text
stringlengths 12
234k
| embeddings
sequencelengths 128
128
|
|---|---|
Gribbs, P.J.
This case of first impression involves a restriction on adult foster care facilities. The plaintiffs are property owners in the Lake Oakland Woods Subdivision Number 3 in Independence Township. A subdivision use restriction limits subdivision lots to single-family dwellings. The defendants are a subdivision property owner, Patrick R. Bossenbery, and his lessee, Kay-Jan, Inc. Kay-Jan is licensed to provide adult foster care and supervision to six or fewer mentally retarded adults in a small group home. See MCL 400.701 et seq.; MSA 16.610(51) et seq. Kay-Jan is using Mr. Bossenbery’s property as a small group home; this prompted the plaintiffs to sue to enjoin the use.
The Oakland County Circuit Court granted summary judgment for the plaintiffs and denied summary judgment for the defendants. The defendants appeal as of right.
The defendants argue that Michigan public policy considers a group of retarded citizens living together to be a "family”, and thus the Kay-Jan home does not violate the restrictive covenant. Alternatively, they argue that public policy in Michigan strongly supports placing retarded citizens in normal community environments whenever possible and that this policy negates the covenant.
I. Defining "Family”
In other cases this Court has interpreted "family” in various restrictive covenants broadly to allow group homes. The Court in Bellarmine Hills Ass’n v Residential Systems Co, 84 Mich App 554; 269 NW2d 673 (1978), lv den 405 Mich 836 (1979), was faced with a covenant which allowed only "one single private family dwelling” per lot. Bellermine, p 557, fn 3. Relying on early Michigan Supreme Court cases, the Court held that "family” included six or fewer mentally retarded children and their resident foster parent.
In Malcolm v Shamie, 95 Mich App 132; 290 NW2d 101 (1980), a similar covenant permitted only single-family dwellings. The Court, noting that the living arrangement was not a temporary one, held that "family” included five mentally retarded adult women living with a foster parent.
A restrictive covenant allowing only single private family dwellings was interpreted in Leland Acres Homeowners Ass’n, Inc v R T Partnership, 106 Mich App 790; 308 NW2d 648 (1981), to include six mentally disabled adults with 24-hour supervision as a "family”.
Another panel applied the preceding cases to a home providing care for six or fewer mentally retarded adults in Livonia v Dep’t of Social Services, 123 Mich App 1; 333 NW2d 151, lv gtd 418 Mich 874 (1983). That panel also interpreted "family” in a restrictive covenant liberally to include the residents of a small group home.
A related case allowed a woman to operate a family day care home in a residential neighborhood. Beverly Island Ass’n v Zinger, 113 Mich App 322; 317 NW2d 611 (1982). The Beverly Island case, however, is distinguishable from the other covenant cases. In Beverly Island the Court was interpreting language in a covenant which provided that "no lot or building plot shall be used except for residential purposes”. 113 Mich App 324. The Court’s opinion addressed only the meaning of "residential purposes” and did not involve the definition of "family”. 113 Mich App 331.
To date, only one case from this Court has contradicted the preceding set of cases. In Jayno Heights Landowners Ass’n v Preston, 84 Mich App 443; 271 NW2d 268 (1978), lv den 405 Mich 828 (1979), this Court ruled that "family” did not include six elderly residents of a group home. Judge McGregor dissented, stating that he would follow the holding of Bellarmine Hills and liberally interpret "family”. 85 Mich App 449, 452.
Other panels have attempted to harmonize the differing results of Bellarmine Hills and Jayno Heights. The Court in Malcolm v Shamie, supra, correctly pointed out that Jayno Heights involved a commercial venture while the organization in Bellarmine Hills was a government-subsidized nonprofit corporation. 95 Mich App 135. See also Leland Acres, 106 Mich App 796.
The Malcolm Court also attempted to distinguish Jayno Heights by saying that Bellarmine Hills involved the kind of structure which could be constructed while Jayno Heights involved the kind of structure which could be built and occupied. 95 Mich App 134-135. We believe this is a point without distinction. As Judge Bashara noted in the Bellarmine Hills opinion, "[wjhere restrictive covenants describe the character of permissible structures to be erected upon the property, they also contemplate that use and occupancy of the property shall be commensurately restricted”. 84 Mich App 559.
The defendants argue that the foregoing cases (with the exception of Jayno Heights) demonstrate that the Michigan courts have, for public policy reasons, defined "family” to include residents of licensed foster care facilities. Although there is merit in the defendants’ public policy argument, we think the key element of the above cases was the absence of any definition of "family” in the various covenants. As such, there was an ambiguity open to judicial interpretation. See McMillan v Iserman, 120 Mich App 785, 802; 327 NW2d 559 (1982) (Mackenzie, J., dissenting).
Our case does not present an ambiguous term. Instead, "family” is clearly defined in the covenant:
"A family shall mean one person or a group of two or more persons living together and interrelated by bonds of consanguinity, marriage, or legal adoption. The persons thus constituting a family may also include foster children, gratuitous guests and domestic servants.”
Covenants are contracts. 20 Am Jur 2d, Covenants, Conditions, and Restrictions, § 1, p 575. Contractual terms are not subject to judicial interpretation unless they are ambiguous. Id., § 185, pp 752-753. Although "family” may be assigned many "flexible” meanings, see Boston-Edison Protective Ass’n v Paulist Fathers, Inc, 306 Mich 253, 259; 10 NW2d 847 (1943), the property owners here have prevented flexibility by ascribing a fixed, unambiguous definition. The residents of the Kay-Jan home do not fit within the covenant’s definition of "family”. If the covenant is valid, the defendants are precluded from operating their group home in the subdivision. We now turn to the validity of the covenant.
II. Public Policy
There is a strong policy supporting the right of property owners to enforce the restrictions of covenants affecting their land. Wood v Blancke, 304 Mich 283, 287-288; 8 NW2d 67 (1943). We will not, however, enforce contracts which violate public policy:
"If the contract is at war with the established interests of society, and is in conflict with the morals of the time, the fact that individuals may suffer can in no manner affect the question, as the interests of individuals must in many cases be subservient to public welfare.” McNamara v Gargett, 68 Mich 454, 461; 36 NW 218 (1888).
See Oosterhouse v Brummel, 343 Mich 283; 72 NW2d 6 (1955) (restrictive covenants).
The policy supporting community placement of the mentally retarded is very strong. Recognizing the modern development of physical and mental rehabilitation beyond institutional treatment, the 1963 Constitutional Convention revised the narrow language of the 1908 Constitution. See Const 1963, art 8, § 8, Convention Comment. The 1963 Constitution provides:
"Institutions, programs and services for the care, treatment, education or rehabilitation of those inhabitants who are physically, mentally or otherwise seri ously handicapped shall always be fostered and supported.” Const 1963, art 8, § 8.
The Michigan Legislature has affirmatively fostered and supported institutions, programs, and services for the handicapped. The handicapped have special needs which must be served, yet the Legislature has determined that mainstreaming— bringing the handicapped back into the community where they can live more "normalized” lives —is a worthy goal. To support this goal the Legislature has enacted the now-repealed mandatory special education act, 1971 PA 198; §§ 708 and 712 of the Mental Health Code, 1974 PA 258, MCL 330.1708, 330.1712; MSA 14.800(708), 14.800(712), the Michigan Handicappers’ Civil Rights Act, 1976 PA 220, MCL 37.1101 et seq.; MSA 3.550(101) et seq., and the 1977 amendments to the Township Rural Zoning Act, 1977 PA 29, MCL 125.286a; MSA 5.2963(16a), and the County Rural Zoning Enabling Act, 1977 PA 30, MCL 125.216a; MSA 5.2961(16a). Most important is the Adult Foster Care Facility Licensing Act, 1972 PA 287, as amended by 1979 PA 218, MCL 400.701 et seq.; MSA 16.610(51) et seq. This statute provides for community placement when such placement is appropriate and institutionalization is not beneficial.
Judicial decisions based on the Adult Foster Care Facility Licensing Act, with the exception of Jayno Heights, have been supportive of the rights of the handicapped. The statute was upheld against various constitutional and zoning challenges in Canton Charter Twp v Dep’t of Social Services, 128 Mich App 505; 340 NW2d 306 (1983); Greentrees Civic Ass’n v Pignatiello, 123 Mich App 767; 333 NW2d 350 (1983), lv gtd 418 Mich 880 (1983); Livonia v Dep’t of Social Services, 123 Mich App 1; 333 NW2d 151 (1983) (Livonia II), lv gtd 418 Mich 874 (1983); Dearborn v Dep’t of Social Services, 120 Mich App 125; 327 NW2d 419 (1982), lv den 417 Mich 1078 (1983); Oxford Twp v Dep’t of Social Services, 120 Mich App 103; 327 NW2d 409 (1982); Livonia v Dep’t of Social Services, 119 Mich App 806; 328 NW2d 1 (1982) (Livonia I), lv gtd 418 Mich 874 (1983), and Brandon Twp v North-Oakland Residential Services, Inc, 110 Mich App 300; 312 NW2d 238 (1981), lv den 412 Mich 900 (1982).
Cases in which community placement was upheld against attacks by property owners seeking to enforce restrictive covenants were discussed in the preceding section.
Several cases are noteworthy for their discussions of public policy. The Bellarmine Hills Court recognized that "[t]he associational nexus of the group [the residents] clearly occupies a favored position in our state’s public policy”. 84 Mich App 562. Referring to day care homes for mentally retarded children, the Court in Beverly Island stated: "Unquestionably, the public policy of this state is to provide for the protection, growth and development of the children.” 113 Mich App 330. The "public policy of this state to establish community housing for the handicapped” was recognized in dicta in Livonia II, 123 Mich App 22.
Judge McGregor, dissenting in Jayno Heights, eloquently summarized our view of the public policy supporting the placement of small group homes in residential settings:
"It is apparent from the above-cited constitutional and statutory language that it is the conñrmed public policy of this state to provide adequate, regulated and safe foster care facilities for the elderly in residential neighborhoods throughout the state. The Legislature’s use of a six person limitation in § 5 of the Adult Foster Care Facility Licensing Act reveals its intent to promote facilities of a small, familial nature. That the Legislature intended that such facilities be located in residential communities is beyond question in light of § 8’s prohibition of excessive concentrations of such facilities in any given community. And, while MCL 125.286a; MSA 5.2963(16a) deems such facilities the residential use of property for the purposes of zoning without mentioning restrictive covenants, this law reiterates the public policy favoring the establishment of such facilities.
"In applying with the utmost caution the principle that restrictive covenants which violate public policy may not be enforced, I would find that the public policy favoring the establishment of residential adult foster care facilities outweighs the policy supporting the enforcement of residential restrictive covenants and that the covenant in question may not be enforced to enjoin defendants’ use of this property as a licensed foster care facility.” (Emphasis added.) 85 Mich App 454-455.
In McMillan v Iserman, supra, this Court ruled unenforceable as a violation of public policy an amended covenant which expressly barred state-licensed residential facilities (group homes) from the subdivision. This blatant attempt to exclude the mentally handicapped from the neighborhood was held "manifestly against the public interest and thus unenforceable on public policy grounds”. 120 Mich App 795.
In our case, the plaintiffs have not attempted so blatant an exclusion as the plaintiffs in McMillan. The restrictive covenant we consider pre-dates the current controversy surrounding mainstreaming, whereas the McMillan covenant was written in direct response to the statute to specifically exclude group homes. We attribute no ill motive to our plaintiffs. Nevertheless, the public policies are the same.
The strong public policy supporting group homes overcomes the public policy which favors the right of property owners to create restrictive covenants. We cannot consider the property owners’ apparent motives in drafting or retaining a covenant lest we encourage indirect methods to exclude the handicapped where blatant, direct methods would clearly fail.
Thus, we hold the restrictive covenant which, by its definition of "family”, bars the placement of a small group home for the continuous care of six or fewer mentally retarded adults is unenforceable as violative of public policy. We are not striking down the covenant in its entirety. The Lake Oakland Woods Subdivision Number 3 has a recognized right to maintain the single-family atmosphere by defining "family”. As applied to the residents of the defendants’ small group home, however, the covenant is unenforceable.
III. Equal Protection
In light of our disposition of the public policy issue, we do not reach the defendants’ argument that enforcement of the covenant violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Summary judgment for the plaintiffs is reversed. The trial court’s denial of summary judgment for the defendants is reversed, and summary judgment is entered for the defendants.
The covenant states:
"Lots shall be used for residential purposes only and no building of any kind whatsoever shall be erected, re-erected, moved or maintained except private detached dwellings. Such dwellings shall be designed and erected for occupation by, and occupied by, only one (1) single family. A private garage or carport for the sole use of the owner or occupant may be provided. A family shall mean one person or a group of two or more persons living together and inter-related by bonds of consanguinity, marriage, or legal adoption. The persons thus constituting a family may also include foster children, gratuitous guests and domestic servants. The Declarant may permit the occupation of a dwelling by persons not constituting a family as defined herein provided it finds that such occupancy will not be detrimental to the purposes sought to be obtained by these restrictions.”
McDonald v Kelly Coal Co, 335 Mich 325; 55 NW2d 851 (1952); Boston-Edison Protective Ass’n v Paulist Fathers, Inc, 306 Mich 253; 10 NW2d 847 (1943); Carmichael v Northwestern Mutual Benefit Ass’n of Michigan, 51 Mich 494; 16 NW 871 (1883); Mutual Benefit Ass’n of Michigan v Hoyt, 46 Mich 473; 9 NW 497 (1881). See 84 Mich App 559-561.
The Beverly Island Court briefly discussed Bellarmine Hills and Jayno Heights Landowners Ass’n v Preston, 85 Mich App 443; 271 NW2d 268 (1978), lv den 405 Mich 828 (1979), but did not specifically apply the definition of "family” to its own facts. Instead, the Court’s recognition of these two cases was tied to its discussion of public policy. 113 Mich App 328-329.
See the Adult Foster Care Facility Licensing Act, 1979 PA 218, MCL 400.701 etseq.; MSA 16.610(51) etseq.
"Institutions for the benefit of those inhabitants who are deaf, dumb, blind, feeble-minded or insane shall always be fostered and supported.” Const 1908, art 11, § 15.
Part of the covenant in McMillan stated:
"No lot may be used for the operation of any state licensed residential facility, as that term is defined by Sections 125.216a, 125.286a and 125.583b of the Michigan Compiled Laws on January 1, 1980, such laws being more commonly referred to as MCLA Sections 125.216a, 125.286a and 125.583b. This restriction is to be liberally construed and is meant to exclude the operation of any State of Michigan-licensed facility that provides resident services for six (6) or less persons under 24-hour supervision or care for persons in need of that supervision or care, whether such residential facility is licensed pursuant to Public Act 287 of 1972, as amended, Public Act 218 of 1979, as amended, or pursuant to any Public Act of the State of Michigan that may be adopted in the future which supersedes or amends Public Act 287 of 1972 or Public Act 218 of 1979 in any way.” 120 Mich App 796. | [
-15,
-8,
-36,
-8,
10,
34,
56,
118,
123,
-81,
119,
87,
-81,
-56,
-43,
106,
-1,
109,
64,
77,
17,
-78,
95,
-62,
-43,
-77,
-78,
-59,
-94,
79,
-76,
85,
88,
65,
-102,
93,
-30,
-120,
-51,
86,
-114,
13,
-69,
81,
-111,
66,
54,
55,
18,
14,
85,
30,
-73,
44,
49,
-55,
24,
44,
-35,
37,
-40,
-6,
-97,
-41,
91,
7,
-78,
84,
-104,
-89,
120,
39,
-98,
49,
-128,
-24,
51,
38,
-41,
116,
91,
-102,
44,
39,
98,
3,
52,
-9,
-23,
25,
-114,
-33,
-99,
-90,
-105,
16,
51,
10,
-76,
-67,
84,
80,
42,
122,
110,
4,
91,
105,
-124,
-113,
-42,
-93,
-115,
-80,
0,
-127,
-21,
37,
49,
112,
-55,
38,
-12,
-121,
51,
-39,
-98,
-36
] |
Per Curiam.
Appellant Richard J. Paison appeals as of right from the lower court’s order affirming appellee MESC’s determination that appellant was not entitled to receive Trade Readjustment Allowance (TRA) benefits. On January 5, 1979, appellant went on a leave of absence due to illness, and subsequently, on October 21, 1979, appellant was laid off by Ford Motor Company. To qualify for TRA benefits, appellant had to have at least 26 weeks of employment at wages of $30 or more per week in the 52 weeks immediately prior to being laid off. 19 USC 2291. The MESC referee found that during this qualifying period appellant had only acquired 20 credit weeks of earnings in excess of $30 per week before he went on sick leave. During the period that appellant was on sick leave he received sick pay benefits. The referee concluded that the weeks during which appellant received sick pay benefits could not be considered as credit weeks for the purpose of obtaining TRA benefits since sick pay benefits are not wages for employment. The referee’s decision was affirmed by the circuit court and appellant appealed.
The sole issue in this case is whether sick pay benefits are wages within the meaning of the Trade Readjustment Allowance Act. The term "wages” is defined at 29 CFR 91.3(a)(35). It states:
" 'Wages’ means all compensation for employment for an employer including commissions, bonuses, and the cash value of all compensation in a medium other than cash.”
"Employment” is defined at 29 CFR 91.3(a)(15) as:
" 'Employment’ means any service performed for an employer by an individual for wages or by an officer of a corporation.”
The United States Department of Labor has also promulgated guidelines for the various state unemployment compensation bureaus which state in part:
"Periods in which service is not being performed, such as leave of absence, sick or annual leave or vacation leave * * * may not be considered as an employment for an adversely affected firm or subdivision thereof.” See United States Dep’t of Labor, Manpower Handbook on Adjustment Assistance for Workers Under the Trade Act of 1974, Pt C, p c-1-4, ¶ A, 9 (1975).
While Michigan courts have not ruled on this issue, the Pennsylvania Commonwealth Court held that amounts paid as sick leave benefits do not constitute "wages” for the purpose of determining eligibility for TRA benefits. Deemer v Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 426 A2d 1277 (Pa Commw Ct, 1981). While this decision is not binding on us, we note that it is in accordance with a Michigan statute which does not allow sick benefits paid pursuant to a plan established by an employer to be considered as wages within the meaning of the Michigan Employment Security Act. MCL 421.44(5); MSA 17.548(5). After considering these authorities, we conclude that appellant’s sick benefits did not constitute wages for employment within the meaning of the Trade Readjustment Allowance Act and, therefore, he has insufficient credit weeks to qualify for TRA benefits.
We finally note that § 2291(2) was amended by the Omnibus Budget Reconciliation Act of 1981, Pub L No 97-35, Title XXV, § 2503 (1981). Section 2291(a) as amended allows employer authorized leaves for sickness to count as "week[s] of employment at wages” within the limitations of the prescribed formula. Under this formula, appellant would only be allowed to add 3 credit weeks to the 20 credit weeks he earned while working at Ford Motor Company. Thus, even if this amendment were applicable, appellant would still not have sufficient credit weeks to entitle him to TRA benefits.
Our decision does not prejudice appellant’s right to reapply for TRA benefits if the federal policy is changed.
Affirmed._
Appellant also received four weeks of vacation pay during this period. We do not determine whether these four weeks can be counted as credit weeks since even if these weeks were counted, appellant would still have an insufficient number of credit weeks.
Congress expressly provided that this amendment "shall apply with respect to trade readjustment allowances payable for weeks of unemployment which begin after September 30, 1981”. Omnibus Budget Reconciliation Act of 1981, Pub L No 97-35, Title XXV, § 2514(a)(2)(B) (1981). Since appellant was laid off on August 21, 1979, this amendment does not apply to this case. | [
-80,
-8,
-44,
-84,
10,
96,
50,
26,
92,
-55,
39,
91,
-17,
118,
20,
57,
-25,
125,
113,
107,
-75,
-93,
23,
-54,
35,
-109,
-21,
-35,
-67,
111,
-28,
92,
77,
48,
-126,
-44,
-26,
-111,
-56,
24,
-18,
-121,
-68,
-17,
-7,
0,
60,
110,
-48,
95,
121,
-34,
-21,
46,
17,
-61,
12,
40,
125,
99,
-64,
-8,
-70,
-115,
127,
-124,
-110,
4,
-100,
6,
-40,
74,
26,
56,
0,
-7,
112,
-74,
-58,
124,
35,
-71,
8,
34,
99,
-96,
21,
-25,
-36,
-104,
38,
-46,
-97,
-124,
-47,
57,
11,
9,
-66,
-99,
-4,
20,
12,
126,
-6,
5,
31,
44,
-53,
-122,
-82,
-77,
-115,
100,
-98,
-125,
-13,
-121,
26,
117,
-52,
-18,
92,
1,
43,
-41,
-41,
-104
] |
Per Curiam.
The Department of Natural Resources appeals from an order of the circuit court granting declaratory judgment in favor of defendant. We affirm in part, reverse in part, and remand.
This case involves a dispute over a marina owned and operated by defendant Bayshore Associates, Inc., and compliance with the Inland Lakes and Streams Act (ilsa), MCL 281.951 et seq.; MSA 11.475(1) et seq. This dispute has involved extensive litigation and administrative action. In this case, the dnr charitably may be described as an agency zealously enforcing the environmental laws under its jurisdiction. Its conduct may be described less charitably as that of a rogue agency wielding its extensive power to punish and harass a landowner for daring to insist on and asserting its constitutional and statutory rights.
Bayshore purchased the marina in question in 1987. The marina is located on Swan Creek, a tributary of Lake St. Clair. The dnr had originally issued a marina operating permit to the facility in 1971, allowing the use of 303 boat slips. The slips were located along three canals, designated A, B, and C. The C canal is shared with other riparian landowners, with Bayshore’s docks located along the north side of that canal.
In September 1986, Bayshore sought a dnr construction permit to allow it to allow them to expand the marina to 369 docks, dredge the canals, add a seawall, and pave the parking lot. The dnr held a public hearing on the matter in April 1987 and, on December 10, 1987, a dnr water-quality specialist denied the construction permit in an opinion letter. The dnr noted that safe marina standards recognized by the dnr required a minimum fairway width of 1.5 times the dock length to ensure safe navigation, and concluded that the placement of Bayshore’s proposed piers did not meet this standard. The water-quality specialist further concluded that a permit could be issued for dredging and for construction of a seawall provided that the existing fairway widths were increased to comply with the 1.5 rule, with no docking along the C canal. As a result of the denial of the construction permit, Bayshore operated the marina under the original operating permit, which had been reissued under Bayshore’s name on March 13, 1987. The permit had an expiration date of December 31, 1989.
Litigation began on March 22, 1988, when the St. Clair County prosecutor filed a complaint against Bayshore and its president seeking to enjoin Bayshore from conducting activities in violation of § 3 of the ilsa, MCL 281.953; MSA 11.475(3). The complaint was supported by the affidavit of the dnr water-quality specialist, Steven Spencer, who stated that Bayshore was operating the marina contrary to the terms and conditions of the current operating permit by expanding its facilities without a construction permit. The affida vit alleged that Bayshore was dredging, removing structures, and constructing new structures to expand the marina in violation of the ilsa. The trial court issued a temporary restraining order.
After the temporary restraining order was issued, the parties entered into a consent agreement and order dissolving the temporary restraining order. Under the consent order, Bayshore agreed not to exceed 303 boat slips as listed under the original operating permit, to allow Spencer to inspect the marina, and to submit an after-the-fact permit application covering any modifications or other construction that had not been grandfathered in under the original permit or otherwise exempted by statute. Bayshore, however, never submitted an after-the-fact permit application, asserting that no dredging, modifications, or otherwise nonexempt construction had ever been performed contrary to the ilsa or its operating permit. Bayshore has consistently argued that it did not change the configuration of the marina and that any construction performed was maintenance work that was exempt from permit requirements under § 4(j) of the ilsa, MCL 281.954(j); MSA 11.475(4)(j). At the conclusion of this litigation, the trial court determined that Spencer’s affidavit alleging violations of the ilsa had no basis in fact or law. In any event, despite entry of the consent order dissolving the temporary restraining order, the controversy between the dnr and Bayshore continued.
On May 2, 1988, Bayshore filed a countercomplaint against the dnr seeking declaratory and injunctive relief. Bayshore alleged that the dnr had abused its discretion and regulatory authority by failing to act on its application for a construction permit and by demanding an increase in fairway widths under the 1.5 rule. Bayshore fur ther alleged that the terms and conditions added to the construction permit were illegal and unauthorized under the ilsa. Bayshore also alleged that Steven Spencer had submitted a false affidavit in support of the original complaint and that Spencer and another dnr employee, Thomas Bennett, had wilfully attempted to coerce Bayshore into submitting to the dnr’s illegal demands. Subsequently, Bayshore filed an amended countercomplaint that sought a declaratory judgment that the dnr review and a permit were not needed to perform regular maintenance and repair work, that the ilsa and administrative rules did not support the conditions placed upon Bayshore’s construction permit, and that the dnr exceeded its authority in denying Bayshore a dredging permit. Bayshore asked the court to enjoin the dnr’s administrative proceedings concerning the revocation of its operating permit, to order the dnr to grant a construction permit without the bond requirement, and to order the dnr to permit the requested dredging.
The above-mentioned dredging permits and administrative hearing arose from an August 1988 application by Bayshore to the dnr and the Army Corps of Engineers for permits to dredge the marina. The corps of engineers granted the request. However, Chris Schaefer, chief of the dnr Great Lakes Shorelands Section, refused to process the permit request. In a December 22, 1988, letter, he stated that the permit could not be processed because of the pending litigation and existing violations at the marina. Schaefer cited unspecified, unauthorized structures in noncompliance and wrote that Bayshore’s dredging application would be held in abeyance until the circuit court resolved the issues or the marina was brought into compliance.
Bayshore received a second letter from Schaefer, dated December 22, 1988, wherein Schaefer ordered it to appear for an administrative hearing on January 19, 1989, to show cause why Bay-shore’s marina operating permit should not be revoked. The letter noted that the dnr was in litigation with Bayshore over unauthorized construction work at the marina and stated that "[r]eview of the unauthorized work showed that a majority of the docks at the facility do not meet minimum fairway standards for safe navigation or satisfy marina operating permit criteria for issuance of a permit.” The hearing was held before the dnr’s acting chief of environmental enforcement, John Shauver. Shauver issued his decision in an opinion letter dated February 16, 1989, in which he noted that the dnr’s 1.5 rule was not promulgated as a rule, but was merely a guideline used by dnr staff to recommend to persons and entities subject to its regulation. Shauver concluded that Bayshore had proven compliance with its operating permit as it pertained to the allegations in the December 22, 1988, notice letter. The dnr did not appeal or otherwise challenge Shauver’s determination.
However, despite the administrative decision, on February 27, 1989, a stipulated order was entered agreeing to have the trial court determine the validity of the 1.5 rule through an evidentiary hearing. The stipulated order provided that Bay-shore would be allowed to conduct dredging of the A and B canals and a limited portion of the C canal. The order further provided that the parties agreed that the only remaining issues to be determined were whether Bayshore. could perform maintenance dredging on the C canal and the reasonable use of the C canal.
The trial court determined that the validity of the 1.5 rule and its applicability to Bayshore were questions of law and directed the parties to submit briefs. Ultimately, the court found that the 1.5-fairway-width rule was neither a rule nor a guideline under the Administrative Procedures Act (apa), MCL 24.201 et seq.; MSA 3.560(101) et seq., and that the dnr could not revoke or withhold the permit on the basis of this unpromulgated standard. In short, the 1.5 rule was of no force or effect with regard to the operation or construction of Bayshore’s marina.
Despite the stipulated order to have the trial court determine the validity of the 1.5 rule, the parties still disagreed about the processing of the August 1988 dredging permits. Bayshore moved to require the dnr to obey the terms of the ilsa regarding the processing of permits and to require the dnr to finally process the August 1988 dredging permit applications. On January 4, 1990, the trial court ordered the dnr to process Bayshore’s permit applications in accordance with the ilsa. In May of 1990, Bayshore moved to enforce the January 4 order, arguing that the dnr still had not processed the applications. The dnr maintained that it had issued the permits requested. Bayshore argued that the dredging permits issued by the dnr were not responsive to its applications, because they neither granted nor denied the requested dredging, but instead permitted dredging that was insufficient to meet Bayshore’s needs and did not cover the areas requested. The trial court found that the dnr had violated the January 4 order by failing to process the permit applications as required.
To further complicate matters, difficulties arose between the parties concerning discovery. In June 1989, Bayshore subpoenaed a dnr employee, Claude Schmidt, for the purpose of taking his deposition. Schmidt had been involved in the origi nal granting of the marina operating permit. However, the Assistant Attorney General representing the dnr originally refused to accept service of process of the subpoena and did not produce Schmidt for the original deposition date. A second subpoena was served to depose Schmidt, and the dnr moved for a protective order after the deposition date. Bayshore moved to compel deposition of Schmidt, and, following a hearing, the trial court ordered the dnr to produce Schmidt for deposition, granting Bayshore’s motion for costs.
In May 1990, Bayshore sought to depose dnr employees Jack Bails, Chris Schaefer, and Thomas Bennett. Subpoenas were served, as well as requests for production of various documents. The dnr did not present the employees for deposition or produce the requested documents. Instead, it sought a protective order and moved to quash the subpoenas. Following a hearing, the trial court denied the motion for a protective order and directed the dnr to produce the witnesses for deposition and to produce the requested documents. The court further provided that any documents that the dnr refused to produce on the basis of privilege were to be produced for the court to examine at a subsequent hearing.
By way of complying with the request for the production of documents, the dnr’s counsel informed Bayshore’s counsel that there were over 1,200 files that potentially contained relevant documents and that counsel was free to review those files. The dnr, however, refused to sort through the files to find those that were relevant to the document-production request. However, following summary disposition for Bayshore, it was revealed that the statements by the dnr were untrue. In fact, the dnr’s data-processing system allowed it to distinguish the files easily by computer, allowing it to produce exactly the files that were requested. Furthermore, it was shown that the dnr failed to produce a memorandum by Schaefer explaining the 1.5 rule and its rationale, which was clearly within the parameters of the request for production.
Further acrimony was demonstrated at the deposition of Bails, where counsel for the dnr terminated the deposition after thirty minutes by leaving with the witnesses. Bayshore’s counsel never questioned the witnesses. Because of the denial of discovery, Bayshore moved to hold the dnr and the witnesses in contempt. Following a hearing, the trial court reserved decision on the issue and the contempt motion was ultimately withdrawn following the grant of summary disposition.
The antagonism between the parties further increased in 1990 when, on April 13, Bayshore’s counsel received a letter dated March 30, 1990, from the dnr indicating that Bayshore’s marina operating permit had expired on December 31, 1989, and that Bayshore was violating the ilsa by operating the marina without a permit. The letter further stated that Bayshore had seven days from the date of the letter to submit an application to renew the permit. Bayshore immediately mailed the renewal application by certified mail. The return receipt shows that the application was received by the dnr on April 19, 1990, six days later.
On May 2, 1990, the dnr moved for summary disposition of Bayshore’s claims, arguing that there was no issue of fact because Bayshore no longer had a valid marina operating permit. The dnr submitted an affidavit that stated that Bay-shore had been given written notice on March 30 that a permit renewal application was required within seven days and that one was not received until April 23.
The trial court found that it could not accept the dnr’s arguments and denied the motion for summary disposition. The trial court found that the dnr had failed to provide defendant with due process in acting upon the renewal application and that the dnr had insufficient rules regarding the renewal of operating permits. The trial court further found that the notice letter relied upon deadlines that had no basis in the ilsa or rules and that even if the dnr had acted properly, Bay-shore’s application was filed within the deadline. Accordingly, the trial court granted declaratory judgment in favor of Bayshore.
At the same time that Bayshore moved for declaratory judgment, it also moved for summary disposition and for costs and attorney fees from March of 1988. The trial court found that the issues raised by the dnr’s original complaint had been resolved by the court and, therefore, Bay-shore was entitled to summary disposition. The court further noted that the dnr’s February 16, 1989, administrative decision had resolved the issues raised in the dnr’s December 22, 1988, letters and that declaratory judgments had already been entered regarding those issues. With respect to defendant’s request for sanctions, the trial court noted that the initial temporary re straining order had been set aside within a matter of days and that the March 22, 1988, consent order should have terminated any further proceedings. Instead, the dnr was unsatisfied and began administrative proceedings against Bayshore. When the dnr’s hearing officer found no violations by Bay-shore, the dnr ignored its own administrative ruling and attempted to enforce the rules that had no basis in law. The trial court characterized the dnr’s acts as the unrestricted exercise of governmental power and found rampant discovery abuses by the dnr, with subpoenas ignored and documents not produced according to court order. The trial court stated that overall it was dissatisfied with the way dnr’s counsel was handling the case, which proved oppressive to Bayshore. The trial court concluded that there was no reasonable basis for the dnr’s pursuit of the litigation and that the dnr’s positions lacked arguable legal merit. The trial court directed Bayshore’s counsel to submit a bill of particulars.
Bayshore’s counsel submitted a detailed bill of particulars requesting approximately $350,000 in attorney fees. In response, the dnr filed extensive interrogatories, requesting such relevant information as birth dates, social security numbers, employment histories, as well as all documents produced by the lawyers in relation to their representation of Bayshore, even in unrelated matters, as well as documents listing every client account for each law firm involved. In response to Bayshore’s request for a protective order, the trial court noted that many of the items requested by the dnr were out of line and requested inappropriate information. In fact, the trial court noted that the only appropriate information requested by the dnr was already to be found in the bill of particulars. Accordingly, the trial court struck the interrogatories and granted a protective order against further discovery. Ultimately, the trial court awarded costs of $22,859.74 plus attorney fees in the amount of $193,695, for a total of $216,554.74. We turn now to the first issue.
Plaintiff first argues that the trial court erred in finding that the ilsa does not require a marina operating permit. We agree. Section 3(c) of the ilsa, MCL 281.953(c); MSA 11.475(3)(c), explicitly provides that a person may not operate a marina without a permit issued by the dnr. MCL 281.958; MSA 11.475(8) further provides that a permit is effective until revoked for cause but not beyond its term and may be subject to renewal. Clearly then, the ilsa requires a marina operating permit and authorizes the dnr to issue such permits.
However, resolution of this issue does not by itself require reversal of the trial court’s ruling. The trial court further found that the dnr had not adequately promulgated rules governing the renewal of marina operating permits. We agree. Section 7 of the apa, MCL 24.207; MSA 3.560(107), defines an administrative rule as follows:
"Rule” means an agency regulation, statement, standard, policy, ruling, or instruction of general applicability that implements or applies law enforced or administered by the agency, or that prescribes the organization, procedure, or practice of the agency.
Further, § 11(1) of the ilsa, MCL 281.961(1); MSA 11.475(H)(1), states: "[T]he commission [Natural Resources Commission] may promulgate and enforce rules to implement this act [the ilsa] in accordance with and subject to [the apa].”
The rules promulgated by the dnr, 1979 AC, R 281.811 through R 281.846, indicate that they are clearly designed for review of permits for new marina construction, rather than for renewal of existing operating permits. That is, they establish the framework in which to analyze the propriety of issuing a permit for new construction that would disturb the status quo rather than establishing criteria that would be reviewed in the case of an existing facility. The dnr lacked properly promulgated rules governing the renewal of marina operating permits, and apparently processed renewals on an ad hoc basis, renewing permits as a matter of course where no changes were indicated on the renewal application.
This lack of properly promulgated procedural rules does not provide due process, as the instant case illustrates. The trial court properly concluded that the dnr and the Natural Resources Commission had not properly promulgated adequate rules for renewal of operating permits as required under the apa. Accordingly, there was no basis under the rules for the department to have denied a renewal of the existing operating permit. That is, absent adequately promulgated rules governing the renewal of existing permits, we conclude that the department was obligated to renew a marina operating permit and could exercise its authority only where there was an application for an operating permit to create a new or expanded marina that would require additional construction, disturbing the status quo. Therefore, although the trial court did err in concluding that the ilsa did not require the issuance of marina operating permits, because we agree with the trial court that plaintiff had failed to promulgate properly rules governing the renewal of those permits, a renewal permit should have been issued, and, therefore, the trial court’s erroneous conclusion that no permit was required is harmless.
Plaintiff next argues that the trial court erred in concluding that there was no genuine issue of material fact concerning whether defendant could dredge the so-called C canal and what was the reasonable use of the C canal. While we would tend to conclude that no genuine issue remained following the February 16, 1989, administrative decision in favor of Bayshore with regard to the alleged violations discussed in the department’s December 1988 letter, the issue of Bayshore’s use of the C canal was revived and injected into the circuit court proceedings through the February 27, 1989, stipulated order. The stipulated order stated that the reasonable use of the C canal was a factual issue to be decided by the trial judge. Because the parties stipulated the existence of a factual issue, it was erroneous for the trial court to decide that no factual issue actually existed. Accordingly, the trial court should have held an evidentiary hearing regarding this issue.
Plaintiff next argues that the trial court erred in concluding that the department’s "1.5 rule” concerning the width requirements of fairways in the marina was an improperly promulgated rule. We disagree. The dnr has not promulgated a rule requiring that fairway widths be 1.5 times the dock length. Rather, the dnr argues that that is merely a guideline to be used by dnr staff in reviewing permit applications. However, § 7 of the apa, MCL 24.207; MSA 3.560(107), as quoted above, indicates that a rule includes any regulation or standard or instruction of general applicability that implements or applies the law. Simply put, an administrative agency cannot rely upon a guideline or unpromulgated policies in lieu of rules promulgated under the apa. See Spruytte v Owens, 190 Mich App 127, 133; 475 NW2d 382 (1991). Therefore, if the dnr wishes to make use of the so-called 1.5 rule in assessing marina operating permits, it is obligated to promulgate it as an actual rule in compliance with the apa. Accordingly, the trial court properly concluded that the 1.5 rule was an improperly promulgated rule and, therefore, unenforceable.
Next, plaintiff argues that the trial court erred in requiring the state to pay sanctions to defense counsel as a condition precedent to taking an appeal of the order requiring the payment of sanctions. This issue, however, is moot because the state has already paid the money required and has not been denied its right to seek appeal. In short, there is no effective remedy that this Court could fashion.
Plaintiff next argues that the trial court erred in awarding sanctions to defendant in the amount of $216,554.74, representing costs and attorney fees incurred since the commencement of this action. We disagree. MCR 2.114(F) provides that a party pleading a frivolous claim is subject to paying costs as a sanction. Furthermore, MCL 600.2591; MSA 27A.2591 provides that the trial court may impose a sanction on a party of paying costs and attorney fees where the action was frivolous and the party’s primary purpose in initiating the action was to harass, embarrass, or injure the prevailing party. The trial court found that there was no reasonable basis for the dnr to initiate this litigation or for the allegations contained in the supporting affidavit. We agree.
The affidavit filed in support of the commencement of this litigation alleged that Bayshore was dredging, constructing new structures, and expanding its marina without a permit. Nothing in the record indicates that these allegations were true. In fact, the department’s own hearing officer at the administrative hearing concluded that no unauthorized work occurred in violation of Bay-shore’s permit. Furthermore, despite that administrative decision within the dnr, the department continued the instant litigation after that decision was rendered. Thus, the continuation of the litigation was frivolous.
The trial court further found that the dnr’s motion for summary disposition was itself frivolous and that the dnr had failed to fully disclose the true facts underlying the basis for the motion. This relates to the dnr’s claim that Bayshore’s permit had expired and that a renewal application had not been submitted within seven days as required by a letter dated March 30, 1990, but not delivered to Bayshore’s counsel until April 13, 1990, approximately one week after the deadline. Furthermore, there was no legal justification or authority for imposing such a deadline. The dnr refused to process the allegedly tardy application and moved for summary disposition on the basis that the operating permit had expired. In sum, the record supports the conclusion that the dnr had contrived a situation where it could claim that Bayshore failed to renew its operating permit on time and then used that nonrenewal as the basis for moving for summary disposition. In short, the trial court did not err in concluding that the motion for summary disposition was frivolous and that the dnr had failed to disclose the true facts concerning the subsequent letter denying renewal of the permit.
In addition, the trial court found that the dnr had engaged in repeated and continuing abuses of discovery. Illustrative of this is the fact that the dnr and counsel continually ignored subpoenas seeking to depose key decision makers and to obtain documents, failed to timely seek protective orders, and ignored orders to compel discovery. Furthermore, dnr counsel made deliberate misstatements regarding the availability of relevant documents and key documents were withheld.
Finally, the dnr intentionally violated the trial court’s January 4, 1990, order, requiring the dnr to process all permit applications received by Bay-shore. Specifically, the dnr violated the order by use of the ruse of the failure to timely submit a renewal application and, instead of following the trial court’s order, it pursued the frivolous motion for summary disposition.
In sum, the record reveals that the dnr was not seeking to litigate or resolve issues, but instead sought to punish or harass defendant for not going along with the dnr’s initial requirements and by defendant’s asserting its own rights. If there were any violations by Bayshore, the dnr was unable in two years of litigation to ever conclusively prove any of the alleged violations or even come close to doing so. Instead, the dnr and its counsel sought to have one of Bayshore’s lawyers disqualified, petulantly refused to process permit applications (despite having been ordered to do so), ordered an administrative hearing and then ignored the decision of that hearing in Bayshore’s favor, refused to comply with discovery and orders compelling discovery, and moved for summary disposition on the basis of a contrived expiration of Bayshore’s operating permit.
At best, the dnr has demonstrated that there is a factual question concerning the reasonable use of the C canal, but even that point is established more by the stipulated order signed by the parties than by the facts brought forth by the department. And, in any event, the question of the reasonable use of the C canal has become a relatively minor aspect in this litigation. Even accepting the existence of a genuine issue concerning the reasonable use of the C canal, the dnr’s actions show that its primary purpose in initiating and continuing this action was to harass, embarrass, or injure Bay-shore. Accordingly, we conclude that the trial court properly awarded sanctions under MCL 600.2591; MSA 27A.2591 and MCR 2.114(F).
Plaintiff also argues that the trial court erred in awarding sanctions on the basis of allegations that had been abandoned in amended pleadings. Plaintiff’s argument in this respect is wholly without merit. Plaintiff argues that defendant has abandoned the claim of frivolousness because defendant’s original countercomplaint alleged that the original complaint was frivolous, but that that allegation was omitted from the amended counter-complaint filed by defendant. However, requests for sanctions need not be brought in a counter-complaint, but may be raised by a motion of a party. MCL 600.2591; MSA 27A.2591. Accordingly, Bayshore was not required to raise allegations of frivolousness in the amended countercomplaint and, therefore, did not abandon that claim.
Also with respect to the sanctions issue, plaintiff argues that the trial court abused its discretion in refusing to allow plaintiff to conduct reasonable discovery relating to attorney fees and costs that defendant claimed to have incurred. We disagree. While it is true that the trial court granted a protective order in favor of defendant concerning plaintiff’s discovery requests relating to the sanction issue, those discovery requests were not reasonable. The discovery requests included things such as interrogatories requesting an excessive amount of information, essentially requesting all client files for Bayshore, including files on cases unrelated to the instant litigation, extensive personal histories of all firm employees who billed work on the file, and a listing of other clients and their accounts as well. A significant amount of the documents requested was obviously privileged, and not relevant to the limited issue whether the fees listed in the bill of particulars were reasonable. In short, the dnr once again demonstrated that its interest in this litigation was not to discover relevant information and resolve legitimate issues, but to harass and annoy defendant.
Defendant, on the other hand, had submitted extremely detailed documentation, including daily billings for and descriptions of all work performed and billed by all counsel involved in this matter, in support of its sanctions request. The documentation also detailed the monthly billings and costs from each law firm. It should be noted that dnr counsel never objected to any of the billings submitted in the bill of particulars, or sought discovery or an evidentiary hearing regarding any of the specific billings listed. In short, the trial court had correctly concluded that all of the information to which plaintiff was entitled had already been contained in the bill of particulars provided by defendant. Accordingly, the trial court did not err in granting the protective order.
Finally, plaintiff argues that the trial court erred in making use of an indexed and tabbed "summary binder” provided to the court by defense counsel. Plaintiff argues that this violated MCR 2.107(A)(1), which requires that every party must be served with a copy of every paper or pleading filed in an action. Although Bayshore’s counsel provided the trial court with a summary binder used by the court throughout the proceedings, plaintiff’s counsel was not provided with a copy of that binder. Defendant argues that it was not obligated to supply plaintiff with a copy of the binder because it contained only pleadings already served on appellant’s counsel. The binder was merely used to organize the trial judge’s courtesy copies of those pleadings. We agree with defendant.
Plaintiff’s counsel had received copies of those pleadings and, therefore, it was unnecessary to supply further copies, even though defendant chose to supply such copies to the trial court in an organized fashion to assist the court. At most, plaintiff might be able to contend that civility and professional courtesy would dictate that defendant should also have supplied such a binder to plaintiff. However, the conduct of plaintiff’s counsel during the course of this litigation hardly demonstrates that plaintiff is in any position to complain about any lack of civility or courtesy on behalf of defense counsel.
For the above reasons, we affirm the decision of the trial court with the exception of its finding that the ilsa does not require marina operating permits and we remand the matter to the trial court for a determination of the sole issue whether Bayshore’s use of C canal is reasonable as required by the stipulated order.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Defendant may tax costs.
This is known as the "1.5 rule.”
The dnr claims that the deposition was terminated because of an alleged ethnic slur by Bayshore’s counsel, in which counsel used the term "Mexican standoff” to refer to a stalemate or impasse. However, a review of the short deposition transcript shows antagonistic and obstructive behavior by the dnr’s counsel and her witnesses. Counsel had been obstreperous concerning the availability of witnesses at the deposition and then proceeded to deny the availability or existence of requested documents. Furthermore, the initial dnr witness and counsel both made several insulting references to "snotty” behavior by Bayshore’s counsel before the "Mexican standoff” remark. Following the remarks, counsel and witnesses expressed indignation and stormed out of the deposition.
Though angry and frustrated may be a more appropriate characterization.
Except, of course, in the instant case. | [
-11,
110,
-34,
-4,
75,
-94,
24,
-77,
91,
-37,
-11,
83,
-81,
-13,
12,
43,
-17,
125,
113,
123,
-58,
-94,
115,
-62,
87,
-13,
-5,
-41,
-69,
79,
100,
83,
8,
-31,
-118,
117,
-42,
2,
-35,
80,
-122,
-105,
25,
-21,
-111,
65,
52,
75,
114,
-113,
49,
13,
-93,
45,
17,
67,
-71,
36,
-55,
45,
-63,
-15,
-69,
-100,
91,
20,
-80,
84,
-104,
3,
-40,
27,
-112,
48,
16,
-7,
115,
54,
-58,
117,
67,
-65,
-84,
98,
99,
1,
124,
-51,
-20,
56,
-107,
90,
-115,
-92,
-47,
57,
74,
80,
-108,
-3,
112,
22,
37,
110,
110,
-124,
95,
108,
66,
-25,
-110,
-77,
-114,
-44,
-114,
1,
-57,
17,
55,
100,
-34,
96,
94,
69,
112,
95,
-98,
-120
] |
M. R. Knoblock, J.
Plaintiff, individually and as next friend of her daughter, appeals from circuit court orders denying her motion to amend her complaint and granting summary judgment in favor of defendant.
Plaintiff’s original complaint, filed on August 28, 1981, alleged that plaintiff and her daughter were patrons at defendant’s roller-skating rink on April 19, 1979, and that, while on the premises, they had utilized the women’s restroom provided by defendant for his patrons. Plaintiff thereafter discovered that the defendant had installed see-through pan els in the ceiling of the restroom which permitted surreptitious observation from above of the interior, including the separately partitioned stalls. Plaintiff alleged that defendant had personally viewed plaintiff and her daughter while they used the restroom and claimed that defendant’s conduct constituted an invasion of their privacy, for which they seek damages.
Defendant moved for summary judgment pursuant to GCR 1963, 117.2(3), alleging there existed no genuine issue of fact. The motion was supported by an affidavit of defendant asserting he did not personally view the plaintiff and her daughter as alleged. Plaintiff conceded at the time of the hearing on the motion that there appeared to be no proof available which would establish that defendant had actually viewed plaintiff and her daughter in the restroom, but she asserted such proof is unnecessary to establish a prima facie case of invasion of privacy. The trial court apparently disagreed and granted summary judgment.
The legally protected right of privacy has been variously defined as:
"[T]he right of an individual to be let alone, or to live a life of seclusion, or to be free from unwarranted publicity, or to live without unwarranted interference by the public about matters with which the public is not necessarily concerned, or to be protected from any wrongful intrusion into an individual’s private life which would outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.” 77 CJS, Right of Privacy, § 1, pp 396, 397.
The type of invasion of privacy alleged in this case may be characterized as an "unreasonable intrusion upon the seclusion of another”, 3 Restatement Torts, 2d, § 652A, p 376, or more specifically an "[i]ntrusion upon the plaintiffs seclusion or solitude, or into his private affairs”. See Prosser, Privacy, 48 Cal L Rev 383, 389 (1960); Beaumont v Brown, 65 Mich App 455, 461; 237 NW2d 501 (1975), rev’d on other grounds 401 Mich 80; 257 NW2d 522 (1977). A necessary element of this type of invasion of privacy is, of course, that there be an "intrusion”. The issue presented for our resolution is whether the installation of the hidden viewing devices complained of can itself constitute a sufficient wrongful intrusion into the seclusion or solitude of plaintiff and her daughter so as to permit recovery. We hold that it can and that, therefore, the granting of summary judgment was improper.
The Michigan Supreme Court acknowledged the concept of the right of privacy in the early case of De May v Roberts, 46 Mich 160; 9 NW 146 (1881). In that case, Mrs. Roberts gave birth in her home and the attending physician allowed a young man, who had accompanied him to carry his bags, to remain in the room during the delivery. In affirming a verdict in favor of Mrs. Roberts based on an invasion of privacy, the Court stated:
"It would be shocking to our sense of right, justice and propriety to doubt even but that for such an act the law would afford an ample remedy. To the plaintiff the occasion was a most sacred one and no one had a right to intrude unless invited or because of some real and pressing necessity which it is not pretended existed in this case. The plaintiff had a legal right to the privacy of her apartment at such a time, and the law secures to her this right by requiring others to observe it, and to abstain from its violation.” 46 Mich 165-166.
To our knowledge, the specific issue raised in this case has not been previously addressed by the courts of this state. The New Hampshire Supreme Court, however, confronted an analogous situation where a landlord had secretly installed a listening device in the bedroom of his tenants, enabling him to monitor and record voices and sounds emitting therefrom. Hamberger v Eastman, 106 NH 107; 206 A2d 239; 11 ALR3d 1288 (1964). The court held that, in spite of the fact that the tenants did not allege the landlord actually utilized the listening device, their complaint adequately stated an action for invasion of privacy.
The installation of viewing devices as alleged by plaintiff is a felony in this state. MCL 750.539d; MSA 28.807(4). Though this statute does not specifically impose civil liability for such conduct, nor does plaintiffs complaint assert liability based on its violation, it does constitute, at a minimum, a legislative expression of public policy opposed to such conduct.
The type of invasion of privacy asserted by plaintiff does not depend upon any publicity given to the person whose interest is invaded, but consists solely of an intentional interference with his or her interest in solitude or seclusion of a kind that would be highly offensive to a reasonable person. 3 Restatement Torts, 2d, § 652B, p 378. Clearly, plaintiff and her daughter in this case had a right to privacy in the public restroom in question. In our opinion, the installation of the hidden viewing devices alone constitutes an interference with that privacy which a reasonable person would find highly offensive. And though the absence of proof that the devices were utilized is relevant to the question of damages, it is not fatal to plaintiffs case.
Plaintiff also claims on appeal that the trial court erred in denying her motion to amend the complaint. After the applicable statute of limita tions had expired, plaintiff determined that the title to the roller-skating facility was held by a corporation, The Rink, Inc., and sought leave to add the corporate entity as a defendant. It appears from the record presented that defendant Abate is the resident agent for the corporate entity, that he is employed by it as manager of the roller-skating facility, that he is its sole officer, and that he had knowledge, both personally and in his representative capacity of the corporate entity, of this litigation and of plaintiff’s intent to bring suit against the owner of the roller-skating facility. Based on these facts, we conclude the trial court abused its discretion in denying leave to amend. Wells v Detroit News, Inc, 360 Mich 634; 104 NW2d 767 (1960); Bensinger v Reid, 17 Mich App 219; 169 NW2d 361 (1969); Arnold v Schecter, 58 Mich App 680, 228 NW2d 517 (1975).
Reversed and remanded.
Hood, J., concurred. | [
-80,
-4,
-35,
-68,
8,
97,
0,
-10,
82,
-121,
51,
-109,
-81,
66,
4,
36,
91,
127,
83,
101,
-52,
-77,
3,
34,
-78,
-69,
-78,
80,
-74,
-54,
103,
119,
76,
97,
-62,
-111,
-62,
26,
-3,
86,
-102,
23,
42,
-29,
-47,
0,
50,
59,
-128,
79,
49,
95,
-77,
44,
-110,
71,
40,
45,
-33,
47,
114,
113,
-121,
23,
122,
54,
-94,
38,
-104,
-59,
-24,
25,
28,
-72,
2,
-24,
115,
-90,
-110,
117,
78,
-69,
-127,
64,
98,
-95,
32,
-73,
-76,
72,
47,
107,
-83,
-89,
-14,
72,
65,
44,
-81,
-99,
112,
-128,
-123,
-24,
102,
-36,
31,
108,
13,
-53,
-122,
-69,
15,
122,
-36,
-93,
-30,
55,
18,
116,
-61,
-84,
-36,
78,
-77,
-105,
-114,
-78
] |
Per Curiam.
Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to a term of from 7 to 15 years for armed robbery and a consecutive two year sentence for felony-firearm. He appeals as of right. We reverse and remand for a new trial as to both charges.
Defendant was accused of robbing Sheryl Clark on October 10, 1981, while she was working at the Hudson service station in Battle Creek, Michigan. According to the testamony of Clark, defendant entered the station and asked for some cigarettes. Clark went to get the cigarettes and, as she was turning around back towards defendant, she noticed he had a gun out. Defendant told her to give him her money. Clark testified that defendant then moved toward Clark, reached into her shirt pockets and took the money she had in them. She believed that $352 was taken. After hitting Clark in the face, defendant fled the scene in his car.
The trial judge instructed the jury as follows on the felony-firearm count:
"The second count charges the defendant with having carried or possessed a firearm at the time he committed a felony. As I indicated to you before, you may consider this count only if you find the defendant guilty of the offense charged in count one, namely, armed robbery. If you do so determine, then you will also have be convinced [sic] beyond a reasonable doubt by the evidence that at the time of the commission of the offense, that he did carry or possess a firearm.”_
The trial judge also instructed the jury that:
"If you find him guilty of armed robbery, then as to count two, either we find the defendant guilty of possession of a firearm during the commission of a felony, or we find the defendant not guilty.”
In People v Lewis, 415 Mich 443, 455; 330 NW2d 16 (1982), the Supreme Court held that:
"The judge may and should instruct the jury that a person cannot be convicted of felony-firearm unless the jury finds that 'he commit[ted] or attempted] to commit a felony’. Because conviction of a felony or of an attempt to commit a felony is not an element of the offense, the jury may not be instructed that it must convict of an underlying felony in order to convict of felony-ñrearm. ” (Emphasis supplied; footnote omitted.)
The prosecutor concedes that if this defendant was tried today, the trial court could not properly instruct the jury as it did. The prosecutor argues, however, that People v Lewis, supra, decided December 23, 1982, cannot be applied retroactively to the instructions given by the court in this case on April 7, 1982.
While we fully agree with the prosecutor’s assertion that the trial judge cannot be criticized for the instructions given to the jury, we are nonetheless constrained to reverse. People v Lewis, supra, did not announce a new rule of law or abrogate existing standards. Rather, the Supreme Court applied in a felony-firearm context the rule of People v Vaughn, 409 Mich 463; 295 NW2d 354 (1980), which permits inconsistent verdicts. While it is true that Vaughn, supra, abrogated the old rule barring inconsistent verdicts, the Surpeme Court’s decision in that case was rendered on April 28, 1980, long before this trial. In short, Vaughn is the case which established the new rule and Lewis is not. Lewis builds on the foundation laid in Vaughn and requires reversal of the convictions in the present case.
The defendant’s convictions are reversed and the case is remanded for a new trial. | [
-48,
-5,
-15,
-68,
10,
-32,
50,
-72,
99,
-119,
-73,
-77,
-87,
-62,
21,
121,
121,
-1,
85,
-15,
-16,
-93,
39,
99,
118,
-77,
-101,
-57,
55,
91,
-92,
-11,
28,
-16,
-54,
93,
102,
10,
-31,
92,
-114,
-121,
-101,
99,
112,
90,
36,
58,
4,
11,
49,
-98,
-29,
43,
-106,
78,
-23,
40,
75,
-67,
-64,
-8,
-21,
5,
-17,
22,
-77,
36,
-99,
37,
-8,
61,
-36,
53,
0,
120,
115,
-106,
-126,
84,
107,
-69,
12,
102,
98,
0,
21,
93,
-24,
-64,
62,
126,
-115,
-89,
-104,
72,
1,
46,
-105,
-97,
100,
-41,
-90,
116,
-50,
92,
89,
100,
7,
-50,
-16,
-111,
-115,
124,
-118,
-38,
-61,
35,
48,
117,
-50,
-94,
92,
65,
122,
27,
-113,
-42
] |
Per Curiam.
Plaintiff in this malpractice action appeals as of right from the trial court’s orders (1) granting accelerated judgment on the basis of the statute of limitations, (2) granting summary judgment as to one count which had alleged wrongful withholding of certain medical records, and (3) awarding discovery costs to defendant. We find no error and affirm.
First, the trial court properly granted acceler ated judgment based upon the statute of limitations, GCR 1963, 116.1(5). The applicable statute of limitations is that which is in effect at the time the cause of action arises, Winfrey v Farhat, 382 Mich 380, 389-390; 170 NW2d 34 (1969); Zatolokin v Grimm, 99 Mich App 257, 262; 297 NW2d 900 (1980), lv den 410 Mich 916 (1981). A cause of action arises, for purposes of determining the applicable statute of limitations, when the alleged negligent act occurs, Winfrey, supra. In the present case, the alleged acts of malpractice took place during 1972 and 1973. Thus, the cause of action accrued at that time. Under the rule announced in Winfrey, the two-year discovery rule of Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973), governs this case. The trial court found that plaintiff was aware of his possible cause of action by 1975, the deadline under the rule announced in Dyke, supra. Nonetheless, plaintiff did not file his action until 1980, some seven years after the alleged malpractice took place and at least five years after the deadline set under Dyke, supra.
Plaintiff urges that the question of his having discovered the cause of action is one for a jury, not properly disposed of by means of a motion for accelerated judgment. We disagree with plaintiff’s position that this is a factual issue that would remove the case from GCR 1963, 116. The pleadings and exhibits offered by the parties are sufficient to show that no reasonable mind could differ as to the conclusion that plaintiff either was aware of his cause of action by 1975 or should have been aware of the cause of action in the exercise of reasonable diligence. Dyke, supra.
Plaintiff stated in his complaint, and repeated in his objections to accelerated judgment, that the treatment dates in question were in 1972 and 1973; he also admitted that these were the treatment dates during the course of various hearings on the motions for acclerated judgment. Plaintiff’s attorney acknowledged that the pleadings were sufficient to establish a date of treatment. Thus, there is no dispute concerning the dates of treatment. Similarly, plaintiff signed an exhibit at a workers’ compensation hearing in June, 1974, identifying the stroke and the 1972-1973 course of treatment of that condition which forms the basis of this action. Workers’ compensation transcripts also establish that plaintiff had another stroke episode in Texas in 1975, indicating that the condition for which plaintiff had sought treatment in 1972-1973 remained undiagnosed, or at least untreated, in 1975. Viewing the foregoing admitted facts in the light most favorable to plaintiff, there can be no dispute that the alleged malpractice took place during 1973 and that plaintiff had reason to know of the ongoing condition and hence the alleged malpractice by 1975 at the latest. Applying the rule of Dyke, supra, to these facts, the action was untimely, because it was brought more than five years after plaintiff had reason to know of the existence of the alleged malpractice.
The present case is distinguishable from Cates v Frederick W Bald Estate, 54 Mich App 717; 221 NW2d 474 (1974), and Kelleher v Mills, 70 Mich App 360; 245 NW2d 749 (1976), relied on so heavily by defendant. In those cases, the plaintiffs showed real attempts to conceal the malpractice by the defendant doctors. No comparable showing has been made here. See discussion, infra. The present case is also distinguishable in that the malpractice claim arises from a failure to properly diagnose rather than a failure to properly treat the condition in question. Plaintiff acknowledged in 1974 and again in 1975 that he had suffered from the stroke condition which forms the basis of this action. It is apparent that he was aware of the proper diagnosis by that time. We conclude that the trial court acted properly in finding plaintiff’s action untimely under Dyke, supra, and in granting accelerated judgment.
Plaintiff next claims error in the trial court’s order granting summary judgment as to Count II of the complaint, alleging improper withholding of certain medical records from plaintiff. According to plaintiff, the defendant’s refusal to disclose the records in question had the effect of concealing the cause of action and preventing plaintiff from timely discovering the cause of action. We find no merit in this argument. The alleged concealment could not have taken place until 1978, when plaintiff first requested the records in question. By that time, the action would clearly have been untimely anyway, under the rule announced in Dyke, supra. It is apparent that any concealment which might have taken place had no impact upon plaintiff’s timely discovery of this cause of action, and his Count II alleging such concealment was properly dismissed for failure to state a cause of action, GCR 1963, 117.2(1). _
Finally, plaintiff challenges the trial court’s interlocutory order imposing costs of $264 in connection with a certain discovery deposition. Plaintiff had objected to a line of questioning at the deposition, and the court subsequently deemed the objections "frivolous”, imposing the costs as a sanction. We find no occasion to review this issue. GCR 1963, 806.2(2) requires a party to obtain leave to appeal any interlocutory order. When the court imposed costs, plaintiff could have filed an application for leave to appeal the order imposing those costs and had the trial court certify that order. GCR 1963, 806.3(l)(a)(ii). Even if we had occasion to review this issue, we would find plaintiff’s argument to be without merit. The record reveals that plaintiff’s attorney unjustifiably disrupted the deposition when he repeatedly objected. The proper procedure would have been to seek a protective order from the trial court, GCR 1963, 306.4. The trial court did not abuse its discretion by imposing costs under these circumstances.
Based on the foregoing, we conclude that the court acted properly in granting accelerated judgment as to the malpractice count and summary judgment as to the separate count alleging improper concealment of medical records. There was no reversible error in the court’s decision to impose costs in connection with the disputed discovery deposition. The trial court’s orders must be affirmed in all respects.
Affirmed.
J. P. Swallow, J., concurs in result only._
In Dyke, supra, the Supreme Court held:
"[A]n action based on malpractice by a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later.” 390 Mich 739, 747.
Even if the alleged concealment took place during 1973 or 1974, when it might have had some impact upon plaintiff’s timely discovery of this action, Count II still would have been properly dismissed for failure to state a cause of action. This follows because that count alleged only a "refus[al] to supply [medical] records that would be used by plaintiff or his attorney in evaluating any tor[t] claim”. The count alleged not concealment of a cause of action, but instead a refusal to supply records which might have supported an action of which plaintiff was already aware. There has been no showing that defendant used any artifice intended to mislead or hinder discovery of information which would disclose a cause of action, Tonegatto v Budak, 112 Mich App 575; 316 NW2d 262 (1982). | [
-44,
-18,
-36,
-82,
26,
-30,
58,
10,
65,
-21,
55,
17,
-83,
-29,
13,
111,
-45,
-23,
113,
115,
19,
-95,
87,
-128,
-10,
-73,
-38,
87,
-75,
-3,
118,
-6,
76,
112,
-62,
-107,
-58,
74,
-99,
86,
-62,
-122,
-103,
108,
89,
67,
-16,
122,
-104,
7,
49,
94,
-29,
42,
54,
-57,
105,
40,
-21,
-67,
-48,
-96,
-110,
37,
127,
20,
-79,
5,
60,
71,
-8,
94,
-120,
-71,
34,
-24,
114,
-74,
-62,
52,
103,
-119,
8,
98,
98,
-95,
65,
101,
120,
-72,
6,
30,
31,
-122,
-77,
80,
-56,
45,
-66,
-66,
119,
16,
-91,
126,
-20,
-35,
95,
44,
75,
-118,
-42,
-77,
-17,
80,
30,
2,
-17,
3,
16,
112,
-49,
102,
92,
71,
115,
-45,
-98,
-76
] |
T. M. Burns, P.J.
On July 16, 1982, the trial court entered a judgment for plaintiff of $0 against defendant. Plaintiff appeals as of right.
This case deals with one of the difficult unanswered questions left by Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979), which adopted comparative negligence for this state. How does the trial court apportion damages after the verdict when one of the tortfeasors settled before trial? In the present case, plaintiff was injured on a construction site when he was struck in the face by a shovel. Eventually, he sued both defendant and the Barthel Contracting Company. Barthel settled for $150,000. The jury determined that plaintiff’s total damages were $400,000, but that plaintiff was 75% negligent. In arriving at the money judgment against defendant, the trial court first reduced the $400,000 damage figure by 75% ($300,000). It then subtracted the $150,000 settlement. Because this figure is less than zero, it entered a figure of zero dollars against this particular defendant.
Plaintiff argues that the trial court should have instead first subtracted the $150,000 settlement figure from the $400,000 damages figure and then subtracted the 75% comparative negligence. This would leave plaintiff with a $62,500 recovery against this defendant. Added to the $150,000 settlement figure he received from Barthel, this would leave plaintiff with a total recovery of $212,-500.
We find that the formula advanced by plaintiff should have been applied by the trial court. The Supreme Court recently expressed a policy against litigation over the relative degree of fault of third parties not represented in a suit. Mayhew v Berrien County Road Comm, 414 Mich 399; 326 NW2d 366 (1982). This Court has stated that the formula used by the trial court "would have required jurors to consider plaintiff’s degree of fault relative to all parties involved in the incident, including non-party settling tortfeasors, contrary to the policies announced in Mayhew". Gagnon v Dresser Industries Corp, 130 Mich App 452; 344 NW2d 582 (1983). The Court in Gagnon found that it was proper to deduct the amount of the settlement before making the deduction for comparative negligence.
Even before Gagnon, this Court found that the settlement figure should be subtracted before subtracting the percentage due to comparative negligence. Rittenhouse v Erhart, 126 Mich App 674, 683; 337 NW2d 626 (1983). In Rittenhouse, this Court noted that this state has a very strong policy favoring settlements. E.g., Empire Industries, Inc v Northern Assurance Co, Ltd, 342 Mich 425; 70 NW2d 769 (1955); Pratt v Castle, 91 Mich 484; 52 NW 52 (1892); Krevsky v Naccarato, 56 Mich App 704; 224 NW2d 731 (1974), lv den 394 Mich 772 (1975). In fact, "courts will encourage settlements which avoid litigation * * *”.5 Michigan Law & Practice, Compromise and Settlement, § 1, p 367. Especially during this time when our courts are flooded with litigation, we should en courage settlements. We are convinced that this rule will encourage settlements. The nonsettling tortfeasor will more likely realize that he is running a risk of increasing the amount he will later pay if he does not settle. Under this rule, the nonsettling tortfeasor will not escape liability for his negligence by merely relying on the settling tortfeasor’s contribution as would otherwise happen in a case such as the present one.
Our position is further supported by DeMaris v Brown, 27 Wash App 932, 945-946; 621 P2d 201, 208-209 (1980):
"The issue we decide is this: Where the plaintiffs settle with one concurrent tort-feasor for $10,000, their damages are determined to be $50,000, and the jury finds the decedent 85 percent negligent, should the $10,000 settlement be deducted from the plaintiff’s total damages of $50,000 or should the $10,000 be offset against the $7,500 that the nonsettling defendant is otherwise legally obligated to pay, i.e., the plaintiff’s total damages less the percentage of negligence attributable to the decedent? We hold that the $10,000 settlement must first be deducted from the plaintiffs’ total damages. The jury, without knowing of the settlement, found the total damages to equal $50,000. By reducing the $40,000 by the decedent’s 85 percent contributory negligence, the comparative negligence rule is not affronted since the total percentage of contributory negligence remains the same. No one can know whether the tort-feasor’s combined negligence might have been found to be 20 percent or less, in which case the State might not have owed anything, or more than 20 percent, in which case the State might have been liable for any excess over $10,000. The settling tort-feasor most likely wished to wash his hands clean of the whole affair. Involving the settling tort-feasor in this suit has been avoided. The trial court should have awarded the plaintiffs a judgment of $6,000.”
Therefore, plaintiff is entitled to $62,500 from the defendant.
Judgment affirmed as modified.
Although both Aceves v Regal Pale Brewing Co, 24 Cal 3d 502; 156 Cal Rptr 41; 595 P2d 619 (1979), and Lemos v Eichel, 83 Cal App 3d 110; 147 Cal Rptr 603 (1978), endorsed the method used by the trial court, both cases are distinguishable. In each, the jury computed the separate percentages of negligence for each tortfeasor. | [
-16,
110,
-112,
-19,
73,
34,
42,
-104,
73,
-31,
119,
87,
-1,
-25,
17,
47,
-77,
121,
-63,
104,
-45,
-93,
23,
67,
-42,
-78,
-93,
69,
-69,
109,
100,
-5,
76,
112,
-53,
-59,
-61,
2,
69,
86,
-122,
4,
-86,
64,
-7,
0,
112,
127,
80,
63,
113,
-114,
-97,
45,
60,
-51,
105,
36,
107,
123,
-47,
-72,
-46,
5,
79,
-110,
-95,
38,
24,
7,
88,
28,
-100,
61,
-54,
-8,
115,
-78,
-58,
84,
33,
-69,
12,
-26,
103,
17,
1,
-58,
-8,
-72,
47,
-9,
-115,
-89,
89,
74,
17,
10,
-73,
-67,
116,
84,
21,
106,
-12,
21,
29,
40,
67,
-113,
-106,
-102,
-81,
70,
-36,
-125,
-49,
-125,
54,
97,
-50,
-78,
84,
7,
123,
-101,
95,
-50
] |
Per Curiam.
Defendants appeal from an order of summary judgment granted by Wayne County Circuit Court Judge William J. Giovan which struck down the 1% collection fee on property taxes voluntarily paid contained in MCL 211.44; MSA 7.87 as violative of the equal protection clause of the Michigan Constitution, Const 1963, art 1, § 2. Plaintiffs appeal from an order denying certification of a class pursuant to GCR 1963, 208.113) and the trial court’s limitation of their recovery to only those fees paid since institution of this lawsuit.
The trial court stated the facts of the case as follows:
"Each plaintiff owns real estate located within one of defendant municipalities and has paid local real estate taxes consisting of school, county and city or township millages. Under the authority of the challenged statute, each municipality imposes a collection fee on the taxpayer which is added to the amount of the tax due. At the time of the filing of plaintiffs’ complaint (May 31, 1977), the provision in question, section 44 of the property tax act, 1893 PA 206 [MCL 211.44; MSA 7.87], provided:
" 'Sec. 44. On receiving such tax roll the township treasurer or other collector shall proceed to collect such taxes. The township treasurer or other collector shall mail to each taxpayer at his last known address on his tax roll, on the receipt of such tax roll, a statement showing the description of the property against which the tax is levied, the assessed valuation of such property and the amount of the tax thereon. The tax statement shall set forth the state equalized valuation. The expense of preparing and mailing such statement shall be paid from the county, township, city or village funds. Failure to send or receive such notice shall not in any way prejudice the right to collect or enforce the payment of any tax. The township treasurer shall remain in his office at some convenient place in his township on every Friday in the month of December from 9 a.m. to 5 p.m. to receive taxes, but he shall receive taxes upon any week day when they may be offered. On all sums voluntarily paid before February 15 of the succeeding year, he shall add 1% for collection fees, and upon all taxes paid on or after February 15 he may add to the tax and 1% fee an additional collection fee equal to 3% of the tax. Taxes collected by the township treasurer after the last day of February and before settlement with the county treasurer shall have added thereto a 4% collection fee and interest on the tax at the rate of 1/2 of 1% per month, which payment shall be treated as though collected by the county treasurer. Collection fees for years prior to 1964 on taxes which have been paid in full and which have not been heretofore collected by the township treasurer are deemed waived. If the treasurer shall not mail the statements hereinabove required to be mailed on or before December 30, he shall be limited to 1% for collection fees with respect to taxes collected by him on and after February 15. In townships in which the treasurer receives a salary, the township board only may waive all or part of the collection fees on taxes paid on or before February 15. All fees collected by the township treasurer in townships where the treasurer receives a salary shall be credited to the contingent fund of the township. In a city in which the treasurer receives a salary the city commission or council may waive all or part of the collection fee on taxes paid on or before the due date established for the collection of taxes. When the bond of the treasurer, as provided in section 43, is furnished by a surety company, the cost of the bond shall be paid by the township from the contingent fund of the township. If the township treasurer is apprehensive of the loss of any personal tax assessed upon his roll, he may enforce its collection at any time, and if compelled to seize property or bring suit in December may add 4% for collection fees.’ (Emphasis supplied by trial court.)
"The plaintiffs contend that, although they stand in the same relationship to the cost of collection of taxes as all other taxpayers, they are deprived of equal protection of the law because, the collection fee being determined as a percentage of the taxes due, they pay substantially higher collection fees than others for the very same collection functions. The defendants claim, on the other hand, that the collection fee is intended to finance more than the cost of collecting taxes — that it also supports the assessment, equalization, review and appeal functions, the cost of which, the defendants say, bear a reasonable relationship to the value of real estate.”
After reviewing the amendments to the statute over the years, the trial court wrote:
"In determining the intended purpose of the 1% fee, our historical inquiry should not divert us from what is obvious on the face of the present statute. Section 44 specifies that the expense of preparing and mailing the tax statement is to be borne by the local government unit and that where the township treasurer is salaried the collection fees are credited to the township contingent fund. If a city treasurer is salaried the city council may waive all or part of the 1% fee. Additional fees are authorized if the treasurer is compelled to seize property or bring suit. The questioned fee is provided for in the chapter of the property tax act entitled 'Of the Collection of Taxes.’ The other aspects of the taxation process are treated elsewhere in the statutes with separate provisions for compensating the officers performing those functions. And, to be sure, the questioned fee is called a 'collection’ fee. It seems patent that the only purpose for the 1% collection fee offered by the statute is to compensate for the costs connected with collecting tax bills voluntarily paid. * * *”
Basing its decision on the analysis contained in Alexander v Detroit, 392 Mich 30, 35-36; 219 NW2d 41 (1974), the trial court held that the 1% collection fee imposed by MCL 211.44; MSA 7.87 on taxes voluntarily paid is constitutionally in valid under the guarantees of the equal protection clause of the Michigan Constitution.
On appeal, defendants argue that the classification established by the statute must be sustained where it is reasonably related to a legitimate governmental interest. This inquiry must be restricted to the issue of whether any state of facts either known or which could reasonably be assumed affords support for the statute’s classification. Defendants argue that the collection fee was enacted to help municipalities offset the cost of administering the property tax system. This cost includes a number of functions besides the actual physical collection of taxes. Defendants contend that it takes considerably more time to appraise commercial property than it does to assess residential property and that it therefore costs more to administer the property tax program with regard to such property. Since the taxation of commercial properties costs more time and money to administer, according to defendants, such properties are properly distinguished from residential property. Furthermore, the argument goes, the classification bears a reasonable relationship to the object of these statutes. Defendants argue that requiring properties that cost more to administer tax upon to pay a higher collection fee is a reasonable way to offset the cost of administering the property tax system. Thus, they argue, all persons of the same class are treated alike since they all pay the same 1% collection fee. Defendants seek to have this Court hold that plaintiffs have failed to sustain their burden of proof and that the trial court’s order declaring MCL 211.44; MSA 7.87 unconstitutional must be reversed.
We disagree.
In Alexander v Detroit, supra, pp 35-36, our Supreme Court set out a two-part test to determine "whether or not a particular legislative enactment violates equal protection for want of proper classification of subject individuals or entities”:
"(1) Are the enactment’s classifications based on natural distinguishing characteristics and do they bear a reasonable relationship to the object of the legislation? Fox v Employment Security Comm, 379 Mich 579, 588; 153 NW2d 644, 647 (1967); Beauty Built Construction Corp v City of Warren, 375 Mich 229, 235; 134 NW2d 214, 218 (1965); Palmer Park Theatre Co v Highland Park, 362 Mich 326, 346; 106 NW2d 845, 855-856 (1961).
"(2) Are all persons of the same class included and affected alike or are immunities or privileges extended to an arbitrary or unreasonable class while denied to others of like kind? Fox v Employment Securities Comm, 379 Mich 579, 589; 153 NW2d 644, 647-648 (1967); Beauty Built Construction Corp v City of Warren, 375 Mich 229, 236; 134 NW2d 214, 218 (1965); Palmer Park Theatre Co v Highland Park, 362 Mich 326, 347-348; 106 NW2d 845, 855-856 (1961).”
We concur in the following analysis made by the trial judge under the standards set forth in Alexander and the trial judge’s conclusion that the questioned collection fee cannot survive either test:
"Under the relevant provision of section 44 a taxpayer who voluntarily pays taxes in the amount of $1,000 is charged a collection fee of $10.00, while one who pays $10,000 in taxes is charged one ten times greater. The cost of collecting the two tax bills, on the other hand, cannot differ in any material way. The expenses of maintaining the treasurer’s office, of preparing and mailing the tax statements and of receiving and depositing the funds cannot vary in any measurable degree as between the two taxpayers.
"Applying the first of the two tests identified in the Alexander case, there are no natural distinguishing characteristics to separate the hypothetical taxpayers in regard to the cost of collecting their taxes, nor do the disparate fees bear any reasonable relationship to the actual costs of collection. Applying the second, taxpayers in the same class are not treated alike but, rather, are separated according to the sum of the taxes owed, an unreasonable and arbitrary distinction in view of the object of the collection fee.”
Plaintiffs, in their appeal, argue that the trial court erred by denying plaintiffs’ motion for class certification. Prior to the trial court’s grant of summary judgment, plaintiffs moved for certification of the class. The trial court denied the motion, one reason being that the motion had not been timely filed. After the trial court’s grant of summary judgment, plaintiffs again sought to certify a "subclass of taxpayers”. This motion was also denied.
The complaint was filed on May 31, 1977. The first motion to certify the class was dated September 8, 1980, and noticed for hearing on September 26, 1980 — more than 3 years and 3 months after the filing of the complaint. The case was scheduled for trial on October 14, 1980, 18 days after the scheduled hearing on the motion for certification. In discussing the late date of the proposed certification, the trial court commented that "the order can’t be signed within the time intervening between now and the scheduled trial date”.
One of the eight requirements to be considered by the court in determining the certification of a class action is the convenient administration of justice.
"The principle which emerges from these Cases is that when a court is faced with the question of whether a particular lawsuit can proceed on a representative basis, it must take into account the practical problems that will arise if the case is allowed to proceed on a representative basis.”
Grigg v Michigan National Bank, 405 Mich 148, 189; 274 NW2d 752 (1979). Certification of a class at this late date would have necessitated an adjournment.
It has long been the policy of the courts to encourage the diligent preparation and trial of cases. See GCR 1963, 503.1. Adjournments of trials are within the discretion of the trial court and will not be disturbed absent a finding that this discretion was abused. Rosselott v County of Muskegon, 123 Mich App 361; 333 NW2d 282 (1983); Moldovan v Allis Chalmers Mfg Co, 83 Mich App 373, 382; 268 NW2d 656 (1978). In affirming the denial of a request for an adjournment, the Rosselott Court found no abuse of discretion, stating "this lawsuit was nearly 3 years old at the time plaintiffs motion was heard”. Class certification in our case would have led to the problem discussed in Rosselott.
We find no abuse of discretion and therefore no error in denying either of plaintiffs’ motions to certify a class.
The trial court allowed plaintiffs reimbursement for the collection fees paid by them on taxes timely paid since they became parties to the action. Since there was no dispute over the amount paid by plaintiffs during that period, each was individually granted summary judgment for that amount.
On appeal, plaintiffs argue that their recovery should be limited only by the six year period of limitations, MCL 600.5813; MSA 27A.5813.
We agree. Plaintiffs shall recover the fees paid for the six years prior to the institution of this lawsuit along with the fees paid since that time.
Affirmed in part; modified in part.
This court rule has since been amended. See GCR 1963, 208.2, subds (A), (B).
This statute has since been amended. | [
-16,
-4,
-47,
-4,
42,
-30,
50,
-84,
89,
-79,
-73,
87,
47,
-62,
16,
47,
-11,
57,
33,
98,
85,
-94,
118,
-94,
-68,
-78,
-93,
-35,
115,
79,
-28,
-16,
12,
-79,
-54,
-107,
70,
34,
-113,
80,
30,
-125,
-119,
100,
-39,
64,
52,
121,
48,
79,
49,
-113,
105,
46,
49,
97,
105,
40,
-7,
-87,
-127,
-25,
-85,
-123,
91,
-113,
-128,
117,
-104,
-126,
-8,
-86,
-104,
61,
2,
-24,
115,
-74,
6,
116,
73,
-103,
41,
106,
102,
-111,
5,
-1,
-8,
-103,
46,
-34,
-99,
-89,
-45,
121,
90,
-82,
-74,
-97,
100,
82,
-27,
-2,
-28,
-107,
31,
44,
13,
-18,
-60,
-77,
-113,
-12,
-118,
67,
-17,
35,
50,
113,
-64,
68,
94,
71,
58,
27,
-34,
-40
] |
Allen, J.
On October 14, 1981, pursuant to a plea and sentencing agreement, defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797. Under the sentencing agreement, announced by Judge Yeotis, defendant was to be sentenced to prison for a term of 10 to 20 years. Under the plea agreement, announced by the prosecutor, two other charges pending against defendant in the Circuit Court for Genesee County would be dismissed; an uttering and publishing a forged check charge pending before Judge Freeman and a carrying a concealed weapon charge pending before Judge Ransom. In addition, the prosecution agreed it would not file a supplemental information charging the defendant as an habitual offender.
In taking defendant’s plea, Judge Yeotis complied with all the requirements of GCR 1963, 785.7, except he failed to advise defendant that he could not be placed on probation, as required by subrule 785.7(l)(f), which requires the trial court to advise a guilty-pleading defendant that if the plea is to "murder, armed robbery or treason, he cannot be placed on probation”. Failure to so advise a defendant was held to be reversible error in People v Rogers, 412 Mich 669; 316 NW2d 701 (1982). Also, the trial court made no mention of a mandatory minimum sentence for armed robbery.
Defendant appealed as of right to this Court and on April 26, 1982, defendant’s court-appointed attorney filed an Anders motion to withdraw on grounds that "he knows of no grounds on which an appeal can be successfully taken”. Anders v California, 386 US 738; 87 S Ct 1396; 18 L Ed 2d 493 (1967). Counsel’s motion was denied by order of this Court dated December 29, 1982, and counsel was ordered to submit a brief addressing three questions: (1) Should the plea be vacated because defendant was not advised that the offense to which he pled was nonprobationable; (2) Should the plea be vacated because defendant was not advised of the mandatory minimum sentence for armed robbery; (3) Was the plea the result of an illusory plea bargain? In compliance with this order, the parties have submitted briefs as directed.
When this Court rejected defense counsel’s motion to withdraw, it did so, in part at least, because the Supreme Court had clearly held that failure to advise a defendant charged with armed robbery that he would not be placed on probation was error. Rogers, supra. However, in April, 1983, in People v Jackson, 417 Mich 243; 334 NW2d 371 (1983), the Supreme Court reversed itself, overruled Rogers and held that where there is a sentence bargain and defendant is sentenced to prison in accordance therewith, failure to inform the defendant that the offense charged is nonprobationable is not error:
"This Court’s opinion in Rogers does not indicate the sentence imposed on Rogers. Rogers was, however, sentenced in accordance with a sentence bargain. This Court nevertheless reversed Rogers’ conviction because of the failure to advise him that he could not be placed on probation. * * *
"We are now of the opinion that a failure to advise a defendant pleading guilty that an offense is not probationable or of the maximum and minimum sentences which could be imposed should not be regarded as reversible error per se where there is a sentence bargain and the defendant has been sentenced in accordance with the bargain.” Jackson, pp 245-246.
Accordingly, we find no error on this issue in the case before us.
Likewise, we find no error on the second issue. At the plea taking, defendant was advised by the prosecutor of the sentence possibilities as follows:
"And you understand that is punishable by life or any term of years, unless aggravated assault or serious injury is involved, then no less than two years? You understand under the law that is the penalty?”
This is a correct statement of the law. The only possible ground for error is the trial court’s failure to explicitly refer to a mandatory minimum sentence. We don’t feel that the omission of the words "mandatory minimum sentence” preceding the words "or any term of years” quoted above is grounds for error. People v Harper, 83 Mich App 390; 269 NW2d 470 (1978), and People v Lendzian, 80 Mich App 323; 263 NW2d 360 (1977), hold that advising a defendant that the mandatory minimum sentence for armed robbery is "any number of years” is sufficient. Furthermore, in People v Seays, 126 Mich App 171, 175; 337 NW2d 46 (1983), our Court stated:
"[W]e do not deem it an absolute necessity for defen dant to be given an actual minimum figure at the time of sentencing. To the extent that telling defendant the mandatory minimum prison sentence for armed robbery is 'any term of years’ misleads, it does not harm defendant. The phrase 'any term of years’ literally means at least two years. See People v Burridge, 99 Mich 343, 345; 58 NW 319 (1894). Where a defendant assumes that this literal construction of 'any term of years’ is meant (and it certainly would be unreasonable for him to assume anything else) but nonetheless is willing to plead guilty, it is impossible to believe that he would not have chosen to plead guilty knowing he might obtain a prison sentence as light as one year and one day. Accordingly, we do not believe the court’s advice here warrants vacating defendant’s plea-based conviction.”
The third issue raises a more difficult question. Was the plea illusory in part? The transcript discloses that at the time the prosecution promised not to file a supplemental information, one had not been filed and it was too late for the prosecution to file a supplemental information. The information was filed July 17, 1981, and the promise not to file a supplemental information was made October 14, 1981. Under People v Fountain, 407 Mich 96, 98; 282 NW2d 168 (1979), the Supreme Court held that a prosecutor who knows a person has a prior felony record "must promptly proceed, if at all, against the person as an habitual offender”. (Emphasis added.) Confusion as to just how promptly the prosecution was required to move was eliminated in People v Shelton, 412 Mich 565; 315 NW2d 537 (1982). In that case the Supreme Court held that "promptly” meant 14 days after the information is filed. In the instant case, almost three months elapsed between the date the information was filed and the date the prosecutor agreed not to file a supplemental infor mation. Ergo, argues the defendant, under Shelton the prosecutor was precluded from filing a supplemental information and, thus, the agreement to not file a supplemental information was illusory.
However, Shelton was not decided until February 1, 1982, and its holding was explicitly made prospective:
"Finally, we hold that this decision shall apply to cases in which the defendant is arraigned in circuit court on the information charging the underlying felony after the date of the release of this opinion.” 412 Mich 569-570.
On October 14, 1981, when the prosecution agreed not to file a supplemental information, the 14-day requirement was not applicable. Thus, this case is governed by the applicable law on the meaning of "promptly” between the decision date in People v Fountain, supra, decided August 28, 1979, and the decision date in Shelton on February 1, 1982. In that interim period, this Court was split as to how promptly and under what circumstances a prosecutor should file a supplemental information. Some panels held that Fountain required the supplemental information to be filed with the information which charged the last felony. People v Stein, 99 Mich App 781, 787; 298 NW2d 638 (1980); People v Reese, 97 Mich App 785, 789; 296 NW2d 172 (1980). Other panels took a more lenient view, holding that Fountain required no more than that the prosecutor proceed promptly against a defendant as an habitual offender once the prosecution becomes aware of a prior felony record. People v Haywood, 97 Mich App 621, 624; 296 NW2d 127 (1980); People v Leitner, 105 Mich App 681, 684; 307 NW2d 405 (1981). Both Haywood and Leitner, as in the case before us, involved plea bargains 'where the prosecution agreed not to file a supplemental information if a plea was entered to the underlying offense. However, two other panels reached a result contrary to Haywood and Leitner, holding that a plea is illusory unless the supplemental information is filed prior to the initiation of plea negotiations. People v Martin, 100 Mich App 447, 459; 298 NW2d 900 (1980); People v Griffis, 107 Mich App 764, 766; 309 NW2d 583 (1981).
Given the confused state of the law as to the meaning of Fountain prior to its clarification by the Supreme Court in Shelton, supra, we decline to hold the plea bargain in the instant case illusory. At least two decisions of this Court clearly supported the validity of the plea bargain. Furthermore, as early as July 31, 1981, the case was scheduled for trial on December 1, 1981. Clearly defendant had fair notice and ample time in which to prepare for trial if he decided not to agree to the plea bargain. Finally, we note that our conclusion in this regard is supported by this Court’s opinion in People v Robinson, 117 Mich App 63; 323 NW2d 594 (1982). In that case the defendant pled guilty to the offense charged pursuant to an agreement by the prosecution to dismiss a supplemental information. At the time of the plea, the supplemental information had not been filed. On appeal, the defendant argued that the plea was illusory because under Shelton and Fountain the prosecution was precluded from filing the supplemental information. This Court disagreed, holding that Shelton was not applicable because it was prospective, and holding that Fountain did not require that the supplemental information be filed before the beginning of plea bargaining:
"While Shelton is not applicable to this case, its reasoning clarifies the holding in Fountain. The Fountain Court did not intend to announce a requirement that the prosecutor file a supplemental information at the same time the information on the underlying felony was filed. Rather, the Court required that the prosecutor proceed promptly against the defendant as an habitual offender. It is equally clear that Fountain did not require the prosecutor to ñle the information prior to beginning the plea-bargaining procedure.” 117 Mich App 66. (Emphasis added.)
Accordingly, we find no error on the third issue.
Defendant’s plea-based conviction and sentence are affirmed.
R. B. Burns, J., concurred.
See People v Blythe, 417 Mich 430; 339 NW2d 399 (1983), where the Supreme Court held that the phrase, "for life or for any term of years” in the armed robbery statute refers to the maximum sentence and does not include a mandatory minimum sentence. | [
112,
-23,
-39,
-100,
11,
112,
58,
-72,
-14,
-9,
55,
23,
-25,
71,
1,
123,
123,
127,
85,
105,
-63,
-93,
119,
-13,
-89,
-77,
-47,
-43,
53,
79,
-82,
-108,
12,
-30,
-62,
-43,
102,
10,
-29,
-48,
-114,
-123,
25,
112,
-96,
1,
112,
102,
28,
15,
49,
-98,
-93,
42,
48,
-56,
-23,
104,
11,
-65,
-64,
-7,
-69,
13,
109,
52,
-61,
37,
-102,
4,
-8,
60,
-100,
49,
1,
-8,
51,
-106,
-106,
52,
73,
27,
12,
104,
34,
2,
85,
95,
-84,
-127,
22,
126,
-99,
-93,
-39,
80,
74,
37,
-105,
-35,
125,
20,
36,
-2,
120,
28,
45,
100,
0,
-42,
-12,
-47,
-50,
116,
-82,
107,
-5,
37,
48,
116,
-50,
-94,
92,
116,
113,
-47,
-114,
-44
] |
Per Curiam.
Plaintiff appeals as of right from a June 11, 1982, order of dismissal for lack of progress issued by the Ingham County Circuit Court.
Plaintiff commenced the action against defendant Michigan Public Service Commission on December 28, 1979, in Ingham County Circuit Court. The complaint stated it was filed pursuant to § 26 of 1909 PA 300, being MCL 462.26; MSA 22.45, and that the opinion and order of defendant, dated July 31, 1979, in Michigan Public Service Commission case No. U-970 (Grant 13) was erroneous, unreasonable, and unlawful. According to the July 31, 1979, opinion and order, this case involved review of proration findings issued in hearings arising from the Grant 13-25N-12W Field. Defendant held that the 90-10 net pay approach was the most equitable and least wasteful of the alternatives.
On February 8, 1980, the trial court ordered that Shell Oil Company be permitted to intervene as a matter of right, pursuant to stipulation of counsel for plaintiff and defendant. Similarly, on February 14, 1980, the trial court ordered that Michigan Consolidated Gas Company be similarly permitted to intervene.
On February 20, 1980, defendant filed its answer. Shell Oil filed its answer on February 25, 1980, and on March 4, 1980, Michigan Consolidated Gas Company filed its answer. On December 12, 1980, the trial court reassigned the case to another judge.
Thereafter, this case went on the no-progress calendar for July 7, 1981. A motion to save was filed by plaintiff and supported by affidavit of its counsel to the effect that the Cleon 22 case, pending before the Michigan Public Service Commission, involved many of the same issues and it would promote judicial economy to postpone proceedings in this case until the Michigan Public Service Commission opinion and order issued in that case.
This case again went on the no-progress calendar for January 5, 1982. Plaintiff’s counsel again filed a motion to save, supported by affidavit, citing the same reasons as before. However, the trial court ordered this case dismissed for lack of progress if within 20 days no "affirmative action” were taken to bring it to issue.
Within the 20 days, plaintiff filed what it referred to as first interrogatories with defendant Michigan Public Service Commission. At the same time, notice of substitution of counsel was filed by plaintiff. On February 4, 1982, defendant filed objections to plaintiff’s first interrogatories, and, thereafter, on March 17, 1982, filed a motion to dismiss contending that filing plaintiff’s first interrogatories was not an affirmative action to bring the matter to issue in accordance with the court’s January 5, 1982, order because all the interrogatories requested information readily available to and known by plaintiff and not discoverable under GCR 1963, 309.3 or in an appeal under 1909 PA 300, §26. A hearing was held on the motion on April 1, 1982, following which the trial court ordered dismissal of plaintiff’s case.
The issue which we must decide is whether the trial court abused its discretion in dismissing plaintiff’s action for no progress in more than two years and for failure to comply with the circuit court’s order that plaintiff proceed with affirmative action to bring the case to issue within 20 days. See GCR 1963, 501.3.
It seems clear that the circuit court had the authority to order plaintiff to proceed within 20 days or face dismissal for no progress. Specifically, the court’s order of January 5, 1982, reads:
"It appearing to this court that no progress has been made in this matter which has been pending for more than two years, and that the interests of the parties and the orderly administration of justice compel action,
"Now, therefore, it is ordered that if no affirmative action is taken to bring this matter to issue within twenty days of the date of this order, this cause shall be dismissed for no progress without further order of this court.”
The real issue relates to whether plaintiff’s filing of the interrogatories constituted "affirmative action” in accordance with the court’s order of January 5, 1982. There would be no abuse of discretion in the trial court’s entering such an order after a case had been pending on no progress for two years and the only reason given for not proceeding was "judicial economy” to be accomplished by awaiting a lower tribunal’s decision in another case allegedly involving similar issues. The sole authority cited by plaintiff for its position that the circuit court should have waited for a decision in the Cleon 22 case, before requiring progress in the present case, is International Harvester Co v Rockwell Spring & Axle Co, 339 F2d 949 (CA 7, 1964). As pointed out by Shell Oil Company, however, that case is readily distinguishable and would not be controlling on this Court.
When considering the interrogatories, it should he remembered that Michigan has a strong historical commitment to a far-reaching, open, and effective discovery practice, and "good cause” is established when the moving party demonstrates that the information sought is or might lead to admissible evidence, "is material to the moving party’s trial preparation”, or is for some other reason necessary to promote the ends of justice. Daniels v Allen Industries, Inc, 391 Mich 398; 216 NW2d 762 (1974).
In the present case, even assuming that plaintiff has the right to use interrogatories in this statutory action, there remains the fact that there is nothing material to plaintiff’s trial preparation in interrogatories 1, 2b and d, 3, 4, 5, and 6. All of the listed interrogatories relate to Administrative Procedure Act rules, the adoption and content of which may be found by research into the Michigan Administrative Code of 1979, as amended.
Similarly, interrogatory 8 does not appear to be material to plaintiff’s trial preparation because it allegedly asks the Michigan Public Service Commission to set forth all facts supporting its claim in paragraph 13 of its answer. Said paragraph 13 reads:
"Plaintiff NOMECO lacks standing to assert on appeal that the proration order is a nullity, because the commission lacked jurisdiction, in that, NOMECO did not present the claim to this defendant, but admitted this defendant has jurisdiction under 1929 PA 9, sec 5, supra, and R 460.865(15), supra, to determine equitable rates of take or production for the wells in the Grant 13 Field, and this defendant did not consider, nor rule upon the claim.”
It appears evident from examination of paragraph 13 that the Michigan Public Service Commission has no more facts to set forth supporting its claim because the facts are in the portion deleted from interrogatory 8; to wit, that plaintiff did not present a claim of lack of jurisdiction to the Public Service Commission. We are not suggesting that the jurisdiction issue was thereby waived, but merely that the facts pertaining to plaintiff’s admission of defendant’s jurisdiction are simply plaintiff’s failure to present or contest the jurisdiction at the time it was before the commission.
With regard to interrogatory 2a and c and interrogatory 7, there was an enlightening colloquy between the trial court and plaintiff’s attorney at the motion hearing on April 1, 1982. At pages 18 and 19 of the transcript of the hearing there appears the following:
"The Court: Why haven’t you brought a motion to remand this matter to the Public Service Commission where the proofs might be taken for preservation and whatever concerning the tie between as you call it Cleon 22 and as you call it Grant 13? Why haven’t you done that as an affirmative action in the course of this case setting here?
"Mr. Stephens: Well, your Honor, we haven’t done it because the issues are so identical in our mind, I mean, they are identical issues and our feeling is that the PSC right now has all of the evidence.
"The Court: Well, let me see if I can give you — what would happen if you came before the Michigan Supreme Court, 'y°ur Honor’s, you have got a case up here and would you please wait to decide this case until that little circuit judge down there in Ingham County gets through deciding his case?’ Tell me what the circuit court would say to you?
"Mr. Stephens: I agree with that, and my response, my only response to that is, your Honor, that in this case the statute says that the PSC case is to be remanded, that the PSC is to have the first chance to decide the issue, and what I am saying is we have got a peculiar specific statute that says circuit court, don’t take any action on an issue until — don’t take any action on original evidence which might effect an issue, might change a decision on the issue until the case first goes to the PSC court decision.
"The Court: But, I still get back to the issue of why haven’t you moved this on for a decision from this court, together with potentially a response from the other parties as to why this matter should not be sent back down?
"Mr. Stephens: O.K., my answer to that, your Honor, is our feeling that that — because of the identity of the issues, because the evidence is all before the PSC, it would be futile to remand this case to the PSC. The PSC is working on and has been working on Cleon 22 for two years. And we see no reason why this case, why this case should complicate their efforts and it’s the identical issue. So, we haven’t done anything to move it, to send this case back.” (Emphasis supplied.)
Given plaintiffs counsel’s two statements that the Public Service Commission had all the evidence with regard to this case, it appears to us that the interrogatories could not have been material to plaintiffs trial preparation. Thus, we fail to see how interrogatories 2a and c and 7 could constitute sufficient "affirmative action” to bring the case to issue when plaintiffs counsel himself stated that the Public Service Commission already had all of the evidence necessary to decide the three main issues involved.
For the foregoing reasons we hold the trial court’s ruling to have been proper.
Affirmed. | [
-80,
120,
-2,
-116,
10,
32,
48,
30,
89,
35,
-11,
83,
-83,
-14,
-108,
125,
-5,
115,
81,
123,
-45,
-96,
83,
99,
-46,
-78,
-5,
-51,
50,
127,
-28,
83,
72,
96,
-54,
-60,
-58,
0,
-55,
82,
-114,
5,
-71,
-20,
-7,
-128,
52,
106,
114,
15,
21,
-2,
99,
47,
24,
67,
73,
44,
-3,
-86,
-62,
-16,
-70,
-123,
111,
4,
-95,
68,
26,
-121,
-8,
58,
-100,
48,
48,
-8,
50,
-90,
-122,
116,
39,
-71,
12,
46,
34,
-127,
4,
-17,
-52,
-72,
28,
-98,
-116,
-92,
-47,
57,
10,
35,
-74,
-97,
100,
86,
-89,
-2,
-18,
-123,
95,
108,
2,
-118,
-70,
-79,
15,
101,
-114,
11,
-21,
35,
22,
113,
-53,
-30,
92,
71,
51,
27,
-57,
-78
] |
Per Curiam.
On January 22, 1982, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, and was subsequently sentenced to from 8 to 30 years imprisonment. She appeals as of right.
Right after being arrested, defendant was advised of her rights pursuant to Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Later, while being booked at the county jail, she asked to telephone her parents in Texas. Even though she was not advised of her Miranda rights again, at least three officers stayed during the telephone conversation and overheard what she said. Her conversation, admitting the killing to her mother, was later testified to at trial.
Defendant now argues that the admission of this evidence violated her Fourth, Fifth, and Sixth Amendment rights. We disagree on all three counts. First, to establish a Fourth Amendment violation, a defendant must have had a reasonable expectation of privacy. Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967); Jenson v Pontiac, 113 Mich App 341, 346; 317 NW2d 619 (1982). Under the circumstances, defendant had no reasonable expectation of privacy. Second, because there was no interrogation, Miranda was not violated. Rhode Island v Innis, 446 US 291; 100 S Ct 1682; 64 L Ed 2d 297 (1980). Moreover, volunteered statements (such as these) do not violate Miranda. People v Hartford, 117 Mich App 413; 324 NW2d 31 (1982). Third, because defendant did not assert her right to counsel, that right was not violated. Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981); People v Paintman, 412 Mich 518; 315 NW2d 418 (1982), cert den 456 US 995; 102 S Ct 2280; 73 L Ed 2d 1292 (1982).
Defendant also argues that the trial court erred in failing to instruct the jury on intoxication as a possible defense. However, this issue has been settled by People v Langworthy, 416 Mich 630; 331 NW2d 171 (1982). This Court has no power to overrule our Supreme Court.
Affirmed. | [
-80,
-22,
-7,
-65,
9,
96,
58,
30,
-14,
-85,
-96,
19,
-81,
91,
21,
43,
57,
119,
85,
105,
-43,
-90,
119,
1,
-10,
-13,
-112,
87,
-77,
78,
-20,
-68,
76,
-32,
-54,
81,
102,
-56,
-9,
88,
-82,
23,
-103,
-45,
82,
18,
32,
59,
64,
-113,
49,
-34,
-29,
42,
27,
-54,
41,
40,
75,
61,
-60,
57,
-67,
31,
75,
22,
-77,
4,
-100,
-121,
-8,
52,
-104,
-71,
1,
-6,
50,
-90,
-126,
116,
79,
-117,
-116,
98,
106,
-96,
108,
79,
-28,
-87,
39,
106,
-65,
-89,
24,
65,
73,
76,
-73,
-3,
40,
4,
47,
-8,
-21,
92,
93,
108,
13,
-121,
-108,
-109,
77,
116,
-110,
-30,
-29,
37,
16,
113,
-52,
98,
84,
64,
113,
-109,
-116,
-44
] |
Per Curiam.
Following a bench trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to prison for a minimum of 5 years and a maximum of 15 years. Defendant now appeals as of right.
The complainant, Joseph Leo Knopp, testified that his granddaughter, Pamela Ann Clauw, and defendant came to the side door of his home around noon on February 20, 1982. Knopp claimed that defendant forced his way into the house, threatened him with what appeared to be a gun and demanded money. Defendant then took Knopp’s wallet, bound and blindfolded him, searched the house and further threatened him. During this three-hour period, Pamela was also tied up. However, defendant took her with him when he left.
Knopp further testified that he did not need glasses although he was 82 years old. Moreover, he knew defendant as defendant occasionally accompanied Pamela when she visited him. He also denied being influenced in his identification of defendant by Pamela’s father.
Pamela and the defendant testified that defendant was not the person who accompanied Pamela to her grandfather’s home. The court found that it did not believe Pamela and the defendant and that it did believe the testimony of Knopp when he identified defendant as the perpetrator of ithe crime.
The only issue raised on appeal was whether defendant was denied effective assistance of counsel by reason of the alleged failure of counsel to call to the court’s attention that Pamela had a serious hearing impairment which prevented her from adequately hearing questions put to her at trial and that consequently she was unable to give appropriate responses.
The standard by which the assistance given by counsel is judged is found in People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976):
" 'Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interests, undeflected by conflicting considerations.’ ”
And, as held in People v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973):
" 'A convicted person who attacks the adequacy of the representation he received at trial must prove his claim * * * it is incumbent on him to make a * * * record * * * which evidentially supports his claim and which excludes hypotheses consistent with the view that his trial lawyer represented him adequately.’ ”
See, also, People v Moore, 391 Mich 426; 216 NW2d 770 (1974); People v O’Brien, 89 Mich App 704; 282 NW2d 190 (1979); People v Jelks, 33 Mich App 425; 190 NW2d 291 (1971).
Additionally, it is well understood that:
" 'Effective’ assistance of counsel obviously means something other than successful assistance.” Mitchell v United States, 104 US App DC 57; 259 F2d 787, 789 (1958).
United States v Sander, 615 F2d 215 (CA 5, 1980); Maxey v Benton, 483 F Supp 1 (ED Okla, 1977); People v DeGraffenreid, 19 Mich App 702; 173 NW2d 317 (1969).
One other legal principle, too often overlooked, is that there is a presumption that defendant’s counsel did in fact and in law provide effective assistance. Dupree v United States, 606 F2d 829, 830 (CA 8, 1979), cert den 445 US 919 (1980); Thomas v Wyrick, 535 F2d 407, 413 (CA 8, 1976), cert den 429 US 868 (1976). As held in Mcqueen v Swenson, 498 F2d 207, 218 (CA 8, 1974), to overcome this presumption, defendant must show that there was a failure to perform an essential duty owed by counsel to defendant and that this failure prejudiced the defense. See, also, United States v Garcia, 625 F2d 162, 170 (CA 7, 1980).
A review of the record reveals that the witness, Pamela Clauw, indicated to the court that she did not hear very well.
”Q. [Assistant Prosecutor]: Did you ever live at 9201 Yorkshire?
"A. [Pamela Clauw]: No.
”Q. Never have? Was that where Mr. Tranchida lived before?
"A. Could you speak up a little? I can’t hear that well.
”Q. Did Mr. Tranchida live at that address, 9201 Yorkshire?
"A. Yeah, about two years ago.”
After a few more questions, the court took over the questioning and made sure the witness could hear. When the prosecutor resumed questioning, she went over any questions the witness could not hear. The witness indicated when she could not hear the questions so that they could be repeated.
Clearly, defense counsel did not need to state the obvious to the trial court — that Pamela had trouble hearing. Both counsel and the court were careful and patient in questioning her which demonstrates a cognizance of her hearing problem. The witness herself indicated that she was having trouble hearing. Therefore it was not an outcome-determinative mistake for counsel not to inform the court that Pamela had a hearing problem. Defendant in this case therefore received effective assistance of counsel.
In summary, where the impairment of a witness is obvious from the record, it is not necessary for counsel to specifically call the impairment to the court’s attention. For this reason, the affidavit filed by Pamela subsequent to trial, indicating that she had a hearing impairment that would affect her testimony and that this fact was called to counsels’ attention before trial, is of no consequence in this case.
Affirmed. | [
80,
-17,
-19,
-81,
11,
96,
26,
-72,
99,
-45,
49,
-45,
-23,
70,
1,
105,
125,
125,
85,
105,
0,
-77,
119,
-63,
-10,
-5,
-70,
-47,
50,
90,
-26,
87,
73,
114,
66,
85,
102,
-56,
-27,
88,
-114,
-127,
-85,
-7,
-15,
80,
48,
59,
-100,
6,
-75,
-98,
-29,
42,
20,
-54,
8,
40,
75,
-67,
-16,
-8,
-81,
-107,
-51,
20,
-93,
52,
-70,
38,
80,
37,
-100,
-75,
0,
-24,
114,
-106,
-122,
116,
111,
-103,
-116,
102,
98,
-96,
120,
-26,
-32,
-119,
-81,
126,
-99,
39,
-99,
64,
73,
37,
-74,
-33,
108,
-108,
39,
-20,
-15,
28,
57,
108,
6,
-113,
-44,
-111,
13,
96,
-100,
-54,
-29,
-79,
-12,
113,
-52,
106,
84,
83,
122,
-65,
-118,
-109
] |
Per Curiam.
After a jury trial, defendant was convicted of kidnapping, MCL 750.349; MSA 28.581, and of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to imprisonment for consecutive terms of from 8 to 30 years and 2 years, and he appeals as of right.
I
Defendant first argues that the trial court’s instructions to the jury defining the crime of kidnapping were defective. No objection was made to the instructions at issue, and under such circumstances this Court will not reverse defendant’s conviction unless the instructions omitted an essential element of the offense or present manifest injustice. See, for example, People v Biegajski, 122 Mich App 215, 227; 332 NW2d 413 (1982)._
It was unnecessary for the trial court to instruct on the element of secret confinement, because the prosecution relied instead on the alternate element of asportation. See People v Phillips, 112 Mich App 98, 109; 315 NW2d 868 (1982). The movement necessary to satisfy the element of asportation must not be merely incidental to the commission of an underlying lesser or co-equal crime other than an underlying crime involving murder, extortion, or taking a hostage. People v Adams, 389 Mich 222; 205 NW2d 415 (1973); People v Barker, 411 Mich 291; 307 NW2d 61 (1981).
Here, the instruction given on asportation was as follows:
"[Djuring the course of such confinement, the defendant must have forcibly moved the victim or caused her to be moved from one place to another for the purpose of abduction and kidnapping.”
The instructions given made no reference to underlying lesser or co-equal offenses. Two panels of this Court have reached opposite conclusions as to the sufficiency of similar instructions where, as here, no objection was made by defendant. Compare People v Charles Thompson, 117 Mich App 522, 525; 324 NW2d 22 (1982), with People v Alexander, 118 Mich App 112, 115-116; 324 NW2d 550 (1982). However, on this record, we need not resolve this controversy.
Both Charles Thompson and Alexander involved defendants who were charged with underlying lesser or co-equal offenses. Here, defendant was originally charged with the co-equal offense of assault with intent to commit murder, MCL 750.83; MSA 28.278. However, at the close of the prosecution’s proofs, the trial court granted defendant’s motion for a directed verdict on that charge and declined to permit the prosecution to amend the information to charge defendant with a lesser assault. In so ruling, the trial court held that there was insufficient evidence to enable a rational trier of fact to conclude that any assault took place. In People v Rappuhn, 78 Mich App 348, 354-355; 260 NW2d 90 (1977), the Court held that it was necessary to instruct on movement merely incidental to an underlying lesser or co-equal offense even if no such offense was charged. However, in Rappuhn there was evidence before the jury suggesting that an uncharged offense had been committed. Here, after the directed verdict, no one suggested that any underlying lesser or coequal offense could be found to have been committed, and there was no evidence of any such offense. Under such circumstances, an instruction on movement merely incidental to some unspecified underlying offense could only lead to confusion; it could not aid the jury in accurately resolving the kidnapping charge. Under the circumstances presented here, the instruction given by the trial court was adequate to convey the essential elements of the crime and presented no manifest injustice.
We note that our resolution of this issue is consistent with the directions given for use of CJI 19:1:01, the instruction dealing with movement merely incidental to an underlying lesser or coequal offense. Use Note (1) for that instruction states in part:
"Not to be used where there is no underlying crime possibility or where the underlying crime is murder, extortion, or taking a hostage.”
II
Defendant also argues that the evidence was insufficient to sustain his convictions. Evidence is sufficient to sustain a conviction if, viewed in the light most favorable to the prosecution, it would justify a rational trier of fact in concluding that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). The pertinent portion of the kidnapping statute, MCL 750.349; MSA 28.581, provides:
"Any person who wilfully, maliciously and without lawful authority shall forcibly or secretly confine or imprison any other person within this state against his will * * * shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years.”
The form of kidnapping relied upon by the prosecution here has four elements:
(1) The victim must have been forcibly or secretly confined or imprisoned.
(2) The confinement or imprisonment must have been against the will of the victim.
(3) During the course of such confinement or imprisonment, the victim must have been moved from one place to another for the purpose of abduction or kidnapping, and not for the purpose of some crime other than one involving murder, extortion, or taking a hostage. See People v Adams, supra.
(4) Confinement or imprisonment of the victim must have been committed "wilfully, maliciously and without lawful authority”; that is, it must have been committed intentionally and without legal justification or excuse. See the Court of Ap peals opinions in People v Adams, 34 Mich App 546, 556-557; 192 NW2d 19 (1971), and People v Jones, 92 Mich App 100, 107; 284 NW2d 501 (1979).
Defendant’s argument concerning the sufficiency of the evidence is based primarily on the testimony of the victim. The victim was compelled to testify after the trial court rejected her attempts to assert the spousal privilege and the privilege against self-incrimination and despite her assertion that she feared for her life. According to the victim, she had car trouble and was forced to abandon her car on Hamlin Road. Two men offered her a ride, and she accepted, but the men drove her around for several hours rather than taking her to a gas station as she requested. Eventually, she persuaded the men that she had no money and they released her at a gas station at the intersection of Rochester and Tienken Roads. The victim denied that defendant was one of the men involved, denied that any struggle took place on Hamlin Road, and denied making statements to the police. However, the victim testified that she had received telephoned threats that she would be killed if she testified.
Other testimony indicated that a blue and white 1977 Pontiac Grand Prix registered in the name of the victim or her husband was found abandoned on Hamlin Road. A passenger door was open, the keys were in the ignition, and a purse containing the victim’s driver’s license and $1,723.60 in cash was found on the back seat of the car. Three .22 caliber shells, one of which had been fired, were found on the ground near the car.
Two witnesses who lived on Hamlin Road testified. One saw a blue car parked in the street from which a man and a woman exited. The woman was forced back into the car after a struggle. Another person must have been in the car, because it backed up and drove away with the victim and her assailant inside. The witness later saw the blue car parked in the same place with its door open. The car was identified as that of the victim. The man who struggled with the woman was described as wearing a black coat and blue pants and was identified as defendant. The woman was described as wearing a striped multi-colored shirt but was not identified.
The other Hamlin Road witness testified that she heard two shots and went to her window. She saw a woman running away from a man with a gun in his hand. The man caught the woman while another man drove up in a gold car with damage on one side. The man and the woman got into the car. The man, who was described as wearing a black coat and black pants, was identified as defendant. The woman was described as wearing a striped multi-colored sweater. It is not clear whether this witness identified the woman involved as the victim; however, the record shows that an attempted identification took place at an afternoon session of the court and that another woman was present in the courtroom who resembled the victim, who wore her hair like the victim, and who was wearing the dress the victim wore to the court’s morning session.
The victim had been reported missing and was found, in a visibly excited condition, at a gas station at the intersection of Rochester and Tienken Roads. She was wearing a multi-colored sweater when found. Defendant was found at the intersection of Washington and Carter Streets, near Tienken Road, in the company of another man and with a broken-down brown Chrysler Cor doba with damage to one side. Defendant was wearing a dark jacket and dark pants. One witness observed a woman resembling the victim and wearing a striped multi-colored sweater about 40 yards away from where defendant’s car was broken down. The woman was walking quickly away from defendant while looking back and defendant appeared to be saying something to her. The intersection of Washington and Carter Streets is about two miles from the intersection of Rochester and Tienken Roads.
When arrested, defendant was found to have in his possession a slip of paper on which the license number and make of the victim’s car were written.
The foregoing evidence, viewed in the light most favorable to the prosecution, was sufficient to justify a rational trier of fact in concluding that the essential elements of the crime were proven beyond a reasonable doubt. A rational trier of fact need not have believed the victim’s testimony. The testimony of the two Hamlin Road witnesses and the slip of paper found on defendant’s person were sufficient to identify defendant as the perpetrator. That the victim was the woman seen on Hamlin Road and near the scene of the breakdown of defendant’s car may be inferred from the involvement of the victim’s car in the crime and the testimony concerning the distinctive striped multi-colored sweater. A forcible confinement against the will of the victim may be inferred from the testimony of the Hamlin Road witnesses and from the circumstances that the victim’s car was found unlocked, with the key in the ignition, and with a substantial sum in cash in her purse left on the back seat. The testimony showed that the victim was moved during the course of her confinement and supported an inference that the move ment was for the purpose of abduction or kidnapping. As has been seen, there was no evidence that the movement was for the purpose of some other crime other than one involving murder, extortion, or taking a hostage. The testimony of the Hamlin Road witnesses supports an inference that defendant acted intentionally and without legal justification or excuse in confining the victim.
Sufficient evidence to sustain defendant’s kidnapping conviction was presented. Moreover, because the testimony of one of the Hamlin Road witnesses showed that defendant personally possessed a firearm during the kidnapping, sufficient evidence was presented to sustain defendant’s conviction of possession of a firearm during the commission of a felony.
Ill
Defendant also complains of the admission of evidence of prior inconsistent statements by the victim and argues that intimidation of the victim by the prosecutor prevented him from calling her as a defense witness. Because the victim was a res gestae witness whom the prosecutor was obligated to call, it was not error to permit the prosecution to impeach the victim. People v Murry, 108 Mich App 679, 683; 310 NW2d 836 (1981), see also People v White, 401 Mich 482, 508; 257 NW2d 912 (1977). The jury was repeatedly instructed as to the limited permissible use of the victim’s prior inconsistent statements.
The inconsistencies between the victim’s testimony at trial and her prior statements to the police were so serious that the prosecutor requested the trial court to find the victim in contempt of court or to hold her for trial on perjury charges. The trial court denied the prosecutor’s request; however, the victim’s well-founded fear of a perjury prosecution led to her invocation of the privilege against self-incrimination and her refusal to testify as a defense witness. In Webb v Texas, 409 US 95; 93 S Ct 351; 34 L Ed 2d 330 (1972), the trial court singled out the only potential defense witness and, in strong and threatening language, warned the witness that he would face a perjury prosecution if he lied while testifying. The witness subsequently refused to testify. The Supreme Court held that the unnecessarily strong terms used by the trial judge, the authority of the trial judge’s position, and the trial judge’s apparent assumption that the victim would lie if he testified prevented the witness from making a free and voluntary choice whether to testify and thus deprived defendant of his right to present evidence in his defense. However, where the extraordinary circumstances on which the Webb decision was based were not present, warnings to potential defense witnesses concerning self-incrimination or possible perjury charges have been held to be proper. See United States ex rel Robinson v Zelker, 468 F2d 159, 162, fn 5 (CA 2, 1972); People v Pantoja, 35 Ill App 3d 375, 380; 342 NE2d 110, 114 (1976); State v Brown, 321 A2d 478 (Me, 1974); State v Whiting, 117 NH 701; 378 A2d 736 (1977); State v Schaub, 46 Ohio St 2d 25; 346 NE2d 295 (1976), and Hedgepath v State, 600 P2d 348 (Okla Crim App, 1979).
Nothing analogous to the extraordinary circumstances on which the Webb decision was based was present here. In this case, the issue did not arise until after the victim testified in a manner which, combined with her prior statements to the police, provided an obvious basis for the perjury charge. The trial judge here did not use strong or threat ening language to the victim; instead, the prosecution’s request that the victim be found in contempt or held for perjury charges was denied. The record here does not suggest that the decision of the victim not to testify further was not free and voluntary; rather, the record suggests that the decision of the victim was based on an accurate appraisal of her legal situation following consultation with her own counsel. No error occurred.
Affirmed. | [
80,
-14,
-7,
-67,
58,
99,
42,
-72,
34,
-125,
-93,
83,
47,
78,
21,
59,
57,
123,
81,
113,
-43,
-93,
103,
99,
-9,
-45,
89,
-47,
55,
78,
-28,
-11,
12,
-16,
-62,
-15,
102,
10,
-47,
86,
-114,
7,
-72,
65,
-48,
10,
36,
118,
88,
14,
113,
-98,
-93,
42,
22,
-61,
9,
40,
11,
-67,
-64,
121,
-69,
15,
-21,
22,
-77,
-92,
24,
-121,
-8,
52,
24,
53,
32,
-24,
51,
-106,
-125,
-4,
79,
-117,
-92,
98,
98,
0,
76,
110,
-23,
-111,
38,
-2,
-67,
-89,
92,
72,
9,
76,
-105,
-3,
100,
84,
38,
-10,
-18,
20,
25,
100,
6,
-57,
-44,
-109,
-51,
48,
98,
-125,
-13,
-91,
16,
112,
-52,
-14,
94,
81,
123,
-77,
-81,
-42
] |
M. J. Kelly, P.J.
Appellant is the natural father of Shonda, Michael, and James Myers, three minor children. Appellant appeals as of right from an order of the Wayne County Probate Court denying his petition for a hearing to revoke a release by which he had voluntarily terminated his parental rights. Appellant argues that the provisions of the Michigan Adoption Code, MCL 710.21 et seq.; MSA 27.3178(555.21) et seq., governing his right to revoke the release violate his constitutional right to due process by denying him access to the courts for a determination of his parental rights. We affirm.
Sections 29(9) and 64(1) of the Adoption Code govern the revocation of voluntary releases of parental rights. MCL 710.29(9); MSA 27.3178(555.29)(9) provides:
"Upon petition of the same person or persons who executed the release and of the department or child placing agency to which the child was released, the court with which the release was filed may grant a hearing to consider whether the release should be revoked. A release may not be revoked if the child has been placed for adoption unless the child is placed pursuant to section 41(2) of this chapter and a petition for rehearing or claim of appeal is filed within the time required. A verbatim record of testimony related to a petition to revoke a release shall be made.”
MCL 710.64(1); MSA 27.3178(555.64)(1) provides:
"Upon the filing of a petition in probate court within 20 days after entry of any order under this chapter, and after due notice to all interested parties, the judge of probate may grant a rehearing and may modify or set aside the order.”
These seemingly conflicting provisions of the Adoption Code have been harmonized by this Court as follows. Under § 64(1), a petitioner has 20 days after voluntarily executing a release to petition the court for a hearing to revoke that release. In the Matter of Michael Brent Hole, 102 Mich App 286, 291; 301 NW2d 507 (1980); In the Matter of Baby Girl Fletcher, 76 Mich App 219, 220-221, 223; 256 NW2d 444 (1977). Whether to grant the petitioner’s request for a hearing and whether to grant the relief sought are matters left to the sound discretion of the probate court. In the Matter of Michael Brent Hole, 102 Mich App 290, fn 1. Where the petitioner waits more than 20 days after the execution of a release, the probate court is without jurisdiction to consider a request for a hearing to revoke unless the child placing agency joins or acquiesces in the petition. In the Matter of Michael Brent Hole, 102 Mich App 291-292; In the Matter of Baby Girl Fletcher, 76 Mich App 220-222. Where this condition is met, the decision to grant a hearing and the decision to grant revocation are resurrected for the exercise of discretion of the probate court, though once the child has been placed for adoption the petition may not be entertained. In the Matter of Michael Brent Hole, 102 Mich App 290, fn 1.
In this case, appellant voluntarily executed a release of parental rights on February 18, 1982. MCL 710.28; MSA 27.3178(555.28). Pursuant to MCL 710.29; MSA 27.3178(555.29), the release was signed at a hearing in the presence of a Wayne County probate judge. Appellant and his attorney stated on the record that they had thoroughly discussed the matter and that appellant’s decision was freely and knowingly made. The judge apprised appellant of the gravity and finality of his decision and inquired further about appellant’s understanding of the consequences of his action. There is no reason to believe that appellant did not understand the effect of his signature on the parental rights release form. We further note that involuntary termination proceedings had been initiated against appellant two years earlier under the Michigan juvenile code, MCL 712A.1 et seq.; MSA 27.3178(598.1) et seq. Appellant was thus provided ample opportunity to familiarize himself with the full spectrum of rights available to him as a parent.
On March 12, 1982, appellant filed his petition for a hearing to revoke the release. This was 22 days after the execution of the release and inasmuch as the Department of Social Services, the child placing agency in this case, refused to join or acquiesce in the petition, the probate court dismissed appellant’s petition for lack of jurisdiction under MCL 710.29(9); MSA 27.3178(555.29X9). Appellant does not dispute the probate court’s application of § 29(9) but contends that the provision is unconstitutional.
We recognize that parental rights constitute a fundamental "liberty” interest protected by the Fourteenth Amendment of the United States Constitution. Reist v Bay Circuit Judge, 396 Mich 326, 341-342; 241 NW2d 55 (1976). However, while the Due Process Clause of the Fourteenth Amendment does guarantee an opportunity to be heard, there is no due process right to a rehearing or even to appellate review. In re Kasuba Estate, 401 Mich 560, 566; 258 NW2d 731 (1977), reh den 402 Mich 954 (1977). The traditional test for determining whether a statutory scheme will be upheld against a due process challenge is whether the legislation bears a reasonable relation to a permissible legislative object. O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524, 540-541; 273 NW2d 829 (1979), reh den 406 Mich 1103 (1979); West v Rollhaven Skating Arena, 105 Mich App 100, 103; 306 NW2d 408 (1981).
We find that the release and revocation provisions of the Michigan Adoption Code do not violate the Due Process Clause of the Fourteenth Amend ment. A primary and permissible legislative purpose of the code is to preserve the finality of decisions to release children for adoption. In the Matter of Kenneth Jackson, Jr, 115 Mich App 40, 53; 320 NW2d 285 (1982); DeBoer v Child & Family Services of Michigan, Inc, 76 Mich App 641, 649; 257 NW2d 200 (1977). A 20-day limitation on the right of a parent acting without support of the child placing agency to attempt to revoke a previously executed release bears a reasonable relation to this purpose. Ample opportunity for a parent to be heard on the voluntary termination of his or her parental rights is provided under MCL 710.29(5); MSA 27.3178(555.29X5).
Affirmed. | [
-48,
-4,
-35,
-68,
42,
33,
42,
22,
83,
-13,
-29,
-45,
-81,
-26,
4,
107,
127,
107,
64,
125,
-45,
-78,
86,
-32,
-4,
-13,
-16,
95,
-14,
79,
100,
127,
88,
-16,
74,
-11,
70,
-119,
-115,
82,
-122,
-117,
-69,
-19,
-47,
0,
52,
113,
24,
15,
85,
31,
-94,
47,
56,
-51,
41,
40,
-5,
-71,
-48,
-4,
-65,
7,
-37,
4,
-96,
116,
-72,
-122,
-48,
107,
24,
56,
18,
-24,
113,
-74,
-122,
124,
75,
-97,
57,
115,
103,
-128,
72,
-26,
-3,
-104,
-115,
-114,
-99,
-122,
-39,
121,
0,
77,
-68,
-3,
104,
20,
44,
-2,
107,
-124,
23,
-84,
4,
-113,
114,
-111,
-53,
60,
-52,
3,
-10,
53,
50,
113,
-36,
112,
84,
99,
63,
91,
-74,
-8
] |
Per Curiam.
Intervenors, as subrogees of plaintiff Gersena Abston, were awarded a judgment of $45,424 against defendant Aetna Casualty and Surety Company. Intervenors appeal as of right from that part of the judgment awarding one-third of their recovery to plaintiff’s attorney as attorney fees.
On March 21, 1981, Abston was injured in an automobile accident while an occupant of a vehicle driven by third-party defendant Charles Kee. Abston’s medical expenses, which amounted to $45,424.02, were paid by intervenor Department of Social Services through the Medicaid program. Plaintiff then sought no-fault insurance coverage; because she was uninsured and no other automobile insurance policy appeared to provide coverage, plaintiff submitted an application to the assigned claims facility. On November 9, 1981, plaintiff was notified that her benefit claim had been assigned to Aetna.
On December 1, 1981, plaintiff filed a complaint against Aetna and Charles Kee, seeking recovery of medical expenses which had "not been reimbursed to her by the assigned insurance carrier defendant Aetna”, and attorney fees. Aetna refused to pay these expenses until it received proper documentation. Plaintiff thereupon subpoenaed the medical records from intervenor Department of Social Services (DSS).
Once on notice of plaintiff’s suit, the DSS fired off two letters, both dated January 14, 1982. One letter informed Aetna that the medical expenses incurred by plaintiff had been paid by the state, and demanded reimbursement directly to the DSS. A second letter was addressed to plaintiffs attorney, and informed him of the following: 1) that the DSS had paid his client’s medical bills; 2) that the DSS was statutorily subrogated to any right his client had against any third party for recovery of these expenses; 3) that his client was obligated to inform the DSS of any action to recover medical expenses; 4) that the DSS was empowered to initiate or intervene in any such action; 5) that he had no authority to seek attorney fees out of the recovery of such expenses; and 6) that any information in his possession with respect to third-party liability would be appreciated.
On March 16, 1982, Aetna informed the DSS that it intended to effect reimbursement as soon as the medical records had been reviewed. In this letter an Aetna claims officer indicated:
"I’ve been experiencing some difficulty in obtaining complete hospital records and medical reports from the claimant’s attorney. I have, on several occasions, requested an Authorization for Release of Medical Information from him with no response.”
"It is my understanding that you have a Release signed by Ms. Abston that you will be sending to me. Once it is received, I will promptly request the needed records and pay the outstanding balance directly to Medicaid.”
On March 25, 1982, plaintiff filed a motion for partial summary judgment, seeking the same medical expenses previously paid by the DSS. This put Aetna in an uncomfortable position. On April 5, 1982, Aetna telephoned the DSS asking that it exercise its right to intervene; Aetna explained that plaintiff was pressing its competing claim for the funds, and Aetna wished to avoid the possibility of multiple liability. The DSS intervened on April 12, 1982, through the office of the Attorney General.
In deciding plaintiffs summary judgment motion, the trial court concluded that the DSS was entitled to recovery from Aetna under the subrogation provision of MCL 400.106; MSA 16.490(16). It further found that this recovery should be reduced to the extent of services rendered by plaintiffs counsel, since the state had "benefited from the diligence and efforts of plaintiff”. Plaintiffs attorney was awarded one-third of the recovery as an attorney fee.
Intervenors first argue that the trial court lacked subject matter jurisdiction in making the attorney fee award, since the Court of Claims has exclusive jurisdiction over claims against the state. MCL 600.6419; MSA 27A.6419; Grunow v Sanders, 84 Mich App 578, 581; 269 NW2d 683 (1978), lv den 405 Mich 835 (1979). This is not an action against the state. Here plaintiff sued a nongovernmental agency, and the DSS intervened as subrogee of the plaintiff. Cf. Williams v Shin, 111 Mich App 84; 314 NW2d 529 (1981), where the state was added as a third-party defendant.
The more meritorious question raised by intervenors is whether the court erred in subjecting their recovery to plaintiffs claim for attorney fees. We agree with intervenors that the award of attorney fees was erroneous, and reverse that part of the trial court’s judgment.
The general rule in Michigan prohibits an award of attorney fees as an element of costs or damages absent express authorization by statute or court rule. H & L Heating Co v Bryn Mawr Apartments of Ypsilanti, Ltd, 97 Mich App 496, 506; 296 NW2d 354 (1980); Birou v Thompson-Brown Co, 67 Mich App 502, 515; 241 NW2d 265 (1976), lv den 397 Mich 808 (1976). Among the recognized exceptions to this rule is the award of attorney fees to a party who has created or protected a common fund for the benefit of others as well as himself. In the Matter of Attorney Fees of Kelman, Loria, 406 Mich 497; 280 NW2d 457 (1979). This "common fund” exception is based upon equitable principles:
"To allow the others to obtain full benefit from the plaintiff’s efforts without contributing equally to the litigation expenses would be to enrich the others unjustly at the plaintiff’s expense.” Kelman, supra, p 503, citing Mills v Electric Auto-Lite Co, 396 US 375, 391-392; 90 S Ct 616; 24 L Ed 2d 593 (1970).
Although this exception usually involves a class of beneficiaries, it has been applied where a common fund is created by a subrogor, to the subrogee’s benefit. Foremost Life Ins Co v Waters (On Remand), 125 Mich App 799; 337 NW2d 29 (1983); Montefusco Excavating v County of Middlesex, 82 NJ 519; 414 A2d 961 (1980); Anno: Right of attorney for holder of property insurance to fee out of insurer’s share of recovery from tortfeasor, 2 ALR3d 1441, 1441-1442, § 1(a). Under MCL 400.106; MSA 16.490(16), intervenor DSS was subrogated to any right of recovery enjoyed by plaintiff to the extent of funds expended by the state for plaintiff’s medical care. Hartman v Ins Co of North America, 106 Mich App 731, 744-745; 308 NW2d 625 (1981), lv den 414 Mich 890 (1982).
Other states have applied the equitable common fund principle to situations where, as here, a statutory right of subrogation. exists in the state, holding that the state is obliged to pay its prorata share of attorney fees incurred by a welfare recipient in obtaining a recovery against a third person. Shearer v Moore, 277 Pa Super 70; 419 A2d 665 (1980); Moss v Glynn, 66 Ill App 3d 221; 383 NE2d 275 (1978); Hedgebeth v Medford, 74 NJ 360; 378 A2d 226 (1977).
Plaintiffs attorney is not entitled to recover attorney fees in this case. MCL 400.106; MSA 16.490(16) provides that a Medicaid claimant who initiates an action against a third party "shall notify the department of the action or proceeding entered into upon commencement of the action or proceeding”. No such notice was given the DSS, which did not learn of plaintiffs suit against Aetna until served with a subpoena for medical records. When the DSS was placed on notice, it asserted its claim against Aetna and notified plaintiff’s attorney that his assistance was not required.
Thus, this is not a case where "despite a clear right to proceed in its own right against the tortfeasor, the [state] refrains from acting * * a situation where the equities favor the subrogor’s attorney. Shearer, supra, p 76; Tennessee Farmers Mutual Ins Co v Pritchett, 54 Tenn App 410; 391 SW2d 671 (1964). See also Foremost Life Ins Co, supra, p 805, fn 2. Here the state acted as soon as it received the notice it was statutorily entitled to. Informed in no uncertain terms that his assistance was not required, plaintiff’s attorney assumed the status of a volunteer. Thus, any "enrichment” enjoyed by the state as a product of his services was not unjust.
Plaintiffs attorney argues that, as a matter of public policy, private attorneys should be allowed to handle the state’s subrogation cases because the attorney general’s office is understaffed. However, the state’s claim as subrogee to a Medicaid benefits claimant against the assigned claims facility may be resolved by a simple application for benefits. 28 OAG 1981-1982, No 5845, p 25.
The award of attorney fees is reversed.
Circuit judge, sitting on the Court of Appeals by assignment.
See MCL 500.3171 et seq.; MSA 24.13171 et seq.
See MCL 14.28, 14.101; MSA 3.181, 3.211.
United States v Nation, 299 F Supp 266 (ND Okla, 1969), cited by intervenors, is distinguishable. There the government sought reimbursement under the Medical Care Recovery Act, 42 USC 2651-2653. This right of reimbursement was a "separate and independent statutorily created right and [did] not rest on subrogation”. Nation, supra, p 267. | [
-80,
-20,
-28,
-68,
24,
-93,
50,
2,
83,
98,
101,
83,
-71,
-18,
17,
39,
-9,
43,
81,
99,
-41,
35,
87,
98,
-1,
51,
49,
-43,
-79,
79,
-12,
-36,
77,
49,
-54,
-43,
98,
-126,
-123,
16,
-38,
4,
-87,
-20,
-7,
67,
48,
59,
-46,
71,
49,
14,
-125,
44,
49,
99,
108,
9,
122,
-95,
-46,
-16,
-114,
5,
123,
2,
-95,
38,
26,
35,
88,
30,
-120,
-80,
65,
-55,
50,
-90,
66,
53,
99,
-103,
0,
102,
96,
34,
112,
125,
-68,
-100,
38,
-84,
-65,
-121,
-101,
81,
90,
15,
-66,
29,
117,
8,
-121,
-4,
-8,
93,
14,
32,
25,
-114,
-108,
-77,
-49,
-29,
-99,
11,
-26,
7,
54,
81,
-99,
-30,
93,
-42,
63,
-109,
26,
-124
] |
Per Curiam.
Plaintiff was injured at work while operating a press manufactured by defendant in 1930 and brought this action against defendant on theories of negligence in the design of the press and breach of implied warranty. After a jury trial, a verdict awarding plaintiff damages of $250,000 was returned, and defendant appeals as of right.
I
Defendant argues that the trial court erred by denying its motion for a directed verdict. A directed verdict for defendant in a civil case should not be granted unless, viewing the evidence in the light most favorable to plaintiff, no reasonable person would conclude that a prima facie case for liability was established. See, for example, Blanchard v Monical Machinery Co, 84 Mich App 279, 282; 269 NW2d 564 (1978).
Defendant’s argument focuses on an essential element common to both of plaintiff’s theories of liability. See Hartford Fire Ins Co v Walter Kidde & Co, Inc, 120 Mich App 283, 292; 328 NW2d 29 (1982):
"With respect to negligent design, this Court has stated that a manufacturer’s liability is predicated upon whether he has failed to protect against a risk that is 'unreasonable and foreseeable by the manufacturer’. Such a test focuses on the reasonableness of the manufacturer’s conduct since it is the duty of the manufacturer to exercise due care. Durkee v Cooper of Canada, Ltd, 99 Mich App 693, 699; 298 NW2d 620 (1980). Negligent design falls under both a negligence theory and an implied warranty theory of liability because a manufacturer has a duty to produce a reasonably fit product under either concept. Elsasser v American Motors Corp, 81 Mich App 379, 385; 265 NW2d 339 (1978).”
In Fredericks v General Motors Corp, 411 Mich 712; 311 NW2d 725 (1981), plaintiff was injured in a press accident and sued defendant, who had supplied the dies used in the press. The evidence showed that the dies were intended for use as part of a press system and that the accident could have been prevented either by guards on the dies or by other safety devices elsewhere in the press system. The Court pointed out that, at the time of plaintiff’s injury, MCL 408.852; MSA 17.49(2), enacted by 1967 PA 282, placed a duty on an employer to maintain a reasonably safe workplace. That sec tion was subsequently repealed by 1974 PA 154, which, however, enacted MCL 408.1011; MSA 17.50(11), which contains an equivalent provision. The Court reasoned that the employer’s statutory duty rendered it unforeseeable that the employer would fail to incorporate adequate safety devices into the press system and concluded that the trial court did not err in granting defendant’s motion for a directed verdict on plaintiffs products liability theory.
Here, as in Fredericks, a statute in existence at the time of plaintiffs injury placed a duty on the employer to maintain a reasonably safe workplace. The press manufactured by defendant here, like the dies at issue in Fredericks, was only a part of a press system. The press at issue here could only be used in conjunction with dies, a power source, and some method of feeding materials into the press, whether manual, semi-automatic, or automatic. The press was harmless and inoperable unless incorporated into such a system. Plaintiff introduced evidence indicating that the accident could have been prevented if the press had been equipped with a single-stroke mechanism or with a dual palm button activation mechanism placed a sufficient distance from the press. Testimony showed one possible safety device, pull-back straps, was not an integral part of the press and could be installed by the employer, but the testimony was sharply divided as to whether such a safety device was adequate. However, unrebutted testimony showed that the press at issue could be operated safely in conjunction with a semi-automatic or automatic feeding mechanism. Moreover, unrebutted testimony also showed that this accident would have been prevented had the press been equipped with guards on the dies, or other die-related safety devices such as an air ejection system or a sliding die.
Because Fredericks shows that it was not foreseeable that plaintiffs employer would fail to incorporate the press into a press system containing adequate safety devices, the trial court erred by declining to grant defendant’s motion for a directed verdict.
We note that here, in contrast to Fredericks, plaintiff does not rely on a negligent entrustment theory. Nevertheless, we also note that plaintiff produced no evidence tending to show the essential element of a cause of action based on such a theory, that defendant knew or should have known that plaintiffs employer would use the press in an unsafe manner. 411 Mich 719.
A product is not defective if it is reasonably safe for its foreseeable uses. Hartford Fire Ins Co, supra, p 292.
Plaintiffs expert admitted that defendant’s press was multi-purpose and that this meant it was designed for a wide variety of operations. He also admitted it was impossible for defendant to install a safety device which would cover all purposes to which the press could be assigned. At the time of sale, the press had neither a motor nor any dies and, thus, was incapable of injuring anyone in the way that plaintiff had been injured.
It follows then that, absent evidence that defendant knew or had specific reason to know that the original purchaser would use the press unsafely, it had no duty to provide safety devices not ordered by that purchaser. In other words, the specific use to which plaintiffs employer put the machine was not foreseeable without some evidence that defendant knew or should have known of the purchaser’s unsafe use. See Antcliff v State Employees Credit Union, 95 Mich App 224; 290 NW2d 420 (1980), aff’d 414 Mich 624; 327 NW2d 814 (1982), reh den 417 Mich 1103 (1983).
II
We will briefly address a relatively novel issue raised by defendant, although its resolution is not essential to our decision. Michigan Standard Jury Instructions must be given if properly requested, provided they are applicable and accurately state the law. GCR 1963, 516.6(2). Where there is a deviation from a properly requested, applicable, and accurate Michigan Standard Jury Instruction, prejudicial error will be presumed provided that the deviation was brought to the attention of the trial court prior to commencement of jury deliberations. Javis v Ypsilanti Bd of Ed, 393 Mich 689, 702-703; 227 NW2d 543 (1975); Socha v Passino, 405 Mich 458; 275 NW2d 243 (1979).
Here, defendant requested SJI 25.32, which provides in pertinent part:
"Plaintiff has the burden of proving each of the following:
"a. That the defendant [manufactured/ and/or /designed] a [product/_(name of product)] which created an unreasonable risk of harm * * *.”
The word "unreasonable” was added to the instruction by amendment in October, 1981. The trial here took place in January, 1982, but the trial court failed to give the amended version of the instruction. No contention is made that the instruction as amended was not applicable or did not accurately state the law; rather, plaintiff argues that defendant did not properly request the amended instruction.
In requesting the instruction, defendant did not specify that the instruction had recently been amended. Careful attorneys in similar circumstances would do well to point out the amendment in order to avoid all possible confusion. However, before jury deliberations commenced, defendant called the attention of the trial court to the omission of the word "unreasonable”. Nevertheless, the trial court inexplicably declined to give a corrected instruction.
By requesting the instruction and by pointing out at the appropriate time the trial court’s deviation from the approved language, defendant did all that the Court in Javis, supra, pp 702-703, required for application of the presumption of prejudicial error. The Javis standard requires an objection in time for the trial court to correct any deviation from the approved language before jury deliberations commenced; it does not require litigants to anticipate that, when the requested instruction is given, the trial court will prove to be unaware of a recent amendment. The trial court’s departure from the approved language and refusal to give a corrected instruction would, under other circumstances, require reversal and a new trial.
Reversed and remanded for entry of a judgment for defendant.
Although the Fredericks Court, at 411 Mich 720, emphasized that the statute was enacted in 1967 and was in existence at the time of injury, the date of injury (and, for that matter, the date of manufacture) actually has little significance. Long before 1967 PA 282, Michigan courts recognized that, as a matter of common law, an employer has a duty to maintain a reasonably safe workplace. Swoboda v Ward, 40 Mich 420 (1879); Smith v Peninsular Car Works, 60 Mich 501; 27 NW 662 (1886); Van Dusen v Letellier, 78 Mich 492; 44 NW 572 (1889); Kaukola v Oliver Iron Mining Co, 159 Mich 689; 124 NW 591 (1910); Baucino v Fitzpatrick, 186 Mich 1; 152 NW 927 (1915); Thiel v Verschoor, 235 Mich 373; 209 NW 53 (1926); Muchler v Johnson, 280 Mich 527; 273 NW 794 (1937). For an early statute recognizing such a duty, see 1929 CL 8330. | [
-16,
-4,
-40,
-115,
8,
98,
50,
90,
117,
-63,
-89,
115,
45,
-125,
-99,
103,
119,
127,
-43,
75,
-43,
-93,
23,
67,
-42,
-109,
-77,
-43,
-79,
107,
118,
126,
77,
48,
-54,
-59,
-25,
2,
-59,
82,
-62,
-108,
41,
-13,
89,
90,
112,
122,
-16,
79,
97,
-98,
115,
46,
31,
-49,
40,
40,
107,
-83,
-64,
-16,
-102,
13,
125,
16,
-77,
22,
-104,
39,
-40,
12,
-104,
25,
42,
-8,
50,
-73,
-57,
-44,
105,
41,
0,
102,
99,
48,
29,
-27,
-116,
-104,
47,
-49,
15,
-91,
26,
121,
11,
43,
-74,
-107,
114,
50,
5,
106,
-2,
93,
31,
108,
1,
-122,
-108,
-126,
-17,
100,
92,
-117,
-18,
-93,
0,
113,
-50,
-70,
92,
1,
91,
27,
-34,
-98
] |
T. Gillespie, J.
Lindy Woolcott has severe speech and hearing defects. To mainstream Lindy from special education classes to general education classes, the Traverse Bay Area Intermediate School District (hereafter ISD) hired a cued speech interpreter. The cued speech instructor was used for only one term in Lindy’s general education classes. Thereafter, Lindy’s parents objected to ISD’s refusal to use the cued speech interpreter in Lindy’s general education classes. Administrative hearings were held and the result was approval of ISD’s refusal. Lindy’s parents then filed suit in circuit court challenging the administrative findings. State defendants moved for summary judgment, claiming there was a failure to state a cause of action and that state defendants were not necessary or proper parties. The motion was granted. Plaintiffs appeal. Reversed in part, affirmed in part, and remanded.
The following facts are taken from plaintiffs’ complaint. Lindy attended Central Elementary School in the Traverse City Public School District during 1980-1981. She was assigned to the hearing impaired room. ISD had a contract with Traverse City Public Schools to operate the hearing impaired rooms.
An Individualized Education Planning Committee (IEPC) was organized by the ISD pursuant to the Education of the Handicapped Act, 20 USC 1400 et seq. (hereafter EHA) to plan how Lindy should be educated.
Lindy’s parents wanted ISD to supply a cued speech interpreter during Lindy’s time spent in general education classes. Cued speech is a combination of lip reading and sign language. This would allow Lindy to understand class materials. Lindy was to receive this aid in special and general education to help "mainstream” Lindy into general education. On May 4, 1982, the IEPC recommended the service for Lindy.
Lindy received cued speech instruction from September, 1981, until January, 1982. On February 11, 1982, the ISD’s special education supervisor circulated a memo stating that Lindy’s IEPC would no longer be able to make use of a cued speech instructor in Lindy’s general education program.
Another IEPC was convened in February, 1982. The IEPC and the parents agreed that Lindy needed cued speech services. However, the chairman of the IEPC vetoed the cued speech service. The plaintiffs alleged that this refusal by the IEPC was wrong.
Plaintiffs then requested a due process hearing from the ISD. They were refused. The state defendants failed to intervene when requested by plaintiffs to do so. The parties finally stipulated that plaintiffs would file an administrative complaint with the state defendants and receive an expedited ruling.
A hearing was held in May of 1982. The hearing officer’s opinion was that speech instruction was necessary for Lindy to receive a free appropriate public education and ISD had a duty to provide her with such instruction.
In August, 1982, that ruling was reversed on an administrative appeal. It was concluded that Lindy did not need cued speech instruction in her general education classes.
Lindy has since been enrolled in a private school, which provides her, at plaintiffs’ expense, with a cued speech interpreter in general education classes. She still attends ISD’s special education classes.
Plaintiffs commenced the instant action on October 14, 1982, in Ingham County Circuit Court praying for declaratory, injunctive, and money damage relief. The complaint was in four counts, the sense of each count being that Lindy wanted ISD or the state defendants to provide her with a cued speech interpreter.
Count I alleged a violation of the Education of the Handicapped Act, 20 USC 1400 et seq., because the refusal of ISD to supply Lindy a cued speech interpreter in general education was a failure to provide her with a free appropriate public education. This count also alleged a right to a full hearing.
Count II alleged a violation of Michigan’s mandatory special education act (hereafter MMSE), MCL 380.1701 et seq.; MSA 15.41701 et seq., in that failure to provide cued speech resulted in Lindy’s losing the right to an appropriate education which maximizes her potential.
Count III alleged a violation of the Michigan Handicappers’ Civil Rights Act, MCL 37.1101 et seq.; MSA 3.550(101) et seq.
Count IV alleged a violation of § 504 of the Rehabilitation Act 1973, 29 USC 794.
State defendants moved for summary judgment in December of 1982, claiming that they were not necessary or proper parties. They also claimed that plaintiffs failed to state a claim for which relief could be granted.
The issues raised on appeal are essentially two. First, are the claims presented in plaintiffs’ amended complaint, counts I-IV, sufficient to withstand motions for summary judgment under GCR 1963, 117.2(1)? Second, in relation to those claims were the state defendants, the Michigan Department of Education, Phillip E. Runkel, and Edward Birch, properly joined parties?
When reviewing a motion for summary judgment, this Court is to determine whether plaintiffs’ claims as set forth in their pleadings are so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recover. All well-pled facts in the complaint are considered true and only the legal sufficiency of the pleadings are tested. Proof to support the allegations is not required. Reeder v Hammond, 125 Mich App 223; 336 NW2d 3 (1983).
20 USC 1412(1) states that, to receive federal funds, "the state has in effect a policy that assures all handicapped children the right to a free appropriate public education.”
A free appropriate public education is to be determined by an individualized educational program designed to meet the unique needs of the handicapped child, the teacher, and parent(s) or guardian(s). 20 USC 1401, subds (18), (19).
Regulations promulgated under the EHA provide:
"(b) Each public agency shall insure:
"(1) That to the maximum extent appropriate, handicapped children including children in public or private institutions or other care facilities, are educated with children who are not handicapped, and
"(2) That special classes, separate schooling or other removal of handicapped children from the regular educational environment occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 USC 1412(5)(B); 34 CFR 300.550. (Emphasis added.)
Subsection (B)(1) is the regulatory language for mainstreaming handicapped students.
A program must also provide a continuum of placements which shall:
"(1) Include the alternative placements listed in the definition of special education under § 300.13 of Subpart A (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions), and
"(2) Make provisions for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.” 34 CFR 300.551. (Emphasis added.)
Michigan’s implementing statute, MCL 380.1701 et seq.; MSA 15.41701 et seq., MMSE, goes even further than the EHA. The goal in Michigan is to "develop the maximum potential of every handicapped person”. MCL 380.1701(a); MSA 15.41701(a).
In addition, the EHA provides a procedural system for redress of complaints giving dissatisfied parties a right to an impartial due process hearing followed by a right of appeal to the state educational agency. If the party is still dissatisfied they have a right to bring a civil action in either a state court of competent jurisdiction or in a federal district court. 20 USC 1415, subds (a)-(e).
The plaintiffs have alleged that Lindy is handicapped and of age for public education. Thus, her rights vest under the EHA and the MMSE.
Plaintiffs also allege that Lindy has a right to a free appropriate public education, 20 USC 1412(1), which will develop her maximum potential, MCL 380.1701(a); MSA 15.41701(a). They also claim that she has a right to be educated in a regular educational environment with the use of supplementary aids or services. 20 USC 1412(5)(B); 34 CFR 300.550. They further claim a cued speech interpreter is an aid or service within the meaning of the statutes to enable Lindy to be mainstreamed. Further, allegations are that the failure of ISD and the state board to provide Lindy with a cued speech interpreter is a violation of the EHA and the MMSE. Plaintiffs pursued their administrative remedies and now claim a right to file a civil action in the circuit court. 20 USC 1415, subds (a) (e). We are convinced that the above facts, taken to be true in a motion for summary judgment, make out a cause of action in counts I and II.
Counts III and IV allege general handicappers’ civil rights violations. These are general acts concerning basic civil rights for handicappers whereas the EHA and the MMSE are specific rules for education of handicappers. In Flint Bd of Ed v Williams, 88 Mich App 8, 15-16; 276 NW2d 499 (1979), the Court made the following statement:
"We are further guided by the principle that, where there are two acts, one of which is special and particular and includes the matter in question, and the other of which is general, and which, if standing alone, would include the same matter and thus, conflict with the special act, the special act must be viewed as an exception to the general. 21 Michigan Law & Practice, Statutes, § 99, pp 117-118.”
Plaintiffs are limited to those remedies provided in the EHA and MMSE. See also Smith v Cumberland School Committee, 703 F2d 4 (CA 1, 1983).
The specific statutes are exceptions to the general and as such limit the scope of the general statutes. Summary judgment was proper under counts III and IV.
Plaintiffs also claim that the state defendants are necessary and proper parties. State defendants claim that their duty was to ensure procedural safeguards and that they have no duty to Lindy or the ISD to provide a cued speech interpreter.
The leading case is Hendrick Hudson Central School Dist Bd of Ed v Rowley, 458 US 176; 102 S Ct 3034; 73 L Ed 2d 690 (1982). Justice Rehnquist comprehensively discussed 20 USC 1401 et seq. He states that the standard of review requires two steps:
"First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits?” 458 US 206-207. (Emphasis added.)
We cannot reach the second step because the trial court never answered that question. The first question is answered because the state defendants claim they have done their duty. They haven’t. Throughout Rowley, the state’s obligations are continually referred to in connection with the act. 20 USC 1400(B)(8) states:
"(8) State and local educational agencies have a responsibility to provide education for all handicapped children, but present financial resources are inadequate to meet the special educational needs of handicapped children;”
MMSE § 380.1701 states:
"The state board shall:
"(a) Develop, establish and continually evaluate and modify in cooperation with intermediate school boards, a state plan for special education which shall provide for the delivery of special education programs and services designed to develop the maximum potential of every handicapped person. The plan shall coordinate all special education programs and services.” (Emphasis added.) MCL 380.1701; MSA 15.41701.
It is quite clear the state defendants have the ultimate obligation for enforcing the statutes and as such are necessary and proper parties. Georgia Ass’n of Retarded Citizens v McDaniel, 500 F Supp 1263 (ND Ga, 1981).
Plaintiffs also claim money damages to recoup expenses incurred by placing Lindy in a private school, and for general discrimination damages. The latter claim can be dismissed because the trial court has been affirmed in granting summary judgment for counts III and IV insofar as general discrimination claims are concerned.
The claim of specific money damages for placing Lindy in a private school which offered a cued speech interpreter for her general education should be addressed because the issue may surface at the trial.
The EHA’s only reference to relief under the act states, "the court * * * shall grant such relief as the court determines is appropriate”. 20 USC 1415(e)(2). The MMSE only refers to criminal liability for violations of the act. MCL 380.1804, 380.1805(2); MSA 15.41804, 15.41805(2).
The issue of whether money damages are recoverable has been addressed in other jurisdictions. The Fourth Circuit in Stemple v Prince George’s County Bd of of Ed, 623 F2d 893 (CA 4, 1980), cert den 450 US 911; 101 S Ct 1348; 67 L Ed 2d 334 (1981), held that the parents could not recover if they unilaterally placed the child in a private school during the pendency of the suit. The Eighth Circuit agreed in Miener v Missouri, 673 F2d 969 (CA 8, 1982).
Further, the federal courts have consistently held that general damages for tort liability are not recoverable under the EH A. Anderson v Thompson, 658 F2d 1205 (CA 7, 1981); William S v Gill, 536 F Supp 505 (ND Ill, 1982). Anderson, supra, had a bad-faith exception.
The only case addressing damages in this circuit to date is Sanders v Marquette Public Schools, 561 F Supp 1361 (WD Mich, 1983). That court followed the exceptionless no-recovery rulings of the Stem- pie and Miener cases. We are persuaded this is the correct view, and thus money damages are not recoverable under either the EHA or the MMSE statutes.
There are several parts to our decision in this case. First, the trial court is affirmed in granting summary judgment for the state defendants as to counts III and IV, the general state and federal civil rights claims. The trial court is reversed in its determination that state defendants are not necessary and proper parties in the EHA and MMSE counts. Further, plaintiffs pled valid causes of action against state defendants in counts I and II, the EHA and MMSE counts. Finally, money damages are not recoverable under the EHA and MMSE statutes. We find these statutes remedial in nature to afford handicapped children a right to a free appropriate public education which maximizes their education potential. The goals can be effectively achieved through declarative and injunctive relief.
We do not intend this decision to be construed as an opinion of whether Lindy needs a cued speech interpreter. That is a question for the trial court. This opinion only addresses the issues of the propriety of the grant of summary judgment, whether state defendants were proper parties, and if money damages can be recovered.
Affirmed in part, reversed in part, and remanded. No costs, a public question being resolved. | [
-112,
-8,
-59,
-81,
-118,
-95,
58,
-114,
81,
-95,
97,
-41,
-17,
-44,
29,
43,
55,
103,
81,
122,
-45,
49,
82,
5,
-68,
-5,
-13,
-33,
-69,
-34,
-16,
20,
76,
112,
-126,
-99,
98,
-33,
-51,
80,
-98,
7,
-99,
74,
17,
-78,
52,
111,
18,
15,
53,
-41,
-77,
44,
-100,
75,
41,
38,
58,
-95,
-62,
-16,
-70,
17,
-23,
66,
-77,
52,
26,
-57,
80,
12,
-102,
-75,
-120,
-96,
58,
-26,
-62,
-9,
1,
-120,
-103,
117,
64,
-121,
-88,
-75,
-56,
13,
126,
26,
61,
-94,
-109,
9,
98,
5,
-67,
93,
52,
16,
15,
88,
75,
-52,
23,
100,
-121,
-121,
28,
19,
77,
-80,
-100,
3,
-5,
-105,
16,
85,
-117,
90,
94,
10,
59,
-97,
-62,
-66
] |
Per Curiam.
Defendant appeals as of right from his plea-based conviction of breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305. Defendant pled nolo contendere to a charge of breaking and entering a dentist’s office at 2545 Baker Street in the City of Muskegon Heights with intent to commit larceny.
On appeal, defendant claims that an inadequate factual basis for his plea was presented. GCR 1963, 785.7(3)(b)(ii) requires a judge who takes a nolo plea to conduct a hearing (unless there has already been one) that establishes support for a finding that the defendant is guilty. No preliminary examination was held before defendant offered his plea. At the plea-taking proceeding, a police officer testified that he responded to a call concerning a possible overnight break-in. He met the owner of the building with whom he examined its exterior and interior. He concluded that the building had been entered through a side window which had been smashed. Numerous drawers were opened in the room entered; a number of cabinets were opened in an adjacent room. Apparently a clock was the only thing which was taken. Outside the smashed window, the officer discovered a distinctive heelmark which he concluded would lead to the identification of the burglar. Remembering that defendant had been dropped off by police near the office the night before, he concluded that he should interview him. He found the defendant and read him his Miranda rights before questioning him. The officer testified:
"We talked about the breaking and entering at Doctor Howell’s office, and the fact that he had been dropped off there that night in the area by Sergeant Whittaker. Mr. Mack was intoxicated at the time that Sergeant Whittaker dropped him off, and his recall was a little hazy as a result of that. He told me that he recalled smashing the window out on the north side of the building, but he didn’t know if he went in or not. He couldn’t remember, but he did recall breaking the window out because he was upset.”
The clock which was taken was not recovered.
On this testimony, we believe that the trial judge properly concluded that the crime charged had been committed. Evidence showing a nighttime entry of a professional office, effected by breaking a window and crawling through it, in which a clock was taken established an ample factual basis for finding a breaking and entering and for inferring the intent to commit larceny.
The testimony is less convincing, but still adequate, concerning the identity of the burglar. To conclude that defendant did not enter the building and take the clock, one would have to believe that two persons were involved in this crime. This hypothesis cannot be entirely ruled out based upon the evidence presented at the plea-taking. It is, however, sufficiently improbable that its mere existence does not bar defendant’s conviction. Where breaking and entering were proven (both occurring in close temporal proximity) and the evidence adduced at trial identified defendant as the person who did the breaking, the evidence has been held sufficient to convict him of the offense. People v Bahlhorn, 298 Mich 545; 299 NW 709 (1941); People v Barnes, 51 Mich App 735; 216 NW2d 464 (1974); People v Ware, 12 Mich App 512; 163 NW2d 250 (1968). See also Anno: Fingerprints, palm prints or bare footprints as evidence, 28 ALR2d 1115, §§27-30, pp 1149-1157. Given the testimony presented, we believe that the trial judge reasonably inferred from the evidence that defendant broke the window and entered the building with the intent to commit larceny therein.
Defendant’s far more serious claim of error concerns the trial judge’s failure to follow the procedures suggested in this Court’s opinion in People v Stoner, 23 Mich App 598; 179 NW2d 217 (1970). In Stoner, this Court vacated a guilty plea in which the defendant was unable to remember his commission of the offense. At the time the plea was taken, nolo pleas were not permitted in Michigan. See People v Booth, 414 Mich 343, 361, fn 17; 324 NW2d 741 (1982). The defendant remembered going to a house, seeing an old man, and discovering a considerable sum of money in his possession upon leaving the house. Stoner, supra, pp 603-604. This Court stated:
"While a trial judge may not be obliged to search out possible defenses, in this case it has not been made to appear that Stoner planned or participated in the commission of the robbery. While Stoner was present when 'someone’ planned or suggested commission of a robbery, he claimed he was too drunk to care what happened. And while he obtained proceeds of the alleged robbery, he did not recall the robbery itself or participating in it. A factual basis for his guilty plea was not established.
"We do not mean to be understood as saying that a plea of guilty may not be accepted merely because a defendant says that by reason of intoxication he cannot recall his participation in the commission of the offense. However, where the defendant claims that he cannot recall participating, the inquiry must go further: Is the defendant aware that if his claim to being so completely intoxicated that he cannot recall participating is believed by the trier of fact, that the trier would then be obliged to acquit him? If so, why then is the defendant pleading guilty?
"We recognize that a defendant may wish to waive a possible defense and plead guilty simply because he has concluded that the trier of fact will not believe him. The people’s evidence that the defendant was not intoxicated may be overwhelming.
"When a defendant claims that because of intoxication he does not recall participating in the commission of the offense, but, nevertheless, desires to plead guilty, the people should be asked to produce evidence negating the intoxication defense. Such evidence might appear in the transcript of a preliminary examination presented to and read by the trial judge before accepting the plea. If from such evidence it appears that the people can substantially refute a claim of intoxication, then a factual basis for the defendant’s plea would appear without regard to his own acknowledged recollection of what occurred. Upon such a showing and express and knowledgeable waiver of the defense by the defendant, the judge could properly accept the plea.
"There would then, in the words of the Barrows [People v Barrows, 358 Mich 267; 99 NW2d 347 (1959)] Court, be a basis for concluding that there had been (p 272) 'reasonable ascertainment of the truth of the plea’. We would then have no reason to be concerned that the defendant’s plea was not an 'understanding’ plea. It would then appear, as we said in Bartlett [People v Bartlett, 17 Mich App 205; 169 NW2d 337 (1969)] (p 209), 'that there is a factual basis for the plea, that the plea is a truthful, honest plea of guilty to an offense of which the accused person might well be convicted upon trial.’ ” (Footnotes omitted.) Stoner, supra, pp 607-608.
Defendant claims that his conviction should be reversed because several of the procedures suggested in Stoner were not followed. He was not asked if he was aware "that if his claim to being so completely intoxicated that he cannot recall participating is believed by the trier of fact, that the trier would then be obliged to acquit him”. Stoner, supra, pp 607-608. He was not asked why he was pleading guilty in view of this defense. The prosecution was not asked to produce evidence negating his intoxication defense. He did not make an express and knowledgeable waiver of his intoxication defense.
To a great extent, the need for the procedures suggested in Stoner has been obviated by the Supreme Court’s adoption of rules requiring the presentation of a factual basis for a plea of nolo contendere. See People v Booth, 414 Mich 343, 361-362; 324 NW2d 741 (1982). We believe that the Supreme Court’s treatment of defendant Booth’s argument based on Stoner in People v Booth, supra, indicates that the need for the procedures suggested in Stoner varies depending on the circumstances of the case. Moreover, we believe that the procedures suggested in Stoner are not required where the purposes advanced by those procedures are fully served by compliance with the court rule requiring a factual basis for the plea.
In the present case, unlike in Stoner, an adequate factual basis for the nolo plea was established. In establishing the factual basis, the prosecution presented testimony which implicitly negated the intoxication defense. The people’s testimony need not disprove defendant’s intoxication; it must show that, whether or not defendant was intoxicated, he had the specific intent to commit larceny at the time he broke and entered. See People v Paul, 13 Mich App 175, 177; 163 NW2d 803 (1968). This Court discussed the element of intent to commit larceny of a felonious breaking and entering in People v Palmer, 42 Mich App 549, 551-552; 202 NW2d 536 (1972):
"In this case, the information charged that Palmer attempted to break and enter with intent to commit the crime of larceny. Because such mischief is a normal incident to a breaking and entering, and because of the difficulty of proving the actor’s state of mind, minimal circumstantial evidence has been found sufficient to sustain the conclusion that the defendant entertained the requisite intent. There must, however, be some circumstance reasonably leading to the conclusion that a larceny was intended. A 'presumption of an intent to steal does not arise solely from the proof of breaking and entering’. State v Harris, 40 Wis 2d 200, 210; 161 NW2d 385, 391 (1968).” (Footnotes omitted.)
In Palmer, supra, the defendant’s conviction was reversed. The defendant had been caught standing near two companions who were attempting to break and enter a residence. This Court noted that the breaking was attempted at noontime, the building was an occupied dwelling and not a store containing money or merchandise, the defendant was acquainted with one of the house residents and the defendant had been in the house the preceding day. The Court stated that the record did not suggest that anything of particular value was in the house. The Court concluded that the proofs had not shown the intent to commit larceny beyond a reasonable doubt in that nonjury trial.
In the present case, the defendant broke and entered a business office at night. He opened drawers and cabinets, suggesting a search of the premises. Nothing in the record indicates that he knew any of the building’s occupants. Something of value was actually taken. The factual circumstances of this offense practically compel the conclusion that its perpetrator possessed the specific intent to commit larceny when he broke and entered the building, despite his intoxication (which we do not question). We think it extremely unlikely that a trier of fact might conclude, based on the evidence presented, that defendant did not intend to commit larceny when he broke and entered the dentist’s office. We conclude that the intoxication defense was successfully negated by the evidence presented to establish a factual basis for the plea. The trial judge properly concluded that the testimony presented established support for a finding that defendant was guilty.
In Stoner, this Court stated that it would have no reason to be concerned that a defendant’s plea was not an understanding one so long as there was a basis for concluding that the plea had been a truthful one. Stoner, supra, p 608. This statement suggests, at least, that a satisfactory resolution of the problem of the lack of a factual basis was the major concern of the Court. We nonetheless address defendant’s claim that his was not an understanding plea.
Defendant claims that his plea was not an understanding one because he was not told that he would be acquitted if a trier of fact believed that he was so intoxicated that he could not remember committing the offense charged. A judge who accepts a plea is not generally obliged to explain possible defenses to the person who offers it. GCR 1963, 785.7(1)(a); People v Burton, 396 Mich 238, 242; 240 NW2d 239 (1976). We do not believe that it was the intent of the panel which decided Stoner to impose a different standard on the judge where an intoxication defense might be presented. This defense must be treated like other defenses; information concerning it must be imparted to a defendant only when his statements suggest that his plea is not an understanding one.
We would agree with defendant’s claim that his plea was not an understanding one if we could accept the proposition in Stoner equating loss of memory with loss of ability to form specific intent. This equation rests, however, on assumptions of fact which are contrary to the conclusions drawn by medical researchers in this area. Loss of memory, as caused by alcohol consumption (either acute intoxication or chronic alcoholism), is not generally related to the ability to perform complex functions. See People v Hibbler, 1 Ill App 3d 263; 274 NE2d 101, 104 (1971).
The facts of the present case strongly suggest impairment of memory without impairment of the ability to function mentally. After a period of acute alcoholic intoxication, a person may fail to remember events which occurred during the period of intoxication. This is an alcoholic "blackout”; its occurrence is not related to the ability to perform complex functions during the period for which memory is lost. This is the only type of memory loss which is consistent with the facts presented in this case.* *** Other types of memory loss which are related to alcoholic intoxication are equally unrelated to the ability to perform during periods of intoxication. We do not believe that a defendant’s loss of memory concerning an incident indicates that he was disabled from forming a specific intent during that incident. A determination concerning specific intent may only be made by considering all the facts of the case. When the facts of this case are considered, the finding of specific intent is strongly supported.
We are reluctant to suggest a single standard imposing responsibilities on the court for imparting information to an amnesic defendant. Although we believe that a trial court must proceed with great caution in taking such a nolo plea, it may take the plea when it is satisfied that an adequate factual basis is present. In the present case, a well-informed defendant could have rationally concluded that he would be convicted at trial, based only on the evidence presented at the plea-taking. Under the circumstances, we are reluctant to impose on the trial court responsibilities for imparting information to the defendant in addition to those imposed by the court rules.
Affirmed.
Beasley, P.J., concurs in result only.
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
See generally Birnbaum & Parker, eds., Alcohol and Human Memory (Erlbaum, 1977).
About two-thirds of chronic alcoholics frequently suffer this type of memory loss, generally midway or late in the course of their alcoholism. On some occasions, the loss is mild or fragmentary; on others, it is severe and nearly total (en bloc). Some chronic alcoholics suffer memory loss every time they drink. The loss of memory varies, even when the amount of alcohol ingested remains constant. About one-third of non-alcoholic young men (and a smaller percentage of non-alcoholic young women) experience one or more alcoholic blackouts of this type. Donald W. Goodwin, The Alcoholic Blackout and How To Prevent It, in Birnbaum & Parker, supra, pp 177-178. See also Kessel & Walton, Alcoholism, (Penguin, 1976), p 97.
An alcoholic blackout is defined as a memory lapse occurring after moderate or heavy drinking where the drinker "may carry on a reasonable conversation or go through quite elaborate activities with out a trace of memory the next day”. E. M. Jellinek, Phases of Alcohol Addiction, 13 Quarterly Journal of Studies on Alcohol 673, 678 (1952). The drinker who suffers memory loss is not in a semistuporous state. The memory loss is not due to any type of registration deficit, i.e., the drinker’s perceptions and thought processes at the time are not deficient — he merely loses the ability to recall. Goodwin, supra, p 178. The memory loss involves a specific functional deficit; intellectual functioning, in general, is well preserved. Goodwin, p 179. In studies where blackouts were experimentally induced, the subjects who experienced blackouts behaved no differently during periods for which memory was intact. During the blackout periods, subjects were "fully conscious, alert and able to perform complicated tasks”. Goodwin, supra, p 179.
Defendant’s age (22 at the time of arraignment) precludes the conclusion that he is in the middle or late stages of chronic alcoholism. See C. D. Marsden, Neurological Disorders Induced by Alcohol, in Edwards & Grant, eds., Alcoholism, (University Park Press, 1976), pp 60-62. If he were in the middle or late stages of chronic alcholism, the memory loss the defendant described would be equally consistent with Wernicke-Korsakoff syndrome. Goodwin, supra, p 179. Drinkers affected by this syndrome, however, also experience no loss of function during the period for which memory is lost. Oscar Parsons & George Prigatano, Memory Functioning in Alcoholics, in Birnbaum & Parker, supra, pp 185-187.
In addition to the two-thirds of chronic alcoholics who suffer from blackouts to varying degrees (see fn 3), approximately one out of ten chronic alcoholics suffers from alcohol-induced organic brain syndrome involving some memory loss. Twenty percent of this group suffer from Korsakoff’s syndrome which involves very substantial loss of memory. Overall impairment of mental functions for those suffering from alcohol-induced organic brain syndromes is not closely tied to the degree of memory loss. Parsons & Prigatano, supra, pp 185-187. See also Marsden, supra, pp 74-76; William Fann, Phenomenology & Treatment of Alcoholism (SP Medical and Scientific, 1980). | [
81,
-6,
-7,
-66,
43,
-32,
50,
-68,
65,
-55,
114,
23,
-91,
-62,
4,
121,
-73,
127,
84,
113,
-35,
-77,
70,
35,
-10,
-77,
-13,
85,
-4,
79,
-12,
-12,
77,
-96,
-62,
85,
70,
-62,
-25,
92,
-114,
5,
-72,
66,
113,
64,
36,
59,
44,
15,
49,
-34,
-29,
14,
55,
74,
-23,
40,
75,
-67,
-16,
-7,
-79,
5,
107,
20,
-94,
52,
-100,
-113,
-40,
7,
-100,
49,
0,
-24,
114,
-74,
-126,
116,
79,
-85,
-116,
98,
98,
0,
89,
111,
-32,
-119,
-81,
122,
-67,
-89,
89,
64,
73,
-84,
-105,
-97,
117,
80,
46,
108,
109,
84,
91,
108,
2,
-33,
-12,
-109,
31,
116,
-124,
-5,
-21,
51,
2,
121,
-52,
102,
94,
86,
123,
-101,
-88,
-107
] |
M. E. Dodge, J.
This is an appeal from a money judgment rendered against plaintiff. The judgment was the result of litigation which began as an action for claim and delivery under GCR 1963, 757.
Defendant borrowed substantial sums from plaintiff, a state-chartered bank. The loans were secured by equipment used in defendant’s business. Defendant defaulted on the loans. At about the same time, he filed a petition for bankruptcy. The trustee in bankruptcy was authorized to abandon the interest of the bankrupt’s estate in the collateral securing plaintiffs loans, based on a decision that the estate’s interest had no realizable value. On July 22, 1977, plaintiff filed its action for claim and delivery, seeking possession of the equipment used as collateral and a money judgment. Defendant, by agreement, surrendered possession of the collateral to plaintiff on July 25, 1977. The equipment was sold at a public sale for $135,000 on September 12, 1977. On September 22, 1977, defendant first answered plaintiffs complaint. In his answer, defendant claimed that the interest rates charged him by plaintiff had been usurious. Defendant sought to recover past inter est paid and the amount by which the proceeds of the sale of the equipment exceeded the amount owed after the usurious interest was subtracted. The judge agreed that the interest rates charged were usurious. After a nonjury trial, a judgment against plaintiff for $26,450.29 and attorney’s fees were awarded to defendant.
On appeal, plaintiff has raised several unrelated issues. Because we agree with its claim that the rate of interest charged to defendant was not usurious, we do not address its claims concerning defendant’s right as a bankrupt to assert the usury claim against plaintiff, defendant’s surrender of possession as a bar to a claim for affirmative relief, and the effect of defendant’s failure to answer the complaint in a timely fashion.
The written agreements between plaintiff and defendant provided for interest rates of 10% or 11% which rose as high as 15% after the due dates of the notes. At trial, the judge held that plaintiff’s loans to defendant were limited by the rate of interest specified in MCL 438.31; MSA 19.15, that being 7%. MCL 438.31; MSA 19.15(1) is part of a general statute concerning usury which was enacted in 1966 (1966 PA 326). The statute’s progenitor was first enacted in 1891; the present statutory usury rates were adopted in 1899.
On appeal, as at trial, plaintiff argues that it was allowed to charge the interest rates allowed to banks by MCL 487.491; MSA 23.710(191). We agree. In 1969, the Legislature enacted the Banking Code, MCL 487.301 et seq.; MSA 23.710(1) et seq. The code completely revised the state’s usury laws as applied to banks. Herstein, Michigan Usury Law, 27 Wayne L Rev 435, 465 (1981). Section 191 of the Banking Code, MCL 487.491; MSA 22.710(191), provides that banks "may collect interest and charges as follows”. Subsections (a) through (c) govern bank interest rates on credit card arrangements and uniform installment loans (including motor vehicle loans). MCL 487.491(d); MSA 23.710(191)(d) states:
"On any loan not covered by subdivision (a), (b), or (c), a bank may charge, collect, and receive interest and other charges in the same manner and at up to the maximum rate or amount permitted by law for the same type of loans made by national banking associations authorized to do business in this state.”
We believe that the trial judge erred by holding that plaintiff could not avail itself of the exceptions to the general usury rate for state banks contained in MCL 487.491; MSA 22.710(191). Where two statutes appear to be in conflict, the more specific statute will prevail especially if it was enacted subsequently to the more general one. Manville v Wayne State University Board of Governors, 85 Mich App 628, 636; 272 NW2d 162 (1978). State banks were exempted from the application of the interest rates in the usury statute by the provision of different interest rates in the Banking Code. Every word of a statute should be given meaning; no provision should be treated as surplusage or rendered nugatory. Baker v General Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980). To apply the interest rates of the general usury statute to loans made by state banks, one must ignore the interest rates made specifically applicable to banks in the Banking Code. This would render the interest rate provisions of the Banking Code entirely nugatory. If the interest rates contained in the Banking Code are given effect, however, the interest rates in the general usury statute will retain meaning because of their application to nonregulated lenders.
The trial judge reasoned that plaintiffs failure to qualify as a lender to a business entity under MCL 438.61; MSA 19.15 barred it from using the exceptions to the general interest rate contained in MCL 487.491; MSA 23.710(191). The "business entity exception” to the general interest rate of the usury law is one upon which all lenders may rely. There are many exceptions, however, that only limited classes of lenders may use. Herstein, Michigan Usury Law, supra, p 465. See also Conboy, Permissible Charges in Michigan, 62 Mich B J 540 (July, 1983). While a bank may avail itself of the "business entity exception”, it may also rely on those exceptions specifically applicable to banks alone. One such exception is MCL 487.491(d); MSA 23.710(191)(d).
The loans to defendant clearly did not fall within subsections (a) through (c) of MCL 487.491; MSA 23.710(191). Plaintiff was allowed, therefore, to collect interest in the amount permitted by law for the same type of loan made by national banking associations authorized to do business in this state. This provision in the Banking Code, introduced by amendment in 1974, added great complexity to the law governing permissible interest rates for state banks because the federal laws which govern national banks incorporate state laws concerning permissible rates of interest. Her-stein, Michigan Usury Law, supra, pp 465-466. To determine the highest permissible rate of interest allowed a state-chartered bank, one must first determine the highest rate allowed a national banking association. National banks may charge the greater of two interest rates: (a) the rate allowed by the laws of the state in which it is located to other lenders within that state (this has become known as the "most favored lender” doctrine); or (b) 1% above the discount rate on 90-day commercial paper then in effect at the Federal Reserve Bank in the national bank’s Federal Reserve District. 12 USC 85. Plaintiff in this case relies on its ability to emulate a national banking association using the "most favored lender” doctrine.
The "most favored lender” doctrine guarantees that national banking associations will not be placed at a competitive disadvantage with respect to any state-regulated lender. The doctrine was first adopted to allow a national bank to charge rates permitted only to natural persons acting as lenders in the State of Missouri. Tiffany v National Bank of Missouri, 85 US (18 Wall) 409; 21 L Ed 862 (1874). It has frequently been used to allow national banks to charge interest rates allowed by states only to small loan companies, credit card operations, and retail installment sellers. Fisher v First National Bank of Omaha, 548 F2d 255, 259-260 (CA 8, 1977); Fisher v First National Bank of Chicago, 538 F2d 1284, 1289-1290 (CA 7, 1976), cert den 429 US 1062; 97 S Ct 786; 50 L Ed 2d 778 (1977); First National Bank in Mena v Nowlin, 509 F2d 872 (CA 8, 1975); Acker v Provident National Bank, 512 F2d 729 (CA 3, 1975); Partain v First National Bank of Montgomery, 467 F2d 167 (CA 5, 1972); United Missouri Bank of Kansas City, NA v Danforth, 394 F Supp 774 (WD Mo, 1975); Keresey v Nevada National Bank, 98 Nev 316; 646 P2d 1224 (1982); State ex rel Turner v First of Omaha Service Corp of Omaha, 269 NW2d 409 (Iowa, 1978); Comm’r of Small Loans v First National Bank of Maryland, 268 Md 305; 300 A2d 685 (1973). See also Brophy, State Usury Laws and National Banks, 31 Baylor L Rev 169 (1979), and Arnold & Rohner, The Most Favored Lender Doctrine for Federally Insured Financial Institutions —What Are Its Boundaries?, 31 Cath U L Rev 1, 5-7 (1981).
The "most favored lender” doctrine has been used to allow national banks to charge the same rates of interest allowed to state savings and loan associations. Northway Lanes v Hackley Union National Bank & Trust Co, 464 F2d 855 (CA 6, 1972). The same position has been adopted by regulation by the Comptroller of the Currency. 12 CFR 7.7310(a). See also Herstein, Michigan Usury Law, supra, p 485, fn 297. The same regulation covers any "competing state-chartered or licensed lending institution”. In a staff interpretive letter, the Comptroller has specifically taken the position that state-chartered credit unions are competing lenders for purposes of the application of the "most favored lender” doctrine. OCC Staff Interpretive Letter No 255, Fed Bk L Rep (CCH), ¶ 85,419, p 77,534 (January 19, 1983). See also Herstein, Michigan Usury Law, supra, p 485, fn 296. In a formal opinion, this state’s Attorney General has agreed that national banks may consider state-chartered credit unions as competing lenders. OAG, 1981-1982, No 5894, p 157 (May 1, 1981).
Plaintiff argues that state-chartered credit unions are competing lenders for purposes of the application of the "most favored lender” doctrine. Although important distinctions exist between credit unions and banks, these distinctions do not prevent credit unions from competing for borrowers with national banks. A credit union is allowed by state law to make loans to members for "provident or productive” purposes. MCL 490.4(b); MSA 23.484(2). The proceeds of plaintiffs loans to defendant were used primarily for the operation of his forest products business. The operation of a small business is a productive purpose. Although defendant also testified that some of the loan proceeds were used for "personal business”, e.g., the purchase of a pickup truck, the term "provident or productive” is sufficiently broad to encompass this purpose as well. The class of purposes for which credit unions may loan money ("provident” and "productive” ones) is sufficiently broad that credit unions might generally be considered to be competing lenders of national banks in the areas of consumer and small business credit.
We also believe that membership in credit unions is sufficiently large that national banks might be placed at a competitive disadvantage in a significant portion of the loan market if not allowed to loan money at the same rate of interest used by state credit unions. See Herstein, Michigan Usury Law, supra, p 486. We do not consider only the actual membership of credit unions, but also their potential membership. The potential for competition in the areas of business and personal loans is sufficiently great that state credit unions must generally be considered as competing lenders of national banks as a matter of federal law.
We note that the loans in this case were larger than those made by most state credit unions. See Herstein, Michigan Usury Law, supra, p 486. The limitations on amount used by credit unions are not, however, imposed by law. We believe that a national bank may rely on the "most favored lender” doctrine without showing that a specific competing state-regulated lender was willing to make the loan in question. We look instead to the statutory and regulatory scheme governing the competing lender. If the statute allows the loan to be made by a competing lender at a specific interest rate, a national bank may avail itself of that rate so long as it complies with the "provisions of State law relating to such class of loans that are material to the determination of the interest rate”. 12 CFR 7.7310. See Keresey v Nevada National Bank, 98 Nev 316; 646 P2d 1224 (1982).
Our conviction that state credit unions and national banks must be considered as competing lenders under 12 USC 85 is bolstered by the actions of Congress subsequent to the making of the loans in this case. In 1980, Congress enacted the Depository Institutions Deregulation and Monetary Control Act of 1980, 94 Stat 132 et seq.; 12 USC 226 (March 31, 1980). Sections 521 through 523 of that act extended the "most favored lender” doctrine to state-chartered banks, state- and federally chartered savings and loan associations and state-chartered credit unions whose deposits were insured. Opinion of the General Counsel, Federal Home Loan Bank Board, Fed Bk L Rep, ¶ 98,447, p 84,777-3, 1979-1980 Decisions Transfer Binder (September 19, 1980). See Conboy, Permissible Charges in Michigan, 62 Mich B J 540, 542-543 (July, 1983). But see Comment, Extension of the Most Favored Lender Doctrine Under Federal Usury Law: A Contrary View, 27 Villa L Rev 1077 (1981-1982). The inclusion of credit unions among the lenders protected by Congress’s wide-ranging preemption of state usury laws is convincing proof that credit unions are to be considered competing lenders under the "most favored lender” doctrine. See Nicewander, The Laws of Usury As Applied to Texas Banks and Foreign Banks Lending in Texas, 14 Tex Tech L Rev 781, 791 (1983).
Because state credit unions and national bank ing associations are competing lenders under the "most favored lender” doctrine, national banking associations may charge the same rate of interest allowed by law to be charged by state credit unions. This rate is 15%. MCL 490.14; MSA 23.494. With the exception of certain classes of loans (not relevant here), the maximum rates of interest which state banks may charge is the same as that allowed to national banks. See MCL 487.491(d); MSA 23.710(191)(d). The trial judge erred reversibly by holding that the rates of interest on the loans to defendant were limited to 7%. The maximum rate allowable by law was the same rate allowed at that time to state credit unions, 15%.
Reversed. No costs, a question of first impression. | [
-16,
104,
-40,
46,
10,
112,
42,
-102,
-47,
-95,
53,
-41,
-19,
67,
21,
41,
-12,
89,
117,
122,
61,
-77,
23,
75,
-45,
-78,
-101,
-43,
48,
125,
-26,
-42,
77,
48,
66,
21,
102,
-48,
-59,
118,
78,
0,
41,
109,
-7,
73,
48,
107,
16,
9,
113,
-113,
35,
47,
29,
72,
105,
44,
107,
61,
-16,
-79,
-93,
5,
125,
85,
-127,
53,
-104,
101,
-40,
12,
-104,
49,
1,
-24,
114,
-74,
-122,
84,
97,
-103,
40,
102,
102,
-111,
37,
-51,
-100,
-104,
6,
-34,
31,
-122,
-46,
88,
11,
97,
-68,
-99,
122,
0,
-123,
-12,
-18,
20,
95,
109,
3,
-53,
-42,
-78,
-85,
116,
-98,
-117,
-17,
-93,
48,
112,
-52,
-56,
92,
38,
122,
-69,
-114,
-103
] |
Per Curiam.
Defendant Department of Public Health appeals as of right from the trial court’s orders denying defendant’s motion for summary disposition based upon lack of jurisdiction, granting plaintiff Crittenton Hospital’s motion to intervene, and granting a writ of mandamus to plaintiffs W. A. Foote Memorial Hospital and Crittenton Hospital. The trial court’s orders prevented defendant from applying newly enacted and immediately applicable review standards to plaintiffs’ applications for certificates of need that were pending when the new standards became effective. We reverse.
In September 1992, defendant, through its certificate of need commission (the commission), promulgated for public comment its proposed revised review standards for granting certificates of need (cons) to hospitals seeking to establish open heart surgery units. MCL 333.22203(4); MSA 14.15(22203)(4). As described in part 222 of the Public Health Code, MCL 333.22201 et seq.; MSA 14.15(22201) et seq. (the code), a health facility may not initiate a covered clinical service, such as open heart surgery, without first receiving a con. MCL 333.22203(3); MSA 14.15(22203X3). The revised con review standards required, among other things, that health facilities demonstrate the need to perform three hundred open heart surgical procedures a year. The con review standards in effect at the time plaintiffs filed their applications required a demonstrated need for only two hundred procedures a year. 1992 MR 12, p 170, § 4. Both plaintiffs apparently concede their inability to satisfy the three hundred procedures requirement.
In November 1992, plaintiff Crittenton Hospital, which is located in Oakland County, filed its application for a con to perform open heart surgery. Plaintiff W. A. Foote Memorial Hospital, located in Jackson County, filed its con application regarding the same clinical service in early December 1992. Defendant deemed these applications to be complete and guaranteed decisions regarding the applications by March 1993 and May 1993, respectively.
On December 15, 1992, the commission amended its proposed revisions of the con review standards after the period for public comment had passed and added the following language to subsection 5 of § 1:
(a) These standards shall apply to the review of all con applications for open heart surgery services for which the Director of the Department of Public Health has not made a final decision under Section 22231(9), being Section 333.22231(9) of the Michigan Compiled Laws, as of the effective date of these standards.
(b) In the case of an application which has been deemed submitted but which has not received a final decision by the Director on the effective date of these standards, the applicant may request and the Department shall grant, an extension of up to 60 days to the Director’s decision date established under Section 22231(9), being Section 333.22231(9) of the Michigan Compiled Laws. This period shall be used for the submission and review of any information which may be necessary to show compliance with these standards. The Department shall consider this information before a final decision is made. [1992 MR 12, p 169, § l(5)(a)(b).]
The commission then approved the revised con review standards and subsequently submitted the standards in their final form to the Governor and the Legislature, pursuant to MCL 333.22215(4); MSA 14.15(22215)(4). Because neither the Governor nor the Legislature disapproved of the proposed final action regarding the revised con review standards, the standards became "effective and binding on all persons affected by this part upon the expiration of the 45-day period or on a later date specified in the proposed final action.” MCL 333.22215(4); MSA 14.15(22215)(4). In this case, the forty-five-day period expired on February 13, 1993.
However, on February 10, 1993, three days before the February 13 effective date, Foote filed its complaint for declaratory and injunctive relief in the Jackson Circuit Court. Foote asserted that when the commission adopted subsection 1(5), it impermissibly bypassed the public comment period with respect to the addition of subsections l(5)(a) and (b) in violation of MCL 333.22215; MSA 14.15(22215). Foote also argued that on the date it filed its con application, it acquired the right to have defendant’s director consider the application in accordance with the con review standards in effect on that date.
At the hearing regarding Foote’s motion for entry of a preliminary injunction, the trial court found that defendant would violate Foote’s due process rights if it applied the new con review standards to Foote’s pending application. The court reasoned that the new review procedures would result in an automatic denial of Foote’s application before any consideration of the application on its merits. Accordingly, the court ordered the entry of a writ of mandamus requiring defendant to consider Foote’s application under the prior con review standards. The parties could not agree on the form of the order, however.
In response, defendant filed its motion for summary disposition, asserting that the trial court lacked jurisdiction because both part 222 of the code and the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., specified the exclusive administrative procedures and remedies for addressing Foote’s claims.
At this juncture, Crittenton filed both its motion to intervene as a plaintiff, pursuant to MCR 2.209(A)(3) and MCR 2.209(B)(2), and its proposed complaint against defendant. Crittenton argued that subsection 1(5) would have the same adverse effect on both Foote’s and its pending applications, that subsection 1(5) was impermissibly retroactive, that the parties’ claims arose out of the same transactions and occurrences, and that the identical question of law was at issue in both cases.
On April 2, 1993, the trial court ruled with regard to these motions and executed three separate orders. These orders (1) required defendant to review Foote’s con application under the review standards in effect when its application was filed, (2) denied defendant’s motion for summary disposition, and (3) granted Crittenton’s motion to intervene as of right. Upon Crittenton’s intervention, the first order was amended to give Crittenton the same relief as Foote and the order was certified as a final order. Defendant appeals and we reverse.
i
First, regarding defendant’s motion for summary disposition based upon lack of subject-matter jurisdiction, the issue of subject-matter jurisdiction is a question of law that this Court reviews de novo. Universal Am-Can Ltd v Attorney General, 197 Mich App 34, 37; 494 NW2d 787 (1992). We find that the trial court erred in assuming jurisdiction over this dispute. Under part 222 of the code, the Legislature specified that aggrieved parties may challenge defendant’s decision to issue or deny cons in the circuit court only after exhausting their administrative remedies, in accordance with MCL 333.22231; MSA 14.15(22231) and MCL 333.22232; MSA 14.15(22232), as well as MCL 24.271 et seq.; MSA 3.560(171) et seq. Pontiac Osteopathic Hosp v Dep’t of Public Health, 157 Mich App 583, 586; 403 NW2d 82 (1986).
Moreover, plaintiffs have failed to cite authority for their assertion that MCL 600.605; MSA 27A.605, which defines the original jurisdiction of circuit courts, obviates the rule requiring plaintiffs to exhaust their administrative remedies. Indeed, it has been held repeatedly that § 605 does not confer jurisdiction where a statute provides for exclusive administrative remedies that have not been exhausted. See, e.g., Wikman v Novi, 413 Mich 617, 646-647; 322 NW2d 103 (1982). Also, defendant correctly argues that MCL 600.6419; MSA 27A.6419 did not grant the trial court jurisdiction over this dispute, because this statutory provision applies only to Court of Claims actions.
Foote also argues that by adding the additional language of subsections l(5)(a) and (b) to the proposed revised con standards on December 15, 1992, the commission violated the express provisions of subsection 22215(3) because the added language circumvented the public comment period provided for by statute. This argument finds no support either from the facts in this case or from the promulgation procedure set forth by subsections 3 and 4 of §22215. Subsections 3 and 4 of § 22215 clearly establish a statutory scheme allowing for comments and revisions to proposed revised con standards first by the public, then by the standing committees in the Senate and House of Representatives with jurisdiction over public health matters. These proposed standards are then submitted for disapproval by either the Legislature or the Governor, ostensibly after the public and the referenced committees have had an opportunity for input. From a review of the facts in this case, it appears that the added language of subsections l(5)(a) and (b) is exactly the kind of "fine-tuning” contemplated and permitted by the statute. Contrary to plaintiffs’ assertions, the effective date of the proposed revisions, as set forth in subsection l(5)(a), is expressly authorized by subsection 22215(4) and, given our opinions on the issues discussed above, we need not address the propriety of the language set forth in subsection l(5)(b) because it is irrelevant. Moreover, the statutory scheme sets forth the exclusive method by which revised con review standards are promulgated, i.e., there appears to be no additional provisions allowing for their judicial review. If the lack of such provisions is deemed an improper omission, it is up to the Legislature to provide a cure.
Further, we do not accept plaintiffs’ unsupported assertions that exhausting their administrative remedies under the code would be futile. First, although plaintiffs’ couched their challenge to subsection 1(5) in constitutional terms, administrative review is not automatically avoided. The mere framing of an issue as constitutional neither creates such an issue nor excuses plaintiffs from pursuing statutorily imposed administrative procedures when other issues are in controversy. O’Keefe v Dep’t of Social Services, 162 Mich App 498, 505-507; 413 NW2d 32 (1987). Here, plaintiffs have no vested property or liberty right at stake, so due process challenges are unfounded and there exists no true constitutional issue. Detroit Edison Co v Michigan Air Pollution Control Comm, 167 Mich App 651, 661; 423 NW2d 306 (1988). We find no support for the trial court’s conclusion that plaintiffs had a vested right to have their con applications reviewed under the old con review standards. A right cannot be vested unless it is something more than an abstract need, desire, or unilateral expectation of the right. Detroit v Walker, 445 Mich 682, 699; 520 NW2d 135 (1994); Detroit Edison, supra at 661. Rather, plaintiffs must establish a legitimate claim of entitlement to it. Id. Here, plaintiffs had nothing more than a mere expectation that their con applications would be evaluated under the old con review standards. Thus, the trial court erred in denying defendant’s motion for summary disposition because plaintiffs failed to exhaust their administrative remedies under part 222 of the code before resorting to judicial intervention.
ii
Second, we find that the trial court abused its discretion in granting Crittenton’s motion to intervene. Both MCR 2.209(A)(3), regarding intervention as of right, and MCR 2.209(B)(2), regarding permissive intervention require a "timely application” for intervention. This Court recently acknowledged that a trial court abuses its discretion in granting a motion to intervene after a judgment favorable to the intervenor has already been entered for the original party to the suit with whom the intervenor is attempting to align. Dean v Dep’t of Corrections, 208 Mich App 144, 150-151; 527 NW2d 529 (1994). In this case, Crittenton raised its motion to intervene after the trial court issued its bench opinion requiring, via mandamus, that defendant apply the old con review standards to Foote’s con application. Following the rationale of Dean, it would be equally unfair to permit Crittenton to intervene in the case when it knew that Foote had just received a favorable ruling from the trial court. Id.
hi
Finally, we conclude that the trial court also abused its discretion in granting a writ of mandamus to plaintiffs. See Keaton v Village of Beverly Hills, 202 Mich App 681, 683; 509 NW2d 544 (1993). Mandamus is an extraordinary remedy and an inappropriate tool to review or control the exercise of discretion vested in a public official or administrative body. Tuscola Co Abstract Co, Inc v Tuscola Co Register of Deeds, 206 Mich App 508, 510-511; 522 NW2d 686 (1994). Issuance of a writ of mandamus is proper where (1) the plaintiff has a clear legal right to performance of the specific duty sought to be compelled, (2) the defendant has the clear legal duty to perform the act, and (3) the act is ministerial and does not involve the exercise of discretion or judgment. Id. In the case at bar, plaintiffs cannot satisfy these requirements.
First, plaintiffs’ applications were pending on the date when the revised con review standards took effect. As explained above, neither these applications nor their filing vested plaintiffs with any property right or interest. Rather, only after a con is issued does an applicant possess a tangible property interest that cannot be denied without due process. Downriver Nursing Associates v Dep’t of Public Health, 193 Mich App 594, 599; 484 NW2d 748 (1992). Thus, plaintiffs had no clear legal right to enforce, contrary to the trial court’s conclusion. Tuscola Co Abstract Co, supra.
Second, defendant had no clear legal duty to apply the old con review standards to plaintiffs’ pending applications. Pursuant to subsection 22215(4), once the proposed final action on the revised con review standards was submitted to the Governor and Legislature and neither disapproved of the standards, the new review standards become effective and binding on all affected persons after forty-five days, which in this case occurred on February 13, 1993. Plaintiffs’ con applications were still pending on this date. Also, defendant’s decision to include subsection 1(5) in the revised con review standards after the public comment period merely emphasized the new standards’ immediate application upon expiration of the forty-five-day waiting period as authorized by subsection 22215(4). Accordingly, we find that defendant had no legal duty to apply the old con review standards to pending or new applications after February 13, 1993. We further find no basis for striking subsection 1(5) as impermissibly applying the revised con review standards in a retroactive manner.
Third, the granting of a con is a matter within the discretion of the defendant’s director, although the decision is guided by statutory and regulatory standards. See MCL 333.22225; MSA 14.15(22225); MCL 333.22231; MSA 14.15(22231). The trial court erred, therefore, in granting plaintiffs relief in the form of mandamus. Id.
Reversed. | [
-79,
-24,
-3,
-68,
10,
-93,
16,
-102,
67,
-85,
103,
115,
-65,
-30,
-115,
111,
-92,
103,
85,
113,
-43,
-77,
83,
97,
-37,
-14,
-73,
-41,
113,
-1,
-10,
53,
72,
120,
-118,
-11,
98,
-62,
-55,
80,
-122,
-101,
-71,
-63,
81,
-62,
40,
107,
90,
15,
117,
-114,
-95,
36,
86,
-49,
-23,
-88,
89,
45,
81,
-7,
-128,
5,
93,
4,
-95,
38,
27,
1,
-48,
56,
-104,
48,
16,
-7,
16,
-90,
-58,
54,
75,
-7,
8,
103,
98,
1,
24,
-19,
104,
-82,
31,
-50,
-113,
-89,
-109,
57,
105,
2,
-105,
-67,
116,
16,
15,
124,
-18,
-60,
94,
44,
-124,
-122,
-112,
-77,
-49,
100,
-120,
-61,
-50,
7,
16,
17,
-33,
-14,
95,
-121,
49,
27,
-2,
-102
] |
Michael J. Kelly, J.
Plaintiff appeals as of right an order of the circuit court dismissing his claim against defendant for personal injury. Defendant cross appeals as of right orders denying its motions for summary disposition and for a directed verdict.
Plaintiff was injured when he tripped over the remains of a metal post that protruded from a raised concrete entranceway to a public restroom. The post and concrete pad had once supported privacy screens that stood between the post and the wall of the restroom. At the time of the accident, the restroom was not in use, and there was evidence that it was padlocked.
Shortly before trial, defendant amended its witness list to add three witnesses for testimony regarding the extent of plaintiff’s injuries. At the close of plaintiff’s case, defendant moved for a directed verdict under MCR 2.515, claiming that plaintiff had failed to produce evidence that the structure on which he tripped fell under the "public use” exception to governmental immunity. The trial court indicated that it would take the motion under advisement over the weekend. The court permitted full discovery of the new witnesses.
Meanwhile, the new witnesses experienced incidents of vandalism and received numerous telephone calls and threats that they would be killed if they testified. Upon reconvening the case, the trial court conferred with the attorneys. Following the conference, the trial court held an evidentiary hearing, during which extensive testimony was elicited and affidavits received from the witnesses regarding the threats and vandalism. These incidents were attributed to plaintiff. Defendant subsequently moved for dismissal with prejudice on the basis of witness tampering. It had stated its intent to bring such a motion at the conference. The trial court granted the motion. It also denied defendant’s earlier motion for a directed verdict.
The central issue on appeal is whether dismissal with prejudice was a proper sanction. Plaintiff argues that the trial court lacked authority to impose such a drastic sanction. The trial court held that such authority was "inherent.” It also found that plaintiff’s actions justified the presumption that his claim lacked merit.
Plaintiff urges that Michigan court rules and statutes do not adequately address a court’s authority to sanction the kind of misconduct in this case. However, it would be an absurd anomaly to recognize a court’s authority to dismiss an action for lack of progress, see MCR 2.502, or for discovery abuses, see MCR 2.313, and yet leave the court impotent to control its own proceedings when they have been tainted by much more flagrant miscon duct. We believe the court has inherent authority to sanction misconduct.
The authority to dismiss a lawsuit for litigant misconduct is a creature of the "clean hands doctrine” and, despite its origins, is applicable to both equitable and legal damages claims. Buchanan Home & Auto Supply Co v Firestone Tire & Rubber Co, 544 F Supp 242, 244-245 (D SC, 1981). The authority is rooted in a court’s fundamental interest in protecting its own integrity and that of the judicial process. Id. See also Mas v Coca-Cola Co, 163 F2d 505, 507 (CA 4, 1947). While this Court has recognized that substantive distinctions between law and equity survived the procedural merger of law and equity, see Clarke v Brunswick Corp, 48 Mich App 667, 669; 211 NW2d 101 (1973), we do not believe that the distinction prevents a court of law from invoking the "clean hands doctrine” when litigant misconduct constitutes an abuse of the judicial process itself and not just a matter of inequity between the parties. The "clean hands doctrine” applies not only for the protection of the parties but also for the protection of the court. Buchanan Home, supra at 244. "[Tampering with the administration of justice ... is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society.” Hazel-Atlas Glass Co v Hartford-Empire Co, 322 US 238, 246; 64 S Ct 997; 88 L Ed 1250 (1944). See also Precision Instrument Mfg Co v Automotive Maintenance Machinery Co, 324 US 806, 814-815; 65 S Ct 993; 89 L Ed 1381 (1945).
Although plaintiff contends that the cases cited by the trial court in support of the order of dismissal involved violations of specific court rules or orders, see, e.g., Roadway Express, Inc v Piper, 447 US 752; 100 S Ct 2455; 65 L Ed 2d 488 (1980), plaintiff also concedes that at least one of these cases recognized the inherent authority of courts to sanction litigant misconduct, see id. at 764-765. We note that "[b]ecause [these] inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion.” Id. at 764. See also Hanks v SLB Management, Inc, 188 Mich App 656, 658; 471 NW2d 621 (1991).
We do not believe the trial court’s decision to dismiss the action was the result of unrestrained discretion or imprudence. The court clearly acknowledged the harshness of the sanction and balanced it against the gravity of plaintiff’s misconduct. The nature of the threats and the actual vandalism committed permanently deprived the court of the opportunity to hear the testimony of witnesses who would be able to testify openly and without fear. Dismissal under these circumstances was not improper.
Nor was dismissal a violation of plaintiff’s due process rights. Due process in civil cases generally requires notice of the nature of the proceedings, an opportunity to be heard in a meaningful time and manner, and an impartial decisionmaker. Klco v Dynamic Training Corp, 192 Mich App 39, 42; 480 NW2d 596 (1991). The opportunity to be heard does not mean a full trial-like proceeding, but it does require a hearing to allow a party the chance to know and respond to the evidence.
Here, plaintiff clearly was put on notice of defendant’s intent to move for dismissal when his attorney attended the conference regarding the alleged misconduct. The court noted that a new and very serious issue had been interjected into the case. The court conducted a hearing and found that plaintiff attempted "to extort favorable evidence by death threats.” Plaintiff had a full oppor tunity to cross-examine the witnesses and argue his case to the court. Accordingly, plaintiff was not denied due process.
In light of our holding regarding the order of dismissal, we need not address the issues in defendant’s cross appeal.
Affirmed. | [
-16,
-24,
-36,
-114,
11,
96,
48,
-74,
97,
-125,
119,
-45,
45,
-62,
-99,
59,
-3,
127,
-40,
123,
-52,
-93,
71,
-61,
-10,
-77,
-14,
71,
-80,
-50,
100,
123,
76,
112,
66,
-43,
70,
8,
-59,
82,
-114,
-115,
-86,
-24,
-103,
72,
112,
59,
20,
15,
113,
-33,
-29,
46,
25,
-53,
73,
40,
-53,
-67,
114,
-80,
-119,
5,
123,
0,
-77,
52,
30,
39,
-16,
90,
88,
48,
18,
-72,
113,
-74,
19,
116,
105,
-101,
0,
98,
98,
16,
21,
-25,
-27,
-7,
47,
124,
-114,
-89,
-39,
64,
9,
5,
-98,
-67,
96,
54,
-90,
-20,
-17,
93,
95,
44,
7,
-53,
50,
-79,
-21,
117,
-44,
-125,
-61,
35,
20,
117,
-52,
-24,
94,
67,
51,
-33,
-18,
-106
] |
Per Curiam.
The present appeals arise from the attempt of appellant, Bridgette Smith, to acquire legal custody of her stepson, Kalvan J. R. Smith. On March 13, 1979, Kalvan’s natural parents, Paul Robert Smith and Theresa Elaine Smith, were divorced in Mecosta County Circuit Court. Custody of Kalvan was awarded to Paul. Appellant began living with Paul and Kalvan in January, 1980, and appellant and Paul were married on February 14, 1982. On approximately February 24, 1982, Paul was arrested and charged with criminal sexual conduct involving appellant’s natural daughter from a previous marriage. Paul pled guilty on April 22, 1982, and was sentenced to from 3 to 15 years imprisonment.
On April 2, 1982, appellant and Paul petitioned the Mecosta County Probate Court to adopt Kalvan. The petition was thereafter rejected because of Paul’s conviction for criminal sexual conduct.
On June 10, 1982, a petition for termination of the parental rights of Paul and Theresa was filed pursuant to MCL 712A.2(b), subds (1), (2); MSA 27.3178(598.2)(b), subds (1), (2). Since appellant had physical custody of Kalvan after Paul’s imprisonment, she was ordered to appear and bring Kalvan to the adjudication hearing on the petition scheduled for August 19, 1982. Appellant’s attorney filed an appearance on her behalf in the probate proceedings and requested postponement of the adjudication hearing on the basis that the probate court only had jurisdiction to enter temporary orders regarding Kalvan since the circuit court had continuing jurisdiction over the child due to the divorce proceedings.
On August 6, 1982, the prosecutor obtained an ex parte order from the circuit court waiving jurisdiction over Kalvan. The order was filed with the probate court on August 10, 1982, and appellant’s attorney was informed of the order by letter.
On August 16, 1982, appellant filed two motions in the circuit court: a motion to intervene and amend the judgment of divorce and a motion to set aside the order waiving jurisdiction. These motions were heard on December 9, 1982, and both were denied by the circuit judge.
The parental rights termination hearing was held on August 19, 1982. Appellant’s request for an adjournment, due to her attorney’s inability to be present because of a trial in a previously scheduled matter, was denied, the probate judge finding that appellant was not a party to the proceeding and had no standing to be heard. After a hearing, the judge ordered that the parental rights of Paul and Theresa be terminated and that Kalvan be made a permanent ward of the court.
Appellant presently appeals from the probate court’s order terminating the rights of Paul and Theresa and from the circuit court’s orders denying her motion to intervene and her motion to set aside the order waiving jurisdiction. The matters were consolidated on appeal.
The first issue to be resolved is whether appellant has standing to appeal either the circuit court orders or the probate court order terminating the parental rights of Paul and Theresa Smith. GCR 1963, 209.1 provides for intervention of right:
"(1) when a statute of this state or a court rule confers an unconditional right to intervene; or
"(2) by stipulation of all the parties; or
"(3) upon timely application when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant may be bound by a judgment in the action; or
"(4) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or officer thereof.”
We believe that subsection (3) applies to the present case. Appellant’s motion to intervene was timely, as it was filed on August 16, 1982, prior to the August 19, 1982, date set for the hearing on the termination petition in probate court. Appellant was informed of the impending court proceeding on July 26, 1982, only three weeks before her motion to intervene in the prior circuit court proceeding was filed.
In order for subsection (3) to apply, appellant must also show that the representation of her interest by existing parties is or may be inadequate, and that she may be bound by a judgment in the action. D'Agostini v Roseville, 396 Mich 185; 240 NW2d 252 (1976). Although the facts in this case are atypical and we have located no other cases discussing this issue under similar facts, we believe that appellant has shown that the representation of her interest by the existing parties may be inadequate and that she may be bound by a judgment. Although appellant’s husband, the child’s natural father, expressed a desire during a portion of the proceedings to have appellant continue physical custody of Kalvan, his representation of her position was minimal. Although appellant had no legally recognizable relationship to Kalvan, she did have an interest in the proceedings because she had physical custody of him. She was bound by the circuit court and probate court orders because her relationship with the child was terminated. The term "bound” in the court rule does not require that the appellant be bound in the res judicata sense. D'Agostini, supra, p 190. Although we find it to be a close question, we believe that the circuit court erred by denying appellant’s motion to intervene.
The basis for the circuit court’s order must be further examined, however. The motion to intervene was denied because the circuit court judge had already waived jurisdiction of the child to the probate court. In fact, the motion was not heard until after the probate court had terminated the parental rights of Paul and Theresa Smith.
A circuit court having jurisdiction pursuant to divorce proceedings may waive its jurisdiction over a minor child in accordance with MCL 552.16; MSA 25.96:
"Upon pronouncing a sentence or decree of nullity of a marriage, and also upon decreeing a divorce, whether from the bond of matrimony or from bed and board, the court may make such further decree as it shall deem just and proper, concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of the parents the children, or any of them, shall remain: Provided, That the court is hereby authorized to waive jurisdiction of any minor children under the age of 17 in the decree of divorce, or after the decree of divorce, to the probate court of the county to be governed by the laws of this state with respect to dependent and neglected children under the age of 17 years”.
Jurisdiction over minor "dependent and neglected children” may also be waived by the circuit court during the pendency of divorce proceedings. MCL 552.15; MSA 25.95. In order to effectively waive jurisdiction to a probate court, this Court has held that the circuit court must make a preliminary finding that the child is dependent and neglected. Moses v Oakland Circuit Judge, 14 Mich App 265; 165 NW2d 497 (1968); Foy v Foy, 22 Mich App 514; 177 NW2d 681 (1970); Krajewski v Krajewski, 125 Mich App 407; 335 NW2d 923 (1983). An invalid proceeding in a circuit court regarding waiver of jurisdiction to the probate court is a jurisdictional defect which renders the circuit court’s order void and open to attack at any time. Jernigan v Jernigan, 344 Mich 511; 73 NW2d 910 (1955).
The circuit court judge here entered an ex parte order waiving jurisdiction to the probate court. Appellant received no notice of this order, even though her attorney had filed an appearance in the probate proceeding. No hearing was held to determine whether Kalvan was a "dependent and neglected child” under the statute and the court’s order makes no finding in that regard. We there fore hold that the circuit court’s order waiving jurisdiction to the probate court was void.
Since a probate court has only the jurisdiction to issue "temporary orders” which are "deemed advisable or necessary for the protection of such child” when another court has continuing jurisdiction, the probate court’s order permanently terminating the parental rights of Paul and Theresa Smith was invalid. MCL 712A.2(b); MSA 27.3178(598.2)(b); Rozelle v Dora, 103 Mich App 607; 303 NW2d 43 (1981).
The order of the circuit court waiving jurisdiction is reversed and the case is remanded to that court. A hearing shall forthwith be held to determine if jurisdiction should be waived to the probate court. The probate court order terminating the parental rights of the child’s natural parents is also reversed, that court being without jurisdiction to enter such order.
If the circuit court determines, upon a prima facie showing of neglect, that jurisdiction may properly be waived to the probate court, the probate court must assume jurisdiction under some portion of MCL 712A.2; MSA 27.3178(598.2). In the event that jurisdiction is waived by the circuit court, we direct the probate court to consider the application of our decision in In re Carlene Ward, 104 Mich App 354; 304 NW2d 844 (1981), and the Supreme Court’s recent decision in In re Taurus F., 415 Mich 512; 330 NW2d 33 (1982).
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. Costs to appellant. | [
-16,
-22,
-51,
62,
27,
-95,
74,
53,
115,
-13,
103,
-45,
-19,
70,
0,
105,
43,
99,
97,
121,
-61,
-77,
87,
-31,
122,
-13,
-72,
-43,
-78,
95,
-28,
-9,
88,
96,
-54,
87,
70,
-117,
-91,
-44,
-122,
-127,
-87,
-3,
81,
-122,
52,
107,
18,
15,
117,
-98,
-78,
-86,
61,
69,
40,
42,
91,
-66,
64,
-72,
-113,
5,
95,
6,
-77,
-92,
-66,
-124,
72,
110,
-104,
57,
0,
-24,
114,
54,
-122,
116,
110,
-39,
-115,
32,
98,
-128,
77,
-11,
-8,
-40,
-2,
126,
-99,
-90,
-103,
88,
65,
68,
-74,
-3,
76,
84,
43,
-6,
99,
-51,
39,
-20,
4,
-50,
30,
-111,
13,
-71,
14,
19,
-29,
-128,
32,
53,
-49,
-24,
84,
67,
113,
-101,
-50,
-6
] |
K. N. Hansen, J.
In this action, plaintiff sought to recover damages for injuries allegedly suffered by Justin Mayberry when bitten by a dog. The circuit court granted summary judgment for defendants Alfred and Carol Pryor. Although the circuit court did not specify the subrule under which it acted, it is apparent from the record that the court held that there was no genuine issue as to any material fact and that defendants Pryor were entitled to judgment as a matter of law, GCR 1963, 117.2(3). This Court granted plaintiffs delayed application for leave to appeal.
The affidavits and other evidence before the circuit court indicate that, at the time of the accident, Justin Mayberry was just short of four years old and was temporarily in the foster care of defendants Pryor pursuant to a probate court order. Plaintiffs complaint alleged that Justin was attacked by a dog belonging to defendants Day when Justin was left alone and unattended on the front porch or in the yard of the residence of defendants Pryor. The complaint further alleged that defendants Pryor failed to provide Justin with supervision adequate to assure his safety and instead recklessly and negligently allowed him to enter into a situation foreseeably dangerous to his person.
Summary judgment for defendants Pryor was based on parental immunity. In Plumley v Klein, 388 Mich 1, 8; 199 NW2d 169 (1972), the Court stated the rule of parental immunity which now prevails in Michigan:
"A child may maintain a lawsuit against his parent for injuries suffered as a result of the alleged ordinary negligence of the parent. Like our sister states, however, we note two exceptions to this new rule of law: (1) where the alleged negligent act involves an exercise of reasonable parental authority over the child; and (2) where the alleged negligent act involves an exercise of reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.” (Footnote omitted.)
For other jurisdictions adopting this rule and the two exceptions, see Goller v White, 20 Wis 2d 402; 122 NW2d 193 (1963), Silesky v Kelman, 281 Minn 431; 161 NW2d 631 (1968), and Rigdon v Rigdon, 465 SW2d 921 (Ky, 1971).
In Hush v Devilbiss Co, 77 Mich App 639, 647; 259 NW2d 170 (1977), the Court concluded that the exceptions to the abolition of parental immunity stated in Plumley could be invoked by a person standing in loco parentis to the child. The Court explained the factors relevant to determination of in loco parentis status:
"Legally, the assumption of in loco parentis status is a question of intent. Intent to assume parental status can be inferred from the acts and declarations of the parties. Some factors to consider are the age of the child; the degree to which the child is dependent on the person claiming to be standing in loco parentis; the amount of support, if any, provided; the extent to which duties commonly associated with parenthood are exercised. Providing financial support may be an unimportant consideration in light of the relative situations of the person standing in loco parentis and the real parents. In some cases, while providing financial support may be unnecessary, the benefits flowing to the child by reason of someone’s assumption of the other infinitely various parental duties may be most essential.” (Footnote and citations omitted.) 77 Mich App 649.
In re Allison, 336 Mich 316, 321; 58 NW2d 90 (1953), contains the following definition:
"A foster father is defined as a man who has performed the duties of a parent to the child of another by rearing the child as his own child.”
Nothing in the statutes governing temporary placement of dependent or neglected children by the probate court in foster care is inconsistent with this definition. See MCL 712A.18; MSA 27.3178(598.18), MCL 712A.19; MSA 27.3178(598.19), and MCL 400.18c; MSA 16.418(3). By assuming temporary foster care of Justin, defendants Pryor demonstrated their intent to perform the duties of parents to the child and thus their intent to temporarily assume parental status. We conclude that, as a matter of law, persons who assume temporary foster care of a child pursuant to probate court order stand in loco parentis to the child. For a decision from another jurisdiction reaching the same result, see Goller v White, supra.
The gravamen of plaintiffs complaint is negligent parental supervision. In cases interpreting the Plumley rule, this Court has determined that an action for negligent parental supervision is barred because it involves the parent’s exercise of authority over the child and thus falls within the first exception stated in Plumley to the abolition of parental immunity. Paige v Bing Construction Co, 61 Mich App 480, 483-486; 233 NW2d 46 (1975); McCallister v Sun Valley Pools, Inc, 100 Mich App 131, 137-139; 298 NW2d 687 (1980); American States Ins Co v Albin, 118 Mich App 201, 207; 324 NW2d 574 (1982). Plaintiff relies on Cole v Sears, Roebuck & Co, 47 Wis 2d 629, 634; 177 NW2d 866 (1970), in which the court held that a parent’s supervision of a child’s play did not fall within the second exception to the abolition of parental immunity, that exception being for the exercise of parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. The Wisconsin court explained:
"Supervision of a child’s play indeed involves an area which is essentially parental, but society does not exact a legal duty with respect to such an obligation as is the case with providing a child with food, housing, medical and dental services and education.”
We do not agree with the Wisconsin court for two reasons. First, as was pointed out in Paige, 61 Mich App 484, the Wisconsin court considered only the second exception to the abolition of immunity. Michigan courts have relied on the first exception to reach a contrary conclusion. Second, we cannot account for the Wisconsin court’s statement that society does not exact a legal duty from a parent with respect to supervision of a child’s play. Where there is no legal duty, there can be no actionable negligence. Butrick v Snyder, 236 Mich 300, 306; 210 NW 311 (1926). The reasoning by which the Wisconsin court concluded that the action was not barred by parental immunity would seem to leave the child without a cause of action at all.
In Grodin v Grodin, 102 Mich App 396, 402; 301 NW2d 869 (1980), the Court concluded that the use of the word "reasonable” in the second exception stated in Plumley to the abolition of parental immunity required a determination by the trier of fact and therefore precluded summary judgment. "Reasonable” also appears in the first exception. However, in Paige, supra, an opinion by the author of Grodin, the Court noted the impossibility of determining on a case-by-case basis the extent of the first Plumley exception, 61 Mich App 485-486, and held that a complaint for negligent parental supervision failed to state a claim on which relief could be granted. Because the first rather than the second Plumley exception is at issue here, Paige rather than Grodin is the controlling authority.
Moreover, we believe that Grodin was incorrectly decided. The Grodin Court’s reasoning was as follows:
"We reverse and remand for a determination of the 'reasonableness’ of the alleged negligent conduct. A determination that the defendant’s conduct was unreasonable would take the action out of the second exception of Plumley, supra, and thus parental immunity would not be available to defendant Roberta Grodin. A determination by a jury that the defendant mother acted reasonably in her exercise of her discretion would give rise to Plumley parental immunity and absolve her of liability.” 102 Mich App 401.
The Grodin Court misinterpreted Plumley when it focused on the reasonableness of the alleged negligent conduct. An examination of the language from Plumley previously quoted shows that the Plumley Court used the word "reasonable” to limit the scope of parental authority and parental discretion falling within the exceptions. Proper application of the Plumley exceptions requires a determination, not of the reasonableness of the defendant’s conduct, but rather of the scope of "reasonable parental authority” and of "reasonable parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care”.
The judiciary has the power to change the common law. Placek v Sterling Heights, 405 Mich 638, 656; 275 NW2d 511 (1979). In Plumley, the Court exercised that power by abolishing common-law parental immunity with certain exceptions. Because no authority permits the judiciary to delegate to the jury the power to change the common law, questions concerning the scope of the Plumley exceptions must be questions of law, and not questions of fact. Moreover, if the scope of the Plumley exceptions was for the trier of fact to determine, the law of parental immunity would vary according to the specific jury impaneled or the specific part of the state in which the case was tried. A similar consideration was among the reasons stated in Cassidy v McGovern, 415 Mich 483, 501-502; 330 NW2d 22 (1982), for the Court’s conclusion that application of the phrase "serious impairment of body function”, MCL 500.3135; MSA 24.13135, was primarily a question of law to be resolved by courts, not juries. We conclude that, despite the uses of the word "reasonable” in the Plumley exceptions, determination of whether conduct falls within the exceptions is a question of law for the court. The circuit court did not err by granting summary judgment for defendants Pryor.
Afiirmed. | [
-46,
-28,
-36,
-82,
11,
97,
56,
82,
71,
-61,
-27,
-45,
-85,
-60,
5,
41,
-37,
-21,
117,
121,
81,
-77,
19,
66,
-102,
-78,
-80,
85,
-93,
111,
-28,
-2,
29,
112,
-54,
85,
66,
11,
-47,
-106,
6,
-123,
-86,
-27,
-103,
-126,
56,
123,
20,
15,
49,
31,
-93,
46,
-72,
111,
-24,
106,
-38,
-67,
-128,
121,
-117,
5,
126,
18,
-93,
102,
-103,
39,
122,
90,
-124,
61,
16,
-8,
114,
-78,
-122,
116,
105,
-103,
8,
102,
102,
-128,
13,
-27,
-39,
-120,
47,
126,
9,
-90,
-34,
105,
11,
13,
-73,
-67,
112,
16,
44,
-40,
-89,
-36,
94,
-20,
102,
-49,
84,
-109,
-115,
32,
126,
1,
-57,
37,
38,
113,
-50,
-28,
92,
68,
127,
-37,
-98,
-102
] |
Mackenzie, J.
This case involves a negligence claim. Plaintiffs appeal as of right from an order granting summary disposition for defendant pursuant to MCR 2.116(C)(8). We affirm.
Plaintiff Linda Premo was injured when the vehicle in which she was riding was struck by a vehicle owned and driven by Eugene R. Kusowski, an off-duty employee of defendant General Motors, who was allegedly intoxicated at the time of the accident.
Plaintiffs alleged that Kusowski was supposed to work at defendant’s plant on June 8, 1991, from 4:00 p.m. until midnight, but that he left the workplace without authorization at approximately 11:00 p.m. They alleged that he consumed alcohol before and during work, and that when he left defendant’s premises at 11:00 p.m., he went directly to a bar and consumed more alcohol. The accident occurred approximately IV2 hours later, at 12:30 a.m. on June 9, 1991.
The trial court dismissed plaintiffs’ negligence claim on the basis that they had failed to plead an actionable legal duty. Plaintiffs’ complaint alleged that General Motors had a policy or "practice, procedure and/or custom” of not allowing employees to leave the plant in their automobiles while intoxicated, but instead detaining them and arranging alternative transportation to their homes. Plaintiffs alleged that this practice was for the protection of both the employee and the motoring public, and that, therefore, General Motors owed Premo, as a member of the motoring public, a duty not to allow Kusowski to leave the plant in his automobile in an intoxicated state.
On appeal, plaintiffs contend that the trial court erred in concluding that General Motors did not owe Premo a duty to detain Kusowski and arrange alterative transportation for him. We disagree.
The employer-employee relationship between defendant and Kusowski did not give rise to a duty to Premo. Although fundamentally a dramshop case, Millross v Plum Hollow Golf Club, 429 Mich 178; 413 NW2d 17 (1987), is instructive here. In Millross, an employer served cocktails to an employee at a workplace dinner. While driving home, the employee struck and killed the plaintiff’s decedent. The plaintiff sued the employer, alleging that it was negligent in failing to properly supervise the employee or provide him with an alternative means of transportation home. The Supreme Court held that "the special relationship between employer and employee does not of itself require the employer to protect third parties from off-premises injuries, either by supervising the consumption of alcohol or providing alternate transportation.” 429 Mich 196. See also 2 Restatement Torts, 2d, § 317, p 125.
Plaintiffs acknowledge the holding of Millross, but contend that they nevertheless have stated a claim based on the principle that one who voluntarily assumes a duty has an obligation to exercise some degree of care and skill in the performance of what he has undertaken. See Lindsley v Burke, 189 Mich App 700, 704; 474 NW2d 158 (1991); 2 Restatement Torts, 2d, § 324A, p 142. Plaintiffs’ reliance on this principle is misplaced. Defendant’s internal policy of preventing intoxicated employ ees from driving did not, as a matter of public policy, amount to General Motors’ assumption of a duty to protect the public at large. See Buczkowski v McKay, 441 Mich 96, 99, n 1; 490 NW2d 330 (1992). The trial court’s opinion aptly states the public policy reasons militating against imposing a duty under these facts.
Significant and compelling public policy reasons support a conclusion of an insufficient "undertaking” in this case. Alcohol and substance abuse is a serious societal problem causing significant human suffering and economic loss. In the work setting alcohol use and related problems undoubtedly cost employers and the national economy hundreds of millions, if not billions, of dollars each year in lost work time, efficiency, product quality, health and medical costs, workers’ compensation, etc. To impose liability upon an employer who, by means of work rules, policies, etc. undertakes to address the problem of alcohol use and/or abuse is clearly against public policy and would encourage employers to abandon all efforts which could benefit such employees in order to avoid future liability.
Questions regarding duty are for the court to decide as a matter of law. Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500; 418 NW2d 381 (1988). Duty involves the question whether the defendant is under any obligation for the benefit of the particular plaintiff and concerns the problem of the relationship between individuals that imposes upon one a legal obligation for the benefit of the other. Buczkowski, supra, p 100, citing Friedman v Dozorc, 412 Mich 1, 22; 312 NW2d 585 (1981). It is an expression of the sum total of those considerations of policy that leads the law to say that the plaintiff is entitled to protection. Buc zkowski, supra. In this case, the relationship between defendant and Premo was too remote to obligate defendant to protect her.
Affirmed. | [
-48,
-6,
-40,
-116,
8,
96,
58,
-98,
101,
-61,
53,
-45,
-17,
-29,
25,
33,
-2,
127,
117,
43,
-3,
-77,
7,
66,
-10,
-69,
-32,
-63,
-65,
74,
116,
114,
77,
112,
10,
-43,
-26,
-38,
-44,
-34,
-118,
4,
-72,
-24,
89,
-112,
48,
-6,
-44,
79,
49,
-98,
-29,
46,
16,
79,
40,
40,
77,
-83,
-32,
112,
-119,
5,
127,
16,
-86,
68,
-100,
-89,
-40,
27,
18,
-79,
40,
104,
112,
-74,
-126,
-12,
105,
-103,
-124,
34,
98,
-96,
25,
-25,
-52,
-104,
28,
58,
31,
-123,
88,
57,
105,
3,
-106,
-65,
122,
17,
4,
124,
-2,
93,
31,
96,
3,
-49,
-106,
-77,
-51,
100,
86,
-125,
-17,
7,
32,
97,
-34,
-66,
92,
5,
115,
27,
-61,
-122
] |
Neff, P.J.
Plaintiff Tyrone Allen and third-party defendant Farmers Insurance Exchange appeal as of right in this no-fault insurance case from the circuit court’s order granting summary disposition to defendant Farm Bureau Insurance Company and to Farmers. We affirm.
i
Plaintiff was injured when the car in which he was a passenger was involved in an accident. Because plaintiff could not identify the insurer responsible for paying no-fault benefits for his injuries, he filed a claim for personal protection insurance benefits under the no-fault act with Farm Bureau, as the assignee of the Assigned Claims Facility.
A
Although Farm Bureau paid plaintiff’s medical claims, it denied plaintiff’s claim for wage-loss benefits. As a result, plaintiff initiated this suit one year after his accident. During the course of discovery, Farm Bureau discovered that the driver of the car in which plaintiff was injured was covered by a policy issued by Farmers, and thus, Farmers was a higher priority insurer under the no-fault act.
Accordingly, Farm Bureau initiated a third-party suit against Farmers for reimbursement of the benefits it paid to plaintiff. Farm Bureau’s suit was filed more than one year after plaintiff’s acci dent. Shortly thereafter, and again, more than one year after his accident, plaintiff amended his complaint to add Farmers as a defendant in his action seeking wage-loss benefits.
B
1
After Farmers was added to this litigation, Farm Bureau filed a motion for summary disposition under MCR 2.116(0(10), arguing that Farmers was a higher priority insurer and that any sums paid by Farm Bureau to plaintiff were the responsibility of Farmers. The trial court agreed and granted Farm Bureau’s motion. The parties do not dispute this ruling on appeal.
2
After the court decided Farm Bureau’s motion for summary disposition, it considered Farmers’ summary disposition motion. Farmers argued that both Farm Bureau’s and plaintiff’s suits were time-barred by § 3145(1) of the no-fault act, which establishes a one-year period of limitation for the recovery of personal protection insurance benefits. MCL 500.3145(1); MSA 24.13145(1). The trial court agreed with respect to plaintiff and dismissed plaintiff’s complaint. It is from this order that plaintiff appeals.
With regard to Farm Bureau’s suit, however, the court determined that the two-year period of limitation in § 3175(3) of the no-fault act applied. That statutory provision provides:
An action to enforce rights to indemnity or reimbursement against a third party shall not be commenced after the later of 2 years after the assignment of the claim to the insurer or 1 year after the date of the last payment to the claimant. [MCL 500.3175(3); MSA 24.13175(3).]
Accordingly, the trial court ordered Farmers to pay Farm Bureau $29,355.39, the amount of benefits Farm Bureau paid to plaintiff. It is from this order that Farmers appeals.
n
With respect to Farmers’ appeal, Farmers argues that § 3145(1) applies because Farm Bureau is the subrogee of plaintiff and, as such, stands in the shoes of plaintiff. Thus, according to Farmers, to the extent plaintiff’s cause of action against it is barred by the limitation period in § 3145(1), so too is Farm Bureau’s.
Conversely, Farm Bureau argues, and the lower court agreed, that it brought its claim for reimbursement not as a subrogee of plaintiff, but independently, pursuant to its statutory right to reimbursement under MCL 500.3172(1); MSA 24.13172(1). Thus, according to Farm Bureau, the two-year limitation period in § 3175(3) applies. We agree.
A
In order to determine which limitation period applies, the trial court was required to interpret the relevant statutory provisions of the no-fault act. Accordingly, we review de novo the lower court’s determination. People v Young, 206 Mich App 144, 154; 521 NW2d 340 (1994).
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. People v Stanaway, 446 Mich 643, 658; 521 NW2d 557 (1994). If reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. Dep’t of Social Services v Brewer, 180 Mich App 82, 84; 446 NW2d 593 (1989). When two statutory provisions appear to be in 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).
B
An examination of the statutory provisions here in question demonstrates that the one-year period of limitation in § 3145(1) does not apply to Farm Bureau’s claim for reimbursement.
Section 3145(1) provides in pertinent part:
An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury.
If this statute were the only relevant one that existed, we would agree with Farmers that Farm Bureau would be subrogated to plaintiffs rights and remedies.
However, the no-fault act provides assignee insurers with an independent right of recovery:
A person entitled to claim because of accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle in this state may obtain personal protection insurance benefits through an assigned claims plan if ... no personal protection insurance applicable to the injury can be identified .... In such case unpaid benefits due or coming due are subject to being collected under the assigned claims plan, and the insurer to which the claim is assigned ... is entitled to reimbursement from the defaulting insurers to the extent of their financial responsibility. [MCL 500.3172(1); MSA 24.13172(1). Emphasis added.]
Thus, Farm Bureau’s statutorily created right to reimbursement is independent of the party to whom it paid benefits, here, plaintiff.
c
After recognizing this statutorily created right, Farm Bureau, and the lower court, then reasoned that the two-year limitation period in § 3175(3) must apply. We agree.
1
Section 3175(3) provides a limitation period for actions brought by an assignee insurer for indemnity or reimbursement. Thus, because it is specific to reimbursement actions such as this one, it must prevail over § 3145(1). See Gebhardt, supra.
Further, if we accepted the position that the one-year limitation period in § 3145(1) applies, then assignee insurance companies could be left without a remedy against a defaulting insurer.
It is entirely within the realm of possibility that an injured person would wait the full year to make a claim under the assigned claims plan. In such a situation, the assignee insurer would be without a remedy against a defaulting insurer because the one-year limitation in § 3145(1) al ready would have run with respect to both the injured person and the assignee insurer as subrogee of the injured person. Such an interpretation of the no-fault act would create an absurd result, which is in contravention to well-settled rules of statutory construction. See Rowell v Security Steel Processing Co, 445 Mich 347, 354; 518 NW2d 409 (1994).
2
Although Farmers cites Allstate Ins Co v Faulhaber, 157 Mich App 164; 403 NW2d 527 (1987), for the proposition that the reference to "third parties” in § 3175(3) is limited to tortfeasors, we do not discern that holding from our reading of Faulhaber. The issue there was whether to apply the limitation period in § 3175(3) retroactively. While the factual situation of Faulhaber did include an insurance company suing either an uninsured motorist or a tortfeasor, this Court did not limit § 3175(3) to the facts of that case.
3
We also disagree with Hunt v Citizens Ins Co, 183 Mich App 660; 455 NW2d 384 (1990), to the extent it held that the one-year limitation period in §3145(1) is applicable to an assignee insurer seeking reimbursement from another insurer under the assigned claims plan of the no-fault act. Although this Court in Hunt arguably reached such a conclusion, it does not appear that that specific issue was before the Court. Rather, the Court, when discussing the defaulting insurer’s liability to the assignee insurer, grouped the assignee insurer and the injured person together, in essence assuming subrogation without discussion. Therefore, we decline to follow the implied holding of Hunt.
4
Accordingly, we agree with the trial court that, when read together, §§ 3172(1) and 3175(3) create a two-year period of limitation applicable to reimbursement actions between insurers under the assigned claims plan of the no-fault act.
III
In plaintiff’s cross appeal, he argues that the lower court erred in determining that his cause of action against Farmers was time-barred because he failed to notify Farmers of his claim within one year as required by § 3145(1). We disagree.
Although we earlier declined to follow the implied reasoning in this Court’s opinion in Hunt, supra, we are persuaded that the ultimate holding in that case was correct. In Hunt, this Court determined that the period of limitation in § 3145(1) was not tolled where, as here, the injured party filed a claim through the assigned claims plan of the no-fault act within the one-year limitation period, but failed to notify the higher priority insurer within the limitation period. Hunt, supra at 666.
In Hunt, this Court relied, in part, on Pendergast v American Fidelity Fire Ins Co, 118 Mich App 838; 325 NW2d 602 (1982), where this Court was also asked to consider whether the one-year limitation period in § 3145(1) should be tolled. While the factual situation in Pendergast is admittedly different from that in the instant case, we nonetheless find the reasoning in Pendergast to be persuasive:
While it is true that the one-year period of limitation is relatively short, it seems consonant with the legislative purpose in the no-fault act in encouraging claimants to bring their claims to court within a reasonable time and the reciprocal obligations of insurers to adjust and pay claims seasonably. The statute attempts to protect against stale claims and protracted litigations.
. . . The legislative intent is clear and unambiguous. The Courts should not enlarge nor [sic] alter the reciprocal rights and obligations of claimant and insurer under such circumstances. [Pendergast, supra at 841-843. Citations omitted.]
We note that plaintiff does not argue that although Farmers is a higher priority insurer, Farm Bureau, as assignee under the assigned claims plan, was required to pay his wage-loss benefits, to the extent they were justified, and then seek reim-, bursement from Farmers. Had plaintiff done so, a different result may have obtained.
Nevertheless, on the basis of the issues before us, we affirm the trial court’s ruling that plaintiff’s claim against Farmers is barred by the one-year period of limitation in § 3145C1).*
Affirmed._
We decline to address plaintiffs request to apply equitable estoppel in this case. Not only does that doctrine not apply to the facts of this case, see Schmude Oil Co v Omar Operating Co, 184 Mich App 574, 581-582; 458 NW2d 659 (1990), but, in addition, plaintiff did not raise that argument below. | [
-14,
108,
-3,
-116,
-103,
33,
58,
58,
89,
-93,
39,
83,
-3,
-62,
21,
109,
-21,
105,
69,
107,
-44,
-90,
87,
-30,
-9,
-77,
-85,
68,
-72,
-53,
-92,
-6,
77,
16,
2,
-43,
-31,
-64,
-115,
28,
-114,
-116,
-69,
108,
-103,
65,
-76,
122,
22,
79,
117,
-97,
-77,
46,
-79,
70,
41,
40,
-37,
57,
-47,
-31,
-118,
13,
111,
1,
-93,
36,
-102,
7,
90,
10,
-112,
-79,
0,
-56,
114,
-90,
-74,
20,
75,
-103,
0,
38,
103,
16,
21,
77,
-84,
-72,
38,
84,
15,
-122,
-104,
72,
27,
6,
-73,
-100,
50,
20,
-90,
124,
124,
77,
15,
108,
5,
-114,
-108,
-93,
-17,
-32,
28,
-117,
-17,
6,
54,
113,
-49,
-30,
93,
-57,
119,
19,
23,
-109
] |
Per Curiam.
On October 27, 1981, defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797, before Oakland Circuit Judge Farrell E. Roberts, who sentenced him to ten to twenty years in prison. On June 1, 1984, pursuant to a subsequent motion by defendant, Judge Roberts’s successor, Oakland Circuit Judge Fred M. Mester, resentenced defendant to six to twenty years in prison. The prosecutor appeals by leave granted.
The first issue we address is whether this appeal is properly before us.
In People v Cooke, 419 Mich 420, 427; 355 NW2d 88 (1984), our Supreme Court held that appeals by prosecutors in criminal cases are allowed only in the specific circumstances set forth in § 12 of the Code of Criminal Procedure, MCL 770.12; MSA 28.1109. These circumstances are limited to an appeal from a decision based on the invalidity or construction of a statute or "a decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.” 419 Mich 426, quoting MCL 770.12; MSA 28.1109.
In this case, the prosecutor appeals by leave granted, causing him to argue that § 12 was intended to limit only appeals of right, not appeals by application. In support of his argument, the prosecutor points to Cooke, supra, in which the Court stated that the "Legislature’s intent that appeals by the people be governed by the specific provisions of § 12 ... is also demonstrated by its subsequent amendment, in 1980, of § 3 of the same part of the Code of Criminal Procedure.” 419 Mich 430. This amendment inserted in subsection (1) of § 3 the following:
Subject to the limitations imposed by section 12 of this chapter, an aggrieved party shall have a right of appeal from a final judgment or trial order as follows .... [MCL 770.3; MSA 28.1100. Emphasis added.]
The prosecutor reasons that, since the amend ment of § 3 was only of subsection (1) dealing with appeals as of right, the remaining subsections of § 3 dealing with appeals by application remain unrestricted by § 12.
The prosecutor’s argument is disingenuous. Nothing in § 3 indicates an intent by the Legislature to give the prosecutor a greater ability to appeal by application than exists as of right. Therefore, we conclude that the provisions of § 12 control appeals by application as well as appeals as of right.
The only provision of § 12 which could possibly apply to the case at bar is subsection (1)(c) which allows appeals "[f]rom a decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy . . . .” (Emphasis added.) Because defendant pled guilty in this case, jeopardy attached when the sentence was imposed. People v Leonard, 144 Mich App 492; 375 NW2d 745 (1985); People v Alvin Johnson, 396 Mich 424, 431 n 3; 240 NW2d 729 (1976); People v Rose, 117 Mich App 530, 535; 324 NW2d 25 (1982); People v Burt, 29 Mich App 275, 277; 185 NW2d 207 (1970). While arguably jeopardy vanished when the trial court vacated defendant’s original sentence, it attached again at resentencing. Therefore, § 12 does not permit the instant appeal.
However, because the prosecutor contends that the trial court exceeded its powers in vacating defendant’s original sentence and resentencing him, we exercise our discretionary authority under GCR 1963, 820.1(7) and consider the claim of appeal as a complaint for an order of superintending control. GCR 1963, 711.4(a). See People v Barnes, 142 Mich App 679; 369 NW2d 882 (1985).
Turning to the merits of the prosecutor’s appeal, we conclude that the trial court did not exceed its authority in resentencing the defendant.
In People v Whalen, 412 Mich 166, 169-170; 312 NW2d 638 (1981), our Supreme Court explained the trial court’s limited authority to resentence a defendant:
In People v Fox, 312 Mich 577, 582; 20 NW2d 732 (1945), this Court held that a trial court is without authority to set aside a valid sentence and impose a new one, because to do so "would infringe upon the exclusive power of the governor under the Constitution to commute sentence”.
A court’s authority to resentence depends, therefore, on whether the previously imposed sentence is invalid. Clearly a sentence beyond statutory limits is invalid. A sentence within statutory limits may also be invalid on a number of grounds. It is invalid if the sentencing court relies on constitutionally impermissible considerations, such as the defendant’s constitutionally infirm prior convictions, or improperly assumes a defendant’s guilt of a charge which has not yet come to trial, or the court fails to exercise its discretion because it is laboring under a misconception of the law, or conforms the sentence to a local sentencing policy rather than imposing an individualized sentence. More recently, this Court has held invalid sentences which do not comply with essential procedural requirements such as failure to utilize a "reasonably updated” presentence report or to provide the defendant and his counsel with the opportunity to address the court before sentence is imposed.
In the case at bar, the trial court was asked to vacate defendant’s sentence because the sentence was excessive and was allegedly based upon consideration of a prior conviction listed in the presentence report that was subsequently reversed.
An otherwise valid sentence may be vacated on the basis of excessiveness if the trial court abused its discretion to the extent that it shocks the conscience of the appellate court. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983). The record reveals that prior to the instant conviction defendant had four felony convictions, one of which, an armed robbery conviction, was reversed on a technical error in the plea-taking procedure. Because of defendant’s recidivistic background, defendant’s original sentence of ten to twenty years for armed robbery does not shock the conscience of this Court. Therefore, we conclude that the trial court could not have found the defendant’s conviction invalid on this basis.
However, a defendant has a right to be resentenced where his sentence is based upon inaccurate information in the presentence report. People v Lauzon, 84 Mich App 201, 208-209; 269 NW2d 524 (1978); People v Malkowski, 385 Mich 244, 249; 188 NW2d 559 (1971). The subsequent reversal of one of defendant’s convictions which was listed in the presentence report rendered the report inaccurate.
Moreover, the original sentencing court did not articulate on the record its consideration in sentencing the defendant. While not every sentence must be vacated because a presentence report refers to a reversed conviction, see People v Holle man, 138 Mich App 108, 116; 358 NW2d 897 (1984), the successor trial court in this case was unable to determine whether the sentence imposed would have been different had the conviction been reversed prior to the original sentencing. People v Gains, 129 Mich App 439, 449; 341 NW2d 519 (1983). Therefore, the trial court was correct in resentencing the defendant on this basis and we find no reason to reverse.
Affirmed.
The reversed conviction stemmed from defendant’s plea of guilty to an armed robbery charge. It was reversed for failure of the trial court to inform defendant at the plea proceeding that armed robbery is a nonprobationable offense and of the mandatory minimum sentence. People v Grier (Docket No. 61051, decided February 2, 1983 [unreported]). We note that these omissions are no longer reversible error per se. See People v Jackson, 417 Mich 243, 246; 334 NW2d 371 (1983). Therefore, we decline to hold that defendant’s prior conviction was constitutionally infirm. Compare People v Moore, 391 Mich 426; 216 NW2d 770 (1974).
Defendant’s original sentencing predated our Supreme Court’s mandate in People v Coles, 417 Mich 523, 549; 339 NW2d 440 (1983), that the trial court must articulate on the record its reasons for imposing the sentence given. This accounts for the original sentencing judge’s failure to articulate his reasons on the record. | [
112,
-22,
-39,
-68,
11,
32,
59,
-76,
97,
-21,
-90,
83,
-83,
86,
20,
121,
19,
103,
84,
123,
-34,
-73,
119,
99,
-74,
-69,
-46,
-44,
-77,
95,
-28,
-2,
8,
-32,
66,
85,
102,
-120,
1,
-44,
-114,
13,
-23,
-55,
-48,
1,
52,
106,
82,
15,
49,
-100,
-29,
42,
17,
-60,
-56,
40,
75,
-65,
17,
-71,
-72,
13,
105,
20,
-93,
39,
-33,
-121,
-16,
62,
28,
57,
0,
120,
112,
-106,
-126,
116,
79,
43,
-92,
98,
98,
-111,
105,
-50,
-84,
-119,
14,
-18,
-97,
-89,
-36,
89,
74,
65,
-106,
-33,
100,
20,
-81,
-4,
-28,
84,
85,
-84,
-123,
-49,
-124,
-109,
-17,
116,
-74,
90,
-29,
35,
16,
117,
-52,
-94,
92,
71,
50,
87,
-82,
-44
] |
Per Curiam.
On June 6, 1983, plaintiff, Della Smith, filed a complaint against Sinai Hospital of Detroit, several of its staff physicians and others alleging medical malpractice in their care of plaintiff after she gave birth on June 8, 1981. The complaint also contained several "John Doe” allegations, as at that time plaintiff was not certain she had named all the responsible parties. After further investigation, plaintiff discovered the involvement of appellees, Edward Bartholomew, M.D., and Anesthesiologist Service, P.C., in the alleged malpractice. Upon receiving permission of the trial court, plaintiff filed an amended complaint on September 27, 1984, adding the appellees as defendants. On May 31, 1985, defendants’ motion for accelerated judgment/summary disposition pursuant to MCR 2.116(C)(7), formerly GCR 1963, 116.1(5), alleging that plaintiff’s claims were barred by the expiration of the period of limitation, was heard. The trial court granted the motion on June 4, 1985. Plaintiff now appeals and we affirm.
On June 7, 1981, plaintiff checked into Sinai Hospital for the delivery of her baby. Plaintiff, who was twenty-seven years old at the time, had a history of ruptured membranes, an intestinal bypass in 1976, and had gained seventy pounds as a result of this pregnancy. At 4 p.m. that day, plaintiff went into labor, but it was not until the following day that plaintiff was taken to the delivery room and administered a spinal anesthetic by defendant Bartholomew. At 11:35 a.m. on June 8, 1981, plaintiff gave birth to a seven pound, twelve ounce baby girl under a midline episiotomy, with the episiotomy being immediately repaired. Plaintiff was then taken to the recovery room, and her obstetrician, Dr. Leach, issued the necessary postpartum treatment orders, one of which was that no enemas were to be administered to plaintiff.
Later that day, around 3 p.m., plaintiff began to experience pain in her rectal area and icepacks were applied. At midnight, more icepacks were applied and an analgesic was administered. On June 9, around 6 a.m., plaintiff had a low grade fever and at 9 a.m., contrary to Dr. Leach’s instructions, a Fleets enema was administered to plaintiff. The next morning, after plaintiff still had a fever and pain, a Foley catheter was inserted. The doctors diagnosed plaintiff as suffering from endometritis and started plaintiff on antibiotics. Several days later, on June 12, plaintiff’s temperature had returned to normal, although the Foley catheter was still inserted.
On June 13, 1981, plaintiff complained that she had not had a bowel movement since she gave birth, though she finally had one late that night. Quite soon thereafter, plaintiff began to experience burning urination and when she was discharged on June 15, she had a 99.4-degree temperature. The following day, plaintiff checked into New Grace Hospital, complaining of pain and a fever. Doctors there diagnosed her as suffering from endometritis, a disrupted episiotomy which had become infected, and a disrupted sphincter muscle which resulted in rectal incontinence. She was discharged nine days later and told that, when her infection totally subsided, she would need surgery to correct the disrupted episiotomy and torn sphincter muscle. After going through seven months of fecal incontinence, in January of 1982 plaintiff spent one month in a hospital to have her sphincter muscle repaired. According to plaintiff’s complaint, the medical problems were the result of various negligent acts by Sinai Hospital and her attending physicians, and more specifically defendant Bartholomew, whom plaintiff alleges is the doctor who countermanded Dr. Leach’s orders and authorized an enema for plaintiff.
Plaintiff began the discovery process after filing her original complaint, submitting interrogatories to all named defendants in the fall of 1983. Plaintiff also examined the relevant Sinai Hospital records but, because of the illegibility of certain signatures, was unable to identify the doctor who ordered plaintiff’s enema. Finally, when Sinai Hospital’s answers to interrogatories were filed on June 19, 1984, its response to question 45(c) clearly stated that defendant Bartholomew was the physician who wrote the order for plaintiff’s enema.
Defendants were served the amended complaint on October 2, 1984. Defendants requested and were granted an extension of time in which to file a responsive pleading, and on November 7, 1984, defendants filed motions for summary judgment and accelerated judgment. Defendants subsequently withdrew the motion for summary judgment and a hearing on the motion for accelerated judgment was scheduled for December 17, 1984. However, because of the unavailability of Circuit Court Judge Henry J. Szymanski, that hearing was adjourned and some time in early January of 1985, Judge Szymanski dismissed the motion praecipe.
In early March, defendants re-praeciped their accelerated judgment motion, but, before completion of the refiling, plaintiff noticed the default of defendants as defendants had not yet filed a responsive pleading. In April, a hearing was held on the default, which was set aside by the trial court with $500 costs assessed against defendants. At that same time, defendants brought up their accelerated judgment motion, but the trial court, angered at defendants’ delays, refused to hear the motion and summarily denied it. On May 17, 1985, defendants resubmitted their motion for accelerated judgment, which was heard and granted by the trial court on May 31, 1985, on the grounds that the two-year period of limitation had expired before defendants were added as parties to plaintiff’s suit.
On appeal, plaintiff claims that the trial court erred in hearing defendants’ motion for accelerated judgment when defendants failed to seek a rehearing on the trial court’s summary denial of a previous motion for accelerated judgment/summary disposition on the same issue.
MCR 2.119(F)(3) states:
Generally, and without restricting the discretion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error. [Emphasis added.]
The emphasized portion of the court rule clearly illustrates the flaw with plaintiff’s argument, mainly that this provision is in no way mandatory. If a trial court wants to give a "second chance” to a motion it has previously denied, it has every right to do so, and this court rule does nothing to prevent this exercise of discretion. All this rule does is provide the trial court with some guidance on when it may wish to deny motions for rehearing.
The trial court acted correctly in hearing defendants’ motion for accelerated judgment. In April of 1985, when the trial court denied defendants’ motion for accelerated judgment, it did not exactly rule based on the motion’s merits.
Plaintiffs second claim is that the hearing on the motion for accelerated judgment was held less than twenty-eight days after the motion was filed, violating MCR 2.116(B)(2), formerly GCR 1963, 117.1:
A motion under this rule may be filed at any time consistent with subrule (D), but a party asserting a claim shall not notice the motion for hearing until at least 28 days after the opposing party was served with the pleading stating the claim. [Emphasis added.]
The flaw with this position is that plaintiff has misconstrued the meaning of this specific provision. MCR 2.116(B)(2) does not apply to defendants who wish to move for summary disposition; it governs plaintiffs who wish to move for immediate summary disposition upon the filing of a complaint, hence the words "a party asserting a claim” in MCR 2.116(B)(2).
Plaintiff also claims the trial court erred in holding that the period of limitation for medical malpractice had expired before defendants were added as named parties to the instant litigation.
The trial court did not err. In a medical mal practice action, the basic period of limitation is two years from the last date of treatment. MCL 600.5805(4); MSA 27A.5805(4). Plaintiff relies upon an exception to this two-year limit based on situations where the alleged malpractice is not discovered as of the last day of treatment:
An action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim shall be on the plaintiff. A malpractice action which is not commenced within the time prescribed by this subsection is barred. [MCL 600.5838(2); MSA 27A.5838(2).]
In reaching the determination as to when a plaintiff discovers or should have discovered malpractice, a two-step test is employed:
A two-prong test helps a court in determining when a plaintiff discovered, or should have discovered, a defendant’s alleged malpractice. A plaintiff discovers malpractice when: (1) the act or omission of the defendant becomes known; and (2) the plaintiff has reason to believe that the medical treatment either was improper or was performed in an improper manner. [Adkins v Annapolis Hospital, 116 Mich App 558, 565; 323 NW2d 482 (1982), aff'd 420 Mich 87; 360 NW2d 150 (1984).]
Where the undisputed facts reveal that a claim is barred by the statute of limitations, the issue is a question of law within the exclusive province of the trial court. Adkins, supra, p 566; Tonegatto v Budak, 112 Mich App 575; 316 NW2d 262 (1982); Jackson v Vincent, 97 Mich App 568, 576; 296 NW2d 104 (1980); Leyson v Krause, 92 Mich App 759, 765; 285 NW2d 451 (1979).
In the instant case, there are two possible dates when plaintiff could be held to have discovered defendants’ malpractice. First, it could be argued that plaintiff discovered the alleged malpractice when she was diagnosed at New Grace Hospital on June 16, 1981, after her stay at Sinai Hospital. Plaintiff testified in her deposition:
Q. (by Mr. Mitseff): Was any doctor or medical person at New Grace Hospital critical of the physicians at Sinai Hospital?
A. Like I said, the only thing they said is whoever messed her up, you have to take her back over there. Why would they let me come out of the hospital with my angus [sic] ripped like that, and all messed up like that. Why did they let me out in the first place. That was the only thing they said, kept saying that.
Second, it could be argued that plaintiff discovered her claim on June 6, 1983, when she filed her original complaint. As the complaint clearly illustrates, plaintiff at that point knew of all the specific acts of negligence that occurred; at the most, all she did not know was the identity of the exact parties involved. Indeed, this is the latest plaintiff could possibly be held to have discovered the existence of her claim, as it is ludicrous to believe that a plaintiff is not aware of the existence of a claim when such claim has been filed in court by that plaintiff. Therefore, because the latest possible date of discovery is June 6, 1983, and defendants were not added until September 27, 1984, more than six months later, as a matter of law plaintiffs claim was barred.
Plaintiff forwards two arguments in an attempt to avoid the above conclusion. First, plaintiff claims that because the identity of the defendants was not discovered until June of 1984, when she received Sinai Hospital’s answers to interrogatories, the six-month time period did not start until that point. This position is without merit, however, as it is contrary to the well-established principle that the six-month "discovery rule” does not apply to situations where the negligent act is known, but •the identity of the defendant is unknown:
Plaintiff also argues that the motion for accelerated judgment was improperly granted because factual questions existed as to whether she could have discovered the identity and involvement of the defendants sooner. Accelerated judgment is improper where material factual disputes exist regarding discovery of the alleged malpractice. Jackson v Vincent, 97 Mich App 568, 572; 296 NW2d 104 (1980). However, the "time of discovery” rule relates to the discovery of the asserted malpractice and not the discovery of defendant’s identity or involvement. [Lefever v American Red Cross, 108 Mich App 69, 74; 310 NW2d 278 (1981). Emphasis added.]
Plaintiff’s second argument is that because defendants fraudulently concealed their participation in the malpractice at issue, the period of limitation is two years from the date plaintiff discovered the identity of defendants. See MCL 600.5855; MSA 27A.5855. The bulk of plaintiff’s argument here revolves around an inconsistency, admitted by defendants, in defendants’ position since the filing of the amended complaint. In an affidavit dated November 6, 1984, defendant Bartholomew denied playing any part in plaintiffs treatment other than providing anesthesiology services. Then on May 31, 1985, defense counsel admitted to the trial court that defendant Bartholomew did sign the enema authorization order:
Mr. Glass: Your Honor, the Request for Admissions do ask us, specifically, that question. We did not answer them knowing that they would be deemed admitted because Doctor Bartholomew clearly signed that order. And, that once he saw that order, he well knew that he was the attorney or the physician who had signed the particular order.
There are two major flaws with plaintiffs second position which make it unconvincing. First, for the most part it deals with acts done by defendants after they were named in the suit. As such, the fraudulent concealment statute does not apply, as it is aimed at preventing actions which prevent a plaintiff from discovering the identity of defendants:
"The fraudulent concealment which will postpone the operation of the statute must be the concealment of the fact that plaintiff has a cause of action. If there is a known cause of action there can be no fraudulent concealment which will interfere with the operation of the statute, and in this behalf a party will be held to know what he ought to know, pursuant to the rule hereinbefore stated (i.eby the exercise of ordinary diligence).” [Weast v Duffie, 272 Mich 534, 539; 262 NW 401 (1935), quoting 37 CJ, p 976.]
Second, whatever concealment which allegedly occurred before the filing of the amended complaint and which was alleged in the amended complaint seems to be directed to the other party-defendants in this action:
85. Further, that these Defendants, or some of them, intentionally and fraudulently concealed from Plaintiff the fact that there was present a disruption of the repair of a fourth degree extension of the episiotomy, such concealment effected by employment of artifice, device, misstatement or misrepresentations planned to prevent inquiry or escape investigation, and hinder acquirement of information disclosing a right of action.
Since there is no allegation that defendants had any role in the episiotomy or the disruption of such being diagnosed or disclosed to plaintiff, plaintiffs basic claim apparently is that the other parties in this action attempted to conceal the identity of defendants, and that the statute of limitations should be tolled as to defendants as a result. As with her first argument as to fraudulent concealment, this position is contrary to law, which clearly states that a defendant cannot be penalized for the fraudulent acts of third parties in concealing the defendant’s identity where the defendant played no part. Stoneman v Collier, 94 Mich App 187, 192; 288 NW2d 405 (1979).
Affirmed. Costs to defendants.
Unless otherwise indicated, "defendants” will refer to appellees only.
A surgical procedure involving the cutting of the vulva to prevent tearing of the vagina as the newborn child passes through.
A Foley catheter holds its position in the urethra by a small balloon.
Endometritis is the inflammation of the membrane which lines the interior of the uterus.
Defendant Bartholomew merely ordered the enema for plaintiff. | [
-16,
108,
-123,
-19,
58,
-29,
40,
26,
115,
-125,
-89,
-13,
-83,
102,
-123,
111,
-123,
125,
81,
113,
83,
35,
22,
96,
-13,
-2,
-6,
87,
-13,
-19,
-28,
-3,
73,
112,
-126,
-107,
-62,
-125,
-5,
-48,
-46,
-93,
-115,
-17,
89,
-126,
112,
51,
-40,
71,
53,
15,
-77,
-84,
59,
79,
40,
40,
-5,
60,
-47,
-27,
-95,
5,
-49,
50,
-95,
-124,
62,
-125,
-38,
30,
-100,
48,
48,
-72,
48,
-10,
3,
118,
66,
-87,
4,
32,
102,
-95,
77,
-27,
120,
-66,
-65,
62,
28,
-92,
-101,
121,
-38,
-114,
-66,
-67,
96,
24,
-113,
126,
127,
-51,
94,
44,
-60,
-114,
20,
-79,
-57,
-32,
-36,
11,
-26,
7,
2,
117,
-35,
50,
92,
71,
59,
51,
122,
-46
] |
Beasley, P.J.
Defendant, Roger A. Gauntlett, appeals as of right from a sentence of not less than five years nor more than fifteen years in prison imposed upon him on September 21, 1984, by visiting Judge Jack W. Warren.
This opinion is best understood within the context of our previous per curiam opinion reported in 134 Mich App 737; 352 NW2d 310 (1984). In that opinion, among other things, we set aside defendant’s sentence because the sentencing judge had abused his discretion in imposing as a condition of probation a requirement that defendant undergo what he called chemical castration by the use of Depo-Provera. Also, we remanded the case for resentencing before a judge from outside of Kalamazoo County.
Before the resentencing occurred, defendant filed an emergency application for leave to appeal to the Michigan Supreme Court and, on August 24, 1984, the Supreme Court entered the following order:
On Order of the Court, the application for leave to appeal and the application for leave to appeal as cross-appellant are considered and, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we modify the judgment of the Court of Appeals in the following respect: after finding "that the condition of defendant’s probation, that he submit to Depo-Provera treatment, is clearly an unlawful condition of probation and invalid under MCL 771.3(4); MSA 28.1133(4)”, the Court of Appeals should have remanded the case, without further direction, to the Kalamazoo Circuit Court for resentencing. Since the Court of Appeals found the Depo-Provera condition of probation unlawful, rather than shocking to the judicial conscience, it was premature to make an evaluation pursuant to People v Coles, 417 Mich 523 (1983), of the remainder of the sentence. Accordingly, the case is remanded to the trial court for resentencing by the visiting judge assigned to do so without further direction.
The motion for immediate consideration of the motion for stay is granted. The motion for stay was unnecessary under People v George, 399 Mich 638 (1977), is rendered moot by this remand order, and is denied. [See, 419 Mich 909 (1984).]
As indicated, on September 21, 1984, a visiting judge, selected by the State Court Administrator, imposed the sentences referred to above.
In his brief on appeal, defense counsel prefaces his argument with a statement of facts that largely repeats the matters already decided in our previous opinion. Those matters decided in our previous opinion and not reversed or modified by the Supreme Court in its August 24, 1984, order are the law of the case and will not be discussed again.
An appeal from resentencing is limited to the resentencing proceeding. As indicated in its order, among other things, the Supreme Court affirmed the action of this Court in remanding this case to the trial court for resentencing and in removing Judge Borsos and directing appointment of a judge from outside of Kalamazoo County to resentence defendant.
On appeal, defendant raises five issues. We consider these issues insofar as they relate to the resentencing and have not already been decided in our previous decision and affirmed in the Supreme Court order.
First, defendant claims that he was resentenced to a harsher sentence or an enhanced sentence without affirmative reasons being placed on the record reflecting conduct or events that would justify a harsher sentence, in violation of the due process clause of the Fourteenth Amendment.
Second, defendant says that to interpret Coles to allow enhancement of a sentence after a successful appeal without evidence of conduct or events to justify enhancement violates due process and arises out of vindictiveness.
Third, defendant says that his resentence exceeds the "original sentence” and, thus, violates the constitutional double jeopardy provision.
These claims rest upon false premises. First, defendant’s assumption that Judge Warren’s sentence was harsher and enhanced Judge Borsos’ sentence is simply not true. For the reasons indicated in 134 Mich App 737, Judge Borsos’ sentence was invalid and void, both because of the Depo-Provera condition of probation and the failure to refer the motion to disqualify to the presiding judge when the assistant prosecutor requested it. We have already decided these issues and our decision has, in this respect, been approved by the Supreme Court.
Thus, while defendant’s assertions of constitutional propositions may be correct in the abstract, they are not relevant here. Since Judge Borsos’ attempted sentence was found to be completely invalid and void, it cannot provide defendant with a benchmark for comparing and attacking Judge Warren’s sentence. Judge Borsos’ sentence, legally, never existed. Defendant’s attempt to eharacterize Judge Warren’s legally valid sentence as harsher than, or an enhancement of, the legally nonexistent sentence imposed by Judge Borsos is completely without legal relevance or merit. Defendant seeks to rehash that which has already been decided.
However, although not specifically raised by defendant in his brief on appeal, there remains the essential Coles issue of whether Judge Warren’s sentence constitutes an abuse of discretion to the extent that it shocks the judicial conscience. Judge Warren expressly stated that he would consider the sentencing guidelines, but that he did not believe he was bound by them. At sentencing, Judge Warren gave specific reasons for his sentence. Our judicial conscience is not shocked by the sentence he imposed, and there was no abuse of discretion by Judge Warren.
In his fourth issue, defendant charges the prosecutor with post-conviction misconduct that was prejudicial to his right to a fair, impartial and individualized sentence. He says that the original assistant prosecutor violated Judge Fitzgerald’s order of confidentiality and revealed to the public portions of Judge Fitzgerald’s sentencing plans. We disagree. Defendant characterizes the assistant prosecutor’s statements regarding Judge Fitzgerald’s sentencing plans as misinformation. The record does not support the contention that it was misinformation. That those plans caused a public outcry as claimed by defendant is probably true, but is hardly surprising. While there certainly are limits upon what a prosecutor may say concerning a pending case, we are not convinced that the prosecutor’s actions here went beyond the limits and prejudiced defendant’s right to a fair and equitable sentence. After setting aside the invalid sentence imposed by Judge Borsos, we attempted to insure a fair and impartial sentence by arranging for the assignment of an experienced, able judge from another county to sentence defendant. We reject defendant’s argument in this respect.
In his fifth and last issue, defendant charges that he was prejudiced because immediately prior to sentencing Judge Warren indicated in open court that he spoke to a probation officer. At the time, defense counsel made no objection. Neither did he inquire of Judge Warren regarding the judge’s statement. Neither did he claim to be prejudiced. Defendant also failed to make a motion for the sentencing judge to vacate his sentence based on the judge’s findings. Under these circumstances, defendant waived any right to complain of the sentencing judge.
Affirmed.
People v Jones, 394 Mich 434; 231 NW2d 649 (1975).
US Const, Am XIV.
US Const, Am V; Const 1963, art 1, § 15.
This case was originally assigned to Judge Fitzgerald who disqualified himself under the circumstances referred to in 134 Mich App 737, 740-741.
See People v Baldwin, 130 Mich App 653; 344 NW2d 37 (1983); People v Hart, 129 Mich App 669; 341 NW2d 864 (1983), lv den 419 Mich 860 (1984). | [
48,
-22,
-41,
29,
43,
33,
50,
-108,
114,
-21,
39,
83,
-81,
-74,
-127,
59,
59,
127,
117,
121,
-35,
-73,
118,
-31,
-74,
-13,
75,
-41,
51,
95,
-28,
80,
8,
112,
-118,
-43,
70,
-120,
-5,
92,
-50,
5,
-85,
-19,
-39,
-126,
48,
55,
16,
15,
49,
-98,
-29,
46,
20,
-61,
41,
40,
75,
-83,
-64,
-87,
-102,
13,
-21,
54,
-77,
23,
-100,
-89,
120,
63,
28,
49,
2,
-4,
115,
-74,
-126,
116,
107,
-72,
4,
98,
99,
-127,
117,
-52,
-40,
-96,
-100,
42,
-99,
-25,
-104,
80,
66,
4,
-74,
-65,
116,
20,
-92,
124,
-9,
-116,
85,
108,
0,
-50,
-90,
-79,
79,
56,
-124,
67,
-13,
37,
20,
117,
-52,
-64,
84,
82,
121,
27,
-18,
-106
] |
Per Curiam.
The trial court granted summary disposition to defendant pursuant to MCR 2.116(I)(2) in this declaratory judgment action. Plaintiff appeals as of right, arguing that the trial court incorrectly determined that defendant was insured under the policy at issue. We reverse and remand.
The parties agree to the underlying facts of this case:
On June 11, 1994, [defendant] was employed as a police officer with the Village of Lake Linden. While on duty, [defendant] stopped to question Ronald Jutila whom he suspected of operating a motor vehicle while under the influence of intoxicating liquors. During the course of his investigation, [defendant] reached into Mr. Jutila’s vehicle. As he did, Ronald Jutila attempted to drive away. [Defendant] became caught on the vehicle, was carried for some distance, and was allegedly injured. It is undisputed that [defendant] was not in, upon, getting in, on, out or off of any vehicle owned by the Village of Lake Linden at the time of his injury.
[Defendant] sued Mr. Jutila. Mr. Jutila’s motor vehicle insurance company settled this suit by paying the $25,000 policy limits under his policy. Because of the amount paid, [defendant] made a claim for underinsurance benefits under his employer’s contract with [plaintiff]. [Plaintiff] denied the claim because [defendant] was not an insured due to the fact that he was not occupying a covered auto at the time of his alleged injuries.
[Plaintiff] filed this declaratory judgment action and moved for summary disposition under MCR 2.116(C)(10) on the issue of whether [defendant] was an insured under the Village’s contract with [plaintiff] for purposes of the underinsured motorist coverage. . . .
The trial court. . . issued an Order Following Consideration of Motion for Summary Disposition which not only denied [plaintiff’s] motion for summary disposition but, pursuant to MCR 2.116(I)(2), granted summary judgment in appellee’s favor. Judge Hood 11 concluded that “construing the policy as Plaintiff suggested would render certain portions of the policy meaningless and such a construction would be contrary to the principles of contract interpretation which mandate that meaning must be given to all terms in an insurance policy.”
On appeal, this Court reviews a grant of summary disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion brought under MCR 2.116(C)(10) tests the factual support for the plaintiffs claim. Id. Such a motion must be supported by affidavits, depositions, admissions, or other documentary evidence, and the “adverse party may not rest upon mere allegations or denials of a pleading, but must, by affidavits or other appropriate means, set forth specific facts to show that there is a genuine issue for trial.” Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994).
Plaintiff insured the Village of Lake Linden with an insurance policy that contained provisions relating to underinsured motorist coverage. The key issue to be resolved is whether defendant was insured for under-insured motorist coverage under the policy language. No reported decision of this Court has addressed this issue, specifically whether a policy issued to an entity should be construed to provide coverage to individual employees of the entity on the basis that only employees, and not the entity itself, could suffer personal injuries so as to recover under the policy as written. In other words, if the insured entity could never recover under one portion of the provision as plainly written, should an ambiguity be found in the contract and a different interpretation be given to that portion so that it is not rendered meaningless.
The policy language at issue is as follows:
INSURING AGREEMENT
1. We will pay damages which an “insured” is legally entitled to recover from the owner or operator of an “underinsured motor vehicle” because of bodily injury”:
a. Sustained by an “insured”; and
b. Caused by an accident.
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the “underinsured motor vehicle.”
We will pay under this coverage only after the limit of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.
2. “Insured” as used in this endorsement means:
a. You or any “family member.”
b. Any other person occupying “your covered auto.”
c. Any person for damages that person is entitled to recover because of “bodily injury” to which this coverage applies sustained by a person described in a. or b. above.
Part of the policy defines the relevant terms as follows:
"You" and "your" mean the person or organization shown as the named insured in item one of the declarations.
The named insured of the policy at issue, as listed in ITEM ONE of the declarations, is the Village of Lake Linden. Its employees are not listed as named insureds.
Michigan case law is replete with guidelines for determining when ambiguities are present in insurance contracts and for determining what to do when an ambiguity is found. A contract is ambiguous when its words can reasonably be understood in different ways. Raska v Farm Bureau Mut Ins Co of Michigan, 412 Mich 355, 361-362; 314 NW2d 440 (1982). If a fair reading leads one to understand there is coverage under particular circumstances and another fair reading leads one to understand there is no coverage under the same circumstances, the contract is ambiguous and should be construed against the drafter and in favor of coverage. Id. at 362. However, if a contract, even an inartfully worded or clumsily arranged contract, fairly admits of but one interpretation, it may not be said to be ambiguous or fatally unclear. Id. In other words, “[w]here the language of a policy is clear and unambiguous we cannot interpret it in such a way as to create an ambiguity where none exists.” American Bumper & Mfg Co v Hartford Fire Ins Co, 452 Mich 440, 448; 550 NW2d 475 (1996) (citations omitted). “[T]erms in an insurance policy must be given their plain meaning and the court cannot ‘create an ambiguity . . . Heniser v Franken muth Mut Ins Co, 449 Mich 155, 161; 534 NW2d 502 (1995). In fact, where a policy is clear, we are bound by the specific language set forth in the agreement. Id. at 160. Stated more succinctly:
When determining what the parties’ agreement is, the trial court should read the contract as a whole and give meaning to all the terms contained within the policy. The trial court shall give the language contained within the policy its ordinary and plain meaning so that technical and strained constructions are avoided. A policy is ambiguous when, after reading the entire document, its language can be reasonably understood in different ways. If the trial court determines that the policy is ambiguous, the policy will be construed against the insurer and in favor of coverage. However, if the contract is unambiguous, the trial court must enforce it as written. [Royce v Citizens Ins Co, 219 Mich App 537, 542-543; 557 NW2d 144 (1996) (citations omitted; emphasis added).]
In this case, the parties argue over whether the terms “[y]ou or any ‘family member’" cover defendant such that he is entitled to underinsured coverage under the policy. If defendant qualifies as the “you” in the provision, he may collect underinsured benefits even if he was not occupying a covered automobile at the time of the injury. A plain reading of the policy precludes coverage for defendant. Reading the policy as a whole, and giving ordinary and plain meanings to its terms, the language cannot be reasonably understood to mean village employees and their families. Clearly, the term “you” in the provision refers only to the village. No mention is made of employees. Therefore, under the policy language, plaintiff is only obligated to pay damages to the village or any of its “fam ily members” that are entitled to “underinsured motor vehicle” coverage because of bodily injury. Our inquiry cannot end with this conclusion, however.
Defendant points out, and the trial court agreed, that a plain interpretation of the language renders the portion of the policy at issue meaningless. Specifically, if a plain interpretation is used, no one is entitled to receive underinsured coverage under the provision because the village cannot sustain bodily injury and cannot have family members who can sustain bodily injury. Because of this, defendant argues that the policy is ambiguous and should be construed to include employees of the village and their families. While we agree that the plain, unconstrained reading renders a portion of the policy meaningless, we disagree that there is an ambiguity. Therefore, we will not construe the language or reform the contract to include, as insureds, village employees and members of their families.
There is authority to support our holding that the contract language is not ambiguous as written and should not be reformed so as to include defendant as an insured. Numerous other jurisdictions have addressed this issue. The majority of those jurisdictions have ruled that a policy like the one at issue is not ambiguous and should be construed as written, even if certain provisions are rendered meaningless by a plain reading of the language. The arguments made in those cases and the language in the policies are substantially similar to those in this case. Several examples are discussed below.
In Dixon v Gunter, 636 SW2d 437 (Term App, 1982), the deceased was the sole stockholder of a corporation, which carried uninsured motorist coverage. The issue was whether the corporation’s policy covered the deceased when he was operating a noncorporate vehicle and was not conducting corporate business. The appellant argued that because the policy covered “your [sic] or any family member,” there must be coverage. She argued that the corporation could not receive personal injuries and could not have any “family member” and therefore, the court needed to look beyond the corporate structure and define “you” to mean the sole-shareholder of the corporation. The court declined to do so, noting that there was no latent ambiguity in the policy and that it was obvious to “even a casual reader” that the insured was a corporation, which could not suffer personal injuries or have a family. The court regarded the references to personal injuries and family as surplusage, and stated:
A contract of insurance should be given a fair and reasonable construction; and likewise should be given a sensible construction, consonant with the apparent object and plain intention of the parties; a construction such as would be given the contract by an ordinary intelligent business man; and a practical and reasonable rather than a literal construction. The contract should not be given a forced, unnatural or unreasonable construction which would extend or restrict the policy beyond what is fairly within its terms, or which would lead to an absurd conclusion or render the policy nonsensical and ineffective. [Id. at 441, citing 44 CJS, Insurance, § 296, pp 1163-1165.]
In General Ins Co of America v Icelandic Builders, Inc, 24 Wash App 656; 604 P2d 966 (1979), the plaintiff instituted a declaratory judgment action for a determination whether one of the directors of a closely held family corporation was covered under an uninsured motorist provision. The provision was contained in a policy issued to the defendant corporation. The director was injured in his personal automobile. The defendant argued that the language of the policy was ambiguous because its terms were uncertain and capable of being understood in more than one way. It argued that if the corporation was considered to be the only named insured, there was no “person” who would be entitled to uninsured coverage because a corporation “cannot sustain bodily injury so as to qualify for coverage.” Id. at 659. Further, it argued that “this section of the policy is ambiguous because it purports to insure specific persons yet excludes any person if the named insured is a corporation.” Id. The court disagreed with the defendant. The definitions provided by the policy made clear that the insured person was the corporation. The wording was not capable of being understood in more than one way. The court ruled that “[t]he identification of a corporation as the named insured does not so obfuscate the meaning of the term “person” as to create an ambiguity.” Id.
The named insured is the corporation and there is no other designated insured. The policy language describes unambiguously who is insured under the policy. There is no basis for applying rules of construction which [the defendant’s director] seeks to invoke. The courts cannot create an ambiguity when none exists and thereby rewrite a policy. [Id. at 660 (citation omitted).]
In Meyer v American Economy Ins Co, 103 Or App 160; 796 P2d 1223 (1990), the court also rejected that individual coverage should be read into the contract simply because a failure to do so would render the provision at issue meaningless. The policy insured “You or any family member.” Id. at 162. The policy defined the term “you” to mean “the person or organization shown as the named insured in . . . the declaration.” Id. The named insured was the corporation. The plaintiff argued that the coverage was a nullity if literally read because the corporation could not suffer bodily injury and could not have “family members” as the term was defined. The court found that no ambiguity existed under which the plaintiff could be regarded as a named insured.
Even if... there is no category one coverage if the policy is read to mean what it unambiguously says, that does not create an ambiguity. If - ■ . defendant has collected premiums for coverage that does not exist, that might provide the corporation with some form of remedy against defendant; it does not mean that plaintiff is covered [however]. [Id. at 163.]
Because there was no ambiguity, the court read the policy as written and declined to utilize rules of construction, including the rule that “every provision in the policy must be deemed to mean something,” to reform the contract. Id.
In Grain Dealers Mut Ins Co v McKee, 943 SW2d 455 (Texas, 1997), the Texas Supreme Court reversed the decision of the appellate court, which had affirmed the trial court’s decision to provide coverage to an individual. The policy provided uninsured (UM) and underinsured (um) motorist coverage to “You and any designated person and any family member of either.” Id. at 457. The words “you” and “your” referred to the named insured, which was a sole-shareholder corporation. The defendant argued that the policy was ambiguous. The court disagreed. “There is no reasonable interpretation of the policy that can construe [the defendant] as the ‘you’ to whom the covered family members are linked in the endorsements. [The defendant], unambiguously, is not the named insured.” Id. at 458. The court held that because the corporation was the insured, not the defendant, the injured party was not a family member within the definition of the language. Id.
Although interpreting an insurance policy to give a reasonable meaning to all provisions is preferable to interpreting the policy in a way that creates surplusage or leaves a portion of the policy useless or inexplicable,.. . surplusage alone does not make an insurance policy ambiguous. Unlike a unique contract tailor-made to the interests peculiar to each party, the um/uim and [personal injury protection] endorsements are standard forms crafted to accommodate a wide variety of insurance needs. [Id. (emphasis added).]
The court noted that the majority of jurisdictions that have considered this issue have found that the language does not create an ambiguity. Id. at 459. It listed numerous other cases to support the majority view. Id.
In most of the minority view cases, the corporations were small, closely knit, family corporations and the courts identified the corporation with the individuals for purposes of the policy. Hager v American West Ins Co, 732 F Supp 1072 (D Mont, 1989); Hawk-eye-Security Ins Co v Lambrecht & Sons, Inc, 852 P2d 1317 (Colo App, 1993); Ceci v Nat’l Indemnity Co, 225 Conn 165; 622 A2d 545 (1993). But see King v Nationwide Ins Co, 35 Ohio St 3d 208; 519 NE2d 1380 (1988).
In the case at hand, the village is not a closely knit corporation or family business. It is not identified with its employees, but is a separate legal entity. Moreover, we believe that the majority approach is more appropriate and adopt it as our own. We cannot accept the proposition that an ambiguity arises whenever a plain reading of policy language renders a portion of the policy meaningless. In other words, we agree with the McKee court that a finding of surplus-age does not equate to a finding of ambiguity. A contract is only ambiguous when its words may reasonably be understood in different ways. Raska, supra at 362.
In this case, there is only one interpretation that can be made when looking at the language as written. Any casual reader, giving ordinary and plain meanings to the language as written, would realize that the insured “you” does not refer to individual employees, but refers only to the village itself. Where the policy language describes unambiguously who is insured under the policy, there is no basis for finding an ambiguity. See Icelandic Builders, supra. Because the policy is clear as written, we are bound by the specific language, Heniser, supra at 160, and will not construe the policy to cover defendant simply to avoid a finding that there is surplus language in the contract.
In this case we find that the provision as written does include surplusage. The policy is sloppily and inartfully drafted. It appears to be a standard policy, which was not tailored to the needs of the village. The language providing coverage to the village and its family members is clearly surplusage because the village cannot sustain bodily injury or have family members. However, as we have previously concluded, our ruling that this language is surplus does not require us to reform the contract. We also note that if the insurer collected premiums for coverage that does not exist, the village may have a remedy against defendant, but this “does not mean that plaintiff is covered”. See Meyer, supra at 163.
On appeal, plaintiff also argues that defendant was not covered under the second portion of the underinsured motorist provision. That language provides underinsured motorist coverage to “[a]ny other person occupying ‘your covered auto.’ ” Defendant does not contest this on appeal, nor did he contest this argument below. Therefore, resolution of this issue is unnecessary.
Reversed and remanded for entry of summary disposition in favor of plaintiff.
Houghton Circuit Court Judge Garfield W. Hood. | [
-48,
124,
-16,
-50,
24,
-96,
50,
18,
81,
-105,
39,
115,
-65,
-62,
7,
43,
-18,
125,
101,
82,
-11,
-93,
71,
34,
-12,
-109,
-77,
69,
-109,
95,
108,
-20,
77,
48,
-117,
-43,
38,
10,
-107,
94,
-58,
-122,
-72,
120,
-103,
73,
-76,
123,
24,
79,
113,
-98,
-29,
42,
19,
74,
-88,
40,
-53,
-79,
-31,
-24,
-117,
-123,
59,
4,
-93,
4,
-104,
35,
-38,
24,
20,
49,
0,
-24,
114,
-74,
-122,
20,
47,
-103,
-88,
102,
103,
0,
61,
-19,
-80,
-104,
6,
-102,
15,
-123,
-101,
120,
43,
13,
-121,
-97,
116,
36,
38,
-20,
-52,
-36,
95,
108,
3,
-50,
-44,
-79,
-19,
116,
52,
-61,
-1,
71,
54,
81,
-49,
-8,
92,
100,
115,
59,
126,
-98
] |
Gage, J.
Petitioner appeals by leave granted trial court orders granting respondent’s motion to dismiss and reinstating petitioner’s obligation to pay filing fees. We affirm.
Petitioner is a prison inmate. In September 1994, he filed a petition with the Ingham Circuit Court appealing the determination of a Department of Corrections hearing officer that petitioner had committed a major misconduct violation. In October 1994, the trial court granted petitioner’s motion to waive or suspend filing fees “to ensure [petitioner] of a timely review of [his] complaint,” but reserved the right to reinstate the obligation to pay the fees at the conclusion of the case. In May 1995, the trial court granted respondent’s motion to dismiss or affirm the hearing officer’s decision pursuant to MCR 7.105(J), and suggested that respondent would be entitled to costs and attorney fees on the filing of a proper motion. Respondent then filed a motion to tax costs, which the trial court granted. In granting the motion, the court sua sponte ordered reinstatement of petitioner’s obligation to pay filing fees pursuant to MCR 2.002(G) on the basis that the reason for the waiver, to ensure petitioner an expedient review of his complaint, no longer existed.
Petitioner first contends that the trial court erred in dismissing his petition for judicial review of the hearing officer’s decision. We review the hearing officer’s decision in the same limited manner as the circuit court. Barker Bros Constr v Bureau of Safety & Regulation, 212 Mich App 132, 141; 536 NW2d 845 (1995). We must determine whether the hearing officer’s ruling was “authorized by law or rule and whether the decision . . . [was] supported by competent, material and substantial evidence on the whole record.” MCL 791.255(4); MSA 28.2320(55)(4). Substantial evidence is that which a reasonable mind would accept as adequate to support a decision, being more than a mere scintilla, but less than a preponderance of the evi dence. St Clair Intermediate School Dist v Intermediate Ed Ass’n/Michigan Ed Ass’n, 218 Mich App 734, 736; 555 NW2d 267 (1996), aff’d 458 Mich 540; 581 NW2d 707 (1998). In light of the hearing officer’s opportunity to hear the testimony and view the witnesses, we give great deference to the hearing officer’s factual findings and credibility determinations. Arndt v Dep’t of Licensing & Regulation, 147 Mich App 97, 101; 383 NW2d 136 (1985).
The hearing officer did not err in concluding that petitioner had committed a major misconduct violation. Pursuant to MCL 791.251 et seq.-, MSA 28.2320(51) et seq., and certain administrative rules regarding prisoner misconduct, the hearing officer had authority to find petitioner guilty of a major misconduct violation and to impose an appropriate punishment. See 1987 AACS, R 791.5501; 1995 AACS, R 791.5505. Furthermore, the record illustrates that the hearing officer’s decision was supported by substantial evidence. The reporting corrections officer described the major misconduct incident involving petitioner’s failure to follow his direct order. Another witness corroborated the details of the reporting officer’s description of these events. Their descriptions constituted substantial evidence supporting the hearing officer’s conclusion. Petitioner conveyed a different version of the underlying events and offered affidavits from other prisoners that supported his version of the incident. However, the hearing officer found petitioner’s version of the story less credible than the reporting officer’s, noting that many of petitioner’s supporting witnesses failed to cooperate with the hearing investigator. In light of the deference afforded a hearing officer’s credibility determinations, Arndt, supra, we find that competent, material, and substantial evidence existed to support the hearing officer’s conclusion that petitioner was guilty of a major misconduct violation. It was thus manifest that the question to be reviewed on which the decision of this case depended was so unsubstantial as to need no argument or formal submission to the trial court, MCR 7.105(J)(3)(a), and the trial court properly granted respondent’s motion to dismiss or affirm.
Next, petitioner makes several arguments challenging the trial court’s reinstatement of the obligation to pay filing fees. Petitioner contends that the trial court erred in reinstating his obligation to pay filing fees before making a determination regarding his financial status and in improperly placing on him the burden of proving his continuing indigence. MCR 2.002 governs the waiver or suspension and reinstatement of the obligation to pay filing fees. We review de novo the interpretation of a court rule, a question of law. McAuley v General Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998).
MCR 2.002 authorizes a trial court to relieve an indigent person of his obligation to pay filing fees. The procedure set forth in MCR 2.002 assures that a complainant will not be denied access to the courts on the basis of his indigence. Wells v Dep’t of Corrections, 447 Mich 415, 419; 523 NW2d 217 (1994). “If a party shows by ex parte affidavit or otherwise that he or she is unable because of indigency to pay fees and costs, the court shall order those fees and costs either waived or suspended until the conclusion of the litigation.” MCR 2.002(D). At the end of the case, “the court may on its own initiative order the person for whom the fees or costs were waived or suspended to pay those fees or costs when the reason for the waiver or suspension no longer exists.” MCR 2.002(G).
This Court has addressed in several published opinions prior attempts by the Ingham Circuit Court to reinstate the initially suspended or waived filing fees of prison inmate petitioners. In Koss v Dep’t of Corrections, 184 Mich App 614, 617; 459 NW2d 34 (1990), this Court held that the trial court did not abuse its discretion in reinstating the obligation to pay suspended filing fees pursuant to MCR 2.002(G) when the suspension was due to the court process, not the prisoner petitioner’s indigence, and when there was no determination that the petitioner would forever be unable to pay the fees. Later, in Langworthy v Dep’t of Corrections, 192 Mich App 443; 481 NW2d 726 (1992), this Court again upheld the trial court’s reinstatement of the obligation to pay the fees when it had noted that it suspended the fees to ensure timely review of the prisoner petitioner’s complaint and that, because such review had occurred, the reason for the suspension no longer existed. Id. at 445-446.
In another, subsequent case involving filing fee reinstatement, this Court more closely examined the circuit court’s practice of suspending fees at the outset of litigation initiated by a prison inmate to ensure timely review of his complaint, only to eventually reinstate the obligation to pay the fees at the end of the case because the reason for the suspension no longer existed. Martin v Dep’t of Corrections (On Remand), 201 Mich App 331; 505 NW2d 915 (1993). The Martin Court concluded that before revoking a previously granted waiver or suspension of filing fees and costs pursuant to MCR 2.002(G), a court must determine whether the litigant is indigent at the time of the revocation of the waiver or suspension. Id. at 335. Because the trial court had made no effort to discern the prison inmate’s financial status at the conclusion of the litigation, the Martin Court reversed the reinstatement of the obligation to pay the fees and remanded for a determination regarding the prisoner litigant’s current financial status. Id.
The trial court in the instant case, like the trial courts in Koss, supra, and Langworthy, supra, attempted to justify its reinstatement of the obligation to pay the filing fees by explaining that it had initially waived these fees “to ensure [petitioner] a timely review of his Complaint,” but that “the reasons for the waiver no longer exist[ed] . . . .” The trial court explained its decision to reinstate the filing fees obligation as follows:
In making its determination, the Court takes judicial notice of the fact that [respondent] supplies housing, food, clothing, medical care, transportation, if any, educational opportunities and recreational opportunities free of charge to all prisoners. Any objections to reinstatement of the filing fees pursuant to MCR 2.002(G) and taxation of costs shall be filed within 21 days from the date of this Order. [Petitioner] shall address what employment he has had with [respondent] from the filing of this action to the present time, and if not employed, the reason for such unemployment. [Petitioner] shall also address transactions from his prisoner account for the same period of time. Petitioner shall further address why 50% of any present and future funds posted to [petitioner]’s account should not be automatically deducted to satisfy the filing fee and taxation of costs. If [petitioner] fails to file a brief within 21 days from the date of this order, the Court will deem this matter uncontested and enter the following Order reinstating fees
Therefore, before actually reinstating petitioner’s obligation to pay filing fees, the trial court first provided petitioner the opportunity to establish his indigency. The court thus made its order of reinstatement conditional and did not violate the Martin principle by revoking the initial filing fee waiver without first investigating petitioner’s then-existing financial status.
In response to petitioner’s contention that the trial court should not have required him to prove his indigence, we find proper that the court attempted to ascertain petitioner’s financial status by requiring him to supply the relevant information. This Court in Martin did not require that a court reinstating the obligation to pay filing fees establish a petitioner’s indigency in any particular manner. Furthermore, MCR 2.002(D) places the initial burden of establishing indigence on the petitioner requesting a waiver of filing fees. Additionally, this Court has previously granted a trial court discretion to determine a petitioner’s financial status by requiring that he provide the court with a new affidavit regarding his financial status, by requesting an affidavit from the Department of Corrections, or by adopting some similar procedure. Hadley v Ramah, 134 Mich App 380, 389-390; 351 NW2d 305 (1984).
In response to the trial court’s conditional order of reinstatement, petitioner submitted a certificate showing his prisoner account activity for the period from October 1995 to April 1996, which indicated that petitioner had $360 in deposits, $328.18 in charges and withdrawals, an actual balance of $28.25, and a spendable balance of $0. Petitioner also indicated that he had been employed at nearly all institutions in which he had previously resided and that he was then unemployed but on a waiting list for a law library clerk or tutor position. The trial court denied petitioner’s objections to the reinstatement of the obligation to pay filing fees, noting that petitioner had been employed, had “disabled his ability to pay filing fees” by withdrawing funds from his spending account, and had previously filed twenty-seven unsuccessful cases in the Ingham Circuit Court.
Although the information provided by petitioner established that he had no spendable funds at the time the trial court decided to reinstate the obligation to pay filing fees, we do not believe the court erred in requiring petitioner to pay fifty percent of his current and future income toward satisfaction of his filing fee debt. This Court in Koss, supra, recognized that, when there was no determination that a prisoner petitioner would forever be unable to satisfy his filing fee obligation, it was reasonable for the court to require that money be withdrawn from the prisoner’s account from time to time to pay the fee. The Martin Court did not address the propriety of a court’s requiring an indigent to make installment payments to satisfy the filing fee obligation, but merely required that the court examine the party’s financial status before reinstating the obligation to pay fees. In the instant case, no evidence indicated that petitioner would forever be unable to pay his filing fees. To the contrary, petitioner alleged that he had held many prior jobs in prison and, although unemployed at the time the trial court conditionally ordered reinstatement of his obligation to pay filing fees, petitioner expressed his expectation that he would again secure employment as a law library clerk or as a tutor. The documents regarding petitioner’s prison account reflected depos its amounting to $360 for a six-month period. While most of the charges to petitioner’s account went toward legal postage and copying costs, the records also indicated that petitioner had spent over $124 at the prison store over the same six-month period. We conclude that, on the basis of this evidence, the trial court did not abuse its discretion in reinstating petitioner’s filing fees obligation and requiring installment payments. Koss, supra. See also People v LaPine, 63 Mich App 554, 557-558; 234 NW2d 700 (1975). Interpreting MCR 2.002(G)’s predecessor provision, this Court held in LaPine that, “[s]o long as reimbursement fairly reflects the defendant’s ability to pay, we conclude that the trial court, after furnishing transcripts to an appealing defendant, did not abuse its discretion by imposing a requirement of reimbursement to the county after the defendant is paroled and has obtained employment.” Id. at 558.
We conclude that the trial court complied with Martin, supra, by examining petitioner’s financial situation before reinstating his obligation to pay filing fees. In light of the Koss Court’s recognition of installment payments as a valid exercise of discretion and the legislative mandate that courts reinstate filing fees obligations when evidence of a prisoner’s ability to pay exists,* we uphold the trial court’s order requiring that petitioner contribute half of any future deposits toward payment of his filing fees. We note that the trial court’s decision does not hinder petitioner’s access to the judicial system. Moreover, the trial court’s decision reflects Michigan’s now statutorily embodied public policy that those who spend valuable judicial resources should be required to “take economic responsibility for their decisions to sue.” House Legislative Analysis, SB 1215, January 28, 1997, p 5. If the trial court were unable to fashion such payment plans, individuals like petitioner, who has filed twenty-seven unsuccessful actions in the Ingham Circuit Court, would essentially be subsidized by Michigan taxpayers to file at no cost even frivolous civil actions or appeals from administrative hearings determinations and would be able to force whatever defendants they targeted to expend the time and money involved in defending these actions.
Petitioner also argues that the trial court was required to waive his filing fees because he, as an inmate of the Department of Corrections, qualified as a person receiving public assistance. See MCR 2.002(C). However, we do not deem the shelter and subsistence benefits afforded petitioner while being punished in prison to be the beneficent “public assistance” contemplated by MCR 2.002(C).
Finally, petitioner suggests that the trial court’s order reinstating his obligation to pay filing fees interfered with his ability to provide himself effective assistance of counsel on appeal by adversely affecting his state of mind. Petitioner relies on the Sixth Amendment of the United States Constitution. Because this amendment by its terms only guarantees assistance of counsel “[i]n all criminal prosecutions,” we conclude that petitioner’s argument in this context is without merit. Furthermore, in light of petitioner’s successful perfection of the instant appeal and his ability to produce a brief on appeal raising the issues we have addressed, we find no interference of any kind with his appeal of the trial court’s decision.
Affirmed.
The approach taken by the trial court in ordering reinstatement of the obligation to pay filing fees according to an installment plan resembles that adopted by the Legislature in enacting 1996 PA 555. Although this enactment, embodied at MCL 600.2963; MSA 27A.2963, effective on June 1, 1997, does not apply to the instant case, we find that considering the Legislature’s approach is instructive in ruling on the propriety of the instant trial court’s order of reinstatement. Subsection 2963(1) explains that when a prisoner files a civil complaint or appeal and requests a filing fee waiver on the basis of indigence, the court must require the prisoner to pay the filing fees and must suspend filing of the prisoner’s action until the prisoner submits the filing fee. The court may order a reduced, partial filing fee when the prisoner’s account contains “less than the full amount of the filing fee required by law . . . .” Subsection 2963(3). When a court orders a partial filing fee, the court shall, in addition “order the prisoner to make monthly payments in an amount equal to 50% of the deposits made to the account. Payments under this subsection shall continue until the full amount of the filing fee is paid.” Subsection 2963(5). When the court has initially waived filing fees pursuant to MCR 2.002 because the prisoner plaintiff has “no assets and no means by which to pay the initial partial filing fee, the court shall order the fees and costs to be paid by the prisoner in the manner provided in this section when the reason for the waiver or suspension no longer exists.” Subsection 2963(7). Thus, the trial court’s decision in this case achieves the result that the statute would mandate were petitioner to file his action today. | [
84,
-8,
-34,
-99,
75,
-31,
50,
-98,
99,
-61,
39,
115,
103,
-46,
28,
59,
-13,
63,
81,
123,
79,
51,
102,
97,
-10,
-77,
-13,
-41,
48,
78,
-20,
-76,
76,
-71,
-86,
-107,
102,
-56,
-9,
80,
-114,
7,
-117,
-59,
-15,
-64,
48,
33,
16,
15,
49,
-42,
-29,
46,
17,
-61,
41,
44,
127,
-87,
-48,
-103,
-65,
13,
123,
13,
-79,
54,
-104,
-122,
120,
42,
28,
57,
2,
-24,
123,
-74,
-122,
84,
65,
-101,
41,
110,
-30,
-79,
85,
-19,
-99,
-100,
62,
-102,
29,
-90,
-37,
81,
67,
77,
-106,
-3,
116,
16,
47,
-2,
-20,
-124,
85,
44,
10,
-114,
-76,
-111,
-113,
85,
-122,
-126,
-1,
17,
112,
97,
-60,
-29,
92,
99,
123,
-101,
-38,
-123
] |
Griffin, P.J.
In these consolidated appeals, the people appeal as of right an order of the Recorder’s Court granting defendants’ motions to dismiss charges of first-degree murder, MCL 750.316; MSA 28.548, conspiracy to commit first-degree murder, MCL 750.157a; MSA 28.354(1), and solicitation of first-degree murder, MCL 750.157b; MSA 28.354(2). We reverse and remand.
i
Defendants were charged in 1995 with the November 3, 1983, strangulation murder of Anna Marie Turetzky in Woodhaven, Michigan. Turetzky, defendant Desai’s business partner in the operation of a medical clinic, was found dead in her automobile parked behind a local motel. Desai had allegedly solicited defendant Adams to commit the murder. Following separate preliminary examinations, defendants were bound over and their cases consolidated for trial. Pertinent to this appeal, both defendants moved to dismiss the charges on the basis of prearrest delay, arguing that the prosecution’s twelve-year delay in filing charges caused a loss of evidence prejudicial to defendants’ right to a fair trial. In support of their motions, defendants relied on a stipulation of facts regarding unavailable witnesses and lost evidence.
According to the stipulation, the following witnesses are now deceased or otherwise unavailable: Philip Hatcher, an insurance agent who arranged life insurance policies making Desai and Turetzky beneficiaries upon the death of the other; Jintendra Surti, bookkeeper for Desai and Turetzky, who was the custodian of the clinic’s banking records; Thomas McCrary, who negotiated a clinic check for $2,018 to Adams, characterized by the prosecution as the “payoff” for the homicide; Woodhaven Police Sgt. James Johnson, the preliminary investigator of the murder; Peter Slywka, Turetzky’s father, who made reward offers for the discovery of the perpetrator; Dr. Ruth Higgins, a psychiatrist who was familiar with McCrary’s psychiatric problems; Dr. Gregory Kaufman, who performed the autopsy on Turetzky; and Frank Raines, an associate of key witness Lawrence Gorski.
Certain physical evidence was also stipulated by the parties to be missing: tape recordings of conversations between various individuals, including defendants and an individual named Rick Lobdell, which were turned over to the police; an “Anarchist’s Cookbook” once possessed by Adams; the contents of Adams’ wallet, duffel bag, and automobile, taken from his possession following an alleged extortion attempt and beating in 1984; and, finally, a piece of tissue paper allegedly found by Turetzky family members in the victim’s automobile after her murder and after a search of the car by the police.
Both defendants filed motions to dismiss in the trial court, arguing that all of the missing witnesses and physical evidence were potentially exculpatory and that the twelve-year delay in filing charges prejudiced their rights to a fair trial. Following an evidentiary hearing, the trial court ruled that defendants were irreparably prejudiced and unable to present a defense given the loss of testimonial and physical evidence. The trial court further found that the prosecution intentionally delayed the investigation in order to gain a tactical advantage over defendants by waiting for an anticipated change in the law that would permit the admission of Adams’ inculpatory hearsay statement against Desai. The trial court granted defendants’ motions to dismiss, concluding that the prosecution’s reasons for delay did not justify the undue prejudice to defendants.
n
On appeal, the prosecution argues that the trial court erred in dismissing the charges against defendants. This Court reviews a trial court’s ruling regarding a motion to dismiss for an abuse of discretion. People v McCartney, 72 Mich App 580, 589; 250 NW2d 135 (1976). Upon review, we agree with the prosecution that, under the present circumstances, the trial court abused its discretion in granting defendants’ motions to dismiss.
In People v Bisard, 114 Mich App 784; 319 NW2d 670 (1982), this Court reevaluated the tripartite test of prejudicial delay originally set forth in People v Hernandez, 15 Mich App 141; 170 NW2d 851 (1968), in light of post-Hernandez developments in due process jurisprudence. The Bisard Court, supra at 788, noted:
Two United States Supreme Court cases decided after 1968 have addressed the problem of preindictment or prearrest delay. In United States v Marion, 404 US 307; 92 S Ct 455; 30 L Ed 2d 468 (1971), the Court recognized that the Due Process Clause afforded only “limited” protection to those persons who have not been arrested but observed that such persons’ primary protection was in the applicable statutes of limitation. The Corut explained this decision further in United States v Lovasco, 431 US 783; 97 S Ct 2044; 52 L Ed 2d 752 (1977), when it established a two-part test to be used in the due process inquiry. First, the Court observed that “proof of prejudice is generally a necessary but not sufficient element of a due process claim.” 431 US 783, 790. Second, the Court held that, in addition to the consideration of prejudice, a court was to explore the reason for the delay.1 1
Adopting this two-part test, the Bisard Court rejected an interpretation of Lovasco that would place an “extremely heavy burden” on a defendant by requiring that the defendant prove both actual prejudice and unexplainable delay. Id. at 789. Instead, the Court construed Lovasco in the following manner:
[W]e hold that, once a defendant has shown some prejudice, the prosecution bears the burden of persuading the court that the reason for the delay is sufficient to justify whatever prejudice resulted. This approach places the burden of coming forward with evidence of prejudice on the defendant, who is most likely to have facts regarding prejudice at his disposal. The burden of persuasion rests with the state, which is most likely to have access to facts concerning the reasons for delay and which bears the responsibility for determining when an investigation should end. [Id. at 791.]
See also People v Reddish, 181 Mich App 625, 627; 450 NW2d 16 (1989); People v Loyer, 169 Mich App 105, 118-119; 425 NW2d 714 (1988); People v Shelson, 150 Mich App 718, 726; 389 NW2d 159 (1986); People v Dungey, 147 Mich App 83, 85; 383 NW2d 128 (1985); People v Vargo, 139 Mich App 573, 579; 362 NW2d 840 (1984); People v Evans, 128 Mich App 311, 314; 340 NW2d 291 (1983).
Pursuant to the requisite two-part inquiry, a defendant must initially demonstrate “actual and substantial” prejudice to his right to a fair trial. Bisard, supra at 790; People v White, 208 Mich App 126, 134; 527 NW2d 34 (1994); Dungey, supra at 88. Accord, Marion, supra at 325; United States v Rogers, 118 F3d 466, 474 (CA 6, 1997); United States v Brown, 959 F2d 63, 66 (CA 6, 1992); United States v Lash, 937 F2d 1077, 1088 (CA 6, 1991). In this context, as one federal court has explained, a defendant must show not only “actual prejudice, as opposed to mere speculative prejudice . . . but also that he show that any actual prejudice was substantial — that he was meaningfully impaired of his ability to defend against the state’s charges to such an extent that the disposition of the criminal proceeding was likely affected.” Jones v Angelone, 94 F3d 900, 907 (CA 4, 1996). See also Rogers, supra at 476. This Court has reiterated that proof of “actual and substantial” prejudice requires more than generalized allegations:
A defendant shoulders the burden of coming forward with evidence of prejudice. Until he does so, the prosecution’s burden — to persuade the court that the delay was justified in the face of any resulting prejudice — is not triggered. The imperfection of a witness’ memory may be exposed to the trier of fact during direct or cross-examination and may be emphasized to buttress or undermine credibility. If such absence of memory by a defendant’s material witness due to a lengthy prearrest delay seriously impedes or significantly hinders a defendant in presenting his case, prejudice, of course, would be shown, and the prosecution would be required to demonstrate how that prejudice was justified by the prearrest delay. In this case, however, no such impediment or hindrance was manifest. Moreover, we decline to accept defendant’s assertion on appeal that “the exceptionally long delay in the present case should itself raise a strong inference of prejudice.” Without specific references to instances of prejudice-generating occurrences, and without specific allegations of actual prejudice resulting therefrom, the prosecution would be at an insuperable disadvantage indeed in attempting to show how such unspecified prejudice was in fact justified. We will not put the cart before the horse. [Loyer, supra at 120].[ )
Although the Michigan courts have not had occasion to address the effect of the death of a material witness during an interval of prearrest delay on the continued prosecution of a case, the federal courts have consistently held, in the present context, that the death of a witness alone is insufficient to establish actual and substantial prejudice:
The death of a potential witness during the preindictment period may demonstrate the requisite prejudice if the defendant can demonstrate that exculpatory evidence was lost and could not be obtained through other means. . . . However, a defendant does not show actual prejudice based on the death of a potential witness if he has not given an indication of what the witness’s testimony would have been and whether the substance of the testimony was otherwise available.
Even where a defendant specifies what a deceased witness’s testimony would have been, actual prejudice is difficult to prove. [Rogers, supra at 475.]
See also Lovasco, supra at 785-786; United States v Benshop, 138 F3d 1229, 1232-1234 (CA 8, 1998); United States v Beszborn, 21 F3d 62, 66 (CA 5, 1994); United States v Valona, 834 F2d 1334, 1338 (CA 7, 1987); Stoner v Graddick, 751 F2d 1535, 1544 (CA 11, 1985); United States v Corbin, 734 F2d 643, 648 (CA 11, 1984).
In the instant case, we conclude that defendants have not demonstrated the requisite actual and substantial prejudice necessary to satisfy the first prong of the Bisard test to thereby shift the burden of persuasion to the prosecution to show the reasonableness of the delay. Defendants have made no showing that any of these witnesses would have provided relevant information beneficial to their defense. Although defendants contend in general terms that they have been deprived of the opportunity to cross-examine the unavailable witnesses, defendants have neither specified the substance of that cross-examination testimony nor offered anything more than mere speculation concerning the exculpatory nature of such testimony. Indeed, if any party has been detrimentally affected by the unavailability of these witnesses, it is the prosecution, not defendants. The unavailable individuals were prosecution witnesses who, it is reasonable to surmise, would have provided information valuable to the prosecution. Consequently, the prosecution must move forward without the benefit of this testimonial evidence.
Defendants have likewise failed to show actual and substantial prejudice by reason of the missing physical evidence. Defendants contend that the loss of the physical evidence has denied them the opportunity to conduct testing, such as fingerprint analysis, to determine whether the evidence may have been exculpatory. However, this argument, too, rests upon speculation. Defendants have not substantiated the potentially exculpatory aspects of this physical evidence, for instance, by delving into the substance of the missing tape-recorded conversations or explaining how the loss of the tissue paper and Anarchist’s Cookbook, mcriminatoiy in nature, prejudiced then-defense. In fact, testimony adduced during the evidentiary hearing held below indicated that the missing evidence was the prosecution’s loss and defendants’ gain, given that the prosecution’s case rested in large part on this lost evidence. Defendants’ vague claims of prejudice therefore fall short of the requisite proof. We conclude the trial court abused its discretion in granting defendants’ motions to dismiss on the basis of prejudicial prearrest delay. McCartney, supra. Defendants’ claims of prejudice are too indefinite and speculative to satisfy the threshold requirement of Bisard, supra, that “actual and substantial” prejudice be shown before the burden of persuasion shifts to the prosecution to justify the delay. Defendants have not carried their burden.
m
Next, even if we were to assume the existence of actual and substantial prejudice to defendants, we nonetheless conclude that the trial court clearly erred in finding that the prosecution’s proffered reasons for the delay did not justify the resultant prejudice.
In the present case, an important piece of evidence for the prosecution is the alleged statement made by Adams to witness Lawrence Gorski, in which Adams confessed to killing Turetzky at the request of Desai. Before the Michigan Supreme Court’s decision in People v Poole, 444 Mich 151; 506 NW2d 505 (1993), this alleged statement could be introduced into evidence only against Adams. However, the Poole decision may now provide authority for the use of Adams’ statement against Desai as well. The Poole Court held, pursuant to MRE 804(b)(3), that a declarant’s inculpation of an accomplice, made in the context of a narra tive of events at the declarant’s initiative without prompting or inquiry, and clearly against penal interest, is admissible as substantive evidence at trial. The trial court in the instant case found that the prosecution deliberately waited for this anticipated change in the law before filing criminal charges against the defendants:
[T]he prosecutor’s office contends that the delay in prosecution of this case was due to the ongoing investigation. This is a legitimate reason for a delay. . . .
However, a change in the law occurred permitting them to use Adams’ alleged statement against Desai as well as himself. The tactical advantage of trying both defendants together came as a result of waiting for the Poole decision, rather than the discovery of new evidence from an investigation. Thus, this Court finds that the prosecutor intended to wait for an anticipated change in the law, that was tactically advantageous to them in the prosecution of this case, under the guise of conducting an ongoing investigation.
We respectfully disagree and hold that this finding is clearly erroneous.
In Lovasco, supra at 795-796, the United States Supreme Court opined that an investigative, as opposed to tactical, delay does not violate the Due Process Clause of the Fifth Amendment:
In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely “to gain tactical advantage over the accused,” United States v Marion, 404 US at 324 [92 S Ct 465; 30 L Ed 2d 468 (1971)] precisely because investigative delay is not so one-sided. Rather than deviating from elementary standards of “fair play and decency,” a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of “orderly expedition” to that of “mere speed,” Smith v United States, 360 US 1, 10; 79 S Ct 991, 997; 3 L Ed 2d 1041 (1959). This the Due Process Clause does not require. We therefore hold that to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.
See also Bisard, supra at 790-791; White, supra at 134; Brown, supra at 66.
Our review of the record reveals that several factors were involved in the decision not to prosecute sooner. The testimony of then-assistant prosecutor Nancy Alberts, when read in context, is particularly telling in this regard. She testified that the Poole hearsay problem was but one factor in the decision not to prosecute.
Alberts’ testimony clearly underscores that investigative rather than tactical concerns governed the prosecution’s course of action. The investigation took many twists and turns during the years following Turetzky’s murder. As noted above, key witnesses died and evidence became unavailable. In 1984, a federal grand jury convened to investigate an unrelated matter involving defendant Desai, and more evidence was allegedly garnered pertaining to this investigation. Adams and the key witness, Gorski, disappeared and were eventually located outside Michigan. Gorski failed to appear for a polygraph examination, and Adams, who did take a polygraph, appeared to have “passed” the examination. Finally, in 1994, a one-man grand jury was appointed to investigate unsolved murders in the city of Detroit, including the murder in this case. Both defendants were subpoenaed to appear before the grand juror and, on the basis of the cumulative evidence gathered from this investigation and the intervening years of investigation, defendants were finally charged with crimes arising out of the death of Turetzky. On the record, we find no deliberate tactical delay by the prosecution and hold that the trial court clearly erred in its finding to the contrary.
For these reasons, we reverse the decision of the trial court and remand these cases for further proceedings consistent with this opinion. We do not retain jurisdiction.
These tapes were made in the approximate time frame of January through April 1984, allegedly in an attempt to exact a confession from Adams and extort money from Desai.
This book purportedly contained underlined passages regarding strangulation techniques.
According to the preliminary examination testimony of the victim’s children, the initials “S A” (defendant Adams’ initials) were written on this piece of tissue paper, which was turned over to the police.
Pursuant to the Hernandez test, once a defendant demonstrated that some prejudice had occurred as a result of the delay, it was incumbent on the prosecution to show (1) an explanation for the delay, (2) that the delay was not deliberate, and (3) that no undue prejudice attached to the defendant. Hernandez, supra at 147. If the prosecution failed to establish any of the three prongs of the test, a due process violation was established.
The Lovasco Court, supra at 790-791, reasoned:
It requires no extended argument to establish that prosecutors do not deviate from “fundamental conceptions of justice” when they defer seeking indictments until they have probable cause to believe an accused is guilty; indeed, it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause. It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt. To impose such a duty “would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself,” United States v Ewell, supra [383 US 116, 120; 86 S Ct 773; 15 L Ed 2d 627 (1966)].
Judge Griffin acknowledges that the test for prearrest delay articulated and applied in the instant case is more precise than the standard that he recited in White, supra at 134-135.
Delays spanning many years have been held by courts in other jurisdictions not to be presumptively prejudicial. See, e.g., United States v Pardue, 134 F3d 1316 (CA 7, 1998) (ten-year delay); McDougal, supra (nine-year delay); United States v Mmahat, 106 F3d 89 (CA 5, 1997) (nine-year delay); Jones, supra (ten-year delay); United States v Crouch, 84 F3d 1497 (CA 5, 1996) (seven-year delay); Wilson v McCaughtry, 994 F2d 1228 (CA 7, 1993) (sixteen-year delay); Stoner, supra (nineteen-year delay).
The issue of undue prearrest delay does not entail consideration of the strength of the prosecution’s case, but rather prejudice to the defense. In this regard, we note that defendants filed motions to quash in the trial court. In light of its order dismissing the cases on the basis of prejudicial prearrest delay, the trial court did not address the merits of defendants’ motions to quash.
Defendants’ reliance on People v Dungey, 147 Mich App 83; 383 NW2d 128 (1985), is misplaced. In Dungey, the defendant was not charged with criminal sexual assault until seven months after the alleged assault occurred. Immediately after the offense, the victim underwent a physical examination, which provided secretion evidence. During the intervening delay, the evidence lost its identifying properties, thus preventing the defendant from conducting tests on the evidence. The Dungey Court, supra at 88, ruled:
The secretion typing tests could not prove that defendant was guilty of the act, but offered the possibility of excluding him from the class of suspects. The prosecutorial delay and neglect made it impossible to obtain the potentially exculpatory evidence, and therefore the prejudice to defendant is clear.
The defendant in Dungey amply demonstrated that the physical properties of the missing evidence could have potentially excluded him as a suspect. The missing evidence in the instant case is potentially inculpatory, and defendants have not otherwise specified how these items may have exculpated them or meaningfiilly impaired the defense by their loss.
Moreover, this Court has held, albeit in a different but nonetheless pertinent context, that a loss of physical evidence that occurs before a defense request for its production does not require reversal absent the intentional suppression of evidence or a showing of bad faith. People v Johnson, 197 Mich App 362, 365; 494 NW2d 873 (1992); People v Albert, 89 Mich App 350, 352-353; 280 NW2d 523 (1979). Defendants have not shown from the testimony generated during the evidentiary hearing that the police or the prosecution acted in bad faith or intentionally suppressed or destroyed the missing evidence. On the contrary, one of the original investigating officers, Sergeant James Osborn, expressly disavowed any intentional destruction of evidence.
Q. (Defense Counsel) You earlier testified I think, and correct me if I’m wrong, that you made a decision not to prosecute at a particular time based upon the state of the law at that time regarding this penal interest exception to the hearsay rule?
A. (Alberts) That was as to Dr. Desai, yes.
Q. Okay.
A. There were other considerations. That was one of them.
Q. What were the other considerations?
A. The quality of the evidence we had.
Q. All right. Is it fair to say that you weren’t satisfied that there was a prosecutable case without that statement of Gorski?
A. That was one factor—
Q. Do you recall—
A. —as against Dr. Desai.
Q. Okay. Do you recall other factors?
A. There [was] a problem with — that the case was a circumstantial one, as I remember it, although I don’t remember all of the evidence, but I remember that being one problem. And another one was the — the quality of the evidence against Mr. Adams, the quality of Mr. Gorski’s testimony as — and I think that’s about it. It was not the — at that point it certainly was not — not as strong a case as I thought we could deal with.
Q. Okay. Was caseload a factor, your caseload?
A. No.
Q. Okay. In terms of Gorski, did you ever interview him yourself?
A. No.
Q. Do you recall one of the problems with Gorski being the fact that after he was interviewed, he was requested to take a polygraph and he didn’t show up for the polygraph?
A. Yes.
* * *
Q. Okay. Your decision to not prosecute based upon the state of the law regarding the penal interest exception to the hearsay rule was made before or after you received those [grand jury] transcripts?
* * *
A. My decision to not prosecute was based on a number of factors. That decision was made after Mr. Gorski did not take the polygraph and I don’t think we did anything else after that, so if that would help you with your time frame, I believe that everything was concluded after that point.
Q. Did you at some point in time make a strategic decision or a tactical decision to not prosecute this case at a particular point in time until the law changed or became more favorable with regard to the admissibility of this conversation that had problems relating to the penal exception to the hearsay rule?
A. No.
Q. Did you ever consider that the longer that you delay in bringing or prosecuting this case, that it was going to have a detrimental effect on the ability to reconstruct facts through witnesses because memories would have been faded or evidence would have become lost?
* * *
A. As to this particular case, I mean what I — I want to be careful here because always it’s a detriment that a case is old. At the time I got the case, that was going through my mind because I got the case a number of years after the murder had occurred. But in terms of whether or not I delayed, I had no intention of delaying it. To me it was a decision of whether or not I’m going to prosecute or not prosecute.
Q. As you look back on this case now, was it the ability or the wherewithal of Gorski to pass a polygraph on what he said that was pivotal in your decision whether to prosecute this case?
A. As to whether or not to prosecute the case against Steve Adams, it was very important. I don’t know, I can’t speculate today as to whether or not he had passed, would I have decided to prosecute, I can’t tell you that, but it definitely was very important.
Q. Was there some reason that you wanted to prosecute the doctor and Mr. Adams at the same time as opposed to one before the other?
A. Well, it’s always advantageous to prosecute two defendants at once but I guess that’s the only — only reason, but I didn’t see any way that I could do it.
Q. Is that to say that it gives you some sort — it’s advantageous, it’s some sort of a strategic advantage to do it that way?
A. Sure, if you have the evidence.
Q. Why is that?
A.. Well, you only have to — you only have to do the case once, basically that’s it I guess, and I would think a fact finder would understand more what you’re getting at if you have two people.
Q. In other words, it’s easier to present the jury with all of the persons that you think are involved in the same courtroom?
A. Sure.
Q. Was delaying a factor to collect evidence to give you an opportunity to bring the case against both of them together?
A. Well, you’re assuming a question that I had a goal of delaying and it definitely was not — delay was definitely not — not a thing that I saw going in my favor at all. Delay usually goes against the prosecution, and I was never in favor of delay. And I don’t remember anyone ever coming through my mind or ever being communicated to me that it should be delayed. We’re trying to work as quickly as possible.
On cross-examination, Alberts reiterated that investigative concerns motivated her decision not to prosecute:
Q. (The Prosecutor) If you could have, in your professional judgment, charged this case in 1988, would you?
A. Absolutely.
Q. Why didn’t you?
A. I didn’t think I could get past a preliminary examination.
Q. Did it concern you that on the one hand you had information, however accurate it was, that Mr. Adams had passed a polygraph?
A. Yes.
Q. Did that influence your decision on whether to proceed at all?
A. Yes.
Q. Why?
A. Because he may have been telling the truth. Frankly, from my looking at the other evidence, I really doubted the results of the polygraph, but that is powerful evidence and assuming that it was — that it was correct, I found it to be pretty strong evidence for the defense.
Q. And did—
A. A big hurdle.
Q. Were you concerned about perhaps charging an innocent man?
A. Of course.
Q. And did that weigh on your decision?
A. Sine.
Q. To your knowledge, in the time you were in the unit, was there ever a grand jury impaneled to deal with a specific case?
A. I don’t think so.
Q. Did you delay this prosecution to hurt the defense?
A. I didn’t delay the prosecution at all. I denied the prosecution.
David Hesbum and James Osborn, two of the police officers involved in the investigation during the twelve-year period, also testified during the evidentiary hearing that the investigation was never delayed to gain a tactical advantage.
We further reject the underlying premise advanced by defendants and accepted by the trial court that the Wayne County Prosecutor is capable of predicting Supreme Court decisions years in advance of their issuance. Such clairvoyance would be most extraordinary. | [
-16,
-23,
-20,
-84,
41,
-30,
40,
-70,
113,
-29,
112,
-13,
-83,
-42,
17,
43,
51,
125,
84,
105,
-76,
-78,
55,
43,
-9,
-109,
32,
-41,
-13,
-50,
-20,
-10,
72,
48,
66,
93,
87,
-118,
-29,
82,
14,
-127,
-72,
112,
-5,
0,
48,
123,
-2,
14,
113,
-34,
-89,
43,
22,
-122,
72,
40,
91,
-83,
80,
-92,
-85,
-123,
-37,
50,
-93,
4,
62,
-82,
-40,
15,
-100,
49,
0,
-24,
48,
-106,
-122,
116,
65,
-103,
-116,
102,
-127,
32,
85,
-19,
-88,
-111,
42,
126,
-100,
-89,
89,
75,
0,
13,
-98,
-67,
100,
84,
39,
-68,
-3,
-99,
25,
-20,
8,
-54,
-42,
-109,
31,
52,
-122,
-29,
-29,
1,
48,
113,
-115,
114,
94,
101,
91,
123,
24,
-42
] |
Sharpe, C. J.
Leeta Jenkins presented a claim against the estate of Edward Jenkins in the sum of $865.02, a part of which was for “board, washing and care” of deceased, a part for money loaned him, a part for repairs, and the balance for taxes paid on the home owned by him. It was allowed in full by the commissioners. On appeal to the circuit court, it was allowed by a jury at the sum of $475. The estate reviews the judgment entered by case-made.
Claimant insists that the case is not properly before us for review, the judgment being for less than $500, and the defendant not having complied with the provisions of section 18736, 3 -Comp. Laws 1915, as amended by Act No. 155, Pub. Acts 1923. This section applies only to writs of error. It has no application to review in this court by case-made. Section 13752 provides:
“If either party shall wish to have any cause, which has been submitted to the court upon a case-made, removed to the Supreme Court, the clerk of the circuit court shall, after judgment thereon, certify such case agreed upon, and the judgment thereon, to the Supreme Court, and the Supreme Court shall ■ thereupon be possessed of the cause, and may give such judgment and award such costs as justice may require; and any case-made after judgment in any circuit court, and agreed upon by the parties, or settled- by the court, may be removed to the Supreme Court in like manner without a bill of exceptions or writ of error.”
Supreme Court Rule No. 17 recognizes this right. The case-made before us was settled by the trial court pursuant to this section, and this court is thereby “possessed of the cause, and may give such judgment and award such costs as justice may require.”
The error principally relied on is the refusal of the court to direct a verdict for the estate. Claimant is the wife of Harvey Jenkins, a son of deceased. In August, 1928, she and her husband moved from their home in Grand Rapids to the home of the deceased in Allegan county under the following arrangement, as testified to by the husband:
“When I was at my mother’s funeral, he called me outside and he says to me, T am going to be all alone now. I wonder if you and Leeta wouldn’t come down and make your home with me. If you would come and make your home with us, the property is yours when I am gone,’ and I told him that I would leave all that to Leeta; that I would be willing to come; that it would put me out working in Grand Rapids, living out there; that I will come if she will, so I saw her about it.”
That, pursuant thereto, they went to his home and on the understanding “that the property belonged to my wife and I after he was gone.” There was proof that deceased1 had said to neighbors “that if Harvey and Leeta would move to Wayland and take care of him, the place was theirs when he was through with it.” There was proof that claimant did the housework, the laundry of his clothes, and that when he had a broken arm she gave him attention, “even fed him.” *
Such service as she rendered was under the contract made between the deceased and her husband, to which she had yielded her assent. This contract rested' in parol, and was void under the statute of frauds. While it might be proven to show that the services rendered under it were not gratuitous, and while there might be a claim of recovery for the reasonable value thereof, it is clear that plaintiff may not herself recover therefor in this action. The contract was joint. The services rendered were for their joint benefit. No assignment of his rights thereto had been made to her by her husband. The facts presented are so similar to those before this court in Sorensen v. Sorensen, 211 Mich. 429, in which it was held that the wife could not recover, that further discussion seems unnecessary.
■ The proof as to money loaned and repairs and taxes paid presented an issue for the jury.
The judgment is reversed, with costs to appellant, and a new trial ordered.
Bird, Flannigan, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
The late Justice SNOW took no part in this decision. | [
-14,
-20,
-35,
-8,
40,
-32,
8,
-118,
83,
-127,
39,
-41,
-65,
66,
16,
111,
127,
13,
113,
107,
87,
-77,
95,
-93,
-46,
-109,
-77,
-59,
49,
-51,
-12,
-33,
76,
-32,
106,
-107,
70,
-118,
-127,
80,
-114,
1,
-119,
104,
-39,
80,
48,
57,
20,
25,
117,
-18,
-13,
42,
49,
99,
-20,
41,
-7,
-87,
-8,
-80,
-114,
-115,
127,
7,
-112,
54,
-98,
-125,
88,
42,
-100,
53,
0,
-8,
115,
-106,
7,
116,
73,
-103,
9,
102,
-26,
16,
5,
-17,
-72,
-103,
15,
-66,
-97,
-89,
94,
120,
107,
41,
-68,
-100,
124,
80,
47,
-12,
-18,
20,
93,
40,
-113,
-114,
-10,
-71,
-113,
4,
-100,
3,
-29,
33,
48,
113,
-35,
-30,
121,
7,
59,
59,
-34,
-104
] |
Sharpe, J.
The question here presented is aptly stated by defendants’ counsel as follows:
“Under the garnishment law of Michigan, can the cash value of a life insurance policy be reached by a creditor of the insured, when the insured has not performed the acts made necessary by the policy to entitle him to maintain an action against the insurer for the same?”
The “acts” referred to are the election to take, the surrender of the policy, and demand for payment. The carefully prepared briefs which have been filed have greatly aided us in reaching a conclusion. It is conceded that the question is a new one.in this State. It must be determined by the construction which shall be placed upon the provisions of our garnishment statute. They are found in 3 Comp. Laws 1915, §§ 13123, 13139, and read as follows:
‘‘SECTION 2. From the time of the service of such writ, the garnishee shall be liable to the plaintiff to the amount of property, money, goods, chattels and effects under his control, belonging to the principal defendant, or of any debts due or to become due from such garnishee to the principal defendant, or of any judgment or decree in favor of the latter against the former, and for all property, personal and real, money, goods, evidences of debt, or effects of the principal defendant, which such garnishee defendant holds, by conveyance, transfer or title that is void as to creditors of the principal defendant, and for the value of all property, personal and real, money, goods, chattels, evidences of debt or effects- of the principal defendant, which such garnishee defendant received or held by a conveyance, transfer, or title that was void as to creditors of the principal defendant; and such garnishee defendant shall also be liable on any contingent right, or claim against him in favor of the principal defendant.”
“Section 18. When the garnishee shall be found indebted to the principal defendant, and the time of payment shall not have arrived, no judgment shall pass until after the time of maturity, which shall be named in the finding or verdict.”
These provisions render the. garnishee liable to the amount of any money in its hands, or under its control, belonging to the principal defendant or any debt due, or to become due, to him from the garnishee. The general rule undoubtedly is that a debt which may be sued upon at the time of the service of the writ, or owing but not then due, is subject to garnishment. Nessen Lumber Co. v. Bennett Lumber Co., 223 Mich. 349. The question here presented is whether the defendant company was indebted to the defendant Moll in any sum for which an action might have been brought at the time of the service of the writ. The beneficiary named in the policy had died. It was payable in the event of his death to his estate.
While the policy must in form comply with the provisions of our statutes, it is nevertheless a contract entered into between the ' insurer and the insured. “The policy is the measure of the rights of everybody under it.” Northwestern Life Ins. Co. v. McCue, 223 U. S. 234 (32 Sup. Ct. 220, 38 L. R. A. [N. S.] 57). The principal undertaking of the insurer is to pay a sum certain on the death of the insured. It had, however, from time to time received certain sums additional to the cost of what may be termed straight life insurance, and such payments by the insured entitled him to certain options, plainly stated in the policy, which he might exercise in the manner provided therein. Each of these options is in the nature of an irrevocable offer made to him by the insurer, but in no way binding upon it until acceptance be had. Among them was the right to demand and receive the cash surrender value of the policy. To entitle the insured thereto, he must notify the company of his election to exercise his right of option (make demand therefor) and surrender his policy to the company. There is, a clear distinction' between the necessity of demand for which a prior notice is needed before the right to money is technically complete and a requirement of demand which goes to the cause of action itself. When the money is payable absolutely and without condition, the debt may be garnished. But the present right of the insured to money under this policy and the liability of the company to pay it is not absolute. The right to receive it is one .personal to the insured, and he alone may exercise it. It may not be forced upon him by the insurer. The obligation to pay does not become due at or within a time fixed by the policy, but it rests upon the happening of an event not measured by a time limit, and which may or may not transpire. He must also surrender the policy or make tender thereof before his right of action will accrue. The plaintiff, when seeking to recover the money from the garnishee, has no greater right thereto than the principal defendant. Clay Lumber Co. v. Coal Co., 174 Mich. 613, 619.
Counsel for the plaintiff contends that the amount fixed by the policy as its surrender value “belongs to the principal debtorthat he has the option to accept it, and that the garnishment proceeding should be construed as a demand therefor. The trial court accepted this view, but we are unable to do so. If garnishment will here lie, it could be enforced by a creditor were the insured at the time of service lying on a sick bed with dissolution near at hand. The liability of the insurer under its policy must be determined as of the date of the service of process, and it would greatly benefit thereby.
We have not lost sight of the claimed injustice of permitting a debtor to use his earnings in payment of the premiums due on an insurance policy instead of in satisfaction of his debts. If such injustice needs correction, it must be had by the legislature and not by the courts in placing a strained construction upon the language of our garnishment statutes. In our opinion, no liability attached to the defendant company under' its disclosure, and it should have had a judgment in. its favor.
Plaintiff’s counsel relies on the text in Rood on Garnishment, § 46, and note on page 68; 15 C. J. p. 1404; 28 C. J. pp. 44, 166. In some States garnishment is by statute in the nature of an equitable proceeding under what is spoken of as “trustee process.” In Maurice v. Insurance Co., 201 N. Y. Supp. 369, the effort to reach the fund was brought by a receiver appointed in proceedings supplementary to execution. The conclusion we have reached finds support in Farmers & Merchants Bank v. Insurance Co., 161 Ga. 793 (131 S. E. 902, 44 A. L. R. 1184); Columbia Bank v. Life Assurance Soc., 80 N. Y. Supp. 428; Boisseau v. Bass, 100 Va. 207 (40 S. E. 647, 57 L. R. A. 380, 93 Am. St. Rep. 956); case and note thereto in 16 L. R. A. (N. S.) 317; Ellison v. Straw, 119 Wis. 502 (97 N. W. 168); Ober v. Seegmiller, 180 Iowa, 462 (160 N. W. 21); Gies v. Insurance Co., 12 Minn. 279; Nickerson v. Nickerson, 80 Me. 100 (12 Atl. 880); Anthracite Insurance Co. v. Sears, 109 Mass. 383.
The judgment'entered is reversed and set aside, with costs to appellants, and the cause remanded to the circuit court with directions to enter a judgment for the garnishee defendant.
Flannigan, C. J., and Fellows, Wiest, Clark, McDonald, and Bird, JJ., concurred.
The late Justice SNOW took no part in this decision. | [
-10,
-1,
-40,
-83,
64,
-16,
42,
-110,
-3,
-6,
53,
-45,
-67,
-30,
4,
127,
-11,
-5,
97,
34,
-108,
35,
23,
99,
-34,
51,
-47,
69,
48,
93,
126,
-36,
12,
32,
-58,
-43,
-58,
-93,
-63,
-2,
70,
-114,
-104,
-19,
-39,
64,
48,
-21,
80,
67,
97,
-114,
-29,
47,
49,
106,
73,
40,
-7,
-71,
-32,
-72,
-81,
-123,
122,
20,
-127,
4,
-100,
103,
-40,
14,
-104,
23,
0,
-8,
114,
-90,
6,
84,
105,
-101,
121,
102,
99,
-112,
17,
109,
-8,
-103,
-82,
-2,
15,
-89,
-45,
89,
-126,
44,
-73,
-97,
110,
4,
-90,
-12,
-20,
20,
31,
-84,
7,
-113,
-10,
-78,
-103,
-42,
-120,
11,
-58,
3,
50,
113,
-50,
104,
92,
71,
121,
-111,
-98,
-51
] |
Sharpe, C. J.
Between 1 and 2 o’clock in the morning of September 8, 1925, the defendant Knappins was driving a truck with a two-wheel trailer attached at the rear, belonging to the other defendants, from Detroit to Grand Rapids. When about 10 miles west of Portland, an Oakland touring car, then being driven by Arthur G. Henderson, crashed into the rear end of the trailer. Marvyle Skaug, who was sitting in the front seat of the car with Henderson, received injuries due to the collision which resulted in her death a few hours thereafter. Plaintiff, as administrator of her estate, brings this action to recover the damages due thereto. The trial court directed a verdict for the defendants because of the negligence of the driver of the car. Plaintiff reviews • the judgment entered thereon by writ of error.
The testimony of the witnesses and the inferences which may fairly be drawn therefrom must be viewed in the light most favorable to support plaintiff’s right of recovery. Henderson, the driver of the car, testified : “It was a dark night, no moon, but it was not raining. The weather was clear;” that on the car “were two headlights burning bright” and a spot light “placed on the right-hand side so that it might show the right-hand side and the ditch;” that he was proceeding on a down grade and “when I got part way-down I saw a truck come in from the left-hand side and turn in to my track and I applied my brakes;” that he was traveling “right in the right-hand track, and that is within two or three feet of the edge of the road;” that the speed of the car was about 25 miles an hour-; that it was equipped with four-wheel brakes, which would stop the car when so traveling within .50 feet; that “on the left-hand side there is a very deep ditch and the land on the left-hand side is much lower than the road, and on the right-hand side is a deep ditch and high embankment;” that he first saw the trailer when within 30 feet of it; that he then applied the brakes, but could not stop in time to avoid the collision; that he was familiar with the road, and knew that it was crossed by a highway about 75 feet from where the accident occurred. We quote from his testimony:
“Q. Now, how far ahead of your car did your lights illuminate the highway? .
“A. Over 200 feet.
“Q. And did they illuminate the entire highway, or only just some portion of it?
“A. Just in front of my car.
“Q. You did not have the required lights on your car, did you?
“A. Yes.
“Q. You did not have lights on your car that would illuminate a space in the roadway 200 feet ahead of you that would be 22 feet in width?
“A. No.
“Q. How wide was the space in width that your lights would illuminate the roadway at 200 feet?
“A. About six feet.
“Q. Now, at any point within 200 feet and the front portion of your car, would the lights illuminate any greater width in the highway than six feet?
“A. Yes, on the right-hand side.
“Q. That is on account of the spotlight?
“A. Yes.
“Q. Your headlights at no point within 200 feet or over 200 feet, or at any point in the roadway ahead, would illuminate a width of more than six feet?
“A. Possibly four or five feet in front of the car, might throw a slight ray on each side, reflection might.
“Q. You didn’t misunderstand my question in any way, did you?
“A. No.”
It is undisputed that the roadbed at the point of collision was 24 feet wide. Of this, 16 feet had been graveled, leaving what is called a “shoulder” on each side four feet in width. There is proof that by use the gravel had spread over the shoulder to some exteht.
Marvel J. Church, a farmer living near the scene of the accident, reached there soon thereafter. He described the condition of the car and truck and said that it was the “worst wreck” he had ever seen. He further testified:
' “After the accident I looked on the road to see where the tracks of his truck weré just prior to the accident. We looked at the tracks of the truck. He had been on the south side of the road, that is, not clear over, but past the center; past the center of the road on the south side. The tracks of the truck were plainly discernible.”
On being asked how far the left wheel marks of the truck and trailer were over the center of the road, he said, “Probably three feet, maybe more. It is a long while ago,” and stated that he had traced them back three or four rods to the top of the grade.
The statute then in force, providing for lights upon motor vehicles (1 Comp. Laws 1915, § 4812, as amended by Act No. 287, Pub. Acts 1925), reads as'follows:
“Every motor vehicle operated on the public highways shall be equipped with not more than two white headlights of equal candle power, capable of clearly lighting the highway at least two hundred feet ahead. * * * Any violation of the provisions of this subsection shall constitute reckless driving.” * * *
The driver testified, as above stated, that the car was equipped with two headlights which would illuminate the road more than 200 feet in front of the car, but such illumination, except for “four or five feet in front of the car,” was confined to a width of about six feet. It may well be doubted whether the illumination from these lights could be thus confined, but, if it was, then clearly the equipment in this respect was not “capable of clearly lighting the highway,” as required by the statute. The purpose of these lights is to afford the driver a view of the entire traveled' portion of the road for a distance of 200 feet in the front of his car, and they should be so adjusted and operated as to render the use of the highway by such vehicle safe for the public. The driver of a motor vehicle has a right to travel upon any portion of the roadbed when not near a vehicle approaching from the front or rear. On such approach, it is his duty to bring his vehicle to the right side of the roadbed in order that the one approaching may pass in safety. Under the undisputed testimony, the truck and trailer were at no time entirely on the south side of the center of the roadbed. Had the Oakland car been equipped with the lights provided for in the statute, and had they been in good working order, its driver, if he had been looking, could not but have seen the rear end of the trailer when it was a distance of 200 feet from him, and, as he could have stopped within 50 feet, the accident would have been avoided. Conceding that the driver of the truck was negligent, the negligence of the driver of the car contributed to the injury sustained by the deceased. The conclusion reached is in harmony with our former decisions. Spencer v. Taylor, 219 Mich. 110; Lett v. Summer-field & verdict & Hecht, 239 Mich. 699, and cases cited, for defendants was properly directed.
The judgment entered thereon is affirmed.
Bird, Flannigan, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
The late Justice Snow took no part in this decision. | [
-16,
-22,
88,
-84,
56,
98,
42,
90,
93,
-123,
-75,
-109,
-81,
-63,
69,
9,
103,
-99,
112,
99,
-73,
-77,
22,
-126,
-109,
115,
-21,
-113,
-93,
-56,
116,
-13,
76,
32,
-54,
29,
102,
9,
69,
88,
-50,
2,
-87,
-8,
89,
16,
-12,
122,
-62,
15,
115,
-98,
-53,
43,
30,
67,
45,
40,
-21,
-83,
-63,
49,
-59,
5,
-17,
18,
-128,
4,
-98,
41,
90,
9,
-100,
-75,
32,
-8,
114,
-90,
-112,
-12,
97,
-103,
12,
-26,
102,
33,
1,
-51,
-4,
-104,
14,
-6,
13,
-89,
58,
21,
11,
33,
-66,
-103,
127,
16,
12,
102,
-3,
85,
93,
112,
7,
-53,
-76,
-77,
-19,
32,
-98,
9,
-29,
-115,
54,
113,
-56,
102,
77,
5,
115,
-69,
-105,
-46
] |
Wiest, J.
The bill herein was filed to rescind a real estate transaction for alleged fraud perpetrated by a real estate agent representing defendants. Plaintiff owned a house and lot in the city of Lapeer, worth about $2,500, and listed it, for sale or exchange, with C. D. Moses, a local real estate agent. Defendants, as purchasers under a land contract, had an equity in a farm which they listed with Mr. Moses for sale or exchange. The farm was worth about $4,000 and $2,450 remained to be paid on the land contract. The agent brought about a deal. Plaintiff deeded his property to defendants and they assigned their contract interest to him and paid him $1,000. In order to raise a part of this money defendants mortgaged the property they received from plaintiff for the sum of $450. In the circuit the bill was dismissed. The circuit judge stated in an opinion that plaintiff was not entitled to relief for two reasons:
“(a) Because plaintiff did not offer to place the defendants in statu quo, that is, did not tender back what he had received from them before commencing this suit.
“(b) Because plaintiff has not shown any fraud on the part of the defendants in this transaction.”
Without previous tender of the money received or offer to' reassign the land contract, plaintiff filed the bill herein to obtain rescission, claiming the real estate agent falsely represented that the vendor in the land contract had written a letter stating $1,500 would be accepted in full payment of the $2,450. No such letter had been written. The real estate agent denied making any such representation. If the representation was made by Mr. Moses, defendants did not know it, and the first they heard about it was after the bill was filed. In an action at law, based on rescission, a tender is a prerequisite. Wilbur v. Flood, 16 Mich. 40 (93 Am. Dec. 203); Joslin v. Noret, 224 Mich. 240; Lackovic v. Campbell, 225 Mich. 1. In equity, however, the rule is not so rigid, for there the bill must make profert of return of what has been received and the decree will place the parties in statu quo, as far as possible. We must hold that a bill to obtain rescission and place the parties in statu quo will not, as a matter of law, be dismissed for want of a tender before suit. This brings us to the question of fact.
Plaintiff is illiterate but not devoid of intellect. In this matter he enlisted the aid of his brother Ernest. The real estate agent knew of this and that plaintiff would only act as his brother advised. Plaintiff and his brother were well aware of the fact that there was $2,450 unpaid on the land contract, and that was. the very reason for refusal to take the farm unless the vendor consented by letter to take $1,500 in full payment. Some time before this deal the vendor had offered a discount of 15 per cent. We are persuaded, by a preponderance of the evidence, that Mr. Moses represented that a letter, written by the vendor agreeing to accept $1,500 in satisfaction of the contract, had been received by a third party, and this induced plaintiff to take the farm. We are not impressed with the circumstances, shown by Mr. Moses in support of his denial. There was no occasion to have a disinterested party read the land contract to plaintiff and impress upon him that it called for $2,450, for plaintiff knew the fact and that was the very stumbling block to the deal. Mr. Moses was defendants’ agent in bringing about a sale of their contract interest in the farm. Defendants may retain no advantage brought to them by fraud of their agent.
As stated in 27 R. C. L. p. 365:
“As a general rule a vendor is liable for the fraud of his agent in effecting a sale though made without his knowledge or sanction. If the representations are made by the agent as a part of the negotiation for the purpose of bringing about the sale, and by means of this it is brought about, the conveyance made and the proceeds of the sale received, this brings the case within the general rule that a principal is responsible for such acts of his agent as are done within the scope of his authority, whether authorized or not, except by the general authority to do the principal act.”
Having employed Mr. Moses to make the sale, defendants are responsible for the methods adopted by him as their agent in accomplishing the purpose delegated.
The decree in the circuit is reversed and a decree will be entered here rescinding the exchange accomplished, and plaintiff must reassign the land contract to defendants and pay back the $1,000 received, less the amount of the mortgage placed by defendants on the city property, and defendants must, by proper deed, convey the city property to plaintiff subject, however, to the mortgage of $450, which plaintiff must assume and agree to pay. Plaintiff will recover costs.
Flannigan, C. J., and Fellows, Clark, McDonald, Bird, and Sharpe, JJ., concurred.
The late Justice Snow took no part in this decision. | [
-14,
-4,
-48,
-20,
-118,
96,
32,
-104,
83,
-95,
54,
83,
109,
-62,
16,
55,
-25,
43,
-48,
105,
31,
-93,
79,
99,
-10,
-77,
-45,
77,
-67,
109,
-12,
-43,
12,
48,
-62,
-43,
71,
-126,
-119,
84,
14,
-124,
9,
-20,
-7,
64,
52,
27,
84,
73,
113,
-113,
-13,
46,
49,
65,
-55,
40,
123,
-71,
-63,
-20,
-65,
13,
59,
6,
-128,
118,
92,
66,
74,
74,
-112,
53,
1,
-56,
127,
-66,
-122,
116,
13,
-101,
40,
38,
102,
18,
69,
-19,
-16,
-100,
47,
-5,
-115,
-90,
-47,
88,
3,
9,
-66,
-97,
85,
16,
39,
118,
-17,
-107,
31,
108,
3,
-18,
-42,
-77,
-99,
122,
28,
67,
-18,
23,
52,
113,
-51,
102,
92,
103,
113,
-101,
-116,
-97
] |
Fellows, J.
(after stating the facts). We are persuaded that these rulings were erroneous. The general rule is that the chastity or want of chastity of the prosecutrix under the age of consent is unimportant in a statutory rape case, and that testimony on that subject is, therefore, immaterial. But this rule, like most rules, has its exceptions. Where the prosecution, in corroboration of the testimony of the prosecutrix, introduces proof to the effect that the prosecutrix is pregnant or that a physical examination discloses that her person has been violated by some one at about the time charged, the defendant should be permitted to establish either by direct or circumstantial evidence that some one other than himself is or may be responsible for the condition established. Thus in People v. Keller, 227 Mich. 520, there had been an examination by a physician who testified to a condition of prosecutrix which might have resulted from sexual intercourse. It was held (quoting from the syllabus):
“In a prosecution for statutory rape by defendant upon his daughter, testimony by another daughter as to admissions made by prosecutrix of relations with other .men which would account for her physical condition, held, admissible.”
To the same effect is People v. Werner, 221 Mich. 123. See, also, People v. Craig, 116 Mich. 388; People v. Kaminsky, 73 Mich. 637. The exception to the rule finds support in other jurisdictions. People v. Flaherty, 79 Hun (N. Y.), 48; Bice v. State, 37 Tex. Crim. Rep. 38 (38 S. W. 803); Kanert v. State, 92 Neb. 14 (137 N. W. 975); Nugent v. State, 18 Ala. 521; People v. Currie, 14 Cal. App. 67 (111 Pac. 108); State v. Bebb, 125 Iowa, 494 (101 N. W. 189) ; State v. Mobley, 44 Wash. 549 (87 Pac. 815). The last cited case is so nearly on all fours with the one before us that we quote quite liberally from it. It was there said by Mr. Justice Crow, speaking for the court:
_ “In refusing to permit answers to the above questions, the trial court committed prejudicial error. The State was relying for conviction upon evidence of the prosecutrix, which was without corroboration except in so far as such corroboration was afforded- by her condition of pregnancy, if such condition in fact existed. She attributed such alleged pregnancy to the acts of appellant. The jury undoubtedly knew from her personal appearance upon the witness stand whether she was telling the truth as to her pregnancy, the usual period of gestation having then about expired. If her testimony in this regard was manifestly truthful, it necessarily appeared that some person was guilty of the offense for which the appellant was on trial. If he could do- so, the appellant was therefore legally entitled to show by competent evidence what the habits and conduct of the prosecuting witness had been at or about the time she claimed he had sustained illicit relations with her. If, in fact, this young girl was habitually away from home night after night, and made a practice of returning at any time from midnight until 4 o’clock in the morning, she was certainly conducting herself in a highly improper manner, and was guilty of conduct which, to say the least, would seriously ■ reflect upon her character for chastity and affect her credibility. The dates fixed by appellant’s counsel in the questions above mentioned exactly coincided with those upon which she had charged appellant. The testimony of these witnesses, had the same been admitted, might have developed evidence tending to account for the condition of the prosecutrix, consistently with the innocence of appellant. The courts have almost universally recognized the difficulty under which a defendant necessarily labors in seeking to exculpate himself from a charge of this, character when once made, and a considerable liberality should be exercised in permitting him to fully show the situation of the parties and all the circumstances surrounding them at or about the date of the act charged; and this is especially proper in this State where a conviction may be had upon the unsupported testimony of the prosecuting witness.”
The conviction will be set aside and a new trial granted.
Sharpe, C. J., and Bird, Flannigan, Wiest, Clark, and McDonald, JJ., concurred.
The late Justice Snow took no part in this decision. | [
48,
-22,
77,
-67,
11,
64,
-94,
124,
114,
-61,
55,
115,
-83,
-46,
20,
123,
-117,
103,
84,
32,
-41,
-122,
23,
65,
-10,
-13,
-6,
-41,
55,
-49,
-28,
-4,
76,
112,
-126,
-11,
98,
-53,
-35,
82,
-126,
-121,
-104,
-28,
82,
-108,
100,
119,
-44,
71,
113,
-98,
-61,
44,
-68,
-57,
41,
12,
74,
-68,
96,
97,
-104,
21,
-49,
54,
-77,
36,
60,
-122,
-8,
48,
24,
-71,
9,
-24,
59,
-74,
2,
-12,
13,
-119,
-127,
98,
98,
-80,
29,
-26,
-23,
-87,
-65,
-1,
-67,
-89,
88,
73,
9,
41,
-73,
-15,
100,
84,
38,
106,
-29,
92,
127,
36,
10,
-113,
6,
-79,
-49,
100,
58,
37,
-25,
-91,
16,
113,
-49,
118,
84,
69,
26,
-45,
-114,
-90
] |
Wiest, J.
This action was brought to recover damages for alleged malpractice by a physician in the use of the X-ray. Plaintiff stepped on a needle and it broke off in his foot. Defendant treated him, and, plaintiff claims, so burned his foot in a negligent use of X-ray as to cause him great pain and suffering and the ultimate loss of his right foot, by necessary am putation, about eight inches above the ankle. A jury awarded plaintiff $15,000 damages. Defendant reviews by writ of error.
At the close of plaintiff’s proofs defendant moved for a verdict in his favor. The court denied the motion. The motion was in the nature of a demurrer to the evidence, and, in reviewing the denial, we must accord the testimony verity and give it probative value within the limits of every reasonable inference the jury could draw therefrom. We find no error in the denial of the motion. At the close of the proofs defendant again moved for a directed verdict. The motion was denied. We think the evidence presented an issue of fact for the jury.
At the trial long hypothetical questions were asked expert witnesses by plaintiff’s attorney, and counsel for ■ defendant allege error in overruling their objections thereto. It is insisted that the questions did not state scientific facts essential to be considered' in giving an opinion. The experts seemed able to answer without the particular factors asserted, and, we think, the assumed facts in the questions justified the rulings. A hypothetical question was asked one expert and he was requested to state whether or not, in his opinion, the exposure of plaintiff’s foot to the X-ray in the manner indicated was proper or improper. The expert answered: “I would say it is highly improper.”
The court overruled the following objection:
“The question invades the province of the jury; that the question is too long and improper to be understood by this jury. That it assumes scientific facts not in evidence without which it is impossible to intelligently answer the question.”
The standard of care, skill, and diligence required •of an X-ray operator is not fixed by the ipse dixit of an expert, but by the care, skill, and diligence or dinarily possessed and exercised by others in- the same line of practice and work in similar localities. We pass the form of the question and the nature of the answer and hold there was no reversible error, for the reason that the question was based on the testimony of plaintiff relative to the period he was exposed to the X-ray, and which,-if true (and had to -be accepted, as true by the expert), stated an exposure for a period even the merest tyro would know was improper, and every witness, including defendant, said such a dosage would have been improper. Defendant denied any such dosage. It should be remembered that an expert witness, in- answering a hypothetical question,' must accept as true every asserted fact stated therein, but the jury cannot consider the answer of the expert unless they find the evidence establishes the truth of ail such asserted facts. If the hypothetical question goes beyond the evidence it defeats itself and affords an excellent opportunity for argument before the jury to- that effect. In considering a challenged hypothetical question we can give no thought to the weight of the testimony, for, if there is any competent testimony supporting the asserted facts, the question, goes to the jury. Plaintiff’s case rested upon the charge ■of negligence on the part of defendant in administering an excessive dosage and depended in the main upon his own testimony. The doctrine res ipsa loquitur is not recognized in this State, and, therefore, proof of the burn was no proof of defendant’s negligence. Plaintiff had the burden of showing that he suffered an X-ray burn occasioned by an overdosage or exposure of his foot, and that such happened because defendant failed to exercise the reasonable and ordinary care, skill, and diligence possessed by others in the same line of practice and work in similar localities.
The evidence discloses that X-ray burns do occasionally occur in the ordinary course of exposure and in spite of the highest diligence and skill to prevent them; the reason being that persons of a certain type and temperament are susceptible to a burn while persons of a different type and temperament, under the same ■circumstances, will not suffer a burn. It also appears that this idiosyncrasy cannot be determined before or during the time of exposure but is manifested only by subsequent developments. Plaintiff assumed the risk of a burn from a proper exposure to the X-ray and defendant incurred the liability to respond in .damages if the burn was occasioned by his negligence.
There exists for the guidance of the operator of an X-ray machine certain formula. Plaintiff claimed his foot was exposed to the X-ray for two hours and a half, except for short intermissions. The X-ray, in this instance, was not for treatment but to locate the needle in plaintiff’s foot and to assist the defendant in an operation for its removal. Defendant claimed the foot was exposed to the X-ray but a few seconds at a time and altogether about five minutes, and that, while plaintiff was in his operating room about two hours and a half, he was performing an operation on the foot to remove the needle, and did not require and did not use the X-ray, except as above stated.
It is strenuously insisted, in behalf of defendant, that plaintiff’s testimony relative to the time his foot was exposed to the ray should not have carried that question to the jury, because it was a physical impossibility for plaintiff to have had knowledge on the subject. The credit to be given the testimony of plaintiff relative to the time his foot was exposed to the ray rested with the jury and we may not hold it of no probative value.
Defendant moved for a new trial, alleging, among other grounds, error by the trial judge in making the following statement in the presence of the jury during the argument of counsel for defendant:
“Mr. Cady, that is gross error. You had no right to use such an argument to the jury, and if the jury render a verdict for the defendant in this case, I would set aside the verdict.”
The court stenographer was not present, and the motion, in this particular, was supported by the affidavit of Leo M. Ford, one of defendant’s attorneys. No counter affidavit was filed. The trial judge denied the motion and filed written reasons but made no mention of this subject. Defendant excepted to the denial, and has brought the question here by assignment of error. Such assignment of error, of course, accompanied notice of settlement of the bill of exceptions and was before the trial judge when he signed the bill. The motion for a new trial, the assignments of error, and the brief of counsel for defendant all challenged the attention of counsel for plaintiff to this matter, and counsel for plaintiff, in his brief, took the position that the defendant cannot urge the point because his counsel did not object to the remarks of the court. We need but say that counsel was not required to make an objection. If the remarks were made by-the judge counsel was in no position to act in the capacity of moderator and was not required to challenge the propriety thereof by objection. An exception, under present practice, could be claimed. At the argument in this court the serious character of the claimed error was indicated, and later counsel for plaintiff brought the matter to the attention of the circuit judge who then filed, in the circuit court, a supplemental opinion or reasons for denying a new trial, and plaintiff, by motion, asks that the record be amended by inclusion thereof. The case was argued: and submitted in this court October 5, 1927, and then taken under consideration. The supplemental opinion in the circuit was filed October 22, 1927; eleven months after denial of a new trial. In the supplemental opinion the circuit judge states that:
“As I recall the situation, the affidavit of Mr. Ford is not in strict accord with the facts. Mr. Cady in his argument to the jury did use substantially the language as set forth in the affidavit of Mr. Ford. At that time the stenographer was not in the court room, and no record was being taken of the argument. As soon as Mr. Cady had made the statement in question, Mr. Gore, attorney for plaintiff, objected to the statement. The court thereupon told Mr. Cady that in his judgment the argument was error and prejudicial, and that should the defendant obtain a verdict from the jury, the court might be called upon to set the same aside because of such prejudicial argument.”
When the court stenographer was called he took the following:
“Mr. Gore: Counsel for the plaintiff strenuously objects to the statement of counsel for the defendant that the witnesses from Ann Arbor in this case were brought to this court by reason of influence of relatives of either the plaintiff or plaintiff’s counsel.
“Mr. Cady: I did not so state to the jury that I believed it was influence brought by the plaintiff’s counsel or relatives.
“The Court: Counsel for the defendant in arguing this case made the statement from which it might be inferred, that he wants the jury to infer, that certain witnesses were induced to come here by relatives of some one connected with the plaintiff’s case. The court holds that this is highly prejudicial to the plaintiff and the jury are instructed to pay no attention whatever to the argument made by counsel in respect to this phase of the case.
“Mr. Cady: I want also to have the record show that on being reprimanded by the court, I ask the court’s pardon and ask the court to charge the jury to pay no attention to the remark — that this remark was brought out by the question by plaintiff’s counsel yesterday asking the jury to determine what influence it was that brought these witnesses to testify in the case, and counsel for the defendant, if he is in error, in making the remark as said by the court, asks the jury to pay no attention to the remark whatever. Is that satisfactory, your honor?
“The Court: Proceed.”
We must decline to supplement the record by inclusion of the opinion of the circuit judge rendered after the case was argued and submitted here and without our consent. O’Flynn v. Eagle, 8 Mich. 136. See, also, Varrick v. Hitt, 65 N. J. Eq. 778 (60 Atl. 47). And at this late stage we must decline to remand the bill of exceptions for inclusion of action taken after certification of the record to this. court. A bill of exceptions may be remanded for correction in accordance with facts existing at the' time it was settled. People v. Vanderhoof, 234 Mich. 419. But we may not remand a bill of exceptions, or the record, to have added thereto action taken in the circuit to meet an error assigned and argued here and under advisement. The rule we state may appear a hard one in this instance, but there must be a rule on the subject, otherwise error may be plainly apparent on a record before us in a case argued and submitted and may then be met by subsequent action in the circuit to cover the point.
We adopt the rule stated in Johnson v. Couillard, 4 Allen (Mass.), 446:
“Taking this bill of exceptions as allowed by the presiding justice, there is one error so palpable that it has been deemed proper to sustain the exceptions and set aside the verdict on that account alone. * * * It is said by the counsel for the plaintiff, and, as we have much reason to suppose, correctly, that there is an error in the bill of exceptions, and that proper instructions were given on that point. But no amendment of the bill of exceptions having been offered until after the case had been submitted to us on argument by the respective counsel, we have not thought it proper at so late a stage of the case to receive any certificate to that effect without the consent of both parties, and especially in a case where the error can produce no greater evil than a new trial.”
It seems the circuit judge, in denying the motion for a new trial, did not notice this point, and the briefs filed with, him did not mention it, and, therefore, he overlooked it in giving his reasons. We surely would not, before or after argument here, remand the record to enable the circuit judge to render a supplemental opinion or give reasons to meet an error assigned, and much less should we countenance such action without our permission. Upon the record before us, we must accept the showing, made in the affidavit of Mr. Ford and may not consider the traverse thereof iff the supplemental opinion by the circuit judge. Upon the record before us a new trial should have been granted.
The judgment is reversed and a new trial granted, with costs to defendant.
Flannigan, C. J., and Fellows, Clark, McDonald, Bird, and Sharpe, JJ., concurred.
The late Justice Snow took no part in this decision. | [
112,
-24,
-39,
-68,
8,
96,
-80,
8,
69,
5,
55,
51,
109,
-53,
-100,
51,
-73,
63,
16,
99,
95,
-93,
23,
73,
-14,
-41,
-13,
-41,
-75,
-18,
-12,
-104,
77,
48,
-126,
-43,
-30,
11,
-3,
80,
-58,
-100,
-87,
72,
-111,
16,
32,
119,
-48,
87,
49,
-98,
-93,
34,
31,
-57,
-87,
58,
107,
61,
65,
-95,
-76,
13,
125,
16,
-93,
55,
30,
69,
-40,
60,
-40,
49,
8,
-8,
115,
-74,
-62,
-12,
11,
-71,
-100,
96,
38,
32,
9,
-19,
-8,
-72,
47,
13,
-115,
-90,
-109,
64,
73,
-115,
-73,
-11,
116,
16,
14,
104,
-25,
93,
94,
100,
11,
-97,
-44,
-109,
-97,
116,
28,
-30,
-5,
-121,
22,
113,
-35,
-80,
92,
69,
25,
-101,
-114,
-66
] |
Fellows, J.
This 'bill was filed to determine and admeasure the dower rights of plaintiff in lands owned by defendants. Upon the hearing it developed, and practically without dispute, that plaintiff’s husband lived and did business under different names; that under the name of Walter Derwichowski he held title in fee to the premises in question, and, representing himself to be a single man, alone conveyed the property to defendants. Such conveyance was executed under these circumstances: Plaintiff’s husband had traded farm lands to defendants for their city property; they became dissatisfied, and, claiming that they had been defrauded, instituted an action in which a capias had issued and been served; a settlement was agreed upon 'by which each was to restore to the other the property received in the exchange; plaintiff’s husband was unable to carry out his agreement because he was unable to repurchase the city property from those to whom he had sold it, and the agreement was modified by substituting the property in question in its place as the best thing that could be done. It also appeared that plaintiff had instituted divorce proceedings, in which she claimed an interest in the property and had filed notice lis pendens before defendants received their deed.
After the case had been heard and the trial judge had announced his decision, but before the signing of the decree, defendants employed their present counsel and a motion for rehearing was made accompanied by a sworn amended answer. Defendants’ present counsel conceded in the court below, and do here, that upon the record as made and the theory upon which the case was tried, the trial judge correctly decided the case, so it will be unnecessary to consider the correctness of his decision on the case as originally made. But it is insisted that upon testimony which can be produced and the theory which they now advance, defendants should prevail. It will, therefore, be necessary for us only to determine whether there should have been a rehearing. If not, there must be an affirmance.
Motions for rehearing unless for an erroneous conclusion on the original hearing are addressed to the sound discretion of the trial judge. In the interest of justice they may and should be granted (J. L. Hudson Co. v. No-Name Hat Co., 174 Mich. 109), but the granting of them on the grounds of newly-discovered evidence is not looked upon with favor by the courts. Canfield v. City of Jackson, 112 Mich. 120; Hydrex Silent Exhaust Works v. Seager Engine Works, 189 Mich. 431; Garaszewski v. Wurm, 204 Mich. 227; Romanuick v. State Bank, 235 Mich. 217. Nor should they be granted solely because of the a'dvent of new counsel with new theories of attack or defense. If so-, litigation would be interminable or at least continue as long as the supply of lawyers holds out. There must be an end at some time to litigation in the interest of litigants as a whole.
Defendants’ present counsel insist that the evidence which can be produced on a rehearing and which is outlined in affidavits, some of them by disinterested parties, would entitle defendants to relief under section 11573, 3 Comp. Laws 1915. It is quite doubtful if the showing made would sustain such claim; but it is quite patent that to entitle defendants to relief under that section there must be at least some modification of their testimony given on the original hearing. It is quite doubtful if the affidavits establish a trust relation even if we overlook the statute of uses and trusts, and it is quite clear that defendants’ testimony given on the original hearing has no such tendency. The question presented to the trial judge required the exercise of judicial discretion. We cannot on this record say that it has not been fairly exercised.
Decree affirmed, with costs of this court.
Sharpe, c; J., and Bird, North, Flannigan, Wiest, Clark, and McDonald, JJ., concurred. | [
112,
107,
-107,
-83,
74,
96,
42,
-72,
99,
35,
54,
83,
125,
82,
17,
45,
98,
105,
81,
107,
-58,
-93,
78,
67,
-14,
-109,
67,
31,
-68,
-50,
-17,
87,
76,
48,
-62,
-43,
98,
-32,
-123,
84,
-114,
-113,
-102,
108,
-63,
64,
52,
43,
20,
65,
113,
-50,
-29,
46,
53,
64,
41,
40,
-49,
57,
-48,
-8,
-65,
-113,
127,
3,
-109,
100,
-120,
39,
-40,
78,
-112,
61,
9,
-88,
115,
-74,
-122,
86,
73,
-101,
41,
98,
102,
17,
69,
-17,
-48,
-104,
110,
126,
-115,
-121,
-48,
88,
67,
72,
-65,
-97,
93,
116,
39,
116,
-18,
-99,
29,
108,
7,
-49,
-42,
-77,
-113,
62,
-116,
19,
-62,
-125,
48,
113,
-57,
-29,
93,
71,
81,
91,
-115,
-117
] |
Fellows, J.
For upwards of ten years the Detroit United Railway Company operated a line which in part traversed a portion of Webb avenue. The original subdivider had platted certain lots called out-lots and the line was in part, at least, built on them. The construction was not modern and some complaint is made that travelers on the street could not cross these tracks as conveniently as they desired. This line with other property was taken over by the city upon the adoption of the municipal ownership plan and it continued to operate the line for some four' years. Plaintiffs, residing on Webb avenue, desired, the tracks taken up and petitioned the common council to have this done. The petition was referred to the board of street railway commissioners. At that time Col. H. U. Wallace was general manager but not a, member of the commission. He was familiar with, the situation, being a resident of the locality. He-sent a communication to the common council recommending that the petition be granted, and outlined the: routes which in his judgment would take care of the; traffic. A hearing was had and the common council ordered the tracks removed, and they were removed. Shortly thereafter petitions to the common council bearing around 7,000 signatures were filed asking that the service be restored. Another public hearing was had and the common council unanimously rescinded its former action and by another resolution directed and authorized the department of street railways to restore the service. Thereupon this bill was filed to restrain such action.
A preliminary question should be first considered. Defendants in their answer had stated that the communication to the common council was from the street railway commission. Plaintiffs’ counsel read the communication into the record as part of their case. It was signed by Col. Wallace. The testimony showed that the commission itself had never taken any official action on the'plaintiffs’ petition, and defendants were permitted to amend their answer to correspond to plaintiffs’ proofs by striking out the words “street railway commission” and substituting in accordance with the facts the words, “Col. H. U. Wallace” (the general manager of the Detroit Street Railway). This but permitted the pleading to correspond to plaintiffs’ proof and was clearly within the discretion of the trial judge.
The bill contains many charges of bad faith against the officials of the city, but there is not a line in the whole record to sustain such charges. Upon this record the officers of1 defendant city and all of them having to deal with the situation here have acted in the utmost of good faith in the discharge of their 'duties. Plaintiffs’ testimony establishes that there were some inconveniences suffered by the maintenance of the old tracks. They were constructed many years ago; the street was not paved between the tracks and the tracks had probably outlived their usefulness. But they have been removed; there is no line of street railway there now. Unless restrained by injunction, the proper officers will, pursuant to the direction of the common council, build a new line of street railway on this street. It will be of modern construction, laid in concrete, paved between the tracks, and the inconveniences, other than those of having a street railway operating on the street, will be removed. In fact, if defendants are permitted to proceed, many of the objections appearing in the testimony will be done away with. The street is 72 feet wide from cur.b to curb and there is ample room for both street car and vehicular traffic.
It is insisted on behalf of plaintiffs that the action of the common council in ordering the new construction was in excess of its authority; that the control of the system rested exclusively in the commission, had been exercised by it, and, therefore, the action of the common council was ultra vires. This contention cannot be supported as matter of fact or as matter of law. No official action was ever taken by the commission ordering the old tracks removed upon the petition originally filed by plaintiffs. That petition was addressed to and filed with the common council and referred by the city clerk to the commission. Col. Wallace, general manager, an employee of the commission and a resident of the neighborhood, forwarded to the common council his recommendation. The common council ordered the tracks taken up and the service discontinued. This was done. The old worn-out tracks which had seen better days were taken up; there were no street car tracks or service on the street. Some 7,000 petitioners then appealed to the common council to establish a service to meet their needs, a service they had long been accustomed to. A public hearing was had and plaintiffs were heard. The common council after such hearing not only rescinded its former action, which it had a perfect right to do, although as a practical proposition the rescinding of the former action was not very effective, as the tracks had already been taken up, but it also directed the construction of a new line, one not then in existence. This was not beyond its power but was clearly within it. Section 6, chap. 13, tit. 4, of the charter of the city of Detroit, the chapter being entitled : • “Street Eailway Commission,” after directing the acquisition of a street railway system, provides:
“Said board shall, whenever it deems it necessary, build extensions and new lines. Such extensions and new lines shall be first approved by the common council.”
It is further insisted that a portion of the new track will be laid on private right of ways, the title in fee to which had not been acquired by the city. But the record discloses that the city has purchased from the Detroit United Eailway its property, including this private right of way; that it holds the same under such contract of purchase, and there is no claim that it has defaulted in any of its payments. We perceive no reason why we should say in a suit by a private individual that the city may not lawfully use such property so held by it for the purposes for which it was acquired.
Section 20, chap. 13, tit. 4, of the charter of the city of Detroit, reads as follows:
“Section 20. On or before the fifteenth day of January of each year, the board shall transmit to the city controller its estimate in duplicate of the amount of money required for its purposes for the ensuing fiscal year. The common council may adopt ordinances not in conflict herewith to carry out the purposes' and provisions of this chapter.”
It is insisted that this provision of the charter has not been complied with. But we find in the record an exhibit bearing date January 13, 1927, entitled “Ways and Structures Division, Estimated Expenditures against Capital Account January to December, 1927,” and under the head “C Supplemental — If money can be Provided,” among the many items the following:
“Webb avenue, Hamilton to Woodrow Wilson— $53,000.”
While the amount is not itemized in detail, we do not think this fact is of importance. In Van Baalen v. City of Detroit, 217 Mich. 125, it was said:
“It was formerly the custom, in making up the annual appropriations, to specify in detail the use to which the money was to be put. According to the testimony, the investigation and examination of the different streets submitted for repairing, became too laborious for the mayor and the mayor requested that hereafter no such detailed list be given to him, and this plan was adopted in 1920. We see no legal objection to this plan. The common council and the mayor, in approving the contracts and recommendations of the department of public works for the re paving or resurfacing of the different streets as they are submitted by that department, are called upon to exercise their judgment as to each expenditure. Whether these officials exercise their judgment, with or without a proper or complete knowledge of the conditions is not a judicial question.”
Many cases are cited in which taxpayers have been permitted to come into a court of equity to restrain the enforcement of an unlawful tax. But such cases are hardly applicable here. No tax or assessment either general or special will be levied to pay for the construction of this line. All the cost will be paid for out of the income of the system. But even in taxpayers’ cases it is incumbent on the plaintiffs1 to establish the threatened levy of an unlawful tax. So if we treat the bill as one seeking to restrain the unlawful expenditures of public funds, it is still incumbent on the plaintiffs to establish that the threatened expenditure is unlawful. This they have failed to' do. Our attention has been called to no mandatory provision of the city charter which has been violated and we have found none. Since Mr. Justice Cooley wrote the opinion in Grand Rapids, etc., R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306), it has been the settled law of this State that the maintenance and operation of a street railway upon a street does not impose such a new burden and servitude as to authorize the owner of abutting land to complain. While what was said by Mr. Justice Cooley on that subject was dictum, and had been so regarded by this court, it has uniformly been followed in cases too numerous to cite.
The decree dismissing plaintiffs’ bill will be affirmed, with costs of this court.
Sharpe, C. J., and Bird, North, Flannigan, Wiest, Clark, and McDonald, JJ., concurred. | [
-80,
125,
-40,
-18,
10,
98,
58,
-118,
83,
-71,
-25,
119,
-83,
-20,
17,
53,
-69,
127,
80,
43,
-43,
-30,
70,
34,
-69,
-45,
123,
-55,
117,
77,
116,
81,
76,
48,
-117,
-99,
70,
-60,
-49,
94,
-50,
53,
-117,
76,
57,
80,
52,
115,
20,
79,
81,
94,
-77,
46,
24,
-47,
-23,
40,
-17,
41,
-48,
-7,
-72,
-57,
-9,
6,
-96,
68,
-98,
-95,
-32,
58,
16,
53,
-111,
40,
115,
-74,
-122,
126,
69,
-39,
12,
34,
98,
1,
5,
-89,
-38,
-100,
6,
-24,
-113,
-92,
-32,
41,
1,
65,
-99,
-99,
64,
80,
39,
-2,
110,
-59,
27,
108,
-125,
-113,
-90,
-127,
-1,
-4,
-124,
3,
-21,
51,
16,
112,
-56,
50,
93,
103,
62,
-101,
79,
-85
] |
Flannigan, J.
Plaintiff was struck and seriously injured by an automobile owned and driven by defendant. To .recover her resulting damages she brought this suit and had verdict and judgment. The case is here on writ of error sued out by defendant.
G. H. Spaulding, an adjuster for defendant’s insurer, the ¿Etna Casualty & Surety Company, secured her signature to an instrument, in form a full release and discharge of defendant of and from all claims, damages, and demands of plaintiff founded on her injury by him “for the sole consideration of fifty and no-one hundredths dollars, and doctor bill to be paid in the amount of fifty dollars.”^ When he called, which was 18 days after the accident, plaintiff was in bed. Following the accident she had not, up to that time, left her bed. He signed and left on a “dresser” in the room a draft payable to her order for $50. In connection with other information, intended evidently for the company’s bookkeepers, it recited on its face it was in full settlement of plaintiff’s claims. After he left the draft was brought by Mrs. Rose, the nurse, to plaintiff, who indorsed and handed it back. It was later cashed by Mrs. Rose, who retained and used the proceeds. The doctor bill mentioned in the release was paid by the adjuster direct to the physician. Before commencing her suit plaintiff did not return or offer to return the proceeds of the draft or the money paid the doctor.
Plaintiff was removed from the scene of the accident to the office of á doctor who made an examination. He found, as he testified, her right side bruised, three or four ribs broken and her shoulder blades and back injured. In a semi-unconscious condition she was taken from his office to the home of Mrs. Rose, a neighbor, by whom she was nursed for six weeks.
Her position on the trial was, in substance, that she arranged with the adjuster to advance on account of her claim $50 for her nurse; that neither the paper she signed or the draft was read to her; that in her then physical condition she could not read; that she was assured by the adjuster the paper presented for her signature, and which he called “a paper to show Mrs. Rose got fifty dollars,” was but a mere receipt for the $50 left for the nurse, and that, 'but for such belief for which the adjuster was responsible, she would not have affixed her signature.
Defendant’s position was that, for the consideration recited in the release, plaintiff made full settlement of her claim; that in procuring the execution of the release no fraud or deceit was practiced; that the signing of the release, coupled with the indorsement and cashing of the draft, constituted an accord and satisfaction; and that, in any event, she was not entitled to sue without first tendering back the money received.
Whether plaintiff intended to and did make settlement in full, as set forth in the release, or partially only, as claimed by her, and if the latter, whether she was fraudulently led to believe she was signing a contract or agreement different from that stated in the release, was submitted to the jury under proper instructions. The jury found as plaintiff contended, and we are of the opinion there was evidence sufficient to support their conclusion. • Even the adjuster testified plaintiff’s chief concern at the time was to get money to pay her nurse, and he admitted he did not know whether or not the release had been read to or by her. He said:
“I handed the release to Mrs. Rose. * * * Mrs. Rose took it over to Mrs. Barriger. Mrs. Barriger signed it. I don’t know whether she read it or not. I didn’t pay any particular attention.”
The finding of the jury brought plaintiff’s case within the rule that where a release evidences a contract or settlement which the party executing it did not intend to make and did not in fact make, and which he executed in the belief it evidenced another and different agreement or settlement which he intended to and did make, and was induced to so believe by and through the fraud and deceit of the party to whom it is given, suit may be brought without tendering a return of the consideration received. Crawley v. Studebaker Corporation, 183 Mich. 462; Forth v. Cadillac Motor Car Co., 198 Mich. 501.
Whether defendant was guilty of negligence and plaintiff of contributory negligence were questions for the jury in the state of the evidence and were so submitted. It remains to ascertain whether there was prejudicial error in the charge on this branch of the case. The court gave plaintiff’s sixth request, as follows:
“I charge you as a matter of law, a driver of an automobile approaching a crossing or a point where pedestrians ordinarily cross a highway, the automobile must be under such control that it can be immediately stopped if necessary.”
The accident happened on a street of Caro called Frank. Its course is east and west. A canning factory is located south of the street. A road led from the factory to the street but did not cross it. At the point where the road abutted the street there was no authorized crossing. Plaintiff was employed in the factory. She left her work at noon, walked up the road to the street, crossed over the pavement, and, as she reached a grass plot on the north side, was overtaken by defendant’s automobile which was traveling east. Plaintiff was accompanied to the south side of the street by two companions. Others from the factory preceded and followed her. Altogether there were “several.” There was perhaps room for the inference that employees of the factory living north of the street crossed it at this place going to and from their work. Further than this, there was no evidence on the subject of the use of the point in question as a crossing by pedestrians. Nor was there any evidence tending to show defendant knew, or should have known, pedestrians made a practice of crossing the street at that place.
Passing the question whether there was evidence sufficient to support a finding that pedestrians commonly crossed the street where plaintiff crossed, but assuming they did so, it is clear the driver could be held to no higher degree of care upon approaching that point than when traveling elsewhere between street intersections unless he knew, or in the exercise of ordinary care would have known, it was a place where pedestrians ordinarily crossed.
The instruction was, we think, erroneous. The jury was permitted by it to hold defendant to the duty of having his car under such control upon approaching the place of injury that it could be stopped in time to avoid striking plaintiff whether he knew or did not know it was a place where pedestrians ordinarily crossed. This permission was not modified or withdrawn by any other part of the charge or by the-charge as a whole.
Various other matters occurring on the trial are covered by assignments of error. They have all been investigated. Such of them as might call for discussion are not likely to arise on another trial.
Plaintiff’s counsel moved to strike the bill of exceptions which was signed and “filed July 12, 1927, on the ground the trial judge was without jurisdiction to settle or sign it. Decision of the motion was reserved until the main case was heard and submitted.
The journal entry of the judgment is dated April 2, 1927. Whether it was actually entered that day or on May 5, 1927, is disputed. Plaintiff claims that entry was made on the former date, while defendant claims it was not entered until the latter. If entered on May 5th, the jurisdiction of the trial judge to sign the bill of exceptions is conceded, but if entered on April 2d, his jurisdiction is denied. What led to this dispute would make a long story, which there is no occasion to relate. Without so holding, we will assume, for the purposes of the motion, the entry was made on April 2d. The usual stenographer’s certificate was not filed within 20 days following the judgment entry, nor until May 10, 1927. The position of plaintiff’s counsel is that, the certificate not having been filed, within the 20-day period, jurisdiction to settle exceptions was lost. He does not contend that if the time was lawfully extended beyond the 20-day period the court was without jurisdiction to settle the exceptions when they were settled and signed on July 12th. The question therefore is whether the time was lawfully extended beyond the 20-day period.
Any time during the 20-day period the court may, without production or filing of the stenographer’s certificate, extend the time to settle exceptions beyond the 20-day period, but not beyond the time limited by 'statute, providing the attorney for the prevailing party consents thereto in open court or by written stipulation. Brevoort v. Wayne Circuit Judge, 203 Mich. 388; Reynick v. Saginaw Circuit Judge, 210 Mich. 563; Walker v. Wayne Circuit Judge, 226 Mich. 393.
The journal entry of the judgment, which was in the usual form, was followed by an order reading:
“It is further ordered that said defendant have 20 days from the date hereof in which to move for a new trial or settle a bill of exceptions and if said defendant shall file a proper bond on appeal within said 20 days that said defendant may have «60 days from this date in which to settle a bill of exceptions.”
Entry of the judgment on the journal was not made by the clerk of the court. It was entered in his presence but by the attorney for plaintiff. We hold the entry of the order on the journal of the court by the attorney for plaintiff in his own handwriting equivalent to a written stipulation for a 60-day extension of the time to settle the bill of exceptions on condition a proper appeal bond was filed within 20 days. The condition was fulfilled by defendant. An appeal bond, concerning the sufficiency of which no question is made, was filed April 16, 1927. The filing of the appeal bond was effective to automatically extend the time to settle the exceptions for the period of 60 days from April'2, 1927, and there was authority in the court to further extend the time, on proper showing, during the 60-day extension or after its lapse. Walker v. Wayne Circuit Judge, supra.
For the error pointed out, the judgment below is reversed and new trial granted, with costs of this court to defendant.
Sharpe, C. J., and Bird, Fellows, Wiest, Clark, and McDonald, JJ., concurred.
The late Justice Snow took no part in this decision. | [
-112,
120,
-87,
-19,
-54,
97,
32,
-102,
-11,
-127,
-73,
19,
-81,
-63,
13,
99,
-27,
125,
-27,
107,
-10,
-93,
7,
98,
-14,
-77,
97,
68,
-79,
-54,
-4,
-11,
93,
40,
-94,
93,
102,
2,
-51,
112,
14,
-128,
-87,
-24,
25,
-62,
112,
59,
-27,
13,
113,
-98,
-29,
42,
51,
78,
105,
42,
107,
41,
-64,
-95,
-117,
5,
127,
83,
-79,
22,
28,
11,
-36,
30,
-104,
53,
2,
-71,
114,
-90,
-126,
-11,
39,
-71,
0,
102,
102,
49,
5,
-55,
-72,
-68,
39,
54,
-113,
37,
-110,
105,
91,
9,
-105,
-99,
-7,
16,
4,
124,
-8,
93,
92,
96,
67,
-117,
-42,
-69,
-49,
-12,
28,
-69,
-18,
-89,
53,
113,
-52,
-76,
85,
70,
120,
-101,
-33,
-66
] |
Bird, C. J.
On October 4, 1924, plaintiff gave defendant an option agreement to purchase 37 acres of land which he owned in the township of Redford, Wayne county, for $1,600 an acre. Within a few days thereafter plaintiff rescinded the option agreement and tendered back the amount that had been paid thereon, claiming that he was defrauded in the making of the agreement. He then filed this bill to cancel the option agreement and quiet his title. Defendant answered, denying the fraud, and praying for affirmative relief.
At the hearing plaintiff contended:
(1) That the option agreement was of no legal force because the defendant corporation was in default in filing its 1924 annual corporation report, and did not file it until after the option agreement was made.
,(2) Because the defendant failed to exercise its right under said option within the time specified in the agreement.
(3) Because said option agreement was obtained by-overreaching, and, therefore, void.
The trial court denied the relief prayed for and dismissed plaintiff’s bill. He appeals, and makes the same contentions in this court.
Defendant company was organized in June, 1924, and filed its articles with the secretary of State on June 14th. It made no report in July or August, 1924, in compliance with Act No. 84, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9053 [1] et seq.). Section 5, chap. 2, pt. 5 (Comp. Laws Supp. 1922, § 9053 [173]), of that act provides:
_ “Section 5. Every corporation organized for pecuniary profit, including every foreign corporation admitted to carry on business in this State, shall annually, in the month of July or August, make duplicate reports showing the condition of such corporation on the thirtieth day of June, next preceding, on suitable blanks to be furnished by the secretary of State, as hereinafter provided. Such report shall furnish the secretary of State with all information and facts necessary for the computation of the annual franchise fee provided for by law. The secretary of State is hereby authorized to require of any corporation any additional information that may be needed after the filing of its annual report for the purpose of computing such fee. Such report shall state the amount each of common and preferred capital stock authorized, and the amount thereof, subscribed for, and the amount thereof actually paid in cash, and the amount thereof paid in property; the total value as near as may be estimated of all property owned by the corporation; the value of different items or classes of property as follows: Real estate used in its business; real estate not used in its business; goods, chattels, merchandise, material and other tangible property; patent rights, trade marks and formulas; good will; and all other property including surplus, reserve funds and sinking funds, specifying the kind; value of all credits owing to the corporation; the amount of debts of the corporation; the name and postoffice address of each officer and director of the corporation, and such other information as the secretary of State may require.” * * *
For .a failure to comply with this, section the act (§6) provides the following penalty:
“If any corporation neglects or refuses to make and file the reports required by this chapter within the time herein specified, and shall continue in default for ten days thereafter, its corporate powers shall be suspended thereafter, until it shall file such report, and it shall not maintain an action in any court of this State upon any contract entered into during the time of'such default.” * * *
The defendant answered this contention by saying that Act No. 85, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 11361 [1] et seq.), provided for a similar report to be made and filed in the month of July and August, and, therefore, it was improbable that the State intended both reports should be made and filed, and, inasmuch as the legislature amended Act No. 85 (Act No. 233, Pub. Acts 1923), it impliedly repealed the requirement for a report in Act Ño. 84. The provision for an annual report in Act No. 85 (Comp. Laws Supp. 1922, § 11361 [9]) follows:
“Section 7. Every corporation, for profit, whether domestic or foreign, authorized or admitted to do business within this State, excepting only railroad companies and interurban railroad companies, and telephone and telegraph companies, and foreign insurance companies, shall, in the month of July or-August of the year nineteen hundred twenty-one and annually thereafter in the same months, file a report with the secretary of State, showing its condition at the close of business upon the thirtieth day of June next preceding the filing of such report, which report shall be upon a form to be prescribed by the secretary of State, and shall contain, among other statements, the name of the corporation, place of doing business either within or without the State, the names and addresses of -its officers and directors, the amount of authorized capital stock, and the number of shares of each class authorized, the capital stock subscribed, and paid for, and the par value of each kind of shares authorized; the market value of and the price fixed by the corporation for the sale of its shares of no par value, if any; the nature and kind of business in which such corporation is engaged, and the nature, location and value of the property owned and used by the corporation both in and without Michigan, given separately; and a complete and detailed statement of the-assets and outstanding liabilities of the company.”
The penalty for its violation is:
“Section 10. In case any corporation required to file the report and pay the fee or fees prescribed in this act shall fail or neglect to make such report within the period required by law, such corporation shall, in addition to its liability for such privilege fee and interest thereon, be subject to a penalty of one hundred dollars, and an additional penalty of five dollars for each day’s continuance of such failure or neglect, which penalty or penalties shall be collected in an action to be instituted by the attorney general of this State as prescribed by law.” * * *
Act No. 84, Pub. Acts 1921, is the general incorporation act, providing for the creation of corporations. It required annual reports in July and August of the condition of its business on June 30th preceding, and added a penalty for the failure to comply with it.
At the same legislative session it passed Act No. 85. This is a law providing for a franchise tax. This act required a report to be filed in July or August of its condition on June 30th preceding. .
The argument is made that one report satisfies both of these acts. We cannot concur in that view. The report required in Act No. 84 is the usual report that has always been required by our incorporation acts, and its purpose is to furnish the public dealing with it a trustworthy source of information as to its assets and solvency. The report which is required by Act No. 85 is for a totally different purpose. It is for the purpose of furnishing information to enable the secretary of State to compute the tax which the corporation shall be liable to pay. A close comparison of the respective reports will disclose a marked difference in the things to be reported. It is quite evident, however, that section 5 of Act No. 84 and section 7 of Act No. 85, by some accident, became interchanged before passage, as the data required by section 7 of Act No. 85 is not full enough to enable the secretary of State to compute the tax without great difficulty. The data required by section 5 of Act No. 84 is amply sufficient for that purpose. It would, therefore, follow if either requirement is to be eliminated and only one report made the requirement of Act No. 84 should be retained instead of the requirement of Act No. 85.
Defendant points to the following provision of section 5 of Act No. 84 as an evidence of its faith that only one report was intended:
“Such report shall furnish the secretary of State with all information and facts necessary for the computation of the annual franchise fee provided for by law.”
This provision is in both laws. It would hardly have been required in Act No. 84 if the legislature had not intended that a report should be made. Had the legislature intended only one report it would have been just as easy to have inserted a provision that any corporation making a report under Act No. 85 should be excused from making one under Act No. 84.
Another difficulty presents itself with regard to the penalties imposed. The penalty imposed for a violation of Act No. 84 is materially different than that imposed for a violation of Act No. 85. When the question arises, as it does here, or when the attorney general is a party, which penalty will the court apply?
But all this is not very important. To say, because both acts require similar data, that one report shall be eliminated, is an easy way to dispose of a legislative enactment, but it will hardly do. The legislature incorporated section 5 of Act No. 84 into the law, and since its enactment it has had two sessions, 1923 and 1925, but it left that section untouched, although it made a slight amendment to section 7 of Act No. 85. The mere fact that it is a hardship for corporations to make two reports when one might suffice furnished no reason for an amendment of the law by the courts. If the legislature had intended only one report for both acts it would have, undoubtedly, said so at these subsequent sessions.
In view of our conclusion on this question it will be unnecessary to discuss the other two questions raised. Inasmuch as it was conceded that the defendant was in default when the option agreement was made the court should have declared the option agreement void.
The decree will be reversed. No costs will be awarded either party.
Sharpe, Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
-78,
125,
-8,
-84,
-120,
-32,
40,
-78,
91,
-31,
39,
83,
-49,
90,
4,
61,
-25,
109,
84,
122,
85,
-77,
23,
42,
-46,
-77,
-37,
-3,
-79,
79,
-12,
-43,
12,
32,
-54,
21,
-26,
-126,
-63,
30,
30,
-116,
-119,
64,
-39,
69,
52,
27,
80,
75,
51,
-102,
-5,
46,
57,
75,
105,
40,
-17,
-119,
-63,
-40,
-65,
-59,
-1,
82,
-78,
68,
-104,
5,
-56,
14,
-102,
29,
57,
-39,
123,
54,
6,
116,
9,
-119,
44,
42,
39,
3,
5,
-83,
-16,
-100,
38,
127,
29,
-90,
-16,
72,
83,
13,
-68,
-97,
88,
18,
38,
-2,
-8,
21,
25,
108,
1,
-81,
-42,
-77,
-97,
-26,
-98,
3,
-1,
-93,
49,
112,
-51,
96,
94,
103,
58,
-101,
-97,
-47
] |
Wiest, J.
Defendant was convicted of a violation of the prohibition law, in having intoxicating liquor in his possession. He denied unlawful possession and claimed that Joseph B. Bannon, chief witness for the prosecution, had the liquor in his automobile and invited defendant to ride with him. Upon that issue of fact it is insisted the court was in error in refusing to permit defendant to show? that on previous occasions Bannon had furnished him liquor. The ruling was correct. Such an issue might lead far afield and would involve comity between drinkers.
Defendant and Bannon drove into the country in the latter’s automobile, and Bannon became so intoxicated that, when the car left the road, he slumped down at the steering wheel in a stupor. An observer notified the sheriff, and when officers reached the scene, it is claimed defendant got out of the car with a bottle of liquor in his hand, walked to a tree, struck the bottle against the tree, then struck it against another tree and the bottle flew from his hand without breaking and was picked up by the officers, and, upon examination, was found to contain intoxicating liquor.
Defendant claimed he threw the bottle into some bushes, while the officers were removing his drunken companion from the car, and he was but trying to destroy liquor belonging to Bannon and his possession for such purposes was not unlawful. It was, to say the least, an inopportune time for defendant to join in prohibition enforcement, but he had an undoubted right to have his claim submitted to the jury. The statute, Act No. 53, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 7079 [28]), constituting the destruction of liquids in the face of a search, to prevent seizure by an officer authorized to make search and seizure, prima facie proof of intoxicating qualities and of unlawful possession, is of little moment here, for the liquor was not destroyed, was in court, was intoxicating, and defendant was in actual possession thereof.
This left his defense to stand as one of fact. One may, of course, destroy intoxicating liquor, and possession for such purpose only is not unlawful, but such destruction, or attempt, must not partake of a sudden desire, aroused by the presence of officers, to make away with evidence. Whether defendant had unlawful possession of the liquor, was a question of fact.
Error is assigned on the following instruction to the jury:
“It is probably just to say to you, and it is the law, that if this bottle of liquor was in Mr. Bannon’s car, without the knowledge of the defendant, that he didn’t know it was there, then he would not be responsible for its being there, that would not be a possession — simply having it in the car, although he might be riding in the same car, unless he knew it was there; but if he knew it was there and permitted it to be there and went along with Mr. Bannon, knowing it was there, then he is chargeable with that knowledge, you have a right to take that into consideration, bearing upon the question of whether he had it in possession, a man must be charged according to the knowledge he had of the circumstances and of what opportunity he had of knowing its presence there and of all the circumstances.”
We think defendant justified in assigning error on this instruction. If the liquor belonged to Bannon, and defendant knew it was in the car, and yet rode with. Bannon, he would not be guilty of having possession of the liquor without something more being made to appear. Felonious possession of intoxicating liquor involves more than mere knowledge that the owner and driver of an automobile in which one is riding by invitation has liquor in the car. It necessarily contemplates some degree of physical dominion or right of control. It need not be the control incident to ownership, but it must be more than knowledge that another possesses intoxicating liquors.
We held in People v. Archer, 220 Mich. 552, that a housekeeper, with knowledge her employer had liquor in the house, was not guilty of having it unlawfully in her possession.
If the liquor belonged to Bannon, and defendant had possession only while taking drinks thereof, up to the time of the arrival of the officers, then defendant up to that time did not have it in his possession within the meaning of the prohibition law. People v. Ninehouse, 227 Mich. 480. If the liquor belonged to Bannon and defendant had no possession thereof, but when the officers arrived he took the bottle from the car seat for the purpose of destroying it, he was entitled to have such defense and his good faith under all the circumstances submitted to the jury upon the question of whether he unlawfully had possession of the liquor. Instead thereof the court instructed the jury:
“That if you believe the testimony of the people’s witnesses in this case, that he had this bottle, that he was moving away from this car with it, went on the roadside with it, holding it in his hand in an attempt to break it or destroy it, so that he moved this distance of 40, 50, or 60 feet with it, that would be possession, and if you believe that, he is guilty, and you should convict him.”
The conviction is reversed, and a new trial granted.
Bird, C. J., and Snow, Fellows, and Clark, JJ., concurred with Wiest, J. | [
-80,
-18,
-8,
30,
42,
96,
42,
56,
-48,
-109,
-9,
17,
-19,
-46,
1,
33,
-73,
-1,
85,
24,
-39,
-89,
23,
16,
-10,
-109,
24,
-59,
-75,
79,
108,
-12,
13,
52,
-54,
93,
-25,
65,
-40,
92,
-122,
4,
-71,
105,
-45,
81,
48,
27,
-42,
15,
33,
31,
-29,
46,
27,
-49,
105,
42,
75,
57,
-24,
-72,
-116,
13,
-49,
22,
-93,
18,
-100,
-123,
-40,
28,
28,
17,
41,
-8,
115,
-76,
-126,
-12,
15,
-103,
-116,
102,
96,
32,
93,
-81,
-96,
-71,
46,
47,
-65,
-91,
24,
80,
73,
-31,
-107,
-35,
118,
16,
4,
96,
-6,
85,
93,
96,
31,
-49,
52,
-93,
-49,
56,
-122,
-125,
-53,
99,
37,
113,
-35,
116,
84,
37,
112,
-101,
-116,
-41
] |
WIEST, J.
In this proceeding plaintiff asks us to direct the circuit judge to permit amendment to a bill in chancery in the Wayne circuit. Plaintiff owned a tract of land, in the city of Detroit, subdivided into upward of 1,200 lots. It constituted Pascoe & Sons, copartners, selling agents at prices to be fixed by plaintiff. Alleging a modification permitting Pascoe & Sons to fix selling prices, and that they fraudulently fixed low prices and sold to themselves, their relatives, and “stool pigeons,” for the purpose of reselling the same at true value and pocketing the gain, plaintiff filed a bill in chancery in the Wayne circuit, asking that the contracts so fraudulently made be rescinded, canceled and held for naught, and Pascoe & Sons come to an accounting and be decreed to pay the difference between the prices for which lots were fraudulently sold and the true value thereof. Pascoe & Sons answered, denied the alleged fraud, set up pendency of a suit at law in the Wayne circuit, brought by them against plaintiff herein, to recover their compensation as sales agents, asserted plaintiff has an adequate remedy at law, and claimed plaintiff seeks to set aside certain land contracts without making the persons holding the same parties defendant. •
The answer was amended and affirmative relief under allegations in the nature of a cross-bill asked. Plaintiff answered the cross-bill.
Issue having been so joined, the case came to the call for hearing. When the case reached the call, a local rule of court forbid delay, but plaintiff then moved to amend the bill. This was opposed, and amendment denied by the court. In response to our order the circuit judge has placed before us his reasons why he should not be directed to permit the amendment. We need not set out the return.
Counsel presenting the matter in behalf of the circuit judge states the questions presented:
“First. Was plaintiff entitled to amend its bill of complaint as a matter of law?
“Second. Has plaintiff waived that right to amendment by reason of laches ?”
Right to amend without leave of court had passed, but right to amend by leave of the court remained, and in the interest of justice should be liberally exercised; avoiding, however, needless delay and not too far tending to foster carelessness.
The local rule, prohibiting motions after a case has reached the call, is entitled to observance, and refusal to depart from it will not be lightly viewed; but the rule should not be permitted to stand in bar of getting before the court full issues and essential parties.
The bill of complaint was filed October 27, 1824, the answer averring want of specification and essential' parties was filed November 21, 1924, and the case was at issue June 9, 1925. The first answer filed challenged attention to need of amendment to the bill and this should have been attended to before the case reached the trial call, for there was ample time, a year having elapsed between the filing of such answer and the date of the motion for leave to amend. The need of amendment was imperative if issues were to be tried with necessary parties. The excuse made for the delay in an affidavit was somewhat lame but sufficient to permit an exercise of discretion by the circuit judge. We state the showing:
“That at the time this suit was commenced this plaintiff did not have all the information it now has as to just what contracts for the sale of lots in said subdivision by Pascoe & Sons were fraudulent and invalid; that through investigation this plaintiff, through deponent and its agents, has reliable information that the contracts set out in amendment IX-A are fraudulent.”
We need spend no more time on this subject, for the circuit judge did not refuse amendment because of delay in asking leave or in the exercise of his discretion; but, in an opinion, expressed the view that the bill, as filed, was for damages upon affirmance, and plaintiff could not amend by asking for rescission on the ground of fraud, and wait until the testimony is in to decide which remedy will be elected; that, while inconsistent causes of action may be joined, the remedy in case of fraud must be elected between rescission or affirmance in the pleading.
The circuit judge recognized the complication pre sented by reason of several lots with, different parties in interest being involved, but thought the rule unaffected thereby. There appears to have been some discussion about the duty of plaintiff to designate the parties to sales claimed fraudulent and to name the parties against whom rescission was sought. Plaintiff presented two amendments; in one the alleged fraudulent ■ purchasers were named and • lot numbers given, but no election to rescind made; in the other, parties against whom rescission was elected were named and lots designated. Plaintiff claims right to elect at the close of proofs. This is controverted, and the point made that right to rescind is inconsistent with right to have damages and the bill as filed was for damages and not for rescission. Upon this question we think the circuit judge was in error in holding, in effect, that remedy in the alternative could not be asked in the bill.
This seems to be a case in which equity and exact justice may or may not require rescission, and incapable of determination until the proofs are in. Even under a bill to rescind, if equity demands affirmance and damages instead, it may be so decreed. There exists no such inconsistency between right to have rescission or be remitted to take satisfaction in damages as to imperatively command election in the pleadings in a case like the one at bar. The original bill prayed rescission or damages, and the amendment proposed but amplified the allegations therein and sought to bring interested parties before the court. It may turn, when the proofs are in, that equity and good conscience require plaintiff to affirm and have damages instead of rescission with reference to some lots and as to others have rescission. All parties sought to be joined trace rights through acts of the selling agents, and there is good reason for a single hearing. The amendment should be allowed without requiring election of remedy between affirmance and rescission.
On account of the delay in asking leave to amend, no costs will be allowed herein. If necessary, the writ will issue.
Bird, C. J., and Sharpe, Snow, Steere, Fellows, Clark, and McDonald, JJ., concurred. | [
-16,
-7,
-44,
-116,
-56,
32,
56,
-72,
64,
97,
39,
83,
109,
-26,
20,
49,
-25,
-65,
81,
107,
71,
-77,
70,
99,
-9,
-77,
-45,
79,
-67,
78,
-27,
87,
8,
32,
-62,
-43,
71,
-126,
-55,
84,
94,
5,
9,
-31,
-7,
69,
54,
121,
20,
77,
85,
-49,
-13,
46,
25,
66,
-23,
40,
123,
-87,
-48,
-8,
-101,
-113,
127,
7,
-95,
52,
-100,
7,
72,
78,
-110,
21,
8,
-8,
115,
-74,
-122,
116,
37,
-103,
41,
98,
35,
-112,
101,
-17,
-16,
-88,
46,
122,
-115,
-90,
-42,
72,
3,
32,
-73,
-97,
116,
20,
6,
116,
-90,
21,
93,
44,
-123,
-113,
-42,
-109,
-113,
112,
-100,
67,
-30,
-89,
20,
112,
-53,
96,
92,
67,
17,
-37,
-98,
-65
] |
SNOW, J.
The case comes into this court on writ of certiorari to the department of labor and industry. A chronological statement of events will assist in a more ready understanding of the issues raised.
Plaintiff sustained his injury August 19, 1921. The report of the accident was filed September 12th, following. October 11, 1921, an agreement was entered into between the parties fixing compensation at $14 per week, which agreement was approved by the department October 15, 1921. Compensation at this rate was paid by defendant until June 26, 1922. On the 11th day of August, 1922, an agreement was executed providing for .the payment of $7.20 per week during total disability, which was filed with the department August 14, 1922. The department gave what may be termed conditional approval of this agreement, based upon plaintiff’s return to temporary employment, as witnessed by a letter to both parties, among other things stating:
“The agreement which provides for the payment of compensation for partial disability at the rate of $7.20 per week has been passed upon and approved due to information in our file to the effect that the claimant is now working as night watchman on a salary of $2.50 per night.”
After this agreement plaintiff worked for defendant as night watchman at intervals, and in the fall of 1922 was hurt and did not go back to work until May, 1923. The defendant made no report of this accident to the department and paid no compensation for it. It did pay compensation at the rate of $7.20 per week, however, under the second agreement, for 16 weeks, from December 1, 1922, to March .22, 1923. His last work as night watchman was November 28, 1924, when he was refused further employment by defendant. He has done nothing since.
In June, 1925, plaintiff applied to the department for a certified copy of the agreement of August 11, 1922. This copy was issued and plaintiff secured a judgment in the circuit court for the county of Marquette, which was satisfied by defendant paying the sum of $1,008.
Thereupon, July 1, 1925, defendant filed its petition to stop compensation. Upon the hearing before a deputy commissioner the plaintiff was awarded compensation at the rate of $14 per week from and after June 23, 1925. On appeal to the department the order was modified, and it was provided plaintiff should receive compensation at said rate from and after November 28, 1924, the date he ceased work, instead of June 23, 1925.
The defendant now contends that plaintiff is not entitled to compensation because his claim is barred by the statute of limitations; also that the agreement of August 11, 1922, approved by the department, is res adjudicaba, and that the department erred in awarding further compensation.
Statute of Limitations. Section 5445, 2 Comp. Laws 1915, as amended (Comp. Laws Supp. 1922, § 5445), provides, among other things, that claim for compensation shall be made within six months after the injury; provided the disability does not develop until after six months from the date of the injury, when it may be made within three months after the disability becomes apparent.
“But no such claim shall be valid or effectual for any purpose unless made within two years from the date the accidental personal injury was sustained."
Counsel for defendant, claiming all right of action on the part of plaintiff is barred by this small statute, relies for authority upon Millaley v. City of Grand Rapids, 231 Mich. 10. There is no analogy between this case and the one at bar. In the Millaley Case, the widow of a police officer presented a claim for the accidental death of her husband more than six years after his injury. He had been paid compensation for the injury for a period of about eight months, when final report in his case was made, and thereafter for over six years he continued on active duty as a police captain.
An entirely different situation presents itself in the instant case. Here plaintiff was by agreement allowed compensation at the rate of $14 per week. Later by agreement it was reduced to $7.20 per week in consideration of the furnishing of some employment to him by defendant. This reduced compensation has been paid him, and the defendant by virtue of section 5467, 2 Comp. Laws 1915, as amended (Comp. Laws Supp. 1922, § 5467), petitioned the department for a review of the existing order. The order was reviewed, and $14 per week fixed as future compensation to be paid plaintiff. In the beginning the plaintiff presented his claim for compensation within the time prescribed by law. All subsequent proceedings have been in accord with the statute. The' proceeding here reviewed is one of them. Neither the general statute of limitations respecting commence ment of personal injury actions, nor the special one provided in the workmen’s compensation law, have anything to do with the instant case.
Is the. agreement of August 11, 1922, as approved by the department res adjudicaba, depriving it. of further jurisdiction? Appellant contends that the agreement referred to, providing for the payment of $7.20 weekly, was approved by the department, and that the award was based solely upon the physical condition of plaintiff which has not changed since that time. That this award is, therefore, as provided by statute “final and binding” (2 Comp. Laws 1915, § 5458).
In the opinion filed by the department in the instant case, it is said:
“The answer to this contention is that the condition of the plaintiff at the time the agreement was made by the defendant did not warrant such an agreement, and it was not approved by the department on the ground that the plaintiff’s condition had changed to an appreciable extent. It is perfectly clear that so far as the approval of this agreement by the department goes, it was based solely and entirely upon the fact that the plaintiff was attempting to return to work as a watchman, and the defendant had agreed to give him work as a watchman.”
The agreement for $7.20 per week was in fact not approved by the department excepting in and to the extent of recognition of the fact that plaintiff was working as a night watchman on a salary of $2.50 per night, and that the $7.20 rate was to be continued until the plaintiff was able to resume his regular duties, and until then he was to be given his night watchman employment.
The department has never been called upon to determine the exact physical condition of plaintiff until on defendant’s application to it to stop further payment on the ground of recovery. Under this applica tion the department had the authority to review the weekly payment defendant was bound to make (which authority must have been recognized by defendant when it filed its application for review), and to award compensation for total disability, if the plaintiff’s physical condition was such that he was disabled from performing the work in which he was engaged at the time of the injury. Such authority is recognized by the following cases: Norbut v. I. Stephenson Co., 217 Mich. 345; Winn v. Adjustable Table Co., 193 Mich. 127; Weidner v. Manufacturing Co., 205 Mich. 583; Kirchner v. Michigan Sugar Co., 206 Mich. 459; Foley v. Railway, 190 Mich. 507; Jameson v. Walter S. Newhall Co., 200 Mich. 514; Geis v. Packard Motor Car Co., 214 Mich. 646.
As before stated, the record fairly discloses the fact that' there never was an unconditional approval by the department of the settlement claimed for by defendant, and the authorities it relies upon therefore have no application. The department was within its rights and authority in retaining jurisdiction, and determining future compensation.
Its findings are affirmed, with costs to plaintiff.
Bird, C. J., and Sharpe, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
-48,
88,
-108,
-49,
26,
97,
43,
-110,
97,
-111,
55,
87,
-25,
-41,
93,
33,
-9,
109,
80,
43,
-49,
-93,
55,
10,
-38,
-109,
-21,
-59,
-79,
111,
-12,
-15,
69,
56,
74,
-64,
-26,
-64,
-51,
22,
-114,
-124,
-85,
-20,
25,
0,
48,
126,
80,
75,
49,
-54,
-25,
46,
16,
79,
108,
36,
91,
-87,
-46,
-15,
-118,
5,
-21,
18,
-77,
66,
28,
79,
120,
93,
-104,
53,
4,
-24,
50,
-74,
-62,
52,
33,
-71,
4,
98,
102,
48,
21,
-25,
-84,
-40,
-74,
-10,
-99,
-91,
-39,
120,
26,
75,
-100,
29,
-16,
20,
62,
120,
-26,
21,
93,
40,
67,
-118,
-74,
-77,
-49,
108,
-116,
-121,
-21,
39,
50,
97,
-50,
115,
92,
71,
106,
-101,
-29,
-102
] |
Sharpe, J.
Defendant reviews his conviction on a charge of violating the prohibition law on exceptions before sentence. The liquor found on defendant’s .premises, which was received in evidence, was secured under a search warrant. A motion to suppress was seasonably made. Error is assigned on the denial of this motion. The affidavit on which the search warrant issued was made by the chief of police .of the city of Owosso. ■ He deposed that he had good reason to believe that certain intoxicating liquors were concealed on the premises occupied by the defendant in that city (describing them) and that the grounds of such belief were as follows:
“Has seen liquor taken to and on said premises during the past 12 hours. He has observed large numbers of people going to and coming from said premises nearly every night in the past 30 days, among them are people known to handle intoxicating liquor.”
This averment was sufficient to confer jurisdiction on the officer to issue the warrant. People v. Warner, 221 Mich. 657; People v. Schregardus, 226 Mich. 279; People v. Schuitema, 231 Mich. 678. Counsel rely on People v. Mitroff, 231 Mich. 661. There was no averment in the affidavit in that case as to when the observations on which the charge rested were made, and the warrant was held to be invalid on the authority of People v. Musk, 231 Mich. 187.
An examination was had. The motion to dismiss was based upon the facts revealed therein as well as upon the insufficiency of the averments in the affidavit. On the examination defendant’s counsel sought to show that the facts stated by the officer in his affidavit were not within his personal knowledge. This question was presented in People v. Czckay, 218 Mich. 660, and it was there said by Chief Justice Fellows:
“The affidavit gave the police judge jurisdiction to issue the writ. This jurisdiction was not lost by proof aliunde that the facts therein positively stated were in reality stated upon information and belief. This is settled by numerous decisions of this court” (citing them).
This holding has been followed in People v. Christiansen, 220 Mich. 506; People v. Musczynski, 220 Mich. 536; People v. Knopka, 220 Mich. 540; People v. Flaczinski, 223 Mich. 650; People v. Ranes, 230 Mich. 384. The motion to suppress was properly denied.
It appears, however, that on the trial the legality of the search was again gone into. This should not have been permitted. When the motion to suppress was denied, the prosecution was entitled to offer the liquor in evidence, and the jury were in no way concerned with the manner in which it had been secured. People v. Marxhausen, 204 Mich. 559 (3 A. L. R. 1505); People v. Miller, 217 Mich. 635; People v. Vulje, 223 Mich. 656; People v. Coffey, 225 Mich. 532; People v. Boyd, 228 Mich. 57.
Error is assigned upon certain portions of the charge. We have read it with care, and are satisfied that defendant’s rights were fully protected in the instructions as given.
The exceptions are overruled, and the trial court directed to proceed to sentence.
Bird, C. J., and Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred. | [
-80,
-26,
-24,
-99,
42,
112,
-86,
-68,
-64,
-105,
103,
115,
-19,
-46,
69,
51,
-21,
127,
84,
105,
-61,
-78,
70,
64,
-10,
-77,
-54,
-47,
53,
111,
-12,
-16,
13,
-16,
-61,
-43,
70,
-119,
-109,
-40,
-122,
5,
-118,
-31,
90,
-112,
52,
59,
-64,
11,
113,
78,
-29,
42,
16,
-61,
-87,
44,
-53,
-99,
-32,
104,
-104,
-99,
-53,
6,
-111,
54,
-100,
-126,
-8,
40,
-100,
49,
1,
-24,
115,
-76,
2,
116,
45,
-101,
45,
98,
99,
1,
117,
-82,
-84,
-51,
62,
42,
-99,
-89,
-8,
73,
97,
-88,
-106,
-103,
52,
16,
-81,
-30,
-25,
85,
29,
108,
-121,
-49,
-90,
-79,
-113,
48,
-122,
99,
-53,
35,
20,
113,
-43,
110,
92,
117,
17,
27,
-50,
-111
] |
WIEST, J.
Abram W. Sempliner is an attorney at law residing in the city of Detroit. He was sued in the Montcalm circuit, charged with liability to respond in damages to purchasers of stock in the National Hardwood Company by reason of fraud alleged to have been perpetrated upon the Michigan securities commission in obtaining permit to sell stock in this State. The National Hardwood Company is a Delaware corporation, and, in accordance with law, it had to and did file its consent to service of process against it upon the commissioner of the State banking department. Sempliner and Jacobson, the two other defendants, reside in the city of Detroit and were there served with process. Process against the National Hardwood Company was served on the commissioner of the State banking department.
Mr. Sempliner appeared specially and mbved to set the service upon him aside and also claimed the declaration stated no case against him. By certiorari we review denial of such motion. Questions of practice are not urged. The question of service of process need not be decided, as we entertain the opinion that the declaration states no cause of action against Mr. Sempliner. Our reasons are set forth in Dinsmore v. National Hardwood Co., ante, 436.
The decision in the circuit is reversed, and the suit, as to defendant Sempliner, dismissed, with costs to him.
Bird, C. J., and Sharpe, Snow, Fellows, Clark, and McDonald, JJ., concurred. Steere, J., took no part in this decision. | [
-80,
77,
-40,
-52,
8,
96,
56,
-102,
31,
-15,
39,
-45,
-1,
-26,
25,
59,
-9,
61,
112,
120,
-43,
-77,
87,
111,
-42,
-109,
-79,
-123,
48,
79,
-12,
83,
77,
48,
-54,
-43,
-58,
-120,
-55,
28,
-38,
-124,
-85,
-24,
-103,
-47,
52,
-97,
20,
79,
113,
108,
-93,
46,
18,
-49,
105,
42,
-21,
121,
64,
-24,
-70,
-105,
111,
22,
-94,
4,
-104,
7,
-8,
47,
24,
54,
58,
-24,
59,
-74,
-62,
-11,
107,
121,
41,
102,
-93,
16,
-123,
-17,
-36,
-40,
47,
-82,
29,
-90,
117,
17,
3,
12,
-67,
-97,
96,
88,
-122,
-4,
-18,
5,
29,
108,
7,
-113,
-76,
-93,
-81,
-11,
-100,
3,
-18,
34,
18,
113,
-58,
48,
85,
71,
58,
27,
-114,
-111
] |
Fellows, J.
Plaintiff brings this suit as adminis-tratrix of the estate of her deceased son who was instantly killed by a street car operated by defendant city on Clairmount avenue. The boy was four years and three months old. The declaration counts under the death act. At the close of plaintiff’s proofs and at the close of all the proofs, defendant asked for a. directed verdict and the question was reserved under the Empson act. Plaintiff had verdict but judgment for defendant was entered non obstante veredicto.. While there are numerous assignments of error but two questions merit discussion:
(1) Was the testimony sufficient to take the question of defendant’s negligence.to the jury?
(2) Were deceased’s parents guilty of contributory negligence as matter of law?
Counsel for the city in his brief has collected with care the testimony tending- to show that the child darted out from the curb in his play directly in front of the oncoming car so suddenly that the accident was unavoidable by any amount of care. If this testimony was undisputed, defendant’s motorman could not be charged with negligence. But this testimony was not unchallenged. A witness called by plaintiff testified:
“The street car, when I first saw it, was about a block and a half from the child, short block and at the time the child was on the tracks.”
There was other testimony tending to show that the child was between the tracks and it may be inferred was putting a pin on the rail to be run over. If the child was on the track when the car was a block and a half away and in plain view of the motorman, the jury was justified in finding the motorman negligent in running over him.
Where the action is brought under the survival act, the contributory negligence of the parents is not imputable to the child, but where the action is brought under the death act and the recovery inures to the parents for their pecuniary loss, then their contributory negligence bars recovery. Feldman v. Railway, 162 Mich. 486; Flintoff v. Lighting Co., 208 Mich. 527. The trial judge so charged the jury in the instant case. But defendant insists, and must insist to sustain the judgment, that the court should have held the parents guilty of contributory negligence as matter of law. We cannot agree with this contention. The plaintiff testified that she last saw the "little boy “at 10 o’clock or a little after in the house,” and saw him leave; there was testimony that the accident occurred “around 10 or 10:30.” The child was out of plaintiff’s sight but a few minutes. Under these circumstances it was for the jury to determine whether she was guilty of negligence contributing to the death of the boy. Green v. Railway Co., 110 Mich. 648; Robins v. Director General of Railroads, 207 Mich. 437.
The judgment must be reversed and the case remanded with direction to enter judgment on the verdict.
Bird, C. J., and Sharpe, Snow, Steere, Wiest, Clark, and McDonald, JJ., concurred. | [
-14,
124,
76,
-82,
27,
106,
58,
88,
69,
-61,
39,
-13,
-81,
-61,
17,
47,
118,
-73,
-47,
35,
-43,
-93,
7,
-118,
-14,
-13,
48,
-121,
-78,
-56,
102,
-4,
77,
48,
-54,
-43,
-62,
-53,
-51,
82,
-122,
31,
-120,
-23,
-103,
18,
-76,
112,
20,
7,
113,
-34,
-85,
42,
62,
-17,
44,
42,
107,
-67,
-48,
56,
-119,
5,
95,
18,
-77,
52,
-66,
-21,
120,
24,
72,
-75,
8,
-20,
50,
-74,
-110,
-12,
105,
-103,
-120,
102,
103,
-127,
21,
101,
-15,
-103,
46,
-82,
14,
-91,
54,
121,
11,
47,
-105,
-9,
121,
48,
46,
122,
-20,
85,
93,
100,
3,
-121,
22,
-111,
-19,
116,
60,
-117,
-61,
-119,
50,
117,
-56,
122,
92,
101,
122,
-103,
-113,
-118
] |
Nelson Sharpe, C. J.
(dissenting). In the early-morning of July 19, 1932, the plaintiff, at that time an employee of the defendant gravel company, hereafter called the defendant, left his home and walked about two and one-half miles to the city hall in the city of Saginaw, where, as was the usual practice, he was picked up by a truck belonging to the defendant and driven to his. place of work on the highway between Saginaw and Bridgeport. His regular work was on a forenoon shift from 5:30 a. m. until noon. It consisted in the filling in and leveling off, by hand, of the roadbed and shoulders of the highway adjacent to the cement slab. He began work on the 19th at 5:30 a. m., and worked until noon. He testified that a few minutes before 12 o’clock his foreman came to him and said: “I want you to work this afternoon.” “I says ‘I haven’t got any dinner with me.’ He says ‘You can — you ought to fetch your dinner.’ I said ‘I didn’t know I was going to work. If you had told me last night I would have had one.’ He said ‘You can work anyhow. I guess you can stand it all right. ’ I didn’t say nothing back. Afraid of losing out on my job;” that a truck drove up and he went with it as directed and got a load of concrete blocks and then a load of sand which they shoveled into the roadway and graded it down; that a little later the foreman said to him, “There is a lunch over there in my basket. Go over and get it;” that he found a small sandwich in the basket and ate it; that he then went with the truck and got heavy rolls of burlap used for covering the cement, and that he and another man loaded these rolls on the truck while it was moving. It is conceded that while at such work, and at about 2:30 o’clock, he collapsed and became unconscious. He was taken to a hospital in Saginaw, and remained in that condition until the following morning. He was in the hospital for three days, and was confined to the bed at home for over two months.
Dr. Powers, who attended the plaintiff at the hospital to which defendant’s superintendent took him, testified that the plaintiff was suffering from a severe attack of sunstroke; that “it is well recognized that exhaustion and various exciting conditions predisposes to sunstroke,” and that the fact that plaintiff had been practically without nourishment since early morning “would be a very strong predisposing factor; make the man more susceptible to the effect of the sun and heat. ’ ’ On his attention being called to the fact that the man working with him was not also affected, he said:
“You couldn’t exclude the testimony to the effect that he had not had anything to' eat since three o ’clock in the morning, except a sandwich just shortly before. And we do know that lack of nourishment, undernourishment and fatigue all have a tendency to increase the susceptibility of an individual to the effect of heat and sun.”
On being asked if there was any other reason to account for it he said:
“Lack of food and the fatigue that goes along with working overtime, working- more than the ordinary length; working overtime. I know of no, other factors that would give me a lead as to whether or not this man suffered and the other man didn’t. I cannot help but believe that if this man had not had extreme hunger or lack of food and excessive work that his chances were very good and never would have been bothered by the sun.”
Eobert T. McMillen, an observer of the weather bureau, and whose record was accepted as official by defendant’s counsel, testified that it showed— “The 19th of July, 1932, minimum, 8 a. m. 75; maximum temperature, 97.1; 8 p. m. 86.10;” that these observations were mad© on the roof of a three-, story building, from a thermometer placed in a lattice box, and that in his opinion it would have shown several degrees higher if placed on the street and exposed to the rays of the sun. It was the hottest day of the summer up to that time.
On August 22, 1932, he made claim for compensation. Defendant denied liability. Proofs were taken before a deputy commissioner, who found for the plaintiff and made an award in his favor of $9 per week for a period of total disability. On review before the commission, this award was affirmed, of which defendants here seek review.
In its opinion the commission said:
“The record fully substantiates the finding that he is at present totally disabled, suffering dizziness, headaches, ear sounds and complete exhaustion on physical effort such as bending or lifting and he is especially sensitive to heat, particularly solar heat. The record shows that he has recently fallen several times, once between the first and second hearing, bruising his left knee severely. * * *
“We find that the plaintiff was subjected to a greater risk than his fellow employees and that the injury was a result of such unusual exposure.”
While the word “accidental” is used in the title to the act, and it appears in several of the sections thereof, and this court has held that compensation may be awarded for accidental injuries only (Robbins v. Original Gas Engine Co., 191 Mich. 122), it must not be overlooked that the term is here connected with employment. The accident, to be compensable, must arise out of and in the course of the employment, and, as said by Mr. Justice Ostrander in the case just cited:
“The statute seems to contemplate that an accidental injury may result by mere mischance; that accidental injuries may be due to carelessness, not wilful, to fatigue, and to miscalculation of the effects of voluntary action.”
While the immediate cause of plaintiff’s collapse may be said to have been the heat of the sun, there were a number of contributing causes. The plaintiff was fatigued. He had walked several miles to reach the truck which took him to his place of work. He had eaten but a small sandwich since his very early breakfast; he had labored six and one-half hours, and was put to work again after but one-half hour of rest; the day was an exceptionally warm one, the hottest of the season; the work that he was at that time called upon to do was more strenuous than his usual Avork. These facts Avere all known to defendant’s foreman, who must have realized the danger to which the plaintiff was subjected thereby. Of course, he did not anticipate the result which followed. It was unexpected and unusual. It was not the natural and probable consequence of his exposure to the sun, and would not ordinarily have followed therefrom.
The conditions under which the plaintiff was laboring at the time of his collapse were well knoAvn to defendant’s foreman. He started to work for the defendant on July 5th. Prior thereto he had been working for the welfare department of the city. His wife was suffering from tubercular trouble. He had seven children. He testified that he continued to work when ordered to do so by the foreman because he was afraid of losing his job. While these facts in no way affect defendant’s liability, they may be considered in explanation of plaintiff’s persisting at his work when he felt the effects of fatigue and lack of nourishment.
In La Veck v. Parke, Davis & Co., 190 Mich. 604 (L. R. A. 1916 D, 1277), the plaintiff suffered a cerebral hemorrhage as a result of the unusual heat of the room in which he was working and over-exertion rendered necessary by the demands of his employer. This court, in affirming the holding of the commission that the injury was the result of an accident, said:
“In the instant case Mr. La Yeck intended to do the prolonged work which the situation demanded, but he did not anticipate that because of doing so his blood pressure would be so increased as to result in the rupture of a cerebral blood vessel. According to the testimony of some of the physicians that result could be traced to the unusual hours of work and the unusual conditions. It was an unexpected consequence from the continued work in the excessively warm room.”
It may well be said that the injury plaintiff sustained was the “unexpected consequence” from his work under the unusual heat of the sun in his then physical condition.
Counsel for the defendant rely upon our holdings in Roach v. Kelsey Wheel Co., 200 Mich. 299, and Doyle v. City of Saginaw, 258 Mich. 467. In the majority opinion in the Roach Case it was said (p. 307):
“The record is absolutely barren of any evidence that anything untoward or unusual happened in the course of his employment during any of the three days or that he exerted himself in any unusual manner or to an unusual degree. He was doing the work which he and his associates were employed to do exactly in the manner they expected to do it. To permit recovery in this case would make it impossible to deny recovery in any case where a fireman of a stationary or marine boiler, in the performance of his ordinary and accustomed labor, succumbs to heat prostration,”
In the Doyle Case it appeared that the deceased, while engaged in the performance of his official duties as a police officer on July 22, 1923, suffered a sunstroke, and it was claimed that it caused his death on May 15, 1925, nearly two years thereafter. It was said in that case (p. 473):
“We are able to say, however, that sunstroke is not a compensable accident in the meaning of the workmen’s compensation act of Michigan.”
The circumstances under which the plaintiff in this case was injured are so entirely different that we do not think the broad statement therein made is- controlling. The great weight of authority sustains the claim that the conditions under which the injury occurred must be considered in determining the question.
In Young v. Western Furniture & Manfg. Co., 101 Neb. 696 (164 N. W. 712, L. R. A. 1918 B, 1001), the plaintiff was overcome with heat while working in defendant’s factory and died seven days thereafter. It was there claimed that the deceased had not suffered an accidental injury. The court said:
“Some cases are cited which seem in part to sustain in principle the contention made by counsel on behalf of the defendant, but there is a difference. There would have been no injury if the business had not existed. The heat and humidity, the corrugated sheet iron in the building, the tarred roof, the poor ventilation, and the dust and particles of matter in the air, all acting together, caused the sickness that brought about the death of the decedent. A stronger man might have lived, but it is enough that the industry brought about this man’s death. An accident is an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected.”
In State, ex rel. Rau, v. District Court of Ramsey County, 138 Minn. 250 (164 N. W. 916, L. R. A. 1918 F, 918), in discussing a somewhat similar question, the court said:
“The conditions surrounding decedent at the time of his injury exposed him to an unusual danger, different from that to which the masses engaged in like employment were subjected. It had rained the night before; the sand was wet; the sun’s rays direct, thereby enhancing liability to sunstroke. Decedent was exposed to the direct rays of the sun, in addition to the humid atmosphere emanating from the wet street.”
In Walsh v. River Spinning Co., 41 R. I. 490 (103 Atl. 1025, 13 A. L. R. 956), the deceased was overcome by the 'heat while working in a boiler room, and died soon after. In affirming an award for compensation, the court said:
“When, however, a workman has been injured in the course of his employment by reason of being subjected to certain conditions incident thereto, and not common to the neighborhood or the whole community, then without question the injury was received in the course of his employment and arose out of it.”
The term “accidental injury” was considered at some length by the court of appeals in the District of Columbia in Fidelity & Casualty Co. v. Burris, 61 App. D. C. 228 (59 Fed. [2d] 1042). The deceased was engaged in work on the street, and collapsed from the effect of the heat. The court said:
“As we have already seen, deceased was engaged in manual labor for which he had been employed, and he received the injury from which he died while so engaged. The day was extremely hot. The street was unshaded and the work was incessant, requiring in its execution constant exposure to the sun’s rays. We think we are safe in saying that except for these conditions the injury would not have occurred and death would not have ensued. The very statement of the facts shows undisputably that deceased was exposed to a hazard in the course of his employment that did not apply to the community generally,- and whenever this occurs, that is to say, whenever the worlc exposes the employee to a risk or hazard to which the general public is not exposed, and an injury results therefrom, the injury arises out of and in the course of the employment and is the proximate result thereof, and hence within the terms of the act. ’ ’
A number of cases are cited in support of this holding.
In many of the cases the distinction between the construction which should be given to a contract of insurance involving injury caused by accidental means and an accident arising out of and in the course of employment is pointed out, and this was done in the recent case of Landress v. Phœnix Mutual Life Ins. Co., 291 U. S. 491 (54 Sup. Ct. 461). In Robbins v. Original Gas Engine Co., supra, in referring to insurance cases it was said:
“It is doubtful, however, if in applying our statute, its general purpose being considered, the court should exactly follow the rules suggested and applied in the cases referred to.”
The award should be affirmed.
Potter and Bushnell, JJ., concurred with Nelson Sharpe, C. J.
Butzel, J.
Notwithstanding the sympathy aroused by plaintiff’s condition and the regret that bé is not protected by health insurance, we are con strained to hold that he is not entitled to compensation. He suffered from heat and sunstroke. This is not within the purview of the compensation act. We do not believe that unusual circumstances differentiate the case from Doyle v. City of Saginaw, 258 Mich. 467. The employer was not responsible for nor even apprised of the fact that plaintiff only partook of a cup of coffee for breakfast and was obliged to go some distance to secure a conveyance to go to his work. Plaintiff began work at 5:30 a. m. and continued until noon, in all six and one-half hours. The record is somewhat uncertain as to whether he did not have a short rest at noon, and whether it was 2 p. m. or 2:30 p. m. when he collapsed. Assuming, however, that he worked from noon until 2:30 p. m., in all two and one-half hours, this would have made a total of nine hours from the time he began work. This formerly was not considered an unusually long day’s work. The case differs entirely from that of La Veck v. Parke, Davis & Co., 190 Mich. 604 (L. R. A. 1916 D, 1277), where an employee collapsed after performing an unusual amount of rush work, boiling bouillon on a very hot day in a room that contained retorts and appliances engendering heat. The instant case resembles more that of Doyle v. City of Saginaw, supra, where we held that sunstroke was not a -compensable injury and referred to Roach v. Kelsey Wheel Co., 200 Mich. 299, and other cases. See, also, the majority opinion in Landress v. Phœnix Mutual Life Ins. Co., 291 U. S. 491 (54 Sup. Ct. 461), handed down by the United States Supreme Court, March 5, 1934, and cases therein cited.
The award is set aside, but without costs.
North, Fead, Wiest, and Edward M. Sharpe, JJ., concurred with Butzel, J. | [
112,
-22,
-104,
-113,
41,
99,
58,
-38,
81,
-13,
37,
115,
-81,
-58,
77,
43,
-17,
31,
84,
107,
-11,
-77,
83,
97,
-46,
-13,
121,
-57,
113,
75,
-76,
-11,
77,
48,
-118,
-107,
-26,
73,
-61,
-36,
-60,
21,
-87,
-23,
121,
16,
48,
63,
-16,
31,
49,
30,
-29,
42,
24,
-29,
12,
32,
79,
-86,
-16,
113,
-126,
5,
-19,
84,
-126,
6,
-98,
3,
-40,
28,
-104,
-79,
0,
104,
114,
-74,
-125,
124,
111,
-103,
12,
102,
98,
32,
21,
-27,
104,
-39,
30,
-66,
-115,
-91,
-79,
25,
-117,
72,
-98,
-99,
122,
20,
-90,
122,
-7,
85,
95,
108,
7,
-117,
-74,
-78,
-113,
60,
-108,
-119,
-61,
3,
34,
115,
-36,
-94,
92,
69,
122,
-101,
-41,
-48
] |
Potter, J.
Bill filed to construe the last will and testament of Frank Julius French, deceased. From the decree entered, plaintiff and defendant Natalie Breelcer Coleman appeal. Frank Julius French, formerly of Niles, Michigan, made and. executed his last will and testament July 22, 1931, and died September 19,1931, leaving such last will and testament in full force and effect. It was duly admitted to probate. It provided for revoking all former wills by the testator'; for the payment of all testator’s legal debts owing at his death, and all Federal and State inheritance taxes; for the erection of a marker at his place of burial on the family burial lot; for the disposition to his two daughters of his personal effects and jewelry; and all the rest and residue of his estate the testator gave, devised and bequeathed to trustees in trust for the following purposes and uses:
“A. To invest and reinvest the same in such manner as will furnish the largest income upon such trust funds consistent with conservative and safe investment, and for that purpose to sell and convey, lease or exchange the whole or any part of the property of my estate, whether real or personal, and to that end without authority of any court to execute any and all conveyances or papers which may be necessary to carry out the terms thereof; and I authorize my trustees to retain in the corpus of the trust, in its discretion, all or any securities belonging to my estate at the time of my death, whether or not, such securities are legal investment for trust funds; and my trustees shall not be liable for any losses which may be sustained by my estate from holding the same.
“B. As soon as my trustees shall have qualified and shall have come into possession of my estate, as hereinbefore set forth, I direct my said trustees to divide the same into two equal shares, one for my daughter, Alene, and the other for my daughter, Natalie; and my trustees shall hold, use, manage, invest and reinvest the property and funds of each trust in accordance with the powers hereinbefore conferred upon my said trustees, and to receive the issues, income and profit therefrom and pay the expenses in connection with the care, management and maintenance thereof, and pay the net income from the trust created for Alene to her during her lifetime in as near equal monthly instalments as possible; and pay the net income from the trust for Natalie to her during her lifetime in as near equal monthly instalments as possible.
“C. I authorize and empower my said trustees to use so much of the principal of the trust created for Alene as may be necessary, in their discretion, for the benefit of Alene or her children in case of extreme necessity or for the education of her children in case the income is not sufficient, and my said trustees shall use so much of the principal of the trust created for Natalie as they may deem necessary, in their discretion, for the benefit of Natalie or the lawful issue of her body, if any, in case of extreme necessity, or for the education of her.children in case the income is not sufficient; provided, further, that no adopted child of Natalie’s shall be considered as her child for the purpose of this will. The use of the principal from my estate for the education of my daughters’ children shall be restricted as follows: Principal may be used only for their education in accredited schools of the State Of Michigan. My reason for this provision is, that I feel that my grandchildren can get sufficient training in our Michigan schools and save great expense over what would be required to send them to schools out of the State.
“D. Upon the death of my daughter, Alene, the remaining corpus of the trust created for her together with any unpaid income therefrom, shall be continued in trust for the benefit of her children, Prank Gardner, Jacqueline Gardner, Alene Gard ner and/or any further horn children, each child to have an equal share of the trust estate, and the net income from each child’s share shall be paid to such child in convenient instalments until such child shall attain the age of 25 years, at which time my said trustees shall transfer, pay over and deliver one-half of the remaining corpus of such child’s trust to such child continuing the balance of the trust until such child attains the age of 30 years, at which time my said trustees' shall transfer, pay over and deliver the remaining corpus of such child’s trust to such child together with the unpaid income therefrom thereby terminating the same, and my said trustees are authorized and empowered, in their discretion, to use such portions of the principal of each trust for each child in case of absolute necessity; and should any child die prior to the termination of the trust created for such child with issue surviving, then and in that event, my said trustees shall distribute such deceased child’s share equally among the surviving issue and continue the same in trust for such child until such child attains the age of 21 years paying the income from the same to such child, but should there be no surviving issue, then my said trustees shall distribute such deceased child’s share equally between the survivors to become a part of the corpus of such survivor’s trust unless such survivor has already attained the age of 30 years, in which event the same shall be transferred, paid over and delivered to such surviving child, to be his or hers absolutely.
“E. Should my daughter, Aleñe, die and all of her children die prior to the termination of the trusts created for them leaving no issue surviving, then I direct that the remaining corpus of the trust originally created for Aleñe together with any unpaid net income therefrom, shall become a part of the corpiis' of the trust created for my daughter, Natalie.
“F. Upon the death of my daughter, Natalie, the remaining corpus of the trust created for her together with any unpaid income therefrom, shall be continued in trust for the benefit of her children, if any (lawful issue of her body, and not to include any adopted child or children) each child to have an equal share of the trust estate, and the net income from each child’s share shall be paid to such child in convenient instalments until such child shall attain the age of 25 years at which time my said trustees shall transfer, pay over and deliver one-half of the remaining corpus of such child’s trust to such child continuing the balance of the trust until such child attains the age of 30 years, at which time my said trustees shall transfer, pay over and deliver the remaining corpus of such child’s trust to such child together with any unpaid income therefrom thereby terminating the same; and my said trustees are authorized and empowered, in their discretion, to use such portions of the principal of each trust for each child in case of absolute necessity and should any child die prior to the termination of the trust created for such child with issue surviving, then and in that event, my said trustees shall distribute such deceased child’s share equally among the surviving issue and continue the same in trust for such child until such child attains the age of 21 years paying the income from same to such child, but should there be no surviving issue, then my said trustees shall distribute such deceased child’s share equally between the survivors to become a part of the corpus of such survivor’s trust unless such survivor has already attained the age of 30 years in which event the same shall be transferred, paid over and delivered to such surviving child to be his or hers absolutely.
“F. Should my daughter, Natalie, die and her children (the lawful issue of her body) shall also have died prior to the termination of the trust created for them leaving no issue surviving, then I di rect that the remaining corpus of the trust originally created for Natalie shall he added to the trust created for Alene; provided, however, that should both of my daughters, Alene and Natalie, predecease me and all of my grandchildren predecease me without issue, then upon my death, I give, devise and bequeath my estate to the heirs at law of my brother, Joseph Edward French, now deceased.”
An examination of the trust estate as above created shows that the trustees named in the will were authorized and empowered to invest and reinvest the same in such manner as would furnish the largest income possible upon such trust funds consistent with conservative and safe investment. The trustees were given power and authority to sell, convey, release or exchange the whole or any part of the real estate and personal property, or not to sell and dispose of the same; to retain in their discretion the securities on hand belonging to testator’s estate as a part of the trust funds. As soon as the testamentary trustees qualified under the law, they were to divide the trust estate created by the testator’s will into two equal parts: one, for testator’s daughter, Aleñe Gardner, and the other for his daughter, Natalie Brecker Coleman. To each of the daughters above named was given the net income and profits of that part of the trust estate, allotted to them by the trustees, during the period of their natural life. The trustees were authorized and empowered to use so much of the principal of the trust fund so created for and allotted to either of said daughters as might be necessary for their benefit or for the benefit of the lawful issue of their body, in case of necessity. The will provided that upon the death of the daughter Aleñe, the remaining corpus of the estate created for and allotted to her, together with the unpaid income therefrom, should be continued in trust for the benefit of her children, Frank Gardner, Jacqueline Gardner, Aleñe Gardner and/or any further born children. Each child was to have an equal share of such trust estate. The net income from each child’s share was' directed to be paid to such child until he or she should attain the age of 25 years. At the age of 25 years, each child of his daughter Aleñe was to have one-half of the remaining corpus of such child’s trust estate, absolutely. The balance of each such child’s portion of the trust estate was to be delivered to such child absolutely when such child should reach the age of 30 years. The trustees were authorized to use portions of the principal of the trust fund for each child in the case of absolute necessity. Subsequent provisions were made for the disposition of each child’s share of the trust estate in case of their death before the period of distribution to such children of Aleñe should arrive. Provision was made for the disposition of the trust estate in case of the death of the daughter Alene and the death of all her children prior to the termination of the trust created for such children. A substantially similar provision was made for the daughter Natalie and for her children in case she should have any, and for disposition of the property allotted by the trustees to the trust created for her, and her children, all of which appears at large in the portion of the will of testator as above quoted.
The important thing in the construction of a will is to determine the intention of the testator. Jameson’s Appeal, 1 Mich. 99; Kinney v. Kinney, 34 Mich. 250; Toms v. Williams, 41 Mich. 552; Tewksbury v. French, 44 Mich. 100; Ireland v. Parmenter, 48 Mich. 631; Eyer v. Beck, 70 Mich. 179; Thurber v. Battey, 105 Mich. 718; Gadd v. Stoner, 113 Mich, 689; Greg ory v. Tompkins, 132 Mich. 205; Foster v. Stevens, 146 Mich. 131; Union Trust Co. v. Fisher, 240 Mich. 68; In re Canfield’s Estate, 248 Mich. 571.
“No hard and fast rule can he applied to all cases alike. The peculiar facts and circumstances of each case must be considered, and from them the court must determine the rules of construction to be adopted.” Foster v. Stevens, supra.
It is not so much the language made use of by the testator as his evident intention that governs. Tracy v. Murray, 49 Mich. 35; Bateman v. Case, 170 Mich. 617.
“The construction of a will is not merely determining the meaning of a word or phrase found in it, or ascertaining the sense of a particular sentence or form of words, though both are involved, but it demands the drawing of such conclusions from the whole as are manifestly within the spirit of the text, though they may be beyond the direct expressions there found. It is the substance rather than the form which is to be considered.” Bateman v. Case, supra.
The law favors that construction of a will which will distribute the testator’s estate most nearly in accordance with the statutes of descent and distribution. Rivenett v. Bourquin, 53 Mich. 10. It favors the vesting of estates. Toms v. Williams, supra; Hull v. Osborn, 151 Mich. 8; Taylor v. Richards, 153 Mich. 667; Van Gallow v. Brandt, 168 Mich. 642.
Parol evidence cannot be resorted to to add to, vary or contradict the language of a written instrument unambiguous on its face, particularly a will. Defreese v. Lake, 109 Mich. 415 (32 L. R. A. 744, 63 Am. St. Rep. 584); Turner v. Burr, 141 Mich. 106; Van Gallow v. Brandt, supra. Parol evidence of the testator’s intention in making a will cannot be given or considered. Tuxbury v. French, 41 Mich. 7; Waldron v. Waldron, 45 Mich. 350; Oades v. Marsh, 111 Mich. 168; Turner v. Burr, supra.
“The general principle is not to he overlooked that the words of a testator, like those of other persons, naturally refer to the circumstances about him at the time, and that in order to have his outlook and all reasonable means of explanation of his words, not in addition or contradiction to them, but to disclose his use of them, a knowledge of these circumstances is essential.” Tuxbury v. French, supra.
The estate of the testator consisted of both real and personal property. Both real and personal property entered into and constituted a part of the trust estate created by his will. It is claimed the residuary clause of the will is void because it suspends the absolute power of alienation for more than two lives in being at the creation of the estate, and because it violates the common-law rule as to perpetuities so far as it involves personal property.
Section 12934, 3 Comp. Laws 1929, provides:
“ Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter; such power of alienation is suspended when there are no persons in being, by whom an absolute fee in possession can be conveyed.”
Section 12935, 3 Comp. Laws 1929, provides:
“The absolute power of alienation shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate, except in the single case mentioned in the next section. ’ ’
Section 12936, 3 Comp. Laws 1929, provides:
“A contingent remainder in fee may Tbe created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die' under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain their full age.”
In Thatcher v. St. Andrews Church, 37 Mich. 264, it is said:
“We think it is a self-evident proposition that the ‘absolute power of alienation’ is not suspended where the instrument gives the trustees power to dispose of the property at their option. Where power is given to convey the trust estate, the absolute power of alienation can in no possible way be said to be suspended.”
In Brewer v. Brewer, 11 Hun (N. Y.), 147, affirmed in Bremer v. Penniman, 72 N. Y. 603, it is said:
“The only question to be determined on this appeal is whether such a trust is legalized and rendered valid by the power coupled with it, authorizing the trustees to sell the trust estate.
“This question has not been expressly adjudicated, perhaps, in this State, and may be said to be presented herein for the first time. The argument to sustain it is ingenious, but if it were successful it would validate trusts that have been declared prohibited and void.
“It is based on the proposition that section 14 of the article relating to the creation of estates declares distinctly what is meant by the suspension of the power of alienation, which is prohibited, namely, ‘such power of alienation is suspended when there are no persons in being, by whom an absolute fee in possession can be conveyed,’ and that the testa tor having conferred a valid power of sale, there is a person in being by whom an absolute fee in possession can be conveyed. The answer which seems to meet the question at once, and conclusively, is that the power of sale is possessed by persons in a representative capacity, and is discretionary and limited, because it is for the purposes of the trust only, or; in other words, to make a change in the character of the trust property for reinvestment, and therefore to continue the trust. The statute clearly means persons having an absolute and unqualified, unconditional fee by inheritance or by purchase, which can be conveyed absolutely, not only with reference to the subject of the conveyance, but to the product of its sale.”
In Palms v. Palms, 68 Mich. 355, this court cited Brewer v. Brewer, supra, and Hobson v. Hale, 95 N. Y. 609, with approval, and Palms v. Palms, supra, was expressly approved in Niles v. Mason, 126 Mich. 482.
In Dean v. Mumford, 102 Mich. 510, it is said:
“Where a duty is imposed upon the executor which makes it necessary for him to retain the possession and control of realty, he will take an interest adequate to enable him to perform his duty; and an alienation which cuts off that right is, by implication, prohibited.”
The same rule was followed in Niles v. Mason, supra. The cases supporting- the rule of Brewer v. Brewer, supra, Dean v. Mumford, supra, and Niles v. Mason, supra, are collected in Chaplin on Suspension of the Power of Alienation (2d Ed.), p. 111; (3d Ed.), p. 206. The rule of Brewer v. Brewer, supra, is inherently sound. It was followed in Dean v. Mumford, supra, Niles v. Mason, supra, and Grand Rapids Trust Co. v. Herbst, 220 Mich. 321, and is sustained by the overwhelming weight of au thority. It limits the rule of Thatcher v. St. Andrews Church, above quoted.
“We have no statutes bearing on trusts in personalty, and, so far as trusts are concerned, they must be treated as they are by their nature required to be treated by other than statutory rules.” Penny v. Croul, 76 Mich. 471 (5 L. R. A. 858).
That is by the rules of the common law. What is the common-law rule?
_ “The test of whether the rule against perpetuities applies or not is the remoteness of time when, if ever, the estate vests. The court must be able to say, to avoid the rule, that, to a certainty, the estate will vest within 21 years after the death of Stuart and Looe, and this vesting must be found to have been discernible at the date of the death of the testatrix. At that time Stuart and Looe were both living but had no children. Certainty as to time the estate will vest must be apparent, unaided by events subsequent to the date the will became operative. The dead hand can control contingent devolution toward ultimate vesting only within a fixed period.” Michigan Trust Co. v. Baker, 226 Mich. 72.
‘ ‘ The test therefore by which to ascertain whether a limitation over is void for remoteness is very simple. It does not depend on the character or nature of the contingency or event on which it is to take effect, for these may be varied to any extent. But it turns on the single question, whether the prescribed contingency or event may not arise until after, the time allowed by law within which the gift over must take effect. * * * It is not sufficient that the future estate may by possibility become vested within the period allowed by the rule against perpetuities or even that it will probably become vested in such period. If it may possibly happen beyond the established time limits or if there is left any room for uncertainty or doubt on the point the limitation is void. If a future limitation may not by possibility take effect within the prescribed period it cannot be made good by subsequent events.” 21 R. C. L. pp. 289, 290. Michigan Trust Co. v. Baker, supra, 77, 78.
“The rule stated more fully is as follows:
“First, subject to the exceptions hereafter mentioned every future estate or interest iii any kind of property, the rights in which are governed by the law of England, must be such that, at the time when the instrument creating it comes into operation, it can be predicated that, if the estate or interest vests at all, it must necessarily vest not later than at the end of a certain period.
“Secondly, this period is the life of a person or the survivor of any number of persons in being at the time of creation of such future estate or interest, and ascertained for that purpose by the instrument creating the same, and 21 years to be computed from the dropping of such life; but if no such person or persons are ascertained by the instrument, the period is 21 years computed from the time of creation of the future .estate or interest.
“In the following- paragraphs this period is called ‘the perpetuity period.’
“Thirdly, a child who is en ventre sa mere at the time of creation of an estate or interest, and is after-wards born alive, is deemed to be a person in being for the purposes both of the vesting of the estate or interest in him, and of being a life chosen to form the perpetuity period. The perpetuity period may, therefore, be apparently extended by a period or periods for gestation, but only in those cases where gestation actually exists. This branch of the rule is applied whether it is for the advantage of the unborn child or not.
“Fourthly, every condition subsequent which but for this rule would render void a validly created estate or interest is to that extent inoperative.
“Fifthly, any estate or interest which does not necessarily satisfy the above rule is void from its creation, and events, subsequent to the date of the instrument which, or subsequent to the death of the testator whose will, created the estate or interest, which in fact make the vesting take place within the perpetuity period, have no effect so as to make the estate or interest valid.
“Sixthly, the time of the death of the testator is deemed the time of creation of an estate or interest created by will; and the time of the execution of the instrument creating* the power is deemed the time of creation of an estate or interest created by the execution of a power not tantamount to absolute ownership.” 22 Halsbury’s Laws of England, § 641, p. 302.
“The mixture of good and evil together makes the whole bad.” Wimbish v. Tailbois, 1 Plowd. 38 (75 Eng. Repr. 63).
“Where a legal and an illegal trust are created by will, and so connected as to constitute one general scheme, so that the scheme must fail, if the one be retained and the other rejected, the legal trust must fall with the illegal one.” Rong v. Haller, 109 Minn. 191 (123 N. W. 471, 806, 26 L. R. A. [N. S.] 825).
See, also, Johnston’s Estate, 185 Pa. 179 (39 Atl. 879, 64 Am. St. Rep. 621); In re Fair’s Estate, 136 Cal. 79 (68 Pac. 306); In re Dixon’s Estate, 143 Cal. 511 (77 Pac. 412).
As said in Palms v. Palms, 68 Mich. 355, 380:
“The testator has placed it all in one trust, and subjected it to the same. disposition. He has made no distinction, and I think it clear that we can make none for him. If, therefore, the trust as to any portion of the will must fail because unauthorized,' it must fail to both classes of property.”
“A trust estate cannot be good in part and bad in part.” Coster v. Lorillard, 14 Wend. (N. Y.) 265.
These principles are fundamental. Many cases supporting them are collected by Messrs. Kent and Cooley in their joint brief filed in Palms v. Palms above cited.
“Where realty and personalty are inseparably united in a trust scheme, the invalidity of the trust as to one species of property also destroys the same trust as to the other.” 40 Cyc. p. 1420, note 54.
If the residuary trust created by the will is void as to the real estate it is void in its entirety. The real estate of the testator as well as his personal property were placed in the residuary trust. It is all made subject to the same disposition. The testator made no distinction between the control and disposition of his real estate and the control and disposition of his personal property, so far as such trust is concerned.
The rule against perpetuities is not a rule of construction, but a peremptory demand of law. It is not a test to determine intention, — its object is to defeat intention. Gray on Perpetuities (2d Ed.), § 629; Hawley v. James, 16 Wend. (N. Y.) 61; Herzog v. Title Guaranty & Trust Co. of New York City, 177 N. Y. 86 (69 N. E. 283, 67 L. R. A. 146); Central Trust Co. v. Egleston, 185 N. Y. 23 (77 N. E. 989); 1 Perry on Trusts (6th Ed.), § 390. The same may be said of the statutes, 3 Comp. Laws 1929, §§ 12934, 12935, prohibiting the suspension of the absolute power of alienation for more than two lives in being at the creation of the estate.
The rule prohibiting the suspension of power of alienation for more than two lives in being and the rule against perpetuities are separate and distinct.
“It must be kept in mind that, while the rule against perpetuities applies to future interests in both real and personal property, it has nothing to do with the statutory prohibition against suspension of power of alienation. The rule requires vesting of estates within a period, while the statute prohibits inalienability beyond a period; the rule is a restraint only upon future interests and has no concern with present interests; the statute reaches vested estates in real property but shorn of alien-ability. With title to the real estate vested in the trustee with power and mandate to sell, the character of the avails thereof is fixed by the will as personal property.” Michigan Trust Co. v. Baker, supra.
Sqe, also, Thatcher v. St. Andrews Church, supra.
It is contended this case is governed by Gettins v. Grand Rapids Trust Co., 249 Mich. 238. That case went to the verge of judicial discretion in upholding the will of the testator. It was there said:
“It is conceded that this trust provision respecting surviving issue of Belle violates both the statute against restraints on alienation and the* rule against perpetuities (Michigan Trust Co. v. Baker, supra) in that ‘there is a mere possibility that there are no persons now in being, by whom an absolute fee in possession of this trust estate can be conveyed, and that alienation may by mere possibility be suspended for a period longer than two lives in being.’
“In applying the rule against perpetuities, Belle Gettins, although now childless and 52 years old, must be considered as capable of having issue as long as she lives. Rozell v. Rozell, 217 Mich. 324.
“The question before us is: May we lop off the invalid trust provision and permit the rest of the will to stand, or must we hold the entire will void because of such provision? To hold the will Void is to defeat completely testatrix’s whole plan of distribution of her property, which she had right to dispose of as she pleased. We may and should (eliminating the invalid trust provision) sustain the remainder of the will if in doing so we do not violate the general plan and scheme of testatrix, if we do not in effect make a will for her. Rozell v. Rozell, supra.”
Either this will is void or the court, in defiance of the will, contrary to the expressed intention of the testator, must enter the field of speculative probability and construct for the testator a will he never dreamed of and never declared to be his last will and testament. There is a clear distinction between the rule applied in Gettins v. Grand Rapids Trust Co., supra, and that applied in Burke v. Central Trust Co., 258 Mich. 588; and Michigan Trust Co. v. Baker, supra.
“A distinction is to be observed between schemes which were obviously intended to constitute a single entity and must stand or fall on their merits as a whole, and those which may be separated into wholly independent dispositions. If a provision of the former "character involves an unlawful suspension, or postponement, the whole scheme falls to the ground, while if the taint' of illegality attaches only to a wholly independent part of an entire scheme, this tainted part may be cut off and the rest allowed to stand.” Chaplin, Suspension of the Power of Alienation (2d Ed.), p. 290.
“The statute is like a tyrant, where he comes he makes all void.” Maleverer v. Redshaw, 1 Mod. 35 (86 Eng. Repr. 712).
When, the provisions (of a will) are ascertained and understood then is their legality to he determined. Central Trust Co. v. Egleston, supra.
“When we have ascertained what particular disposition the testator intended to make of his estate, then, and not before, the question arises whether the will is valid. If the disposition actually made is not inconsistent with the rules of law, the will is good and must be carried into effect. # # * On the other hand, if the disposition actually made is contrary to law * * * the will is worthless and we have no choice but to declare it void.” Hawley v. James, supra.
“It would be arbitrary, and establish a precedent for courts, not to construe wills according to the intent of the testator as derived from a consideration of the language used to express it; but to make a will for him, such a one as we undertake to presume he would have made, if advised that his own was void as against law. This I cannot consent to do. Better that the intent of the testator should fail in a particular ease, than that the court should assume such arbitrary and undefined discretion over his estate. If we cannot execute the whole will, or some distinct and independent intent, the whole had better be declared void. The law makes a better one than will usually be made by the court.” Coster v. Lorillard, supra.
“We cannot make a new will or build up a scheme for the purpose of carrying out what might be thought was or would be in accordance with his wishes.” Tilden v. Green, 130 N. Y. 29 (28 N. E. 880, 14 L. R. A. 33, 27 Am. St. Rep. 487).
“It is axiomatic that courts cannot make new wills for testators who have failed to make valid wills for themselves. While recognizing the force of this truth courts have from the earliest times been compelled to choose between the alternatives of set ting aside certain wills altogether, or of cutting out simply their void provision's. This necessity has led to the rule which is now firmly established in this State, that when the several parts of a will are so intermingled or interdependent that the bad cannot be separated from the good, the whole must fail altogether.” Kalish v. Kalish, 166 N. Y. 368 (59 N. E. 917).
‘ ‘ The will sought to give bread, but legislation has turned it to a stone, and still it is insisted that it shall be forced upon the children of the testator without regard to its change of quality. * * * Unless we can carry out the real intentions of the testator, I can discover little justice or utility in mocking his descendants by the mere scraps of his will, which have not been reached by legislative enactments. The whole beauty and harmony of this will is broken down by the strong arm of written law. We are not permitted to refashion it after the plan of its projector; but can only gather up the disjointed fragments, and unite them with judicial cement. * * * This patrimonial tree offered shelter and shade to the children of the testator. Its foliage has been withered, and its branches lopped off by the omnipotence of legislation; but they are pointed to its naked and sapless trunk and there invited to seek repose and protection. The whole life and spirit of the will has departed, and the effort to resuscitate it by judicial power, will be as unavailing as an attempt to ‘back to its mansion call the fleeting breath.’ * * * We cannot warm it into life and being, nor reinvigorate it with the soul breathed into it by the testator; but as an inquest to declare the cause of its death, we should pronounce it to be that of legislative visitation.” Root v. Stuyvesant, 18 Wend. (N. Y.) 257, 317.
“I am unable to discover how we can execute this will in any substantial, distinct or independent provision. If executed at all, it must be at war with the spirit of the testator’s intent, as indicated by the whole tenor of the will, and every fact and circumstance connected with it, either immediately or remotely. I cannot consent to force the mere language of the testator upon his heirs, when the object to which it relates has been placed beyond their enjoyment; or to go through the idle ceremony of pretending to execute his will, when we are compelled to pronounce everything of a substantial character void. * * * In this case, it is better that the testator’s property should descend to his heirs, according to the just and equitable principles of the statute of descent, than that a will should be patched up for him which would both defeat his intentions, and leave his heirs destitute in the midst of abundance.” Root v. Stuyvesant, supra, 318.
The evident intention of testator was to give his residuary estate to trustees, with directions to divide the trust estate into two equal shares which shares were to consist of both real and personal property; to provide that these separate shares or divisions should be treated by his trustees "separately; that title to none of the trust property should vest absolutely in any one until a child of his daughter Aleñe or of his daughter Natalie should attain the age of 25 years, and such child may possibly not yet be in being.
Undoubtedly an object of the testator was to give the bulk of his estate to trustees so his daughters would have the use and benefit, each of one-half of it during their natural life, but the paramount object of the testator was to project his will into the future, to suspend the absolute power of alienation of his real estate beyond the period prescribed by statute and to prevent the vesting of absolute title to his personal property beyond the period fixed by the rule against perpetuities; to bind his real estate and personal property all together, regardless of its character, into one trust, and by his will to direct the control of the trust estate, and direct its ultimate distribution to his grandchildren presently in being or who might prospectively come into being, who when they severally and respectively should reach the age of 25 years should receive one-half of their respective shares and when each and all his grandchildren born or yet to be born should reach the age of 30 years then and not till then could his trust estate vest absolutely.
Though the rule against perpetuities and the rule against suspension of the power of alienation are separate and distinct, as pointed out by Mr. Justice Wiest in Michigan Trust Co. v. Baker, supra, they both declare a rule of policy, the prevention of property being taken out of trade and commerce, and so tied up by the dead hand of the testator, that it cannot be conveyed, and the title thereto cannot vest absolutely, until the lapse of a long period of time. Ford v. Ford, 80 Mich. 42; Edgerly v. Barker, 66 N. H. 434 (31 Atl. 900, 28 L. R. A. 328). Both rules are aimed to stimulate commercial activity, to make capital active,- by making it available for use. The testator, by his will, attempted to prohibit the vesting of absolute title to his residuary estate during the lifetime of his two daughters, and during the first 25 years of the lifetime of any of his daughters’ children, three at least, the children of his daughter Alene, are now in being, and with probable presumptive prospects she may have other children and that his daughter Natalie may in the future have children. It is commendable to attempt to carry out the will of the testator but it is just as commendable to vindicate the law which testator’s will clearly violates.
We cannot lop off a part of this trust. We cannot make a new will for the testator. Should we hold void that part of the trust provisions of the testator’s will as violates statutes on restraints on alienation and the rule against perpetuities, and uphold as valid the balance of the will, we will make a will for the testator. His property will pass according to the terms of our will, not in accordance with his will. In all reasonable probability the will so remade would be such a one as the testator never contemplated, never considered, never intended to make, and which, had it been suggested to him in his lifetime he should execute, would have been repudiated and condemned. His property ought not to be made to pass in a manner he never intended it should pass, by a will made by the court and not by him. Rather it should pass by law.
The decree of the trial court is reversed and a decree will be entered setting aside and holding void the trust provisions of the will in question. Costs to be a charge against the estate.
Nelson Sharpe, C. J., and North, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
-77,
121,
-36,
-70,
10,
112,
42,
-102,
-14,
-24,
-91,
19,
41,
82,
16,
45,
119,
-19,
-47,
123,
-109,
51,
23,
3,
-45,
-69,
-9,
-35,
-79,
-51,
-90,
-41,
72,
32,
42,
-99,
-58,
-126,
-63,
82,
-122,
65,
59,
105,
-39,
96,
52,
39,
20,
-119,
101,
-66,
-93,
47,
61,
106,
108,
110,
123,
-87,
88,
-71,
-87,
-123,
105,
23,
-112,
6,
-108,
-113,
-54,
10,
-104,
21,
-120,
-24,
51,
-74,
70,
-44,
38,
109,
8,
98,
103,
-45,
85,
109,
-112,
-104,
-106,
118,
-115,
-89,
-48,
89,
0,
105,
-76,
-98,
-4,
16,
-105,
80,
-18,
-105,
29,
104,
4,
-49,
-42,
-109,
-127,
62,
-36,
-118,
-9,
117,
48,
113,
-50,
66,
93,
67,
57,
-109,
-121,
-45
] |
Fellows, J.
Plaintiff Chappie brought this suit in the Montcalm circuit court against the National Hardwood Company, a Delaware corporation, and Joseph J. Jacobson and Abram W. Sempliner, both residents of Detroit, counting on fraud in the issuance and sale of bonds of the company, the declaration being quite similar to the one before us in Thomson v. Kent Circuit Judge, 230 Mich. 354. Defendants Jacobson and Sempliner each made a motion to dismiss for various reasons, both of which motions were denied. This writ of certiorari brings up for review the order refusing to grant the motion of defendant Jacobson.
We shall consider but one ground set up in the motion as it is controlling of the case. Prior to the bringing the present action, plaintiff Chappie brought an action in the Kent circuit court against defendants Jacobson and Sempliner, together with Hiram E. Moone, Oscar B. Wilmarth and Joseph Noorthoek. In that case he counted as he does in this case on fraud in the issuance and sale of the bonds of the National Hardwood Company, and the alleged fraud of defendants Jacobson and Sempliner there counted upon is the same as here counted upon. That case is still pending. It was submitted with the instant case to this court at the present term. That case was dismissed as to Sempliner but was continued as to the other defendants including Jacobson and went to trial as to all except Sempliner. That suit was pending when this suit was instituted and-defendant Jacobson insists that the present suit should be abated because there was a former suit pending which so far as he is concerned involved the identical matter here involved. Under the former practice pendency of a former suit was raised by plea in abatement. Near v. Mitchell, 23 Mich. 382; Sullings v. Goodyear Dental Vulcanite Co., 36 Mich. 313. Now it may be raised by motion to dismiss (3 Comp. Laws 1915, § 12456).
As we have pointed out, the plaintiff is the same in both suits, the fraud charged against Jacobson is the same in both suits and unless a different rule should be applied where different defendants are joined with the mover of the motion to dismiss, he is entitled to be dismissed. The courts quite uniformly agree that parties may not be harassed by new suits brought by the same plaintiff involving the same questions as those in pending litigation. If this were not so repeated suits involving useless expenditures of money and energy could be daily launched by a litigious plaintiff involving one and the same matter. Courts will not lend their aid to proceedings of such a character, and the holdings are quite uniform on this subject. May these holdings be circumvented and a different holding successfully invoked by adding new defendants or subtracting some of the old ones, but continuing the mover who seeks to abate the successive suits as a continuing defendant where the plaintiff is the same, and the same matters are involved in all the cases? We think upon reason and authority this question must be answered in the negative and we think it was so answered by this court in Pinel v. Campsell, 190 Mich. 347. It will be noted that in that case a suit in equity was pending in the Federal court in which the rights of all the parties could be adjudicated. In the case there before us the parties did not include all those who' were parties to the Federal case, but both the parties to the suit in the State court were parties to the suit in the Federal court. We held that the plea in abatement was good and to sustain the holding cited Emry v. Chappell, 148 N. C. 327 (62 S. E. 411); Van Vleck v. Anderson, 136 Iowa, 366 (113 N. W. 853); and Haas v. Righeimer, 220 Ill. 193 (77 N. E. 69); in all three of which cases it was held that complete identity of parties was not necessary to invoke the doctrine of former suit pending. In Ruling Case Law it is said:
“But a suit will be abated on the ground that an other suit is pending in the same jurisdiction Where the parties plaintiff are the same in both suits and the parties defendant in the second suit are parties defendant in the former suit, notwithstanding that there are additional parties defendant in the former suit, provided, of course, each action is predicated upon substantially the same facts as respects "the defendants named in both.” 1 R. C. L. p. 15.
In Corpus Juris it is said:
“All defendants not the same. In some cases it is said that to sustain a plea of another suit pending the suit must be between all the same parties; and in some cases it is true that a suit against one person is not pleadable in abatement of a subsequent suit by the same plaintiff against the same defendant and others. By the weight of authority, however, it is not essential that defendants be entirely the same. If the actions are based upon substantially the same facts, the first will abate the second, at least as to those defendants who are named in both, although there are more defendants in one action than in the other.” 1 C. J. p. 78.
This view of the textwriters is sustained by the following cases: Beyersdorf v. Sump, 39 Minn. 495 (41 N. W. 101, 12 Am. St. Rep. 678); Quinn v. Monona County, 140 Iowa, 105, 109 (117 N. W. 1100); Rehman v. Railroad Co., 8 Ind. App. 200 (35 N. E. 292); Gause v. Boldt, 99 N. Y. Supp. 442; Rogers v. Hoskins, 15 Ga. 270, 273; Haas v. Righeimer, supra; Emry v. Chappell, supra.
The order in so far as it affects defendant Jacobson will be reversed.
Bird, C. J., and Sharpe, Snow, Wiest, Clark, and McDonald, JJ., concurred. Steere, J., did not sit. | [
112,
-8,
-8,
-116,
8,
-32,
48,
-6,
121,
-31,
-9,
83,
-19,
-58,
0,
63,
-9,
125,
81,
123,
-44,
-125,
71,
-29,
-46,
-110,
-39,
109,
48,
78,
-28,
-43,
76,
48,
-62,
-107,
-122,
16,
-55,
28,
-50,
4,
40,
-32,
-71,
-48,
48,
-77,
20,
79,
113,
-34,
-61,
45,
19,
79,
72,
40,
-6,
-67,
-48,
-24,
-101,
21,
127,
22,
-77,
36,
-100,
37,
-24,
28,
8,
48,
34,
-32,
49,
-74,
70,
84,
107,
-71,
-120,
102,
98,
34,
17,
-89,
-100,
-104,
63,
-34,
29,
-89,
-15,
72,
10,
41,
-74,
-105,
116,
16,
-89,
126,
-22,
-108,
29,
108,
3,
-114,
-106,
-109,
-81,
118,
30,
-125,
-18,
-126,
20,
80,
-52,
112,
92,
119,
59,
59,
-114,
-103
] |
North, J.
Plaintiff, an employee of the Ford Motor Company, received treatment in the company’s first aid department. The Ford Motor Company employed in this department as a Swedish masseur the defendant Albert Lundgren. It also employed a Dr. Hayes under whose direction Lundgren rendered his services. Plaintiff alleges that he sustained serious bodily injuries incident to the treatment administered by Lundgren, and plaintiff seeks to recover damages therefor. Recovery is sought upon the theory that the Ford Motor Company was negligent in that it employed in its first aid department Dr. Hayes and defendant Lundgren each of whom is alleged to have been'incompetent to render the services required by employees treated therein, and as against'Lundgren recovery is sought on the ground of alleged negligent treatment. At the conclusion of plaintiff’s case the trial judge directed a verdict in favor of defendants on the ground that there was no testimony tending to establish the alleged negligence. Plaintiff has appealed.
Decision herein turns upon whether the record discloses any competent testimony tending to sustain plaintiff’s claim as against either of the defendants. The testimony must be construed in the light most favorable to plaintiff. As to the duty of the Ford Motor Company the following quotation is applicable:
“The law is well settled that the only duty imposed upon the defendant is the duty to exercise reasonable care in the selection of the physicians and surgeons who are reasonably competent, and having exercised this duty, the company is not chargeable with the want of skill of the physician or surgeon whom it has selected, in the performance of the service he is required to render.”' Barden v. Railway Co., 152 N. C. 318 (67 S. E. 971, 49 L. R. A. [N. S.] 801), citing numerous authorities.
See, also, Powers v. Massachusetts Homeopathic Hospital, 47 C. C. A. 122 (109 Fed. 294, 65 L. R. A. 372); Tutino v. Ford Motor Co., 111 N. J. Law, 435 (168 Atl. 749); O'Brien v. Cunard Steamship Co., 154 Mass. 272 (28 N. E. 266, 13 L. R. A. 329); Laubheim v. De Koninglyke Nederlandsche Stoomboot Maatschappy, 107 N. Y. 228 (13 N. E. 781, 1 Am. St. Rep. 815). The record in the instant case contains no testimony tending to sustain plaintiff’s charge of negligence as against the Ford Motor Company, and it follows the trial judge was correct in directing verdict accordingly.
As to defendant Ford Motor Company judgment is affirmed, with costs.
The following facts are pertinent to a determination of this appeal as to defendant Lundgren. Plaintiff being afflicted with a severe headache was directed or permitted by his superior to go to Dr. Hayes. Upon being advised by plaintiff of his condition, Dr. Hayes directed plaintiff to report to Lundgren for treatment. Plaintiff followed directions and received treatment from Lundgren. In this connection plaintiff alleges Lundgren did not treat plaintiff for said sickness skillfully and with due care, hut, on the contrary, was negligent and unskillful in diagnosing plaintiff’s ailment and in treating him, resulting in physical injury to plaintiff, either total or partial loss of eyesight and impairment of his ability to continue in his former occupation. Relative to the treatment administered by Lundgren plaintiff testified:
“A. He (Lundgren) got on the right side, and he caught a hold of my head and in such a way, and he give me quick jerk. * * *■ •
“Q. "What did he do then?
“A. Give, me a quick jerk toward the right.
“Q. Was "it a hard jerk?
“A. Terribly hard.
“Q. What was the result of that jerk?
“A. The result, I feel at once a change in my whole body, a terrible change.
“Q. Can you describe to the jury just what that change was, how you felt?
“A. I felt terrible dizziness and numbness, spell was terrible, that I could hardly stand any longer there, terrible feeling all through my body.”
As to whether the treatment which plaintiff claims was administered was proper, the record contains the testimony of Lundgren which in part is as follows :
“Q. In treating a patient, did you ever practice by taking a hold of his chin and head and twisting it violently?
“A. No, sir.
“Q. Does that come within the practice of a Swedish masseur?
“A. No, sir.
“Q. Just what does your work cover?
“A. Cover, by manipulation, massaging, loosening up congestion, and stimulating the circulation.
“Q. Do you twist the different limbs and the body?
“A. No.
“Q. Suddenly twist them?
“A. No. * * *
“Q. Are you familiar with the general practice of masseurs in this community in the treating* of slight headaches?
“A. Yes.
“Q. What is that treatment?
“A. Well, it is manipulation, back of the neck, the muscles. ’ ’
Lundgren denied treating plaintiff in the manner claimed by the latter. We think it is a fair inference from Lundgren’s testimony that such treatment, if administered by a masseur, was improper. The testimony presents an issue of fact which should have -been submitted to the jury, and it was error for the circuit judge to hold otherwise as to defendant Lundgren.
In this particular the judgment, entered in the circuit court will be vacated and a new trial ordered. Appellant will have costs against defendant Lundgren.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, Bushnell, and Edward M., Sharpe, JJ., concurred. | [
-78,
-4,
-96,
-83,
56,
104,
34,
90,
65,
-78,
37,
-77,
-83,
-53,
13,
47,
-20,
63,
85,
97,
-37,
-77,
23,
35,
-62,
-105,
121,
-59,
-79,
-53,
-32,
125,
77,
48,
-118,
-108,
-30,
0,
-51,
20,
-60,
4,
-88,
-32,
121,
-110,
48,
122,
-107,
71,
113,
94,
11,
42,
34,
-57,
45,
42,
123,
45,
-32,
-16,
-117,
-123,
111,
18,
-79,
36,
30,
43,
122,
14,
-110,
-79,
0,
-8,
18,
-74,
-62,
-12,
35,
-87,
8,
98,
98,
32,
21,
-19,
80,
-68,
63,
-82,
13,
-123,
-104,
41,
91,
17,
-73,
-99,
112,
22,
15,
120,
-6,
-39,
29,
96,
-63,
-69,
22,
-77,
-49,
96,
28,
35,
-49,
-115,
22,
81,
-34,
-78,
84,
23,
122,
-65,
-102,
-109
] |
Fead, J.
Plaintiff had decree rescinding a trade of real estate for fraud.
Defendant Fox owned a waterpower gristmill, which he had sold twice and which had been returned to him, the first time voluntarily and the second time on rescission for fraud. Mezak v. Fox, 253. Mich. 326. In the summer of 1932 defendant Bradford, an attorney and son-in-law of Fox, advertised the property for sale. Plaintiff’s husband answered the advertisement and negotiations for a trade extended from July to November 7th.
Plaintiff and her husband visited the property twice. Bacon had had some experience in flour mills but knew little about waterpower. Both were guilty of exaggerations in their claims of reliance on alleged representations of conditions at the mill. But the testimony justified the conclusion of the court that representations were made to them, and induced the trade, to the effect that the water wheel would develop 100 horsepower, the mill would produce 25 barrels of flour per day, the profit was $1 per barrel, the mill was in good condition and Fox could and would sell its entire output. The representations were substantial elements of the trade and were false.
Defendants make much of the fact that plaintiff and her husband inspected the property and the correspondence demonstrated their anxiety to purchase. Ordinarily the argument would be of much, weight but in the instant case the whole transaction indicates control and direction of the negotiations by defendants, arising out of their superior knowledge of the law and the trusting nature of plaintiff and her husband, particularly demonstrated in the execution of the instruments of conveyance.
The trade price of the mill was $9,000. The Ba-cons had a land contract vendee’s interest in a house and lot in Highland Park. The original purchase price was $7,500, upon which there was owing about $2,200, including mortgage of $1,750 and some interest and taxes. Mrs. Fox told the Bacons they needed no attorney to represent them as Mr. Bradford would act for both. We are not convinced that Bradford so understood his position but the Bacons did. Bradford drafted the papers. Instead of a land contract for the mill, Fox executed a lease providing for $50 per month rent and about $50 per month for taxes, interest and insurance, Fox agree ing to convey title on payment of $7,000 principal and other charges. Mrs. Fox did not sign the lease. But the'conveyance of the Highland Park equity ran from the Bacons to Mrs. Fox. Plaintiff and Fox executed a sales agreement by which Fox agreed to “devote such time and effort as he can to the sale of feeds and flours” produced at the mill and he was to receive a commission on all flour sales in the mill, whether made by himself or others. Plaintiff executed an affidavit, at suggestion of Bradford, to the effect that she had thoroughly investigated the mill, her husband was a miller of several years’ experience and able to judge a flour mill, no representations as to profits or earnings had been made to her or Bacon by Fox, his attorney, agents or employees, and she was purchasing on information obtained by herself or her husband. Plaintiff took possession of the mill December 1st and, within a month, Fox deeded the property to Mrs. Bradford but no notice was given plaintiff of the conveyance nor was the deed recorded until May, 1933.
The court gave much weight, as a badge of fraud, to the affidavit executed by plaintiff. Defendants claim it was a fair precaution to obviate later claim of fraud. The character of the conveyances and the juggling of the titles make us think the court was right, advantage was taken of the lack of acumen of the Bacons, and it was an attempt to build up a defense for fraud of which Bradford knew or had suspicions.
As part of the deal the Bacons gave security on two burial crypts to secure inventory of goods on hand. Later they were sold by Bradford for $500 and the amount used by him to pay the inventory and moneys due on the lease. In June, plaintiff complained that she could not make payments out of the earnings of the mill, said she would not have agreed to pay so much had it not been for misrepresentations and asked readjustment of the contract. A meeting was arranged for July 1st to discuss a readjustment. On that day defendants demanded strict fulfilment and gave notice of forfeiture for default in the June and July payments.
The whole transaction had a basis of overreaching. Defendants knew plaintiff had no other source of income than the mill to make payments. The payments were so large that she had little or no chance to meet them. The mill was not profitable. It was not in the condition represented. The conveyances were not straight-forward but were designed to complicate the situation and confuse plaintiff. Defendants moved with celerity to acquire all plaintiff’s property and to declare forfeiture. From the whole situation, we are convinced the court reached the right conclusion in finding fraud and ordering rescission.
However, we think the decree should be modified. Plaintiff did not make Mrs. Fox a party, although she took title to the Highland Park property. Defendants offered to reconvey the Highland Park property on decree of rescission. Instead of permitting reconveyance the court ordered money decree for $2,000, the price at which the property was taken in the trade. There was some excuse, in the attitude of Mrs. Fox and her husband on the stand, for the court disfavoring the belated offer to reconvey. However, on rescission, plaintiff is entitled only to be put m statu quo ante and it is when it is impossible to do so that money damages may be decreed as a substitute for reconveyance. Plaintiff should have made Mrs. Fox a party.
We think the decree should be modified to permit defendants to reconvey the Highland Park property on rescission. When a proposed decree is presented, there are certain small money items of account which can be adjusted. No costs will be allowed in this court.
Nelson Sharpe, O. J., and Potter, North, Wiest, Btjtzel, Btjshnell, and Edward M. Sharpe, JJ., concurred. | [
112,
122,
-8,
-84,
26,
32,
40,
-102,
-70,
-24,
39,
87,
-51,
82,
20,
13,
-27,
109,
117,
107,
-42,
-77,
23,
42,
-42,
-77,
-45,
-33,
-71,
77,
-12,
-41,
76,
32,
-62,
29,
-30,
-128,
-59,
-36,
14,
-115,
60,
-56,
-43,
82,
54,
59,
64,
73,
97,
-82,
-9,
44,
53,
77,
41,
42,
-17,
57,
-16,
-23,
59,
-52,
-33,
22,
-78,
116,
-104,
3,
-40,
10,
-112,
49,
8,
-23,
115,
-74,
70,
116,
13,
-117,
-120,
102,
99,
17,
-63,
-83,
-8,
-104,
47,
82,
-99,
-90,
-48,
88,
67,
40,
-68,
-97,
116,
0,
19,
-8,
108,
-107,
29,
104,
2,
-89,
-42,
-93,
-113,
58,
-98,
19,
-17,
-85,
58,
80,
-49,
-18,
93,
37,
48,
-101,
-114,
-17
] |
Servitto, J.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendants. We affirm.
Defendant Thomas Donall is the president of defendant 1247 Center Street, LLC, a company that owns X-Cel, a nightclub located in the city of Lansing. Plaintiff owns a building containing residential and commercial units immediately adjacent to X-Cel. According to plaintiff, X-Cel plays music at levels that exceed those allowed by local ordinances and, among other things, constitutes a nuisance and interferes with plaintiffs right to the quiet enjoyment of its property. Plaintiff initiated this action seeking an abatement of the alleged nuisance or to enjoin defendants from operating X-Cel in violation of the applicable city ordinances. Defendant essentially denied the allegations and brought a counterclaim against plaintiff for tortious interference with a business expectancy. After an evidentiary hearing, the trial court denied plaintiffs motion to abate the alleged nuisance, taking judicial notice that the area concerned is zoned G-l or “business.” The trial court later granted summary disposition in defendants’ favor, opining that defendants were not in violation of Lansing noise ordinances. The trial court stated that plaintiffs claims of nuisance are based on a violation of such ordinances and that, failing to establish a violation, plaintiffs claims fail as a matter of law. This appeal followed.
Although defendants’ motion for summary disposition was premised on MCR 2.116(C)(8), the court looked beyond the pleadings in granting the motion. We will thus treat the motion as having been alternatively granted under MCR 2.116(C)(10). Sharp v City of Lansing, 238 Mich App 515, 518; 606 NW2d 424 (1999).
A grant of summary disposition based on a failure to state a claim is reviewed de novo on appeal. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). The pleadings alone are considered in testing the legal sufficiency of a claim under a MCR 2.116(C)(8) motion. Feyz v Mercy Mem Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006). It is well established that for purposes of a motion under MCR 2.116(C)(8), all factual allegations in support of the claim are accepted as true and viewed in the light most favorable to the nonmoving party. Maiden, 461 Mich at 119. The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Beaudrie v Henderson, 465 Mich 124, 130; 631 NW2d 308 (2001).
“Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When reviewing a motion under subrule C(10), this Court considers the pleadings, admissions, affidavits, and other relevant record evidence in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists warranting a trial. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004).
Plaintiff first contends that the trial court erroneously dismissed its complaint in that it did not accept the factual statements in the complaint as true. Plaintiff specifically asserts that the trial court should have accepted as true that defendants were violating local ordinances as alleged in the complaint. However, whether defendants violated a local ordinance is not a “fact” or even a reasonable inference drawn from the facts; it is a conclusion of law. A statement of plaintiffs conclusions, unsupported by allegations of fact, does not suffice to state a cause of action. See Churella v Pioneer State Mut Ins Co (On Remand), 258 Mich App 260, 272; 671 NW2d 125 (2003). While plaintiff did allege that defendants produced more than 55 decibels of sound, a fact that must be accepted as true, whether defendants violated the noise ordinances is a legal conclusion based on the decibel levels and on interpreting where the local ordinance applies (see later discussion). The legal conclusion is insufficient to state a cause of action. Summary disposition with regard to an ordinance violation claim was thus proper, and any amendment of plaintiffs complaint concerning the violation would be futile.
Plaintiff also directs us to several paragraphs in its complaint, which it asserts, when taken as true, properly plead causes of action for nuisance. For example, plaintiff alleged in its complaint that “defendants’ noise production at decibel levels above those [permitted] by law constitute[s] an act, occupation, and structure which [is] a nuisance at all times and under any circumstances.” According to plaintiff the above demonstrates a nuisance per se. Again, however, whether defendants violated an ordinance proscribing certain decibel levels is a legal conclusion. Moreover, a nuisance per se is “an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings,” Ypsilanti Charter Twp v Kircher 281 Mich App 251, 269 n 4; 761 NW2d 761 (2008). Here, plaintiff claimed that the noise was a nuisance solely because of the club’s location (next to residential loft apartments) and surroundings. A club producing excessive noise only at certain hours, or in the middle of the desert would not necessarily be a nuisance and, as such, is not a nuisance at all times and under any circumstances. Summary disposition was thus appropriate with respect to the nuisance per se claims, and any amendment of plaintiffs complaint concerning nuisance per se would be futile.
Plaintiff also asserts that it stated a claim for public nuisance in alleging that “defendants are interfering with the public’s health, safety, peace, comfort, and convenience by producing noise in excess of 55 decibels” and “defendants’ noise pollution is known or should have been known to defendants to be of a continuing nature that produces a permanent or long-lasting, significant effect on the public’s health, safety, peace, comfort, and convenience.”
Public nuisance is defined in Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 190; 540 NW2d 297 (1995), as an “unreasonable interference with a common right enjoyed by the general public.”
The term “unreasonable interference” includes conduct that (1) significantly interferes with the public’s health, safety, peace, comfort, or convenience, (2) is proscribed by law, or (3) is known or should have been known by the actor to be of a continuing nature that produces a permanent or long-lasting, significant effect on these rights. A private citizen may file an action for a public nuisance against an actor where the individual can show he suffered a type of harm different from that of the general public. [Id. (citation omitted).]
We agree that plaintiffs complaint set forth sufficient allegations of fact that, when taken as true, constitute a public nuisance. As previously indicated, plaintiff alleged that defendant’s production of noise at levels in excess of 55 decibels interfered with the public health and that plaintiffs tenants, who resided next to defendants’ club, have suffered significant “physical, emotional and financial harms” as a result of the noise level. Plaintiff also alleged that defendants knew or should have known that its production of noise at the level that was produced would cause a significant, long-lasting effect on the public’s health, safety, peace, comfort, or convenience. Contrary to defendants’ argument otherwise, these allegations are not dependent on a finding that the noise level violated local ordinances. Plaintiff alleged, in generic terms throughout the complaint, that the noise level interfered with its tenants’ rights and that they suffered harm as a result. Defendants have directed us to no law that requires a showing of an ordinance violation with respect to noise levels in order to state a cause of action for public nuisance. Regardless of the precise decibel level, the level of noise that constitutes a nuisance is largely a subjective matter. Plaintiff having sufficiently alleged an action for public nuisance, this claim survives summary disposition under MCR 2.116(C)(8).
The same is true with respect to plaintiffs claim of private nuisance. One is subject to liability for a private nuisance if
(a) the other has property rights and privileges in respect to the use or enjoyment interfered with, (b) the invasion results in significant harm, (c) the actor’s conduct is the legal cause of the invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultrahazardous conduct [Cloverleaf Car Co, supra at 193.]
Plaintiff alleged in its complaint that it owned property adjacent to defendants’ property and that plaintiff and its tenants had rights and privileges with respect to the use and enjoyment of plaintiffs property. Plaintiff further alleged that it and its tenants suffered physical, emotional, and financial harm as a result of defendants’ noise production. Plaintiff also alleged that defendants’ conduct was intentional and reckless. Accepting these allegations as true, as we are required to do when considering a motion premised on MCR 2.116(C)(8), plaintiff properly pleaded a cause of action for private nuisance. Defendant has provided no authority suggesting that, absent an ordinance violation, a certain noise level could not be considered a nuisance. Thus, irrespective of an ordinance violation, plaintiff may claim the existence of a nuisance.
That plaintiff has sufficiently alleged claims of public and private nuisance does not, however, end our inquiry. In ruling on plaintiffs motion to abate the alleged nuisance, the trial court specifically stated:
There are elements of a public nuisance, and those have to be met. And one of them is, it significantly interferes with the public’s safety, peace, comfort or convenience. And Plaintiff, at least in the Plaintiffs brief, points to all the other people who own residences or commercial property in the area.... But there is lack of any evidence as to other people in general being or having their safety, peace, comfort or convenience interfered with. Furthermore, because this is zoned G-l for business, it’s not evidence that loud music is going to interfere with other people’s safety, peace, comfort or convenience in the area. I’ve heard about other businesses in the area, Brannigan’s The Firm, Kelly’s, Decker’s ... it’s not people trying to sleep.”
In essence, the trial court determined that there were no questions of material fact concerning the existence (or, more accurately, the nonexistence) of a public nuisance. Before deciding defendants’ motion for summary disposition, the trial court conducted a rather lengthy evidentiary hearing on plaintiffs motion to abate the alleged nuisance. The trial court, therefore, had already been presented with considerable evidence concerning whether the complained-of noise constituted a nuisance as a matter of fact. We agree with the trial court that the prior evidence, taken with the additional evidence offered in support of the summary disposition motion (and response), establishes no question of material fact concerning the claim of a public nuisance.
Nuisance-abatement proceedings brought in the circuit court are generally equitable in nature. MCL 600.2940(5). Equitable decisions are reviewed de novo, but the findings of fact supporting those decisions are reviewed for clear error. Yankee Springs Twp v Fox, 264 Mich App 604, 611; 692 NW2d 728 (2004). A finding is clearly erroneous if it leaves this Court with the definite and firm conviction that a mistake has been made. Jonkers v Summit Twp, 278 Mich App 263, 265; 747 NW2d 901 (2008).
As stated previously, a public nuisance involves unreasonable interference with public rights and an unreasonable interference is conduct that (1) significantly interferes with the public’s health, safety, peace, comfort, or convenience, (2) is proscribed by law, or (3) is known or should have been known by the actor to be of a continuing nature that produces a permanent or long-lasting, significant effect on these rights. Cloverleaf Car Co, 213 Mich App at 190. In this case, plaintiff did not demonstrate that its grievance extends to the public, beyond the walls of its building. There are many entertainment establishments, such as defendants’, in this area that attract the public rather than harm it. There was no evidence demonstrating that the public has been adversely affected. Only the private claim of plaintiff and its tenants has been presented. The circuit court ruled that “there is [a] lack of any evidence as to other people in the area that would constitute the public in general being or having their safety, peace, comfort or convenience interfered with.” This finding was not clearly erroneous.
The trial court also determined that defendant’s actions did not constitute a private nuisance:
There is also an argument made that it’s a private nuisance, and that also has elements that have to be met. One of them is the invasion resulting in significant harm.... Property depreciation alone is not enough to constitute a nuisance. .. . Now, I understand there are tenants, two of whom we have heard from, that are suffering as a result of the noise. But his is an action with the property owner, and the issue is whether there could be a private nuisance. So it’s harm to the property owner for terms of a private nuisance, and not to tenants who testified... again, having covered this is a business district, it is to be an expected noise that will occur late into the nighttime.... I can’t find, on this record, that the requirement of a private nuisance is met.
The elements of a private nuisance are satisfied if (a) the other has property rights and privileges in respect to the use or enjoyment interfered with, (b) the invasion results in significant harm, (c) the actor’s conduct is the legal cause of the invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultrahazardous conduct. Cloverleaf Car Co, 213 Mich App at 193. To prove a nuisance, significant harm to the plaintiff resulting from the defendant’s unreasonable interference with the use or enjoyment of property must be proven. City of Jackson v Thompson-McCully Co, LLC, 239 Mich App 482, 490; 608 NW2d 531 (2000).
In the instant case, plaintiff has not proven either significant harm or unreasonable interference. The harms alleged are financial in nature: plaintiff has not been able to obtain rental rates at market prices for its property. However, evidence of the market rates for rental property connected to a nightclub were not established to show a loss of value. Secondly, the rental value of plaintiffs property had not been established because the nightclub was operating long before plaintiff converted a portion of the property into apartments. Consequently, it is difficult to discern if plaintiffs rentals had lost value. Further, our Supreme Court has held that property depreciation alone is insufficient to constitute a nuisance. Adkins v Thomas Solvent Co, 440 Mich 293, 312; 487 NW2d 715 (1992). Additionally, the circuit court found that, despite the playing of music next door, plaintiff had been able to rent its units. Finally, upon information and belief, plaintiff is converting part of the building at issue into a bar, which will likely produce some noise itself. This fact may also affect the rental rate of plaintiffs apartments.
The circuit court also found that the noise produced by defendant was intentional, but not unreasonable. In the context of nuisance, “unreasonable” does not refer to defendants’ conduct; it means that the interference with plaintiffs rights must be unreasonable. Id. at 305. The court spoke of the nature of the area as a business district and plaintiffs knowledge that it was constructing apartments next to a nightclub. The court also remarked that it was expected that the businesses in this district would produce sound late into the night. These findings were not clearly erroneous and support a conclusion that defendants’ intrusion of sound, to the extent shown by plaintiff, was not unreasonable.
Plaintiff next asserts that the trial court erred in ruling that Lansing Ordinances, § 654.07(h), is inapplicable to defendants. A trial court’s interpretation of an ordinance is a question of law that is reviewed de novo. Brandon Charter Twp v Tippett, 241 Mich App 417, 421; 616 NW2d 243 (2000).
Section 654.07(h) of the codified ordinances of Lansing prohibits sound levels in excess of 55 decibels in certain circumstances:
Places of Public Entertainment. Operating or playing or permitting the operation or playing of any radio, television, phonograph, drum, musical instrument, sound amplifier or similar device which produces, reproduces or amplifies sound in any place of public entertainment so as to produce a maximum sound level of fifty-five dBA on a residential real property boundaryL]
Plaintiff asserts that defendants’ music produced sound at prohibited decibel levels, as measured by its sound expert and a tenant, across the boundary between the dance club and plaintiffs apartments, a residential real property boundary. Defendants’ position is, and the trial court agreed, that the residential real property boundary in the ordinance refers only to boundaries in areas zoned for residential use. As plaintiff and defendants are both located in a district zoned for business, defendants’ music did not intrude upon a residential boundary. On its face the ordinance is equally susceptible to both meanings and, accordingly, is ambiguous. See People v Gardner, 482 Mich 41, 50 n 12; 753 NW2d 78 (2008) (indicating that a statute is ambiguous if it is equally susceptible to more than one meaning).
The rules of statutory construction also apply to ordinances. Goldstone v Bloomfield Twp Pub Library, 479 Mich 554, 568 n 15; 737 NW2d 476 (2007). The primary goal of judicial interpretation of statutes is to determine and effectuate the intent of the Legislature. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006) . The first factor in determining legislative intent is the specific language of the statute. People v Lively, 470 Mich 248, 253; 680 NW2d 878 (2004). Judicial interpretation is not necessary or permitted if the plain and ordinary meaning of the statutory language is clear. People v Bell, 276 Mich App 342, 345; 741 NW2d 57 (2007) . If a statute is ambiguous, however, judicial construction is appropriate. People v Warren, 462 Mich 415, 427; 615 NW2d 691 (2000).
Section 654 provides definitions for “real property” and “residential area”:
Real property means an imaginary line along the ground surface, and its vertical extension, which line separates the real property owned by one person from that owned by another person, but not including intra-building real property divisions.
Residential area means any area designated as an A, A-l, B, C, DM-1, DM-2, DM-3 or DM-4 Zoning District, pursuant to the Zoning Code or upon any plan or district map promulgated thereunder. [Lansing Ordinances, § 654.03.1
If the statute defines a term, that definition controls. Haynes v Neshewat, 477 Mich 29, 35; 729 NW2d 488 (2007). The circuit court relied on the definition of “residential area” in determining that § 654.07(h) did not apply to the subject properties, which are both located in a G-l business district. Because the ordinance uses the term “residential” to refer to zoning areas by definition, we agree.
Further, the provisions of a statute must be read in the context of the entire statute so as to produce a harmonious whole. People v Couzens, 480 Mich 240, 249; 747 NW2d 849 (2008). In the findings of fact section of the noise ordinance, the city detailed its reasons for enacting such an ordinance as follows:
The making, creation or maintenance of such excessive, unnecessary, unnatural or unusually loud noises, which are prolonged, unusual and unnatural in their time, place and use, effect and are a detriment to the public health, comfort, convenience, safety, welfare and prosperity of the residents of the City. [Lansing Ordinances, § 654.01(b).]
The ordinance was intended to address noises that are unusual and unnatural in their time, place, and use. Certainly, a dance club playing loud music at night at an entertainment destination in a business district is an anticipated and expected time, place, and use of musical noise. In contrast, music played loudly at a party in a residential area, where the city residents would not naturally and usually expect it, is the type of harm that the ordinance seems to address.
Plaintiff also contends that defendants violated another section of the noise ordinances, 654.07(a), which provides:
Sound Production and Reproduction Systems. The playing, using or operating, or permitting the playing, using or operating, of any television or radio receiving set, musical instrument, phonograph or other machine or device for producing, reproducing or amplifying sound in such a manner as to create a noise disturbance, or at any time with a louder volume than is necessary for convenient hearing for the persons who are in the room, chamber, vehicle or other place in which such an instrument, machine, set or device is operated and who are voluntary listeners thereto. The operation of any such television or radio receiving set, instrument, phonograph, machine or device between 11:00 p.m. and 7:00 a.m. of the following day in such a manner as to be plainly audible at a distance of fifty feet from the building, structure, vehicle or other place in which it is located shall be prima-facie evidence of a violation of this section. This subsection shall not apply to noncommercial speech.
The circuit court, while not specifically stating findings regarding this ordinance provision, did state that “the applicable section is paragraph H, places of public entertainment, which is the very specific section that would apply to the more general warnings that come before that.”
Arguably, the plain language of § 654.07(a) could be considered to apply to defendant’s nightclub so that plaintiff would have stated a claim simply by indicating that defendants played music in the nightclub at a louder than necessary volume. Again, however, statutory language “ ‘must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute ....’” G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003), quoting Arrowhead Dev Co v Livingston Co Rd Comm, 413 Mich 505, 516; 322 NW2d 702 (1982). The existence of a specific ordinance provision for places of public entertainment (which obviously would include nightclubs), i.e., § 654.07(h), calls into question whether the more general provision of § 654.07(a) would apply to places of public entertainment even if the two provisions do not literally conflict.
Any ambiguity may be resolved by application of the principles that a statute should be construed in a manner that avoids an absurd result, Detroit Int’l Bridge Co v Commodities Export Co, 279 Mich App 662, 674; 760 NW2d 565 (2008), and that “a statute need not be applied literally if no reasonable lawmaker could have conceived of the ensuing result,” id. at 675. It would seem absurd to literally apply § 654.07(a) to a nightclub to bar music from being played there at “a louder volume than is necessary for convenient hearing” for people in the nightclub, given that as a matter of common knowledge (both presently and when § 654.07 was adopted on December 22, 1986) many nightclubs routinely play music at substantially louder than “necessary” levels as part of the entertainment they provide. In light of this consideration and the adoption of a particular provision in § 654.07(h) for places of public entertainment, we conclude that a reasonable lawmaker would not have expected § 654.07(a) to apply to a nightclub. The trial court did not err by ruling that § 654.07(a) is inapplicable to the instant matter.
Affirmed.
SAWYER, EJ., concurred. | [
-16,
-2,
-100,
-116,
-37,
96,
18,
-4,
65,
-77,
55,
-45,
-83,
-30,
28,
43,
-9,
123,
81,
107,
-61,
-94,
7,
35,
-48,
-77,
83,
81,
-73,
78,
-26,
-69,
76,
-32,
-61,
85,
-58,
-46,
-59,
88,
-114,
17,
-72,
72,
-79,
1,
20,
58,
12,
15,
83,
93,
-93,
45,
17,
75,
73,
40,
-37,
-71,
-32,
-40,
-69,
5,
83,
6,
-30,
116,
-72,
7,
-38,
24,
18,
61,
24,
-88,
51,
-74,
-122,
84,
107,
-37,
-92,
39,
98,
-128,
1,
-25,
-88,
-71,
46,
-102,
-99,
-91,
-7,
121,
72,
106,
-71,
-100,
116,
1,
-121,
-2,
74,
-108,
91,
-20,
-115,
-50,
-124,
-75,
77,
-48,
-106,
-127,
-1,
-94,
48,
16,
-33,
120,
92,
102,
26,
75,
94,
-44
] |
Boyles, J.
Defendant appeals from a judgment entered in circuit court on an appeal from justice court in summary proceedings to recover "possession -of land, in ■which the plaintiff was allowed a judgment for possession.
In 1927- the plaintiff deeded the premises in question, consisting of a small three-room house, to his daughter, Carrie Lacrone, retaining therein a life estate. In 1935 Carrie Lacrone built an addition to the then-existing house, to be occupied by the plaintiff in order to make the old portion of the house available for Roland N. Reid, the defendant in this case, who had married Carrie Lacrone’s daughter. He paid $6 per month rent to Carrie Lacrone, his mother-in-law, until sometime in 1941 when Carrie Lacrone deeded the property to the defendant and his wife. Thereafter the rental payments ceased, the defendant undertaking to maintain the property and pay the taxes. On January 7, 1944, plaintiff served a notice on the defendant to surrender up possession of the premises and about five weeks later commenced summary proceedings before the justice court of Farmington, where a default judgment for possession was entered. It is conceded that plaintiff had not complied with the Federal housing regulations promulgated by the office of price administration (OPA), particularly with reference to requirements for notice to be given by a landlord to tenant and to the area rent office of the OPA, before eviction. About the time when the summary proceedings were commenced, the plaintiff also commenced a chancery action in the Oakland circuit court against the defendant and Carrie La-crone to set aside the deéds, to obtain possession of the premises, and for an accounting. That action is still pending. The defendant appealed to the circuit court from the judgment entered in justice court and a similar judgment for plaintiff was entered in circuit court, from which the defendant appeals.
For reversal the defendant claims that neither the justice court nor the circuit court had any jurisdiction over the matter, inasmuch as the plaintiff had not complied with the regulations of the office of price administration (OPA) governing the eviction of tenants. The complete answer to this claim is that the relationship of landlord and tenant did not exist between this plaintiff and defendant. This is admitted by counsel for the defendant, appellant, in his brief, as follows:
“The record is barren of any proof of landlord and tenant relationship between the parties. Whatever testimony was offered from the stand establishes the fact, beyond contradiction, that the original tenancy was established and maintained between Carrie Lacrone, the daughter of the plaintiff, and Roland N. Reid, defendant herein.. * * *
“This testimony of the plaintiff is in harmony with the testimony of Carrie Lacrone, daughter of the plaintiff, who testified that she rented the prem ises to the Reids. Exhibits B-l to B-2, representing a series of receipts for the ^ears 1936,1937,1938 and 1939, even further support the' fact that the rental relationship was between Carrie Lacrone and Roland N. Reid, the defendant herein.” .
• There is no claim that Carrie Lacrone acted as agent for her father, plaintiff herein, or that he ratified her action in such a way as to make her son-in-law a tenant of the plaintiff instead of herself. Plaintiff’s right to possession is based on the life lease he held in the premises, fully established by documentary evidence in the record and the existence of which is conceded by the defendant. As the holder of the life lease plaintiff had the right of possession as against Carrie Lacrone, the owner of the 'reversion, or her grantee, the defendant herein. Palman v. Reynolds, 310 Mich. 35. The mere fact that the plaintiff gave the defendant a “notice to terminate tenancy” does not establish the relationship of landlord and tenant between this plaintiff and defendant, particularly in view of counsel’s concession that such relationship did not exist. As between the plaintiff herein and the defendant Roland N. Reid, no notice to terminate tenancy was necessary. Megantz v. Cooke, 282 Mich. 213.
The Federal housing regulations promulgated by the office of price administration apply to the relationship of landlord and tenant and define what must be done in order to evict a tenant. Plaintiff was not required to comply therewith as a condition precedent to obtaining possession. Defendant relies on Nagelspach v. Shaw, 146 Mich. 493. In that case the defendant sought to rely on a life lease which the court found did not exist. The situation is different in the case at bar.
Defendant claims a question of title is involved in this proceeding, hence the lower court did not have jurisdiction in summary proceedings to recover possession. Nothing in the record justifies defendant’s claim that a question of title is here involved. Plaintiff makes no claim of title, and admittedly the defendant and his wife have title (subject to plaintiff’s life estate) by. warranty deed from plaintiff’s grantee, Carrie Lacrone. The question of title doubtless is involved in the chancery case to which defendant refers, but not here.
The judgment is affirmed, but without costs, appellee not having filed a timely brief in this court in compliance with rule of court.
Starr, C. J., and North, Butzel, Bushnell, Sharpe, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case.
See Court Rule No. 69, §4 (1945).—Reporter, | [
-48,
118,
-4,
108,
-22,
96,
10,
-24,
66,
-48,
55,
-41,
-17,
-62,
16,
41,
-15,
107,
81,
105,
-61,
-77,
86,
-125,
-34,
-13,
-77,
-43,
-71,
77,
-12,
-44,
12,
33,
-62,
61,
-62,
-126,
-121,
112,
14,
-119,
-87,
104,
-39,
64,
48,
59,
48,
15,
113,
-50,
-9,
47,
49,
90,
-24,
40,
-1,
-79,
-56,
-8,
-98,
-59,
111,
22,
-125,
117,
-98,
-121,
120,
24,
-108,
53,
0,
-96,
51,
36,
-122,
116,
70,
-101,
40,
34,
66,
1,
101,
-17,
-16,
-103,
47,
126,
-99,
-89,
-40,
88,
27,
98,
-100,
-99,
108,
64,
-89,
126,
-20,
21,
93,
104,
7,
-82,
-42,
-103,
-113,
112,
-78,
-117,
-9,
99,
49,
112,
-51,
40,
93,
38,
115,
-69,
-114,
-40
] |
Wiest, J.
This is a bill of interpleader. Plaintiff company had its employees insured under a group policy and issued a certificate to Steve Blozic, one of its employees, showing that his life was insured in the sum of $3,000, with full benefit in case of total disability, and designating Frank Blozic as beneficiary in case of death. The insured had tuberculosis and was cared for at a hospital at the expense of Wayne county, from August 2, 1929, to May 10, 1931, pursuant to county statutory duty. See 2 Comp. Laws 1929, § 6641.
In March, 1931, the insured executed the following instrument:
“Be it known that I, Steve Stuben (Steve Blozic) of. the city of Detroit, county of Wayne, State of Michigan, do hereby and by these presents make, constitute and appoint John C. Cowan, William Gutman and William H. Green, the Wayne county board of auditors, or any one of them, my true and lawful attorney-in-fact with full authority to receive and collect any money or moneys, sums or amounts, due me or to become due under a certain policy of insurance in which I am the insured and the Chrysler Industrial Assn. Employes Mutual Benefit Division, -Etna Life Insurance Co. is the insurer, being policy No. 125-140, and my said attorneys, or any one of them, shall have authority to receive checks in their own name, or to indorse checks received in my name and apply all sums received in such proportions as to them, or any one of them, may seem proper on my expense for hospitalization and medical care, or either, as I may owe to the county of Wayne or any of its agencies.
“In witness whereof, I have hereunto set my hand and seal this 30 day of Mch., 1931, at Detroit, Wayne county, State of Michigan.
“(Sgd.) Steve Stuben
‘ ‘ (Sgd.) Steve Blozic. ’ ’
This was acknowledged before a notary public on the same day.
Mr. Blozic died May 10, 1931. At that time nothing had been paid on the insurance. • On May 23, 1931, plaintiff corporation received the insurance and, upon claims being made by Frank Blozic, the named beneficiary, and the board of auditors of "Wayne county, under the mentioned instrument, filed the bill herein to have the claiments interplead and the court adjudicate between them. The court decreed payment of the insurance money into court by plaintiff and distribution thereof by payment of $1,898 to the board of auditors, $9, costs to plaintiff, $200 to its attorneys and the balance to be held by the clerk subject to the lien of the attorneys for Frank Blozic, and the remainder subject to the order of the court in another case against Frank Blozic.
The question in the case is whether the instrument, either as a power of attorney or as an assignment of benefits, survived the decease of the insured.
By reason of tuberculosis, the insured suffered total disability, and was entitled to claim and receive benefits under the policy, and this was true at the time he executed the mentioned instrument. Did the instrument constitute a power coupled with an interest?
“A power is coupled with an interest when the writing conveys, or vests in the agent, an interest or estate in the thing or property which is the subject of the agency, as distinguished from the proceeds or result of the exercise of the agency.” Filtsch v. Bishop (syllabus), 118 Okla. 272 (247 Pac. 1110).
In Chase National Bank of New York v. Sayles (C. C. A.), 11 Fed. (2d) 948, 957 (48 A. L. R. 207), it was said:
“We hold it to be clear that the interest which can protect a power, after the death of a person who creates it, must be an interest in the thing itself ; in other words, the power must be ingrafted on an estate in the thing. The words themselves would seem to import this meaning. ‘A power coupled with an interest’ is a power which accompanies, or is connected with, an interest. The power and the interest are united in the same person. But if we are to understand, by the word ‘interest,’ an interest in that which is to be produced by the exercise of the power, then they are never united. The power, to produce the interest, must be exercised and by its exercise is extinguished. The power ceases when the interest commences, and therefore cannot, in accurate law language, be said to be ‘coupled’ with itA’
The following is from Angle v. Marshall, 55 W. Va. 671, 679 (47 S. E. 882):
“ ‘A power coupled with an interest is, when the power or authority is coupled with an interest in the thing itself actually vested in the agent. It must not be merely an interest in that which is produced by the exercise of the power. The former is irrevocable while the latter is revocable, though expressed to be irrevocable.’ ”
In Stewart v. Smalling, 33 N. M. 39 (261 Pac. 814, 56 A. L. R. 221), it was held:
“Where the power is truly one coupled with an interest, there is unanimity of opinion that even the death of the donor will not revoke it.”
The instrument was crude, but operated as an assignment of a present interest or right of benefit under the insurance policy and, as such, survived the death of the insured. A power to create and then have an interest in the thing created, if not consummated, does not survive the death of the grantor of the power. On the other hand a power, coupled with, an interest in an accrued right, survives the death of the grantor of the power. We hold that the power was coupled with an interest in the accrued right of the grantor thereof and survived his death.
The decree is affirmed, with costs against Frank Blozic.
Nelson Sharpe, C. J., and Potter, North, Fead, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
-80,
121,
-36,
-84,
8,
-96,
58,
-102,
86,
-96,
37,
83,
-33,
-14,
29,
37,
-27,
63,
121,
96,
-73,
-29,
7,
42,
-42,
-77,
-69,
-59,
-110,
79,
-4,
116,
12,
32,
-118,
-99,
-26,
4,
-115,
92,
70,
-116,
-85,
-24,
-35,
80,
116,
-69,
116,
77,
113,
-34,
-93,
42,
17,
79,
45,
42,
123,
-87,
-48,
-32,
-86,
-123,
127,
18,
-95,
2,
-104,
47,
-16,
14,
-104,
49,
-8,
-24,
19,
-74,
-58,
-74,
35,
-119,
0,
102,
99,
80,
21,
-17,
-60,
-104,
-82,
-22,
31,
-123,
-106,
121,
16,
14,
-65,
31,
112,
25,
-122,
92,
-2,
84,
31,
40,
7,
-114,
-10,
-77,
-17,
-12,
28,
-125,
-10,
-85,
50,
113,
-55,
112,
95,
69,
56,
27,
87,
-122
] |
Wiest, J.
The afternoon of May 20, 1926, plaintiff’s decedent drove an automobile upon the track of defendant’s railroad at the crossing of the Seven Mile road in the city of Detroit, and was struck by the engine of a passenger train and received injuries causing his death. This suit was brought to recover damages and resulted in a directed verdict for defendant.
Plaintiff’s decedent drove east on the Seven Mile road and approached the railroad crossing where there were four tracks crossing the street. A train was going north on the third track from the point of his approach, and that track was 40 feet from the westerly line of the railroad right of way. At that crossing the driver of an automobile, at any point within such 40 feet, had an unobstructed view of the railroad tracks and of the approaching train for upward of a mile. No eyewitness testified to the approach of the automobile to the tracks and the rule of presumptive care on the part of the driver is invoked in behalf of plaintiff. The known facts prevent application of the prima facie presumption accorded by the no eyewitness rule. See Rushford-Surine v. Railway Co., 239 Mich. 19.
Whether the train was being operated at a speed in violation of the city ordinance does not fasten liability upon defendant for plaintiff’s decedent’s want of care was the proximate cause of the accident.
' Objection was made to the testimony of the engineer that the whistle was sounded and the bell was ringing upon approach, to the crossing, and exclusion was urged under the rule that it was equally within the knowledge of the deceased (3 Comp. Laws 1929, § 14219). The case of Noonan v. Volek, 246 Mich. 377, settles the point against the contention.
Plaintiff also relies upon the question of subsequent negligence. The facts negative such an issue. Plaintiff’s decedent had ample opportunity to see the approaching train and to stop in a place of safety and, whether he saw the train or not, he was guilty of contributory negligence as a matter of law. See, Downey v. Railway Co., 230 Mich. 243; Brady v. Railway Co., 248 Mich. 406; Richman v. Railway Co., 254 Mich. 607.
Judgment is affirmed, with costs to defendant.
Nelson Sharpe, C. J., and Potter, North, Fead, Butzel, Bushnell, and Edward M. Sharpe, ' JJ., concurred. | [
-16,
109,
-36,
-82,
74,
96,
18,
24,
-28,
-93,
-92,
-13,
-49,
-61,
89,
53,
-17,
-67,
81,
43,
117,
-117,
6,
-94,
-45,
-105,
-85,
-57,
22,
-54,
102,
-45,
77,
32,
-117,
-43,
-26,
9,
-51,
120,
-50,
-100,
-85,
104,
27,
16,
52,
115,
-108,
77,
49,
-102,
-25,
42,
24,
-28,
-23,
42,
-21,
-83,
-64,
120,
-117,
7,
114,
0,
-94,
16,
-98,
-89,
120,
25,
-104,
21,
40,
-4,
51,
-90,
-111,
-10,
105,
-103,
8,
98,
103,
33,
21,
-81,
-32,
-104,
46,
-2,
-113,
-89,
30,
113,
65,
37,
-105,
-33,
115,
112,
46,
108,
-4,
85,
89,
112,
-127,
-113,
-74,
-95,
-3,
52,
22,
-125,
-54,
37,
54,
113,
75,
90,
95,
37,
-70,
-101,
-97,
-105
] |
Wiest, J.
In May, 1919, the Escanaba & Lake Superior Railroad was an instrumentality of the United States, having been taken over, together with employment of its agents and employees, by the government, on December 28/ 1917. That month plaintiff, a section foreman on the railroad, was injured. Report of the injury was made and a compensation agreement reached. Payments under the agreement were made by the United States Railroad Admin istration. August, 1919, plaintiff signed a final settlement receipt and returned to his work for the railroad and so continued until about December 1, 1923. Asserting the accident had caused Jacksonian epilepsy plaintiff made application, in July, 1924, for further compensation. This application was heard by a deputy commissioner, and, in October, 1924, the petition was dismissed. No appeal was taken. Another application was made by plaintiff in January, 1925, and on February 13, 1925, a deputy commissioner held that the department had jurisdiction in the premises. An appeal was taken. In April, 1925, -another petition was filed asking for further compensation against the United States Railroad Administration and James C. Davis, director general of railroads. On May 14, 1925, the petition was dismissed by a deputy commissioner. An appeal was taken by plaintiff. Upon hearing before the board the holding of the deputy commissioner that the department had jurisdiction was reversed and a finding made that plaintiff was not suffering from the injury received in 1919. The board also found that, at the time of the injury, the railroad was operated by the United States government, and, under the provision of the Federal transportation act limiting liability of the government to demands pressed within two years from March 1, 1920, plaintiff could not make any ■demand for compensation from the United States railroad administration or James C. Davis, director general of railroads.
The legal question we need not consider. The board found plaintiff was not suffering from the injury .received in 1919, and the evidence sustains the finding. The testimony of the doctor who treated plaintiff at the time of the. accident, and had been acquainted with him for 15 years, was to the effect that plaintiff had a fracture of the skull on the left side— a depressed fracture of the skull; that he operated on t.bip fracture and removed the loose bone, together with a portion of the temporal lobe of the brain; that this fracture, while it temporarily affected the word memory center, was not in the area where it would cause Jacksonian epilepsy; that the cause of Jacksonian epilepsy frequently is a scar involving the motor area and the injury was not in the motor area.
There being evidence in support of the finding of the board, we may not disturb the finding. Leitz v. Labadie Ice Co., 229 Mich. 381; Millaley v. City of Grand Rapids, 231 Mich. 10; Schultz v. Kinney Sand Co., 231 Mich. 37; Bunker v. Motor Wheel Corp., 231 Mich. 834.
Affirmed, with costs to defendants.
Bird, C. J., and Sharpe, Snow, Steere, Fellows, Clark, and McDonald, JJ., concurred. | [
-80,
-55,
-36,
-113,
42,
96,
58,
26,
81,
-94,
-91,
83,
-27,
-111,
9,
45,
-25,
-67,
-8,
63,
115,
-125,
86,
-93,
-109,
-109,
107,
-57,
-66,
110,
104,
-42,
73,
48,
10,
-75,
98,
-63,
-39,
28,
-52,
-76,
-87,
-20,
25,
-109,
56,
111,
20,
92,
113,
-38,
-9,
42,
24,
66,
-19,
38,
127,
-88,
-39,
-8,
-118,
4,
109,
18,
-94,
48,
-98,
-89,
-56,
25,
-104,
-75,
56,
-4,
123,
-74,
-61,
-9,
33,
-39,
76,
98,
103,
33,
29,
-81,
-60,
-72,
14,
-66,
-99,
-92,
-90,
113,
3,
77,
-67,
-97,
118,
84,
14,
124,
-5,
65,
92,
44,
-121,
-118,
-74,
-94,
-97,
-68,
-108,
51,
-21,
-83,
54,
113,
-50,
50,
92,
5,
56,
31,
-117,
-98
] |
Sharpe, J.
This case is an action for damages for personal injuries alleged to have resulted while plaintiff was riding as a passenger in a taxicab owned by defendant Joseph Tasco and operated by defendant Sam Heller.
The declaration alleges that on November 5, 1941, at or about the hour of 7 p.m., plaintiff became a paid passenger in the above-mentioned taxicab; that as she entered the cab she sat in the left rear seat; that the cab started up with tremendous speed and almost crashed into an automobile in front of it; and that defendant Heller suddenly and forcibly applied the brakes causing an unusually sudden stop, whereby plaintiff fell forward, causing the door to open, whereupon plaintiff fell out onto the pavement and was injured. Plaintiff claims damages for loss of earnings, hospital and doctor bills, nursing bills, pain and suffering, and permanent impairment of earning capacity.
Action was started by summons February 13, 1942, and a bill of particulars was filed April 1, 1942. Defendants filed an answer to the declaration April 20, 1942. On June 29, 1943, defendants filed a motion to dismiss plaintiff’s declaration for the following reasons:
. “1. Said declaration states no cause of action.
“2. Said declaration does not allege any negligence.
“3. Said declaration- alleges duties without breach thereof and such allegations do not constitute allegations of negligence.
“4. Said declaration sets up no facts which constitute negligence.
“5. Said declaration with relation to allegations of negligence is composed of mere conclusions of the pleader.
“6. The said declaration does not appraise [apprise?] the defendants of any cause of action which they are called upon to defend.
“7. The said declaration as it relates to allegations of negligence is composed of conclusions of the pleader and allegations of evidence and1 not statements of ultimate issues of fact.”
On July 13, 1943, the trial court denied defendants’ motion to dismiss plaintiff’s declaration. Thereafter, the- cause came on for trial.
At the close of proofs, defendants made a motion for directed verdict on the ground that plaintiff had not offered proof of defendants’ negligence; that a carrier is not liable for a sudden stop; and that plaintiff was guilty of contributory negligence.
The trial court denied the motion. The cause was submitted to the jury and a verdict for $2,250 was returned in favor of plaintiff. Judgment was entered on the verdict.
On January 19, 1944, defendants made a motion for a new trial, alleging:
“1. The verdict was contrary to the great weight of the evidence.
“2. The verdict was excessive in amount. * * *
“6. The court erred in admitting the testimony of the witness Reiman as to the contents of the report of the accident prevention bureau of the Detroit police department.
“7. The court erred in permitting the witness Reiman to testify as to alleged statements of the' defendant Heller with reference to the accident involved in said action. * * *
“11. The court erred in failing to instruct the jury as requested by the defendants in requests numbered 8, 11, 12, 13, 14 and 15.
‘ ‘ 12. The verdict was excessive in that it clearly requested an award of compensation for alleged losses of earnings which were claimed for alleged scoliosis of the spine which was not caused by the accident according to the great weight of the evidence.
“13. The court erred in instructing the jury as to specific State statutes relating to the operation of motor vehicles when the plaintiff had not specifically pleaded such statutes.”
The trial court denied defendants’ motion for a new trial. Defendants appeal and urge that the declaration should have been dismissed on motion. We note that the motion to dismiss plaintiff’s declaration was filed June 29, 1943, more than a year after plaintiff’s declaration was filed.
Court Buie No. 27, §6 (1933), provides that: “A motion attacking a pleading must be filed and served within 15 days after the receipt of the pleading attacked. ’ ’ Under the above rule defendants ’ motion, not having been timely made, any defect in plaintiff’s declaration must be considered as waived.
Defendants also iirge that their motion for a directed verdict should have been granted upon the theory that no negligence was shown by the proofs in behalf of plaintiff.
Charles D. Hunter, a witness produced in behalf of plaintiff, testified:
“We had no sooner been seated than the cab started away from the curb with a sudden jerk. As I remember it, I was thrown backwards against the rear seat. We had no sooner become started than the cab had turned to its left to get into the stream of traffic when the cab driver applied his brakes very hard, so that all three of us were thrown forward.
“I do not remember any vehicle immediately in front of us' that stopped suddenly, and my best recollection is that the traffic which was proceeding in the same direction we were had stopped for a traffic signal even before'we started away from the curb. In any event, I remember being thrown forward against the door handle of the left rear door with the result that the door flew open and she fell out of the cab. * * *
“As I remember the incidents surrounding the scene of the accident, it is my definite impression that the driver of the cab was attempting to crowd into the line of traffic, in an endeavor to get ahead of cars coming along behind us.”
Defendants rely upon Sherman v. Flint Trolley Coach, Inc., 304 Mich. 404. In that ease we held that sudden jerks or jolts in stopping to let off and take on passengers ‘and in starting are among usual incidents of travel on trolley buses which every passenger must expect;'and that a trolley bus company is not an insurer of the safety of those it undertakes to transport, but is merely required to exercise' that skill, diligence and foresight for the safety of its passengers consistent with the practical conduct of its business.
In Longfellow v. City of Detroit, 302 Mich. 542, we held that violation of statutory provisions relative to speed of a motor coach in a business district constitutes negligence per se.
Plaintiff was a witness in her own behalf and testified as follows:
“I hadn’t gotten myself completely seated before the cab started with terrific speed and a' sudden jolt which threw me back and the other two people that was with me. It threw me hack against the back seat, and I would judge the distance to be between 75 and 50 — 50 to about 75 yards that he drove, and without any warning whatsoever he applied the brakes very abruptly, and of course it-was rather' surprising, and — I mean, there wasn’t, any reason I could see for him doing that. And at that moment the brakes were applied, the three of us fell forward, I hitting my head on the window between the front and the back seat. And then out of the door. I don’t remember hitting the door because I was rather stunned and in a shock as well. As I remember, upon entering the cab the light at the corner of Forest and John E. was already red, and there was a car parked in the lane of traffic. So for that reason — I don’t know why he would stop so suddenly knowing that eventually he would have to stop when he got there. There was one car directly in front of the cab. There was no car in front of him at the curb. When he pulled into the lane of traffic and stopped at the signal light this ear was in front of him. It was stopped. It was at the intersection of John E. and Forest waiting for the signal light. It was standing still. There wasn’t anything in my view that would cause him to stop. I was able to view that through the window that leads from the back seat to the front seat, in front of which the cab driver sits. I was directly in back of that window and I had occasion to see that there were no obstructions. The cab was traveling that particular distance, this 50 to 75 yards, I would say between 30 and 35 miles an hour.”
The trial court instructed the jury as follows:
“Under the law of this State, a driver or. owner of a public vehicle for hire, a taxicab, is not liable for injuries sustained as a result of sudden stops or starts of a public vehicle, but that such' starts and stops are to be expected in the ordinary conduct of such a business; that a passenger in such a ve hide must anticipate such sudden starts and stops as likely to occur and to be on her guard against them to protect herself from injury. * * ' *
“The plaintiff here, in order to recover, basing her claim, as I say, upon ■ the fact that she was thrown from her seat by an unusual stopping of the car, something that she could not anticipate and could not protect herself against. In that regard, members of the jury, I charge you that ordinary sudden jerks or jolts in stopping or starting are among the usual incidents of travel in taxicabs which the passenger must anticipate. Plaintiff must establish that it was an unusually sudden stop and that her fall was not occasioned by any act of negligence, however slight, on her part. Before the defendants can be held liable in this case, it must appear, members of the jury, by a preponderance of the evidence on behalf of the plaintiff that the jerk or jolt was unnecessarily sudden and violent; that is, more than the ordinary jerk or jolt or sudden stoppage that could be expected and must be expected in the ordinary course of travel in a vehicle of this nature. * # *
“Now, counsel for the plaintiff has offered in evidence certain ordinances of the city of Detroit. The ordinance is identical with the language of the statute as well. The statute provides that any person driving a vehicle on a highway shall drive the same at a careful and prudent speed, not greater nor less than is reasonable and proper, having due regard to the traffic, surface, and width of the highway, and any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. There is no claim here that there was any collision between two vehicles so that the last part of that would not apply. The degree of care is recited in the same language in the ordinance, Ordinance No. 115-D, of the city of Detroit.
“Likewise, members of tbe jury, witb reference to tbe speed of tbe vehicle, tbe ordinance provides (section 13):
“ ‘Subject to tbe provisions of subdivision (a) of tbis section, and except in those instances where a lower speed is specified in tbis ordinance, it shall be “prima facie lawful for tbe driver of a vebicle to drive at a speed not exceeding tbe following, but in any ease when such speeds shall be unsafe, it will not be lawful. Twenty-five miles an hour on all highways in a business district, and, equally, 25 miles an hour on all highways in tbe residential districts.
“Now, tbe law is likewise uniform in tbe State statute.
“Tbe ordinance provides:
“It shall be prima facie unlawful for any operator to exceed any of tbe foregoing speed limitations.
“It is likewise provided in tbe ordinance offered here in evidence, section 15, that:
“ ‘The operator of a motor vehicle shall not follow another vebicle more closely than is reasonable and prudent, having due regard to tbe speed of such vehicle and the.traffic upon and condition of tbe highway. ’
“Now, a violation of a statute is negligence per se. That is, negligence itself, no further proof being necessary. Tbe violation of an ordinance is evidence of negligence. If you find that tbe defendants in tbis case violated tbe ordinance, then I charge you, members of tbe jury, that it is your duty to consider that as a matter of evidence in determining whether or not tbe plaintiff has satisfied you of her right to recover in tbis case.”
From plaintiff’s testimony the jury could have found that defendant Heller violated tbe city ordinance in driving tbe taxicab at an excessive speed.
Under tbe authority of tbe Longfellow Case, su pra, there was a question of fact for the determination of the jury.' The trial court was not in error in submitting the case to the jury.
It is also urged that the trial court was in error in admitting exhibit 13 in evidence and in permitting witness Reiman to testify as to its contents. Exhibit 13 is a report made by witness Reiman from statements of people involved in the accident. It is a record of the accident prevention bureau. When the report was first offered in evidence, it was in the custody of witness Conner, a sergeant of police connected with the accident prevention bureau.
The trial court admitted the exhibit upon the following conditions :
“I will admit so much of the record as is shown to be material here. Often police records contain hearsay evidence and observations that are not supported by any proof. Thus that part of the report would not be ‘competent and it would be error to admit the entire report. You may use the report for as much of it as comes within the knowledge of the officer here. He is the. mere custodian, and that admits it in the record as an exhibit, as the report, but it does not necessarily leave into evidence here all of its contents.”
Later, witness Reiman testified that he made the report, and that he was not present when the accident occurred. Objection was made to witness Reiman testifying to a diagram of the accident contained in' the report. The trial court sustained the objection. Reiman also testified that he had no independent knowledge of what defendant Heller and other witnesses told Mm, but that he wrote down statements from questions he asked them; and that whatever he wrote down on the report was true or he would not have put it there. Objection was made to the testimony of witness Reiman when he testified from the use of the exhibit as to what defendant Heller told him ahont the collision. The testimony of the witness as to what one of the defendants told him, after the accident occurred was clearly admissible. ■ Objection was also made to the witness testifying as to what the plaintiff and other witnesses told him. Such testimony was hearsay evidence, but we note there was no objection to such testimony as it was being given, nor was the trial court asked for any instruction concerning such testimony. Moreover, such testimony was at most only cumulative of other competent testimony. Under the circumstances in this case, the admission in evidence of the exhibit as qualified by the trial court and the testimony of witness Reiman was not prejudicial error.
It is next urged1 that the verdict was excessive. We have in mind that plaintiff was a registered nurse; that prior to the accident and injury she was in good health; that subsequent to her injury her right hip was larger than the left; that prior to the injury she worked regularly and since said time she has not been able to work regularly; that she remained in the hospital for a period of 13 days and thereafter she stayed at her sister’s home for a period of six weeks, during all of which time she suffered considerable pain; that her hospital and doctor bills amounted to $248; and that her loss of earnings up to January 17, 1942, when she returned to work, amounted to $225. Under such circumstances we cannot say that the jury arrived at an improper verdict.
It is also urged that the verdict was contrary to the great weight of the evidence. In our opinion there was evidence that the taxicab was operated in a careless and negligent manner. The evidence does not warrant a finding that the verdict was contrary to the great weight of the evidence.
In defendants’ statement of reasons and grounds for appeal, the claim is made that the trial court was in error in not giving certain requested instructions. This claim is not stated under defendants’ “questions involved,” nor is the question briefed. Under such circumstances, we decline to pass upon it.
The judgment is affirmed, with costs to plaintiff.
Stab», C. J., and North, Butzel, Bushnell, Boyles, and Reid, JJ., concurred.' The late Justice Wiest took no part in the decision of this case.
See 1 Comp. Laws 1929, § 4697, as amended by Act No. 31$, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4697, Stat. Ann. 1944 Cum. Supp. § 9.1565). — Reporter. | [
-16,
108,
-16,
-18,
56,
96,
56,
-104,
-11,
-122,
-89,
-109,
-81,
-63,
4,
35,
-25,
61,
81,
99,
-73,
-93,
87,
34,
-14,
23,
-87,
77,
-45,
-49,
-28,
-12,
77,
32,
-54,
-44,
70,
-53,
-59,
88,
-34,
4,
-120,
-32,
25,
9,
112,
122,
-62,
7,
115,
-113,
-62,
42,
26,
-61,
40,
40,
-53,
-71,
-29,
112,
-52,
-123,
47,
50,
-95,
36,
-98,
39,
-40,
24,
-100,
-79,
40,
-72,
50,
-90,
2,
124,
101,
-119,
-124,
34,
102,
33,
29,
-23,
-68,
-104,
46,
-6,
47,
-123,
50,
116,
65,
1,
-97,
-99,
122,
24,
45,
126,
-3,
92,
29,
96,
7,
-34,
-108,
-79,
-17,
-12,
62,
-81,
-21,
-125,
50,
112,
-56,
-6,
92,
7,
122,
59,
-34,
-42
] |
Bhshnelu, J.
The trial judge sitting without a, jury determined that plaintiffs, as assignees of Roy Travis, a cement subcontractor, were entitled to a judgment against defendant C. E. Daniel, a general contractor, in the amount of $488.14, for labor and material involved in the reconstruction of a sidewalk in front of a four-store building in the city of Port Huron, which Daniel constructed for Kate S. Jenks.
Controversies between the owner, Jenks, and the general contractor, Daniel, were determined in Jenks v. Daniel, 304 Mich. 239. The opinion in that case does not refer to Travis who, as a subcontractor, furnished labor and material for the cement work in the basement of one store in the Jenks building.
In the instant case the nature of the relations between Daniel and Travis with respect to the subsequent sidewalk reconstruction are in dispute. Travis testified that in the latter part of December, 1940, he entered into an oral contract with Daniel “to remove the old sidewalk and replace a new slab under the supervision of the city engineer of Port Huron.” He said, “We decided at Mr. Daniel’s suggestion that it should be a cost plus paid job.” Difficulties were encountered in completing the work, and Travis stated:
“After removing the slab we found that the steel beam would not be substantial to carry the load called for according to the city specifications to bring it to the proper elevation. I called Mr. Daniel and told him I had a letter from the [city] engineer’s office stipulating what I had to do in connection with it.”
The steel for the sidewalk job was furnished by plaintiffs. Travis testified that the total cost for labor was $249.57 and the total cost for steel, $249.18, to which he added 10 per cent., making a total of $548.62, and that he received $100 from *Daniel after the work was- completed. Travis insisted that he had two separate contracts with Daniel, one for the basement floor of store No. 1 and one for the sidewalk; that he followed the instructions of the city engineer in the construction of the sidewalk, and that he never looked to Jenks for payment.
Daniel, on the other hand, insisted that, in addition to the contract for the basement floor, he also had a contract with Travis for the sidewalk, which he said “was to break up the sidewalk, remove the old sidewalk and replace with new concrete for a price of $100,” and that he paid Travis all that was due him. Daniel testified that the structural steel used in the sidewalk was ordered by the owner and was not provided for in his contract with Jenks, and that Jenks was also responsible for additional concrete used to make the sidewalk thicker, which added about $70 to the cost. He compared the material and labor necessary for the sidewalk job which he said was to be completed at a cost of $100, with that required for the work done on the basement floor at an agreed cost of $80, to which $20 was added for extras, and pointed out that the area of the basement floor was 2,232 square feet, while the sidewalk only had an area of 952 square feet. The trial judge resolved the factual disputes of the case in favor of plaintiffs.
We do not reverse the findings of fact made by a trial judge sitting without a jury, unless the evidence clearly preponderates in the opposite direction. Mallory v. Pitcairn, 307 Mich. 40, 47. An examination of the record does not justify the conclusion either that the subcontractor, Travis, had been paid in full or that this work was ordered by and billed to the owner.
The remaining question raised by Daniel on appeal is stated by him in this manner:
“May a trial court in one proceeding establish certain matters as facts and base a decree thereon, which findings and decree are affirmed in the Supreme Court, and in a subsequent proceeding ignore the facts so established and render a contradictory judgment ? ”
Daniel thus seeks to have us hold that our affirmation of the trial judge’s determination in Jenks v. Daniel, supra, requires reversal of the same trial judge’s finding in the instant case. In the Jenlcs Case the trial judge stated in part:
“I further find that defendant (Daniel) failed to follow the plans and specifications or failed to perform part of the work in a workmanlike manner in many instances.”
Travis is not mentioned in the reported opinion, nor is his portion of the work specifically referred to. The dispute, which was resolved in that case in favor of the owner, had to do with Daniel’s claimed mechanic’s lien, and the owner’s claim of a right to an accounting. This court did not pass in any manner upon the nature or quality of the work done by Travis. Our statement in the Jenks Case (p. 252) was:
‘ ‘ The testimony clearly indicates that much of the building construction was done in a defective and unworkmanlike manner. The trial court saw and' heard the witnesses and was better able to judge their credibility and the weight to be accorded their testimony. The testimony amply supported the trial court’s finding.”
Without recourse to the record in Jenks v. Daniel, which was not introduced in evidence in the instant case, we are unable to determine what finding the trial judge made with respect to the work of Travis. Nor do we deem this question of any consequence, or in any way controlling of the- issue in the instant case. The parties are not the same, the subject matter is different, and Jenks v. Daniel cannot in any way be said to be res judicata of the issue in the instant case. Daniel insists that it involves “the same res and where the court by its previous decision has established certain facts in connection with the res it is difficult to conceive the theory upon which a subsequent judicial pronouncement can be based which completely ignores the facts so established and establishes a new contradictory set of facts.”
He argues “that the court in a subsequent proceeding is bound by such determination. ’ ’
The authorities cited in support of this proposition generally deal with the doctrine of res judicata, and we know of no authority for the proposition advanced by appellant.
The crus of the case is whether or not the conclusion reached by the trial judge should be set aside on the ground that the evidence clearly preponderates in the opposite direction. Such is not the situation and the judgment is affirmed, with costs to appellees.
North, C. J., and Starr, Wiesti, Butzel, Sharpe, Boyles, and Reid, JJ., concurred. | [
-48,
106,
-32,
-51,
90,
2,
2,
-104,
28,
34,
116,
95,
-19,
-58,
92,
105,
39,
121,
-48,
123,
-89,
-93,
7,
107,
-46,
-77,
-7,
-59,
-72,
109,
-11,
85,
76,
48,
-62,
-99,
-26,
-63,
-41,
20,
-122,
-107,
40,
66,
-15,
64,
52,
123,
112,
15,
17,
-114,
-77,
44,
16,
79,
108,
44,
117,
57,
81,
-7,
-88,
37,
93,
5,
-79,
38,
-100,
-125,
-40,
24,
-104,
-75,
0,
120,
115,
-74,
-62,
117,
3,
-69,
-115,
-26,
99,
96,
5,
-25,
-16,
-8,
63,
-6,
-99,
-91,
-107,
40,
19,
107,
-65,
-107,
124,
18,
-76,
-46,
-10,
21,
25,
108,
11,
-117,
-10,
-16,
31,
84,
-98,
-126,
-50,
19,
50,
100,
-53,
-72,
93,
67,
27,
83,
31,
-124
] |
North, J.
This is a suit for divorce and defendant was granted a decree on cross-bill. Neither party has appealed from this provision in the decree; but defendant has appealed from that por tion of the decree by which the property rights of the respective parties were fixed. The parties were married in 1900 and continued to live together in the city of Grand Rapids until plaintiff left their home in 1929 and went to reside with his relatives. Shortly prior to this plaintiff became wholly incapacitated to continue his employment, or at least practically so. Notwithstanding plaintiff’s shortcomings, which included being* intemperate, he was steadily employed during practically all of the period during which the parties lived together; and for most of the time he earned approximately $30 per w;eek. At the time of the trial he was 58 years of age and defendant was two years younger. They have one child, a daug’hter about 30 years of age. In 1905 plaintiff acquired title by warranty deed to lots one and two of TI. G. Stone’s addition to the city of Grand Rapids. Later title to these lots was placed jointly'in plaintiff and defendant. Still later, in 1915, plaintiff quitclaimed to defendant and she thereupon became the sole owner. The parties erected a duplex on lot two, the contract cost being $4,000. They borrowed $3,600 from a building and loan company incident to building the duplex. For a time they lived in one portion of the building, but shortly they went to live in property owned by defendant’s father which they had rent free for 10 years or thereabouts. During this time the parties received rentals from both portions of the duplex. The amounts so received were substantial. Plaintiff claims that practically during the whole of the time these parties lived together he turned over his pay envelope from week to week to defendant. On the other hand defendant denies receiving plaintiff’s pay envelope at all times but admits having received it much, of the time. Unquestionably defendant was a frugal wife and an energetic conservator of - all moneys received by the family from any source whatever. During the marriage she was not employed outside of her own household, but beyond question she is very largely entitled to credit for having saved and accumulated the properties which the parties now possess. . It is also true that plaintiff was not only steadily employed but that he was industrious and did considerable work outside his regular employment, including work in building and improving the properties of the parties hereto. As the result of their mutual efforts the duplex was ultimately paid for in full. The parties continued to have the rentals therefrom. In time they erected.a brick house on the. other lot at an original cost of $6,400. They occupied this property as their home. At the time of the separation it was free from any incumbrance.
In substance the decree. provides that plaintiff shall have the net income from the duplex during his life. Other than this the sole ownership is in defendant of both pieces of property above mentioned, which is. all of the property the parties have accumulated. ■ Obviously the trial judge had in mind plaintiff’s loss of earning.power owing to his physical afflictions and sought to effect a property arrangement which would save plaintiff from becoming a public charge and at the same time prevent the property which these parties have accumulated from being dissipated. In an oral finding the trial judge said:
“This property should be conserved so far as possible, and should not be dissipated. _ These people. have only this one daughter, who will naturally be the object of their bounty and charity, whatever it may be, and this property should not be placed in a position whereby it could be dissipated.”
We think the disposition of the property rights of these parties made by the decree of the trial judge is fair and equitable.
Appellant objects to the decree on the ground that the trial judge had no jurisdiction to give plaintiff the life use or net income of the duplex property. Appellant’s position in this regard is based upon the fact that she was the sole owner of the property. It is stated in her brief:
“It is our contention that this is not a division of the property of said parties, within the meaning of the law. This provides for an income for the man, so that he may be supported and eared for. This is an order for alimony for the man.”
The difficulty with appellant’s contention is that this is not an order for alimony. Instead it is an adjustment of the property rights of the parties over which the trial court had jurisdiction. While the record title to the property was in the wife, plaintiff alleged in his bill of complaint that defendant persuaded him to deed the property to her upon the representation that otherwise he would be discharged from the employment which he then had, which threat was also made to defendant by his superior, and that defendant promised and assured plaintiff that the conveyance to her would be only temporary and later she would restore to him his rights in the property. Plaintiff claims that he often demanded a reconveyance of the property or an adjustment of his rights therein. This was never accomplished until by the decree in the divorce case. Not only did plaintiff seek an adjustment of the property rights of the parties by the prayer in his bill, but he offered testimony which sustained his position and justified the decree made by the superior court.
It is affirmed, but no costs will be awarded.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
-16,
127,
-112,
-34,
-118,
32,
-86,
-102,
120,
-127,
37,
119,
-19,
-46,
0,
13,
116,
75,
80,
106,
21,
-77,
31,
3,
-46,
-77,
-23,
-51,
-76,
77,
-12,
-43,
76,
48,
-61,
-99,
102,
-110,
-57,
80,
6,
-124,
-86,
76,
121,
64,
52,
123,
68,
13,
113,
-50,
-9,
47,
53,
-24,
44,
46,
-49,
-71,
-16,
-8,
-118,
5,
79,
86,
-109,
100,
-112,
-51,
72,
8,
-104,
53,
-128,
-32,
58,
-74,
-122,
116,
115,
-101,
9,
100,
98,
16,
5,
-18,
-8,
-104,
14,
-6,
-99,
-89,
-112,
88,
2,
107,
-68,
-101,
108,
84,
47,
-2,
110,
5,
31,
96,
11,
-114,
-42,
-109,
-115,
90,
-100,
-125,
-25,
-27,
33,
113,
-53,
34,
92,
71,
122,
-101,
-113,
-85
] |
Starr, C. J.
Plaintiffs appeal from a decree dismissing their amended bill of complaint, filed to reform a land contract executed August 4, 1927, by defendant Louis Glick and his wife, Sadie Glick (now deceased), as sellers, and plaintiffs, as purchasers.
■Prior to 1851 a dam was built in Grand river in the city of Jackson, which resulted in the flooding of an area of land within the city. This flooded area was referred to as the mill pond. Certain land adjacent to the westerly side of the pond was platted, and later a part of said land was replatted as Water street subdivision. Lots 40 and 41 of this subdivision were contiguous to the mill pond.
On June 16, 1925, defendant Louis Glick purchased the following-described land on land contract, which on December 18, 1930, was conveyed to him and his wife by warranty deed:
“Lots 34, 35, 36, 37, 38, 39, 40 and part of 41 Water street subdivision of parts of Grand River addition and Knapp’s addition also all interest in the bed of mill pond adjacent and directly opposite the above described land, which was acquired by Moses A. McNaughton by deed from Henry A. Hayden and Wyley R. Reynolds, city of Jackson, Michigan.”
On May 5, 1927, Glick and wife granted plaintiff Vincent Holda a 30-day option to purchase the following-described land on land contract:
“Lots 34, 35, 36, 37, 38, 39, 40 and 41 Water street subdivision fo the city of Jackson, according to the recorded plat thereof. ’ ’
This option was renewed for two successive 30-day periods, and on August 4, 1927, the land contract in question was executed, whereby the Glides agreed to sell and plaintiffs Holda to purchase the land described in the option. It should be noted that the description of land in the option and contract with the Holdas did not include the “interest in the bed of mill pond,” which was included'in the deed to the Glicks.
Plaintiffs took immediate possession of the lots, improved them, and have since used them for coal-yard purposes. They claim that since 1927, they have filled in that part of the mill pond adjacent to lots 40 and 41 with earth, refuse, and debris, and thereby added more than 100 feet of usable land to the easterly side of these lots. However, there was evidence indicating that the Pittsburgh Forgings Company, whose plant was located north of plaintiffs’ property, had done some of the-filling adjacent to said lots. In 1941 or prior thereto, the Forgings company asserted title to the filled-in land and built a fence excluding plaintiffs' therefrom. It appears that several years prior to the institution of the present suit, the channel of Grand river had been straightened and the mill pond drained, and the bed of the mill pond is now dry.
In March, 1941, nearly 14 years after the execution o.f the land contract in question, plaintiffs filed bill of complaint against defendant Louis Glick, the Consumers Power Company, and the Pittsburgh Forgings Company. They alleged that prior to the execution of the land contract in question, Louis Glick had advised them that in addition to the lots described in the contract, they would also have the rights in the mill pond which the Glicks had acquired from their immediate predecessor in title. They further alleged that the Power company, as the record owner but not actual owner of the filled-in portion of the mill pond, was attempting to sell the same to the Forgings company. They claimed that they were entitled to reformation of the land contract so as to include the filled-in property. However, they prayed only for injunctive relief against interference with their possession, and for damages. They did not ash for reformation of the contract. In April, 1941, plaintiffs amended their bill of complaint, alleging that because of “mistake or misunderstanding” the rights of the Grlicks in the mill pond were not included in the description of property in the land contract, but again they did not ask for reformation. On motion of the Power company the trial court dismissed plaintiffs’ bill, on the ground that they could not maintain the action against the Power company until they had first obtained reformation of their land contract with the Grlicks. Upon stipulation the trial court entered an order dismissing the- bill as to the Forgings company, but without prejudice to plaintiffs’ rights pending appeal as to the Power company. On appeal we affirmed the dismissal, but without prejudice to plaintiffs’ later securing adjudication of their alleged right to reformation. See Holda v. Consumers Power Co., 302 Mich. 478.
In March, 1943, plaintiffs filed an amended bill of complaint only against defendant Louis (Hick. They set forth the chain of title leading up to and including the deed of December 18, 1930, to the Grlicks, which included the lots in Water street subdivision and also “all'interest in the bed of mill pond adjacent.” They alleged in substance that through “mutual mistake and misunderstanding” the description of property in the land contract did not include the Grlicks ’ interest in the bed of the pond. They prayed that the contract be reformed so as to include such interest. Defendant Glick answered, denying there was a mutual mistake and misunderstanding as to the description of property in the contract, and denying plaintiffs’ right to reformation. At the conclusion of the trial the court dismissed plaintiffs’ amended bill, and they appeal. This being a chancery case, we review de novo.
Plaintiff Vincent tate business and said that he “had bought and sold a lot of pieces of property. ’ ’ He testified that, prior to executing the option and land contract in 1927, he had examined the mill pond to determine how much of it could be filled in, and that he had examined the records in the register of deeds’ office to ascertain if he could fill in the pond if he purchased the adjoining lots. He further testified:
“I asked him (Louis Glick) if he owned the property * * * on Water street. He said, ‘Yes,’ and I asked him how much he wanted for it. He said, ‘$7,000.’ I said, ‘Well, Mr. Glick, $7,000 for such a little piece of land as there is?’ He says, ‘Well, you not buying only piece of land that there is, but also the land that you will have by filling in clear to the river.’ * * #
“Q. Did you go out
“A. on some time there looking over just how far it could be filled in. And, then, from there I went to the register of deeds and abstract office to see whether there is any right to fill in that low and marshy land. * * *
“With the assistance of clerk attendant there, he showed me several descriptions, and * * * he read it to me, and I read it myself, and under each of those showed that owner of the property has right to fill in, lots 40 and 41. * * *
“After I examined ister of deeds’ office and looked at the property, I again saw Mr. Glick. * ** * I told him that I was down to look up the records, and that he is right about stating that I have right to fill in the property as far as the river is, and that * # * I’ll buy the property.”
On cross-examination Vincent Holda further testified :
“ Q. Is this what you mean, Mr. Holda * * * that you thought that these rights (in the mill pond) that you are talking about now went with those lots, and that, therefore, that did not have to be in writing? * # #
“A. That is just what I thought. * '* *
, you at the register of deeds office you believed that if you bought these lots, that they carried with them certain other rights whether it was mentioned in the writing or not? * * • *
an owner * * * of those lots I can go as far as the river. * '* #
get deed I get the same privilege that is recorded at the register of deeds. * * * * * *
you that when you became the owner of the lots 40 and 41 of the Water street subdivision that you had the right to fill in lots that you didn’t insist that anything be put in about the option? * * * .
correct.”
Defendant Glick expressly denied representing to plaintiff Vincent Holda that if he bought the lots, he would have the right to' fill in the adjacent millpond. Glick .testified:
“Q. Did you make any representations or statements to Mr. Holda about any rights in the. mill pond or in the river? * * * “A. No. * * *
Holda as to any rights that he would have to fill in any land there ?
not.
that if he bought these * * * lots that he was not buy ing the lots alone, but that in addition to that, he was buying the right to fill in these lots to the river bank?
“A. I did not. * * *
“Q. State whether or not you saw any employees of the Pittsburgh Forge filling in there?
“A. I saw them filling in with refuse from their forge shop. * * *
“ Q. And did you ever remember seeing Mr. Holda or any of his employees down there making any filling in there ? * * *
“A. I don’t remember any of that. * * *
“q * * * When did you first learn or know that Mr. Holda was claiming any rights in the mill pond, or any rights to fill land there?
“A. The first knowledge that I had of that was a couple of years ago when they started suit. At or about that time Mr. Holda came to me * * * and wanted me to give him a new contract. * * *
“He wanted this easement into the river attached to it. "Well, I told him that I couldn’t do it; that he had on his contract what he had bought, and that’s all I would do. * * * Before that I had never heard of any claims on the part of Mr. Holda that I had sold him, or agreed to give him any additional rights. * * *
“Q. * * * Was there any mistake on your part in not adding to the description in the land contract that you signed with Mr. Holda any additional things besides the lots that were therein stated? # * *
“A. To my knowledge, I made no mistake. * # #
“I didn’t know whether I owned anything in back there or not. And I wasn’t going to give him a contract on something I didn’t own. * * *
“Not knowing whether I had any rights there, * * * I wouldn’t include it in the contract.”
There was testimony indicating that the Consumers Power Company claimed fee title to the bed of the min pond and that in August, 1936, Holda tried to purchase from the Power company the land which he had filled in adjoining his coal yard. A witness who had been plant manager of the Pittsburgh Forgings Company since 1929 testified regarding the filling in of the mill pond adjacent to lots 40 and 41 as follows:
“Q. Now, during that period of time * * * have you known of the plaintiff, Mr. Holda, filling in any land'to the east of his lots 40 and 41 into the bed of the mill pond?
“A. I can’t say that I ever knew of him filling any whatsoever.
“ Q. Have you people done any filling in in the bed of the mill pond since you have been there?
“A. We filled in steadily for two or three years on that end. * * *
“We continued to fill, I can’t say how many years, but we, off and on, filled steadily ever since we have been there. * * *
“Q. * * * Are you able to tell us whether or not after 1930 and right up until the time this lawsuit was started the Pittsburgh Forgings Company continued to fill in land to the east of the Holda property?
“A. We have; we have continued to, in the bed of the mill stream, and to the east of the limits, as shown, of the Holda property. We have continued to fill that in and level it off,”
In their amended bill of complaint plaintiffs pray that the land contract in question be reformed to include “the lands in the bed of the mill pond adjoining and directly opposite said lots 40 and 41 and Necker street as hereinbefore described, and as acquired by Moses A. McNaughton by deed from Henry A. Hayden and Wiley R. Reynolds, and the right to fill the same.” Therefore, the only question before us on this appeal is whether or not plain tiffs are entitled to have the land contract reformed to include the above-described lands in the bed of the pond.
The Glicks, as sellers, did not reserve riparian rights in the mill pond and, therefore, such riparian rights as they possessed undoubtedly passed to plaintiffs by operation of law. Blain v. Craigie, 294 Mich. 545; Bauman v. Barendregt, 251 Mich. 67; Hartz v. Detroit, P. & N. Ry., 153 Mich. 337. Furthermore, as defendant Glick has not asserted any claim to riparian rights adverse to plaintiffs, there is no issue relative to such rights which can be determined in the present case and no occasion to reform the contract in that regard. In the absence of a showing of mutual mistake or fraud, the fact that plaintiffs may be entitled to riparian rights as a matter of law does not entitle them to have their contract reformed to include the “lands in the bed of the mill pond.” To grant plaintiffs reformation of the contract so as to include rights in the filled-in portion of the pond would place defendant, as seller, in the position of warranting title thereto.
It should be kept in mind that the Consumers Power Company and the Pittsburgh Forgings Company apparently claim title to the bed of the pond, but that the conflicting claims of plaintiffs and the Power company and the Forgings company are not before us and cannot be determined in the present suit. Again we reiterate that the only question on this appeal is whether or not plaintiffs are entitled to have their land contract with the Glicks reformed, to include that part of the bed of the pond which they claim to have filled in.- They base their right to reformation on the ground of an alleged “mutual mistake and misunderstanding” in the preparation of the contract. The burden was upon them to establish by clear and convincing evidence that there was a mistake and that it was mutual. The applicable rule was stated in Crane v. Smith, 243 Mich. 447, as follows:
“To reform a written instrument on account of mutual mistake, the evidence of the mistake and the mutuality thereof ought to be clear and satisfactory, so as to establish the fact beyond cavil. Burns v. Caskey, 100 Mich. 94; Kinyon v. Cunningham, 146 Mich. 430; Lyons v. Chafey, 219 Mich. 493; 34 Cyc. p. 984; 23 R. C. L. p. 367.”
In Lyons v. Chafey, 219 Mich. 493, 498, we said:
“It is fundamental that when it is sought to reform a written instrument on account of a mutual mistake, the evidence of the mistake and the mutuality thereof must be so clear as to establish the fact beyond cavil. Ludington v. Ford, 33 Mich. 123; Kinyon v. Cunningham, 146 Mich. 430. The burden of proof rests with the plaintiff and he must convince the court by a clear preponderance of the evidence.”
In Miles v. Shreve, 179 Mich. 671, 679, we said:
“It is elementary that the burden of proof is strongly upon the party asking reformation of a written instrument on the ground of mistake. The proof of mistake must be clear and convincing. 16 Cyc. p. 70; Vary v. Shea, 36 Mich. 388; Case v. Peters, 20 Mich. 298.
“ ‘Courts of equity do not( grant the high remedy of reformation upon a probability, nor even upon a mere preponderance of evidence, but only upon a certainty of the error.’ 2 Pomeroy’s Equity Jurisprudence (3d Ed.), §859.”
See, also, Kobylinski v. Szeliga, 307 Mich. 306; Sobel v. Steelcraft Piston Ring Sales, Inc., 294 Mich. 211; Donaldson v. Hull, 258 Mich. 388; Lee State Bank v. McElheny, 227 Mich. 322; Schlossman v. Rouse, 197 Mich. 399; 45 Am. Jur. p. 651, §116; 5 Williston on Contracts (Rev. Ed.), §1582; 2 Restatement of the Law of Contracts, § 504.
Prior to executing the contract plaintiff Yincent Holda made his own investigation and satisfied himself as to the proper description of property to be included in the contract. He concluded that if he owned the lots he would have the right to fill in the adjacent pond. The testimony of plaintiffs and defendant Glick as to their conversations relative to the mill pond is in direct conflict. Defendant expressly denies that he agreed to sell any interest in the bed of the pond, and denies plaintiffs’ claim of a mutual mistake. Plaintiffs ’ testimony relative to their filling in the pond does not, alone, establish that there was a mutual mistake in the terms of the contract, particularly in view of the conflicting testimony as to what amount of filling they did. .
Plaintiff Yincent Holda may have been mistaken as to the legal effect of the description of property in the land contract, but there was no showing that this mistaken understanding was mutual between him and defendant Glick. Glick testified that he didn’t know whether or not he owned any rights in the mill pond, and he said, “I wasn’t going to give him (Holda) a contract on something I didn’t own.” The contract was prepared by plaintiffs’ attorney. It was not ambiguous, and there was no showing that the attorney made a mistake in stating the terms orally agreed upon. In Crane v. Smith, supra, we said (p. 450):
“The deed was drafted by plaintiffs’ attorney, upon full knowledge of the facts and claims. There was no showing that he made a mistake in stating its agreed terms. The mistake, if any, was purely one of law, ‘an erroneous conclusion as to the legal effect of known facts. ’ 40 C. J. p. 1228. Mistake as to the legal effect of a written instrument, deliberately executed and adopted, constitutes no ground for relief in equity. Holmes v. Hall, 8 Mich. 66 (77 Am. Dec. 444); Martin v. Hamlin, 18 Mich. 354 (100 Am. Dec. 181).”
See, also, Walter v. Walter, 297 Mich. 26; Martin v. Hamlin, 18 Mich. 354 (100 Am. Dec. 181).
The trial judge, who saw and heard the parties and their witnesses, was in a better position to determine the credibility of and weight to be accorded their testimony. We agree with his opinion, in which he stated:
“It is very striking that the plaintiffs never made any claim for this land in question until the city had changed the bed of the river; and also the fact that the plaintiffs waited nearly 14 years before asking for reformation of the contract when the plaintiffs knew that the -option upon which they purchased this land, and the land contract growing out of the same, did not contain such a description as they now try to have incorporated into the land contract. * * *
“From all of the evidence in the case the court is satisfied that there is no mutual mistake as to the property described, but that the defendant intended to convey only the property mentioned in the land contract.”
We conclude that plaintiffs failed to establish by clear and convincing evidence their allegation of a mutual mistake in the land contract in question. We find no evidence of fraud, inequitable conduct or unjust enrichment on the part of defendant. We have considered other questions presented and conclude that they do not require determination.
The decree dismissing plaintiffs’ amended bill of complaint is affirmed. Defendant may recover costs of both courts.
North, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. The late Justice Wiest took no part in the decision of this case. | [
-16,
104,
-4,
-84,
-72,
-96,
-120,
-106,
89,
48,
-9,
87,
-97,
18,
25,
37,
-25,
125,
-16,
107,
-44,
-78,
30,
34,
-45,
-77,
123,
77,
-80,
92,
-12,
87,
12,
32,
-62,
-99,
-62,
-126,
-55,
88,
6,
15,
57,
106,
89,
64,
52,
59,
118,
77,
49,
-114,
-29,
47,
21,
98,
-87,
42,
-23,
-67,
81,
120,
-85,
-116,
91,
20,
-96,
-12,
-104,
3,
-38,
90,
-112,
53,
8,
-32,
115,
54,
-58,
-12,
67,
-101,
8,
38,
102,
1,
101,
-19,
-8,
88,
4,
-2,
-119,
-91,
-47,
88,
64,
68,
-68,
-99,
120,
22,
-121,
126,
110,
-123,
29,
-84,
7,
-62,
-10,
-79,
-81,
-68,
-122,
3,
-17,
3,
54,
112,
-49,
98,
92,
71,
49,
31,
-98,
-55
] |
Bushnell, J.
The defendant is the owner of property located on the southwest corner of Woodward- avenue and the Ten Mile road in the city of Pleasant Ridge. It has a frontage of 312 feet on the Ten Mile road and 125 feet on Woodward avenue. A covenant forbids its use for other than residential purposes until 1935. The city of Pleasant Ridge is in Oakland county, its northerly boundary meeting the southerly boundary of the city of Royal Oak at the Ten Mile road. . Its southerly boundary, five and one-half blocks in the opposite direction, adjoins the city-of Ferndale. The east and west boundaries are a few blocks distant on either side of Woodward avenue, which runs in a northwesterly direction from the center of the city of Detroit to the center of the city of Pontiac. Its width in the city of Pleasant Ridge is about 200 feet, and there are separate lanes for north- and south-bound traffic. The Ten Mile road has a single paved traffic lane 26 feet wide.
Ridge road lies 712 feet west of Woodward avenue and intersects the Ten Mile road at a right angle. At the northwest corner of these two streets is the entrance to the Detroit Zoological Park, which was opened to the public in 1928. This park is visited by the public in large numbers ranging, according to the estimates of witnesses, from 100,000 to 200,000 on Sundays and holidays during the summer, and on other days by lesser crowds. The north side of the Ten Mile road is occupied and used exclusively for business purposes, as are the other three corners opposite defendant’s property.
In 1926, the then village of Pleasant Ridge adopted a zoning ordinance which was reenacted when it became a city in 1932. The ordinance divided the city into five zones, A to E inclusive, of which class A is residential and class D commercial. Included in class D are the entire east side of Woodward avenue, the west side from the southerly limits of the city to the middle of the third block to the north, and two parcels at the northwest corner of the city: Defendant’s property is in class A.
The trial court upheld the validity of the ordinance, and decreed the use and occupation of defendant’s property for any purpose other than a single family dwelling a nuisance per se, and an injunction was issued restraining the defendant from so using the premises. The parties agreed on the record that the property restrictions in the deed would not be considered. They also stipulated as to a number of other questions of fact.
The appeal presents the, sole question as to whether the ordinance, as it affects the use of appellant’s property, is .a constitutional, reasonable and nonconfiscatory exercise of police power under the provisions of the zoning statute. Our consideration of the ordinance in question is limited solely to its validity as applied to the particular property involved on this appeal. Zoning ordinances have been upheld by us in principle. Dawley v. Ingham Circuit Judge, 242 Mich. 247; City of Lansing v. Dawley, 247 Mich. 394; City of North Muskegon v. Miller, 249 Mich. 52; James S. Holden Co. v. Connor, 257 Mich. 580. The validity of the fundamental theory and philosophy of zoning, however, does not grant a blanket indorsement of every instance of zoning. Nectow v. City of Cambridge, 277 U. S. 183 (48 Sup. Ct. 447). The statute, 1 Comp. Laws 1929, § 2633, outlines the tests to be applied to the ordinance. It reads:
“Such regulations shall be made in accordance with a plan designed to lessen congestion on the public streets, to promote public health, safety and general welfare, and shall be made with reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values and the general trend and character of building and population development.”
These standards have been applied in the zoning cases appealed to our court. Speaking through Mr. Justice Butzel in City of North Muskegon v. Miller, supra, we said :
“It is, however, necessary that a zoning ordinance be reasonable, and the reasonableness becomes the test of its legality. ’ ’
We there held, on a showing that the property involved was unfit for the use to which it was restricted, that the ordinance was unreasonable and confiscatory and, therefore, illegal.
Where the village of Grosse Pointe had by a like ordinance imposed a setback on certain corner lots, while exempting others in the district, Mr. Justice Fead, writing for the majority in James S. Holden Co. v. Connor, supra, held the exemption to be arbi trary, discriminatory and not based upon tbe general welfare. Mr. Justice Clark in tbe minority opinion agreed that the classification must be uniform.
Appellant cites two recent cases from other jurisdictions which appear to be as nearly ‘ ‘ on all fours ’ ’ with the instant case as any we have examined. In Forbes v. Hubbard, 348 Ill. 166 (180 N. E. 767), the validity of the zoning ordinance of the village of Eiver Forest was attacked, insofar as it applied to property located on the southwest corner of Harlem avenue and Chicago avenue. Th¿ ordinance restricted it to use for a single-family residence. This residential suburb, located about 10 miles west of the loop district in Chicago and including a population of 9,000, is separated from the metropolis by the village of Oak Park. Harlem avenue extends north and south along the boundary line between Eiver Forest and Oak Park, and is a principal highway of Cook county for many miles. Chicago avenue extends westerly from the city of Chicago and is also a through highway. The other three corners at the intersection where plaintiff was located were used for commercial purposes and the east side of Harlem avenue was occupied by low-grade residences. Plolding that “each case is to be determined on its own facts and surrounding circumstances,” the Illinois court granted a writ of mandamus compelling the issuance of a permit to erect a store building, on the basis that the ordinance was an unreasonable invasion of plaintiff’s property rights.
In Dowsey v. Village of Kensington, 257 N. Y. 221 (177 N. E. 427, 86 A. L. R. 642), it appears that the village of Kensington was coterminous with a plot of land originally developed as a single residential area. The streets were laid out in a manner calculated to secure an atmosphere of dignified, quiet retirement, and the lots were sold subject to drastic restrictions. The village had a frontage of about one-fifth of a mile on the east side of Middle Neck road, the busiest thoroughfare in the district, a large portion of this frontage being owned by plaintiff. The ordinance included the entire village, except a small plot at some distance from plaintiff’s property, and restricted it to residential uses. On the westerly side of Middle Neck road were business blocks and apartment buildings. The court said:
“Certainly an ordinance is unreasonable which restricts property upon the boundary of the village to a use for which the property is not adapted, and thereby destroys the greater part of its value in order that the beauty of the village as a whole may be enhanced. In such case the owner of the property cannot be required to ask as a special privilege for a variation of the restriction. The restriction itself constitutes an invasion of his property rights.”
The testimony as to the locality in question in the instant case suggests that the maintenance of the restrictions imposed by the ordinance may possibly result in the gradual and general deterioration of the neighborhood, in that it is extremely doubtful that the high character of a residential district can be maintained in the face of the unusually heavy traffic on the Ten Mile road and Woodward avenue, the latter a superhighway, the commercial use of the properties to the north and east, and the presence of large crowds on busy days at the Detroit Zoo.
Tested by the statute and our decisions in City of North Muskegon v. Miller, supra, James S. Holden Co. v. Connor, supra, and the authorities cited, the ordinance as applied to defendant’s property is unreasonable and confiscatory and therefore illegal.
We do not pass upon the restrictions imposed upon the property by the covenants in the deed. Phillips v. Lawler, 259 Mich. 567.
The decree is reversed and the injunction dissolved, with costs to appellants.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Btitzel, and Edward M. Sharpe, J J., concurred. | [
-16,
-2,
-36,
-20,
74,
96,
24,
-101,
122,
-77,
119,
95,
-17,
-53,
77,
57,
-21,
127,
80,
105,
-11,
-78,
70,
-126,
-48,
-77,
79,
-63,
123,
79,
-26,
-47,
76,
32,
-54,
-99,
-42,
20,
-51,
24,
-50,
-123,
-119,
65,
-103,
80,
54,
59,
0,
15,
113,
-113,
-121,
46,
52,
-21,
104,
40,
-1,
42,
-112,
-7,
-82,
-107,
-2,
6,
-94,
-30,
-104,
-93,
120,
89,
-112,
53,
0,
-24,
51,
-74,
-58,
116,
77,
-101,
12,
32,
6,
1,
108,
-17,
-24,
-103,
12,
-6,
-119,
-89,
-12,
25,
66,
38,
-100,
-97,
104,
80,
70,
126,
-27,
68,
31,
108,
-50,
-114,
-74,
-79,
-49,
-12,
-106,
3,
-5,
37,
52,
65,
-54,
94,
71,
101,
60,
-37,
-98,
-103
] |
Donofrio, J.
In these consolidated appeals, the prosecutor appeals by leave granted the trial court’s orders granting motions by defendants Terri Lea Benjamin, Kimberly Jane Heniser, and Julia Ann Zdybel for the destruction of fingerprint and arrest cards by the arresting agency or the Michigan State Police. Each defendant pleaded guilty of possession of less than 25 grams cocaine, MCL 333.7403(2) (a) (u). The trial court granted all three defendants deferral status under MCL 333.7411 and placed them on probation for six months. Defendants successfully completed the terms and conditions of their probation and, pursuant to MCL 333.7411(1), the trial court dismissed charges against them. Subsequently, the trial court granted defendants’ motions for destruction of their fingerprint and arrest cards. The trial court denied the prosecution’s motion for reconsideration, and this Court granted leave to appeal. Because the trial court clearly erred by concluding that MCL 333.7411 allowed defendants’ fingerprint and arrest cards to be destroyed, we reverse.
The prosecutor argued on motion for reconsideration that MCL 333.7411(2)(a) requires the Department of State Police to keep a nonpublic record of an arrest for individuals who receive deferrals. The prosecution relied on McElroy v Michigan State Police Criminal Justice Information Center, 274 Mich App 32; 731 NW2d 138 (2007), in which this Court interpreted a different but similar statutory deferral provision and held that fingerprint and arrest cards must be retained by the police. The trial court determined that MCL 28.243(8) applied. That statute requires the destruction of the fingerprint and arrest cards of a person found not guilty of an offense. The trial court distinguished McElroy on the basis that McElroy had pleaded no contest rather than guilty, stating:
The facts in McElroy differ from the facts in these cases. Mr. McElroy entered a plea of no contest to domestic violence and entered into a deferral program under MCL 769.4a. [McElroy, supra] at 33-34. The Court of Appeals held that because Mr. McElroy was unable to prove his discharge and dismissal was a finding of not guilty under MCL 28.243(8) because he pleaded no contest rather than guilty[,] there was never an adjudication of guilt entered. Id. at 38. Therefore, he was not entitled to have his fingerprint and arrest cards destroyed. Id.
The trial court ultimately ruled that under MCL 28.243(8), defendants were entitled to the destruction of their fingerprint and arrest cards, reasoning:
The Court of Appeals [in] McElroy footnotes a case deciding when a discharge or dismissal under MCL 333.7411 constitutes a finding of not guilty; the case cited was Carr v Midland [C]o Concealed Weapons Licensing Bd, 259 Mich App 428; 674 NW2d 709 (2003). In Carr, the Court of Appeals held that a dismissal of a guilty plea after a successful completion of a probation program under MCL 333.7411 did not render the plaintiff in that case guilty of a felony because MCL 333.7411(1) provided that her discharge and dismissal was not a conviction. This decision allowed Ms. Carr to apply for a concealed weapons permit because she did not have a conviction on her record.
The facts in the cases above are more like those in Carr than in McElroy. Each Defendant named above pleaded guilty to the charges against them; therefore, an adjudication of guilt was entered against them. When they successfully completed their probation program they were discharged and a dismissal of a guilty plea was entered. As the court held in Carr, Defendants in these cases were found not guilty of an offense. Therefore, they are entitled to have their fingerprint and arrest cards destroyed under MCL 28.243. McElroy does not apply to this case because Defendants are able to prove that their discharge and dismissal is a finding of not guilty.
Therefore, People’s Motion for Reconsideration is denied because they have failed to demonstrate that this Court has committed palpable error. Further, MCL 333.7411(2) requires that the records and identifications division of the department of state police retain a nonpublic record of an arrest and discharge or dismissal under this section. Destroying the fingerprint and arrest cards does not prevent the state police from maintaining a record of the arrest and discharge or dismissal.
Resolution of this single-issue appeal turns on the interpretation of MCL 333.7411. Issues of statutory interpretation are questions of law, which this Court reviews de novo. People v Hesch, 278 Mich App 188, 192; 749 NW2d 267 (2008). The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature, which is determined from the language of the statute itself. McElroy, supra at 36. If the statute is unambiguous on its face, the Legislature is presumed to have intended the meaning expressed, and judicial construction is neither required nor permissible. Id. at 37.
On appeal, the prosecutor argues that the police are allowed to keep a nonpublic arrest record of a party’s fingerprint and arrest card after the party has successfully completed an MCL 333.7411 deferral for three reasons: (1) the statute specifically states that the police shall retain a nonpublic arrest record for parties who have completed MCL 333.7411 deferral; (2) one of the main purposes behind keeping the nonpublic arrest record is to confirm that the party does not receive another MCL 333.7411 deferral in the future; and (3) MCL 28.243(8) does not apply because a person who completes a deferral does so without an adjudication of guilt and therefore the MCL 28.243(8) triggering language of “not guilty” is not met.
In deferral proceedings under MCL 333.7411(1), an individual either pleads guilty or is found guilty of certain controlled substance offenses. The trial court does not adjudicate guilt when the plea is tendered. Instead, the trial court defers proceedings and places the individual on probation. If the individual complies with the terms of probation, the trial court discharges the individual without an adjudication of guilt and dismisses the proceedings. If the individual fails to fulfill the terms of probation, the trial court enters an adjudication of guilt. MCL 333.7411(1) provides in pertinent part:
When an individual who has not previously been convicted of an offense under this article or under any statute of the United States or of any state relating to narcotic drugs, coca leaves, marihuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a controlled substance under [MCL 333.7403(2)(a)(u)]... the court, without entering a judgment of guilt with the consent of the accused, may defer further proceedings and place the individual on probation .... Upon fulfillment of the terms and conditions, the court shall discharge the individual and dismiss the proceedings. Discharge and dismissal under this section shall be without adjudication of guilt and, except as provided in [MCL 333.7411(2)(b)], is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under section [MCL 333.7413]. There may be only 1 discharge and dismissal under this section as to an individual.
MCL 333.7411(2) requires the Department of State Police to keep a nonpublic record of the arrest and discharge and dismissal, partly for the purpose of determining whether an individual has previously availed himself of an MCL 333.7411 deferral:
The records and identifications division of the department of state police shall retain a nonpublic record of an arrest and discharge or dismissal under this section. This record shall be furnished to any or all of the following:
(a) To a court, police agency, or office of a prosecuting attorney upon request for the purpose of showing that a defendant in a criminal action involving the possession or use of a controlled substance, or an imitation controlled substance as defined in [MCL 333.7341], covered in this article has already once utilized this section. [MCL 333.7411(2)(a).]
In addressing the prosecutor’s motions for reconsideration, the trial court considered the language of MCL 333.7411, but relied on MCL 28.243(8) to conclude that defendants were entitled to have their fingerprint and arrest cards destroyed. Despite the trial court’s acknowledgement of the requirements of MCL 333.7411(2), it determined that MCL 28.243(8) applies to this case. MCL 28.243(8) requires the destruction of fingerprint and arrest cards of persons who are found not guilty of an offense:
[I]f an accused is found not guilty of an offense for which he or she was fingerprinted under this section, upon final disposition of the charge against the accused or juvenile, the fingerprints and arrest card shall be destroyed by the official holding those items and the clerk of the court entering the disposition shall notify the department of any finding of not guilty or not guilty by reason of insanity, dismissal, or nolle prosequi, if it appears that the accused was initially fingerprinted under this section____[MCL 28.243(8).]
No appellate decisions have addressed the retention-of-arrest-record requirement of MCL 333.7411(2), or whether a dismissal under MCL 333.7411 is a finding of not guilty within the meaning of MCL 28.243(8). But, in McElroy, this Court considered whether a person who successfully completes a similar deferral program under the spouse abuse act, MCL 769.4a, is entitled to have his fingerprint and arrest card destroyed under MCL 28.243(8). McElroy, supra at 33.
McElroy was charged with, and pleaded no contest to, domestic violence. He participated in a deferral program under MCL 769.4a, which provides that a person who pleads or is found guilty of assaulting his or her spouse may have proceedings delayed and be placed on probation without the court entering a judgment of guilt. McElroy, supra at 34. Like under MCL 333.7411, when the terms and conditions of probation are fulfilled, the court must discharge the accused and dismiss the proceeding, and such “ [discharge and dismissal. . . shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.” MCL 769.4a(5). Also as in MCL 333.7411, a person may use the deferral provision in MCL 769.4a(5) only once, “so the department is required to maintain a nonpublic record of the arrest and dis charge or dismissal[.]” McElroy, supra at 36, citing MCL 769.4a(6). McElroy completed the deferral program in accordance with the terms and conditions of his probation, and the charges against him were dismissed. Id. at 35.
McElroy brought in this Court a mandamus action seeking the return or destruction of his fingerprint and arrest card, relying on MCL 28.243(8). McElroy, supra at 35. He argued that there was no finding of guilt in his domestic violence case. Id. This Court denied relief because McElroy failed to show that he was “found not guilty” as required by MCL 28.243(8). This Court explained that the discharge and dismissal of the domestic charges did not constitute a finding of “not guilty”:
McElroy argues that MCL 28.243(8) requires defendant to destroy the enumerated documents because the charges brought against him were ultimately dismissed and, he maintains, the statute requires defendant to destroy these documents unless McElroy was found guilty. To the contrary, nothing in subsection 8 requires defendant to destroy the documents following a dismissal. Rather, subsection 8 plainly states that, in order for McElroy to require defendant to destroy these documents, McElroy must show that he was “found not guilty.”
McElroy does not argue, or cite any authority holding, that a dismissal under MCL 769.4a should be construed as a finding of not guilty within the meaning of MCL 28.243(8). Moreover, MCL 769.4a(5) provides that “[d]is-charge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.” (Emphasis added.) Thus, because no adjudication of guilt was made pursuant to MCL 769.4a(5), McElroy cannot show that he has been “found not guilty,” which he must show to require destruction of the enumerated documents under MCL 28.243(8). [Id. at 37-38.]
The McElroy Court also noted that retention of the arrest records is necessary to ensure that a person receives only one deferral:
Our holding that McElroy is not entitled to destruction of the documents is reinforced by MCL 769.4a(l), in which our Legislature made it mandatory for a court, before it permits a deferral or probation under these circumstances, to determine whether a person has already benefited from the procedure available under the statute in favor of a diversionary program. Indeed, that subsection provides that “the court shall contact the department of state police and determine whether, according to the records of the department of state police, the accused has previously been convicted ... or has previously availed himself or herself of this section.” (Emphasis added.) Without retention of records by the state police, this requirement would be compromised. [Id. at 39 n 5.]
Given the similarities between the deferral schemes in MCL 769.4a and MCL 333.7411(1), the same rationale set forth in McElroy applies to the present case. MCL 333.7411(1) expressly states that “dismissal under this section shall be without adjudication of guilt[.]” Therefore, defendants cannot establish that they were “found not guilty,” which is required for them to be entitled to the destruction of their fingerprint and arrest cards under MCL 28.243(8). The trial court distinguished McElroy on the basis that McElroy pleaded no contest rather than guilty, attributing the McElroy result to the no-contest plea, stating “there was never an adjudication of guilt entered [and] [therefore he was not entitled to have his fingerprint and arrest cards destroyed.” But the McElroy holding was not based on the fact that McElroy pleaded no contest. The reason that there was no adjudication of guilt was rooted in the plain language of MCL 769.4a(5), which, like MCL 333.7411, expressly provides that “[discharge and dismissal under this section shall be without adjudication of guilt[.]” McElroy, supra at 38. We conclude that the trial court erred by ruling that defendants, with the successful completion of their probation and the dismissal of the charges against them, were “found not guilty” for purposes of MCL 28.243(8).
Moreover, the trial court’s reliance on Carr v Midland Co Concealed Weapons Licensing Bd is misplaced. At issue in Carr was whether the dismissal of charges against the plaintiff under MCL 333.7411 rendered the plaintiff “convicted of a felony” for purposes of disqualifying her from obtaining a concealed weapons permit under MCL 28.425b(7)(f). This Court held that it did not, because under MCL 333.7411(1), the plaintiffs discharge and dismissal was “not a conviction.” Carr, supra at 430, 436-438. Carr did not hold that the plaintiff was found not guilty, only that she was not deemed to have been “convicted of a felony” under the concealed pistol licensing act by virtue of the charge dismissed under MCL 333.7411. Carr, supra at 429-430.
Although Carr involved the application of MCL 333.7411, McElroy is more instructive. McElroy involved the destruction of the fingerprint and arrest card under MCL 28.243(3) after the accused fulfilled probation and obtained a dismissal of charges. The issue in the present case and in McElroy is whether the accused was “found not guilty,” whereas in Carr the issue was whether the plaintiff had a felony conviction. In McElroy, this Court distinguished Carr on the basis of the different “triggering” statutory language:
. . . McElroy’s discharge and dismissal was not an adjudication of guilt, and, as previously discussed, in order to have the documents destroyed under MCL 28.243(8), McElroy must show that he was “found not guilty” of the crime charged. Thus, Carr is inapplicable because it addressed statutory language triggered by a conviction, while the critical statutory language here is triggered by a “finding of not guilty.” [McElroy, supra at 37 n 2.]
Here, the trial court equated a discharge and dismissal under MCL 333.7411(1) with a finding of not guilty, which triggers the MCL 28.243(8) requirement that the fingerprint and arrest card be destroyed. This was error. MCL 333.7411(1) provides that the defendant benefiting from the provision must first either plead guilty or be found guilty of the relevant offense. Here, each defendant pleaded guilty of possession of less than 25 grams of cocaine but was granted deferral status under MCL 333.7411(1). For individuals enjoying deferral status pursuant to MCL 333.7411(1), such as defendants here, there is no record resolution of whether guilt has been established beyond a reasonable doubt upon the successful completion of the terms of probation. In fact, the predicate determination that the defendant is actually guilty of the charged offense becomes, in essence, a nullity. See Carr, supra at 434-435.
The prosecution also addresses the question whether the “nonpublic record of an arrest” that must be. retained under MCL 333.7411(2) includes the fingerprint and arrest card. The statute does not specify what items or information must be included in the “record of arrest.” The trial court stated that “[destroying the fingerprint and arrest cards does not prevent the state police from maintaining a record of the arrest and discharge or dismissal.” The prosecution contends that because a person is entitled to only one deferral under MCL 333.7411, and the express purpose of keeping arrest records is to ensure that a person receives only one deferral, identifying information such as fingerprint and arrest cards are a necessary part of the arrest record. See People v Cooper (After Remand), 220 Mich App 368, 375; 559 NW2d 90 (1996) (“arrest record” used interchangeably with “fingerprints” and “arrest card”). Because the discharge and dismissal does not amount to a finding of not guilty of the charged drug offenses, defendants here cannot show that they have satisfied the condition precedent to the destruction of these records, and the question of what type of documents could satisfy the directive to retain a “nonpublic record of an arrest and discharge or dismissal under this section,” MCL 769.4a(6), is moot.
We will state, however, that while we imagine it would be possible for the state police to “retain a nonpublic record of an arrest and discharge or dismissal” that does not include arrest and fingerprint records, we find that action illogical and contrary to public policy. We agree with the reasoning in McElroy that maintaining fingerprint and arrest records is important in meeting the directive that a court shall contact the state police to determine if a defendant had previously been given deferral status under MCL 769.4a(l). McElroy, supra at 36. Simply maintaining a defendant’s name, even with a picture or other subjective description of the individual, but without any other objective identifying information, including a fingerprint card, would not satisfy the express purpose of MCL 333.7411. The express purpose is actual identification so that a person receives only one deferral. Fingerprint and arrest records provide a level of certainty to the identification process. Today’s technological world is rife with fraud and identity theft. Moreover, name changes and changes in people’s appearance (as a result of advances in medical sciences) are now commonplace. Having the ability to objectively identify a person through fingerprint records is crucial to the clear purpose of MCL 333.7411.
Reversed. | [
-80,
-6,
-20,
-68,
11,
33,
-109,
-76,
67,
-45,
118,
83,
-81,
-14,
9,
123,
107,
127,
68,
121,
-35,
-94,
102,
67,
-74,
-77,
-77,
65,
-73,
79,
-20,
-71,
28,
-16,
-54,
-43,
70,
-120,
-29,
88,
-122,
5,
-71,
102,
81,
0,
36,
51,
58,
15,
113,
-97,
-30,
111,
17,
78,
-119,
40,
75,
-67,
-64,
-20,
-71,
5,
107,
20,
-93,
52,
-101,
-122,
-40,
59,
28,
49,
1,
104,
48,
-106,
-122,
20,
75,
-101,
36,
38,
98,
0,
16,
-17,
-83,
-127,
44,
58,
-98,
-90,
-39,
89,
11,
36,
-106,
-5,
100,
119,
-81,
-20,
103,
-107,
21,
108,
12,
-53,
4,
-111,
43,
124,
-58,
-23,
-5,
35,
52,
113,
-52,
98,
68,
86,
57,
83,
-58,
-43
] |
North, C. J.
Plaintiff township of Boyal Oak (hereinafter referred to as the township) and defendant city of Ferndale (hereinafter referred to as the city) are located in Oakland county. The defendant is a home rule city which adopted its charter in April, 1927. By elections held in February and June, 1928, the city annexed territory adjacent to its easterly boundary which prior to annexation was a part of plaintiff township. This annexed territory extends about two miles north and south, and in the southerly half its width east and west is three blocks of platted territory theretofore laid out in the township, and the northerly half of the annexed territory is about two-thirds as wide. With the exception of limited portions all of this territory was platted prior to its annexation. And prior to annexation suitable installations had been made for supplying water to a substantial portion of this annexed territory. The cost of installation, so far as it is involved in this suit, had been met by the owners of the property which it served, either by the lot owners (or the subdividers) paying $75 per lot or by special assessments which have been fully paid. Prior to the 1928 annexations and for approximately 11 years thereafter the water supply was furnished in the township (including the annexed territory) by the city of Detroit which adjoins the township on the south, and the charges for such service were collected from users by the city of Detroit. In 1938 the township by proper ordinance procedure created and thereafter began to operate its own water system, continuing however to take the supply from Detroit under a contract executed in April,' 1939. Upon taking over the water system the township proceeded to make additions thereto. In this connection it first issued $160,000 of water-supply-system revenue bonds; and later issued an additional $40,000 of such bonds. In October, 1939, both of these bond issues were refunded by an issue of $200,000 water-supply-system revenue refunding bonds. However, none of the proceeds of these bond issues were expended in extension or improvement of the water system within the annexed territory. Just prior to .the time this litigation arose, the system as operated by the township had approximately 6,200 users. Of the total 95 miles of mains operated by the township, approximately 5 per cent, is in the annexed territory. Since the annexation no extensions or improvements, except ordinary repairs, have been made by the township to the water system in the annexed territory; but after the township established its water system it read the meters and collected the water charges until July, 1942. Since the annexation, the city has made some repairs to the water system in the annexed territory and has installed 25 hydrants. More recently it has constructed additional water mains through which connection with the city’s supply system (which also comes from Detroit) has been made with a portion of the water pipes in the annexed _ territory. By so doing the city enabled itself to adequately furnish through township pipes water for domestic use and also for certain industrial plants located within the annexed territory whose use of water was much larger than that of ordinary domestic users. After this condition as to the city’s water system came about, a controversy arose between the city and the township as to which had the right to and which should furnish the water service to the consumers in a limited, portion of the annexed territory which could thus be reached and served by either the township or the city; and of course the revenue to be derived therefrom was involved.
The township insisted that it had a vested right in the established water system of the township notwithstanding the service was being rendered- in and the revenue collected in the territory which years before had been annexed to the city. On the other hand the city, asserting that at times the township water supply had been inadequate to meet the needs of industrial plants located in the disputed territory or to furnish adequate fire protection, contended that upon annexation the right to control the streets in which the water mains were laid became vested in the city, and that therefore it had the right to take over the operation of the water system and the revenue incident thereto. With this situation existing, the city, in July, 1942, closed the gates or valves in certain township supply mains through which the township water system had been supplying the portion of the system in the annexed territory which is in dispute in this suit. Thereupon the city began supplying water in the disputed area. The township protested such action on the part of the city as being an invasion of its rights and shortly filed the bill of complaint herein. The relief sought is that the city be enjoined from interfering in any manner with the township in operating and maintaining its water supply system and from interfering with the township in collecting accounts’ for water furnished in the annexed territory as the township had done in prior years. The suit was heard on the merits and a decree entered granting plaintiff the relief sought. Defendant has appealed.
For reasons hereinafter noted, we are of the opinion that the instant case' can be and should be adjudicated on the basis of the rights of plaintiff township and defendant city resulting from the annexation of township territory, and without present consideration or determination of rights of other parties which under other circumstances would necessitate their consideration and which might be controlling of decision. For example considerable space in the briefs is devoted to the rights of bondholders, the contention being made that a portion of the township water system cannot be segregated without unlawfully impairing the rights of bondholders. But the interests of bondholders, except possibly indirectly through the township, are not represented in this suit. They are not parties and final adjudication of their rights is not possible in this suitnotwithstanding an amicus curiae brief has been filed concerning rights of bondholders. Moreover, none of the bonds were issued until years after annexation; and the ordinance creating the water system on which the revenue bonds were issued contains the following: ‘ ‘ and it is hereby determined to take over, operate and maintain the water supply system now existing within the unincorporated portion of said township now operated by the board of water commissioners of the city of Detroit and to replace and extend certain existing water mains and appurtenances in said system, in accordance with the maps, plans and specifications caused to be prepared.” Obviously the expression limiting the system to that within the “unincorporated portion” of the township was wholly without meaning unless it excluded the portion of the water system within territory which had been annexed to the city years before. Further, the undisputed record discloses that the appraised value of the township water system is in excess of $750,000, and that the system in 8 months in 1942 produced, after deduction of operating cost, an income sufficient to pay bond retirement of nearly $11,000 and a further net income before depreciation of $28,701.25. Hence it appears that the segregation of only 5 per cent, of the township’s water system would not imperil the rights of bondholders.
Nor are we persuaded that the outcome of the instant case is materially affected by the existence of the 1939 contract between the plaintiff township and Detroit under which water is supplied for the towpship system, notwithstanding the contract among other things provided that in event township territory supplied with water should be annexed to Detroit during the life of the contract, all water mains, et cetera, supplied with water in such annexed territory would become the property of Detroit.
Other features of this record might be noted which clearly indicate that litigation of this character may arise under such a variety of circumstances that no hard and fast rule can be laid down which will furnish a guide for decision in each case. Instead each controversy of this character must be adjudicated in the light of all the material facts and the law applicable to the particular case. But as above noted we failed to find in the instant record facts or circumstances which prevent decision being based upon the rights and duties of the plaintiff township and defendant city respectively.
It is important to consider the character of ownership or of right of control that the township had in the water mains in suit at the time of annexation, and the character of such ownership or right of control, if any, that passed to the defendant city as the result of the annexation. We have already stated that the portion of the township water system in the annexed area was paid for with money obtained from property owners to whom the service was to be rendered. Under such circumstances we do not think it can be said with accuracy that the water system when installed became the property of the township in the sense that it was the absolute beneficial owner of the same. Nor would such absolute ownership pass to another municipality incident to subsequent annexation of tbe territory-served. In so stating we are mindful of the right of a municipality to encumber its water system by issuing revenue bonds, but such right is derived purely from statutory provisions. Act No. 94, Pub. Acts 1933, as amended by Act No, 66, Pub. Acts 1935 (Comp. Laws Supp. 1935, §2486-22 et seq., Stat. Arm. § 5.2731 et seq.). The apparent result is that the right of the municipality in whose streets water mains are laid at the expense of property owners to be served is that of a trustee which possesses and controls the system thus established subject to the beneficial interest of the property owners to be served. And in the absence of rights and circumstances other than those appearing in the instant record, if the area in which such a water system is installed passes by annexation to another municipality so circumstanced that it can operate the water system in the annexed territory without impairment of the rights of the property owners served, then the right and the duty to render such service passes to the annexing municipality; although, as has occurred in the instant case, the municipality from which the territory is taken may be permissively allowed to continue the service.
Counsel are quite in accord as to the character of a municipality’s property right under the circumstances of the instant case being of the limited nature above stated. In appellee’s brief it is stated as follows:
“It seems too clear for argument, that the township does not own the water supply system, in the sense that it is township property to be used or disposed of as the township authorities see fit. The title of the township is in the nature of that of a trustee, holding title to the property and assets of the water supply system in trust for water users and the inhabitants of the township, and, it operates the same in more or less of a private capacity under the authority of the statute, for the use and benefit of its citizens whose money was used for its purchase. ’ ’
Subsequent to the annexations there was an adjustment of property rights between the city and the township, but no claim of that character was presented relative to the existing water system in the annexed territory. Nor do we think that the rights of a municipality in a water system installed at the expense of the property owners to be served is such a property right, either real or personal, as should be considered in adjusting under the applicable statutes property right's of the respective municipalities incident to' annexations. Counsel for the respective parties agree as to this phase of the law. See County of Norfolk v. City of Portsmouth, 124 Va. 639, 659 (98 S. E. 755, 762). In passing it may be noted that the Michigan statute requiring adjustment of the rights of respective municipalities in personal property is not applicable in any event to the instant case because it was enacted subsequent to the annexation. City of Detroit v. Township of Redford, 253 Mich. 453. For statutory provisions just referred to, see 1 Comp. Laws 1929, § 2250, as amended by Act No. 233, Pub. Acts 1931 (Comp. Laws, Supp. 1940, §2250, Stat. Ann. §5.2093). We also note that our decision in Mitt on v. Jewell, 279 Mich. 9, is not in point in the instant case. The cited decision is urged as authority by the township in support of its contention that the water mains installed by subdividers in a public street are personal property, the ownership or control of which the township asserts did not pass to the city incident to annexation. But as we have indicated the instant controversy is between two municipalities, neither of which under the circumstances of the instant case has the absolute beneficial ownership of the water mains; whereas in the cited case the controversy was between private litigants, one of whom was found to be the actual owner of the water main involved.
There are numerous reasons for holding that, in the absence of extraordinary circumstances necessitating a contrary holding, annexation carries.with it the right of the annexing municipality to take over water service of the character here involved. For example, after annexation in the instant case it obviously became the duty of defendant city to protect the public health, welfare and safety of the inhabitants of the annexed territory. This at once placed the annexing municipality in the field of sanitation, including water supply and sewage disposal as well as responsibility for the streets in which such facilities are located.. It follows as a matter of public policy that in the absence of other circumstances or rights not present in the instant case, the right of control of water mains laid in the streets of the annexed territory passed to the annexing municipality.
Notwithstanding, as noted above, the control and operation of water mains installed under the circumstances of this case is a matter of the execution of a trust imposed upon and accepted by the municipality, a different result than that above indicated might necessarily follow if the annexing municipality was unable, to continue the service to the property owners who are beneficially interested therein. The same might be true if prior to annexation bondholders had become vested with rights in a complete or unified water system which rights would be impaired by severance of a part of the system. However, in such case there is an appli cable statutory provision which in part reads: “The severance of any lands from the jurisdiction of the borrower subsequent to the issuance of bonds under this act, shall be subject to the obligations created by the issuance of such bonds.” Act No. 94, § 32, Pub. Acts 1933, as amended by Act No. 210, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 2486-53, Stat. Ann. 1943 Cum. Supp. §5.2762). Likewise, decision in a case of this character might be controlled by the fact that a municipality from the proceeds of general taxation or assessments levied over the municipality at large had financed the construction of an operating plant, such as a pumping station, the value of which ;would be destroyed or greatly impaired by a division of the water system.
"We are mindful plaintiff herein makes the contention that the township had established a so-called “unified” system and that the alteration in the water system in the instant case will impair to some extent the remaining portion of the township’s system and to some extent increase the relative cost of operation. In this connection the township points out that the change which the city would make will create a limited number of ‘ ‘ dead ends ’ ’ in township mains, will impair circulation of water and reduce pressure. But it is important to note that the change in control and operation which the city seeks to bring about in no way interferes with the water supply to the remaining portion of the township from the Detroit water system. Under the facts of this case, we are of the opinion that the matters urged by plaintiff as impairments of the township’s water system and its reasonable operation are rather inconsequential and not sufficient to justify granting the relief sought by plaintiff.
We are not in accord with the township’s contention that it should be granted the injunctive relief sought on the ground that the defendant city is estopped from taking over the water system in the annexed territory. The township urges estoppel, first, on the ground that following the 1928 annexations “the city of Ferndale made no claim of ownership of any part of the township water supply system” for a period of approximately 14 years during which the township was permitted to operate the portion of its water system located within the annexed area. And, secondly, the township urges estoppel by reason of the following. In November, 1938, when the township was contemplating making a new contract with the water department of Detroit, which contract was consummated in April, 1939, the city manager of Ferndale wrote to the Detroit board of water commissioners the following letter:
‘ ‘ Gentlemen: I understand that Boyal Oak township is contemplating entering into a contract with your board whereby you will wholesale water to the township, and it will distribute the same through its own mains. Their distribution system will take in part of the east side of Ferndale. Due to our present lay-out of mains, it is impractical for us to take these small portions of our city into our system. It is agreeable to us that Boyal Oak township supply those services in our section of the city that is now being served direct by the city of Detroit, provided rates are not increased. ’ ’
Neither of the foregoing circumstances is of a character to justify holding that the defendant city is estopped from now taking over control of the portion of the water system in dispute. Under the facts disclosed in the instant case, nothing to the disadvantage of the township has resulted from its having been permitted to operate the water system previously constructed in the annexed territory and to collect the resulting revenues during the latter portion of the period intervening between the 1928 annexations and the time when the city decided to take over a part of the system. Nor do we find anything in the above-quoted communication by the Ferndale city manager to the Detroit board of water commissioners (not addressed to the plaintiff township) which, without any present complaint on the part of the city of Detroit, would work an estoppel in favor of plaintiff. While not necessary to decision, it may well be doubted whether the communication from the Ferndale city manager, who under the Ferndale city charter was at most only an administrative officer, was binding upon or controlling of the rights of any of the parties concerned. Droste v. City of Highland Park, 258 Mich. 1. Concerning the above-noted letter the Ferndale city manager testified: “At that time it was satisfactory to the city of Ferndale for the township of Royal Oak to continue temporarily the operation of the system.”
“A fundamental requisite of estoppel is that conduct, whether action or inaction, on the part of the one against whom the estoppel is asserted has worked to the disadvantage of the party who .urges this defense.” Kaminski v. Wayne County Board of Auditors, 287 Mich. 62, 66. See also, Burnham v. Kelley, 299 Mich. 452.
From the foregoing it follows that the decree entered in the circuit court must be reversed and one entered in this Court dismissing plaintiff’s bill of complaint; continuing, however, jurisdiction in the circuit court in chancery to make such further orders as shall be deemed necessary relative to disposition of the revenues collected for water service pending this suit, which revenues were sequestered by order of the trial court pending litigation. Defendant will have costs of both courts.
Starr, Wiest, Butzel, Bushnell, Sharpe, Boyles, and Reid, JJ., concurred. | [
-16,
124,
-40,
-20,
26,
-92,
24,
-78,
89,
-93,
-27,
-41,
-19,
74,
4,
37,
-89,
127,
81,
123,
-124,
-94,
114,
-62,
-46,
-77,
-21,
89,
-5,
125,
-12,
-43,
92,
112,
-117,
-99,
-42,
2,
-49,
-36,
-58,
-124,
-117,
64,
-7,
64,
52,
123,
48,
79,
81,
12,
-9,
47,
16,
107,
105,
32,
-3,
41,
-64,
119,
-83,
69,
-33,
22,
0,
70,
-104,
-127,
-22,
26,
-104,
117,
-78,
120,
115,
-73,
-122,
116,
1,
-103,
-116,
96,
-90,
0,
5,
-17,
-24,
-103,
12,
-5,
-99,
38,
-43,
120,
66,
-22,
-68,
-97,
116,
82,
-121,
126,
107,
4,
31,
108,
-121,
-82,
-92,
-61,
-50,
-28,
-62,
7,
-57,
35,
54,
68,
-61,
118,
92,
39,
58,
27,
95,
-39
] |
Fead, J.
Plaintiff sued Riddell as maker and Colby as indorser of a promissory note and attached a copy of the note to its declaration. It had judgment against Riddell on default and against Colby on trial. Colby reviews.
In his answer Colby denied execution of the note and further claimed that if his signature is genuine it was procured by fraud and deceit. He failed to file and serve an affidavit denying execution of the note as required by Court Rule No. 29 (1931), thereby admitting the genuineness of the signature. Lambert v. Smilansky, 246 Mich. 125.
On its main case plaintiff showed the circumstances under which Colby had indorsed the note. At the conclusion of plaintiff’s proofs, defendant moved for leave to amend his answer' by filing an affidavit of nonexecution. The court expressed itself as inclined to grant the motion. Counsel for plaintiff called attention to the fact that defendant had made no showing of cause for leave to amend, as required by the rule. Defendant made no reply to the objection and the court denied the motion. Defendant then presented his testimony and, at the conclusion of the proofs, he renewed his motion to amend the answer but made and offered no showing of cause for the omission or character of denial of execution, and the motion was denied. The case was submitted to the jury on the issue whether Colby had signed under circumstances which led him to believe that he was executing another kind of instrument. The jury held against him.
On motion for new trial Colby made affidavit that he believed his name was not placed on the note by himself; that if it is his genuine signature, he did not know how it came there; that he did not sign it knowing the purport of the instrument or intending to be bound on it; that his signature was not placed on the note through his own fault or negligence; but, if genuine, it was procured by fraud, trickery or deceit and under conditions unknown to him. He offered no reason for failure to seasonably file the required affidavit.
Did the court abuse its discretion in denying the amendment ? Obviously not.
When,, after his attention had been called to the lack of showing of cause for leave to amend, defendant failed to give a reason for the omission, the court naturally would assume that it had been intentional. At least, we cannot say that the court should have assumed that there was a good undisclosed reason.
The motion for new trial did not set out a reason for the failure to file the affidavit nor does it show such injustice to defendant in the ruling as requires a new trial. He does not unequivocally deny his signature. A new trial would be substantially a retrial on facts already held against him and there is no indication that the result would be different.
We are unable to find that the court abused its discretion and judgment is affirmed, with costs.
Nelson Sharpe, O. J., and Potter, Wiest, Butzel, Btjshnell, and Edward M. Sharpe, JJ., concurred. North, J., did not sit. | [
-80,
-7,
-24,
31,
-120,
32,
-88,
-102,
-16,
67,
35,
83,
-19,
-61,
-124,
119,
-25,
47,
85,
123,
-34,
-77,
38,
73,
-14,
-13,
-45,
85,
-75,
109,
-11,
93,
76,
32,
-62,
85,
-57,
-120,
-59,
-112,
-58,
5,
8,
-28,
-103,
8,
48,
19,
68,
13,
113,
-42,
-13,
43,
55,
71,
-87,
44,
94,
-67,
-56,
-75,
-99,
13,
121,
18,
-77,
38,
-82,
73,
-6,
14,
-120,
17,
3,
-7,
54,
-66,
-126,
116,
41,
56,
0,
102,
107,
-127,
33,
-49,
-88,
-36,
47,
127,
15,
-89,
83,
77,
105,
41,
-106,
-39,
112,
16,
38,
114,
126,
-99,
29,
116,
2,
-101,
-126,
-109,
62,
126,
-100,
-117,
-25,
-125,
16,
113,
-49,
96,
92,
103,
57,
-101,
-113,
-73
] |
Butzel, J.
On January 9, 1941, defendant was driving on Eight Mile road in the city of Detroit, Michigan, and, on reaching Meyers road, turned south. He collided with plaintiff’s decedent at the intersection of St. Martins avenue and Meyers road.' St. Martins runs east and west, parallel to and about 5 or 6 blocks south of Eight Mile road. Meyers road is a modern hard-surfaced highway; St. Martins, however, is an unimproved gravel road. Exhibits show that the'east side of Meyers immediately north of St. Martins avenue is lined with bushes and trees, though it is claimed that a driver on Meyers road could look over the top of the growth and see a car coming from the east on St. Martins avenue. The bushes are fairly high. Defendant, as he approached St. Martins, was driving his car south on Meyers road at between 25 and 30 miles an hour. He was on the right side of Meyers road, closer to the center line than to the west curb. As he approached the St. Martins crossing, plaintiff’s decedent drove his Ford pickup truck from the east on St. Martins into Meyers road. Defendant applied Ms brake, Ms car skidded straight ahead and he threw ont his arm in front of his wife to prevent her from going through the windshield. He made the statement at the time of the accident that he did not see .the truck until just before he struck it. Defendant’s car curved to the right or west just before the impact. It stopped at the intersection with the front end toward the west and the rear'end out in Meyers road. At the time of the impact, decedent’s truck was from 3 to 5 feet west of the center line of Meyers road. Decedent was very severely injured and as a result died 5 weeks later.
Plaintiff relies entirely upon the testimony of one Bart L. Del Duca despite the fact that his testimony was much discredited. However, on this appeal we must accept his testimony in the most favor-’ able light. He testified that on the day in question the pavement on Meyers road was covered with ice or packed snow. Shortly after he turned into Meyers road from Eight Mile road and when he was only half a block south of Eight Mile road, the defendant’s car passed him. Prom the latter intersection, St. Martins avenue is only a distance of 5 or 6 city blocks. The distance between St. Martins and the next cross road north and parallel to it is between ■ 600 and 800 feet. Del Duca further testified that he was a block and a half north of St. Martins when the accident happened. He subsequently stated that he was a block away, that he saw decedent’s pickup •truck enter Meyers road, that it was jerking and traveling at no greater speed than one-half mile per hour. It slowed down and appeared to stop at the middle of the intersection and was struck by defendant’s car. It was struck with such force as to drive it across the road and into a telephone pole. The left front fender of defendant’s car struck dece dent’s truck between the right front fender and the door. At the time of the collision, decedent’s truck had passed the middle of the intersection and had reached the west lane of travel on Meyers road. Notwithstanding the fact that the testimony of Del Duca is unsatisfactory, we take it at full value in coming to our conclusion. He testified that it took him from 2 to 5 minutes to travel the block and a half between him and the scene of the accident, and that he saw it, removed his foot from the accelerator and slowed down. He further testified that when the pickup truck was just west of the. center line of Meyers road, defendant’s car was in the middle of the block on Meyers road between St. Martins and Pembroke, the street immediately to the north. He later testified that the distance was less than half a block. Defendant made a motion for a directed verdict and subsequently for a judgment non obstante veredicto after the jury returned a verdict of $5,000 in plaintiff’s favor. Both motions were denied.
The physical facts are so strong that we must hold that plaintiff’s decedent was guilty of contributory negligence. 'Plaintiff makes no claim of subsequent negligence. Accepting Del Duca’s testimony as given and even assuming that defendant was guilty of negligence, we do not believe that reasonable minds can possibly differ as to the contributory negligence of plaintiff’s decedent. Meyers road is an open road 40 feet in width and on a clear day, such as the day of the accident, one can see a distance of a great many blocks. There was no traffic or other obstructions to hinder vision. If DiMatteo had a defective car, he had no right to drive out into the roadway when he could plainly see a rapidly-approaching automobile nearing the intersection. Accepting Del Duca’s testimony that decedent’s truck was jerking, was traveling at no greater speed than one-half mile an hour, slowed down as it crossed the. intersection and appeared to stop, we find that decedent was guilty of contributory negligence in driving his car in this manner. .If it were true that he was going one-half mile per hour as he entered the intersection, defendant’s car would have been many hundreds of feet beyond the intersection before decedent could reach the west side of Meyers road. One cannot enter an intersection and see a rapidly-approaching car nearing him and then just slow down.
The judge denied a motion non obstante veredicto relying on Stephens v. Koprowski, 295 Mich. 213, and Strong v. Kittenger, 300 Mich. 126. In the first case cited, defendant changed the position of his vehicle after plaintiff made an observation and thought it was safe to proceed. In the second case, cited, decedent’s driver testified'that, while he was about 50 to 75 feet away, defendant’s car was about 150 to 200 feet from the intersection, and that he believed that defendant’s car slowed down and was going to stop and give him the right of way. These cases do not resemble the instant one in any way. They are cases in which the minds of reasonable men might differ. In Stuck v. Tice, 291 Mich. 486, we said:
“Normally, under conditions such as these, when two cars collide on a bright clear day at the intersection of thoroughfares of equal importance, both drivers are to blame. ’ ’
This is particularly applicable to the facts in the instant case. It would serve no good purpose to discuss the other cases referred to and distinguish them.
In the brief for plaintiff the question is asked:
“"Would a reasonably prudent man have continued the 20 feet across Meyers when a light- colored sedan was 600 to 800 feet away going at 25 to 30 miles per hour to his right under all the circumstances ? ’ ’
Plaintiff claims that the jury found that this was a reasonable act. There however should be added to the question propounded “Whether under these circumstances would a reasonably prudent man travel at the rate of half a mile per hour in crossing these 20 feet.” At the rate he was going, he could have stopped his car or accelerated' its speed and the accident would not have occurred. We hold that, proceeding at this rate of speed, decedent was guilty of contributory negligence as a matter of law and plaintiff cannot recover.
Judgment for plaintiff is reversed, with costs of both courts and without a new trial.
North, C. J., arid Starr, Wiest, Bushnell, Boyles, and Beid, JJ., concurred with Butzel, J. Sharpe, J., concurred in the result. | [
-16,
-40,
72,
-18,
26,
32,
42,
74,
81,
-43,
-75,
-5,
-81,
-37,
93,
37,
-81,
61,
80,
107,
-75,
-93,
86,
3,
-14,
-77,
107,
30,
-112,
77,
116,
49,
77,
32,
-53,
29,
-126,
8,
-115,
90,
68,
30,
-87,
116,
25,
17,
52,
56,
4,
15,
117,
-113,
-57,
14,
24,
-17,
9,
40,
-17,
40,
-63,
112,
-35,
21,
119,
34,
-96,
68,
-100,
1,
-40,
24,
-104,
-75,
48,
120,
113,
-90,
-46,
-12,
97,
-103,
12,
34,
-94,
1,
69,
-83,
-11,
-103,
14,
122,
-115,
-89,
126,
73,
1,
36,
-97,
-97,
120,
84,
46,
-22,
-52,
85,
93,
104,
7,
-21,
-76,
-111,
-17,
-44,
-108,
1,
-29,
9,
54,
113,
-50,
-42,
92,
68,
124,
-97,
19,
-75
] |
Btjtzbl, J.
Frank A. Stone delivered certain bonds to Karl J. Heinzelman, a broker doing business in Grand Eapids, Michigan, as K. J. Heinzelman & Company, expressly directing him to sell them and invest the proceeds in other designated securities. Heinzelman sold the bonds, but misappropriated the proceeds. The present action, and other companion suits, were brought against the Indemnity Insurance Company of North America, a Pennsylvania corporation, as surety on a $10,000 bond given by Heinzelman as principal in accordance with 2 Comp. Laws 1929, § 9790, a section of Act No. 220, Pub. Acts 1923, as amended, known as the blue sky law. The embezzlement and the amounts thereof are admitted, but defendant claims that the purpose of the bond is solely to prevent dealings in securities not validated by the Michigan securities commission in accordance with the blue sky law. The case was tried without a jury and judgment rendered against the defendant.
The questions raised in the court below are again presented on appeal. Notwithstanding our holdings in the cases of Timmerman v. Hartford Accident & Indemnity Co., 243 Mich. 338; Dunnette v. Henry L. Doherty & Co., 252 Mich. 597; Timmerman v. Bultman, 253 Mich. 99; Schroetenboer v. Bultmam, 253 Mich. 108; Nienhuis v. Bultman, 253 Mich. 109, and Green v. Fidelity & Casualty Co. of New York, 261 Mich. 508, appellant claims that they are not determinative of the instant case, either because the precise question was not raised, or because the conditions in indemnity bonds were much broader in scope than the one in the bond upon which this suit is brought. It provided that K. J. Heinzelman & Company and all of their registered salesmen would faithfully comply with the provisions of Act No. 220, Pub. Acts 1923, as amended (2 Comp. Laws 1929, § 9769 et seq.), known as the blue sky law. Appellant largely relies upon the case of Blumenthal v. Larson, 79 Cal. App. 726 (251 Pac. 241), referred to with approval in Mitchell v. Smith, 204 Cal. 197 (267 Pac. 540). Both of these cases were expressly decided on the basis of the “blue sky” law of California in effect at the time that the liability of the brokers arose, and the refusal of the court to permit a recovery against the sureties was based on the fact that the statute under which the bond was given was enacted solely for the purpose of preventing the sales of unapproved corporate stock. In Blumenthal v. Larson, supra, attention was called to the case of Zapf v. Ridenour, 198 Iowa, 1006 (200 N. W. 618), where the surety was held liable under a statute broader in its scope. In Mitchell v. Smith, supra, the court particularly pointed out that the case was decided in accordance with the law prior to the enactment of the amendment to the corporate securities act in 1925, which amendment' extended the liability of the surety upon a bond given thereunder to include responsibility for the honest and faithful performance of all obligations, etc., by the broker. See Nittler v. Continental Casualty Co., 94 Cal. App. 498 (271 Pac. 555, 272 Pac. 309).
Considerable variance will be found both in the purport and the language of the blue sky laws of the various states. The blue sky law of Michigan (Act No. 220, Pub. Acts 1923, as amended) not only regulates and supervises the issuance, sale and disposition of securities, but also licenses and regulates the business of dealers and salesmen of securities. Section 3 of the act (2 Comp. Laws 1929, § 9771) states that the provisions of the statute should be liberally construed so as to prevent fraud, deception and imposition on purchasers of securities. Subdivision 2 of the act (2 Comp. Laws 1929, §§ 9789-9795), regulates the conduct of dealers and salesmen, and provides for the suspension or revocation of licenses under certain conditions. Section 9790 provides that every applicant for a license must give a $10,-000 bond conditioned upon a faithful compliance with the provisions of the act, and further requires each applicant to satisfy the commission that his business has been or will be honestly conducted, that he is financially solvent, and that he has such reputation for honesty and integrity as will reasonably insure honest treatment of the public with whom such dealer transacts business. Section 24 of the act (2 Comp. Laws 1929, § 9792) cites as one of the reasons for suspension or revocation, “practices of any sort tending toward defrauding the public,” and provides that “any act or omission by any licensed broker or salesman which is herein made a ground for suspension or revocation of the license shall be deemed a violation of this act and punishable accordingly.” We cannot conceive of any practice tending more toward defrauding the public than the admitted conduct of the broker in this case. The misappropriation by the broker of funds which came into his hands' under the express duty of applying them to the purchase of other securities for plaintiff was a direct violation of the statute, and constitutes one of the acts against which the bond was intended to furnish protection.
Judgment against defendant is affirmed, with costs to plaintiff.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, and Edward M. Sharpe, JJ., concurred. Bushnell, J., did not sit. | [
112,
126,
-12,
-3,
26,
-96,
58,
-102,
115,
-16,
-89,
83,
-7,
-10,
-43,
47,
-12,
-67,
96,
98,
-76,
-77,
18,
-22,
-42,
-109,
-55,
-59,
52,
79,
-10,
-35,
12,
48,
66,
85,
-58,
-126,
-59,
24,
-114,
12,
-70,
96,
-39,
80,
48,
-33,
20,
75,
113,
-100,
-29,
39,
29,
103,
13,
46,
-21,
-3,
-64,
-15,
-87,
-123,
123,
22,
-127,
68,
-104,
103,
-48,
-81,
-104,
114,
2,
-56,
114,
-90,
86,
116,
105,
41,
-120,
98,
39,
-111,
17,
-83,
-12,
24,
-82,
-25,
-115,
-81,
-12,
88,
2,
8,
-67,
-97,
86,
9,
-121,
126,
-22,
92,
30,
108,
7,
-53,
-12,
-13,
-83,
116,
28,
-107,
-9,
-126,
50,
80,
-50,
36,
76,
55,
122,
31,
12,
-27
] |
Edward M. Sharpe, J.
This is an action to quiet title. In 1859, one Elizabeth McCarthy became the owner of the seven and three-quarter-acre tract of land involved. She died in 1892 and her estate was never probated although in 1924 the probate court made an order determining her heirs. Plaintiffs are her heirs.
Defendants are the heirs of the grantee of a tax deed to the land in question issued in 1908 for the taxes of 1903. Title under the tax deed was never perfected, but defendant Mary Westcott claims title to the property by adverse possession and filed a cross-bill to that effect. Mrs. Westcott relies upon the following facts to establish her claim.
In 1901 Mary Westcott became the owner of a quarter-acre lot on the east side and adjoining the disputed property. The disputed tract is bounded on the south side by State highway M-22 and on the west side by a street of the village of Glen Arbor. The property has never been cleared or cultivated. It is heavily wooded with scrub oak and pine, but the timber has little, if any, commercial value. The chief value of the land is for resort purposes, since it is near Lake Michigan and Glen Lake.
When Mary Westcott moved on her quarter acre, there was an old barn over the west line of her property and located on the disputed tract. Mrs. Westcott used this barn, repaired it and built an addition to it. She also fenced in a tract of land between the barn and her lot, about 12 square rods, which was used as a garden. At times she picked up dead limbs and cut some brush for firewood. Once she sold some dead timber for saw logs. She paid the taxes on the land from 1908 to 1924 when the plaintiffs, learning of their rights as heirs of Elizabeth McCarthy, began to pay taxes. The land was never fenced and cattle ran at large thereon. The public used this property and several well-defined trails were made across the tract.
The lower court field tfiat tfie cross-plaintiff fiad failed to establish, her claim to tfie land and she now appeals.
Tfie determination of what acts or uses are sufficient to constitute adverse possession depends upon the facts in each case, yet it was said in Yelverton v. Steele, 40 Mich. 538, 541:
“The doctrine which sanctions tfie divestiture of tfie true owner by hostile occupancy is to be taken strictly, and tfie case is not to be made out by inference but by clear and cogent proof. ’ ’
Tfie extent and kind of possession necessary was defined in Paldi v. Paldi, 95 Mich. 410, 412, where the court said:
“Adverse possession, to give title, must be actual, continued, visible, notorious, distinct and hostile possession, and a finding of adverse possession must set forth in explicit terms a state of facts tfiat will satisfy tfie legal definition. ’ ’
Defendant relies upon the payment of taxes as an element of her claim of adverse possession. This court has said in Whitaker v. Erie Shooting Club, 102 Mich 454, 460:
“It may well be conceded tfiat paying taxes, or asserting title, or tfie common understanding in tfie neighborhood, or making surveys, or an occasional renting for trapping and shooting, is not sufficient to establish title by adverse possession.”
See, also, Judson v. Duffy, 96 Mich. 255; John Widdicomb Co. v. Card, 218 Mich. 72 (22 A. L. R. 545); McVannel v. Pure Oil Co., 262 Mich. 518.
Tfie nature of tfie acts necessary to constitute adverse possession depends to large extent upon tfie character of tfie premises. Ewing’s Lessees v. Burnet, 11 Pet. (36 U. S.) 41; Judson v. Duffy, supra; Whitaker v. Erie Shooting Club, supra; Murray v. Hudson, 65 Mich. 670; Kingston v. Guck, 155 Mich. 264. In the instant case the land was wild and not suitable for cultivation or timber cutting. It was useful chiefly as a site for a residence or as a park or grove adjacent to a residence. The owner of the record title need not, of course, take any affirmative possession of his property but may simply hold it for future use or sale. However, one claiming title by adverse possession must show positive and affirmative acts of ownership. Mere occasional trespasses are not sufficient. Dedenbach v. Talbot, 244 Mich. 140; Doctor v. Turner, 251 Mich. 175; Duck v. McQueen, 263 Mich. 325.
The record does not show sufficient acts of possession on the part of the cross-plaintiff. Mary Westcott did little more on this land than was done by the public in general. She pastured cattle thereon at one time, but so did many others-. She gathered up dead brush for use as firewood but this amounted to no more than an occasional trespass, and no particular effort was made to beautify the grove. She made no attempt to keep other persons off the premises or to prevent the acquisition of prescriptive rights of way by adjoining landowners.
However, an examination of the record discloses that the defendant Mary Westcott has had actual, hostile and distinct possession to the small part of the land enclosed as a garden and the site occupied by the old barn. Title to this part should be awarded her. The cause is remanded to the lower court for an order in accordance herewith. If necessary, further testimony may be taken to ascertain the exact description of the portion of the tract awarded to defendant. Costs to plaintiff.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Butzel, and Bitshnell, JJ., concurred. | [
-48,
-2,
-36,
-83,
-87,
-32,
40,
-72,
98,
-101,
37,
87,
45,
-64,
9,
45,
103,
121,
65,
107,
-57,
-93,
83,
-125,
-44,
-45,
-121,
79,
57,
76,
117,
71,
76,
32,
-54,
53,
70,
-128,
-59,
90,
14,
-115,
-88,
73,
-39,
-16,
52,
107,
68,
77,
81,
-18,
-73,
47,
52,
99,
-88,
40,
107,
-83,
-80,
-68,
-69,
-124,
91,
10,
-127,
86,
-88,
-61,
-56,
8,
-112,
53,
0,
-24,
115,
-74,
-42,
116,
-121,
-103,
56,
36,
102,
25,
109,
-1,
-24,
30,
46,
126,
25,
37,
70,
24,
67,
106,
-75,
-97,
100,
64,
103,
122,
-20,
-123,
92,
108,
-91,
-49,
-42,
-79,
13,
60,
-120,
3,
-41,
-89,
50,
113,
-51,
74,
92,
35,
57,
27,
-113,
-7
] |
Sharpe, J.
Plaintiff filed a bill of complaint to have his marriage to defendant declared void. The facts are not in dispute. A marriage ceremony between Gilbert H. Evans and Betty Jane Ross was performed on April 16, 1943, at Jackson, Michigan. The application for a license stated that Gilbert H. Evans was 27 years of age and that Betty Jane Ross was 19 years of age. As a matter of fact Betty Jane Ross was 15 years of age at the time of the marriage.. The parties separated prior to her 16th birthday and have not cohabited together since. The bill of complaint was filed prior to defendant’s 16th birthday. When the cause came on for trial, and after the taking of some testimony, the trial judge dismissed the bill of complaint by virtue of 3 Comp. Laws 1929, § 12753 (Stat. Ann. § 25.110), which reads as follows:
“A bill to annul a marriage on the ground that one of the. parties was under the age of legal consent, may be exhibited by the parent or guardian entitled to the custody of such minor; or by the next friend of such minor; but in no case shall such marriage be annulled on the application of a party who was of the age of legal consent at the time of the marriage, nor when it shall appear that the parties, after they had attained the age of consent, had freely cohabited as man and wife.”
Plaintiff appeals and urges that 3 Comp. Laws 1929, § 12704 (Stat. Ann. § 25.21), repeals by implication 3 Comp. Laws 1929, § 12753 (Stat. Ann. § 25.110), and that under the later statute a man of full age may bring an action to have a marriage to a girl under 16 years of age declared void.
Prior to the enactment of Act No. 352, Pub. Acts 1921 (3 Comp. Laws 1929r §12704 [Stat. Ann. §25.21]), the law as to the age of consent read as follows:
‘ ‘ Every male who shall have attained the full age of eighteen years, and every female who shall have attained the full age of sixteen years, shall be capable in law of contracting marriage, if otherwise competent.” 3 Comp. Laws 1929, §12690 (Stat. Ann. §25.1).
The effect of a marriage solemnized between parties under legal age was as follows:
“In case of a marriage solemnized when either of the parties was under the age of legal consent, if they shall separate during such nonage, and not cohabit together afterwards, or in case the consent of one of the parties was obtained by force or fraud, and there shall have been no subsequent voluntary-cohabitation of the parties, the marriage shall be deemed void without any decree of divorce or other legal process.” 3 Comp. Laws 1929, §12724 (Stat. Ann. §25.82).
The law limiting the rights of the applicant for annulment of marriage was as stated in 3 Comp. Laws 1929, §12753 (Stat. Ann. §25.110).
Under the above act the marriage was voidable. The minor was the only person in whose behalf an action could be commenced.
In May v. Meade, 236 Mich. 109, the validity of a marriage consummated prior to the effective date of Act No. 352, Pub. Acts 1921, was questioned in a workmen’s compensation case. The husband and wife cohabited together after the minor attained the age of consent. We there held that by reason of cohabitation of the parties after the minor became of marriageable age the marriage became valid ah initio and the husband could not assert its invalidity.
See, also, People v. Slack, 15 Mich. 193; People v. Pizzura, 211 Mich. 71 (10 A. L. R. 405).
The following is the pertinent part of Act No. 352, Pub.. Acts 1921’ (3 Comp. Laws 1929, § 12704 [Stat. Ann. § 25.21]):
“No marriage, common law or ceremonial, in this State shall be contracted where the female is under the. full age of 16 years, and any such marriage, if entered into, shall be void.”
It must be presumed that the legislature in enacting the above act had in mind the decisions of our court upon the previous acts referred to. The language used strongly indicates that it was the intention of the legislature to make such marriages void, except marriages performed by the judge of probate.
It follows that 3 Comp. Laws 1929, § 12753 (Stat. Ann. § 25,110), being in conflict with 3 Comp. Laws 1929', §12704 (Stat. Ann. 25.21), the latter repeals the former by implication.
The marriage being void, there was nothing to annul, but plaintiff had a right to an adjudication as to the date of the birth of Betty Jane Ross. If Betty Jane Ross was under the age of consent at the time the marriage ceremony was entered into, then an order should be entered determining said marriage to be void.
The cause is remanded to the trial court for further proceedings in harmony with this opinion. No costs are allowed as the construction of a statute is involved.
North, C. J., and Starr, Butzel, Bushnell, Boyles, and Reid, JJ.," concurred with Sharpe, J. Wiest, J., concurred in the result.
3 Comp. Laws 1929, § 12753, is Rev. Stat. 1846, chap. 84, § 34, and was last amended by Act No. 150, Pub. Aets 1848.—Reporter, | [
-80,
106,
-52,
-52,
-86,
-94,
-114,
-100,
-14,
-45,
-93,
-45,
-19,
82,
20,
125,
98,
47,
81,
106,
-106,
-77,
22,
96,
54,
-77,
-37,
-33,
-79,
79,
-12,
119,
72,
120,
-62,
-111,
66,
-54,
-55,
84,
-122,
-125,
-119,
-20,
-111,
-62,
52,
123,
80,
31,
81,
-66,
-109,
47,
124,
-13,
40,
104,
-53,
-71,
-48,
100,
-113,
28,
77,
54,
-77,
36,
-98,
-124,
114,
78,
24,
17,
0,
-8,
115,
-122,
-122,
118,
111,
-69,
0,
114,
102,
0,
101,
-1,
-80,
-120,
31,
122,
-99,
-89,
-102,
73,
90,
-64,
-68,
-97,
96,
80,
47,
122,
97,
79,
63,
-84,
8,
-117,
-122,
-103,
78,
54,
-100,
11,
-29,
-63,
16,
117,
-49,
100,
94,
119,
57,
-37,
-97,
-20
] |
Per Curiam.
Upon this appeal, defendant claims (1) a right to be advised of an absolute constitutional right to remain silent and (2) a right to be advised of the right to counsel at the time when he was being held after arrest and prior to judicial proceedings charging him with breaking and entering in the nighttime with intent to commit a larceny. CL 1948, § 750.110 (Stat Ann 1962 Rev § 28.305). The larceny occurred about 3 a.m., September 9, 1963. Defendant was found in the building. Although Fordyce was advised any statement must be voluntary and could be used against him, he was not advised of the two rights here claimed. The police officers who apprehended him obtained oral admissions at the time of his arrest. Fordyce signed a typed confession later the same day. Except as stated above, there is no dispute as to the voluntariness of defendant’s confession.
On June 13, 1966, the Supreme Court of the United States in the case of Miranda v. Arizona, 384 US 436 (86 S Ct 1602, 16 L ed 2d 694, 10 ALR 3d 974), held (pp 478, 479):
“When an individual is taken into custody or otherwise deprived of his freedom by the author ities and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”
On June 20,1966, the Supreme Court of the United States in the case of Johnson v. New Jersey, 384 US 719 (86 S Ct 1772, 16 L ed 2d 882), held that the guidelines set forth in Miranda are available only to persons whose trials had not begun as of June 13, 1966. Fordyce was tried in circuit court for Ingham county by jury trial beginning April 20, 1964. On April 23, 1964, the jury returned a verdict of guilty.
The Supreme Court of the United States stated in Johnson, supra (p 731):
“Retroactive application of Escobedo and Miranda would seriously disrupt the administration of our criminal laws. It would require the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously an nounced constitutional standards. Prior to Escobedo and Miranda, few States were under any enforced compulsion on account of local law to grant requests for the assistance of counsel or to advise accused persons of their privilege against self-incrimination.”
In Michigan, prior to Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L ed 2d 977), neither of the rights contended for by defendant (to be advised of the right to remain silent and to be advised of the right to counsel) was recognized.
Fordyce was represented by legal counsel on trial and at the preliminary examination. The police officers testified he was apprehended inside a medical building when a routine inspection disclosed a breaking and entering. Following his arrest, a search of his person revealed possession of coins which Dr. B. Wayne Bingham testified came from his coin collection. The desk where the coin collection was kept had been ransacked. Fordyce’s typed and signed statement contains the following questions and answers:
“Q. Do you realize that this statement you are about to give must he given voluntarily without having received any threats or promises from anyone?
“A. Yes.
“Q. Do you understand that the statement may he used against you in any action that may follow?
“A. Yes.”
Fordyce was found guilty by trustworthy evidence in accordance with previously established constitutional standards. Since his case does not come within the rules announced in Miranda, and his confession is not otherwise claimed to he an involuntary one, there is no need to remand for de termination of voluntariness in accordance with. People v. Walker (On Rehearing) (1965), 374 Mich 331.
Judgment affirmed.
T. M. Kavanagh, C. J., and Kelly, Black, Souris, Smith, O’Hara, and Adams, JJ., concurred.
Dethmers, J., did not sit.
This seetion was amended by PA 1964, No 133, which is not applicable herein.
See US Const, Am 5, Mieli Const 1963, art 1, § 17.—Reporter. | [
-112,
-7,
-4,
-66,
27,
97,
58,
-76,
-45,
-29,
102,
51,
107,
74,
4,
46,
-13,
119,
87,
113,
-44,
-76,
119,
1,
-10,
-5,
90,
-44,
-73,
-49,
-20,
-67,
77,
96,
-118,
-47,
98,
-56,
-27,
94,
-114,
1,
-104,
81,
-13,
16,
32,
27,
92,
15,
17,
94,
-29,
42,
18,
-55,
41,
60,
75,
-107,
112,
89,
-97,
-99,
-51,
52,
-77,
6,
-100,
-121,
-16,
31,
-104,
17,
1,
-22,
115,
-76,
3,
117,
75,
-117,
-84,
110,
-30,
-96,
41,
115,
-80,
-63,
62,
-38,
-99,
39,
80,
69,
73,
76,
-106,
-35,
121,
4,
39,
-8,
-47,
-35,
89,
108,
9,
-113,
-108,
-77,
77,
120,
-106,
-46,
-21,
33,
32,
49,
-58,
106,
84,
67,
-5,
-109,
-50,
-43
] |
Reid, J..
Defendants upon leave granted took an appeal in the nature of certiorari from an award by the department ■ of labor and industry granting plaintiff compensation of $21 per week for 150 weeks for the specific loss of industrial vision in plaintiff’s left eye from April 25, 1945. Defendants raise the single question that the plaintiff as a matter of law did not make timely claim for compensation as required by part 2, § 15 of the workmen’s compensation act, 2 Comp. Laws 1929, § 8431, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8431, Stat. Ann. 1946 Cum. Supp. § 17.165).
Plaintiff was employed as a truck driver by Harry Johnson, who was broker for the defendant Associated Truck Lines. His work consisted of hauling brass rods from a factory in Belding to a foundry in Detroit, and returning to Belding with brass borings. On March 4,1944, at about 10:30 a.m., plaintiff and a fellow employee were picking up burlap bags containing brass borings from the ground to put on the truck, and a piece. of brass was blown. into plaintiff’s left eye. He immediately removed the particle with his fingers but the eye continued to smart and water. When he arrived home, he reported the injury to his superior, Harry Johnson, who sent plaintiff to Dr. William Bird at Greenville. Dr. Bird treated plaintiff’s eye with drops and plaintiff went back to him for treatment two or three times. Plaintiff’s eye was getting worse all the time but plaintiff was away from his work less than a week. Dr. Bird recommended that plaintiff see a physician in Grand Bapids.
On April 11,1944, plaintiff went to Grand Bapids, ■and was advised by Mr. Holtz, safety director of Associated Truck Lines, to consult Dr. Gilbert, a Grand Bapids eye specialist. On the same day plaintiff was examined by Dr. Gilbert, who gave him a prescription for eye drops. Plaintiff returned to Dr. Gilbert at Grand Bapids five or' six times over a period of several months. Although plaintiff could not see out of the left eye when he went’to Dr. Gilbert on April 11, 1944, he was assured by Dr. Gilbert that it was just a matter of time until the vision would come back; Dr. Gilbert never told plaintiff he was going to lose his sight and his advice during all the time plaintiff visited him was that it was just a matter of time until the sight would get better.
About a month and a half after the accident plaintiff was given work driving around the city of Ionia, where he remained until the latter part of September, 1944. During this period he could not stand to be in the sunlight and could not endure bright lights of any kind and was required to wear dark glasses . all the time. He had a prescription given him by Dr. Gilbert filled as late as September 11, 1944. Plaintiff continued to use Dr. Gilbert’s prescription for months on Dr. Gilbert’s advice and continued to use it after he had moved to Lansing and until some time in November, 1944. In' September, 1944, plaintiff was transferred to Lansing*,- where he was employed as night dispatcher for the defendant, in which employment he continued to work until some time in February, 1945.
In April, 1945, plaintiff went to' Dr. Wilson in Lansing because he had a piece of dirt in his other (right) eye, The doctor noticed the left eye and after examining it, informed plaintiff that he had permanently lost, the sight of the left eye.. Following his call on Dr. Wilson, plaintiff consulted an attorney and then made another trip to Grand Rapids on April 25, 1945, at defendants’ request, to have a- further examination by Dr. Gilbert, the arrangement for the trip being made by Mr. Carr, the agent of the defendant Hartford Accident &' Indemnity Company. Dr. Wilson testified that plaintiff had a cornea keratitis with a large scar at the base of the pupil and with a cataract lens, which comes from inflammation. Plaintiff 'testified that he did not know until he consulted Dr. Wilson in April, 1945, that he had lost the sight' of the left eye permanently. See Henderson v. Consumers Power Co., 301 Mich. 564.
The statute requires the claim for compensation to be made within six months after the occurrence of the injury, but also contains the following proviso, part 2, § 15:
“Provided, however, that in all cases in which the employer has been given notice of the injury, or has notice or knowledge of the same within three months' after *the happening thereof, but the actual injury, disability or incapacity ■ does not develop or make itself apparent within six months after the happening of the injury, but does develop and make itself apparent at some date subsequent to six months after the happening of the same, claim for compensation may be made within three months after the actual injury, disability or incapacity develops or' makes itself apparent to the injured employee, but' no such claim shall be valid or effectual for any purpose unless made within two years from the date the personal injury was sustained.”
Defendants cite and rely upon Quick v. Dow Chemical Co., 293 Mich. 215, in which we say at, p. 218:
“The question is, if an injured workman finds himself totally disabled any time within six months after an accident, whether or not he must make his claim for compensation orally or written within such six months? * * * While plaintiff Quick’s X-ray picture was not taken until after the expiration of six months following the accident, his testimony shows that the disability had developed and made itself apparent prior to the expiration of six months.” (italics supplied)
In that case the plaintiff Quick knew of his total disablement within the six months.
In the instant case, decision depends on the fixing of the time when the permanent loss of industrial vision in the left eye became apparent to plaintiff. The record indicates that the inability of nature to heal the eye and restore its vision was not determinable within the six months period. The instant case falls within the quoted proviso. The permanency of loss of vision in the left eye is not shown to have existed and in any event had not made itself apparent within six months after the happening of the injury, to the knowledge and observation of the attending doctors, nor of the plaintiff, nor so far as this record discloses, of any other person. To rule with defendants would he equivalent to saying that plaintiff should have filed a claim for permanent loss of vision of his left eye at a time when he himself did not believe he had suffered such loss and when the doctor whom defendants recommended that he consult' was advising plaintiff that he had not suffered such loss.
The department found, “That permanent loss of vision was first known to the plaintiff on or about April 25, 1945 when it was discovered by Dr. Wilson,” and further found that plaintiff’s claim for compensation was timely filed on June 6, 1945. There is testimony in the record to support such award and it is affirmed. Costs to plaintiff.
Btjtzel, C. J., and Carr, Bushnell, Sharpe, Boyles, North, and Dethmers, JJ., concurred. | [
-112,
-6,
-36,
-115,
8,
96,
106,
26,
81,
-61,
-89,
83,
-25,
-10,
29,
45,
-25,
53,
-43,
107,
92,
-93,
19,
2,
-13,
-109,
107,
-59,
-71,
75,
-12,
-45,
4,
48,
2,
-108,
-26,
-56,
-60,
84,
-60,
5,
-85,
-20,
57,
0,
56,
58,
-44,
79,
49,
-98,
98,
46,
28,
-33,
44,
44,
123,
-84,
-47,
-15,
-125,
13,
-19,
17,
-125,
4,
-100,
7,
-40,
15,
-104,
49,
-95,
-88,
80,
-74,
-61,
-12,
33,
-71,
0,
98,
98,
-80,
21,
-27,
120,
-104,
62,
-2,
-113,
-91,
-109,
16,
91,
-125,
-100,
-100,
122,
20,
39,
124,
-5,
85,
21,
40,
-125,
-113,
-74,
-79,
-49,
36,
-100,
-101,
-17,
-123,
-74,
113,
-33,
-90,
94,
71,
123,
-97,
-113,
-124
] |
Bushnell, J.
Anton Lange and his wife, Pauline (now deceased), sold certain property in Wayne county on land contract dated September 1, 1920, to Harry Barigian and Agnes, Ms wife, for $9,500, of which $1,200 was the down payment. The balance of $8,300 was to be paid “$80 or more each and every month thereafter including interest.” The contract is in the usual form and provides, among other things, for payment by the vendees of taxes, assessments and insurance, but contains no time limit as to principal nor any acceleration clause. On May 1, 1925, the Langes sold their vendors’ interest in the contract, together with five others not involved here, at a discount to the Detroit Land Contract Company. The balance due on principal was $6,199.32. The vendees had been quite regular in their payments up to that time, excepting that they had sldpped the payments due in June, July and December of 1924, and February of 1925.
The assignment reads in part:
“We warrant that the above amounts of principal are due, and that contract purchasers or their assigns will pay same, together with interest thereon, in accordance with the terms of the contracts assigned. ’ ’
On May 19, 1925, the land contract company assigned its right, title and interest to Frank D. Forbush, plaintiffs’ testator. There is no record of payments between the date of the assignment and December 4, 1926. It seems certain, however, that nothing was paid from the latter date until May 9, 1927. On June 10, 1927, plaintiffs began to accept $50 per month. On November 28th of that year $40 was accepted and thereafter monthly payments of this amount were made with some exceptions until July of 1930, when another default occurred. The vendees began again at the same rate of $40 a month in October, 1930, and' continued through July of 1931. After the July entry the trust records show the notation:
“Forfeiture notice sent. Under foreclosure. Refer all payments to legal department.”
No payments were made thereafter on the balance due of $4,416.88. The records of the trustees then show a charge for 1930 State and county and 1930-1931 city taxes of $246.34, and insurance premiums of $30, bringing the contract balance to $4,693.22.
The only notices of default given vendees were the alleged forfeiture notices, one dated September 17, 1930, and showing payments overdue in the sum of $240, and a similar notice dated October 2, 1931, showing overdue payments of $200. No notice of the vendees’ default was given the Langes at any time, nor was any demand made upon them for payment until November 5, 1931.
Suit was commenced on the guaranty on December 29, 1931, and a judgment was entered for plaintiffs in the sum of $2,799.47 on June 16, 1933. The case seems to have been discontinued as to Pauline Lange, deceased, before trial.
Defendant alleges that the instrument of assignment was altered and rewritten; that the instrument ■which he signed was not a guaranty nor was it intended to act as one. It is further insisted that there is no privity of contract between the parties; that there was no other consideration for the-purchase of the contracts other than a discount of 18 per cent, charged defendant, and no promise of guaranty on his part. Defendant asserts that, if there was ever any liability on his part, he was released by a new agreement between plaintiffs and vendees which substantially varied the terms of the original contract. He also pleads lack of consent, ratification or affirmation by him of any changes in the terms of the contract. He claims to be released because of plaintiffs’ failure to notify him of the various defaults.
Trial by jury was waived and the court found that the instrument as offered was duly executed by the Langes; that there was only a threat of possible forfeiture but no actual declaration of forfeiture ; and that, even though notice of default was not given defendant, no damage was occasioned by lack of notice.
The record does not contain an affidavit filed with the answer denying the execution of the guaranty, as required by Court Rule No. 29 (1931). Appellant cannot now be heard in denial of its execution or on a claim of alteration. Continental Bank v. Great Lakes Western Refining Corp., 243 Mich. 622. See, also, Lambert v. Smilansky, 246 Mich. 125; Ensign v. Fogg, 177 Mich. 317. The payment Lange received when he sold the contract was consideration for his guaranty.
Defendant’s contention that the arrangement between the guarantee and the principal to accept smaller instalments of principal and interest each month materially altered the principal’s obligation to his prejudice, and that consequently he was released from his obligation as guarantor, is not sound. A mere gratuitous alteration of the principal’s obligation will not release the guarantor. The alteration must be supported by a consideration and be binding on both parties. If it is not enforceable, it does not put the guarantor in any better or worse position than he was before. In re Kelley’s Estate, 173 Mich. 492 (Ann. Cas. 1914 B, 848).
“There must be another contract submitted for the original contract, or some alteration in a point so material as in effect to make a new contract, without the surety’s consent to produce that result. But when the essential features of the contract and its objects are preserved, and the parties, without objection from the surety, and without any legal constraint on themselves, mutually accommodate each other, so as better to arrive at their end, we can find no ground for the surety to complain.” Benjamin v. Hillard, 23 How. 149.
No consideration having been shown for plaintiffs’ acceptance of reduced instalment payments, Lange was not released by such reduction.
Appellant also claims he was released by alleged notices of forfeiture given by plaintiffs to the vendee, one dated September 17, 1930, and another dated October 2, 1931. A notice of forfeiture terminates the contract liability, Chicago Boulevard Land Co. v. Apartment Garages, 245 Mich. 448, but in that case the court also said:
“There is no claim that the notice was not sufficient nor effective.”
“A declaration of forfeiture must be clear and unambiguous, conveying an unquestionable purpose to insist that the forfeiture has accrued.” Gyro, Inc., v. Westbrook Lane Realty Corp., 261 Mich. 118.
The notices in the case at bar are not unqualified declarations of forfeiture and do not meet the standard raised by the authorities cited.
The important question presented is the effect of the failure of plaintiffs to give appellant timely notice of default. In Palmer v. Schrage, 258 Mich. 560, we held in a five-to-three opinion that the liability on the part of the guarantors of payments on a land contract continues even though the guarantee fails to give prompt notice of the vendee’s default, so long as there is no showing that the guarantor was damaged by the delay in giving notice. At the next term of court in Mortgage & Contract Co. v. Linenberg, 260 Mich. 142, we again divided as before.
Defendant Lange submitted testimony as to the value of the property in 1927 and at later dates, compared with its value at the time of trial. He contends that had he known of the default, he could have paid the entire balance due in 1927 and then foreclosed and resold the property without suffering a loss, but that because of plaintiffs’ delay in giving notice it is no longer possible to protect himself by such action. The court held, however, that “the fact that the property might have brought more on the market in 1927 than at the present time does not prove damage, unless the defendants had the right to resort to the property itself in case of default” and “the guarantors did not have such a right. ’ ’
It is argued by appellees that, in both cases cited (Palmer v. Schrage, supra, and Mortgage & Contract Co. v. Linenberg, supra), the land contract included an acceleration clause. In the former, the guarantor had stipulated in the guaranty for the right to foreclose the contract in event of default, and in the latter the plaintiff had declared the whole balance due and had brought action to foreclose. In the case at bar they contend that neither by his contract nor by subrogation can the guarantor obtain the right to foreclose the contract and, therefore, having no recourse to the land, proof of depreciation in its value in no way establishes damage. In short, it is claimed, as the court found, that all defendant could do is to pay the defaulted instalments and then sue the vendees.
This argument is sound as far as it goes, but could he not possibly, by assuming the rights of the vendee, under the strict letter of the latter’s contract ($80 per month or more), have paid the entire balance to the plaintiffs and received a deed, and then required payment or a surrender of possession of the vendees by summary proceedings or proceedings in equity? The contract when sold was almost five years old and the property itself was worth more than the balance due. Just how soon vendees began to default is not clear from the record, as the exhibits do not detail payments from April 1, 1925, to December 4, 1926. All we know is that there was a default in 1927, another in 1930, and a final default in 1931, and that defendant Lange had no knowledge of the condition of this contract until a letter was sent him, dated November 5, 1931.
We are committed to the doctrine that a guarantor is not per se entitled to notice of default, although he may be released pro tanto if he shows actual damage suffered as a result of failure to give notice. It may not be wise to disturb this doctrine and thereby further unsettle the course of dealings in land contracts in this State. Perhaps, during our recent period of prosperity, there has been no occasion to make a critical re-examination of the question of land contract security apart from other guaranties. The rule was first established in Farmers & Mechanics Bank v. Kercheval, 2 Mich. 504, that:
“If a demand and notice is required, upon the facts disclosed in the record, it cannot be made available as a defense, unless the defendant can also show that he has suffered loss or damage.”
Under the clause calling for payments of $80 or more a month the vendees could have paid up the balance due and received a deed at any time. The guaranty was that the principal would be paid, together with interest thereon, in accordance with the terms of the contract. If the vendees had the right to pay in full, the guarantor should have been entitled to the same right under the circumstances of this case. It may be argued that the guarantor is only secondarily liable and cannot be called upon to respond before the principal has neglected to perform. Where, however, serious defaults occur the guarantor may exercise the rights of the vendee as to payments as a measure of self-protection.
There is testimony before us as to comparative values of the property from competent, disinterested witnesses, to the effect that in 1927, at the time of the first serious default, it was worth from $7,100 to $7,830, and at the time of trial in December, 1932, from $3,200 to $3,638. We would be shutting our eyes to the realities if we did not recognize that during the period when almost continuous defaults were occurring in this transaction, the real estate market was rapidly declining. Defendant testified that he would have been glad to take over the property in 1927, and that it was a banner year for real estate. This testimony was rebutted. A continuing guarantor should have the same right as his principal as to payment, unless prevented by the language of Ms guaranty, where the principal debtor has fallen badly into default and shows no prospects of future regularity in payments. This is necessary in order to afford this class of guarantors some protection against the vicissitudes of rising and falling real estate markets and varying economic conditions. What happened in the instant case is a splendid illustration of this proposition. Lange should be released pro tanto.
The cause should be remanded for determination by the trial court of the pro tanto damage, based upon the difference between the fair market value on November 5,1931, the date when notice of default was given the guarantor, and the fair market .value on June 10,1927, that being the date when payments were reduced to $50 per month.
Other questions, however, must be considered. The ad damnum clause of the declaration claims judgment in the amount of $1,500, and a judgment was entered for $2,799.47. According to the record, no amendment was sought by plaintiffs. We held in Daines v. Tarabusi, 250 Mich. 217, and Thomson Spot Welder Co. v. Oldberg Manfg. Co., 256 Mich. 447, that the judgment may not be in excess of the amount named in the ad damnum clause. Appellees’ brief explains the method of computation of the judgment as that used in the Palmer Case, a theory not set forth in the declaration or the proofs. The amount in excess of $1,500 is erroneous, but, as stated in Patterson v. Gore, 177 Mich. 591, such error is not jurisdictional. No appeal was taken on this question, nor is any attack made on the computation in appellant’s brief. We will not on .our own motion consider the amount of the judgment except as herein noted,
We must, however, call the trial court’s attention to a manifest error in the judgment which is more serious than a departure from the rules of pleading and the limitations set upon recovery by such rules. In the instant case the guaranty itself is silent as to the guarantors’ responsibility for defaults in taxes and insurance. In the Palmer decision, apparently adopted as a standard in this case, the guaranty stated that
“The attached contract * * * is guaranteed as to payments on same by the purchaser in the following manner. If the purchaser on this contract shall become in default (defendants) agree to make said payments.”
This was a general guaranty of all payments necessary on the contract. Under the terms of the contract in the Palmer Case, it was provided that taxes and assessments paid by the vendor would become “a further lien upon the land, payable by the purchaser to the seller forthwith.” The language of the guaranty in that case covered the taxes. In the case at bar there is only a guaranty of principal and interest payments. Such error in computation being apparent from the record, taxes, insurance and interest thereon should not be included in the judgment.
' The cause is, therefore, remanded, the judgment vacated and the trial court directed to enter a new judgment in accordance with this opinion. Appellant may have his costs.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, Butzel, and Edward M. Sharpe, JJ., concurred. | [
-16,
-19,
-44,
-18,
-6,
100,
56,
-70,
90,
34,
52,
95,
-3,
82,
21,
45,
-27,
125,
68,
106,
7,
-78,
54,
2,
-46,
-77,
75,
-35,
53,
109,
36,
-43,
76,
48,
-118,
-99,
-58,
-90,
-51,
24,
94,
-116,
-83,
100,
-33,
80,
54,
105,
64,
8,
81,
-81,
-25,
47,
49,
111,
109,
40,
-3,
33,
-128,
-32,
-69,
-124,
-5,
31,
-128,
81,
-104,
3,
-56,
24,
-104,
53,
68,
-24,
119,
-82,
-58,
124,
1,
-103,
44,
34,
38,
17,
85,
-19,
-32,
-104,
14,
-5,
-115,
-91,
-11,
88,
2,
110,
-66,
-97,
92,
86,
-90,
-12,
100,
21,
29,
108,
3,
-18,
-42,
-93,
-34,
-4,
-108,
9,
-9,
35,
54,
113,
-53,
58,
125,
103,
120,
26,
-34,
45
] |
Butzel, J.
Prank Skvarce, plaintiff, was employed by the Evening News Association, Inc., as “jumper” on an auto truck used by the latter in the distribution of newspapers. On May 29, 1933, he sustained personal injuries in a collision between the delivery truck, driven by a fellow employee, Charles Kulow, and an automobile owned by defendant, a Michigan corporation, and operated by the latter’s employee. Although the collision occurred through defendant’s negligence, plaintiff’s coemployee, Kulow, was guilty of contributory negligence. Plaintiff, however, was guilty of no negligence, unless that of his coemployee, or fellow-servant, is imputable to him.
Under the stipulation of facts, it was- agreed that Kulow had complete charge of the operation of the delivery truck in question, his duties consisting of driving it from the plant of the employer to each and every stop assigned in his district, and returning it to the garage upon the completion of the route. It was plaintiff’s duty to ride upon the running board of the truck, and, as it reached the designated stops on the route assigned to the driver, to jump from the side of the truck with the required number of newspapers for that particular stop, and deliver them. He then returned to the side of the truck, where he counted out the papers for the next stop while standing on the running board, which was specially constructed to permit its use for that particular purpose. While plaintiff was engaged in this operation, the truck remained in motion, under the complete guidance and control of Kulow. Plaintiff had no control whatsoever over the handling of the truck from the time it left the employer’s establishment until it returned; nor did he have any authority to direct the manner in which the truck should be driven, all of these matters being left to the discretion of Kulow. It was further conceded that in the interest of their common employer both plaintiff and Kulow attempted to increase the number of sales of the Detroit News, and that upon some occasions plaintiff was allowed- to make collections for the driver. The wages earned by plaintiff, however, were fixed and set by the employer, and his weekly wage was in no way dependent upon the number of papers sold upon the route, although Kulow re'ceived a guaranteed sum, plus a commission varying with the amount or number of sales. The employer owned the truck, maintained it, and paid all expenses for its use and upkeep.
Defendant disclaims liability on the ground that the contributory negligence of Kulow was imputable to plaintiff, claiming that plaintiff and Kulow were fellow-servants and also joint adventurers engaged in a common enterprise, in which each had an interest. There is no merit to either of these theories. The case is ruled by McKernan v. Railway Co., 138 Mich. 519 (68 L. R. A. 347), where, under a somewhat similar set of circumstances, we held that the contributory negligence of the driver of a fire engine was not imputable to the engineer who, in the performance of his duty, was riding on the rear end of the engine when it collided with a street car. This case has been cited with approval in City of Grand Rapids v. Crocker, 219 Mich. 178.
See, also, Rogers v. Weber, 235 Mich. 180, and notes in 8 L. R. A. (N. S.) 631.
The agreed facts show that there was no joint enterprise.
Judgment for plaintiff is affirmed, with costs.
Nelson Sharpe, C. J., and Potter, North, Peal, Wiest, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
-16,
-7,
-120,
-113,
58,
106,
42,
58,
121,
-57,
55,
-41,
-113,
-25,
77,
33,
-9,
61,
-43,
67,
-75,
-77,
7,
-93,
-46,
-101,
-7,
5,
-70,
74,
-26,
116,
77,
32,
-118,
29,
-57,
65,
-59,
30,
-60,
-124,
-87,
120,
121,
17,
52,
-8,
116,
77,
81,
-114,
-125,
42,
28,
71,
-116,
40,
107,
-93,
-63,
-15,
-1,
5,
127,
18,
-126,
2,
-100,
-95,
-40,
31,
10,
49,
56,
-8,
114,
-74,
-62,
-12,
33,
-119,
-120,
34,
98,
16,
5,
-27,
-76,
-104,
46,
106,
-99,
-91,
28,
88,
1,
73,
-66,
-97,
82,
22,
14,
-2,
-4,
93,
31,
72,
3,
-122,
-14,
-77,
-17,
112,
6,
-125,
-17,
39,
35,
81,
-54,
-12,
92,
103,
90,
23,
-9,
-41
] |
Per Curiam.
We issued an order directing the defendant election commission to show cause why a writ of mandamus should not be issued directing the defendant commission to refrain from placing the designation “common pleas judge” under the names of G-eorge T. Cartwright and Emmanuel N. Karay as candidates for said office, on the ballots to be used at the biennial spring election in Detroit, April 7, 1947. Eeturn has been made and arguments heard in open court.
Plaintiffs are duly nominated candidates for the office of judge of the common pleas court of the city of Detroit, to be voted on at said election. They are not present incumbents in said office. G-eorge T. Cartwright and Emmanuel N. Karay are also duly nominated candidates for said office, to be voted on at said election. They are present incumbents by virtue of appointment by the governor, and now seek election by ballot for the first time, to continue in office by virtue of election.
Plaintiffs insist that Cartwright and Karay are not entitled to have the designation “common pleas judge” printed on the ballots to be used at said election in connection with their n’ames. Plaintiffs demanded of the defendant election commission that such designation be omitted, which demand was refused. » The present proceeding is to compel the defendant commission to refrain from printing such designation of office on the ballot under the names of Cartwright and Karay. Imminence of the impending election and the short period of time for printing and distributing the ballots requires a prompt decision.
At the outset it is obvious that the constitutional provision for nonpartisan election of judges and judicial officers does not apply. It refers to “justices of the Supreme Court, judges of the circuit court, judges of probate courts and all county judicial officers provided for by the legislature under section 21 of article 7 of the Constitution.” Mich. Const. (1908), art. 7, § 23, adopted April 3, 1939. The common pleas court is a municipal court, of the city of Detroit and its judges are not county judicial ' officers within the inclusion of said constitutional amendment. Said common pleas court comes into being by virtue of Act No. 260, Pub. Acts 1929, and amendments thereto which provide:
“In any city which now has a population of over 250,000 inhabitants, the several courts of the justices of the peace of such city, as established and operated under the provisions of any general statute, local or special act, or the provisions of the charter of any such city, are hereby consolidated into one court, which shall be known as the common pleas court of such city.”
Cartwright and Karay were appointed by the governor February 1, 1945, and February 27, 1946, respectively, by virtue of a provision in section 2 of said act (3 Comp. Laws 1929, § 16370, as amended by Act No. 158, Pub. Acts 1939 [Comp. Laws Supp.-1940, § 16370, Stat. Ann. 1946 Cum. Supp. §27.3652]), as follows:
“Whenever a vacancy shall occur in the office of any judge of said 'court by death, resignation, removal from office or from any other cause, such vacancy shall be filled by appointment by the governor. Each judge so appointed shall assume office immediately following his appointment and shall hold the same until his successor has been elected and has qualified. Successors to any judge or judges so appointed by the governor shall be nominated and elected at the next biennial spring election held in such city following such appointment and such successors shall hold office until the expiration of the term to which such judge or judges shall have been elected. ’ ’
If Cartwright and Karay have any right to the designation “common pleas judge” under their names on the ballot, it must be as the result of some provision in the above act. The only provision Avhich can be said to apply is in section 2, which governs the appointment and election of common, pleas judges, and reads as follows:
“Provided, That an incumbent who is a candidate for reelection, may, upon his request in writing have printed below his name the designation, ‘common pleas judge’.”
Cartwright and Karay are incumbents, but are not “candidates for reelectioii.” That each is “an incumbent who is a candidate” is beyond dispute. The legislature has put into the act “an incumbent who is a candidate for reelection.” It might well have said “a candidate to succeed himself,” or “a candidate for election,” or “a candidate at the next election,” or merely “a candidate.” But “for reelection,” as used in said proviso, has a definite and plain meaning. There was no such provision (for any designation on the ballot) prior to the amendment of the act by Act No. 158, Pub. Acts 1939. The proviso, ‘ ‘ That an incumbent who is a candidate for reelection, may, upon his request in writing have printed below his name the designation, ‘common pleas judge’,” is the only change in section 2 of the act made by said amendment. Under the circumstances, we cannot conclude that the legislature meant “for election” where it said “fqr reeleetion.”
“We cannot assume the legislature made a mistake and used one word when it in fact intended to use another. The language of the statute is plain as it reads and we do not feel authorized to change its meaning by substituting another word for the one the legislature used.” People v. Crucible Steel Co. of America, 150 Mich. 563, 567.
It is a cardinal rule of statutory construction that every clause and every word in an act is presumed to have some force and meaning and no part should be rendered nugatory. United Insurance Co. v. Attorney General, 300 Mich. 200. There is merit in plaintiffs’ claim that the legislature meant what it said in the act. As to judicial offices included in the constitutional amendment referred to herein, obviously the provision for designating a present incumbent as such can be changed only by a change in the Constitution. But the legislature might well have deliberately intended that the right to such designation on the ballot in electing a judge of the common pleas court should be limited to such incumbents as had already been once elected by the voters, and not permitted for those who were filling the office by appointment by the governor for the comparatively shorter period of time between appointment and the next ensuing biennial spring election.
Plaintiffs do not challenge the right of elected incumbents in the common pleas court, to the designation in the event they become candidates for reelection. "We conclude that the question now before us is limited in application to incumbents in the office by appointment only, who have been nominated for the first time as candidates to succeed themselves, and hence are for the first time candidates to be voted on at the next ensuing city election for said office.
Counsel have referred to cases which hold that appointment, election or reelection to an office are to be considered as meaning the same thing in effect. It is true that there are circumstances under which the result is the same regardless of the word used. For example, see Kopczynski v. Schriver, 194 Mich. 553; Peck v. Berrien County Board of Supervisors, 102 Mich. 346; McPherson v. Blacker (Mich.), 146 U. S. 1 (13 Sup. Ct. 3, 36 L. Ed. 869); Fyfe v. Kent County Clerk, 149 Mich. 349; Murtha v. Lindsay, 187 Mich. 79. But such decisions lose force when considered in construing the plain language of the proviso in section 2 of the common pleas court act hereinbefore quoted. Counsel also refer to the action taken by this Court under a similar question raised with reference to the election of judges of the recorder’s court of Detroit. But in that matter the circuit court in "Wayne county had denied a temporary injunction to restrain the use of the designation of office in the ensuing election of judges of that court and an application was made to this Court for leave to appeal from the order denying such temporary injunction. When it appeared to this Court to be obvious that due to tbe limited time before tbe election, if we granted leave to appeal it would be impossible to perfect tbe appeal, bear tbe matter and render decision before tbe printing of ballots for tbe said election, and that tbe question on appeal would become moot unless tbe Court enjoined tbe bolding of said city election, we declined to do so and declined to allow tbe appeal. This action was taken without opinion and without passing on tbe merits of tbe case. That action does not constitute any precedent for decision in tbe instant case under tbe circumstances now presented. There still is at this date ample time to comply with our conclusion herein without delaying tbe election. Counsel also refer to recent action taken by a circuit judge in Wayne county in refusing to enjoin tbe use of tbe designation under tbe names of appointees to tbe office of judge of tbe common pleas court, on ballots used in tbe recent primary election to nominate candidates for said office. Such decision has no controlling effect in tbe instant matter, and in passing it is proper to note that tbe proviso in section ,2 of tbe common pleas court act does not refer to candidates for nomination. One cannot become a candidate for reelection, under this proviso, until after be has been duly nominated as a candidate for such reelection.
Any change in said proviso in section 2 of tbe common pleas court act must come from legislation and not by judicial fiat. We conclude that Cartwright and Karay are not entitled to such designation on tbe election ballot. Tbe writ may issue, but without costs as a public question is involved.
Btjtzel, Btjshnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. Carr, C. J., did not sit.
See 3 Comp. Laws 1929, § 16369 et seq. (Comp. Laws Supp. 1940, 1945, § 16369 et seq., Stat. Ann. and. Stat. Ann. 1946 Cuín. Supp. § 27,3651 et seq.). — Reporter. | [
-16,
-20,
69,
-4,
106,
33,
28,
-84,
121,
-85,
39,
87,
-83,
-13,
21,
39,
-69,
127,
113,
123,
-43,
-94,
118,
66,
-9,
-109,
-53,
-127,
-65,
109,
-10,
-20,
76,
112,
-54,
-43,
70,
6,
15,
94,
-122,
-128,
41,
65,
89,
-56,
48,
114,
114,
15,
21,
-33,
-13,
46,
24,
-21,
-23,
40,
-39,
-83,
-64,
-21,
-97,
-123,
109,
6,
-93,
36,
24,
-89,
-8,
74,
-100,
16,
-108,
-8,
51,
-90,
-122,
116,
45,
121,
8,
98,
98,
-127,
-59,
-89,
-8,
-71,
28,
-6,
13,
-90,
-46,
33,
74,
-85,
-74,
-111,
101,
80,
-126,
-2,
102,
-123,
95,
44,
6,
-114,
-60,
-77,
-98,
-12,
-82,
0,
-21,
96,
16,
113,
-52,
-10,
94,
71,
17,
87,
-2,
-92
] |
Boyles, J.
Defendant appeals from a decree of the circuit court for St. Clair county in chancery permanently enjoining him from constructing and maintaining a trailer camp on certain premises owned by him in the city of Port Huron on the ground that the trailer camp would be a violation of the city zoning ordinance.
On June 28, 1943, the city of Port Huron adopted a zoning ordinance, effective July 17, 1943, which would prevent the defendant herein from using certain lots owned by him in the city of Port Huron, near the shore of Lake Huron, as a trailer camp. The defendant had started to erect a service building and to construct a trailer camp on these lots. He claimed the ordinance was arbitrary, unreasonable and void as to his lots and declined to discontinue his plans. On July 24,1943, plaintiffs, Otis Gr. Pringle and wife, owners of property adjacent to defendant’s proposed trailer camp, filed a bill of complaint in the circuit court for St. Clair county in chancery to restrain defendant from constructing or maintaining a trailer camp on his said lots. A temporary injunction was issued. The city attorney filed a petition and obtained leave to intervene as party plaintiff on behalf of the city of Port Huron. Issue was joined, proofs taken in open court, and a decree was entered permanently enjoining the defendant from constructing or maintaining a service building or a trailer camp on the premises in question. On appeal defendant asks for a decree dismissing the bill of complaint.
. Defendant claims (1) that the zoning ordinance is void because the city commission failed to give notice and hold a public hearing before its adoption; (2) that he had obtained a vested right to complete the construction of a trailer camp prior to the effective date of the ordinance; and (3) that the ordinance is arbitrary, capricious and unreasonable in forbidding defendant’s use of Ms property as a trailer camp, in view of its surroundings.
Tbe locus and surroundings of tbe property owned by the parties are shown on the following drawing:
The respective properties of these parties front on Conger street, facing Lake Huron. They each have substantial residences on their property which they occupy as their homes. Plaintiffs acquired their property in 1935, defendant purchased his in 1939. The defendant’s property consists of lots 5, 6, 7, 8, 9, 10, 11, 12, 13 and 15, block 5, subdivision of ontlot 17, McNeil tract in the city of Port Huron. These lots all have a frontage of 25 feet and a depth of 100 feet. Lots 6, 8,10 and 12 front on Conger street, and lots 5, 7, 9, 11, 13 and 15 front on Omar street. Lots 5 and 6 are abutted on the south by the so-called Lighthouse Reserve upon which the city of Port Huron operates a trailer camp. Lots 6, 8, 10 and 12 are abutted on the east by Conger street and immediately to the east of Conger street is a public bathing beach operated by the city of Port Huron and located on Lake Huron. The public bathing beach extends from the city trailer camp, on the south, north for approximately a city block to Lake-view avenue. Conger street along this block is a cinder drive which ends 50 feet north of the north line of the city trailer camp. The city trailer camp is .used for house trailers, tents, and also contains tourist cabins, a service building, kitchen, laundry and caretaker’s building. At the time of the trial of this case there were about 45 trailers in the city trailer camp. Prior to gas rationing the camp had at times as many as 125 trailers in it. This trailer camp is operated by the city from about the 1st of June until Labor Day. It had been established prior to the time the parties hereto acquired their respective properties in block 5.
The public bathing beach along Conger street and in front of block 5 was put into use as such in the summer of 1939 at about the same time that the defendant acquired his property. During the summer months the bathing beach is used in varying numbers, from approximately 25 to upwards of 300, depending upon the weather and the holidays. The bathers park their cars in front of the houses along Conger street and at times park their cars in front of the defendant’s premises, sometimes using their automobiles for dressing rooms. On a Sunday afternoon there have been parked at the foot of Lakeview avenue and along Conger street as ipany as 50 cars. The city has a “Stop” sign at the end of Conger street 50 feet north of the trailer camp, and at this place the cinder drive widens out and forms a turning basin for the beach traffic, using the property in front of defendant’s house.
Plaintiffs Pringle and wife own lots 17 and 18 and the south half of lots 19 and 20, block 5, subdivision of outlot 17, McNeil tract, adjoining* defendant’s property on the north, and extending through from Conger street on the east to Omar street on the west, and having a frontage of 37% feet on each street. Between the plaintiffs’ home and the defendant’s home there is a summer cottage. The defendant’s home is located on Conger street, on the north side of his property, the south side of his house being 65 feet northerly from the north line of the city trailer camp.
Defendant’s proposed trailer camp would occupy the southerly 55 feet of defendant’s property on Conger street adjacent to the city trailer camp, and would occupy all of his rear lots fronting on Omar street. It would be an “L” shaped piece of property around the defendant’s residence and would abut the westerly or rear part of plaintiffs’ property. Along* its entire southerly side of 200 feet, it would be abutted by the city trailer camp. It would accommodate 18 trailers if fully occupied. The city trailer camp is entirely within the view of defendant’s premises, there being a fence of single strand wires strung on wooden posts.
The premises upon which defendant proposes to place his trailer camp are restricted by the Port Huron zoning ordinance as residential district of the highest class. For residential purposes the ordi nance would permit only the erection of single-family, two-family, group and multiple-family residences, and would not permit its use as a trailer camp. Every dwelling would have to be erected on a lot with not less than 5,000 square feet, with a frontage of not less than 50 feet, and with a front yard of not less than 25 feet. As to the lots in block 5 fronting on Conger street, because the dwellings already located there are nonconforming, the use of defendant’s southerly lots would not have to observe the set-back line of 25 feet. However, he would have to observe the requirements as to side yards and frontage as to the vacant lots. As to his lots totaling 150 feet of frontage on Omar street, because there are no established buildings on that side of Omar street within block 5, the defendant’s lots would have to be used in conformity with the restrictions of the zoning ordinance.
In April, 1943, the defendant decided to devote his vacant property to use as a trailer camp. He consulted the city engineer and an employee of the city engineer’s office prepared the necessary sketches in his off time. Defendant was, however, informed by the city engineer that if the zoning ordinance was adopted in its present form a trailer camp would not be permitted on his property unless it was constructed before the ordinance went into effect. Various delays were encountered by the defendant throughout this period. In connection with application to the State health department for a permit to construct a trailer camp, the city clerk, on May 26, 1943, certified that there was no local ordinance prohibiting the establishment of a trailer-coach park on the location in question. On July 8th, the defendant went to Detroit to the War Production Board and on Saturday, July 10th, he received his priority number. On Monday morning, July 12th, the defendant went to the city manager for the purpose of obtaining a building permit and was told to come back the next morning, July 13th, and finally, at 3 o’clock in the afternoon of that day, after the city manager had conferred with the city attorney and the city clerk, a building permit was issued to him for the construction of his service building on the trailer camp. On or about July 7, 1943, the defendant had a discussion with the city manager who told him that the zoning ordinance would be effective on July 17th. The defendant obtained blueprints, paid for leveling the ground, and upon receiving his building permit lumber costing $90,06 and crock pipe and fittings for sewer at the trailer camp, costing $69.86, were delivered to the premises. On Monday, July 19th, the defendant proceeded to build the forms necessary to pour concrete for the foundation of the service building, and purchased ready-mixed concrete which was poured into the forms. This work was completed on Saturday, July 24, 1943, and on that day the injunction, issued in this case, was served upon the defendant and the work ceased.
Defendant claims that the zoning ordinance is arbitrary and unreasonable as applied to his particular property. The ordinance covers the entire city, and district E-l is designated as the most highly restricted residential zone. This zone comprises a considerable portion of the property within the city and there is no question but that, as a whole, it covers residential property most desirable for residential purposes. The defendant does not dispute plaintiffs’ claim that this district as a whole is one of the most desirable districts in the city for residential purposes. However, defendant’s property lies on the outer fringe of this district and its desirability for residential purposes is to be measured more by its adjacent surroundings than by conditions obtaining in zone R-l as a whole. Defendant’s contention that the ordinance is arbitrary and unreasonable in its application to his property is partly substantiated by admissions of plaintiffs and the city authorities. Mr. Kiefer., a member of the city planning commission since it was first constituted, testified that the commission did not consider defendant’s property individually, or as to its peculiar situation, and admitted that a piece of property abutting a tourist trailer camp is, generally speaking, not a proper, high-class piece of residential property. Plaintiff Otis Gr. Pringle admitted that defendant’s property which abuts a trailer camp that has some 45 to 100 trailers in it would hardly be usable for high-class residence purposes. The evidence shows that the defendant’s vacant property is not suitable for use solely for high-class residential purposes. This. was substantially admitted by both the plaintiff and the chairman of the city planning commission.
The statute (1 Comp. Laws 1929, § 2633 [Stat. Ann. § 5.2931]) authorizing municipalities to pass zoning ordinances provides:
1‘ Such . regulations shall be made in accordance with a plan designed to lessen congestion on the public streets, to promote public health, safety and general welfare, and shall be made with reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values and the general trend and character of building and population development.”
A' zoning ordinance must be reasonable and its , reasonableness becomes the test of its legality. Each zoning case must be determined upon its own facts and circumstances. City of North Muskegon v. Miller, 249 Mich. 52; Pere Marquette R. Co. v. Musheg on Township Board, 298 Mich. 31. In the latter case the court said:
“It is necessary that a zoning ordinance be reasonable and its reasonableness becomes the test of its legality. City of North Muskegon v. Miller, 249 Mich. 52. To classify this property for single residential purposes seems to us to work too great a hardship on the plaintiff and serves no useful purpose for the general welfare of the community. The parcel itself would be well adapted for residential use, being high, dry, level and sandy, with almost every modern convenience already established, were it not for its location. In the last analysis we must consider whether the zoning of this particular triangle advances the public health, safety and general welfare of the people. That is the general purpose of a zoning law and uniformity for this purpose is encouraged. Each zoning case, as a rule, stands by itself and its reasonableness must be judged by the circumstances in each particular case. Moreland v. Armstrong, 297 Mich. 32.”
In City of Pleasant Ridge v. Cooper, 267 Mich. 603, the city of Pleasant Bidge zoned for residential purposes property located at the southwest corner of Woodward avenue and Ten Mile road in the city of Pleasant Bidge. It had a frontage of 312 feet on Ten Mile road and 125 feet on Woodward avenue. 712 feet west of the property in question was located the Detroit Zoological Park which was shown to have been visited during the summer on Sundays and holidays by many thousands of people. The .three corners at the intersection opposite to the property in question were used for business purposes, as was the north side of Ten Mile road opposite the property in question. This court (syllabi) held:
“Zoning regulations, to be valid, must be made in accordance with plan to lessen traffic congestion, to promote public health, safety and welfare and with reasonable consideration to character of the district, its peculiar suitability for particular uses, conservation of property values and general trend and character of' building and population development (1 Comp. Laws 1929, §2633).
“Zoning ordinance restricting use of lot to residence purposes held, unreasonable and confiscatory where lot was on boundary of village, on corner of two busy thoroughfares with opposite sides devoted strictly to commercial purposes and nearby zoo attracts large crowds on Sundays and holidays making place less desirable for high-class residential purposes.”
In New York, the appellate court in deciding a case somewhat similar to the instant situation as to facts, said:
“Certainly an ordinance is unreasonable which restricts property upon the boundary of the village to a use for which the property is not adapted, and thereby destroys the greater part of its value in order that the beauty of the village as a 'whole may be enhanced. In such case the owner of the property cannot be required to ask as a special privilege for a variation of the restriction. The restriction itself constitutes an invasion of his property rights.” Dowsey v. Village of Kensington, 257 N. Y. 221, 231 (177 N. E. 427, 86 A. L. R. 642).
In Senefsky v. City of Huntington Woods, 307 Mich. 728, this court held the following statement from Brookdale Homes, Inc., v. Johnson (syllabus), 123 N. J. Law, 602 (10 Atl. [2d] 477), to be an accurate statement of the law:
“While the legislature has given municipalities the right to pass ordinances to regulate and restrict the height, number of stories and sizes of building, such ordinances to be valid must be designed to promote public health, safety, and general welfare, and do not carry with them the right arbitrarily or capriciously to deprive a person of the legitimate use of his property.”
¥e are not called upon to decide whether the zoning ordinance now under consideration is arbitrary or unreasonable as applied to other property in zone R-l. The issue here is limited to the application of the ordinance to the property of this defendant. As was said in City of Pleasant Ridge v. Cooper, supra, at page 605:
“The appeal presents the sole question as to whether the ordinance, as it affects the use of appellant’s property, is a constitutional, reasonable and nonconfiscatory exercise of police power under the provisions of the zoning statute. Our consideration of the ordinance in question is limited solely to its validity as applied to the particular property involved on this appeal.”
In this case the defendant seeks to use his vacant lots for the very - same purpose adopted by the municipality for its use of adjacent city-owned property. The city attempts by ordinance to prevent the defendant from using his property as a trailer camp, while at the same time the city continues to maintain a larger trailer camp on its adjacent unzoned property. In Catholic Bishop of Chicago v. Kingery, 371 Ill. 257 (20 N. E. [2d] 583), a zoning ordinance expressly permitted a public school to be maintained in -a residential section but prohibited the existence of a private or parochial school in the same section. The court said:
“The ordinance before us bears no substantial relationship to the promotion of the public health, safety, morals, or welfare. Such legislation amounts, in fact, to a capricious invasion of the property rights of the appellee, and as such cannot be sustained.” -
In view of the facts adduced, and the use made of unzoned property adjoining defendant’s lots, we must conclude that the ordinance is arbitrary and unreasonable in restricting the use of defendant’s property solely to high-class residential purposes. Properly-operated trailer camps- are not to be classed as nuisances, and are under strict regulation by State statute. Act No. 143, Pub. Acts 1939, as amended (Comp. Laws Supp. 1940, 1943, § 1098-21 et seq., Stat. Ann. 1943 Cum. Supp. § 5.278 [1] et seq.). In view of our conclusion, it is not necessary to pass upon the other questions raised by appellant.
The case is remanded for entry of a decree disiñissing the bill of complaint, with costs to appellant.
North, C. J., and Starr, Wiest, Butzel, Bushnell, Sharpe, and Reid, JJ., concurred. | [
-15,
-6,
-44,
-52,
107,
-61,
24,
-75,
122,
-16,
117,
83,
-113,
-50,
9,
43,
111,
125,
80,
125,
-105,
-77,
83,
-62,
-111,
-13,
-13,
-41,
56,
77,
-12,
80,
88,
96,
-53,
-67,
-58,
-120,
-115,
-38,
70,
-127,
-117,
105,
-47,
64,
52,
31,
32,
15,
81,
14,
-30,
46,
20,
67,
-88,
44,
-55,
45,
-47,
-16,
-2,
12,
91,
46,
-96,
4,
24,
-125,
-8,
27,
-112,
51,
4,
-8,
115,
-74,
-124,
116,
75,
-101,
44,
34,
67,
3,
109,
-25,
-24,
57,
26,
-6,
-115,
-90,
-58,
25,
18,
-32,
-76,
-97,
96,
16,
-34,
126,
-50,
21,
95,
108,
6,
-57,
-94,
-77,
-113,
-80,
-124,
1,
-13,
37,
49,
112,
-49,
78,
94,
69,
17,
95,
-97,
-8
] |
Boyles, J.
On May 6, 1946, plaintiff was granted an absolute divorce from the defendant in the sn perior court of Grand Eapids on a finding that the defendant had been guilty of the several acts of extreme and repeated cruelty charged in her bill of complaint. On appeal the defendant raises only one question, and on that ground asks that the bill of complaint be dismissed. The sole ground for reversal, as stated in appellant’s brief, is as follows:
“That the testimony was not sufficient to justify a decree in favor of the plaintiff, and that the trial court erred in its finding that while both parties had. probably been at fault, defendant’s misconduct had been the greater. The defendant husband seeks no other relief than that the decree be set aside and that a decree be entered in this Court dismissing the bill of complaint.”
This requires a review of the testimony de novo. The parties were married on April 18, 1937, in the city of Grand Eapids. They lived together as husband and wife until November 9,1945, at which time plaintiff filed her bill of complaint and obtained an injunction, which is not in the record. It does appear, however, that on December 14, 1945, on the hearing of a motion by the defendant to modify the injunction, an order was entered stating that “the injunction heretofore issued out of this Court on November 43, 1945 restraining the defendant from living at the home of the parties be and the same is hereby modified as follows,” following which the order provides that the defendant might live in a separate back room in-the home and use the adjoining bathroom, but was not to enter the rest of.the home.
The case was contested, and testimony adduced from a considerable number of witnesses. It shows that the plaintiff is 35 years of age, and the defendant 48. They lived together in Grand Eapids for upwards of 8 years, during which time one child was born, a boy now about 3 years of age. Tbe decree awards custody of this cliild to the plaintiff subject to right of visitation and possession by the defendant at certain designated times,.gives plaintiff the home property and the household furnishings, alimony for support of the child, and the defendant was decreed the rest of the personal property. Inasmuch as no appeal is taken questioning these provisions in the decree they do not require further, consideration.
In regard to her allegations of extreme and repeated cruelty plaintiff testified:
“A. Well, he was just always nervous and he just would come home and I never knew what he was angry about; lots of times out of a clear sky he would come in and just curse me up one side and down the other.
“He would call me a God damned son-of-a-bitcli and some other nasty names too. That has been through all the way through our marriage more or less but it has been worse the last couple of years. Anywhere between 2 and 3 weeks he would have one of those attacks. They would occur every 2 or 3 weeks. Mr. Gorton doesn’t drink all the time, but occasionally he gets quite saturated with liquor. It would be worse when he would be drinking. * * *
“The type of treatment I testified to'before as to . swearing and things of that nature had been going on for some time, all through our marriage and more so in the last two years and particularly since about a year ago when ‡ stopped giving him the money I had been earning in the shop.”
Plaintiff was then allowed to testify at some length and without objection, to occurrences subsequent to the filing of her bill of complaint. In the absence of any objection raised before the trial judge or on this appeal, we assume that the defendant consented to its admission and need not pass upon the admissibil7 ity of such testimony on the ground that no supplemental bill was filed. Plaintiff thus testified at some length, in part as follows:
‘ ‘ Q. Since you folks have separated in November how has been the relations between you and Mr. Gorton?
“A. He has been very abusive, every time he comes to the house he has been very abusive and out of all the times, it just started the 9th of November, there has been just five times out of all these times he would come to the house and hasn’t said anything and been decent, but the other times he just heaped abuse on me, then it upset me so and upset the youngster so he wasn’t able to keep any food down for four days.
“Q. When was that?
“A. Last week, I mean week before last, because that is when I was up to Dr. Vyn.
“Q. Did Mr. Gorton ever-strike you during the time between November and the present time?
“A. He pushed me in the yard and he would have struck me if the lady next door hadn’t interfered.
“Q. When was that, that he pushed you?
“A. Around the 13th of December.
“Q. You say he pushed you?
“A. Yes, I had the youngster, I was carrying him in the house, he grabbed hold of the youngster with one hand and pushed me with the other so I fell, when I fell I fell right on top of the youngster.
“The youngster was black and blue around the temple and I had skinned my knee and tore a pair of hose and got all muddy; when he knocked me down he held his knees down on me and was pulling the youngster out of my arms. * * *■
“My health hasn’t been very good. I haven’t felt good for a long time. I have been going to Dr. Vyn an average of once a week now for liver shots. I am anaemic. I take medicine after every meal and besides get the liver shots, and he also has been treating me with, nerve medicine. The last three weeks I have been going to the doctor every week.”
Plaintiff also testified—without objection—that she felt there was no chance of a reconciliation and that the only solution to her difficulty with her husband was divorce. However, that is not a ground for divorce. The Court has said:
“Power to decree a divorce is statutory. Grounds for exercising such power are specifically stated in the statute. Public policy is not there given as a ground and cannot be so considered.” Vander Laan v. Vander Laan, 228 Mich. 52, 53-54.
“That the parties may not live together ag’ain ' gives no right or reason, grounded in public policy, to find defendant guilty as charged and to fasten on him indefinitely the burden of alimony or allowances.” Bolthuis v. Bolthuis, 233 Mich. 584, 587.
•The major part of the record before us is taken up with testimony and exhibits concerning the financial status and property affairs of the parties, about which no question is now involved. Both were employed—plaintiff as the operator of a “beauty shop,” and the defendant as a traveling salesman away from home except for week ends. Their testimony is convincing that neither one of them was very thoroughly domesticated. There was an abundance of testimony that the plaintiff was not a good housekeeper, or a very good caretaker for their infant child. However, the court awarded plaintiff the Custody of the child, and we do not find in this record sufficient evidence on which we should decree, sua sponte, that the plaintiff is not a fit person to have the custody, especially in view of the fact that her right of custody is not questioned by the defendant. The lower court still has jurisdiction to consider whether the best interests of the child' will be subserved, and whether the mother is a fit person to continue having the custody. 3 Comp. Laws 1929, § 12739 (Stat. Ann. § 25.97); Biede v. Riede, 300 Mich. 300. While the welfare of a child is always the concern of the court in these cases, the mother is, by statute, prima facie entitled to the custody of this child. 3 Comp. Laws 1929, § 12852 (Stat. Ann. § 25.311); Smith v. Smith, 252 Mich. 543.
The defendant denied most of the assertions of the plaintiff as to his misconduct, and testified to occasions when the plaintiff’s conduct was far from promoting domestic felicity, to say the least. Much of the testimony was inconsequential — for example, cross-examining -a witness for the defendant as to whether she chewed tobacco. The defendant’s testimony mainly concerned property matters. In the absence of any question on this appeal as to the fairness of the proyisions in the decree adjusting their property matters, we need not review the same. At least half of the printed record, covering at length the testimony concerning property matters, might well have been omitted. It does not bear on the only question before us, namely, whether the testimony is sufficient to justify a divorce in favor of the plaintiff.
The defendant testified that he had difficulty in getting the plaintiff to get out of bed mornings to take care of the infant. He admitted telling her to,
“ ‘Get your God damn lazy ■ — ■ — out of bed’ or I would kick her out, ‘and take care of that baby.’ So she stepped out of bed ‘by Jesus Christ, I am getting sick and tired of this and I am going to do something about it,’ so out she goes, and when I said that she could get out of bed in the hurry.”
He testified that he had sworn at his wife on various occasions and that she had sworn at him, too, plenty of times. He said, “The knowledge of swear words is not just one sided in our home.”
The trial judge heard the testimony with much patience and moderation. He afforded more credence to the testimony of the plaintiff and her witnesses. A careful review of the record is convincing that the court had ample testimony on which a decree of divorce might properly be granted to the plaintiff on the grounds of extreme and repeated cruelty.
We are-led to our conclusion in the present case by the rule often stated here, and last expressed by Mr. Justice Bushnell in Kolberg v. Kolberg, 312 Mich. 42, as follows (p. 46):
_ “While we are not restricted by the findings of the circuit court, a divorce case on appeal being heard de novo, especial consideration is given to such findings, so largely based upon the credibility of the witnesses, and the reviewing Court ought- not to reverse the determination of the trial court in such a case, unless convinced that it must have reached a different conclusion had it occupied the position of the lower court, under like circumstances.”
Affirmed, with costs to appellee.
Carr, C. J., and Butzel, Bushnell, Sharpe, Reid, North, and Dethmers, JJ., concurred.
See 3 .Comp. Laws 1929, § 12728 (Stat. Ann. § 25.86).—Re-porter.
See 3 Comp. Laws 1929, § 12738, as amended by Act No. 134, Pub. Acts 1939 (Comp’. Laws Supp. 1940, § 12738, Stat, Ann. 1946 Cum. Supp. § 25.96).—Reporter, | [
-15,
116,
-36,
124,
-85,
32,
10,
-4,
98,
-123,
39,
-45,
-25,
82,
0,
107,
90,
107,
84,
97,
-63,
-93,
22,
67,
127,
-13,
-7,
-43,
-75,
79,
-28,
116,
72,
-80,
-62,
-43,
102,
-38,
-57,
84,
14,
20,
-85,
-19,
-7,
70,
52,
121,
72,
15,
49,
-18,
-89,
46,
61,
-54,
72,
44,
91,
61,
88,
-72,
-102,
20,
111,
2,
-79,
52,
-106,
-89,
88,
62,
-104,
49,
1,
-88,
51,
-74,
-122,
116,
67,
-69,
8,
100,
98,
3,
101,
-9,
-8,
-120,
-82,
127,
-115,
39,
-104,
64,
73,
33,
-68,
-79,
96,
80,
47,
122,
-19,
-35,
94,
104,
74,
-114,
-106,
-79,
-113,
26,
-100,
19,
-21,
-31,
52,
112,
-55,
-96,
93,
70,
113,
-101,
-114,
-70
] |
Butzel, C. J.
In the discussion of the questions presented herein, we also refer to a large part of the record in Detroit Trust Co. v. Mason, 309 Mich. 281, to which the attention of the trial judge was repeatedly called and which he considered at the hearing of the present case. The Tuller Hotel was built on slightly more than eight and one-half lots in a downtown section of Detroit. Sixty feet of the hotel fronts on Grand Circus Park. Other lots including the defendants’ properties have a frontage on West Adams avenue. The fee of all of the property with the exception of the 60 feet on which the rear portion of the hotel was built became the property of the Tuller Hotel. Two parcels of 30 feet each, one abutting the other, and constituting the 60 feet set forth in the two. leases involved in this suit, are respectively owned by'the Koch estate and the Long-year estate, whose trustees are the defendants herein. Their decedents on June 14, 1922, gave 99-year leases to a party .through whom by mesne assignments plaintiff herein became assignee. The lease for each 30 feet provided for a rental of $6,000 per year until June 14, 1932, $7,000 per year for 10 years until June 14,1942, and $8,000 per year for the balance of the term. Bach lease provided that the lessee should pay all taxes, assessments, et cetera, as they became due, and in the event of nonpayment, the lessor might pay such taxes, assessments, et cetera, and that amounts so paid should become due on the next succeeding day for payment of .rent and the lessee should pay the amount in full plus 7 per cent, interest from the time of the payment by the lessors to the time of repayment by the lessee. The question involved in the present case is whether such interest was subsequently waived or not.
The hotel project proved a failure. The foreclosure of a mortgage securing a bonded indebtedness of $3,500,000 was begun in 1929. The property was bid in by the Detroit Trust Company, trustees for the bondholders. The property later was deeded to plaintiff but subject to all the indebtedness which plaintiff -assumed. The shares in plaintiff corporation had been substituted for the corpus of the trust, but the corporation remained liable for all debts. All of its stock was assigned as additional security to the Detroit Trust Company which had advanced the sum of $384,639.86 in order to preserve the trust property. This indebtedness was a prior claim due to the trust company before the bond or certificate holders would share in the proceeds, if any, from the sale of the trust property. There was due the lessors, defendants herein, under the two leases an amount stated to be “ approximately $94,000, ’ ’ which had been paid by lessors for taxes and assessments against the respective leasehold properties. Prior to November 6, 1942, there was also due to the respective lessors interest at the rate of 7 per cent, on, the amounts so advanced for taxes and assessments from the date of such advances by them.
On November 6, 1942, the Detroit Trust Company as first party, respective defendant trustees as second party, and plaintiff Detroit G-rand Park Corporation as third party entered into an agreement which is referred to as exhibit 14 in the record. We ■shall only set forth such provisions of the agreement so far as they affect the issues in this case.
“Whereas, the Koch estate and Longyear estate have heretofore asserted claims in the total amount of approximately $94,000 against the. trust assets for unpaid rental and taxes with respect to that portion of the property owned by said estates and Detroit Trust Company has a claim against said assets for its advances to the trust in the amount of $384,639.86, * * * and
“Whereas, Detroit Grand Park Corporation assumed and agreed to pay the Koch estate and Long- year estate the amount of their lawful claims against the trust assets and the Detroit Trust Company the sum of $384,639.86 aforesaid, * * * and
“Whereas, Detroit Grand Park Corporation executed and delivered to Detroit Trust “Company a chattel mortgage upon all personal property in the hotel as security for the claims aforesaid for the purpose of continuing and securing td said claimants their respective rights in' and to such personal property though for convenience said chattel mortgage runs only to Detroit Trust Company; and
“Whereas, Detroit Grand Park Corporation purchased that part of the hotel property acquired by the State of Michigan at the State land sale held pursuant to Act No. 155, Pub. Acts 1937, as amended, and entered into a land contract with-the State of Michigan for the purchase thereof, wdiich contract provides for the payment of the balance of the purchase price in monthly instalments, ■ the total sum to be paid on or before October 27,1951; and
“Whereas, the parties hereto recognize the difficulties confronting the corporation because of limited finances, taxes and costs of operation and maintenance and desire to agree upon a plan which will permit the corporation to continue the operation of the hotel.
“Now, therefore, it is agreed by and between the parties hereto as follows: '
“ (1) Detroit Grand Park Corporation during the period of its occupancy of that part of the Tuller Hotel property owned by the Koch estate and Long-year estate shall pay as rental for the Koch estate property $7,000 per year and for the Longyear estate property $7,000 per year. * * *
“ (2) The Koch and Longyear estates agree that they will not take any proceedings to collect or enforce their respective claims heretofore asserted as above set forth so long as Detroit Trust Company does not take proceedings to collect or enforce its claim * * *
“ (3) Detroit Trust Company and the Koch and Longyear estates agree that their respective claims are of the same class and on an equal basis and that they shall share in any and all proceeds of liquidation of the Tuller Hotel property or other distribution made available to them as creditors, whether by way of liquidation of the corporation or otherwise, pro rata, in proportion to the amount of their respective claims (exclusive of interest) and if at any time in the future Detroit Trust Company shall foreclose its chattel mortgage and sell the personal property encumbered thereby or acquire such personal property by foreclosure and resell the same, the sum of the net proceeds of any such sale be distributed pro rata between Detroit Trust Company and the Koch and Longyear estates in proportion to the amount of their respective claims. ,
“ (4) At any time during the period of postponement of their claims as provided' in paragraph (2) hereof,. the Koch and Longyear estates agree to settle and discharge the total amount of their claims aforesaid upon payment of the amount thereof less $40,000 and whatever payments have been paid on account, thereof prior to the date of settlement. ■
“(5) Detroit Grand Park Corporation has heretofore assumed and does hereby assume any and all lawful claims aforesaid of the Koch and Longyear estates and is liable therefor, but Detroit Trust Company in its individual corporate capacity is not liable to said estates for the amount thereof.”
At the time exhibit 14 was entered into, the hotel project was in desperate condition. Over 13 years had elapsed since the bondholders, who later became certificate holders, had received any return whatsoever from their investment. There was due the trust company in its individual capacity the sum of $384,639.86, which the latter had loaned to the trust in order to pay taxes and other charges. There was due the State of Michigan the sum of $284,135 on the contract of purchase entered into by plaintiff at the “scavenger” sale. In addition to a large amount due for taxes not yet paid by anyone, the plaintiff owed defendants a large • sum for taxes which the lessee had failed to pay in accordance with the 99-year leases and which the lessors paid. Prior to entering into' exhibit 14, plaintiff also owed defendants interest at the rate of 7 per cent, per annum on the amounts paid by lessors for taxes;
In construing exhibit 14, if it is at all ambiguous, we may consider the conditions that existed at or about the time exhibit 14 was entered into. However, to more fully comprehend the distressed condition of the property, we must briefly state that less than five months after the date of exhibit 14, the trust company, in a petition to the court, agreed to accept $108,000 in full payment of its claims of more than $384,000, and also ashed the court to permit the acceptance of an offer for the sale of the hotel property including the leasehold which would net but very little to the former bondholders, now certificate holders. It was stated in the petition that unless the offer were accepted, both the trust company and the bond or certificate holders might lose their entire investment. The court' ordered the acceptance of the trust company’s offer of settlement, and also asked for new bids so as to realize more for the bond or certificate holders. The hotel property, which included the leaseholds, was sold by transferring the stock of the plaintiff corporation, and the price realized was sufficient to settle with the trust company and pay the State of Michigan and other debts, also to net the holders of the certificates an amount far in excess of the offer first made by the trust company in its petition. It should be stated that defendants’ estates could not suffer such a large loss as other creditors for they still owned the fee to their properties and could recover possession of them even though the leases were terminated and defendants’ large claims for amounts advanced for taxes were not paid. However, in the event of the termination of the lease, each estate would be entitled to the return of its respective 30 feet of land. The building on each' 30 feet could be partitioned off but the hotel building' on the remainder of the land held in fee would still have a considerable depth. These facts are pointed but in appellee’s brief to a certain extent and are indirectly shown by the record. We call attention to them so as to explain the last of the recital clauses in exhibit 14 showing the realization by all the parties of difficulties that confronted plaintiff because of limited finances, taxes, cost of operation and maintenance and the desire to agree upon a plan which would permit the corporation to continue the operation of the hotel.
The sale of the corpus of the trust necessitated the transfer of the stock of plaintiff corporation to new owners, but there was no change in the entity of the corporation. Thereafter defendant trustees demanded of plaintiff the full amount of the sums they had advanced for taxes together with interest at the rate of 7 per cent, per annum from the date of such advances until the repayment thereof. Two suits were brought by defendant trustees for an amount which had been set- forth in exhibit 14 as “approximately $94,000,” but which in fact aggregated $96,055.02, and also for an additional amount aggregating $36,694.25 for interest at 7 per cent, per annum on the amounts advanced for taxes. The defendants conceded that in accordance with paragraph 4 of exhibit 14, the amount claimed to be due them should be reduced by the allowance of $40,000. Plaintiff, thereafter, entered into a new agreement by which the two suits were discontinued on the payment of the full amount demanded for principal and interest, but with the express provisp that such payment less the $40,000 was made and received by defendants subject to the outcome of a judicial determination whether defendants’ estate waived interest by exhibit 14. In Act No. 238, § 1, Pub. Act 1941 (Comp. Laws Supp. 1945, § 13433-1, Stat. Ann. 1946 Cum. Supp. § 26.978 [1]), it is particularly provided that the discharge of any part of any obligation shall not be invalid because of absence of consideration providing such discharge is in writing and signed by the party against whom it is sought to enforce such discharge.
Was interest waived when in the recital clause of exhibit 14 the total amount due the two estates was stated to be “approximately $94,000?” Although the correct amount due for principal was $96,694.25, or $2,694.25 more than'$94,000, the latter sum was approximately correct, and we do not take the word “approximately,” under the circumstances, to mean a figure over $130,000 which would be the amount if over $36,000 for interest were added to $94,000. Later, at the time of the settlement of the suits brought by defendant trustees, it was agreed that $95,000 was the correct amount that would be due defendants after the deduction of $40,000 discount, provided they were entitled to interest. This would make the original amount $135,000 before the discount, not “approximately $94,000.” After the payment of the $95,000 plaintiff in turn brought two suits to recover the large sum representing interest which it had paid without prejudice to its right of recovery in a subsequent proceeding. The trial court held that the interest had 'been waived by ex- Mbit 14 aid rendered a joint judgment against the two estates in the amount of $38,704. The cases presented the same issue, were tried together, and brought to this Court on appeal as one case. The attorney for defendants stated that the cases Might be considered as one and if it were eventually held that the two estates wore liable, a joint judgment would be paid as defendants were prepared to make repayment if the Court rendered an adverse decision.
Each party claims that exhibit 14.is so plain and unambiguous as not to require any additional testimony or reference to any other records in order to explain it. Plaintiffs claim that when the agreement was entered into, it settled the status of the respective parties. They contend that when the two estates, stated in the recital clause that their claims were approximately $94,000 against the trust assets, and agreed to settle ‘and discharge the' claims at a discount of $40,000, there was not the faintest intima tion that the contract did 'not disclose their, full agreement, and in stating the claim to be approximately $94,000, defendants waived interest. Clause 4 refers to a discount of $40,000 off the total amount of defendants’ “claims aforesaid.” The “aforesaid” claim is set forth in the recital clause at “approximately $94,000.” The trial judge stated that this was .conclusive. Defendants, on the other hand, point to the fact that the very next clause in the recital states that “whereas; Detroit Grand Park Corporation assumed and agreed to pay the Koch estate and Longyear estate the amount of their láwful claims against the trust assets,’” and the 5th clause states that “Detroit Grand Park Corporation has heretofore assumed and does hereby assume any and all lawful claims aforesaid,” et cetera. They maintain that these' two clauses mean that the plaintiff was obligated to pay all lawful claims which would include interest. It will be noticed however, that in referring to the claims in the 5th clause, the word “aforesaid” is used. Plaintiff claims that this refers back to the recital clause where the amount of the claim is set forth at approximately $94,000. Defendants contend that if approximately $94,000 was to be paid without interest, the contract would have so stated. On the other hand, plaintiffs answer that if the statement of the claim at approximately $94,000 also reserved interest, the words “and interest” would have been added. Both the trial judge and the plaintiff stress clause 3 where both the trust company and the estates agreed that their respective claims are of the same class and on an equal basis, and that they shall share the distribution pro rata in proportion to their respective claims “exclusive of interest. ’ ’ Defendants claim that was an agreement exclusively by the other two parties and in which plaintiff had no interest. We cannot overlook the fact that the agreement was entered into by the three parties and that clause 3 does • tend to explain the amount then claimed by defendants herein. A careful consideration leads us to the conclusion that interest was waived in the recital clause, and that the judge was correct in holding in plaintiffs’ favor.
The importance of a particular recital clause in an agreement is discussed in Acme Cut Stone Co. v. New Center Development Corp., 281 Mich. 32 (112 A. L. R. 865), in which we held that particular recitals in a contract involving a statement of fact are as a rule to be treated as conclusive evidence of the fact stated, while general recitals may not be. Also, see Thomson Electric Welding Co. v. Peerless Wire Fence Co., 190 Mich. 496, to like effect.
In coming to our conclusion, we take into consideration that, if. there is any ambiguity, the last recital clause in exhibit 14 states that the parties recognize the difficulties confronting plaintiff because of limited finances, taxes, cost of operation and maintenance, and a desire to agree upon a plan that would permit the corporation to continue the operation of the hotel. There can be no question but that the outlook for the hotel’s future at the time'was dismal, and while it is true that defendant lessors could at all times recover possession of their property, nevertheless they each had only 30 feet on which the rear of the hotel stood, and if the respective parcels of 30 feet each were partitioned off, it might be very doubtful whether the two estates could realize the comparatively large rental agreed upon with plaintiff. Even, however, if there was an ambiguity in the agreement, many provisions of which we have quoted, we cannot overlook a previous letter written by the attorneys; for both defendants in January of the same year in which exhibit 14 was entered into. At that time they offered a $30,000 discount and stated in a letter that “such balance shall be paid without interest. * * * Upon completion of such payments' the $30,000 credit shall be allowed, and the claim considered paid in full.” Certain conditions stated in the letter never arose. The proposal also was contingent upon rehabilitation of the hotel and approval of the probate court. No new contract was entered into on the basis of this letter. "When later in the year exhibit 14 was executed and the amount of the discount increased to $10,000, it seems very unlikely that it was even contemplated to exact interest amounting to $35,000, or thereabouts, without mentioning it. It is true that the letter was not a final contract,-but it does indicate what defendants later had in their minds when they stated that their claims amounted to •approximately $94,000. We believe that defendants in their desire to- see the hotel continue operations intended to and did waive interest, and that the lower court was correct in holding for plaintiff.
Judgment affirmed, with costs to plaintiff.
Carr, Bushnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred.
See Comp. Laws Supp. 1940, 1942, § 3723-1, et seq., Stat. Ann. 1942 Cum. Supp. § 7.951 et seq.—Reporter. | [
-14,
-5,
-40,
-18,
74,
-32,
56,
-102,
105,
-24,
51,
87,
-119,
-98,
17,
45,
-74,
125,
97,
113,
-91,
-93,
6,
1,
-42,
-77,
-37,
-51,
-72,
77,
-12,
-41,
8,
32,
-62,
-35,
-26,
-61,
-51,
94,
78,
-123,
11,
101,
-7,
16,
52,
123,
12,
15,
113,
29,
-13,
36,
29,
79,
73,
40,
95,
-71,
-48,
-8,
-69,
5,
123,
22,
-127,
68,
-104,
-125,
-24,
8,
-104,
117,
-115,
-24,
113,
-74,
70,
124,
69,
-101,
45,
34,
98,
0,
65,
-17,
-48,
-111,
-86,
-22,
-115,
-89,
-12,
88,
2,
41,
-66,
-97,
120,
86,
6,
-10,
-18,
-107,
91,
100,
5,
-113,
-10,
-109,
37,
116,
-42,
-127,
-9,
35,
33,
96,
-118,
18,
92,
-9,
123,
-101,
-57,
-3
] |
North, J.
In December, 1926, plaintiff’s decedent, Mary J. Bradley, entered into a contract with defendants for her lodging, board and care during the balance of her life. At that time she was possessed of two real estate mortgages totaling $4,200. The agreement provided that the Akron State Bank of Akron, Michigan, should collect interest and payments on these mortgages and remit the same by draft payable to the three contracting parties. The mortgage papers were to be held in trust by the bank during the lifetime of Mrs. Bradley and upon her death were to be delivered to defendants together with the unrecorded assignments of the mortgages which were also left in the bank’s custody. The money collected on the mortgages was to be used for necessary expenses of Mrs. Bradley other than her board and lodging and any amount in excess of such expenses was to be kept in a joint account of the three contracting parties and be payable to them or to the survivor of them. The contract contained the following provision:
“It is also agreed that should the first party elect to terminate this agreement she may do so by paying to the said second parties a reasonable amount for her board and care from this date to the time of termination of this agreement, the amount to be paid shall be mutually agreed upon and in the event of failure to arrive at a mutual agreement then shall the said parties hereto abide by the judgment of a board of arbitration consisting" of three members, one to be chosen by each of the parties concerned and the third to be chosen by the two so designated.”
Mrs. Bradley died September 18, 1932, approximately 81 years of age. Plaintiff, a sister of Mrs. Bradley, was appointed administratrix of the estate of deceased. Claiming that Mrs. Bradley terminated the above-mentioned contract during her lifetime, plaintiff filed the bill of complaint herein for the purpose of securing an accounting from defendants “of all moneys and securities and properties of any sort belonging to Mary J. Bradley which have come into their hands by reason of the aforesaid agreement.” Plaintiff also prays that there be a determination of the amount defendants should have for the board and lodging of deceased as provided in the contract so that such amount may be allowed as credit against the sum otherwise alleged to be due from defendants on the accounting; and further that defendants be decreed to turn over to plaintiff any mortgages, notes or other securities in their hands belonging to the estate of Mary J. Bradley. Defendants deny that the contract was terminated by Mrs. Bradley during her lifetime and therefore deny plaintiff’s right to the relief sought. The case was heard in open court and the trial judge, finding in favor of the defendants, entered a decree dismissing plaintiff’s bill of complaint. Plaintiff has appealed.
As bearing upon the controverted question of whether Mrs. Bradley did exercise her right to terminate her agreement with the defendants the record discloses the following facts: Prom December, 1926, until August 10, 1931, Mrs. Bradley lived in the home of defendants and was cared for by them in accordance with the plan adopted. On the latter date plaintiff went to Tnseola county where Mrs. Bradley was then living with Mr. and Mrs. Lncas and took Mrs. Bradley from there to plaintiff’s home in the city of Battle Creek. Plaintiff testified that Mrs. Bradley made this trip to Battle Creek “because my sisters all got together for a visit. I told Mrs. Lncas I came to get her for a visit.” Thereafter until her death, September 18, 1932, Mrs. Bradley remained at plaintiff’s home.
Defendant Frank J. Lncas testified that defendants were willing to continue supporting and providing for Mrs. Bradley. They admit in their answer that they received as interest and payments on the mortgages $2,046; but they assert expenditures in behalf of Mrs. Bradley aside from her board, lodging and ordinary care which total $1,540.46; and they claim the balance is not sufficient to pay them for the board, lodging and ordinary care of Mrs. Bradley during the four and a half years and more which she resided with defendants, in event of termination or attempted termination of the contract. This phase of the record is important because it has a material bearing upon defendants’ claim that Mrs. Bradley never terminated the contractual relations between herself and defendants.
The contract, by the provisions above quoted, expressly provided the manner in which it could be terminated by Mrs. Bradley. The mortgages and assignments had been delivered to the bank in escrow incident to this agreement. The bank had full knowledge of the terms of the agreement.
“An escrow executed and deposited upon a valuable consideration is not revocable by the depositor except according to the terms of the agreement and deposit.” 10 R. C. L. p. 633.
“Where the parties themselves have provided the terms on which their contract shall be abrogated, neither can dispense with them, without the consent of the other.” 6 R. C. L. p. 922.
See, also, Hackley Union National Bank v. Farmer, 252 Mich. 674.
Defendants, under their agreement, had a right to settle with Mrs. Bradley during her lifetime rather than with representatives of her estate after her demise. This was a substantial right. A settlement so proposed by defendants required only Mrs. Bradley’s'approval, not that of representatives of her estate. If the contracting parties could not agree and a contest followed, defendants were then at liberty to testify fully in their own behalf; but now, Mrs. Bradley having died, their lips are sealed as to matters equally within the knowledge of deceased (3 Comp. Laws 1929, § 14219). Unless there was substantial compliance with the express provision for terminating this agreement, the contractual relation still existed at the time of Mrs. Bradley’s death. In that event plaintiff, as administratrix of Mrs. Bradley’s estate, is not entitled to an accounting or to any other relief sought in her bill of complaint.
As bearing upon plaintiff’s contention that the contract was terminated the following facts are material. In January, 1932, plaintiff and Mrs. Bradley went to Tuscola county and while there they consulted an attorney, who at the direction of Mrs. Bradley wrote defendants the following letter:
“Mr. Frank J. Lucas
“Fairgrove, Mich.
“Bear Sir:
“Mrs. Mary J. Bradley has requested me to advise you that in accordance with the terms of a cer tain agreement entered into by yon and yonr wife and Mrs. Bradley on the 1st day of December, 1926, providing for the care of the latter, she desires to terminate said agreement. I would be glad to have you advise me what you consider a reasonable amount for her board and care, and if we cannot agree upon that amount the matter will have to be submitted to a board of arbitration as provided in the agreement. We will also expect an accounting of all sums received from Mrs. Bradley or her property. If you cannot call at my office within a few days will you kindly let me hear from you by return mail.
“Yours very truly,
* ‘ Theron W. Atwood. ’ ’
By the foregoing letter Mrs. Bradley through her attorney acknowledged the agreement was still in force and the contract obligation of arbitrating “as provided in the agreement” in case she sought to terminate her contract with defendants and the parties disagreed as to the “reasonable amount for her board and care.” The parties never did agree upon the amount to be paid for Mrs. Bradley’s board and care. Instead plaintiff now seeks, without any attempt at arbitration, to have a determination in this suit of the very question which the parties expressly agreed to arbitrate. We think by their contract the parties definitely made arbitration an essential part of revocation in case they did not agree as to the amount Mrs. Bradley should pay defendants for her board and care. Conclusively, as noted above, they never did agree upon this essential factor involved in complete revocation of their contract. Before this was accomplished or even sought to be accomplished, Mrs. Bradley died. Upon her death the trust agreement, by its express terms, became fully executed and defendants were entitled to delivery of the mortgages and assignments, and the money, if any, in the bank became payable to defendants as survivors.
Appellant seeks to escape the provisions of the contract on the ground, as stated in her brief, that “the mere agreement to arbitrate does not preclude a resort to a court of justice and cannot be pleaded in bar, * * * nor does it prevent a suit at law.” McGunn v. Kanlin, 29 Mich. 476, is cited in support of this contention. We think the case is not applicable here because the agreement there was one for a general arbitration and was entered into after the difficulty between the parties arose. It was not an arbitration provided for in the original contract between the parties and which specified only a particular phase of the contractual relations to be controlled and determined, if necessary, by arbitration, as in the instant case.
“It is conceded that an agreement to submit all matters in controversy between parties to arbitration, and thus oust courts of their jurisdiction, is void, and may be repudiated by either party at any time before award is made. * * * But non constat that parties may not agree to submit the question of unliquidated damages to arbitration as a condition precedent to bringing suit.” Chippewa Lumber Co. v. Phenix Ins. Co., 80 Mich. 116.
To the same effect see Weggner v. Greenstine, 114 Mich. 310, citing several cases; also, Jacobs v. Schmidt, 231 Mich. 200, and Frolich v. Walbridge-Aldinger Co., 236 Mich. 425. The agreement to arbitrate in the instant case was valid. It not only constituted a condition precedent to bringing suit, but it was also a condition precedent to rescission of the contract by Mrs. Bradley. She did not resort to the agreed method of terminating the contract during her lifetime and therefore it was still in full force and effect at the time of her demise. As was said by Mr. Justice Potter in Hackley Union National Bank v. Farmer, supra, 681, so it might well be said in the instant case:
“This court cannot alter or amend the contract; it cannot substitute another and different method of revocation for that agreed upon by the parties and stipulated in the contract. * # * This contract was not revoked in the manner provided for by its terms. There is no claim it was so revoked, and therefore it was not legally revoked at all.”
The trial judge was right in holding that termination of the contract between Mrs. Bradley and defendants was never accomplished. The decree entered in the circuit court is affirmed. Costs to appellees.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
-16,
121,
-100,
-20,
90,
32,
56,
-102,
127,
-128,
49,
87,
-17,
70,
21,
13,
101,
125,
81,
106,
-43,
-93,
62,
10,
-45,
-77,
-87,
-43,
-96,
-35,
-12,
-105,
76,
32,
-54,
-107,
-26,
-126,
-27,
90,
30,
-124,
-85,
96,
-3,
66,
52,
-65,
12,
76,
81,
-49,
-89,
40,
53,
70,
104,
40,
93,
57,
-48,
-28,
-81,
-123,
79,
18,
-78,
37,
-102,
-89,
-38,
12,
-104,
53,
32,
-24,
51,
-74,
-42,
116,
-49,
26,
9,
102,
102,
48,
-27,
111,
-100,
-99,
22,
-10,
-99,
-90,
-47,
121,
2,
8,
-67,
-97,
120,
1,
38,
-10,
-18,
-108,
28,
100,
9,
-53,
-10,
-109,
-116,
-2,
-34,
-117,
-18,
39,
32,
117,
-55,
96,
93,
38,
58,
59,
-116,
-14
] |
Butzel, J.
Raymond Bos was one of the children fatally injured by appellants’ truck on November 20, 1931, in the accident fully described in the case of Bishop v. Gaudio, 263 Mich. 65. Peter Bos, as administrator of Raymond’s estate, has brought the present suit, in which negligence and liability are no longer issues, the sole questions involved being whether plaintiff 'may recover under the survival act (3 Comp. Laws 1929, § 14040), or the death act (3 Comp. Laws 1929, §§ 14061, 14062), and whether the amount of the verdict is excessive. Raymond was five and one-half years of age when the accident occurred. He received an extensive skull fracture and never regained consciousness. There evidently was no pain or suffering. The jury awarded damages under the survival count of the declaration. Appellants contend that this was error, claiming that the decedent’s death was instantaneous, notwithstanding a possible few spasmodic reflexes that frequently occur at the time of dissolution. The question is an exceedingly close one. Witnesses frequently differ in their versions of the details of an accident, and this is particularly likely to occur when, in an instant, a number of small children are fatally injured. Decedent received an injury so severe that it might have caused instantaneous death. Disinterested witnesses testified that they saw no movement of the body, no breathing or other signs of life; that the body lay limp. One of the doctors testified that when the child was brought to the hospital in Grand Rapids, in an interval described as from a few moments to a half hour after the accident, life was extinct.
However, we cannot say that the verdict was against the great weight of the testimony, even though we might have disagreed with the jury’s determination were we a fact-finding body. Gaudio, the driver of the truck, testified that he held the child in his arms on the way to the hospital; that he could feel the child’s body twitch; that he heard a sound like a gurgle or a gasp; and that the child still showed some signs of life when they reached the hospital, from 20' to 30 minutes later. Gaudio’s testimony was exceedingly uncertain, halting, and at times contradictory, though evidently convincing to the jury. One of the physicians stated that he made an examination about a half hour after the child was brought to the hospital,' and that in his opinion, death had occurred only 15 or 20 minutes prior to that time. He testified that the boy “lived unquestionably a considerable time after he was injured, in my opinion. * # * The body felt warm, as though he had died very recently.” Another doctor stated that “In my opinion the death was not instantaneous. Those things rarely are;” that inspiratory movements of the chest in swallowing must have occurred after the accident, since there was a very small quantity of blood in the trachea and stomach. When the testimony shows that the injured person survived the accident, damages may be claimed under the survival act. It becomes a question for the jury. See Olivier v. Railway Co., 134 Mich. 367 (104 Am. St. Rep. 607, 3 Ann. Cas. 53); Paperno v. Michigan Railway Engineering Co., 202 Mich. 257; Swaczyk v. Detroit Edison Co., 207 Mich. 494; Budnick v. Peterson, 215 Mich. 678; Nelson v. Glover, 231 Mich. 229; Micks v. Norton, 256 Mich. 308.
The jury rendered a verdict of $6,765.60, or approximately $6,600, plus the funeral expenses of $165.50. Mortality tables were introduced showing an expectancy of 51.13 years. The jury was properly instructed that the measure of damages was the present worth of what the boy likely would have earned for the probable balance of his life, from and after the time he reached the age of 21 years. The trial judge in his charge stated that in order to determine the present worth of the boy’s probable earnings from year to year after he had reached the age of 21, the jury should divide the probable earnings of the first year after the age of 21 by 1.05, those of the second year by 1.10, and those of each subsequent year by a figure .05 larger. After the verdict was rendered, the judge’s attention was called to the fact that the divisor for the first year should have been 1.775, or thereabouts. He sought to correct the. error by ordering a remittitur of $1,765.60, thus reducing the judgment to $5,000. See Gwitt v. Foss, 230 Mich. 8, and Gleason v. Lowe, 232 Mich. 300.
The question is raised as to whether this reduction was sufficient to correct the error. The present value of a dollar, discounted on a ratio of 1.05, as the judge directed, is .95238, but if discounted, as it should have been, for 15% years at 5 per cent, simple interest, it would only come to .56338, a difference of .38900. This discrepancy of .38900 amounts to 40.845 per cent, of .95238, the figure arrived at by the erroneous use of 1.05 as a divisor. Therefore the amount calculated by the jury at 1.05 would have to be reduced by 40.845 per cent, in order to place the determination on the correct basis of 1.775. The discrepancy resulting from the error in the' amount of the divisor for the first year would become smaller from year to year, as an additional .05 was added to the respective divisors.
It is impossible to say with any degree of certainty how long the boy would have lived, were it not for the accident, or how much he would have earned had he survived his 21st birthday, or whether such earnings would have increased or diminished as he grew older. We cannot even conjecture how the jury arrived at its award, since we do not know upon what assumptions the award was based. The trial court evidently reduced the judgment from $6,765.60 to $5,000, in the reasonable belief that the jury based its award on the assumption that decedent would have lived out his entire expectancy. Appellee states in a memorandum brief that if the computation were made on that basis, the amount of the judgment should have been reduced from $6,600 to $4,723.15, which, adding the funeral bill of $165.50, would make the correct sum $4,888.65.
However, without laying down any rule of law, we believe that, considering the possible mistake made in the calculation, the fact that there was no pain or suffering, and all the other circumstances of the case, the judgment should be still further reduced. The amount of the jury’s verdict, exclusive of funeral expenses, was approximately $6,600. This sum, reduced by 40.845 per cent, leaves $3,904.23. If the funeral expenses of $165.50 are added to this latter amount, the total award is brought to $4,069.-73, or $930.27 less than the amount of the judgment as reduced by the trial court. The judgment should, therefore, be further reduced by $930.27.
If appellee will, as he has indicated by his counsel in the memorandum brief, file a remittitur of $930.27 within 10 days from the time this opinion is handed down, the judgment will be affirmed at $4,069.73; otherwise, it will be set aside and a new trial ordered. We need not discuss other claims of error made by appellants, for even if there were any merit to them, they do not affect the result. Appellants will recover costs.
Nelson Sharpe, C. J., and Potter, North, Fead, Wiest, and Edward M. Sharpe, JJ., concurred. Bushnell, J., did not sit. | [
-16,
106,
-44,
-84,
58,
99,
10,
90,
81,
-9,
37,
-13,
-113,
-47,
85,
111,
127,
45,
-47,
113,
-15,
-77,
22,
-125,
-42,
-73,
43,
-59,
51,
-19,
60,
124,
77,
98,
74,
-111,
-30,
72,
-55,
82,
-60,
12,
-87,
-8,
25,
19,
52,
124,
88,
6,
53,
-98,
-29,
43,
14,
71,
-87,
34,
107,
-75,
-63,
56,
-116,
5,
-49,
18,
-96,
82,
26,
-95,
-40,
25,
-116,
-15,
56,
-24,
50,
-74,
-126,
-10,
97,
-119,
12,
102,
-25,
1,
13,
-19,
-15,
-104,
15,
46,
13,
-89,
-97,
89,
0,
-113,
-65,
-65,
120,
80,
14,
122,
108,
95,
95,
108,
7,
-117,
22,
-111,
-35,
100,
-100,
-87,
-13,
-115,
34,
85,
-38,
-74,
92,
69,
122,
-45,
63,
-10
] |
North, J.
Thomas H. Cobb served for approximately eight years as the trustee of a trust created by the last will and testament of William A. McClung, deceased. Administration of the trust estate involved investment, preservation and accounting for approximately $20,000. The trust was terminated by the death of the beneficiary, and thereupon an accounting was had between the trustee and those who were then entitled to the trust fund, as provided in the will of William A. McClung. From the final order in this accounting made in the probate court an appeal was taken to the circuit court. The probate order was affirmed. Thereupon the trustee ap pealed from the judgment entered in the circuit court; and the heirs have perfected a cross-appeal..
Main appeal: Aside from the trustee’s compensation, only one item of the accounting is involved in the main appeal. In 1924 one Robert D. Bird owned the vendor’s interest in a land contract on which there was unpaid $3,740 as of September, 1932. Mr. Cobb bought this contract of Bird with trust funds, paying full face value therefor. At that time Bird owed approximately $3,500 to the First State Savings Bank of Birmingham. Cobb was cashier of the bank. Bird paid the bank out of the trust funds which he had received from Cobb for the vendor’s interest in the land contract. Taxes on the property were in arrears at the time of this transaction. It appeared at the time of the trial in the circuit (September 26, 1933) that all taxes subsequent to 1927 were unpaid and the payments due on the land contract were then badly in default, the last payment having been made August 18,1929. Clearly this land contract is an undesirable investment, and this at least was somewhat apparent at the time Mr. Cobb purchased it with the trust funds. His duty to collect indebtedness due his bank was antagonistic to the duty he owed the trust estate. When he acted in such dual capacity, he subjected himself to criticism and suspicion. 24 C. J. p. 114; In re Jenkins’ Estate, 260 Mich. 518. It is a fair inference from this record that primarily the trustee made this investment, which has proven to be a bad investment, for the benefit of his bank rather than for the benefit of the trust estate. The disallowance of this item in the accounting of the trustee is approved.
Cross-appeal: Cross-appellants object to the allowance of four items totalling $5,100, all four of which, were allowed in favor of the trustee both by the probate judge and again by the circuit judge on appeal. Recital of lengthy details of these transactions is not at all necessary. Suffice it to note that at the time of his death William A. McClung owned a one-half interest in each of these items which consisted of three real estate mortgages and one unsecured note of $300. The other one-half interest belonged to the brother, James McClung, for whose benefit this trust was created. There is no showing that the trustee was prompted by any improper motive in making these investments, nor is it at all certain that any substantial loss will result therefrom. In this record we do not find just cause for disturbing the holding of the circuit judge, who, like the probate judge, allowed these items in the trustee’s final account.
Trustee’s compensation: It is the claim of the trustee that he is entitled to compensation at the rate of $300 per year during the continuance of the trust (January 14, 1924 — September 10, 1932), totalling $2,600. His compensation was fixed at $300. The trustee makes no claim of being entitled to compensation for extraordinary services. He failed to file annual accounts, made some questionable investments, and to some extent failed to use the degree of care and caution which the faithful discharge of his trust made requisite. There is a statutory provision relative to compensation of trustees appointed incident to testamentary trust. 3 Comp. Laws 1929, § 15896. There are obvious difficulties to applying the statutory provision in fixing compensation of the trustee in the instant case.. We find no reason for disturbing the amount fixed in the courts below.
The judgment entered in the circuit court is affirmed and the case 'remanded. No costs will he awarded on this appeal.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Btjtzel, Btjshnell, and Edward M. Sharpe, JJ., concurred. | [
-14,
108,
-36,
-68,
-86,
-32,
58,
-102,
88,
105,
37,
83,
-5,
-102,
16,
43,
-32,
-39,
-48,
105,
-27,
-77,
39,
33,
-61,
-77,
-67,
-49,
53,
77,
-12,
87,
12,
32,
-62,
21,
70,
-128,
71,
-40,
-114,
1,
11,
108,
93,
97,
52,
103,
20,
-55,
49,
-98,
51,
50,
57,
74,
104,
44,
-19,
-86,
80,
-15,
-86,
-124,
126,
15,
0,
39,
-80,
11,
104,
40,
-112,
118,
-123,
-88,
59,
54,
22,
-44,
75,
9,
13,
110,
98,
1,
68,
-19,
-112,
-120,
31,
-66,
-115,
-89,
-14,
89,
35,
96,
-98,
-98,
118,
74,
-121,
-12,
-28,
-124,
89,
104,
5,
-49,
-42,
-125,
-31,
-20,
-102,
11,
-13,
43,
50,
81,
-113,
-22,
93,
-121,
57,
-101,
-97,
-15
] |
Edward M. Sharpe, J.
In August, 1929, plaintiff began suit for personal injuries suffered in an automobile accident which occurred May 13, 1929. This suit was discontinued and the present suit was begun July 18, 1930. August 11, 1930, the defendants entered their answer and plea to the declaration filed. No further proceedings having been had, the case appeared on the no progress call of the Detroit Legal News for Monday, September 28, 1931. On October 1, 1931, an order was made dismissing the cause. The cause lay dormant until March 14, 1933, when plaintiff filed a motion to vacate the dismissal. This motion was heard and granted on October 6, 1933, and on October 12, 1933, the order reinstating the cause for trial was entered.
Plaintiff claims that she was unaware until February 20, 1933, that the cause of action had been dismissed for want of progress, having been advised by her attorney that the action was still pending; that no calendar of causes in which no progress had been made for a year had been mailed to plaintiff or her attorney as provided by 3 Comp. Laws 1929, § 14255; and that it was within the discretion of the trial court to reinstate said cause.
Defendants contend that plaintiff had sufficient notice of the no progress call and that, it having been shown on the hearing that defendants’ driver and other occupants of the car were unavailable as witnesses, their whereabouts being unknown, the reinstatement of the cause for trial was an abuse of discretion by the lower court. Defendants and appellants ask this court for a writ of mandamus ordering the circuit judge to vacate his order of reinstatement.
The writ of mandamus is not a writ of right. Johnson v. Board of Supervisors of Ionia County, 202 Mich. 597. It will be granted as a matter of right only when the duty of the circuit judge is imperative and not discretionary. Rex v. Hughes, 3 Ad. & E. 425 (111 Eng. Repr. 475).
Assuming that the publication of the no progress call was insufficient notice to plaintiff and her attorney, the court had no jurisdiction to enter the order dismissing the case and consequently the order of reinstatement was a matter of right and not of discretion. Detroit Lumber Co. v. Oakland Circuit Judge, 207 Mich. 62. On the assumption that sufficient notice had been given, the issuance of an order of reinstatement was a matter within the discretion of the lower court. Ordinarily this court does not interfere with the exercise of discretion by the lower court. People, ex rel. Hoffman, v. St. Clair Circuit Judge, 37 Mich. 131; Breisacher v. Judge of Recorder’s Court of Detroit, 223 Mich. 254; Globe Indemnity Co. v. Richer, 264 Mich. 224.
.We find no abuse of discretion by the lower court. The writ will be denied, with costs.
Nelson Sharpe, C. J., and Potter, North, Pead, Wiest, Butzel, and Bushnell, JJ., concurred. | [
-16,
-30,
-4,
-52,
72,
-31,
48,
-66,
64,
66,
53,
-41,
-81,
-29,
57,
63,
111,
31,
81,
107,
-41,
-29,
87,
-30,
-10,
-77,
91,
-49,
119,
-49,
-12,
-30,
76,
32,
-54,
-108,
-57,
-126,
-127,
92,
-58,
4,
-119,
-20,
73,
-39,
48,
59,
-46,
15,
17,
110,
-29,
42,
16,
67,
104,
40,
-37,
-69,
-48,
97,
-113,
5,
111,
4,
-95,
22,
-98,
-121,
120,
31,
-100,
49,
16,
-8,
50,
-74,
2,
116,
-31,
-103,
12,
98,
98,
1,
53,
-17,
-72,
-104,
30,
-70,
-99,
-90,
24,
16,
75,
1,
-98,
-103,
117,
20,
39,
126,
124,
-123,
23,
108,
3,
-117,
-76,
-109,
-49,
52,
-98,
1,
-29,
-95,
54,
51,
-52,
-10,
94,
67,
113,
59,
-42,
-115
] |
Per Curiam.
The Legislature has requested an advisory opinion concerning its construction of a provision of the Headlee Amendment. The amendment provides in part:
"The state is prohibited from requiring any new or expanded activities by local governments without full state financing, from reducing the proportion of state spending in the form of aid to local governments, or from shifting the tax burden to local government”,
and:
"The proportion of total state spending paid to all units of Local Government, taken as a group, shall not be reduced below that proportion in effect in fiscal year 1978-79.”
1979 PA 57 "implements” the latter provision (§ 30) and provides:
"If the state assumes the financing and administration of a function after December 22, 1978, which was previously performed by a local unit of government, the state payments to this function shall be counted as state spending paid to local units of government.”
A Senate concurrent resolution requests this Court to render an advisory opinion
"on the following questions of law:
"1. Is the construction of a situation in which the state assumes the financing and administration of a function after December 22, 1978, which was previously performed by 'local units of government’ to be 'state spending paid to local units of government’ as stated in section la of House Bill No. 4700 [1979 PA 57] a proper construction for purposes of section 30 of article 9 of the state constitution of 1963?
"2. Does section la of House Bill No. 4700 violate either the 'Equal protection’ or 'Due process’ provisions of either the Federal or State constitutions as that section applies to 'local units of government’?”
An appropriation bill which has been enacted by the Legislature, but not signed by the Governor, has been called to our attention because it refers to this legislation. It (HB 4277) provides that some of its provisions shall not take effect unless "the supreme court determines in an advisory opinion that the construction” set forth in § la of 1979 PA 57 "is proper and consistent with section 30” and does not violate the Due Process or Equal Protection Clauses.
This Court declines to give the advisory opinion requested because:
1) The questions are stated only in general terms; the request fails to particularize the claims of unconstitutionality:
"As suggested by the 'important questions of law’ requirement, the request for an advisory opinion must 'particularize any claims of unconstitutionality’. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 484; [208 NW2d 469 (1973);] Advisory Opinion re Constitutionality of 1974 PA 242, 394 Mich 41, 53; 228 NW2d 772 (1975). A request stated too broadly cannot be considered. Advisory Opinion re Constitutionality of 1974 PA 272, 393 Mich 916 (1975).” Request for Advisory Opinion on Constitutionality of 1975 PA 227, 395 Mich 148, 149; 235 NW2d 321 (1975).
2) The questions "are so broad that any advisory opinion of the Court would depend for resolution on whatever particular factual situations the Court would be forced to hypothesize”.
3) When this Court has heretofore agreed to render an advisory opinion it has been able to draw on precedents established in adversary litigation in parallel contexts concerning the constitutional issue presented. An extensive jurisprudence developed in adversary litigation would guide this Court in rendering an advisory opinion on the Equal Protection and Due Process questions. There is no history of adversary litigation or jurisprudence so developed to guide the Court in applying the Headlee limitations on the taxing and appropriation powers. Considering the complexity of the Headlee Amendment we feel it would be rash to attempt to formulate a jurisprudence through advisory opinions.
4) The Headlee Amendment states that "[a]ny taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of this Article”. This Court should not appear to preempt or preclude such an action by prematurely, in a non-adversary context and in a factual and jurisprudential void, prejudging a potential taxpayer action in a proceeding to which no taxpayer is a party.
This Court, in responding to a prior request for an advisory opinion concerning a legislative construction of the Headlee Amendment, declared that "it would be an inappropriate exercise of its discretion” to provide an advisory opinion.
5) The Court may be requested to render an advisory opinion only concerning "the constitutionality of legislation” and then only "after it has been enacted into law” but before its effective date. Section la of 1979 PA 57 is tied in with § 44 of HB 4277, the effectiveness of which depends on this Court "determining” in an advisory opinion that the construction in § la is proper and consistent with and not violative of constitutional limitations. The tie-in with HB 4277 is contrary to the spirit and intendment of the after-enactment limitation on this Court’s power to render an advisory opinion. The Constitution provides that the Legislature and the Governor shall participate in the enactment of laws, and does not provide for participation by this Court in that process. A bill which does not become a law unless this Court takes some action has not "been enacted into law” within the meaning of this constitutional provision.
Accordingly, because the potential claims of unconstitutionality are not particularized, because there is a factual and jurisprudential void, because a premature construction of the Headlee Amendment may embarrass the right especially reserved by that amendment to taxpayers to bring actions in the Court of Appeals, and because the request in part affects legislation such as HB 4277, the effectiveness of which depends on this Court agreeing to this request and responding in a manner predetermined by the Legislature, a majority of this Court is unable, being fully mindful of the importance of the questions involved, and with due respect to the Legislature, to grant the request to render an advisory opinion.
As stated in declining an earlier request for an advisory opinion: "The Court stands ready to examine carefully and to resolve expeditiously any controversy that comes to it out of application of [the Headlee Amendment and legislation pertinent thereto] in a factual setting.”
Kavanagh, Levin, Ryan, and Blair Moody, Jr., JJ., concurred.
Const 1963, art 9, §§ 25-34.
Id., §25.
Id, §30.
1979 PA 57, § la.
HB 4277, § 44, which provides:
"Sections 36 and 37 shall not take effect unless the supreme court determines in an advisory opinion that the construction of section la in House Bill No. 4700 of the 1979 regular session of the legislature is proper and consistent with section 30 of article 9 of the state constitution of 1963 and does not violate the due process or equal protection provisions of the federal constitution or the state constitution of 1963.”
Advisory Opinion re Constitutionality of 1974 PA 272, 393 Mich 916 (1975).
Similarly, see Request for Advisory Opinion on Constitutionality of 1978 PA 33, 402 Mich 968 (1978), declining to render an advisory opinion on legislation concerning pornography where this Court said:
"The Court’s traditional role is to resolve only actual controversies where the stakes of the parties are committed and the issues developed in adversary proceedings. Const 1963, art 3, § 8 is 'a departure from the historic judicial scheme’ that was intended to be used 'sparingly’. Request for Advisory Opinion on Constitutionality of 1977 PA 108, 402 Mich 83, 86 [260 NW2d 436] (1977). An advisory opinion is not precedentially binding on the Court. It represents only the opinions of the parties signatory framed in a factual void.”
Const 1963, art 9, § 32.
The request concerned 1978 PA 529 and its construction of the second paragraph of Const 1963, art 9, § 31 added by the Headlee Amendment and ‘ the amendment of Const 1963, art 9, § 6 by the Headlee Amendment.
Request for Advisory Opinion on Constitutionality of 1978 PA 529, 405 Mich 1001 (1979). Similarly, see the order following thereon which denied a similar request by the Governor.
Const 1963, art 3, § 8.
See fn 5, supra.
Request for Advisory Opinion on Constitutionality of 1978 PA 33} supra. | [
117,
-20,
-12,
-4,
10,
-32,
18,
16,
89,
-85,
-31,
83,
47,
-118,
-108,
115,
-33,
59,
84,
99,
-57,
-74,
115,
-22,
-76,
-13,
-9,
-43,
-109,
-4,
-26,
94,
76,
-15,
-118,
-99,
102,
-126,
-115,
-34,
-86,
-115,
-69,
97,
-15,
67,
52,
106,
18,
15,
49,
-41,
-25,
44,
24,
99,
-87,
44,
89,
47,
1,
-8,
-114,
-123,
95,
-122,
-95,
20,
-100,
-121,
-40,
118,
-100,
56,
0,
-8,
114,
-90,
-106,
-75,
-119,
25,
8,
96,
98,
-123,
108,
-19,
-44,
-120,
6,
-38,
-83,
-92,
-41,
57,
106,
-127,
-73,
-65,
117,
87,
79,
118,
-90,
5,
95,
108,
-113,
-114,
-52,
49,
-49,
116,
27,
70,
-18,
35,
2,
113,
-128,
-58,
94,
86,
50,
25,
-42,
-102
] |
Starr, J.
Plaintiffs were engaged in the business of selling gasoline and fuel oil to dealers and con sumers in Washtenaw county and adjacent territory. They maintained their office and principal place of business in Ypsilanti and bulk storage plants in Ypsilanti, Ann Arbor, and Dexter. They received their principal supply of such petroleum products from the Gulf Refining Company in Toledo by transport trucks, the drivers of which were union members. Defendant Local No. 575 (herein referred to as the union) was a labor union anda part of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, & Helpers of America, commonly known as the Teamsters Union, which is affiliated with the American Federation of Labor. Defendant Flick was the business representative, and defendant Temple the assistant business representative, of said union, which maintained offices in Ann Arbor and Ypsilanti.
On December 22, 1942, plaintiffs filed bill of complaint alleging, in substance, that-there was no labor dispute between them and their truck drivers, who were not union members; that defendants had demanded that they place all their drivers in the union by paying their initiation fees of $27.50 each; and that when they refused to pay such fees, defendants established a picket line at their bulk storage plant in Ypsilanti. A temporary injunction was issued restraining defendants from picketing and from interfering with plaintiffs’ -business. Defendants answered said bill, denying that they had demanded payment by plaintiffs of union initiation fees for their drivers and that they had unlawfully interfered with plaintiffs’ business. Defendants alleged that a labor dispute was involved and that they were legally entitled to picket plaintiffs’ storage plant in the furtherance of legitimate union aims and activities. ' It is admitted that there was no strike, no physical violence, and that the picketing was peaceful.
The matter was brought on for hearing and testimony taken. The trial court held that there was “no bona fide labor dispute existing between plaintiffs and any person or persons or any labor organization of any kind,” and that defendants’ demand for payment of initiation fees by plaintiffs was “illegal, unjust and extortionate.” On April 26, 1943, a decree was entered which enjoined defendants from picketing plaintiffs’ places of business and from in any manner interfering with their business or with the delivery to them of petroleum products. Defendants appeal from such decree. This being a chancery case, we review the same de novo.
The testimony, much of which is ■ in conflict, reasonably establishes the following facts. Plaintiffs were the largest distributors of petroleum products in Washtenaw county. They owned their trucks and employed eight cr more drivers in making deliveries to their customers. In the fall of 1942 defendant union put on a campaign to organize the truck drivers in the petroleum industry in Tpsilanti. Some drivers for the Standard Oil Company and for other distributors in that community joined the union. Defendants Flick and Temple solicited plaintiffs’ drivers, but they were not willing to join unless plaintiffs paid their initiation fees. It appears that prior to 1942 two of plaintiffs’ drivers had belonged to defendant union and plaintiffs had paid their initiation fees. Defendant Flick testified that at the time of the picketing in question only one of plaintiffs’ drivers belonged to the union and that his dues were in arrears. Plaintiffs testified that at such time none of their drivers belonged to the union.
In December, 1942, defendants insisted that plaintiffs place all their drivers in the union by paying their initiation fees, but plaintiffs refused, claiming that their drivers were satisfied and that there was no labor dispute. About December 20tb defendants established a picket line at plaintiffs’ Ypsilanti plant. There were only one or two men used in such picket lire, and they carried banners which stated, “Unfair to organized labor, A. F. of L.” The drivers of transport trucks delivering petroleum.' products to plaintiffs refused to cross such picket line, with the result that plaintiffs were deprived, at least partially, of their supply of such products. Picketing was continued until December 22d, when plaintiffs filed bill of complaint and the temporary injunction was issued, as above mentioned. To present the situation properly, it is necessary to quote briefly from the testimony. Plaintiff Donald Silkworth testified in part:
“No demands were' made * * * regarding labor, working conditions, wages, or anything of that character in December, 1942, and I have no knowledge of any labor dispute. * •* *
“I saw Mr. Temple (defendant) on or about December 18, 1942. I had a conversation 'with him in my office. He asked for a check for $27.50 apiece for each of our employees. * * * He said Mr. Flick (defendant) was waiting at his office for our answer and that if it was not favorable he (Mr. Flick), would stop our supplies from coming into our bulk plants. * * *
“Mr. Temple told me he had not talked with our men lately about joining the union, and that they had made no request to join; he doubted if any of our men would join the union.”
Plaintiff Wesley Silkworth testified in part as follows :
< “Mr. Temple asked for the initiation fee of $27.50 (in) the local teamsters’ union for each of our truck drivers. # * * He said that if the money was not forthcoming they would stop transports from coming into the plant. * * ®
“He (Flick) said * * * as We didn’t see fit to play ball with them'that they were going to be tongh with us, and that we could settle the whole thing for a few dollars and wouldn’t have any more trouble about it. * * *
‘ ‘ There was no labor dispute between our firm and our employees at any time. * * *
“I told Mr. Temple in my office that I didn’t think the men wanted to belong to the union, and he said he was quite positive that they didn’t want to belong to the union. I wouldn’t settle with Mr. Flick.”
Defendant Temple testified in part as follows:
‘ ‘ Q. What was the purpose of the union in signing up these drivers? What is your program?
“A. * * * If we can get them all, we can better working conditions and get them more money. # * *
“Q. Tell what the conversation was with Mr. Silkworth. * * *
“A. * * * I told him that I had talked to his drivers and none of them was willing to pay the initiation fee into the union, but they didn’t have any objection to going in the union * * * if the Silk-worth Company would pay the initiation fee, and they had done it on previous occasions, so I couldn’t see any reason why they wouldn’t do it again. * * * He didn’t want to sign them up and * * * I told him that his trucks were going on union jobs and that the other companies were kicking about it, because a nonunion company was getting union business, and that I wanted his trucks for that reason, too. He said, ‘If I was to give you the trucks that are going on the union business, would that be all right?’ And I said ‘No. I want them all.’ * * *
“Donald Silkworth said that he thought four of them would go into the union. # * #
“He asked me what steps we would take if we couldn’t get the men and I told him we would use a picket line and that would stop his gasoline, * * *
“I never told, the Silkworths we would shut off fuel oil; we told him that fuel oil could go through. We have no desire to stop fuel oil. * * *
“We are only asking for the right to peacefully picket the place of business. We are willing to have the number of pickets designated by the court. * #
“I made efforts to organize the drivers before talking to Wesley., I interviewed the drivers without success. I didn’t succeed in getting them to join the union. * * *
“Q. So it was your purpose, because you didn’t get the $27.50 for each of his drivers, * * * to shut off that supply and you knew that the only way you could do it would be by establishing a picket line i * * *
“A. I didn’t do it to get the $27.50. * * *
“If we had the membership, and the $27.50, I wouldn’t have been over there as a picket. But if we would have a picket line, the men probably would join without the Silkworths putting up the money.
“Q. You knew you couldn’t get it (initiation fee) from the members, didn’t you?
“A. No. I could get it from the members, by a picket line.”
Defendant Flick testified in part as follows:
“ Q. You did contact some of the drivers. * # * And as a result of your contact, you didn’t succeed in getting them to join your union, did you?
“A. Well, I never asked them to. I talked to them about it but they said if they could get in * # * and it wouldn’t cost them anything, they would gladly join the union. * * *
■ “I was at the bulk plant December 20th. * * * Mr. Temple and I had arranged to establish a picket line to prove to the public that Silkworths were unfair to organized labor, and settle the labor dispute.
UQ„ What labor -dispute ?
“A. "Whether we should have all his members or part of them. # * * Some of them would say, ‘I have no objection to joining—.’ ”
There was no showing that plaintiffs had interfered with defendants’ efforts to unionize their drivers; and no satisfactory showing that plaintiffs’ drivers were willing to join the union even under a check-off system, whereby plaintiffs would pay their initiation fees and deduct the same from their wages. There was no strike and no showing of any argument or dispute between plaintiffs and their drivers over wages, hours of work, collective bargaining or terms and conditions of employment. Only one driver was called as a witness, and he testified in substance that he knew of no dispute between plaintiffs and their drivers, and that he was satisfied with his work and pay.
The question before us is whether or not the trial court was justified in enjoining defendants from picketing plaintiffs’ plant. We recognize that this question is of far-reaching and vital importance to the. best interests of unions of employees, to employers, and to the general public. Lafayette Dramatic Productions, Inc., v. Ferentz, 305 Mich. 193 (145 A. L. R. 1158). It should be noted that no anti-injunction law similar to the Norris-LaGuardia act (47 Stat. at L. 70, chap. 90 [29 USGA, § 101 et seq.]) has been adopted by either legislative enactment- or judicial decision in this State; also that Act No. 176, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 8628-1 et seq., Stat. Arm. 1943 Cum. Supp. § 17.454 [1] et seq.), relating to mediation of labor disputes, is not involved in this case.
We recognize that peaceful picketing has been upheld as an exercise of the right of free speech, and that a union may, by the process of peaceful picketing, make known the facts of a labor dispute, In Carlson v. California, 310 U. S. 106 (60 Sup. Ct. 746, 84 L. Ed. 1104), the supreme court of the United States said, p. 113:
“Publicizing the facts of a labor dispute in a peaceful way through appropriate means, whether by pamphlet, by word of mouth or by banner, must now be regarded as within that liberty of communication which is secured -to every person by the Fourteenth Amendment against abridgment by a State. ’ ’
In the case of Book Tower Garage, Inc., v. Local No. 415, International Union, U. A. W. A. (C. I. O.), 295 Mich. 580, Mr. Justice Bhtzel in the majority opinion said, pp. 586, 587:
“Peaceful' picketing is within the right to ‘make known the facts of a labor dispute, ’ and is lawful.
“The liberty of speech and press secured from Federal abridgment by the First Amendment to the Federal Constitution has been carried over and made a part of the fundamental personal rights and liberties secured from State abridgment by the Fourteenth Amendment. * * * It is the duty of the State courts as well as the courts of the Nation to guard and enforce every right secured by the Federal Constitution. Robb v. Connolly, 111 U. S. 624 (4 Sup. Ct. 544, 28 L. Ed. 542); Mooney v. Holohan, 294 U. S. 103 (55 Sup. Ct. 340, 79 L. Ed. 791, 98 A. L. R. 406). The Federal Constitution is ‘the supreme law of the land; and the judges in every State shall be bound thereby, anything in the-Constitution or laws of any State to the contrary notwithstanding.’ ”
See, also, Bakery & Pastry Drivers & Helpers Local 802 of the International Brotherhood of Teamsters v. Wohl, 315 U. S. 769 (62 Sup. Ct. 816, 86 L. Ed. 1178); Carpenters & Joiners Union of America, Local No. 213, v. Ritter’s Cafe, 315 U. S. 722 (62 Sup. Ct. 807, 86 L. Ed. 1143); American Federation of Labor v. Swing, 312 U. S. 321 (61 Sup. Ct. 568, 85 L. Ed. 855); Thornhill v. Alabama, 310 U. S. 88 (60 Sup. Ct. 736, 84 L. Ed. 1093); Senn v. Tile Layers Protective Union, 301 U. S. 468 (57 Sup. Ct. 857, 81 L. Ed. 1229); People v. Bashaw, 295 Mich. 503.
Defendants contend that a labor dispute existed and that under the Federal and State constitutional guarantees of freedom of speech, they were entitled to picket plaintiffs ’ plant in a peaceful way. Plaintiffs contend that there was no labor dispute; that the picketing was not in furtherance of a lawful labor objective, but was for the purpose of enforcing an extortionate demand. However, a decision of the question as to whether or not a labor dispute existed between plaintiffs and their employee drivers would not alone determine the question of defendants’ right to maintain a picket line. In recent decisions it has been held that although there was no controversy between an employer and his own employees, if the economic interests of other employees engaged in the same industry were affected, they could, through their labor union, publicize their grievance by the means of peaceful picketing. In Bakery & Pastry Drivers & Helpers Local 802 of the International Brotherhood of Teamsters v. Wohl, supra, the court said, p. 774:
“One need not be in a ‘labor dispute’ as defined by State law to have a right under the Fourteenth Amendment to express a grievance in a labor matter by publication unattended by violence, coercion, or conduct otherwise unlawful or oppressive.”
In American Federation of Labor v. Swing, supra, there was no labor dispute or controversy between Swing and his employees, who were not union members. When the union, composed of those engaged in beauty work, was unsuccessful in its attempt to unionize the workers in Swing’s beauty parlor, it picketed his place of business. Swing and his employees began suit and obtained an injunction enjoining such picketing. In upholding the union’s right to picket peacefully, the supreme court of the United States said, pp. 325, 326:
“All that we have before us, then, is an instance of ‘peaceful persuasion’ disentangled from violence and free from ‘picketing en masse or otherwise conducted’ so as to occasion ‘imminent and aggravated danger.’ Thornhill v. Alabama, 310 U. S. 88, 105 (60 Sup. Ct. 736, 84 L. Ed. 1093). "We are asked to sustain a decree which for purposes of this case asserts as the common law of a State that there can be no ‘peaceful picketing or peaceful persuasion’ in relation to any dispute between an employer and a trade union unless the employer’s own employees are in controversy with him.
“Such a ban of free communication is inconsistent with the guarantee of freedom of speech. That a State has ample power to regulate the local problems thrown up by modern industry and to preserve the peace is axiomatic. But not even these essential powers are unfettered by the requirements of the Bill of Rights. The scope of the Fourteenth Amendment is not confined by the notion of a particular State regarding the wise limits of an injunction in an industrial dispute, whether those limits be defined by statute or by the judicial organ of the State. A State cannot exclude workingmen from peacefully exercising the right of free communication by drawing the circle of economic competition between employers and workers so small as to contain only an employer and those directly employed by him. The interdependence of economic interest.of all engaged in the same industry has become a commonplace. American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184, 209 (42 Sup. Ct. 72, 66 L. Ed. 189, 27 A. L. R. 360). The right of free communication cannot therefore be mutilated by denying it to workers, in a dispute with an employer, even though they are not in his employ. Communication by such employees of the facts of a dispute, deemed by them to be relevant to their interests, can no more be barred because of concern for the economic interests against which they are seeking’ to enlist public opinion than could the utterance protected in Thornhill’s Case. ‘Members of a union might, without special statutory authorization by a State, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.’ Senn v. Tile Layers Protective Union, 301 U. S. 468, 478 (57 Sup. Ct. 857, 81 L. Ed. 1229).”
See, also, Cafeteria Employees Union, Local 302, v. Angelos, 320 U. S. 293 (64 Sup. Ct. 126, 88 L. Ed. 58) (decided November 22, 1943), which expressly reaffirms the holding in the Sluing,Case; People v. Bashaw, supra.
"While recognizing the right to picket peacefully for the purpose of publicizing the facts o.f a labor dispute, as established by "the above authorities, we also recognize that such picketing may become unlawful if directed to the accomplishment of an unlawful purpose. In Lafayette Dramatic Productions, Inc., v. Ferentz, supra, we said, p. 208:
“If the object sought to be obtained by defendants was not a lawful labor objective, the court would be justified in exercising control of their acts. ’ ’
See, also, Dorchy v. Kansas, 272 U. S. 306 (47 Sup. Ct. 86, 71 L. Ed. 248); Scavenger Service Corp. v. Courtney (C. C. A.), 85 Fed. (2d) 825; Opera on Tour, Inc., v. Weber, 285 N. Y. 348 (34 N. E. [2d] 349, 136 A. L. R. 267); Fashioncraft, Inc., v. Halpern, 313 Mass. 385 (48 N. E. [2d] 1).
Therefore, in the present case we must determine whether or not defendants’ picketing of plaintiffs’ storage plant was for the purpose of obtaining a lawful labor objective. The motive for the picketing, that is, the result sought to be accomplished, was a question of fact. The testimony is convincing that defendants’ real objective was to compel plaintiffs to put their drivers in defendant union by paying their initiation fees, regardless of whether or not the drivers wished to join. This was not a lawful labor objective. Defendants could not use the lawful means of peaceful picketing to accomplish such unlawful purpose.
To hold with defendants’ contention, under the facts and circumstances shown by the record, would provide a way whereby employers could be coercively compelled to pay union initiation fees for tb.eir employees, regardless of whether or not the employees wished to join the union. Such a course would not be in the furtherance of legitimate union aims and activities, nor would it be for the best interests of unions of employees.
We confine our holding in the present case to the point that defendants could not use the lawful means of peaceful picketing to accomplish their unlawful objective. However, our decision should not be construed as in any way limiting or restraining peaceful picketing in the accomplishment of a lawful labor objective.
For the reasons stated in this opinion, the decree of the trial court is affirmed. Plaintiffs shall recover costs of both courts.
North, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Eeid, JJ., concurred. | [
-16,
-6,
120,
-116,
8,
-32,
32,
-102,
29,
-95,
53,
83,
-51,
-29,
13,
9,
-17,
125,
113,
123,
-108,
-93,
83,
99,
-45,
-109,
-5,
-63,
57,
79,
-12,
81,
76,
48,
74,
-35,
-62,
64,
-60,
92,
-50,
36,
-87,
-22,
89,
-112,
52,
58,
52,
77,
81,
-122,
-61,
46,
28,
67,
45,
40,
-19,
43,
-63,
-7,
-22,
-123,
127,
2,
-94,
66,
-104,
-89,
-8,
30,
16,
52,
50,
104,
115,
-74,
-124,
116,
35,
-103,
-116,
34,
99,
83,
53,
-83,
-20,
92,
46,
-2,
-99,
-123,
-48,
56,
3,
-62,
-76,
-98,
96,
67,
-74,
-2,
90,
21,
31,
108,
6,
-49,
-74,
-29,
-113,
-12,
-108,
-125,
-21,
54,
20,
82,
-55,
-70,
95,
71,
50,
95,
-57,
-108
] |
Reid, J.
The circuit court for the county of Ingham in chancery on defendants’ motion dismissed plaintiff’s bill of complaint, which sought injunctive and other relief. Plaintiff appeals. Plaintiff’s principal reason for filing the bill is that defendants refused reciprocity as to certain vehicles claimed by defendants to be owned by residents of Michigan and leased to plaintiff, which is an Illinois corporation, and that defendants refused exemption as to those particular vehicles from payment of license plate and weight tax, public-utility mileage fees and filing fees.
A certain reciprocity agreement was made on November 26, J937, between duly authorized representatives of the States of Michigan and Illinois, which agreement was authorized on the part of the State of Michigan under Act No. 185, Pub. Acts 1937, effective July 12, 1937 (Comp. Laws Supp. 1940, '§ 422-1 et seq., Stat. Ann. 1946 Cum. Supp. § 9.1731 et seq.). Under the agreement, certain residents of Illinois, including corporations, are exempted from payment of license plate and weight tax,- public utility and mileage fees and filing fees. Defendant Michigan public service commission refused to renew a certificate of exemption as to the enumerated vehicles in question in this case on the ground they were owned by residents of the State of Michigan, though leased to plaintiff, an Illinois corporation. This refusal, plaintiff claims, was wrongful and against the lawful rights of plaintiff.
Plaintiff averred in its bill, of complaint, filed August 9, 1945, that it is without remedy save in a court of equity, and prayed that defendants be enjoined from collecting the taxes and fees in question, and further prayed that defendant reciprocity board-lie ordered to renew plaintiff’s exemption certificate so as to include in the exemption the excluded vehicles, and that the order of the public service commission dated July 11,1945, be amended by order of the court.
The question presented for review is whether or not the circuit judge was correct in granting defendants’ motion to dismiss.-
The reciprocity agreement contained the following:
“Said Michigan public utilities commission without fees or charge shall issue exemption plates or cards to the applicant, if an actual and bona fide citizen of Illinois within the intent of this agreement, which may be appropriate to applicant’s lawful operations. * * * Provided, that said commission’s general power to control, regulate and prevent abuses in the practice of carriers in hiring and leasing equipment to be operated by the drivers thereof, shall not be impaired by this agreement insofar as that power might affect Illinois registered equipment. ’ ’
There is attached to the bill of complaint as an exhibit a copy of the order of the Michigan public service commission (the successor to the Michigan public utilities commission). That order recites that the owners of vehicles denied the benefits of reciprocity are residents of Michigan, and finds that the purported lease agreement by which the Michigan-owned vehicles are leased by plaintiff does not constitute a bona fide lease. There is no averment in the bill of complaint that the said owners' are not residents of Michigan. The bill alleges that the action of defendant commission in denying reciprocity to the Michigan-owned vehicles is arbitrary, capricious and erroneous and contrary to the reciprocity agreement. There is also attached to the bill of complaint, an exhibit showing* the nature and ' terms of the lease agreement. The lease agreement contemplates that the owner of the vehicle is to be employed as the driver thereof with the result that the Michigan owner of the vehicle is driving his own vehicle on the highways of Michigan, in the employment of plaintiff, and plaintiff is demanding exemption from paying the charges that are due the State of Michigan. The defendant commission determined that the lease agreement was not bona fide. The allegations in the bill and the exhibits which are attached to the bill and made a part thereof are sufficient to justify defendant Michigan public service commission in concluding that the lease agreement is not bona fide. The statement in the bill that the action of the defendant commission is arbitrary, capricious, erroneous and contrary to the reciprocity agreement is a mere conclusion. There are no well pleaded facts to sustain that conclusion. The allegations in the bill and the attached exhibits which are made a part thereof are sufficient to justify defendant commission in withholding, under the reciprocity agreement, the benefits of reciprocity as to the vehicles in question.
It sufficiently appears that the so-called lease agreement under which plaintiff seeks the right to operate the vehicles owned by residents of Michigan is not a bona fide lease agreement but instead is an obvious attempt to enable Michigan owners of the vehicles involved to operate them on Michigan highways without paying the fees and charges imposed by Michigan statutes.
Since the foregoing appears on the face of the bill of complaint and is uncontroverted, the bill fails to state a sufficient reason for granting the relief sought.
• Defendants filed a motion to dismiss the bill as failing to state grounds for equitable relief. The decree appealed from dismissed the' bill in accordance with the motion.. The decree is affirmed, with costs to defendants.
Butzel, Bushnell, Sharpe, Boyles, and North, JJ., concurred. Carr, C. J., and Dethmers, J., did not sit. | [
-16,
-8,
-44,
-20,
42,
-96,
48,
-102,
91,
-31,
39,
87,
-83,
102,
17,
49,
-1,
127,
81,
123,
-59,
-78,
70,
34,
-13,
-77,
-7,
95,
-75,
79,
-28,
-11,
76,
33,
-54,
-35,
70,
-46,
-91,
26,
-50,
4,
-87,
-19,
-7,
-64,
52,
-23,
82,
9,
113,
-114,
-85,
46,
24,
-63,
-87,
40,
123,
-87,
-64,
-16,
-82,
7,
127,
6,
-125,
100,
-104,
1,
-8,
10,
-104,
49,
16,
-8,
115,
-74,
-126,
116,
75,
-99,
9,
38,
102,
-127,
20,
-27,
-52,
-100,
-82,
-6,
29,
-92,
-47,
89,
19,
13,
-73,
-97,
84,
18,
-84,
-2,
-34,
21,
87,
108,
5,
-82,
-74,
-111,
-81,
100,
-108,
3,
-17,
-126,
52,
81,
-60,
112,
93,
71,
59,
27,
-33,
-110
] |
North, J.
Plaintiff brought quo warranto proceedings to review his removal from the office of county road commissioner of Charlevoix county and appointment of defendant in his stead. The removal proceedings were conducted by the board of supervisors, under 1 Comp. Laws 1929, § 3981, which, provides :
“But a county road commissioner so appointed shall not be removed from office before the expira tiou of his term of office without being given due written notice of the charges made against him and an opportunity to appear before the board of supervisors for a hearing thereon.”
In view of the contentions of the parties, it is necessary to set up the records of the board of supervisors rather fully.
At a meeting of June 30, 1932, several supervisors joined in complaint against plaintiff and petitioned for a hearing. The charge was that the General Oil Company sold gas and oil to the board of county road commissioners when plaintiff was a commissioner and also a stockholder of the oil company, in violation of 1 Comp. Laws 1929, § 3985. By amendment, charges were also preferred against the other commissioners, Wangeman and Byers, for auditing bills of the oil company, knowing they were in violation of law. July 19th was set for hearing and the board adjourned to that day.
On July 19th the hearing was had. The board of supervisors was represented by the prosecuting attorney and an assistant attorney general. Plaintiff and Byers had counsel. Wangeman conducted his own defense. Testimony was taken, arguments were ■had and a motion was carried “that the matter of removing said members of the board of road commissioners from office be brought to a vote at once.” A short recess was taken. When the board reconvened, the roll was called, with 24 supervisors present and one absent, and motion was made ‘ ‘ that said members of the road commission be voted on in order-of their expiration of office and that W. E. Byers be retained as county road commissioner until the expiration of his term.” An amendment that plaintiff be voted on first was offered and declared out of order. Thereupon “supervisors voting aye being to retain said member, supervisors voting nay being to remove said member,” tbe vote was taken and entered and “tbe majority votes being ayes, said commissioner W. E. Byers was retained for tbe expiration of bis said term.”
Motion was made “that F. H. Wangeman be retained as county road commissioner until tbe expiration of bis term.” The vote was taken and entered that “the following supervisors voted aye, being to retain said commissioner. # * * Tbe following supervisors voted nay being to remove said commissioner. * * * Tbe majority votes being ayes, said commissioner F. H. Wangeman was retained until the expiration of bis term.”
Motion was made “that L. C. Rouse be retained as commissioner until tbe expiration of bis term. The clerk called tbe roll and tbe following supervisors voted aye, being to retain said commissioner. * * * Tbe following supervisors voted nay, being to remove tbe said commissioner. * * * Twenty-four votes cast, of which 12 were ayes and 12 were nays. It being a tie vote, it was declared that said commissioner L. C. Rouse be retained.”
Tbe board then adjourned.
Tbe regular annual meeting of tbe board of supervisors commenced October 10th. On that day tbe minutes of tbe previous meetings were read and approved as read. A resolution was offered and adopted requesting tbe immediate resignation of plaintiff as county road commissioner for violation of 1 Comp. Laws 1929, § 3985. An amendment that the resignation of tbe other members be requested was lost. Tbe clerk was instructed to request plaintiff to present bis resignation within 24 hours.
October 12th a resolution was adopted that charges be filed against plaintiff for official miseon duct in violating 1 Comp. Laws 1929, § 3985, and in allowance of claims and making of contract not in accordance with the best interests of the county; that the prosecuting attorney be directed to draft such charges as the evidence warrants, a copy be served on plaintiff, and a hearing be had on October 17th. No charges were drafted but a copy of the resolution was left at plaintiff’s residence.
October 17th plaintiff’s attorney filed written demand for specifications of the charges and denied the authority of the board to retry him on the former complaint. The board then adopted a resolution, reciting the hearing of July 19th, that “we did adjourn without deciding the guilt or innocence of said commissioners and without taking a vote thereon, the said cause being unfinished business,” and, by the resolution, finding Byers and Wangeman not guilty, that the charges against plaintiff were true in that he had violated 1 Comp. Laws 1929, § 3985 by reason of the G-eneral Oil Company, “of which he was manager and also'joint owners of the real estate used in the business of said company, ’ ’ selling products to the commission, that he was subject to removal and declaring him removed and his office vacant. On the same day defendant was appointed commissioner for the unexpired term of plaintiff.
Plaintiff contends the proceedings for removal were completed on July 19th and the declaration of his retention in office was final. Defendant claims the vote at that meeting was meaningless, was “parliamentary legerdemain,” and especially that the tie vote on plaintiff was without effect and the matter remained unfinished business for the next meeting of the board.
The statute does not set up the machinery for the removal proceedings. It does not require a vote of guilty or not guilty of the charges. The board might find the charges proved but not of a character to justify or require removal from office. The question was whether the accused should be removed from office or be retained. The board had ample legal advice and it is a fair inference that the question for vote was framed within the statute. But inferences need not be relied upon. The constant repetition in the record of the effect of the vote, both before and after it was taken in each case, leaves no doubt that the supervisors intended, on July 19th, to exercise their powers under the statute and to determine the question of removal of each commissioner. It is apparent the board considered that the action was final until after their request for plaintiff’s resignation was ineffective and the protest of plaintiff’s counsel against retrial on. the same charges was received, when someone conceived the idea of treating the former proceedings as unfinished business. The tie vote on plaintiff’s removal was effective in his favor because, regardless of the form of the question, a majority is necessary to remove an officer.
In our opinion, the proceedings of July 19th were final, the tie vote as to plaintiff resulted in his retention in office, and no further proceedings could be had to remove him without new statement of charges and chance to be heard.
Judgment for defendant is reversed and cause remanded for entry of judgment for plaintiff, with costs of this court.
Nelson Sharpe, C. J., and Potter, Pead, Wiest, Butzel, and Edward M. Sharpe, JJ., concurred. Bushnell, J., did not sit. | [
-12,
-20,
-8,
-52,
42,
-31,
58,
-78,
90,
-77,
101,
115,
-23,
-46,
17,
63,
-69,
127,
-43,
107,
-59,
-78,
90,
67,
-73,
-77,
-39,
-49,
-70,
-49,
-12,
-11,
25,
48,
-118,
-11,
-58,
96,
-113,
84,
-122,
3,
-119,
-24,
-39,
-64,
48,
57,
18,
-117,
117,
-50,
-29,
44,
17,
-21,
41,
44,
-33,
-85,
-48,
115,
-102,
-115,
111,
6,
-77,
4,
24,
-125,
-8,
46,
-104,
49,
-80,
-8,
115,
-90,
-122,
116,
1,
-103,
40,
38,
67,
17,
5,
-81,
-24,
-40,
28,
-78,
13,
-89,
-7,
121,
-61,
10,
-106,
-101,
84,
82,
-122,
126,
-20,
-123,
91,
44,
3,
-54,
-78,
-61,
-116,
124,
-116,
16,
-57,
5,
52,
113,
-49,
-2,
93,
70,
49,
91,
70,
-110
] |
North, J.
By its bill of complaint, plaintiff, on grounds hereinafter stated, seeks cancellation of an insurance policy. By her cross-bill defendant prays that payment of the policy be decreed. Decree was in accordance with the prayer of the cross-bill and plaintiff has appealed.
The insured, Walter E. Modzelewski, was defendant’s husband. On March 17 or 18, 1929, he made application to plaintiff company for a policy of life insurance in the amount of $2,500. The insured was examined by plaintiff’s physician March 19th. The examination disclosing no reason to the contrary, plaintiff’s medical examiner reported the applicant as an acceptable risk. A policy was issued March 23, 1929, effective as of February 9, 1929. A receipt dated March 26th for the payment of the first premium was delivered by plaintiff’s agent to defendant; and the policy was delivered not later than April 5, 1929. The application for the policy contained the following:
‘ ‘ That the insurance hereby applied for shall not take effect unless and until the policy is delivered to and received by the applicant, and the first premium thereon paid in full during his lifetime, and then only if the applicant has not consulted or teen treated ty any physician since his medical examination.”
At the time the application was signed by the insured he was engaged as a spot welder in an. industrial plant. He remained in such employment until April 2, 1929; and the foreman testified that he “never noticed anything wrong with” insured prior to the day he quit. On that day the insured told his foreman “he was sick and was quitting.” On March 23d, four days'after the insurance company’s physician examined the insured, he consulted a chiropractor, Leo A. Temrowski. He also called upon and was- treated by this chiropractor on April 1, 3, and 6, 1929. From the testimony of the chiropractor it appears that the insured at that time had symptoms of pleurisy in the region of the heart, that he had loss of appetite, constipation, and “had not been feeling good for about a year. * * * I did not determine that he had tuberculosis, but I suspected it.” April 5, 1929, the insured was exam ined at the Herman Kiefer hospital and a provisional diagnosis of tuberculosis resulted. This was verified April 28, 1929, by an examination of the patient’s sputum. However, during the months of May, June, and July, 1929, he worked, but not steadily, in a butcher shop. There is testimony that he appeared to be well and healthy until July or August of that year. He died of pulmonary tuberculosis January 10,1930. The certificate of death gave the duration of the disease as four months.
Cancellation is sought on the ground that the insurance did not become effective because, in violation of the application above quoted, the applicant consulted and was treated by a physician after his medical examination and prior to delivery of the policy. As against this contention the defendant asserts that under the law of Michigan a chiropractor is not a physician and hence treatment of the insured by a chiropractor did not prevent the policy becoming effective upon delivery. See Erdman v. Great Northern Life Ins. Co., 253 Mich. 579, wherein it is held that a chiropractor is not a licensed physician or surgeon. Plaintiff contends that notwithstanding the holding just above noted a chiropractor should be held to be a “physician” within the meaning of the quoted portion of the application for insurance in the instant case. The application blank, like the insurance policy,, was prepared by the insurance company; and hence it should be read in terms most favorable to the insured. So read, the word “physician” must be held to mean a legally licensed physician or doctor of medicine. Such is the meaning that a reading of the application would convey to the ordinary lay mind. Under our holding in Erdman v. Great Northern Life Ins. Co., supra, a chiropractor is not a licensed physician. It fol lows that notwithstanding the insured consulted a chiropractor and was treated by him as above noted, the insurance became' effective upon delivery of the policy.
Plaintiff also asserts the right to cancellation on the theory that the insured’s representation in his application (March 17th or 18th) as to the condition of his health, was a material representation, and if the insured, prior to the delivery of the policy (not earlier than March 26th or later than April 5th), learned that such representation was contrary to the fact, he was obligated to so advise the insurance company; and that his failure to do so was a breach of good faith and a fraud that justifies cancellation. As to the facts material to plaintiff’s contention, it relies upon the record showing that the insured consulted a chiropractor March 23d, and the policy was delivered on or between March 26th and April 5th. We will advert to this phasé of the record shortly. As to the legal aspect of this phase of plaintiff’s case it cites numerous authorities, and quotes and relies upon Stipcich v. Metropolitan Life Ins. Co., 277 U. S. 311, 316 (48 Sup. Ct. 512), wherein it is said:
“For, even the most unsophisticated person must know that in answering the questionnaire and submitting it to the insurer he is furnishing the data on the basis of which the company will decide whether, by issuing a policy, it wishes to insure him. If, while the company deliberates, he discovers facts which make portions of his application no longer true, the most elementary spirit of fair dealing would seem to require him to make a full disclosure. If he fails to do so the company may, despite its acceptance of the application, decline to issue a policy, Canning v. Farquhar, 16 Q. B. D. 727; McKenzie v. Northwestern Mutual Life Ins. Co., 26 Ga. App. 225 (105 S. E. 720), or if a policy has been issued, it has a valid defense to a suit upon it.”
The Stipcich Case is cited and quoted in New York Life Ins. Co. v. Abromietes, 254 Mich. 622. We may concede the correctness of the legal aspect of plaintiff’s contention, but the facts disclosed by this record render it inapplicable. The portion of the insured’s application which plaintiff asserts was false is as follows:
“No. 8. Have you ever consulted a physician or practitioner for or suffered from any ailment or disease of, * * * b. The heart, blood vessels or lungs? No.
“No. 7F. Have you gained or lost weight in the last year? No.”
There -is no competent testimony in this record tending to prove the insured had any knowledge that he had ever been afflicted with any of the physical ailments referred to in question eight quoted, nor does the record establish falsity of the insured’s statement that he had neither gained nor lost weight. While the Insured consulted a chiropractor before delivery of the policy, the testimony of this chiropractor discloses that the insured had not consulted him prior to March 23, 1929, that the insured had a ‘ ‘ sharp, shooting pain just below his nipple on his left side,” that the chiropractor suspicioned pleurisy, and later in his testimony he stated he suspicioned the patient had tuberculosis. However, the record does not disclose that the chiropractor advised the insured of his suspicions. It does not appear from the record that the insured prior to the time the policy was delivered was possessed of any information concerning his physical condition which he was in duty bound to communicate to the insur anee company. He had submitted to a physical examination by the company’s physician, and, so far as appears from this record, had answered truthfully each inquiry made of the insured by the examiner. It was not until some time after the delivery of the policy that the- insured was advised that he had tuberculosis. He continued to work for some months thereafter and his death did not occur until January 10, 1930. Plaintiff’s case did not entitle it to cancellation and the circuit judge properly so held.
The decree entered in the circuit court awarding defendant the amount due on the insurance policy is affirmed, with costs.
Nelson Sharpe, C. J., and Potter, Fead, Wiest, Btjtzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
-80,
-4,
-12,
-115,
8,
32,
42,
26,
95,
33,
53,
83,
-51,
-9,
84,
109,
-47,
61,
65,
114,
-105,
-93,
23,
42,
-42,
-77,
-23,
-123,
-72,
-33,
-28,
-65,
77,
40,
10,
-107,
-94,
82,
-59,
16,
-56,
4,
-115,
-24,
-39,
64,
48,
123,
80,
71,
49,
-98,
-25,
46,
19,
-57,
41,
44,
90,
-71,
-48,
-32,
-117,
5,
127,
18,
-95,
4,
-104,
47,
-6,
8,
-104,
49,
106,
-32,
114,
-90,
-58,
52,
39,
-71,
16,
98,
35,
49,
21,
-3,
-56,
-104,
63,
120,
29,
-123,
-77,
121,
-102,
12,
-68,
-101,
100,
28,
-122,
120,
-20,
-108,
29,
32,
0,
-102,
-44,
-77,
-49,
-12,
-100,
-81,
-18,
-89,
38,
116,
-49,
48,
95,
71,
121,
59,
62,
-106
] |
Fead, J.
The suit, founded upon a claim of fraud, is to set aside a sale of corporate assets, for injunc tion, accounting and damages. The court gave money decree to plaintiffs.
From 1923 to 1930 plaintiffs Benton, a bookkeeper, and Meier, a foundryman, were partners as White Iron Foundry Company. Their principal products were mill stars, used to polish castings. The business was small but had been successful. In 1930, however, the situation was grave and the outlook dark. The book value of the assets was about $15,000, including $2,000 for buildings on leased property, $4,845 for patterns of more or less doubtful value, and machinery carried at $3,700. The debts were about $8,000, besides taxes of $1,600. The plant was on property of the Grand Trunk Railway Company, rent of $875 was unpaid and the railway company had canceled the lease by notice. The firm owed plaintiff Smith $2,600. The claim was in the hands of an attorney who was threatening bankruptcy proceedings. Another creditor had taken judgment.
Defendant Wiener was manager and principal stockholder of the Michigan Foundry Supply Company, engaged in the scrap metal business. He had dealt with plaintiffs for some years. The Grand Trunk Railway Company approached him and induced him to lease the property occupied by the partnership. The lease was formally executed later but was effective as of January 2, 1931. It ran to the supply company for a term to December 31, 1935.
After negotiations, a new corporation was formed by plaintiffs, Wiener and a banker, Wagner, called the Inland Foundry Company, to which plaintiffs Benton and Meier conveyed the partnership property in payment for stock. With the exception of a few shares, Benton and Meier took one-third of the stock for their partnership assets and business, Smith one-third for his claim of $2,600, and Wiener one-third.
Wiener became manager, Benton kept the books and Meier was production foreman. The business lost $2,000 in 1931 because of economic conditions. In the spring of 1932 difficulty arose and Wiener proceeded to close up the corporation. He had the supply company bring summary proceedings for the possession of premises for nonpayment of rent and also to bring suit for a debt. Judgment was entered in both actions and, in the latter, execution issued and practically all the corporate assets were seized and sold to the supply company. About that time also a levy was made for taxes and some of the property sold. Shortly thereafter the corporation was dissolved by action of the stockholders.
The theory of plaintiffs is that the whole transaction, from the formation of the corporation to the execution sale of assets, was a fraudulent scheme on the part of Wiener to acquire their property. The court determined the facts in favor of plaintiffs’ theory. It found the value of the partnership as $5,500. It held that Smith’s claim of $2,600 against the firm was worth only $1,500 because of the financial condition of the partnership. It entered judgment for Smith for $1,500 and for the other plaintiffs each $2,000.
The details of the claimed fraud need not be set up because we think the record does not justify relief to the plaintiffs.
The testimony upon values of the partnership property is most unsatisfactory. Meier said the firm assets were worth book value. Defendants say they were not worth over $500. The record contains no middle ground. With the lease terminated, it would have been nothing less than a financial miracle if the firm property could pay the firm debts. The firm could be continued in business only by sufferance of its creditors and Wiener. The partnership debts were assumed by the Inland Foundry Company, except $850 assumed by Meier, and, so far as the record shows, the partners have had the benefit of relief from obligations which might have been enforced against their personal assets. In holding that Smith’s claim was worth only $1,500, the court obviously determined that the partnership could not pay its debts in full.
It is apparent that, upon any fair appraisal, the property would not have been sufficient to liquidate the firm debts assumed by the corporation, and, as a matter of fact, the partners lost nothing of value. It is a case of damnum absque injuria.
About the time the corporation was dissolved, Smith and Wiener had negotiations for the organization of a new corporation. Later a written instrument was executed to the effect that Smith would accept 400 shares in a new corporation in consideration of all his claims, and he agreed to waive and cancel all claims he had against defendants because of his interest in the Inland Foundry Company. A new corporation has not been formed but the record does not show that Smith has repudiated the agreement. Smith’s testimony does not indicate that he was at all under the domination of Wiener. He is a business man, able to take care of himself. He was diligent in looking after his own affairs. His agreement to participate in a new corporation did not contemplate any salvage to Benton and Meier. If Wiener wrecked the corporation, through his suits against it, with intent to defraud creditors, Smith must have known his purpose. We think, on the record, Smith has no call for equitable relief in this proceeding but should be left where he has placed himself.
The decree as to Smith will be reversed without prejudice to any other right of action he may have against defendants. The decree as to Benton and Meier will be reversed and their bill dismissed, with costs of this court to defendants.
■ Nelson Sharpe, C. J., and Potter, North, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
-16,
-8,
-72,
-20,
26,
96,
32,
-102,
121,
98,
-91,
19,
-35,
-58,
5,
93,
-25,
93,
113,
123,
55,
-109,
23,
43,
-46,
-109,
-5,
-51,
-71,
77,
-12,
87,
76,
32,
66,
-100,
-30,
-108,
-59,
124,
94,
-124,
59,
-22,
-7,
112,
48,
-53,
116,
77,
81,
-84,
-7,
46,
53,
79,
9,
42,
-17,
-87,
-16,
-15,
-94,
100,
111,
22,
-95,
4,
-104,
71,
-56,
10,
-104,
49,
-123,
97,
115,
-74,
70,
116,
33,
-87,
12,
106,
99,
17,
17,
-25,
-8,
24,
63,
-5,
-99,
-91,
112,
92,
-110,
59,
-68,
-97,
116,
19,
-121,
-2,
-18,
5,
27,
104,
3,
-113,
-26,
-14,
-113,
110,
-36,
3,
-17,
-93,
50,
112,
-54,
2,
94,
7,
122,
59,
-57,
-43
] |
Butzel, J.
Boesky Brothers Twelfth Street Corporation brought suit against the United States Fidelitjr & Guaranty Company, on an insurance policy issued by the latter, to recover a loss by robbery within the insured’s place of business, a restaurant in the city of Detroit. The policy limited the recov ery to robbery from within the insured premises while “at least one custodian is on duty therein.” On August 14,1933, Harry Boesky, plaintiff’s secretary and treasurer, closed the restaurant at 3:30 a. m. He took two of his employees and some others to their homes, and then drove to his own home about five or six blocks from the restaurant. As Boesky alighted from his automobile, a man jumped out of a Ford coupe, and forced him, at the point of a gun, to return to his car, drive back to the restaurant, unlock the door, and open the safe. Boesky hesitated a few moments before opening the safe, but with the pressure of the gun at his side, and a warning by the robber that he would kill him if he did not “quit stalling,” he soon complied. The robber took a box containing over $830 and escaped, after warning Boesky under penalty of death to remain 15 minutes longer in the premises. -
The sole question in the case is whether recovery may be had under the circumstances above stated, on a policy limiting the coverage to theft of property from within the premises while at least one custodian is on duty therein. The trial judge stated that the question was not free from doubt, but rendered judgment in favor of plaintiff, basing his decision upon the general principle that the insurance company, in order to protect itself against liability, must insert in the policy language free from all ambiguity, thus enabling the insured to know the limitations of his policy. There is no question but that, in a case of ambiguity, the language must be strongly construed against the insurer. The courts have no patience with attempts by a paid insurer to escape liability by taking advantage of an ambiguity, a hidden meaning, or a forced construction of the language in a policy, when all question might have been avoided by a more generous or plainer use of words. We have gone far in denying any such defense on the part of an insurance company. See Birgbauer v. Ætna Casualty & Surety Co., 251 Mich. 614.
The question, however, arises whether there is any ambiguity in the present policy. The construction of the language in question has been before the courts in other cases to which our attention is directed. The factual set-up differs slightly in each of these cases, and the decisions reveal a wide divergence of judicial opinion. The conflict is strikingly illustrated in volume 257 of the Illinois appellate reports. On page 65 appears the case of Milkes v. United States Fidelity & Guaranty Co., in which an Illinois court of appeals held that there was no liability; while on page 227 of the same volume is reported the case of Fee v. Zurich General Accident & Liability Insurance Co., Ltd., in which another appellate court held that the insurer was liable. Fox West Coast Theatres, Inc., v. Union Indemnity Co., 167 Wash. 319 (9 Pac. [2d] 78), and Feigenbaum v. Ætna Casualty & Surety Co., 240 Ill. App. 502, also support plaintiff’s position.
We do not believe there is any ambiguity in the language employed in the present policy, limiting recovery to robbery from within the premises while “at least one custodian is on duty therein.” The plain meaning and evident purpose of the words “on duty” was that at‘the time of the robbery there should be someone on duty, who might be able to-offer resistance or give an alarm, thus minimizing the risk of loss. When Boesky, with his employees, left the premises, there was no longer anyone on duty therein. When Boesky later returned under coercion by a robber who pressed a revolver against his side, it cannot he said that he was then on duty. He was no longer a free agent, bnt, on the contrary, an instrument or means of assisting the robber. He was no longer in a position to perform his duties, which he had ceased to exercise when he first left the premises.
In the case of H. & S. Pogue Co. v. Fidelity & Casualty Co. of New York, 299 Fed. 243 (in which the circuit court of appeals for the sixth circuit upheld an opinion by the late Judge Hickenlooper, who subsequently became a member of the United States court of appeals), the policy limited recovery to losses occurring while there were two or more adult persons present on duty within the premises. Only one watchman whs present when the robbers entered. A second watchman later appeared, and he also was overcome. In denying liability, the court of appeals adopted the language of the trial court, as follows:
“ ‘Present on duty’ includes, not only physical or bodily presence at the place, but a certain amount of freedom for the performance of duties. One wholly unconscious, or wholly deprived of liberty of action, could scarcely be held to be present on duty, although perhaps bodily present. * * * The very purpose of the requirement of the presence of two employees is that, if more than one be present, the chance of giving an alarm or securing the assistance of the police is thereby greatly increased; while one is being overcome the other might possibly escape and bring help. This purpose is clearly defeated if the one has been wholly deprived of his freedom and volition before the other arrives.”
We believe the same reasoning applies where the policy requires the presence of only one person on duty, and where that person, after having left the premises, is brought back under such duress that he can no longer perform his duties.
The judgment is reversed, without new trial, and with costs to defendant.
Nelson Sharpe, C. J., and Potter, North, Pead, Wiest, and Edward M. Sharpe, JJ., concurred. Btjshnell, J., did not sit. | [
-80,
-7,
-39,
-3,
25,
-32,
42,
-6,
127,
-24,
-89,
-45,
-55,
-41,
21,
39,
-75,
121,
117,
81,
-75,
-89,
23,
3,
-10,
115,
-13,
-123,
48,
-53,
110,
92,
12,
32,
-62,
81,
-94,
-62,
-51,
-68,
-118,
12,
-70,
-15,
-67,
81,
32,
122,
68,
70,
113,
-113,
-93,
34,
-110,
79,
-119,
40,
74,
-87,
-32,
120,
-49,
5,
127,
16,
-95,
68,
-72,
35,
-48,
12,
-100,
83,
48,
-24,
115,
-73,
-58,
125,
37,
11,
-128,
98,
103,
16,
1,
79,
-32,
-99,
38,
-85,
-113,
-122,
-76,
105,
3,
14,
-97,
-97,
121,
28,
6,
124,
-4,
92,
93,
104,
21,
-97,
-44,
-77,
-23,
124,
-68,
-89,
-9,
19,
39,
80,
-50,
-84,
93,
69,
122,
-77,
10,
-59
] |
Carr, C. J.
Plaintiff Harry A. Tumey was employed by the city of Detroit, department of street railways, during the period from January 1, 1932 to October 1, 1933. Claiming that deductions during said period were made from his salary under an arrangement whereby he was entitled to recover the amount thereof, he brought suit in the circuit court of Wayne county. The declaration álleged that defendant withheld from plaintiff’s salary five per cent, during the months of January and February, 1932,10 per cent, thereafter until August 1, 1932, 55 per cent, during August, 10 per cent, from September 1, 1932, until January 1, 1933, and 24.3 per cent, thereafter until October 1, following. It was further alleged that plaintiff was promised that when funds became available the amounts so withheld would be repaid, that plaintiff performed his services in accordance with such agreement, that funds became available to make payment in accordance therewith, but that defendant refused to discharge the obligation claimed. The declaration, also, included the common counts in assumpsit.
Defendant filed its answer denying the existence of any contract or agreement to pay plaintiff the sums deducted from his salary and asserting ’that such salary was in fact reduced from time to time by the street railway commission. Defendant further claimed that plaintiff had been paid all salary owing to him and, hence, that there was no further liability on defendant’s part. The statute of limitations was also pleaded.'
Other parties, employees of defendant during the period in question, brought actions of like character, the pleadings and issues being identical, except as to names and amounts claimed, with those in the suit started by Mr. Turney. Seventeen cases were started by administrators, either general or special, of the estates of deceased employees. All suits, 286 in number, were commenced during the period beginning March 27, 1942, and ending December 7, 1943. By agreement of counsel the cases were consolidated for trial before a jury.
At the conclusion of the proofs, defendant moved for a directed verdict, claiming in substance that there were no factual issues to be submitted to the jury and that under the showing made plaintiffs were not entitled to recover. The motion was taken under advisement under the provisions of 3 Comp. Laws 1929, § 14531, as amended by Act No. 44, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 14531 [Stat. Ann. 1946 Cum. Supp. § 27.1461]), andtbe questions in issue were submitted to the jury, which returned a verdict in favor of plaintiffs for the full amount of their claims, with interest from July 1,1939. Thereafter, defendant moved for judgments notwithstanding the verdict, which motion was granted in part and denied in part. Separate judgments were entered for plaintiffs in accordance with the determination of the trial court. All parties have appealed.
Pertinent provisions of the charter of the city of Detroit are found in title 4, chap. 13, which provides for the operation and maintenance of a street railway system. A board of street railway commissioners was created pursuant to such provisions^ with full authority, subject to the approval of the mayor, to supervise, manage and control the system, “as fully and completely as if said board represented private owners.” Authority was specifically granted to appoint a general manager and other employees, and to make payment of expenses out of the earnings of the railway system. The charter provisions in force during the period involved in these cases were sufficiently broad in scope to cover all matters concerning employees, and other details of operation.
In the latter part of 1931, it was considered nécessary by the street railway commission to reduce costs of operation to accord with reductions in income. December 22, 1931, a resolution was adopted by the street railway commission, referring to 33 salaried positions, and directing the general auditor to “deduct 10 per cent, from the salaries after each of the positions shown above and credit the amount so deducted to an account to be termed: ‘Emergency contributions from salaried employees.’ ” On December 29th, following, a second resolution was adopted, effective as of January 1, 1932, providing for a like deduction of 10 per cent., applicable to all positions carrying a salary of $250 a month or more, and five per cent, from all salaries from $100 to $225 a month, inclusive. As in the prior resolution all such deductions were required to be credited to “Emergency contributions from salaried employees.” Under date of January 6, 1932, the general manager of the street railway system issued a notice to employees with reference to the action of the commission, stating therein that deductions from salaries would be made accordingly, and that the amounts thereof would be credited to the account designated.
By ordinance No. 146-C, approved January 6, 1932, the common council of the city of Detroit provided that all officers and employees of said city, other than those of the street railway system, should contribute to the city a sufficient number of days’ work each pay period so that the amount of their contributions would equal 10 per cent, of the salaries or wages of officers and employees generally, and an additional 10 per cent, of the' salaries or wages of. officers or employees receiving in excess of $4,000 per year. Subsequently, ordinance No. 166-C was adopted, referring to the prior ordinance and providing for further contributions by officers and employees of the city. The construction of said ordinance Nq. 166-G was before this Court in Detroit Municipal Employees Ass’n v. City of Detroit, 310 Mich. 480, 'in which it was held that the deductions from salaries and wages made thereunder did not constitute reductions in pay and were, in fact, contributions that were to be repaid later when payment became possible.
On the trial in circuit court plaintiffs contended that they were given assurances by- the general manager and by other supervisory officers of the street railway system that they would receive the sums deducted from their respective salaries as set forth on the payrolls of the defendant when funds became available for that purpose. It was further contended that the services were rendered, and accepted, in reliance on such representations and that, under the circumstances disclosed by the proofs, the street railway commission was bound by the statements of its general manager on the ground of express or implied authority, or of ratification. It was also claimed that additional deductions, subsequently authorized, were made pursuant to the policy evidenced by the alleged agreement.
At a meeting of the commission held March 1, 1932, another resolution was adopted, referring to ordinance No. 146-C and providing for the payment of salaries in strict compliance therewith. This was followed July 28,1932, by action requiring, in terms, that during the month of August following, the pay of salaried employees, other than those on half time, be reduced an additional 50 per cent.; and on December 22, 1932, on the recommendation of the general manager, a further reduction in the sum of 14.3 per cent, was authorized. The reductions, or deductions, contemplated by the various resolutions of the commission, other than that applicable solely to the month of August, 1932, continued in effect until October 1,1933.
The trial court submitted to the jury the question whether, under all the proofs, there was a contract or agreement obligating defendant to pay to plaintiffs the sums deducted from their salaries, pursuant to resolutions of the street railway commission, when funds became available for such payment. The jury was charged, in substance, that plaintiffs could not recover unless such agreement was made as claimed. A careful examination of the entire record brings us to the conclusion that the issue was factual and that it was properly submitted to the jury for determination.
The action of the street railway commission in establishing the account, designated as “emergency contributions from salaried employees, ’ ’ and carry-dug on the payrolls the salaries of the plaintiffs in the amounts originally fixed therefor, was not consistent with the claim of the defendant that the salaries were, in fact, reduced. It further appears that warrants, signed by the president of the commission, were issued to the city treasurer, in the full amount of the payrolls; that the city treasurer made deposits in the payroll account in such sums as to cover the salaries in full; that the certification to the civil service commission of salaried employees set forth the respective salaries payable to each in accordance with the payrolls without reference to deductions or reductions; that the general ledger of the defendant, in the account entitled “wages payable” carried the full amount of such salaries as indicated by the payrolls; and that January 16, 1932, Joseph E. Mills was hired as general manager at a salary of $15,000 a year,' “less a 20 per cent, reduction under the emergency contribution policy of the department” which salary was carried on the payrolls rather than the sum that he actually received after the deductions had been made. It was for the jury to determine whether such acts involved merely matters of bookkeeping, as. claimed by defendant, or whether, interpreted in the light of the situation established by the proofs, they indicated the existence -of the agreement on which plaintiffs relied. Likewise, whether the general manager had authority, express or implied, to make the statements above referred to, and the question whether there was ratification by the commission if actual authority was lacking, were for the jury.
In passing on the motion for judgments notwithstanding the verdict, based on the grounds alleged in support of the prior motion for a directed verdict, it was the duty of the court to construe the proofs as strongly as possible in favor of plaintiffs. Anderson v. Kearly, 312 Mich. 566; Lane v. B & J Theatres, Inc., 314 Mich. 666. A verdict of a jury may not properly be set aside unless found to be against the overwhelming weight of the evidence. McConnell v. Elliott, 242 Mich. 145; Werker v. McGrain, 315 Mich. 287. On the record before us it cannot be said that it was against such weight, at least as to the deductions from salaries made under the first three resolutions of the street railway commission, above mentioned. The additional deductions provided for by the resolutions of July 28, 1932, and December 22, 1932, will he discussed further in passing on plaintiffs’ cross-appeal.
Defendant further claimed on the trial that the statute of limitations barred recovery by plaintiffs. Under the agreement that the jury found had been made, plaintiffs could not have maintained their suits to recover the sums deducted from their salaries until funds became available out of which payment might properly have been made. It was contended by defendant'that the financial statements of the Detroit street railway system, as of June 30, 1934, and June 30, 1935, disclosed that during those fiscal years operations were on a profitable basis; and that substantial balances remained in each year after tbe payment of the costs of operation, which might-have been used to pay plaintiffs’ claims. The existence of favorable balances, however, was not" sufficient to establish that funds were actually available for payment to plaintiffs. On behalf of plaintiffs it was shown that requests for payment were made of the officials of the street railway system and that such requests were denied, it being claimed that funds were not available therefor. It was further contended that the failure on the part of defend; ant to advise plaintiffs that their claims could be • paid, estopped defendant from relying on the statute of limitations. The claims of the parties with reference to the question whether more than six years had elapsed after funds became available for payment and- before the starting of the suits were submitted to the jury. The issue based on the claim of estoppel was also submitted. It is apparent from the verdict returned that the jury found either that the statute had not run or that defendant was es-topped to assert it.
Under the facts of this case we think the burden of proof rested on the defendant to establish its claim that funds were available more than six years before plaintiffs’ actions were commenced. Neither plaintiffs’ pleadings nor their "proofs indicated that the time prescribed by the statute had elapsed before the suits were started. In 3 Callaghan’s Michigan Pleading «fe Practice, pp. 545, 546, it is said:
“Generally, however, the burden is upon a defendant who relies upon a statute of limitation as a defense to prove facts which bring the case within the statute, unless such facts are sufficiently shown by the plaintiff’s evidence. Thus, where that fact is essential, the defendant has the burden of proving that a writ was not issued on its date. Where the defendant has resided a part of the time in another state or country, he has the burden of showing that the sum of the times of his presence within the jurisdiction is sufficient to satisfy the statute. And where the defendant is a foreign corporation, the burden is upon it of showing that it had complied with the statutory provision for service of process upon it in Michigan, so as to be considered, for the purpose of being sued, as domiciled in this State.”
The language of the text is supported by the decisions of this Court. See McLaughlin v. Aetna Life Ins. Co., 221 Mich. 479, and cases there cited. See, also, 34 Am. Jur. p. 352; Van Buskirk v. Kuhns, 164 Cal. 472 (129 Pac. 587, 44 L. R. A. [N. S.] 710, Ann. Cas. 1914 B, 932). In the case at bar it cannot be said as a matter of law that plaintiffs’ rights of recovery were barred by the statute. Under the proofs the issue was one of fact for the determination of the jury. Ames v. MacPhail, 289 Mich. 185. The trial court was correct in refusing to set aside the verdict on this ground.
Defendant further contends that plaintiffs failed to present their claims to the common council of the city of Detroit for audit and allowance, and that such failure is a bar to the prosecution of these actions. Reliance is placed on title 6, chap. 7, § 11, of the city charter which requires that the common council shall audit and allow all accounts chargeable against the city and further prescribes the procedure to be observed in connection with the presentation of claims. Attention is called to prior decisions of this Court involving the interpretation and application of charter provisions imposing such requirement. In none of the cases referred to, however, were the facts analogous to those involved in the case at bar. The agreement on which plaintiffs herein rely, as found by the jury, did not create an obligation but merely provided that a part of the salaries which plaintiffs were to be paid for services rendered to defendant might be withheld until funds became available for payment. Such salaries were actually earned as the services were performed. Postponing the payment of the deductions made under the resolutions of the street railway commission did not impose a new obligation on defendant but rather operated to its advantage. The greater portions of the salaries were paid on a semimonthly basis. The sums withheld were liquidated in amount. Under the circumstances it was unnecessary to present the claims to the common council. See Detroit Municipal Employees Ass’n v. City of Detroit, supra; Thal v. Detroit Board of Education, ante, 351.
Thirteen of the cases included in the order of consolidation for trial were instituted by special administrators. Counsel for defendant contend that in these cases plaintiffs were not entitled to'judgments because no showing was made that the plaintiffs were authorized, by appropriate orders of the probate court, to commence and maintain the actions. Attention is called to Act No. 288, chap! 2, § 61, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-2 (61), Stat. Ann/ 1943 Rev., §27.3178 [131]), which prescribes the powers and duties of special administrators. On behalf of plaintiffs it is claimed the necessity for formal proof was waived by counsel for defendant. The record shows that during a colloquy between counsel with reference to the matter the attorney for defendant stated: “I said if you will put the letters testamentary, a copy of them, in the file, that is all I care about.” To such statement counsel for plaintiffs replied that the letters would be produced -on the following day. Whether they were filed does not appear, but the question was not raised by defendant’s motion for a directed verdict, nor by the motion for judgment notwithstanding the verdict. There is no showing that the attention of the trial court was in any way called to the matter until a hearing was had as to the amounts of the judgments to be entered. Ve think the objection at that time came too late.' Had it been seasonably raised during the trial plaintiffs would have had an opportunity to ask for leave to reopen their proofs for the purpose of showing the authority of the special administrators. In rejecting defendant’s contention when made at the hearing-above referred to, the trial court said:
“Well, as I understand the theory upon which this case was presented all of these formalities were determined at the outset of the trial and it was decided that the 286 cases should be tried as one and no technical objections were made at that time as to the right of any particular plaintiff to proceed. Exhibit 4 was introduced in evidence and it was conceded by counsel that either the full amount claimed in exhibit 4 should be awarded to the plaintiffs or nothing- should be awarded to the plaintiffs. And it seems to me that under that — in view of that stipulation that the objection now comes too late, the objection based upon the technical grounds that some of the plaintiffs were represented by special administrators. The objection therefore is overruled.”
The conclusion indicated in the language quoted finds support in the record. The trial court was correct in holding that the necessity for formal proof as to the authority of the administrators had béen waived.
The trial court submitted to the jury a special question as to whether funds became available for payment of plaintiffs’ claims on or before July 1, 1939, as claimed by plaintiffs. This question was answered in the affirmative. In accordance therewith interest was allowed on the claims from July 1, 1939, to the date of. the entry of the judgments. Defendant claims that formal demands for payment were not made, and that interest should only have been allowed to plaintiffs from the dates that their respective suits were commenced. Such demands were unnecessary. Plaintiffs’ claims were liquidated, and under the facts involved demands would have been mere formalities. Thal v. Detroit Board of Education, supra. Interest was properly allowed from July 1, 1939, to the date of the entry of judgments.
This brings us to a consideration of the merits of plaintiffs’ cross-appeal. The trial court granted in part the motion for judgments notwithstanding the verdict, as above stated, holding that the 50 per cent, deduction from plaintiffs’ salaries during the month of August, 1932, pursuant to the resolution of the street railway commission adopted July 28, preceding, and the 14.3 per cent, deduction in effect from January 1, to October 1, 1933, were in fact absolute reductions ■ in pay. The amounts of the judgments were determined in accordance with this holding. Plaintiffs claim that the verdict of the jury should have been permitted to stand as rendered. The argument is made in substance that there is no proper basis for differentiating between the deductions referred to and the other deductions involved herein. We think the argument is well founded. It is a fair conclusion under the proofs that all deductions from the salaries of employees, as authorized from time to time by resolutions of the street railway commission, were made in accordance with a general policy, evidenced by ordinances of the common council (Detroit Municipal Employees Ass’n v. City of Detroit, supra), and by resolution of the board of edu cation of the city of Detroit (Thal v. Detroit Board of Education, supra), as well as by the acts of the commission itself. Such policy contemplated the withholding of certain percentages of salaries and wages until such time or times as financial conditions rendered payment feasible.
While the resolution of the street railway commission applicable to the month of August, 1932, provided, in terms, for the reducing of salaries, it must be construed in the light of the general situation existing and with reference to the prior resolutions herein involved. In this connection the proceeding of the street railway commission at a meeting held May 25, 1937, is of some significance. The minutes of said meeting disclose that a communication from the Salaried Employees Association of the department had been received, requesting payment of the ‘ ‘half month’s pay that was borrowed from the employees in August of 1932.” The commission did not at that time take the position that the 50 per cent, deduction from salaries during the month in question constituted an absolute reduction in pay, but referred the request to the general manager for investigation and resubmission at the next meeting. On August 17, 1937, the matter was again brought up at a meeting of the commission, the minutes indicating that there was some discussion relative to claims of salaried employees, “for back pay due from the payless pay days of 1932.” The minutes further recited:
‘ ‘ The general manager reported that, in his opinion, there is no reason why this claim should not be paid, except that at the present time the department has not the funds with which to make the restitution, but that same should be paid when, as and if the funds are available. The commissioners indicated that they are in accord with the general manager’s opinion. ’ ’
While no formal action was taken by the commission at this meeting, expressly recognizing the validity of plaintiffs’ claims based on the reduction in August, 1932, it is of some significance that the commission did not at that time deny the claims were meritorious.
■ The resolution adopted by the street railway commission December 22, 1932, approved recommendations of the general manager of operation in terms providing for the establishing of a five-day week for salaried employees. The general manager pointed out in his recommendations that: ‘ This is equal to another 14.3 per cent, reduction and when added to the cuts already in operation, will mean that our salaried force has accepted total reductions in pay ranging from 27 per cent, to 33 per cent.” In the notice given by the general manager of operation, calling’ attention to the action taken by the commission, it was pointed out that such action meant a reduction in salaries of approximately 14.3 per cent., and that it was “strictly in accordance with the ordinance affecting all other city departments, including’ the police department, fire department, department of public works, public lighting commission, water board, legal department, et cetera.” Obviously, the general manager of operation, whose recommendations the commission followed, interpreted the action taken as in harmony with the general policy of the city with respect to deductions from the salaries and wages of municipal officers and employees.' The proofs fully justify the conclusion of the jury that the purpose sought to be accomplished was a further deduction in accordance with such policy. Plaintiffs were hired at specified monthly or yearly salaries. They were not on an hourly rate, or a per diem, basis. Some of the plaintiffs testified on the trial that the amount of time they actually put in, in working for defendant during the period from January 1, to October 1, 1933, was substantially the same as it was prior to such period.
We think it was a question for the jury to de'eide whether the deductions-made under thé resolutions of the commission, adopted July 28, 1932, and December 22, 1932, were of the same character as the other deductions involved in the case. The jury determined the matter in accordance with the claims of plaintiffs. Such determination finds support in the record and, for reasons hereinbefore set forth, the verdict of the jury must be held to be conclusive. It follows that the trial court was in error in granting, in part, the' motion for judgments notwithstanding the verdict. • ■
Other questions raised by counsel for defendant on the oral argument and in their brief have been considered and found to be without substantial merit. For the reasons above stated the order of the trial court, granting in part the motion for judgments notwithstanding the verdict, is set aside, and the cases remanded with directions for the entry of an .order denying said motion, and for the entry of judgments in accordance with the verdict of the jury, with' costs to plaintiffs.
Buteel, Bushnell, Sharpe, Boyles, Reid, Forth, and Dethmers, JJ., concurred.
See 3 Comp. Laws 1929, § 13976, as amended by Act No. 72, Pub. Aets 1941 (Comp. Laws Supp. 1945,. § 13976, Stat. Ann. 1946 Cum. Supp. § 27.605).—Reporter.- | [
-16,
124,
124,
-20,
-118,
-32,
42,
-70,
29,
-126,
39,
87,
-19,
102,
17,
37,
115,
125,
80,
107,
-91,
-93,
87,
34,
-101,
-109,
-21,
-123,
61,
-51,
-28,
-34,
77,
32,
-62,
-100,
-57,
80,
69,
26,
-114,
-116,
-66,
-32,
121,
0,
52,
25,
48,
79,
49,
-50,
-65,
42,
16,
107,
76,
40,
-3,
-69,
-64,
-15,
-126,
-123,
-1,
54,
-96,
4,
-98,
-125,
-8,
27,
-104,
53,
-80,
8,
115,
-74,
-58,
116,
97,
-87,
12,
98,
103,
0,
69,
-89,
-16,
-100,
46,
-70,
-113,
-91,
-4,
57,
3,
79,
-76,
-99,
112,
84,
39,
126,
-4,
-107,
93,
44,
3,
-113,
-90,
-96,
-114,
-60,
-98,
-125,
-17,
33,
36,
80,
-56,
-14,
93,
7,
58,
-101,
-105,
-51
] |
Carr, J.
Plaintiff’s intestate, being the owner of a farm in St. Joseph county, Michigan, conveyed the property to' defendants by warranty deed. The instrument of conveyance was dated December 1, 1938, and recited a consideration of “One dollar and other valuable considerations.” As part of the- transaction a note in the sum of $1,500, secured by mortgage on the property, was executed and de livered to Mrs. Timm by defendants. Said note was expressly made payable five years after date and referred to the mortgage to fix the rate of interest. The mortgage specified five per cent., payable annually, but with no interest until after the death of Mrs. Timm.
On January 4, 1939, a discharge of the mortgage was executed by the mortgagee, and recorded on the same day. Subsequently, and during the month of January, 1939, defendants paid to Mrs. Timm the sum of $500, in three payments of $325, $75, and $100 respectively.
Mrs. Timm remained on the farm in question until March, 1939. Thereafter she lived with certain of her children until her death, May 30, 1939. It is conceded that defendants paid obligations of the estate for hospitalization and medical attendance, and funeral and burial expenses for Mrs. Timm, in the sum of $390.
The present suit was instituted by the administrator of Mrs. Timm ’s estate for the purpose of setting aside the discharge above referred to,' and foreclosing the mortgage. It was alleged in the bill of complaint .that the discharge was procured through fraud and undue influence, and was without consideration. Defendants by answer denied the allegations of the bill.
Following the trial in the circuit court a decree was entered setting aside the discharge, on the ground that it was executed without consideration, and directing the foreclosure of the mortgage. Defendants were given credit for the sum of $390, paid out by them on behalf of the estate, and the amount due on the obligation secured by the mortgage was fixed at the sum of $1,461.69, which amount was reduced by tender made by defendants during the hearing in the trial court, to $668.84.
Defendants have .appealed from the decree of the trial court, claiming that the sum of $500, paid by them in January, 1939, to Mrs. Timm, should have been credited on the mortgage debt. As stated by counsel on the oral argument of the case in this Court, such claim presents the principal issue involved. After listening to the testimony the trial court came to the conclusion that defendants’ contention was not sustained by the proofs, and that in fact the weight of the evidence indicated the payments in question constituted the down payment on the purchase price of the farm, or, in any event, were not made on the debt secured by the mortgage.
The question stated is solely one of fact. The trial court, having seen and heard the witnesses, was in a better position to weigh their testimony than is this Court. While we hear the case de novo on the record the decree should not be altered unless it .appears that it is not in accordance with the jus! rights of the parties. Langdell v. Langdell, 285 Mich. 268; Lynder v. Schulkin, 305 Mich. 451; Quackenbush v. Quackenbush, 305 Mich. 704.
It is obvious that the discharge of the mortgage given by defendants to Mrs. Timm., if valid, left the mortgagee without security for the payment of the debt owing to her. The record discloses that she was advanced in years and that defendant June Parker was her granddaughter. In view of the circumstances the rights of Mrs. Timm should have been carefully protected. Gill v. Dingfelder, 22 Mich. 247. This was not done. It is, however, unnecessary to pass on plaintiff’s claim of constructive fraud, based apparently on the theory of unconscionable conduct on the part of defendants, in, view of the conclusion of the trial court that the discharge should be set aside for want of consideration. Such determination was correct. Newman & Snells State Bank v. Hunter, 243 Mich. 331 (59 A. L. R. 311); Rosenberg v. Ford, 85 Cal. 610 (24 Pac. 779). See, also, Coveney v. Pattullo, 130 Mich. 275; Plasger v. Leonard, 312 Mich. 561. ,
This brings us to a consideration of the evidence relating to the main issue in the case, that is, whether the payments referred to, made to Mrs. Timm in January, 1939, were on the debt secured by the mortgage. Following the death of Mrs. Timm, defendants wrote to plaintiff in the present case with reference to the mortgage. The claim was made therein that the mortgage had been discharged, following which statement defendants said “But we have no intention of not paying it.” In a subsequent letter, dated August 30, 1939, written by defendants to plaintiff, defendants offered to give a mortgage for $1,500 to any one that plaintiff could procure to make such loan. The statement was made in this letter, “If you don’t know of anyone you will have to hold the mortgage the same as grandma would have done if we couldn’t get the loan, and we’ll,pay as much as we can on the principal each year.” It is significant that in neither of these letters was any claim made by defendants that they had paid any portion of the debt secured by the mortgage. It is a fair inference, under all the circumstances of the case, that.if the sum of $500 had been paid on such debt, as defendants now claim, reference to that fact would have been made. The expressed intention of the defendants, at the time the first letter above referred to was written, was to' pay the mortgage. Nothing was said concerning an unpaid balance.
The note and mortgage given by defendants to Mrs. Timm remained in the possession of the latter until April, 1939. No indorsements of any payments were made on either instrument; nor does it appear that any receipts were given by Mrs. Timm to defendants indicating the purpose or application of the payments, in question. Plaintiff’s witness, Mrs. Flossie Timm, was present at the time defendant June Parker made the first of such payments in Mrs. Timm’s home. Her testimony indicates that defendant referred to such payment as a “down payment” on the farm. Said witness also testified that Mrs. Timm, with whom witness and her husband were living, had no money between December 1, 1938, and the date of the payment by defendants.
Defendants rely on the presumption that money paid by a debtor to a creditor is in payment of a debt in the absence of a showing to the contrary. In the case at bar, however, the issue is to be determined on the basis of the proofs of the parties. Presumptions cannot be weighed' against facts. See Christiansen v. Hilber, 282 Mich. 403, and cases there cited.
Without discussing the proofs in further detail it is our conclusion that the findings of the trial court are adequately supported by the record. Discharge of the mortgage was properly set aside for want of consideration and the refusal of the trial court to credit the payments in question on the debt secured by the'mortgage was correct.
Questions argued by counsel for appellants in his brief and not discussed specifically herein, have been considered and found to be without substantial merit. The decree of the trial court is affirmed, with costs to appellee.
Butzel, C. J., and Bushnell,' Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
-16,
108,
24,
-84,
10,
-96,
42,
-102,
-54,
-96,
54,
83,
-19,
66,
17,
45,
100,
125,
65,
105,
-27,
-77,
63,
-118,
-45,
-13,
45,
-43,
-76,
109,
-28,
-41,
77,
32,
-126,
21,
-62,
-78,
-57,
24,
-50,
-123,
-117,
-27,
-39,
-128,
52,
-5,
116,
77,
113,
-113,
63,
46,
53,
106,
41,
40,
-1,
41,
-64,
-28,
-85,
4,
127,
7,
-80,
5,
-100,
-61,
-8,
42,
-112,
53,
0,
-24,
51,
-74,
-122,
116,
74,
-103,
13,
34,
102,
48,
-59,
-17,
-12,
-104,
14,
-10,
13,
-89,
86,
89,
67,
40,
-74,
-99,
116,
80,
14,
-10,
-25,
29,
29,
108,
0,
-53,
-10,
-109,
13,
116,
-100,
-125,
-9,
55,
36,
113,
-51,
-94,
93,
71,
120,
27,
-113,
-7
] |
Nelson Sharpe, C. J.
The electors of the defendant village voted to construct a trunk-line sewer with the necessary sewage disposal plant, etc., therein. Bids therefor, which should also include the purchase of the bonds to be issued for its payment, were advertised for, and that of Thomas D. Nolan for $1,478,974 for the construction of the sewer and $1,674,400 for the purchase of the bonds was accepted, and contracts pursuant thereto were entered into on September 19, 1930.
In one of the contracts Nolan agreed to purchase and pay for the bonds in cash as soon as they were ready for delivery and before commencing the construction work, and to deposit with the village treasurer a certified check for $50,000 “as security for the performance on his part of this contract.” He further agreed that in the event of his failure to perform “the damage to the village shall be the sum of $50,000 and said check shall be cashed in payment thereof.”
The legality of the bonds was to be approved by a firm of attorneys in Detroit.
On September 16, 1930, three days before these contracts were entered into, a bill of complaint had been filed attacking the legality of the proceeding. It was dismissed in the circuit court, and the appeal taken to this court was dismissed on November 14, 1930. While this suit was pending, Nolan had secured a purchaser for the entire bond issue, conditional, however, on delivery by November 8th. On September 30th the attorneys approved the issue, but subject to the disposal of the pending suit.
On October 21, 1930, Nolan had arranged for the purchase of bonds to the amount of $956,800, and the commission of the village by resolution authorized delivery of the same to him on condition that he dispose of the balance within 60 days and increase his deposit to $75,000. He insisted that the money be kept intact so that it might be returned to the purchaser if the bonds were held to be invalid. No part of it was disbursed by the village, and it may be here noted that it was later returned to the purchaser, and the bonds delivered were returned to the village.
Conferences were thereafter held relative to the disposal of the balance of the issue, $717,600. A supplemental agreement was entered into' on December 3,1930, after the dismissal of the suit, which, after reciting the provisions of the contract of September 19th and stating that Nolan was not then in a position to immediately take delivery of and make payment for the balance of the issue, ratified the sale of the $956,800 and provided that the balance should be taken and paid for by February 2, 1931. It contained a provision for the retention of the deposit similar to that in the former contract, except that the amount was stated to be $75,000.
On January 22, 1931, the bill of complaint herein was filed by Walter Robinson and a number of other owners of real estate and taxpayers in the village, in which the relief sought was a decree declaring the contract entered into between the village and Nolan for the construction of the sewer and the bonds issued and to be issued in payment therefor to be illegal and void and enjoining any further proceeding relating thereto. An amended bill was filed on February 11, 1931. In its answer thereto, filed on March 2, 1931, the village denied many of the allegations therein, but in a paragraph thereof said:
“These defendants, further answering said amended bill of complaint, say that since the filing of the bill of complaint and the amended bill of complaint in this canse the time within which the said Thomas D. Nolan was to perform the contract for the purchase of said bonds has expired and the said Thomas D. Nolan has failed to perform said contract within said time and pay for said bonds and said contract is not now in force or effect.”
The defendant Nolan in his answer alleged that all of the proceedings referred to in the bill were legal and valid, and prayed that the bill be dismissed. He later filed an amended answer, in which he again insisted that the plaintiffs were not entitled to relief, and by cross-bill annexed thereto he set np the proceedings under which he had deposited the $75,000 with the defendant, and prayed that, in the event the plaintiffs should obtain the relief sought, the defendant be decreed to return the same to him. To this the defendant made answer denying that he was entitled to such relief.
On April 11, 1932, the trial court, on motion of the attorney for the village and by consent of its counsel and its commissioners expressed in open court, after reciting that it appeared that the village had “definitely determined to abandon the said sewer project,” ordered, adjudged and decreed that the village and its commissioners be enjoined “from taking any further proceedings towards the construction of said sewer, or towards the sale of the bonds, issued in connection therewith,” and that the bill of complaint be dismissed “without any finding as to the validity of said sewer project.” This decree was not consented to by counsel for Nolan, but he took no appeal therefrom.
On February 2d, the date to which the time had been extended for the purchase of the balance of the bonds by the supplemental agreement of December 3d, Nolan presented a communication to the commission which was then in session in which he referred to the suit then pending affecting the legality of the bonds, and accompanied it with a proposed agreement by the terms of which the village would deliver the bonds to a bank and that he would at the same time deliver to it the balance of the purchase price, both to be held by'the bank in escrow until the village should deliver to it a certificate of non-litigation and approval of the issue by the firm of attorneys above referred to, and, if the issue should be held to be invalid or illegal, to then return the bonds to the village and the money deposited to the purchasers. There was much discussion at this meeting. The village attorney advised the commission not to execute the agreement. A tender of the amounts necessary to pay for the balance of the issue, conditional on the furnishing of such certificate was then made and rejected on the advice of the attorney. The offer was then made to take the bonds if the commission would pass a resolution agreeing to repurchase them in the event that they were declared invalid, and the attorney answered: “No, you take the bonds as they are and you take your chances on getting your money back.” He then prepared an agreement, and, after some changes were made in it, it was executed by the village officials and by Nolan. It extended the time for payment of the balance of the issue to February 11th. It contains the following provision:
“The contractor, with full knowledge that litigation involving and attacking the validity of said bonds is now pending in the circuit court for the county of Macomb, in chancery, and that other litigation may be started, and that restraining orders, injunctions, decrees, or other legal process may pre vent the village from making delivery of said bonds under this contract or declare said bonds invalid, does hereby agree that his obligation to take said bonds under said contract, as modified and hereunder, shall be and is absolute, notwithstanding said litigation, or any future litigation, injunctions, restraining orders, decrees, or other legal process which may be prosecuted, started, made or issued involving said bonds and does hereby assign, and set over to the village all right, title and/or interest which he, the said contractor, may have in and to the sum of $75,000 heretofore paid on account of the purchase price of said bonds, excepting and reserving to himself only the right to have said sum credited on the purchase price of the last $75,000 of said bonds. In the event the village is prevented from delivering said bonds, or any portion thereof, to the contractor by reason of any legal process, or otherwise, said contractor does hereby release all claim or claims of damages or the return of said sum of $75,000 by reason of the failure of the village to make such delivery. (In the event bonds are held invalid that the entire purchase price is to be returned to the purchasers thereof, including the $75,000 above mentioned.) It is expressly understood that said contract of September 19, 1930, as modified by agreement of December 3, 1930, is in full force and effect, except as modified by this agreement. ’ ’
The sentence in the parentheses was inserted at the insistence of Nolan’s attorney. The provision in the decree dismissing the bill that it was “without any finding as to the validity of said sewer project” was doubtless inserted at the request of counsel for the village to defeat any claim the plaintiffs might make thereunder.
The suit was still pending on February 11th, and without a certificate from the attorneys Nolan was unable to dispose of and make payment for the bal anee of the issue. Nolan’s cross-bill, wherein he sought the return of the $75,000 deposited by him with the village, came on to be heard. After the submission of proofs the court found “that the village did not fulfill its part of the contract and that Nolan was prevented from performing by matters justifying* non-performance,” and that the provision in the contract for the forfeiture of the $75,000 was against public policy and void. He also found that if Nolan be held to be in default the deposit was in the nature of a penalty and not liquidated damages, and that no actual damages for the breach were sustained by the defendant. A decree was entered ordering the village to pay to Nolan the sum of $75,000 and some interest thereon, from which this appeal has been taken.
. The contracts first entered into were unusual. The village officials knew that Nolan was not engaged in the business of purchasing bonds, and that his only purpose in agreeing to do so was conditional on his securing the construction contract. They were chargeable with knowledge that the amount of the issue was so large that it could be financed only by men of wealth or banks or trust companies. At that time a suit was pending attacking the validity of the proceedings. Prudence on the part of the officials as well as Nolan would seemingly have suggested that no binding contract should be entered into until it was disposed of. The impropriety of doing so is particularly apparent from the provision in the contract for the purchase of the bonds that they should be approved as to legality by a firm of well-known attorneys, and their knowledge that such approval could not be obtained with the litigation pending. The only explanation is that the village officials desired to at once secure a binding contract with Nolan to take the bonds and lie was also anxious at that time to secure the construction contract. The circumstances then existing must be borne in mind in the consideration of the after proceedings. Kellogg v. Kellogg Toasted Corn Flake Co., 212 Mich. 95; Stuart v. Worden, 42 Mich. 154.
The suit was dismissed on November 14th. Up to that time there had been no default on the part of Nolan. No certificate of approval had been furnished, and it may be here stated that Mr. Spaulding of the firm of attorneys who was to furnish it, and who had charge of it, testified, “I don’t think at any time subsequent to September 19, 1930, that I gave an unqualified opinion as to the legality of the entire bond issue.”
By the contract of December 3d Nolan’s time to purchase was extended to February 2d. At that time the bill of complaint herein had been filed. No approval could then be obtained. The only fair and reasonable solution of the difficulties then present was the acceptance by the village of the offer made by Nolan in his letter and proposed contract to place the bonds and the purchase price thereof in escrow in a bank to await the determination of the pending suit. But the village at that time had $75,000 of Nolan’s money in its possession, and, acting on the advice of its attorney, the commission insisted on his agreeing to the provision inserted in the contract of that date heretofore quoted. We agree with the trial court that he was coerced into entering into it and that it was unenforceable and void and no defense to his right to recover the moneys deposited by him with the village treasurer and for which he received no consideration.
Defendant’s counsel insist that if the contract and bonds were void on grounds of public policy Nolan may not recover. He is not here seeking to recover damages growing out of these contracts. The defendant has breached them by its consent to the decree entered in this case wherein the plaintiffs’ bill was dismissed. It has in its possession $75,000 of money deposited by Nolan as security that he would perform. That he cannot now do, and he is entitled to its return.
Other questions are discussed, but in our opinion they do not merit consideration. The decree'is affirmed, with costs to appellee.
Potter, North, Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred. | [
-16,
85,
-72,
-20,
74,
34,
24,
-104,
93,
50,
-73,
95,
-83,
100,
21,
9,
-17,
125,
80,
123,
-25,
-78,
111,
98,
-45,
-13,
-21,
-51,
-79,
-19,
-12,
-43,
12,
52,
-54,
-99,
-58,
-126,
93,
88,
-50,
-107,
-86,
-24,
-35,
64,
52,
31,
112,
76,
49,
14,
-25,
46,
20,
-21,
44,
40,
-23,
41,
80,
-31,
-71,
-123,
-1,
6,
-112,
6,
-100,
67,
-40,
28,
-104,
53,
-124,
-24,
115,
-90,
6,
118,
5,
-117,
8,
98,
102,
1,
97,
-19,
-16,
-39,
4,
-34,
-115,
-91,
-79,
88,
67,
-31,
-98,
-97,
121,
19,
38,
-2,
-19,
-123,
29,
108,
3,
-114,
-10,
-13,
-85,
-12,
-98,
3,
-25,
41,
52,
81,
-49,
50,
95,
38,
48,
91,
-105,
-119
] |
Carr, J.
Ellen LaFreniere, a resident of Marquette county, died in the early part of 1943, leaving as her sole heirs and distributees her mother, Emeline LeClair, and her husband, Peter LaFreniere. The latter was appointed administrator of the estate. Prior to her death Mrs. LaFreniere had been engaged in carrying on a dry cleaning business, which the administrator continued. Suit was instituted by the administrator against the parties whose alleged negligence caused the death of Mrs. LaFreniere. A judgment was recovered in the sum of $5,500, of which amount $4,862 was certified, by the circuit judge before whom the case was tried, to the probate court as the pecuniary loss suffered by the surviving husband. The balance of the judgment was further certified as the pecuniary loss suffered by the mother, Mrs. LeClair.
Mr. LaFreniere, as administrator, submitted to the probate court two.separate accounts, the first covering the period from February 4, to December 31, 1943, and the second for the calendar year 1944, which accounts were sworn to on June 14,1945. Prior 'to the latter date Mrs. LeClair died. The administrator, with the will annexed, of her estate filed objections in the probate court to the allowance of certain items in the accounts, claiming that such items were not proper charges against the estate, and asked that the administrator’s claim for credits therefor should be denied. On hearing before him, the probate judge found that the accounts were correct and, on October 3, 1945, ordered their allowance. From such order the administrator of the estate of Mrs. LeClair appealed to the circuit court.
Following a hearing before the court without a jury an order was entered dismissing the appeal,’ affirming the order of the probate court, and remanding the case to the probate court for further proceeding. Reversal of said order is sought by appellant herein, the administrator of the estate of Emeline LeClair, because of certain alleged errors occurring on the trial in the circuit court.
The record shows that at the outset of the proceedings before him, the circuit judge ruled that the burden of proof with reference to the matters raised by the notice of appeal and reasons assigned therefor rested on the appellant, saying in this connection, “The burden is on the objector to prove his objection.” In an apparent attempt to comply with the court’s ruling, appellant called as a witness the judge of probate for the purpose of showing the testimony of Peter LaFreniere, given on the hearing on the accounts in the probate court, Mr. LaFreniere having died before the trial in the circuit court. An objection to the testimony was made by counsel representing the estate of Mr. LaFreniere on the ground that such testimony was incompetent. In sustaining the objection the court stated:
“I would not want to take from Mr. Rushton any testimony as to.what Peter LaFreniere said but I would take testimony of what the probate court did with reference to accounts that were filed.”
No other testimony was offered on either side. In consequence, the trial judge had before him merely the. claims of the respective parties, as indicated by the record certified to the circuit court by the judge of probate, and by the notice of appeal and reasons assigned therefor.
Tt is the claim of appellant that the trial court erred in the ruling as to the burden of proof, and also in excluding the testimony of the probate judge. With reference to the first proposition it is argued in substance that the administrator, on the hearing-in the probate court, was charged with the obligation of sustaining- the correctness of his accounts and that, on appeal to the circuit court, the same rule obtained ,as to tbe disputed items. Tbe pertinent provision of the probate code, Act No. 288, Pub. Acts 1939, is found in chap. 1, § 50 of said act (Comp. Laws Supp. 1940,' §16^89-1 [50], Stat. Ann. 1943 Pev. § 27.3178 [50]), which reads, in part, as follows :
“The circuit court may reverse or affirm, in whole or in part, tlie sentence, order or act appealed from, and may make such order thereon as the judge of probate ought to have made, and may remit the case to the probate court for further proceedings or may make any other, order therein, as law and justice shall require.”
On the appeal the scope of the inquiry was limited to the matters raised by the notice of appeal and reasons assigned in support thereof. In re Murray’s Estate, 219 Mich. 70. It was, in consequence, not a hearing de novo. As stated in Re Ward’s Estate, 152 Mich. 218, 241, questions so raised are “to be determined by the circuit court substantially in accordance with the same rules of law governing their settlement in the probate court.” See, also, Holbrook v. Cook, 5 Mich. 225; Casserly v. Casserly, 123 Mich. 44; In re Finn’s Estate, 281 Mich. 478. In accordance with the established practice the duty rested on the circuit court on appeal to determine the correctness of tlie challenged items in the accounts.
The general rule as to the burden of proof in hearings on accounts of executors and administrators, is stated in 34 C. J. S. pp. 1087-1090, as follows:
“In proceedings for stating and settling the accounts of an executor or administrator, the burden of proof may rest either on the personal representative or on the contestants, depending- on the circumstances of the particular case. When a personal representative renders his account and it is contested, the burden is generally on him to sustain and establish its correctness, and, even though there is no formal opposition, the representative must show that his account is correct, although he is not in such case obliged to prove each separate item. * * *
“On the other hand, where exceptions to an' account are of an affirmative nature, as, for example, where fraud, negligence, or bad faith is charged, the burden of sustaining such exceptions rests on the contestant. * * *
“When a credit is claimed by a personal representative and its validity is disputed, the law casts on bim the burden of supporting it; and in order to sustain such credit he must prove not only the payment, but also the existence, correctness, and validity of the demand. So, with respect to the expenses of administration, the burden rests on the representative to show that the expenses incurred were necessary and proper, and that the payments made were fair and reasonable. Where the representative fails to justify the allowance of claimed credits, they must be disallowed. ’ ’
In the case of In re Grover’s Estate, 233 Mich. 467, 477, the executor included in his account claims for extraordinary expenses. The trial court substantially reduced the amount on the ground that a part of the expenses so claimed were not incurred in the interest of the estate. This Court sustained the holding, saying:
‘ ‘ The burden was on the executor who sought the allowance therefor to show that they were.”
Counsel for appellee cites and relies on the case of In re Baldwin’s Estate, 311 Mich. 288. Among other matters in dispute there was the claim of parties interested in the estate that, the executor should be surcharged with interest on funds in his possession that had not been invested in income-producing securities or deposits.. As to such item it was recognized that the burden of proof rested on the parties asserting the affirmative of the issue, that is, that the executor should be thus surcharged.
Based on the authorities above cited, and others of like import, the conclusion follows that an administrator has, as a general rule, the obligation of sustaining the correctness of his accounts and the propriety of the charges therein for which he claims credit. On the other hand, the party seeking to have the representative of the estate surcharged on the basis of neglect of duty, fraud, improper and unauthorized handling of the assets of the estate, or other affirmative issue, has the burden of establishing his claim by proper evidence. The legal principles governing trials on appeal in. the circuit court with reference to the burden of proof are the same as those governing proceedings in probate court, the scope of the hearing on appeal being limited, as above suggested, to the consideration of the questions raised by the notice, or notices, of appeal and assigned reasons therefor.
In the case at bar the duty rested on the administrator, in the hearing before the probate judge, to establish the correctness and propriety of the items in his accounts, including the specific items to which objections were made. The same duty rested on his estate in the hearing in the circuit court on the appeal, with reference to the challenged items. We are constrained to hold that the circuit judge was. in error in ruling that as to such disputed items the burden of proof rested on the appellant.
This brings us to the second question in the case, whether the ruling of the trial court, excluding testimony of the probate judge, was erroneous. The record indicates that the objection made by counsel representing the estate of Peter LaPreniere was based on 3 Comp. Laws 1929, § 14219 (Stat. Ann. § 27.914). Said section reads in part as follows:
“When a suit or proceeding is prosecuted or defended by tbe heirs, assigns, devisees, legatees, or personal representatives of a deceased person,. the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all to matters which, if true must have been equally within the knowledge of such deceased person.”
Referring to this language, it was said in Re Einfeldt’s Estate, 286 Mich. 537:
‘ ‘ The quoted statutory provision does not exclude the testimony of third parties as to matters equally within the knowledge of the deceased. Shippee v. Shippee’s Estate, 255 Mich. 35.”
The same construction has been indicated in numerous other decisions, among which are, In re Meekers’s Estate, 169 Mich. 303; Lewandowski v. Nadolny, 214 Mich. 350. In the latter case it was held that the testimony of a scrivener was not prohibited by the statute. In the case at bar it is obvious that the probate judge was not a party in interest. The statute referred to did not render his testimony incompetent, nor does appellee in his brief .call attention to any other possible basis, or authority, for excluding it.
In Lewis v. Roulo, 93 Mich. 475, Mr. Fox brought suit before a justice of the peace, and was a witness on the trial. His death occurred before the matter was brought on for hearing on appeal to the circuit court. Testimony was offered for the purpose of showing his testimony before the justice with reference to issues involved in the case. The trial court, however, excluded the testimony. Commenting on the situation, this Court said:
“The court rejected evidence of what Mr. Fox testified to in regard to the transaction in the justice’s court. This was error. Such 'testimony is competent.”
Likewise, in the earlier case of Howard v. Patrick, 38 Mich. 795, it was said:
‘ ‘ The authorities are all agreed that where a witness has been sworn upon a former trial between the same parties and upon the same issue, and since the trial, has deceased, his testimony as given upon the former trial is admissible.”
See, also, Gloeser v. Moore, 284 Mich. 106, where the Court, citing Barker v. Hebbard, 81 Mich. ’267, and Merrill v. Leisenring, 166 Mich. 219, said:
“And the law of this State is in accordance with the general rule, that any one who has heard the testimony of a witness is competent to testify as to what he said. ’ ’
See, also, with reference to proving’ testimony of a witness in a prior proceeding, Fisher v. Kyle, 27 Mich. 454; Spalding v. Lowe, 56 Mich. 366; Detroit Baseball Club v. Preston National Bank, 113 Mich. 470; 10 R. C. L. 971 et seq. The trial court was.in error iñ refusing to take the testimony as to what Peter LaFreniere testified to in-probate court with reference to the accounts. ‘ Appellant was entitled to have the evidence received.
It may be inferred that the failure of counsel for the administrator’s estate to introduce testimony resulted from the holding of the court, above discussed, as to the burden of proof. As a result we have k record containing’ no evidence on which a determination on the merits of the-disputed items in the accounts in question can be based. In passing on questions of the character involved in this controversy the Court said in Re Finn’s Estate, supra:
“Determination of the correct allowance of the foregoing and other items is a matter of judgment and we are only concerned with seeing that the trial court’s findings are supported by the evidence. In re Grover’s Estate, 233 Mich. 467.”
A proper determination of the matters in issue between the parties hereto necessitates a new trial. Such being the situation, matters argued by counsel in their briefs, but concerning which the trial court made no findings, do not require discussion.
The judgment is reversed and the case remanded to the circuit court for a new trial, with costs to appellant.
Butzel, C. J., and Bushnbll, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred. | [
-112,
108,
-56,
60,
8,
-32,
50,
-104,
83,
-128,
-95,
83,
-17,
-46,
17,
47,
-5,
-1,
64,
123,
-31,
-93,
62,
-128,
86,
-101,
-15,
-43,
-76,
111,
-28,
-9,
76,
-80,
10,
-35,
-62,
1,
-51,
80,
-122,
68,
-118,
-21,
89,
80,
48,
-71,
54,
29,
113,
-66,
-9,
43,
30,
-21,
40,
46,
125,
57,
-64,
-16,
-86,
-123,
127,
23,
-80,
6,
-100,
-125,
88,
11,
-104,
49,
-128,
-23,
51,
-74,
-122,
116,
3,
-103,
12,
100,
-125,
113,
4,
-17,
-96,
8,
46,
-6,
29,
37,
-38,
89,
-32,
-82,
-92,
-97,
117,
-48,
7,
124,
-28,
21,
93,
40,
65,
-18,
-42,
-79,
-114,
92,
-100,
3,
-17,
39,
118,
81,
-35,
4,
92,
3,
49,
-101,
-58,
-110
] |
Levin, J.
The issues presented concern the status of motorcyclists under the no-fault motor vehicle liability act:
1) Are motorcyclists, who are not required to purchase no-fault insurance, entitled to "personal protection insurance benefits” (for work loss, allowable expenses and survivors’ loss), commonly referred to as PIP or first-party benefits and hereafter referred to as "no-fault benefits”?
2) Does a legislative scheme exempting motorcyclists from the burden imposed on other motor vehicle owners of maintaining financial security for the payment of no-fault benefits but including them among the persons entitled to recover such benefits when injured in accidents involving motor vehicles violate the equal protection and due process rights of those who must maintain such security and thereby pay for the cost of no-fault benefits paid to motorcyclists?
3) Does the no-fault act contemplate that motorcyclists who own policies on motor vehicles or are domiciled with relatives who own such policies will seek benefits from their insurer, or that such benefits will be paid by the insurer of the motor vehicle involved in the accident?
4) Is a "limits of liability” clause, approved by the Commissioner of Insurance, providing a $5,000 deductible from no-fault benefits payable for injury arising out of the use of an owned motorcycle by the named insured or relative, valid?
We hold:
1) Motorcyclists, like all others suffering bodily injury as the result of an accident involving a motor vehicle, are entitled to no-fault benefits.
2) Because the Legislature, in evaluating the risks to automobile owners posed by motorcyclists and the severe injuries suffered by motorcyclists in automobile-motorcycle accidents, could rationally conclude that motorcyclists are more like bicycle riders than automobile drivers, the statutory scheme which allows them benefits without requiring them to maintain no-fault security does not deny automobile drivers equal protection or due process of law.
3) A motorcyclist injured in a motor vehicle accident must first look to his own insurer if he has one. If he does not, he looks then to the insurer of a relative domiciled in the same household. It is only when there is no policy issued to anyone in his household that the statute permits him to claim benefits from the insurer of the owner or driver of the motor vehicle involved in the accident.
4) The provision of the no-fault act authorizing the commissioner to approve deductibles is not an invalid delegation of authority. Porter is remanded to the Court of Appeals to determine whether the $5,000 deductible provision is otherwise invalid.
I
Randy Craig Underhill was injured when the motorcycle he was operating collided with an automobile insured under a no-fault policy issued by Safeco Insurance Company. He required hospital and other medical care and was temporarily unable to work. Underhill lived alone and did not own an automobile. His motorcycle was insured for liability but not for no-fault benefits. Underhill claimed benefits from Safeco. The circuit judge entered a summary judgment in his favor and the Court of Appeals affirmed. We affirm.
Philip Porter was injured when his motorcycle was struck by an automobile insured by Aetna Life & Casualty Company. Porter lived with his father, who owned an automobile insured by Michigan Mutual Liability Company. The father’s policy included a "limits of liability” clause providing for a $5,000 deductible where the injury arises out of the use of an owned motorcycle by the "named insured or relative”. Porter commenced this action seeking no-fault benefits from Michigan Mutual and argued that the $5,000 deductible was contrary to the act, that the delegation of authority to the commissioner to approve deductibles was without standards and therefore unconstitutional, and that the deductible unconstitutionally divided motorcyclists into two classes. He sought benefits from Aetna in the alternative. Aetna is no longer a party to the action. The circuit judge held that motorcyclists are excluded from the act and entered a partial summary judgment for both insurers. The Court of Appeals reversed and held that motorcyclists can recover under the act, and that Porter was entitled to recover from his father’s insurer. We affirm. It also held that the $5,000 deductible was approved pursuant to an unconstitutional delegation of legislative authority; we vacate that holding and remand to the Court of Appeals to determine the validity of the deductible.
In Underhill, Safeco argues that a statutory scheme which permits motorcyclists to recover no-fault benefits without requiring them to purchase no-fault insurance violates the Equal Protection and Due Process Clauses.
Although Michigan Mutual had taken much the same position in earlier phases of the Porter litigation, in this Court it concedes that motorcyclists are entitled to no-fault benefits when they sustain bodily injury in accidents involving motor vehicles and that motor vehicle no-fault insurance issued to the motorcyclist or a member of his family in the same household is made primary by the act. It asserts that the $5,000 deductible is valid.
Shelby Mutual, as amicus curiae in Porter, argues that the insurance covering the motor vehicle involved in the accident should be primary in all cases where the claimant was not an occupant of a motor vehicle, i.e., when injured as a pedestrian, bicyclist or, by reason of the definition of "motor vehicle”, as a motorcyclist although the injured person or a member of his family in the same household has no-fault insurance.
II
The no-fault act requires that owners of "motor vehicles” maintain security for payment of no-fault benefits. Motorcycles are excluded from the definition by providing that a "motor vehicle” has more than two wheels. It is separately provided, however, by a 1975 amendment to the act, that owners of motorcycles must maintain security for public liability.
Motorcyclists thus, although required to maintain security for injuries caused to third parties through their negligence, are not required to purchase insurance providing no-fault benefits.
All parties appear to concede that by its terms the act entitles motorcyclists to no-fault benefits when they are involved in accidents with motor vehicles. Benefits are payable for "accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle”; a motorcyclist is not among those whom the Legislature has excluded from benefits; he is among those covered by the "while not an occupant” language of the act.
It would not be consistent with the structure of the no-fault act — designed to provide no-fault benefits to the populace at large for loss suffered as the result of an accident involving a motor vehicle — to infer a legislative purpose, inconsistent with the language of the act, to exclude motorcyclists from its protection.
The act may not be construed as excluding the motorcyclist from its coverage for all purposes merely because motorcycles are excluded from the statutory definition of motor vehicle.
We hold that, under the terms of the no-fault act, motorcyclists are entitled to claim no-fault benefits when they are injured in accidents involving motor vehicles.
Ill
Safeco contends that the act abridges the due process and equal protection rights of owners of motor vehicles. Although the Legislature requires the motorcycle owner to maintain security for liability to third parties and in doing so likens him to the automobile owner, it groups him with pedestrians and bicyclists when defining the obligation to provide no-fault benefits. He is not required to purchase no-fault insurance but he may claim no-fault benefits when he is injured in an accident involving a motor vehicle. This system benefits motorcyclists at motor vehicle owners’ expense.
Safeco does not argue that only those who contribute to the fund out of which no-fault benefits are paid can constitutionally be permitted to receive benefits from the fund. To do so would be to argue that pedestrians and occupants of motor vehicles who do not own motor vehicles, and therefore do not purchase no-fault insurance, cannot collect benefits when they are involved in motor vehicle accidents.
Safeco argues, rather, that motorcycles are motor vehicles and there is no rational reason for treating them differently from other motor vehicles. As a result of the legislative scheme there are two classes of vehicles, both free to operate on the public streets, and both capable of becoming involved in accidents causing injury, death and property damage. The owners of only one class are required to purchase no-fault insurance although the operators of both are entitled to no-fault benefits.
In Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978), cert den 442 US 934 (1979), this Court held that the Legislature could constitutionally relieve motorcycle owners of the obligation to purchase no-fault insurance for themselves and others involved in accidents with them. The question now before us is whether motorcyclists can rationally be included among those who may claim no-fault benefits under the act.
When the Legislature excluded motorcycles from the statutory class of motor vehicles, it not only excused their owners from the obligation to purchase no-fault insurance but also excluded motorcycles from the class of vehicles which give rise to a claim for no-fault benefits when involved in an accident. Thus, when a motorcycle is involved in an accident which does not involve a motor vehicle, no claim to no-fault benefits arises. If an automobile driver loses control and suffers accidental bodily injury as a result, he is entitled to benefits whether another vehicle is involved or not. A motorcyclist would not be entitled to benefits under the same circumstances. Similarly, if an automobile driver suffers injury in an accident with a pedestrian or a motorcyclist, he is entitled to no-fault benefits. A motorcyclist sustaining injury in an accident involving a pedestrian or another motorcycle is not eligible for benefits.
Although generically motor vehicles, motorcycles are sufficiently distinct from automobiles to be constitutionally singled out for distinct treatment. In Shavers this Court said:
"The actuarial data in the record tends to show that motorcycles are rarely at fault in motor vehicle accidents. Also, there was extensive testimony to the effect that in accidents involving motorcycles the drivers and passengers of motorcycles are killed or severely injured at a rate twice exceeding that of those involved in automobile accidents. Thus the inclusion of motorcycles in a no-fault system would result in insurance premiums so high as to preclude most motorcyclists from purchasing insurance. We believe these are, for purposes of satisfying equal protection, legitimate governmental interests. The exclusion of motorcycles from coverage under the No-Fault Act is, quite evidently, reasonably related to these legitimate interests.” Shavers v Attorney General, supra, pp 633-634.
The same factors which support a legislative determination to exempt motorcycle owners from the obligation to maintain no-fault insurance coverage, thereby treating them differently from other motor vehicle owners, provide adequate rationale for the decision to permit motorcyclists, like bicyclists and pedestrians, to claim benefits when injured in accidents involving motor vehicles:
—The motorcycle-motor vehicle accident is much like the bicycle-motor vehicle accident. Motorcycles do comparatively little damage to motor vehicles and their operators. Motorcyclists are likely to suffer substantial injuries in accidents involving motor vehicles.
—Motorcyclists, according to the record made in Shavers, are "rarely at fault in motor vehicle accidents”.
The Legislature could therefore rationally conclude that motorcyclists, like bicyclists, should receive no-fault benefits for injuries received in accidents involving motor vehicles although they do not maintain no-fault insurance.
IV
The dissenter in the Court of Appeals would hold that Philip Porter may not claim no-fault benefits under his father’s policy but should claim them from the insurer of the owner of the motor vehicle involved in the accident. It is argued that this conclusion finds support in the language of the act and better serves its policies.
Under this view § 3114(1) merely establishes the priority between insurers where the injured person is insured under his own no-fault policy and also under the policy of a family member in the same household.
Adoption of this view would mean not only that motorcyclists could not recover under the no-fault policy of a household member, but that they could not recover under their own policies if they own a motor vehicle with no-fault coverage. It would further mean that no owner of a motor vehicle could recover from his own insurer unless he was injured while an occupant of the insured vehicle or was struck by that vehicle while a non-occupant.
Consequently, if a person is struck as a pedestrian or bicyclist by a vehicle not owned by him or is injured while an occupant of such a vehicle he would be required to claim no-fault benefits from the insurer of the vehicle involved in the accident although he is the owner of the vehicle insured for no-fault benefits. If the involved vehicle was uninsured he would claim through the assigned claims plan, notwithstanding that he had purchased a no-fault policy.
It is our understanding of the legislative purpose that it was intended that injured persons who are insured or whose family member is insured for no-fault benefits would have primary resort to their own insurer. Since their own insurer would be primarily responsible, there would be an incentive for the insurer to deal promptly and fairly with the customer. Additionally, making the owner’s or family member’s insurer primary may reduce the cost of insurance by facilitating the use of deductibles to avoid duplicative coverage.
A construction of the act which would require resort to the insurer of the involved motor vehicle whenever there is a one-vehicle accident would not be consistent with those purposes.
Moreover, unless the household provision of § 3114(1) authorizes a claim against the owner’s or family member’s insurer, it serves little apparent purpose because if the household member is injured in the policyholder’s automobile, he claims against its insurér simply because he was an occu pant of that vehicle at the time of the accident. And, under the alternative construction which we reject, if he was injured while an occupant of or when struck by another vehicle he must claim against that vehicle.
The Legislature might have structured a no-fault act around the involved vehicle and such an act might make more sense to some people. It followed, however, the approach of most states and of the uniform act to make the owner’s or family member’s insurer primary.
We conclude that the owner’s or family member’s insurer is primary and that there may be resort to the insurer of the involved vehicle only when neither the injured person nor a family member in whose household he is domiciled is insured.
V
The no-fault policy issued to Porter’s father by Michigan Mutual contained a "limits of liability” clause which provided that "any amount payable by the company for personal protection benefits shall be reduced by $5000 if the named insured or relative sustains bodily injury while occupying a two (2) wheel motor vehicle owned by the named insured or a relative”. Porter’s father could have purchased an endorsement for an additional pre mium which would have eliminated that limits of liability clause.
Michigan Mutual argues that the limits of liability clause, which was approved by the Commissioner of Insurance, is an "[a]ny other deductible” authorized by § 3109(3) of the act.
Porter argued, and the Court of Appeals held, that the delegation to the commissioner of the power to approve deductibles was unconstitutional because it did not provide standards to guide his exercise of discretion.
Whether a due process test or a safeguards against abuse of discretion test is applied, the standards and procedures are sufficient to sustain the delegation. In authorizing deductibles the commissioner is guided by the purpose of the no-fault act and the general provisions of the Insurance Code. No deductible may thwart the purposes of the act as enunciated by the Legislature and elucidated by this Court in Shavers. The commissioner is also governed by the Insurance Code in his exercise of discretion. Among the code’s provisions are MCL 500.210; MSA 24.1210, which provides for the promulgation of rules by the commissioner, MCL 500.2236; MSA 24.12236, which requires that all policies be filed with and approved by the commissioner and which authorizes him to disapprove policies containing "inconsistent, ambiguous or misleading clauses”, or containing "exceptions and conditions that unreasonably or deceptively affect the risk purported to be assumed in the general coverage of the policy”, MCL 500.2403; MSA 24.12403, which establishes standards for setting rates, and, finally, MCL 500.244; MSA 24.1244, which provides for judicial review of decisions by the commissioner.
We conclude that the Legislature has provided the commissioner with adequate standards to guide him in a decision to authorize a deductible and has provided persons and the industry with adequate procedures by which they can secure judicial review of decisions by the commissioner.
Since the Court of Appeals found the delegation unconstitutional and on that basis invalidated the deductible, it did not address Porter’s other claims. In this Court the parties briefed only the delegation issue. We therefore remand to the Court of Appeals to consider other challenges to the validity of the deductible.
In the trial court and Court of Appeals, Porter argued that the approval of the deductible violated the equal protection rights of some motorcycle operators by creating two distinct classes of motorcycle operators: i) those living in households with owned motor vehicles who must claim no-fault benefits from the family insurer under § 3114(1) and subject to a $5,000 deductible, and ii) those who do not live in such households who claim no-fault benefits from the insurer of the involved motor vehicle without regard to a $5,000 deducti-. ble.
In this Court it was asserted during oral argument that the $5,000 deductible effects "a com píete strangulation of the statutory scheme with regard to the payment of first-party benefits”.
In Underhill we affirm. In Porter we affirm the Court of Appeals except its finding of an unconstitutional delegation, and remand to it for consideration of additional challenges to the validity of the $5,000 deductible. No costs, a public question.
Coleman, C.J., and Kavanagh, Williams, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Levin, J.
" 'Motor vehicle’ as used in this chapter, except for section 3103, means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels, but does not include a moped as defined in section 32b of Act No. 300 of the Public Acts of 1949, being section 257.32b of the Michigan Compiled Laws.” MCL 500.3101(2); MSA 24.13101(2) (emphasis supplied).
"An owner or registrant of a motor vehicle with 2 wheels, except a moped, shall provide security against loss resulting from liability imposed by law for property damage, bodily injury, or death suffered by a person arising out of the ownership, maintenance, or use of that motor vehicle. The security shall conform with the requirements of section 3009(1).” MCL 500.3103; MSA 24.13103.
The 1975 amendment to the act, requiring motorcycle owners to maintain public liability insurance but not requiring that they maintain security for the payment of no-fault benefits, indicates that the Legislature, although aware that motorcycle owners were not required to maintain insurance to pay benefits under the no-fault act, decided to impose on them only the limited responsibility of maintaining insurance to cover public liability. 1975 PA 329.
"Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.” MCL 500.3105(1); MSA 24.13105(1).
MCL 500.3113; MSA 24.13113.
"Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) Insurers of owners or registrants of motor vehicles involved in the accident.
"(b) Insurers of operators of motor vehicles involved in the accident.” MCL 500.3115(1); MSA 24.13115(1).
Opinion of Gilmore, J., Shavers v Attorney General, Wayne Circuit Court No. 73-248-068-CZ.
Cf. Carmichael v Southern Coal & Coke Co, 301 US 495, 520-521; 57 S Ct 868; 81 L Ed 1245 (1937).
"(1) Except as provided in subsections (2) and (3), a personal protection insurance policy applies to accidental bodily injury to the person named in the policy, his spouse, and a relative of either domiciled in the same household. When personal protection insurance benefits are payable to or for the benefit of an injured person under his own policy and would also be payable under the policy of his spouse, relative, or relative’s spouse, the injured person’s insurer shall pay all of the benefits and shall not be entitled to recoupment from the other insurer.
"(2) A person suffering accidental bodily injury while an operator or a passenger of a motor vehicle operated in the business of transporting passengers shall receive the personal protection insurance benefits to which the person is entitled from the insurer of the motor vehicle. This subsection shall not apply to a passenger in the following, unless that passenger is not entitled to personal protection insurance benefits under any other policy:
"(a) A school bus, as defined by the department of education, providing transportation not prohibited by law.
"(b) A bus operated by a common carrier of passengers certified by the public service commission.
"(c) A bus operating under a government sponsored transportation program.
"(d) A bus operated by or providing service to a nonprofit organization.
"(e) A taxicab insured as prescribed in section 3101 or 3102.
"(3) An employee, his spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.
"(4) Except as provided in subsections (1) to (3), a person suffering accidental bodily injury while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
"(a) The insurer of the owner or registrant of the vehicle occupied.
"(b) The insurer of the operator of the vehicle occupied.” MCL 500.3114; MSA 24.13114.
The first sentence of § 3114(1) states that the personal protection policy "applies” to the enumerated persons. In subsequent clauses of § 3114 the operative words are “shall pay”, "shall receive” or "shall claim”.
The Legislature thus used different formulations in the several subsections of § 3114. We read the term "applies” as used in this section to be just another way of saying that the insurer "shall pay” and the injured person "shall claim” and "shall receive”.
Like other priority provisions, § 3114(1) begins "[ejxcept as provided [in other priority sections] * * The use of this phrase indicates that the first sentence of the section is itself a priority section, separate from and independent of the sentence which follows establishing the priority among household insurers.
Section 3114(1) is the only section of the act which can be read to establish in the insured a right to claim benefits from his own insurance company. The insurer’s obligations and the insured’s entitlements under other sections are based on his relationship with the vehicle involved in the accident; then he claims, as would any other person, by virtue of his status as one injured while occupying or when struck by the insured vehicle.
MCL 500.3172; MSA 24.13172.
In that view, which we reject, it appears that the household member provision would only provide first-party benefits to the household member who is injured while driving a non-owned uninsured vehicle (under § 3114[4]) and to provide such benefits to his passenger (under § 3114[4]) or pedestrian victim (under § 3115).
This was the view taken by the dissenter in the Court of Appeals in Porter and by the Court in Davidson v Johnson, 76 Mich App 497; 257 NW2d 139 (1977), rev’d in part (On Rehearing), 79 Mich App 660; 262 NW2d 887 (1977).
13 ULA, Uniform Motor Vehicle Accident Reparations Act, § 4, pp 368-369 (1972 act). See, also, Comments, id., pp 352, 369.
"An insurer providing personal protection insurance benefits may offer, at appropriately reduced premium rates, a deductible of a specified dollar amount which does not exceed $300.00 per accident. This deductible may be applicable to all or any specified types of personal protection insurance benefits but shall apply only to benefits payable to the person named in the policy, his spouse and any relative of either domiciled in the same household. Any other deductible provisions require the prior approval of the commissioner.” MCL 500.3109(3); MSA 24.13109(3).
Westervelt v Natural Resources Comm, 402 Mich 412; 263 NW2d 564 (1978) (Williams, J.); Dep’t of Natural Resources v Seaman, 396 Mich 299; 240 NW2d 206 (1976).
People v Fields (On Rehearing), 391 Mich 206, 224-225; 216 NW2d 51 (1974) (Levin, J., dissenting). | [
-70,
-35,
-43,
-84,
9,
97,
10,
50,
-103,
-102,
36,
19,
127,
-18,
-121,
33,
-21,
-5,
75,
107,
-105,
-93,
23,
-126,
-100,
-73,
-85,
4,
-128,
-55,
111,
59,
76,
40,
-54,
-44,
76,
74,
-91,
116,
78,
-126,
-118,
-31,
25,
-111,
-68,
126,
-60,
75,
65,
-113,
3,
62,
0,
68,
45,
64,
11,
49,
-47,
-6,
-113,
13,
110,
16,
-125,
68,
25,
111,
-46,
10,
28,
-103,
80,
-24,
114,
-73,
-110,
53,
53,
-103,
1,
98,
119,
-112,
81,
-24,
-4,
-104,
7,
-110,
-81,
-114,
63,
57,
19,
10,
-105,
-73,
74,
36,
44,
120,
-6,
93,
95,
-32,
23,
-97,
-108,
-111,
109,
102,
-99,
-122,
-49,
-49,
54,
117,
-50,
-14,
95,
101,
127,
89,
19,
-98
] |
Reid, J.
Plaintiff appeals from the order and judgment of the circuit court dismissing the case on motion without trial and without testimony as to the merits of the case.
The declaration alleges that the plaintiff’s decedent on March 18, 1945, at about 1 a.m., was driving an automobile in a southerly direction upon the traveled portion of Willmont road, south of the village of Otsego in Allegan county, in the full exercise of due care and caution, and that when he came to .a point approximately 1% miles south of the southerly limits of Otsego, his automobile struck a “large log or tree limb with a diameter of from 14 to 20 inches and a length of more than 12 feet;” that the log or tree limb had been blown across the road by a storm on the evening of March 15, 1945, and lay at right angles to the direction of the highway, that the log or tree limb was covered with a dark bark of approximately the same color as the cinder surface of the highway and that because of this similarity of color the presence of the log in the highway was not discernible at night to drivers of automobiles using the highway in the exercise of due care and caution; that as a result of the collision with the log' or tree limb, plaintiff’s decedent suffered injuries from which he died within a period of 1% hours thereafter; that the county of Allegan and its representatives then and there knew, or should have known, of the presence of said log or tree limb in the traveled portion of the highway, yet wholly failed to remove the same or cause the placing of any warning signs, lights or other devices to warn persons lawfully using said highway of the dangerous, unsafe and defective condition of the highway; that the traveled portion of the highway was approximately 16 feet wide; that the road for some time prior to January, 1945, and up to and including the time of the accident had been legally established and used as a public highway, and that the county of Allegan was in charge of the highway and was under , the law required to maintain the highway in a condition reasonably safe and convenient for public travel. See 1 Comp., Laws 1929, §§ 3996,. 4223 (Stat. Ann. §§ 9.121, 9.591).
For the proposition that the declaration does not allege sufficient facts to sustain a finding that the county of Allegan was chargeable with notice of the danger in question in the instant case, defendant cites Miller v. City of Detroit, 156 Mich. 630 (132 Am. St. Rep. 537, 16 Ann. Cas. 832) and Corey v. City of Ann Arbor, 134 Mich. 376. In the Corey Case, an icy condition of the sidewalk had existed from Tuesday to Friday but it was considered that, in the absence of proof that the condition of the sidewalk was notorious, or proof of actual notice, the fact that the icy condition had existed for the time indicated would not justify an inference of notice. However, in the instant case the limb 14 to 20 inches in diameter would certainly be noticeable to any person traveling the highway in the daytime, and was within a mile and a half of the village limits of the village of Otsego. The declaration states facts from which the jury could infer notice to the county and negligence on the part of officers charged with the maintenance of the road in question; in that regard there is a jury question.
The declaration also contains allegations to the effect that the trees along the side of the road at or near the place in question were old and at least partly rotten, and had theretofore been, a known source of trouble and of danger to users of the highway. Possibly the pleader intended to charge negligence on that account, or at least to charge defendant with knowledge of facts that ought to have put the defendant on guard, and on the lookout for the particular happening in question that developed from that condition. We find that it was not the legal duty of the defendant to trim the trees. See Miller v. City of Detroit, supra. We note that in the Miller Case the provisions of the city charter were considered along -with the statute of the State.
In the instant case the trial judge concluded that contributory negligence of the driver was apparent from the statement in the declaration, and granted defendant’s motion to dismiss on that ground. As to such ruling, plaintiff cites Brown v. County of Oakland, 279 Mich. 55, wherein plaintiff, as adminis-' tratrix of the estate of her husband, brought suit to recover damages by reason of fatal injuries to her husband, sustained in driving along the highway in the nighttime when his automobile collided with an ice barrier one to two feet high that crossed the 18-foot pavement along which he was driving. As to such condition we decided that the question of contributory negligence of the decedent under all the circumstances was for the jury. In view of the decision in that case, we cannot say that in the instant case plaintiff’s decedent was guilty of contributory negligence as a matter of law under the description of the accident recited in the declaration. A jury question exists as to contributory negligence of plaintiff’s decedent. ^
Defendant requested that if we reverse the der cisión of the circuit judge, our order should provide that the defendant shall have the right 'to question the plaintiff respecting the witnesses to be produced and defendant says respecting the provision of-the statute, 1 Comp. Laws 1929, § 3996 (Stat. Ann. § 9.121),
“The learned circuit judge interpreted this provision of the statute to require only thjit the witnesses ‘to the accident’ be listed, but we do not so interpret it. We believe that the witnesses to be listed insofar as the accident is concerned are those who will testify to all of the essential elements of the plaintiff’s case, including notice, actual or constructive. ’ ’
Respecting this part of plaintiff’s contention in circuit court,*the circuit judge ruled: “The notice of claim filed listed but one witness. • So far as is shown, that person is the only one who could have actually seen the accident. * * * In case of an' accident occurring on a highway under control of the county, by 1 Comp. Laws 1929, § 3996 (Stat. Ann. § 9.121), only witnesses ‘to the accident’ need be given. Apparently the notice complies with the statute,” which ruling we affirm.
■ The judgment appealed from is reversed for the reason that the trial judge erred in deciding that decedent was guilty of contributory negligence as a matter of law under the facts set forth in the dec laration. The case is remanded to the trial court for such further proceedings as shall he found appropriate in view of this decision. Costs to plaintiff.
Butzel, G. J., and Cabs, Bushnell, Sharpe, Boyles, North, and Dethmers, JJ., concurred. | [
-14,
108,
-40,
-84,
41,
-32,
48,
26,
91,
-127,
-91,
83,
-113,
-29,
3,
43,
-17,
125,
113,
91,
69,
-77,
23,
39,
-9,
-77,
-93,
-59,
-78,
-52,
-28,
91,
76,
32,
74,
-43,
-58,
-120,
-51,
92,
-50,
-124,
-103,
-20,
-103,
88,
48,
59,
68,
15,
113,
31,
-26,
46,
24,
-29,
-87,
44,
75,
-87,
-63,
-16,
-96,
-107,
95,
2,
-93,
20,
-104,
-127,
72,
27,
-104,
49,
-128,
-8,
115,
-74,
-105,
-12,
33,
-103,
8,
-30,
103,
1,
13,
-25,
-20,
-104,
14,
-6,
29,
-89,
-98,
120,
81,
-127,
-106,
-97,
117,
24,
69,
126,
-20,
85,
93,
108,
5,
-53,
-76,
-79,
-49,
60,
-108,
101,
-21,
-91,
50,
113,
-33,
84,
94,
69,
113,
59,
-58,
-14
] |
Per Curiam.
When the evidence, if believed by the jury, would support a conviction of a lesser offense on which the defendant requests an instruction, the trial judge must give the requested instruction. Because the trial judge in this case did not, error occurred.
I
In the early evening hours of September 11, 1976, Billy Ray Stephens and an unidentified accomplice approached and struck up a conversation with Edward Repp and his brother, Arthur, as they sat drinking in a Romulus bar. Stephens told the Repps that he was a truck driver and had some new excess appliances on his truck that he was willing to sell, and Edward Repp offered to buy a microwave oven from Stephens for $75. The group then left and drove to a truck stop. Stephens asked for the money and said he would return with the microwave. When Edward Repp refused to go along with this arrangement, the group drove around behind some parked trailers and Stephens is said to have stepped out of the car, pulled a revolver and said, "All right. This is it.” The Repps said Stephens forced them to give him their wristwatches and the money from their wallets, and then ordered them to take off running or he would "blow your head off”. From a distance the brothers observed Stephens and his accomplice change the license plates on the car before they drove off. Two days later the Repps identified Stephens from a display of 50 photographs. Stephens was charged with two counts of armed robbery.
Stephens testified that he did indeed meet the Repps as they had said, but that he offered to sell them "stolen” merchandise and they agreed to buy, either televisions or microwave ovens (he couldn’t recall). When they got to the truck stop, Edward Repp gave him $150 and the Repps stepped out of the car to a position where they could observe Stephens take the merchandise from a truck that Stephens had pointed out to them. After the Repps stepped out, Stephens and his friend drove off. Stephens admitted being arrested on at least two occasions for utilizing the same kind of ruse on others and said that this was his method of operation. He denied, however, being armed or pulling a revolver.
The jury convicted the defendant of the two counts of armed robbery charged. The Court of Appeals, by order, affirmed his convictions.
II
Defense counsel said in his opening statement that the facts would prove that the defendant was guilty of larceny by trick or larceny by conversion, that the jury could convict him of one of those offenses, but that he was not guilty of armed robbery. The defendant’s testimony supported this theory.
At the conclusions of the proofs, defense counsel requested instructions on larceny by conversion and larceny by trick. He argued:
"Defense Counsel: Well, there is no question in this case that we have had testimony, as I have indicated before, tending to show that the defendant is a con man and that he has a reputation and is known in that community for selling appliances that — .
“Court: For selling non-appliances.
“Defense Counsel: Right, and taking the money. The defendant has taken the stand in this case, your Honor, and based upon his testimony the court could find and the jury could find that he is guilty of larceny by conversion or larceny by trick, and we feel that an instruction covering that particular crime should be given to the jury because not to do it would be totally and wholly to deny his testimony. He hasn’t taken the stand and said I’m not guilty of anything. He has taken the stand and said yes, I’m guilty, but I’m not guilty of armed robbery. I am guilty of larceny by conversion or larceny by trick.”
The trial judge, however, refused to instruct on either of the offenses. Consequently, defense counsel argued to the jury that although the defendant admitted committing a crime and was willing to be convicted of it, he was not charged with it and the judge would not instruct on larceny by trick or larceny by conversion; if they believed that defendant was a con man rather than an armed robber "based upon those limitations you will have to find him not guilty of robbery armed”.
While larceny by trick and larceny by conversion are not necessarily included offenses of armed robbery, they are cognate offenses, because here they "share several elements, and are of the same class or category”, and the record here would support a verdict of guilt thereof. See People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975). The Court has no interest in allowing a "guilty” man to escape punishment. When a defendant admits criminal involvement, but not to the extent of the charged offense, the jury should have the "freedom to act according to the evidence”. People v Chamblis, 395 Mich 408, 426; 236 NW2d 473 (1975). When the instructions the defendant requests relate to a cognate included offense and are supported by the evidence, they should be given.
We have considered the defendant’s remaining allegations of error and find them without merit. In lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we remand to the Wayne Circuit Court for entry of judgments of convictions of larceny by conversion and resentencing. If, however, the prosecution is persuaded that the ends of justice would be better served, on notification to the circuit court before resentencing, the circuit court shall vacate the judgments and grant a new trial on the charge that the defendant committed two counts of armed robbery.
Coleman, C.J., and Kavanagh, Williams, Levin, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.
MCL 750.356; MSA 28.588.
MCL 750.362; MSA 28.594. | [
48,
-20,
-55,
-65,
57,
-32,
58,
-104,
20,
-81,
52,
51,
-23,
71,
16,
59,
-15,
-3,
117,
-63,
-36,
-93,
7,
-45,
-14,
-77,
-45,
-59,
-75,
73,
-26,
-42,
77,
48,
-30,
85,
102,
-54,
-27,
84,
-82,
4,
-80,
-30,
-16,
16,
32,
98,
-124,
11,
101,
-98,
-13,
42,
27,
-53,
41,
44,
75,
61,
-56,
-7,
-79,
13,
-23,
22,
-109,
37,
25,
1,
-8,
14,
-36,
49,
1,
-7,
114,
-106,
-126,
116,
77,
-119,
-116,
102,
98,
32,
77,
-19,
-24,
-120,
46,
63,
-121,
-89,
-34,
72,
72,
111,
-73,
-97,
119,
6,
14,
112,
109,
92,
121,
100,
0,
-50,
-108,
-111,
-115,
52,
14,
-101,
-37,
1,
16,
117,
-49,
-30,
92,
116,
120,
-77,
-113,
-73
] |
Boyle, J.
The issue before us is whether a person who holds title to real property with another as "joint tenants with full rights of survivor- ship” may convey a life estate interest without the consent of the cotenant. The Court of Appeals held that the trial court was correct in enjoining such a transfer. We disagree.
i
On October 14, 1977, certain commercial property in Macomb County was conveyed to Carol Allen and Helen Albro "as joint tenants with full rights of survivorship.” On April 23, 1987, Carol Allen entered into a purchase agreement with Steven Kinzer, in which she agreed to convey her interest in the property to Kinzer by quitclaim deed.
On May 12, 1987, Helen Albro instituted an action to enjoin sale of Allen’s interest. Both Allen and Kinzer were named as defendants. Upon institution of the action, a temporary restraining order was entered enjoining the sale.
Both Albro and Kinzer filed motions for summary disposition pursuant to MCR 2.116(C)(8). The trial court granted summary disposition in favor of Albro and permanently enjoined Allen and Kinzer from completing the pending sale, and further enjoined Allen "from any transfer, conveyance, sale or alienation of such property without the consent and approval of Helen R. Albro . . . .” The trial court in its opinion noted the general rule that "one joint tenant can transfer his or her undivided interest in the estate to a third person, who becomes a tenant in common with the other joint tenant,” thus destroying the survivorship feature. However, the court stated that "where property stands in the name of joint tenants with the right of survivorship, neither party may transfer title to the premises and deprive the other of such right of survivorship.” The court found that the sale of Allen’s interest would create a tenancy in common and necessarily deprive Albro of her right of survivorship.
The Court of Appeals described the interest held by Albro and Allen as "a joint life estate followed by a contingent remainder in fee to the survivor.” 170 Mich App 238, 240; 428 NW2d 34 (1988). The Court of Appeals found that the contingent remainder was alienable, and that Allen could "lawfully alienate her future contingent interest in fee” without destroying Albro’s right of survivor-ship. Id., p 242. However, the Court of Appeals held that Allen could not alienate her interest in the joint life estate, since "by operation of law, any alienation would convert the joint life estate to a tenancy in common, thereby defeating the survivorship element of the joint life estate.” Id., p 241.
Kinzer sought leave to appeal in this Court, contending that the Court of Appeals erred in concluding that Allen could not transfer her interest in the joint life estate. We granted leave on that issue, 432 Mich 892 (1989). The alienability of the contingent remainder is not before us.
ii
Michigan law recognizes two forms of joint tenancies. The first is of the type typically recognized in various jurisdictions. This joint tenancy is characterized by the four unities, that is, unity of interest, unity of title, unity of time, and unity of possession. 2 Tiffany, Real Property (3d ed), § 418, p 196. Each joint tenant shares in possession of the entire estate, and each is entitled to an undivided share of the whole. 4A Powell, Real Property, ¶[ 617[1], p 51-9. The principal characteristic of the joint tenancy is the right of survivorship. Upon the death of one joint tenant, the surviving tenant or tenants take the whole estate. Tiffany, supra, § 419, p 198. In the standard joint tenancy, the right of survivorship may be destroyed by severance of the joint tenancy. Id., p 199. The joint tenancy may be severed by an act of the parties, by conveyance by either party, or by levy and sale on an execution against one of the parties. Smith v Smith, 290 Mich 143; 287 NW 411 (1939). If one joint tenant conveys his interest to a third party, then the remaining joint tenant and the grantee become tenants in common, thus destroying the element of survivorship. Powell, supra, ¶ 618[1], p 51-14; Tiffany, supra, § 425, p 209.
The "joint tenancy” involved in this case, while unfortunately sharing the same appellation as the typical joint tenancy, is an interest of a different nature. It is created by express words of survivor-ship in the granting instrument in addition to those creating a joint tenancy, such as "and to the survivor of them,” Schulz v Brohl, 116 Mich 603, 605; 74 NW 1012 (1898); "to them and the survivor of them,” Finch v Haynes, 144 Mich 352, 355; 107 NW 910 (1906); "or survivor of them,” Jones v Snyder, 218 Mich 446, 447; 188 NW 505 (1922); "with right of survivorship,” Ballard v Wilson, 364 Mich 479, 481; 110 NW2d 751 (1961); Mannausa v Mannausa, 374 Mich 6, 8; 130 NW2d 900 (1964); "with full rights of survivorship,” Jones v Green, 126 Mich App 412, 413; 337 NW2d 85 (1983).
At the crux of this case is the distinction between the "joint tenancy with full rights of survivorship” and the ordinary joint tenancy. The "joint tenancy with full rights of survivorship” is comprised of a joint life estate with dual contingent remainders. See 1 Cameron, Michigan Real Property Law, § 9.11, p 274. While the survivor- ship feature of the ordinary joint tenancy may be defeated by the act of a cotenant, the dual contingent remainders of the "joint tenancy with full rights of survivorship” are indestructible. A co-tenant’s contingent remainder cannot be destroyed by an act of the other cotenant.
The joint life estate with dual contingent remainders was first recognized in Schulz v Brohl, supra. In Schulz, the interest created by a deed to Peter Brohl and Christine Schulz "and to the survivor of them” was described as "a moiety to each [party] for life, with remainder to the survivor in fee.” 116 Mich 605. Peter conveyed his interest to a third party, Joseph Brohl, reserving a life estate. Subsequent to Peter’s death, Christine Schulz brought an action to quiet title. The Court held in her favor, stating that "[n]either grantee could convey the estate so as to cut off the remainder.” Id. The question of a transfer of the life estate was not at issue, since Peter did not attempt to transfer his life estate, instead reserving it to himself.
In Finch v Haynes, supra, land was deeded to Cora Finch and Nellie Haynes "and the survivor of them.” The Court again characterized the interest created as "a moiety to each [party] for life, with remainder to the survivor in fee.” Id., p 354. Nellie quitclaimed her interest in the land to her husband, John Haynes. Subsequent to Nellie’s death, Cora Finch brought an action to quiet title. The Court noted that if the deed had merely made the parties "joint tenants of the fee,” either of them could by conveyance deprive the other of the right of survivorship. Id., p 355. However, where the parties were "joint tenants for life with a contingent remainder in fee to the one who survives,” id., quoting 1 Washburn, Real Property (6th ed), § 866, the Court held that "no joint ten ant [could], by his conveyance or otherwise, affect the right of survivorship.” Id., p 355. The question of the transfer of Nellie’s life estate was not at issue, and could not have been, for upon the death of the original holder of the "joint life estate,” Cora Finch’s contingent remainder was realized, and she acquired title in fee.
In Jones v Snyder, supra, this Court construed a deed to Melvin Root and to Jared, Susan, and Flora Snyder "and to the survivors or survivor of them,” as creating in the grantees a "joint tenancy for life . . . with a contingent remainder in fee simple to the survivor,” id., pp 447, 449. Root conveyed an undivided one-half interest in the property to Julia Jones. By the time Jones brought suit for partition, only Flora Snyder survived of the original grantees. The Court held in favor of Flora Snyder. Again, however, the Court was not required to decide whether Jones had acquired a life estate in the land by virtue of the conveyance from Root, for, upon the death of all of the other original cotenants, Flora Snyder acquired the land in fee.
The Court of Appeals has repeatedly recognized that the express words of survivorship create a joint life estate with dual contingent remainders, Butler v Butler, 122 Mich App 361, 364; 332 NW2d 488 (1983); ("joint life estate in all of the grantees followed by a contingent remainder in fee to the survivor”); In re Ledwidge Estate, 136 Mich App 603, 607; 358 NW2d 18 (1984) ("moiety to the joint tenants for life with remainder to the survivor in fee”); Albro v Allen, 170 Mich App 240 ("joint life estate followed by a contingent remainder in fee to the survivor”).
The Court of Appeals correctly recognized that the interest held by Allen and Albro was a "joint life estate followed by a contingent remainder in fee to the survivor,” id., but it erred when it applied the rules governing ordinary joint tenancies to this case. We do not agree with the conclusion that "by operation of law, any alienation would convert the joint life estate to a tenancy in common, thereby defeating the survivorship element of the joint life estate.” Id., p 241. Were this an ordinary joint tenancy, conveyance of one party’s interest would indeed convert the tenancy into a tenancy in common, thus destroying the survivorship element of the joint tenancy. Powell, supra. However, where the interest held is a joint life estate with dual contingent remainders, the principles governing ordinary joint tenancies are not controlling.
Generally it is recognized that where the interest held is not an ordinary joint tenancy, but instead a joint life estate with dual contingent remainders, the right of survivorship cannot be affected by a conveyance of the life estate, 48A CJS, Joint Tenancy, § 19, p 352. See also Mulvanity v Nute, 95 NH 526, 527-528; 68 A2d 536 (1949). In Spurlock v Commercial Banking Co, 138 Ga App 892, 897; 227 SE2d 790 (1976), aff’d 238 Ga 123; 231 SE2d 748 (1977), the court described the nature of a "life estate with an alternative contingent remainder in fee simple”:
"[T]his is a completely different interest from the joint tenancy of the common law. A true joint tenant could sever the joint tenancy by conveying his interest to a third party and thus defeat the survivorship.” Agnor, Joint Tenancy in Georgia, 3 Ga S B J 29, 30 (1966). Since a contingent remainder is indestructible, however, the right of survivorship in a joint account cannot be destroyed by "severance.”
In Halleck v Halleck, 216 Or 23; 337 P2d 330 (1959), the Supreme Court of Oregon considered the same question that is before us today. In Halleck, the court concluded that a conveyance of land to two persons "not as tenants in common but with the right of survivorship” created in the grantees concurrent life estates with indestructible contingent remainders. Id., p 39. Had the deed conveyed a joint tenancy, the court noted, conveyance of one cotenant’s interest to a third party would have resulted in a tenancy in common in fee simple in the remaining cotenant and the third party. However, where the original grantees held concurrent life estates with contingent remainders, the right of survivorship could not be defeated:
But this power to defeat the survivorship interest does not extend to co-tenants who hold concurrent life estates with contingent remainders. The contingent remainder which each co-tenant has cannot be defeated by any act of his co-tenant. [Id., pp 40-41.]
Thus, the court held that a conveyance of one party’s interest operated to convey only his life estate and contingent remainder.
What is abundantly clear upon review of the case law concerning the joint life estate with dual contingent remainders, in Michigan and in other jurisdictions, is that a contingent remainder cannot be destroyed by any act by the holder of the preceding life estate. However, this Court has not before today considered whether a cotenant’s alienation of his interest in the joint life estate will necessarily destroy the contingent remainder.
The plaintiff urges that we should conclude that, since alienation of the life estate would destroy the contingent remainder, the life estate may not be alienated. The plaintiff’s position rests on the assumption that the joint life estate with dual contingent remainders is governed by the same rules governing ordinary joint tenancies, i.e., that conveyance by one cotenant will destroy the right of survivorship. But the estate at hand is not an ordinary joint tenancy; we would only confound the rules governing each interest were we to treat the joint life estate with dual contingent remainders as an ordinary joint tenancy. Instead, we should apply the principles which normally govern the component parts of the joint life estate with dual contingent remainders.
We begin with the life estate. It is well settled that life estates are freely transferable, Ferris v Poucher, 152 Mich 251; 115 NW 1054 (1908); In re McBride’s Estate, 253 Mich 305; 235 NW 166 (1931). At common law, a life tenant’s attempt to convey a greater estate than the life tenant held in the land would result in the forfeiture of the life estate and the destruction of a contingent remainder. 31 CJS, Estates, § 92, p 179; 1 Simes & Smith, Law of Future Interests, § 195, p 219. However, that rule is altered by statute in Michigan; a life tenant’s conveyance transfers on only what the life tenant has:
A conveyance made by a tenant for life or years, purporting to grant a greater estate than he possessed or could lawfully convey, shall not work a forfeiture of his estate, but shall pass to the grantee all the estate which such tenant could lawfully convey. [MCL 565.4; MSA 26.523.]
Moreover, the Legislature has decreed that the contingent remainder following the joint life estate may not be destroyed by alienation of the precedent estate or by any act by the owner of the precedent estate:
No expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by disseizin, forfeiture, surrender, merger, or otherwise. [MCL 554.32; MSA 26.32.]
The principle that life estates are transferable, together with the rule that an expectant estate may not be defeated by alienation of the precedent estate, leads us to conclude that a person sharing a joint life estate with dual contingent remainders may convey his interest in the joint life estate, without destroying the cotenant’s contingent remainder.
We find that a rule prohibiting the alienation of the joint life estate would be contrary to the settled principle that life estates are transferable, Ferris v Poucher, supra; In re McBride’s Estate, supra. Moreover, Michigan recognizes a strong public policy against restraints on alienation. Mandlebaum v McDonell, 29 Mich 787 (1874); Braun v Klug, 335 Mich 691; 57 NW2d 299 (1953). Of course, a cotenant in a joint life estate cannot convey an estate which will extend beyond his own estate, Tiffany, supra, § 59, p 85. The interest which Allen held in the joint life estate was limited by the dual contingent remainders; the joint life estate would terminate upon the death of Allen or Albro, whichever occurred sooner. Thus, Allen could convey to Kinzér an undivided interest in the joint life estate, to terminate at the death of either of the original cotenants._
m
The plaintiff protests that "sound policy considerations” support a prohibition on alienation of the joint life estate held by Allen. The plaintiff contends that since the remedy of partition is not available to those holding a "joint tenancy with rights of survivorship,” then alienation may "cast upon the remaining co-tenant an unwanted or impractical co-tenant,” without the remedy of partition which would be available in an ordinary joint tenancy. It is trué that this Court has denied partition to parties holding joint life estates with dual contingent remainders, Ames v Cheyne, 290 Mich 215; 287 NW 439 (1939).
We agree with the plaintiff that it would be anomalous to allow the conveyance of one co-tenant’s interest in a joint life estate when Michigan law bars partition between the remaining cotenant and the grantee. While the principles of concurrent ownership have never guaranteed amiability between cotenants — in both an ordinary joint tenancy and a tenancy in common, an original cotenant may find himself sharing possession as tenant in common with a stranger after a conveyance by the former cotenant — the remedy of partition is available if cotenants cannot get along. Today we reconsider the rule against partition of a joint life estate with dual contingent remainders, and we conclude that the "joint life estate” element may be partitioned without doing violence to the contingent remainders._
In Ames v Cheyne, supra, this Court, enforcing an oral contract, held that "[w]here property stands in the name of joint tenants with the right of survivorship, neither party may transfer the title to the premises and deprive the other of such right of survivorship.” Id., p 218. The Court concluded without further discussion that the plaintiff could not have partition. Id.
Ames has been the subject of critical comment:
The court probably went to the extreme limit of finding a contract against partition in the case of Ames v Chaney [sic], (1939) 290 Mich 215, when it found that the parties by taking the land as joint tenants with a right of survivorship were contracting that they would not partition the premises. It seems quite likely that given a proper case reasonably argued the court would today find that property taken by persons as joint tenants with a right of survivorship was subject to partition since the statement "with right of survivorship” would reasonably be considered merely a statement of an incident of joint tenancy rather than a contract.[ ] [Emphasis in the original.]
In Ballard v Wilson, supra, the Michigan Supreme Court again held that a "joint tenancy with right of survivorship” is not subject to partition. Like Ames, Ballard offered little support for its conclusion:
Under the rule of Ames v Cheyne we hold that these parties intended to create and did create joint life estates followed by a contingent remainder in fee to the survivor, indestructible by the voluntary act of only one of the life tenants. Partition is denied. [364 Mich 484.]_
This Court in Mannausa v Mannausa, supra, approvingly cited both Ames and Ballard, but was not called upon to consider the question of partition.
Michigan’s partition statute provides that "[a]ll persons holding land as joint tenants or tenants in common may have those lands partitioned,” MCL 600.3304; MSA 27A.3304. As to who may bring an action for partition, the Legislature has stated:
Any person who has an estate in possession in the lands of which partition is sought may maintain a claim for partition of those lands, but a person who has only an estate in reversion or remainder in the lands may not maintain a claim for their partition. [MCL 600.3308; MSA 27A.3308.]
An action for partition has as its object the distribution of possession between those entitled to possession. Metcalfe v Miller, 96 Mich 459; 56 NW 16 (1893); Fox v Greene, 289 Mich 179, 185; 286 NW 203 (1939). Partition may be accomplished voluntarily by cotenants or by judicial action. Powell, supra, ¶ 607[2], [3], pp 50-42 to 50-50. Physical division of the jointly held property is the preferred method of partition. Id., ¶ 607[4], p 50-50. "Normally a physical division of the property confers upon each cotenant his respective fractional portion of the land.” Id., p 50-52. Where such a division results in inequalities in owners’ shares, the court may award money payments to offset the difference. Id., p 50-53. Although partition in kind is favored, the court may also order sale and division of the proceeds when it concludes that an equitable physical division cannot be achieved. Id., ¶ 607[5], p 50-54.
We now turn to the question of partition of a joint life estate with dual contingent remainders. The dual contingent remainders are not subject to partition because they are not possessory estates, MCL 600.3308; MSA 27A.3308. Thus, the question becomes whether the parties’ joint life estate is subject to partition. In Metcalfe v Miller, supra, p 462, this Court held that partition could be had as between owners of life estates. Of course, the partition is of a duration no longer than the duration of the estate which is partitioned. Id., p 460. In Rendle v Wiemeyer, 374 Mich 30; 131 NW2d 45 (1964), the Court considered a situation in which one of several life tenants instituted partition proceedings, and partition of the entire estate was ordered, without reference to the fact that the party seeking partition held a life estate only. The Court held that "the proceedings could not partition what the parties did not have,” and were "void as to the remaindermen . . . .” Id., p 40. In other words, the remainders which followed the life estate were unaffected by partition of that estate.
Courts in other jurisdictions generally hold that joint life estates are subject to partition. The purpose of such partition is to allow each life tenant "to have, use, and enjoy his or her part during the term of such life interest . . . .” Wright v Conner, 200 Ga 413, 416; 37 SE2d 353 (1946). Partition between cotenants of a life estate will not affect the remainder. Willhite v Rathburn, 332 Mo 1208, 1216-1217; 61 SW2d 708 (1933). See also Whittaker v Porter, 321 Ill 368; 151 NE 905 (1926) (a life estate held as a tenancy in common may be partitioned); Snapp v Gallehue, 333 Ill 138, 142-143; 164 NE 222 (1928) (partition may be had of a common life estate); Rupp v Molitor, 320 Mo 938; 9 SW2d 609 (1928) (a life estate held by two persons, each with an undivided one-half, may be partitioned); Cottingham v Love, 211 Ala 152; 99 So 907 (1924) (a life tenant to an undivided interest in land was entitled to partition).
The common law regarding partition of joint life estates is summarized in Baskins v Krepcik, 153 Neb 36, 39; 43 NW2d 624 (1950):
The common law conferred this remedy upon joint tenants, tenants in common, owners of estates for life or years, and owners of estates in which some of the cotenants held for term of life or years and others held estates of inheritance. A prerequisite was an estate in possession, and none but parties having such estates were bound by the judgment, but the partition did not affect estates in remainder or contingency. Tenants of estates in remainder were not permitted to interfere with tenants in possession, but tenants in possession had power to compel partition confined to their particular estates but could do nothing towards effecting a severance of estates in remainder or reversion. It was the rule at common law and under the English statutes that estates of remainder or reversion could not be divided by proceedings for compulsory partition.
We find this summary of the common law persuasive; it is consistent with Michigan authority that life estates may be partitioned, Metcalfe, supra, and that partition of a life estate will not affect the estate in remainder, Rendle, supra. Thus, we hold that the joint life estate element of such a cotenancy may be partitioned without affecting the contingent remainders. The retention of the rule against partition would be anomalous in view of our holding today that a party may alienate his undivided interest in a joint life estate. We expressly overrule those cases holding that a "joint tenancy with right of survivorship” may not be partitioned.
CONCLUSION
The interest which was conveyed by the deed to Carol Allen and Helen Albro "as joint tenants with full rights of survivorship” was a joint life estate with dual contingent remainders. The contingent remainder of either cotenant may not be destroyed by any act of the other. Thus, we hold that either cotenant may transfer her interest in the joint life estate and such a transfer has no effect on the contingent remainders. Upon the death of either of the original cotenants, the other cotenant, or any person to whom she has transferred her contingent remainder, takes the whole estate. We further hold that the joint life estate may be partitioned without affecting the contingent remainders.
We reverse the portion of the Court of Appeals decision which would preclude transfer of a co-tenant’s interest in a joint life estate, and remand the case to the trial court to modify its order of permanent injunctive relief pursuant to this decision.
Riley, C.J., and Levin, Brickley, Cavanagh, Archer, and Griffin, JJ., concurred with Boyle, J._
In Michigan, MCL 565.49; MSA 26.565 abolishes the requirements of unities of time and title.
If Allen predeceases Albro, then, upon Allen’s death, Albro’s contingent remainder will be realized and she will acquire title to the land in fee. If Albro predeceases Allen, then Allen’s contingent remainder, which was transferred to Kinzer, will be realized and Kinzer will acquire the land in fee.
The interest of a tenant in common is fully alienable, Powell, supra, ¶ 602[9], p 50-13. A cotenant in an ordinary joint tenancy may also transfer his interest to a stranger, resulting in a tenancy in common between the original cotenant and the grantee. Id., ¶ 618[1], p 51-14. A tenant in common has the right to compel partition, id., ¶ 607[1], p 50-40, as does a cotenant in an ordinary joint tenancy. Id., ¶ 619[2], p 51-18.
Final Report of Joint Committee on Michigan Procedural Revision, Parts I & II, § 27.2, p 227 (1960); committee comment to 1961 PA 236, § 3304, effective January 1, 1963 (MCL 600.3304; MSA 27A.3304).
Pursuant to the statutory language, a person holding only a contingent remainder may not maintain an action for partition. A person holding both a life estate and a future interest may have partition of the life estate only, absent a statute authorizing partition of future interests. Powell, supra, ¶ 607[3], p 50-44.
In Michigan, the common law prevails unless abrogated by statute. Myers v Genesee Co Auditor, 375 Mich 1; 133 NW2d 190 (1965); Bugbee v Fowle, 277 Mich 485, 492; 269 NW 570 (1936).
We do not disturb Ames and Ballard, supra, to the extent that they bar partition of the right of survivorship. See n 5 and accompanying text. | [
83,
122,
-35,
-68,
-104,
98,
58,
-72,
96,
-27,
39,
83,
111,
-8,
81,
61,
-12,
99,
65,
105,
118,
-93,
71,
-127,
-1,
-77,
-45,
-42,
-70,
-33,
118,
70,
69,
32,
-118,
85,
66,
-127,
-51,
94,
14,
5,
-118,
96,
-39,
-60,
52,
-81,
80,
14,
65,
79,
-77,
45,
49,
69,
72,
42,
9,
-71,
-48,
-72,
-101,
-116,
111,
6,
-94,
21,
-68,
-27,
-40,
-86,
16,
-111,
-120,
-24,
51,
54,
-106,
52,
27,
-101,
-88,
98,
99,
0,
69,
-17,
-32,
-112,
46,
-6,
29,
-90,
-40,
88,
2,
66,
-83,
95,
96,
5,
36,
-10,
-26,
28,
77,
-20,
7,
-49,
-42,
-79,
13,
95,
-120,
3,
-38,
7,
33,
113,
-53,
-88,
92,
70,
122,
27,
-114,
-10
] |
Danhof, C.J.
Petitioner appeals as of right the circuit court’s order affirming the decision of respondent Michigan Public School Employees Retirement Board (board) that petitioner was not entitled to purchase additional credit in the respondent Michigan Public School Employees Retirement System (MPSERS). Petitioner’s husband, Donald Scannell, taught school in states other than Michigan for 15 years after his honorable discharge from the Armed Forces. From 1966 until his death in 1981 he taught at Ferris State College.
In January, 1973, Mr. Scannell submitted proof of his 15 years of out-of-state service to respondent retirement system in order to obtain MPSERS credit for the years he taught out of state. He was advised by respondent retirement system that, since ten years of Michigan service was required to be eligible for retirement benefits, he could defer purchase of his out-of-system credit until he was certain of fulfilling the ten-year eligibility requirement. In 1976, Mr. Scannell purchased ten years credit in the retirement system for that portion of his out-of-state service. He indicated in a letter accompanying his payment his intention to purchase credit for his remaining out-of-state service as he accumulated matching service in Michigan.
Mr. Scannell died on May 12, 1981, having completed, as of that date, the five years of additional service necessary to purchase credit for his remaining five years of out-of-state service. Shortly thereafter, petitioner contacted respondent retirement system and was told that she was not permitted to purchase credit for the additional five years of out-of-system service or her husband’s military service. Upon petition by Mrs. Scannell, a hearing was held before respondent board. The hearings officer concluded that petitioner’s claim should be denied because the statute provided for the purchase of credit for military service or out-of-state service by a member only and did not provide for such purchase by the survivor of a member. The respondent board adopted the findings of fact and conclusions of law of the hearings officer and denied the relief sought. The decision of the board was affirmed by the circuit court below.
The Michigan Public School Employees Retirement Act of 1979 (MPSERA), MCL 38.1301 et seq.; MSA 15.893(111) et seq., governs retirement benefits for public school employees. The act requires that members have at least ten years of service to receive a retirement allowance, MCL 38.1381; MSA 15.893(191), which is based upon the member’s years of credited service, MCL 38.1384; MSA 15.893(194). "Member” is defined in the act as "a public school employee”. MCL 38.1305(1); MSA 15.893(115X1). Under MCL 38.1369; MSA 15.893(179), a member may add to his "years of credited service” by tacking on "prior service credit * * * for out of system public education service” up to a maximum of 15 years out-of-sys tem credit. To do this, a member must pay to the retirement system an amount equivalent to what the member would have been paying into the system had the service been performed in Michigan. The out-of-system credit may not be used to satisfy the ten-year eligibility requirement. A similar provision allowing credit for military service is found in MCL 38.1373; MSA 15.893(183).
Petitioner argues that respondents’ interpretation of the MPSERA is overly restrictive and frustrates the purpose and spirit of the act. She contends that the widow of a public school employee who was a member of the MPSERS should be allowed to purchase out-of-system and military service credits which the member himself never purchased, although he was eligible to do so. We are unable to so conclude.
MCL 38.1369; MSA 15.893(179) speaks in terms of purchase of out-of-system credit by a "member” only. MCL 38.1373; MSA 15.893(183) likewise refers to the purchase of military service credit by a "member” only. The statutes make no provision for such purchases by a beneficiary. We conclude that, by their clear terms, the statutes apply only to "members”. Had the Legislature intended that it be possible for beneficiaries to purchase out-of-system and military service credits, it could have expressly stated that intention within the statute. The Legislature did exactly that in the Judges Retirement Act, MCL 38.801 et seq.; MSA 27.125(1) et seq. MCL 38.810(2); MSA 27.125(10X2) allows the member’s spouse or heirs to purchase whatever prior service credit might be necessary to establish eligibility for retirement benefits. The MPSERA contains no parallel provisions.
We find Bennetts v State Employees Retirement Bd, 95 Mich App 616; 291 NW2d 147 (1980), a case relied upon by petitioner, to be distinguishable from the present facts. In Bennetts, this Court analyzed 1976 PA 227 and found it to be facially ambiguous. The Court then looked to the act’s extensive legislative history and the expressed purposes sought to be met by the act and concluded that the plaintiff there was entitled to the greater monthly benefits which the defendant’s interpretation of the statute sought to avoid. In the instant case, no facial ambiguity is present in the MPSERA. The act is simply silent on the question of purchase of out-of-system or military credit by other than a member. While we recognize the rule that the spirit and purpose of a statute must prevail over its strict letter, Aikens v Dep’t of Conservation, 387 Mich 495, 499; 198 NW2d 304 (1972), petitioner has not presented any evidence that the spirit of the MPSERA is violated by a rule limiting the purchase of out-of-system and military service credit to members. Such a rule does not undermine the financial security of public school retirees and their beneficiaries since a member may purchase such credit as desired after the necessary conditions are met. We find no error in the circuit court’s affirmance of the board’s decision.
Petitioner argues that, even if a beneficiary may be precluded from purchasing additional credit after a member’s death, respondents should be estopped from denying her request on the facts of this case. Max Cooper, a colleague of petitioner’s husband, testified in a deposition that he and Mr. Scannell attended an informational meeting on the MPSERA at Ferris State College. There, an agent of respondent retirement system stated that an employee’s widow could buy out-of-system or military service credit if the employee himself had not purchased the credit before his death. Cooper and Mr. Scannell agreed after the meeting that there was no urgency in purchasing their additional credit and that the advantage was in waiting. Petitioner argues that she and her husband relied to their detriment on the statement by respondent retirement system’s agent. Respondents argue that even if the misstatement did occur, no court has held a public agency to be estopped from enforcing a statute because of its provision of erroneous advice. This argument was raised but was not addressed by the respondent board or by the circuit court judge.
This Court has held that:
"Estoppel arises where a party, by representations, admissions or silence, intentionally or negligently induces another party to believe facts, and the other party justifiably relies and acts on this belief, and will be prejudiced if the first party is permitted to deny the existence of the facts.” William C Reichenbach Co v State of Michigan, 94 Mich App 323, 330-331; 288 NW2d 622 (1979).
We find the element of justifiable reliance lacking here and decline to hold that respondents are estopped from applying the rule against purchase of additional credit by Mrs. Scannell. Even if we assume that the remaining elements of an estoppel claim are present and that a state may be es-topped from enforcing a law by the act or conduct of its officers or agents, see Oliphant v Frazho, 381 Mich 630; 167 NW2d 280 (1969); State ex rel MacMullan v Harrington, 32 Mich App 209; 188 NW2d 214 (1971), we are unable to conclude that the reliance of petitioner’s husband was justified. A person may not rely indefinitely upon the state ment of an agency representative regarding the interpretation of a statute.
Petitioner asserts that the misstatement of the rights of a widow to purchase additional credit after the member’s death occurred some time in 1976 or thereafter. We note that MCL 38.319; MSA 15.893(59) and MCL 38.319a; MSA 15.893(59a), the sections dealing with credit for other service and military service, were repealed by 1976 PA 104, immediately effective May 2. If the informational meeting occurred prior to the repeal of the former statute, the alleged misstatement was likely based upon statutes which became inapplicable shortly thereafter. 1980 PA 300, immediately effective October 31, repealed the entire act governing retirement systems for public school employees, MCL 38.201 et seq.; MSA 15.893(1) et seq., and substituted the current MPSERA. Therefore, even if the meeting occurred after May 2, 1976, the relevant statutory provisions were repealed in 1980. Statutes are by their nature fluid. They are subject to repeal and revision by the Legislature at any time. The revisions in the retirement system of public school employees illustrate the danger in assuming that statutory rights are fixed and unchanging. Whether the statement by the respondent retirement system’s representative was originally correct or incorrect is irrelevaht since petitioner’s husband could not justifiably rely on this statement of his future rights for a period of five years. Had petitioner’s husband attempted at a later date to ascertain petitioner’s ability to purchase credit after his death, he presumably would have been correctly instructed that the statute made no provision for such purchase. Had he again been misinformed, we would be presented with a different issue.
Affirmed. No costs, a question of statutory construction being involved. | [
48,
-19,
85,
-68,
11,
32,
-70,
-122,
90,
-75,
39,
-45,
-17,
-46,
21,
123,
-9,
111,
81,
124,
-77,
51,
114,
66,
19,
-77,
-23,
-51,
-80,
94,
-12,
81,
76,
48,
-118,
-43,
-26,
19,
-115,
24,
-98,
-124,
-81,
-53,
121,
-64,
52,
37,
-104,
13,
49,
94,
51,
14,
20,
71,
-87,
46,
89,
-87,
-64,
-11,
-77,
-124,
-9,
22,
-109,
69,
-98,
-57,
-48,
106,
28,
49,
-112,
-7,
58,
-74,
-54,
112,
27,
-103,
-87,
98,
99,
1,
-96,
-19,
-108,
-104,
-114,
-38,
-67,
-124,
-41,
17,
114,
4,
-67,
-98,
120,
-108,
7,
-12,
102,
68,
31,
108,
14,
-50,
-90,
-112,
-36,
100,
-114,
-126,
-25,
118,
18,
113,
-36,
-30,
93,
71,
59,
27,
-58,
-104
] |
Per Curiam.
Seymour and Florence Veniar (defendants), owners of a condominium unit in the Newport West condominium project, appeal as of right from a bench trial ruling requiring them to pay $2,678.61 in overdue general assessments, $778.92 in interest, and $5,000 in attorney fees to plaintiff association.
In 1975, defendants purchased a condominium unit in the Newport West condominium project located in Ann Arbor. As part of the purchase agreement defendants were required to pay $60 a month to the plaintiff as an "association fee”. The purpose of these fees is to cover the operation, management, and maintenance of the condominium project. The fees are determined by the association’s board of directors in accordance with the budgetary needs of the project. Each year’s assessment may fluctuate, depending upon the operational needs of the condominium project. One of the factors which the board of directors must consider when establishing the project’s annual budget is the creation of an adequate "reserve fund” to cover the depreciation and obsolescence of the project’s capital assets, e.g., to replace such capital items as roofs, sidewalks, driveways, etc. This reserve is funded by a percentage of the total monthly assessments paid by the association’s condominium unit owners.
Between 1976 and 1977, the adequate maintenance of the reserve fund became a great concern to the residents of Newport West. Apparently Amurcón Corporation, the project’s developer, had failed to properly maintain the reserve fund as required. Instead, it had used the money from the reserve account to pay for general operating expenses. Consequently, a three-person financial subcommittee was appointed by plaintiffs advisory committee to investigate the financial straits of the project. Defendant Seymour Veniar was selected as the subcommittee’s chairperson. The other two members appointed to the subcommittee were Walter Albers, an entrepreneur, and Jim Attaway, a certified public accountant. After reviewing the developer’s books and records, Mr. Veniar discovered that the developer had not established the reserve fund, as was required under the association’s bylaws, nor had it provided audited statements of the association’s finances to the Newport West residents, as was also required by the bylaws. The subcommittee made various recommendations to the residents; one such recommendation was that each unit owner withhold part of his or her monthly assessment fee until the problems were straightened out. Some of the members adopted this recommendation and began to withhold a portion of their monthly assessment payments. Subsequently, an agreement was reached between plaintiffs advisory committee and the developer regarding the developer’s actions and inactions. Specifically, the developer agreed to contribute $13,230 to the reserve account, $50,000 towards the repair and paving of the main road through the Newport West project, $30,000 to the operating account, and it also forgave a debt it was claiming against plaintiff in the amount of $21,000. Defendants, however, refused to concur with this agreement and continued to withhold a portion of their assessment fee. Defendants’ main concern was that they were being subjected to an unknown financial exposure due to the absence of a properly maintained reserve fund. Defendants, however, were willing to make up their arrearage if the association would cause a "physical” audit of the project’s capital assets, along with an audit of the project’s books.
In early 1977, the association raised defendants’ monthly assessment fee from $60 a month to $97 a month. Despite this increase, defendants continued to pay the association a reduced amount ($49.80). On the front of each of their checks, in the "memo” portion of the checks, defendants placed words to the effect that "payment was being made in full” for the month dated on the check. Defendants sent a letter to each new management group that took over the management of Newport West, explaining the dispute they had with the association. Usually, the back of defendants’ checks would be rubber-stamped "for deposit only” and the checks placed in the association’s bank account. On October 10, 1978, however, the "payment-in-full” inscription was, for the first time, crossed out and on the back side of the check was written: "Deposit as partial payment against balance of $1,577.89”. Thereafter, plaintiff began to return defendants’ checks without cashing them. Accordingly, upon the advice of counsel, defendants stopped making monthly assessment pay ments altogether between March, 1979, and August, 1979. Starting in September, 1979, and until the date of trial, defendants made full payments of their monthly assessment obligations to the association.
On May 6, 1979, a lien was filed against defendants’ condominium unit. Nevertheless, defendants remained adamant in their refusal to pay their, delinquent assessment obligations. Defendants persisted in their belief that all was not right with the reserve fund and that the association was wrongfully refusing to cause an independent audit of the books. Subsequently, defendants’ neighbors began to ostracize defendants because of defendants’ refusal to pay their delinquent assessment fees. Someone placed a notice on the project’s tennis court sign-up board telling defendants that until they paid their assessment fees they could not use the tennis courts. Likewise, defendants were no longer invited to community get-togethers and defendants’ immediate neighbors, Mr. and Mrs. Langer, built a deck, allegedly encroaching into the project’s common area, blocking defendant’s view of the rolling lawn around their unit.
On May 31, 1979, plaintiff began the instant action against defendants to collect the delinquent assessment fees plus interest, costs, and attorney fees. Plaintiff filed an amended complaint against defendants on August 3, 1979. Defendants counterclaimed, alleging that there had been an accord and satisfaction, that plaintiff had malice towards defendants, that there were encroachments constructed into the common areas of the project to defendants’ damage, that defendants were entitled to an injunction to prohibit future special assessments, and that defendants were entitled to an injunction against the association to prevent the impending termination of utility services to defendants’ condominium unit.
Following a bench trial, the trial court issued an opinion and order in plaintiffs favor in the following amounts: (1) $2,678.61 for "overdue assessments”; (2) $778.92 for "interest to July 20, 1982” at the rate of 7%; and (3) $5,000 for "attorneys’ fees”.
Defendants filed a motion for a new trial or for an amendment of the judgment against them. The motion was denied.
The initial question raised in this appeal is whether plaintiffs failure to provide audited financial statements to the co-owners and to maintain a proper reserve fund, as required by its bylaws, may be asserted by a co-owner as a defense against an action for overdue assessments. In arguing that it may not, plaintiff relies upon certain provisions of the Condominium Act, MCL 559.101 et seq.; MSA 26.50(101) et seq.
MCL 559.165; MSA 26.50(165) requires each condominium unit owner to comply with the project’s master deed, bylaws, and the rules and regulations found in and promulgated under the Condominium Act. In this case both the bylaws and the act require the assessment of fees to cover the common expenses of the project. MCL 559.169(3); MSA 26.50(169)(3); Newport West Condominium Bylaws, art II, §4. Under MCL 559.169(4); MSA 26.50(169)(4) a co-owner may not be exempted from contributing his or her share of the common expenses by nonuse or waiver of the use of any common element or by abandonment of his or her unit. The sums assessed against a co-owner by the association that remain unpaid constitute a lien upon the delinquent co-owner’s unit. MCL 559.208; MSA 26.50(208). This section of the act empowers the association to foreclose on the lien or to seek a money judgment. Section 139 of the act, MCL 559.239; MSA 26.50(239), provides:
"A co-owner may not assert in an answer, or set off to a complaint brought by the association for non-payment of assessments the fact that the association of co-owners or its agents have not provided the services or management to a co-owner(s).”
In our view the phrase "services or management” as employed in the above section embraces the audits and properly funded reserves desired by defendant. Simply stated, the Condominium Act does not provide a co-owner with the self-help remedy of withholding part or all of his assessed fees.
Defendant on appeal suggests that the provisions of the Condominium Act should not have been applied to this matter in the first place. The effective date of the Condominium Act was July 1, 1978. MCL 559.272; MSA 26.50(272). Enactment of the Condominium Act was accompanied by repeal of the Horizontal Real Property Act (HRPA), MCL 559.1 et seq.; MSA 26.50(1) et seq., which addressed the same subject matter. MCL 559.271; MSA 26.50(271).
Defendant relies on § 170 of the Condominium Act, which provides:
"This act does not impair or affect any act done, offense committed or right accruing, accrued, or acquired, or a liability, penalty, forfeiture, or punishment incurred before this act takes effect, but the same may be enjoyed, asserted, and enforced, as fully and to the same extent as if this act had not been passed. Proceedings may be consummated under and in accordance with Act No. 229 of the Public Acts of 1963, as amended, being sections 559.1 to 559.31 of the Michigan Compiled Laws. Proceedings pending at the effective date of this act and proceedings instituted thereafter for any act, offense committed, right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred before the effective date of this act may be continued or instituted under and in accordance with Act No. 229 of the Public Acts of 1963, as amended.” MCL 559.270; MSA 26.50(270).
Plaintiffs suit was instituted after the effective date of the act and concerned events occurring both before and after that date. This being the case, we believe that plaintiff was entitled, pursuant to the last sentence of § 170 above, to proceed either under the HRPA or the Condominium Act. The sentence provides that such proceedings may be undertaken pursuant to HRPA; the word "may” in a statute is construed as permissive rather than mandatory unless a contrary legislative intent appears. Smith v School Dist No 6, Fractional, Amber Twp, 241 Mich 366; 217 NW 15 (1928); Sutton v Cadillac Area Public Schools, 117 Mich App 38, 42; 323 NW2d 582 (1982). We perceive no such contrary intent.
Still, given the unambiguous language of the first sentence of § 170, any right acquired by defendants prior to the effective date of the Condominium Act may not be defeated by its passage. However, defendants had not acquired, through HRPA or otherwise, a right to withhold portions of assessed fees in response to plaintiffs managerial failings. The consistent flaw in defendants’ position has been that they cast the legal questions posed by this case in a purely contractual framework. Because plaintiff has breached certain conditions governing its contract relationship with defendants, they posit, defendants may be excused in whole or in part from tendering their fees. This position ignores the plain fact that payment of the assessments is, and has been, an independent obligation. We have seen where this is true under the Condominium Act; it was equally the case under HRPA.
Section 15 of the former act provided:
"The owner of each apartment shall contribute to the expenses of administration and to the expenses of maintenance and repair of the common elements of the condominium project according to the percentage allocated to such apartment in the master deed. No owner shall be exempt from contributing as herein provided by nonuse or waiver of the use of any of the common elements or by abandonment of his apartment.” MCL 559.15; MSA 26.50(15).
HRPA contains no provision corresponding to § 139 of the Condominium Act, set forth supra, precluding the co-owner from asserting failure of the association to provide services or management as a defense to a suit to recover delinquent assessments. But we believe that such may be implied from a fair reading of the former act. Section 15 of HRPA makes the payments mandatory and indicates that no exemption is provided for nonuse of common areas. Had the Legislature intended an exemption to be available to co-owners wishing to withhold payments as a self-help remedy, we think such would have been explicitly provided.
Defendants are not without a remedy for violations by the association of the master deed, bylaws, or the Condominium Act. This remedy consists of legal action against the association, see MCL 559.207; MSA 26.50(207), and not the withholding of fees.
A second issue relevant to plaintiffs action for recovery of delinquent fees is whether defendants were entitled to a ruling that an accord and satisfaction took place.
Defendants claim that the notation on the front of the checks by which they effected partial assessment fee payments, to the effect that payment was being made in full, created an accord and satisfaction upon plaintiff’s acceptance and negotiation of the checks. The trial court ruled that the general rules regarding accord and satisfaction in contract law did not apply because the Condominium Act governed the rights and obligations of the parties. While we are reluctant to endorse the trial court’s reasoning, we are satisfied that it reached the proper result.
An accord and satisfaction does not take place absent a "meeting of the minds”. Fritz v Marantette, 404 Mich 329; 273 NW2d 425 (1978), reh den 406 Mich 1103 (1979). Its essence is the compromise of an existing claim; the claim must be disputed and then a substituted performance agreed upon and accomplished. Gitre v Kessler Products Co, Inc, 387 Mich 619, 623-624; 198 NW2d 405 (1972); Stadler v Ciprian, 265 Mich 252, 262; 251 NW 404 (1933).
In this case the defense of accord and satisfaction fails because there was no dispute. Defendants readily concede that at the outset their assessments were $60 per month. Defendants withheld a portion of the liquidated amount, but did so because they were concerned about certain of plaintiff’s operational practices. The correct amount of assessments owed was not the subject of a genuine dispute. For the foregoing reasons, we affirm the judgment for plaintiff on its suit for overdue assessments.
We now turn our attention to the lower court’s disposition of the issues raised by defendants’ counter-complaint. Defendants maintain that the trial court erred in finding that the issues concerning audits and adequacy of reserve accounts were raised only as defenses to plaintiffs suit and not in defendants’ counterclaim. We agree with the trial court.
Defendants’ counter-complaint makes no demand for an audit, nor is plaintiffs failure to cause a certified audit the subject of any of the five counts. Count IV raises the question of the adequacy of plaintiff’s reserve accounts. But this count did not seek funding of a reserve account, nor did it charge that defendants were damaged by past failures to maintain adequate reserves. Instead, it sought an injunction preventing the levy of any special assessments in the future, or, in the alternative, an order that plaintiff must pay any such assessments itself. When the issues concerning the audits and reserves were raised by defendants at trial they were asserted as defenses. This portion of defendants’ opening statement typifies their trial posture:
"So in terms of the plaintiffs case, your Honor, we feel that, again, they did not meet the essential prerequisites that they were required by law to meet, and that is to give an audit and also take and establish reserve accounts from day one. Having failed to do that, they can make no claim that any money is due.”
We conclude from the foregoing discussion that: (1) the audit and reserve issues were not sufficiently pled by defendants as counterclaims, GCR 1963, 111.1(1), and (2) were not tried by express or implied consent of the parties as counterclaims, GCR 1963, 118.3, because they were asserted defensively at trial. Because the trial court correctly concluded that plaintiff’s failure to cause an audit, or to consistently maintain adequate reserves, could not be a defense to plaintiffs suit, it concluded that the issues need not be reached. We note, parenthetically, that defendants were non-suited on Count IV of their counter-complaint because the proofs did not show that any special assessments were imminent.
We perceive no injustice to defendants arising from our disposition of this issue. Because defendants’ allegations concerning plaintiffs failure to order audits or maintain reserves were not decided on their merits, they may be the subject of separate litigation.
The next issue relates to the trial court’s disposition of Count III of defendants’ counter-complaint. The principal allegations of this count were: (1) that plaintiff "improperly and illegally authorized encroachments”, notably flower beds and sun decks, built by certain co-owners into common areas of the project; and (2) that these authorizations were intentionally designed to diminish the value of defendants’ unit and to "cause harrassment and grief’ to defendants. Defendants prayed that plaintiff be ordered to remove all such encroachments or to pay money damages.
Testimony at trial was largely limited to one specific encroachment — a patio deck built by defendants’ neighbors, the Langers. The trial court held that defendants’ "right to have the Langers’ patio deck removed could not be decided without the Langers present as a named defendant of the counterclaim”.
No one questions that defendants could not obtain removal of the offending encroachments without joinder of the co-owners who constructed them. However, the gravamen of defendants’ complaint was that the encroachments were illegally and maliciously authorized by plaintiff; money damages were sought, in the alternative, based upon these acts. In our view, money damages from plaintiff would have constituted complete relief for the acts pled. We therefore remand for a determination of this issue on the merits by the trial judge, to be accompanied by findings of fact and conclusions of law, GCR 1963, 517.1.
Finally, defendants contest the award of attorney fees to plaintiff in the amount of $5,000. The general rule in Michigan prohibits an award of attorney fees as an element of costs or damages absent express authorization by statute or court rule. H & L Heating Co v Bryn Mawr Apartments of Ypsilanti, Ltd, 97 Mich App 496, 506; 296 NW2d 354 (1980); Birou v Thompson-Brown Co, 67 Mich App 502, 515; 241 NW2d 265 (1976), lv den 397 Mich 808 (1976). Section 106 of the Condominium Act provides clear authorization:
"In a proceeding arising because of an alleged default by a co-owner, the association of co-owners, if successful, may recover the costs of the proceeding and such reasonable attorneys’ fees as may be determined by the court.” MCL 559.206(b); MSA 26.50(206)(b).
Because, as determined supra in this opinion, plaintiff could properly proceed under the Condominium Act, this provision is controlling. An award of attorney fees under § 106 is, by the terms of that section, discretionary. We are convinced, however, that an attorney fee award was inappropriate given the facts of this case.
Defendants have been an active force in the condominium project, and, in our view, their efforts to ensure the fiscal integrity of the project benefitted the other members of their community. The record reveals that defendants withheld part of their assessment in the good faith belief that they were entitled to do so; it also appears that this action was intended to coerce compliance with the project’s bylaws. Under these peculiar circumstances, we hold that the trial court abused its discretion in awarding attorney fees to plaintiff and we vacate that award.
The award of overdue assessments and interest to plaintiff is affirmed. The award of attorney fees to plaintiff is vacated. The court’s disposition of Count III of defendants’ counter-complaint is vacated, and that part of the cause remanded for proceedings as set forth supra in this opinion. The court’s disposition of defendants’ counter-complaint is otherwise affirmed. We retain jurisdiction.
Affirmed in part, reversed in part, and remanded. | [
116,
106,
-48,
-2,
24,
98,
56,
-80,
123,
-87,
-77,
83,
-23,
75,
20,
39,
-29,
125,
96,
107,
-123,
-93,
71,
2,
-42,
-77,
-13,
-63,
-77,
109,
-27,
-43,
76,
53,
-62,
-99,
-62,
-125,
-43,
-46,
14,
-123,
-102,
-59,
-7,
96,
48,
127,
-112,
79,
113,
30,
-29,
44,
49,
107,
108,
44,
121,
-87,
-64,
-8,
-113,
12,
-53,
23,
1,
54,
-104,
-61,
-40,
56,
-100,
-79,
16,
-31,
115,
-74,
6,
114,
71,
-101,
-83,
98,
98,
0,
65,
-9,
-48,
-116,
14,
-102,
13,
-123,
-109,
25,
2,
39,
-74,
-33,
84,
6,
37,
126,
-26,
-100,
91,
108,
-121,
-114,
-26,
-77,
-33,
116,
-36,
-62,
-17,
3,
48,
100,
-50,
98,
94,
71,
43,
-45,
-33,
-64
] |
Per Curiam.
In 1966, defendant constructed a house. Plaintiffs became remote purchasers of that house in July, 1977, i.e., there were at least two previous owners. Shortly after their purchase, plaintiffs discovered defects in the house which they attributed to defendant. On March 20, 1979, plaintiffs filed a two-count complaint against defendant in district court, alleging negligent construction (Count I) and breach of an implied warranty of habitability (Count II). On defendant’s motions, the trial court granted accelerated judgment based on expiration of the applicable statute of limitations, pursuant to GCR 1963, 116.1(5), on Count I and summary judgment, pursuant to GCR 1963, 117.2(1), on Count II. Plaintiffs took an appeal as of right to the circuit court, challenging only the entry of accelerated judgment as to Count I. The circuit court affirmed and this Court granted leave to appeal.
The trial court erred by granting accelerated judgment in favor of defendant. Plaintiffs’ tort claim for negligent construction is a viable one. The statute involved in this case, MCL 600.5827; MSA 27A.5827, was enacted as part of the Revised Judicature Act. 1961 PA 236.
"Sec. 5827. Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.”
At first glance, it appears that, pursuant to the foregoing statute, the wrong occurred when the house was built in 1966 and that the damage did not result, at the earliest, until plaintiffs purchased the house in 1977. Thus, it would seem that plaintiffs’ claim is time-barred.
However, the Supreme Court has interpreted § 5827 as stating that a claim does not accrue until one is injured, not when the wrong is committed. Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 150; 200 NW2d 70 (1972). Also, Williams v Polgar, 391 Mich 6, 23-25; 215 NW2d 149 (1974). In other words, the limitation period does not begin to run until all of the elements of the cause of action have occurred and can be alleged in a proper complaint. Where an element of the cause of action, such as damages, has occurred but cannot be pled in a proper complaint because it is not, with reasonable diligence, discoverable until sometime after it has occurred, both this Court and the Supreme Court have applied a discovery rule of accrual. Thus, in Williams, the Supreme Court concluded that the plaintiffs claim did not accrue until plaintiff knew or should have known of the defendant’s negligent misrepresentation. This Court has similarly ruled in Bonney v Upjohn Co, 129 Mich App 18; 342 NW2d 551 (1983), that the plaintiffs’ products liability claim for personal injuries against a drug company did not accrue until plaintiffs discovered or should have discovered that they had a cause of action. The discovery rule of accrual has also been applied in cases involving property damage as opposed to personal injury, where it has been held that the element of damage does not occur until the damage was either discovered or should have been discovered through the exercise of reasonable diligence. Southgate Community School Dist v West Side Construction Co, 399 Mich 72, 82; 247 NW2d 884 (1976), reh den 400 Mich 951 (1977); Bluemlein v Szepanski, 101 Mich App 184, 190; 300 NW2d 493 (1980), lv den 411 Mich 995 (1981).
In this case, plaintiffs allege negligent construction. The elements of that action are: (1) the existence of a duty owed by defendant to plaintiffs or to any of plaintiffs’ predecessors-in-interest, (2) to exercise due care in the construction of a building, and (3) a breach of that duty which (4) proximately caused (5) damages to plaintiffs or to any of plaintiffs’ predecessors-in-interest. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977); Baranowski v Strating, 72 Mich App 548, 556, 250 NW2d 744 (1976), lv den 399 Mich 881 (1977).
Since the final element to have occurred in this case was the property damage and since such damage is not always discoverable at the time it first occurs, the three-year limitation period began to run when that property damage was or with reasonable diligence should have been discovered. For example, if the damage was not discovered and could not reasonably have been discovered until after plaintiffs took possession of the house, then the three-year period of limitations began running at that time and plaintiffs’ action is not barred. On the other hand, if the damage was or with reasonable diligence should have been discovered prior to March 20, 1976, and plaintiffs’ predecessors-in-interest simply failed to institute any legal action against defendant, then plaintiffs’ cause of action is barred by. the three-year statute of limitations. However, in both cases, the determination of when the limitations period commenced is for the trier of fact. Bonney, supra.
Reversed and remanded for further proceedings. | [
-48,
106,
-36,
-2,
-119,
32,
40,
-104,
105,
-116,
35,
-105,
-1,
-62,
-107,
109,
-13,
107,
-31,
114,
17,
-93,
23,
2,
-42,
-77,
-13,
81,
-87,
109,
116,
91,
76,
49,
-62,
-107,
-58,
-128,
93,
92,
10,
-122,
27,
108,
-7,
64,
124,
123,
72,
7,
49,
-52,
99,
47,
49,
79,
104,
40,
-53,
61,
-48,
-72,
-109,
5,
127,
19,
-95,
5,
-98,
71,
104,
-118,
-108,
53,
34,
-88,
114,
-74,
-58,
60,
-61,
-119,
40,
102,
99,
-96,
13,
-9,
-8,
-104,
38,
86,
-81,
-90,
-77,
88,
27,
43,
-65,
-97,
124,
36,
100,
126,
-28,
68,
91,
108,
7,
-118,
-42,
-79,
-113,
98,
-104,
3,
-57,
-93,
48,
112,
-53,
-28,
90,
7,
115,
-101,
26,
-34
] |
Michael J. Kelly, J.
This is a premises liability case. Plaintiff appeals as of right an order of the circuit court granting defendant’s motion for summary disposition under MCR 2.116(C)(8). We reverse.
Plaintiff’s decedent, Frank Eason, agreed to assist defendant in the repair and maintenance of its building.. While making repairs, Eason fell from a ladder and scaffolding set up by defendant’s agents and suffered fatal injury.
Plaintiff subsequently filed suit against defendant alleging that the ladder and scaffolding were inadequately structured and that defendant should have expected that Eason would not discover the dangerous condition. At the hearing regarding defendant’s motion for summary disposition, plain tiff more specifically argued that the ladder was missing a safety latch. Relying on Muscat v Khalil, 150 Mich App 114; 388 NW2d 267 (1986), the trial court found the danger to be open and obvious. Accordingly, the court granted defendant’s motion for summary disposition under MCR 2.116(C)(8) on the basis that defendant was not under a duty to warn its invitees of open and obvious dangers.
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Feister v Bosack, 198 Mich App 19, 21; 497 NW2d 522 (1993). This Court reviews a trial court’s decision under MCR 2.116(C)(8) de novo and determines "if the claim is so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery.” Duran v Detroit News, Inc, 200 Mich App 622, 628; 504 NW2d 715 (1993). All factual allegations supporting the claim are accepted as true, as well as any reasonable inferences or conclusions that can be drawn from the facts. Feister, supra at 21-22. However, mere conclusions, unsupported by allegations of fact, will not suffice to state a cause of action. Roberts v Pinkins, 171 Mich App 648, 651; 430 NW2d 808 (1988). In a negligence action, summary disposition is proper under MCR 2.116(C)(8) if it is determined as a matter of law that the defendant owed no duty to the plaintiff under the alleged facts. Schneider v Nectarine Ballroom, Inc (On Remand), 204 Mich App 1, 4; 514 NW2d 486 (1994).
The parties agree that Eason was an invitee on defendant’s property. An invitee is a person who enters the land of another on an invitation that carries with it an implication that reasonable care has been used to prepare the premises and make them safe. Wymer v Holmes, 429 Mich 66, 71, n 1; 412 NW2d 213 (1987). An invitor must warn of hidden defects; there is no duty to warn of open and obvious dangers unless the invitor anticipates harm to the invitee despite the invitee’s knowledge of the defect. Riddle v McLouth Steel Products Corp, 440 Mich 85, 91-95; 485 NW2d 676 (1992). Whether a danger is open and obvious depends upon whether it is reasonable to expect an average user with ordinary intelligence to discover the danger upon casual inspection. Novotney v Burger King Corp (On Remand), 198 Mich App 470, 474-475; 499 NW2d 379 (1993). The care required extends to instrumentalities on the premises that the invitee uses at the invitation of the premises owner. Muylaert v Erickson, 16 Mich App 167, 168; 167 NW2d 823 (1969).
In Muscat, supra, a negligent entrustment. case, this Court held:
An extension ladder is an essentially uncomplicated instrument which gains a propensity for danger only because it will allow the user to reach great heights. This danger is most obvious to all but children of tender years whose intellectual capacity does not permit them to reason to such conclusions. [Id. at 122.]
In Muscat, the plaintiff, a painter, was injured while painting the house of the defendant, a neighbor. During the course of his work, the plaintiff approached the defendant with a request for a taller ladder. The defendant told the plaintiff that a ladder was available at the family business. The plaintiff obtained the ladder from the business premises himself. Back at the defendant’s house, the plaintiff climbed the ladder while his assistant held it at the bottom. At one point, the assistant left his position. When the plaintiff proceeded to climb the ladder, the base of the ladder slipped, at which point it began to "telescope” down, causing injury to the plaintiff. Id. at 117.
The Muscat Court concluded that the obviousness of the dangers posed by extension ladders precluded a suit for negligent entrustment. Defendant relies heavily on Muscat in arguing that summary disposition was proper. However, we believe that Muscat is distinguishable on three, grounds.
First, Muscat addressed the dangers generally posed by an extension ladder. Here, plaintiff alleges a specific defect in the ladder, a missing or malfunctioning safety latch. The real inquiry is whether this defect must be deemed an open and obvious danger. We think not. The danger that an extension ladder might slip and telescope down because of inadequate bracing at its base, as happened in Muscat, is a danger readily apparent to persons of ordinary intelligence and experience. However, the fact that a safety latch is missing or malfunctioning creates a different, or at least an additional, danger that is not so obvious absent specific knowledge of the defect.
Second, the Muscat Court’s comments concerning the dangers associated with extension ladders were made only in connection with the plaintiff’s negligent entrustment argument. The theory of negligent entrustment imposes liability on one who supplies a chattel for the use of another whom the supplier knows or has reason to know is, because of youth, inexperience, or otherwise, likely to use it in a manner involving unreasonable risk of physical harm. Id. at 121, citing Moning v Alfono, 400 Mich 425, 443-444; 254 NW2d 759 (1977). Essentially, the Muscat Court deemed the plaintiff wise enough to take any necessary precautions himself, which would include a detailed inspection of the ladder. The ladder was never part of the defendant’s home premises and, once entrusted to the plaintiff from the family business, the ladder was under the sole control of the plaintiff. In contrast, this case involves principles of premises liability. Under plaintiff’s theory of premises liability, control of the defective condition or device never changed hands.
Finally, Muscat was not a case in which summary disposition was sought under MCR 2.116(C) (8). Here, looking solely to the complaint, we believe that defendant was placed on sufficient notice that plaintiff would try to prove a latent defect in the ladder that defendant failed to identify and warn Eason about. See MCR 2.111(B). While plaintiff went beyond the four corners of the complaint to explain her specific theory of the missing or malfunctioning safety latch at the motion hearing, her comments merely showed that further factual development of the allegations in the complaint could establish a theory of recovery, which is a relevant inquiry in deciding a motion under MCR 2.116(C)(8). If, as defendant claims, plaintiff’s safety latch theory is unsupported by the evidence, that is an issue more appropriately resolved pursuant to a motion under MCR 2.116(0(10), which we prefer the trial court to address first.
The trial court erred in granting defendant’s motion for summary disposition under MCR 2.116(C)(8).
Reversed. | [
-111,
104,
-52,
-100,
58,
96,
10,
94,
97,
-121,
103,
-47,
-115,
-62,
29,
39,
-9,
123,
-47,
105,
-11,
-93,
87,
-29,
-42,
-77,
-78,
-57,
49,
78,
100,
-69,
76,
113,
-58,
85,
-62,
-126,
-59,
22,
-118,
1,
26,
-22,
-39,
0,
36,
123,
20,
7,
85,
-36,
-29,
43,
28,
-53,
41,
40,
-53,
-83,
114,
-104,
-117,
13,
79,
4,
-93,
-26,
-100,
103,
88,
24,
92,
53,
0,
-86,
113,
-74,
-125,
116,
-55,
-103,
-128,
99,
98,
1,
29,
-25,
-31,
-104,
47,
110,
-81,
-89,
-101,
64,
27,
35,
-97,
-99,
9,
49,
54,
126,
-18,
92,
93,
44,
7,
-117,
-46,
-79,
-81,
48,
16,
-93,
-50,
3,
50,
113,
-51,
-6,
94,
34,
91,
31,
-98,
-98
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.