach, the existence of an official municipal policy or custom remains to be proven by plaintiffs on remand.
Finally, plaintiffs’ request for injunctive relief has been satisfied by our order that defendants return the bond monies of plaintiffs Mudge and Brown. To the extent that plaintiffs seek an injunction against further violations of the peca, we do not believe that, in light of this opinion, such action is necessary.
The trial court’s order of summary disposition is reversed and this matter is remanded for further proceedings. The issues yet to be determined regarding plaintiffs’ § 1983 claim include the existence of an official municipal policy or custom, causation, and the amount of nonpunitive compensable damages to which plaintiffs are entitled, if any. The ex parte orders entered against plaintiffs Mudge and Brown are vacated; therefore, we order defendant Macomb County to return plaintiffs’ bond monies and any money recovered as a result of collection actions plus interest within sixty days from the date this opinion is released.
We do not retain jurisdiction.
Recently, the Legislature amended the prca to extend the period for filing a civil action from six to twelve months, and increased the per diem amount recoverable from $30 to $60. 1984 PA 118, as amended by 1994 PA 212, MCL 801.83(l)(a), 801.87(1); MSA 28.1770(3) (l)(a), 28.1770(7X1).
The record indicates that plaintiff Mudge’s bond monies were seized in July 1989 and, according to defendants, she did not receive defendants’ financial status form until September 1989. Plaintiff Brown received defendants’ financial status form on June 27, 1989, and his bond monies were seized the next day.
In future cases, we direct defendants to ascertain information regarding the source of posted bond monies before seeking to attach it for reimbursement purposes under the prca. Only where it can be shown that the prisoner is the source of the bond money does it become subject to attachment.
The proofs necessary to establish the existence of a municipal policy or custom have not been clearly defined. Nonetheless, in Pembaur, supra at 483, n 12, the Court offered the following hypothetical example, which we find relevant and insightful under our particular facts:
[F]or example, the County Sheriff may have discretion to hire and fire employees without also being the county official responsible for establishing county employment policy. ... Instead, if county employment policy was set by the Board of County Commissioners, only that body’s decisions would provide a basis for county liability. This would be true even if the Board left the Sheriff discretion to hire and fire employees and the Sheriff exercised that discretion in an unconstitutional manner; the decision to act unlawfully would not be a decision of the Board. However, if the Board delegated its power to establish final employment policy to the Sheriff, the Sheriff’s decision would represent county policy and could give rise to municipal liability. | [
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Per Curiam.
Plaintiff appeals as of right from a judgment of the St. Clair Circuit Court sustaining two orders issued by the South Branch of Mill Creek Intercounty Drainage Board. The drainage board made a finding of necessity for work to be performed on the south branch of Mill Creek Drain and for adding lands to the South Branch of Mill Creek Intercounty Drainage District. We affirm in part and reverse in part.
The South Branch of Mill Creek Intercounty Drainage District is an intercounty drainage district established pursuant to MCL 280.121 et seq.; MSA 11.1121 et seq. In August 1989, landowners in St. Clair County submitted a petition to the drainage board for the cleaning, relocating, widening, deepening, tiling, straightening, extending, or relocating along a highway of approximately one mile of the South Branch of Mill Creek Drain.
On June 7, 1990, a hearing was held, at which it was determined that the proposal was practicable. The drainage board then hired an engineer to survey the drain and to recommend methods for overcoming the problems with it. The engineer subsequently submitted a proposal for extending the drain that called for the excavation of 638,000 cubic yards of soil and other material at a cost of $2.9 million.
On January 23, 1992, the drainage board held a hearing to determine whether a project involving the drain was necessary. After examining the project proposed by the engineer and taking additional public testimony, the drainage board determined that the extension of the drain was necessary and conducive to public health, convenience, and welfare. In addition, the board found that it was necessary to add lands in Sanilac County to -the drainage district. However, the board determined that the $2.9 million project submitted by the engineer would have to be scaled back.
Plaintiff filed a complaint in the St. Clair Circuit Court. Plaintiff contended, among other things, that the drainage board did not have authority to add lands in Sanilac County to the drainage dis trict because the petition requirements of § 135 of the Drain Code, MCL 280.135; MSA 11.1135, had not been met, The trial court concluded that because the drain itself was not being extended to a new county, § 135 did not apply. On November 6, 1992, the trial court issued an order upholding the findings of the drainage board and the order adding lands in Sanilac County to the drainage district.
Plaintiff contends that the circuit court erred in finding that the provisions of § Í35 of the Drain Code apply only if the drain itself is to be extended into a new county. Defendant asserts that § 135 is inapplicable because the drainage board has the authority to add lands to the drainage district under § 197 of the Drain Code, MCL 280.197; MSA 11.1197.
Section 135 of the Drain Code provides, in pertinent part:
If at any time after an intercounty drainage district has been established and a drain has been located, established and constructed therein, it appears that it is necessary to extend the drain or drainage district into a county which was not part of the original intercounty drainage district, the lands in the county may be added to the district by presenting to the drain commissioner of one of the counties traversed or affected by the drain, a petition signed by 50% of the land owners whose land is traversed by the drain or proposed extended drain, which petition shall state the name or number of the drain, and the lands which it is desired to have added to the drainage district. . . . The board shall consider the petition and any evidence offered, and if it is determined that the extension of the drain or drainage district is necessary for the good of the public health, convenience or welfare, it shall then proceed to determine the just percentage of the whole cost of construction which each county shall bear, and also determine the number of installments in which the drain taxes shall be collected. ... If, in the opinion of the expanded drainage board, it is found necessary to add the lands to the drainage district, they shall also enter an order adding the lands.
The relevant portions of § 197 of the Drain Code provide:
(1) On receipt of a petition filed under this chapter, the commissioner or the drainage board may require a competent surveyor or engineer to make a survey of the drain or of the district .... If it appears that land has been added to the drainage district, the drain commissioner for a county drain, or chairperson of the drainage board for an intercounty drain, shall notify the board of determination who allowed the petition that the land should be added to the district. The drain commissioner or chairperson of the drainage board shall call a meeting of the board of determination.
(2) . . . [I]f the board of determination by a majority vote of members finds the proposed addition of the land to the drainage district necessary and conducive to the public health, convenience, or welfare, they shall make an order to that effect and file the order with the drain commissioner or drainage board.
At issue are the applicable petition requirements. It is undisputed that the petitions submit ted to the drainage board contained a sufficient number of signatures to comply with § 197, but did not meet the requirements of § 135.
Statutory interpretation is a question of law that is reviewed de novo on appeal. Smeets v Genesee Co Clerk, 193 Mich App 628, 633; 484 NW2d 770 (1992); Alexander v Riccinto, 192 Mich App 65, 70; 481 NW2d 6 (1991). When two statutes or provisions conflict and one is specific to the subject matter while the other is only generally applicable, the specific statute prevails. Gebhardt v O’Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994).
We conclude that the trial court erred in holding that § 197 controls on the basis that § 135 applies only where the drain itself is to be extended into a new county. While § 197 applies to situations where land is added to a drainage district, including an intercounty drainage district, it does not include language pertaining to adding lands to the district where the lands to be added are in a county that was not previously part of the intercounty drainage district. Because the language of § 135 specifically addresses such a situation, it controls in the present case. We therefore reverse the order adding lands to the drainage district.
Plaintiff next argues that the determination of the drainage board that the extension of the drain was necessary and conducive to public health, convenience, and welfare is void because the board made that determination before the proposed project specifications were presented.
The procedure for extending an intercounty drain is set out in §§ 122 and 192 of the Drain Code, MCL 280.122, 28.192; MSA 11.1122, 11.1192. Under § 192, after a proper petition setting forth the necessity of the extension is submitted, the members of the drainage board consider the petition:
[T|f such work is then determined to be practicable, they may thereupon appoint a competent surveyor or engineer to make a survey of said drain, and lay out a drainage district according to section 104. After the surveyor or engineer has filed all data with the drainage board, the director of agriculture shall call a meeting as provided in section 122, and thereafter take all steps and perform all acts which are required to be done by said board upon a petition for the location, establishment and construction of drains as provided in sections 121 to 135.
Likewise, § 122 provides:
The board shall consider the petition and evidence offered, and if it is determined that the drain is necessary for the good of the public health, convenience, or welfare, it shall proceed to determine the percentage of the whole cost of construction which each county shall bear, and determine the number of installments in which the drain taxes shall be collected.
As a general rule, the word "may” will not be treated as a word of command unless there is something in the context or subject matter of the act to indicate that it was used in such a sense. Mull v Equitable Life Assurance Society, 444 Mich 508, 519; 510 NW2d 184 (1994). Thus, while the drainage board is permitted to appoint a surveyor or engineer to lay out a drainage district according to the requirements of § 104, MCL 280:104; MSA 11.1104, the drainage board is not required to do so in order to determine the necessity of the project. Similarly, § 122 contemplates the determination of necessity as the initial step in the process of implementing a drain project.
This outcome is consistent with McGregor v Coggins Drain Bd of Determination, 179 Mich App 297; 445 NW2d 196 (1989). While McGregor involved a county drain rather than an intercounty drain, there is no indication in the Drain Code that the Legislature intended a different procedure in each case. In McGregor, this Court held: "The function of the board of determination is to decide whether a proposed project is necessary. Once it has made that determination, the commissioner has the responsibility of finding the best alternative.” McGregor, supra at 300.
For intercounty drains, the drainage board functions as the hoard of determination. MCL 280.122; MSA 11.1122. We hold that the drainage board was not required to have a proposed project before it in order to make a determination of necessity.
Finally, plaintiff contends that the circuit court erred in finding that the proposed intercounty drain project was necessary for the good of the public health, convenience, or welfare. In particular, plaintiff argues that the plan submitted by the engineer is too expensive and too disruptive of the environment and could cáuse flooding in several area communities.
Decisions of a drainage board regarding the necessity of a drain project are reviewed to deterrriine whether the decision was authorized by law and whether the board’s findings of fact are supported by competent, material, and substantive evidence on the whole record. Hitchingham v Washtenaw Co Drain Comm’r, 179 Mich App 154, 160-161; 445 NW2d 487 (1989).
We note that the drainage board did not adopt the proposal submitted by the engineer. Rather, when voting on the necessity of the project, the board agreed that the engineer’s proposal would have to be scaled back.
At the hearings conducted by the drainage board, various individuals testified of obstructions in the drain caused by beaver dams, brush undergrowth, bridges, and other obstacles. We find ample evidence in the record to support the drainage board’s finding that some action regarding the drain was necessary and conducive to public health, convenience, and welfare.
Affirmed in part and reversed in part.
Section 135 requires "a petition signed by 50% of the land owners whose land is traversed by the drain or proposed extended drain, which petition shall state the name or number of the drain, and the lands which it is desired to have added to the drainage district.” If § 197 controls, the less stringent petition requirements of § 101, MCL 280.101; MSA 11.1101, should be followed. Section 101 requires only a petition signed by "a number of freeholders in said drainage district whose lands would be liable to an assessment for benefits, equal to 50% of any of the freeholders whose lands would be traversed by the drain or drains applied for or abut on any highway or street along the side of which such drain extends, between a point where such drain enters such highway and the point where it leaves such highway and which lands are within the drainage district.” | [
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Per Curiam.
Defendant appeals as of right from the trial court’s order granting plaintiffs motion for summary disposition on the issue of paternity, finding that defendant is the father of the child, Brandon Deller, born to Candance Deller, an Aid to Families with Dependent Children (afdc) recipient. Defendant asserts that he rebutted the statutory presumption of paternity established by blood typing when he denied, under oath, that he had sexual intercourse with Candance Deller, and Deller could not remember the act of penetration. We affirm.
The facts of this case are rather unique. In October 1988, Candance Deller discovered during a doctor’s visit that she was five months’ pregnant, but she had no memory of the fetus’ conception, which was estimated to have occurred in May 1988. The child, Brandon, was born in March 1989. Candance Deller did not designate the name of Brandon’s father on the baby’s birth certificate. When she applied for assistance, plaintiff required her to disclose the name of Brandon’s father as a precondition to receiving assistance.
After receiving spiritual counseling from her pastor’s wife, Candance began to remember trau matic incidents of sexual abuse that had occurred in the past. She remembered that her father had sexually abused her, but she also knew that he had a successful vasectomy before the spring of 1988. Candance also began to remember an incident of sexual intercourse that occurred when the weather was warm and she had gone for a ride with defendant on his three-wheel all-terrain vehicle (atv). She remembered defendant looking at her in a strange manner, then disrobing her and pushing her backward over the rack on the atv. Although she did not remember the act of penetration, she recalled experiencing physical pain and feeling defendant breathing very hard on her face.
Defendant, who denied having sexual intercourse with Candance Deller, submitted to two separate blood tests. MCL 722.716; MSA 25.496. Pursuant to §6(5) of the Paternity Act, MCL 722.716(5); MSA 25.496(5):
If the probability of paternity determined by the qualified person described in subsection (2) is 99% or higher, paternity shall be presumed. The burden of proof is upon the alleged father to rebut the presumption. If 2 or more persons are determined to have a probability of paternity of 99% or higher, paternity shall be presumed for the person with the highest probability. [Emphasis added.]
The 1990 blood test established the probability of paternity at 99.453%, and the 1992 deoxyribonucleic acid (dna) test established the probability of paternity at 99.96%. On the basis of these blood tests, plaintiff moved for and was granted summary disposition pursuant to §6(5) of the Paternity Act and MCR 2.116(0(10). On appeal, defendant argues that the rebuttable presumption established in § 6(5) cannot result in summary disposition under MCR 2.116(0(10) in light of Candance Deller’s lack of memory regarding the act of penetration and defendant’s denial that he had sexual intercourse with her. We find that summary disposition was appropriate in this case because defendant failed to present substantial evidence to rebut the statutory presumption of paternity.
The trial court must determine whether, as a matter of law, a presumption exists. Widmayer v Leonard, 422 Mich 280, 288; 373 NW2d 538 (1985); Allen v Keating, 205 Mich App 560; 517 NW2d 830 (1994). On appeal, this Court reviews questions of law and the grant of summary disposition motions de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991); AFSCME v Dep’t of Mental Health, 206 Mich App 382, 386-387; 522 NW2d 657 (1994).
MRE 301, entitled "Presumptions in Civil Actions and Proceedings,” explains the effect of rebuttable presumptions:
In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
In short, a presumption is a procedural device that regulates the burden of proceeding with the evidence. State Farm Mutual Automobile Ins Co v Allen, 191 Mich App 18, 22; 477 NW2d 445 (1991). The presumption is dissipated, however, once substantial evidence has been submitted by its opponent. Id., citing Widmayer, supra at 286-287.
In Widmayer, our Supreme Court clarified some confusion in the law regarding presumptions and the effect of MRE 301:
[T]f the jury finds a basic fact, they must also find the presumed fact unless persuaded by the evidence that its nonexistence is more probable than its existence.
We so hold because we are persuaded that the function of a presumption is solely to place the burden of producing evidence on the opposing party. It is a procedural device which allows a person relying on the presumption to avoid a directed verdict, and it permits that person a directed verdict if the opposing party fails to introduce evidence rebutting the presumption. [422 Mich 289. Emphasis added.]
Thus, an unrebutted presumption can form the basis for a directed verdict or summary disposition in favor of the moving party.
Applying the law to the facts of this case, we find that defendant failed to present substantial evidence rebutting the presumption of paternity. Widmayer, supra at 288-289; Allen, supra. Despite Candance Deller’s inability to specifically recall the act of penetration resulting in Brandon’s conception, she testified at her deposition that she recalled the sexual assault that defendant committed against her. Although the trial court found that her deposition testimony alone "would not be enough to convince this Court that a pretrial adjudication would be appropriate,” the court correctly held that "the results of the blood tests remove any factual question from the mind of this Court, and the resulting legal presumption created by those blood tests dictate the resolution of this Motion, and this case.” Indeed, pursuant to § 6(5) of the Paternity Act, defendant’s two blood tests established the statutory presumption of paternity. Defendant’s mere assertion that he never penetrated or engaged in the act of sexual intercourse with Candance Deller is not sufficient to overcome this presumption, and the results of defendant’s polygraph examination were not, and could not, be considered as evidence to rebut the presumption based upon defendant’s blood and dna tests.
Because defendant was unable to produce substantial evidence to dissipate the presumption of paternity established pursuant to § 6(5) of the Paternity Act, we find that no genuine issue of material fact existed regarding defendant’s paternity of Brandon Deller. Thus, summary disposition was properly granted in favor of plaintiff pursuant to MCR 2.116(0(10).
Affirmed.
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Mackenzie, P.J.
Plaintiffs appeal as of right from an order dismissing their complaint for mandamus and voiding a 1969 judgment. We reverse and remand.
On September 5, 1969, a judgment was entered pursuant to the Inland Lake Level Act, MCL 281.61 et seq.; MSA 11.300(1) et seq., establishing the normal level of Pine Lake at 890.5 feet above sea level, and ordering that the maximum level of the lake not exceed 891 feet and the minimum level not fall below 890 feet. The judgment stated that the normal level could be attained by the establishment of a well or wells.
In November 1992, plaintiffs, who are Pine Lake waterfront property owners, filed this action to enforce the 1969 judgment. They alleged that the lake had risen to a level in excess of 893 feet, resulting in the loss of beach front and shoreline, and damage to sea walls and other improvements. Defendants’ answer admitted that the lake level exceeded 891 feet, but averred that the 1969 judgment only envisioned raising the lake level through the use of wells, and that since 1971 the lake had been allowed to seek its own natural level.
Plaintiffs subsequently moved for summary disposition pursuant to MCR 2.116(0(10), arguing that because defendants admitted that the lake level was in excess of the 1969 judgment maximum level, there was no genuine issue of material fact. In support of their motion, plaintiffs presented numerous affidavits describing plaintiffs’ loss of beach front and trees due to flooding, flooded sewer systems, and flooded basements and crawl spaces. They also detailed the expense of hauling in dirt and sand, rebuilding docks, and raising levels of patios and boathouses.
Defendants did not file a response to plaintiffs’ motion. At the hearing regarding the motion, however, they offered letters and affidavits from property owners and the Department of Natural Resources taking the position that the present lake level should not be lowered.
The trial court denied plaintiffs’ motion for summary disposition. The court then, on its own mo tion, declared the 1969 judgment null and void and ordered plaintiffs’ complaint dismissed. In so doing, the court ruled that the 1969 judgment was too old to be enforced. It also noted that the 1969 proceedings were not subject to new requirements, added in 1992, for initiating an action to determine a lake’s normal level. See 1992 PA 52, effective May 20, 1992. On the basis of these considerations, the court ordered that plaintiffs would have to institute a new action to redetermine the normal level of the lake if they wanted the level of Pine Lake changed.
On appeal, plaintiffs contend that the trial court should not have voided the 1969 judgment that determined the normal level of Pine Lake to be 890.5 feet above sea level. We agree.
MCL 281.70(5); MSA 11.300(10X5), as amended, sets forth the powers and duties of the trial court in an action under the Inland Lake Level Act. The language of that subsection is substantially unchanged from the language of the statute as originally enacted and provides, in relevant part:
The court shall determine the normal level to be established and maintained, shall have continuing jurisdiction, and may provide for departure from the normal level as necessary to accomplish the purposes of this act.
The purpose of the act is to provide for the control and maintenance of inland lake levels for the benefit and welfare of the public. In re Van Ettan Lake, 149 Mich App 517, 525; 386 NW2d 572 (1986).
Applying the statute to this case, it is apparent that the trial court had continuing jurisdiction over the 1969 proceedings, and that it had the power to order a departure from the lake level as determined in 1969 upon a showing that such a departure is necessary for the beneñt and welfare of the public. However, the statute does not grant courts the authority to simply abolish a prior determination of the normal lake level, as the trial court in this case did. Nor does the statute authorize a departure from the established lake level without a showing that that level is no longer beneficial. Further, the statute, as amended, does not contemplate insisting, again as the court in this case did, that the parties initiate a new cause of action when a change in the lake level is sought. Rather, it is clear that the Legislature intended courts to exercise their continuing jurisdiction to decide whether a departure from a previously established level is necessary for the benefit and welfare of the public, and, if so, to provide for such a departure.
In light of the provisions of MCL 281.70(5); MSA 11.300(10X5), we hold that the trial court erred in voiding the 1969 judgment establishing the normal level of Pine Lake and sua sponte ordering the dismissal of plaintiffs’ action. We further hold that plaintiffs need not initiate a new action to determine the normal level of Pine Lake under MCL 281.63; MSA 11.300(3), as amended, but instead may invoke the court’s continuing jurisdiction under MCL 281.70(5); MSA 11.300(10)(5) to assert their claim that the 1969 lake level should not be departed from. Until the necessity for a departure from that judgment is demonstrated and the court, in the exercise of its continuing jurisdiction, orders a departure from the 1969 judgment, it remains in effect.
As this case presently stands, a question of fact exists regarding whether the normal level of Pine Lake as established in the 1969 judgment remains beneficial to the public. To resolve that issue, we remand the matter to the trial court for a hearing to determine whether a departure from the established normal level is necessary. The hearing on remand shall be conducted consistent with the procedures set forth in MCL 281.70; MSA 11.300(10).
Finally, plaintiffs’ contention that the trial judge should have disqualified himself from this case pursuant to MCR 2.003(B)(3) is without merit. The judge’s limited contact with the Pine Lake Association in 1965 is far too tenuous to overcome the presumption of impartiality. In re Forfeiture of $1,159,420, 194 Mich App 134, 151; 486 NW2d 326 (1992).
Reversed and remanded for further proceedings consistent with this opinion. We retain no further jurisdiction. | [
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Per Curiam.
Plaintiffs appeal as of right from a jury verdict of no cause of action in their claim against defendant pursuant to MCL 691.1402; MSA 3.996(102).
Plaintiffs initially claim that the trial court erred by continually referring to their claim as one grounded in negligence. They claim that the statutory duty created by MCL 691.1402; MSA 3.996(102) is separate and distinct from negligence. We disagree.
In Palomba v East Detroit, 112 Mich App 209, 214-215; 315 NW2d 898 (1982), we held:
"There are two exceptions to the governmental immunity statute involved in our consideration here. First, the Legislature has expressly authorized claims against a governmental agency arising out of the negligent maintenance of highways. MCL 691.1402; MSA 3.996(102). The period of limitations for such claims is two years. MCL 691.1411; MSA 3.996(111). Second, the courts have ruled that the government has no immunity from liability for injuries resulting from a nuisance intentionally created or maintained. See Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978). The period of limitations for claims based upon intentional nuisance is three years. MCL 600.5805(8); MSA 27A.5805(8). These two exceptions to governmental immunity are distinct and independent. One involves liability for negligent conduct; the other for intentional conduct.”
Similarly, in Stremler v Dep’t of State Highways, 58 Mich App 620, 627-628; 228 NW2d 492 (1975), it was stated:
"Conditions in streets and public places which render the use thereof dangerous or inconvenient present issues referable to the law of negligence. 18 McQuillin, Municipal Corporations (3d ed rev), § 53.47, p 248.”
The statute imposes an obligation on governmental agencies to keep highways and streets under their jurisdiction in "reasonable repair” so that they are "reasonably safe and convenient for public travel”. Salvati v Dep’t of State Highways, 415 Mich 708; 330 NW2d 64 (1982). The requirement of reasonableness is a negligence concept.
Plaintiffs’ reliance on Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979), is misplaced. The Court did not hold in that case that the defective building exception to governmental immunity, MCL 691.1406; MSA 3.996(106), is not grounded in negligence. On the contrary, it merely held that one of plaintiffs’ negligence theories did not state a claim pursuant to the defective building exception. Bush, supra, p 727, fn 7.
In any event, even assuming that the trial court’s reference to the word negligence and its instructions in which that term was used were improper, we do not believe that plaintiff was prejudiced thereby. The trial court’s instructions, when read as a whole, accurately instructed the jury concerning the duties imposed upon defendant by the statute.
Plaintiffs also complain that the trial court erred by instructing the jury concerning the com parative negligence of plaintiffs. For the reasons stated in Hall v Dep’t of State Highways, 109 Mich App 592; 311 NW2d 813 (1981), and Wade v State Highway Comm, 92 Mich App 234; 284 NW2d 522 (1979), this claim is rejected. See also Hardy v Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982).
Our review of the record fails to disclose any evidence of bias on the part of the trial court against plaintiffs and their attorney. To be sure, over the course of the lengthy trial there were instances in which the trial court expressed its displeasure with particular events which transpired. However, there is nothing about the court’s treatment of plaintiffs and their attorney which differed significanty from its treatment of defendant and its attorney. Plaintiffs were not denied a fair and impartial trial. Jackson v Depco Equipment Co, 115 Mich App 570, 582; 321 NW2d 736 (1982).
Plaintiffs next claim that the trial court abused its discretion by refusing to permit the jury to view the scene of the accident. We find this claim to be without merit. Although the court initially failed to give a reason for its ruling, it later indicated that, because the accident occurred during the winter, while trial took place in the summer, and because conditions had changed considerably in the interim, a view of the scene was improper. Further, the record shows that numerous exhibits were introduced depicting the condition of the road. No abuse of discretion is shown. Dooms v Stewart Bolling & Co, 68 Mich App 5, 24; 241 NW2d 738 (1976).
Plaintiffs next complain that the trial court improperly precluded them from posing hypothetical questions to one of their expert witnesses. We initially reject plaintiffs’ contention that they were required to conduct examination of their expert witnesses by the use of hypothetical questions. MRE 703 permits an expert to base his opinion on facts or data not in evidence. See also MRE 705. However, where a party does proceed to examine an expert witness by the use of hypothetical questions, the answer must be based on facts contained therein and the hypothetical questions must be premised on facts already in evidence. Grewe v Mt. Clemens General Hospital, 404 Mich 240, 257-258; 273 NW2d 429 (1978). The trial court’s ruling was not improper.
Plaintiffs next complain that the trial court erred by admitting the deposition testimony of a witness who testified concerning the lack of prior accidents at the scene where this accident occurred. This issue is completely without merit. Although the trial court initially ruled the evidence admissible, it subsequently reversed its ruling and held that the evidence could not be admitted. The transcript of the deposition shows that the testimony was blocked out and, therefore, not placed before the jury.
We find nothing improper in the trial court’s decision to permit defendant to introduce a copy of plaintiffs’ complaint with all references to other defendants removed.
Finally, we also find meritless plaintiffs’ claim that the trial court’s refusal to give SJI 6.01 constituted reversible error. There is no evidence that the witnesses were not equally available to plaintiffs. Dayhuff v General Motors Corp, 103 Mich App 177, 187-188; 303 NW2d 179 (1981).
The judgment of the trial court is affirmed. Costs to defendant. | [
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Bronson, P.J.
Plaintiff brought this action against defendant, its architect, alleging professional malpractice. Defendant filed a counterclaim against plaintiff, alleging that he had not been paid in full for services rendered. The matter was submitted to mediation pursuant to GCR 1963, 316. The mediation panel was not asked to evaluate separately the worth of the complaint and counterclaim, and it did not render separate assessments. Instead, it returned a single evaluation in favor of plaintiffs in the amount of $25,000. Defendant accepted this evaluation, but plaintiff rejected it.
After trial, the jury returned a verdict of only $4,700 in favor of plaintiff. The verdict was ”no cause of action” on the counterclaim. Because plaintiff failed to obtain judgment in an amount exceeding $27,500, the trial court ruled that, pursuant to GCR 1963, 316.7(b)(1), defendant was entitled to "actual costs”. The term "actual costs” is defined in GCR 1963, 316.8 to include "a reasonable attorney fee as determined by the trial judge for services necessitated by the rejection of the panel’s evaluation”. Applying this rule, the court ordered plaintiff to pay Dennis Cotter, the attorney defending against the complaint, $10,108.11 in attorney fees and costs. This amount included $1,250 for "expert witness fees” to be paid to defendant himself for testifying on his own behalf. The trial court went on to order plaintiff to pay the attorney prosecuting the counterclaim, Samual Gun, $4,218.75 in attorney fees and costs. Plaintiff now appeals as of right from the court’s order imposing these costs. We reverse and remand.
We acknowledge the Supreme Court’s authority to promulgate rules regulating practice and procedure (as opposed to substantive rules) in the courts, Const 1963, art 6, § 5; Perin v Peuler (On Rehearing), 373 Mich 531, 541-542; 130 NW2d 4 (1964). We also agree with defendant that the provision for the award of costs, GCR 1963, 316.8, supra, may reasonably be classified as "procedural” in nature, despite this Court’s observation that the line demarcating substantive and procedural rules is not susceptible of easy resolution, Cleveland-Cliffs Iron Co v First State Ins Co, 105 Mich App 487, 492; 307 NW2d 78 (1981). Accordingly, we decline to hold that the rule is unenforceable as an invalid promulgation of substantive law.
Nonetheless, we believe that the trial court erred in the way in which it applied the rule in this case. The court found that the entire amount awarded as fees and costs had been "necessitated by [plaintiffs] rejection of the [mediation] panel’s evaluation”, GCR 1963, 316.8. The assumption underlying this finding is that all of the time spent by each of the attorneys in trying the case (in addition to time spent preparing for trial) must be treated as having been "necessitated” by plaintiffs decision as to the mediation. In this way, the trial court has used the term "necessitated” as if it meant "caused”. Under the trial court’s reasoning, since plaintiffs refusal to accept the mediation award was the "but-for” cause of the need for trial, plaintiffs action thereby "necessitated” all costs incurred by defendant’s attorneys in trying the case. Given the language and purpose of GCR 1963, 316.7, we would interpret the term "necessitated” differently.
Neither case law nor the Committee Notes to GCR 1963, 316.7 and 316.8 provide this Court with any guidance in interpreting the meaning of terms contained in those rules. Still, the policy underlying the rule can guide this Court in its construction. That policy is apparent: to place the burden of litigation costs upon the party who insists upon a trial by rejecting a proposed mediation award.
We agree with any policy which effectively encourages the settlement of pending litigation. However, any such policy must be circumscribed by equitable considerations. A party should not be responsible for costs which accrue through no fault of his own. For example, if a party rejects a proposed mediation award and his opponent goes on to try the case in a manner which is grossly inefficient, or otherwise unduly wasteful of legal resources, it would not be fair to hold the party rejecting the mediation award responsible to the extent that the expenses in question exceed an amount which is reasonable. GCR 1963, 316.8 recognizes this equitable consideration by authorizing only an award of “a reasonable attorney fee”.
We believe that the term "reasonable” as used in this subrule should be construed to exclude certain costs which are incurred by the opposing side’s attorney through no fault of the party rejecting the proposed mediation award. Plaintiff aptly points out that the mediation award and procedure tends to chill access to the courts by imposing the burden of uncertainty upon a party who is dissatisfied with a proposed award and who chooses to exercise his constitutional right to a trial. To some extent, this chilling effect is a necessary by-product of any policy which encourages settlement of pending litigation. However, the adverse effect of this policy upon a party’s right to trial becomes oppressive when that party is faced with the potential of unlimited liability for any costs which are "but-for” caused by the decision to proceed to trial.
Taken to its logical extreme, defendant’s argument would hold plaintiff liable for all costs incurred in the trial of a case, even if those costs were the direct result of thousands of hours of unjustifiable delays ordered by a trial judge over both parties’ objections. A trial which could foreseeably have been completed in several days, for example, could run several months through no fault of either party. Applying defendant’s reasoning to this hypothetical, plaintiff could be liable for many times the reasonably foreseeable cost of trial. We believe that any construction of the court rule which could lead to such absurd hypothetical results must be rejected.
In order to avoid the potential for imposing such liability upon litigants, we construe the term "reasonable” to mean "reasonably foreseeable”. In other words, a party who rejects a proposed mediation award should be responsible only for trial costs which a person would find reasonably foreseeable under the circumstances facing him at the time he decides to reject the award. This construction preserves the mediation procedure’s effect of encouraging settlement, without adding the chilling element of uncertainty to a potential litigant’s decision to exercise his right to trial.
In the present case, the trial court simply imposed the full amount claimed by defendant’s attorneys as costs incurred in the trial of the case. The court did not distinguish between amounts of time spent in preparing for trial and time spent at the courthouse during the actual trial. All of the former is reasonably foreseeable; any litigant can expect that his opponent will need a certain amount of time to prepare for trial. However, plaintiff alleges that in the present case the parties were forced to spend an unusually large amount of time enduring delays in trial including numerous delays at the courthouse which neither party could reasonably have anticipated. We do not believe that the burden of these alleged delays should fall solely upon plaintiff.
Under the circumstances of this case, the trial court should have determined the amount of time which the trial of this matter would normally take, and should have computed attorney fees accordingly. If, as defendant asserts, the number of delays in the trial of this case was relatively normal, then the court’s award of costs could be upheld, subject to the additional adjustments ordered infra. If, on the other hand, plaintiff is correct in alleging that this trial involved an unforeseeable amount of delay, the court would be required to reduce its award of costs accordingly.
The matter is remanded for a factual determination of whether the trial of this cause involved more time than the parties could reasonably have anticipated when plaintiff decided to reject the mediation settlement. The court must then adjust its award of costs to the extent that there was any unforeseeable delay during trial. The court shall issue a written statement of its findings as to this issue.
There are additional adjustments which the trial court must make upon remand. First, the court must rescind its order requiring plaintiff to pay attorney Samuel Gun $4,218.75 in costs in connection with the pursuit of the counterclaim. We note that defendant did not prevail on the counterclaim —the verdict was "no cause of action”. Prevailing on the claim in question is an absolute prerequisite to any award of costs under GCR 1963, 316.7(b)(1).
Defendant makes much of the fact that the proposed mediation settlement did not separately evaluate the merits of the counterclaim. According to defendant, since plaintiff rejected the settlement "in gross”, it necessarily rejected the evaluation as to the counterclaim as well as the evaluation with respect to the original complaint. We disagree. There can be no question that any rational plaintiff would have accepted an evaluation indicating "no cause of action” on the counterclaim. The mere fact that plaintiff did not take the precaution of asking for separate evaluations does not require us to asume (1) that the evaluation was in fact the result of a setoff, or (2) that plaintiff intended to reject that aspect of the evaluation which related to the counterclaim. Certainly nothing in the rec ord supports either assumption. Under the circumstances, equity requires us to presume that plaintiff would have accepted any "no cause of action” on the counterclaim. Given this, we conclude that GCR 1963, 316.7(b)(1) applies, and that defendant’s failure to prevail on the counterclaim bars its recovery of costs.
Finally, plaintiff notes that the court awarded $1,250 as an "expert witness fee” for defendant’s own testimony. Nothing in the record indicates that defendant had to prepare himself as an "expert” or that his testimony appreciably lengthened his in-court testimony. Defendant acknowledges that the bulk of his trial testimony involved merely setting forth the factual background of the case. Defendant would have been called upon at trial to give this factual testimony regardless of whether he also gave testimony as an "expert”. Absent some showing that defendant underwent special preparation to testify as an expert, we believe that the trial court erred by including any amount as an "expert witness” fee for defendant.
Reversed and remanded for proceedings consistent with this opinion.
T. M. Burns, J., concurred. | [
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Per Curiam.
Plaintiff commenced an action on May 5, 1982, in Ingham County Circuit Court, seeking declaratory and injunctive relief. Plaintiff contended that the Logging Industry Compensation Fund provisions of Chapter 5 of the Worker’s Disability Compensation Act, MCL 418.501 et seq.; MSA 17.237(501) et seq., were unconstitutional. These provisions create a statutory scheme whereby employers in the logging industry are repaid out of a special fund for workers’ disability payments paid to employees in excess of $12,500. Plaintiff made a motion for summary judgment, or, in the alternative, for a preliminary injunction. The trial court denied plaintiffs motion and dismissed the complaint in accordance with its written opinion of May 27, 1983. We believe that the excellent opinion written by Judge Thomas L. Brown of the Ingham County Circuit Court should be adopted as our opinion, and we do so by quoting it in its entirety:
Opinion
"Plaintiff, Michigan Manufacturers Association, moves in this court for a summary judgment pursuant to GCR 1963, 117.2(3), or in the alternative, for a preliminary injunction. In support of its motion plaintiff represents that Chapter 5, 1980 PA 357 and 1982 PA 32, which amended certain sections of Chapter 5, 1969 PA 317, Worker’s Disability Compensation Act of 1969, MCL 418.101 et seq.; MSA 17.237(101) et seq. (hereinafter the Act), are unconstitutional for the following reasons:
"D as amended § 501(3) impermissibly delegates legislative authority to a private, nongovernmental, voluntary association in violation of Const 1963, art 4, § 1;
"2) amended Chapter 5 contains more than one object which is not expressed in its title in violation of Const 1963, art 4, § 24;
"3) amended Chapter 5 violates the Equal Protection Clauses of both the Michigan and the United States Constitutions; and
"4) amended Chapter 5 violates the Due Process Clauses of both the Michigan and the United States Constitutions.
I
"In 1980 the legislature amended the Act enacting 1980 PA 357b which became effective January 1, 1982. This enactment established the Logging Industry Compensation Fund, MCL 418.501(2); MSA 17.237(501X2) (hereinafter the Fund), in addition to the self-insurers security fund, second injury fund, and silicosis and dust fund. The purpose of the Fund is to reimburse logging employers or their insurance carriers for all weekly benefits paid to eligible workers in excess of $12,500.00. MCL 418.531(1); MSA 17.237(531X1). The Fund is provided sums of money by assessments imposed on all Michigan employers. MCL 418.551(2); MSA 17.237(551)(2). Several refinements to 1980 PA 357 were made by 1982 PA 32, effective March 10, 1982.
"Plaintiff contends that Chapter 5 of 1980 PA 357 and 1982 PA 32 in conjunction with 1982 PA 7 unconstitutionally delegates legislative power to private associations in violation of art 4, § 1 of the Michigan Constitution and is not a valid incorporation by reference. Plaintiff maintains that § 501(3) of the Act does not define employers who will be permitted to use the Fund and unconstitutionally delegates the power to create that definition to a private, nongovernmental association.
"Section 501(3) of the Act under 1980 PA 357 provides:
" 'As used in this section and sections 531 to 552b, "employment in the logging industry” means employment in the logging industry as described in the section in the workmen’s compensation and employers liability insurance manual, entitled, "logging or lumbering and drivers code no. 2702” which is ñled with and approved by the commissioner of insurance.’ (Emphasis added.) MCL 418.501(3); MSA 17.237(601X3).
"Under 1982 PA 32, this section states:
" 'As used in this chapter, "employment in the logging industry” means employment in the logging industry as described in the section in the workmen’s compensation and employers liability insurance manual, entitled, "logging or lumbering and drivers code no. 2702”, which is ñled with and approved by the commissioner of insurance. ’ (Emphasis added.)
"This language clearly indicates that the standard by which to determine 'employment in the logging industry’ is the definition contained in the manual, entitled, 'logging or lumbering and drivers code no. 2702’. Pursuant to the affidavit of Ronald C. Hempsted, the director of the Market Standards Division of the State of Michigan Insurance Bureau, the liability insurance manual, entitled 'logging or lumbering and drivers code no. 2702’ was filed with and approved by the insurance commissioner at the time 1980 PA 357 and 1982 PA 32 were enacted. There is no legislative intent that any subsequent changes, amendments, or variations in the 'logging or lumbering and drivers code no. 2702’ would also effectuate a change in the definition of 'employment in the logging industry’. The definition in existence at the time of the enactment of 1980 PA 357 and 1982 PA 32 is controlling. Therefore, this is an adoption of a definition already in existence in the public records of the state rather than a delegation of authority to an association to set a standard.
"The principle of statutory adoption or incorporation by reference of an existing statute, rule, or regulation has long been the rule in Michigan. City of Pleasant Ridge v Governor, 382 Mich 225, 244; 169 NW2d 625 (1969); People v Urban, 45 Mich App 255, 262; 206 NW2d 511 (1973); People v De Silva, 32 Mich App 707, 713; 189 NW2d 362 (1971). It has been held that an act which adopts by reference the whole or a portion of another statute or code incorporates the standard as it existed at the time of the adoption, and does not include subsequent modifications, amendments, or variations to the adopted statute or code. But, the adoption by reference of future legislation and rules are unconstitutional. De Silva, supra, p 714. Such is not the situation in this case.
"In § 501(3) of the Act the Legislature intended that the manual in existence at the time provisions of 1980 PA 357 and 1982 PA 32 were enacted to be the standard by which to determine 'employment in the logging industry’. The subsequent amendment to the manual by the National Association of Workers’ Compensation Insurance and the enactment of 1982 PA 7, which becomes effective on January 1, 1983, does not affect this standard. Therefore the Act does not delegate authority to an association to create a standard but involves a valid adoption of a standard already in existence.
II
"Plaintiff next contends that the provisions of 1980 PA 357 and 1982 PA 32 contain more than one object which is not expressed in its title in violation of Const 1963, art 4, § 24. Plaintiff argues that the object of these provisions is to subsidize the logging industry which is not embraced in the workers’ compensation benefit scheme in the title of the Act.
"The title of the Act, as amended, MCL 418.101 et seq.; MSA 17.237(101) et seq., reads as follows:
" 'An Act to revise and consolidate the laws relating to worker’s disability compensation; and to repeal certain acts and parts of acts.’
"The title of the previous act, MCL 411.1 et seq.; MSA 17.141 et seq., read in pertinent part:
" 'An Act to promote the welfare of the people of this state, relating to the liability of employers for injuries or deaths sustained by their employees, providing compensation for the disability or death resulting from occupational injuries or disease or accidental injury to or death of employees and methods for the payment, and apportionment of the same, providing for assessments, establishing an industrial accident board, defining its powers, providing for a review of its awards, making an appropriation to carry out the provisions of this act, and restricting the right to compensate or damages in such cases to such as are provided by this act.’ (Emphasis added.)
"The primary objective of this act is the protection of the worker. The title of the act contains broad and comprehensive language covering the entire spectrum of worker compensation and the means by which such payment is to be effected. The phrases, 'liability of employer for injuries or deaths’, 'methods for the payment, and apportionment of the same,’ and 'providing for assessments,’ call attention to the establishment of the Fund, the assessment of funds to be collected from the employers to maintain it, and the reimbursement from it to eligible employers. This is a method of effectuating compensation for workers’ injuries — which furthers the general goal expressed in the title of the act.
"One of the purposes of the title-object limitation is to provide the public with adequate notice of the contents of a bill from its title. Vernor v Secretary of State, 179 Mich 157; 146 NW 338 (1914); People v Wohlford, 226 Mich 166, 168; 197 NW 558 (1924). However, a title need not be an index to all the provisions the act contains. People v Denmark, 74 Mich App 402, 413; 254 NW2d 61 (1977). The rule followed in Michigan is stated in Loomis v Rogers, 197 Mich 265, 271; 163 NW 1018 (1917), as follows:
" 'if the act centers to one main general object or purpose which the title comprehensively declares, though in general terms, and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose, the constitutional requirement is met.’
"See also Michigan Boiler & Sheet Iron Works v Dressler, 286 Mich 502, 508; 282 NW 222 (1938).
"The title of the Act expressly refers to the liability of the employers. The creation of the Fund is germane, auxiliary, and incidental to the primary object of the Act and need not be expressed in the title of the Act. The provisions of 1980 PA 357 and 1982 PA 32 which establish the Fund, although not expressed in the title of the Act, are not in contravention of Const 1963, art 4, §24.
Ill
"Plaintiff next challenges the constitutionality of the Fund and the means by which it is contributed to on the basis of Equal Protection Clauses of both the Michigan and the United States Constitutions. Plaintiff argues that the selection of logging industry employers for beneficial liability limitations which are denied to all other worker compensation employers is arbitrary. In support of this position, plaintiff relies on the case of Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975).
"In evaluating constitutional challenges to socioeconomic legislation on the basis of equal protection, both the United States and Michigan Supreme Courts apply the traditional 'rational relation’ test. Feldman v Dep’t of Social Services, 84 Mich App 103, 106; 269 NW2d 319 (1978). In applying this standard the challenged statute is presumed to be constitutional and the burden is placed on the challenging party to show that the law has no reasonable basis. Michigan State Employees Ass’n v Michigan Employment Security Comm, 94 Mich App 677, 685; 290 NW2d 729 (1980).
"Plaintiff maintains that the stricter standard, which requires the legislative classification to possess a 'fair and substantial relation’ to the object of the legislation should be applied in this case. That standard was set forth and applied in the case of Manistee, supra, which involved legislation requiring guest passengers to show gross negligence, while all others merely had to show negligence, in order to recover for loss or injury. The Manistee Court, p 671, stated that this test is used 'where the challenged statute carves out a discrete exception to a general rule and the statutory exception is no longer experimental’.
"The statutory amendments challenged in this case do not meet either of these situations. In this case the classification is not affirmatively drawn but results from the overall statutory scheme which results in a method of reimbursing an employer for all benefits paid to an injured employee in excess of $12,500.00. This classification does not limit the amount of compensation to which an injured employee is entitled nor is it more difficult or easier for an injured employee to collect. Also, the Fund cannot be considered 'no longer experimental’. Manistee involved the constitutionality of the state’s 45-year-old guest passenger act. 1980 PA 357, which created the Fund, did not become effective until January 1, 1982.
"The test for determining the constitutionality of socioeconomic legislation is set forth in Shavers v Attorney General, 402 Mich 554, 612-613; 267 NW2d 72 (1978), which involves a constitutional challenge of the no-fault automobile insurance enactments on the basis of equal protection and due process. There the Court stated:
" 'The test to determine whether legislation enacted pursuant to the police power comports with due process is whether the legislation bears a reasonable relation to a permissible legislative objective.
" 'The test to determine whether a statute enacted pursuant to the police power comports with equal protection is, essentially, the same. As the United States Supreme Court declared in United States Dep’t of Agriculture v Moreno, 413 US 528, 533; 93 S Ct 2821; 37 L Ed 2d 782 (1973):
"' "Under traditional equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest.” ’ (Citations omitted.)
"The Supreme Court in Johnson v Harnischfeger Corp, 414 Mich 102, 117; 323 NW2d 912 (1982), again addressed the equal protection and due process constitutional objections to legislative classifications with respect to §361(2)(g) of the Act, and reaffirmed that the test stated in Shavers, supra, pp 612-613 was the proper standard to test socioeconomic legislation on equal protection and due process grounds.
"Under the traditional 'rational relation’ test social or economic legislation will be upheld if it is supported by ' "any state of facts either known or which could reasonably be assumed’ ”. O’Brien v Hazelet & Erdal, 410 Mich 1, 17; 299 NW2d 336 (1980). When the facts are debatable, the legislative judgment must be accepted. Johnson v Harnischfeger, supra, p 114.
"This case is analogous to Stottlemeyer v General Motors Corp, 399 Mich 605; 250 NW2d 486 (1977). There an objection on the basis of equal protection and due process was raised and decided by the Supreme Court regarding the former Silicosis and Dust Disease Fund. (By amendment to Chapter 5 of the Worker’s Disability Compensation Act, the logging industry fund was created and added to that fund.) In upholding the constitutionality of the former Silicosis and Dust Disease Fund, the Supreme Court stated:
" 'First we note that the fund and related tax on employers is for a valid public purpose. The preservation of important segments of Michigan’s industrial base with the associated benefits to the state is a legitimate goal. This is especially true when the threat to these employers springs from statutory compensation requirements.’ (Emphasis supplied.) Stottlemeyer, supra, p 614.
"Such is the situation in the instant case. The Fund was established to cushion the logging industry from potentially ruinous compensation rates. According to the affidavit of Ronald C. Hempsted, logging industry employers were subject to compensation rates which approximated half of the payroll of an individual business. The Fund which was created to shield the logging industry from these potentially ruinous compensation rates is rationally related to the legislative purpose in preserving the logging industry as a viable and competitive industry. The legislative classification creating the Fund is rationally related to a reasonable governmental interest. Therefore, the Fund does not offend the constitution on equal protection grounds.
IV
"Plaintiff next contends that the apportionment and reimbursement provisions of Chapter 5, as amended, of the Act which requires all Michigan employers to contribute to the Fund are arbitrary and constitute a taking of property without due process. Plaintiff argues that the denial to all other Michigan employers of the right to be reimbursed from the fund for expenses incurred common to all violates Due Process Clauses of both the Michigan and the United States Constitutions.
"The test for reviewing socioeconomic legislation on equal protection and due process grounds is essentially the same. Johnson v Harnischfeger, supra, p 117.
"The assessment formula, created by the amendments to Chapter 5 of the Act, to which plaintiff objects, is a similar formula to that which is found under the former Silicosis and Dust Disease Fund. The Supreme Court in upholding the former Silicosis and Dust Disease Fund stated:
" 'Appellant has failed to establish that the Silicosis and Dust Disease Fund and its financing scheme are so arbitrary and unreasonable as to be an unconstitutional taking of money. Because the fund has a valid purpose and is administered pursuant to rational distinctions and policy judgments, we conclude that there is no violation of * * * due process.’ (Emphasis supplied.) Stottlemeyer, supra, p 616.
"Plaintiff maintains that the legislative interest in protecting the logging industry from potentially ruinous compensation rates is not a valid public purpose. Plaintiff argues that in order for such a statute to be an exercise of a valid pupose it must assist the public.
"In Stottlemeyer the Supreme Court found the former Silicosis and Dust Disease Fund, which favored a specific industry, to be constitutional. The Fund, just as the former Silicosis and Dust Disease Fund, serves the purpose of preserving the economic and industrial base of the state 'when the threat to these employers springs from statutory compensation requirements’, while still providing for workers’ benefits. Stottlemeyer, supra, p 614. The logging industry is a viable and important segment of the state’s industrial base and the creation of a statutory fund to preserve that industry is a permissible legislation action. The Fund, to which all Michigan employers are required to contribute, but which has the effect of shielding the logging industry from potentially ruinous compensation rates is rationally related to that legislative objective. As noted by the Supreme Court in Stottlemeyer, supra, pp 614-615, citing an early unemployment compensation case, Carmichael v Southern Coal & Coke Co, 301 US 495, 514-515; 57 S Ct 868; 81 L Ed 1245 (1937):
" ' ’’the requirements of due process leave free scope for the exercise of a wide legislative discretion in determining what expenditures will serve the public interest.
" * * The existence of local conditions which, because of their nature and extent, are of concern to the public as a whole, the modes of advancing the public interest by correcting them or avoiding their consequences, are peculiarly within the knowledge of the legislature, and to it, and not to the courts, is committed the duty and responsibility of making choice of the possible methods ****** whether the present expenditure serves a public purpose is a practical question addressed to the law-making department, and it would require a plain case of departure from every public purpose which could reasonably be conceived to justify the intervention of a court.” ’
"It is concluded that Chapter 5 of the Act creating the Fund does not violate the Due Process Clause of the Michigan or the United States Constitution.
"Based on the foregoing, plaintiff’s motion for summary judgment pursuant to GCR 1963, 117.2(3) and the request for preliminary injunction are denied.
"An order may enter consistent with this opinion.”
Affirmed.
No costs, a public question being involved. | [
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Per Curiam.
Defendant pled guilty to perjury during a court proceeding for a capital offense. MCL 750.422; MSA 28.664. He was sentenced to a prison term of from six to twenty years. Defendant appeals as of right.
Defendant’s perjury conviction arose out of his testimony during the retrial of Albert Keenum for first-degree murder. Pursuant to a plea bargain, defendant testified at Keenum’s original trial that Keenum had hired him to kill Keenum’s wife. In exchange for his testimony, defendant was permitted to plead guilty to second-degree murder. At the retrial of Keenum, defendant offered conflicting testimony, exculpating Keenum and himself. At the plea proceeding, defendant admitted that he had perjured himself but explained that he felt threatened and afraid to testify against Keenum.
The sole issue raised on appeal is whether defendant’s six- to twenty-year sentence for perjury was excessive. Our review is limited to determining whether, in imposing the sentence, the lower court abused its discretion to the extent that it shocks our conscience. People v Coles, 417 Mich 523; 339 NW2d 440 (1983).
In order to aid the appellate court in making its determination, Coles requires the sentencing court to articulate on the record its reasons for imposing sentence. In this case, the court articulated the following considerations:
In determining this sentence for this particular defendant and this particular case, this Court has considered the disciplining or punishment of the wrongdoer, protection of society and potential for rehabilitation of this defendant and the deterring of others from committing like offenses. The Court has to place great weight on the factor of deterring others from committing like offenses.
These are the same criteria which were recommended for use by the Supreme Court in Coles and we find nothing improper in their use in the present case.
Defendant also suggests that the court enhanced the defendant’s sentence for the perjury conviction in order to compensate for his sentence in the underlying murder conviction. This claim is unsubstantiated by either defendant’s brief or the record.
Defendant next claims that his sentence was excessive in light of the circumstances surrounding his perjury. Defendant asserts that, as an inmate at Jackson Prison, he feared the consequences of being labeled a "snitch” and committed perjury only to protect himself. However, defendant admitted at the plea proceedings that he did not have an immediate fear of bodily harm, that he was aware that other options, aside from perjury, existed and that he chose not to exercise his other options. While we recognize the reality of defendant’s fears, we cannot overlook the fact that defendant played a key role in a murder trial and admittedly elected to lie "about the whole thing.” In light of the severity of the offense, we are not persuaded that defendant’s sentence was unduly excessive.
Defendant’s remaining issues, selective prosecution and right to counsel during the retrial, are not relevant to the sentencing issue and are not properly submitted for our consideration.
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Per Curiam.
Appellants appeal as of right from an opinion and order of the Wayne Probate Court which construes the last will and testament of Audrey Burruss, deceased. The order denies appellants a share in the residue of decedent’s estate. We affirm.
The underlying facts are not in dispute. Decedent died testate on July 5, 1982. During her lifetime she had four children: Roland Burruss, Anna Vollick, Jeanne Glaeser and Audrey Larson. Decedent’s husband predeceased her, as did Roland Burruss. Audrey Larson also predeceased her mother, but left three children, the appellants herein.
Article 3 of decedent’s will, dated August 11, 1953, provided as follows:
In the event my said husband, Peter D. Burruss, should predecease me, or in the event that my husband and I should meet our deaths simultaneously, as in some common catastrophe, then in either of such cases, I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, wheresoever situated, in equal amounts, share and share alike, to my daughters, Anna Mary Vollick of Redford Township, Wayne County, Michigan, Jeanne Glaeser of Detroit, Michigan and Audrey Larson of Detroit, Michigan, or to the survivor or survivors of them.
Anna Vollick, the personal representative of decedent’s estate, petitioned the probate court for construction of the will. Anna argued that she and her sister, Jeanne, should take the residue of the estate to the exclusion of decedent’s three grandchildren, the appellants. The appellants’ position was that they were entitled to a one-third interest in the residue, claiming the share of their deceased mother, Audrey Larson.
The sole issue considered by the probate court was whether the language, "share and share alike, to my daughters ... or the survivor or survivors of them,” created an ambiguity within the four corners of the will, thereby requiring will construction. The court found that the will was clear and unambiguous and that it need not go outside the will to interpret it. The court held that the language expressed an intent to make a provision for the death of the beneficiaries contrary to that provided for in Michigan’s anti-lapse statute, MCL 700.134(1); MSA 27.5134(1). Appellants were therefore found to have no right, title or interest to decedent’s estate.
Appellants first contend that the trial court committed error in finding that decedent’s will clearly and unambiguously expressed decedent’s intent to give the residue of her estate in equal shares to her living daughters.
The role of the probate court in will cases is to ascertain and give effect to the intent of the testator. In re Bair Estate, 128 Mich App 713, 716; 341 NW2d 188 (1983). Unless a will is ambiguous on its face, the testator’s intention is derived from the language of the will. In re Dodge Trust, 121 Mich App 527, 542; 330 NW2d 72 (1982), lv den, 418 Mich 878 (1983). In the instant case, the probate court found that there was no ambiguity on the face of the will and that the "survivorship” language of article 3 clearly intended to provide for the distribution of the remainder of decedent’s estate to her children who were living at the time of her death. The learned judge stated:
This court finds that the language used by decedent is clear and unambiguous on the face of her will. Testatrix specifically stated that the residue of her estate was to be given to her three daughters "share and share alike ... or to the survivor or survivors of them.” "Them” refers to decedent’s three daughters, Anna, Jeanne and Audrey. The survisorfe) [sic] of "them” are Anna and Jeanne because they survived Audrey’s death.
Findings of the probate court, sitting without a jury, are to be reversed by this Court only when clearly erroneous. In re Wojan Estate, 126 Mich App 50, 53; 337 NW2d 308 (1983), lv den 418 Mich 873 (1983). In the instant case, the findings of the probate court were correct and should accordingly be affirmed. The testatrix’s intent can be ascertained both from the clear language used in the will and from the very presence of such language in the will, read in conjunction with Michigan’s anti-lapse statute.
Here, the testatrix left her estate to her three children (listed by name) or to the "survivor or survivors of them.” Our Supreme Court has interpreted such "survivorship” language in a manner consistent with the probate court in the case at bar. In In re Holtforth’s Estate, 298 Mich 708; 299 NW 776 (1941), the Court interpreted the language "[t]o the seven children of my brother, John Holt-fort, and the survivor of them,” to mean that if one or more of John Holtforth’s children should die before the testator, that portion of the testator’s estate was to go solely to John Holtforth’s surviving children. The Court’s ruling excluded the heirs of the deceased seventh child. The Court further held that the language was plain, not ambiguous. A similar interpretation of the survivorship language was used by the Court in In re Blodgett’s Estate, 197 Mich 455; 163 NW 907 (1917).
The principles set out above must apply to the case at bar. "Survivor” has a well-settled meaning in our law (e.g., joint tenancies with "rights of survivorship”). This language was specifically used in decedent’s will by an attorney who can be presumed to know its meaning in this context. Had the drafter of the will wanted to effectuate the testatrix’s intent as that intent is perceived by appellants, he could have anticipated the contin gency of the death of one of the children by providing for "their children,” "their issue,” or "their heirs.” Rather, he specifically used the word "survivor.”
Had the will not contained the survivorship language, appellee concedes that appellants would have taken their deceased mother’s share by representation in accordance with Michigan’s antilapse statute, MCL 700.134(1); MSA 27.5134(1). That statute reads, in pertinent part:
If a lineal descendant of a grandparent of the testator who is designated as a devisee or would have been a devisee under a class gift had the descendant survived the testator, fails to survive the testator, whether the devisee dies before or after the execution of the will, or is deemed to have predeceased the testator, the issue of the deceased devisee who survive the testator by 120 hours shall take in place of the deceased devisee by representation. A person who would be a devisee under a class gift if that person survived the testator is treated as a devisee for purposes of this section whether that person’s death occurred before or after the execution of the will.
This statute, however, applies "unless a contrary intention is indicated by the will.” MCL 700.133(2); MSA 27.5133(2). The survivorship language in the instant case indicates a contrary intent, so the statute is inapplicable.
Appellants next contend that the trial court committed error in refusing to consider extrinsic evidence offered by appellants for the purpose of demonstrating the existence of an ambiguity and establishing decedent’s intent.
This Court has held that the cardinal rule in will cases is to ascertain and give effect to the intent of the testator. Intent is to be gleaned from the will itself unless an ambiguity is present. Where there is an ambiguity, the court looks outside the four corners of a will in order to carry out the testator’s intent and may consider surrounding circumstances and rules of construction in establishing the intent. In re Bair Estate, supra, p 716. Michigan cases have considered two types of ambiguity in the construction of wills, patent and latent. A patent ambiguity exists if an uncertainty as to meaning appears on the face of the instrument and arises from the use of defective, obscure, or insensible language. A latent ambiguity arises where the language used is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates the possibility of more than one meaning. In re Kremlick Estate, 417 Mich 237, 240; 331 NW2d 228 (1983), reh den 417 Mich 1143 (1983).
Appellants cite the Kremlick decision for the proposition that extrinsic evidence_may be used not only to clarify the meaning of the latent ambiguity in a will, but also to establish intent. Relying on Kremlick, appellants argue that a letter from the attorney for decedent should have been considered by the probate court. In our opinion, appellants read the Kremlick decision too broadly. There, decedent made a bequest to the "Michigan Cancer Society.” The appellants therein produced an affidavit from the executrix of Kremlick’s estate which indicated that the intended beneficiary was the American Cancer Society, Michigan Division, instead of the Michigan Cancer Society, an affiliate of the Michigan Cancer Foundation. The Court noted:
The executrix stated that she had discussed the provisions of Mr. Kremlick’s will with him on many occasions, and that he frequently had men tioned that the American Cancer Society was to be a beneficiary. Appellants also sought to establish that Mr. Kremlick previously had made substantial direct contributions to the American Cancer Society, that the society had helped his wife when she was dying of cancer, and that at the time of her death he requested memorials to the American Cancer Society. [In re Kremlik, p 241.]
The Court then analogized the construction of wills to the interpretation of contracts and said that "where an ambiguity may exist, extrinsic evidence is admissible” to prove the existence of the ambiguity and to indicate the actual intent of the parties. Id., 241. The Court remanded the case to the trial court because it concluded that the affidavit could be used to establish an ambiguity and resolve it.
We hold that the circumstances of the instant case are distinguishable from those considered in Kremlick. Here, there was no latent ambiguity in decedent’s will to necessitate going beyond the four corners of the document to determine intent. Here, the "survivorship” language suggests a single meaning. There is no extrinsic "fact” which creates a possibility of more than one meaning. Rather, it is an unsupported interpretation of the language of the will and the appellants’ perception of their grandmother’s intent that is argued to create such a possibility. The letter received by appellants from decedent’s attorney was prepared at appellants’ request. That attorney drafted the will for decedent twenty-nine years previously. Under such circumstances, it is doubtful that the letter could even be considered to be reliable or persuasive "evidence” of the decedent’s intent.
Surely, Kremlick cannot be read to imply that a probate court must look at extrinsic evidence to interpret clear legal language every time there is a potential beneficiary who is displeased with the disposition of property by a will. If we were to adopt appellants’ interpretation of Kremlick, no will, no matter how clear the language used, would be safe from the possibility of attack through the introduction of extrinsic "evidence.” Consequently, we decline appellants’ invitation to impair the certainty of testamentary dispositions.
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Per Curiam.
In this suit to compel the 67th District Court to allow public access to its files, plaintiff appeals as of right from an order of the Genesee Circuit Court entered June 6, 1985, granting summary judgment to defendant. We reverse in part.
The basic facts, set forth in plaintiff’s deposition on the question of summary disposition, are not disputed. In November, 1983, plaintiff was elected to a four-year term on the city council of Burton, Michigan. In February, 1984, the city council formed a committee to investigate allegations of political payoffs and favoritism in the misdemeanor diversion program. The diversion program is similar to a probation program except that a participant in the diversion program is never formally charged with a crime if he successfully completes the program. Patrick McDougal operated the program under a contract with the city council. In order to be eligible for the diversion program, one had to be recommended by the city attorney.
Both before and after the investigation committee was formed, the plaintiff asked Mr. McDougal for access to the diversion program files. When the plaintiff asked for access to the files before the investigation committee was formed, she asked out of curiosity because she had heard rumors of drunk drivers making payoffs to avoid criminal prosecution. After the committee had been formed, she and Councilwoman Barrera requested access to twelve individual files on people who had been placed in the diversion program. The plaintiff intended to learn the locations of the offenses, the Breathalyzer results, and whether the individuals had prior convictions. Mr. McDougal would not give them access.
On August 1, 1984, plaintiff applied to the presiding judge of the 67th District Court for an administrative order granting public access to the 67th District Court files. On August 10, 1984, an attorney, Jack Belzer, moved to intervene on grounds that confidences of his clients would be disclosed if the public were granted access to the district court files. On August 21, 1984, Judge Harry P. Newblatt heard oral arguments on the plaintiffs motion for an administrative order and ruled that the diversion program files were City of Burton records, not court records. The court also ruled that the court files contained confidential matters that could not be made available to the general public, such as Law Enforcement Information Network reports. The court further ruled that the harm to the person put on diversion would outweigh any benefit from public inspection of the records. On September 4, 1984, the investigation committee, of which plaintiff was a member, was disbanded. On September 5, 1984, an order was issued denying the relief requested.
On September 19, 1984, plaintiff filed a complaint for superintending control in the Genesee Circuit Court seeking an order from the circuit court commanding the district court "to forthwith make available to plaintiff and the general public all court files of the 67th District Court.” Both parties moved for summary disposition and arguments were heard on May 20, 1985. At this hearing before Judge Earl E. Borradaile, the parties argued whether the plaintiff was properly before the court, whether superintending control was the proper remedy, and whether the members of the public at large had a right of access to court files. Following the hearing, Judge Borradaile ruled that a writ of superintending control, rather than an appeal from the district court, was the proper form of action; that any writ of superintending control could only control access to district court records; that the court did not know whether diversion files were district court files; and that since the Burton City Council had disbanded the investigation committee, the plaintiff was not entitled to access to records based on her membership on the committee. The court also ruled that, as an individual member of the council, the plaintiff had no more right to see the records than anyone else.
So, we’re dealing with — most of these questions are ones of the same issue that Midland Publishing Company dealt with: that once it becomes a public trial, then there is the right to have access. But the court does not believe that any of the cases give the right to have access prior to the time that a case becomes a public trial, basically something that Justice Cavanagh has said in In re: Midland Publishing Company [420 Mich 148; 362 NW2d 580 (1984)].
This court cannot find, based upon its review of the cases, that the general public, whether it be Ms. Buchanan or anyone else, has a right to go into a court as to a case that has not yet been tried in the public court and demand access to the records of the clerk keeping the records of that court.
If there were a showing in this case that the Burton City Council’s special committee to investigate the actions of its city attorney, that committee still being in effect, and by due authorization from the city council as having acted by at least a majority voting and saying that they hereby requested the right of inspection in order to determine the actions of the city attorney. Then the court believes that the district court judge or judges at that particular time would have to review the action of the city commission as to whether in fact it did have a majority, and whether that was the proper interest that is detailed in all the cases to justify the judge authorizing the clerk of the court to permit access by that committee.
Since it seems apparent to this court that the authority of the committee had ended at the time the request was made, this court cannot find that the petitioner in this case has the right to demand, as a matter [sic] of the city council, that she be granted access to any and every file which she asks for.
In fact as merely one member, without a majority vote in the city council, the court doubts if any district judge, or any other judge for that matter, would have to give her access. But if she did show that she was a duly-constituted person, either as an individual or as the duly-authorized member of a committee, then the district judge would have the right, as the court notes the Nixon Supreme Court opinion [Nixon v Warner Communications, Inc, 435 US 589; 98 S Ct 1306; 55 L Ed 2d 570 (1978)] says, to, in that judge’s discretion, determine if there should be the granting of access.
On June 6, 1985, the court entered an order denying plaintiffs motion for superintending control and granting defendant’s counter-motion for an order of dismissal.
We think the respected trial judge stated the law concerning a citizen’s right to access of court records too narrowly. Michigan has long recognized a citizen’s common-law right of access to public records. As early as 1889, our Supreme Court in Burton v Tuite, 78 Mich 363; 44 NW 282 (1889), granted a private citizen, engaged in the abstract business in Detroit, the right to éxamine the records and files in the city treasurer’s office in Detroit. In so doing, Justice Morse, speaking for the Court, stated:
I can see no danger of great abuses or inconveniences likely to arise from the right to inspect, examine, or make note of public records, even if such right be granted to those who get their living by selling the information thus gained. The inconvenience to the office is guarded against by the statute, which authorizes the incumbent to make reasonable rules and regulations with reference to the inspection. And when abuses are shown there will no doubt be found by the Legislature or the courts a remedy for them. It is plain to me that the Legislature intended to assert the right of all citizens, in the pursuit of a lawful business, to make such examinations of the public records in public offices as the necessity of their business might require, subject to such rules and restrictions as are reasonable and proper under the circumstances. [78 Mich 375-376.]
The citizen’s broad right of access to court records announced in Burton has consistently been cited with approval in subsequent Michigan cases. In Booth Newspapers, Inc v Muskegon Probate Judge, 15 Mich App 203; 166 NW2d 546 (1968), this Court upheld the right of a newspaper reporter to look at the last will and testament of a recently deceased prominent citizen. In Penokie v Michigan Technological University, 93 Mich App 650, 662; 287 NW2d 304 (1979), this Court held that, in addition to the authorization provided by Michigan’s Freedom of Information Act, access to the name and salary or wage of each person employed by defendant university from 1970 to 1979 was granted to a private citizen under the common-law authority cited in Burton and in Nowack v Auditor General, 243 Mich 200; 219 NW 749 (1928). Further, in the most recent decision by this Court, In re Midland Publishing Co, Inc, 113 Mich App 55, 63; 317 NW2d 284 (1982), we stated:
Michigan has long recognized a common-law right to access to public records. Burton v Tuite, 78 Mich 363; 44 NW 282 (1889), Nowack v Auditor General, 243 Mich 200; 219 NW 749 (1928). However, since a common-law right is involved, the Legislature may restrict the general broad right of access to public records. See Booth Newspapers, Inc v Muskegon Probate Judge, 15 Mich App 203; 166 NW2d 546 (1968).
Plaintiff has not cited any legislative abridgment of this right, nor have we found any legislative action that would be applicable to the instant situation.
However, the common-law right of access to court records is not without limitation. It is not available to just any citizen. As explained at some length in Nowack, supra, the person seeking access to court records must show a special interest warranting receipt of the records requested.
The plaintiff has not sought to enforce his rights through the office of the attorney general. He has begun this suit in his own name. In order to maintain it, he must show that he has a special interest not possessed by the citizens generally. Apart from his public interest, his petition shows that he has been hampered and injured in his business by the refusal of the defendant to allow him to inspect the records in his office. This is a special interest. Is it a sufficient interest to entitle him to the aid of this court by writ of mandamus? We think so. He is the manager and editor of a newspaper. It is published and circulated in Michigan. He sells news to the people through the medium of his paper. In a proper and lawful manner, he has a right to publish matters of public interest. The citizens and taxpayers of this State are interested in knowing whether the public business is being properly managed. By denying him access to the public records for the purpose of securing such information, he is deprived of legal rights for which he is entitled to redress by the writ of mandamus. It is the plain duty of the auditor general to exhibit his official records to any citizen of Michigan who desires to inspect them for any proper and lawful purpose in circumstances not detrimental to the public business. [243 Mich 208-209.]
See, also, Blue Cross & Blue Shield of Michigan v Ins Bureau, 104 Mich App 113; 304 NW2d 499 (1981).
The trial court apparently felt that plaintiff lacked the "special interest” required under Nowack because the investigation committee of which plaintiff was a member had been disbanded and, in the absence of a showing that a majority of the members of the city council had voted to request inspection of the court records, plaintiff was without the special interest required to bring suit. We disagree.
At the time plaintiff first requested the records from Patrick McDougal, the committee was in existence. It was still in existence on August 1, 1984, when plaintiff applied to the 67th District Court for an order granting access to the files. Plaintiff was an elected member of the city council. She still remains a member of the council. As an elected member of the council, she had a public interest in seeing whether the diversion program was being administered properly and whether it should be continued under the same administrator. Clearly, plaintiff had, and continues to have, a special interest in inspecting the court records to the extent that they would reveal mismanagement of the diversion program.
However, plaintiff is not entitled to the broad relief requested. Both in her complaint and at oral argument on appeal, plaintiff requested that the judges and clerks of the 67th District Court be ordered to allow unlimited access to all of the files of the 67th District Court. In our opinion, access should be limited to those files which reasonably pertain to the diversion program and the enforcement of city ordinances. Further, as stated in Booth Newspapers, Inc, supra, pp 207-208, if the files contain documents which by law cannot be shown to Burton City Council members, such docu ments can be removed by the district court clerks before allowing plaintiff to review the files. Likewise, as indicated in Burton, supra, p 375, the district court should be allowed to reasonably regulate the time, place and manner of the inspection of the files.
Accordingly, the order of summary disposition to defendant is reversed and the matter is remanded to the trial court with instructions to issue an order of superintending control within the above described limitations.
MCL 15.240(4); MSA 4.1901(1)(4). | [
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R. C. Livo, J.
Petitioner, Zenith Industrial Corporation, appeals as of right from a Michigan Tax Tribunal decision upholding deficiency assessments for the taxable periods ending June 30, 1975, and December 31, 1975. We have been asked to determine whether the running of the period of limitations under the Michigan Income Tax Act of 1967 was tolled for state deficiency assessment purposes where the state taxpayer’s federal tax returns were modified by a federal audit which was completed more than three years after filing of the taxpayer’s state returns. We uphold the Tax Tribunal’s ruling that the running of the period of limitations may be tolled even though three years have passed.
I
The parties have stipulated to the facts. Petitioner filed its Michigan corporate income tax returns for the taxable periods ending June 30, 1975, and December 31, 1975, with the Department of Treasury on March 16, 1976, and September 20, 1976, respectively. At some point, the Internal Revenue Service audited petitioner for the taxable period ending June 30, 1975, and for the taxable period ending June 30, 1976. Petitioner executed two federal forms entitled "Consent to Extend the Time to Assess Tax” for federal audit purposes for the taxable period ending June 30, 1975, and one for the taxable period ending 1976. The forms were executed in August and September of 1979. At the end of the audit, which was completed on October 23, 1979, the irs assessed additional federal corporate income taxes which were paid without hearings or litigation. Petitioner did not, at any time, notify the Michigan Department of Treasury of the federal adjustments or modifications in its tax returns for the taxable periods in question. However, in March of 1980, the irs notified the Department of Treasury of the federal adjustments to petitioner’s corporate income tax returns.
Based upon information provided by the irs, the Department of Treasury increased petitioner’s taxable income for the taxable periods ending June 30, 1975, and December 31, 1975, which resulted in deficiencies of its Michigan corporate income tax of $21,725 and $25,600, respectively. The de partment issued its final tax assessment to petitioner on February 18, 1981.
In May, 1981, petitioner sought Tax Tribunal review of deficiency assessments issued by the Michigan Department of Treasury, contending that the applicable period of limitations had expired. The Treasury Department contended tht the running of the period of limitations was tolled because a federal audit was performed and petitioner had failed to give notice of a resulting change in its federal tax liability.
Following a hearing before Hearing Officer Thomas E. Straatsma, Jr., the Treasury Department’s motion for directed verdict was treated as a motion to dismiss and granted, because there was no evidence of the date when the period of limitations expired. On August 24, 1982, Tribunal Judge Roy Spenser adopted the hearing officer’s opinion and ordered dismissal. This Court reversed and remanded in Zenith Industrial Corp v Dep’t of Treasury, 130 Mich App 464; 343 NW2d 495 (1983).
On remand and in lieu of a formal hearing, the parties stipulated to the facts and filed briefs. Hearing Officer Thomas Straatsma, Jr., canceled the deficiency assessment applicable to the taxable period ending June 30, 1975, and upheld the deficiency assessment applicable to the taxable period ending December 31, 1975. On May 24, 1985, Tribunal Judge William Koney reversed the hearing officer’s determination and upheld both deficiency assessments. Koney ruled that the running of the period of limitations was suspended by the irs’s modification of petitioner’s federal income tax return. Moreover, the department’s issuance of the deficiency assessment within the one-year period of limitation after receiving notice of the irs modification satisfied statutory requirements. Deficiency assessments of $21,725 for the taxable year ending June 30, 1975, and $25,600 for the taxable period ending December 31, 1975, plus accrued interest on each were upheld.
The sole issue for our consideration is whether the running of the limitations period under the Michigan Income Tax Act of 1967 was tolled or suspended for state deficiency assessment purposes when the taxpayer’s federal tax returns were modified by a federal audit more than three years after the petitioner filed its state tax returns.
Our review of Tax Tribunal decisions is quite limited. In the absence of fraud, we determine whether the tribunal made an error of law or adopted a wrong principle. Findings of fact are final, provided that they are supported by competent, material and substantial evidence. Greer v Dep’t of Treasury, 145 Mich App 248; 377 NW2d 836 (1985).
Resolution of this issue involves judicial construction of two statutory provisions of the Michigan Income Tax Act of 1967, MCL 206.1 et seq.; MSA 7.557(101) et seq. The Michigan Legislature "piggy-backed” the state corporate income tax scheme on the Internal Revenue Code. See Fremont Mutual Ins Co v Dep’t of Treasury, 73 Mich App 526, 530; 252 NW2d 837 (1977). Both the Internal Revenue Code and the Michigan Income Tax Act of 1967 provided for a three-year limitation period at the time the subject corporate income tax returns were filed in 1976. See 26 USC 6501(a), and MCL 206.411(1); MSA 7.557(1411)(1). The pertinent tolling provision provided in 1976 for a three-year limitation on the issuance of deficiency assessments:_
The running of the statute of limitations shall be suspended for the period pending final determination of litigation of or hearing on a taxpayer’s federal income tax return or of the return required by this act, or in the event any notice is required under the provisions of [MCL 206.325; MSA 7.557(1325)], and for 1 year thereafter. [MCL 206.411(2); MSA 7.557(1411)(2).]
We note that no significant language changes have been made by subsequent amendment. However, we do note that the corporate income tax was repealed by 1975 PA 233. Its replacement, the Single Business Tax Act, MCL 208.1 et seq.; MSA 7.558(1) et seq., was effective January 1, 1976, and included its own provision on a limitation period in § 85(2). The language of that section is more expansive than § 411 above, because it allows suspension of the limitation period
pending final determination of litigation of or conference or waiver on a taxpayer’s federal income tax return or on the return required by this act, or if a notice is required under section 75, and for 1 year thereafter. [MCL 208.85(2); MSA 7.558(85). Footnote omitted.]
MCL 206.325(2); MSA 7.557(1325) imposes the following notice requirement on taxpayers:
Every taxpayer shall notify the department in writing of any alteration in, or modification of, his federal income tax return which affects his taxable income under this act and of any similarly related recomputation of tax or determination of deficiency under the provisions of the internal revenue code. The notice shall be given in writing within 60 days after the final alteration, modification, recomputation or determination of deficiency. If the commissioner finds upon all the facts that an additional tax under this act is owing, the taxpayer shall thereupon pay the additional tax. If the commissioner finds that the taxpayer has overpaid the tax imposed by this act, a credit or refund of the overpayment shall thereupon be made as provided in section 441.
Section 325(2) "imposes a notice requirement on a taxpayer whenever federal intervention causes a change in state tax liability.” Clarke-Gravely Corp v Dep’t of Treasury 412 Mich 484, 489; 315 NW2d 517 (1982). Clarke-Gravely Corp involved construction of §§ 411(2) and 325(2) in the context of a refund claim filed by a taxpayer more than three years after the original state corporate income tax return was filed. The Supreme Court concluded that the existence of a federal audit and litigation, which was still pending, triggered the tolling provision of § 411(2). No attempt was made to identify the point where the federal audit ended and litigation commenced. Presumably this was unnecessary. It was enough that "federal intervention” occurred. The triggering of the notice provision of § 325 was treated as a separate tolling event within § 411(2). Clarke-Gravely Corp, supra, p 489.
Under petitioner’s argument, a formal hearing or litigation at the federal level will trigger the tolling provisions of § 411, but a taxpayer’s consent to an extension of time for purposes of a federal audit and its voluntary payment of any resulting deficiency will not. We do not believe the Legislature could have intended this result when it "piggy-backed” the state income tax scheme on the federal tax scheme. Section 325(2)’s requirement that a taxpayer notify the Treasury Department of any modification of the federal tax return that affects its state taxable income supports this. This covers those situations where federal intervention has been timely or consented to and yields a change in the taxpayer’s federal tax return which also affects the state taxable income.
The United States Supreme Court has recognized that statutes of limitation sought to be applied to bar rights of the government to collect taxes otherwise due and payable must be strictly construed in favor of the government. Badaracco v Comm’r of Internal Revenue, 464 US 386, 398; 104 S Ct 756; 78 L Ed 2d 549 (1984). In Michigan, exemptions from taxation are to be strictly construed in favor of the taxing unit. Ladies Literary Club v City of Grand Rapids, 409 Mich 748, 753; 298 NW2d 422 (1980). Our holding here comports with these rules of construction.
We affirm the deficiency assessments and hold that the assessment issued by the Treasury Department on February 18, 1981, was timely. The consented-to "federal intervention” triggered implementation of § 411(2). Petitioner was thereafter obligated to give notice of any change in its federal income tax return which affected its state taxable income. Petitioner did not notify the Treasury Department of the federal modifications. On March 20, 1980, the irs informed the Treasury Department of the pertinent modifications, at which time the running of the period of limitations was suspended for one year. On February 18, 1981, the Treasury Department issued a deficiency assessment for both taxable periods. This was within the one-year period of limitations. Consequently, we affirm the Tax Tribunal’s decision to uphold the deficiency assessments.
Affirmed.
Section 411 of the Michigan statute was subsequently amended by 1980 PA 169 to allow a four-year limitations period. | [
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Hood, P.J.
Plaintiff appeals as of right from an order granting defendant’s motion for accelerated judgment and a subsequent denial of its motion for rehearing. Defendant appeals by leave granted from an order setting aside a grant of summary judgment to it.
The Market Place, a delicatessen, commenced business in Ann Arbor in September, 1980. In April, 1981, the city sent the Market Place a bill for $164 as a license fee imposed pursuant to Chapter 80 of Title VII of the city’s ordinance code. The ordinance mandates that, in order to engage in business, all new businesses in the city must pay a fee equal to the tax rate that would be assessed on that business’s personal property for ad valorem taxes, but pro rated for the months prior to December 31, or tax day. _
The Market Place paid the $164 fee and subsequently filed this action challenging the city’s authority to impose the fee. The Market Place requested a refund and sought class certification for "all persons broadly defined, who have paid a levy under Chapter 80 of Title VII within six years prior to the filing of this action”.
Both parties filed motions for summary judgment. The Market Place argued that the city had no authority under its generalized police or regulatory powers to impose the fee because the fee was actually a tax unrelated to any regulatory costs. Defendant admitted that the city imposed the fee as a revenue-raising device, but argued that the city had the authority to do so.
The trial court found that the license fee was indeed a tax but that the city had the authority to impose that tax for two reasons. First, the court found that the city had the authority to impose taxes on business property pursuant to § 9.1 of the Ann Arbor City Charter. That section of the charter grants the city the authority to assess and impose ad valorem taxes on real and personal property.
Second, the trial court found that the city had the authority to impose the tax as a "holdover” power under authority existing prior to the city’s adoption of its home rule charter in 1956. The court relied upon § 2 of the home rule cities act, the "saving” clause: "Each city now existing shall continue with all its present rights and powers until otherwise provided by law.” MCL 117.2; MSA 5.2072. The court found that prior to 1956 Ann Arbor was a fourth class city._
The fourth class cities act provides:
"Every city incorporated under the provisions of this act, shall, in addition to such other powers as are herein conferred, have the general powers and authority in this chapter mentioned; and the council may pass such ordinances in relation thereto, and for the exercise of the same, as they may deem proper, namely:
"Thirty-ninth, The council may also license transient traders which shall be held to include all persons who may engage in the business of selling goods or merchandise after the commencement of the fiscal year and the license fee in such cases may be apportioned with relation to the part of the fiscal year which has expired, but such traders, if they continue in the same business, shall not be required to take out a second license after the commencement of the next fiscal year: Provided, Such goods or merchandise have been assessed for taxes for said fiscal year * * *.” MCL 91.1; MSA 5.1740.
The trial court agreed with defendant’s argument that, pursuant to the fourth class cities enabling legislation above, Ann Arbor could and did adopt the authority to license transient traders and exact a fee from them in its pre-home rule city charter. Because the trial court found that the city’s exaction of a new business license fee was a valid exercise of its municipal power, the court granted summary judgment to defendant. GCR 1963, 117.2(1).
The Market Place moved for reconsideration. The trial court did reconsider the motion for summary judgment and subsequently issued an order setting aside the summary judgment granted to defendant. The trial court agreed with plaintiff’s argument that Ann Arbor had never been a fourth class city. Thus, the city never had the authority to tax transient traders under the fourth class cities act. Without such authority prior to the city’s adoption of its home rule charter, the city could not retain any such authority under MCL 117.2; MSA 5.2072.
The trial court continued:
"This point, however, is not as significant as it might appear since Ann Arbor is clearly a home rule city, and, as such, may levy taxes on property. MCL 117.3(g); MSA 5.2073(g). What is significant is that plaintiff has brought to the court’s attention the possibility that this license fee has not been administered in accordance with chapter 9 (the taxation provision) of the city charter. This point is crucial because though home rule cities as a class may have all the powers granted to them by the state (but in any case, no more than those granted by the state), as individual cities their powers are limited by their respective charters. If this license fee is to stand on the Ann Arbor’s taxing power, it must be exercised in accordance with the taxation provisions of the city charter.
"The city’s assertion that authority to tax may be found under chapter 3 of the city charter is untenable. That provision refers to powers exercised for the benefit of the "public welfare”, "health”, "morals”, etc. These words are classic elements of the police power. To find a general authority to levy taxes in chapter 3 would be to expand the city’s taxing authority to the fullest extent permitted by state law. The structure of the charter indicates that this was not the community’s intention.
"If plaintiff can establish that the administration of the ordinance in question cannot be squared with the city’s taxing authority under the charter, the ordinance cannot be sustained as a tax. If the amount exacted by the ordinance does not approximate the cost of regulating new businesses, it cannot be sustained as an exercise of the police power. Plaintiff must refute both potential sources of authority at trial to be successful.” (Emphasis in original.)
Ann Arbor moved for reconsideration of the order setting aside the summary judgment. The trial court denied the motion. The city then filed a motion for accelerated judgment, GCR 1963, 116.1(2), arguing that the trial court implicitly found the license fee to be a property tax and that because plaintiffs complaint sought a refund of this property tax the Tax Tribunal, not the circuit court, had exclusive jurisdiction over the action, MCL 205.731(b); MSA 7.650(31)(b).
The Market Place argued in reply that the license fee was not a property tax but an excise tax and, therefore, an ultra vires exercise of defendant’s authority inasmuch as the Ann Arbor Charter Commission did not include the authority to impose excise taxes in the 1956 Charter. Accordingly, argued plaintiff, the circuit court should hold the tax void.
The circuit court granted the city’s motion for accelerated judgment and denied plaintiff’s motion for rehearing.
The issues we must address in this appeal are: (1) what is the nature of the transient trader or new business license fee, a property, or excise tax? and (2) does the city have the authority to impose the tax?
I
In Dooley v Detroit, 370 Mich 194; 121 NW2d 724 (1963), the Court was asked to determine whether Detroit’s city income tax was a property or excise tax. The Court stated, pp 205-206:
"Excises have been variously defined, sometimes in very general language and sometimes in language more specific. In 51 Am Jur, Taxation, § 24, it is said that:
" 'Taxes fall naturally into 3 classes, namely, capitation or poll taxes, taxes on property, and excises. In general, it may be said that all taxes fall into one or the other of the foregoing classes, any exaction which is clearly not a poll tax or a property tax being an excise.’
"And at section 33, it is said:
" 'In its modern sense an excise tax is any tax which does not fall within the classification of a poll tax or a property tax, and embraces every form of burden not laid directly upon persons or property. The affirmative definitions of excise or excise tax found in the later decisions exhibit some variety in phraseology.’
"See, also, 16 McQuillin, Municipal Corporations (3d ed), § 44.190.
"Our own decisions offer some assistance. For instance, in a line of decisions determining the nature of our corporate franchise tax, beginning with Union Steam Pump Sales Co v Secretary of State, 216 Mich 261; 185 NW 353 (1921), and including In re Truscon Steel Co, 246 Mich 174; 224 NW 653 (1929); In re Detroit Properties Corp, 254 Mich 523; 236 NW 850 (1931); Udylite Corp v Corporation & Securities Comm, 319 Mich 1; 29 NW2d 132 (1947), and Chicago, Duluth & Georgian Bay Transit Co v Corporation & Securities Comm, 319 Mich 14; 29 NW2d 303 (1947), we held that the corporate franchise tax was an excise tax on the franchise to do business as a corporation within the State. In support, we relied, first in Union Steam Pump (p 264) and in the other cases cited, upon the broad definition of an excise, which we accepted, found in 26 RCL, Taxation, § 209, at p 236:
" 'An excise is a tax imposed upon the performance of an act, the engaging in an occupation, or the enjoyment of a privilege.’ ” (Footnote omitted.)
While we agree with the city and the trial court that the tax in question here is, in part, measured upon the value of business property and is imposed in a sense in lieu of property taxes, we find the new business license fee to be an excise tax within the meaning of Dooley, supra, rather than a property tax. We find support in cases from this and other jurisdictions.
In Continental Motors Corp v Muskegon Twp, 376 Mich 170; 135 NW2d 908 (1965), the Court determined the validity of a state law imposing a tax on a business possessing interest in property otherwise exempt from property taxes. The tax was measured by the value of the property in a manner similar to ad valorem property taxes. The Court stated:
"While the legislature in imposing the new tax has utilized the language of ad valorem taxation, the tax nonetheless in its operation and practical effect is a tax upon the privilege of possession and use for profit of another’s tax-exempt personal property and, therefore, it is an excise and not an ad valorem property tax.” Continental, p 178.
Thus, the fact that a tax is measured by the value of property, like an ad valorem tax, does not mean that the tax is a property tax.
In Storaasli v Minnesota, 283 US 57; 51 S Ct 354; 75 L Ed 839 (1931), the Supreme Court deter mined that a state tax imposed upon motor vehicles using that state’s highways was not a property tax although the tax was measured by the value of each automobile and was assessed in lieu of all other taxes on those vehicles. The Court placed particular importance on the statute’s language denominating the fee as a privilege tax.
In Ingels v Riley, 5 Cal 2d 154; 53 P2d 939 (1936), the court was asked to determine the nature of a similar tax on motor vehicles, whether a property or excise tax. That court said:
"The distinction between a tax on a privilege and a property tax is many times a close one. Generally speaking, the function of a property tax is to raise revenue. Such a tax does not impose any condition nor does it place any restriction upon the use of the property taxed. A privilege tax, although also passed to raise revenue, and as such is to be distinguished from the license tax or regulatory charge imposed under the state’s police powers, is imposed upon the right to exercise a privilege, and its payment is invariably made a condition precedent to the exercise of the privilege involved. 37 Cor Jur, p 171, § 9, and cases cited.
"It is impossible to lay down any positive rule by means of which the character of any given tax may be ascertained. In each case the character of the given tax must be ascertained by its incidents, and from the natural and legal effect of the language employed in the statute. Dawson v Kentucky Distilleries & Warehouse Co, 255 US 288; 41 S Ct 272; 65 L Ed 638 (1921); Matter of Application of Schuler, 167 Cal 282; 139 P 685 (1914); Ann Cas 1915C, 706. * * *
"[W]e are of the opinion that the better rule is that the mode of ascertaining the amount of the tax is not conclusive. We are of the opinion that if a tax in its nature is a privilege tax, it does not become a property tax simply because it is proportioned in amount to the value of the property used in connection with the privilege which is taxed. State of Maine v Grand Trunk R Co, 142 US 217; 12 S Ct 121; 35 L Ed 994 (1891); Kane v State, 81 NJL 594; 80 A 453 (1911); Ann Cas 1912D, 237; LRA 1917B, 555 aff'd 242 US 160; 37 S Ct 30; 61 L Ed 222 (1916).” Ingels, 5 Cal 2d 159-160; 53 P2d 941-942.
The ordinance plaintiff challenges in this case prohibits the privilege of operating as a new business in Ann Arbor until the business pays the license fee. Therefore, although the fee is measured in most part by the value of personal business property, the nature of the tax Ann Arbor imposes is that of a revenue raising excise or privilege tax.
Aside from the language of the ordinance itself, there are other indices that this license fee is not a property tax. First, the fee is assessed only in part by the value of personal business property. There is also a minimum and maximum amount levied. Second, the city does not treat the taxes raised pursuant to the new business ordinance in the same manner as ad valorem property taxes. The city disburses most of the ad valorem property tax revenues it collects to the county and school district(s) according to state law. However, the city deposits the new business license fees it collects directly into the city’s general fund without any such disbursement. Third, the transient trader or new business tax is not computed on the value of any real property a new business may have on hand when the busines starts up. Thus, the amount of value taxed is not as comprehensive as an ad valorem property tax.
We conclude that the trial court erred by finding the transient trader or new business license fee to be a property tax rather than an excise tax. We find the fee to be an excise tax because it is primarily imposed on the privilege of operating a new business in Ann Arbor. Therefore, the trial court erred by granting the city’s motion for accelerated judgment. While the Tax Tribunal does have exclusive jurisdiction to review Ann Arbor’s decisions relating to assessment, valuation, rates, special assessments, allocation, or equalization under property tax laws, MCL 205.731(a); MSA 7.650(31)(a), and for a refund under the property tax laws, MCL 205.731(b); MSA 7.650(31)(b), the circuit court retains jurisdiction to determine questions regarding the validity of excise taxes imposed by Ann Arbor.
II
The next question with which we are presented is whether Ann Arbor has the authority to impose the new business or transient trader license fee as an excise tax.
Local units of government may impose only those taxes expressly authorized by state statute. Berkley v Royal Oak Twp, 320 Mich 597, 601; 31 NW2d 825 (1948). The home rule cities act mandates that a home rule city charter include: (1) a provision limiting the subjects of municipal taxation to those recognized under general law, MCL 117.3(f); MSA 5.2073(f); (2) a provision stating tax limitations, MCL 117.3(g); MSA 5.2073(g); (3) a provision for an annual appropriation of money for municipal purposes, MCL 117.3(h); MSA 5.2073(h); and (4) a provision outlining a procedure for the levy and collection of taxes in conformity with general laws, or in other words, general property taxes, MCL 117.30); MSA 5.20730).
The home rule cities act also permits a home rule city charter to provide, "For laying and collecting rents, tolls and excises”, MCL 117.4i(l); MSA 5.2082(1), if it desires. Detroit Police Officers Ass’n v Detroit, 391 Mich 44, 66 fn 14; 214 NW2d 803 (1974). Thus, a home rule city may empower itself to impose excise taxes. However, a city may also decline to empower itself with such permissive authority. Such is the case here.
The Ann Arbor home rule city charter does not include the permissive power to impose excise taxes. We presume that the city intended to restrict its authority in this respect for two reasons. First, our review of the Ann Arbor charter shows that it provides for all of the statutorily permitted powers enumerated in the subsection of the home rule cities act except that for the laying of rents, tolls, or excises. Second, as the Market Place correctly argues, the history of the drafting of Ann Arbor’s charter proves that the permissive authority to impose excise taxes was expressly excluded. The first three drafts of the proposed home rule charter provided:
“Power to Tax: Section 9.1. In order to carry out its purposes, powers, and duties, the City may assess, levy, and collect ad valorem taxes upon real and personal property and specific taxes, rents, tolls, excises, and license fees. Such specific taxes, tolls, excises, and license fees shall be uniform upon the classes upon which they operate.”
At the charter commission’s open meeting held January 21, 1955, the commission amended the draft by striking all authority to assess, levy, and collect specific taxes, rents, tolls, excises, and license fees. The Ann Arbor voters approved the final draft of the charter with the power to tax limited to taxation of real and personal property.
Despite this specific limitation of the powers to tax approved by the voters of Ann Arbor, the city argues that it nonetheless has the power to impose the transient traders’ or new business license fee. The city argues that the trial court correctly found in its original opinion granting the city’s motion for summary judgment that the city retained the. authority to impose this license fee pursuant to § 2 of the home rule cities act, MCL 117.2; MSA 5.2072. We disagree. Even if some such authority did carry over under Ann Arbor’s home rule charter, that authority would not include the power to impose fees on businesses such as the Market Place.
As noted earlier in this opinion, the special charter that Ann Arbor adopted prior to its home rule city charter did authorize the city to license and regulate transient traders and other assorted merchants. The special charter defined transient traders as those persons occupying Ann Arbor property for a temporary period only and who were not assessed for property taxes. The ordinance the city passed pursuant to this authority was similar to the ordinance plaintiff challenges in this action. However, that prior ordinance re quired transient traders to pay a fixed daily fee; the fee was not measured on the value of their business property or goods. Moreover, the ordinance permitted a new business within Ann Arbor to deposit a bond in an amount equal to the tax rate on the assessed value of its business property, both real and personal, for the immediately preceeding property tax year. In the event that the business remained established in Ann Arbor and the city placed that business property on the regular tax rolls, the bond was refunded. If the business folded or left Ann Arbor and, thus, escaped placement on the tax rolls, the business forfeited the bond to the city’s general fund. _
We read the special charter authority and ordinance promulgated under it as limiting the city’s authority to impose license fees on transient businesses only. The city council passed a transient trader ordinance imposing a fee on new businesses that intended to remain in Ann Arbor only after the city adopted a charter expressly precluding the power to impose such license fees or excise taxes. This expansion on the authority to tax businesses cannot be construed as "retained” authority pursuant to MCL 117.2; MSA 5.2072.
Moreover, "a change in a charter depriving a municipality of previously existing power to enact an ordinance has been held to effect a repeal of the ordinance”. 6 MacQuillan, Municipal Corporations, § 21.26. See also People v Brill, 120 Mich 42; 78 NW 1013 (1899). Because the Ann Arbor voters adopted a home rule charter expressly precluding license fees or excise taxes under the city’s powers to tax, and because the adoption in 1956 of the home rule charter acted to repeal the transient trader ordinance at issue in this case, the city no longer had the authority to impose such tax.
We address the remainder of the city’s argument summarily. There is no doubt that the Michigan Constitution and state statutes permit a municipality to impose excise taxes of this nature. However the home rule cities act permits a home rule charter city to accept or reject this authority. Ann Arbor rejected the authority and may not now argue that the state laws should be read into its charter. Therefore, the city’s reliance on Amberg v Welsh, 325 Mich 285; 38 NW2d 304 (1949), and Geftos v Lincoln Park, 39 Mich App 644; 198 NW2d 169 (1972), is misplaced. We also disagree with the city’s contention that its general power in Chapter 3 of its home rule charter authorizes the new business license fees. While we agree that the powers of home rule cities must be liberally construed, Const 1963, art 7, §34; 1426 Woodward Avenue Corp v Wolff, 312 Mich 352; 20 NW2d 217 (1945), the rejection by the Charter Commission and Ann Arbor voters of the city’s power to impose license fees or excise taxes precludes any construction at all in this case. Certainly, had Ann Arbor adopted the power to impose excise taxes we would broadly construe that term generically to include the license fee at issue here. See Dooley, supra.
In conclusion, we find that the trial court erred by finding Ann Arbor’s new business transient trader ordinance a valid exercise of the city’s power to impose property taxes. Rather, the tax at issue in this case is an excise tax which the city does not have the authority to impose. Thus, Chapter 80, Title VII, §§ 7:75 to 7:79 are void.
The trial court’s order of accelerated judgment is reversed and this cause is remanded for entry of an order consistent with this opinion.
"Ordinance
"Chapter 80 of Title VII
Code of the City of Ann Arbor
"New Businesses and Transient Traders
"7:75. Definitions. The terms 'New Business’ or 'Transient Trader’ shall mean every person who occupies all or part of a building within the City in connection with a business for profit or for the purpose of manufacturing or conducting research and/or development or offering for sale goods or performing services, provided, however, that this definition shall not be construed to include non-profit charitable, educational, scientific or religious organizations.
"Any person who engages in the selling of goods on private property only on those Saturdays when football games are played in the stadium of the University of Michigan shall not be deemed to be engaged in business for the purposes of Chapter 55 (Zoning) of this Code.
"7:76. License Required. No person shall start a new business or engage in business as a transient trader in the City of Ann Arbor without first obtaining a license therefor.
"7:77. Fee Required. Every new business and transient trader shall, at the time of the establishment of his business and at the time of occupying an additional separate place of business in the City, pay a fee equivalent to the tax rate imposed upon real and personal property in said City during the immediate preceding calendar year multiplied by fifty (50%) per cent of the value of all the furniture, fixtures, signs, leasehold improvements, and equipment on hand, when said business is established, this product in turn to be multiplied by that fraction of the year remaining between the date of establishment of the business and the end of the year. The minimum license fee shall be twenty-five ($25.00) dollars in total and the maximum fee shall be seventy-five ($75.00) dollars per day multiplied by the number of days remaining in the year from the opening day of business.
"7:78. Information Required. On forms supplied by the City, the license applicant shall submit the following information: The names and addresses of its owners, officers, partners, directors, and trustees; the names the business will use; the places where such names are registered; the nature of any franchises under which he will operate; the names and addresses of owners of any leased equipment in use in the business; and the value of the property referred to in section 7:77 of this Chapter.
"7:79. Issuance of License. When the applicant has paid the fee and provided the information required by this Chapter he shall be deemed licensed under this Chapter. Said license shall not permit any person to engage in an activity otherwise prohibited by this Code.”
Ann Arbor’s 1952 City Charter granted the city the authority:
"To regulate sextons and undertakers for burying the dead, cart-men and their carts, hackney carriages and their drivers, omnibuses and their drivers, scavengers porters and chimney sweeps, and their fees and compensation and to make regulations for preventing auctions, peddling, pawnbrokerage, or using for hire carts, drays, cabs, hacks or any kind of carriage or vehicle, or opening or keeping any tavern, hotel, victualing house, saloon or other houses or places for furnishing meals, food or drink, or billiard tables or ball alleys, without first obtaining from the common council license therefore; for licensing and regulating carts, drays, cabs, hacks and all carriages or vehicles kept or used for hire; for licensing and regulating auctioneers, peddlers, pawnbrokers, junk dealers, dealers in second-hand goods and merchandise, and transient tradesmen, auctions, peddling, pawnbrokerage, taverns, hotels, victualing houses, restaurants, saloons, or other houses for furnishing meals, food or drink, and keepers of billiard tables and ball alleys not used for gaming. Whoever occupies any premises within the city of Ann Arbor, for a temporary period only, and is not assessed for taxes in said city, and who offers for sale goods, wares, or merchandise, is hereby defined and declared to be a transient tradesman.”
The predecessor ordinance to Chapter 80 of Title VII, § 7:77, of the city’s ordinance code stated, in part:
"Ordinance No. 93
"An Ordinance Relative to Transient Traders.
"The Common Council of the City of Ann Arbor ordain:
"93.2 Section 2. A transient Trader as used in this ordinance shall be construed to mean every person, firm or corporation which obtains and occupies premises within the City of Ann Arbor, and is not assessed for taxes in the City, and which offers goods, wares and merchandise for sale. Hereafter every person, firm or corporation which opens, establishes or starts a business in the City of Ann Arbor, wherein goods, wares and merchandise are offered for sale shall be deemed a transient trader until such person, firm or corporation shall be assessed and shall pay taxes to said City.
"93.3 Section 3. Before any license shall be granted under this ordinance, the person or persons, firm or corporation desiring the same shall make application of the common council in writing speci fying the kind of business the applicant proposes to engage in, the time it is to be carried on, and the place where such goods are to be sold, and shall at the time of making such application deposit with the City Clerk of said city the amount of the license fee required by this ordinance.”
"93.4 Section 4. The license fee required by this ordinance shall be as follows:
"For the right and privilege of selling goods at retail by sample, $5.00 per day for the first ten days, and $3.00 per day for each and every day in addition thereto.
"For the right and privilege of selling goods from a stock actually kept on hand from which selections are made by the purchaser, $7.00 per day for the first twenty days, and $5.00 for each and every day in addition thereto.”
"93.6 Section 6. Every transient trader in lieu of paying the license fees hereinabove provided, may deposit with the City Clerk a cash bond of a minimum amount equivalent to the tax rate per thousand assessed valuation, imposed upon real and personal property in said City during the immediate preceding calendar year, and such additional amount of cash bond at such tax rate as shall be equivalent to the value of all the stock of merchandise, furniture and equipment on hand, when said business is established as shall exceed the sum of $1,000.00. The sum so paid by such transient trader may be remitted by order of the City Council when and if it is shown that the stock of goods, wares and merchandise and equipment used and/ or owned in said business by said transient trader has become subject to assessment and has been duly assessed by the City Assessor of the City of Ann Arbor, and the taxes have been paid thereon for a period of one year. In the event that such transient trader shall fail to continue in business for a sufficient length of time that said goods, wares and merchandise used, owned and controlled by said trader have not become subject to assessment and have not been assesesed by the City Assessor of the City of Ann Arbor, and the taxes thereon have not been paid for a period of one year, then the cash bond so deposited shall, by order of the Common Council, be declared forfeited to the City of Ann Arbor to cover such license fee and shall be deposited in the general funds of the City of Ann Arbor.” | [
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D. E. Holbrook, Jr., J.
We are called upon to determine if a paved bicycle path that is under state control is included in the highway exception to governmental immunity. The trial court held that it was not and granted defendant’s motion for summary judgment. Plaintiffs now appeal as of right.
Plaintiff William G. Roy was injured when he was riding his bicycle on the path and struck a bump that was concealed by freshly cut weeds. He was thrown and suffered a separated shoulder. The arguments in the case center on MCL 691.1402; MSA 3.996(102), which provides in pertinent part that
[t]he duty of the state and the county road commissions to repair and maintain highways, and the liability therefor, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks or any other installation outside of the improved portion of the highway designed for vehicular travel.
The parties argue two subissues that involve the construction of this statute. The first is whether a bicycle is a vehicle for purposes of vehicular travel, and the second is whether a bicycle path such as the one involved herein is a part of the improved portion of the highway. We find the second issue to be dispositive.
We hold the dispositive question to be whether the path itself is an "installation outside of the improved portion of the highway.” We find that it is not. A bicycle path is closely analogous to the shoulder of the road, which has consistently been held to be included within the highway exception.
The shoulders of a highway are designed for vehicular traffic although not of the same character as vehicular traffic on the paved portion of the highway. We read the statutory duty of the state with respect to the repair of shoulders to be that the state is obligated to maintain the shoulders in reasonable repair so that they are reasonably safe for their intended use as adjuncts of the paved portion of the highway. [Johnson v Michigan, 32 Mich App 37, 39; 188 NW2d 33 (1971).]
In the instant case, the bicycle path runs adjacent to a limited access highway and is similarly an adjunct to that highway. Cyclists have the same rights and responsibilities as motorists when on the road. MCL 257.657; MSA 9.2357. However, the Michigan Vehicle Code requires that "[w]here a usable and designated path for bicycles is provided adjacent to a roadway, a bicycle rider shall use that path and shall not use the roadway.” MCL 257.660(3); MSA 9.2360(3). Furthermore, bicyclists are absolutely prohibited from limited access highways and bicycles are specifically required to be ridden on adjacent paths only. MCL 257.679(a); MSA 9.2379(1). Thus, where paths have been provided for cyclists, the state requires the cyclists to use the paths, forcing them off the roads where they normally have a right to be.
Motorists and cyclists both benefit from having these parallel paths so that cyclists remain safe and out of the way of motorists. We conclude that if the state has a duty to maintain the roadway itself in a safe condition it should also have the same duty with respect to such paths. They are, in all respects, equivalent to reserved bicycle lanes that are physically attached to the road surface used by motor vehicles. They were intended to increase the safety of all travelers and should be maintained with equal care.
We therefore find the bicycle path in question to be included within the highway exception to governmental immunity. We limit this inclusion only to those bicycle paths which were constructed adjacent to roadways and which parallel those roads as extensions of or adjuncts to the paved surface reserved for motor vehicle use.
Accordingly, we reverse the trial court’s decision and remand for further proceedings.
Reversed and remanded. No costs, a public question being involved. | [
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Per Curiam.
Pennwalt Corporation appeals from a judgment finding it in contempt of court for violation of a court order, ordering payment to the Friend of the Court (foc) of $1,047.50, and assessing $750 in attorney fees, costs, and receiver fees payable to the foc. We affirm.
Following a default divorce judgment in 1982, George Burnett failed to make child support payments to Gloria Burnett. On July 15, 1983, the foc was appointed receiver of all funds due George Burnett on a workers’ compensation claim against Pennwalt. This action was taken to ensure collection of a substantial arrearage. Pennwalt admitted receiving this order, which specifically named Pennwalt and stated that funds due Burnett from Pennwalt’s insurer were covered by the order.
On February 27, 1984, the Bureau of Workers’ Disability Compensation ordered Pennwalt and its insurer, Employer’s Mutual Liability Insurance Company to pay George Burnett $1,047.50. Employer’s Mutual, unaware of the court order appointing the foc as receiver, paid Burnett directly.
Following a show cause hearing, the trial court concluded that Pennwalt had a duty to inform Employer’s Mutual of the court order, while the foc did not. Accordingly, the trial court found Pennwalt in contempt of court. The trial court ordered Pennwalt to pay $1,047.50 to Gerhard F. Ritsema, the foc receiver, at twelve percent interest from the date of the hearing. The trial court also ordered Pennwalt to pay the receiver $750 in attorney fees, costs, and receiver fees.
We believe the propriety of finding Pennwalt liable follows from this Court’s holdings in Davis v Davis, 137 Mich App 291; 358 NW2d 6 (1984), and Allen v Allen, 141 Mich App 105; 366 NW2d 88 (1985). In those cases, the foc was appointed as receiver of any workers’ compensation benefits to be awarded to the claimants, who also had child support arrearages. In each case, the employer was notified of the appointment, and in each case the employer paid the workers’ compensation award directly to the claimant, contrary to the court order, rather than to the foc. This Court found the employers liable to the foc for the full amounts of the compensation awards.
The same holds true despite the fact that the award here was actually paid by Pennwalt’s insurer. In Ptak v Pennwalt Corp, 112 Mich App 490; 316 NW2d 251 (1982), an earlier case involving Pennwalt, Pennwalt was aware of a lien against any subsequent workers’ compensation benefits in favor of the insurance company that paid medical benefits to the employee. Pennwalt reached a redemption agreement with that employee. This Court held that, while an employer may settle with an employee, if such settlement is reached after proper notice of a lien from a third-party insurance company with regard to reimbursement, the employer must take the additional claim into account and make arrangements for payment in the event that liability is later ascertained. Where it failed to do so, the employer could be required to pay the full amount of the reimbursement awarded to the insurance company. 112 Mich App 495.
Applying the reasoning of Ptak to this case, we find that Pennwalt failed to make arrangements for payment to the foc and, accordingly, find that Pennwalt is liable to the foc for the full amount owed. It is only reasonable to conclude that Pennwalt, in receipt of the court order appointing a receiver and aware that it would not directly pay the award, should have notified its insurer of the proper disbursement. The order specifically covered funds to be paid by Pennwalt’s insurer. Pennwalt ultimately had responsibility for the award.
Pennwalt argues that it could not be held in contempt of court. Contempt is a wilful act, omission, or statement tending to impair the authority or impede the functioning of a court. Williams International Corp v Smith, 144 Mich App 257, 261; 375 NW2d 408 (1985). Criminal contempt has as its purpose the punishment of past disobedient conduct, while civil contempt seeks compliance through the imposition of a sanction of indefinite duration terminable upon compliance or inability to comply. 144 Mich App 262-263. Where the noncompliance is such that the status quo can be restored and it is still possible to grant the relief originally sought, there is civil contempt. In re Contempt of Rapanos, 143 Mich App 483, 497; 372 NW2d 598 (1985).
Despite some apparent confusion below, we believe that the trial court properly found Pennwalt in civil contempt for failure to pay the award to the foc. See Davis, supra, p 293. We note that the trial court provided no sanction to encourage compliance. Nonetheless, Pennwalt may purge itself of contempt by paying the judgment.
An award of attorney fees related to costs incurred as a result of contemptuous conduct is proper. Plumbers & Pipefitters Local Union No 190 v Wolff, 141 Mich App 815, 818; 369 NW2d 237 (1985); MCL 600.1721; MSA 27A.1721. The award of $750 was recommended by a referee and approved by the trial court.
Affirmed. | [
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Per Curiam.
The Commissioner of Insurance appeals from Ingham Circuit Court Judge James T. Kallman’s June 5, 1985, order which denied the commissioner’s motion to set aside a default judgment which was entered on May 22, 1985.
This case had its genesis in early 1984 when the State Bar of Michigan wrote to its members and their legal assistants, endorsing a health care program administered by Blue Cross and Blue Shield of Michigan (bcbsm) and underwritten by BCS Life Insurance Company (bcs). The letter began:
After careful review and consideration of numerous health care alternatives, the State Bar of Michigan has decided to only endorse health care programs administered by Blue Cross and Blue Shield of Michigan (bcbsm) and underwritten by BCS Life Insurance Company of Chicago (bcs), a wholly owned subsidiary of the national Blue Cross and Blue Shield Health Maintenance Organizations (hmos), for our member health care program. All coverages are effective May 1, 1984.
Included with the letter was a reply form and a benefits comparison chart, both of which referred to bcbsm but not BCS.
On May 29, 1984, the commissioner issued a notice of hearing to bcs, in which she charged that the advertising package mailed to the bar members violated § 2007 of the Insurance Code, MCL 500.2007; MSA 24.12007, and 1979 AC, R 500.664(1). The commissioner charged that the advertising was misleading or deceptive because it failed to identify bcs as the underwriter of the program. At a September 5, 1984, hearing before Hearing Officer William A. Austin, the Insurance Bureau presented bureau employee Wayne Tanner as its only witness. Tanner testified that the advertising was misleading because it only referred to bcs in one place, while the remaining package suggested that bcbsm was the underwriter. However, Tanner acknowledged that bcs was identified as the underwriter in the advertising cover letter and that it would be usual practice for the reply envelope to be addressed to the program administrator, i.e., bcbsm. Tanner was aware that the various documents arrived at the addressees as one package.
At the close of the bureau’s proofs, no evidence was presented by bcs, and bcs moved for dismissal of the petition. The motion to dismiss was formally argued before Mr. Austin on October 11, 1984. On November 27, 1984, Hearing Officer Austin issued a written proposal for decision, in which he recommended to the commissioner that the charge against bcs be dismissed with prejudice. Mr. Austin found that there was no evidence that the advertising package was misleading, as the cover letter clearly identified bcs as the program underwriter.
The commissioner, after determining that she wished to base her decision on a fuller evidentiary record, remanded the case for further hearing. On March 29, 1985, bcs responded by filing a single document, entitled "Petition for Interlocutory Review and Complaint for Declaratory Judgment,” in Ingham Circuit Court. Among other things, the petition/complaint alleged that the commissioner’s decision to remand the case was not supported by competent, material, and substantial evidence on the whole record, and that, because there was no question of material fact regarding the deceptiveness of bcs’s advertising, bcs was entitled to a decision in its favor as a matter of law. The petition/complaint further alleged that interlocutory review was necessary because the commissioner was improperly requiring bcs to prove its innocence and was causing unnecessary expense and delay. Finally, the petition/complaint sought a declaratory judgment that the advertising package was not deceptive or misleading as proscribed in MCL 500.2007; MSA 24.12007.
The Attorney General entered an appearance on April 4, 1985, and subsequently filed a brief in opposition to bcs’s petition for interlocutory appeal. On April 30, 1985, a default judgment was entered against the commissioner by the Ingham Circuit Court Clerk for failing to answer bcs’s complaint. The commissioner then moved to strike bcs’s complaint, alleging that there is no legal basis for a complaint for declaratory relief from an interlocutory administrative decision, and moved to set aside the default judgment, alleging that no answer to a petition for review is required. No affidavit as required by MCR 2.603(D)(1) was filed in conjunction with the motion to set aside the default.
A hearing on the commissioner’s motion was scheduled for May 17, 1985. At the hearing, Judge Kallman allowed the commissioner five additional days in which to file an affidavit of meritorious defense to bcs’s complaint. The commissioner did not file the affidavit, and no one appeared on her behalf at the rescheduled May 22, 1985, hearing. Accordingly, Judge Kallman denied the commissioner’s motion.
On May 24, 1985, the commissioner again moved to set aside the default judgment. In the motion and an attached affidavit, counsel for the commissioner explained that she had "overlooked” the May 22, 1985, hearing because she had another hearing to attend the same morning. A hearing on the renewed motion was held on June 5, 1985, at which time counsel for the commissioner reiterated that she forgot about the May 22 hearing and asked the court to find her forgetfulness to be excusable neglect under MCR 2.612(C)(1)(a). The commissioner also argued that although bcs had a right to petition for interlocutory review, it could not file a complaint for declaratory relief. She argued that since no answer to a petition is required, and given that the commissioner filed a brief in response to the petition, there was no basis for defaulting the commissioner.
Judge Kallman determined that, pursuant to previous appellate court decisions, a lawyer’s busy schedule is not good cause for missing a default motion date. He also indicated that he was not inclined to protect 5,000 lawyers. In a particularly astute observation — one with which we cannot help but agree — Judge Kallman stated: "I mean, if a lawyer can’t read, that is his problem.” Judge Kallman then issued his written order denying the commissioner’s motion to set aside the default, from which the commissioner now appeals.
The commissioner has attacked the circuit court’s action on two bases: first, that the circuit court was without jurisdiction to render a judgment on a complaint for declaratory relief from an interlocutory decison; and, second, that the circuit court abused its discretion in denying the commis sioner’s motion to set aside the default judgment. We first discuss the jurisdictional issue.
Circuit courts are presumed to have jurisdiction unless the matter in question is specifically excluded by law. Const 1963, art 6, § 13; People v Loukas, 104 Mich App 204, 207; 304 NW2d 532 (1981). The commissioner asserts that the only permissible mode of review is by petition pursuant to MCL 24.302; MSA 3.560(202). That section provides that petition for review is permissible under MCL 24.301; MSA 3.560(201), which in turn provides:
When a person has exhausted all administrative remedies available within an agency, and is aggrieved by a final decision or order in a contested case, whether such decision or order is affirmative or negative in form, the decision or order is subject to direct review, by the courts as provided by law. Exhaustion of administrative remedies does not require the filing of a motion or application for rehearing or reconsideration unless the agency rules require the filing before judicial review is sought. A preliminary, procedural or intermediate agency action or ruling is not immediately reviewable, except that the court may grant leave for review of such action if review of the agency’s final decision or order would not provide an adequate remedy. [Emphasis added.]
Significantly, MCL 24.301 does not specifically state that the only allowable mode of review is by petition. Rather, review is permissible "as provided by law.” Thus, MCL 24.301 does not specifically preclude a circuit court from acquiring jurisdiction in a manner other than that asserted by the commissioner.
Traditionally, courts have declined to act in contravention of administrative agencies where the parties have not exhausted their administra tive remedies. Judges of the 74th Judicial District v Bay Co, 385 Mich 710, 728; 190 NW2d 219 (1971). However, exceptions have evolved and one exists where the relief requested is purely declaratory and the facts are undisputed. Id.
The cases cited by the commissioner, holding that a declaratory judgment cannot be obtained when interlocutory review of an administrative decision is sought, are inapposite for several reasons. First, the cases cited construed the provisions of the now-defunct declaratory judgment statute, 1948 C L 691.501 et seq., to mean that where an alternative remedy was available, declaratory action could not be obtained. The statute was superseded by GCR 1963, 521, which expressly repealed the restrictive construction by providing: "The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.” GCR 1963, 521.3; MCR 2.605(C); Lord v Genesee Circuit Judge, 51 Mich App 10, 17; 214 NW2d 321 (1973). Second, the intent of the declaratory judgment rule to provide broad, flexible remedies and increase accessibility to the courts has been increasingly recognized in recent years. See Shavers v Attorney General, 402 Mich 554, 588; 267 NW2d 72 (1978), cert den 442 US 934; 99 S Ct 2869; 61 L Ed 2d 303 (1979). Third, circuit court jurisdiction over declaratory actions despite the existence of alternative remedies has been further clarified by the addition of the following provision at MCR 2.605(A)(2):
For the purpose of this rule, an action is considered within the jurisdiction of a court if the court would have jurisdiction of an action on the same claim or claims in which the plaintiff sought relief other than a declaratory judgment.
However, when the declaratory judgment rule is compared with MCR 7.105 (formerly GCR 1963, 705), a more difficult question is presented. MCR 7.105 provides in pertinent part:
(C) Form; Content; Attachment of Decision. Judicial review of an agency decision in a contested case is initiated by filing, within the time required by the applicable statute, a document entitled "Petition for Review,” conforming to the following form, content, and attachment requirements.
(E) Interlocutory Review. A preliminary procedural or intermediate agency action or ruling is not immediately reviewable, except that a court may grant interlocutory review of a preliminary, procedural, or intermediate decision by an agency only on a showing that review of the final decision would not be an adequate remedy.
(1) A petition for review must be filed with the court within 14 days of the contested decision.
(2) The petition must follow the form, content, and attachment requirements of subrule (C), with the following additional requirements:
(a) the petition must be entitled "Petition for Interlocutory Review”;
(b) the grounds for relief must set forth why review of the agency’s final decision will not be an adequate remedy;
(c) the relief sought must include a prayer that the court grant leave to the petitioner to file a petition for review.
(3) If the petition is granted by the court, the appeal thereafter proceeds under this rule in the same manner as appeals from final decisions, unless a particular provision of the rule specifically states otherwise.
(F) Answer. A respondent may file an answer to a petition for review. A court may require an answer.
And, MCR 7.105(B)(2) specifically states:
The court need not dismiss an action incorrectly initiated under some other rule, if it is timely filed and served as required by this rule and the applicable statute. Instead, leave may be freely given, when justice requires, to amend an appeal and a response to conform to the requirements of this rule and otherwise proceed under this rule.
MCR 7.105’s predecessor was GCR 1963, 705. The staff comments to GCR 1963, 705, as amended and effective on February 1, 1984, indicate that under GCR 1963, 705.2(2) [MCR 7.105(B)(2)]: "should a party initiate an action for declaratory judgment or mandamus under GCR 1963, 521 or 714, the court is not to dismiss the action [for lack of jurisdiction] but shall require the party to amend his pleading and proceed under this rule.”
Thus, the clear import of MCR 7.105(B)(2) is to preclude declaratory judgment actions where the petition for review proceeding is available. Under Const 1963, art 6, § 13, the circuit court’s power to review is thus restricted by Supreme Court rule.
Bcs’s reliance on Dukesherer Farms, Inc v Director of Dep’t of Agriculture, 53 Mich App 489; 220 NW2d 46 (1974), rev’d 393 Mich 758 (1974), app after remand 73 Mich App 212; 251 NW2d 278 (1977), aff'd 405 Mich 1; 273 NW2d 877 (1979), is misplaced, not because of the constitutional issue, as argued by the commissioner, but because in Duksherer the petition proceeding was unavailable and neither GCR 1963, 705.2(2) nor MCR 7.105(B)(2) was in existence. In Dukesherer, the plaintiff sought declaratory relief after its right to petition for review had lapsed due to the expiraion of the time for the filing of a petition. This Court held that in the absence of the availability of the administrative proceeding a declaratory action could be heard, but that the circuit court had not abused its discretion in refusing to enter tain the declaratory action. 53 Mich App 489. Our Supreme Court reversed on the sole ground that the circuit court had abused its discretion. 393 Mich 758.
Despite the specific and clear intent of MCR 7.105(B)(2), an anomaly arises when it is contrasted with MCR 2.605(A)(2), which specifically provides that a court has jurisdiction over a declaratory action at any time that the circuit court would have had jurisdiction over the claim if the plaintiff had sought another form of relief. While MCR 7.105(B)(2) is more specific, MCR 2.605(A)(2) was promulgated later in time and appears to have been in response to restrictive judicial construction of the declaratory judgment rule. While the usual rules of construction therefore appear to balance each other out, we conclude that MCR 7.105 takes precedence and was intended to preclude a declaratory action where a petition for interlocutory review is available. Support for this position is found in the note to MCR 2.605, which states that the addition of subrule (A)(2) was to indicate that jurisdiction to render a declaratory judgment is vested in a court "only in a case of which it otherwise would have jurisdiction.” (Emphasis added.)
Accordingly, the circuit court here was without authority to render the declaratory judgment. Although the declaratory judgment rule is to be liberally construed and relief granted in the interest of justice, the court and the parties must adhere to applicable rules. Kuhn v East Detroit, 50 Mich App 502, 504; 213 NW2d 599 (1973), lv den 391 Mich 815 (1974). Thus, the only aspect of bcs’s initial pleading which was properly before the circuit court was a petition for review. The respondent to such a petition is not obliged to file an answer, and, therefore, any default judgment en tered as a result of a failure to file an answer is ab initio erroneous. Meadows v Marquette Prison Warden, 117 Mich App 794, 801; 324 NW2d 507 (1982).
However, our analysis does not end here. In the interest of judicial economy, we find this case to be a fit candidate for remedy under MCR 7.216(A):
The Court of Appeals may, at any time, in addition to its general powers, in its discretion, and on the terms it deems just:
(1) exercise any or all of the powers of amendment of the trial court or tribunal;
(6) draw inferences of fact;
(7) enter any judgment or order or grant further or different relief as the case may require;
Since its inception at the administrative level, the procedural aspects of this case have completely obscured its substantive realities. We agree with bcs, Hearing Officer Austin, and the circuit court that by the Insurance Bureau’s own proofs the bcs advertising package did not mislead or deceive. Bcs’s involvement as the underwriter of the advertised program is clearly stated in the first sentence of the advertising letter. Not one instance of confusion was presented by the bureau’s single witness —an unsurprising fact, given the target market. No one involved, including the commissioner, has suggested that the commissioner expects bcs to present its own proofs to condemn itself.
The default judgment granted in this case rendered moot bcs’s petition for interlocutory review. If we were to reverse the entry of the default judgment and remand the case to the circuit court, Judge Kallman would reiterate his position that the advertising package did not mislead or deceive and render judgment for bcs under the proper procedure. Therefore we amend the declaratory judgment to be a judgment pursuant to a petition for review in favor of bcs.
Our disposition of the jurisdictional issue in this case makes the second issue moot.
We limit our agreement with this statement to the particular factual situation in this case. We realize that under some circumstances a lawyer’s inability to read could also become his or her client’s problem. | [
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Talbot, P.J.
Defendants Lawrence Earl Gadomski and Anthony Gadomski were tried in a joint trial before a single jury. Defendant Lawrence Gadomski was convicted of one count of first-degree criminal sexual conduct (CSC I), MCL 750.520b; MSA 28.788(2), and found not guilty of three counts of esc I and one count of first-degree home invasion, MCL 750.110a; MSA 28.305(a). He was sentenced as an habitual offender, fourth offense, MCL 769.12; MSA 28.1084, to twenty to sixty years’ imprisonment for his CSC I conviction. Defendant Anthony Gadomski was convicted of two counts of CSC I and one count of felonious assault, MCL 750.82; MSA 28.277, and found not guilty of three counts of CSC I and one count of first-degree home invasion. He was sentenced as an habit ual offender, second offense, MCL 769.10; MSA 28.1082, to concurrent terms of twenty-five to sixty years’ imprisonment for each of his CSC I convictions and two to six years’ imprisonment for his felonious assault conviction. Defendants appeal as of right. Their appeals were consolidated on this Court’s motion. We affirm.
At trial, the victim testified that late on the evening of December 14, 1995, defendant Anthony Gadomski, an acquaintance of hers, entered her house uninvited through the bathroom window and proceeded to let his brother, defendant Lawrence Gadomski, and an unidentified third person in through the back door. After defendant Anthony Gadomski informed the victim that her incarcerated boyfriend owed him $10,000, he and his brother spent the remainder of the night forcing her to engage in various sexual acts and helping themselves to her food and drink. Once during the night, defendant Anthony Gadomski threatened the victim by holding a kitchen knife to her neck. Defendants left the victim’s house on the following morning, taking some of her property with them. Defendant Anthony Gadomski testified that he was invited into the victim’s house and that he and the victim engaged in consensual sex. Defendant Lawrence Gadomski did not testify.
DOCKET NO. 197049
Defendant Lawrence Gadomski first argues that the trial court erred in denying his motion for a new trial brought on the ground that the jury’s verdict was against the great weight of the evidence. We disagree. A trial court’s decision on a motion for a new trial is reviewed for an abuse of discretion. People v Torres (On Remand), 222 Mich App 411, 415; 564 NW2d 149 (1997).
Specifically, defendant contends that the trial court abused its discretion in denying his motion in the face of the victim’s “wildly inconsistent” trial testimony. At the time of defendant’s motion, the law provided that, in a motion for a new trial based on the great weight of the evidence, the trial court could act as a “thirteenth juror” and independently evaluate the credibility of the trial witnesses. See People v Herbert, 444 Mich 466, 476; 511 NW2d 654 (1993). The Michigan Supreme Court has subsequently rejected the “thirteenth juror” standard and explained that a trial court may grant a motion for a new trial based on the great weight of the evidence only if the evidence preponderates heavily against the verdict so that it would be a miscarriage of justice to allow the verdict to stand. People v Lemmon, 456 Mich 625, 627; 576 NW2d 129 (1998) . However, neither the former nor the current understanding of the law with respect to such motions provides that this Court may make a credibility determination on appeal. To the contrary, it is well settled that this Court may not attempt to resolve credibility questions anew. See, e.g., People v Daoust, 228 Mich App 1, 17; 577 NW2d 179 (1998); People v McFall, 224 Mich App 403, 412; 569 NW2d 828 (1997). Accordingly, we cannot say that the trial court abused its discretion in denying defendant’s motion for a new trial.
Next, defendant argues that he was denied his right to a unanimous jury verdict as a result of the trial court’s instructions to the jury regarding the elements of CSC i. We disagree.
A trial court is required to instruct the jury concerning the law applicable to the case and to fully and fairly present the case to the jury in an understandable manner. MCL 768.29; MSA 28.1052; People v Mills, 450 Mich 61, 80; 537 NW2d 909 (1995), modified 450 Mich 1212 (1995). In this case, the trial court instructed the jury that in order to find defendant guilty, it was required to find that defendant engaged in the specific act of sexual penetration alleged by the prosecution and that this act was accompanied by one of three alternative aggravating circumstances. The aggravating circumstances made available for the jury’s consideration included (1) that the act occurred during the commission of a home invasion, see MCL 750.520b(l)(c); MSA 28.788(2)(l)(c), (2) that it involved aiding and abetting and force or coercion, see MCL 750.520b (1) (d) (ii); MSA 28.788 (2) (1) (d)(ii), and (3) that it caused personal injury to the victim and involved force or coercion, see MCL 750.520b(l)(f); MSA 28.788 (2) (1) (f). The trial court also instructed the jurors, in general terms, that it was their job to decide the facts of the case and that their verdict must be unanimous.
Defendant contends that the trial court should have instructed the jury that it was required to unanimously agree on the existence of at least one of the three aggravating circumstances alleged by the prosecution. He maintains that, because no special unanimity instruction was given, the jury might have unani mously agreed on the general existence of an aggravating circumstance without unanimously agreeing on the existence of any one of the aggravating circumstances in particular. Defendant failed to raise the issue at trial by requesting such an instruction or by objecting to the trial court’s instructions on that basis. Accordingly, our review is limited to the question whether relief is necessary to avoid manifest injustice. See People v Van Dorsten, 441 Mich 540, 544-545; 494 NW2d 737 (1993); People v Yarger, 193 Mich App 532, 536-537; 485 NW2d 119 (1992).
Criminal defendants are guaranteed a unanimous jury verdict under the state constitution. See Const 1963, art 1, § 14; People v Cooks, 446 Mich 503, 510-511; 521 NW2d 275 (1994). Consequently, trial courts are required to give proper instructions regarding the unanimity requirement. Id. at 511. In some circumstances, a general unanimity instruction such as the one given in this case is not adequate to ensure a defendant’s right to a unanimous jury verdict. For instance, the Michigan Supreme Court has held that when the prosecution offers evidence of multiple acts by a defendant, each of which would satisfy the actus reus element of a single charged offense, the trial court is required to instruct the jury that it must unanimously agree on the same specific act if the acts are materially distinct or if there is reason to believe the jurors may be confused or disagree about the factual basis of the defendant’s guilt. Id. at 530. Relying on this holding, defendant suggests that he was entitled to a special unanimity instruction in this case because the separate aggravating circumstances on which the jury was instructed involved alternative factual situations (i.e., a home invasion, aiding and abetting, or a personal injury). We axe not persuaded by defendant’s argument.
Michigan criminal juries are not required to unanimously agree upon every fact supporting a guilty verdict. See, e.g., People v Espinosa, 142 Mich App 99, 105; 369 NW2d 265 (1985) (explaining that, in theory, a defendant could be convicted of murder by a jury in which six members were of the opinion that the defendant shot the victim acting as the principal, and the other six members were of the opinion that he aided and abetted another). More specifically, it is well settled that when a statute lists alternative means of committing an offense, which means in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theories. See People v William Johnson, 187 Mich App 621, 629-630; 468 NW2d 307 (1991), cited with apparent approval in Cooks, supra at 515, n 16; see also People v Lynn, 223 Mich App 364, 366-367; 566 NW2d 45 (1997); People v Asevedo, 217 Mich App 393; 551 NW2d 478 (1996); cf. Yarger, supra at 537. That was the case here. Where there is a single sexual penetration, the various aggravating circumstances listed in MCL 750.520b; MSA 28.788(2) constitute alternative means of proving a single CSC I offense and would not support convictions of separate and distinct esc I offenses. See People v Willie Johnson, 406 Mich 320, 330-331; 279 NW2d 534 (1979). Accordingly, defendant would have been properly convicted of CSC I even if some of the jurors believed that he committed the offense solely on the basis of one aggravating circumstance, while the rest of the jurors believed that he committed the offense solely on the basis of another one of the aggravating circumstances.
In sum, we hold that when a defendant is tried on a charge of CSC I, and more than one aggravating circumstance is supported by the facts, it is not error for the trial court to instruct the jury, in the alternative, regarding each of the applicable aggravating circumstances alleged by the prosecution. In this case, because the trial court’s instructions were legally correct, manifest injustice will not result from our failure to grant the relief requested.
Defendant next argues that he was denied the effective assistance of counsel when his trial counsel failed to request a special unanimity instruction. We disagree. Because defendant was not entitled to such an instruction, defense counsel’s failure to request the instruction did not constitute ineffective assistance of counsel. See Torres, supra at 425.
Finally, defendant argues that the trial court erred in allowing the prosecution’s late endorsement of Dale Smith, a res gestae witness. We disagree. A trial court’s decision to allow a late endorsement of a witness is reviewed for an abuse of discretion. People v Canter, 197 Mich App 550, 563; 496 NW2d 336 (1992). An abuse of discretion exists when the court’s decision is so grossly violative of fact and logic that it evidences perversity of will, defiance of judgment, and the exercise of passion or bias. Stated differently, an abuse of discretion exists when an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling. E.g., People v Ullah, 216 Mich App 669, 673; 550 NW2d 568 (1996).
During defendant’s preliminary examination, the victim testified that a third person came to her house with defendants on the night of the crime. The victim could not identify this person. At trial, the prosecutor informed the jury during her opening statement that the victim would testify that, on the night of the crime, defendants came to her house with another person. She did not suggest that the name of the unidentified third person was known by anybody. Defendant’s counsel then predicted in his opening statement that, contrary to the victim’s story, the evidence would show that defendants were not accompanied by a third person.
Two days later, before the second day of trial, the prosecution moved to amend its witness list to add the “third person,” Dale Smith. The prosecutor explained that, although the police initially suspected that Smith may have been the third person present on the night of the crime, his presence could not be confirmed during their investigation. The victim did not have enough contact with the third person to make an identification, and no fingerprints consistent with Smith’s were found at the scene. Consequently, Smith was discounted, and the police “gave up” in their efforts to locate and question him. Police efforts to discover the identity of the third person were renewed in response to defense counsel’s opening statement. This led to Smith’s discovery in Florida. After Smith admitted that he was the third person involved in the incident, he was persuaded to come to Michigan to testify for the prosecution. Defense counsel argued that it was his belief that the prosecution had known all along that Smith had some involvement in the case, but that it had decided not to pursue the matter. Upon consideration of the parties’ arguments, the trial court explained that it would allow the late addition of Smith’s name to the witness list because his “identity and involvement” did not “come to light until into the trial itself.”
On appeal, defendant contends that he was prejudiced by the late endorsement, because trial counsel, relying on the pretrial witness list, incorrectly predicted that the evidence would not support the prosecution’s (and the victim’s) assertion that an unidentified third person was present with defendants on the night of the crime. After Smith testified about his presence at the victim’s house on the night of the incident, Anthony Gadomski agreed, in his testimony, that Smith was there. The prosecutor then emphasized this point by reminding the jury during her rebuttal argument that, contrary to defendants’ initial assertions, “the People were able to bring forward that third person.” Although this course of events undoubtedly hurt defendant’s case in the eyes of the jury, we do not believe that his defense was unfairly prejudiced to such a degree that the trial court’s decision to allow Smith to testify amounted to an abuse of discretion.
The res gestae witness statute provides as follows:
(1) The prosecuting attorney shall attach to the filed information a list of all witnesses known to the prosecuting attorney who might be called at trial and all res gestae witnesses known to the prosecuting attorney or investigating law enforcement officers.
(2) The prosecuting attorney shall be under a continuing duty to disclose the names of any further res gestae witnesses as they become known.
(3) Not less than 30 days before the trial, the prosecuting attorney shall send to the defendant or his or her attorney a list of the witnesses the prosecuting attorney intends to produce at trial.
(4) The prosecuting attorney may add or delete from the list of witnesses he or she intends to call at trial at any time upon leave of the court and for good cause shown or by stipulation of the parties.
(5) The prosecuting attorney or investigative law enforcement agency shall provide to the defendant, or defense counsel, upon request, reasonable assistance, including investigative assistance, as may be necessary to locate and serve process upon a witness. The request for assistance shall be made in writing by defendant or defense counsel not less than 10 days before the trial of the case or at such other time as the court directs. If the prosecuting attorney objects to a request by the defendant on the grounds that it is unreasonable, the prosecuting attorney shall file a pretrial motion before the court to hold a hearing to determine the reasonableness of the request.
(6) Any party may within the discretion of the court impeach or cross-examine any witnesses as though the witness had been called by another party. [MCL 767.40a; MSA 28.980(1).]
The prosecution’s duty under the statute is to provide notice of known witnesses and reasonable assistance to locate witnesses on a defendant’s request. People v Burwick, 450 Mich 281, 289; 537 NW2d 813 (1995). There is no requirement to exercise due diligence to discover the names of witnesses. Id. at 293. “[T]he purpose of the ‘listing’ requirement is merely to notify the defendant of the witness’ existence and res gestae status.” People v Calhoun, 178 Mich App 517, 523; 444 NW2d 232 (1989).
In this case, given the victim’s preliminary examination testimony, defendant could not have been surprised that the prosecution would offer some evidence of a third person’s involvement. Because defendant knew that an unnamed third person was alleged to have been involved, he could have requested assistance in identifying and locating him before trial. See MCL 767.40a(5); MSA 28.980(1)(5). Instead, in an apparent gamble that the prosecution’s case would be weakened by a failure to prove the existence of the alleged third person, defendant chose not to avail himself of the prosecution’s assistance. With no request from the defense to provide reasonable assistance, and no evidence suggesting that the unidentified third person was Smith, the prosecution was under no duty to continue pursuing that avenue. See Burwick, supra at 289, 293. Moreover, without knowledge of Smith’s status as a res gestae witness, the prosecution was under no duty to include Smith’s name on the pretrial witness list. Id. Finally, the necessary explanation, or “good cause,” for Smith’s late addition to the witness list was provided by the fact of his late discovery as a res gestae witness. Accordingly, defendant is not entitled to relief with regard to this issue.
DOCKET NO. 197050
The issues raised on appeal by defendant Anthony Gadomski are identical to issues raised by defendant Lawrence Earl Gadomski. Accordingly, for the reasons stated above, defendant Anthony Gadomski is not entitled to relief.
Affirmed.
In this section, use of “defendant,” in the singular, will hereafter refer only to Lawrence Earl Gadomski. Use of “defendants” will refer to both Anthony Gadomski and Lawrence Earl Gadomski.
The standard jury instruction for CSC I advises trial courts to follow the instruction for sexual penetration with an instruction for “one” of the nine alternative aggravating circumstances. See CJI2d 20.1(3). The implication is that trial courts should not instruct juries, in the alternative, regarding multiple aggravating circumstances. However, we note that the Michigan Criminal Jury Instructions do not have the official sanction of the Michigan Supreme Court. “Their use is not required, and trial judges are encouraged to examine them carefully before using them, in order to ensure their accuracy and appropriateness to the case at hand.” People v Petrella, 424 Mich 221, 277; 380 NW2d 11 (1985). The record suggests that the trial court did so in this case.
“A res gestae witness is a person who witnesses some event in the continuum of a criminal transaction and whose testimony will aid in developing a full disclosure of the facts.” People v O’Quinn, 185 Mich App 40, 44; 460 NW2d 264 (1990).
Smith, who because of a stroke was blind in one eye and partially blind in the other and suffered from long- and short-term memory problems, testified that he was in the victim’s house on the night of the incident, but that he never actually saw the victim or any sexual activity. For part of the night he was asleep. However, he recalled that, at one point, Anthony Gadomski threatened him with a knife and told him not to leave the house.
Defendant Anthony Gadomski challenges the absence of a special imanimity instruction with respect to the esc i counts and the late endorsement of Dale Smith, but does not contend that the jury’s verdict was against the great weight of the evidence. | [
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Corrigan, C.J.
In this action challenging the standard for considering applications for state disability assistance program (SDA) benefits during fiscal years 1991-92 and 1992-93, defendants appeal by right the order granting plaintiffs supplemental relief. The trial court found defendants’ policy regarding sda eligibility invalid because it constituted a rule that should have been promulgated under the Administrative Procedures Act (APA), MCL 24.201 et seq.-, MSA 3.560(101) et seq. It also determined that defendants’ policy violated the plain meaning of the appropriations acts for fiscal years 1991-92 and 1992-93, 1991 PA 111 and 1992 PA 168. We hold that the policy regarding sda eligibility was an interpretive statement that need not have been promulgated as a rule under the APA and that defendants correctly construed the language of the appropriations acts. We therefore reverse and remand for entry of judgment for defendants.
1. underlying facts and procedural history
The state provided welfare benefits under a general assistance program (ga) administered by the Department of Social Services (dss) from 1979 until fiscal year 1991-92. The program was not a permanent statutory enactment, but rather was contingent on the Legislature appropriating funds for the program in a line item of the DSS budget. MCL 400.14; MSA 16.414, MCL 400.18; MSA 16.418. The Legislature thus eliminated GA in 1991 by not appropriating funds for the program in the dss budget for fiscal year 1991-92. In its place, the Legislature established the SDA program to provide assistance to some former GA recipients. 1991 PA 111, § 805.
1991 PA 111, § 805 provided in pertinent part as follows:
(1) The department of social services shall operate a state disability assistance program. Persons eligible for this program shall include needy persons 18 years of age or older, or emancipated minors, who meet 1 or more of the following requirements:
(a) A recipient of supplemental security income, social security, or medical assistance due to disability.
(b) A person who is medically diagnosed as incapacitated and unavailable for work for at least 90 days.
(c) A resident of adult foster care, home for the aged, county infirmary or substance abuse treatment center.
(d) A person receiving 30-day postresidential substance abuse treatment.
(e) A person diagnosed as having acquired immune-deficiency syndrome or acquired immune-deficiency syndrome related complex.
(f) A person receiving special education services through the local intermediate school district.
(g) A pregnant woman.
(h) A caretaker of a disabled person as defined in subsections (a), (b), (e), or (f) above.
Contemporaneous with the legislative action, defendants developed a policy for determining eligibility under subsection 805(1) (b). The policy provided as follows under the heading “Standard for Determining Disability”:
Clients are medically eligible for State Disability Assistance if they are medically eligible for ma [medical assistance] based on disability or blindness or if they have a physical and/or mental impairment or combination of impairments which prevents the performance of any remunerative work for 90 days or more.
The policy further defined the term “work” as “[a]ny work or work activity usually done for remuneration.” Defendants continued the policy during fiscal year 1992-93 because the Legislature included identical language in subsection 805(l)(b) of that year’s appropriations act. 1992 PA 168, subsection 805(l)(b). The Legislature, however, modified the language of subsection 805(l)(b) for fiscal year 1993-94 to provide benefits for “[a] person with a physical or mental impairment other than substance abuse which meets federal ssi disability standards, except that the minimum duration of the disability shall be 90 days.” 1993 PA 186, subsection 805(l)(b). Accordingly, defendants discontinued the policy for determining disability under subsection 805(l)(b).
In February 1992, in response to defendants’ implementation of the policy, plaintiffs, former recipients of assistance under the GA program, commenced this action seeking certification of a class action and declaratory and injunctive relief. Plaintiffs alleged that defendants’ policy was invalid because the internal criteria for determining eligibility under subsection 805(l)(b) was not promulgated as a rule under the APA and the policy excluded applicants who fell within the scope of subsection 805(l)(b). The trial court subsequently denied, without prejudice, plaintiffs’ motion to certify a class.
Defendants and plaintiffs filed cross-motions for summary disposition of plaintiffs’ claims under MCR 2.116(C)(10) in March 1993. The trial court granted partial summary disposition for plaintiffs on June 8, 1994, declaring defendants’ policy invalid and violative of the apa and the sda appropriations acts. The court reasoned as follows:
The policy for determining eligibility for sda benefits — • and this is a finding of the Court — is a rule, and should have been promulgated as a rule under the Michigan Administrative Procedures Act.
The interpretive statement exception has been narrowly construed by the courts, and requires that a statement be merely be [sic] explanatory.
This policy goes beyond explanatory. It essentially eliminated the medically diagnosed requirement altogether and went on to offer a restricted definition of incapacitated, as an impairment which prevents the performance of any remunerative work for 90 days or more. The plain meaning of incapacitated would certainly encompass more than this.
The policy in question had the full force and effect of law, and was used to determine whether a person was eligible for sda benefits.
The preferred method of policy making is through the process of promulgation of rules. This policy clearly affected the status quo, and those affected by it should have been given an opportunity to be heard.
The Court also finds that the argument that this is somehow an exception to the Administrative Procedures Act because it falls underneath the — a broad boilerplate language of the Social Services Act, is also not adopted by the Court.
Therefore, the Court grants summary disposition to the Plaintiffs on Counts 12, 17, 18, and 21, finding that the definition as applied was violative of the Michigan Administrative Procedures Act and also in violation of the authorizing statute.
The court took under advisement the issue whether to grant further relief, but certified its declaratory rulings as “final” for purposes of appeal.
In April 1995, plaintiffs moved for postjudgment supplemental relief under MCR 2.605(F), arguing that because defendants had improperly denied benefits to seventy-five percent of applicants, defendants must notify previously rejected applicants and determine their eligibility under an appropriate standard: Plaintiffs urged the court to use its general power to fashion relief to grant them the additional relief necessary to give effect to the declaratory judgment because defendants had not sought to implement the court’s decision. Plaintiffs further argued that the court should direct that defendants determine eligibility by means of the disability standard used for purposes of the supplemental security income (ssi) provisions of the Social Security Act, 42 USC 1382 el seq.
The trial court took the motion under advisement after a hearing in July 1995. Nine months later, the court ruled that it would use its general power to fashion a specific remedy to enforce its declaratory judgment. Noting that defendants had not developed an alternate standard for determining disability, the court directed that they use the SSI standard because it was the only “coherent” standard, it reasonably effectuated the Legislature’s intent, and defendants had expertise in using it. Next, the court recognized that personal notice to all rejected applicants was impractical, but concluded that defendants could provide reasonable notice through the mass media and the inclusion of written materials in food stamp mailings. Therefore, the court ordered that defendants (1) include written notices and application forms in food stamp mailings during August 1996, (2) air public service announcements in the top seven television markets not less than five times in prime time during the first two weeks of August 1996, (3) air the announcements in the top ten radio markets not less than five times during working hours in the first two weeks of August 1996, and (4) use the SSI standard to review applications. The court then dismissed plaintiffs’ remaining claims as moot.
Defendants moved for reconsideration, requesting that the court amend its order to allow them to send a preapplication to all food stamp recipients in a separate mailing, which applicants could then present to the Family Independence Agency (fta) for a full application. Defendants further requested that the court reconsider the method of providing notice because radio and television stations would not agree to air the public service announcements during the court-ordered period and some television stations would not sell air time for the announcements. The court denied defendants’ motion for reconsideration, but extended the period for defendants to notify rejected applicants and redetermine eligibility and shifted the public service announcements to the first two weeks of November 1996. This Court, however, stayed further proceedings pending resolution of this appeal.
n. JURISDICTION
We reject plaintiffs’ initial contention that this Court lacks jurisdiction over the trial court’s June 8, 1994, order granting partial summary disposition because defendants did not timely claim an appeal from that order. The trial court certified its order granting partial summary disposition as a “final judg merit” under the former version of MCR 2.604(A). Mere certification, however, does not resolve whether an order is actually “final.” McCarthy & Associates, Inc v Washburn, 194 Mich App 676, 680; 488 NW2d 785 (1992). If the order is not final, this Court lacks jurisdiction under MCR 7.203. Id. In this case, the June 8, 1994, order was not a final order because it explicitly provided that additional proceedings would occur regarding whether the trial court would grant further relief on the claims with respect to which it had granted summary disposition. See Children’s Hosp v Auto Club Ins Ass’n, 450 Mich 670, 677; 545 NW2d 592 (1996). Accordingly, this Court has jurisdiction to consider defendants’ challenge to the June 8, 1994, order on defendants’ appeal of right from the actual final order entered on April 30, 1996, which disposed of all of plaintiffs’ claims.
m. THE APA
Defendants argue that the trial court erred in finding their policy invalid because it was not promulgated as a rule under the apa. We agree. We review this question of law de novo. Watson v Bureau of State Lottery, 224 Mich App 639, 644; 569 NW2d 878 (1997).
The fia is subject to the rule-promulgation requirements of the apa. See Detroit Base Coalition for the Human Rights of the Handicapped v Dep’t of Social Services, 431 Mich 172, 183; 428 NW2d 335 (1988). “The apa requires an agency to give notice of proposed rules or rule changes, to hold a public hearing, and to submit the proposed rule or rule changes to the Legislature’s Joint Committee on Administrative Rules for review and approval.” AFSCME v Dep’t of Mental Health, 452 Mich 1, 9, n 8; 550 NW2d 190 (1996) . An agency’s failure to follow this process renders the rule invalid. Clonlara, Inc v State Bd of Ed, 442 Mich 230, 239; 501 NW2d 88 (1993); Blank v Dep’t of Corrections, 222 Mich App 385, 392; 564 NW2d 130 (1997) , lv gtd 459 Mich 878 (1998).
In AFSCME, supra at 8, our Supreme Court parsed the APA definition of a “rule,” MCL 24.207; MSA 3.560(107):
[A] “rule” is: (1) “an agency regulation, statement, standard, policy, ruling, or instruction of general applicability,” (2) “that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency . . . .”
The statute further provides, however, that a “rule” does not include, among other enumerated exceptions, “[a] form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory.” MCL 24.207(h); MSA 3.560(107)(h).
We conclude that defendants’ policy was an interpretive statement, not a rule subject to the promulgation requirements of the APA, because it merely explained the language of the appropriations acts. We reject plaintiffs’ argument that the policy constituted a rule because it altered the status quo and substantially affected the rights of the general public. Although our Supreme Court has suggested in dicta that the effect a policy has on the rights of the public may require its promulgation as a rule, see Michigan Farm Bureau v Bureau of Workmen’s Compensation, 408 Mich 141, 150, n 4; 289 NW2d 699 (1980); Detroit Base Coalition, supra at 184-185; Clonlara, supra at 247-248, Michigan courts have focused on the effect of an unpromulgated policy only where the agency establishes policies and procedures under a broad grant of authority to administer a program. See, e.g., AFSCME, supra, and Palozolo v Dep’t of Social Services, 189 Mich App 530; 473 NW2d 765 (1991). Under those circumstances, the agency policies may have the force and effect of law because the relevant statute does not provide specific standards for eligibility and administration of the program. The policies are not interpretive statements because they do not merely interpret or explain the statute or rules from which the agency derives its authority. Rather, they establish the substantive standards implementing the program. See Boyd v Civil Service Comm, 220 Mich App 226, 236; 559 NW2d 342 (1996). By contrast, where an agency policy interprets or explains a statute or rule, the agency need not promulgate it as a rule even if it has a substantial effect on the rights of a class of people because an interpretive statement is not, by definition, a rule under the apa. Michigan Farm Bureau, supra at 148.
Before 1991, the Legislature appropriated monies to fund a GA program administered by the DSS in accordance with DSS rules and procedures. MCL 400.14; MSA 16.414, MCL 400.18; MSA 16.418. The Legislature did not dictate who was eligible for the program. See, e.g., 1990 PA 200. In funding the SDA program, how ever, the Legislature established who was eligible for benefits. 1991 PA 111, subsection 805(l)(b) and 1992 PA 168, subsection 805(1) (b) provided that a “person who [was] medically diagnosed as incapacitated and unavailable for work for at least 90 days” was eligible to receive benefits. Thus, unlike the policies at issue in AFSCME, supra, and Palozolo, supra, defendants’ policy does not have the force of law because subsection 805(l)(b) governs eligibility and it remains the court’s responsibility to determine the meaning of the language contained therein. See Dep’t of Civil Rights ex rel Parks v General Motors Corp, 93 Mich App 366, 373-374; 287 NW2d 240 (1979), adopted by a plurality of the Michigan Supreme Court as its opinion 412 Mich 610; 317 NW2d 16 (1982). The court need only give appropriate deference to defendants’ interpretation. General Motors Corp, supra, 93 Mich App 374, n 5. Accordingly, defendants’ policy does not constitute a rule because it does not have the force and effect of law, but rather merely explains the statutory provision by detailing the circumstances under which a person will be deemed “unavailable for work for at least 90 days.”
Plaintiffs further mistakenly argue that defendants were required to promulgate their policy as a rule because it conflicted with the provision of the appropriations acts that it purportedly explained. Even assuming, arguendo, that the policy is more restiic tive than the statutory provisions, this factor is of no consequence. Our Supreme Court rejected plaintiffs’ argument in Clonlara, supra at 243, quoting Wayne Twp Metropolitan School Dist v Davila, 969 F2d 485, 494 (CA 7, 1992):
An interpretation not supported by the enabling act is an invalid interpretation, not a rule. Otherwise, “wrong” interpretive statements might become rules with the force of law on the false premise that they were promulgated in accordance with the apa procedures. “[B]ecause a reviewing court disagrees with an agency interpretation does not render it legislative.”
Therefore, we conclude that that trial court erred in holding that defendants’ policy was invalid because it was not promulgated as a rule under the apa.
rv. SUBSECTION 805(1)(B) OF THE APPROPRIATIONS ACTS
Defendants next argue that the trial court erred in determining that their policy conflicted with the language of the appropriations acts. We agree. This Court reviews questions of law, including statutory interpretation, de novo. Watson, supra at 644. Although it remains our responsibility to determine the meaning of the statute, we give “appropriate deference” to the agency’s interpretation. See General Motors Corp, supra, 93 Mich App 373-374. This Court ordinarily defers to the construction of a statute by the agency charged with applying it unless the interpretation is “clearly wrong.” Jones-Jennings v Hutzel Hosp (On Remand), 223 Mich App 94, 105; 565 NW2d 680 (1997).
A. STATUTORY CONSTRUCTION
In construing a statute, our purpose is to ascertain the reasonable meaning of the specific language of the statute. Cf. Gross v General Motors Corp, 448 Mich 147, 158-159; 528 NW2d 707 (1995); Mahrle v Danke, 216 Mich App 343, 348; 549 NW2d 56 (1996); see, generally, Scalia, A Matter of Interpretation: Federal Courts & the Law (Princeton, NJ: Princeton University Press, 1997), pp 23-25. Judicial construction is not permitted where the plain and ordinary meaning of the statutory language is clear. Ruff v Isaac, 226 Mich App 1, 8; 573 NW2d 55 (1997); Watson, supra at 644.
In this case, the trial court erred in concluding that defendants’ policy violated the plain meaning of the appropriations acts. Defendants’ policy interpreted 1991 PA 111, subsection 805(l)(b) and 1992 PA 168, subsection 805(l)(b), which provided that a “person who [was] medically diagnosed as incapacitated and unavailable for work for at least 90 days” was eligible to receive sda benefits. Defendants’ policy explained this language under the heading “Standard for Determining Disability”:
Clients are medically eligible for State Disability Assistance if they are medically eligible for ma based on disability or blindness or if they have a physical and/or mental impairment or combination of impairments which prevents the performance of any remunerative work for 90 days or more.
The policy further defined the term “work” as “[a]ny work or work activity usually done for remuneration.” We reject plaintiffs’ argument that since a person who receives ssi, social security, or medical assis tance because of a disability qualifies for sda benefits under subsection 805(l)(a) of the appropriations acts, the Legislature must have intended a lesser standard to qualify under subsection 805(l)(b) than that used for purposes of determining ssi benefits. A person is disabled for ssi purposes if he is unable to engage in “substantial gainful activity” by reason of an impairment “which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 USC 1382c(a)(3)(A). The Legislature, however, could reasonably have decided to authorize benefits for someone who is unable to sustain gainful employment for twelve months because of a disability, subsection 805(l)(a), but require a higher threshold for those whose disability incapacitates them for less than a year, subsection 805(l)(b). For example, the Legislature could have reasoned that a person who is incapacitated for less than a year may be able to borrow funds to support himself and pay off the debt after resuming gainful employment. Further, the Legislature could have used the SSI standard in subsection 805(1) (b) if it intended to measure incapacity by a gainful-employment standard. We will not assume that the Legislature inadvertently omitted from subsection 805(l)(b) the requirements subsumed under subsection 805(l)(a), and then on the basis of that assumption, apply those requirements to subsection 805(l)(b). See Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993).
We likewise reject plaintiffs’ contention that the remaining subsections of subsection 805(1) of the appropriations acts evince the Legislature’s intent that subsection 805(l)(b) encompass applicants who are capable of performing some work, but cannot meet their basic needs because of their disability. The remaining subsections apply to specific categories of people (persons receiving residential care, persons receiving substance abuse treatment, AIDS victims, special education students, pregnant women, and persons caring for a disabled person). Persons in these categories qualify for benefits even if they do not satisfy the requirements of subsection 805(l)(b). We will not, under the guise of construing the statutory language, disrupt the legislative scheme by applying the disability standards applicable to persons falling within the other subsections to persons who can only qualify for benefits under subsection 805(l)(b).
We also decline to construe the instant statutory language as creating a “significantly” or “substantially” incapacitated standard where the Legislature did not employ that language. It is well established that “[w]e eschew the insertion of words in statutes unless necessary to give intelligible meaning or to prevent absurdity, without regard to our own estimate of the wisdom of the legislation.” Great Lakes Steel Corp v Employment Security Comm, 6 Mich App 656, 661-662; 150 NW2d 547 (1967), aff’d 381 Mich 249 (1968). Here, the Legislature has used these very adverbs in other statutes to signify something less than a total- or complete-impairment standard. See, e.g., MCL 257.39a; MSA 9.1839(1) (defining “permanent handicap” for purposes of the Michigan Vehicle Code), MCL 330.2001a(5); MSA 14.800(1001a)(5) (defining “mental illness” for purposes of chapter 10 of the Mental Health Code), MCL 440.2608(1); MSA 19.2608(1) (governing a buyer’s right to revoke his acceptance of nonconforming goods under the Uniform Commercial Code), and MCL 257.1403(3)(a); MSA 9.2705(3)(3)(a) (creating a presumption that a reasonable number of attempts have been made to repair a defect in a new motor vehicle for purposes of the Michigan lemon law). We will not, under the guise of interpreting the appropriations acts, write into the acts a provision that the Legislature has declined to enact. See Autio v Proksch Constr Co, 377 Mich 517, 524; 141 NW2d 81 (1966).
We further decline plaintiffs’ invitation to follow the federal courts’ construction of the Social Security Act when determining the reasonable meaning of the Michigan sda provision. As plaintiffs correctly note, this Court, like the federal courts, would hold invalid agency rules that impose higher standards for disability than set forth in the act. See Sullivan v Zebley, 493 US 521; 110 S Ct 885; 107 L Ed 2d 967 (1990). Unlike the appropriations acts involved in this case, however, the Social Security Act explicitly grants SSI benefits to people who are unable to engage in “any substantial gainful activity.” The act also mandates the consideration of vocational factors. 42 USC 1382c(a)(3). Like Congress in drafting the Social Security Act, our Legislature has evinced its intent that a determination of disability or incapacitation include the consideration of vocational factors by expressly so providing within the language of a statute. For instance, in the Worker’s Disability Compensation Act, the Legislature defined the term “disability” as a “limitation of an employee’s wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work related disease.” MCL 418.301(4); MSA 17.237(301)(4). This Court has also held that the Legislature signaled its intent to consider vocational fac tors in the Michigan no-fault act by using the phrase “physically or mentally incapacitated from earning” in the statutory provision regarding the determination of when the dependency of a person terminates for purposes of receiving survivor benefits. Vovak v DAIIE, 98 Mich App 81, 84-86; 296 NW2d 193 (1980), construing MCL 500.3110(3); MSA 24.13110(3). Given the Legislature’s inclusion of language calling for consideration of vocational factors in other statutes, we can only conclude that the Legislature chose not to include similar statutory language in 1991 PA 111, subsection 805(l)(b) and 1992 PA 168, subsection 805(l)(b).
Thus, the trial court erred in holding that defendants’ policy violated the plain meaning of the appropriations acts. Importantly, it is not for the courts to debate the wisdom or public policy of this legislation. Nummer v Dep’t of Treasury, 448 Mich 534, 553, n 22; 533 NW2d 250 (1995); see Ready-Power Co v Dearborn, 336 Mich 519, 525; 58 NW2d 904 (1953). We do not do so here. Our function is to construe the language of the appropriations acts as it exists, not to legislate. Morgan v Taylor, 434 Mich 180, 192; 451 NW2d 852 (1990). Giving the terms “incapacitated,” “unavailable,” and “work” their common meanings, subsection 805(l)(b) does not take into account vocational factors such as age, education, and previous work experience. As such, an applicant’s capacity to work for purposes of subsection 805(l)(b) is not measured by a minimum number of hours that he is able to sustain work activity or a minimum remunerative standard. Accordingly, defendants correctly interpreted subsection 805(l)(b) as requiring an inability to perform any work.
B. LEGISLATIVE APPROVAL OF DEFENDANTS’ CONSTRUCTION
Even if we concluded that the language of the appropriations acts was ambiguous, we would defer to the agency’s interpretation because the Legislature approved defendants’ policy for determining eligibility under 1991 PA 111, subsection 805(l)(b) when it enacted 1992 PA 168, subsection 805(l)(b), which contained the identical language contained in 1991 PA 111, subsection 805(l)(b). While plaintiffs correctly note that a failed attempt to amend a statute is ordinarily not evidence of legislative approval of an agency’s construction, see Rogers v Detroit, 457 Mich 125, 162-164; 579 NW2d 840 (1998) (Taylor, J. dissenting), the Legislature is presumed to know of the agency’s construction of a statute and adopts such a construction when it reenacts the language so construed. See Canterbury Health Care, Inc v Dep’t of Treasury, 220 Mich App 23, 30; 558 NW2d 444 (1996). Welfare legislation presents an unusual application of these principles because the Legislature must reestablish the SDA program each year by appropriating funds for the program in a line item of the FLA budget. See Saxon v Dep’t of Social Services, 191 Mich App 689, 699-700; 479 NW2d 361 (1991). Thus, the Legislature’s inclusion of the same language in subsection 805(l)(b) of 1992 PA 168 was not a failed attempt to amend an act, but, rather, constituted the reenactment of the language construed by defendants as requiring that a claimant be incapable of any remunerative work.
Plaintiffs mistakenly argue that the Legislature’s decision to modify subsection 805(l)(b) and mandate the use of the SSI standard during fiscal year 1993-94, 1993 PA 186, signaled the disapproval of defendants’ policy for the prior two years. Although this Court can view an amendment enacted soon after a controversy regarding a statute has arisen as a legislative interpretation of the original act and, on that basis, give it retroactive effect, Harper v Progressive Casualty Ins Co, 79 Mich App 764, 768; 263 NW2d 1 (1977), we decline to do so here. In light of the Legislature’s decision to reenact subsection 805(l)(b) in the appropriations act for fiscal year 1992-93, we do not consider the Legislature’s decision to adopt the ssi standard for 1993-94 as a rejection of defendants’ use of the more restrictive standard in 1991-92 and 1992-93. Accordingly, the trial court erred in determining that defendants’ policy violated the language of the appropriations acts because defendants correctly construed subsection 805(l)(b) and the Legislature approved that construction by reenacting subsection 805(l)(b) for fiscal year 1992-93. See Jones-Jennings, supra at 105; Canterbury Health Care, supra at 30. We therefore reverse and remand for entry of judgment for defendants.
In light of our determination that the trial court erred in declaring defendants’ policy invalid, we do not address defendants’ remaining arguments.
Reversed and remanded. We do not retain jurisdiction.
Bandstra, J., concurred.
In 1995, the Legislature abolished the dss effective March 28, 1996, and transferred its duties to the newly created Family Independence Agency. MCL 400.1 et seq.; MSA 16.401 et seq.
The Michigan Supreme Court amended the court rule to eliminate this procedure in May 1995, effective July 1995. The current version of MCR 2.604 only permits certification of an otherwise nonfinal order as a final order in receivership and other similar actions.
Defendants improperly rely on Comrn’r of Ins v Advisory Board of the Michigan State Accident Fund, 173 Mich App 566; 434 NW2d 433 (1988), for the proposition that they may either appeal by right from an order certified as final or wait until the final judgment to challenge that order. This Court has repudiated the Accident Fund interpretation of this Court’s jurisdiction under MCR 7.203. Adams v Perry Furniture Co (On Remand), 198 Mich App 1, 8; 497 NW2d 514 (1993); Klco v Dynamic Training Corp, 192 Mich App 39, 41; 480 NW2d 596 (1991).
MCL 400.6(1); MSA 16.406(1) grants the fía the power to promulgate “rules necessary or desirable for the administration of programs under [the Social Welfare Act].” Under MCL 400.1b(l); MSA 16.401(2)(1), the annual appropriations acts involved in this case are considered “as a time-limited addendum to th[e] act.” Therefore, the ha and its predecessor, the dss, had the power to promulgate rules to administer the sda program.
We reject defendants’ contention that under Blank v Dep’t of Corrections, 222 Mich App 385, 392; 564 NW2d 130 (1997), lv gtd 459 Mich 878 (1998), the trial court erred in concluding that they violated the apa In Blank, supra at 392-401, this Court held that §§ 45 and 46 of the apa, MCL 24.245; MSA 3.560(145), MCL 24.246; MSA 3.560(146), requiring legislative approval for agency rules, are unconstitutional. This Court, however, found the remaining portion of the apa enforceable because §§45 and 46 could be severed from the apa without interfering with the valid object of the act. Blank, supra at 401-402. In this case, defendants did not comply with any of the requirements for promulgating rules, not merely the provisions held unconstitutional in Blank. Accordingly, Blank is not controlling. In the event defendants’ policy constituted a rule, it is invalid for failure to comply with those apa rule-promulgation procedures that survived Blank. See Clonlara, Inc v State Bd of Ed, 442 Mich 230, 239; 501 NW2d 88 (1993).
Plaintiffs do not argue that defendants’ policy was a “guideline” for purposes of the apa. A guideline is “an agency statement or declaration of policy which the agency intends to follow, which does not have the force or effect of law, and which binds the agency but does not bind any other person.” MCL 24.203(6); MSA 3.560(103)(6). To promulgate a guideline, the agency must provide notice to the joint committee, the Legislative Service Bureau, the Governor and “each person who requested the agency in writing for advanced notice of proposed action which may affect the person,” and provide a sixty-day period for written comment. MCL 24.224(1); MSA 3.560(124)(1). Plaintiffs, however, have abandoned the issue whether defendants’ policy is invalid because it was not promulgated as a guideline by not raising it on appeal. See Phinney v Perlmutter, 222 Mich App 513, 544; 564 NW2d 532 (1997), and Joerger v Gordon Food Service, Inc, 224 Mich App 167, 172; 568 NW2d 365 (1997).
By contrast, this Court applies a three-part test to determine the validity of an agency’s rules. The rules must be within the matter covered by the enabling statute, must comply with the underlying legislative intent, and must not be arbitrary or capricious. Luttrell v Dep’t of Corrections, 421 Mich 93, 100; 365 NW2d 74 (1984); Binsfeld v Dep’t of Natural Resources, 173 Mich App 779, 785-786; 434 NW2d 245 (1988).
The new subsection 805(l)(b) for fiscal year 1993-94 was not technically an amendment because the previous subsection 805(l)(b) expired at the end of fiscal year 1992-93.
Defendants additionally argue that plaintiffs failed to exhaust their administrative remedies before initiating this action and that the trial court erred in granting plaintiffs supplemental relief. | [
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Per Curiam.
This is a medical malpractice action. Plaintiff appeals as of right from an order granting summary disposition in favor of defendant Dr. Norman Poliak (defendant) premised on plaintiffs failure to file an affidavit of merit with his complaint before the period of limitation had expired. We affirm.
MCL 600.2912d(l); MSA 27A.2912(4)(1), as amended by 1993 PA 78, the 1993 tort reform legislation, provides that the plaintiff in a medical malpractice action “shall file with the complaint an affidavit of merit . . . .” The substance of the affidavit, in essence, is a qualified health professional’s opinion that the plaintiff has a valid malpractice claim. MCL 600.2912d(2); MSA 27A.2912(4)(2) provides a measure of relief when an affidavit of merit cannot be filed with the plaintiffs complaint. That subsection allows, on motion for good cause shown, an additional twenty-eight days in which to file the required affidavit.
In this case, plaintiff filed his medical malpractice complaint against defendant and others on September 22, 1995, approximately two to three weeks before plaintiffs claim would be barred by the applicable two-year limitation period. MCL 600.5805(4); MSA 27A.5805(4). Plaintiff did not file an affidavit of merit with the complaint, however, and he did not move for a twenty-eight-day extension in which to file an affidavit.
On March 12, 1996, defendant filed a motion seeking summary disposition for failure to comply with MCL 600.2912d(l); MSA 27A.2912(4)(1). On April 22, 1996 — two days before the trial court heard defendant’s motion — plaintiff filed an affidavit of merit. The trial court, however, ruled that plaintiff’s failure to file an affidavit of merit with his complaint rendered the complaint null and void. The court then reasoned that because the filing was a nullity, it did not toll the period of limitation and therefore plaintiff’s claim was time-barred months before the affidavit of merit was finally furnished. The case was dismissed with prejudice.
We find no error in the trial court’s analysis. Generally, a civil action is commenced and the period of limitation is tolled when a complaint is filed. See MCR 2.101(B) and MCL 600.5856; MSA 27A.5856. However, medical malpractice plaintiffs must file more than a complaint; they “shall file with the complaint an affidavit of merit . . . .” MCL 600.2912d(l); MSA 27A.2912(4)(1). See also MCR 2.112(L). Use of the word “shall” indicates that an affidavit accompanying the complaint is mandatory and imperative. Oakland Co v Michigan, 456 Mich 144, 154; 566 NW2d 616 (1997). We therefore conclude that, for statute of limitations purposes in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit. Compare Hadley v Ramah, 134 Mich App 380, 384-385; 351 NW2d 305 (1984); Stephenson v Union Guardian Trust Co, 289 Mich 237, 241-242; 286 NW 226 (1939).
Because plaintiff’s complaint without an affidavit of merit was insufficient to commence his action, the period of limitation expired in October 1995. Accordingly, the trial court correctly concluded that plaintiff’s claim, as completed in April 1996, was time-barred. Furthermore, because the complaint without an affidavit, was insufficient to commence plaintiff’s malpractice action, it did not toll the period of limitation. See Solowy v Oakwood Hosp Corp, 454 Mich 214, 229; 561 NW2d 843 (1997), suggesting that, in order to toll the period of limitation, a medical mal practice plaintiff filing a complaint without an affidavit of merit must move for the twenty-eight-day extension provided for under MCL 600.2912d(2); MSA 27A.2912(4)(2).
Plaintiff contends that he should have been allowed to amend his September 22, 1996, complaint by appending the untimely affidavit of merit. He reasons that such an amendment would relate back, see MCR 2.118(D), making timely the newly completed complaint. We reject this argument for the reason that it effectively repeals the statutory affidavit of merit requirement. Were we to accept plaintiff’s contention, medical malpractice plaintiffs could routinely file their complaints without an affidavit of merit, in contravention of the court rule and the statutory requirement, and “amend” by supplementing the filing with an affidavit at some later date. This, of course, completely subverts the requirement of MCL 600.2912d(l); MSA 27A.2912(4)(1), that the plaintiff “shall file with the complaint an affidavit of merit,” as well as the legislative remedy of MCL 600.2912d(2); MSA 27A.2912(4)(2), allowing a twenty-eight-day extension in instances where an affidavit cannot accompany the complaint.
Affirmed.
We recognize that in Vandenberg v Vandenberg, 231 Mich App 497; 586 NW2d 570 (1998), this Court recently held that dismissal is not an appropriate remedy when a medical malpractice plaintiff fails to file an affidavit of merit. However, Vandenberg did not involve a statute of limitations problem and hence is factually and legally distinguishable from this case. | [
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Cavanagh, J.
Defendant was convicted by a jury of escape while awaiting trial for a felony, MCL 750.197(2); MSA 28.394(2), of malicious destruction of police property, MCL 750.377b; MSA 28.609(2), and of breaking and entering of a building with intent to commit a felony, MCL 750.110; MSA 28.305. The trial court sentenced defendant as an habitual offender, fourth offense, MCL 769.12; MSA 28.1084, to concurrent terms of five to fifteen years for the escape conviction, five to fifteen years for the malicious destruction of police property conviction, and eight to twenty years for the breaking and entering conviction. Defendant appeals as of right. We vacate defendant’s conviction of malicious destruction of police property but affirm his remaining convictions and sentences.
On March 25, 1996, corrections officers at the Mason County Jail discovered a broken window in one of the cells. Glass was found outside the window. A closer inspection revealed the presence of fresh cut marks on the window bars. Across from the broken window, the fence surrounding the jail had been cut so that it opened like a door. Three inmates, including defendant and Jeff Stakenas, occupied the cell with the damaged window.
Stakenas testified that defendant had told him that his “boys” were coming to get him out. Defendant told Stakenas that he was going to break the window so that his Mends could pass a hacksaw blade through, at which point he would try to saw through the bars. One night Stakenas heard noises that he believed to be someone cutting through the outside fence. Defendant told Stakenas to watch the door for guards. Defendant then took Stakenas’ crutch and used it to break out the window. Stakenas saw a gloved hand come through the window and pick out pieces of glass. Although Stakenas did not see anyone pass defendant hacksaw blades, he observed defendant trying to cut through the bars.
Craig Allen Cook, Jr., an inmate at the Mason County Jail, said that around the second week in March, defendant approached him and asked if he wanted to leave jail. Defendant told him that the window in his cell was broken, the fence outside was cut open, and he had hacksaw blades with which to cut the bars. Three days later, Cook testified, defendant told him he was going to get a .22 caliber pistol so he could get keys from a guard and asked Cook again if he wanted to escape. Cook never actually saw a gun or a hacksaw in defendant’s possession.
Another inmate, Doug LeClair, stated that in early March defendant said that he did not plan on serving his time. Later, defendant informed LeClair that someone had come to the jail, cut the fence, broken the window, and handed him a gun through the opening because he was going to break out. After LeClair spoke with a detective, he talked to defendant while wearing a concealed radio transmitter. LeClair testified that he told defendant that authorities had questioned him about the escape, and defendant said something like “I don’t know what you’re talking about.”
After the jury began deliberating, defense counsel noted that earlier that day, after the prosecution had rested, he had received the following items from the police: (1) an audio tape; (2) two partial transcript pages of the conversation purported to be on the tape; and (3) approximately thirty pages of supplemental reports from the sheriff’s department, including reports regarding inmate Michael Thompson. The prosecutor conceded that defense counsel had not been provided with these items, but stated that he, the prosecutor, had not been in possession of the materials and that, in any case, the materials were not exculpatory. Defense counsel conceded that there was “obviously a lot of damaging material in there from Defendant’s standpoint,” but argued that even if the information were not exculpatory, it might have led to exculpatory evidence, and furthermore the information might have affected whether defendant testified at trial. The trial court concluded that defendant had not been prejudiced and denied any relief. The jury subsequently found defendant guilty of escape while awaiting trial for a felony, of malicious destruction of police property, and of breaking and entering of a building with intent to commit a felony.
At a posttrial hearing to expand the record, Cris VanOosterum, the prosecutor at defendant’s trial, reiterated that he had not received copies of the materials until after they had been given to defense counsel. In addition, VanOosterum testified that he had been informed that Thompson wanted to make a statement in connection with the attempted escape and had directed the sheriff’s department to take his statement. Later, VanOosterum was approached by Thompson’s mother, who reported that Clay Fox had told her that he, his brother Brian, Tommy Green, and a fourth person had broken into the Mason County Jail yard on more than one occasion to help defendant escape. On another occasion, when her daughter was present, Clay Fox told Ms. Thompson that he and others were responsible for the attempt to break defendant out of jail. VanOosterum shared all this information with defense counsel. However, the morning of the trial, Ms. Thompson told VanOosterum that she could not remember anything and, if she were called as a witness, that would be the extent of her testimony. Accordingly, VanOosterum informed defense counsel that he would not be calling the Thompsons as witnesses.
Subsequently, defendant moved for a new trial. At the hearing concerning defendant’s motion, Detective Jordan Hartley testified that Thompson had indicated that he had information regarding the cutting of the security fence at the jail. Thompson stated that he had witnessed Brian Fox, Clay Fox, and an unknown female cutting the fence and passing things into the cellblock through a broken window. Hartley told Thompson that he would have to take a polygraph examination; Thompson initially agreed but later changed his mind. Subsequently, Thompson told Hartley that Tommy Green, rather than an unidentified female, had accompanied Brian and Clay Fox. In addition, Thompson denied being an eyewitness to the incident, saying that he had merely overheard conversations regarding the escape. Hartley stated that no agreements were made with Thompson in exchange for his testimony or cooperation.
Thompson testified that he became an inmate at the Mason County Jail in July of 1996. He contacted the police regarding the March escape attempt in hopes of obtaining a deal for himself. Both of the statements that he gave Hartley were untrue; he had not witnessed the incident and had not taken part in conversations about it until afterward. Thompson stated that the police encouraged him to lie and told him that he would have to say that he had been an eyewitness. Thompson acknowledged that the police had told him that he would have to take a lie detector test.
The trial court denied defendant’s motion for a new trial. The court concluded that defendant’s right to due process had not been violated by the belated delivery of the materials because defendant had not been prejudiced. The court reasoned that the use of Thompson’s testimony would have been problematic because it was clear that he went into the interviews seeking a deal, and his claim that the police told him what to say was “dramatically inconsistent” with their insistence that he take a polygraph test. The trial court also rejected defendant’s claims regarding the sufficiency of the evidence in support of the conviction of malicious destruction of police property, double jeopardy violations, and juror misconduct.
i
Defendant first argues that he was denied due process because the prosecutor, in violation of a discovery request, withheld exculpatory information. A defendant has a due process right of access to certain information possessed by the prosecution. Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). In order to establish a Brady violation, a defendant must prove (1) that the state possessed evidence favorable to the defendant, (2) that the defendant did not possess the evidence and could not have obtained it with the exercise of reasonable diligence, (3) that the prosecution suppressed the favorable evidence, and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. People v Lester, 232 Mich App 262, 281; _ NW2d_(1998).
After carefully reviewing the record, we find no Brady violation. The alleged exculpatory information consists of interviews and notes by police investigators that would for the most part have been inadmissible hearsay if the defense tried to offer them. The documents contain very little, if any, admissible evidence that is even arguably exculpatory. In determining the materiality of undisclosed information, a reviewing court may consider any adverse effect that the prosecutor’s failure to respond might have had on the preparation or presentation of the defendant’s case. Id. However, although defendant makes general observations concerning how the delayed disclosure of materials can affect defense strategy, he makes no specific claims regarding the actual effect of the late delivery of the materials on his defense. We note that defendant was able to recall at least one witness and question him regarding information contained in the materials. Moreover, defendant did not request a continuance because of his belated receipt of the materials.
Defendant contends that he was prejudiced by late disclosure of the materials because the prosecutor included Thompson, his mother, and his sister on the witness list he supplied to defense counsel during the week immediately preceding trial, but then abruptly dropped them from his list immediately before trial. Defendant contends that the prosecutor was “bluffing” and asserts that this tactic might have affected the defense strategy, including the decision whether defendant would testify, and led defense counsel to waste time preparing for testimony that the prosecutor had no intention of using. However, defendant fails to explain how this allegation of prosecutorial misconduct is related to the late delivery of the various items. Moreover, defendant points to no evidence that establishes that the prosecutor included the Thompsons on his witness list only for tactical reasons. The trial court found that the prosecutor decided not to use the Thompson witnesses because they had recanted their statements and because of inconsistencies in their stories. The trial court found the prosecutor to be credible; we will not disturb this finding. See People v Givans, 227 Mich App 113, 123-124; 575 NW2d 84 (1997).
Defendant also argues that he was prejudiced by the late delivery of the materials because during the presentation of the prosecution’s case he was unaware of Tommy Green’s alleged threats to several inmates. We find no indication that evidence favorable to defendant was thereby suppressed. At the hearing concerning defendant’s motion for a new trial, Thompson denied telling Hartley that he lied because he was afraid of Green. Defendant failed to call LeClair, Cook, and Stakenas at the hearing concerning his motion for a new trial to establish whether their testimony had been influenced by threats from Green.
Defendant next contends that the transcript of the recording made of the conversation between LeClair and defendant was exculpatory because defendant denied involvement in the attempted jail escape. However, defendant elicited the substance of that exchange when LeClair testified as a defense witness. Because the jury was informed that defendant had disavowed knowledge of the attempted escape, we conclude that defendant was not prejudiced by the tardy delivery of the transcript.
Defendant also argues that the prosecution violated his Fifth Amendment right against seh-incrimination by outfitting another prisoner with a concealed radio transmitter to have a conversation with defendant while defendant was in custody. However, the United States Supreme Court has held that Miranda warnings were not required where a law enforcement officer posed as a fellow inmate of a suspect in order to obtain information because the situation did not involve the coercive atmosphere of questioning by a known police officer. See Illinois v Perkins, 496 US 292; 110 S Ct 2394; 110 L Ed 2d 243 (1990). Similarly, we find no violation of the right against self-incrimination based on another prisoner’s surreptitiously acting as a police agent while conversing with defendant.
n
Defendant next contends that there was insufficient evidence to support his conviction of malicious destruction of police property. This conviction was predicated on the breaking of the window in the county jail. Defendant maintains that the window constituted “real property,” while MCL 750.377b; MSA 28.609(2) refers only to “personal property.”
MCL 750.377b; MSA 28.609(2) provides:
Any person who shall wilfully and maliciously destroy or injure the personal property of any fire or police department, including the Michigan state police, shall be guilty of a felony. [Emphasis added.]
On appeal, we review de novo questions of law regarding statutory interpretation. People v Sheets, 223 Mich App 651, 655; 567 NW2d 478 (1997). Our goal in interpreting statutes is to ascertain the intent of the Legislature. The first criterion in determining the Legislature’s intent is the specific language of the statute. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither permitted nor necessary. Id. at 656. In interpreting statutes, words are to be given their common, generally accepted meaning. The court should presume that every word has some meaning and should avoid any construction that would render a statute, or any part of it, surplusage or nugatory. People v Nickerson, 227 Mich App 434, 439; 575 NW2d 804 (1998).
In Black’s Law Dictionary (6th ed), p 1217, “pérsonal property” is defined as “everything that is the subject of ownership, not coming under denomination of real estate.” “Real property” is defined as “[l]and, and generally whatever is erected or growing upon or affixed to land.” Id. at 1218. A fixture is not personal property, but rather is part of real property. Wayne Co v Britton Trust, 454 Mich 608, 615; 563 NW2d 674 (1997). Property is a fixture if (1) it is annexed to the realty, whether the annexation is actual or constructive, (2) its adaptation or application to the realty being used is appropriate, and (3) there is an intention to make the property a permanent accession to the realty. Id. at 610. Under this definition, the window of a building clearly constitutes a fixture and thus is an item of real property, not personal property.
The trial court noted that there was “a legislative deficiency in language” but found that MCL 750.377b; MSA 28.609(2) proscribed the breaking of the window at issue. We conclude that the trial court erred in failing to apply the statute as written. MCL 750.377b; MSA 28.609(2) uses the term “personal property” and is therefore inapplicable to the destruction of real property such as the window of the county jail. To construe MCL 750.377b; MSA 28.609(2) as applying to real property would be to read the statute as if it simply stated “property,” rather than “personal property.” Such a construction violates the established rule of statutory interpretation providing that every word in a statute has meaning and no word should be rendered nugatory. See Nickerson, supra. Accordingly, because the evidence presented at trial related to the destruction of real property, rather than personal property, we vacate defendant’s conviction of malicious destruction of police property.
We recognize that our decision leads to the anomalous result that the destruction of real property of a police or fire department is treated less seriously than the destruction of personal property. However, this outcome is dictated by the plain language of the statute. If a change is to be made, it must be done by the Legislature and not by the courts.
m
Defendant next asserts that the use of prison escape as the predicate offense for breaking and entering with intent to commit a felony violated the prohibitions against double jeopardy in the United States and Michigan Constitutions, US Const, Am V; Const 1963, art 1, § 15. A double jeopardy issue constitutes a question of law that is reviewed de novo on appeal. People v Lugo, 214 Mich App 699, 705; 542 NW2d 921 (1995).
One of the protections of the Double Jeopardy Clauses of the United States and Michigan Constitutions is to prohibit the state from imposing multiple punishments for the same offense. North Carolina v Pearce, 395 US 711, 717-719; 89 S Ct 2072; 23 L Ed 2d 656 (1969); People v Sturgis, 427 Mich 392, 399; 397 NW2d 783 (1986). The constitutional protection against multiple punishment for the same offense is a restriction on a court’s ability to impose punishment in excess of that intended by the Legislature. Because the Legislature has the sole power to define crime and fix punishment, the Double Jeopardy Clause is not a limitation on the Legislature’s power to establish punishment. People v Price, 214 Mich App 538, 541; 543 NW2d 49 (1995). Accordingly, even if the crimes are the same, a double jeopardy challenge based on multiple punishment will not succeed if it is evident that the Legislature intended to authorize cumulative punishments. In determining legislative intent, a court must identify the type of harm the Legislature was intending to prevent. Statutes prohibiting conduct that violates distinct societal norms generally can be viewed as separate and as permitting multiple punishments. Id.
We find no double jeopardy violation. The elements of breaking and entering an occupied dwelling with intent to commit a felony are as follows: (1) a breaking and entering; (2) of an occupied dwelling; and (3) with felonious intent. People v Brownfield (After Remand), 216 Mich App 429, 431; 548 NW2d 248 (1996). In contrast, the jail escape statute requires a showing that (1) the defendant was lawfully imprisoned in a jail or other place of confinement while awaiting legal proceedings or transfer to prison and (2) the defendant broke or attempted to break the jail or place of confinement, regardless of whether an escape was actually made. MCL 750.197(2); MSA 28.394(2). Each statute protects against different societal norms. The breaking and entering statute applies to all occupied buildings. In contrast, the jail escape statute is specifically directed at maintaining the security of jails, thereby protecting the public from accused persons likely to be dangerous, as well as ensuring that accused persons appear at legal proceedings and convicted persons remain confined.
Defendant argues that because the maximum punishment for breaking and entering is ten years, and the maximum punishment for jail escape is four years, the Legislature could not have intended multiple punishment for the two offenses. However, although there is a difference in the length of possible punishment, that fact is not dispositive where one crime does not build on the elements of the other, imposing a greater sentence for aggravating factors. People v Robideau, 419 Mich 458, 487-488; 355 NW2d 592 (1984). There is no indication that the Legislature intended the crime of prison escape to be subsumed in the offense of breaking and entering. Accordingly, we find that defendant’s convictions of jail escape and breaking and entering an occupied building with the intent to commit a felony do not violate double jeopardy.
rv
Defendant next argues that the trial court abused its discretion in denying defendant’s motion for a new trial because of juror misconduct. Before this Court will order a new trial on the ground of juror misconduct, some showing must be made that the misconduct affirmatively prejudiced the defendant’s right to a trial before a fair and impartial jury. People v Fetterley, 229 Mich App 511, 545; 583 NW2d 199 (1998).
Defendant asserts that he is entitled to a new trial because two jurors did not acknowledge that they were acquainted with each other and a third juror. The third juror did state that he knew two other people on the jury; however, defense counsel did not ask any additional questions. All three jurors testified at the hearing concerning defendant’s motion for a new trial. The three jurors all worked for the same employer; however, none of the three had supervisory control over either of the others. Although they were acquainted from work, they did not socialize together. Each juror testified that knowing the two other jurors affected neither his or her ability to remain impartial nor the partiality of the jury as a whole. The trial court noted that in a rural county it was likely that people would know each other and found that there was no evidence that defendant had been prejudiced. Because defendant has not demonstrated that the jurors’ impartiality was impaired, we conclude that the trial court did not err in denying defendant’s motion for a new trial.
v
Finally, defendant argues that he is entitled to a new judge on remand. We have not found that remand is required. We briefly note, however, that even if remand were necessary, we would not find that disqualification of the trial judge is warranted. The record does not reflect a showing of actual bias or prejudice against defendant. See People v Gomez, 229 Mich App 329, 331; 581 NW2d 289 (1998). Contrary to defendant’s argument, repeated rulings against a litigant do not require disqualification of a judge. See People v Houston, 179 Mich App 753, 759; 446 NW2d 543 (1989).
Defendant’s conviction of malicious destruction of police property is vacated. Defendant’s remaining convictions and sentences are affirmed.
Defendant also contends that Hartley testified falsely when he stated at trial that he interviewed only two inmates, Cook and LeClair. At the hearing concerning defendant’s motion for a new trial, Hartley stated that he also interviewed Thompson and another inmate. Hartley explained that at trial he had answered the question in the context of what he had done on the initial day of the investigation; he had interviewed Thompson and the other inmate at a later time. While Hartley’s description of his investigation was incomplete, we do not find that a new trial is required. Defendant has failed to demonstrate that Hartley’s testimony resulted in the suppression of evidence favorable to him. See Brady, supra.
The trial transcript contains the following passage from LeClair’s testimony as a defense witness:
Q. Did you have conversations with Mr. Fox while you were wearing the wire?
A. Yeah, I said something to him when we were going through the library on the way back to east cell.
Q. Did you testify this morning “no” when that question was asked of you?
A. Yes.
Q. I’ll give you a chance; did you have conversations with him while you had the wire on?
A. I said something to him on the way through. Depends on what you call conversation. If we were sitting down talking, no, we weren’t. When I come out of the, there was a room there where they put the wire on, and the library is right next to it. I come out, there was a bunch of people there going into the library at that time. And Jason was standing there. And I was standing there. And I said, “Jason, they’re trying to” — or I said, “ Jason, they called me in there and asked me questions about the Jail Escape or attempted Escape”, whatever it is. And Jason heard me say that. He took off to the other side of the library. And from there I went to my cell.
Q. He didn’t respond to your question?
A. Yeah, I think he said something. I’m not real positive on this. And I think he said something like, “I don’t know what you’re talking about” or whatever. But that was the extent of it. If that is a conversation, I mean that’s the extent of it.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Defendant also argues his conviction of malicious destruction of police property was not supported by the evidence because the jail building, and thus the window, was owned by the county and not by any police or fire department. Because we have already determined that defendant’s conviction must be vacated, we do not address whether the window at issue constituted the property of a police department.
The conduct at issue would be subject to prosecution under MCL 750.380; MSA 28.612, which prohibits wilful and malicious destruction or injury to the building of another with the crime being a felony if the damage is over $100, a misdemeanor if the damage is $100 or less.
Defendant also argues that his convictions of both malicious destruction of police property and breaking and entering violated the constitutional prohibition against double jeopardy. However, because we have already vacated defendant’s conviction of malicious destruction of police property, resolution of this issue is unnecessary.
At the hearing concerning defendant’s motion for a new trial, defense counsel testified that he did not hear the juror state that he knew two other jurors. | [
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Wiest, J.
Plaintiff, a Michigan corporation, organized for profit, seeks our writ of mandamus, directing the secretary of State to accept and file the proper papers extending its corporate existence beyond the initial term of 30 years without exacting a franchise fee.
Plaintiff, under another name, was organized December 31, 1897, with a corporate existence ending, unless renewed, December 31, 1927. In accord with privilege granted by chapter 4, pt. 1, Act No. 84, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9053 [27-33]), sanctioned by the Constitution, section 3, article 12, proper action was taken to extend plaintiff’s corporate existence 30 years, and the evidence thereof tendered the secretary of State for acceptance and filing. The secretary of State refused to accept the renewal articles unless paid a franchise fee of $625. The sole question is whether, upon a renewal or extension of corporate existence a franchise fee, as in case of a new corporation, is exacted by law.
The mentioned act of 1921 is silent on the subject of a franchise fee in case of extension of corporate existence. The act grants the privilege of having the corporate life extended and points the method and means for its accomplishment, and provides:
“Any corporation which has thus been renewed shall be the same corporation, shall hold and own all the rights, franchises and property held and owned by the corporation before renewal, be subject to all its liabilities, and have the same stockholders, members and officers.” Comp. Laws Supp. 1922. § 9053 (31).
This language is clear and speaks, not of a new corT poration, but of a renewal or extension of old corporate life.
Plaintiff, a stock company, organized for profit, had an original term of existence of 30 years, but the provision in the Constitution, section 3, article 12, so limiting the initial term, also permits the legislature to provide by general law, “for one or more extensions of the term of such corporations, while such term is running not exceeding 30 years for each extension, on the consent of not less than two-thirds of the capital stock of the corporation.” Such provision contemplates a continuation of corporate existence and not the creation of a new corporation.
It will be noted that the action looking toward an extension of the corporate life must be taken while the corporation is functioning and leaves power with the stockholders to let dissolution by time limit take place or by action to such end extend the lease of corporate life.
The attorney general contends that section 4, Act No. 182, Pub. Acts 1891, as amended (3 Comp. Laws 1915, § 11355), and Act^No. 84, Pub. Acts 1921, are in pan materia, and, therefore, the franchise fee is payable. The act of 1891, as amended, provided that:
“All corporations whose term of corporate existence, as fixed by their articles of association, shall have expired, or shall be about to expire by limitation, and who shall renew such corporate existence in accordance with law, shall, for the purpose contemplated by this act, be treated and regarded as new corporations, and shall be required to pay the fee provided by this act.”
The act of 1891 was entitled:
“An act to provide for the payment of a franchise fee by corporations.”
The act of 1921 is a general revision and consolidation of statutes relating to certain corpprations, inclusive of plaintiff, and expressly repealed numerous statutes, but not Act No. 182 of 1891. Counsel for plaintiff contend that Act No. 84, Pub. Acts 1921, repeals by necessary implication Act No. 182, Pub. Acts 1891, and besides, the legislature, by Act No. 211, Pub. Acts 1927, declared the act of 1891 obsolete and inoperative and repealed it before plaintiff sought an extension of corporate life.
Counsel for defendant point out the fact that the mentioned act of 1927 failed of accomplishment for want of a repealing clause. Such is the fact. The act of 1927 is entitled:
“An act to repeal certain obsolete and inoperative laws.”
The act specifically enumerated 138 laws, parts of laws and joint resolutions, inclusive of Act No. 182, Pub. Acts 1891, but failed to carry out its object by a repealing clause. For want of a repealing clause Act No. 211, Pub. Acts 1927, repealed nothing. While such abortive effort to repeal is no law, yet the solemn attempt serves as a legislative declaration or construction to the effect that the act of 1891 is obsolete and inoperative, and, although not a construction binding upon the court, it is entitled to some weight. See Burridge v. City of Detroit, 117 Mich. 557, 559 (42 L. R. A. 684, 72 Am. St. Rep. 582).
The object of the rule in pari materia is to carry into effect the purpose of the legislature as found in harmonious statutes on a subject, but the rule is supine when the intent of the legislature to the contrary is manifested even by an abortive attempt to so enact. We think, as did the legislature, that the act of 1891 is obsolete and inoperative and may not be considered in pari materia with the act of 1921.
The act of 1921 is not legislation supplemental to the act of 1891, but a general revision, designed to embrace the entire subject of renewal or extension of corporate existence, and calls for application of the rule that such an enactment operates as a repeal of all former acts upon the subject. As stated in 25 R. C. L. p. 925 :
“A mere compilation of laws which is not a code or a revision does not have the effect of repealing existing statutes not included therein. But where a statute is revised or a series of acts on the same subject is revised and consolidated into one, all parts and provisions of the former act or acts, that are omitted from the revised act, are repealed, even though the omission may have been the result of inadvertence.”
Repeals by implication are not favored, but do happen, and, when clear, must be given effect.
Act No. 182, Pub. Acts 1891, constitutes no warrant for exacting the franchise fee. The franchise fee to be a corporation is an excise tax. Section 6, article 10, of the Constitution provides:
“Every law which imposes, continues or revives a tax shall distinctly state the tax, and the objects to which it is 'to be applied; and it shall not be sufficient to refer to any other law to fix such tax or object.”
The object of the franchise tax is probably sufficiently fixed by section 1, article 10, of the Constitution. Walcott v. People, 17 Mich. 68. But the imposition of the tax is not so fixed. Section 6, article 10, of the Constitution inhibits reading into the law of 1921 the franchise tax provision in the law of 1891. Such could not be done had the law of 1921 expressly referred to the law of 1891, and what can not be done by an enactment can not in) a tax matter be accom plished under the rule in pari materia. We cannot continue the franchise tax under the law of 1891 and make it payable for the privilege of an extension of corporate existence under the act of 1921. If a franchise fee for the privilege of an extension of corporate existence is to be imposed, the legislature must say so, and the act permitting such an extension, and saying nothing about a franchise fee does not impose a franchise fee or admit of imposition of . such a fee under the former law on the subject.
Defendant also sets -up practical administrative construction, under which the franchise fee has been exacted' of and paid by corporations renewing terms of life under the provisions of the act of 1921, and we are asked to take this into consideration in aid of our judgment. Were the language of the act of 1921 ambiguous, we might be impressed with such practical construction, but the terms of the act are clear, call for no construction, and we may not employ a practical construction! in enlargement of the act of 1921. It is contended in behalf of defendant that the legislature is shorn of power to permit an extension of corporate existence without payment of a franchise fee by article 10, section 1, of the Constitution. That section reads:
“All subjects of taxation now contributing to the primary school interest fund under present laws shall continue to contribute to that fund, and all taxes from such subjects shall be first applied in paying the interest on the primary school, university and other educational funds in the order herein named, after which the surplus of such moneys shall be added to and become part of the primary school interest fund.”
In effect we are asked to hold that, because section 4, Act No. 182, Pub. Acts 1891, imposed a franchise tax upon a renewal of corporate existence, such subject of taxation became fixed, by the quoted provision of the Constitution of 1908, and could not be released by subsequent legislation. The construction contended for is without merit. The quoted provision bars the legislature from turning the tax from the purposes fixed, while the tax continues, but neither continues the tax nor prevents the elimination of that subject of taxation by the legislature. The provision relates to the application of the tax only.
The secretary of State is directed to accept and file the evidence of plaintiff’s extension of corporate existence without exacting any franchise fee, and, if necessary, the writ of mandamus will issue. The question presented being of public moment, we do- not award costs.
Flannigan, C. J., and North, Fellows, Clark, McDonald, Bird, and Sharpe, JJ., concurred. | [
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Bird, J.
This suit was filed to foreclose a mechanic’s lien. Defendants owned a lot on Calvert avenue, and were desirous of erecting thereon a two-family flat. They employed plaintiff as their contractor. They exhibited to plaintiff a sketch of the kind of flat they wanted, and, after examining together some flats which he had erected, he estimated such a flat as they desired would cost $17,000. Defendants made a written contract with plaintiff to employ the labor, purchase the materials, and supervise the job, and agreed to allow him a fee of $2,100 for his services. The work was begun in May, 1922, and finished some time in February, 1923. Many changes and additions were made to the original plans as the work progressed. When finished, it was found that the flat had cost nearly $4,000 more than the estimate. Defendants hesitated about paying this sum, and plaintiff filed a lien on the flat.
1. Defendants complain because a mistake was made in Mrs. Pelham’s given name in the lien. Her name was stated in the notice of lien as “Emma,” whereas it should have been “Ermina.” Mr. and Mrs. Pelham, owned this property by the entireties, and jointly contracted to have the improvements made. Service of.' a copy of the lien was served on Mr. Pelham, and' service was waived for her by him. There is no claim that she was misled to her prejudice by the mistake. The mistake was not jurisdictional.
2. The plaintiff contractor was desirous of having a payment on his contract. He prepared a statement in accordance with 3 Comp. Laws 1915, § 14799, showing all expenditures up to December, 1922, and served it upon the Detroit Trust Company, who was furnishing the money on a mortgage as the work progressed.. Mr. Pelham was present at the time. ' He saw the statement and was at liberty, to examine it if he chose. He now complains that the statement was not served upon Mm. Plaintiff replies to this that the trust company was furnishing the money for defendant as the work progressed, and, therefore, was the agent of the defendant for the service of the statement, and cites Acme Lumber Co. v. Swanston, 214 Mich. 561. It also calls attention to the observation made by the defendant Pelham at the time the statement was served, “that Mr. Monroe, who was handling the matter for the trust company, was the man to make his peace with.” We think the record fairly shows, however, that the delivery was made to both, Pelham and Monroe. Monroe had possession of it by direction of Pelham, and Pelham had access to it. No particular exception seems to be taken to the sufficiency of the notice except that the cost of the extras was not shown.
3. The defendants appear to have been much disturbed about the excess over the estimate, and wrote to plaintiff the following letter:
“I wonder if Jess has had time to make up the cost list of the extras according to the list which Mr. Hopper had at the time we went over the building costs when the loan was put on the house?
“I wish you would have it made up and sent to me so that I can go over it and see just what you list and costs would appear to be.”
Plaintiff’s reply to this was:
“That it was next to impossible to give the exact cost of extras on your property. You have the time book and all bills, which will show the entire cost of the building as originally planned and as finally completed. Of course, anything that we can do to enlighten you as to the time book and the bills which you now hold, we shall be glad to do. * * *
“What was added for extras we could not figure exactly at this time.”
Defendants claim that a failure to give the cost of the extras was in violation of 3 Comp.' Laws 1915, § 14803. It appears in the testimony that the defendants had all the bills for material and labor that went into the house. The difficulty was that plaintiff could not segregate the cost of the material and labor which went into the extras from the mass, at least without possession of the bills, which the defendants had in their own possession. We do not think that a failure to do this was a violation of the statute referred to. There is nothing in the statute which would require the plaintiff to segregate the cost of any particular part of the house. Neither is there anything in the contract which would require it. The duty of the contractor, when called upon, was to prepare and serve a statement of the items mentioned of the entire construction to that date.
Plaintiff raises some question that a settlement was agreed between it and defendants, but was not carried out by them. The trial court considered this and said:
“The court finds that a compromise settlement was entered into by the plaintiff and defendants wherein the plaintiff and defendants agreed upon a certain amount to be paid. The consideration for the payment of this certain amount was the deduction of three hundred ($300) dollars, which amount is deducted from the amount for which a decree may be taken.
“It is apparent from the testimony the reason why this agreement as to the payment of the specific amount less three hundred ($300) dollars was not carried out and said amount paid, the said defendant, Harold F. Pelham, testified that it would have cost ten per cent. (10%) to obtain a second mortgage, together with seven (7%) per cent, interest per annum, whereas the plaintiff would only be entitled to five (5%) per cent, interest per annum.”
That the final cost was so much in excess of plaintiff’s estimate was cause for much disappointment on the part of defendants, but it was largely brought on by their leaving the cost of the flat an open one, and then making changes and additions without first ascertaining their cost. While the cost was more than was expected, the work appears to have been well done, and defendants got what they wanted. We agree with the trial court that foreclosure should be granted for the sum of $3,649.38, with interest and costs.
Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred.
The late Justice Snow and Justice Steere took no part in this decision. | [
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NORTH; J.
This case is brought to this* court by writ of error. It has been submitted without oral argument. The appellees have failed to file a brief. Plaintiff’s declaration contains two counts: the first for breach of a covenant against incumbrances contained in a deed given by defendants to plaintiff; the second is on the common counts. ■ The defendants filed a plea of the general issue with notice of special defenses, and also filed a cross-declaration, though it appears from appellant’s brief that the cross-declaration probably should have been filed in another case pending between the same parties. After issue was joined plaintiff’s counsel made a motion for summary judgment for $5,057.08 (3 Comp. Laws 1915, § 12581). The defendants filed two affidavits of merit in opposition. The motion was heard before the court and thereupon the following order was entered:
“It is hereby ordered that said motion for summary judgment be denied and this cause be dismissed with (probably should be without)- cost to either party and no further proceedings be had thereunder in Genesee county, Michigan.”
It is from this order that the appeal has been taken, and it is the claim of the plaintiff that the trial court was in error in denying his motion for a summary judgment, and also that there was error in dismissing plaintiff’s suit.
The specific claim made by plaintiff in the first count of his declaration is that the deed given by the defendants covenanted that there was no incumbrance against the property conveyed “except two mortgages to the People’s State Bank totaling $1,800;” whereas there was in fact another mortgage in the sum of $5,000 which was and still is an incumbrance against said property. As disclosed by the record, the difficulty with which plaintiff is confronted incident to his motion for summary judgment, even if we disregard defendants’ claim set forth in the cross-declaration, is that the plaintiff makes no claim that he had paid any portion of this $5,000 incumbrance. As yet, no actual damage has been suffered by the plaintiff so far as appears from either his declaration or the affidavit in support of his motion, which affidavit refers only to the first count of the declaration. The injustice of requiring the defendants to pay the plaintiff this amount of money as damages is self-evident, since defendants would still be liable to the original mortgagee and might be called upon forthwith to pay the obligation a second time. The sufficiency or insufficiency of the affidavits of merit is of no consequence. The trial judge was correct in denying plaintiffs motion for summary judgment. In the absence of an allegation and proof of actual damages the plaintiff could recover only nominal damages. Simons v. Diamond Match Co., 159 Mich. 241.
The reason which prompted the circuit judge to dismiss plaintiff’s suit does not appear in the record; and obviously the ' question of dismissing the plaintiff’s case was not before the court for consideration at the time of the hearing and order above mentioned. Even if we assume, because of the reason hereinbefore suggested, that the plaintiff might have serious difficulty in establishing his right to recover under the count of his declaration for a breach of covenant against incumbrances, still, incident to the dismissal of his suit, we have left for consideration any claim which he might be able to establish under the common counts contained in his declaration. Aside from this, there seems to be no authority for a trial court summarily dismissing a plaintiff’s cause of action unless lack of jurisdiction appears from plaintiff’s pleadings or otherwise in the record of the case. Gruler v. McRoberts, 48 Mich. 316; Martin Lumber Co. v. Menominee Circuit Judge, 116 Mich. 354; Hatch v. Wayne Circuit Judge, 138 Mich. 184.
. The trial court was in error in that portion of his order wherein he specified “that this cause be dismissed without cost to either party and no further proceedings be had thereunder in Genesee county, Michigan;” and therefore the case is reversed and remanded to the circuit court for further proceedings. Plaintiff will have costs in this court.
Sharpe, C. J., and Bird, Flannigan, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Per Curiam.
After a jury trial, Joseph Saigh and Lawrence Wells (hereafter defendants) were found liable for innocent or negligent misrepresentation and constructive and actual fraud. The jury returned a verdict of $1,282,575 in compensatory and exemplary damages and, subsequently, the trial court entered a judgment against defendants in the same amount. Defendants then moved for a new trial, judgment notwithstanding the verdict (JNOV), and for remittitur. The trial court denied all motions. Defendants now appeal as of right. We affirm.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff is a maintenance and meter-reading contractor, employing approximately 700 employees across numerous states. In 1999, plaintiff retained Benefits USA, Inc. (Benefits), operated by Gregory Cooper, who is a licensed insurance agent, as its insurance agent. In February or March of 2002, Benefits recommended that plaintiff put a segment of its employees on UltraMed, allegedly a full-coverage primary insurance company, and plaintiff enrolled its employees in the plan. Plaintiff was provided with documentation and promotional materials regarding this plan.
Benefits had learned of UltraMed through Kim Thiteca, who is a licensed insurance agent who sold health insurance for Financial Healthcare Systems (FHS) and who recommended UltraMed for plaintiff through Benefits. FHS is run by defendants Saigh and Wells as partners, both of whom are licensed insurance agents in Michigan. Defendants, including Kim, held themselves out as “specialists” in health care insurance coverage. FHS typically sold one plan at a time and would transition into a new plan when the previous plan failed. According to Kim, it was defendants who “brought” the health care plans into the office for their employees to sell. FHS’s employees would prepare presentation booklets and other promotional materials using the of information defendants provided them and these materials would be distributed to other agents. Any insurance agent not employed by FHS who wanted to set their clients up with plans held by FHS had to go “through” FHS. In such instances, both FHS and the external agent would receive commissions.
When Kim recommended UltraMed for plaintiff to Benefits in 2002, Kim knew that plaintiff was seeking major full-coverage primary health care insurance and, despite not knowing whether UltraMed was licensed, did not advise Benefits or plaintiff to perform a “due diligence” or take any special precautions. In addition, one of FHS’s service representatives testified that FHS already knew that UltraMed was not paying its claims when plaintiff was placed with it. UltraMed, in fact, was not a health insurance company licensed to operate in Michigan. At the time, UltraMed also had a cease and desist order against it in the state of Florida indicating that defendants had made misrepresentations regarding UltraMed.
Subsequently, the claims of plaintiffs employees under the UltraMed plan began to go unpaid. On March 14, 2002, FHS issued a letter informing plaintiff that UltraMed had gone into receivership and had been ordered to stop selling insurance by the state of Texas. The letter was signed by a customer service representative who received the information from defendants. The letter stated:
We have looked and found another TPA [third-party administrator] to administer this business. They have agreed to keep your current premiums and Plan Descriptions (excluding the discount Dental and Vision plan) for existing groups that want to rollover. They also have agreed to retroactive [sic] the effective date to March 1, 2002 provided the appropriate documentation is received. It has heen guaranteed that you will not have any lapse of coverage once the signed documentation is received. You will get this information from your agent. The deadline for this rollover is Friday, March 22, 2002.
The new plan recommended to plaintiff was Southern Plan Administrators (SPA). According to Wendy Thiteca, Kim’s sister who was a service representative employed by FHS, it was defendants’ decision to roll its clients over to SPA.
FHS sent Wendy, who is not a licensed insurance agent, to conduct a due diligence on SPA. During the due diligence Wendy learned that SPA’s “reinsurance carrier [was not] on board” and that it was using the premiums it received to pay claims. According to Wendy, the reinsurance carrier was located in Greece and “no one could ever contact [them.]” Defendants were apparently aware of this situation. In other words, SPA was not an actual insurance company; rather, it was an employee health benefit plan that would pay the individual claims and be “backed-up” by reinsurance.
Despite this knowledge, Kim and Benefits made a presentation to plaintiff recommending that plaintiff switch to SPA. Kim presented SPA to plaintiff as a fully insured, first-dollar-coverage, health insurance company and provided a plan description matching UltraMed’s. Kim also provided plaintiff with pamphlets and promotional materials, including information about coverage and price quotes. These materials indicated that its customers were satisfied with SPA’s coverage. Consequently, in March 2002, plaintiff purchased the SPA plan to replace the UltraMed plan. Under the plan, plaintiff paid SPA $36,000 a month in premiums for the benefit coverage plus an additional 30 percent of each monthly payment to cover agent fees, commissions, and other administrative costs. SPA, however, was not a health insurance company licensed to operate in Michigan.
On December 12, 2002, Kim sent plaintiff an “urgent” fax requesting plaintiff to fill out a new application for reinsurance with CIC Insurance Company. SPA’s reinsurance carrier, Market Trends, had stopped paying claims and SPA decided to switch reinsurance carriers. Kim requested plaintiff to submit another payment, which plaintiff did. CIC, however, also failed to pay any claims and it also was not a licensed insurance company in Michigan. One day later, a cease and desist order was issued against SPA in Texas directing it to stop its operations because of fraudulent practices.
In March 2003, plaintiff began experiencing claims problems. Unbeknownst to plaintiff, SPA had discontinued its operation, but plaintiff continued to make the premium payments. However, when plaintiff could not “get a direct answer out of anybody,” it refused to make its July 2003 premium payment. Defendant Saigh and Kim then visited plaintiff in August 2003 in an attempt to resolve the problem. Saigh indicated that if plaintiff made another payment within 24 hours, the claims would be paid. Instead of paying SPA another premium payment, plaintiff, at Saigh’s recommendation, signed up with Fleet Care. Soon thereafter, plaintiff discovered that Fleet Care was also not a first-dollar-coverage insurance company. Plaintiff ceased doing business with defendants and switched, with some difficulty, to Aetna Insurance.
As a result of the unpaid claims, plaintiff received “hundreds” of complaints from its employees because their prescriptions were not being covered, collection agents were contacting them, or their doctors refused to provide any care. In some instances, plaintiff directly paid for its employees’ medications and some employees were sued in small claims court by their health care providers. Consequently, “a lot” of plaintiffs employees quit. Further, while plaintiff paid $67,762.55 in premiums to UltraMed and $263,887.15 to SPA, only $124,257 in claims were ever paid.
After discovering this alleged “Ponzi” scheme, plaintiff brought a three-count complaint alleging negligent and innocent misrepresentation, breach of contract, and actual and constructive fraud. The trial court dismissed plaintiffs contract claim on defendants’ motion for summary disposition. Plaintiffs then proceeded to trial against defendants Saigh and Wells on the remaining counts.
The trial began on October 17, 2006. Before opening statements, the parties indicated to the trial court that they had stipulated all the trial exhibits. After plaintiff presented its case, defendants moved for a directed verdict. The court denied defendants’ motion, determining that reasonable minds could differ. Defendants did not present any witnesses and, after closing arguments, the trial court provided the jury with instructions that the parties stipulated. Subsequently, the jury found defendants guilty of innocent or negligent misrepresentation and actual and constructive fraud, and awarded plaintiff $1,282,575 in compensatory and exemplary damages against defendants jointly and severally. On November 13, 2006, the trial court entered judgment for plaintiff.
After trial, both defendants’ counsel and plaintiffs counsel spoke with one of the jurors, Tina Rhines, who indicated that the jury foreperson had brought two prepared documents into the jury deliberation room. According to Rhines, the foreperson had prepared two chart summaries showing all the participants in the case and a description of their testimony, as well as a time line of events. These summaries were allegedly used to direct deliberation and were relied on heavily during deliberations.
Defendants then filed numerous postjudgment motions, including motions for a new trial, JNOV and remittitur. The court denied all three of defendants’ motions in a written order. This appeal followed.
II. DIRECTED VERDICT AND JNOV
Defendants first assert that for various reasons none of plaintiffs claims should have been submitted to the jury and the trial court therefore erred by denying defendants’ motions for summary disposition, a directed verdict, and JNOV Consequently, defendants contend they are now entitled to JNOV
A. STANDARDS OF REVIEW
We review a trial court’s decision on a motion for a directed verdict de novo. Coates v Bastian Bros, Inc, 276 Mich App 498, 502; 741 NW2d 539 (2007). We must examine all the evidence, and all legitimate inferences arising therefrom, in the light most favorable to the nonmoving party. Id. at 502-503. “A directed verdict is appropriate only when no material factual question exists upon which reasonable minds could differ. If reasonable jurors could honestly have reached different conclusions, neither the trial court nor this Court may substitute its judgment for that of the jury.” Moore v Detroit Entertainment, LLC, 279 Mich App 195, 202; 755 NW2d 686 (2008) (citation and quotation marks omitted).
We also review de novo a trial court’s determination on a motion for JNOV Morales v State Farm Mut Automobile Ins Co, 279 Mich App 720, 733; 761 NW2d 454 (2008). “The trial court should grant a JNOV motion only when the evidence and all legitimate inferences viewed in a light most favorable to the nonmoving party fails to establish a claim as a matter of law.” Id.
B. EXCULPATORY EVIDENCE
Defendants first argue that they are entitled to judgment because plaintiffs sole expert witness, David Walker, absolved defendants from liability on the basis of his answers to numerous hypothetical questions asked during cross-examination. We disagree. In order to be considered competent evidence, the hypothetical questions, through which testimony is elicited, must be in “substantial accord” with the facts presented at trial. See Alexander v Covel Mfg Co, 336 Mich 140, 146; 57 NW2d 324 (1953); Mapes v Berkowitz, 304 Mich 278, 279-283; 8 NW2d 65 (1943); Dudley v Gates, 124 Mich 440, 445-446; 83 NW 97 (1900).
The line of questioning that defendants rely upon requested Walker to consider whether defendants had done anything wrong assuming that Benefits produced the fraudulent documents instead of defen dants and that CIC was an authorized insurance company. Specifically, defendants’ counsel asked the following questions:
Q. Okay. Assuming that [the documentation] didn’t come from Larry or Joe; they really did come from Greg Cooper; just assuming.... [D]o you see anything that would indicate to you that either Joe or Larry made a false statement to Unibar at any time prior to March 2003?
A. No.
Q. Okay. Do you see anything to indicate they breached the standard of care [also assuming that defendants didn’t make any statements]?
A. No.
Q. Okay. Assumihg that CIC was authorized to do business in Michigan', did in fact pay claims of Unibar’s injured employees ... through March of 2002, with that information, would that alter your opinion in any way that they were negligent?
A. With that hypothetical, yes they would not have done something untoward, as it were, or unethical.
After our review of the record, it is plain that the hypothetical questions, which defendants contend the answers to which absolved them from liability, were not in “substantial accord” with the evidence presented at trial. Plaintiff learned of UltraMed through Cooper. Defendants’ agent, Kim, had recommended UltraMed for plaintiff to Cooper. Plaintiff was provided documentation regarding the plan. Subsequently, plaintiff enrolled its employees with SPA, after receiving a letter from FHS, which was produced by defendants, indicating that UltraMed had stopped operating. The letter indicated that plaintiff could roll over its employees to a new plan that defendants had found and not suffer any loss if it did so within eight days. Thereafter, defendants’ agent presented plaintiff with promotional materials regarding SPA, which defendants had selected for the rollover, and plaintiff enrolled in the plan. When SPA stopped paying the claims, defendant Saigh went to plaintiff’s office, urging plaintiff to pay the premiums. When plaintiff refused to do so, plaintiff signed up with another insurance company that Saigh had recommended, which also ultimately failed to pay claims.
Thus, absolutely nothing in the record indicates that Benefits and Cooper were responsible for creating the documentation at issue in this matter. Moreover, it was unequivocally established that CIC was not a licensed insurance company in Michigan. Because the hypothetical questions were not in substantial accord with the facts presented at trial, they fail to create a legitimate basis upon which the trial court should have granted defendants’ motions for a directed verdict and JNOV
Defendants next contend that because plaintiff settled its claims against Kim and FHS, plaintiff also released defendants from liability because the release of an agent releases the principal from liability. “Release” is an affirmative defense that a defendant must plead in the first responsive pleading. MCR 2.111(F)(1); MCR 2.111(F)(3). Failure to do so results in a waiver of the defense. MCR 2.111(F)(2). Because defendants failed to raise this affirmative defense in their first response and never moved to amend their response once the claims against Kim and FHS were settled, we consider this argument waived and we voice no opinion on this argument’s merits.
C. INSUFFICIENT PROOF
1. INNOCENT AND NEGLIGENT MISREPRESENTATION
Defendants also contend that plaintiff failed to present a claim of innocent misrepresentation because there was no privity of contract between the parties and because plaintiff did not show that the injuries plaintiff suffered inured to the benefit of defendants. With respect to negligent misrepresentation, defendants argue that plaintiff failed to establish “justifiable reliance” or that defendants owed plaintiff a duty. We disagree.
“A claim of innocent misrepresentation is shown if a party detrimentally relies upon a false representation in such a manner that the injury suffered by that party inures to the benefit of the party who made the representation.” M&D, Inc v McConkey, 231 Mich App 22, 27; 585 NW2d 33 (1998) (citation and quotation marks omitted). It is not necessary that a plaintiff show a “fraudulent purpose” or intent on the defendant’s behalf, or even that the defendant knew that the representation was false. Id. at 27-28. The plaintiff, however, must show that privity of contract existed between the plaintiff and the defendant. Id. at 28. “A claim for negligent misrepresentation requires plaintiff to prove that a party justifiably relied to his detriment on information prepared without reasonable care by one who owed the relying party a duty of care.” Fejedelem v Kasco, 269 Mich App 499, 502; 711 NW2d 436 (2006) (citations and quotation marks omitted).
In the present matter, plaintiffs proofs at trial sufficiently established a claim of negligent misrepresentation. Defendants, through Kim and FHS, held themselves out as “specialists” in health care insurance coverage. Plaintiff, which is not engaged in the business of health insurance coverage, was introduced to FHS for the purpose of obtaining counseling and advice with respect to health insurance coverage. Defendants’ relationship with plaintiff created a duty to proceed under the proper standard of care. See Brown v Brown, 478 Mich 545, 552-553; 739 NW2d 313 (2007). As plaintiffs expert, Mr. Walker, testified at trial, insurance agents have a duty to treat their clients under the proper standard of care, which includes, but is not limited to, determining whether a company is a health insurer licensed to do business in the state, checking on consumer complaints, knowing whether the company exists, and determining whether the company has a history of paying its claims. Given this testimony and the undisputed fact that defendants acted as plaintiffs insurance agents, defendants’ argument that plaintiff failed to show that defendants’ owed plaintiff a duty lacks merit. Further, under such circumstances, it was reasonable that plaintiff relied upon the information that FHS, as a “specialist,” provided regarding health insurance plans. Fejedelem, supra at 503. Thus, it cannot be said that plaintiff failed to establish “justifiable reliance.” Further, it is plain that defendants did not exercise any reasonable care because defendants, through Kim, recommended to plaintiff what they represented to be first-dollar-coverage, full-coverage health insurance companies that were, in fact, self-funded benefit plans or nonexistent reinsurance coverage.
Because plaintiff pleaded these claims in the alternative and plaintiff produced more than sufficient proof of negligent misrepresentation, it is not necessary for us to consider defendants’ arguments with respect to innocent misrepresentation. The tried court properly denied defendants’ motions for a directed verdict and JNOV with respect to negligent and innocent misrepresentation.
2. FRAUD
Defendants next assert that plaintiffs actual fraud claim was not supported by sufficient evidence because plaintiff failed to establish by clear and convincing evidence that defendants made any false and material representations and that defendants acted in bad faith. Specifically, defendants point to evidence that they never spoke to anyone at Unibar and that there was no testimony that anyone other than CIC and Unibar participated in the last CIC/SPA contract or that defendants knew SPA would fail. We disagree.
To sufficiently allege a claim for fraud, a plaintiff must show that: “(1) the defendant made a material representation; (2) the representation was false; (3) when the defendant made the representation, the defendant knew that it was false, or made it recklessly, without knowledge of its truth as a positive assertion; (4) the defendant made the representation with the intention that the plaintiff would act upon it; (5) the plaintiff acted in reliance upon it; and (6) the plaintiff suffered damage.” M&D, Inc, supra at 27 (citation and quotation marks omitted).
Here, defendants’ agent, Kim, made multiple affirmative representations to plaintiff concerning the nature of the supposed health insurance companies that she presented to plaintiff. These representations were false, as Kim represented these companies as first-dollar, fall-coverage health insurance companies, when in fact they were not. Moreover, defendants knew that these representations were false at the time that they were made to plaintiff. Both defendants knew that SPA’s “reinsurance carrier [was not] on board,” that SPA was using the premiums it received to pay claims, and that UltraMed was not paying its claims before they were recommended to plaintiff. Even if defendants had not known that the representations were false, their actions would still be considered reckless— defendants’ representations of these fraudulent companies were made without determining whether these companies were licensed health insurance companies and, in some instances, without conducting a due diligence. Further, it is plain that defendants made these false and material representations with the intention that plaintiff act upon them— defendants knew the type of coverage plaintiff sought for its employees and it presented numerous plans in accordance with plaintiff’s needs. It is not surprising that plaintiff relied on defendants’ representations because defendants held themselves out as “specialists” in health care coverage. Lastly, the damages plaintiff suffered are evident: plaintiff paid for its employees’ claims out of pocket. Given this evidence, we cannot agree with defendants’ additional argument that the evidence in support of plaintiffs claims is nominal and that the verdict was against the great weight of the evidence.
Further, defendants’ argument that it was entitled to a directed verdict and, subsequently, JNOV because they never individually spoke to plaintiff lacks merit. Defendants’ agent, Kim, presented the plans to plaintiff in the course of her employment with defendants. Kim testified at trial that it was defendants who “brought” the health care plans into the office for their employees to sell. A principal will be held liable for the acts of its agents committed in the course of employment. Rogers v J B Hunt Transport, Inc, 466 Mich 645, 650-651; 649 NW2d 23 (2002). We also find unavailing defendants’ characterization of the evidence as showing that only CIC and plaintiff participated in the CIC/SPA contract and as failing to show that defendants knew SPA would fail. Plaintiff signed a reinsurance contract with CIC when Kim advised and directed plaintiff to sign the new contract. Whether defendants knew that SPA would fail is irrelevant — it is enough that defendants materially represented SPA as a first-dollar, full-coverage insurance carrier.
Finally, defendants argue that plaintiff failed to establish a claim for silent fraud. The jury did not return a verdict against defendants for silent fraud and no judgment was entered against defendants on a claim of silent fraud. Defendants cannot appeal a judgment that was never entered, because they are not considered an “aggrieved party” with respect to silent fraud. MCR 7.203(A). After our review of the record, it is plain that the trial court did not err by denying defendants’ motions for a directed verdict and JNOV with respect to plaintiffs fraud claim.
3. PROXIMATE CAUSE
Defendants also contend that plaintiff failed to establish proximate cause between defendants’ alleged negligence, misrepresentation, and fraud and plaintiff’s damages. In defendants’ view, plaintiff’s failure to deal directly with CIC caused Unibar’s damages. In light of the evidence discussed above, we cannot agree. Further, defendants’ argument essentially posits that plaintiff should have mitigated its damages by contacting CIC directly and that its failure to do so was the “sole” cause of its damages. Defendants’ position lacks logic. “[A] proximate cause is a foreseeable, natural, and probable cause of the plaintiffs injury and damages.” Kaiser v Allen, 480 Mich 31, 37-38; 746 NW2d 92 (2008) (citation and quotation marks omitted; alteration in original). A failure to mitigate may contribute to the harm a person suffers, but it is not the ultimate cause of the harm. Here, it was readily foreseeable that defendants’ sale of nonexistent insurance services to plaintiff would cause plaintiff harm. For all the above reasons, after viewing all the evidence and legitimate inference in the light most favorable to plaintiff, we conclude that the trial court did not err by denying defendants’ motions for a directed verdict and JNOV
III. MOTION FOR A NEW TRIAL
Defendants argue that the trial court erred by denying their motion for a new trial. Defendants raise five specific grounds upon which the motion should have been granted.
A. STANDARD OF REVIEW
“A trial court’s decision regarding a motion for a new trial is reviewed for an abuse of discretion. An abuse of discretion occurs when a court chooses an outcome that is not within the principled range of outcomes.” McManamon v Redford Charter Twp, 273 Mich App 131, 138; 730 NW2d 757 (2006) (citations omitted).
B. EVIDENCE
Defendants first contend that the cease and desist orders from Florida and Texas were irrelevant hearsay, based on mere allegations, and were unfairly prejudicial rather than probative. Defendants have waived this argument on appeal. Defendants stipulated the admission of all the exhibits presented at trial, including both the Florida and Texas cease and desist orders, and cannot now argue error on appeal. Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n, 264 Mich App 523, 527-528; 695 NW2d 508 (2004).
C. JUROR MISCONDUCT
Defendants next argue that they were prejudiced because the jury foreperson allegedly brought into deliberations documents not admitted into evidence that had an extraneous influence on the jury. Specifically, the foreperson provided two chart summaries showing all the participants in the case, including a description of their testimony, as well as a time line of events. According to defendants, this conduct materially affected their substantial rights because the jury cannot “defer to one person who prepared a summary of the testimony....” Defendants contend, without any supporting evidence, that the foreperson prepared these documents at home. We do not agree that the complained of conduct warrants a new trial.
Juror misconduct may require a new trial under certain circumstances, but does not require a new trial in every instance. People v Strand, 213 Mich App 100, 103; 539 NW2d 739 (1995). Jurors are to consider only the evidence presented to them in open court. People v Budzyn, 456 Mich 77, 88; 566 NW2d 229 (1997). In order to establish that extraneous facts not introduced into evidence influenced the jury and requires a new trial, a defendant must show (1) that the jury was an exposed to an extraneous influence and (2) that the influence “created a real and substantial possibility [it] they could have affected the jury’s verdict.” Id. at 89. With respect to the second element, a defendant must “demonstrate that the extraneous influence is substantially related to a material aspect of the case and that there is a direct connection between the extrinsic material and the adverse verdict.” Id.
Defendants have failed to make the requisite showing. First, the jurors in the case were specifically instructed that they could take notes during the proceedings. Defendants produced no supporting evidence that these documents were prepared at home or that they contained extraneous information not presented in open court. Thus, because these summaries were based on material presented at trial and the trial court permitted the jury to take notes, defendants have failed to show that the jury was exposed to an extraneous influence. Id. at 91. While it is not necessary for us to consider the second prong of the test, given our conclusion, we note that defendants have also failed to demonstrate prejudice. We fail to see how these chart summaries, based on evidence presented at trial, are related to a material aspect of the case in such a manner that they have a “direct connection between the extrinsic material and the adverse verdict.” Id. at 89.
D. INVALID VERDICT
Defendants also claim that a new trial is proper on the basis that the theories of liability submitted to the jury were invalid because the evidence did not support them. Further, in defendants’ view, the size of the verdict indicates that the jury decided the case on an improper basis. We disagree. Defendants’ argument is conditioned upon a finding that the theories of liability should not have been submitted to the jury. Because we have already concluded that the trial court did not err by denying defendants’ motion for a directed verdict and submitting the theories of liability to the jury, defendants’ argument that the resultant verdict was premised upon erroneous theories must also fail. We also reject defendants’ contention that given the verdict’s size the jury must have decided this matter on an improper basis. Defendants cite no authority in support of this proposition and, thus, we consider this argument abandoned. Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 220; 761 NW2d 293 (2008).
E. INSUFFICIENT PROOFS AND EXCULPATORY TESTIMONY
Defendants assert that they are entitled to a new trial on the same grounds that they are entitled to a directed verdict and JNOV Because we have already concluded that the trial court did not err by denying defendants’ motions for a directed verdict and JNO\£ it follows that these arguments do not warrant a new trial as an alternate form of relief.
For all the foregoing reasons, we conclude that the trial court did not abuse its discretion when it denied defendants’ motion for a new trial.
IV DAMAGES
Defendants argue that the trial court erred by denying their motion for remittitur. In defendants’ view, the award of exemplary damages was improper and the award of actual damages was not supported by sufficient proof.
A. STANDARD OF REVIEW
“An appellate court should reverse the trial court’s decision regarding a motion for... remittitur only if an abuse of discretion is shown.” Phillips v Deihm, 213 Mich App 389, 404; 541 NW2d 566 (1995). “The proper consideration in granting... remittitur is not whether the verdict ‘shocks the conscience’ but whether the jury award is supported by the evidence.” Wilson v Gen Motors Corp, 183 Mich App 21, 38; 454 NW2d 405 (1990). “[We] must defer to a trial court’s decision because of the trial court’s superior ability to view the evidence and evaluate the credibility of the witnesses.” Bordeaux v Celotex Corp, 203 Mich App 158, 171; 511 NW2d 899 (1993).
B. EXEMPLARY DAMAGES
Defendants argue that plaintiff is not entitled to exemplary damages. We disagree. The purpose of exemplary damages is to make the injured party whole. Hayes-Albion Corp v Kuberski, 421 Mich 170, 187; 364 NW2d 609 (1984). Exemplary damages are recoverable only for intangible injuries or injuries to feelings, which are not quantifiable in monetary terms. Ray v Detroit, 67 Mich App 702, 704-705; 242 NW2d 494 (1976); Ass’n Research & Dev Corp v CNA Financial Corp, 123 Mich App 162, 171-172; 333 NW2d 206 (1983). “[Wjhere the grievance created is purely pecuniary in its nature, and is susceptible of a full and definite money compensation,” exemplary damages are not permitted because the party may be made whole through monetary compensation. Durfee v Newkirk, 83 Mich 522, 526; 47 NW 351 (1890); Hayes-Albion Corp, supra at 187. “An award of exemplary damages is considered proper if it compensates a plaintiff for the ‘humiliation, sense of outrage, and indignity’ resulting from injuries ‘maliciously, wilfully and wantonly’ inflicted by the defendant.” Kewin v Massachusetts Mut Life Ins Co, 409 Mich 401, 419; 295 NW2d 50 (1980) (citation omitted). This Court has permitted an award of exemplary damages to a corporation where the corporation suffered a loss of reputation as a skillful and competent company. Joba Constr Co, Inc v Burns & Roe, Inc, 121 Mich App 615, 642-643; 329 NW2d 760 (1982); see also Jackson Printing Co, Inc v Mitan, 169 Mich App 334, 341-342; 425 NW2d 791 (1988) (acknowledging that a corporation’s status as a corporation, by itself, does not preclude an award of exemplary damages to the corporation); Hayes-Albion Corp, supra at 187-188 (denying award of exemplary damages to a corporation that sought damages for the lost time of an employee).
Given these legal rules, defendants’ assertion that plaintiff is not entitled to exemplary damages because plaintiff is a corporation is unavailing and is clearly wrong. However, defendants’ contention that the types of injuries that plaintiff suffered were quantifiable in monetary terms, and therefore plaintiff is not entitled to exemplary damages, presents a more difficult inquiry. While it is plain that exemplary damages may be awarded to a corporation, the question becomes: What type of injury to a corporation may be compensated? Because a corporation does not have “feelings,” the general definition of exemplary damages does not lend itself to delineating the types of injuries for which a corporation may be compensated with exemplary damages. However, the purpose of compensatory damages, which is to make the plaintiff whole, Hayes-Albion Corp, supra at 187, indicates that exemplary damages may be construed as appropriate for injuries to a corporation that cannot be measured or estimated in monetary terms. Clearly, a loss of reputation as a skillful company is unquantifiable and recoverable as exemplary damages, Joba Constr Co, supra at 642-643, as may be a loss of good will, or any damage to other types of company reputation amongst either employees or customers. While this does not provide courts with a clear-cut list of unquantifiable recoverable injuries, it can be said with certainty that future profits, as well as lost time of its employees, do not fit within this category. See Hayes-Albion Corp, supra 187-188. Further, in terms of producing sufficient evidence in support of exemplary damages, we note that “ [i]t is not essential to present direct evidence of an injury to the plaintiffs feelings. Rather, the question is whether the injury to feelings and mental suffering are natural and proximate in view of the nature of the defendant’s conduct.” McPeak v McPeak (On Remand), 233 Mich App 483, 490; 593 NW2d 180 (1999).
In the present matter, the injury to plaintiff flows from the nature of defendants’ actions. The evidence produced at trial shows that over a period of years, defendants willfully induced plaintiff to purchase, on multiple occasions, what was essentially a self-funded benefit plan represented as a first-dollar, full-coverage health insurance plan when defendants knew plaintiff sought full coverage insurance. Consequently, plaintiffs employees’ claims were denied, they were unable to see their health care providers or obtain prescriptions, and in some instances were sued by their health care providers. In addition, plaintiff fielded “hundreds” of complaints from its employees and “a lot” of its employees quit their jobs because of the lack of health benefits. Thus, although plaintiff has not produced any direct evidence showing that its internal reputation has been damaged, it is plain, given the number of complaints and employees who left their employment with plaintiff, that plaintiffs reputation amongst its employees suffered as the proximate result of defendants’ actions. See id. at 490. Such injuries are not compensable in quantitative terms and the award of exemplary damages was proper. See Joba Constr Co, supra at 642-643. Thus, defendants’ argument that plaintiff’s injuries could be quantified and that the award of exemplary damages was duplicative of the award of monetary damages lacks merit.
Given our conclusion, we must note that plaintiff never explicitly alleged that its internal reputation was injured. However, that is the exact inference to be drawn from all the evidence presented. In any case, to the extent that we have addressed issues not raised by the parties, we may do so if, in our view, the matter requires consideration and it is just to resolve the matter on that basis. Paschke v Retool Industries (On Rehearing), 198 Mich App 702, 705-706; 499 NW2d 453 (1993), rev’d on other grounds 445 Mich 502 (1994); MCR 7.216(A)(7); see also Tingley v Kortz, 262 Mich App 583, 588; 688 NW2d 291 (2004). This is such a case. We fail to see how defendants would be prejudiced in any way given that defendants stipulated the jury instructions on exemplary damages and did not object when the jury was presented with those instructions.
We also reject defendants’ argument that plaintiff failed to provide sufficient evidence of bad faith or ill will on defendants’ part because plaintiff failed to show defendants made a “voluntary act.” This argument is unavailing. Defendants provided plaintiff with promotional materials and documentation on various insurance plans through Kim, their agent. It is not necessary, where an agency relationship exists, to show a “voluntary act” of the principal because the principal will be held liable for the torts of its agent committed in the course of employment. Rogers, supra at 650-651.
We lastly reject defendants’ argument that they did not have reasonable notice that plaintiff sought exemplary damages because plaintiff failed to plead them. Defendants stipulated the jury instructions, which included an instruction for exemplary damages. Because defendants stipulated these instructions, they cannot now argue that plaintiffs failure to plead exemplary damages resulted in a lack of reasonable notice. We consider this argument waived. Glen Lake-Crystal River Watershed Riparians, supra at 527-528. The trial court did not abuse its discretion by denying defendants’ motion for remittitur with respect to exemplary damages.
C. PECUNIARY DAMAGES
Defendants argue that plaintiff failed to produce supporting documentation for its claim for pecuniary damages. We disagree. “A party asserting a claim has the burden of proving its damages with reasonable certainty. Although damages based on speculation or conjecture are not recoverable, damages are not speculative merely because they cannot be ascertained with mathematical precision.” Ensink v Mecosta Co Gen Hosp, 262 Mich App 518, 525; 687 NW2d 143 (2004) (citations and quotation marks omitted). It is sufficient if a plaintiff presents a reasonable basis for computation. Berrios v Miles, Inc, 226 Mich App 470, 478; 574 NW2d 677 (1997). Further, the certainty necessary to establishing the amount of damages is less once the fact of damages is established. Hofmann v Auto Club Ins Ass’n, 211 Mich App 55, 108; 535 NW2d 529 (1995).
In the present matter, defendants stipulated all the exhibits at trial, including an exhibit quantifying plaintiffs damages. Plaintiffs damages were reiterated through the testimony of plaintiffs vice president and defendants never objected to any of this testimony. Thus, defendants have waived any argument regarding whether the fact of damages has been established. Glen Lake-Crystal River Watershed Riparians, supra at 527-528.
Turning to defendants’ argument that the evidence presented was not competent and sufficient, it is our view that the evidence presented adequately supported the jury’s award of pecuniary damages. The arguments defendants posit on appeal are in regard to the credibility and believability of this evidence. Such matters are best left to the jury. People v Milstead, 250 Mich App 391, 404; 648 NW2d 648 (2002).
Further, because we have not found it appropriate to reduce the amount of pecuniary damages, we reject defendants’ argument that the amount of exemplary damages and the associated legal, administrative, and accounting expenses should be reduced to be commensurate with the pecuniary damages. The trial court did not abuse its discretion by denying defendants’ motion for remittitur.
Affirmed.
One of plaintiffs employees testified that Kim made an in-person presentation along with Benefits regarding the UltraMed plan. Kim, however, does not recall if she actually met with plaintiff in person to discuss the UltraMed plan.
The other originally named defendants did not go to trial and are not involved in the appeal, because they were either dismissed, settled with plaintiff, or were not served.
We consider defendants’ contention that the trial court erred by denying summary disposition to be abandoned on appeal. Defendants mention the trial court’s denial of summary disposition only in passing. Such cursory treatment does not create a sufficient basis for review. Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich App 241, 251-252; 673 NW2d 805 (2003). Accordingly, we review defendants’ arguments as an appeal from the trial court’s denial of their motions for a directed verdict and JNOV
While somewhat poorly argued during closing argument, plaintiffs counsel nonetheless properly presented plaintiffs request for exemplary damages by referring to the internal “turmoil” that defendants’ conduct had caused. | [
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Talbot, P.J.
In these consolidated and expedited appeals, defendant Kenneth V. Cockrel, Jr., in his capacity as mayor of the city of Detroit, and intervening defendant Detroit Building Authority appeal by right the declaratory judgment in plaintiff’s favor entered by the circuit court. Flaintiff Detroit City Council sought a declaration that the Regional Convention Facility Authority Act, MCL 141.1351 et seq., did not authorize a mayoral veto of its resolution disapproving the transfer of the Cobo Convention Center to the Detroit Regional Convention Facility Authority. The circuit court ruled that the mayoral veto was null and void under the plain language of the act. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Cobo Convention Center (Cobo), near the center of downtown Detroit, was built more than half a century ago. In 1985, the Legislature enacted Public Act 106, the State Convention Facility Development Act, MCL 207.621 et seq., which levied a tri-county hotel tax and liquor tax to generate revenue. The development act provided a funding source for a multitude of purposes, including the improvement of convention facilities owned by local governments. The tax was used for security on bonds to pay for a $180 million Cobo renovation, which was completed in 1989. Under 1985 PA 106, the outstanding bonds are to be fully retired in 2015; the hotel and liquor tax distributions will also terminate at that time. MCL 207.629; MCL 207.630.
In light of that sunset date and the current condition and size of Cobo, state and tri-county officials began negotiations for legislation to improve the state’s convention centers. In December 2008, the Michigan Legislature enacted Senate Bill 1630. Governor Jennifer Granholm approved the bill in January 2009. The Regional Convention Facility Authority Act, 2008 PA 554, became effective on January 20, 2009. The act provides for the creation of regional convention facility authorities to oversee regional convention centers, including Cobo. To qualify for improvement under the act, convention facilities are required to be publicly owned, have at least 600,000 square feet, and be located within a qualified city, which is defined as a city with a population exceeding 700,000. MCL 141.1355(i) and (k). As written, the act currently applies only to Cobo,* ** although it may be applied in the future to any qualifying convention facility in a qualifying metropolitan area in Michigan.
In enacting 2008 PA 554, the Legislature recognized that promoting tourism and convention business in Michigan is in the best interests of both the state and local governments. The Legislature found that improving existing regional convention facilities would aid in that endeavor. The Legislature noted that a regional convention facility authority would serve a public purpose. MCL 141.1353. Such an authority could be established in any area that meets the definition of a “qualified metropolitan area.” The act created the Detroit Regional Convention Facility Authority (the Authority) as of January 20, 2009, the effective date of the act.
The act specifies that the transfer of control over a qualified convention center would occur 90 days after an authority’s creation, or in this case on April 20, 2009. MCL 141.1355(m). The transfer would only occur, however, “if the transfer is not disapproved as provided under [MCL 141.1369(1)].” Id. MCL 141.1369(1) provides, in pertinent part:
Within 45 days of the effective date of this act. . . and prior to a transfer date, the legislative body of the qualified city in which a qualified convention facility is located may disapprove the transfer of the qualified convention facility to the authority by adopting a resolution disapproving the transfer. If the transfer is not disapproved, the qualified convention facility is transferred to the authority on the ninetieth day after the effective date of this act or the date on which a convention facility becomes a qualified convention facility. [Emphasis added.]
The act defines a “legislative body” as “the elected body of a local government possessing the legislative power of the local government.” MCL 141.1355(f). In this case, the legislative body at issue is plaintiff Detroit City Council, which had a deadline of March 6, 2009, to disapprove the transfer of Cobo to the Authority. The transfer to the Authority would occur by operation of law on the ninetieth day after the effective date of the act, April 20, 2009, unless the transfer was disapproved.
On February 24, 2009, the city council passed a resolution to disapprove the transfer. On March 4, 2009, the mayor vetoed the resolution. The city council did not override the veto.
The city council filed a complaint for injunctive and declaratory relief. The city council maintained that it had the exclusive power to disapprove the transfer, arguing that the act’s grant of exclusive power to it superseded the executive veto power provided to the mayor under the Detroit City Charter. Additionally, the city council stated that subjecting the disapproval resolution to mayoral veto would nullify the Legislature’s intent to grant the power to disapprove exclusively to the city council.
The mayor answered that the Legislature did not intend to preclude the exercise of the mayoral veto power because it did not expressly do so. The mayor also relied on MCL 141.1359 of the act, where the Legislature expressly precluded the local legislative body from interfering with the local chief executive officer’s power to appoint a board member to the Authority, to support his argument that the Legislature did not intend to preclude his exercise of a veto. The mayor argued that the legislative intent to allow a mayoral veto accords with the city’s powers under the Home Rule City Act, MCL 117.1 et seq.
The circuit court granted the motion to intervene filed by the Detroit Building Authority, which owns substantial portions of Cobo. The Detroit Building Authority argued in part that the city council’s disapproval resolution never became effective because of the mayor’s veto and the city council’s failure to override the veto.
After failed attempts to facilitate settlement between the parties, the circuit court issued a declaratory judgment that the mayor’s veto was null and void. The circuit court ruled that, under the plain language of the act, if the city council rejects hy resolution the transfer of authority, then the transfer does not occur. The circuit court relied on the doctrine of expressio unius est exclusio alterius, or inclusion by specific mention excludes what is not mentioned. The court noted that the act mentioned certain powers of the local chief executive, but did not mention the veto power. The court concluded:
Thus, applying this maxim to the Act leads to the conclusion that the Legislature did not mean to provide the chief executive officer with the veto power over disapproval resolutions since, while the Act delineates several duties or powers of the chief executive officer, none of these include the power to veto a disapproval resolution, and the Act expressly confers on the legislative body alone the power to disapprove the transfer.
II. THE PARTIES’ ARGUMENTS
In Docket No. 291394, the mayor argues on appeal that the circuit court erred in construing the Legislature’s silence as negating the existence of the mayoral veto power. The Legislature clearly stated that existing local government powers should be undisturbed and thus did not intend to disrupt the balance of existing legislative/executive branch powers. The circuit court should have liberally construed the act with a view toward harmonizing its provisions.
In Docket No. 291399, the Detroit Building Authority (DBA) contends that where the statute has no express provision to counter the mayoral veto power, the Legislature intended to preserve that power. The DBA argues that when the Legislature wanted to exclude a process of local government in the act it did so explicitly. Therefore, the DBA asserts that the resolution was nullified by the mayoral veto, which was never overridden, and further argues that the act reflects the public policy of the state to promote tourism to the benefit of the state’s residents.
The city council has filed a single response in both cases, asserting that the plain language of the act grants the city council exclusive power to disapprove the transfer. The act preempts local law, including the mayor’s veto power.
III. ANALYSIS
Whether the act grants a local chief executive officer the power to veto the disapproval by a legislative body is a question of law. This Court reviews statutory interpretation issues, which are questions of law, under a de novo standard. New Properties Inc v George D Newpower, Jr, Inc, 282 Mich App 120, 138; 762 NW2d 178 (2009). Further, we review de novo questions of law arising from a declaratory judgment action. Guardian Environmental Services Inc v Bureau of Constr Codes & Fire Safety, 279 Mich App 1, 5-6; 755 NW2d 556 (2008).
In interpreting statutes, courts give effect to the intent of the Legislature by reviewing the plain language of the statute itself. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). When reviewing a statute, this Court considers the statutory language to determine if an ambiguity exists. Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 538; 565 NW2d 828 (1997). Where statutory language is ambiguous, judicial construction is permitted. Deschaine v St Germain, 256 Mich App 665, 669; 671 NW2d 79 (2003). Judicial construction is neither necessary nor permitted, however, where the statutory language is clear and unambiguous. Detroit Int’l Bridge Co v Commodities Export Co, 279 Mich App 662, 667; 760 NW2d 565 (2008). “ ‘In statutory interpretation, the primary goal must be to ascertain and give effect to the Legislature’s intent, and the judiciary should presume that the Legislature intended a statute to have the meaning that it clearly expresses.’ ” McClellan v Collar (On Remand), 240 Mich App 403, 409; 613 NW2d 729 (2000) (citation omitted).
The question before this Court involves the act’s delineation of power to the legislative body (the city council) and to the local chief executive officer (the mayor). MCL 141.1369(1) specifies the single power of the legislative body — it may disapprove the transfer:
Within 45 days of the effective date of this act... and prior to a transfer date, the legislative body of the qualified city in which a qualified convention facility is located may disapprove the transfer of the qualified convention facility to the authority by adopting a resolution disapproving the transfer. If the transfer is not disapproved, the qualified convention facility is transferred to the authority on the ninetieth day after the effective date of this act or the date on which a convention facility becomes a qualified convention facility. [Emphasis added.]
In contrast, the act delineates several powers for the local chief executive officer. By way of example, the local chief executive officer of the city may appoint an individual to the five-member board of directors of the Authority. MCL 141.1359(l)(b). The local chief executive officer of a local government (which includes the city) is empowered to execute the relevant instruments and documents to accomplish the transfer of the qualified convention facility from the local government to the Authority. MCL 141.1369(3). Further, the local chief executive officer is required to take reasonable steps to terminate certain agreements between the government and others relating to the qualified convention facility. MCL 141.1369(12). Notably absent from this list of delineated powers is the authority to veto the legislative body’s disapproval of the transfer.
Defendants ask this Court to interpret the Legislature’s silence as bestowing a mayoral veto power that is not described in the statute. Should we adopt defendants’ arguments and recognize a mayoral veto power over the city council’s resolution, we would be nullifying MCL 141.1369(1), the only provision of the act that confers power on the city council. It is a well-established rule of statutory construction “that courts should avoid any construction that would render statutory language nugatory.” Flint City Council v Michigan, 253 Mich App 378, 394; 655 NW2d 604 (2002). We therefore do not construe the statute in a manner that would render MCL 141.1369(1) a nullity.
We read the plain language of MCL 141.1369 to mean that the transfer is exclusively conditioned on the actions of the city council. If the city council does not disapprove the transfer, then the transfer will occur. Under the clear terms of the act, if a majority of the city council affirmatively votes to disapprove the transfer, then the transfer does not occur. Hence, once the majority of the city council voted to disapprove the transfer, the transfer could not be effectuated. Because the city council’s vote was dispositive, the mayoral veto was, in essence, irrelevant. We therefore must reject defendants’ argument that the mayoral veto invalidated the city council’s resolution.
As quoted earlier, MCL 141.1369(1) provides that the appropriate “legislative body,” in this case the city council, may disapprove the transfer. MCL 141.1369, the only section of the act involving disapproval, expressly provides only one entity, the legislative body, with the power to disapprove the transfer. The sole statutory section relating to disapproving the transfer refers to the legislative body alone; it does not refer to the local chief executive officer. The Legislature presumably was aware that mayors often have general veto powers under their respective city charters or other local laws. Had the Legislature intended to give the local chief executive officer the power to veto the disapproval of the legislative body, it would have expressly done so. Similarly, had the Legislature intended for a mayoral veto, it would not have granted disapproval power solely to the city council.
Although defendants argue that, under this reasoning, the Legislature would have had to specify each and every power that the local chief executive officer could exercise related to the act, we disagree. The significance of the power to disapprove the transfer cannot be overstated: where disapproved, the transfer is null and does not occur. Given the importance of this power, we cannot assume that the Legislature overlooked the role of the local chief executive officer. The omission of a reference to a mayoral veto clearly indicates that the Legislature did not intend to provide for such a veto.
Defendants argue that no question exists that the Detroit City Charter grants the mayor the right and power to veto the city council’s resolution. The Detroit City Charter provides in § 4-119 (Veto):
Every ordinance or resolution of the city council, except quasi-judicial acts of the city council including any under section 9-302, appointments by the city council or action taken under section 2-107(2-3), 4-102, 4-105, 4-108, 4-109, 4-120, 7-1006,12-110 of this Charter, shall be presented by the city clerk to the mayor within four (4) business days after adjournment of the meeting at which the ordinance or resolution is adopted.
Defendants argue that the mayor has the power to veto the resolution of the city council pursuant to this section of the charter.
However, the charter also provides for a limitation of powers:
The city has the comprehensive home rule power conferred upon it by the Michigan Constitution, subject only to the limitations on the exercise of that power contained in the Constitution or this Charter or imposed by statute. The city also has all other powers which a city may possess under the Constitution and laws of this state. [Detroit Charter, § 1-102 (emphasis added).]
The charter itself thus recognizes that it is subject to limitations imposed by statute.
Further, the city of Detroit is organized and operates under the Home Rule City Act. See Detroit Charter, § 1-101. The Michigan Constitution provides certain powers to home rule cities:
Under general laws the electors of each city and village shall have the power and authority to frame, adopt and amend its charter, and to amend an existing charter of the city or village heretofore granted or enacted hy the legislature for the government of the city or village. Each such city and village shall have power to adopt resolutions and ordinances relating to its municipal concerns, property and government, subject to the constitution and law. No enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section. [Const 1963, art 7, § 22.]
Our Supreme Court has stated that this provision “specifically provides that ordinances are subject to the laws of this state, i.e., statutes.” AFSCME v Detroit, 468 Mich 388, 410; 662 NW2d 695 (2003). Similarly, under the Home Rule City Act, the laws and ordinances relating to a home rule city’s municipal concerns are subject to the general laws of Michigan. See MCL 117.4j(3) (providing that a home rule city’s ordinances are “subject to the constitution and general laws of this state”). In other words, where a city charter conflicts with a state statute, the statute controls in matters that are not solely a local concern. Bd of Trustees of the Policemen & Firemen Retirement Sys of Detroit v Detroit, 143 Mich App 651, 655; 373 NW2d 173 (1985).
Likewise, the principle of preemption demonstrates that ordinances may not conflict with statutes:
“A municipality may not enact an ordinance if (1) the ordinance directly conflicts with the state statutory scheme, or (2) the state statutory scheme preempts the ordinance by occupying the field of regulation that the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation. Preemption may be established (1) where state law is expressly preemptive; (2) by examination of the legislative history; (3) by the pervasiveness of the state regulatory scheme, although this factor alone is not generally sufficient to infer preemption; or (4) where the nature of the subject matter regulated demands exclusive state regulation to achieve the uniformity necessary to serve the state’s purpose or interest.” [Fraser Twp v Linwood-Bay Sportsman’s Club, 270 Mich App 289, 293-294; 715 NW2d 89 (2006) (citation omitted).]
Consequently, to the extent that the charter conflicts with the statute, the statute must prevail.
Indeed, the Regional Convention Facility Authority Act itself specifically preempts any charter provision contrary to the statute. MCL 141.1379(2) provides:
The powers conferred in this act upon any authority or local government shall be in addition to any other powers the authority or local government possesses by charter or statute. The provisions of this act apply notwithstanding any resolution, ordinance, or charter provision to the contrary. [Emphasis added.]
Thus, while the first sentence of MCL 141.1379(2) does not restrict the powers conferred on the local government, the second sentence indicates that its provisions “apply notwithstanding any resolution, ordinance, or charter provision,” which would include the Detroit City Charter. The act thereby prevails over the charter pursuant to its own terms. We also are not convinced, as argued by defendants, that the first sentence of MCL 141.1379(2) preserves any power for the mayor. It is limited to “any authority or local government.” The act specifically defined each of those entities, neither of which definitively includes the mayor; the mayor instead falls under the definition of “local chief executive officer.” Because the first sentence of MCL 141.1379(2) is silent with respect to preserving any mayoral powers, defendants’ argument on this point fails.
It follows that, if the charter provision conflicts with or contravenes the act, then the charter is subject to the act. The charter provision regarding the veto conflicts with the act, which provides that only the city council has the authority to disapprove the transfer and provides no authority to the mayor to veto the disapproval resolution. The charter cannot override the act — by its own terms, the charter is subject to “limitations on the exercise of... power... imposed by statute.” Detroit Charter, § 1-102. Additionally, in the event of a conflict, the act, as a statute more specific to the transfer of authority, prevails over the Home Rule City Act, a general statute. “ ‘[I]t is a settled rule of statutory construction that where a statute contains a specific statutoiy provision and a related, but more general, provision, the specific one controls.’ ” Odom v Wayne Co, 482 Mich 459, 471; 760 NW2d 217 (2008) (citation omitted).
Defendants argue that the circuit court’s application of the doctrine of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another) was in error. The doctrine of expressio unius est exclusio alterius “does not subsume the plain language of the statute when determining the intent of the Legislature.” Tuggle v Dep’t of State Police, 269 Mich App 657, 664; 712 NW2d 750 (2006). It has been described as “a rule of construction that is a product of logic and common sense.” Hoerstman Gen Contracting Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006). The doctrine characterizes the general practice that “ ‘when people say one thing they do not mean something else.’ ” Feld v Robert & Charles Beauty Salon, 435 Mich 352, 362; 459 NW2d 279 (1990) (opinion by Riley, C.J.), quoting 2A Sands, Sutherland Statutory Construction (4th ed), § 47.24, p 203. The act expressly gives the city council authority to disapprove the transfer. Nowhere in the statute is there a similar provision that grants the mayor comparable authority. In other words, under the doctrine of expressio unius est exclusio alterius, the Legislature’s expression of the city council’s disapproval power operates to exclude a mayoral veto power of that disapproval.
In support of their position, defendants rely on MCL 141.1359(4), which provides an example where the Legislature expressly discussed the interplay between the mayor and the city council:
Each officer [which includes a local chief executive officer] appointing a board member under this section shall file the appointment with the secretary of state and the county clerk of each county in the qualified metropolitan area. Notwithstanding any law or local charter provision to the contrary, appointments by an officer are not subject to approval or rejection by a legislative body. [Emphasis added.]
The Legislature thus explicitly directed that the city council did not have the authority to approve or reject the mayor’s selection for appointment. Defendants argue that, had the Legislature wished to curb the may- or’s power, it would have done so in a similar passage in MCL 141.1369. Where the Legislature did not do so, defendants reason, the mayor’s veto power stands. While it is true that statutory provisions are to be read in total to produce a “harmonious whole,” Hill v L F Transportation, Inc, 277 Mich App 500, 507; 746 NW2d 118 (2008) (citation omitted), to adopt defendants’ reading would serve to negate MCL 141.1369(1).
We also cite as persuasive the dissent in Raven, Inc v City of Southfield, 69 Mich App 696; 245 NW2d 370 (1976), rev’d for the reasons stated in the dissent 399 Mich 853 (1977). The plaintiff in Raven sought a declaration that the mayor of Southfield did not have the authority to veto the city council’s approval of a class C liquor license. The statute governing liquor licenses provided at that time that approval was to be by “the local legislative body in which said applicant’s place of business is located before being granted by the commission . . . .” MCL 436.17. The circuit court construed the statute as rendering invalid the mayor’s veto. A majority of this Court reversed, with Judge DANHOF dissenting. Raven, 69 Mich App at 702. The Michigan Supreme Court reversed for the reasons provided in the dissent. Raven, Inc v City of Southfield, 399 Mich 853 (1977). Judge DANHOF opined in that dissent that the statutory language was clear and unambiguous and thus not subject to construction, observing that ‘‘[n]othing could be plainer than the term ‘legislative body,’ as employed in this context.” Raven, 69 Mich App at 703. Judge DANHOF observed that, although the Legislature could have used the terms “local unit of government” or “local legislative body and executive,” the Legislature did not do so. Id. at 703-704. He reasoned that the term “legislative body” has only one plain meaning, to which the Court was bound to adhere. Id. at 704.
We find that reasoning to be sound. In this instance, not only does the statute employ the plain and unambiguous term “legislative body,” it also clearly defines that term as the “elected body of a local government possessing the legislative power of the local government.” MCL 141.1355(f). It is undisputed that the city council is the relevant legislative body in this case. The statute specifically confers on the legislative body the authority to disapprove the transfer. It does not confer the power to disapprove to both the legislative body and the executive. In accordance with the dissent in Raven, this Court is bound by the plain statutory language.
Likewise, in Livonia Hotel, LLC v City of Livonia, 259 Mich App 116; 673 NW2d 763 (2003), the mayor of Livonia vetoed the city council’s approval of a waiver use petition brought by the plaintiff. The plaintiff sought a declaratory judgment regarding the veto; the circuit court ruled that the veto was valid as the council’s attempt to override it was one vote short. This Court observed that the Livonia Charter granted broad veto power to the mayor, while the Livonia Zoning Ordinance was silent regarding the role of the mayor in the approval process. Id. at 132-135. Further, the zoning ordinance provided that the planning commission must first review an application for waiver use, then make a recommendation to the city council for the ultimate decision. Id. at 135.
This Court ruled that two sections of the Livonia Zoning Ordinance, when read together, demonstrated that the city council was the ultimate decision maker regarding waiver uses. Admittedly, the charter granted broad veto power to the mayor, but the zoning ordinance did not expressly provide for a mayoral veto. This Court decided that the trial court had erred in concluding that the mayor had veto power where the city council did not provide for a mayoral veto when enacting the pertinent ordinances. Id. at 136-137.
This Court went on to note the legislation’s “complete silence” regarding the mayoral veto:
The complete silence of the [Livonia Zoning Ordinance] regarding mayoral veto power of the waiver use decision of the Livonia City Council requires a judicial adherence to the state statute on the matter before this Court. The city officials in Livonia may wish to specifically provide for mayoral veto power in the future. But, the stark omission of such power is in sharp contrast with the specificity required by MCL 125.584a(l)(a) and (c)[ ] with which the Livonia City Council adhered consistently. [Id. at 137.]
In comparison, the Regional Convention Facility Authority Act plainly provides that the legislative body makes the ultimate decision regarding disapproval of the transfer. The act does not explicitly provide for a mayoral veto with regard to the disapproval, despite the fact that the Detroit City Charter affords broad veto power to the mayor. Where the Legislature did not provide for a mayoral veto in the act, the circuit court here correctly concluded that the mayor did not have the authority to veto the city council’s disapproval.
We do not find persuasive the cases relied on by defendants: Harbor Telegraph 2103, LLC v Oakland Co Bd of Comm’rs, 253 Mich App 40; 654 NW2d 633 (2002), and Oakland Co Comm’r v Oakland Co Executive, 98 Mich App 639; 296 NW2d 621 (1980). Harbor involved the Oakland County Executive’s veto of the board of commissioners’ resolution to schedule a detachment election. This Court reversed the circuit court’s determination that the veto was invalid, ruling that the Legislature had explicitly restricted the county executive’s veto power to four limited instances. Those restrictions clearly reflected a legislative intent that the county executive otherwise had broad authority to veto the commissioners’ resolutions. Harbor, 253 Mich App at 54-55. In contrast, the legislative intent here is reflected in the grant to the city council of the sole authority to disapprove the resolution. No statutorily authorized veto power exists: unlike the Harbor county executive’s veto power, which was granted by statute, here the mayoral veto power exists by city charter. When the state statute otherwise is silent regarding the mayoral veto power, we cannot recognize a power that the Legislature clearly did not provide.
The Court in Oakland Co Comm’r was not faced with a conflict between a statutory enactment and veto powers bestowed by a city charter. Indeed, the Court found no conflict whatsoever between the competing provisions. As described at length earlier, a conflict exists here. Moreover, the concurring judge in that case noted that the contested veto power was the result of the Legislature’s “explicit consideration,” Oakland Co Comm’r, 98 Mich App at 656 (Danhof, C.J., concurring), which is not the situation before this Court.
Our decision that the mayor did not have the statutory authority to veto the city council’s disapproval makes unnecessary further analysis of the public policy issues raised by defendants. We merely note that the question posed in this case is not whether the transfer “should,” as a matter of public policy, occur on April 20, 2009; rather, the sole question before the Court is whether the act permits a mayoral veto given the plain language of the statute. Despite the stated policy aims of the statute, we cannot rule on policy grounds in contravention of the plain language of the statute. To the extent that the issues presented relate to public policy matters, the making of social policy generally is for the Legislature, not the courts. Van v Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1999).
IV CONCLUSION
We conclude that the circuit court did not err in deciding that the act does not provide for a mayoral veto of the city council’s resolution to disapprove the transfer. We are constrained to abide by the plain terms of the act and thus cannot provide the broad reading of the statute proffered by defendants. We decline defendants’ invitation to read into the statute a power that is not expressly stated.
Affirmed.
See Detroit Edison Co v Detroit, 180 Mich App 145, 151; 446 NW2d 615 (1989), overruled on other grounds by City of Taylor v Detroit Edison Co, 475 Mich 109 (2006).
Such authorities “shall possess the powers, duties, and jurisdictions vested in the authority under this act and other laws.” MCL 141.1357(1).
The act defines a “convention facility” as
all or any part of, or any combination of, a convention hall, auditorium, arena, meeting rooms, exhibition area, and related adjacent public areas that are generally available to the public for lease on a short-term basis for holding conventions, meetings, exhibits, and similar events, together with real or personal property, and easements above, on, or under the surface of real or personal property, used or intended to be used for holding conventions, meetings, exhibits, and similar events, together with appurtenant property, including covered walkways, parking lots, or structures, necessary and convenient for use in connection with the convention facility. Convention facility includes an adjacent arena with a seating capacity not exceeding 10,000. Convention facility does not include an adjacent arena with a seating capacity exceeding 10,000. [MCL 141.1355(c).]
The qualified convention facility consists of Cobo Hall, Cobo Convention Center and certain nearby parking garages.
The statute defines a “qualified metropolitan area” as “a geographic area of this state that includes a qualified city, a qualified county, and the 2 counties bordering the qualified county with the largest populations according to the most recent decennial census.” MCL 141.1355(Z). It is undisputed that the city of Detroit is the qualified city in the qualified county of Wayne and the two bordering counties are Macomb and Oakland counties.
The validity of the creation of the Authority is conclusively presumed because an original action was not filed with this Court within 60 days of January 20, 2009. MCL 141.1357(6).
Under § 4-119 of the Detroit City Charter, the city council may reconsider a resolution vetoed by the mayor only at a regular meeting within one week of the mayor’s veto. A two-thirds majority vote is required for an override.
Pursuant to discussions in chambers with the circuit judge, the parties agreed to argue only the request for a declaratory ruling.
The act defines a “local chief executive officer” as including the mayor of a city. MCL 141.1355(g).
We also note that the mayoral veto power is not the only charter provision preempted by the act. The act also preempts § 4-112 of the Detroit City Charter, which provides: “Except as otherwise provided by this Charter, the city may not sell or in any way dispose of any property without approval by resolution of the city council.” MCL 141.1369(10)(a) of the act preempts the city council’s powers regarding the sale or disposal of property: “A local government.. . shall... [r]efrain from any action to sell, transfer, or otherwise dispose of a qualified convention facility ... without the consent of the authority.”
That statute was repealed by 1998 PA 58. See MCL 436.2301(a).
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Btjtzel, J.
Appellant Fred R. Clark was found guilty of conspiracy to obstruct justice. The pleadings and such facts, as far as applicable to appellant Clark, are set forth in the opinions in the companion cases of People v. Heidt, ante, 629, and People v. Bartlett, ante, 648. The three appeals were all submitted on one record. Separate appeals were taken and briefs filed and cases argued by the attorneys representing the respective appellants. . We refer to the opinions in the two companion cases for the discussion and decision of such claims of error as are also presented in the brief filed by appellant Clark. We find it unnecessary to reiterate what was said both as to the facts and the law in these two opinions as far as they govern the same questions that are raised in the instant appeal. In order to avoid duplication, we shall limit ourselyes solely to discussion of the questions of law and the few additional facts we believe are pertinent to the appeal of appellant Clark that have not been discussed and decided in the opinions in People v. Heidt and People v. Bartlett.
Appellant claims error because of the refusal of the trial judge to charge that unless the jury was satisfied beyond a reasonable doubt and to a moral certainty that defendant Fred E. Clark had an official duty to enforce the law against handbooks, the jury must find him not guilty. Gambling and other forms of commercial vice had become rampant in the city of Detroit. This was especially true in regard to handbooks. The second count of the information and the one relied upon in the instant case charges all of the defendants of being guilty of conspiracy to obstruct justice by permitting operators of handbooks to do business on a large scale in the city of Detroit and the county of Wayne. The business emanated from a copartnership known as the Consolidated News Service, which gathered the betting odds and other news in regard to horse racing from various large tracks throughout the country and telephoned them to the operators of the many handbooks that were being conducted throughout the city of Detroit and the county of Wayne. The Consolidated News Service leased a special wire from .the telephone company and used it to broadcast the information in regard to races and betting to the various handbooks. During the period from January 2, 1935, to August 1, 1940, this telephone service was installed by the telephone company for the Consolidated News Service at 458 addresses in Detroit and the surrounding territory. The addresses, however, changed from time to time as some handbooks were either closed or moved from one place to another. One collector for the Consolidated News Service collected from 140 handbooks; another one was collecting from the east side of Detroit. The operating of these handbooks was due largely to the failure of the police to suppress them. This was brought about by bribing public officials and members of the police force, including some of the men higher up in the department. The operators of the handbooks paid bribe money to collectors for distribution to police officers. Some of it was distributed by Raymond "W. Boettcher, an inspector of police. Appellant Clark had risen from the ranks, became an inspector and finally chief inspector on January 1, 1938. Boettcher testified that he paid Clark $600 a month from the time Clark became chief inspector on January 1, 1938, until August, 1939, at Clark’s office on the third floor of police headquarters. This was not directly denied by Clark or anyone else.
There was introduced into evidence the Detroit-Police Manual and the general orders set forth by the superintendent and commissioner' of police. With reference to the duties of the chief inspector, a general order stated: . ■
“He is charged with the proper, and efficient enforcement of all laws, ordinances and regulations in precincts and divisions and will, insofar as conditions permit, assure a uniformity of enforcement procedure as will maintain efficiency and coordination of activity.”
It also provided that:
“The delegation of the enforcement of certain laws and ordinances to particular divisions of the department does not relieve members of their divisions from taking proper police action in connection with violations of such laws or ordinances observed by therít or coming to their notice. ’ ’
Another general order sets forth the duties of the assistant deputy superintendent as follows:
“He will give special attention to gambling and vice conditions and to duties pertaining to the enforcement of the liquor laws, and will be charged with the responsibility of police activity relating thereto.”
There was testimony that complaints were made from time to time in regard to handbooks and they were sent to Heidt, assistant deputy superintendent. Some of them also reached the attention of the superintendent, Fred W. Frahm, named in the original indictment as a coconspirator. There was also testimony to show that Frahm discouraged police raids on the handbooks. When possible the former vigorous efforts for suppression and prosecution were to a large degree abandoned. The handbooks continued to flourish. Some of them were downtown not far from the central police headquarters in the city of Detroit. There is no testimony, however, to show that appellant Clark at any time was directed not to do his duty which was prescribed by the police manual and the general orders, even though many complaints were directed for attention to the assistant superintendent of police. The orders in regard to the chief inspector’s duties were never revoked, but remained in full force and effect.
'Appellant Clark did not take the witness stand, nor was he obliged to. Instead of giving the instruction asked for by appellant’s counsel, the judge charged as follows:
“During the time that these payments were being made to these various police and public officials it is the claim of the people that assistant deputy superintendent William Heidt was specifically charged with the duty of giving special attention to gambling and vice conditions and was charged with the responsibility of police activities relating thereto; that Fred Clark was charged, with the duty of enforcing all laws in the city of Detroit and had charge of the district inspectors and preeinct inspectors; that the various precinct inspectors who are named as defendants, were responsible for preservation of the public peace and the enforcement of all laws and ordinances within their preeincts, and all police officials and policemen, regardless of rank, who are defendants herein, were charged with the duty of enforcing the law, pertaining to gambling. # # *
“I charge you and call to your attention particularly the rank and position held by each of such defendants during the alleged period of the conspiracy. The authority and responsibility of each, according to their respective positions and ranks in the department, have already been called to your attention, both through the evidence and the law previously explained to you. From these sources, members of the jury, you have been advised concerning the authority of these defendants to enforce the law. I charge you further 'that with the authority thus given to these defendants, there also arose responsibility, and with such authority and responsibility there further followed an official duty to enforce the law. The scope of this duty is measured by the scope of their authority. * * *
“I have also read to you from the Detroit police manual, sections thereof which were received in evidence, wherein specific duties of the police officer defendants are explained and defined with particular reference to the position and rank of such defendants in the police department during the'period covered by the' information, namely, between January 2, 1935, and August 1, 1940. These principles of law and rules of the police department have been given and explained to you in order that you may have a clear and better understanding of the law and rules which relate to the duty of such police officer defendants in this case. * * #
“It is the duty of a police officer to respect and enforce such existing laws against gambling according to the law and the rules of the police department as prescribed thereto, with the same honesty, diligence and vigor that he is called upon to enforce other laws.”
There was no error in refusing to give the charge asked for by appellant Clark’s attorney and giving the charge hereinbefore quoted. Further, since there is no dispute in the testimony which unquestionably shows that in part the official duty of Clark was to enforce the law against handbooks, the trial court might well have charged the jury that such was Clark’s duty as a matter of law, and therefore failure to give appellant’s requested charge was not error.
. Appellant claims further error because the court refused to give appellant’s request to charge that unless the jury were satisfied beyond a reasonable doubt and to a moral certainty that Clark received money from Boettcher, they must find him not guilty; also that the court erred in refusing to direct a, verdict of not guilty at the close of the people’s case and at the conclusion of proofs. The court very carefully stated to the jury the claims made by the people. He cautioned the jury to analyze and consider them carefully and to decide to what extent they were sustained by the evidence submitted.' Fie very emphatically stated that the defendants were not on trial on a charge of neglect of duty; that it was for the jury to decide whether the defendants received payoff moneys and, if so, whether the payments were received by them under such circumstances and with such understanding and with such implied consideration as would justify the conclusion by the jury that there was a direct connection between such payoffs and the purpose and design of the conspiracy. Fie also charged them in stronger language than appellant Clark’s attorney asked as follows:
“The jury # * # must find that said rzibiíéf was paid to said police officers with the knoT$tó5gg that said police officers knew of the exisfemsmfiThe alleged conspiracy and permitted jsaié áiandhqpM to operate; * * * that the, afflamo j-fmya&'gfat otí8 money standing alone is inspfefijg^g^gg^pyijcfe further that the payment promise not to illeg^^j, <pj0 agflU handbooks would of
He further staáéihiddihfBjh?^ íthMtqtólblie ©fíieMg were presumed tsíhdoSnftM iseaoíése«si|)theáf fpq#®ifg in the inteEÓ&forffiif^ítiije qBÜbMfeí3am<hiyiéhdw4hWJÍnthoi2 ity granfadíthiínk^rMiábftlleojuTyrí^ásoflbt Jaffisbrtílíd shield himself from punishment or to gratify his malice.
There was testimony that Boettcher had received large sums of money partly for distribution among the high police officials, and that he was threatened with an investigation for evasion of his income tax. Appellant claims that Boettcher by falsely implicating Clark and other defendants devised a scheme to explain the expenditures of moneys he received. This is a deduction by appellant’s counsel, but, at most, it is a question of fact for the jury to decide. Boettcher swore he made the payments to appellant Clark. Boettcher testified that he had no conversation with Clark when he paid him from month to month. It was not a subject that necessarily requires any conversation and it might have been concluded that the less said the better as long as the money was delivered. It must be borne in mind that Boettcher was an inspector of police and Clark was chief inspector. One handbook operator testified that he contributed to a fund of $2,000 a month to keep certain handbooks open; that this was paid each month to John Curro, handbook operator and joint defendant in this case; that Curro stated that $300 was to go to Clark. Objection was made to the admission of this testimony as hearsay. The judge properly held that this testimony was only binding upon such defendants as the testimony up to that time showed were parties to the conspiracy and to others if, when, and only if and when, by competent evidence they were shown to be parties to the conspiracy. Curro was a defendant in the case. The testimony was part of the res gestae. It was properly admitted as limited by the trial judge. In any event the payment and distribution of bribe moneys were questions for the jury. Neither appellant Clark nor anyone else testified that Clark did not re ceive the bribe money. The judge instructed the jury that the failure to take the witness stand could not operate against defendant. It is not claimed that the prosecution commented upon his failure to take the witness stand. We have frequently held that when testimony is given alleging crime and there is no contradiction, the jury may consider this fact as long as no comment is made by the judge or prosecutor on the failure of defendant to take the witness stand. People v. Sullivan, 290 Mich. 414; People v. Parker, 307 Mich. 372.
Other alleged errors in the charge, as claimed by appellant, we do not believe have sufficient merit to require discussion. Wresting sentences from the context or printing a few words- of a sentence in capitals does not show error; when the entire charge or the sentence itself is a fair presentation of the facts and law of the case. A careful study of the record convinces us the court did not err in refusing to direct a verdict for defendant Clark, nor do we believe that the charge of the court was argumentative and highly prejudicial, thereby depriving defendant of a fair and impartial trial.
All other questions having any merit have been discussed in the companion cases heretofore mentioned. We believe a jury question was fairly presented under a fair charge to the jury, and the jury’s verdict is sustained by the evidence.
The conviction is affirmed.
Starr, C. J., and North, Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Wiest, J.
Upon trial by jury on the charge of first degree murder, by shooting, of his stepfather, defendant was found guilty of manslaughter. In this appeal he alleges error on the part of the trial court in submitting to the jury the testimony of a police officer relative to a claimed dying declaration, made by the deceased while being carried to the hospital a few minutes after the shooting. The court, in the absence of the jury, heard the testimony of the witness and held, as a matter of law, he might testify before the jury on the subject of the declaration, leaving to the jury, under proper instructions, the fact of whether, if made, it was a dying declaration.
In substance the police officer testified that on the way to the hospital the deceased, lying upon the stretcher, stated that he was shot several times, and asked “if I thought they could do him any good or could fix him up when they got him to the hospital., * # * I told him as soon as we got him down to the hospital they would go to work on him and fix him up like new again. * * * He said' he didn’t believe so, he didn’t believe he was going to live, or didn’t believe he would live. * * * After he made that statement * * * I asked him what had happened. * * * He said he had had some trouble with his stepson, and his stepson had shot him. He said he was sitting in a rocking chair in his living room, or sitting room, when his stepson and another man came in, and after an altercation about him being forced to move out, the stepson took a gun from the young man that was with him and opened fire on him. * * * He said he was going to kill him.” He stated “he got up and wrestled with him for the gun, * * * they scuffled around the house, or fought around the house and he got possession of the gun once, and then the stepson later got it away from him again.” While being taken to the hospital the injured man perspired profusely.
At the hospital the doctor diagnosed his condition as multiple gunshot wounds of the abdomen, with probable perforation of the viscera' and interpetechial hemorrhage. The doctor testified:
“At the operation, we found extensive damages to the intestinal tract and massive hemorrhages in the abdominal cavity as a result of three bullet wounds that had apparently penetrated the abdominal cavity. * * *
“The small bowel had at least six through and through perforations. There was a large tear in the large bowel in the region of the sigmoid colon, and also a tear through the wall of the bladder.”
The injured man was “in profound shock, conscious, able to talk, but in a very serious, critical condition * * * during his stay in the hospital. ’ ’
The deceased had death wounds. He sensed impending death and so expressed himself to the officer while the sweat of agony was upon him and before he made the declaration of the occasion and cause of the visible wounds upon his abdomen. The declaration so made was, under the circumstances, competent evidence for consideration by the jury and it was for the jury to determine, under the instructions given, whether it was a dying declaration.
This court has repeatedly stated the rule relative to dying declarations in cases of alleged homicide. If the jury found that at the time the deceased was being taken to the hospital, almost immediately following the infliction of the injuries, he was conscious of impending death occasioned thereby, then it was a dying declaration and the fact that he lived for 11 days after he was shot does not, in point of law, control the question of the declaration being a dying declaration. People v. Simpson, 48 Mich. 474; People v. Arnett, 239 Mich. 123; People v. Gorman, 252 Mich. 603.
Defendant also claims the verdict of the jury should have been set aside and a new trial ordered on the grounds that the verdict was against the great weight of the evidence and a miscarriage of justice. Consideration of the evidence satisfies us there was no miscarriage of justice to the detriment of defendant.
The conviction is affirmed.
Stare, C. J., and North, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred.
See 3 Comp. Laws 1929, § 17354 (Stat. Ann. §28.1096).—Re-PORTER. | [
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North, J.
Plaintiffs, presumably residents of Detroit, Wayne county, in a suit in assumpsit in Wayne county circuit court procured service of summons in that county on defendant November 24,1943. Defendant promptly entered special appearance and made a motion to quash the service of process. The reasons in support of this motion are hereinafter noted. Upon hearing the motion, affidavits pro and con were submitted and testimony was taken by order of the circuit judge by deposition relevant to the circumstances under which the service was obtained in Wayne county upon defendant who was a resident of Pittsburgh, Pennsylvania. The circuit judge granted the motion to quash, November 20, 1944. Leave having been obtained, plaintiffs have appealed..
The record discloses that the defendant in this case at the time of service was plaintiff in another case in the circuit court of Ingham county, Michigan, and in that case he had counsel representing him who resided in Detroit, Wayne county, and also counsel who resided in Lansing, Ingham county. After that case had been instituted in Ingham county, the defendants therein caused the same to be removed to the Federal court for the eastern district of Michigan; and while the case was still in Federal court the defendants therein moved for summary judgment. Plaintiff moved to have the cause remanded to the circuit court of Ingham county. The right to have the case so remanded was finally passed upon by the United States circuit court of appeals, where it was found that the ease should be remanded to the Ingham county circuit court, for the reason that there was no ground of Federal jurisdiction. See Refior v. Lansing Drop Forge Co. (C. C. A.), 134 Fed. (2d) 894. Notwithstanding the United States circuit court of appeals remanded the case to the Federal district court “with instructions to grant the motion to remand” to the circuit court of Ingham county, the case had not actually been so remanded at the time of the service of process which was quashed in the instant case. At this stage of the proceedings in the Ingham county suit, counsel for Otto Refior requested him to com'e to Michigan for consultation concerning the necessity for making amendments (which his counsel deemed desirable) to his pleadings in the Ingham county case and with reference to preparing evidence to be used at the trial of the cause. Evidently counsel were preparing for hearing in the Ingham county case in the event a motion was made by defendants for summary judgment, and for hearing on the merits in event summary judgment was denied.
In compliance with the foregoing request defendant in the instant 'case came from Pittsburgh to Detroit. When he arrived in Detroit on the morning of May 28, 1943, he was found'in his berth unconscious as a result of cerebral hemorrhage. He was at once taken to a Detroit hospital where he remained1 in an unconscious condition for some time and where his condition necessitated his remaining until after the service of the summons was made; but later, and as soon as it was safe to do so, he was removed to a hospital in Pittsburgh. As hereinbefore noted, service of summons was made upon him November 24, 1943.
The following appears in the deposition of defendant, Refior:
“Yes he (attorney Arthur E. Pixel) was, and still is, our attorney in Detroit on the Lansing case.
“Q. What was the purpose of the meeting in Detroit, Michigan, with Arthur E. Pixel, on May 28, 1943?
“A. • Solely for attending on the preparation for trial of Refior v. Lansing Drop Forge Company (the Ingham county circuit court case). * * *
“Q. Did you have any other business to transact in Detroit when you made the trip from Pittsburgh, Pennsylvania to Detroit, Michigan, on the night of May 27,19431
“A. No, I planned to go through with this one appointment as quickly as possible in the hopes of getting back to Pittsburgh on urgent business in Pittsburgh.
“Q. Did you plan on going further, with Mr. Pixel, to Lansing, Michigan, for the purpose of having a joint conference with Clayton P. Jennings?
“A. I did plan to go with Mr. Pixel to Lansing, Michigan, for a conference with attorney Jennings.
“Q. Was Mr. Jennings your Lansing counsel, in your case pending in the Ingham circuit court?
“A. Mr. Jennings was, and still is, our Lansing counsel on this case.
“Q. Did you have any other business to transact in Lansing, Michigan, outside of the preparation of your case for trial?
“A. No other business of any kind in Lansing other than the preparation of this Lansing case:”
The foregoing is abundantly corroborated by other portions of the record. The following from the opinion of the trial judge accurately states the reasons assigned in support of defendant’s motion to quash:
“The reason first assigned for the motion was that the defendant was too sick to understand the alleged service upon him or have any consciousness of any attempted service upon him. Subsequently (March 4, 1944) an additional ground was asserted —it is claimed that the defendant came to Detroit only for the purpose of consulting with his counsel in_ connection with the trial of a case in Lansing, Michigan, and to prepare for the trial of the cause and to make a trip to Lansing with his Detroit counsel to confer with Lansing counsel in charge of the case.”
In the showing in behalf of plaintiff in opposition to the motion to quash, facts and circumstances are disclosed from which plaintiffs’ counsel urge it may be inferred at least that defendant did not make the trip in question for the sole purpose indicated in the above quotation from, his deposition. Nonetheless upon consideration of the whole record the trial judge found:
“It appears therefrom (referring tu the deposition) that the sole purpose of defendant’s trip to Detroit was to consult with Mr. Arthur E. Fixel, bis Detroit counsel, in connection with the case pending in the circuit court for Ingham county, and to arrange to go to Lansing with Mr. Fixel to confer with Norton (Clayton.) F. Jennings, of Lansing, who was the Lansing counsel for defendant in Ingham circuit court. ’ ’
We are of the opinion that the record justifies the foregoing finding of the circuit judge. Hence the question of law arises as to whether under all the circumstances the service sought to be obtained upon defendant was valid. The circuit judge quashed the service on the ground that at the time and place it was obtained, defendant was immune from such service.
We think the trial judge reached the right conclusion. In so holding we do not overlook appellants’ contention that since defendant in the instant case came to this jurisdiction incident to a suit which he had instituted' in this State (rather than to attend a suit in which he was a defendant) he should nót be permitted to assert immunity from service of process in the instant case while in this jurisdiction incident to the litigation which he had instituted here.
It cannot fairly be said that Otto Befior in bringing his suit in the Ingham county circuit court did so wholly from his own choice or volition. There was no other forum open to him in which he could obtain an adjudication of his alleged rights, and thus have the benefit of his constitutional right of equal protection of the law. In part, at least, we deem this the reason for extending to a nonresident plaintiff in litigation which he has instituted in a jurisdiction other than his residence immunity from service of process while he is in such jurisdiction incident to his pending litigation. A decision of that character will be found in Kinne v. Lant, 68 Fed. 436. Lant, a resident of Indiana, was in Michigan at the request of his counsel for the purpose of consultation relative to a case in which he was plaintiff in the Federal court for the eastern district of Michigan; and while he was in this jurisdiction for that purpose service was obtained upon Lant in the cited case which was commenced in the circuit court of Washtenaw county. That case was removed to the Federal court for the eastern district of Michigan, and upon Lant’s motion the service made upon him in the Washtenaw county circuit court case was quashed. A syllabus in the cited case reads:
“A suitor (a plaintiff) who has come from his home-into a foreign jurisdiction, upon the request of his counsel and for the purpose of consultation with such counsel during the argument of a demurrer, is privileged from the service of process, in any part of such jurisdiction, during the argument and pending a temporary adjournment thereof for the convenience of' the court. ’ ’
Kinne v. Lant is cited with approval in Stewart v. Ramsay, 242 U. S. 128 (37 Sup. Ct. 44, 61 L. Ed. 192), and in Higgins v. California Prune & Apricot Growers, Inc. (C. C. A.), 282 Fed. 550. In the Stewart v. Ramsay case service was made on Ramsay while as plaintiff in another case he was present in the jurisdiction of service. The supreme court of the United States in its opinion said:
“The State courts, with few exceptions, have followed this rule (of immunity from service), applying it to plaintiffs as well as defendants, and to witnesses attending voluntarily as well as those under subpoena.” (Citing numerous cases.)
In the above-cited case of Higgins v. California Prune & Apricot Growers, Inc., the following is stated:
“Now the law is clear that the service of process upon any person who has gone into a jurisdiction which is foreign to him to attend upon any proceedings of a judicial nature there being conducted, whether taking place in .court or not, is while there privileged from the service of process. # * * It is equally clear that the privilege extends to every proceeding of a judicial nature (citing cases), and that this protection extends to parties who are present in consultation with their attorneys to aid in the taking of a deposition to be used at the trial (citing cases). Such proceedings are essentially a part of the trial. ’ ’
In speaking of immunity from service, Justice Campbell in one of our earlier decisions said:
“The right of a person to be sued at his own domicile is not a technical one, but one of importance, and should not be taken away except in strict compliance with law. * * * And the service cannot be upheld, if unfair and in fraud of any legal privilege. Relator had a right to consult counsel in his defense in the criminal case, and it was not unreasonable to go where his regular counsel lived, on Ms way home, for that purpose. * * * The case seems to us a very clear one, both of breach of privilege and of abuse of process, and we think the motion (to qnash the service) should1 have been granted.” Jacobson v. Wayne Circuit Judge, 76 Mich. 234, 236.
The first of the two questions submitted in appellants ’ brief reads:
“Was the defendant, at the time of service of summons upon him, in the State of Michigan in good faith attendance upon his counsel in connection with litigation which he had instituted in Michigan?”
Under the facts and applicable law of the instant case the trial judge correctly answered the foregoing question in the affirmative.
The remaining-question in appellants’ brief is as follows:
“Was the defendant entitled to assert immunity to service of process on the claim here involved when it was correlated1 and grew out of defendant’s pending litigation?”
The trial judge also answered the foregoing question in the affirmative, and correctly so under the record in this case. In our judgment, without reviewing all the circumstances in detail, it must be held that plaintiffs’ claim in the instant case, which is for services rendered as accountants to Refior, is not “correlated to” nor does it “grow out of” Refior’s suit in the Ingham county circuit court to the extent or in such a manner as justifies appellants’ contention that Refior was not immune from service in the instant case. Briefly Refior’s suit in the Ingham county circuit court was brought against the Lansing Drop Forge Company, Emil M. Refior and Edward H. Refior; and the relief sought was at least primarily cancellation of a large num ber of shares of preferred stock in the Lansing Drop Forge Company. Neither the parties, the subject matter, nor the relief sought in that case can be said in a legal sense to be “correlated” to the instant case in such a manner to justify the service of process sought herein to be sustained.
In view of our conclusion hereinbefore announced we deem it unnecessary to review or pass upon other matters presented by the record and briefs on this appeal. The order of the circuit judge quashing the service of process on defendant is affirmed. Costs to appellee.
Stake, C. J., and Butzel, Bushnell, Shaepe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case. | [
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North, J.
By a bill in chancery plaintiff seeks cancellation of a compensation insurance policy issued to defendant Moss, and thereby to save itself from possible liability incident to an accidental injury suffered by Prank Aldrich who was an employee of Moss. The defendants other than Moss filed a disclaimer and therefore are not concerned in the outcome of this litigation. Defendant Moss filed a cross bill and seeks to have plaintiff insurance company decreed liable as his insurer for com-' pensation awarded to his employees. The relief sought by plaintiff was decreed. Earle R. Moss, designated as defendant herein, has appealed.
Frank Aldrich instituted proceedings before the department of labor and industry for compensation. Notice of his application was given to Plymouth Machine Products Company and the Plymouth Machine & Caster Company. The Plymouth Machine & Caster Company was the name under which the former partnership owner had conducted this business at Plymouth, but after its purchase by Moss he carried on this business as the Plymouth Machine Products Company. The Plymouth Machine & Caster Company and the Few Amsterdam Casualty Company by petition caused Moss and the Phoenix Indemnity Company to be added as parties defendant in the compensation proceedings. In the main the issue in the compensation proceedings was which of the two insurance companies should be held liable for any compensation that might be awarded to Aldrich. The deputy found1 Aldrich was entitled to an award of compensation as against Moss and the Phoenix Indemnity Company. Thereupon the Phoenix Indemnity Company sought review by the department, and at this point plaintiff, the Few Amsterdam Casualty Company, filed its bill of complaint in the instant case, and incident to other relief sought and obtained a temporary injunction restraining further proceedings against it in the compensation case.
Decision herein must be made under the applicable provisions of the workmen’s compensation act as it existed prior to the 1943 amendment. Since 1938, Moss, doing business in Detroit as the Earle Motor Sales, had carried his workmen’s compensation insurance in the Phoenix Indemnity Company. The annual renewal of this insurance had not expired at the time of Aldrich’s accidental injury, April 25, 1942. At the time the Phoenix Indemnity Company insurance first became effective and thereafter Moss was engaged in business as an automobile dealer in Detroit under the name of Earle Motor Sales ; and the Phoenix standard form of policy by its express terms and per force of statute (2 Comp. Laws 1929, §8412 [Stat. Ann. §17.146]) covered “all the businesses the said employer (Moss) is engaged in at the time of the issuance of this contract or policy and all other businesses, if 'any, said employer may engage in during the life thereof.” On April 13,1942 (12 days before the Aldrich accident), Moss purchased from a partnership a machine shop business operated as the Plymouth Machine & Caster Company in Plymouth, Michigan. He later carried on this business as the Plymouth Machine Products Company. Aldrich was working in the Plymouth plant when injured. At the time of purchase of the Plymouth business Moss applied to one Daniel Stowe for compensation insurance, evidently intending such insurance should cover the compensation risk of the Plymouth business. Stowe was an insurance agent or. broker, and as such had secured the compensation insurance in the New Amsterdam Company for the partnership which carried on the business of the Plymouth Machine & Caster Company before that business was purchased by Moss. At the time negotiations were pending with Stowe for insurance in the New Amsterdam Company neither Moss nor his representative was asked whether Moss was carrying any other compensation insurance, nor did Moss or his brother, who was acting for him, advise Stowe that the Phoenix Indemnity Company was already carrying such compensation for Moss. The New Amsterdam Company through Stowe issued a new policy of compensation insurance to “Earle R. Moss d/b/a Plymouth Machine & Caster Company” effective April 13, 1942, to April 13, 1943. The insurance agent, Daniel Stowe, personally delivered this policy to Moss April 23, 1942. The insurer’s certificate and Moss’ acceptance were filed with and received by the department "of labor and industry April 24, 1942, and the acceptance approved by the department on that date, which was the day before the Aldrich accident. Later the New Amsterdam Casualty Company gave the department of labor and industry notice of termination of its liability effective April 13, 1942, on its earlier policy which had been issued to the partnership from which Moss purchased the Plymouth Machine & Caster Company. This notice bears plaintiff’s notation: “Coverage rewritten effective April 13, 1942, under: ‘Earle R. Moss, d/b/a Plymouth Machine & Caster Company.’ ” On April 30, 1942, the New Amsterdam Casualty Company also notified the department of labor and industry of the termination of its liability as of May 11, 1942, on the policy it had issued to Moss, d/b/a Plymouth Machine & Caster Company.
Plaintiff in this chancery proceeding asserts that it is entitled to relief by way of cancellation of its policy for the f olio wing, r easons: (1) that since the Phoenix Indemnity Company’s policy was in force and covered all of the liability of Moss for compensation at the time plaintiff issued its policy, the department of labor and industry had no jurisdiction to approve the subsequent acceptance of Moss or to receive and file plaintiff’s certificate of acceptance of the risk, (2) that plaintiff’s policy was issued in consequence of actual or constructive fraud on the part of Moss in that he did not inform plaintiff that he was already covered by the Phoenix Indemnity policy, and (3) that plaintiff’s policy should be can- celled because of a mistake in issuing the same in that the insurer was not advised and did not know the actual scope of the risk as including other business of Moss aside from that of the Plymouth Machine & Caster Company. As hereinbefore noted, the circuit judge granted cancellation sought by plaintiff, but solely on the ground of mistake. He found there was no fraud. The grounds urged by defendant in support of this appeal are: (1) that the decree was against the evidence, (2)- that the decree was against the law, and (3) that under the evidence presented the New Amsterdam Casualty Company should have been held the insurer covering the risk.
Notwithstanding plaintiff’s contention to the contrary, we find, as did the trial judge, that incident to the transactions involved in this litigation Daniel Stowe acted as the agent of plaintiff company, not as the agent of Earle E. Moss. Exhibit 13 discloses an agreement between the New Amsterdam Casualty Company and Stowe & Company of Detroit wherein the latter is “hereinafter called the agent;” and such agent by the terms of the agreement as to Detroit and vicinity was authorized “to solicit and submit applications for the classes of insurance and fidelity and surety bonds for which a commission is specified in the schedule of commission allowances below; to issue and deliver policies, * * * which the company may, from time to time, authorize to be issued and delivered; to collect and receipt for premiums thereon or therefor; to cancel such policies and bonds in the discretion of the agent where cancellation is legally possible; and to retain out of premiums collected * # * as full compensation on business placed with the company by or through the agent, commissions at the following rates.” We deem it unnecessary to refer to other phases of the record which beyond question establish as a fact that Daniel Stowe, who testified that he was “in the general insurance business under name of Stowe & Company, which consisted of my father, Fred Stowe, and myself,” was the agent of plaintiff insurance company.
Nor are we in accord with plaintiff’s contention that the policy which it seeks to have cancelled was issued as the result of a fraud, either actual or constructive, perpetrated by defendant upon plaintiff or because of a mistake in that at the time of issuing the policy plaintiff did not know that Moss was engaged in another line of business and already protected by the compensation insurance policy issued by the Phoenix Indemnity Company.
As to the matter of the alleged fraud the undisputed record is that plaintiff’s agent made no inquiry whatever at the time of negotiating for and issuing the policy in suit as to whether Moss was engaged in another business and already had issued in his behalf a compensation insurance policy, nor did Moss or anyone in his behalf make any statement to plaintiff’s agent concerning these matters. Of course Moss knew the facts concerning these matters but it is a fair conclusion from this record that he was not aware of the provision in the statute (2 Comp. Laws 1929, § 8412 [Stat. Ann. § 17.146]) which in effect prevented him from having the risk incident to one of his activities carried by one insurer and his risk incident to another activity carried by a different insurer. However, that was a matter of law, not of fact. Plaintiff in connection with his claim of fraud stresses the fact that in item 3 of the declaration which is made a part of plaintiff’s policy it is stated: “Locations of all factories, shops, yards, buildings, premises or other work places of this employer” were at the Plymouth site and “elsewhere in the State of Michigan;” but in the same declaration in item 5 it is recited: “This employer is conducting no other business operations at this or any other location not herein disclosed.” In other words, Moss did not disclose to plaintiff’s agent that he was then con-, ducting another business (the Earle Motor Sales) or that he already had another policy which covered his compensation risk in his business. But it is worthy of note that this recital as to the extent of defendant’s business first appears in the policy drafted by and delivered to defendant by plaintiff’s agent. There is no testimony that it was contained in any prior writtén application signed.by defendant or his brother, who acted in defendant’s behalf incident to securing this insurance. Neither of them signed the policy or the declaration contained therein. Moreover the policy itself was not delivered to defendant until the second day before the accident. And it is not established by the testimony that Moss even knew prior to the Aldrich accident that there was this erroneous recital in' the policy which is rather long and complicated. The erroneous statement evidently got into the policy through the neglect or carelessness of plaintiff’s own agent who prepared the policy. Notwithstanding plaintiff issued its policy without having first acquired full knowledge as to the extent or character of defendant’s business or the number of his employees, its own carelessness or that of its agent in that respect does not afford a ground for equitable relief. As noted above, plaintiff’s agent made no inquiry in this respect nor did Moss or anyone in his behalf make any misrepresentation relative théreto or conceal the .fact with intent to deceive plaintiff. This record does not disclose either fraud or such a mistake of fact as would entitle plaintiff to cancellation.
The novel factual aspect of this case is that at the time of the accident Moss, the employer, was carrying two policies of insurance, either of which, were it not for the existence of the other, would have covered the risk. Plaintiff’s contention is that under the statutory provision that the employer “shall insure all his liability in all of his businesses in one and the same insurance company or organization,” the department of labor and industry was without power to accept a second insurer while a prior insurer ’s policy covering the risk was in force. i On the other hand, defendant contends that under the facts of the instant case it should be held that the filing of plaintiff’s certificate of acceptance of the risk with the department of labor and industry and the department’s approval of the employer’s acceptance of the compensation act resulted in a substitution of plaintiff’s policy for the earlier Phoenix policy and thereafter the compensation risk in all of Moss’s businesses was covered by the New Amsterdam Casualty Company.
We conclude that defendant is correct in contending that there was a substitution of the New Amsterdam policy for the Phoenix policy prior to the accident which happened April 25, 1942. Plaintiff’s policy, which specifically covered the business in which Aldrich was injured (as well as all other business in which Moss was engaged) recited it was effective April 13,1942, and was delivered by plaintiff’s agent to the insured April 23,1942. Plaintiff’s certificate of acceptance of the risk together with Moss’s acceptance of the compensation act was mailed by plaintiff insurance company to the department of labor and industry under date of April 23, 1942. Plaintiff’s certificate of acceptance of this risk was received and filed by the department of labor and industry April 24, 1942, and on the same date the employer’s acceptance of the compensation «act was approved by the department. This was the day before Aldrich sustained his accidental injury. Obviously, on the day of the accident plaintiff insurance company was on the risk. That such was the understanding and construed to be the fact by the plaintiff insurance company is quite convincingly disclosed by its letter to the department of labor and industry dated April 30, 1942, which in part reads:
“In re: Earle R. Moss, d/b/a Plymouth Machine & Caster Co., 12401 Diana Lane, Livonia Township, Plymouth, Michigan
“You are hereby notified that the undersigned, the insurance company carrying the workmen’s compensation insurance on the above-named employer has terminated its liability to be effective May 11, 1942.”
In holding that plaintiff’s acceptance was filed with the department April 24th, we are mindful that later (April 27th) the department wrote plaintiff insurance company concerning its certificate of acceptance filed April 24th, as follows: “If the new certificate (the one filed April 24th) is to replace the old one (that formerly filed for the partnership which sold the Plymouth business to Moss), may we have a notice of termination of liability in the old name or if this is a separate entity will you so advise.” In reply plaintiff wrote the department that its former policy, issued to the partnership, had been terminated as of April 13, 1942; and that: ‘ ‘ Coverage rewritten effective April 13,1942, under: ‘Earle R. Moss, d/b/a Plymouth Machine & Caster Company.’ ”» Surely this incident did not defer the date of plaintiff’s acceptance of the risk. Instead it confirms, subsequent to the Aldrich accident, plaintiff’s acceptance filed with the department.on April 24th.
It is not a requisite incident to the substitution of a new policy for one already covering the risk that there should be notice of cancellation of the earlier policy. Gratopp v. Carde Stamping & Tool Co., 216 Mich. 355. So in the instant case plaintiff’s liability was not affected by the fact that there was no notice of cancellation of the Phoenix policy filed with the department prior to the Aldrich accident. It does not follow, as plaintiff contends, that so to hold is to permit a violation of the statute (2 Comp. Laws 1929, §8412 [Stat. Ann. §17.146]) which requires an employer to “insure all his liability in all of his businesses in one and the same insurance company or organization.” Instead the new policy when substituted for the former policy does just what the statute required, i.e., it covers the risk in all the businesses in which the insured is engaged. In fact, plaintiff’s policy issued to Moss expressly provides “that all of the provisions of each workmen’s compensation law covered- hereby shall be and remain a part of this contract,” and the statute requires that every compensation policy shall include the provision that it covers “all of the businesses the said employer is engaged in at the time of the issuance of this contract or policy.” 2 Comp. Laws 1929, §8460 (Stat. Ann. §17.195).
It is of no consequence as affecting plaintiff’s liability that at the time it issued its policy to Moss it had no knowledge of the fact that he was also doing business as the Earle Motor Sales and was carrying compensation insurance in the Phoenix In demnity Company. Nor may plaintiff escape liability in consequence of one of its representatives having testified it would not have issued1 its policy to Moss had it known of the Earle Motor Sales business. While we do not consider it as having any material hearing on decision of the instant case, it may be noted that the business of the Earle Motor Sales had no connection with the Aldrich accident. He was injured while working in the Plymouth business, which was the specific risk plaintiff insurer covered by its policy.
There is no need to disagree with plaintiff’s contention that since Moss was conducting two separate businesses — the Earle Motor Sales in Detroit and the Plymouth Machine & Caster Company at Plymouth, and already had one insurance covering the Earle Motor Sales business, he could not by a second insurer cover the compensation risk of the Plymouth business, separate from the Earle Motor Sales risk. See Gratopp v. Carde Stamping & Tool Co., supra. But that was not what was accomplished in the instant case. Instead, Moss (under an assumed name) was personally engaged in each of these businesses. He was the sole employer. As before noted, by statute (2 Comp. Laws 1929, §8412 [Stat. Ann. § 17.146]) Moss was required, while under the workmen’s compensation-act, to cover the compensation risk in both his businesses by insurance “in one and the same insurance company.” Instead of notifying the Phoenix Indemnity Company of his newly-acquired business (as his insurance policy required), Moss took out a new policy in plaintiff company and1 by the timely filing of proper certificates of acceptance with the department of labor and industry, plaintiff’s policy, supplanted the earlier Phoenix policy.- This is true in spite of the fact that Moss did not understand the legal effect of his obtaining a second policy from plaintiff insurer. We are quite in accord with the following statement made by plaintiff in its brief:
‘ ‘ The very act of the employer in effectuating the change of insurance shows the intent to substitute a subsequent insurer for an earlier insurer. ’ ’
Considerable consideration in the briefs has been devoted to the question of “intent.” For example, it is asserted by plaintiff that neither Moss nor the New Amsterdam Casualty Company ever intended that the latter’s policy covered the compensation risk in the Earle Motor Sales. On the other hand, it is suggested in defendant’s brief that neither Moss nor the Phoenix Indemnity Company ever intended that the Phoenix policy covered the compensation risk of the Plymouth Machine & Caster Company. But it should be noted that this type of insurance (or other financial responsibility) is required by the statute of each employer who elects to go under the workmen’s compensation act; and that such requirement is primarily for the benefit and protection of employees. Hence as to such insurance contracts the matter of “intent” or meeting of minds cannot be applied in like manner as to ordinary contracts between individuals. Instead, the statute requires such insurance and fixes the conditions of liability. To hold otherwise in ordinary workmen’s compensation cases would greatly jeopardize the rights of employees for whose benefit insurance is required by law. That “intent” does not control is evidenced by such of our decisions as that in Zielke v. A. J. Marshall Co., 306 Mich. 474. In that case one of defendant’s employees sustained a compensable accident September 30, 1940. Prior to the date of the injury defendant’s compensation insurance was being' carried by the General Accident Assurance Corporation. Its policy was for the term of one year expiring September 27, 1940, and it received from defendant the premium for the year expiring on that date, but for no additional term. On the date of the expiration of the policy the insurer filed with the department notice of termination of its policy, but under the statute (2 Comp. Laws 1929, § 8460, subd. [f] [Stat. Ann. § 17.195 (f)]) its policy continued in effect until 10 days after notice of termination was received by the department, or until October 7, 1940, “if there was no other insurer on the risk for that period.” Prior to the date of the accident and on September 27, 1940, the Lumbermen’s Mutual Casualty Company issued to the employer its policy effective as of that date and received a premium from that time on. But the' Lumbermen’s Mutual did not file its certificate of coverage with the department of labor and industry until October 3, 1940.’ This was after the accident. In defendant’s report of the accident it named as its insurer the Lumbermen’s Mutual whose policy defendant had received before the accident. As to the matter of “intent” it quite conclusively appears that on the date of the accident the defendant employer thought and intended that the Lumbermen’s Mutual was on the risk; and óbviously that company intended to be on the risk at that time because it had previously delivered its policy effective as of September 27th to the employer and received the premium therefor. On the other hand, it seems a necessary inference that the General Accident Assurance Corporation, having given its notice of cancellation prior to the accident and the employer having taken out new insurance in another company, understood and intended that it was not thereafter and at the time of the accident still on defendant’s risk. Notwithstand ing such “intent” on the part of the insured and both insurers, it was held that the General Accident Assurance Corporation was liable, because the Lumbermen’s Mutual had not yet filed its acceptance of the risk with the department of labor and industry at the time of the accident. Obviously it cannot be said that “intent” is controlling in this type of cases.
Even if “intent” were to be considered as having some bearing upon decision, it should be noted that in the instant case the insured (Moss) understood and intended that at the time of the accident here involved the compensation risk was being carried by the New Amsterdam Casualty Company. In the report to the department of the accident here involved the employer named the New Amsterdam Casualty Company as the insurance company carrying'the risk, thus indicating the employer’s understanding or intent. While we do not have before us Aldrich’s petition to the department for adjustment of compensation, it quite conclusively appears, otherwise from the record that this injured employee also understood the risk at the time of the accident was being carried by the New Amsterdam Casualty Company, and that company appeared in the compensation proceedings. Further, whatever may have been the intent of the New Amsterdam Casualty Company, it cannot now escape liability by asserting such intent, knowledge of which at the time it issued its policy was not conveyed to Moss, the insured. Moreover, by the express terms of the New Amsterdam policy (and as a matter of law) it is provided: “It is agreed that all the provisions of each workmen’s compensation law covered hereby shall be and remain a part of this contract as fully and completely as if written herein.” The applicable provision in the workmen’s compensation act (2 Comp. Laws 1929, § 8460 [Stat. Ann. § 17.195]) is that every compensation policy shall contain the following provision: “That this insurance contract or policy shall for all the purposes be held and deemed to cover all the businesses the said employer is engaged in. at the time of the issuance of this contract or policy and all other businesses, if any, said employer may engage in during the life thereof, and all employees the said employer may employ in any of his businesses during the period covered by this policy. ” So it cannot be said in the instant case that the matter of “intent” is controlling in plaintiff’s favor.
Since neither question is raised on this appeal, we do not herein pass upon the propriety'of adjudicating in equity the controlling issue presented in the instant case; nor upon the necessity of the Phoenix Indemnity Company being a party to this litigation. It appears from the original file defendant’s motion in the circuit court to dismiss the bill of complaint on the ground that the Phoenix Indemnity Company was- a necessary party was denied. No complaint of that ruling is made on this appeal. Consideration has been given the other phases of this case noted in the briefs, such as payment or nonpayment of premiums on the respective policies hereinbefore mentioned; also a.s to plaintiff’s claim that at the time the New Amsterdam Casualty Company issued its policy to Moss, his brother, who was acting for Moss, sought to obtain a rebate on the premiums. However, we have concluded that decision herein is not affected by any of the above matters.
The decree entered in the circuit court is reversed and the injunctive relief granted set aside. A decree will be entered in this Court granting the relief sought in defendant’s cross bill as follows: “That a decree may be entered by this court to the effect that on April 25, 1942, New Amsterdam Casualty Company was the sole and only compensation insurer for Earle R. Moss and liable as such insurer for all the obligations imposed by the workmen’s compensation law in favor of employees of the said Earle R. Moss,” during the time, plaintiff’s policy remained in effect. Defendant Moss will have costs of both courts.
Starr, C. J., and Butzel, Bushnell, Sharpe, Boyles, and1 Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case. | [
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Bushnell, J.
The issues presented in this appeal were submitted to the trial court on the following stipulation of facts:
1. That at the present time plaintiff owns and operates in the State of Michigan 40 retail stores.
2. That for the fiscal year ended January 31, 1943, plaintiff’s Michigan stores made gross sales in the amount of $36,273,232, on which plaintiff realized a net profit in excess of $4,000,000.
3. That for the fiscal year ended January 31, 1944, plaintiff’s Michigan stores made gross sales in the amount of $36,163,804, on which plaintiff realized a net profit in excess of $3,000,000.
4. That on January 31, 1944, plaintiff had assets located in Michigan of the following description and value, and that plaintiff’s present assets in Michigan are substantially identical therewith:
Merchandise inventory........... $5,252,000
Land .......................... 324,093
Buildings ...................... 116,000
Fixtures ....................... 684,000
The trial judge summarized the matter so clearly that we quote the following from his opinion:
“The petition of the plaintiff herein asks for a declaration of rights under the statute and for injunctive relief. The material facts involved are covered in part by averments and admissions in the pleadings and otherwise by stipulation. The record discloses that in July, 1934, plaintiff was admitted to carry on a local business in Michigan. At that time its authorized capital stock consisted of 205,000 shares of so-called class A no par value stock and 6,000,000 shares of common stock. At that time all of the class A stock had been issued, and likewise all of the common stock except 1,434,996 shares. The statutory fee was computed, and paid, on the basis of the total authorized capital stock.
“In 1943 plaintiff adopted an amendment to its articles of incorporation increasing the common stock to 10,000,000 shares. A certificate setting forth such amendment was forwarded to defendant for filing, whereupon defendant, acting in accordance with the provisions of the Michigan statute, demanded that plaintiff pay a fee in the sum of $4,458.10. With such request plaintiff declined to comply, instituting the present suit to enjoin an alleged threatened revocation of its license to carry on business in this State and seeking a declaration of rights in the premises.
“The controversy involves the validity of certain provisions of 2 Comp. Laws 1929, §10138 (Stat. Ann. §21.203), pursuant to which defendant acted in computing and demanding the fee above referred to. In so far as it is material, said section reads as follows:
“ ‘Every domestic corporation hereafter organized for profit, and every foreign corporation for profit hereafter applying for admission to do business within this State, shall at the time of filing its articles or applying for admission, as the case may be, pay to the secretary of State, as' an organization fee and for the privilege of exercising its franchises within this State, a snm equal to one-half mill upon the dollar for each dollar of the authorized capital stock of such corporation; and each corporation heretofore or hereafter incorporated under the laws of or admitted to do business in this State, shall pay a proportionate fee upon each and any increase in its authorized capital stock made subsequent to the passage of this act: Provided, That in case of a foreign corporation, such fee shall be computed upon that portion of its authorized capital stock represented by the portion of its property, both tangible and intangible used or to be used in its business in Michigan.’
“It is the claim of the plaintiff. that, having been admitted to carry on business in the State of Michigan, it was beyond the power of the State to impose on it the additional fee computed on the basis of authorized capital stock, none of the increase authorized having been issued, such fee being com-puted on the basis outlined in the statute. It is insisted, in substance, that the provision in. question violates the provisions of the Federal Constitution relating to interstate commerce, due process of law, and the equal protection of the laws. Counsel for defendant emphasize the fact that the clause assailed was in the statute at the time- plaintiff was admitted to this State in 1934; and rely on the decision of the supreme court of the United States in Atlantic Refining Co. v. Virginia, 302 U. S. 22 (58 Sup. Ct. 75, 82 L. Ed. 24), in which the original entry or franchise fee based on authorized capital stock was sustained as against objections urged against it. It is contended, in effect,- that the same principles that determine the powers of a State in imposing conditions on foreign corporations precedent'to admission are applicable in the case at bar on the theory that there was no distinction between the grant of the original privilege and the continuation of that privilege. Counsel for plaintiff take exception to this theory, contending that once the foreign corporation is admitted, its status is altered in such manner as to enable it to assert rights claimed by virtue of the provisions of the Federal Constitution. This suggests, of course, that following the original admission' the inherent power of the State to exclude foreign corporations altogether is not involved.”
The trial judge held the statute invalid1 and the State has appealed from the decree entered thereon.
Looking at the question realistically, if plaintiff is correct, incorporators may seek a corporate franchise in a State which offers unusual advantages by way of lower franchise fees, taxes, and more favorable limitation of liabilities, et cetera. It is thus possible for a corporation to be formed in such a State with a nominal capitalization at the time of its organization. Thereafter it may obtain a license to do business in some foreign State or States where it expects to do a very large intrastate business. When the organization of the corporation is fully completed in other States, its authorized capital may then be increased to a larger amount without any obligation for the payment of additional license or admittance fees on such increase. The corporation may thereby use a very large amount of its capital in intrastate business without additional expense, although competing domestic corporations in the -latter States might be required to pay a large fee on any sizable increase of capitalization.
2 Comp. Laws 1929, § 10138 (Stat. Ann. §21.203), became effective on May 20,1929. This statute does not discriminate against foreign corporations. Although a corporation incorporated in this State is obliged to pay a franchise fee on the entire increase of its authorized capital, a foreign-corporation is required to pay only upon the portion of its increased authorized capital which is represented by the portion of its property, both tangible and intangible, used or to be used, in intrastate business in Michigan.
Plaintiff first sought admission to do business locally in the State of Michigan in 1934, five years after section 10138, supra, became effective. In thus seeking admission to do an intrastate business, it tacitly agreed to conform with and abide by the laws of this State which provide for the exaction of additional privilege or admission fees on increases of capital from both domestic and foreign corporations, but more limited in amount as to the latter as hereinbefore set forth.
The case of Montgomery Ward & Company, Inc., v. Becker, 334 Mo. 789 (69 S. W. [2d] 674), decided in 1934, as well as some of the other authorities cited, tend to uphold plaintiff’s contention that an admission fee may not be based upon the authorized increase of capital even when limited to intrastate business. Plaintiff relies on a number of previous opinions of the supreme court of the United States which have subsequently been questioned by Atlantic Refining Co. v. Virginia, 302 U. S. 22 (58 Sup. Ct. 75, 82 L. Ed. 24), decided November 8, 1937, and which, we believe, is determinative of the present issue. It was there held that the entrance fee exacted by the State from a foreign corporation was not a tax but was “compensation for a privilege applied for and1 granted,” et cetera. This is the law of Michigan. In re Detroit & Windsor Ferry Co., 232 Mich. 574.
The court further held in. the Atlantic Refining Company Case that there was no showing that an entrance fee of $5,000, as charged, was “more than reasonable compensation for the privilege granted, ’ ’ and that an entrance fee for the privilege of doing local business measured by the total authorized capital stock of a foreign corporation having property situated in many States and abroad, and engaged in interstate and foreign commerce, does not necessarily burden such commerce, and a fee so measured is not an arbitrary taking of property beyond the jurisdiction, nor is it arbitrary in amount. The court said (p. 28):
“Third. It is contended that a fee measured solely by the amount of the corporation’s authorized capital stock necessarily burdens interstate commerce. • In support of that contention it is said that the authorized capital stock represents property located in 47 States and several foreign countries used in both interstate and foreign commerce. But this is not true. Authorized capital has no necessary relation to the property actually owned or used by the corporation; furthermore, the fee for which it is the measure'represents simply the privilege of doing a local business. Because the entrance fee does not represent either property or business being done, it is immaterial that in fixing its amount no apportionment is made between the property owned or the business done within the State and that owned or done elsewhere.
“The entrance fee is obviously not a charge laid upon interstate commerce; nor a charge furtively directed against interstate commerce; nor a charge measured by such commerce. Its amount does not grow or shrink according to the volume of interstate commerce or the amount of the capital used in it. The size of the fee would be exactly the same if the company did no interstate commerce in Virginia or elsewhere. The entrance fee is comparable to the charter, or incorporation, fee of a domestic corporation — a fee commonly measured by the amount of the capital authorized. It has never been doubted that such a charge to a domestic corporation, whatever the amount, is valid, although the company proposes to engage in interstate commerce and to acquire property also in other States. No reason is suggested why a different rule should be applied to the entrance fee charged this foreign corporation.
“Fourth. It is contended that a statute which measures the entrance fee solely by the authorized capital deprives the corporation of its property without due process, because the amount is determined by reference to property beyond the taxing jurisdiction; and also that this charge is an arbitrary taking of property. As has been shown, the amount of the entrance fee is not measured by property, either within or without the jurisdiction; and it is not a tax upon property. It is payment for an opportunity granted. Nor is it a charge arbitrary in amount. The value of the privilege acquired is obviously dependent upon the financial resources of the corporation — not only upon the capital possessed at the time of its admission to do business, but also upon the capital which it will be in' a position to secure - later through its existing authority to issue additional stock. Obviously, the power inherent in the possession of large financial resources is not dependent upon, or confined to, the place where the assets are located. Compare Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S. 412 (57 Sup. Ct. 772, 81 L. Ed. 1193, 112 A. L. R. 293). Great power may be exerted by the company in Virginia although it has little property located there. And the value to it of the privilege to exert that power is not necessarily measured by the amount of the property located, or by the amount of the local business done, in Virginia. Moreover, it is immaterial whether the opportunity is availed of or not. The State grants a large' privilege. It may demand a corresponding price.”
. It would serve no useful purpose to discuss the -many decisions of the supreme court of the United States bearing upon the questions involved in the instant case. Some of the earlier cases, such as Baltic Mining Co. v. Massachusetts, 231 U. S. 68 (34 Sup. Ct. 15, 58 L. Ed. 127), tend to uphold defendant’s contention. Some subsequent cases set forth in Cudahy Packing Co. v. Hinkle, 278 U. S. 460 (49 Sup. Ct. 204, 73 L. Ed. 454), tend to condemn such fee as unconstitutional. In the latter case, however, there is a strong dissenting opinion by Mr. Justice Brandéis, in which Mr. Justice Holmes joined. Many of the former decisions of the supreme court of the United States are there reviewed. It may be noted that many of the earlier eases have to do with public utilities and other corporations which conduct large interstate businesses throughout the country. However, in Atlantic Refining Co. v. Virginia, supra, the court unanimously held that an admittance fee based upon the authorized but not issued capital, was not an arbitrary taking of property beyond the power of the State, neither was the fee arbitrary nor excessive in amount.
In Lincoln National Life Insurance Co. v. Read, 325 U. S. 673 (65 Sup. Ct. 1220, 89 L. Ed. 673), the question was presented whether the State of Oklahoma had denied appellant the equal protection of the laws in violation of the Fourteenth Amendment when appellant, an Indiana corporation, after having obtained a license to do business in Oklahoma in 1919, in accordance with the laws thereof, was required annually to pay a fee for the renewal of its license. This fee was based upon a percentage of all premiums received in Oklahoma during the preceding year, after cancellations were deducted. Such fee applied solely to foreign insurance companies. In April, 1941, Oklahoma doubled the gross premium tax required of foreign insurance companies, in order to secure a renewal of their licenses. The supreme court of the United States upheld the decision of the State supreme court and denied recovery of taxes paid under protest on in sur anee premiums collected subsequent to the effective date of tbe act which increased the tax, and distinguished Hanover Fire Ins. Co. v. Harding, 272 U. S. 494 (47 Sup. Ct. 179, 71 L. Ed. 372, 49 A. L. R. 713), one of the authorities on which plaintiff relies in the instant case. The court held in the Hanover Case that the insurance company had obtained an unequivocal license to do business in a foreign State and, after building up that business, was subjected to discriminatory taxation when its license fee was increased.
In the instant case the license granted plaintiff by the State of Michigan was not unequivocal, inasmuch as the statute, at the time of plaintiff’s admission to do business in this State, provided it would be required to pay additional fees based upon that portion of the increase of its authorized capital stock used or to be used in the State of Michigan.
For the reasons hereinbefore stated, we conclude that the additional fee imposed on plaintiff is neither an arbitrary taking of property beyond the power of the State nor a violation of either articlé 2, §16, of the Constitution of the State of Michigan, nor of section 1 of the Fourteenth .Amendment of the Constitution of the United States. Such fee does not deny plaintiff equal protection of the laws in violation of the Fourteenth Amendment of the Constitution of the United States. Nor does it constitute a burden on interstate commerce in violation of Article 1, § 8, of the Constitution of the United States. The fee exacted is neither excessive nor unreasonable in amount. It is limited to that part of the increase of the authorized capital used or to be used in the State of Michigan. It does not affect the interstate business of plaintiff.
The decree appealed from is reversed but without costs, a public question being involved. A de cree in accordance with this opinion may he entered. in this court.
Starr, C. J., and North, Butzel, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case. | [
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Snow, J.
Plaintiff seeks to recover damages suffered by reason of freezing of a quantity of apples shipped to him at Bay City, Michigan, by the Shafton Company of Chicago. The defendant Illinois Central Railroad Company was served with process but did not appear, and its default was entered for not pleading. The Michigan Central Railroad Company defended. The bill of lading was a straight uniform bill, and among other provisions contained the following:
“No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God.”
The shipment was received by the carrier at 11:15 a', m., February 14th; departed from Chicago on the same day at 6:25 p'. m.; arrived at Niles, a distance of 92.9 miles, at 12:45 a. m., February 15th; departed from Niles at 4:50 a. m. on the same day; arrived at Jackson, a distance of 116.5 miles from Niles, on the same day at 12:55 p. m.; departed from Jackson on the same day at 8:45 p. m., arrived at Lansing, a distance of 36.9 miles, at 2:00 a. m., February 16th, and arrived at Bay City, a distance of 78.4 miles, at 7:10 p. m., February 16th. The total time from receipt of the shipment at Chicago until arrival at Bay City being 55 hours and 55 minutes, and the total time from receipt of shipment to the time that the plaintiff was notified of the arrival of the shipment being 71 hours and 15 minutes. The total distance traveled was 324.7 miles. Upon being notified of the receipt of the shipment the plaintiff proceeded with the unloading of the apples as rapidly as possible, but found a very large proportion of them had frozen after they had been placed in the car at Chicago. The car used was what is known as a refrigerator car, with all vents closed and plugs in. He claims to have sustained a loss in the sum of $820.65. At the close of the plaintiff’s testimony, upon motion of the defendant, the trial court directed a verdict in its favor.
Plaintiff contends that the carriers were guilty of negligence which was the proximate cause of the damage, in that they failed to carry the goods from the point of shipment to their destination with reasonable dispatch, but unreasonably and negligently delayed their transportation, and as a result the damage to the apples occurred.
Defendant insists that it is relieved from all liability by virtue of its agreement made with the plaintiff against any loss that might be occasioned by freezing, which was an act of God beyond the control of the parties, and was the proximate cause of the injury to the apples, rather than any delay in transportation.
The learned trial judge justifies his course in directing a verdict for the defendant by the holdings of this court in the cases of Lardie v. Railroad Co., 192 Mich. 77, and Randall v. Railway Co., 212 Mich. 259.
That the instant case may be the more readily distinguishable from the above cases, the following facts are here noted:
The apples were packed, free from frost and in' good condition, in a refrigerator car, on the 14th day of February, 1923, at a time of year when it is a matter of common knowledge that the temperature may become freezing at any time within a few hours. They were placed in a refrigerator car (which is the safest way to pack such goods for shipment during the winter months) for the very purpose of avoiding freezing. The plaintiff testified, without dispute, that frost would break through a refrigerator car in zero weather in from 24 to 36 hours, and that apples would stand zero weather in a refrigerator car without freezing from 42 to 48 hours. He also testified that he had been shipping produce between Chicago and Bay City for 15 or 16 years in car load lots as often as 3 or 4 times each week; that a car leaving Chicago in the evening would arrive in Bay City the next day but one, at about 7:30 or 8 o’clock-in the morning, about 36 hours; that this was true in the month of February, 1923, and that this had been the usual time in transit at that time of .the year between Chicago and Bay City for the last 10 or 12 years. He also testified that when the car was opened after its arrival the vents were closed and the plugs in, as a car should be which was closed for zero weather.
The plaintiff, knowing the value of a refrigerator car for shipping fruits at this season of the year, knowing that in such a car the contents would not freeze by a sudden change in the weather, and knowing the car would protect the shipment from freezing in zero weather for a considerably longer period of time than was necessary to make the run from Chicago to Bay City, did not use an ordinary box car, but had the fruit placed in a refrigerator car.
In the Lardie Case, supra, the plaintiff permitted the loading of the shipment in an ordinary box car, and on the shipping order and bill of lading was written “owner’s risk freezing,” and “box car loaded with perishable freight at shipper’s request and shipper’s risk.” He did this because he could not get a refrigerator car, well knowing the possibility of a change in the weather freezing the shipment, and thereby took his chances. In that case and in those cited in the opinion it was held in effect that, although there was failure to deliver within a reasonable time, such failure to deliver was not the natural and proximate cause of the damages, but that it was the freezing which was an “element beyond the control of both parties, wholly unrelated to any act or omission of the carrier.”
A similar state of facts existed in the Randall Case relied upon, and this court held that because a refrigerator car was unavailable and a box car accepted by the plaintiffs, who signed a release of defendant for freezing, that defendant could not be held for damage by frost, although plaintiffs, alleged that the damage was caused by unusual delay in transportation and delivery, since the damage by frost was within the contemplation of the parties when the release was signed. This case was held to be ruled by the Lardie Case.
In the instant case the parties knew the danger of freezing during transportation. The railroad company had refrigerator cars which would prevent freezing even at zero weather for a number of hours more than necessary to transport the shipment from Chicago to Bay City. The plaintiff hired this car, for which he probably paid more than he would have paid for an ordinary box car, and he knew when doing so that his shipment would not freeze if it reached its destination within the time reasonably and usually consumed in making the trip, and if delay on the road detained the goods from the plaintiff longer than was necessary, and that delay was because of the negligence of the defendant, may it not be said that the delay was the natural and proximate consequence and cause of the damage complained of?
“The right of the carrier to limit his liability has been restricted on the ground that he might otherwise place the shipper in the plight of either not being able to ship_ his goods or having to accept an unreasonable limitation of the carrier’s liability for negligence. * * * They might have waited for a refrigerator car, but preferred to use a box car and excuse the carrier from liability for the danger to which the shipment would be subject under those conditions. They were not obliged to accept this car or none.” Lardie v. Railroad Co., 192 Mich. 81.
In the case at bar a refrigerator ear in which the shipment could not freeze for a number of hours was selected, and had there been no delay en route the shipment might not have frozen.
The questions of negligence and proximate cause are for the jury. Young & Co. v. Railway Co., 201 Mich. 39.
Judgment is reversed and a new trial granted, with costs to appellant.
Steere, Fellows, Wiest, and Clark, JJ., concurred with Snow, J. | [
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Sharpe, J.
The defendant reviews by writ of error a judgment for plaintiff in an action to recover damages for injuries sustained by her when struck by a motor truck driven by one of defendant’s employees. The only assignment of error discussed by defendant’s counsel is the denial of his motion for a directed verdict because of the contributory negligence of plaintiff. On such a motion, the evidence must be considered in the light most favorable to the plaintiff’s right of recovery.
The plaintiff testified that on the afternoon of May 16, 1923, she alighted from the rear end of a street car at the intersection of Detroit street and Eleventh avenue in the city of Flint; that as the car passed on she “looked up the street approximately to about Twelfth avenue,” and, seeing no vehicle approaching, she “started across the street” to the west, and, when she “got within two or three feet of the curb,” she “saw a car coming;” that she “decided” she could get to the curb, thinking the car would pass her on the east side; that the car turned towards the curb, and, when she was near the curb, the car struck her and knocked her down. On cross-examination, she stated that, had she looked again as she walked towards the curb, she could have seen the approaching car. The distance from the west side of the track to the curb was 14 feet and 1 inch. She was the only person who alighted from the car, and there were no other cars or vehicles or persons near her on the street.
Counsel invokes the rule:
‘‘Where one says he looked and did not see an object, which, if he had looked, he in the nature of things must have seen, he cannot be credited if he says he did not see the object.” 10 R. C. L. p. 1009.
This rule has been followed in many Michigan cases. It was the duty of the plaintiff to look for approaching vehicles before she started to cross the street. She testified that she did so. Do the undisputed physical facts justify a rejection of her testimony in this respect?
There were two young men in the defendant’s car at the time it struck the plaintiff. The driver was not sworn. The other occupant, Theodore Hull, testified that the car was “going about 12 or 14 miles an hour” at the time of the collision. There was no other witnesses to the accident. He also testified that—
“The automobile did not go over two feet after it hit her; it went up onto the curb, it did not climb the stairs, it did not go up over one step. There is a tree down near the curb in the narrow parkway between the sidewalk and the curb. The automobile went up one step and hit the tree.”
If the car was not moving faster than 12 or 14 miles per hour at the time it approached the plaintiff, it is apparent that, had plaintiff looked in its direction, she must have seen it, and the rule relied on .by defendant’s counsel would apply. There is testimony, however, which strongly indicates that it was traveling much faster. The plaintiff was crossing to enter the house which stood on the northwest corner of the block. Mrs. Catherine Canada, who lives in the house on the southwest corner, testified that she was in her home and heard the automobile strike the tree. The sidewalk was about three feet above the curb of the street, and the tree stood beside the sidewalk. That the car struck the curb with considerable force is apparent. Hull also testified that plaintiff was—
“about two feet from the street car track when she was hit, to the right between her and the curb was twelve feet for us people to have driven that car through,”
and that the driver “swung his car off to the right when he was just a few feet from the girl, when he saw he was going to hit her.” Mrs. Canada testified that the body of the plaintiff “laid on the outside of the curb” and not very far from it.
The plaintiff testified that she looked to the north and did not see the car. If so, the car must have traveled very fast to have struck her before she reached the sidewalk. In view of the nature of Hull’s testimony, as above outlined, we are impressed that it cannot be said, as a matter of law, that the ear was within plaintiff’s vision at the time she started to cross the street. If not, she had a right to assume that she could reach the west curb “before a vehicle traveling the ordinary and legal rate of speed” could reach her. Frary v. Grand Rapids Taxicab Co., 227 Mich. 445. The strict rule as to the care required of a person about to cross a railroad track (Pamburn v. Railroad Co., 228 Mich. 472) is not here applicable. Trains and electric cars must necessarily have the right of way over the highways occupied by their tracks, while the rights of motor vehicles and pedestrians in the use of the public streets are reciprocal. In our opinion, the question of plaintiff’s contributory negligence was for the jury.
The judgment is affirmed, with costs to appellee.
Bied, C. J., and Snow, Steeee, Fellows, Wiest, Claek, and McDonald, JJ., concurred. | [
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Reid, J.
The bill in this case was filed April 20, 1943, against the civil service commission of the city of Detroit and the department of street railways of the city of Detroit, so that the city of Detroit, a municipal corporation, is in effect and in fact one of the defendants represented herein through its department of street railways.
The 176 plaintiffs seek to obtain an order of the chancery court setting aside and holding for naught the actions of the defendants and each of them so far as plaintiffs are concerned and directing the reinstatement or reemployment of the plaintiffs herein by the defendant department, of street railways. Plaintiffs further pray that the order of. the court restore plaintiffs to their positions in the employment of the said department with full seniority and pension rights as pertained to them on July 17,1942, the date on which plaintiffs and several other employees, of the department of street railways struck; and further, that the chancery court direct the defendant department of street railways to reimburse the plaintiffs for back pay.
A motion was made to dismiss the bill for want of equity and for want of jurisdiction, which motion was. granted, and from the decree - dismissing the • bill plaintiffs appeal. In considering this appeal we must take as true well-pleaded facts set forth in the bill of complaint.
The plaintiffs allege that on Jnly 17, 1942, and for a long time prior thereto, plaintiffs were employees of the department of street railways of the city of Detroit; that they were members of division 26 of the Street Railway Men’s Association, an affiliate of the American Federation of Labor; that at a meeting of the union on July 15th the membership affirmatively voted to go on strike on July 17, 1942, and that the plaintiffs in good faith acted in accordance with the mandate of their union and on July 17, 1942, did strike. Plaintiffs further claim that about noon of July 17, 1942, a special meeting of the union was called, and plaintiffs were informed that the strike would he called off and if they returned to work and reported immediately they would he reinstated in their positions. Plaintiffs allege that thereupon they did return hut were refused admittance and suspended; further, that the defendant department of street railways through its duly-authorized officers conducted an investigation and filed charges against the plaintiffs. Plaintiffs claim further that a board of review was set up, before which plaintiffs and upwards of 115 others were summoned to appear; that upon plaintiffs’ appearing before the hoard of review they were formally discharged from service; and that they appealed therefrom to the civil service commission of the city of Detroit in accordance with the charter provisions in such case made and provided. Plaintiffs claim that the hoard of review was prejudiced and acted whimsically and capriciously, and also, was unfair and discriminated in the matter of discharges; that the civil service commission following receipt of the written protests of the plaintiffs herein and upwards of 115 others, granted hearings thereon at which testimony was taken, and that the action of the defendant civil service commission was likewise whimsical, capricious and arbitrary, resulting in the loss of employment by plaintiffs, together with their seniority and pension rights and back pay.
The case, at issue upon the pleadings, was noticed for pretrial consideration. The case was assigned to Circuit Judge Arthur Webster, before whom a hearing on a motion to dismiss the bill of complaint was in progress between June 2 and June 26, 1944. On the hearing of the argument on the motion to dismiss, plaintiffs moved to amend the bill to pray for mandatory injunction requiring defendants forthwith to put plaintiffs in the positions from which they were discharged with full rights of seniority as such rights existed at the' time of said discharges, and back pay in full from date of said discharges and suspension to the present time, which motion to amend was taken under advisement by the trial judge. The motion of defendant civil service commission to dismiss the bill was made on the ground, among other things, that the bill of complaint failed to allege matters cognizable in an equity court, and that plaintiffs had an adequate remedy at law; that there was a misjoinder of the parties plaintiff; and because the affirmative relief prayed for invades the exclusive jurisdiction of the civil service commission of the city of Detroit. The motion of the defendant board of street railway commissioners and department of street railways among other things prays for a dismissal of the bill because the bill does not state a cause of action in equity; that there was a misjoinder of the parties plaintiff; that the bill is multifarious and would not avoid a multiplicity of suits and, further, because, if any plaintiff has any remedy for any matter alleged in the bill, that remedy is at law and not in equity.
Plaintiffs claim we should not consider, on this motion to dismiss, a concession of fact made at the pretrial hearing to the effect that plaintiffs did not give the statutory notice prescribed by the Michigan labor relations act before striking. Because of our decision upon other grounds, it is not necessary to rule upon that objection. For a similar reason, it is unnecessary to determine the multifariousness of the bill.
We quote from the opinion of the trial court as follows:
“Under the city charter an employee who is discharg'ed by a department head has a right of appeal, upon written request within 10 days, to the civil service commission (Charter, title 4, chap. 2, §§ 18, 18a). The civil service commission can set aside the discharge for three reasons only: If it was for religious or political reasons or reasons other than the good of the service. If the civil service commission denies his protest or appeal, his next step is to the circuit court by appeal in the nature of certiorari. The Constitution (1908), art. 7, §10, gives the circuit courts Supervisory control over inferior tribunals. But the Supreme Court has pointed out that this control does not mean a trial de novo, since such a trial would be unconstitutional as thrusting upon the courts administrative and executive functions. So the court has held that the review is by appeal in the nature of certiorari for which leave must first be obtained. In re Fredericks, 285 Mich. 262, 267 (125 A. L. R. 259).”
In the Fredericks Case, supra, the applicants were employees of the fire department of the city of Highland Park. Charges of incompetency and misconduct were preferred against them in conformity with the charter provisions and following a hearing before the police and fire commission they were dismissed. In respect thereto we say (p. 265):
“Although the act contemplates that formal charges shall he preferred, a hearing had thereon, and the decision of the commission to be based upon the testimony so taken, it must be concluded that the commission functions in a capacity which is essentially administrative. Although partaking of that which is judicial, its acts are not truly of such a nature, and are therefore termed quasi-judicial functions.”
The function of the commission in that case was similar to the function of the civil service commission of the city of Detroit in the instant case in considering and disposing of the appeals of plaintiffs, namely, an essentially administrative function. We must not usurp .the functions of an administrative body. This the Constitution of the State forbids. Constitution (1908), art. 4.
The trial court in the instant case was correct in .holding that the review of the action of the civil service commission of the city of Detroit is by appeal in the nature of certiorari, in which appeal we do not determine administrative policies, nor purely administrative questions. The-bill of complaint in the instant case petitioned the court to determine administrative matters, which bill of complaint was properly dismissed.
The decree appealed from is.affirmed. Costs to defendants.
Starr, C. J., and North, Butzel, Bttshnell, • Sharpe, and Boyles, JJ., concurred. The late Justice Wiest took no part in this decision.
See Act No. 176, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 8628-1 et seq., Stat. Ann. 1944 Cum. Supp. § 17.454 [1] et seq.). —Repoktee. | [
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Per Curiam.
The prosecution appeals as of right a circuit court order granting defendant’s motion to suppress evidence and dismissing, without prejudice, charges of possession of a firearm by a felon, MCL 750.224Í, carrying a weapon in a vehicle, MCL 750.227, and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court concluded that information that the police received in person from a tipster who refused to identify himself was inadequate to allow the police to approach defendant in his car, ask for identification, and subsequently order him out of the car. We reverse and remand for reinstatement of the charges.
While on patrol at approximately 2:00 a.m., Detroit police officers Thomas Turkaly and Mecha Mathis were flagged down by a man who was pumping gas at a gas station. The man told them that a black male driving a burgundy Chevrolet Caprice was at the gas pumps at another gas station at Grand River and Wyoming in Detroit, which was approximately a mile away, and was waving an “[U]zi type weapon” with a long clip. The tipster reported that the man was approximately 30 years old and “seemed to be pretty nervous and upset.” The tipster refused to provide his name.
Less than five minutes after speaking to the tipster, Officers Turkaly and Mathis arrived at the gas station at Grand River and Wyoming, where they observed a burgundy Chevrolet Caprice parked near the pumps. Defendant was in the driver’s seat. The officers stopped their cruiser behind defendant’s vehicle, activated their emergency lights to effect a traffic stop, and ordered defendant out of the vehicle. Officer Mathis asked defendant for a driver’s license, registration, and proof of insurance. The testimony was equivocal regarding defendant’s response to this request. When defendant got out, however, Officer Turkaly saw on the driver’s seat a Glock semi-automatic pistol with an extended magazine that protrudes, making it appear like “an [U]zi type weapon.”
The trial court first considered whether the police action was justified without the anonymous tip. The court believed that the police properly could approach a driver and ask for his driver’s license if they observed a car sitting at a gas station at 2:00 a.m. “with nothing else going on,” and that the police would have the right to order the driver out of the car if the driver was unable to produce the documents. However, the court found that the record was unclear about whether defendant produced his license or other documentation.
The court then examined the effect of the tip. The court considered the prosecutor’s argument that the tip was more reliable because it was made face-to-face, instead of by an anonymous telephone informant, but discounted that argument because the police did not get any information from the tipster, e.g., his license plate number. The court concluded that the face-to-face nature of the tip was insufficient to accord it more reliability than an anonymous telephone tip and, therefore, concluded that it was insufficient to justify defendant’s brief detention. Accordingly, the court granted defendant’s motion to suppress and dismissed the case without prejudice.
On appeal, the prosecution argues that this case is indistinguishable from People v Tooks, 403 Mich 568; 271 NW2d 503 (1978), which also involved a tip by an unidentified citizen.
“This Court reviews a trial court’s factual findings in a suppression hearing for clear error. But the ‘ [application of constitutional standards by the trial court is not entitled to the same deference as factual findings.’ ” People v Jenkins, 472 Mich 26, 31; 691 NW2d 759 (2005) (citations omitted).
As explained in Jenkins, supra:
A brief detention does not violate the Fourth Amendment if the officer has a reasonably articulable suspicion that criminal activity is afoot. Whether an officer has a reasonable suspicion to make such an investigatory stop is determined case by case, on the basis of an analysis of the totality of the facts and circumstances. A determination regarding whether a reasonable suspicion exists must be based on commonsense judgments and inferences about human behavior. [Id. at 32 (citations and quotation marks omitted).]
In Tooks, a man approached the police and reported seeing a man show a gun to two other men. He described all three men by race and age. He further described two of the men by height and the clothing they wore and described the build of the man with the gun. Four or five blocks away, the police encountered three men matching the descriptions. The police patted down the defendant, who matched the description of the man with the gun, and discovered a pistol in his pocket. The Supreme Court concluded that the information provided by the anonymous informer provided reasonable suspicion for the stop and frisk. The Court identified three factors for examination to “determin[e] whether the information from the citizen-informant, carried enough indicia of reliability to provide the officers with a reasonable suspicion”: “(1) the reliability of the particular informant, (2) the nature of the particular information given to the police, and (3) the reasonability of the suspicion in light of the above factors.” Tooks, supra at 577. The Court rejected the defendant’s argument that the fact that the citizen-informant was unknown and unnamed “necessarily lead[s] to the conclusion that the information was neither reliable nor credible.” Id. The Court explained:
There is certainly nothing inherently unreliable about a citizen as opposed to a known informant giving information to the police. A regular informant can, and often does, provide police with detailed and accurate information and, because of a continuing relationship which at times exists, the police are in a position to judge the accuracy of such information based on a prior experience with the individual. However, informants by their very nature are often involved in or connected with criminal activity. To favor the known informant over the citizen in this case is illogical. We feel that information provided to law enforcement officers by concerned citizens who have personally observed suspicious activities is entitled to a finding of reliability when the information is sufficiently detailed and is corroborated within a reasonable period of time by the officers’ own observations. As stated in a decision of the California Court of Appeals and cited as authority by the Michigan Court of Appeals, People v Emmert, 76 Mich App 26, 31, fn 1; 255 NW2d 757 (1977)[:j
“ ‘ “Citizen informants are not subjected with respect to their reliability to the same stringent test as persons who are themselves criminally involved or disposed upon the rationale that such citizens are motivated by good citizenship and their information is imparted in the aid of law enforcement. ” ’ ” People v Schulle, 51 Cal App 3d 809, 813; 124 Cal Rptr 585 (1975).
We find that there was ostensible reason for the citizen refusing to disclose his name and that there was no resulting inherent unreliability. [Tooks, supra at 577-578.]
With regard to the second factor, the Court referred to the detail and preciseness of the description and that it was verified by the police within a short time and a short distance from where the police received the information. Id. at 579-580. Concerning the third factor, the Court reasoned that “the knowledge that a gun was openly displayed in public does create a reasonable suspicion of criminal activity sufficient to warrant the type of investigation including a pat-down search which occurred in this case, and that investigation is exactly the type of ‘good police work’ which is not only acceptable but necessary for the safety of the public.” Id. at 581.
Defendant argues that the present case is distinguishable from Tooks, because the citizen-informant in that case gave a reason for not wanting to provide his name. Although the Court in Tooks referred to the fact that the informant gave a reason for not wanting to identify himself as a factor in assessing the reliability of the information provided, the decision does not indicate that either the presence or absence of a reason is dispositive of the question whether the informant’s tip may be considered reliable.
Defendant also suggests that the Court’s reliance, in Tooks, on the specificity of the information, may no longer be valid in light of Florida v J L, 529 US 266; 120 S Ct 1375; 146 L Ed 2d 254 (2000). In that case, an anonymous caller reported to the police that a young black male wearing a plaid shirt and standing at a particular bus stop was carrying a gun. The caller did not indicate how he knew of the gun or provide any basis for believing that he had inside information about the subject. Id. at 271. An unspecified time after the police received the information, two officers were sent to the scene, and they arrived six minutes after the dispatch. The police saw three black males, including 16-year-old J L, who was wearing a plaid shirt. Id. at 268. The officers had no reason other than the tip to suspect illegal conduct. They searched the three males and found a gun in J L’s pocket. Id. The Supreme Court held that the anonymous tip alone, which “lacked [even] moderate indicia of reliability,” did not provide reasonable suspicion justifying the police officers’ stop and frisk of the suspect. Id. at 271, 274. “The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility.” Id. at 271. The Court rejected the view that the reliability of the information was sufficiently demonstrated because the police found a person matching the description at the location given by the informant, explaining:
An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.
[Id. at 272.]
We conclude that J L does not undermine the analysis in Tooks, because courts have recognized that a tip made in person by a citizen who is unwilling to disclose his name is distinct from an anonymous telephone tip. Justice Kennedy’s concurrence in J L discusses this distinction:
If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring. [Id. at 276 (Kennedy, J., concurring).]
See, also, United States v Sanchez, 519 F3d 1208, 1214 (CA 10, 2008), and United States v Valentine, 232 F3d 350, 354-355 (CA 3, 2000), and cases cited therein. In Tooks, supra at 581, the Court specifically noted that it was “not dealing with an anonymous telephone tip to a police station ...
Moreover, other facts of this case distinguish it from J L. The tipster in that case did not indicate how he knew that the individual at the bus stop was carrying a gun and did not supply any information to show that he had inside knowledge about the individual or the “concealed criminal activity.” J L, supra at 272. In the present case, the tip concerned readily observable activity, and the tipster indicated the basis for his knowledge, i.e., his recent viewing of the activity. Cf. People v Rollins, 382 Ill App 3d 833, 840; 892 NE2d 21 (2008).
The totality of the circumstances provided reasonable suspicion for the police to briefly detain defendant in this case. The tipster indicated that he had personally observed an individual waving an “[U]zi-type” gun at a specific location approximately a mile away and had just left that location. He described the make, model, and color of the suspect’s vehicle. The descriptive information was detailed, and the police corroborated it in less than five minutes. The facts fit the observation made in Tooks, supra at 577, that “information provided to law enforcement officers by concerned citizens who have personally observed suspicious activities is entitled to a finding of reliability when the information is sufficiently detailed and is corroborated within a reasonable period of time by the officers’ own observations.”
For these reasons, the trial court erred in granting defendant’s motion to suppress. In light of our conclusion, we need not address the prosecution’s additional argument regarding whether the trial court clearly erred by concluding that the record was unclear about whether defendant produced his license or other documentation in response to Officer Mathis’s request.
Reversed and remanded for reinstatement of the charges. We do not retain jurisdiction. | [
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Per Curiam.
Plaintiffs appeal by delayed leave granted the trial court’s order granting defendants’ motion for change of venue. We affirm.
The facts submitted established that plaintiff Marcus Yono is a resident of Livingston County. He is also the sole member of plaintiff Livingston Building Company, L.L.C., a construction company based in Livingston County, and is a member and manager of plaintiff Suttons Pointe Development, L.L.C. Livingston Building Company is currently building a project called Bay View in Suttons Bay in Leelanau County. Defendant Eric Carlson is a reporter for the Leelanau Enterprise, a weekly newspaper located in Leelanau County and owned by defendant Leelanau Enterprise, Inc. The newspaper is printed solely in Leelanau County, does not advertise in Livingston County, and mails by subscription to no more than 19 addresses in Livingston County.
The complaint in this action arises out of several allegedly defamatory statements concerning plaintiffs’ Bay View project that were published in defendants’ newspaper. Plaintiffs allege that such publication damaged their reputation in Livingston County by impugn ing their business integrity and raising concerns about their financial solvency. Plaintiffs further allege that as a result of the damage to their reputation, they have suffered economic loss in that some people have can-celled their purchase agreements for condominium units in the Bay View project. On defendants’ motion, the trial court transferred venue from Livingston County to Leelanau County after determining that the original injury occurred in Leelanau County.
Plaintiffs claim that because the original injury occurred in Livingston County, venue is proper there and the trial court erred by transferring venue to Leelanau County. We disagree. A trial court’s ruling in response to a motion to change improper venue is reviewed for clear error. Massey v Mandell, 462 Mich 375, 379; 614 NW2d 70 (2000). “Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. However, this case involves the interpretation of a statute, which is a question of law calling for review de novo. Haworth, Inc v Wickes Mfg Co, 210 Mich App 222, 227; 532 NW2d 903 (1995). The primary objective of statutory interpretation is to ascertain and give effect to the intent of the Legislature from the plain language of the statute. Lash v Traverse City, 479 Mich 180, 186-187; 735 NW2d 628 (2007).
MCL 600.1629 provides, in relevant part:
(1) Subject to subsection (2), in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, all of the following apply:
(a) The county in which the original injury occurred and in which either of the following applies is a county in which to file and try the action:
(i) The defendant resides, has a place of business, or conducts business in that county.
(ii) The corporate registered office of a defendant is located in that county.
The Michigan Supreme Court recently held that “the location of the original injury is where the first actual injury occurs that results from an act or omission of another, not where a plaintiff contends that it first relied on the act or omission that caused the injury.” Dimmitt & Owens Financial, Inc v Deloitte & Touche (ISC), LLC, 481 Mich 618, 620; 752 NW2d 37 (2008) (emphasis in original). The Court explained, “Reliance creates only a potential injury, which is insufficient to state a negligence cause of action . ...” Id. (emphasis in original). In a medical-malpractice case, where death allegedly resulted from a misdiagnosis leading to a ruptured aneurysm, this Court held that “venue rests with the county where the injury resulting in death occurred, and not the place where the death itself took place.” Karpinski v St John Hosp-Macomb Ctr Corp, 238 Mich App 539, 544; 606 NW2d 45 (2000). Further, in another medical-malpractice case, which concerned an injury attributed to the misreading of an X-ray, this Court held that “the plaintiffs injury is the corporeal harm that results from the defendant’s alleged failure to meet the recognized standard of care.” Taha v Basha Diagnostics, PC, 275 Mich App 76, 79; 737 NW2d 844 (2007) (emphasis in original). The plaintiffs attempt to extend the reasoning of these cases to one alleging defamation by claiming that the publication of statements creates the mere potential for injury, and thus the injury does not occur until the defamed party actually suffers some concrete, adverse consequence of that publication.
However, this is a case of defamation per se, where damages are presumed; therefore it is only logical to equate presumed damages with the initial publication in Leelanau County. Michigan law distinguishes between defamation per se whereby a defamatory statement is actionable “irrespective of special harm” and defamation per quod, which involves “the existence of special harm caused by publication ....” Frohriep v Flanagan (On Remand), 278 Mich App 665, 680; 754 NW2d 912 (2008). Words are defamatory per se if they, “by themselves, and as such, without reference to extrinsic proof, injure the reputation of the person to whom they are applied.” Black’s Law Dictionary (6th ed), p 417. “Whether nominal or substantial, where there is defamation per se, the presumption of general damages is well settled.” Burden v Elias Bros Big Boy Restaurants, 240 Mich App 723, 728; 613 NW2d 378 (2000).
Because this Court has never addressed the issue of original injury in a defamation per se case, it is appropriate to examine other jurisdictions for persuasive authority. According to 50 Am Jur 2d, Libel and slander, § 402, p 796, “[u]nder a statute which prescribes venue in the county where the cause of action accrued, in a case of defamation, the cause of action accrues in the county where the defamation was first published, which in the case of a newspaper is where the newspaper is prepared, edited, and disseminated.” Further, “[statutory provisions requiring venue ... to be laid in the county in which . .. the injury occurred . . . have been construed as allowing venue of an action for libel in a periodical or newspaper to be laid only in the county in which it was first printed and issued, and not in every county in which it was circulated.” Id., § 403, pp 796-797.
Defendant Leelanau Enterprise, Inc., has its corporate registered office in Leelanau County. It also prepares and prints its newspaper solely in Leelanau County. In fact, even though plaintiffs claim that the people who cancelled their purchase agreements for the Bay View project were not located in Leelanau County, the project is located in Leelanau County and that is where the economic loss was first experienced. Thus, the original injury occurred in Leelanau County.
Finally, after determining that the original injury occurred in Leelanau County, we must apply in descending order the subparagraphs of MCL 600.1629 that apply to this particular case. See Massey, supra. MCL 600.1629(l)(a) designates venue in the county where the original injury occurred and where, “(i) [t]he defendant resides, has a place of business, or conducts business in that county,” or where “(ii) [t]he corporate registered office of a defendant is located in that county.” Defendants are solely located and have their registered office in Leelanau County. But, in Massey, the Supreme Court determined that the definite article “the” in MCL 600.1629(l)(a)(i) demonstrates the Legislature’s intent to define the phrase “[t]he defendant” as meaning one single defendant. See Massey, supra at 382-385. Therefore, because there are multiple defendants in this case, MCL 600.1629(l)(a)(i) does not apply.
Moreover, under the same reasoning above, defendants fall within MCL 600.1629(l)(a)(ii) because there are multiple defendants. Accordingly, venue is proper in Leelanau County under MCL 600.1629(1) (a) (ii) because the original injury occurred there when the allegedly defamatory words were printed, and it is also the location of the corporate registered office of defendant Leelanau Enterprise, Inc.
Affirmed.
However, as the Michigan Legal Milestone case of Theodore Roosevelt v George Newett reveals, even the former President of the United States pursued and prosecuted his libel claim against a Michigan defendant in Marquette County in 1913, where the defamatory words were printed. State Bar of Michigan, Michigan Legal Milestones <http://www.michbar.org/programs/milestones.cfm> (accessed March 10, 2009). | [
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Fellows, J.
On August 6, 1920, plaintiffs entered into a contract with Harry Cook and Catherine Cook, his wife, to sell them certain lots on Scotten avenue in Detroit for $7,000. There was a down-payment of $1,500 with agreed monthly payments of $40. The Cooks were given possession, and the contract contained the usual provision for forfeiture for failure to make payments. March 8,1924, the' Cooks assigned their equity to defendant Lippman. He gave notice of the assignment of the contract to him and in turn was notified that the contract was at default. At this time there were past due monthly payments aggre gating $200 which Lippman paid and which payment was accepted by plaintiffs’ agent. The next month Lippman made the monthly payment. He had in the meantime opened negotiations with a view of paying up the balance of the purchase price if given a sufficiently liberal discount ($918.41). The plaintiffs declined to make this discount and defendant, although frequently requested, made no further payments on the contract. It appears from the record that plaintiffs sent defendant a notice of forfeiture by registered mail and that it was received and receipted for by his stenographer. A former suit brought before a circuit court commissioner resulted in defendant’s favor because the notice of forfeiture was not personally served. A new notice of forfeiture was prepared and personally served. After waiting 12 days from its service and no payments being made, this suit was brought before the commissioner and resulted in a judgment for plaintiffs both before the commissioner and in the circuit, each court finding the amount due on the contract.
The sole defense in this proceeding, is defendant’s claim that plaintiffs, having accepted payments after they were due, cannot declare the contract forfeited and proceed to recover possession without first giving him notice and a reasonable time in which to make payments, and to sustain his contention he cites Maday v. Roth, 160 Mich. 289 (136 Am. St. Rep. 441); John v. McNeal, 167 Mich. 148; Waller v. Lieberman, 214 Mich. 428; Fry v. Miller, 220 Mich. 463; and Zadigian v. Gard, 223 Mich. 147. An examination of these cases shows that they were all equity cases in which equitable relief from the effect of a forfeiture on the ground of an equitable estoppel was granted and in all of the cases the vendees tendered the amount due. This is also true of Letinsky v. Smith, 220 Mich. 465, and Malys v. W. C. Hood Realty Corp., 229 Mich. 110. In all of these cases the plaintiffs offered to do equity by paying all they owed on the contracts. Here defendant refuses to pay anything unless a substantial discount is made.
In the case of Sliwinski v. Gootstein, ante, 74, my Brother Clark has written that the doctrine of es-toppel recognized in the equity cases above cited should be applied in an action of ejectment where the defaults have been repeated and persistent and have been waived by the vendor by the repeated acceptance of past due payments. Whether the court should so hold is not, however, involved in the instant case. There the defaults were persistent and continued and the acceptance of payments repeated and numerous. There the course of dealing had been for so long a time that the vendee had been lulled to insecurity. Here defendant Lippman’s assignor had not paid promptly and was in default when defendant took the assignment. Upon receiving notice of the assignment plaintiffs’ agent promptly notified him that the contract was at default and in one payment he cleaned up the past due payments and the next month paid on time. He tried to get a discount of nearly $1,000' for cash, and, failing in that, refused payments entirely. It is doubtful if he could have any standing in a court of equity. He has not been lulled into insecurity; he has not offered to do equity; he could not come into equity with clean hands. The note which my Brother cites and quotes from, found in 9 A. L. R. 996, deals exhaustively with the question and cites and considers the authorities at length. Under the head “Waiver of prior default,” it considers the right of a vendor to declare a forfeiture for default in making a particular payment which he has accepted, and the first paragraph of the quotation from this note in my Brother’s opinion is under this head. The editorial writer then under the head of “Waiver of subsequent default,” lays down this rule:
“A vendor in a contract for the sale of real estate, in which time is an essential element, by accepting one or more payments subsequent to the time specified in the agreement, does not necessarily waive the vendee’s delinquency as to future payments, or the right to insist on strict performance in the future; and on the vendee’s default in subsequent payments the vendor may declare a forfeiture.”
He then recognizes that there is an exception to this rule where the overlooked defaults are repeated and persistent and lays down the exception in the language quoted by my Brother in the second paragraph of the quotation. The instant case falls clearly within the rule I have quoted and not within the exception. When defendant made known the fact that he had bought the contract he was! promptly notified that the contract was at default; one payment of past due instalments was accepted; when he persisted in nonpayment of the instalments he was first given notice by registered mail, another was given personally and he was given 12 days in which to pay before the proceeding was instituted; he then had under the statute (Act No. 243, Pub. Acts 1917 [Comp. Laws Supp. 1922, § 13253]) 30 days after the judgment in which to pay the amount due. The trial judge correctly disposed of the case. The following language of Justice Ostrander in Patterson v. Hogstein, 183 Mich. 470, where but technical defenses were made in a summary proceeding, is quite appropriate:
“We are referred to no authority sustaining either proposition, and no good reason is given, and we know of none, for regarding them as meritorious. Complainants elected in June, 1913, to declare the contract, forfeited. Out of abundant caution, notice of this election was repeated. Defendant owes a sum of money, by reason of which and complainants’ election he is wrongfully in possession of the premises.
“The judgment saves all of his rights, and is affirmed.”
The judgment in the instant case will likewise be affirmed.
Bird, C. J., and Shaepe, Steeee, Wiest, Clark, and McDonald, JJ., concurred.
Justice Moore took no part in this decision. | [
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Fellows, J.
On May 24, 1923, after negotiations between the parties, defendant wrote plaintiff, the following letter:
“This is to confirm the agreement of yourself and •the Parker Plow Company as traveling salesman, commencing not later than July 15, 1923, or sooner if possible. Salary twenty-five hundred a year and expenses when áway from home. Salary payable on demand when earned. The territory you will work will be Michigan, Ohio, Indiana, Wisconsin and Minnesota.”
Plaintiff testified that upon receipt of this letter he wrote defendant a letter unequivocally accepting the offer, agreeing to begin work not later than July 15, 1923, or sooner if possible, and continue for a year. There is sufficient testimony of mailing this letter to take that question to the jury. Plaintiff commenced work for defendant and continued in its employ until November 28th following, when defendant notified him his services were no longer wanted. This action is brought to recover for damages claimed to have been occasioned by such discharge. The trial judge directed a verdict for the defendant on the ground that the contract was within the statute of frauds because it was not to be performed within a year and that the letter above quoted was not sufficiently definite to satisfy the statute.
No point is made that the statute may not be satisfied by correspondence as well as by formal contract. In the correspondence the performance of the contract was to begin July 15 “or sooner if possible.” By its terms, plaintiff could have commenced work the day he sent his letter of acceptance or the following day (Dykema, v. Story & Clark Piano Co., 220 Mich. 600 [27 A. L. R. 660]). This court has uniformly recognized the rule that' a contract is not within the statute if by its terms it is capable or possible of performance within the year. In the recent case of Epstean v. Mintz, 226 Mich. 660, it was said by Mr. Justice McDonald, speaking for the court:
“There are no provisions in the contract that would render it incapable of being performed within a year. The contract would be completely performed upon a resale of the property. It seems to have been the judgment of the plaintiff that it would be better to hold it for a couple of years or until more profitable leases could be secured. But the agreement did not bind the defendant to hold it for that length of time. He could sell whenever he wished. If by the terms of the contract it was capable of being completely performed within one year, it was not void under the statute of frauds, and this is true even though the parties intended that it should extend over a longer period." In Smalley v. Mitchell, 110 Mich. 650, this court said:
“ ‘The mere fact that a contract may or may not be performed within the year does not bring it within the statute. The rule is that if, by any possibility, it is capable of being completed within a year, it is not within the statute, though the parties may have intended and thought it probable that it would extend over a longer period, and though it does so extend.’ ”
See, also, Herron v. Raupp, 156 Mich. 162; Caplis v. Monroe, 228 Mich. 586; Wise v. Yunker, 223 Mich. 203; Dykema v, Story & Clark Piano Co., supra. In the instant case the contract was possible of performance within a year and was not within the statute.
The proposal of defendant does not in specific terms fix the period of employment, and, unless the fixing of a yearly salary is some evidence of employment for a year, the time is not fixed and the contract in this regard indefinite. We think upon this branch of the case Loew v. Hayes Manufacturing Co., 218 Mich. 595, is controlling. It was there held (we quote from the syllabus):
“An offer in á contract of employment reading ‘We will agree to pay you at the rate of $6,000 the first year, $6,600 the second year, and $7,200 the third year/ may fairly be inferred to contemplate a hiring for three years, and, when accepted, will be construed to result in a hiring for three years.”
The significance of this case goes beyond the holding quoted. This court there recognized that there was a conflict in the holdings, but we quoted with approval from the case of Maynard v. Royal Worcester Corset Co., 200 Mass. 1 (85 N. E. 877), in which the Massachusetts court held that the fixing of an annual salary imported an annual employment, and, standing alone, was sufficient to support a finding that there was a hiring for that period. A large number of cases are cited by that court to sustain such holding, which we need not review; they will be found in the quotation in the Loew Case. Beyond that our own cases have a tendency to sustain the Massachusetts rule. Among them see Jackson v. Anderson Forge & Machine Co., 222 Mich. 221; Franklin Mining Co. v. Harris, 24 Mich. 115; Sines v. Sup’ts of Poor of Wayne Co., 58 Mich 503; Reynick v. Allington & Curtis Manfg. Co., 179 Mich. 630; Chamberlain v. Detroit Stove Works, 103 Mich. 124; Graves v. Lyons Bros. & Co., 110 Mich. 670.
It follows that the judgment must be reversed and a new trial granted. Plaintiff will recover costs of this court.
Bird, C. J., and Sharpe, Snow, Steere, Wiest, Clark, and McDonald, JJ., concurred. | [
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Bird, C. J.
Plaintiff went to trial with the defendant on the issue as to whether he placed the sum of $1,280 in the hands of defendant on July 28, 1916, under its promise to deposit for him 4,000 Russian rubles in the Imperial Russian Savings Bank at Egumieu, and that if it failed to deliver to plaintiff a savings book with a credit of 4,000 rubles of that bank within three months it would return to him the $1,280.
Plaintiff shows that defendant made him such a promise, but never delivered to him the savings book nor returned to him the $1,280. The defendant denied, that it made such an agreement. The matter was submitted to a jury and they found for plaintiff a verdict of $1,280, plus interest thereon from the end of the three months to the day of trial.
Defendant gave plaintiff the following receipt:
“Highland Park State Bank.
“Highland Park, Mich.,
July 28, 1916.
“Received from Wladimir Skuratowicz, 117 Cott. Grove, Imperial Russian Savings Bank, Egumieu, Russia, book in America by Wladimir Siemionow Skuratowicz, 4,000 rub.
“Foreign Dept.,
“R. M. W.”
The receipt did not show the entire agreement, but parol proof was admitted to supply such portion of the agreement as was not evidenced by the receipt. Counsel claim that parol proof was not admissible to vary or contradict the terms of the receipt. It is claimed the case of Karnov v. Goldman, 229 Mich. 551, controls. We do not think that case is in point. Attention was called especially to the fact, by Chief Justice Clark, who wrote the opinion, that in that case the receipt was incorporated within a contract, and, therefore, did not come within the rule that a mere receipt may be varied or contradicted by parol evidence. In the case at bar the receipt was not in corporated in any contract. Therefore, it is obvious that the holding in that case does not apply.
But it is argued that the contract in the Karnov Case was substantially like the present one if we consider the receipt in connection with the memoranda which the officer in charge of the foreign department of the bank made When the transaction was had. The memoranda which defendant made far its own convenience appears in the following form:
“Highland Park State Bank, Highland Park, Michigan, U. S. A.
No. 93,042.
Application.
To Receive Bank Book from the Imperial Savings Bank.
To Egumieu................Imperial Savings Bank,
City — Egumieu,
Province — Minsk.
Amount of rubles — 4000 R., four thousand rubles.
Name of depositor — Wesdimis Smenov Skuratowicz.
His age — 28 years.
Name of father — Semen Zachrov Skuratowicz.
Name of mother — Antonyna Ivancovia Skuratowicz.
If married, name of wife — single.
Place where he was born: 1. Village of Shbun.
2. Township of Veynukj.
3. County of Egumieu.
4. State of Minsk.
Occupation — Laborer.
“In case of my sudden death the money which belongs to me should be given to Alexander Vykentin Skuratowicz, brother.
“Signature of depositor — Cannot write.”
It will be noted that the memoranda was on a separate paper and simply contained a recital of information which a banker might desire in dealing with a foreign customer who could not talk English. The memoranda in Karnov v. Goldman contained a contract. The memoranda in the present case does not. The memoranda in the Karnov Case contained a limitation of liability. The memoranda in this case contained no such limitation. The memoranda in the Kamov Case was signed. The memoranda in the present case is signed by no one, and it does not appear that plaintiff was informed of its contents or that it was intended to be any part of a contract.
Much of defendant’s brief is taken up with argument on a different state of facts than was presented at the trial. An ordinary case of the sale of foreign exchange is used as a basis for much of counsel’s argument. This was not the ordinary sale of foreign exchange. The plaintiff says, in substance:
“When I gave defendant the $1,280 to deposit for me in the bank at Egumieu it promised me the savings book of that bank with a credit of 4,000 rubles within three months or the return of my money.”
That was the issue and that issue was resolved against the defendant by the jury. Defendant proffered a special question, which was submitted to the jury, as to whether defendant made such a promise to plaintiff, and the jury answered in the affirmative. This must settle the question of fact. The case is ruled by Cechanowicz v. Highland Park State Bank, 224 Mich. 37.
Some complaint is made about the rule of damages which the court gave to the jury. The jury were instructed if they found for plaintiff he would be entitled to interest from the 28th day of October, 1916, the day of default. We think there was no error in this. Had the defendant kept its agreement plaintiff would have had his money returned to him on that date. On that day the bank was in default. If it has wrongfully had plaintiff’s money since that date it should pay him the* legal rate of interest. Counsel calls our attention to the fact that this measure of damages has recently been approved in the United States court in Hicks v. Guinness, U. S. Adv. Ops. 1925-26, p. 79 (46 Sup. Ct. 46).
We think there is no merit in the remaining assignments.
The judgment is affirmed.
Sharpe, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
Justice Moore took no part in this decision. | [
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North, J.
Appellant, William J. Heidt, on trial by jury was convicted of conspiracy to obstruct justice as set forth in the Second count of the information filed in this case in which a large number of alleged coconspirators were also made defendants. Prior to the trial of the instant case approximately 20 of the defendants so charged pleaded guilty; as to others, the prosecution was dismissed as a result of motions made in their behalf; and still others charged in the information were convicted before tlie trial of this case in other cases arising out of the same or somewhat similar violations of law and therefore were not prosecuted in the instant case. As this case went to trial in March of 1942 there were 69 defendants, two of whom elected to he tried by the court and the remaining 67 were tried by the jury. Of those who went to trial before the jury, 14 were dismissed by the court, 26 were acquitted by the jury, and 27 were found guilty. Appellant was one of the 27 who were convicted.
In general terms it may be said that the alleged obstruction to justice is claimed by the prosecution to have resulted from a conspiracy among the convicted defendants to carry on in Wayne county in violation of law gambling of the type known as the handbook business; some of such defendants being the owners or operators of such handbooks, others being law enforcement officers who in consideration of “protection money” being paid to them desisted from enforcing against such owners or operators the laws which penalized gambling.
The fact that a conspiracy existed as charged in the second count of the information is not challenged by appellant, nor could it under this record be successfully challenged. But it is strenuously asserted in appellant’s behalf that the testimony upon which the people relied is not sufficient to sustain his conviction as having been a party to the alleged conspiracy. In behalf of appellant it is urged that the people did not prove by competent evidence beyond a reasonable doubt that he knowingly and wilfully conspired to obstruct justice as charged, or'that he had knowledge of such conspiracy, or that he actively participated in or did any act in furtherance of the alleged conspiracy. In this connection it is appellant’s contention that “the only evidence adduced by the prosecution against the defendant, William Heidt, was that during the time the alleged conspiracy was in operation, defendant occupied tlie position of assistant deputy superintendent of police with the duty of paying special attention to gambling, vice conditions and liquor conditions,” and that such was not sufficient to establish defendant’s connection with the alleged conspiracy, and was not of such a character as to justify the prosecution in offering proof of hearsay acts or declarations of other alleged conspirators to establish defendant’s connection with the conspiracy, it being claimed by appellant there was no other independent evidence connecting him with the conspiracy. It is obvious that if the record does contain competent testimony, other than the so-called hearsay statements and declarations just above referred to, sufficient to justify a finding by a jury that appellant was a party to the alleged conspiracy, then appellant’s position is not tenable; and further, if such competent evidence is found, under the well-established rule in this jurisdiction the challenged statements of other co-conspirators were admissible in evidence.
As bearing upon the phase of this appeal just above noted, we find in this record the following. The information covers the period from January 2, 1935, to August 1, 1940. Appellant was a member of the Detroit police force from 1909 to 1940. For some time prior to August 8, 1936, he was precinct inspector. On the date just noted he became chief district inspector and shortly thereafter chief inspector of the metropolitan police. December 1, 1936, he was promoted to assistant deputy superintendent of the police force and s.erved as such until January 15,1940, when he became the deputy superintendent of police and continued as such until August 7, 1940. In his various positions on the police force appellant, among other duties, was charged with the enforcement of laws pertaining to gambling, vice conditions and liquor conditions. But appellant points out that according to testimony given by Louis Berg, who as deputy superintendent was the immediate superior of appellant, the policy of enforcement from December, 1936, to January, 1940, was set by commissioner of police Heinrich Pickert and the then superintendent of police, Fred Frahm, and orders with reference to the enforcement of laws relating to gambling were actually given by superintendent Frahm, and not by Heidt. However, Berg also testified: “The complaints went into the assistant deputy superintendent’s (Heidt’s) office. I do not know what he did. I can’t recall where they went after the middle part of 1938 and early part of 1939.” And on his direct examination Heidt, in answer to the question as to what were his duties as assistant deputy superintendent, testified that among his duties was that of paying “special attention to gambling and vice and all liquor licenses.”
It is the people’s theory that in so far as Heidt benefited by the alleged conspiracy, he operated through one of the people’s witnesses, Raymond "W. Boettcher, to whom immunity was granted, and one Elmer Ryan. Boettcher was connected with the police department from 1922 to 1940. At least from November, 1936, he knew both Heidt and Frahm. Boettcher testified he had known Heidt all the time Boettcher had been in the police department. According to Boettcher’s testimony in May, 1938, he made an arrangement with one Edward Hall where-under Hall, who operated a handbook, collected police protection money from a number of handbook operators located in the precinct in which Boettcher was then inspector and elsewhere in Wayne county. The money so collected by Hall and turned over to Boettcher each month varied from $2,400 to $2,600. Of this protection money Boettcher made a monthly contribution of $1,250 to the so-called down-town pool, but be kept or otherwise disposed of the balance. Boettcher also testified that he had known one Elmer Ryan for 15 years. Elmer Ryan was an active participant in furthering, aiding and abetting the conspiracy charged in this information; and in another prosecution was convicted of a somewhat similar conspiracy to obstruct justice. See People v. Ryan, 307 Mich. 610. In this record there is testimony that Elmer Ryan received money collected in furtherance of this conspiracy, and that he directed distribution of certain moneys so collected. .Further, there is testimony from which the inference might well have been drawn by the jury that after Heidt became assistant deputy superintendent of police and during the period he is claimed to have accepted police protection money, he did not continue to enforce the law against gambling, particularly handbooks, with the zeal and effectiveness which characterized his official conduct in that respect in earlier years when he was a precinct inspector.
The foregoing gives to some extent the background against which the jury was justified in considering Boettcher’s testimony, from which we now quote quite at length. ' -
“The defendant Heidt lived on Wiltshire in the years of 1938 and 1939. I have been out to his home with Elmer Ryan. Four or five times, I rode out to Connors and Gratiot and Outer Drive and Gratiot with Elmer Ryan and have seen William Heidt in that vicinity. I got out of the car while he met him around the corner. That is right across from the airport. Ryan met Heidt. As a rule, after I got through giving- Frahm and the rest of them the money I used to turn the balance over to Elmer Ryan. (He as a rule called up Mr. Heidt on. the telephone, either at'my house or at the Wonder Bar. ) Following the conversation from my home or the Wonder Bar, Elmer Ryan and I would go out to either this location at the airport or out to Heidt’s home. When we used to come out there to his home, he (Ryan) used to park the car a door or two from Heidt’s house, and he would go in, be in there about 5 minutes, and come out. I remained in the car, out in front.
“On the occasions that I speak of, in the airport, he used to leave me out at Connors and Gratiot or Outer Drive and Gratiot while he drove up the street. He would he gone about 5 or 10 minutes. (He would tell me he was going to Mr. Heidt. )
■ “When Elmer Ryan has let me out while he would go up the street, I have seen the defendant, William Heidt, in that vicinity * * * with his department car, with a brown w-indbreaker and a light gray cap on. That is while I was waiting for Ryan on one of these occasions. He (Heidt) was going in the same direction that Ryan was or had been. 5 to 10 minutes after I saw the defendant, Heidt, going in that direction, Elmer Ryan came back.
“ (Ryan did tell me what he was going to do when he went out to see Heidt. He said he was going to Heidt’s house to pay him $1,000. )
“This started I would say early in 1937. About 20 times Ryan and I either went to Heidt’s home or to this — I have seen Heidt come to the door of his home and leave Ryan in. I can’t say I have ever seen him let him out. * * *
‘ ‘ Q. Did you ever have a talk with Elmer Ryan or Freddie Frahm with reference to the defendant Heidt going to New York with them to' a prize fight?”
Over objection of Heidt’s counsel the witness answered:
“In 1936, the latter part of 1936, I rode to the Michigan Central Railroad depot one night with Elmer Ryan to get three railroad tickets for a fight.' # * * And a day or two later he gave me the money to get the tickets, three tickets, from John Roxborough, because he lived on Holbrook and John R, and it would be easier for me to pick up the tickets then (than) for him, and take them to Frahm and Bill Heidt. ’ ’
The trial court overruled the motion by Heidt’s counsel to strike the testimony just above quoted on the ground that it was hearsay and not an act or declaration in furtherance of conspiracy. The witness continued: “It was some popular fight, because the tickets were around $24 to $26.” On cross-examination by counsel for appellant, Boettcher testified:
“I went to the vicinity of Mr. Heidt’s home, and Mr. Ryan’s. Those trips ran from 1937 up until August of 1939. * * * I do not know how many months they occurred in 1938. It would be in the evening, I would say between 8 and 11 o ’clock. All these trips that I have testified to occurred in the evening, after dark.”
The testimony above quoted was preceded by other portions of Boettcher’s testimony to the effect that he had collected large amounts of money either directly or indirectly from various defendants who operated handbooks, and that under direction of Elmer Ryan, Boettcher had paid monthly out of moneys so collected large sums to certain named city and police officials, some of whom were defendants the instant case.
In general the objections of Heidt’s counsel hereinbefore noted were that the testimony was hearsay and not competent to establish conspiracy. Whether the objections were well founded must be determined in the light of the following law.
‘ ‘ Conspiracy may be established by circumstances and may be based on inferences.” People v. Roxborough, 307 Mich. 575, 584, citing People v. Robinson, 306 Mich. 167, 175.
“Before snch acts and declarations (of alleged coconspirators) can be admitted in any event, a prima facie case of conspiracy must appear to the trial court, and then the acts and declarations during performance of the conspiracy can be submitted the jury, to be used by them if they find such conspiracy existed, but to be discarded in case it is established. Snch acts and declarations cannot used to show the conspiracy without other independent evidence. The common design or concert a common enterprise is the only basis for the admission of such acts and statements. But, like most other facts, it is not required to be established by positive proof. It may be, and, generally is, supported by circumstantial evidence, and it is sufficient there is evidence tending to establish the fact and from which the jury may fairly infer it.” 2 Gillespie, Michigan Criminal Law & Procedure, p. 1295, 1000; citing Michigan cases.
In People v. Tenerowicz, 266 Mich. 276, 295, we approve the following instruction given by the trial court:
“ ‘Before you can find that any defendant is bound by any act or declaration of any other defendant, it is necessary that you find that the defendant to be bound by said act or declaration was a party to such conspiracy with the defendant doing said act or making said declaration in furtherance of the object of said conspiracy.’ ”
The trial judge in his general charge to the jury covered the phase of the law now under consideration in terms which were fully as favorable to the defendants as they were entitled to have such in structions given. And, specifically as to defendant Heidt tbe trial court charged the jury:
“I charge you with reference to the defendant William Heidt that before you may consider Boettcher’s testimony as to what defendant Ryan told him, you must first be satisfied that the conspiracy as to defendant Heidt has been proven by independent evidence, and that he was connected therewith, and participated therein.” !
And further it may be noted that just shortly preceding the above-quoted portion of the trial court’s charge, the circuit judge, evidently having in mind the status of Boettcher as a witness, also charged the jury:
“It is universally accepted that the testimony of one who claims to be an accomplice is liable to grave suspicion and should be acted upon with great caution;' * * * the jury should subject such testimony to careful examination and consider the influence under which the testimony is given and whether the purpose of the witness is to shield himself from punishment, to obtain some benefit for himself or to gratify his malice. ’ ’
Our review of the phase of the instant case now under consideration convinces us that the testimony of Boettcher to which objections were made was properly received because, aside from the so-called hearsay testimony, there was an abundance of testimony tending to establish facts and circumstances from which the jury might well have and did conclude that appellant was a coconspirator with other defendants, that he knowingly and wilfully conspired with others of the defendants to obstruct justice as charged, and that he actively participated such conspiracy. We do not overlook the fact that defendant Heidt testified as a witness in his own behalf and in effect denied all or at least practically all Boettcher’s testimony which tends to incriminate Heidt. He denied that he ever saw Elmer Ryan in his (Heidt’s) home and also denied that he ever received any money from Ryan. Nor are we unmindful of the portions of the record which seems to disclose that on other occasions while under oath Boettcher testified to some facts and circumstances which are inconsistent with” his testimony in the instant case. For example, on cross-examination Boettcher admitted that in the' examination.of this case he was ashed: “Do you know whether or not he (Heidt) was acquainted with Elmer Ryan?” His answer was: “I never saw him in the man’s company.” However the measure, of credibility to be given to Boettcher’s testimony or any other testimony submitted in this case was for the jury; and on this record we cannot say that there was not sufficient evidence to justify submitting the issue of appellant’s guilt to the jury, that the testimony was not sufficient to “support the trial court’s denial of appellant’s motion for a directed verdict” or that the verdict of the jury was contrary “to the great weight of the evidence. ’ ’
We find no prejudicial error in the phase of this record of which this appellant complains and which brought into this case references to another conspiracy to obstruct justice in Wayne county in which Duncan McCrea, Harry Colburn and Sam Block were involved and in which McCrea and Colburn were prosecuted and convicted. Some of the witnesses in the instant case were the same witnesses as those who had testified incident to the other conspiracy; and since certain of defendants in the instant case were defendants in the other conspiracy case which embodied a similar phase of law violation and in that respect was somewhat overlapping, it was obviously quite impossible to wholly exclude from the instant case testimony relative to facts and circumstances incident to the other conspiracy prosecution. Certainly the testimony of that character this case was not such as deprived this appellant a fair trial. And in this connection it may be noted that much of the testimony pertaining to the McCrea conspiracy and of which appellant complains in this respect was given by the people’s witnesses, Block and Colburn; but during the whole course of their testimony no objection whatever was made by appellant or his counsel.
Notwithstanding appellant’s contention to the contrary, we do not find there was “a fatal material and prejudicial variance between the charge alleged in the information and the evidence adduced” against Heidt. Instead, the testimony introduced which had a bearing upon the issue as to whether or not Heidt was one of the coconspirators was clearly within the charge set forth in the information. It is true that some testimony was received which was relevant to the charge made as against other alleged conspirators, but which did not pertain to Heidt. Nonetheless, it does not lie in the mouth of appellant, as to whom there' was proof that he was a party to the conspiracy, to complain merely because testimony was received which was relevant and material to the charge made against other parties to the same conspiracy but did not in any way tend to connect Heidt. This is an unavoidable circumstance which of necessity arises from the fact that, as stated in United States v. Kissel, 218 U. S. 601 (31 Sup. Ct. 124, 54 L. Ed. 1168), “A conspiracy is a partnership in criminal purposes.” There is no such thing as a one-man conspiracy.
In presenting this phase of Heidt’s appeal, it is stated in his brief: ‘ ‘ The information charges a con spiracy to obstruct justice by permitting tbe operation of handbooks in the County of Wayne. It is the theory of the prosecution that there was one general conspiracy; that the conspiracy was a continuing one; that some of the defendants dropped out, others dropped in, but that its purpose was the same throughout its existence.” The foregoing is a' fairly comprehensive and accurate statement of the charge made in the information and of the people’s theory. But we are not in accord with appellant’s complaint wherein he states:
“However, the evidence offered by the prosecution does not establish one conspiracy, but, on the contrary, establishes several separate and distinct conspiracies * * * commencing at different times, operating in different localities and composed of separate and distinct conspirators.”
The answer to this complaint is, the record discloses that all of the conspiracies which appellant would label as separate and distinct, even though the acts occurred at different times and in different localities within Wayne county, were germane to the general conspiracy charged as one in which the parties concerned sought to obstruct justice by permitting the operation of handbooks in Wayne county. In People v. Tenerowicz, supra, 282, we said:
“Further, an indictment alleging conspiracy as to such neglect of duty (to enforce criminal law) will not be rendered bad for duplicity merely because such conspiracy relates to more than one offense. If the misconduct charged is all germane to one course of wrongdoing there is only one conspiracy. It may be charged and punished as a single conspiracy. ’ ’
In holding against appellant’s contention now under consideration we deem it unnecessary to re peat what we have previously said relative a contention made under quite similar circumstances People v. McCrea, 303 Mich. 213, and People v. Ryckman, 307 Mich. 631. We merely note that one paragraph of the headnotes in the latter case reads:
“Where testimony shows there was one basic conspiracy and that defendant police officers actively participated in common design and purpose thereof to obstruct justice it was not necessary that they know other coconspirators or have knowledge of their activities or of the scope of the conspiracy; hence claims that the evidence presented by the prosecution showed a multiplicity of conspiracies and constituted an omnibus charge was without merit.”
Another ground for reversal asserted by appellant is as follows:
‘ ‘ The constitutional and legal right of a defendant to a full and fair hearing in a criminal trial is denied him where he is forced to go to trial with some 50 other persons and defend himself against testimony which involved not only the 50 other persons on trial, but also testimony which involved some 70 other persons who were not on. trial and who offered no testimony in their behalf.7’
This same contention has been urged under very like circumstances in cases recently appealed to . this Court. In those cases the gist of the contention was of the same purport as appellant makes, and which is stated in his brief as follows:
“We maintain that it was impossible for any jury to properly digest this testimony and connect it with the individual defendant concerned, for it could not be expected that a jury could discriminate between evidence which implicated an individual and evidence which was consistent with his innocence.”
In the instant case the verdict of the jury conclusively indicates that a discrimination was made between those defendants whose gnilt was estab- and those whose guilt was not established. above noted, of the 53 defendants as to whom the question of their guilt was submitted to the jury, verdict as to 26 was not guilty and 27 were found be guilty. Further, it cannot be said from this record that the jury’s verdict of guilty as to appelHeidt was not sustained by competent proof. a case presenting very similar conditions, Chief Justice Stark, speaking for the Court, said:
“Their (defendants’) objection to the scope of the prosecution and the length of time involved in the trial is without merit. They, together with many others, were charged with a conspiracy to obstruct justice, and the scope of the proofs necessarily included the activities of all persons involved in carrying on the common purpose and design of such conspiracy.” People v. Ryckman, supra, 643.
In People v. Tenerowicz, supra, 285, it is said: “An indictment may be as general and indefinite as the conspiracy which it seeks to punish.” Citing Bailey v. United States (C.C.A.), 5 Fed. (2d) 437. We are not unmindful that there are numerous cases, some of which are cited in appellant’s brief, which criticize the prosecution in one trial of a large number of defendants. ' However, we are of the opinion that no hard-and-fast rule governing the trial of a plurality of defendants charged with the same offense can be stated. Instead, determination must be made in the individual case upon giving due consideration to the character and scope of the conspiracy charged and to the nature of the alleged participation therein by the respective defendants. In the instant case, as in former cases presenting the same question under like circumstances, we hold that appellant was not deprived of his constitutional right to a fair and impartial trial.
In presenting appellant’s contention on the phase of this appeal just above considered, one of the cases upon which he relies and from which he quotes at length is Marcante v. United States (C.C.A.), 49 Fed. (2d) 156. In that case a State-wide conspiracy “to manufacture, transport, possess, and sell intoxicating liquors” was charged, and conviction of the defendants was set aside. In substance reversal was planted on the ground that there was-no evidence tending to prove that some of the groups involved had any knowledge whatever of a like conspiracy to which other groups included among the defendants and located in different localities were parties. Nor, as the court held, was there any evidence that certain of the defendants “had any part in carrying out (the) purpose of the comprehensive conspiracy charged.” Such a determination. cannot be made under the record in the instant case. In that particular there is ample ground for distinguishing the two cases. In the Marcante Case the court expressly distinguished the holding in Allen v. United States (C.C.A.), 4 Fed. (2d) 688, wherein a paragraph of the headnotes reads:
“One knowing that others have combined to violate law, who co-operates knowingly to further object of conspiracy, becomes a party thereto, though he is not acquainted with each of the other conspirators, and may know but one of them. ’ ’
And as applicable to the instant case it may further be noted that in the Marcante Case the court said:
‘ ‘ There is no doubt that there can be a conspiracy to violate the liquor laws in a dozen different locali ties; such a conspiracy may be a continuing one; actors may drop ont, and others drop in; the details of operation may change from time to time; the members need not know each other, or the part played by others; a member need not know all the details of the plan or the operations; he must, however, know the purpose of the conspiracy and agree to become a party to a plan to effectuate that purpose.”
We think the law as above stated fits the instant case wherein the parties who were charged and conr victed knowingly cooperated in an effort to operate handbooks in Wayne county free from intervention of law-enforcing officers in consideration of the payment of protection money. Careful consideration of the records and briefs discloses no justification for a conclusion other than affirmance. The convic-' tion and sentence of appellant are affirmed and the case remanded for execution of sentence.
Stash, C. J., and Cass, Butzel, BttshNell, Shabpe, Boyles, and Eeid, JJ., concurred.
(Admitted over objection of Heidt’s counsel.)
(Admitted over objection of Heidt’s counsel.) | [
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Starr, J.
In January, 1942, plaintiffs, as representatives of the estate of Charlotte Gr. Breitung, deceased, filed bill of complaint to quiet title .to mineral rights in certain lands in Iron county, to construe a certain instrument of conveyance, and to determine the rights of the several defendants in said lands. Defendants Herman Holmes and wife Christina Holmes and Louis Burridge and wife Edith Burridge filed answer and cross bill denying plaintiffs’ right to the relief sought and asserting claim to the mineral rights in a part of the lands. They appeal from a decree dismissing their cross bill and granting plaintiffs substantially the relief sought. The rights of other defendants were determined by said decree, but they have not appealed. Therefore, we are here concerned only with the issues presented as between plaintiffs and appellants. This being a chancery case, we consider the same de novo.
It appears that one Edward Breitung, who owned considerable real estate and mineral interests in the upper peninsula, died intestate in 1887. He left surviving, his widow Mary Breitung, also referred to as Mary Kaufman, and his son Edward N. Breitung. His real estate descended to his said son Edward N., subject to the dower rights of his widow Mary, which rights were extinguished by her death August 29, 1923. On September 20, 1923, said Edward N. Breitung and wife Charlotte conveyed by deed to Sam Luke undivided fractional interests in several described parcels of land in Iron county, a part of which interest said Edward N. Breitung had inherited from his father, and a part of which he had acquired by direct conveyance from others. Following the description of said lands, the deed provided in part:
“Excepting and reserving also from the above-described interests in the several tracts of land described herein unto the said parties of the first part and to their heirs and assigns, forever, all ores and minerals situated in, upon or under said lands, or .any part or parts thereof, and the right at all times to enter upon said lands, or any parts thereof and there to explore, search, dig and mine for ores and minerals, and freely carry on the business of mining removing ores and minerals, and for such purpose or purposes to take, use and occupy so much and such parts of said land and for such term of time as said first parties their heirs or assigns shall deem expedient, without any let, hindrance or interference by the second party,- or the heirs or assigns of the second party, prqvided that if the said first parties or their heirs or assigns shall require the surface of said land, or any part thereof, for permanent occupancy for the purposes aforesaid, or shall damage any part of the surface of said lands, or the improvements thereon, said first parties or their heirs or assigns so occupying or so damaging shall pay to the said second party, or to his heirs or assigns, for the said occupancy or for the damages so caused, but not exceeding in amount the actual prior market or salable value of the part or parts of said lands so occupied or damaged, together with the actual salable value of buildings, structures or fences or other improvements-that shall then be on the part or parts of said land so occupied and belonging to the said second party or to his heirs or assigns, conyeying hereby any and all rights of dower which accrued to Mary Kaufman, formerly known as Mary Breitung, the widow of Edward Breitung, late of the city of Marquette, Michigan, deceased, the said Mary Kaufman having departed this life on August 29, 1923, whether the undivided interest above specified are correctly stated or not, it being the express purpose of this instrument to convey to said second party, his heirs and assigns, the entire remainder of the interests of the heirs at law of the said Edward Breitung, deceased, in and to the lands described herein other than any interests that may have been heretofore conveyed, so that the'entire remaining interest in said lands of the late Edward Breitung, deceased, may be by this instrument conveyed to the second party, his heirs or assigns.”
The above-mentioned deed of September 20, 1923, to Sam Luke is referred to in the record and briefs as the "crucial deed,” and we shall so designate it in this opinion. The construction of the above-quoted provisions of the deed presents the principal issue in controversy in this suit. The grantors and grantee having died prior to the trial, we do not have the benefit of their testimony.
By two deeds acknowledged October 5, 1923, Sam Luke and wife conveyed to defendant Herman Holmes the fractional interests in Iron county lands (except one parcel) which Luke had acquired by the above-mentioned crucial deed from Edward N. Breitung and wife. Both of said deeds to Holmes expressly excepted and reserved all minerals, and further stated that it was intended to convey all right," title, and interest which Luke had acquired "by virtue of a certain deed (crucial deed) from Edward N. Breitung and wife.” It appears from the record that defendant Louis Burridge acquired from defendant Holmes one-half of his interest in the lands in question.
In November and December, 1923, Edward N. Breitung conveyed whatever interest he had in said lands to his wife Charlotte Breitung. She died in July, 1936, and the representatives of her estate are plaintiffs in the present suit.
Plaintiffs contend that the crucial deed excepted and reserved to the grantors, Edward N. Breitung and wife Charlotte, the mineral rights in all lands therein described; and that such mineral rights are now owned by the estate of said Charlotte Breitung, deceased. Appellants contend that the crucial deed did not except and reserve mineral rights in that part of the lands which Edward N. Breitung had inherited from his father, but excepted and reserved mineral rights only in that part which he had acquired by direct conveyance from other persons. That is, appellants claim that, as to the lands which Edward N. Breitung had inherited from his father, the crucial deed conveyed to Sam Luke (who subsequently conveyed to defendant Herman Holmes). both the land and the minerals, without exception or reservation.
The parties stipulated as to which of the parcels in question said Edward N. Breitung had inherited from his father and which parcels he had acquired by direct conveyance from others. For the purpose of this opinion it is unnecessary to set forth detailed descriptions of the interests in lands conveyed by the crucial deed and involved in this suit.
The crucial deed should be construed so as to give effect to the intention of the parties, and such intention shall, if possible, be ascertained by viewing the deed from its four corners and considering all its provisions. There being some uncertainty as to the meaning of certain terms of the deed, we may also properly consider the surrounding facts and circumstances in determining the parties’ intention. In Thomas v. Jewell, 300 Mich. 556, 558 (139 A. L. R. 1335), we said:
“It is a general rule that in interpreting deeds and other written instruments, the primary object is to determine the intention of the parties from the instrument itself. If the instrument indicates an ambiguity, then resort may be had to extraneous matters. ’ ’
In the case of Derham v. Hovey, 195 Mich. 243, 247 (21 A. L. R. 999), we said:
“In interpreting devises and. reservations in deeds, the purpose is to discern the intention of the testator, or grantor, from the words employed; the subject matter and attending circumstances to be considered where the words have a doubtful meaning.”
See Glidden v. Beaverton Power Co., 223 Mich. 383; Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264; Ryan v. Wilson, 9 Mich. 262; 8 R. C. L. pp. 1047, 1048, § 101; 16 Am. Jur. p. 600, § 287; 26 C. J. S. pp. 429, 430, § 128.
Following the granting clause and the express exception and reservation of minerals, the crucial deed provided:
“It being the express purpose of this instrument to convey to said second party, his heirs and assigns, the entire remainder of the interests of the heirs at law of the said Edward Breitung, deceased, in and to the lands described herein other than any interests that may have been heretofore conveyed, so that the entire remaining interest in said lands of the late Edward Breitung, deceased, may be by this instrument conveyed to the second party, his heirs or assigns.”
It is clear that the parties did not intend the above-quoted explanatory provision of the crucial deed to nullify, limit or restrict the preceding granting clause and the express exception and reservation of minerals. Such provision merely indicated their intention to include all interests in said lands (except minerals) which grantor Edward N. Breitung had inherited from his father.
That the grantors in the crucial deed intended to except and reserve minerals in all of the lands included in such deed is indicated hy the fact that within a few months thereafter they gave to the Oliver Iron Mining Company an option covering mineral rights in seven of the described parcels. It should also be noted that the mineral rights in all the lands in question were included in the inventory of the estate of Charlotte Breitung.
The record also shows other facts and circumstances which are indicative of the intention and understanding of the parties to the crucial deed, and of defendant Holmes as a subsequent grantee from Sam Luke. When Luke and wife conveyed to Holmes, they expressly excepted and reserved all minerals, and stated in substance that they intended to convey all right, title, and interest which Luke had acquired by the crucial deed from Breitung.and wife. That defendant Holmes understood he had acquired no mineral rights from Luke is indicated by the fact that when he conveyed his interest in one of the parcels to the Oliver Iron Mining Company in 1929, he provided in his deed, “subject, however, to the mineral exceptions and reservations contained or referred to in the deed to said premises (from Sam Luke) through which the parties of the first part (Holmes) derived title thereto.” We also note that in an instrument conveying certain rights to the city of Crystal Falls for a water pipe line over two of the parcels in question (which parcels Edward N. Breitung had inherited from his father), defendants Holmes and Burridge described themselves as the owners of “an undivided one-half interest in the surface. ’ ’ It' appears that prior to the crucial deed, Edward N. Breitung and wife had conveyed other fractional interests in the lands in question to defendant Herman Holmes, and that in such deeds they had expressly excepted and reserved all minerals. The record indicates that defendants Holmes and Burridge did not question the exception and reservation of minerals in the crucial deed for many years after the deed was given, and that such exception and reservation was first questioned about 1940 by an attorney for the Oliver Iron Mining Company in connection with the above-mentioned option on minerals given by Breitung and wife.
Careful consideration of all provisions of the crucial deed and of the surrounding facts and circumstances as shown by the record convinces us that such deed excepted and reserved to the grantors Edward N. Breitung and wife the minerals in all the lands in question, regardless of whether said lands were inherited by Breitung from his father or acquired by conveyance from others. We agree with the trial court’s opinion which states in part:
“It was clearly*the intent of the grantors' (in the crucial deed) to convey an estate in fee simple, and it was equally clear that the grantors, by apt and explicit words, excepted therefrom, and carved out of the operation of the deed, the mineral right, and that intent is beyond the range of all doubt.”
Under the facts shown by the record, defendants Holmes and Burridge acquired no title to the excepted and reserved minerals by adverse possession. Their claim for contribution.of taxes is without foundation, as the testimony indicates that the lands in question were never assessed for their mineral value. The trial court did not abuse its discretion in denying their motions to reopen the case for the taking of further proofs. Other questions presented do not require consideration.
Ve conclude that the trial court’s decree properly and equitably determined the rights of the parties. The decree, in so far as it relates to the issues between plaintiffs and appellants, is affirmed. Plaintiffs shall recover costs of both courts from appellants.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Bushnell, J.
At this term of court we decided the cases of Young v. City of Ann Arbor, ante, 241, and Block v. City of Charlevoix, ante, 255. Those decisions uphold the constitutionality of Act No. 94, Pub. Acts 1933. It is, therefore, only necessary to discuss a few of the points raised in the instant appeal. Those which are covered by the opinion of Mr. Justice Potter in the Young Case will be indicated without further consideration.
Plaintiffs, residents and taxpayers of the city of Traverse City, a municipal corporation, question the constitutionality of the act and the validity of an ordinance of the city entitled:
“An ordinance to provide for acquiring and constructing by the city of Traverse City, Michigan, a project to be known as' the Traverse City Municipal Harbor and Park Development and to provide for the owning and operating of such project and for enlarging, extending and repairing of same and providing for the issuing of self-liquidating revenue bonds, the principal and interest of which are to be payable solely from the revenues derived from the operation of such project, and to regulate the use of the revenue of such project when any such bonds are issued and outstanding.”
The issues framed by a sworn bill and answer were presented to the circuit court on an agreed statement of facts. The court promptly filed an opinion in which it held that the ordinance was legally passed but that the act and some of the provisions of the ordinance were invalid in part. It found that the city was without lawful authority to issue revenue bonds on the projects named in the ordi nance. An injunction was issued, restraining defendant from entering into any contract for the sale of revenue bonds to or with the public works administration of the Federal government, and from issuing the contemplated bonds.
The parties agreed, with the approval of the trial court, upon the questions involved in the cause. The questions are set forth in the language of the stipulation :
1. “Was Act No. 94, Pub. Acts 1933, passed in full compliance with article 5, §§ 19-23, of the Michigan Constitution?”
By reference to the senate and house journals, the court determined that all formal and constitutional requirements had been properly complied with in the passage of the act. All parties agree with this finding.
The following questions have been covered and answered by the Young Case, which is controlling:
2. ‘ ‘Does the title of said Act No. 94 embrace more than one object contrary to article 5, § 21, of the Michigan Constitution ? ’ ’
3. “Does the body of said Act No. 94 embrace subject matter not expressed in the title thereof nor germane thereto?”
4. “Does article 10, § 14, of the Michigan Constitution apply to civil and political subdivisions of the State?”
5. “Does said Act No. 94 authorize civil and political subdivisions of the State to engage in works of internal improvement contrary to article 10, § 14, of the Michigan Constitution?”
6. “Does said Act No. 94 offend article 8, §§23 and 31, of the Michigan Constitution in respect of creating public utilities not therein designated?”
7. ‘ ‘ Does said Act No. 94 create a public indebtedness in respect of authorizing a pledge of the net revenues of an existing public project to tbe payment of constructing, extensions, improvements, betterments, repairs and/or replacements thereto?”
8. “Does said Act No. 94 authorize a statutory first lien upon the entire properties of said public project?”
9. “Is said lien effective only as to the revenues derived from said project?”
10. “Does said Act No. 94 authorize a public body to mortgage the revenues from said project as security for bonds issued therefor, and to confer a franchise to the purchaser at foreclosure to operate the same contrary to article 8, §§25 and 29, of the Michigan Constitution ? ’ ’
11. “Does said Act No. 94 create and confer a franchise contrary to article 8, §§25 and 29, of the Michigan Constitution in respect to authorizing a receiver to administer and operate such a project?”
The controlling cases involve sewage disposal plants, while the instant case pertains to a municipal harbor and park development. It is, therefore, desirable to amplify the answer to question No. 4. Article 10, § 14, of the Constitution reads:
‘ ‘ The State shall not be a party to, nor be interested in any work of internal improvement, nor engage in carrying on any such work, except in the improvement of, or aiding in the improvement of the public wagon roads, in the reforestation and protection of lands owned by the State and in the expenditure of grants to the State of land or other property. ’ ’
Plaintiffs argue that the State cannot permit its political subdivisions to do that which it cannot do itself. The same section was construed in Nicholls v. Charlevoix Circuit Judge, 155 Mich. 455, and we there held that the city of Charlevoix was not thereby prohibited from entering into a contract for the construction of a public wharf upon lands owned by it at the foot of a street terminating on navigable waters. Mr. Justice Moore said:
“It is doubtful if there is a city or village in the State having streets terminating upon navigable waters which is not exercising a like right.”
On a site fronting on Grand Traverse Bay, known as Clinch Park, and owned by it free and clear of all incumbrances, the city of Traverse City proposes to construct a municipal harbor and park development, comprising a harbor and yacht basin, auditorium, casino, bath house, museum, storage yard for yachts and boats, and other park and recreational facilities. Although the authorities cited in Nicholls v. Charlevoix Circuit Judge, supra, are persuasive, we might add that we take judicial notice of the fact that Traverse City is located on the waters of Grand Traverse Bay, which has long been famous as one of the finest vacation spots in America. The general locality is particularly adapted to boating, and it is only natural that the people of this section of the State are desirous of adding to the general attractiveness of the city. The project is designed to do this without adding to the tax burden of the community, through the issuance of self-liquidating bonds. The project in question seems to be authorized by article 8, § 22, conferring upon cities the power to construct and maintain parks and other works which involve the public health and safety.
12. “Does Act No. 94, Pub. Acts 1933, offend article 5, §21, of the Michigan Constitution in amending existing laws by implication?”
This question was incorrectly, answered in the affirmative by the trial court. The leading case of People v. Mahaney, 13 Mich. 481, in which Mr. Jus tice Cooley discusses the amendment of existing laws by implication, as restricted by the constitutional provision, has been cited and quoted so frequently that repetition of the language here is unnecessary. Mr. Justice North only recently applied its reasoning in People v. Stimer, 248 Mich. 272 (67 A. L. R. 552). The principles enunciated therein are equally applicable to the instant case. Act No. 94 does not offend article 5, § 21, of the Constitution.
We find nothing either in the title or the body of the act indicating it is unconstitutional on any of the grounds upon which it has been attacked. The decree of the trial court is reversed and the injunction dissolved and the bill dismissed, but without costs, the question being a public one.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, and Edward M. Sharpe, JJ., concurred. North, J., did not sit. | [
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Feab, J.
From 1916 to October 29, 1919, plaintiff was employed by Henry Ford & Son, a Michigan corporation, tractor manufacturer, as a mechanic in the experimental department. From 1915 to 1917 the company was wholly engaged in development work. Its first tractors made for use were produced in 1917, on a large order from the British "government.
Plaintiff claims he was hired at $6.50 per day for six months and was promised $15 per day thereafter if his ability warranted. He was paid $4.25 per day for six months, had some increases, and received $200 per month in 1919. He said he continued to work and draw his pay on assurances that he would be adequately compensated.
His present claim is that, while working at the plant, with his employer’s tools and materials, but in some instances from designs which he worked out at home, he made improvements on four devices for which he is entitled to royalties by virtue of express contract. The oil pipe then being' used was in three pieces and plaintiff bent a single pipe to the required shape. The fan was made of four separate blades riveted to ■ a hub and plaintiff made a fan with cross-blades in one piece. A coil box had separate brackets which were bolted both to the box and the motor and plaintiff made the box with brackets an integral part of it. The gas tank leaked and plaintiff made a new one by putting the seam on top instead of on the side, rounding the corners and adding beads for strength. He claims royalties of 2% cents each for oil pipes, 25 Gents each for fans, 7% cents each for coil boxes, and 12% cents each for gas tanks on all tractors and 12% cents each for fans on all automobiles manufactured by Henry Ford & Son and its successor, defendant herein, from 1917 to 1926, inclusive, almost $2,000,000.
The circumstances surrounding the improvement of the various devices were substantially identical, Plaintiff testified that chief engineer Farkas told him what was wanted, expressed doubt as to his ability to do it, plaintiff said he could do it but wanted royalty for it, and in each instance Farkas promised him royalties and Henry Ford ratified the promise. He designed and fashioned the devices in from two to four days each, besides doing other work.
The case was submitted to the jury for special verdict under Court Rule No. 37, §7 (1931), by 10 questions covering the claimed contract conversations as to each device. The first two questions and answers are illustrative of the form and substance of all, although there was some difference in language in each instance:
“Question No. 1: Did the following conversation take place between the plaintiff and the witness, Eugene Farkas:
‘ ‘ He asked me to make him one, and I said, ‘ O. K., ’ and I said I wanted a royalty of five cents, so that he said he would see the office. And he went in the office and he came back and he said they going to pay me two and one-half cents.
“Answer: Yes.
“Question No. 2: Did the following conversation take place between Mr. Henry Ford and Mr. Pajalich, the plaintiff, in this case:
“I told Mr. Henry Ford that Mr. Farkas agreed, the chief engineer, to pay me two and one-half cents or two and one-fourth cents, for each oil pipe; and he say, ‘That is O. E. whatever tie boys arrange with you, go ahead.’
“Answer: Yes.”
The finding of the jury is final upon the facts submitted to it. But there were other issues of fact in the case and, under Cqurt Rule No. 37 (1931), they remained for the determination of the court. Sullivan v. Bennett, 261 Mich. 232 (87 A. L. R. 791). Moreover, the finding of the jury was as to facts only and it remained for the court, accepting the facts so found by the jury, together with other facts found by itself, to determine whether an enforceable contract had been established and, if so, its scope. The court held that the contract counted upon had not been established, found other facts which it also held prevented recovery, and entered judgment for defendant.
Under Court Rule No. 37 (1931), we think that all essential issues of fact should be submitted to the jury. Reservation to the court of issues not so submitted is intended primarily to cover minor issues usually not fully appreciated at the time of trial. However, the rule also affords the opportunity to have the issues determined by court or jury, as may be agreed upon. In the instant case counsel for plaintiff complains of the practice. The record shows that he agreed to the questions as submitted and did not ask for the submission of others. We must accept the situation as we find it and pass upon the case as it is presented to us.
Plaintiff claims the answers established a contract by Henry Ford & Son to pay plaintiff the stated sum on every device improved by him and used by it, and its successor, as long as it used the device. The present defendant is charged on the ground that it succeeded Henry Ford & Son and assumed its contracts and obligations.
Oral conversations relied on to establish contracts must be considered in the light of surrounding cir cumstances. And frequently subsequent conduct of the parties is important or determinative of whether a contract was made or its construction.
With the possible exception of the fan, it 'is evident the improvements made by plaintiff were not true inventions nor did they require more than very ordinary mechanical' skill to make. They were such as might be expected of a mechanic in experimental work and were made in the course of the general employment of plaintiff, i. e., at the employer’s plant and at its expense in time and materials. This would not prevent an express contract for royalties but it casts doubt upon the reasonableness of the claim that the parties intended to enter into a binding engagement which would charge the future prodiietion of the plant for an indefinite time.
Each of the parties ought to know best what he intended by the words he used and understood from the words used by the other parties. His understanding, reflected in contemporaneous and subsequent conduct, is more persuasive than claims made in litigation. Defendant has never recognized the existence of a contract with plaintiff for royalties. Plaintiff evidently deemed his services to his employer worth more than his pay but the record is persuasive that his present claim first arose after his other demands for extra compensation had been barred by the statute of limitations. This action was commenced July 13, 1928.
Plaintiff said that before he quit his iob he made demands, a hundred times or more and over a period of one or two years, on various officers of Henry Ford & Son for compensation for his services and devices and was met with evasive promises. In testifying to the demands he sometimes used the word “royalties.” About a month after he left his em ployment lie placed his claim in the hands of attorneys who made demand for compensation for his services. At various times, until suit was commenced, he retained other attorneys to press the claim. The record fails to show that at any time, except his statement in relating his oral demands while still employed, did he claim the right to royalties. The omission of such claim is particularly significant because plaintiff knew Henry Ford & Son was using his device in large numbers. In fact, royalties to the time he left his employment would have amounted to nearly $200,000.
Plaintiff claimed that, sometime in 1921, Farkas told him the company had discontinued the use of his devices. At that time the royalties would have amounted to over $350,000. January 14, 1921, plaintiff unequivocally established his understanding of his right to compensation in a letter addressed to defendant’s attorney. Referring to a conversation a day before, he asked that he be paid for services in accordance with the statement inclosed. The statement inclosed made demand for compensation for six months at $6.50 per day, 24 months at $15 per day, six months at $1,000 per month for building models of the Eagle, and $2,000 each for the fans, gas tanks, coil boxes and oil pipes. His letter contained no suggestion of an agreement for or right to royalties.
Later in the year his understanding was again made plain. He said he discovered that in 1918 Henry Ford had taken out a patent in his own name for the fan plaintiff had invented. On August 13, 1921, plaintiff’s attorney made a demand on Henry Ford for “substantial remuneration-therefor over and above his-current wages,” referred to the patent-on the fan, and-complained that plaintiff had been induced and cajoled by promises of remuneration for his inventions and into turning them over to Mr. Ford and not taking appropriate action to obtain patents for himself. Royalties were neither claimed nor mentioned.
The only reasonable conclusion from the circumstances sustains the finding of the court that the parties did not intend their conversations to create the contract counted on. If, as is doubtful, they intended their talk to have any contractual force, it must have been in connection with plaintiff’s claim to right of extra compensation as a skilled mechanic and may have been considered a sort of measure of the amount of compensation during his employment. TTis insistence upon extra compensation while he was employed and his fixing the stated sum on his improvements about the time he understood their use had been discontinued indicate his understanding that fair compensation, not continuous royalty, was the limit of liability to him under any arrangement he had.
Defendant raises other questions including estoppel but they need not be discussed.
Judgment affirmed.
Nelson Sharpe, C. J., and Potter, North, "Wiest, Buteel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Butzel, J.
Plaintiff Benjamin F. Plasger had been an employee of defendant Earl C. Leonard, first on a farm in Allegan county, and then as a janitor in. an apartment building in Chicago. Earl C. Leonard and wife borrowed $9,000 from Plasger and wife on a second mortgage on property not involved in this litigation. In 1933, Plasger and wife loaned to Leonard and wife $1,000 on a promissory note secured by a mortgage on a farm. Some time later a discharge of the mortgage was given as a favor to the Leonards so they could borrow more money, and Plasger claims that at the time Leonard agreed to give him a new mortgage on a cottage for $2,000 to pay the $1,000 and also the interest on the $9,000 mortgage loan. On April >1, 1938, the Leonards borrowed $1,200 from the Holland State Bank and gave it a note secured by a mortgage on the farm. Much of the difficulty in the present case arises because a lawyer of high personal integrity undertook at almost concurrent times to represent plaintiffs, defendants Leonard, and the bank. Immediately after the $1,200 loan from the bank was made to the Leonards, although the attorney had previously represented the plaintiffs, though he claimed he did not represent them at that particular time, he prepared and filed a petition in bankruptcy for Earl C. Leonard. The $9,000 secured by the second mortgage was included in the schedules but the 1933 note for $1,000 was not included. When the bank learned that a petition in bankruptcy was filed immediately after the $1,200 mortgage loan was made but prior to the time the bank’s money order, issued for the loan, was presented for payment, it notified Leonard that it would not go ahead with the loan. Thereupon Leonard with the same attorney, who also represented him in the bankruptcy petition as well as the bank, went to the bank’s offices and returned the identical money order issued by the bank. The attorney testified that in the presence of defendant Leonard, he asked the bank to make an assignment of the $1,200 mortgage to plaintiff Plasger and wife. The bank, by its president, assigned the mortgage and note without recourse. The entry on the bank’s records,.however, stated that the mortgage was paid April 21, 1938. The attorney claimed that when the assignment of the bant mortgage was made, it was with Leohard’s consent for the purpose of avoiding the expense of drafting a new mortgage and the payment of another specific mortgage tax. Leonard claims that he never consented to the assignment of the mortgage. The attorney, who had- in his possession the $1,000 note made in 1933 belonging to plaintiffs, placed an indorsement on it showing a payment of $1,200 by assignment of the bank mortgage of $1,200. He claims that he had been attorney for the Plasgers in the previous transaction, but that he was not their attorney at the time the loan to the bank was made or the assignment was made. As a matter of fact six months later, in October, 1938, the attorney wrote defendant Leonard a letter stating that he had contacted the bank and they would be willing to assign the note and mortgage to Plasger and requested the latter’s wife to sign and return a new note which was enclosed in the letter. This is not explained, though an assignment appears to have been previously executed by the bank. The assignment was not recorded until June, 1944, over six years after it was made out. The attorney also had placed it in his file and in the meantime evidently did nothing further about it. On or about May 2, 1944, over six years after the transaction took place, Leonard with his brother-in-law, defendant Preston, went to the bank. Its books showed that the mortgage was paid in full, and upon demand the bank executed a discharge of the same mortgage which it appears had previously been assigned. Plaintiffs and their attorney shortly thereafter went to the bank and an inspection of the books showed the notation “paid in full.” This notation was crossed out and a new entry, dated June 10, 1944, was made, showing that the mort gage was assigned. The notation “paid in full” was made April 21, 1938. The entire transaction was handled in a most careless manner. The attorney claimed that he again became attorney for the plaintiffs in 1939, but that when the assignment was made, he was attorney for the Leonards.
"We need not discuss the alleged interest of defendants Preston and wife, who subsequently became interested in the mortgaged property.1 The testimony does support the finding of the trial judge that the Prestons had full notice of the conditions when they became interested many years after the mortgage was given. We find it also unnecessary to discuss many other details for there is one reason why plaintiffs cannot prevail. The record is convincing that the mortgage was paid in full almost immediately after it was executed. The same money order the bank issued to defendants Leonard when the loan was made was returned to the bank in satisfaction of the loan. The bank was paid not by any moneys furnished by plaintiffs or any third party so that equitable considerations might arise. It was paid by the money order it had issued to the Leonards. The loan simply ceased to exist. The note had been paid. Had plaintiffs furnished the money to pay the loan, there would be some basis to plaintiffs’ claims. The mortgagee had no estate in land but only a chose in action. After a debt is discharged, an assignment of a mortgage without the debt is a mere nullity. Ladue v. Railroad Co., 13 Mich. 380 (87 Am. Dec. 759).
Our conclusion makes it unnecessary to discuss the many other questions in the case.
We are constrained to reverse the decree of the lower court and ong may be entered in this court dismissing plaintiffs’ bill of complaint and discharging the mortgage as prayed for in the cross bill filed by defendants. Defendants will recover costs.
Starr, C. J., and North, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case.
See opinion on application for rehearing, post, 565.
See opinion on application for rehearing immediately following this opinion.—Reporter. | [
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Bushnell, J.
Some of the factual background of this appeal may be found in Wies v. Brandt, 294 Mich. 240. In that case a trust deed' executed by Pauline E. Wies (plaintiff there and defendant here) while under guardianship as a mentally incompetent person, and at the time presumably under the influence and domination of her guardian, Brandt (defendant there and defendant here), was declared to be void. *
While that matter was pending on appeal and before its determination by this court, defendant Wies ’ trustee, defendant August F. Brandt, on December 26, 1939, conveyed title to the property now in question to Frank J. McIntyre and Clara E. McIntyre, his wife, who on the same day conveyed to plaintiff Robert Maedel. The consideration paid Brandt by the McIntyres was $700 and that paid by Maedel to them was $850 in cash and the conveyance of a vacant lot which Maedel claims was valued at $1,500, with an assessed value of about $400.
Prior to the execution, delivery and recording of these deeds, defendant Wies had begun an accounting action against Brandt and in connection therewith had filed a lis pendens in the office of the register of deeds of Wayne county on May 22,1939. After determination by this court of the appeal in that case, and while that matter was under remand to the circuit court, the city of Detroit on September 16, 1940, began condemnation proceedings for acquiring land for the Edward J. Jeffries Homes Housing Project. See In re Edioard J. Jeffries Home Housing Project (Appeal of Collins), 306 Mich. 638. The condemnation jury in that case returned a verdict of necessity and awarded, as compensation for the taking of the property now in question in this case, $2,000, payable jointly to plaintiff Maedel and. defendant Wies. Maedel was unable to obtain payment of this award because the entire amount of the award was claimed by defendant Wies. He filed a bill of complaint seeking an equitable determination of the matter and a decree awarding him the condemnation proceeds in its entirety.
Prior to final determination in the original accounting proceeding, Brandt filed a bill against Wies and others seeking damages by reason of the original action. When the trial of that cause was begun, the instant case of Maedel v. Wies and Brandt had been heard on its merits and was awaiting decision. A stipulation, which was filed in the matter now before us, was also filed1 in the two other cases. It recites the present litigation between the parties and effects a settlement of the two other cases, i. e., Wies v. Brandt and others, and Brandt v. Wies and others. This stipulation states that the entire interest of defendant Wies in the instant matter shall be assigned by her to William F. Beyer in consideration of the payment by Brandt to Wies of $1,000.
The trial judge decided that Maedel had no valid claim to the proceeds of the condemnation award. He based this conclusion upon the fact that Maedel “had both constructive and actual notice and knowledge of the suit filed by Miss Wies on May 17,1939, in which she asked that the trust deed of January 5, 1939, be set aside.” The court said:
“The matter had not been finally determined at the time of Maedel’s purchase. From all the facts it appears that Miss Wies has been as diligent as possible in the prosecution of her suit against Brandt and apparently the deed was void ab initio.”
A decree was entered authorizing the payment of the entire condemnation award to defendant Wies, from which decree Maedel has appealed.
Some of the questions raised by the appellant were settled in the case of Wies v. Brandt, 294 Mich. 240.
Maedel contends that he is a bona fide purchaser and that the right of Brandt, as trustee, to convey the property in question continued after the entry of the original decree in the trial court dismissing the Wies bill of complaint, and that the notice of lis pendens did not terminate or annul Brandt’s responsibility to preserve and protect the trust-. He cites in support of the proposition authorities to the effect that one who, after a final decree and de termination of suit and before an appeal is obtained, purchases in good faith property which is the subject of litigation, such purchaser will be protected. See Wheeling Greek Gas, Coal & Coke Co. v. Elder, 170 Fed. 215, and Wingfield v. Neall, 60 W. Va. 106 (54 S. E. 47, 10 L. R. A. [N. S.] 443, 116 Am. St. Rep. 882, 9 Ann. Cas. 982).
The authorities are in agreement that whether or not a lis pendens remains in effect and applies to a case during the period allowed for appeal is dependent upon whether or not the appeal is considered as a continuation of the suit. See annotation on this point in 10 A. L. B. 415 and text to the same effect in 2 Am. Jur. p. 845. The following statement is found in 5 Tiffany on Beal Property (3d Ed.), p. 85, §1296:
“As to whether the doctrine of Us pendens -is effective during the period between the entry of the judgment or decree and the disposition of an appeal or a writ of error, the decisions áre conflicting, the doctrine- being deemed effective during that period in those jurisdictions which hold that an appeal or writ of error is a continuation of the original suit.”
3 Comp. Laws 1929, § 14400 (Stat. Ann. § 27.1184), reads:
‘‘ To render the filing of a bill constructive notice to a purchaser of any real estate, it shall be the duty of the-plaintiff to file for record, with the register of deeds of the county in which the lands to be affected by such constructive notice are situated, a notice of the pendency of such suit in chancery, setting forth the title of the cause, and the general object thereof, together with a description of the lands to be affected thereby; and it shall thereupon become the duty of the register to record such notice, in a book kept for that purpose, upon, the payment of the same fees as is provided by law for recording deeds. A copy of such record, authenticated by the register, shall be evidence of such notice, and the filing of the same, in all courts and places.”
This court held in Hammond v. Paxton, 58 Mich 393, 398:
“The effect of the suit, and the filing of the requisite notice under the statute upon purchaser or mortgagors pendente lite, continues through the entire time of its pendency, and ends when the suit is actually ended by a final decree, ’ ’
The appeal taken by defendant Wies in her original action against Brandt transferred to this court jurisdiction of that case. Hughes v. Wayne Circuit Judge, 239 Mich. 110.
When Maedel acquired his interest in the property by deed from the McIntyres, that interest was subject to the outcome of the then pending litigation, and when he received his deed he knew, or must have known, by reason of the Us pendens, that he was buying an interest in property then in litigation, Provident Mutual Life Ins. Co. v. Vinton Co., 282. Mich. 84, and that.such interest was subject to the effect of the final decree in that cause.
The notice of lis pendens, once filed, continues in effect during the time allowed for appeal and during consideration by this court of such appeal, and can only be terminated by a final decree. The determination. in the final decree was that the conveyance on which Maedel’s title rested1 was invalid; and it must follow, therefore, that Maedel acquired no interest in, or title to,, the property in question.
He contends, however, that being in equity he is entitled to reimbursement by defendants Wies and Brandt for the improvements he has made upon the property. Maedel, however, was not a grantee of either Wies or Brandt hut of the McIntyres, who are not parties hereto, and his recourse, if any, is against his grantors.
Appellant contends, also, that defendant Wies’ claim to the proceeds of the condemnation award was illegally purchased by defendant Brandt’s attorney and that this constitutes champerty. Notwithstanding the fact that this contention was not made in Maedel’s bill of complaint nor presented to the trial court, we deem it proper to pass upon the matter because of the challenge to the good faith of an officer of this court.
It is sufficient to note that the inhibition of the champerty statute (3 Comp. Laws 1929, § 13593 [Stat. Ann. § 27.87]) is confined to the purchase of a “thing in action, with the intent and for the purpose of bringing any suit thereon.” The claim was not purchased by William F. Beyer until the action was already in progress.
The decree of the trial court directing payment of the entire amount of the condemnation award to Wies ‘ ‘ or her assigns ’ ’ is affirmed, with costs to appellees.
North, C. J., and Starr, Wiest,'Butzel, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Fellows, J.
On November 12, 1909, defendant Thomas Branton executed to his father, William Branton, Sr., a note for $1,800 secured by a real estate mortgage on a farm in the township of Sanilac in Sanilac county, which he that day purchased from his father. The note was payable on or before 10 years after date with interest at 7 per cent, payable annually on the 1st day of April of each year at the Exchange Bank of M. N. Mugan, Port Sanilac, near which town the farm was located. This bank was a private bank. William Branton, Sr., kept his papers there until he moved to 'Chesaning, when he took the mortgage, which had been recorded, with him. On July 11, 1916, he assigned and transferred the mortgage and note to plaintiff for its face value, there having been no payments on the principal and the interest having been kept up. The assignment of the mortgage was recorded the following day. Plaintiff purchased in entire good faith. It claims to have promptly notified defendant Thomas of its purchase, but the testimony on that subject is hearsay and we do not consider it. There is competent testimony, however, that annually it sent notice to defendant Thomas at Port Sanilac about two weeks before the interest was due, but Thomas denies receiving any of these notices before the spring of 1922, and shows his postoffice was another town. Each year at about the time interest was due plaintiff received a draft of the Exchange Bank for the interest and receipted for the same. March 31, 1921, plaintiff received a telegram from the Exchange Bank saying that defendant Thomas desired to pay the mortgage and requesting it to send discharge and abstract. Plaintiff complied with the request but directed that the papers be not turned over until the mortgage and the charges of the Exchange •Bank were paid. A short time later it received from the Exchange Bank the interest and later at its request the mortgage and other papers were returned to it. In reply to its notice, sent in the spring of 1922, that interest was due, Thomas wrote them he had paid the mortgage to the Exchange Bank and informed them that his address was at Croswell. The proof conclusively establishes that he had in fact paid to the Exchange Bank of Mugan the full amount of both principal and interest, the payments on principal being as follows: April 2, 1917, $800; April 1, 1918, $300; April 7, 1919, $500; April 5, 1920, $500; August 31, 1920, $200.
It will be noted from this statement that when plaintiff bought the mortgage no payments had been made on the principal and that it had the mortgage in its possession when defendant made such payments to Mugan’s private bank; so that we have not a case of payment to the holder having actual possession of a negotiable instrument. Mugan did not have the mortgage or note in his possession when any of the payments' were made, nor until long after, when he requested that it be sent so that defendant could pay it. Had defendant made payment to Mugan upon presentation by Mugan of the note, mortgage, and discharge, another question would be before us. The trial judge seems to have found as a fact that the money was in Mugan’s hands to pay the mortgage when at his request and when apparently he was acting for defendant, plaintiff sent him the papers, and to have concluded that such fact was decisive of the case. But the only testimony bearing on that subject was testimony that Mugan had so stated, and this was hearsay as to the plaintiff. Defendant gave testimony that Mugan had repeatedly lied to him and the inference is much stronger that Mugan converted the money as it was paid to him than it is that he kept it together for years and finally converted the lump sum.
The plaintiff promptly recorded the assignment of the mortgage to it, thus giving notice to the world that it was the owner; it retained possession of it in its vaults. Its entire good faith in the transaction can not be questioned on this record. It has been paid no part of the principal of the mortgage. In the final analysis we must hold, in order to defeat its right to a decree of foreclosure, that Mugan operating under the name of the Exchange Bank was its agent to receive these payments either actually or by holding out or by estoppel to deny such agency. That he was actually made the agent of plaintiff to receive such payments can not be sustained upon this record. Nor do we understand defendant’s counsel to claim that there was an actual appointment of Mugan as plaintiff’s agent. It would likewise be difficult upon this record to find any testimony tending to show that he was held out to defendant by plaintiff as its agent. Indeed it is defendant’s claim that he did not know that plaintiff owned the mortgage; in the main his testimony indicates that he supposed his father still owned the mortgage, although he did state that he thought Mugan owned it all the time.
Upo'n the other questions we are persuaded that the cases in this court growing out of the failure of Walker & White and their successor, the Michigan Mortgage Company of St. Johns in the 90’s are controlling. See Joy v. Vance, 104 Mich. 97; Bromley v. Lathrop, 105 Mich. 492; Trowbridge v. Ross, 105 Mich. 598; Wilson v. LaTour, 108 Mich. 547; Brooke v. Struthers, 110 Mich. 562 (35 L. R. A. 536); Wilson v. Campbell, 110 Mich. 580 (35 L. R. A. 544); Terry v. Durand Land Co., 112 Mich. 665; Church Association v. Walton, 114 Mich. 677. In one of these cases (Wilson v. LaTour.) an actual general agency was established by the testimony but in the balance of the cases the facts are substantially the same as here. In those cases the notes and mortgages were payable at the office of Walker & White, or their successor, but this fact was held to be unimportant and not to create an agency in them for the persons who held the securities. In those cases, as here, Walker & White, and their successor, for some considerable time collected the money as it fell due and remitted it to the owner of the securities. There, as here, they later failed so to do. We may well say as did Mr. Justice Montgomery, speaking for the court, in Bromley v. Lathrop, supra:
“The case is a hard one, in which one of two honest parties must suffer through the rascality of a third, but we are unable to see in what respect the complainant has been guilty of any act which ought to estop him from relying upon his ownership and possession of the securities, and from insisting upon payment.”
We shall not discuss these cases further than to say that the instant case can not be distinguished from them.
The decree must be reversed and one here entered in conformity with the prayer of the bill. Plaintiff will have costs.
Bird, C. J., and Sharpe, Snow, Steere, Wiest, Clark, and McDonald, JJ., concurred. | [
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Steere, J.
Plaintiff commenced this ease by summary proceedings before a circuit court commissioner of Oakland county- to recover possession of a place commonly called the Perry farm, consisting of about 170 acres of land located in Oakland township, in said county, in the vicinity of the village) of Rochester. The farm formerly belonged to Oliver Perry, deceased, who left it to his two children, Jacob II. Perry and Mrs. Jessica M. Simons (nee Perry), subject to a life estate of their mother Jennie Perry. Briefly stated chronologically, on February 22, 1917, the two Perrys and Mrs. Simons sold the farm under a land contract to plaintiff Muirhead for $17,000, upon which he agreed to pay $1,000 on execution and delivery of the contract and the balance within five years with 6% interest. On March 20, 1917, Muirhead found a purchaser named White and entered into a contract with him by which the latter agreed to pay Muirhead $1,000 upon execution of their contract, $900 more within 90 days, and to perform all Muirhead’s obligations under the latter’s contract of purchase from the Perrys, Muirhead agreeing to assign him his interest in the Perry contract, to take effect when such assignment was consented to by the Perry vendors. Muirhead also agreed to execute a deed of the Perry farm to White—
“with the usual covenants of seizin against incum-brances and warranty subject to the purchase money owing upon said contract, with an agreement therein by the grantee to assume and pay the same and deposit the same with the First National Bank of Rochester, Michigan, to be delivered to the said White or such person as he may direct whenever the interest of the said Muirhead in said land and contract shall become transferable or the vendors in said .land contract will consent to a transfer thereof or the interest of the vendors shall have been satisfied and the legal title to the land conveyed by them.”
This he did, and put White in possession of the farm, but did not obtain from his vendors a consent to the assignment to White of his land contract from them according to the condition imposed by the contract with White, who, however, paid Muirhead the next payment of $900 within 90 days, and continued in possession of the farm, making various payments on the Perry contract and for taxes, until the spring of 1922, when, on March 18th, he sold what interest he had in the farm to defendant McCullough for a stated consideration of “$1 and other considerations,” McCullough agreeing with White to—
“make all payments due under said contract and assignment (of March 20, 1917, between Muirhead and White) and to defend any and all actions at law growing out of said contract and assignment, and to save the said Charles H. White harmless from any obligations or actions at law to which he might be subject, provided this assignment were not made.”
White then delivered possession of the farm to McCullough and went his way, but bethought himself to notify Muirhead and wrote him the following letter from Detroit, dated March 28, 1922:
“Dear Sir: This will advise you that I have transferred all my rights and equity in the so-called ‘Perry farm,’ to Mr. J. B. McCullough, of Oakland township, Oakland county, Michigan, and all further dealings and matters regarding the farm are to be taken up with him.
“Yours very truly,
(Signed) “C. H. White.”
In the meantime Jacob H. Perry, then at Pontiac, appears to have received some rumor of that shift and wrote a letter to Muirhead, then at Birmingham, dated March 20, 1922, reading in part as follows:
“Dear Sir: This is calling your attention to the contract entered into with me for the farm which, as you know, there remains a balance of $15,000 which will be due April 1, 1922, and which we shall expect settlement from you on that date. * * *
“Let me hear from you when you can come. By the way, have you seen Mr. White lately, so as to know where you are at with him. I understand he has sold off everything he has on the farm. Let me hear from you at your earliest convenience when you can come.
“Yours truly,
(Signed) “Jacob H. Perry.”
It then, if not before, dawned on Muirhead that there might be an aftermath to his quick and apparently profitable turn-over of that piece of real estate back in 1917. The explanation he gives for his complacent indifference and nonaction in that matter is far from illuminating. Of his deal with White he said in part:
“Slocum-Tucker Company made the sale. I had no commission to pay in that sale. They charged the commission to Mr. White. All that was coming to me under Exhibit B (his contract with White) was the $100, and interest on it, if not paid when due— when the Perrys accepted Mr. White; I could not swear that they have accepted him. I found out after June last that Mr. White made the payments to the Perrys. I never made any payment at all from the time I executed this agreement with Mr. White in 1917 up to last June (1922).”
But the letter from Jacob Perry of March 20, 1922, telling him that under his contract for the farm he would be expected to meet the balance of $15,000 falling due on the 1st of April next, followed in a few days by White’s letter advising he had turned whatever interest he had in it over to McCullough and abandoned the place, inspired him to pay six months’ interest on the unpaid $15,000, amounting to $450, the back taxes on the farm for 1921, amounting to $370, and, after a fruitless interview with McCullough, to make a written demand on him for possession of the farm. On July 17, 1922, he began these summary proceedings before a circuit court commissioner to recover possession and there had a judgment of restitution, in connection with which the commissioner found “$15,924 due on land contract.” Defendant appealed and on retrial in the circuit by jury the previous judgment was affirmed under a directed verdict.
Defendant’s assignments of error are argued under the propositions that by his deed to White delivered in escrow to the Rochester bank, Muirhead had parted with all his interest in and right to the farm; “no notice of default and demand of payment preliminary to declaration and notice of forfeiture” was given prior to commencement of his summary proceedings; and the specific tax on his contract with White had not been paid as required by 1 Comp. Laws 1915, § 4268.
Muirhead did not part with any of his rights to or interest in the Perry farm by leaving his deed of it running to White in escrow with the Rochester bank. The deed was never delivered to the grantee, and never can be under the conditions of the escrow. White did not comply with those conditions, nor did McCullough for him. When this case was begun all deferred payments on the Perry contract were past due and unpaid. A deed delivered to a third person in escrow, to be delivered to the grantee only on condition of the latter’s paying a sum of money or performing some other obligation, is of no force until such condition is fulfilled.
The contract from the owner to Muirhead was a carefully prepared land contract. Its terms of payment required that the full purchase price should be paid with 6 per cent, interest on all deferred payments, on or before five years from date of the contract. He was to pay all taxes assessed against the property, keep all buildings repaired and insured, keep all fences in repair, care for and spray the orchards, refrain from waste, etc. It provided for forfeiture in case of default on his part and liability to removal as a tenant holding over without notice to quit or surrender possession being required, all such notices being expressly waived by him. It was- further expressly agreed—
“that no sale, transfer arrangement or pledge of this contract shall be in any manner binding upon the parties of the first part, unless they first consent in writing hereon to such sale, transfer or pledge.”
This the owners never did and they testify without dispute that when requested to do so they positively refused. Neither did they see fit to take any steps to exercise' their option to treat his contract with them forfeited. Mere lapse of time after default would not put an end to it. Default in payment is required to be followed by some act of the vendor indicating his election to consider the contract at an end before it would be terminated (Converse v. Blumrich, 14 Mich. 109 [90 Am. Dec. 230]). Under his existing contract with the owners, by which he was holden for the deferred payments, he was entitled to possession of the place, and the party presently entitled to possession is the proper party to maintain proceedings to recover possession (McGuffie v. Carter, 42 Mich. 497).
Defendant’s claim that a demand for payment and declaration of forfeiture was a condition precedent to notice to quit and summary proceedings for possession is not tenable under the facts shown here. The statute does not specifically so provide. It is true, as defendant’s counsel point out, this court has held in certain cited cases that when the contract so requires, or after acquiescence in a protracted default, a demand of payment and reasonable notice of forfeiture, as well as notice to quit, are essential to termination of the contract relations between vendor and vendee. McCullough came into possession of this place without the consent or knowledge at that time of the Perrys or Muirhead. They then knew nothing of his deal with White. Although he knew the entire unpaid balance would shortly fall due McCullough took no steps to meet it. He was not in privity with the owners and vendors nor with their vendee, unless through the abortive contract the latter had given to White to whom he paid but one dollar in money, the “other consideration” being, as explained by him:
“City property — three or four lots, I have just forgotten; three, I think; I have no record of the lots I turned over; I don’t think the value of my equity in the lots was talked over by Mr. White and myself. This deal was closed in Detroit.”
On cross-examination he said:
“When I took that assignment I understood there was six months’ interest due the 1st of April and also $15,000 on principal; I did not know that the taxes for 1921 were not paid; I did not pay the interest that was due April 1st, and I have not paid the $15,000 or any part of it, or any taxes. I have not paid a dollar on Exhibit A. (the Perry contract). I have not paid anything for the use of that farm for the year I have had possession of it.”
Whatever possible rights he can claim in relation to this property arise from his contract with White, whose rights were limited to his contract with Muir-head, whose rights were defined by his land contract of purchase from the Perrys. By it Muirhead waived all right to notice for recovery of possession in case of default and by assuming all the vendee’s obligations under that contract, so did White and McCullough. The latter in his contract with White affirmatively so obligated himself “and agreed to be bound by the conditions of said contract of February 22, 1917,” a copy of which was attached to and made a part of his agreement with White. He could not claim benefits granted in that agreement and repudiate its obligations.
As to the contention that Muirhead’s agreement with White was erroneously admitted in evidence because the taxes imposed by 1 Comp. Laws 1915, § 4268, had not been paid, it is to be noted that section only applies to mortgages and other instruments creating a lien on real estate. The land contract from the owners to Mnirhead did create a lien in the vendee’s favor, and that tax had been paid, but his futile, conditional agreement to assign that contract in futuro created no lien and was not of the class of contracts contemplated by the act.
The judgment is affirmed.
Bird, C. J., and Sharpe, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
Justice Moore took no part in this decision. | [
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Wiest, J.
This is a suit by a materialman to en force a mechanic’s lien. Herbert W. and Amelia Glenn owned lot 38, 'block C, Leggett Farm subdivision, Oakland county, and, in November, 1919, entered into contract with the Norwood Construction Company to construct a house thereon at a cost of $5,968. The Norwood company started the house and during the course of construction purchased lumber and building material of the Grand River Lumber & Coal Company to the amount of $2,749.60. In March, 1920, and while the house was in course of construction by the Norwood company, the Glenns entered into contract with the House Financing Corporation to finance the project and attend to the construction, and to that end deeded the lot to the House Financing Corporation and took a land contract under which they were to pay $7,983 for the house completed in accordance with the Norwood contract, and were credited $1,000 for the lot and $500 they had paid the Norwood company on the building contract. The House Financing Corporation continued the building contract with the Norwood company. The Glenns did not record the land contract given them by the House Financing Corporation. Within 60 days of the furnishing of the last material, plaintiff filed a claim of lien, but, by mistake, described the premises as lot 38 A instead of lot 38 C, and named Herbert W. Glenn as owner, instead of Herbert W. and Amelia Glenn.
Defendants claim the lien did not attach because of misnomer of the block. In the claim of lien the right dwelling was designated and the name of one owner given, and,-as that owner had 'but one lot, and the material was used in the building on that lot, we cannot ignore the identification outside of the block number. Defendants’ contention falls within the rule stated in Jossman v. Rice, 121 Mich. 270 (80 Am. St. Rep. 493); Hannah & Lay Mercantile Co. v. Hartzell, 125 Mich. 177; Acme Lumber Co. v. Modern Construction Co., 214 Mich. 357, and is without merit.
Defendants also claim the lien was filed against property owned by Herbert W. Glenn, and, inasmuch as it was owned by both Herbert W. and Amelia Glenn, by the entireties (stating ownership most favorable to plaintiff), the claim of lien was void. On this ground the circuit judge dismissed the bill.
Plaintiff seeks to bring the case within the holdings that, where the lienor has been misled in giving the name of the owner, by statements made by the owner, the owner is estopped from taking advantage of the mistake. See Waters v. Johnson, 134 Mich. 440. It is evident that this rule only applies in cases where the lienor has acted on misinformation given by the owner. In the case at bar, representations claimed to have been made by Mrs. Glenn and the House Financing Corporation were after the lien had been filed, and, therefore, had nothing to do with the claim of ownership stated in the lien. But plaintiff insists that, inasmuch as there was then time in which to file a new claim of lien, the rule of estoppel should be made applicable. We cannot so hold. The mistake had been made and plaintiff must stand or fall upon.the claim of lien filed.
The equities are with plaintiff, but,, unless lien attached, may not be considered. Proceedings to obtain a lien are wholly statutory and must be strictly followed, but proceedings to enforce a lien admit of the usual exercise of powers of a court of equity. The mistake was not excused by any act or representation made by the owners or the House Financing Corporation. The contract for the building was between Herbert W. and Amelia Glenn, owners, and the Nor-wood Construction Company, contractors, and this contract was known to the plaintiff. At the time of filing the claim of lien plaintiff had no reason for thinking that Mrs. Glenn had parted with her rights as a joint owner. We must hold, as did the circuit judge, that the claim of lien was void in not designating Amelia Glenn an owner of the property. See 3 Comp. Laws 1915, § 14800; John F. Noud & Co. v. Stedman, 193 Mich. 459; Lallevich v. Bartoszewiz, 205 Mich. 375.
The decree is affirmed, with costs to defendants.
Sharpe, Snow, Steere, Fellows, Clark, and McDonald, JJ., concurred. Bird, C. J., did not sit. | [
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Sharpe, J.
The defendant real estate company employed the defendant Katz to do some plumbing work in a residence on a lot owned by it in the city of Detroit. • The plaintiff lived on the adjoining lot. In doing this work, Katz caused a hole to be dug near the line between the lots. Some of the witnesses testified that it extended four inches on plaintiff’s lot; others that it was entirely on the company’s lot. There was proof that the hole was 4 feet in diameter and 5 feet, 2 inches in depth. An iron pipe protruded several inches from the bottom of the hole. In the absence of the workmen, plaintiff’s infant son, Arthur, aged four years, fell into the hole and struck one of his eyes on the pipe, resulting in its removal from the eye socket. Several operations on it were performed. The sight in it was destroyed, and the lid drooped over it. Nearly a year thereafter, the child became afflicted with scarlet fever, and died as a result thereof. Plaintiff, as administrator, brings this action to recover the damages which the estate sustained by reason of such injury. He had verdict for $6,000. Defendants moved for a new trial, assigning, among other reasons therefor, that the verdict was excessive. On plaintiff’s remitting $1,000, as ordered by the trial court, the motion was overruled and judgment entered for $5,000. This judgment defendants, by separate counsel, here review by writ of error.
Error is assigned upon the following instruction:
“If an ordinarily careful and prudent man, under the circumstances shown by the evidence, would have guarded and protected the hole, so as to prevent this deceased from falling in there, then it was the duty of those engaged in the work of excavating the hole and putting in this plumbing, to have so guarded that hole, and a failure on their , part to guard it or protect it would be negligence within the meaning which I lay down in these instructions.”
There was no fence separating the lots. The distance between the residence on the company’s lot and the sidewalk alongside of plaintiff’s house was but 52 inches. The hole in question was but a few inches from this sidewalk. There was no witness to the accident, but it may fairly be inferred that the child was passing along the walk and came to the hole. It could not but attract his attention. His childish instincts and impulses would impel him to approach nearer to it than safety provided. His fall and injury resulted. In our opinion, defendants have no cause for complaint of the instruction given.
In Powers v. Harlow, 53 Mich. 507, 515 (51 Am. Rep. 154), it was said:
“Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly.”
The rule thus stated was quoted with approval in Czarniski v. Storage & Transfer Co., 204 Mich. 276, 278. The question of trespasser or licensee, discussed at length in Anderson v. Newport Mining Co., 202 Mich. 204, and in Douglas v. Bergland, 216 Mich. 380 (20 A. L. R. 197), and in the cases there cited and commented upon, is not here involved. There is nothing to indicate that the child left the sidewalk until he pitched head foremost into the hole. It would be a far cry to say that by doing so he committed a trespass on the company’s property. Suppose the defendant Katz had been doing some electric wiring on the company’s premises, and had left a live wire so near to the sidewalk by the side of plaintilf’s house that the boy had reached out and grasped it and sustained injuries thereby, it would hardly be urged that he was trespassing on the company’s property in doing so.
The defendant real estate company insists that Katz was doing the work under a contract constituting him an independent contractor, and that the company was not liable for any negligence on his part. The trial court submitted this question to the jury, but declined to submit to them a special question relating thereto. In our opinion, the charge in this respect was more favorable than the company was entitled to.
The general rule relied on by defendant that one who has contracted with a competent person to do a work within the scope of his independent employment is not answerable for the negligent acts of such contractor, or of his servants or agents, in the performance of the contract, is subject to the exception that immunity from responsibility may not be claimed when the work to be done is of such a character that it necessarily subjects third persons to unusual danger.
It is apparent that it was necessary for Katz to dig this hole in order to perform his contract with the company. When dug, it became an object of unusual danger to children passing along the walk by the side of plaintiff’s house, or who might be playing in the yard near it. Of these facts the defendant company was chargeable with notice. The injury to the child resulted directly from the work which Katz was authorized to do under his contract, and was not the result of any wrongful act on his part in doing it. The condition of unusual danger was created by Katz in the doing of that which he had contracted to do. His neglect to guard against just such accidents as happened to this child must be regarded as the neglect of the defendant company also.
This holding is well within the rule stated in Van Dam v. Doty-Salisbury Co., 218 Mich. 32 (29 A. L. R. 729). The exception pointed out has, we think, always been recognized. In the early case of Water Co. v. Ware, 16 Wall. (U. S.) 566, 576, it was said:
“Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agreed and was authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party.”
In Murphy v. Perlstein, 73 N. Y. App. Div. 256 (76 N. Y. Supp. 657), in which the injury was caused by an excavation, the general rule of nonliability in such cases is stated, but it is said:
“To this rule, however, there is a distinct and well-grounded exception. If the character of the work’ creates the danger or injury, then the owner of the property who made the contract remains liable to persons who are injured by a failure to properly guard or protect the work, even though the same in its entirety is intrusted to a competent independent contractor.”
See, also, City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78); Darmstaetter v. Moynahan, 27 Mich. 188; McDonell v. Boom Co., 71 Mich. 61; Wilkinson v. Spring Works, 73 Mich. 405; Kilts v. Board of Sup’rs of Kent Co., 162 Mich. 646.
The amount for which plaintiff recovered judgment is said to be excessive. The only damages recoverable was for the pain and suffering of the child. Such damages cannot be determined by any rule or measurement. The danger in such cases is that the jury will take into consideration the death of the child and the suffering and loss of the parents occasioned thereby. Had the child died as a result of the injury, a different question would be presented. Ignaszak v. McCray Refrigerator Co., 221 Mich. 10. The trial court was, we think, unconsciously influenced in his conclusion that but $1,000 should be remitted by the same consideration. In providing therefor, he said:
“But in view of the fact that there is some doubt as to whether or not the death was occasioned by the injury I think the damages should be reduced to $5,000.”
There was no proof that “the death was occasioned by the injury.” It cannot, therefore, be considered in passing upon the question of excessive verdict. In our opinion, after, a careful consideration of the evidence as to pain and suffering, the judgment rendered should be reduced to $3,000.
If the plaintiff will remit the $2,000 excess within 20 days after the filing of this opinion, the judgment will be affirmed at $3,000. Otherwise, a new trial will be granted. In any event, the defendants will recover their costs in this court.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, 35., concurred. | [
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Fellows, J.
Plaintiff is now serving his second consecutive term as sheriff of Kent county. He pre sented to defendant, county clerk, petitions to place his name on the ballot at the coming primary as a candidate for nomination for a third consecutive term as sheriff. The request was refused and this proceeding in mandamus was instituted in Kent circuit court, where, after a hearing, the writ was refused. We allowed a writ of certiorari to review such judgment. Admittedly plaintiff is ineligible to hold the office consecutively beyond four years under the present Constitution (art. 8, § 5). All counsel so concede. At the end of four years he and all his deputies go out of office. Lamoreaux v. Attorney General, 89 Mich. 146. But it is urged on behalf of plaintiff that the legislature has by Joint Resolution No. 1, of the 1925 session (Pub. Acts 1925, p. 781), submitted to the electors at the coming November election an amendment removing such inhibition, and it is said', that if such amendment is adopted plaintiff, if elected,, could qualify and act as sheriff, and it is insisted that we should now decide the question and hold that’ a removal of disqualification after election and before taking the office is sufficient. But we do not think that question is properly before us at this time, and by anything here said we should not be considered as deciding such question. Among the cases dealing with that question see People v. Purdy, 154 N. Y. 439 (48 N. E. 821, 61 Am. St. Rep. 624); Privett v. Bickford, 26 Kan. 52 (40 Am. Rep. 301); State v. VanBeek, 87 Iowa, 569 (54 N. W. 525, 19 L. R. A. 622, 43 Am. St. Rep. 397); Seals v. State, ex rel. Matthews, 164 Ala. 582 (51 South. 337, 20 Ann. Cas. 991); Bradfield v. Avery, 16 Idaho, 769 (102 Pac. 687, 23 L. R. A. [N. S.] 1228); State, ex rel. Schuet, v. Murray, 28 Wis. 96 (9 Am. Rep. 489); Kirkpatrick v. Brownfield, 97 Ky. 558 (31 S. W. 137, 29 L. R. A. 703, 53 Am. St. Rep. 422).
In Parker v. Smith, 3 Minn. 240 (74 Am. Dec. 749), the court had before it this situation: Under the laws of the Territory of Minnesota, the period of residence necessary to make one eligible to office was six months; the State had been recently admitted to the Union and its proposed constitution had reduced the period to four months. Smith was elected to the office of district attorney at the same election at which the constitution was adopted. He was ineligible under the laws of the Territory when elected, but was eligible under the constitution that day adopted, and the question before the court was whether the period fixed in the laws of the Territory or the period fixed in the constitution controlled, and it was held that the period fixed in the laws of the Territory which were in force .until the constitution was adopted should control.
It is too well settled to need citation of authorities ■¡that the writ of mandamus will not issue unless there :.is a clear legal right in the plaintiff to the discharge •of a clear legal duty by the defendant. Plaintiff under the Constitution has no right to hold the office of sheriff beyond his present term. He is by that instrument expressly prohibited from holding it and the fact that the people have an opportunity to vote on its amendment at the November election creates too remote a contingency to give him a present clear legal right to this discretionary writ. In at least two .cases (Fyfe v. Kent County Clerk, 149 Mich. 349; Murtha v. Lindsay, 187 Mich. 79) this court has refused to issue its writ of mandamus requiring election officials to place on the ballots the names of men who were prohibited by the Constitution from filling the office sought. Following these cases, we must refuse the writ in this case. As the question is a public one, no costs will be allowed.
Judgment affirmed.
Bird, C. J., and Sharpe, Snow, Steere, Wiest, Clark, and McDonald, JJ., concurred. | [
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Wiest, J.
Plaintiffs,' as husband and wife, owned by the entirety a 47-acre farm in Monroe county, subject to a $600 mortgage. Plaintiff Fred L. Baker, while treasurer of a school district, used funds in his hands as such treasurer to help his son Russell buy an automobile. At the close of his term as treasurer the shortage so occasioned was discovered and repayment demanded. In the meantime the son Russell had married defendant Mary H. Baker. Plaintiffs claim that in order to meet the defalcation of school funds they deeded the farm to Russell and his wife under a written agreement by Russell and Mary to pay the sum due the district and when that was done to redeed the farm to plaintiffs. Defendant destroyed the written agreement. '
There was dispute as to the nature of and contents of the destroyed agreement. The trial judge observed that the wilful destruction by defendant of the agreement was strong evidence that, had it not been destroyed, it would have sustained the claim of plaintiffs as to its contents and decreed rédeeding of the farm by defendant to plaintiffs.
There would have been little purpose served in plaintiffs’ deeding their farm to defendant and her husband on condition that they pay plaintiff Fred L. Baker’s obligation to the school district and when that was paid to deed the farm back to plaintiffs. A reading of the record leads us to find that the written agreement at the time of execution of the deed by plaintiffs was to give plaintiffs a life lease of the farm. The subsequent foolish destruction of such agreement by defendant did not in any respect affect the obligation to give the life lease.
Defendant claims that in January, 1935, she was divorced from Russell F. Baker and the decree of divorce adjudged the parties owners of the farm as tenants in common and thereafter Russell, by quitclaim deed, dated June 13,1938, conveyed his rights as a tenant in common to plaintiffs and submitted proofs in support thereof.
Of course, plaintiffs herein were not parties in any way to the divorce case and their rights to the farm have not been adjudicated thereby but defendant, by her claim in her cross bill and proofs thereunder, is owner of an undivided interest in the farm as a tenant in common with plaintiffs.
Upon hearing this' case de novo we find from the record that plaintiff Fred L. Baker was financially unable to meet his liability for the unlawful use of the school funds and apprehension of action against him on account of his defalcation caused him and his wife to convey their farm, July 7, 1932, by warranty deed, subject to the $600 mortgage, to their son Russell and his wife upon their undertaking to pay his obligation to the school district and grant plaintiffs a life use of the farm. Defendant taught school and out of her salary as a teacher repaid the shortage, as appears by the following receipt, signed by three of the school officers:
“Dundee May 26-33'
“Received of Mrs. Mary Baker the sum of (Seven hundred thirty-three $733) to pay the shortage in Fred Baker’s account as Treasurer of School Dist. #6 Dundee.”
Defendant, as a tenant in common, by cross bill seeks partition of the premises. Before she became a tenant in common she, as a necessary party, joined in the life lease of the premises to plaintiffs. Defendant, as a tenant in common, may have partition in accordance with the provisions of the statute on that subject, 3 Comp. Laws 1929, §14995 (Stat. Ann. § 27.2012), but whether by division or sale it must be in full recognition and preservation of plaintiffs’ life lease and use without any accounting therefor.
Under this record we cannot work out the procedural details of statutory partition and for that purpose the case is remanded to the circuit court.
The decree in the circuit court is reversed and a decree will be entered in this court requiring the defendant to execute and deliver to plaintiffs a life lease covering all her interests in the farm. Plaintiffs will recover costs.
Starr, C. J., and North, Bxjtzel, BushNell, Sharpe, Boyles, and Beid, JJ., concurred. | [
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Shakpe, J.
Plaintiff appeals from a decree of the trial court dismissing her bill for divorce. The parties were married in 1905, and separated in August, 1924. She is 52 years of age and he a few years younger. They have one child, a daughter, now 20 years of age. The allegations in the bill are general. They may be thus summarized: cursing and swearing at her; threatening her with personal violence; abusive conduct to their daughter, and threats to take her life; was stingy and miserly; faultfinding, nagging and abuse; fear that he will do her bodily harm. No date is assigned as to any occurrence, nor is any incident mentioned to inform the defendant or the court of any particular act of misconduct relied on.
The bill in this case but follows the usual practice in preparing such pleadings. We may assume an intent to charge extreme cruelty and nonsupport, although these terms are not mentioned.' It may also be observed that it contains no charge of physical violence, although several acts of this nature are relied on to entitle plaintiff to a decree. We can but urge attorneys to treat a proceeding for divorce as a real law suit, in which the allegations of misconduct complained of shall be specifically averred, with date and place and such incidental statements as will inform the defendant of that which he is called upon to answer. While the evidence-need not be pleaded, it is unfair to a defendant to be required to meet such charges, and to the courts to expect them to review the many years of married life of the parties and ascertain whether one or> more of the grounds on which a divorce may be granted has been established. We are not intimating that a long-continued course of ill-treatment may not be averred and proven, but domestic difficulties, perhaps almost forgotten when the separation occurred, aid but little in reaching a final conclusion as to whether the proofs entitle the complaining party to a decree. We are not intimating that the record in this case differs materially from that usually presented in such cases. The labor of the trial court and of this court on appeal will be much lessened by specific allegations in the bill of the misconduct complained of, and by confining the proofs so far as possible to the issues thus presented.
We have read this record with care and, aided by the briefs of counsel, have sought to collect the proofs bearing on particular charges, in order to determine whether the plaintiff has established them by a preponderance of the evidence submitted. The unkindness of which plaintiff first complains is thus stated by her:
“I have alleged that the defendant has been guilty of extreme and repeated cruelty towards me. We had not been home very long from our wedding trip when he became guilty of that, I brushed his coat collar and brushed it the wrong way of the nap, and he said, ‘You don’t know how to brush a coat collar.’
“Q. You may state whether or not at any time after marriage he began to curse and swear at you and call you nasty names?
“A. Before my little girl was born I asked him if he would buy an extra bed for the nurse. He refused to give anything for clothes or anything, we didn’t need it. That was our first contest.”
That the defendant occasionally swore at plaintiff and called her names like “dumb-bell,” “blockhead,” and “fool,” is clearly established. She admitted, however, on cross-examination, that she had called him a liar “maybe a dozen times,” and that she had sworn at him. He testifies that she called him “Kaiser Bill, bullhead, miser,” and that the word liar was “her pet epithet.” Plaintiff admitted that she called his sister a “red-headed devil.” It is apparent that these parties frequently quarreled and abused each other, b.ut we are not persuaded that the conduct of the defendant in this respect, in view of that of plaintiff, entitles plaintiff to a decree.
That defendant has threatened plaintiff with personal violence is proven, but he testified that she was guilty of the same offense.
“Just as soon as something turned up that wasn’t going her way — ‘You are a liar; you are a liar; I will brain you, you liar’ and she would accompany that by a blow.”
While, as stated, .the bill does not contain any allegation of personal violence, the testimony relating thereto was admitted without objection, and, as the bill might have been amended, we think it should be considered. The most serious act of this nature of which she complains arose out of an altercation between them concerning the reading of his father’s will, the date of which is not stated. She testified:
“I went on the porch and I screamed and he pulled me and pulled my arm out of joint and I am suffering from it today; he threw me the whole length of his mother’s hall and his brother picked me up and said, ‘Do you come in dead or alive.’
“Q. You may state whether or not your spine is disabled to this day?
“A. Yes, I went to three doctors.”
The defendant positively denies that he assaulted plaintiff on this occasion. He testified:
“I took one hand to her mouth and the other at her back — she was yelling murder in the middle of the town.”
Her testimony in this respect is uncorroborated, although there were several others in the house at that time. Had sh'e called one or more of the doctors by whom she testified she was treated, the injury she received might have been established. He not only denies all charges of personal violence, but he testifies to acts of that nature committed by her upon him.
“She would run up to me and say: ‘You are a liar’ and punch my head and face — everything of that kind.”
She admits that she at one time turned the hose on him in anger.
It is well known that a charge of extreme cruelty founded on personal violence is appealing to a court. A husband will always find much difficulty in justifying an assault upon his wife. The omission of any charge of this nature in the bill of complaint and the testimony of the plaintiff, when considered as a whole, leads strongly to the conclusion that her charges in this respect are grossly exaggerated, and, when met with his denial, form no sufficient ground for a divorce.
It is unfortunate that the plaintiff left the defendant’s home. They had struggled along through lean years when his earnings were barely sufficient for their actual needs. The last few years of their married life he had been in receipt of an income which bid fair to secure to them a good living. He had bought some property near Ann Arbor, and was building a comfortable home on it. There had been friction over the presence of plaintiff’s father in the household. But he had then left, and, as we read the record, the chances for their future happiness seemed bright. Less than a year before their separation she wrote him:
“Dear Will: Rec'd your letter yesterday. I don’t see why it wouldn’t be even better to have garage attached to the house. I have, been thinking about the chimney for the kitchen. I don’t just see how you can put a stove pipe hole in that corner you had planned to have the kitchen cupboard there. I thought it would be a good idea riot to have any chimney at all in the rear seeing it don’t go to the basement. I thought we could put our range in the basement and our oil stove in the kitchen and then the one chimney would take care of stove, furnace and grate. I guess the house is about rented to a man, wife and baby. If you can, try and come home Sat. 18th. It has been nice and cool here all week but no rain. Everything is dried up. Mrs. Hansen came down yesterday. She told me I could have all the raspberry current (blk & red) bushes they could spare. I guess Margaret is writing you about the car. If I were you and if it is possible I would bring it home. It would save on train fare over there and would give Mar. a chance to get acquainted with the car on these roads before driving in the city. Hope you have the bulk of your work caught up. Best wishes. Anna, x x x”
He acceded to her request and purchased a Chevrolet coupé for their daughter. We are impressed that the daughter, who was at that time a student at the university, was the immediate cause of their separation. She had taken a dislike to her father because he insisted on directing her education and controlling her conduct to some extent. Plaintiff admits that her daughter said to her:
“She said she wouldn’t have any home. She said I could live with her father if I wanted to. She said, ‘If you prefer him to me, take him.’ ”
And the daughter testified:
“I merely stated if my mother preferred my father to me she could have him. I would leave because I found I could stay there no longer and I was capable of making my own way.”
The plaintiff testified:
“I never had any contemplation of filing a bill for divorce while my father lived with me.”
It is significant that her father, who was a member of the household for about nine years, was not called as a witness. Provoked by' the defendant’s insistence that the father should make his home elsewhere, and egged on by her daughter’s ultimatum, she brings this suit. We feel constrained to hold that the decree of the trial court dismissing her bill was warranted by the proof.
Plaintiff moved for a rehearing in the circuit court. It was denied. Her counsel, after submission of the cause in this court, ask us to remand it for further proof. They desire to take the testimony of defendant’s brother Paul. Such testimony cannot be considered as newly-discovered. In her testimony she stated that he picked her up when she was thrown in the hall. He was available as a witness at the time of the hearing. The motion to remand will be denied.
The decree is affirmed. No costs are allowed.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
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Sharpe, J.
Defendant was arrested,, charged and convicted of the crime of accepting a bribe under the following information:
‘ ‘ State of Michigan,
County of Wayne,
City of Detroit—ss.
“The recorders court of the city of Detroit.
“In the name of the people’of the Sj;ate of Michigan, William E. Dowling, prosecuting attorney in and for the said county of Wayne, who prosecutes for and on behalf of the people of said State in said court, comes now here in said court in the March term thereof, A.D., 1942, and gives the said court to understand and be informed that Samuel J. Leve, late of the said city of Detroit, in said' county, heretofore, to wit, on or about the 24th day of August, A.D., 1938, at the said city of Detroit, in the county aforesaid, who was at the time a duly authorized public official, to wit: an executive officer, an employee of the county of Wayne, director of the bureau of investigation of the county of Wayne, and who was at the time duly appointed and qualified and acting as such, did corruptly accept a gift, gratuity or consideration, to wit: $50 to do an act under an agreement and with an understanding that his vote, opinion, judgment or influence shall be given in a particular manner, and upon a particular side of a question, cause or proceeding, in the city of Detroit, Wayne cotmty, Michigan, which may be pending or may by law be brought before him in his official capacity as such public officer, in that he would use his influence to send or cause tobe sent afflicted indigent adults to the Knoedler Convalescent Home for care and treatment, and in that he would in his official capacity as such public officer approve vouchers for payment by the county of Wayne for services rendered by the said Knoedler Convalescent Home, and that in consideration of said gift, gratuity or consideration of $50 he did use his influence to send or cause to be sent afflicted indigent adults to tbe Knoedler Convalescent Home for care and treatment and he did in his official capacity as such public officer, approve vouchers for payment by the county of Wayne for services rendered by said Knoedler Convalescent Home; contrary to the form of the statute in such case' made and provided, and against the peace and dignity of the people of the State of Michigan. «
“Note—See Act No. 328, § 118, Pub. Acts 1931.
William E. Dowling,
Prosecuting Attorney.”
It appears that in 1928 the board of Wayne county auditors created a bureau of investigation and assigned to it investigative and clerical duties concerning indigent adult patients hospitalized at county expense. On June 29, 1934, defendant was appointed director for an indefinite period. He did not file an oath or bond before entering upon his duties, nor was he required to. The functions of the bureau of investigation were interviewing and investigating prospective patients as to their financial status; the collection of money to reimburse the county; and checking and comparing claim vouchers with probate orders and records. The bureau of investigation had no authority to induct a patient into a hospital. Such authority was vested in the probate court, and later in the county welfare commission. As a matter of practice, when the bureau, of investigation determined that a patient was eligible to hospitalization at county expense it would recommend the hospital or home where the patient could be sent. About 12,000 patients a year were investigated by the bureau of investigation.
Prior to the trial of the cause defendant filed a motion to quash the information for the reasons that defendant was not an executive officer as charged in the information; that defendant was an employee or agent; that the information did not charge that defendant gave his vote, opinion or judgment as required by section 118 of the Michigan penal code (Act No. 328, Pub. Acts 1931 [Comp. Laws Supp. 1940, §17115-118, Stat. Ann. §28.313]); that the charging portion of the information charged a mere use of influence; and that the examining magistrate made no finding as to any particular crime that had been committed. Said motion to quash the information was denied by the trial court.
Defendant also made a motion for a continuance because of the publication of the following newspaper article prior to the trial of the case:
“Good Monet Aetee Bad
“Bay D. Schneider, ousted Wayne county auditor charged with accepting bribes, has been brought to trial. A great deal of public money has been spent to establish that evidence against him warrants presentation of the case to the jury. A further substantial sum must go out of the tax-supported coffers to determine his guilt or innocence.
“Nor is there ground to hope that should the present jury convict Schneider it would terminate this outlay. If he chooses, the ex-auditor can' protract the processes of justice indefinitely—as witness former prosecutor Duncan C. McCrea and former sheriff Thomas C. Wilcox. Long since convicted of betraying the public’s trust, they still are free men by reason of appeal processes.
“Other Wayne county officials and appointees— among them another former auditor, Edward H. Williams—accepted jury findings without taking recourse to further court fights and are now in prison. Having cheated Wayne county’s taxpayers out of scores of thousands of dollars by their malfeasances, having put the State and county to the cost of trying them, they are now being supported by the State as inmates of institutions.
“Altogether, Michigan’s taxpayers have taken a thorough financial drubbing from corrupt officials in this county. With the opportunities for pilfering Wayne’s present governmental form offers, it is inevitable that sooner or later another gang of rogues will take it over. Then the whole costly, shameful process will have to' be gone through again—with every taxpayer in Michigan as the ultimate sucker.
“When Wayne county asks that the voters of Michigan’s other counties join with it next Nov. 3 in voting for a measure that will enable it to devise a modern, economical, graft-proof government, it isn’t pleading for the acceptance of a theory. It is asking for something the distressing need for which can be read directly out of tomes of grand jury evidence, confessions and court records—something that will halt the outpouring of public moneys that can’t be dammed so long as Wayne is governed by the ancient, creaking administrative machinery it now possesses.”
There was also published in the newspaper another article of similar import.
The trial court denied'the motion for a continuance and the cause proceeded to trial. A jury was selected, and one Celia Knoedler testified that she gave defendant $50 to “get business.” The jury brought in a verdict of guilty. Thereafter defendant made a motion for a new trial. Among the reasons stated are that defendant was not an officer within the meaning of section 118, Michigan penal code; that he did not act in the capacity of an officer; and that the court erred in giving the jury conflicting and confusing instructions. The trial court denied the motion for a new trial, and upon leave being granted, defendant has appealed, and again renews the reasons stated in his motions to quash the information and for a new trial.
The information filed in this case was by virtue of section 118 of the penal code, Act No. 328, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-118, Stat. Ann. §28.313). This statute provides that any executive, legislative or judicial officer who shall corruptly accept any gift or gratuity, or any promise to make any gift, or do any act beneficial to such officer under an agreement, or with an understanding that his vote, opinion or judgment shall be given in any particular manner, shall be guilty of a felony. In the information filed in this cause there was added to his “vote, opinion or judgment” the words “in that he would use his influence.” The trial court instructed the jury as follows:
“However, the statute under which this prosecution is brought, provides:
“ ‘Any executive, legislative or judicial officer, who shall corruptly accept any gift or gratuity, or any promise to make any gift, or to do an act under an agreement and with an understanding that his vote, opinion or judgment or influence shall be given in a particular manner, and upon a particular side of a question, cause or proceeding, which may be pending or may by law be brought before him in his official capacity. ’ ”
The people urge that it is not imperative to always adopt the exact words of the statute, provided other language of like import and certainty is used, citing People v. Covelesky, 217 Mich. 90. We are in accord Y?ith the theory of the cited case, but in our opinion it has no application to the facts in the case at bar. In the instant case the statute provides for vote, opinion or judgment. It does not make it a crime to use influence.
The information is much broader than the statute. The facts indicate that defendant did use his influence to have patients assigned to the Knoedler Convalescent Home. The jury might well have con sidered the term “influence” in bringing about a conviction. It was error to try defendant on an information that not only did not conform to the statute but was so broad that a jury could consider facts which were not elements of the crime.
It is also urged that defendant was not a public officer within the meaning of section 118 of the penal code, Act No. 328, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-118, Stat. Ann. §28.313). In considering this question we have in mind that the bureau of investigation was created by the board of auditors as a servient organization dependent upon the auditors for its powers and duties and that defendant had no powers or duties which were not changeable at the will of the auditors.
In People v. Freedland, 308 Mich. 449, we quoted with approval from State, ex rel. Barney, v. Hawkins, 79 Mont. 506, 528, 529 (257 Pac. 411, 53 A. L. R. 583), as follows:
“After an exhaustive examination of the authorities, we hold that five elements are indispensable in aiiy position of public employment, in order to make it’a public office of a civil nature: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional.”
The duties of defendant were not performed independently and without control of the board of auditors. His duties were to ascertain facts and make recommendations. He had no power to determine policies, enter into contracts, or vote upon any question. He was not an executive within the meaning of the act under which he was convicted. He should have been proceeded against, and if found guilty, sentenced under section 125 of the penal code, Act No. 328, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-125, Stat. Ann. § 28.320.)
The judgment is reversed, but without prejudice upon the part of the people to file a new information under section 125 of the Michigan penal code.
North, C. J., and Starr, Bushnell, Boyles, and Reid, JJ., concurred with Sharpe, J. Wiest and Butzel, JJ., concurred in the result. | [
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North, C. J.
On January 25, 1941, plaintiff was riding as a passenger in an automobile proceeding' southerly on Telegraph road, a four-lane highway, near Monroe, Michigan. Except as to the claim that •the amount of damages adjudged was excessive, the questions presented on this appeal are procedural, and hence details of the accident need not be stated. It is sufficient to say that a truck belonging to defendant Sauer Cooperage Company was passing, or, as plaintiff claims, suddenly stopped along side of, an automobile parked in the outermost southbound traffic lane, and the car in which plaintiff was riding ran into the rear end of the truck. Almost simultaneously the automobile of defendant. Hamilton crashed into the rear end of the car in which plaintiff was riding and plaintiff was injured. Plaintiff brought this suit against the Sauer Cooperage Company and Hamilton as codefendants, plaintiff claiming they were joint tortfeasors. Upon trial by jury a verdict of $8,500 was rendered against the two defendants, and judgment entered thereon. Each of the defendants made a motion for a new trial. The motion of the Cooperage Company was granted, and the motion of defendant Hamilton was denied.- The case is before us on the appeal of defendant Hamilton.
We first consider the claim that the trial judge in granting the Cooperage Company’s motion for a new trial committed error for the reason that this motion was not made until more than 20 days after the entry of judgment and without an extension of time having been granted. See Court Rule No. 47 (1933). There is no merit to this contention. Clearly it was within the discretion of the trial court to grant an extension of time; and since the' court heard and disposed of the motion on its merits^ it should be considered that the court in effect extended the time for making the motion. The court had the power to grant a new trial of its own motion. General Necessities Corp. v. Wayne Circuit Judge, 214 Mich. 138. Neither plaintiff nor defendant Hamilton objected to the Cooperage Company’s motion for a new trial at the time of its hearing on the ground that it was belatedly made. It is now too late to make such objection for the first time.
After this record on appeal was settled, plaintiff petitioned for leave to appeal from the circuit judge’s order granting a new trial to the Cooperage Company, urging error in that particular on the ground above considered and also that under the circumstances of the instant case granting the motion was an abuse of discretion. We have considered the various reasons assigned by plaintiff, but do not find in them justification for setting aside the order granting a new trial to the Cooperage Company.
A more important question presented by appellant is stated in his brief as follows:
“In the event of trial resulting in judgment against joint tortfeasors, may the court, grant a new. trial as to one tortfeasor permitting the judgment to stand against the other tortfeasor?”
Appellant asserts that because of the recent passage of the so-called contribution statute (Act No. 303, Pub. Acts 1941 [Comp. Laws Supp. 1943, § 14497a et seq., Stat. Ann. 1943 Cum. Supp. § 27.1683 (1) et seq.}) hereinafter quoted in part, error was committed in granting a new trial to one of two joint tortfeasors and denying a new trial to the codefendant. At common law a new trial could not be granted to one of several joint tortfeasors without granting a new trial to other codefendants because the judgment was regarded as an entirety which must be affirmed or reversed as to all or none. Burton v. Roberson, 139 Tex. 562 (164 S. W. [2d] 524, 143 A. L. R. 1), and annotation 143 A. L. R. 7. But this rule has been changed and the modern rule generally followed, although not universally, is that a new trial in a tort action may be granted as to one of several defendants and not granted as to others; and a case may be dismissed as to one or more of such defendants and judgment entered against the remaining codefendants. In some jurisdictions this change in the rule of law has been accomplished by statutory enactments. In Michigan the modern rule has been adopted as a matter of case law. Bowerman v. Detroit Free Press, 287 Mich. 443 (120 A. L. R. 1230). However, it should be noted1 that in this jurisdiction there are pertinent statutory provisions.
“It shall he lawful for any plaintiff to include in one action as defendants, all or any of the parties who may be severally, or jointly and severally liable, and to proceed to judgment and execution according to the liability of the parties.” 3 Comp. Laws 1929, §14023 (Stat. Ann. §27.667).
“In any action against two or more defendants, judgment may be rendered for the plaintiff against some one or more of the defendants.” 3 Comp. Laws 1929, §14517 (Stat. Ann. §27.1443).
In Moreland v. Durocher, 121 Mich. 398, the pláintiff joined in a tort action two parties as principal defendants. After judgment each of these defendants moved for a new trial in his own behalf; and the trial court granted the motion as to one but denied it as to the other. On appeal this holding was affirmed, and incident thereto Justice Montgomery said:
“The question of most importance arises out of the action, of the court in granting a new trial as to a portion of the defendants, and allowing the judgment to stand as to the remainder. It is contended1 by the defendants that the effect of this order was to vacate the judgment as to all, and that upon the recovery of verdict and judgment against several defendants, whether in an action of tort or upon contract, a new trial cannot be granted as to a portion of the defendants only. Authorities are not wanting to sustain this contention, but the modern authorities sustain the ruling of the circuit judge. * * * In this case the plaintiff might have proceeded against'the defendants as to whom the’judgment now stands, or she might have discontinued the case as to their co-defendants at any stage of the proceedings. It is not easy to perceive, therefore, where the action is thus severable as well as joint, and where the right exists to proceed against a portion or all of the defendants, why the plaintiff should be compelled to lose her judgment against a portion because it appears that the others are entitled to a new trial.”
See, also, Robinson v. Railroad Co., 135 Mich. 254 (15 Am. Neg. Rep. 341). While we deem the holdings just above noted applicable to and controlling of the instant case, it should be noted that because of peculiar circumstances touching the relation to each other of the respective tortfeasors, a case might arise in which the noted rule would not be applied because doing so would work obvious injustice. Strickler v. International Harvester Co. (Tex. Civ. App.), 141 S. W. (2d) 989. But we find no such interrelation or other controlling circumstances which render the general rule inapplicable to the instant case. In Federal practice a new trial may be granted to one defendant and denied to another unless there is a relation between the joint tortfeasors which would cause injustice to result from granting a new trial to one and denying it to another of the codefendants. Dollar S.S. Lines, Inc., v. Merz (C. C. A.), 68 Fed. (2d) 594, citing Pennsylvania-Railroad Co. v. Jones, 155 U. S. 333 (15 Sup. Ct. 136, 39 L. Ed. 176).
We are not in accord with the claim of defendant Hamilton that the recently enacted contribution statute, Act No. 303, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 14497a, Stat. Ann. 1943 Cum. Supp. §27.1683 [1]), changes the Michigan rule. The pertinent.portion of this statute reads as follows:
“Whenever a money judgment has been recovered jointly against 2 or more defendants in an action for bodily injury or death resulting therefrom, or property damage, and such judgment has been paid in part or in full by 1 or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment: Provided, however, that no defendant shall be compelled to pay to any other such defendant an amount greater than his pro rata share of the entire judgment.”
It must be presumed that had the legislature intended to change the well-established practice in the courts of this State in the particular under consideration it would have done so by an appropriate .enactment. Since such a change has not been accomplished, we adhere to the former rulings of this Court above noted.
The remaining issue on this appeal is presented by defendant Hamilton who claims that the verdict and judgment against him in the amount of $8,500 is excessive, and that in event a new trial is not granted on grounds hereinbefore considered1, the judgment of $8,500 should be reduced or a new trial granted. The record discloses that the impact of the Hamilton car colliding with the rear of plaintiff’s car caused her to be thrown against and through the windshield. Her face was badly cut, leaving disfiguring scars, which at least to some extent are permanent in character according to testimony given. At the trial, which occurred more than two years after the accident, the character and extent of the scars en plaintiff’s face were pointed out and closely observed by the jury during the testimony of a doctor who on the eve of the trial had examined the condition of plaintiff’s face. One of the scars, about a quarter of an inch in width and eight inches long, extended from plaintiff’s forehead down through the eyebrow to the upper right eyelid and back to the temple- region. Several other scars on plaintiff’s face were pointed out to the jury while the doctor was testifying; and concerning one he said: ‘‘She has a scar through the right lower 'eyelid which turns the inside of the eyelid outward. * * * It is permanent.” A sear on the right side of plaintiff’s nose “went right through the full thickness of the nose, and through part of septum.” Plaintiff testified that she was unconscious as a result of this accident, that she was in the hospital for about three weeks and then went to the home of her people where she was in bed. She further testified:
“During the time I was in the hospital I suffered pain and suffering with my head. I had1 injuries on my forehead, nose, head and left leg. There was a hole in my left leg at that time. * * * The injury to my face took over 100 stitches. * * * I have severe headaches. They occur about once in two weeks, sometimes oftener. I still have difficulty that way. I am conscious of the scars on my face.
“Q. Does it embarrass you some all the time?
“A. Yes.”
Plaintiff’s expectancy was shown to be 41.53 years at her age of 21. Obviously she must go through life with facial disfigurements of the character indicated. Her personal appearance before the jury was much more indicative than anything that can be included in a printed record of the amount of damages which would constitute just compensation. Prom the record1 as a whole we cannot say that the amount of the verdict and judgment was excessive to the extent that it should be disturbed on this appeal.
The orders of the circuit judge made incident to the motions for new trials and the judgment for plaintiff against defendant Hamilton are affirmed. Each of the other parties will have costs of this Court against appellant.
Stare, Wiest, Btjtzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
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Fead, J.
This is a bill for specific performance of alleged agreement by Fred and Alice Paris with plaintiff to leave him their property by will and of contract to the same effect between them for his benefit. The evidence did not support the former and the court held the latter was not proved.
About 1890 Fred Paris, a Chicago broker, was divorced from his first wife. Defendant Nellie Scott was the only issue of the marriage. Nellie went west with her mother. Fred later married Alice. For some time Nellie visited her aunt in Chicago yearly' and, on such occasions, saw her father. She had no contact with her stepmother and did not stay at her home. She last saw her father in 1907 and thereafter had practically no correspondence with him.
In 1899 Fred and Alice Paris took plaintiff from an orphan asylum into their home, under contract to keep him until he was 16 years of age and, with his consent, two years more. They became attached to him and he continued to reside with them until he made a home of his own. Plaintiff claimed that when he was about 10 years of age they agreed they would will him their property if he should continue to be a good son to them. The claim was not proved. In 1905 they had him baptized as Charles Fielding Paris, their son.
In 1912, when plaintiff was 23 years old,, he decided to marry and wanted lawful use of the Paris name. Alice did not like his choice of wife. Adop tion proceedings were liad but, at Alice’s insistence, plaintiff executed an instrument disclaiming all right to inherit from either of his adopted parents. Alice attached the disclaimer to the adoption papers and it was so kept in a safety deposit box to the time of her death. All parties believed plaintiff was legally adopted. After the death of both parents, however, a decision of the Illinois supreme court was discovered holding void adoption proceedings of a person over 21 years of age.
In. 1914 Fred Paris retired from business and moved upon a farm in Michigan. While paying alimony to his first wife, Alice had required him to pay her a like amount. Both contributed to the purchase of the farm, the title to part of which was taken in Fred and part in Alice. They continued to live there until the time of their death.
In 1929 each made a will leaving all his estate to the other and executed deed of his real estate to the other. The wills and deeds were kept in a safety deposit box. The scrivener testified that they told him they had agreed to do this and that the survivor was to leave his remaining estate to plaintiff. There was further testimony that after the will was made one or the other told friends they had agreed to will their property to each other and the survivor was to leave the residue to plaintiff.
Alice died October- 9, 1931. Fred died 17 days later. After Alice’s death Fred found the adoption papers in the safety deposit box with inheritance disclaimer by plaintiff attached. He also found a letter from Alice. He and Charles destroyed both disclaimer and the letter and their contents are not before us. The probate of Alice’s estate was begun. In a few days Fred was taken sick and sent for the scrivener who drafted the wills. He talked with him about drawing a will, as he and Mrs. Paris had agreed, leaving the property to plaintiff but giving his daughter $10 so she could not attack the will. He also told of the letter, which he called a “curse letter” and which stated in substance that:
“If any of the blood of the Paris’ received any of her property in any way, her curses would be upon them until their dying day. ’ ’
Fred told the scrivener the letter had crushed him, he did not know what he had done to deserve it, and he did not want to do anything that would leave anybody’s curse upon him. He cried a great deal about the letter. He asked the scrivener how the property would descend if he did not make a will and was told that plaintiff and Nellie would take equally. He said he wanted to think over the matter of a will and asked the scrivener if he would come back when he was sent for. He did not send for the scrivener again but died intestate three days later.
The testimony preponderates that Fred and Alice Paris intended plaintiff to take their estate on death of the survivor. But the question is whether they contracted to that effect. The gist of the action is that a binding contract was made between them so that failure of Fred to make the intended will was a fraud upon Alice, who had performed her part of the agreement.
In cases of this kind, the testimony of witnesses must be viewed with great caution, because of the frailties of memory, the improbability of repeating the precise language of a person since deceased, of fairly expressing the full state of mind of such person, and because the change of a word may mean the difference between a binding contract and a mere expression of intention. Care must also be taken. lest the court, out of considerations of equity or sympathy, make a contract for the parties where none existed, even though such contract might or would express their desires. "Where the alleged contracting parties cannot testify, their acts loom large as compared with what witnesses say they said.
Without attacking the credibility of any of the witnesses, the case presents persuasive indices that the conversations relied upon were merely expressions of intention rather than of a contract which Fred and Alice Paris considered binding on them.
The incident of the disclaimer on adoption of plaintiff, its retention by Alice to the time of her death, and the “curse letter” indicate that Alice would not be likely to bind herself to leave her property to plaintiff if, for instance, he should marry a woman whom she did not like. The curse letter demonstrates the strength of her feelings and, if there had been a positive agreement that Fred should will his property to plaintiff, it is incredible that the letter would not have mentioned it. When Fred was talking of his will after her death, it is obvious he did not recognize a binding obligation to her to leave his property to plaintiff because, in spite of his intense distress at the letter, he was still interested in learning the effect of intestacy and wanted further time to think over the matter of making a will.
In our opinion, the court reached the right conclusion and the decree dismissing the bill is affirmed, with costs.
Nelson Sharpe, C. J., and Potter, North, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
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Bushnell, J.
(dissenting). The sole question presented in this appeal, in the nature of certiorari from the department of labor and industry, is stated by plaintiff and appellant James Barclay as follows:
“Is the recent aggravation of a pre-existing non-disabling hernia, which aggravation causes total disability, compensable under the workmen’s compensation law?”
Appellee and defendant Pontiac Motor Division, General Motors Corporation, prefers to state the question in this manner:
“Was plaintiff’s hernia clearly recent in origin so as to be covered under paragraph 28 of section 2, part 7 of the workmen’s compensation law?”
Barclay has been employed by defendant since 1935. In October of 1942, aided by a fellow employee, he picked up a breech case, weighing approximately 100 pounds, and placed it in a fixture, for checking. As he did so, he felt something break in his left groin. He reported the incident to his foreman, who sent him to the first-aid station. The following day he returned to work, wearing 'a support, and was placed on a lighter job. About 15 days later the pain became so severe that Barclay was unable to continue his work. A physician who examined him the next day advised a herniotomy. This operation was performed in November and Barclay' returned to work in January. He sought compensation for that period and for his medical and hospital expenses under the provisions of part 7 of the workmen’s compensation act, generally known as the “occupational disease amendment. ”
There is some indication that Barclay had a hernia in 1931, and there is no question about the fact that in 1936 he sustained a left inguinal hernia, which was repaired. Dr. Ethan B. Cudney, the industrial surgeon of defendant company, who examined Barclay on October 15, 1942, said that his examination revealed a hernia “so large that it practically obliterated the scrotum,” and he stated that, in his opinion, the hernia “had been there for several years, four or five years, maybe longer.” He testified in part as follows:
“I have never seen a hernia as large as Mr. Barclay has, that hadn’t been present for a matter of, I would say, a matter of years. I don’t think it is a matter of days or a matter of weeks; a hernia that large could not happen in a matter of two or three weeks and still have the man continue'to be on his feet, and it • would take a tremendous—it would be a tremendous amount of disability. In fact, it would be practically a fatal thing to have a hernia develop in a few weeks to the size Mr. Barclay’s was when I examined him. In fact, most of the time hernias, or acute hernias, are very small, and we sometimes have to make several examinations to determine whether there is a hernia present or not.”
Dr. Howard B. Barker, who testified in behalf of plaintiff, examined Barclay on October 20, 1942, and performed the herniotomy in November. He found “a large left inguinal hernia on the left side, with numerous adhesions between the various layers of the abdominal wall.’-’ He stated that a strain might have increased Barclay’s disability, and that “usually a sudden pain on straining, in the inguinal region, means the separation of muscle or the tearing of adhesions, if they are present.” On cross-examination he testified that “the presence of adhesions and the thickness of the neck of of the sac would indicate that a hernia had been present for some time.” He stated that from the history he obtained’ from Barclay he “judged that he had had something there, that his abdominal wall had not been intact since the disturbance four months after his second operation,” and that “he had a hernia for some time, in other words, for several years.” On redirect examination he said: “Accepting the history as given, I would say that he must have had some—some change in the condition of the inguinal canal as a result of the strain.” On recross he answered that what he found would indicate that the swelling or lump had1 been present for some time; and, on redirect, replied to the inquiry as to whether or not the recurrence was old, that: “You can only make a relative statement. You can’t tell how old nor you can’t tell exactly how young.”
The deputy commissioner then asked Dr. Barker about the adhesions, to which he replied:
“In the hernia, you have three layers, primarily; you have the peritoneum, which is the sac itself; you have the internal oblique muscle and you have the external oblique fascia, which [is] the media portion of the external oblique muscle. In doing an operation for hernia, you open the external oblique fascia, you divide or separate the fibers of the internal oblique muscle from the portion of Poupart’s ligament, and you dissect out the peritoneal sac. You remove the peritoneal sac, close the neck, suture the internal oblique muscle to the shelving portion of the Poupart’s ligament, by means of some type of suture material, either absorbable or nonabsorbable, and you close the opening in the ex ternal oblique fascia. You can’t do that in any hernia without leaving adhesions. That is, there are adhesions between the various layers after you do that operation, between the peritoneal layer and the internal oblique, between the internal oblique and the external oblique fascia, and of course each time that an operation is done, if you have two operations, you have more adhesions than you do with one operation, so that there are adhesions between the peritoneum and the internal oblique, and between the external oblique fascia and the internal oblique muscle.”
The deputy commissioner concluded that the hernia was not of recent origin, and denied compensation. On review, the department considered that, although Riley v. Berry Brothers Paint Co., 293 Mich. 500, involved the question of whether the claimant promptly reported a hernia, this authority was directly in point and, after quoting at length from the court’s opinion, concluded that:
“Inasmuch as plaintiff had a left inguinal hernia prior to the incident of October 14, 1942, that condition could not have been recent in origin notwithstanding the fact the condition was not previously disabling.”
■ The department held that:
“A recent aggravation of a pre-existing hernia which causes total disability is not compensable under section 2 of part 7 of the workmen’s compensation act,”
and affirmed the award1 of the deputy commissioner, disallowing compensation.
Hernia was defined in Robbins v. Original Gas Engine Co., 191 Mich. 122, as follows:
“All, the experts seem to agree that the visible evidence of the hernia is the protrusion through the inguinal ring of the peritoneum and its contents; ‘the hernia is the peritoneum going through, accompanied by the intestines or some other substance.’ ”
The court further said:
“But the testimony for respondents is to the effect that the peritoneum is incapable of sudden, and is capable of v.ery gradual, extension; that the sudden complete development of hernia in a pathological sense is impossible, but the hernia may be felt—the sudden projection of hernial contents into the preformed sac—for the first time during a straining effort. Various medical authorities to ■which the court is referred appear to sustain the proposition that hernia is of slow formation and can never arise from a single augmentation of intra-abdominal tension, however great it may be.”
Under the workmen’s compensation law (Act No. 10, Pub. Acts 1912. [1st Ex.* Sess.], 2 Comp. Laws 1929, § 8407 et seq. [Stat. Ann. § 17.141 et seq.]), compensation for hernia could only be “allowed because of some unusual, fortuitous, or unexpected happening which caused the injury and which was in essence accidental in character.” Kutschmar v. Briggs Manfg. Co., 197 Mich. 146 (L. R. A. 1918 B, 1133). See, also, Nagy v. Solvay Process Co., 201 Mich. 158, and Sjoholm v. Hercules Powder Co., 227 Mich. 610.
The so-called occupational disease amendment (Act No. 61, Pub. Acts 1937 [Comp. Laws Supp. 1940, § 8485-1 et seq., Stat. Ann. 1942 Cum. Supp. § 17.220 et seq.]) added a new part 7 to the workmen’s compensation law and provided for compensation for disability arising from 31 specified “occupational diseases,” among them being No. 28, Hernia, “clearly recent in origin and resulting from a strain, arising out of and in the course of employ ment, and promptly reported to the employer.” Riley v. Berry Brothers Paint Co., supra.
By Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 8485-1 et seq., Stat. Ann. 1943 Cum. Supp. §17.220 et seq.), part 7 was amended by striking therefrom the 31 specific diseases covered, and providing for compensation for any disease or disability “due to causes and conditions which are characteristic of and peculiar to the business of the employer, and which arises out of and in the course of the employment. ’ ’ To this was added the following:
“Ordinary diseases of life to which the public is generally exposed outside of the employment shall not be compensable: Provided, however, That a hernia to be compensable must be clearly recent in origin and result from a strain arising out of and in the course of the employment and promptly reported to the employer.”
Thus the limitation on compensation as it existed at the time of Barclay’s claimed hernia was retained in the law by the 1943 amendment, although in slightly different language.
Our problem is to determine whether the department correctly applied the 1937 limitation to the facts in Barclay’s case.
A helpful discussion may be found in Detroit Law Review of November, 1933, vol. 4, p. 13, in an article entitled, “Hernia in Workmen’s Compensation Cases.”
In the solution of this problem we must first determine the intent and meaning of Act No. 61, § 2, item 28, Pub. Acts 1937 (Comp. Laws Supp. 1940, §8485-2, Stat. Ann. 1942 Cum. Supp. §17.221), which determination is also applicable to section 1, paragraph (c) of the same act, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 8485-1, Stat. Ann. 1943 Cum. Supp. § 17.220).
Neither the act of 1937 nor the act of 1943 precludes an award of compensation for hernia resulting from an accident or the intervention of an “unusual, fortuitous, or unexpected happening which caused the injury and which was in essence accidental in character.” Kutschmar v. Briggs Manfg. Co., supra, 150. These amendments to the compensation law extend the right of compensation to those situations in which the accidental element is lacking and should, be applied, in so far as legislative intent permits, to instances of aggravation of nondisabling hernias, such as that described in Paridee v. Great Atlantic & Pacific Tea Co., 278 Mich. 191, where, prior to such amendments, compensation was not permissible. Any other holding would prevent those so situated from obtaining employment and performing gainful work. At the same time, it was undoubtedly the intent of the legislature, particularly in view of the new section added by Act No. 264, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 8485-14, Stat. Ann. 1940 Cum. Supp. § 17.230 [3]), effective October 29, 1937, which pro7 vided for hernia waiver within 120 days from the effective date of this act, Barry v. Briggs Manfg. Co., 296 Mich. 137, to avoid the burden of compensation for pre-existing hernias and to permit employment of those so situated. It is obvious, although the legislature did not say so, that commonsense dictates that the employer would protect itself by proper physical examination of new employees. In short, the legislature sought, and we third?; effectively, to provide compensation for those employees who suffer a loss of earnings by reason of, not only a subsequent hernia, but also those whose pre-existing, nondisabling hernia becomes aggravated. Lohrman v. Haven-Busch Co., 293 Mich. 143.
If the department in the instant case had arrived at its conclnsion by reason of a finding that Barclay’s hernia existed prior to the time of his disablement, there would be nothing left for us to say. However, the department did not do this. It concluded that “a recent aggravation of a pre-existing hernia which causes total disability is not compensable,” and this solely because Barclay “had a left inguinal hernia prior to the incident of October 14, 1942.” Such holding is legally erroneous in view of our construction of the statute. Nevertheless, we should not substitute our judgment on the factual aspects of the case for that of the. department, but rather the department should pass upon the factual situation.
We have heretofore pointed out, by quotations from the testimony, the difficulties encountered in such determination. Our view in this respect has been frequently expressed, and in amplification of that view we adopt with approval the language of the supreme court of Wisconsin in McCarthy v. Industrial Commission of Wisconsin, 194 Wis. 198 (215 N. W. 824), as follows:
“It appears not only from the statement filed1 by the industrial commission in this case, but from an examination of the workmen’s compensation reports, that the industrial commission is frequently called upon to deal with hernia cases, and that they are perhaps the most troublesome cases with which the commission comes in contact. This is due to the fact that inguinal hernia is rarely of traumatic origin, but that it has a gradual development, and its final culmination is frequently, if not generally, due to some strain which can be said to be incidental in its nature. The frequency of these cases has -enabled the members of the industrial commission to become thoroughly familiar with the nature, development, and progress of 'the ailment, and they bring to the consideration of such eases a knowledge and experience which, enables them to pass most discriminatingly npon the evidence produced. It is scarcely too much to say that they are experts upon the subject. At any rate, none can deny that they are far better qualified to draw proper inferences from the physical facts than those who do not possess the peculiar knowledge of the subject which they have acquired by reason of their experience and contact with hundreds of such cases. * * * The convincing power of expert testimony depends somewhat upon the knowledge and experience of the one who is called upon to weigh such testimony. The untutored are likely to accept the opinion of an expert at its face value, while those possessing knowledge upon the subject concerning which he testifies may discount it or entirely disregard it as unsound.”
The award of the department of labor and industry should be vacated and the matter remanded to the department for further consideration of the factual aspects of the case, in conformity with this opinion. It should be so ordered, with costs to appellant.
Starr, J., concurred with Bushnell, J.
Wiest, J.
(for affirmance). I am of the opinion the holding of the department should be affirmed.
Plaintiff’s right to an award, if any, is under the provisions of the statute as it stood in 1937 (Act No. 61, Pub. Acts 1927 [Comp. Laws Supp. 1940, § 8485-1 et seg., Stat. Ann. 1942 Cum. Supp. § 17.220 et seg.)), and the act of 1943, cited by my Brother, has no bearing npon the issue in this case. Was the hernia of recent origin? A recurrent hernia is not a hernia of recent origin.
The department found that the disabling hernia suffered by plaintiff was a recurrence of a former hernia in 1936, and the evidence at the hearing, inclusive of plaintiff’s own testimony, establishes beyond cavil such to be the fact. Plaintiff admits that he had a hernia in the same groin in 1936 and then had an operation at a hospital and by direction of his doctor wore a support for about nine months and at times, later, it pained and swelled to the size of a small egg. After the hernia in 1942, plaintiff went to the company doctor who examined his condition and took his history but did not perform an operation. The doctor testified:
“I have never seen a hernia as large as Mr. Barclay has, that hadn’t been present for a matter of, I would say, a matter of years. I don’t think it is a matter of days or a matter of weeks; a hernia that large could not happen in a matter of two or three weeks and still have the man continue to be on his feet, and it would take a tremendous—it would be a tremendous amount of disability. In fact, it would be practically a fatal thing to have a hernia develop in a few weeks to the size Mr. Barclay’s was when I examined him. In fact, most of the time hernias, or acute hernias, are very small, and we sometimes have to make several examinations to determine whether there is a hernia present or not.”
Dr. Howard B. Barker testified that he examined and operated on plaintiff; that October 20, 1942, plaintiff “had a left inguinal hernia, recurrent;” that plaintiff “had a large left inguinal hernia on the left side, with numerous adhesions between the various layers of the abdominal wall.” At the time of the operation he found plaintiff “had a large sac with a large neck or opening, sac showed considerable peritoneal fat around it. There were adhesions between the muscle, the adjacent muscle and the neck of the sac, and adhesions between the various layers of muscle, or external oblique fascia and the internal oblique muscles,” which indicated “that there had been a previous disturbance of the muscles and, of course, in this case, we assumed that the previous disturbance was the previous operation,” and the adhesions and a portion of the neck of the sac being thick would indicate that the hernia had existed for some time.
Plaintiff testified that following the operation in 1936, the hernia had been getting worse and started to bother bim just a few months after he went back to work and has bothered him “on and off, all along;” that he first noticed1 the swelling more than a year “after I had taken the last injection,” which “would be somewhere around * * * 1937 or 1938.”
The denial of an award is affirmed, with costs to defendant. | [
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Beid, J.
The decree in this contested divorce ease was rendered in favor of plaintiff on the. ground of extreme cruelty. Defendant appeals.
■ Defendant claims that the testimony was insufficient to support a decree, that the plaintiff’s allegations were not proven by a preponderance of the evidence, that the decree was rendered on the grounds of public policy, and that plaintiff failed to prove the domicile of plaintiff, as the result of which the court vías without jurisdiction. This being a chancery hearing, we hear the case de novo.
Plaintiff produced convincing testimony to establish the fact that defendant used vile and, opprobrious words in speaking to her and about her within her hearing," accused her of a want of chastity and upon at least one occasion used personal violence upon her. The testimony is all one way, that she was of good character. Defendant was frequently drunk, Sn which occasions he was guilty of the conduct complained of. He explains his intoxication by saying that the plaintiff went with him to beer parlors and encouraged Mm in his intoxication, which claim on the part of the defendant we find not proven. Plaintiff testified that she was obliged to leave him on three different occasions on account of his drunkén condition, but on former occasions she came back on a promise of good conduct. She says she “got kicked out the last time” and was obliged to leave with none of her effects.and only the clothing that she had on.
In his opinion the trial court says,
“Although our courts have held-time and time, again divorces shall not be granted on any matter of public policy, still it is very apparent these parties are going to be recurrent in their complaints to the court and they will not live together. They can get a divorce today and make an application for a marriage license tomorrow and the court cannot prevent it. There is no way of knowing relative to that. They have tried three separate times to get along.”
A careful reading of the entire opinion of the circuit judge would not warrant the conclusion that he based his decree on a matter of public policy, but on the contrary, came to a conclusion that the plaintiff had established her case by a preponderance of evidence.
On the question raised by defendant that plaintiff failed to prove the domicile of plaintiff, and that the court was without jurisdiction, we find this not sustained by the record. Although that question was not raised on the hearing in the trial court, nor assigned as reason or ground for' appeal, defendant nevertheless is at liberty to raise that question and we would dismiss the suit if we found a want of jurisdiction on such ground. See Lehman v. Lehman, ante, 102, in which case, however, neither in the pleadings nor in the testimony was there anything to show that the plaintiff lived in the county of Chippewa, the bill of complaint having been filed in the circuit court for the county of Chippewa in chancery.
In the instant ease the plaintiff swears in the bill of complaint,
“2. That plaintiff is a resident of the city of Flint, in the county of Genesee and State of Michigan, and has resided in the State of Michigan for a period upwards of two years immediately preceding the commencement of this suit.”
The bill of complaint waived verification of defendant’s answer. However, defendant filed a sworn answer and therein admits the quoted allegation in paragraph 2 of the bill, so that we have the sworn statement of plaintiff in the bill and the sworn statement of defendant in his answer, showing the residence of plaintiff, requisite to jurisdiction.
We assume that the objection to the jurisdiction raised by defendant is therefore based on the supposed want of testimony to show such alleged residence for the period as claimed by plaintiff and admitted by defendant. Defendant upon being sworn was asked by his attorney,
“Q. You live here in Flint?
“A. Yes.
“Q. You aré the defendant in this case?
“A. Wes.”
In the testimony the “home” of the parties is spoken of as 2117 Mt. Elliott. The residence of the parties is several times spoken of in the testimony as the “home,” with no. slightest indication of a variance during the course of their married life, which lasted about three years. Plaintiff’s married daughter, Joyce Long, testified about an occasion around the first of February, 1942, when her mother was ill, and testified that in March, 1942, the witness came back again from Petoskey, where she had been living, and that she and her husband then “moved down here” to stay with and t.ake care of her mother, plaintiff,, who was then living at the “home” of the parties. The hearing on which she gave this testimony was held in Flint, Michigan, and when Mrs. Long testified she came “here” to live, she meant at Flint, Michigan. Mrs. Long further described in her testimony an occurrence in May, 1942-:
“We were downtown shopping and when we came home he was not to home; we was down the street, went over to the grocery store, went up North Baginaiv to the tea store, came back home, he still wasn’t to home. When he came in he accused her of being out with a man, then he went upstairs and started to go to bed, and he came back downstairs and said it was my fault, I caused all the arguments in the household. Then he turned around and started into mother and called her vile names, called me vile names, talked about my father to me.”
-There is no showing whatsoever in the testimony to dispute or contradict the sworn bill and answer alleging residence as above recited. There is corroboration in the testimony for such allegation of the residence. The objection to the jurisdiction is not well founded.
Each of the parties has been married before. Plaintiff’s husband died; the defendant was twice divorced from his former wife. Each of the parties has issue of prior marriage but there are no children of this marriage.
The decree for plaintiff, Elizabeth B, Taylor, found the value of the household goods to be $500, decreed that the plaintiff may elect to take the personal property and pay defendant $250 and in case she does not elect so to do, the defendant can take the household goods and pay plaintiff $250. If neither make such an election within 30 days from' date of the decree, the matter will then' be brought before the court for further distribution. The bank account, $710, is given half to plaintiff and half to defendant. The provision for plaintiff is in lieu of dower and claims to any property which the defendant owns or may hereafter own or in which he may hereafter have an interest.
A careful reading of the testimony convinces us that the plaintiff has proven her case. "We are convinced that the defendant used the vile and opprobrious language toward her with which she charges him. It was of a character to warrant a' decree in her favor. We find the decree appealed from justly and fairly disposed of the matters of property and" alimony.
The decree is affirmed. Costs to plaintiff.
Stakr, C. J., and North, Btjtzel, Btjshnell, Sharpe, and Boyles, JJ., concurred. The late Justice Wiest took no part in the decision of this case. | [
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Butzel, C. J.
Plaintiff and appellant, Fred H. Reich, Jr., seeks specific performance of a parol contract alleged to have been made in 1920 with his father, Fred H. Reich, Sr., deceased, to convey a house and lot to plaintiff in return for services to'be rendered by the latter to his parents. Fred Reich, Sr., was a resident of the city of Port Huron, Michigan, and all of his children with the exception of the plaintiff were married and maintained separate homes. Plaintiff made his home with his parents. Defendants and appellees are plaintiff’s brother-in-law, ■ sisters, brother and Leota Reich, whose exact relationship is not shown. Anna Misch, a sister, is also joined as a party defendant in her capacity as executrix of the estate of Fred Reich, Sr., who died in 1936. Plaintiff’s mother died in 1928.
Fred Reich, Sr., was the owner of an unimproved lot in the city of Port Huron. Plaintiff claims that in 1920 his father agreed that if plaintiff,, a carpenter by trade, would assist in the construction of a house on this lot and would contribute to the support and maintenance of his parents during their lifetime, he was to have the property upon their death.
Fred Reich, Sr., died on October 3, 1936. It was not until November 15, 1940,' that Anna Misch, a daughter of the deceased, offered her father’s will for probate. During this interim period plaintiff continued to occupy the premises in the belief that he was the owner. The will was allowed and Anna Misch was named executrix thereunder. By the terms of the will, the property of the deceased was devised to the children in equal shares.
Shortly after the will was allowed, plaintiff filed a proof of claim against the estate in the. amount of $1,943. Included therein was an item of $1,332 for “care, attention and support for said decedent from March, 1928 to October, ’36 (sic) 444 weeks at $3.00 per week.” On August 29, 1941, a hearing was had on this claim at which plaintiff’s counsel stated:
“We were promised the house for taking care of looking after this >old g’entleman and the claimant didn’t receive the house and he is therefore entitled to compensation on a quantum meruit basis for what he did and reimbursement for the expenses advanced.”
The court queried: “I thought now you were proving he had title to the property.” Plaintiff’s counsel replied: “No, we don’t claim the property, we claim payment for services.”
On February 24, 1942, Anna Misch, executrix, obtained from the probate court a license to sell the property involved to pay claims against the estate. The probate court ordered the premises sold and they were purchased on land contract by Ernest J. Misch, husband of the executrix and a defendant in these proceedings. Plaintiff alleges that the claims against the estate for which the property was sold were false, and that the sale was fraudulent because the purchaser was the husband of the executrix. The record indicates that at a hearing in the probate court relative to the sale of this property, plaintiff’s counsel made the following statement:
“I have no objections. I examined Parcel No. 2 myself and met these men there at the time and I believe that estimate is fair. ’ ’
The instant suit for specific performance was begun on July 2, 1942. The trial court held that by filing his claim in the probate court and disclaiming any interest in the property at the hearing, plaintiff had elected his remedy. The court found that plaintiff had made no objection to the sale of the estate’s property 'to his brother-in-law, the husband of the executrix, until an effort was made to gain possession of the premises. Accordingly, the court dismissed plaintiff’s bill of. complaint. In a cross-bill, the executrix sought recovery of rent for the entire period the premises had been occupied by plaintiff since October 3, 1936, the date of the elder Reich’s death. The decree of the trial court determined ■ an indebtedness to the estate in the sum of $472 for rent for the period beginning January 16, 1941, the date plaintiff was notified to pay rent, until the date the property was sold to Ernest Misch.
As only two questions are raised on appeal, we shall limit our discussion to them. (1) Appellant contends that at the trial he sustained the burden of proof establishing a parol contract to convey, the property as alleged. The trial court did not discuss this issue, but denied relief on the ground that plaintiff was precluded from seeking specific performance after he had elected to pursue his remedy in the probate court as a creditor of the estate. Subsequent to the rendition of the decree in this ease, the probate court allowed certain, items of plaintiff’s claim in the sum of $611, consisting largely of decedent’s funeral expenses and taxes advanced upon the property by plaintiff after his father’s death; compensation for care, attention and support of the decedent was disallowed. Examination of the record discloses no admissible testimony establishing the contractual relationship with the decedent as claimed by plaintiff. There was a showing that plaintiff assisted in the construction of his parents’ house in which he made his own home; that while decedent enjoyed steady employment, plaintiff was employed only part of the time and assisted in the housework; that decedent stated to disinterested witnesses that he was going to deed the property to plaintiff because plaintiff had worked on the house and had cared for him since the death of decedent’s wife; that decedent told plaintiff in the presence of a witness that the house belonged to decedent and the plaintiff, and that the latter was to have it after decedent’s death. Evidently, the decedent did not share this view when he made his will leaving the property to his children in equal shares. At most, there was an expression of an intent, but no contractual obligation on the part of the decedent was established.
(2) The only other question propounded by the appellant in his statement of the questions involved herein is whether the trial court was in error in holding that plaintiff by filing his claim against the estate had elected his remedy and was thereby precluded from making an inconsistent claim in the instant case. The trial court was correct. In Laird v. Laird, 115 Mich. 352, under almost similar circumstances, we held that one in plaintiff’s position who deliberately and with full knowledge of the facts elects his remedy, must abide by it.
The decree of the lower court is affirmed, with costs to defendants.
Carr, Bushnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. . | [
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Dethmers, J.
On March 2, 1925, an information was filed in the circuit court for the county of Kent charging defendant with the crime of murder. . The information did not specify the degree of the crime nor the manner, means or method of, or circumstances attending, its perpetration. Defendant entered a plea of guilty and thereupon an order was entered finding that defendant had pleaded guilty to the crime of murder in the first degree and sentencing him therefor to life imprisonment.
The record discloses no actual determination by the court of the degree of the crime, and it is conceded by plaintiff that no witnesses were sworn and examined in open court for this purpose. 3 Comp. Laws 1915, § 15194, then applicable and identical to present law (Act No. 328, § 318, Pub. Acts 1931 [Comp. Laws Supp. 1940, § 17115-318, Stat. Ann. § 28.550]) provided, in part, as to persons indicted for murder, as follows:
“If such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and shall render judgment accordingly.”
The record of proceedings had on arraignment and at time of sentence is silent on the subject, but plaintiff now has filed the affidavits of the then sheriff and of a police officer who was present at the arraignment, who depose and say that before sentence they discussed the facts of the case with the judge and that he then interviewed the defendant. It is plaintiff’s position that from these discussions the court learned that this was a killing committed in the perpetration of a robbery, and that from a full knowledge of the facts of the case, thus acquired, the court was enabled to determine the degree of the crime in conformity with the statute. But did the court, as required by the statute, “proceed by examination of witnesses to determine the degree of the crime” and “render judgment accordingly?”
As defined in 3 Bouvier’s Law Dictionary, p. 3475, a “witness” is “one who testifies under oath to something he knows at first hand. ’ ’
“The term ‘witness,’ in its strict legal sense, means one who gives evidence in a cause before a court; and in its general sense includes all persons from whose lips testimony is extracted to be used in any judicial proceeding, and so includes deponents and affiants as well as persons delivering oral testimony before a court or jury.” 70 C. J. p. 34.
“A ‘witness’ is one who has been sworn according to law and deposes as to his knowledge of the facts in issue upon the trial of a case; and ‘testimony’ means the statement made by the witness finder oath in a legal proceeding. Web. Dict.; 1 Bouv. Law Dict. 658.” Poe v. State, 95 Ark. 172, 177 (129 S. W. 292, 295).
‘ ‘ The word ‘ examination, ’ used in connection with legal proceedings, is commonly understood to mean an examination under oath or ‘affirmation.’ ” Edelstein v. United States, 79 C. C. A. 328, 332 (149 Fed. 636, 9 L. R. A. [N. S.] 236).
It is the clear intent and meaning of the statute that the court shall proceed to a determination of the degree of the crime on the basis of testimony given by witnesses sworn and examined in open court. Not having done so, the court could not, as the statute provides, “render judgment accordingly,” and it was, therefore, without jurisdiction to' impose sentence. It follows that the sentence is invalid and void.
We do not overlook plaintiff’s contention that this noncompliance with the statute amounts, at must, to no more than a slight error in procedure which has not resulted in a miscarriage of justice and for which, under the provisions of 3 Comp. Laws 1929, §17354 (Stat. Ann. §£8.1096), the verdict or sentence may be set aside. But involved here is more than a mere error in procedure, such as may be mollified by the provisions of that statute. Here defendant was deprived of an essential right, the observance of which is made mandatory by statute. In such case 3 Comp. Laws 1929, § 17354, cannot avail to save the judgment and sentence. People v. Little, 305 Mich. 482.
The case is thus left as upon a plea of guilty before sentence. A plea of guilty may be withdrawn at any time before sentence. See People v. Vasquez, 303 Mich. 340 and cases therein cited (342). See, also, opinion in People v. Sheppard, ante, 665.
The orders vacating and setting aside sentence and granting defendant leave to withdraw his plea of guilty are affirmed and the case remanded to permit withdrawal of the plea of guilty and for arraignment and appropriate proceedings upon the plea to be entered.
Carr, C. J., and Butzel, Bushnell, Sharpe, Boyles, Reid, and North, JJ., concurred. | [
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North, J.
Defendant was charged with gross indecency, admitted guilt of the specific offense charged and of other similar offenses and, upon his plea of guilty, was convicted and placed on probation. The court fixed no conditions of probation. Subsequently, at the outset of a summary hearing for violation of probation, the court informed defendant that the violation with which he was charged consisted of an attempt to entice into his automobile a 13-year-old boy. The substance of the pertinent testimony adduced .at the hearing, denied by defend ant, was that the defendant was seated m his automobile one evening, parked at the curb, and as the boy passed by defendant beckoned to him; that the boy thereupon opened the car door and defendant asked him whether he knew what was on at the show, also his age, and where he lived, offered to take him home and invited him into the car for a ride. The boy declined the invitation and ran home. At the conclusion of the hearing the trial judge, in revoking probation and passing sentence, stated that “The charge is that he just committed or attempted to commit the same identical crime of which he was convicted.”' (Gross indecency.)
Defendant appeals, contending that he has violated no conditions of probation.
Into the order for probation, containing no express conditions, must be read the statutory conditions. 3 Comp. Laws 1929, § 17373, as amended by Act. No. 308, Pub: Acts 1931 (Comp. Laws Supp. 1940, § 17373, Stat. Ann. § 28.1133), provides in part:
“The conditions of probation shall include the following:
“(1) That the probationer shall not, during the term of his probation, violate any criminal law of the State of Michigan.”
Under the circumstances of this case the claimed violation of the conditions of probation must rest upon a finding that defendant violated a criminal law. •
Inviting a 13-year-old boy to enter an automobile is, in and of itself, no offense known to the law. There is no testimony to support the people’s theory that defendant accosted, solicited or invited the boy to do a lewd and immoral act, contrary to the provisions of Act 328, § 448, Pub. Acts 1931 (Comp. Laws Supp. 1940 § 17115-448, Stat. Ann. § 28.703). Act No. 328, § 145a, Pub. Acts 1931 as added by Act No. 174, Pub. Acts 1935 and amended by Act No. 88, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 17115-145a, Stat. Ann. 1946 Cum. Supp. § 28.341) defines it as a misdemeanor to accost, entice or solicit a child under the age of 16 years with intent to induce or force that child to commit an immoral act or to submit to an act of gross indecency. The testimony shPws that defendant invited the boy into his car. It offers nothing as to defendant’s intentions except as they are to be inferred from the facts and circumstances and defendant’s own actions. As for these, the trial judge, in passing sentence, said:
* ‘ They might be innocent. They are always subject to suspicion. But coupled with his history and a definite overt act, I will find him guilty of violating his probation.”
We do not believe the facts and circumstances of the case suffice to give rise, with even a fair degree of certainty, to an inference of criminal intent.
The theory that defendant is guilty of an attempt to commit the crime of gross indecency presents not only the same inherent weakness of no adequate showing of criminal intent, but suffers from the ■further infirmity that no overt act in the nature of an attempt to commit the crime of gross indecency is disclosed by the record. In the case of McDade v. People, 29 Mich. 50, in construing 2 Comp. Laws 1871, § 7557, punishing the setting fire to buildings or to any other material with intent to cause any such buildings to be burnt, or the attempt by any other means to cause any building to be burnt, this Court held that the statute did not warrant a charge for an attempt based on solicitation alone; that the statute contemplated the employment of some physi cal means to attempt to cause the building to be burnt. In the case of People v. Youngs, 122 Mich. 292 (47 L. R. A. 108), this Court quoted with approval the following:
“ 'Between preparation for the attempt and the attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement towards the commission after the preparations are made.’ (People v. Murray, 14 Cal. 159.) ”
and also
“ 'The act [to constitute a criminal attempt] must be one immediately and directly tending to the execution of the principal crime, and committed by the prisoner under such circumstances that he has the power of carrying his intention into execution.’ (Regina v. Taylor, 1 Fost. & F. 511, 512 [175 Eng. Rep. 831])”
Assuming an intent to commit the crime of gross indecency, defendant’s act of inviting the youth to enter his car was not an act committed under such circumstances that he had the power of carrying his intentions into execution. The act, at most, can be considered no more than preparation for the attempt.
The people further urge that the language of the trial judge on the occasion of the summary hearing reveals that he had intended, at the time he placed defendant on probation some 16 months before, to impose as a condition of probation that which he neglected to express or include in the order for probation; viz., that defendant refrain from questionable association with children. In that connection the people cite Ex Parte Selig, 29 N. M. 430 (223 Pac. 97), as support for their contention that it was incumbent upon the defendant to inquire of the court as to the specific conditions of probation and, having made no such inquiry, he should not now be heard to complain that the probation order does not contain the specific conditions which the court intended. The case.has no application to the Michigan statute. 3 Comp. Laws 1929, § 17373, as amended by Act No. 308, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17373, Stat. Ann. § 28.1133). Defendant is not required to call to the court’s attention that, under this statute, he may impose conditions in addition to those prescribed by, the statute. The defendant had a right to know the conditions with which he was required to comply. He is presumed to know the conditions prescribed by law. No such presumption attaches to such other conditions as existed only in the mind of the judge, unexpressed to the defendant either orally or in the order for probation, and no violation of these warrants revocation of probation.
The order revoking probation is set aside and the sentence vacated.
Butzel, C. J., and Carr, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. Dethmers, J. did not sit. | [
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Boyles, J.
The defendant, on leave granted, appeals from a sentence upon conviction by a jury in the recorder’s court of Detroit for receiving stolen goods exceeding $30 in value, knowing the same to have been stolen, under section 535 of the Michigan penal code, Act No. 328, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 17115-535, Stat. Ann. § 28.803), as amended by Act No. 11, Pub. Acts 1941. (The 1941 amendment [Comp. Laws Supp. 1945, § 17115-535,-Stat. Ann. 1946 Cum. Supp. § 28.803], referring to' third conviction, has no bearing on the case.) The first and only important question urged for reversal is as follows:
“Did the court err in charging* the jury with reference to the use and value of character evidence?”
After the defendant had testified in his own behalf the defendant produced two so-called character witnesses. We quote their testimony on that subject matter in full. One Jacob Rassner testified on his direct examination as follows:
“I have never talked to anybody regarding the defendant.
“Q. You wouldn ’t know any thing about his reputation for truth and veracity ?
“A. Well, so far whenever he comes in I give him goods and think a lot of him; otherwise I wouldn’t give him any goods.
“ Q. Did you ever know of any dishonest act on his part?
“A. Not yet. I consider him to be honest and trustworthy.
“Q. And .what is your opinion as to his reputation for truth and veracity?
“Q. As far as you know, his reputation is good?
“A. OK with me.’
On cross-examination he testified as follows:
“My contacts with Mr. Schultz are just business connections. I don’t associate with him socially.
“Q. Did you ask anybody about Mr. Schultz?
“A. No. Somebody recommended him to me a couple years ago and I found h-im OK.
“Q. He always paid his bills to you?
“A. Paid his bills and paid his notes.
“Q. And you are basing your opinion on that?
“A. On that and on that basis I — I place my opinion that he is all right; because if he wouldn’t be I wouldn’t give him any goods, for sometimes he takes out a diamond amount to as high as $1,500, $200, a stone, because I carry the biggest line in the city.”
It is apparent from the foregoing that an attempt was made to obtain testimony from this witness (1) as to the defendant’s reputation for truth and veracity, and (2) as' to honesty. In both particulars the testimony falls short of what the defendant claims for it. The opinion of a witness as to the defendant’s honesty or truthfulness and veracity based solely on personal knowledge, when the witness had never talked with anybody regarding the defendant, is not proof as to reputation for truth and veracity or honesty. People v. Albers, 137 Mich. 678; People v. Nemer, 218 Mich. 163; People v. Bartlett, 312 Mich. 648, 662. The testimony adduced by the above witness does not support defendant’s claim that the court erred in charging the jury as to the use and value of such character testimony. Such testimony, above quoted, cannot be said to rise to the dignity of character testimony,
One James Hdrds, the other character witness produced by the defendant, testified as follows:.
“I have known the. defendant, Leonard Schultz, about three years and have done business with him over that period of time.
“Q. "Where did you meet him?
“A. I first met Mr. Schultz — I had a diamond brooch to sell and I was introduced to him through a third party, and that is the first time I met him; that is about three years ago. I have sold, him merchandise since then, a few smaller pieces.
“I have talked to other business men about him.
“Q. Associates of his?
“A. Not associates of his but neighbors who I do business with myself, druggists and doctors in his immediate vicinity. By talking’ to them I know his reputation as a peaceful and law-abiding citizen.
“Q. What is his reputation ?
“A. Well, he holds a very fine reputation. They all think highly of him, and as a matter of fact, I have had Mr. Schultz—
“The Court: Wait just a minute. I don’t like to restrict this but, Mr.- Prosecutor, you know the answers. They can’t go into details. Do you know his reputation?
“A. Yes.
“The Court: Is it good or bad?
“A. Good.
“Q. And do you know his reputation for truth and veracity in the community in which he lives ?
“A. I only heard good things said about him.
“Q. Did you ever hear anything bad about him?
“A. tNo.”
While the questions asked this witness were not appropriate to prove reputation, the witness did testify that defendant’s reputation for truth and veracity was good. Neither he nor anyone else testified as to the defendant’s reputation for honesty. This was the only testimony on which the defendant. could base a request made by tbe defendant that tbe court charge the jury as follows (italics supplied):
“The defendant in this case has produced witnesses who testified to his good character and good reputation for truth and veracity, honesty and integrity, and for being a quiet, peaceable and law-abiding citizen. Such evidence is often times sufficient to outweigh testimony of the greatest weight, for one of good character is less likely to commit an offense, than one held in less repute. Witnesses to the character of the defendant, who have never heard anything against his reputation for truth and veracity, honesty and integrity, and for being a quiet, peaceable and law-abiding citizen, are competent, for where nothing bad is said of one’s general reputation for truth, veracity, honesty and integrity, and for being a peaceable, quiet and law-abiding citizen, then one’s reputation in that regard is presumed to be good.
‘ ‘ The weight you will give the testimony touching on his good character is something which you must determine from all of the evidence in the case, and you have a right to bear in mind the type and character of witnesses who have testified as to the defendant’s good character and reputation. In this connection you have a right to bear in mind the station in life and positions of responsibility held by these witnesses in the community, as touching upon their credibility and the value and weight you are to give to their testimony in considering- the question of defendant’s good character.”
The request in the above language was plainly improper. It would have been untruthful and misleading. No witnesses had testified as to the defendant’s good character and good reputation for truth and veracity,' and there was no testimony whatever as to the defendant’s reputation for honesty and integrity. The court did not err in refusing to give the charge in the language requested. In a charge, otherwise careful and complete as to the claims of the people and the defendant, the law applicable to the case, and the duties and responsibilities of the jurors, the court charged the jury as follows:
• “Now, there has been some testimony, members of the jury, as to the character of the respondent. "When a person is charged with a crime or any other act involving moral turpitude, which is endeavored to be fastened on him by circumstantial evidence, or, by testimony of doubtful witnesses, he may introduce proof of his former good character, for honesty and integrity, to rebut the presumption of guilt arising from such evidence, which it may be impossible for him to contradict or explain; but, if the case is not doubtful, if the testimony carries conviction of the truth of guilt beyond a reasonable doubt to the minds of the jury, if it becomes evidence convincing and satisfying the minds and the consciences of the jury of the truth of the guilt of the accused beyond a reasonable doubt, then character, however grand and noble in the past, must give way to the inevitable results of crime, for crime is a maelstrom which washes out and makes blank the past history, burying it in oblivion. However good a man’s character may have been in the past, if the proof is clear and convincing of his guilt, it would be the duty of the jury to say so. Good character helps where the proof is doubtful or uncertain, or, when there is reasonable doubt of the guilt of the party; but when this does not exist, it becomes the solemn duty of the jury to say, if they believe it, the word ‘guilty.’
“In weighing the testimony as to character, members of the jury, you have a right to bear in mind the type of witnesses who testified as to the defendant’s good character. I think he had two character witnesses, is that right? Were there two charaóter witnesses?
“Mr, Benvies: Yes, your Honor.
“The Court: That is what I have here; the old gentleman, the wholesale dealer in diamonds, who had business dealings with him during the last two or three years; and the other man who had some business connection with him in selling some jewelry. Both testified he had good character.”
In view of the record, this charge was more favorable to the defendant than he had a right to expect.
In the above-quoted instruction given by the trial judge two paragraphs were taken verbatim from a charge which was approved in People v. Mead, 50 Mich. 228, 232, 233. While the Mead Case has not been expressly overruled by the Court, that part of the charge in the Mead Case which was quoted by the trial judge in the instant case has been considered in many subsequent decisions of this Court.
“Error is assigned on a portion of the charge relating to the proof of good character, which is as follows:
“ ‘Now, the good character of this respondent has been put in question. A man’s good character is a valuable thing under ail circumstances, and it is proper evidence to be considered by a jury in doubtful cases to determine whether or not a man having that good character would commit such an offense. It often avails, and should avail, to acquit a man under such circumstances; but when there is positive proof of the commission of an offense, then good character cannot avail to overthrow that proof.’ * * *
“We think the charge as given by the court on its own motion is erroneous. By the instruction above quoted the respondent was denied the benefit of proof of good character if the jury should find positive evidence tending to show the commission of the offense. Evidence of good character is admissible not only in a case where doubt otherwise exists, but may be offered for the purpose of creating a doubt. See People v. Garbutt, 17 Mich. 9 (97 Am. Dec. 162), and Hamilton v. People, 29 Mich. 195.” People v. Jassino (1894), 100 Mich. 536, 537.
“The conviction must, however, he set aside for other reasons. Several witnesses were called as to the previous good character of the respondent, and the people called no witnesses upon that subject. The court instructed the jury that — ■
“ ‘Good character is always admissible, gentlemen, in criminal cases, and may be always received by you, but it is for you to say whether it will have any weight with you in coming to your vet diet, or not. The testimony of the defense may be introduced to show what the character of the defendant is; and if the testimony is incompatible with your judgment in regard to defendant’s good character, if you think it is insufficient, or if you think defendant is guilty without any testimony with reference to character, it would be your duty to say so. The defendant might have a good character up to a certain time, and afterwards he might have committed a crime.
“ ‘If a crime was absolutely committed, and you are satisfied beyond a reasonable doubt, then good character would be comparatively useless, so far as you are concerned, because men sometimes have to have some commencement in crime, and a man might have a good reputation and good character most all of his life, and he may commit some crime; and it does not follow, because he has always had a good reputation, that, therefore, he is a good man. It is a question for you to say whether, if there is any doubt in regard to the case, whether you believe that testimony, or whether you will accept testimony to show that his character is good, when you have positive evidence that his character is not good, and that is a question for you to say entirely.
“ ‘In regard to the man’s reputation, you have heard the testimony introduced here of some of the witnesses that defendant had borne a good char acter up to the time of this offense; and it is a question for you to consider whether a man who has lived a good life and enjoyed a high reputation for 35 or 40 years, — whether he would he likely to commit the offense charged. If you believe he would, then, of course, character would be of no importance. If you believe that he did commit the offense, and you find that there is positive evidence that he did commit it, of course you, would pay no attention to the man’s reputation.’
‘ ‘ This instruction was erroneous, in that it authorized the jury to disassociate the testimony as to good character from the other testimony in the case. The sole question was as to respondent’s presence at the scene of the burglary. The evidence upon that question was conflicting. There was positive evidence that respondent was present, but there was also testimony, equally as positive, that he was not. The testimony as to good character supplemented the latter class of testimony, and was entitled to consideration in determining the disputed question. The court might as well have said:
“ ‘If you find positive evidence that respondent was present, then you may -reject the testimony which tends to show that he was not.’
“The precise question was before this court in People v. Jassino, 100 Mich. 536.” People v. Laird, 102 Mich. 135, 141, 142.
“The principal questions raised relate to the charge of the court. "We need discuss but one, as we think the other objections are devoid of merit. The court charged the jury as follows:
“ ‘Now, there has been considerable testimony put into this case as to the good character of this young man. Every man who comes before you to be tried is presumed to have a good character, without any evidence whatever in the case; and it is for you to say how much that presumption of good character has been strengthened, if strengthened at all, by some 9 or 10 witnesses who have been put upon the stand before you. Evidence of good character is, in some cases, an important factor, — that is, that which amounts to evidence of good character. If a man residing in a community has always borne tbe reputation of being a good man, and good, respectable citizens — well-known citizens whom you know to be respectable — come in and swear that he has always held a good character, and when, in regard to tbe offense charged, there seems to be an even, or nearly an even, conflict as to whether he- is or whether he is not guilty, then that good character, put into the balance, ought to have a great deal of weight in such a case. Oftentimes it would be conclusive.’
“This charge was erroneous and misleading. Proof of good character is to have greater weight than suggested by this charge. It is applicable in all cases where crime is charged. It is not to be limited to cases where there is an even conflict as to whether the respondent is or is not guilty. As was said by this Court in People v. Jassino, 100 Mich. 536: ‘Evidence of good character is admissible, not only in a case where doubt otherwise exists, but may be offered for the purpose of creating a doubt.’ People v. Laird, 102 Mich. 135; People v. Garbutt, 17 Mich. 9 (97 Am. Dec. 162); Hamilton v. People, 29 Mich. 195.” People v. Van Dam, 107 Mich. 425, 428, 429.
“Respondent introduced evidence of his good character, upon which subject the court advised the jury, wrongfully, it is claimed, as follows:'
“ ‘In this matter the respondent placed in evidence his good character. Now, a man’s character is a valuable asset under all circumstances; and is proper evidence to be considered in doubtful eases to determine whether or not a man having that good character would commit such an offense. It often avails, and should avail, to acquit a man under such circumstances; but that when there is positive proof of the commission of an offense, the good character cannot avail to overthrow that proof. That means jnst what it says.’ * * *
‘ ‘ Respondent preferred no request to charge upon the subject of the effect to be given to the testimony of character witnesses. Nor after the charge was delivered was the attention of the court attracted to the necessity for saying more than' had been said upon the subject. The charge is like the one commented on in People v. Jassino, 100 Mich. 536. It was said (page 537):
“ ‘By the instruction above quoted the respondent was denied the benefit of proof of good character if the jury should find positive evidence tending to show the commission of the offense. Evidence of good character is admissible, not only in a case where doubt otherwise exists, but may be offered for the purpose of creating a doubt.’ * * *
“This case and People v. Jassino, supra, cannot be distinguished. See, also, People v. Laird, 102 Mich. 135, and note; People v. Van Dam, 107 Mich. 425; People v. Parker, 166 Mich. 587; People v. Wilson, 170 Mich. 669 (41 L. R. A. [N. S.] 216).
“It follows that the conviction must be set aside, and a new trial granted.” People v. Humphrey, 194 Mich. 10, 12, 16, 17.
“On the trial a number of witnesses were sworn on behalf of respondent to show his good reputation in the community in which he lived. With reference to good character the court charged the jury as follows:
“ ‘In doubtful cases, good character has been used, or in circumstantial cases, to surround and assist and aid a man.’
“The limitation by the court of evidence of good character to doubtful and circumstantial cases is an improper limitation, as good character is a proper element to be considered by the jury in every criminal case where an attempt is made to show good character. As was early said in the case of People v. Garbutt, 17 Mich. 9 (97 Am. Dec. 162), by Chief Justice Cooley:
“ ‘Good character may not only raise a doubt of guilt which would not- otherwise exist, but it may bring conviction of innocence. In every criminal trial it is a fact which the defendant is at liberty to put in evidence; and, being in, the jury have a right to give it such weight as they think it entitled to. ’
“See, also, People v. Laird, 102 Mich. 135, and footnote, where the Michigan cases on this subject are reviewed; also People v. Wilson, 170 Mich. 669 (41 L. R. A. [N. S.] 216). We think that this failure to clearly instruct the jury upon this question was error prejudicial to the defendant, and for this reason alone the case should be reversed.” People v. McKeighan, 205 Mich. 367, 373, 374.
Some later opinions of this Court have modified as well as added to the conclusions reached in the foregoing decisions which followed the Mead Case, decided in 1883. The principles announced in the Jassino Case in 1894, down through the McKeighan Case decided in 1919, have not been strictly followed in later cases.
We have examined the record in People v. Best, 218 Mich. 141, decided in,1922. It discloses that the court charged the jury in regard to the value of good character testimony in the same language used by the trial judge in the case at bar, namely, the two paragraphs taken verbatim from the Mead Case. No other or further charge as to the value or importance of character testimony was given. Holding that this was not reversible error the Court said:
“Complaint is madé of the instruction respecting good character, citing People v. Jassino, 100 Mich. 536; People v. Van Dam, 107 Mich. 425; People v. Parker, 166 Mich. 587; People v. McKeighan, 205 Mich. 367; People v. Humphrey, 194 Mich. 10,
“The charge on the subject was taken verbatim from People v. Mead, 50 Mich. 228—opinion by Justice Cooley — and includes the last two paragraphs there quoted. '
“Justice Cooley said that by such charge the right to the benefit of good reputation was not denied, and the jury were told that if the evidence was convincing beyond a reasonable doubt it was their duty to convict notwithstanding the good reputation.
“The author of a note, 10 A. L. R. 108, classes the Mead Case among ‘those by which the jury are directed to render verdict against the defendant notwithstanding his good character if upon a consideration of the whole evidence, including that element, they are satisfied beyond £f reasonable doubt that he is guilty, ’ and he states that instructions of such tenor have been generally sustained.
“While the language approved by Justice Cooley in the Mead Case was not as fortunate as that used by him in People v. Garbutt, 17 Mich. 9 (97 Am. Dec. 162), we think the Mead Case should not be classed with those cases in which the jury were told that defendant’s good character was of no avail to him, if the evidence, apart from that element, satisfied the jury beyond a reasonable doubt of his guilt, nor with those cases where the jury were told that good character was an element to be considered only in doubtful cases, in which classes fall the cases cited by counsel. And the instructions quoted in the Mead Case were held in People v. Parker, supra, to be ‘of similar character’ to those in the Garbutt Case, relied upon by counsel for defendant.
“In the case at bar the trial judge gave the two important paragraphs of the Mead Case, not one, or one with modifications as was done in some other cases. We do not commend the charge in the Mead Case, but we decline now, as we did then, to say that it is reversible error. For criticism of the Mead Case see 10 A. L. R. 59.
■ “Writers in some instances have treated good character with much rhetorical flourish. An instruc tion employing such language might be criticized as giving undue emphasis to the subject. For a request which was approved by this Court see Campbell v. People, 34 Mich. 351, and see People v. Garbutt, supra; People v. McArron, 121 Mich. 1; People v. Covelesky, 217 Mich. 90; and for review of Michigan cases upon this subject see 10 A. L. R. 58.” People v. Best, 218 Mich. 141, 147, 148.
We have also examined the record in People v. Salisbury (1922), 218 Mich. 529. It discloses, however, that the trial court did not. charge the jury in the language of the Mead Case. The charge as to the importance and value of character testimony was: *
“Now, in this case witnesses have been sworn and-given,-testimony as to the previous good character of the respondent. A respondent on trial for a crime has a right to do that, and that has been done. He had introduced evidence of his previous good reputation in the community where he lived, and as to that I charge you that good character is an important fact with every man and never more so than when he is put on trial charged with an offense which is rendered improbable in the least degree by a course of life wholly inconsistent with any such crime.
“Now, whether it is rendered improbable here or not is for you, not for me or the law; you must determine that.
“There are cases — I am not saying this is one of them or it is not; it is for you to say whether it is or not — dhere are cases where it becomes a man’s sole dependence and yet may prove sufficient to outweigh evidence of the most positive character. The most clear and convincing cases are sometimes — and whether this is one of them or not is for you to say — are sometimes satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protec tion against the most skillful web of suspicion and falsehood which conspirators have been able to weave. It is for you to say whether any conspirators here have been weaving any web. I am giving you the rule of law.
“Good character may not only raise a doubt of guilt which would not otherwise exist, but it may bring conviction of innocence. In every criminal trial it is a fact which the defendant is at liberty to put in evidence, and being in, the jury have a right to give it such weight as they deem it entitled to. So you are the judges of what that testimony of good character is worth. It is for you to determine, but if, after considering and weighing all the evidences on both sides, including that as to good character, the jury is convinced of guilt, it, the jury, should say so, as even good character if clearly shown, is no defense to one who is really guilty.”
This charge was approved by this Court, as' follows :
‘ ‘ Several witnesses testified that defendant had a good reputation in the community in which he lived. His counsel preferred a request in relation thereto, based on our holdings in People v. Garbutt, 17 Mich. 9, 26 (97 Am. Dec. 162), and People v. Parker, 166 Mich. 587, 591. In view of what was said in the recent case of People v. Best, 218 Mich. 141, it is unnecessary to discuss this assignment. The modification of the request by the court simply made it more applicable to the testimony in the case and the claims of the defendant.” People v. Salisbury, 218 Mich. 529, 534.
The record in People v. Ferrise (1922), 219 Mich. 471, discloses that the court charged the jury as follows:
“There have been certain witnesses who have appeared here upon the stand who are known in the law as character witnesses; that is, witnesses who have testified as to the defendant’s reputation for truth and veracity* morality and decency, and so on, in the community in which he lives; in other words, his good reputation. The purpose of this testimony is to enable you gentlemen to better judge how great credibility to attach to the defendant’s testimony. In considering this testimony you should take into consideration the means these witnesses have had of knowing the defendant’s reputation; the kind of persons the witnesses are, their reasons for testifying, as well as their general demeanor upon the stand. Sometimes a man’s reputation for good character may be his only defense, and may of itself raise a doubt of his guilt. If such a doubt has been raised in your minds in this case, you should give the defendant the benefit of that doubt and acquit him. Good character is an important fact with every man and never more so than when he is put on trial charged with an "offense which is rendered improbable in the last degree by a uniform course, of life wholly inconsistent with any such crime. There are cases where it becomes a. man’s sole dependence and yet may prove sufficient to outweigh evidence of the most positive character. Evidence of good character is admissible, and should be considered and weighed by the jury, not only in a case where doubt otherwise exists, but may be offered for the purpose of creating a doubt. I therefore charge you that if the evidence of good character of the respondent in this case raises in your minds a reasonable doubt of the guilt of the respondent, it would be your duty to acquit him. On the other hand, I charge you that however good this defendant’s reputation may have been in the past, it the proof in this case, after considering the testimony as to good reputation for truth and veracity, and so forth, as I have enumerated them to you, convinces you of his guilt, it is your duty-to find him guilty of the charge here made against him. However good a man’s reputation may have been in the past, if the proof of his guilt is clear and convincing, it is the duty of the jury to convict, for crime wipes out the past, however good.”
This charge was approved by the Court as follows (p. 476):
“Error is assigned on the portion of the charge relating to good character. The instruction is sustained by the holding in People v. Best, 218 Mich. 141, and cases there cited.”
The charges in the Salisbury and Ferrise Cases, supra, seem to have avoided the pitfalls which were the cause for reversal in the Jassino, Laird and Humphrey Gases, supra. But we' feel that in charging the jury the court should state in such cases that the jury should consider the testimony as a whole, including the character testimony, in determining whether the testimony in its entirety is sufficient to create a reasonable doubt in the minds of the jurors as to the guilt of the defendant.
In the case at bar, the meagerness of the character testimony, confined to one witness only, tends toward a reluctance to reverse on the sole ground of error in charging the jury as to the importance and effect of character testimony. Furthermore, in the instant case the trial court, in addition to charging the jury in the language of the Mead Case, also instructed the jury that “ ivitnesses to the character of the defendant” had testified to his reputation for “honesty and integrity.” No witness had testified as to reputation for honesty and integrity, and only one witness had testified as to defendant’s reputation as “a peaceful” law-abiding citizen. As we have said, in that regard the charge was more favorable to the defendant than he had a right to expect, in yiew of the record. Under the circumstances of the case we conclude that the defendant has not been prejudiced by the instructions given to the jury on the question of the value of good character testimony.
Two other grounds are urged for reversal. Appellant insists that the verdict as to the value of the property is “contrary to the great weight of the evidence” and contrary to law. There was ample testimony on which the jury might find the value of the property received by the defendant to be in excess of $50. The question of value was submitted to the jury with appropriate instructions- in that . regard. The jurors are the sole judges of the credibility of the witnesses. ~We find no error in charging the jury as to its duties in considering the issues of fact as to the value of the property.
The defendant finally urges that the court erred' in denying defendant’s motion to indorse the name of one Irving Goldfarb as a witness for the people. During the trial it was developed during the testimony of one Steve Lekas, one of the men who had stolen the property, that he had been introduced to the defendant by one Irving Goldfarb about a week before Lekas brought the property in question to the defendant. At the- time the motion to indórse was made, counsel for the defendant admitted that Goldfarb was not a res gestae witness, and the court so held, [the motion to indorse was properly, denied. People v. Hoffman, 154 Mich. 145; People v. Hawthorne, 293 Mich. 15.
The conviction and sentence is affirmed.
Btttzel, C. J., and Carr, Btjshnell, Sharpe, Reid, and North, JJ., concurred. Dethmers, J., did not sit. | [
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Boyles, J.
In these consolidated cases plaintiffs are owners of certain servient farm lands in Caledonia township, Kent county, which are burdened with the natural flow of surface water from the adjacent upper or dominant estates of the defendants. Plaintiffs filed similar bills of complaint in the chancery court to enjoin defendants from draining additional water upon the lands of plaintiffs by means of subsurface tile drains. The cases were consolidated for hearing, the circuit judge dismissed the suits, and plaintiffs appeal. The single question for review is the same in both cases:
“May an upper farm proprietor proceed to tile drain his farms and cast ‘ground water’ or subsurface water through such tile drains to and upon the lower adjoining farms without prescriptive right and without the consent of their owners?”
Defendants restate the issue to be whether the defendants’ proposed tile drainage would “unreasonably” increase the amount of water that will naturally flow onto plaintiffs’ premises from defendants’ lands. In one of the earliest reported decisions of the court of chancery of this State the chancellor said:
“It is contended that the injury is too inconsiderable in itself for the court to take cognizance of this case. * * * The question presented is, whether or no the defendant shall be allowed to erect a dam on his own land, to such a height as to flow the land of complainant, lying on the river a short distance above defendant’s mill. It is not denied, but on the contrary is admitted, that the old dam, before it was carried away by the freshet, caused the water to overflow more or less of complainant’s land. The defendant does not place his defense on this ground, but upon another and different ground, viz: that the land so overflowed, and which will be again, if he is allowed to erect a new dam of the same height with the old one, is of little or no value, and the flowing of it not productive of any serious injury. The evidence on this point is conflicting. Some of the witnesses think it would do little or no injury, while others estimate the damages at from $300 to $500. The extent of the injury, provided there be a substantial injury done, is of no very great importance. Every man has a right to the enjoyment of his property undisturbed by another, and to be protected in that enjoyment; and, what one may consider of little value, another may esteem very highly. The court will not, in cases of this kind, be governed by dollars and cents alone, but will inquire whether the injury is of such a nature, that it can reasonably be supposed to lessen materially the enjoyment of property by. its owner.” White v. Forbes, Walker’s Ch. (Mich.) 112.
The facts are not seriously in dispute. It is conceded that plaintiffs’ lands are burdened with the natural flow of surface water from the lands of the defendants, and that defendants have no right acquired by prescription or consent.
In the,spring of 1943 defendants started to construct a 4-inch tile drain on part of their lands, to drain a wet spot on their land which at times was so saturated with water as to be untillable. The trench for this tile was from 18 inches to 2 feet deep and the tile was to discharge directly into a so-called “stone pit” on plaintiffs’ lands from which plaintiffs carry off the water by a tile drain. A few days later defendants started another 4-inch tile drain at a different place to discharge water into an open ditch on their farm and thence onto plaintiffs’ lands. Temporary injunctions were issued halting these projects. In addition, defendants already had in operation an 8-inch tile drain discharging water from defendants’ lands onto the lands of plaintiffs, without any prescriptive right or consent. This drain discharged water onto plaintiffs’ lands to the extent that the water caused a wet place in one of plaintiffs’ fields, as a result of which a tractor drawing a whéat harvester had to be pulled out with another tractor.
The record fully establishes that defendants are increasing and preparing to further increase the flow of water from their lands onto plaintiffs’ lands beyond the natural flow of water with which plaintiffs ’ lands are burdened as a matter of law. As a result, plaintiffs must either take care of this ad ditional water through plaintiffs’ own tile drains or permit it to percolate the soil in plaintiffs’ fields. Defendants do not claim any- prescriptive right or consent to do so but insist that the increase is not unreasonable in extent.
An expert witness produced1 by defendants at the hearing testified that the prime purpose in putting in a system of tile drainage, on a fairly level farm, is to lower the water table, to remove ground water more quickly; that
“the general purpose of the tiling system on the ordinary farm is to remove that ground water from the soil and'cast it on down to lower levels. The effect of tiling, for that purpose, is to increase the run-off from that land by the amount that this subsurface drainage takes out of that ground water. It increases the water, that run-off, or all that is cast on the property below by that amount, over and above the surface water that runs off in the course of nature.”
There is no question hut that the tile drain already installed and the drainage system started by defendants casts and is intended to cast additional water upon plaintiffs’ premises in excess of the amount with which plaintiffs ’ lands are burdened by nature. This is accomplished by tiling the subsurface whereby the percolating or subsurface water on defendants’ -lands is drained onto plaintiffs’ lands. The result has been and would continue to be that defendants, by this system of subsurface drainage, would be able to utilize more land for tillage and in wet seasons work fields and plant crops much earlier than if the drains were not installed. While this would result in benefit to defendants, the record fairly establishes that at certain times it would prevent plaintiffs from an earlier use of their fields. The additional water thus discharged onto plaintiffs’ farms is a damage and a trespass. Plaintiffs’ right to injunctive relief against the trespass is clear.
Where a similar situation arose in an early case, this court said:
“The defendant, as said in Gregory v. Bush, 64 Mich. 37, 42 (8 Am. St. Rep. 797), could not, ‘by artificial drains or ditches, collect the water of stagnant pools, sagholes, basins, or ponds upon his premises, and cast them in a body upon the proprietor below him, to his injury. ’ And he could not reclaim his land by transferring the overflow from his land to that of plaintiff. ‘He cannot collect and concentrate such waters, and pour them through an artificial ditch, in unusual quantities upon his adjacent proprietor.’ Gregory v. Bush, 64 Mich. 37, 44. What the defendant did, by his own showing, was to transfer his wet and untillable land to his neighbor by the digging of an artificial ditch, and carrying the loater at once upon plaintiff’s land, so that it would not overflow or percolate his own soil. This he had no right to do under any circumstances, and whether or not it was good husbandry upon his part to do so was entirely immaterial.” Yerex v. Eineder, 86 Mich. 24 (24 Am. St. Rep. 113).
“While one has a right to drain and dispose of the surface water upon his land, yet he cannot lawfully concentrate such water, and pour it through an artificial ditch or drain, in unusual quantities and greater velocity, upon an adjacent proprietor.” Peacock v. Stinchcomb, 189 Mich. 301, 307.
In Miller v. Zahn, 264 Mich. 306, defendant built two tile drains that emptied onto plaintiffs’ farm, which increased the volume of water. Defendant’s land1 consisted of marshy soil which defendant sought to condition by drainage to make it tillable for crops. This court enjoined the maintenance of the tile drains.
A decree may be entered in this court permanently enjoining defendants from constructing or maintaining artificial drainage which, may discharge water onto plaintiffs’ lands in excess of the natural flow of surface water, and remanding for enforcement thereof. Plaintiffs may have costs of both courts.
North, C. J., and Starr, Wiest, Butzel, Bushnell, Sharpe, and Reid, JJ., concurred’. | [
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Brickley, J.
The issue before the Court involves whether the examining magistrate in this case erred in binding over the defendánt, Susan Stafford, for second-degree murder. The Court of Ap peals held that the magistrate abdicated, and therefore abused, his discretion in the manner in which he relied on People v Oster, 67 Mich App 490; 241 NW2d 260 (1976), to bind the defendant over for second-degree murder at a remanded preliminary examination. We conclude that the Court of Appeals did not clearly err, and affirm that Court’s decision.
i
The prosecutor charged defendant with open murder for the stabbing death of her boyfriend, Jeffrey Huff, on July 16, 1985. The facts developed at the preliminary hearing and at trial revealed that defendant and Huff met in West Virginia in either September or October 1984. Huff relocated to Michigan the following month, and he and defendant became live-in companions in Oxford, Michigan, soon afterwards. Defendant testified that she and Huff lived together fairly happily for the first three months of 1985. However, beginning in March 1985, and ending with Huff’s death on July 16, defendant testified that numerous incidents of violent abuse occurred where Huff physically threatened, slapped, choked and battered her.
A number of attacks preceded the stabbing on July 16. On July 12, defendant testified that Huff attacked her while out horseback riding, threatening to kill her and nearly causing her horse to go out of control. Defendant called the police and they advised her to remove from her residence guns she had purchased earlier as a gift for Huff. Huff hid nearby until the police departed.
Two days later, on July 14, while driving in an automobile, Huff and defendant argued over the removal of the guns, and Huff subsequently pushed defendant from the moving automobile. The violence escalated at defendant’s residence when defendant’s teenage daughter, Murphy, intervened. Huff and Murphy struggled, and Huff slammed the girl’s face against the ground. Murphy suffered broken teeth and lacerations of the mouth which required stitches at a hospital. The police again responded to this incident, but did not arrest Huff.
Defendant and Huff sought counseling from an alcohol and drug abuse counselor on July 16. Later that evening, Huff took defendant’s car to buy food for that evening’s meal. Defendant testified she began to worry when Huff failed to return after some period of time. She testified that she and her daughter had decided to leave the residence to prevent further abuse of her daughter once Huff returned with her automobile.
Eventually Huff, smelling of alcohol, returned accompanied by a male friend, Mills, in Mills’ car. Defendant testified that while she spoke on the telephone, Huff entered and began attacking her. As a subterfuge, defendant casually told Huff she needed to get a cigarette, but instead ran to a female neighbor’s house nearby. Upon arrival, defendant urgently asked the neighbor, Farden, to telephone the police for assistance. Defendant then telephoned her residence to check on her daughter but, upon receiving no answer, returned in haste with Farden to her home. On her way out, defendant grabbed a large butcher knife from Farden’s kitchen, and Farden retrieved a baseball bat and collared her German shepherd dog.
Once at defendant’s residence, defendant asked Farden to call for her daughter Murphy to come out of the house. Murphy came outside, followed shortly afterward by Huff. Defendant and Huff exchanged angry words in the dark night and an altercation ensued in which Huff initially attacked both Farden and defendant. At some point during the struggle, the knife held by defendant penetrated Huff’s chest. He walked a few steps and fell, dying at the scene. Defendant followed him, and seeing blood on the knife exclaimed numerous times, "Oh my God, I’ve stabbed him.” The police arrived just minutes later and arrested defendant for murder.
n
At the conclusion of the initial preliminary examination, the magistrate declined to bind the defendant over for either first- or second-degree murder. The magistrate explicitly noted a lack of evidence of premeditation on the defendant’s part and the existence of facts indicating that she acted in self-defense and without malice, including testimony that she had sought police protection in the past, had called the police just prior to the stabbing, and that the victim had initiated the fatal altercation. The magistrate nevertheless concluded that the defendant’s conduct in stabbing decedent with a knife evidenced probable cause of a reckless indifference for life supporting a binding over for manslaughter. Consequently, the magistrate bound the defendant over for trial on the charge of involuntary manslaughter only.
Before trial, the prosecution moved to remand the case to the examining magistrate to present additional evidence on probable cause of second-degree murder. Specifically, the prosecution desired to present testimony of the medical examiner and to introduce into evidence the knife wielded by defendant on the night of the homicide. The trial court granted this motion over the objection of defense counsel, and remanded the case for further preliminary proceedings.
The medical examiner alone testified on remand before the magistrate. He speculated that the knife wound inflicted on the decedent indicated a "hook type” thrust. He also opined that the defendant would necessarily have been aware of impaling and withdrawing the knife. His testimony contradicted the defendant’s testimony that only after decedent fell did she realize she had stabbed him. Additionally, the prosecution introduced the homicide weapon into evidence.
In its closing argument, the prosecution for the first time cited the case of People v Oster, supra, and contended that Oster required the magistrate to bind the defendant over for second-degree murder. At the conclusion of the examination, the magistrate reversed his initial decision and bound the defendant over for second-degree murder as requested by the prosecution.
The magistrate, although he referred to "new evidence,” did not explicitly find any new facts or retreat from his findings at the initial examination. However, the magistrate asserted that "[i]t was never the intention of the Court to analyze the evidence of the testimony of the witnesses to weigh the evidence to such an extent as to prepare or give a defense for the defendant.” Nonetheless, the magistrate reiterated his initial findings of strong evidence indicating self-defense: "reviewing all the evidence, it seems clear that in the mind of the defendant that her daughter was in danger [although] . . . the daughter was not in as much danger as maybe the defendant thought she was. However, that does not take away from the fact that the Court finds that the defendant was of a mind that her daughter was still in trouble.”
The magistrate focused on People v Oster in his concluding and dispositive remarks:
The Court has had an opportunity to read People versus Oster as been [sic] presented by the prosecutor. And the Court will read the one paragraph that I find is interesting or pertinent or guiding in this case. On Page 496, "The evidence presented at the examination showed the defendant stabbed Goodman with the knife and that Goodman died as a result. This clearly is sufficient to bind the defendant over on second-degree murder charge, as the malice necessary for the charge may be presumed from the use of a deadly weapon which perpetrated the killing.” Later on in that opinion, the Court of Appeals refers to those paragraphs as guidelines and the Court will use this as a guideline in this case as to the obligations of an examining magistrate.
While the Court could very easily take the information or the evidence presented and weigh as to the — as between the degrees of the homicide, it’s not the duty of the Court to, from all of the evidence presented, to stand in the shoes of the trier of fact, and I follow that and try to follow that. In this case, if the People v Oster says that that’s the sufficient amount to bind over the defendant on second-degree murder, then I think that the argument must continue with the trier of fact as to what the meaning of the fight was and whether the defendant was in such heat that — to reduce this to manslaughter and that’s something for the trier of fact to find.
The Court’s satisfied by the addition of the information, witnesses, that the minimum amount of evidence has been presented to support the bindover on second-degree murder in this case, that being set out in the paragraph that I just read to you out of People v Oster. I do specifically find, though, that there was no premeditation, and no malice aforethought to support first degree murder, and based upon [sic] that I will not bind over on open murder charge. The rest of the degrees is left for the trier of fact, from the evidence, and their [sic] interpretation of what the evidence was. [Emphasis supplied.]
The magistrate consequently bound the defendant over for second-degree murder. A jury convicted Stafford of involuntary manslaughter, and she appealed. The Court of Appeals reversed the conviction, holding that the magistrate erred in binding the defendant over for second-degree murder. The Court of Appeals also held that the trial court’s remand for the presentation of new evidence violated the defendant’s right to due process of law. We affirm only as to the former issue and therefore find it unnecessary to address the latter issue whether the remand was erroneous. _
III
In People v King, 412 Mich 145, 153-155; 312 NW2d 629 (1981), this Court delineated the scope of the magistrate’s function at a preliminary examination. We held in King that a magistrate must examine the entire record in arriving at a decision regarding probable cause. We said there that the scope of the magistrate’s inquiry
is not limited to whether the prosecution has presented evidence on each element of the offense. The magistrate is required to make his determination "after an examination of the whole matter.” Although the prosecution has presented some evidence on each element, if upon an examination of the whole matter the evidence is insufficient to satisfy the magistrate that the offense charged has been committed and that there is probable cause to believe that the defendant committed it, then he should not bind the defendant over on the offense charged but may bind him over on a lesser offense as to which he is so satisfied. [412 Mich 154.]
The Court of Appeals holding in the instant case that the magistrate abdicated his discretion by relying too literally or narrowly on People v Oster, supra, accords with our decision in King.
A review of the initial preliminary examination indicates that the magistrate did review the entire record before him in reaching his initial decision to bind over the defendant, and, just as in King, supra, pp 154-155,
found insufficient reason to believe that the offense of first- or second-degree murder had been committed because, based on the evidence presented, malice and premeditation were lacking. He found that the offense of manslaughter had been committed and probable cause to believe that the defendant had committed it.
On remand, however, the magistrate felt constrained by Oster to change that decision. By doing so, the Court of Appeals found that the magistrate impermissibly failed to exercise his discretion.
The uncontradicted testimony in this case indicated that the victim attacked defendant and her neighbor and that during the ensuing fray defendant stabbed the victim. At the initial examination, the magistrate noted that the evidence did not indicate a plan to kill on defendant’s part and concluded that, given the decedent’s history of domestic abuse, the defendant had reasonable grounds to fear for the safety of her daughter and herself.
On remand, the magistrate’s stated findings of fact did not differ in any significant respect, but he relied this time on Oster as "pertinent or guiding” in a way that negated his previous findings. The Court of Appeals concluded that this reliance on Oster constituted an abdication of discretion rising to abuse of discretion. We find no clear error by the Court of Appeals in so holding.
The Oster case is factually distinguishable. Oster involved a fight between two men at a party, in which the defendant pulled out a knife, leapt down a stairway, and stabbed the victim several times. In contrast, this case involved a single stabbing by a physically smaller woman of a man who had exhibited violent behavior in the household numerous times in the past. Three other witnesses confirmed that defendant had called the police before she armed herself and went back to attempt to protect her daughter, that she said she "wasn’t gonna to let him hurt them again,” and that after the victim fell she exclaimed, "Oh my God, I’ve stabbed him.”
Moreover, the legal principles articulated in Oster did not control this case. The Oster Court held that evidence showing that the defendant fatally stabbed the victim "clearly is sufficient to bind over defendant on a second-degree murder charge, as the malice necessary for that charge may be presumed from the use of a deadly weapon to perpetrate the killing.” 67 Mich App 496. While this remains an accurate statement, Oster does not suggest that all other evidence should be disregarded just because of the use of a deadly weapon. The magistrate seemed to use the right standard in finding insufficient probable cause on premeditation and malice at the initial examination, but then on remand apparently disregarded his obligation to perform an "examination of the whole matter” because of one sentence in Oster. The Court of Appeals in the instant case held that the magistrate read too much into Oster and too little into the scope of the examining function as outlined in King. Although the magistrate’s reasons for reversing his initial determination might arguably support differing interpretations, the reading of the Court of Appeals is not without support in the record. We therefore decline to overturn its interpretation as clear error.
We affirm the decision of the Court of Appeals and remand for proceedings consistent with this opinion.
Levin, Cavanagh, and Archer, JJ., concurred with Brickley, J.
The medical examiner did not testify at the initial preliminary examination because the parties stipulated that the knife wound was the cause of death. The medical examiner had not completed his autopsy report at the time of the initial preliminary examination. MCL 766.4; MSA 28.922 entitles a person charged with a crime to a preliminary examination within twelve days of arraignment. Although the violation of the twelve-day rule constitutes a reversible error at trial, People v Weston, 413 Mich 371, 376; 319 NW2d 537 (1982), the prosecution may obtain a continuance for good cause.
We held in People v Vail, 393 Mich 460, 464; 227 NW2d 535 (1975), that a conviction of a charge unwarranted by the proofs requires reversal "because a defendant’s chances of acquittal on any valid charge is substantially decreased by the possibility of a compromise verdict.”
The dissent suggests we should address the remand issue because "if the remand was improper, the discretion issue would have been rendered moot.” Of course the reverse is also true since our decision on the discretion issue renders the remand issue moot. Also having accorded the appellant the relief she sought by the resolution of the discretion issue, we follow the well-established rule of avoiding a constitutional question when the case can be resolved on a nonconstitutional basis. It is also a well-recognized operating principle of appellate jurisprudence that we do not decide issues that are not necessary for the disposition of the case or controversy before us. The dissent also suggests that this Court should apply a harmless error analysis to the abuse of the magistrate’s decision because defendant never claimed insufficient evidence existed for her bindover on second-degree murder or her involuntary manslaughter conviction. We note in response that defendant did challenge the sufficiency of the evidence at her preliminary examination and at trial on a motion for directed verdict. Moreover, the prosecution did not make an argument that defendant failed to challenge the sufficiency of the evidence in this Court or in the Court of Appeals. And, of course, we granted leave on the issue of the sufficiency of the evidence.
See People v McIntosh, 62 Mich App 422, 446-448; 234 NW2d 157 (1975), modified on other grounds 400 Mich 1; 252 NW2d 779 (1977), where the Court held that the failure to exercise discretion when called on to do so constitutes an abdication and hence an abuse of discretion.
The dissent appropriately observes that "when the magistrate’s reasoning is subject to differing interpretations, and one of those interpretations constitutes a proper use of discretion,” it is wrong to not follow the interpretation that supports the magistrate. However, our observation that the magistrate’s reasons might support a different interpretation does not in our judgment result in clear, legal error when the Court of Appeals did not find a different interpretation that would support the magistrate’s findings. | [
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Per Curiam.
Defendant appeals as of right from his convictions after a jury trial of two counts of incitement of first-degree murder, MCL 750.157b; MSA 28.354(2), and two counts of conspiracy to commit first-degree murder, MCL 750.157a; MSA 28.354(1), and his plea-based revocation of probation for violation of conditions, MCL 771.4; MSA 28.1134. Defendant was sentenced on May 14, 1982, to the mandatory term of life imprisonment without parole as to each count of incitement to murder and conspiracy to murder.
On September 22, 1981, Detective John Fiedler, posing as a "hit man”, met with the defendant in the parking lot of a restaurant located in Barry County. The defendant indicated to Fiedler that he wanted Douglas O’Laughlin and Paul DeLassus, his former business partners, killed. The two men met on several other occasions. They agreed that Fiedler would receive $1,000 for each killing, one-half to be paid before the killings and one-half afterwards. However, no money ever changed hands. On October 21, 1981, the two men met for the last time. Defendant introduced Fiedler to Ricky Leon Jones, another of defendant’s business partners. At that meeting, Jones told Fiedler that he too wanted O’Laughlin and DeLassus killed. Later that day, defendant and Jones were arrested.
On appeal, defendant raises eleven claims of error, six of which require discussion.
First, the defendant contends that the trial court erred in admitting evidence of his prior convictions for impeachment purposes. Prior to trial, the prosecutor moved for admission of evidence of defendant’s earlier convictions for impeachment purposes. The trial court agreed to admit evidence of four convictions.
Evidence of a defendant’s prior convictions may be admitted for impeachment purposes in accordance with MRE 609. The trial judge has discre tion regarding their admission, and is required to recognize and exercise that discretion on the record. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).
The factors the court must consider in deciding whether to admit evidence of prior convictions are:
"(1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that [there is] danger that the jury will consider the defendant a 'bad man’ or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant’s testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?).” People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978).
Under MRE 609, as amended, the reasons for the trial judge’s decision must be articulated on the record.
In the instant case, the trial judge did not discuss the third Crawford factor. The trial judge, however, could not consider the effect on the decisional process if defendant chose not to testify. The defendant did not inform the judge that he would not be taking the stand until well after the ruling was already made and never informed the judge what the nature of his testimony would be should he take the stand. In order to preserve the issue of the trial court’s failure to properly consider this factor, defendant was required to establish that he would take the stand if evidence of the convictions were not admitted and to outline the nature of his proposed testimony. People v Casey, 120 Mich App 690, 695-697; 327 NW2d 337 (1982).
Defendant also argues that the prosecution failed to carry its burden of proving the need for the admission of this evidence. There is a split of authority in this Court as to whether the prosecution has the burden of proving that evidence of prior convictions is admissible. Compare People v Gary Johnson, 105 Mich App 332, 338; 306 NW2d 501 (1981), and People v Crawford, supra (burden on the prosecution to justify admission) with People v Steele, 115 Mich App 758; 321 NW2d 804 (1982), and People v Huff, 101 Mich App 232, 250-251; 300 NW2d 525 (1980), rev’d 411 Mich 974; 308 NW2d 110 (1981) (burden on the defendant to justify exclusion). We believe that the burden is on the prosecution to justify the admission of evidence of prior convictions. In the instant case, the prosecutor made no effort to justify admission of evidence of defendant’s prior convictions. She simply listed the convictions and left to the trial judge the decision of whether to admit evidence of those convictions. Therefore, we reverse defendant’s convictions and order a new trial.
Second, defendant argues that the trial judge erred in refusing to instruct the jury regarding the lesser included offenses of incitement to commit and conspiracy to commit second-degree murder and manslaughter.
In every murder prosecution the jury must be instructed with regard to second-degree murder as well as first degree. People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975). Instructions upon the elements of both first- and second-degree murder are required in prosecutions for incitement to murder as well. People v Richendollar, 85 Mich App 74, 78-81; 270 NW2d 530 (1978), lv den 405 Mich 820 (1979). Therefore, the trial court erred in failing to instruct the jury on incitement to commit second-degree murder. The Richendollar analysis does not, however, require that instructions regarding manslaughter also be given, as defendant argues.
Defendant also argues that the same rule should be applied in cases of conspiracy to murder. This Court appears to be divided upon this question. Compare People v Hence, 110 Mich App 154, 170-171; 312 NW2d 191 (1981), with People v Perry, 115 Mich App 533, 536; 321 NW2d 719 (1982), and People v Jackson, 114 Mich App 649, 664-668; 319 NW2d 613 (1982). We believe that the reasoning of Richendollar regarding incitement to murder is equally applicable in cases of conspiracy to murder. Thus, the trial court erred in failing to instruct the jury on conspiracy to commit second-degree murder.
Because of the above errors, the defendant’s convictions for incitement to commit and conspiracy to commit first-degree murder must be reversed.
Third, defendant argues that the jury should have been instructed that incitement to commit first-degree murder is a specific intent crime.
A person may be convicted of incitement to commit first-degree murder, MCL 750.157b; MSA 28.354(2), when he has engaged in conduct calculated to cause another person to commit first-degree murder. See People v Chapman, 80 Mich App 583, 586; 264 NW2d 69 (1978). The defendant must have intended that the crime which he urged would in fact be committed. People v Shafou, 416 Mich 113, 122; 330 NW2d 647 (1982) (opinion of Fitzgerald, C.J.). The trial judge has the duty to instruct the jury regarding all the elements of the crime and any material defenses or theories. People v Reed, 393 Mich 342, 349-350; 224 NW2d 867 (1975), cert den 422 US 1044, 1048; 95 S Ct 2660, 2665; 45 L Ed 2d 696, 701 (1975). In the instant case defendant requested that the jury be instructed that incitement to commit first-degree murder was a specific intent crime. Specific intent may be defined as "the subjective desire or knowledge that the prohibited result will occur”. People v American Medical Centers of Michigan, Ltd, 118 Mich App 135, 153; 324 NW2d 782 (1982). Before a defendant may be convicted of incitement to commit first-degree murder, the jury must find that he intended that the incited crime would actually be committed. This is a specific intent. The jury, therefore, should have been instructed that incitement to commit first-degree murder was a specific intent crime. Defendant’s convictions of incitement to commit first-degree murder should be reversed upon this ground as well.
Fourth, defendant argues that the trial court erred in denying his motion for directed verdict. He asserts that insufficient evidence of imminence of action and actual incitement was presented at trial to support , his convictions for incitement to commit first-degree murder.
MCL 750.157b; MSA 28.354(2) provides that anyone "who incites, induces or exhorts any other person * * * to kill * * * or do any act * * * that may endanger or be likely to endanger the life of any person * * * shall be punished in the same manner as if he had committed the offense incited, induced or exhorted”. This statute was enacted shortly after Detroit’s 1967 riots, and expressed the Legislature’s concern regarding "riot-like behavior”. People v Plyler, 104 Mich App 437, 445; 304 NW2d 859 (1981).
In Brandenburg v Ohio, 395 US 444, 447; 89 S Ct 1827; 23 L Ed 2d 430 (1969), the United States Supreme Court held that:
"[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
This Court held in People v Chapman, supra, 80 Mich App 587-588, that MCL 750.157b; MSA 28.354(2) is consistent with Brandenburg. The statute is intended to prohibit only a call to immediate action "urging the immediate commission of a dangerous felony or misdemeanor”. 80 Mich App 588.
Under these standards the trial judge erred in denying defendant’s motion for directed verdict. The prosecution did not present sufficient evidence that the defendant urged imminent action to justify a trier of fact in reasonably concluding that defendant was guilty beyond a reasonable doubt of incitement of first-degree murder. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980). The defendant did not urge Fiedler to commit the murders immediately. In fact, he agreed that Fiedler would not perform the killings until Fiedler was paid one-half of his fee, and defendant never paid Fiedler that money. In addition, defendant gave Fiedler neither the schedules nor photographs of the intended victims. We con- elude that the evidence was not sufficient to withstand defendant’s motion for directed verdict.
Fifth, defendant argues that there was insufficient evidence of real incitement on the part of the "hit man”. He asserts that the proposed killer’s actual intent to carry out the murder is an element of the crime of incitement.
In a recent decision, the Supreme Court attempted, with little success, to answer the question whether the statute requires proof of an overt act and that the third party was in fact incited. People v Shafou, supra, 416 Mich 113. The equally divided Court affirmed this Court’s unpublished per curiam opinion in which it was held that an overt act was an element of the crime. Chief Justice Fitzgerald found, in an opinion joined by Justices Williams and Coleman, that only an overt act by the defendant himself was required for an incitement conviction. 416 Mich 121. No proof of any acts or intent to commit a crime on the part of the incited individual was necessary. 416 Mich 122. He also found that a charge of attempted incitement would lack "the required element of imminence to be constitutionally permissible”. 416 Mich 123. Justice Levin, in an opinion joined by Justice Ryan, held that MCL 750.157b; MSA 28.354(2) was a "special kind of accomplice statute”. 416 Mich 132. He would require that the incited offense actually have been committed before liability could be imposed. 416 Mich 126. Justice Kavanagh would find that there must be some proof of actual incitement before a conviction would be proper under the statute. 416 Mich 147-148.
In the instant case, there was of course no evidence of actual incitement. Fiedler never had any intention of carrying out the proposed murders. However, in view of the confused state of the law in this area and the fact that other grounds for reversal exist, we do not decide the question whether defendant’s motion for directed verdict and to quash the information should have been granted because of the absence of such evidence.
Finally, defendant maintains that his revocation of probation must be reversed. Where revocation of probation is sought based on a violation of the criminal law, there must be sufficient proof for a finding by the preponderance of the evidence that the defendant committed the offense. People v Tebedo, 107 Mich App 316, 320-321; 309 NW2d 250 (1981). Probation may be revoked before the trial on the offense, and the revocation may be valid even if the defendant is acquitted of the crime. 107 Mich App 321. Where defendant is convicted, but his conviction is reversed on appeal, the probation revocation need not be reversed if
"(1) at the revocation hearing defendant admitted facts sufficient to establish by a preponderance of the evidence that he committed the offense, or (2) if testimony is presented at the revocation hearing which meets this same standard”. 107 Mich App 322.
In the instant case defendant admitted only that he had been convicted of the offenses. No other testimony was presented. Since his convictions are to be reversed, defendant’s probation revocation must be reversed as well.
The other issues raised by defendant are without merit.
Reversed and remanded for proceedings consistent with this opinion.
These errors, however, do not alone require us to award the defendant a new trial. See People v Richendollar, supra, pp 80-81. | [
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Mackenzie, P.J.
This case involves a dispute over the ownership of, and rights to, a boat slip. Defendants, the owners of a parcel of property that is the site of a marine contracting business (hereafter Lakeland or defendant), appeal as of right from an opinion and order in favor of plaintiff. Plaintiff cross appeals from the same order. We affirm.
Plaintiff and defendant own adjacent waterfront industrial properties on Muskegon Lake. Each parcel includes a pier that extends outward into the lake. These two piers are separated by approximately 390 feet of water that forms a fully navigable boat slip. The pier on plaintiffs property comprises the eastern side of the slip; the shoreline portion of plaintiffs property comprises the southern end of the slip. Defendant’s pier is on the western side of the slip, while Muskegon Lake is at the open, northern end. Another boat slip is located on the other side of defendant’s pier; defendant indicates that it controls thirty feet of that slip._
Defendant and its predecessors have used the west forty feet of the subject boat slip for the dockage of their business vessels, including tugboats and various barges employed in the marine contracting industry, for a total of approximately sixty years. That practice proved acceptable until 1989, when defendant leased its property to a marina and made improvements to its pier that extended into the boat slip. The controversy temporarily ended when the marina went bankrupt. It was revived in 1991, however, when defendant moored a World War II vintage submarine in the slip as a public museum.
Although the submarine was moved elsewhere the following year, the parties proceeded with this action to quiet title. Plaintiff claimed that the entire bottom land of the slip was within the boundaries of its property, precluding defendant from any long-term dockage of its vessels in the slip. Defendant claimed alternatively that the bottom land was owned by the State of Michigan, that it owned the bottom land to the center line of the slip, or that it had acquired the west forty feet of the slip by adverse possession.
Upon cross motions for summary disposition, the trial court determined as a matter of law that the boundary between the parties’ parcels is the western shore of the boat slip, so that plaintiff is the owner of the entire bottom land of the boat slip. The court further determined as a matter of law that Lakeland had not acquired ownership of a portion of the slip by adverse possession. Finally, the court determined that Lakeland, as a riparian owner on Muskegon Lake, had the right to reasonable use of the waters of the boat slip, and that reasonable riparian use was a question of fact requiring a trial.
Following a bench trial, the court entered an opinion and order allowing Lakeland to load and unload boats and ships in the slip, but prohibiting it from anchoring vessels to the slip’s lake bed and from docking vessels for more than one week without plaintiffs permission. Additionally, to the extent that defendant’s improvements to its dock encroached on plaintiffs property, the court allowed defendant to keep the improvements in place upon payment of $5,000 to plaintiff within sixty days; in the absence of such payment, the encroachment was ordered removed at defendant’s expense. The court also determined that plaintiff was not entitled to damages for defendant’s past use of the slip and that neither party was entitled to costs or fees.
In two related arguments on appeal, defendant first contends that the trial court erred in determining that plaintiff owns the bottom land of the boat slip. Specifically, defendant contends that because the State of Michigan owns the bottom land of the Great Lakes and Muskegon Lake is part of the Lake Michigan, plaintiff has no ownership in the bottom land of the slip and defendant is entitled to share the navigable water space in the slip with all other riparian owners on the lake. We disagree and find no error in the trial court’s conclusion that plaintiff owned the slip.
While title to lands covered by the Great Lakes belongs to the state, Flanders Industries, Inc v Michigan, 203 Mich App 15, 27; 512 NW2d 328 (1993), the owner of property bounded by an inland watercourse owns the bottom land of the lake or stream to the centerline. Theis v Howland, 424 Mich 282, 288, n 2; 380 NW2d 463 (1985); Gregory v LaFaive, 172 Mich App 354, 361-362; 431 NW2d 511 (1988). Testimony before the trial court in this case established that Muskegon Lake meets the definition of "inland lake” as set forth in the Inland Lakes and Streams Act, MCL 281.952(f); MSA 11.475(2)(f). Further, our Supreme Court confirmed in Rice v Ruddiman, 10 Mich 125, 135-138, 143-146 (1862), that Muskegon Lake is not part of Lake Michigan. Defendant failed to present evidence in the trial court concerning why widening the mouth of Muskegon Lake would alter the status of the lake or make the Rice decision inapplicable here. We therefore conclude that the trial court did not err in treating Muskegon Lake as an inland lake rather than part of the Great Lakes.
Defendant next claims that, if plaintiff has an ownership interest in the bottom land of the slip as part of an inland lake, then the trial court erred in determining the location of plaintiff’s western riparian boundary. The claim is also without merit.
As previously noted, the title of a riparian land owner extends to the middle line of an inland lake. Gregory, supra, pp 361-362. To establish riparian boundaries on an oblong lake affected by accretion, such as Muskegon Lake, a line is drawn from the point where the property line met the original lakeshore to a median center line of the lake as nearly perpendicular as possible. Id., pp 362-363.
In this case, surveyor Ralph Van Riper testified that he examined the deed describing plaintiff’s property, established the parcel’s parameters, and extended a line from the water’s edge at right angles to the center of the lake. This was consistent with the method set forth in Gregory, supra. After performing the necessary measurements, Van Riper concluded that the entire boat slip was situated within plaintiff’s property description. He also checked plaintiff’s western property line against defendant’s adjacent eastern property line, defined in its deed as "North 38 degrees 32 min utes West,” and determined that the lines were common. Defendant’s surveyor, Steve Vallier, did not testify that a different riparian line existed or that Van Riper’s calculations were incorrect. On the basis of this evidence, we decline to disturb the trial court’s findings concerning the location of plaintiffs western riparian boundary or its characterization of the parties’ common property line as "the Easterly boundary of Defendants’ property.”
Defendant also contends that the trial court erred in ruling before trial that defendant had no property interest in the west forty feet of the boat slip by means of adverse possession, prescriptive easement, or acquiescence and that the court compounded this error by precluding defendant from presenting evidence to support these claims at trial. Again, we disagree.
To establish adverse possession, the claimant must show that its possession is actual, visible, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period of fifteen years. Thomas v Rex A Wilcox Trust, 185 Mich App 733, 736-737; 463 NW2d 190 (1990). An easement by prescription requires similar elements, except exclusivity. St Cecilia Society v Universal Car & Service Co, 213 Mich 569, 576; 182 NW 161 (1921). Mutual use or occupation of property with the owner’s permission is insufficient to establish adverse possession. Rozmarek v Plamondon, 419 Mich 287, 294; 351 NW2d 558 (1984). Further, permissive use of property, regardless of the length of the use, will not result in an easement by prescription. Banach v Lawera, 330 Mich 436, 441; 47 NW2d 679 (1951). The doctrine of acquiescence provides that, where adjoining property owners acquiesce to a boundary line for a period of at least fifteen years, that line becomes the actual boundary line. McQueen v Black, 168 Mich App 641, 644; 425 NW2d 203 (1988).
In this case, correspondence between the parties, the deposition testimony of Miles McKee, and the affidavit of George Nietering all established that both the plaintiff and the defendant understood that the boat slip was on plaintiffs property and that defendant and its predecessor in interest used the slip with plaintiffs permission until 1989. Defendant’s use with plaintiffs permission of property that was acknowledged to belong to plaintiff could not, as a matter of law, entitle defendant to acquire property rights in the west forty feet of the slip by adverse possession, prescriptive easement, or acquiescence. Rozmarek, supra; Banach, supra; McQueen, supra. Accordingly, we find no error.
Defendant’s remaining claims are relevant to the trial court’s determination regarding defendant’s reasonable use of the boat slip. Defendant contends that limiting its reasonable use to loading and unloading vessels and prohibiting defendant from mooring its vessels for more than a week is inequitable under the facts of the case, ignores both the needs of defendant’s business and the industrialized nature of Muskegon Lake, and fails to take into account that defendant’s navigational rights supersede plaintiffs bottom land rights. Contrary to these arguments, we conclude that the trial court did not err in defining defendant’s reasonable use of the boat slip.
As determined by the trial court, defendant is a riparian owner on Muskegon Lake because its pier is accreted to the shoreline and its north end abuts the lake. Use of the water by riparian owners is governed by principles of reasonableness. Pierce v Riley, 81 Mich App 39, 45; 264 NW2d 110 (1978). Thus, where there are several riparian owners on an inland lake, they may use the surface of the whole lake for boating, swimming, fishing, and other similar riparian rights, as long as they do not interfere with the reasonable use of the waters by other riparian owners. Id. The definition of reasonable use depends on the facts of the case. Hoover v Crane, 362 Mich 36; 106 NW2d 563 (1960). In Three Lakes Ass’n v Kessler, 91 Mich App 371; 285 NW2d 300 (1979), however, this Court formulated a three-pronged test for determining reasonableness based on Thompson v Enz, 379 Mich 667; 154 NW2d 473 (1967), and Hoover, supra:
First, attention should be given to the size, character and natural state of the water course. Second, consideration should be given the type and purpose of the uses proposed and their effect on the water course. Third, the court should balance the benefit that would inure to the proposed user with the injury to other riparian owners. [Three Lakes, supra, p 377.]
The trial court’s findings and decisions with respect to the question of reasonable use will not be disturbed by this Court unless we are convinced we would reach a different result. Id., p 375.
Here, Muskegon Lake is approximately six to seven miles long and one-half to two miles wide. Its natural state has given way to industrial development. Defendant’s proposed uses included permanent docking and mooring privileges along the eastern side of its pier, and it contended that such privileges were essential to its business. However, this contention is severely undercut by both defendant’s history of using the eastern side for non-business purposes, such as mooring a submarine, and its business practice of storing unused vessels at other facilities. Moreover, the record supports the conclusion that the court properly balanced the benefit that would inure to defendant with the injury to it and other riparian owners. Defendant still retains reasonable use of its dock for loading and unloading vessels and can still dock vessels on the north and west sides of its pier. Accordingly, we cannot say we would have reached a different result concerning defendant’s reasonable use had we been sitting as the trial court. Id.
We next turn to plaintiff’s cross appeal. Plaintiff asserts that the trial court erred in failing to order the removal of the encroaching section of defendant’s pier, in failing to award plaintiff money damages for defendant’s trespass onto its riparian property in the slip, and in failing to prevent defendant from making any use of its eastern dock adjoining the slip. We disagree.
As noted above, the court correctly determined that defendants were entitled to the reasonable use of their dock. With respect to plaintiff’s other claims, we are satisfied that the trial court’s award was appropriate. The $5,000 award appears to constitute trespass damages intended to compensate plaintiff for the dock encroachment, which is 3.06 feet at its widest point. Plaintiff fails to explain or show on appeal that this award was insufficient or inequitable, and its argument that the court permitted defendants to "purchase” a sliver of its lake bed is meritless.
The trial court also determined that the encroaching section of the pier would have to be dismantled if defendant refused to pay the trespass damage award; thus, the court’s order provides a contingency to accomplish the removal of the offending structure sought by plaintiff. Again, plaintiff fails to explain on appeal why this contingency is inequitable or unsupportable in law. While plaintiff points out that a mandatory injunction ordinarily will be granted to compel the removal of an intentional encroachment, Kratze v Independent Order of Oddfellows, 442 Mich 136, 145; 500 NW2d 115 (1993), here there was insufficient evidence that the encroachment was intentional to justify a removal order. We therefore decline to find the trial court’s order improper or inadequate.
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Mackenzie, J.
Defendant appeals as of right his jury conviction of driving under the influence of liquor (DUIL), third offense, MCL 257.625; MSA 9.2325, and of resisting arrest, MCL 750.479; MSA 28.747. Defendant’s trial was comprised of two phases, with the jury first determining that defendant was guilty of the charged offenses of DUIL and resisting arrest, and secondly determining that this was defendant’s third DUIL offense in the past ten years. See People v Pipkin, 93 Mich App 817, 820; 287 NW2d 352 (1979). With respect to the first phase, defendant claims that the court erred in denying defense counsel’s pretrial request for a continuance, and contends that certain opinion and hearsay testimony was erroneously admitted. Regarding the second phase, defendant asserts that the court erred in admitting testimony of unindorsed prosecution witnesses, and in permitting a previous plea-based DUIL conviction where he was not represented by counsel to serve to enhance defendant’s sentence as a third-time of fender. We find no error requiring reversal and affirm defendant’s conviction and sentence.
The denial of a motion for a continuance will not be found to constitute error requiring reversal unless the defendant demonstrates prejudice resulting from the trial court’s abuse of discretion. People v Wilson, 397 Mich 76, 81; 243 NW2d 257 (1976). At the hearing on defendant’s motion for a continuance, which was held three days before the trial, defense counsel requested a continuance in order to interview one indorsed prosecution witness whom counsel had not earlier had an opportunity to interview, and three other witnesses not previously indorsed whom counsel had just recently learned would be called to testify. At the hearing, the prosecutor indicated that he would make arrangements for defense counsel to interview these witnesses. Neither at the hearing on his motion for a new trial based partly on the denial of the continuance, nor in his brief on appeal, has defendant demonstrated any prejudice. Defendant has not shown that defense counsel was not in fact able to interview these witnesses or that the time remaining before trial was not adequate to effectively interview these witnesses in preparation for trial. Thus, we find no reversible error. People v Hill, 88 Mich App 50, 58; 276 NW2d 512 (1979).
At the first phase of the trial, two police officers who observed the arresting officer’s appearance moments after defendant’s arrest testified that it looked like the arresting officer had been in a fight. One of these officers also testified that the arresting officer told him that he had been in a fight. Defendant claims on appeal that this testimony constituted inadmissible opinion and hearsay testimony. Defendant made no objection to this testimony at trial, and therefore, appellate review is precluded unless refusal to review would represent manifest injustice. People v Provience, 103 Mich App 69, 72; 302 NW2d 330 (1981), lv den 411 Mich 1058 (1981). We find no manifest injustice in the present case since this testimony was merely cumulative of other testimony presented by the prosecution and also because defendant, himself, admitted that he physically resisted being handcuffed by the arresting officer.
At the close of the first phase of the trial, defense counsel stated that he had just learned the previous day that the prosecutor intended at the second phase to present the testimony of two police officers who had each previously arrested defendant, which arrests had resulted in two prior DUIL convictions. Defense counsel moved that the officers’ testimony be excluded on the ground that they were not indorsed. The trial court denied defendant’s motion but did order the two police officers to remain after recess so that defense counsel could interview them. The record reflects that defense counsel interviewed these officers the evening before the second phase of the trial commenced. At the second phase, the prosecution introduced documentary proof of defendant’s two previous DUIL convictions, and the testimony of the two officers to the effect that defendant was the person they had arrested.
We find no merit in defendant’s contention that admission of the unindorsed officers’ testimony constituted reversible error. We will assume without deciding that the prosecutor was required to indorse the two police officers as res gestae witnesses under MCL 767.40; MSA 28.980. Even so, any error must be measured by the extent to which the purpose of the indorsement require ment, to allow a defendant to adequately prepare for trial, was impaired. People v Henry, 101 Mich App 585, 588; 300 NW2d 639 (1981), lv den 411 Mich 886 (1981). The only prejudice which defendant has asserted on appeal is that the one officer testified that he arrested defendant not only for DUIL, but also for resisting arrest and that, if defense counsel had had an opportunity to learn of this prior arrest, counsel could have moved in limine to exclude any reference to the previous arrest for resisting arrest. Defense counsel did request that the jury be instructed to disregard this testimony, and the trial court so instructed. That defense counsel did not make a motion in limine was not prejudicial to defendant in light of the court’s instruction to disregard and the fact that the jury had already determined defendant’s guilt of the charged offense of resisting arrest in the first phase of the trial, and the only question to be resolved by the jury in the second phase was whether defendant had previously been convicted of DUIL. Because defense counsel was given an opportunity to interview the police officers, and because defendant has failed to show any prejudice by the admission of their testimony, reversal is unwarranted. See People v Henry, supra.
The final issue defendant raises on appeal is that the trial court erred in permitting evidence of a prior DUIL misdemeanor conviction where the defendant was not represented by counsel to be used as a basis for convicting and sentencing him as a third-time DUIL offender because defendant was not advised of the right to appointed counsel at that prior proceeding. Defendant was sentenced to two to five years for this third-time DUIL offense, which is a felony under MCL 257.625; MSA 9.2325. Defendant preserved this claim for appellate review by raising this issue before the trial court in a post-trial motion. People v Moore, 391 Mich 426, 440; 216 NW2d 770 (1974); People v Bradley, 117 Mich App 776, 780; 324 NW2d 499 (1982). In Baldasar v Illinois, 446 US 222; 100 S Ct 1585; 64 L Ed 2d 169 (1980), the Court held that a prior misdemeanor conviction cannot be used to enhance the penalty and impose a sentence for a subsequent offense where the defendant at the prior misdemeanor proceeding was not represented by counsel and did not waive the right to counsel. A majority of the justices in Baldasar reasoned that, even if a prior misdemeanor conviction where a defendant was not represented by counsel is not in itself invalid under Scott v Illinois, 440 US 367; 99 S Ct 1158; 59 L Ed 2d 383 (1979), because no imprisonment was actually imposed and thus no right to counsel existed, still that prior conviction' may not be used as a basis for imposing imprisonment upon a subsequent conviction.
In the present case, the challenged prior DUIL misdemeanor conviction was the result of a guilty plea by defendant. At the combined arraignment and plea-taking proceeding, defendant was advised by the court of his right to be represented by counsel, and defendant on the record stated that he understood and waived that right. Defendant was not, however, advised of his right to appointed counsel if indigent. We do not believe that defendant’s waiver of representation by counsel is equivalent to a waiver of the right to appointed counsel if indigent, since the court never advised defendant of that right and defendant may have understood only that he could retain counsel if he so desired. See People v Faulman, 23 Mich App 635; 179 NW2d 207 (1970). Nevertheless, defen dant’s prior misdemeanor conviction is subject to collateral attack only if defendant’s constitutional rights were violated, see People v Bradley, supra, pp 780-782, and defendant’s right to appointed counsel at the prior proceeding was violated only if defendant was in fact indigent at the time of that prior proceeding. Neither at the post-trial hearing before the trial court nor on appeal has defendant even asserted, much less demonstrated, that he was in fact indigent and thus entitled to appointed counsel at the prior proceeding.
We do not agree with defendant that the court’s failure to advise him of his right to appointed counsel at the prior proceeding alone is sufficient to preclude use of evidence of that prior conviction for enhancement purposes, regardless of whether or not defendant was in fact indigent. Rather, we conclude that, in the context of a collateral attack on a prior conviction by way of appeal from a subsequent conviction enhanced by use of that prior conviction, the failure to advise of the right to appointed counsel at the prior proceeding is of no significance where the defendant was not in fact financially unable to retain counsel at the time of the prior proceeding. Where the defendant was not in fact indigent, the failure to advise of the right to appointed counsel did not prejudice the defendant by the loss of any right. Compare People v Trudeau, 51 Mich App 766, 768-771; 216 NW2d 450 (1974), cert den 419 US 868; 95 S Ct 125; 42 L Ed 2d 106 (1974). Thus, the court did not err in permitting use of defendant’s prior misdemeanor conviction for enhancement purposes.
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Beasley, J.
After a bench trial, defendant, Jimmie Lee Hurse, was convicted of assaulting a prison employee while lawfully imprisoned in a state prison, in violation of MCL 750.197c; MSA 28.394(3). Defendant subsequently pled guilty to a supplemental information charging him as an habitual offender, second offense, in violation of MCL 769.10; MSA 28.1082. Pursuant to a plea agreement, the prosecutor agreed to dismiss a supplemental information charging defendant as an habitual offender, third offense. Defendant was sentenced to serve not less than 1½ years nor more than four years in prison. The trial judge ordered that defendant’s sentence run consecutively to any sentence defendant was currently serving. Defendant appeals as of right.
The charge against defendant of assaulting a prison employee arose out of a fighting incident involving defendant and a fellow prison inmate. Two prison guards eventually broke up the fight between the inmates. However, while the prison guards were attempting to break up the fight, one of the uniformed guards was kicked by defendant.
After hearing extensive testimony and viewing a videotape recording of the fight, the trial judge expressly found that defendant had kicked the prison guard. However, the trial judge went on to find that defendant had not intended to kick the prison guard, but had intended only to kick his fellow inmate. Despite defendant’s lack of actual intent to kick the prison guard, the trial judge applied the doctrine of transferred intent in order to find that defendant had the specific intent to assault the prison employee required for a conviction under MCL 750.197c; MSA 28.394(3).
The trial judge expressly adopted the language of Criminal Jury Instruction 17:1:05 in applying the doctrine of transferred intent, which provides:
Where one intends to assault a certain person, but by mistake or accident assaults a different person, the crime so committed, if any, is the same as though the person originally intended to be assaulted had been assaulted.
The trial judge concluded that defendant’s actual specific intent to assault his fellow inmate transferred to his accidental kicking of the prison employee and provided the specific intent necessary to find defendant guilty of the felony offense of assaulting a prison employee.
On appeal, defendant raises two arguments asserting that his conviction for assaulting a prison employee, even when the trial judge’s findings of fact are accepted, is improper as a matter of law. Due to our resolution of defendant’s first argument, we find it unnecessary to address his second argument.
In his first argument, defendant asserts that the trial judge’s findings of fact on the record in this case cannot, as a matter of law, support his felony conviction under MCL 750.197c; MSA 28.394(3). Defendant alleges that, at most, the trial judge’s findings establish only the elements required for a misdemeanor conviction for assault and battery under MCL 750.81; MSA 28.276. We agree.
MCL 750.197c; MSA 28.394(3) provides:
A person lawfully imprisoned in a jail, other place of confinement established by law for any term, or lawfully imprisoned for any purpose at any other place, including but not limited to hospitals and other health care facilities or awaiting examination, trial, arraignment, sentence, or after sentence awaiting or during transfer to or from a prison, for a crime or offense, or charged with a crime or offense who, without being discharged from the place of confinement, or other lawful imprisonment by due process of law, through the use of violence, threats of violence or dangerous weapons, assaults an employee of the place of confinement or other custodian knowing the person to be an employee or custodian or breaks the place of confinement and escapes, or breaks the place of confinement although an escape is not actually made, is guilty of a felony. [Emphasis added.]
In the within case, the trial judge expressly found that defendant had not actually intended to assault the prison employee, but had only intended to assault his fellow inmate. The doctrine of transferred intent, by its own terms, does not apply in this situation in order to allow defendant to be convicted of a felony where his actual intent would only support a misdemeanor conviction. As CJI 17:1:05 states, the crime which results from application of the transferred intent doctrine is the same as though the person originally, or actually, intended to be assaulted had been assaulted.
Applying this doctrine of transferred intent to the trial judge’s findings of fact in this case, we conclude that defendant could only be convicted of the crime he could have been convicted of if he had actually assaulted his fellow inmate. If defendant had actually assaulted his fellow inmate, without accidentally touching the prison employee, he could not have been convicted of assaulting a prison employee. In such a situation, defendant could only be convicted of the misdemeanor offense of assault and battery. Therefore, we conclude that the trial judge erred in applying the doctrine of transferred intent to find defendant guilty of assaulting a prison employee.
In addition, our conclusion on this issue is strongly supported by the language of MCL 750.197c; MSA 28.394(3) itself. The statute specifically requires that the defendant assault the prison employee knowing the victim to be a prison employee. See People v Baskin, 145 Mich App 526, 543-544; 378 NW2d 535 (1985). We believe this statutory requirement indicates that the defendant must actually intend to assault a prison employee and precludes the application of the transferred intent doctrine to convert a misdemeanor assault offense into the felony offense of assaulting a prison employee.
We do not believe that the Legislature intended this statutory language to be interpreted to allow a prisoner who only actually intends to assault a fellow inmate, and who accidentally makes contact with a person he knows is a prison employee, to be convicted of a felony under the statute. In light of our interpretation of the statute, we conclude that the trial judge’s findings of fact in this matter would only support a misdemeanor conviction for assault and battery under MCL 750.81; MSA 28.276.
In summary, we conclude that the trial judge’s findings of fact in this case do not support defendant’s felony conviction for assault of a prison employee and defendant’s subsequent habitual offender conviction. The trial judge’s findings of fact could, at most, only support a misdemeanor conviction for assault and battery. But, since defendant was not charged with assault and battery nor found guilty by the trial judge of assault and battery, we do not believe it appropriate on appeal to find defendant guilty of assault and battery. Therefore, we reverse defendant’s felony convictions in this matter.
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E. M. Clements, J.
Plaintiff brought an action for wrongful death alleging medical malpractice by the defendants. A verdict of no cause of action was returned by the jury on January 26, 1984.
This appeal does not raise any issues from the underlying negligence action. Rather, the appeal involves the jurisdiction of the trial court to enter an order requiring plaintiffs counsel to pay a $6,800 balance of an expert witness fee to Dr. Janette D. Sherman, M.D., who testified for the plaintiff at trial.
The agreement between Dr. Sherman and the law firm of Zeff & Zeff, pursuant to the affidavit of Dr. Sherman, was that payment was to be made to her within forty-eight hours of receipt of her bill. She had received a $1,000 retainer.
Following the jury verdict, she sent a bill for $6,800 to plaintiffs counsel for the balance she claimed was due. The law firm refused to pay that sum and argued that the bill was excessive and that her testimony was not competent and well-prepared.
After notice to the competing parties, the trial court determined that the bill was owing and entered an order to that effect.
Defendants contend that MCL 600.2164; MSA 27A.2164 grants jurisdiction to the court to determine the expert witness fee issue:
(1) No expert witness shall be paid, or receive as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided by law, unless the court before whom such witness is to appear, or has appeared, awards a larger sum, which sum may be taxed as a part of the taxable costs in the case. Any such witness who shall directly or indirectly receive a larger amount than such award, and any person who shall pay such witness a larger sum than such award, shall be guilty of contempt of court, and on conviction thereof be punished accordingly.
(2) No more than 3 experts shall be allowed to testify on either side as to the same issue in any given case, unless the court trying such case, in its discretion, permits an additional number of witnesses to testify as experts.
(3) The provisions of this section shall not be applicable to witnesses testifying to the established facts, or deductions of science, nor to any other specific facts, but only to witnesses testifying to matters of opinion.
The cases which have applied this statute involve the award of expert witness fees in the context of taxation of fees between parties to a litigation, but not in favor of a witness or against a law firm representing a party. Gilliland v Baldwin-Lima-Hamilton Corp, 52 Mich App 489; 218 NW2d 63 (1974); Gundersen v Village of Bingham Farms, 1 Mich App 647; 137 NW2d 763 (1965).
MCL 600.2164; MSA 27A.2164 gives to the court the discretion to determine whether a witness is qualified as an expert and is thus entitled to fees in excess of the fees set for lay witnesses under MCL 600.2552; MSA 27A.2552. Strzelecki v Blaser’s Lakeside Industries of Rice Lake, Inc, 133 Mich App 191; 348 NW2d 311 (1984). The statute also gives the trial court the authority to set the amount of the expert witness fee. The trial court may tax or assess these costs against a losing party and may even find a person in contempt of court for paying a fee in excess of one set by the court. The statute appears in Chapter 21 of 1961 PA 236, which is entitled "Evidence.” It seems that the Legislature is regulating the introduction of expert witness testimony to avoid possible abuse in the expert witness fees charged in a case. The statute does not allow entry of an order compelling the payment of an expert witness fee by a non-party.
Counsel for both Dr. Sherman and Zeff & Zeff cite Spurling v Battista, 76 Mich App 350; 256 NW2d 788 (1977), as supporting their respective theories of jurisdiction. In Spurling, counsel for third-party defendants filed a motion for lay witness fees pursuant to MCL 600.2552; MSA 27A.2552. The motion was directed against counsel for the principal defendant, the third-party plaintiff. The trial court granted the motion. This Court reversed, finding that the trial court did not have the authority to order counsel to pay witness fees:
We recognize that circuit courts have broad powers, MCL 600.601; MSA 27A.601, and that they have the power to "make any order proper to fully effectuate” their jurisdiction and judgments, MCL 600.611; MSA 27A.611; however, we find that in this case the trial court did not have the power to compel jsrg & h to pay witness fees.
Jsrg & h was not a party to this action. There has been no complaint filed against it. Therefore, the only way that the trial court could have authority over jsrg & h would be because of its involvement as counsel for Silvio Battista or under GCR 1963, 908.
GCR 1963, 908 is inapplicable because g & k was not a client of jsrg & h nor has it claimed to be successor to such a client. See Maljak v Murphy, 385 Mich 210; 188 NW2d 539 (1971).
G & k had full knowledge that jsrg & h was acting in a representative capacity on behalf of Silvio Battista. All of the relevant pleadings and subpoenas reflect that they were filed by Silvio Battista through his attorneys, jsrg & h. G & k has made no claim that jsrg & h undertook to be personally bound. We refuse in this type of situation to hold an attorney liable to third parties for expenses incurred on behalf of clients. See Anno., 15 ALR3d 531, § 14, p 557. [Id., pp 353-354.]
While cases cited in 15 ALR3d 531, § 14 hold attorneys liable for certain witness fees, the liability is founded upon a separate action against the attorney.
Spurling, supra, found that the statute did not give the lower court the power to award witness fees against the attorneys because there was no complaint filed and they were not parties to the action. To the extent that Spurling suggests possible payment by attorneys if personally bound, this Court does not adopt that dicta.
Finally, this Court does not accept Dr. Sherman’s contention that the trial court has the power to order witness fee payment by Zeff & Zeff in the instant case by virtue of the provisions of GCR 1963, 908, now MCR 8.122, which states:
Attorneys and counselors are officers of the courts of this State and as such are subject to the summary jurisdiction of such courts. The circuit court of the county in which an attorney resides or has an office has jurisdiction, on verified written complaint of any client, either in person or by attorney and after reasonable notice and hearing, to make an order for the payment of money or for the performance of any act by the attorney which law and justice may require. All courts of record have a like jurisdiction as to all such complaints regarding matters arising in suits or proceedings in such courts.
This rule applies only to claims by clients against attorneys and not to claims of witnesses.
The expert witness may file a complaint for breach of contract against the law firm of the plaintiff in a court of competent jurisdiction.
The circuit court for Wayne County did not have subject matter jurisdiction to enter an order for witness fees against a non-party.
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Per Curiam.
Defendant employer appeals by leave granted from a decision of the Workers’ Compensation Appeal Board which affirmed the decision of the referee awarding plaintiff total and permanent disability benefits.
Defendant first argues that the wcab misapplied the standard set forth in Miklik v Michigan Special Machine Co, 415 Mich 364; 329 NW2d 713 (1982), by failing to find a connection between plaintiff’s heart damage and specific events at work. Under Miklik, a claimant must establish by a preponderance of the evidence both that there is heart damage and a link between the heart damage and employment. Miklik, supra, p 367. The damage must be related to specific incidents or events at work. 415 Mich 370. The factfinder must identify and evaluate the discrete factors of employment which are connected to the damage. Id. One such factor is temporal proximity of the cardiac episodes to the work experience. Id. This Court may set aside the wcab’s finding of a causal connection between the injury and employment only when convinced that there is no evidence to support that judgment. Kostamo v Marquette Iron Mining Co, 405 Mich 105, 135-136; 274 NW2d 411 (1979). Conclusory findings are inadequate. Id.
The two-man majority of the wcab found that on May 3, 1977, plaintiff had to work harder than usual because the stockmen came to work late. The opinion quotes plaintiff as saying that he had to carry many boxes weighing forty pounds for a distance of forty feet for about six hours. In fact, as plaintiff concedes on appeal, plaintiff never said this. He testified, instead, that for the first half hour at work on May 3, he carried eight or nine boxes, each weighing between twenty and forty pounds. Plaintiff testified that he then commenced his regular job of repairing regulators. After three hours of this work, he began experiencing chest pains. Plaintiff testified that by lunch time the pains worsened, and he was taken to the hospital that afternoon.
The wcab majority summarized the deposition testimony of three medical experts. Dr. Warbasse, staff physician at Ford Hospital during plaintiffs hospitalization, noted that plaintiffs chest pains recurred the morning of May 7, after having been arrested between May 4 and May 6. Dr. Warbasse described this as "an evolution of a heart attack,” culminating in a rather extensive myocardial infarction on the seventh. Dr. Kastan opined that there probably was heart damage on May 3. Dr. Clyde Wu diagnosed coronary artery disease and angina pectoris, but did not find these conditions to be causally related to plaintiffs employment. As the majority opinion notes, there is no disagreement as to plaintiffs heart damage; the dispute revolves around work-relatedness. The only testimony on this issue in the wcab’s majority opinion is from Dr. Wu, who found no causal relationship. The wcab then states:
Plaintiff never had any heart problems prior to his hospitalization with angina pectoris on May 3, 1977, when he was subjected to unusual strenuous and repetitive work assignments. After a few days of intensive care, his heart condition deteriorated culminating in a myocardial infarction. He had some risk factors with regard to arteriosclerotic heart disease, such as smoking, heredity, hypertension, and diabetes, which pre-disposed him to car- dial vulnerability when exposed to occupational stresses.
The majority concluded plaintiff had sustained his burden of proof under Miklik.
We cannot agree. The majority opinion contains no findings on the crucial link between plaintiffs work duties on the morning of May 3 and his heart attack on May 7. Even if, as the opinion suggests, plaintiff was subjected to unusual strenuous and repetitive work assignments causing angina pectoris on May 3, there is no evidence to support the statement that "his heart condition deteriorated culminating in a myocardial infarction.” To the contrary, as the dissenting wcab member noted, Dr. Warbasse opined that plaintiffs angina on May 3 had cleared by May 7: "The myocardial infarction undoubtedly reflects the underlying coronary atherosclerosis and occurred for whatever reason myocardial infarctions occur after five days of bed rest.”
Some statements made by Dr. Kaftan, while disputed by the other two experts, might have supported the board’s position. However, the board did not mention these statements in its opinion. Because of the majority’s conclusory findings, we cannot "know the path it has taken through the conflicting evidence, the testimony it has adopted, the standards followed, and the reasoning used to reach its conclusion.” Kostamo, supra, p 136; Moreno v Campbell, Wyant & Cannon Foundry, 142 Mich App 648; 369 NW2d 867 (1985). We must, therefore, vacate the wcab’s opinion and remand the case to the board.
Defendant has pointed out two other issues which we agree merit reconsideration by the board. MCL 418.353(1)(a)(i); MSA 17.237(353)(1)(a)(i) provides that the wife of an injured employee living with him at the time of his injury is conclusively presumed to be dependent upon him. The referee in this case accordingly increased plaintiff’s benefits assuming his wife was a dependent. While the referee’s decision was pending before the wcab, the Supreme Court ruled in Day v W A Foote Memorial Hospital, 412 Mich 698; 316 NW2d 712 (1982), that the conclusive presumption of dependency of a widow in the Workers’ Disability Compensation Act, MCL 418.331(1)(a); MSA 17.237(331)(1)(a), was unconstitutional. The wording of § 331(1)(a) which applies to the wife of a "deceased employee,” is virtually identical to the wording of § 353(1)(a)(i) which applies to the wife of an "injured employee.” The Supreme Court’s ruling that the former constitutes unconstitutional gender-based discrimination applies equally to the latter.
In this case, defendant asked the wcab to reconsider the conclusive presumption of dependency in light of Day. The board ignored the request. This Court has ruled that Day applies to cases which were pending before the wcab at the time of the decision. Lambard v Saga Food Service, Inc, 127 Mich App 262, 275; 338 NW2d 207 (1983), lv den 419 Mich 958 (1984). Therefore, if, on remand, the board establishes the link between plaintiff’s work and his heart attack, the board may not conclusively presume that plaintiff’s wife is his dependent, but plaintiff is free to prove dependency in fact. Day, supra, p 708.
Defendant also objects to the award of twelve percent interest on past due benefits. When the wcab issued its decision in this case on December 28, 1984, MCL 418.801(6); MSA 17.237(801)(6) provided for twelve percent interest on compensation payments until paid. On July 30, 1985, the Legislature changed this to ten percent, effective immedi ately. 1985 PA 103. When the interest rate in this section was changed in 1981 from five percent to twelve percent, the Supreme Court ruled that an employer who paid compensation on or after its effective date of January 1, 1982, was required to pay twelve percent interest from the date each payment was due. Selk v Detroit Plastic Products (On Resubmission), 419 Mich 32, 35; 348 NW2d 652 (1984). Because 1985 PA 103 does not alter the statute except as to the rate of interest, we find the rule in Selk applicable here. Therefore, an employer who pays compensation on or after June 30, 1985, pursuant to an award, is required to pay interest on the award at ten percent from the date each payment was due.
Defendant challenges the wcab’s award of five percent interest on reimbursable medical expenses citing Brown v Eller Outdoor Advertising Co, 139 Mich App 7; 360 NW2d 322 (1984). We find Brown to be controlling here. Should the board determine that plaintiff is entitled to workers’ compensation, plaintiff is not entitled to interest on reimbursement of medical expenses.
We find the other issues raised by defendant on appeal to be without merit.
Remanded for further proceedings consistent with this opinion. We order that on remand this matter be given expedient attention. We reserve jurisdiction solely on the issue of expeditious disposition. Either party may bring this aspect of our opinion to the Court’s attention by motion. | [
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G. W. Crockett, III, J.
Defendants appeal by leave granted from a March 8, 1985, order of the Court of Claims which denied their motion for summary judgment under GCR 1963, 117.2(3), now MCR 2.116(0(10).
Plaintiffs’ complaint alleged that plaintiff Donald Dudek received serious injuries in the course of his employment while working on the grounds of the Coldwater State Home & Training School, a state mental health facility, on July 6, 1979. The complaint alleged that he was injured when a cement block fell from a building, struck him, and caused him to fall off a ladder. Plaintiffs alleged that Donald’s injuries were proximately caused by defendants’ negligence. This negligence allegedly consisted of a failure to warn Donald of the defective condition of the building and a failure to inspect and repair the defective condition of the building contrary to the "public buildings” exception to governmental immunity contained in MCL 691.1406; MSA 3.996(106).
According to the deposition testimony of Herman Weissmann and the affidavits filed by defendants in support of their motion for summary judgment, Donald was employed by the general contractor for the renovation project, Miller-Davis Construction Company. The renovation project included internal demolition and structural changes to the inner and outer walls of several buildings used to house developmentally disabled patients. The patients had been removed from the building and the entire area of construction had been closed off by a six-foot-high chain link fence. Two gates provided ingress and egress for authorized personnel. Signs were placed at the gates to warn that the area was not open to the public. The site of Donald’s injuries was enclosed by the fence.
The trial court denied defendants’ motion, ruling that the building where plaintiff was injured was open for use by the public because it was designed, maintained, or operated for use by the public.
A motion for summary judgment under GCR 1963, 117.2(3) is designed to test the factual support for a claim or a defense. Crowther v Ross Chemical & Mfg Co, 42 Mich App 426; 202 NW2d 577 (1972). Its limited purpose is to determine whether a genuine issue of any material fact exists. Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965). When deciding a motion for summary judgment on this ground, a court must consider the affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). The court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo, supra.
We are asked to decide a question of law, namely, whether the site of injury was a public building open for use by members of the public for purposes of MCL 691.1406; MSA 3.996(106). Plaintiffs do not dispute that the building site was enclosed by a fence or that the building was closed for renovation.
The "public buildings” exception to governmental immunity, MCL 691.1406; MSA 3.996(106), provides in part:
Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.
We find no case directly on point to guide us.
In Green v Dep’t of Corrections, 386 Mich 459, 463-464; 192 NW2d 491 (1971), aff'g 30 Mich App 648; 186 NW2d 792 (1971), the Court held that the Detroit House of Correction was a public building for purposes of MCL 691.1406; MSA 3.996(106), even though it was not open to the public at large. Further, it held that the plaintiff, an inmate who received injuries when using a planing machine in the prison shop, was a member of the public community, whether in or out of jail.
We are not persuaded that Green, supra, controls the disposition of this case. Although Donald could be considered a member of the public in a general sense, he was allowed onto the site only because he was employed by the general contractor to renovate the facility. The facts clearly show that the general public was excluded from the accident site. Further, the publicly-owned site was not "open for use” as a home for developmentally disabled persons.
By providing the "public buildings” exception to governmental immunity, the Legislature intended to protect the general public from injury by imposing upon governmental agencies the duty to maintain safe public places. Pichette v Manistique Public Schools, 403 Mich 268, 285; 269 NW2d 143 (1978). The determination of whether a part of a building, in this case a building wall, is dangerous or defective is to be made in light of the "uses or activities” for which it is "specifically assigned.” Bush v Oscoda Area Schools, 405 Mich 716, 731; 275 NW2d 268 (1979). A building may be dangerous or defective because of improper design, faulty construction or the absence of safety devices. Bush, supra, p 730. Where the defective or dangerous condition arises from the activities or operations conducted within the building and do not stem from the condition of the building itself, a claim is not stated within the "public buildings” exception. Landry v Detroit, 143 Mich App 16, 22; 371 NW2d 466 (1985), lv gtd 424 Mich 876 (1986); Vargo v Svitchan, 100 Mich App 809, 822-823; 301 NW2d 1 (1980), app dis 411 Mich 1035 (1982).
In this case, the dangerous or defective condition occurred as a result of the renovation activities in the area. In our view, the Legislature did not intend to abrogate sovereign immunity where a governmental building was closed to the general public for complete renovation and a workman of the general contractor was injured as a result of renovation activity.
We reverse the decision of the Court of Claims and remand the case for entry of an order granting defendants’ motion for summary judgment. | [
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Per Curiam.
Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for summary judgment, GCR 1963, 117.2(1). We reverse and remand for trial.
On January 5, 1979, at approximately 1:30 a.m., an intruder entered the Peyton Place Bar carrying a rifle and announced a robbery. The man yelled for everyone to get onto the floor. Plaintiff’s decedent refused to cooperate, swore at the robber, and directed an obscene gesture in his direction. The robber fired at the decedent at point-blank range, fatally striking him in the chest.
Plaintiff filed a two-count complaint against defendant, alleging dramshop violations and premises liability. The dramshop count was settled, leaving only the premises liability count, which the trial court dismissed by means of the order underlying this appeal. In granting summary judgment, the court reasoned that defendant could not be liable because she had no duty to prevent the killing of the plaintiff’s decedent. The court characterized the killing as wholly unforeseeable.
We believe that defendant did in fact owe a duty of care to plaintiff’s decedent, and that the trial court’s reasoning as to this issue was erroneous. A business invitor such as defendant owes a duty to invitees to maintain premises in a reasonably safe condition, exercising due care to prevent situations which it knows or should know might result in injury, Manuel v Weitzman, 386 Mich 157, 163; 191 NW2d 474 (1971). This Court has recently discussed the extent to which a business invitor’s duty of care requires it to protect its invitees from the intentional act of an assailant. See Earle v Colonial Theatre Co, 82 Mich App 54; 266 NW2d 466 (1978), lv den 403 Mich 816 (1978). In Earle, this Court found liability for injuries sustained when the plaintiff was assaulted on defendant’s premises. Similarly, in Samson v Saginaw Professional Building, Inc, 393 Mich 393; 224 NW2d 843 (1975), the Supreme Court held that a landlord owes an affirmative duty to protect tenants from foreseeable assaults by users of the premises. The Court stated that the duty to guard another against the criminal acts of third parties can arise when there is a "special relationship” between the party owing the duty and the one to be protected. 393 Mich 406, fn 1. As noted in Earle, supra, the relationship between a business invitor and its invitee is sufficiently "special” to give rise to the duty, see 2 Restatement Torts, 2d, § 314A(3).
A motion for summary judgment based upon GCR 1963, 117.2(1) tests only the legal sufficiency of the complaint, not whether such claims can be factually supported at trial. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 431; 202 NW2d 577 (1972). In the present case, plaintiff made the following allegations:
"15. That at all times relevant herein, defendant retailer was engaged in the business of furnishing and selling intoxicating liquor to its customer business invitees on the above described premises.
"16. That it thereupon became, and was, the duty of defendant retailer, by its agents and employees on its behalf, to exercise all due care and diligence for the safety of persons lawfully on said premises, including plaintiffs deceased spouse.
"17. That on or about January 6, 1979, at approximately 1:30 a.m., as a direct and proximate result of defendant retailer’s misfeasance and its failure to keep the premises of the Peyton Place Bar safe and secure in an effort to protect its customer invitees, robbers entered the premises, robbed the establishment of its cash, and shot and killed Robert Dale Askew, plaintiff’s deceased spouse.
"18. That defendant retailer then and there negligently violated its duty to plaintiff’s deceased spouse by failing to protect the deceased, a customer of the Peyton Place Bar, from bodily harm.
"19. That defendant retailer was also negligent in its failure to take the necessary precaution to protect its patrons from bodily harm.”
Note that plaintiff has specifically pleaded the foreseeability of the assault. We believe that the foregoing allegations have, at the very least, raised a jury question as to whether the risk of an assault such as that involved here was foreseeable to defendant. Whether criminal activity has previously taken place on the premises is but one factor in the determination of whether an assault was foreseeable. Also significant are whether the premises as a whole were located within a high crime area and whether the owner of the premises was aware of criminal activity in the vicinity. We conclude that material issues of fact exist as to the issue of foreseeability. The matter should be decided by the finders of fact. Samson, supra, pp 404-407.
Finally, we reject defendant’s alternative argument, that summary judgment was proper because, as a matter of law, her conduct could not have been a proximate cause of the decedent’s death. The question of proximate cause is also reserved in the first instance for the finders of fact, Kurczewski v State Highway Comm, 112 Mich App 544, 552; 316 NW2d 484 (1982).
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Per Curiam.
The State of Michigan, Department of Mental Health, appeals from an order entered December 29, 1982, dismissing its objection to the accounting of a trust and its claim against the trust.
The dispute in this case concerns the corpus and income balance of a trust established by Benjamin T. Sykes, Sr., in his will of January 16, 1967. The will provides in pertinent part:
"(1) My Trustee shall apply such amounts from the income and principal hereof to or for the benefit of my said wife, Della A. Sykes, and my son, Benjamin T. Sykes, Jr., in such proportions and amounts and at such intervals as the Trustee shall deem necessary to provide for their proper care, support and welfare, always considering the means reasonably available to each such beneficiary from all sources; any unused income in any accounting year shall be accumulated and added to the principal hereof; the amounts of and occasions and necessity for and preferential use between beneficiaries of any such income or principal payments shall be wholly within the discretion of my Trustee and its judgment shall be conclusive.”
The parties stipulated to the following facts regarding Benjamin T. Sykes, Jr. Much of his adult life was spent in jails in Michigan and in other states. His father knew of his imprisonments when he executed his will. Sykes, Sr., provided only occasional and relatively small amounts to his son for his support during his lifetime. In March, 1980, the son was involuntarily committed by the probate court for the County of Ionia to the Michigan Institute of Mental Health. He was transferred to Ypsilanti Regional Psychiatric Hospital in June, 1980, where he remained until his death on December 26, 1981. During that time the Michigan Department of Mental Health provided services for him.
Individuals for whom the Department of Mental Health provides care are financially liable for the services provided. MCL 330.1802; MSA 14.800(802). Financial liability is based on the individual’s ability to pay. MCL 330.1818; MSA 14.800 (818). The department determines financial liability based on the following factors: income, expenses, insurance proceeds, number and condition of dependents, assets, and liabilities. Id. The department is directed not to exhaust any person’s financial net worth below an amount equal to 50% of the person’s original financial net worth. MCL 330.1826; MSA 14.800(826).
On May 6, 1982, the Department of Mental Health made an annualized determination of the financial liability of Benjamin Sykes in the amount of $17,657. In making that determination, the department took into account and counted as an asset the corpus and income balance of the trust. The department calculated the trust balance at $31,709, which figure was the trust balance reported by the trustee in the previous annual accounting. One-half of the original net worth was found to be $15,855. The trustee paid $2,049.60 to the State of Michigan for the cost of care of the son. The state claims that the trust still owes $15,607.40. For that reason, the state objected to the final accounting of the trust and made a claim on the trust for that amount.
The issue before this Court is whether the trustee abused its discretion in refusing to pay the state’s claim against the beneficiary for the value of the services provided the beneficiary in a state mental institution.
The standard of review where a probate court sits without a jury is whether the court’s findings are clearly erroneous. In re Wojan Estate, 126 Mich App 50; 337 NW2d 308 (1983). In construing wills and trusts, the intention of the testator or settlor is paramount. MCL 700.133, 554.352; MSA 27.5133, 26.1192. As to those matters which the settlor has left to the discretion of the trustee, the courts will not interfere with the trustee’s exercise of his discretion unless the trustee has abused his discretion. Moss v Axford, 246 Mich 288; 224 NW 425 (1929).
The general rule is that the interest of the beneficiary of a spendthrift trust cannot be reached by creditors of the beneficiary. Restatement Trusts, 2d, § 157. One of the exceptions to that general rule concerns claims for necessary services rendered to the beneficiary. Id., § 157(b).
The first matter to be considered is whether the provision of services in a state mental institution can be considered "necessary services” so that the son’s interest in the spendthrift trust could be reached in satisfaction of the claim, if this exception is acknowledged. To date Michigan courts have not recognized the necessary services exception to the general rule that the interest of the beneficiary of a spendthrift trust cannot be reached. The courts of other states, however, have permitted state institutions of which the beneficiary of a spendthrift trust was an inmate to reach that interest. See Estate of Lackmann v Dep’t of Mental Hygiene, 156 Cal App 2d 674; 320 P2d 186 (1958); Dep’t of Mental Health & Developmental Disabilities v First National Bank of Chicago, 104 Ill App 3d 461; 432 NE2d 1086 (1982). The son herein was involuntarily committed to the state institution which implies that a determination was made that it was necessary to provide such care for him. For purposes of this appeal we will assume, arguendo, that the services rendered in this case were "necessary services” within the meaning of § 157(b).
The next consideration is whether the trust was properly considered an asset of the son by the state in determining the son’s financial liability for services rendered to him. As noted above, Michigan statutes provide that individuals are liable to the extent of their financial ability for services provided by the Department of Mental Health. In determining an individual’s financial liability the department’s "consideration shall include, but need not be limited to, * * * assets * * MCL 330.1818; MSA 14.800(818). In Dep’t of Mental Health & Developmental Disabilities, supra, an Illinois statute provided that recipients of services of the Department of Mental Health were to be liable for the payment for services rendered to such recipients. That court held that interests of adult income beneficiaries of spendthrift trusts were "estates” within the meaning of the statute providing for financial liability. Similarly, in Estate of Lackmann, supra, the estate of a mentally ill person was held to include that person’s interest in a spendthrift trust.
Those cases can be distinguished, however, from the case at bar. In both cases, despite the "complete and absolute” discretion of the trustee, the state was allowed to reach the trust because "such discretion is not an arbitrary one and one which would permit the trustee to provide no support whatever for [the beneficiary] and to throw him on the charity of others or of the state”. Dep’t of Mental Health & Developmental Disabilities, supra, 104 Ill App 3d 465; 432 NE2d 1088. It was determined that the settlor intended to provide the support for the beneficiaries.
In the case at bar, however, the trustee had complete discretion as to whether the son was to receive any payments from the trust. Not only were the amount and frequency of payments for the son’s support left to the complete discretion of the trustee, but it was directed to always consider "the means reasonably available to [the son] from all sources”. In other words, the son’s interest in this discretionary trust is unascertainable; i.e., he could not be certain that he would ever receive anything. Moreover, we find the settlor did not intend to be the sole source of support of his son. We hold the trustee exercised its discretion in paying the $2,049 on the state’s claim and find the trustee did not abuse its discretion as to the balance.
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Per Curiam.
On February 15, 1991, plaintiff David Codd, an employee of United Airlines, Inc., slipped and fell while pulling a baggage cart in a lot at Detroit Metropolitan Airport. Plaintiffs filed the present action in the Wayne Circuit Court, alleging negligence against defendant Wayne County in its failure to design, build, operate, and maintain the premises of the airport in a reasonably safe manner. Plaintiffs subsequently amended their complaint to claim public nuisance and nuisance per se. The trial court granted the county’s motion for summary disposition on the basis of governmental immunity pursuant to MCR 2.116(C) (7). We affirm.
Plaintiffs claim that the trial court erred in determining that the county’s maintenance and operation of the airport does not fall within the proprietary function exception to governmental immunity. MCL 691.1413; MSA 3.996(113). We disagree.
When reviewing the grant of a motion for summary disposition on the ground that the claim is barred by governmental immunity, we consider all documentary evidence submitted by the parties. All well-pleaded allegations are accepted as true and construed in favor of the nonmoving party. To survive a motion for summary disposition, the plaintiff must allege facts warranting the applica tion of an exception to governmental immunity. Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 676 (1992).
MCL 691.1407; MSA 3.996(107) provides in pertinent part:
(1) Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the governmental agency is engaged in the exercise or discharge of a governmental function.
MCL 691.1401(f); MSA 3.996(101)(f) provides:
"Governmental function” is an activity which is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.
The acquisition, operation, and maintenance of airports by political subdivisions is expressly authorized by the Legislature. See MCL 259.126; MSA 10.226. Therefore, the operation of Detroit Metropolitan Airport by defendant Wayne County constitutes a governmental function. MCL 691.1401(f); MSA 3.996(101X0, MCL 259.126; MSA 10.226, MCL 259.132; MSA 10.232.
However, plaintiffs argue that the operation of the airport falls within the proprietary exception to governmental immunity. MCL 691.1413; MSA 3.996(113). We disagree. The Legislature defined "proprietary function” in § 13 of the act as follows:
Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the government agency, excluding, however, any activity normally supported by taxes or fees.
In Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 257-258; 393 NW2d 847 (1986), the Court held that to be a proprietary function under § 13, an activity must (1) be conducted primarily for the purpose of producing a pecuniary profit and (2) not normally be supported by taxes or fees. Whether an activity actually produces a profit is not dispositive. Id. An agency may conduct an activity on a self-sustaining basis without being subject to tort liability. Id. The depositing of the profit in a general fund or the use of the profit to finance unrelated functions may indicate the pecuniary motive. However, the use of the revenue only to pay current and long-range expenses may indicate a nonpecuniary purpose. See also Adams v Sylvan Glynn Golf Course, 197 Mich App 95, 97-98; 494 NW2d 791 (1992); Totsky v Henry Ford Hosp, 169 Mich App 286, 290-291; 425 NW2d 531 (1988); Taylor v Detroit, 182 Mich App 583, 587; 452 NW2d 826 (1989).
The documentary evidence presented in this case indicates that Detroit Metropolitan Airport is not operated for the purpose of producing a pecuniary profit and normally is supported by taxes and fees. An affidavit from Robert Braun, the Director of Airports for the County of Wayne, provides that the airport normally is supported by taxes and fees and that a landing fee is assessed against each airline flying into the airport. All landing fees, together with all other revenue from airport tenants and concessionaires, are used solely for the operation of the airport. The affidavit further provides that no surplus of funds is distributed as profit. To the contrary, if there is any surplus, airlines receive a credit against their next billing. Braun’s affidavit also states that the purpose of the airport is to provide air transportation to the public so as to promote commerce within the state.
Plaintiffs presented the report and deposition testimony of a certified public account who concluded that defendant’s operation of the airport is "proprietary in nature.” Plaintiffs’ expert stated that "[t]he county’s $10,000,000 investment likely paid off handsomely.” These allegations do not allege facts showing that the county’s operation of the airport is primarily to make a pecuniary profit, as required by Hyde, supra. Even assuming arguendo that a question of fact existed concerning whether the county’s operation of the airport is primarily for the purpose of producing a pecuniary profit, summary disposition properly was granted because plaintiffs cannot allege facts sufficient to satisfy the second prong of the Hyde test, namely, that the county’s operation of the airport normally is not supported by taxes and fees.
Next, contrary to plaintiffs’ claim, the trial court did not abuse its discretion by implicitly denying plaintiffs’ motion to amend their complaint to allege that the county’s operation of the airport constituted a proprietary function. The record reveals that the trial court, in lieu of requiring plaintiffs to file formally an amended complaint, allowed the parties to present supplemental briefs concerning the issue of proprietary function exception. This issue was considered at the motion hearing on April 2, 1992. Likewise, the record does not support plaintiffs’ claim that the trial court was patently unfair to them.
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Per Curiam.
Conida Warehouses, Inc., appeals as of right from a jury verdict entered in favor of both plaintiffs following a four-day jury trial. Conida sold light-red kidney bean seed to both plaintiffs. Once planted, the beans developed a disease commonly known as halo blight. After opening arguments, the trial court dismissed Conida’s third-party complaint against C & B Cattle Co. The jury found that the bean seed was defective, that the defect existed at the time the seed left Conida’s control and that this defect was the proximate cause of plaintiffs’ damages. The jury awarded $10,950 in damages to plaintiff .Mallory and $34,500 in damages to plaintiff Nestle Farms.'
The trial court properly found that Cónida’s warranty disclaimer was ineffective, thereby removing Conida’s defense to the implied warranty claim.
In ruling on the warranty disclaimer issue, the trial court found:
A. There is no disclaimer of warranty created by trade usage because there is no mutual understanding between seed growers and farmers on the existence of such a warranty;
B. The warranty tag attached to the seed bag mentions merchantability;
C. The word "warranty” appears in capitalized letters at the top and the balance of the language is in standard type size;
D. There was no contrasting color or particular emphasis on any portion of the asserted disclaimer; ■
E. The tag was attached with two other tags to the bottom of the bag and was not in a "particularly conspicuous location”, given that it was under two other tags;
F. The warranty tag was the least conspicuous bit of writing on the bag;
G. The heading "Warranty” would suggest that warranties were included rather than excluded; and
H. The plaintiffs were experienced buyers, but this experience did not include any particular familiarity with legal terms of the law of warranty.
The trial court did not err in finding that the tag was inconspicuously placed. MCL 440.2316, 440.2316(2); MSA 19.2316, 19.2316(2); White & Summers, Uniform Commercial Code (2d ed), § 12-5, pp 437-444; Anno: Construction and effect of UCC §2-316(2) providing that implied warranty disclaimer must be "conspicuous”, 73 ALR3d 248.
The trial court also did not err by finding that the warranty was not waived by trade usage. MCL 440.2316(3)(c), 440.1205(2); MSA 19.2316(3)(c), 19.1205(2); White & Summers, supra, § 12-6, pp 454-457; Hartwig Farms, Inc, v Pacific Gamble Robinson Co, 28 Wash App 539; 625 P2d 171 (1981).
Because the trial court correctly found that the implied warranty of merchantability had not been excluded, the court did not err by submitting the question of breach of that implied warranty to the jury. Since the sale of the seeds in question was clearly subject to the provisions of the Uniform Commercial Code, MCL 440.2102, 440.2105(1); MSA 19.2102, 19.2105(1), that the goods be merchantable is implied in the contract of sale. MCL 440.2314; MSA 19.2314. Our review of the record reveals that the jury was properly instructed on this issue.
The trial court’s finding that limiting the remedy to the purchase price of the seed was unconscionable under MCL 440.2302; MSA 19.2302 was not clearly erroneous. Majors v Kalo Laboratories, Inc, 407 F Supp 20, 23 (MD Ala, 1975).
The jury was properly instructed on the measure of damages. MCL 440.2714, 440.2715; MSA 19.2714, 19.2715.
The trial court did not err in dismissing C & B Cattle Comnpany as a third-party defendant at the end of Conida’s opening statement. Conida’s complaint against C & B was for indemnity and contribution based on C & B’s alleged negligence. Here, Conida failed to state the ultimate facts proposed to be proved and essential to its cause of action. Although Conida stated that the beans were under the control of C & B, it never stated that C & B was negligent. Further, Conida declined the opportunity to supplement its opening statement. GCR 1963, 507.1; Haynes v Monroe Plumbing & Heating Co, 48 Mich App 707, 712-713; 211 NW2d 88 (1973).
Last, the trial court did not abuse it discretion by refusing to allow Conida, at trial, to amend its pleadings to include comparative negligence and mitigation as affirmative defenses. At no time during the more than four years between institution of the suit and the trial, during which four pretrial conferences were held, did defendant seek to amend. GCR 1963, 111.7, 118.3, 301.1(1); Messer v Floyd Rice Ford, Inc, 91 Mich App 644; 284 NW2d 139 (1979), rev’d on other grounds 407 Mich 962 (1980).
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